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446 U.S. 719
100 S.Ct. 1967
64 L.Ed.2d 641
SUPREME COURT OF VIRGINIA et al., Appellants,v.CONSUMERS UNION OF the UNITED STATES, INC., et al.
No. 79-198.
Argued Feb. 19, 1980.
Decided June 2, 1980.
Syllabus
Appellant Virginia Supreme Court, which claims inherent authority to regulate and discipline attorneys, also has statutory authority to do so. Pursuant to these powers, the court promulgated the Virginia Code of Professional Responsibility (Code) and organized the Virginia State Bar to act as an administrative agency of the court to report and investigate violations of the Code. The statute reserves to the state courts the sole power to adjudicate alleged violations of the Code, and the Supreme Court and other state courts of record have independent authority on their own to initiate proceedings against attorneys. When one of the appellees sought to prepare a legal services directory, the attorneys who were canvassed refused to supply the requested information for fear of violating the Code's prohibition against attorney advertising (DR 2-102(A)(6)). Appellees then brought an action in Federal District Court under 42 U.S.C. § 1983 against, inter alios, the Virginia Supreme Court and its chief justice (also an appellant) in both his individual and official capacities, seeking a declaration that the defendants had violated appellees' First and Fourteenth Amendment rights to gather, publish, and receive factual information concerning the attorneys involved, and a permanent injunction against the enforcement and operation of DR 2-102(A)(6). Ultimately, after the Virginia Supreme Court declined to amend DR 2-102(A)(6) despite the State Bar's recommendation to do so and despite the intervening decision in Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810, holding that enforcement of a ban on attorney advertising would violate the First and Fourteenth Amendment rights of attorneys seeking to advertise fees charged for certain routine legal services, the District Court declared DR 2-102(A)(6) unconstitutional on its face and permanently enjoined defendants from enforcing it. The court further held that the Civil Rights Attorney's Fees Awards Act of 1976, which provides that in any action to enforce 42 U.S.C. § 1983, inter alia, a district court, in its discretion, may award the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs, authorized in proper circumstances the award of fees against the Virginia Supreme Court and the chief justice in his official capacity, and that here such an award was not unjust because the Supreme Court had denied the State Bar's petition to amend the Code and had also failed to amend it to conform to the holding in Bates, supra.
Held :
1. In promulgating the Code, the Virginia Supreme Court acts in a legislative capacity, and in that capacity the court and its members are immune from suit. Pp. 731-734.
2. But the court and its chief justice were properly held liable in their enforcement capacities. Since the state statute gives the court independent authority on its own to initiate proceedings against attorneys, the court and its members were proper defendants in a suit for declaratory and injunctive relief, just as other enforcement officers and agencies are. Pp. 734-737.
3. The District Court abused its discretion in awarding attorney's fees against the Virginia Supreme Court premised on acts or omissions for which appellants enjoy absolute legislative immunity. There is nothing in the legislative history of the Civil Rights Attorney's Fees Awards Act to suggest that Congress intended to permit an award of attorney's fees to be premised on acts for which defendants would enjoy absolute immunity. Pp. 737-739.
470 F.Supp. 1055, vacated and remanded.
Marshall Coleman, Atty. Gen., Richmond, Va., for appellants.
Ellen Broadman, Washington, D.C., for appellees.
Mr. Justice WHITE delivered the opinion of the Court.
1
This case raises questions of whether the Supreme Court of Virginia (Virginia Court) and its chief justice are officially immune from suit in an action brought under 42 U.S.C. § 1983 challenging the Virginia Court's disciplinary rules governing the conduct of attorneys and whether attorney's fees were properly awarded under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, against the Virginia Court and its chief justice in his official capacity.
2
* It will prove helpful at the outset to describe the role of the Virginia Court in regulating and disciplining attorneys. The Virginia Court has firmly held to the view that it has inherent authority to regulate and discipline attorneys. Button v. Day, 204 Va. 547, 552-555, 132 S.E.2d 292, 295-298 (1963). It also has statutory authority to do so. Section 54-48 of the Code of Virginia (1978) authorizes the Virginia Court to "promulgate and amend rules and regulations . . . [p]rescribing a code of ethics governing the professional conduct of attorneys-at-law . . . ."1
3
Pursuant to these powers, the Virginia Court promulgated the Virginia Code of Professional Responsibility (State Bar Code, Bar Code, or Code), the provisions of which were substantially identical to the American Bar Association's Code of Professional Responsibility. Section 54-48 provides no standards for the Virginia Court to follow in regulating attorneys; it is apparent that insofar as the substantive content of such a code is concerned, the State has vested in the court virtually its entire legislative or regulatory power over the legal profession.
4
Section 54-48 also authorizes the Virginia Court to prescribe "procedure for disciplining, suspending, and disbarring attorneys-at-law"; and § 54-49 authorizes the court to promulgate rules and regulations "organizing and governing the association known as the Virginia State Bar, composed of the attorneys-at-law of this State, to act as an administrative agency of the Court for the purpose of investigating and reporting . . . violation[s] . . . ."2 Acting under this authority, the Virginia State Bar (State Bar or Bar) has been organized and its enforcement role vested in an ethics committee and in various district committees. Section 54-51 reserves to the courts the sole power to adjudicate alleged violations of the Bar Code,3 and hence the role of the State Bar is limited to the investigation of violations and the filing of appropriate complaints in the proper courts. Under § 54-74, the enforcement procedure involves the filing of a complaint in a court of record, the issuance of a rule to show cause against the charged attorney, the prosecution of the case by the commonwealth attorney, and the hearing of the case by the judge issuing the rule together with two other judges designated by the chief justice of the Virginia Supreme Court.4 Appeal lies to the Virginia Supreme Court.
5
The courts of Virginia, including the Supreme Court, thus play an adjudicative role in enforcing the Bar Code similar to their function in enforcing any statute adopted by the Virginia Legislature and similar or identical to the role they would play had the Bar Code been adopted by the state legislature.
6
The Virginia Court, however, has additional enforcement power. As we have said, it asserts inherent power to discipline attorneys. Also, § 54-74 expressly provides that if the Virginia Court or any other court of record observes any act of unprofessional conduct, it may itself, without any complaint being filed by the State Bar or by any third party, issue a rule to show cause against the offending attorney. Although once the rule issues, such cases would be prosecuted by the commonwealth attorney, it is apparent that the Virginia Court and other courts in Virginia have enforcement authority beyond that of adjudicating complaints filed by others and beyond the normal authority of the courts to punish attorneys for contempt.
II
7
This case arose when, in 1974, one of the appellees, Consumers Union of the United States, Inc. (Consumers Union), sought to prepare a legal services directory designed to assist consumers in making informed decisions concerning utilization of legal services. Consumers Union sought to canvass all attorneys practicing law in Arlington County, Va., asking for information concerning each attorney's education, legal activities, areas of specialization, office location, fee and billing practices, business and professional affiliations, and client relations. However, it encountered difficulty because lawyers declined to supply the requested information for fear of violating the Bar Code's strict prohibition against attorney advertising. Rule 2-102(A)(6) of the Code prohibited lawyers from being included in legal directories listing the kind of legal information that Consumers Union sought to publish.5
8
On February 27, 1975, Consumers Union and the Virginia Citizens Consumer Council brought an action pursuant to 42 U.S.C. § 1983 against the Virginia Court, the Virginia State Bar, the American Bar Association, and, in both their individual and official capacities, the chief justice of the Virginia Court, the president of the State Bar, and the chairman of the State Bar's Legal Ethics Committee. With respect to the Virginia Court, the complaint identified its chief justice and alleged only that the court had promulgated the Bar Code. The other defendants were alleged to have authority to enforce the Code. Plaintiffs sought a declaration that defendants had violated their First and Fourteenth Amendment rights to gather, publish, and receive factual information concerning attorneys practicing in Arlington County, and a permanent injunction against the enforcement and operation of DR 2-102(A)(6).
9
A three-judge District Court was convened pursuant to 28 U.S.C. § 2281 (1970 ed.). Defendants moved for indefinite continuance of the trial on the grounds that the ABA and the State Bar were preparing amendments to relax the advertising prohibitions contained in DR 2-102(A)(6). Over plaintiff-appellees' opposition, the District Court granted defendants a continuance until March 25, 1976.
10
On February 17, 1976, the ABA adopted amendments to its Code of Professional Responsibility which would permit attorneys to advertise office hours, initial consultation fees, and credit arrangements. Defendants then sought and obtained a further continuance to permit the Virginia Court and the State Bar to consider amending the State Bar Code to conform to the ABA amendments. Although the governing body of the State Bar recommended that the Virginia Court adopt the ABA amendments to DR 2-102, on April 20, 1976, the court declined to adopt the amendments on the ground that they would "not serve the best interests of the public or the legal profession."
11
The action then proceeded to trial on May 17, 1976, and was decided on December 17, 1976. Consumers Union of United States, Inc. v. American Bar Assn., 427 F.Supp. 506 (ED Va.1976). The three-judge District Court concluded that abstention would be inappropriate in light of defendants' failure to amend the State Bar Code despite continuances based on the speculation that DR 2-102(A)(6) would be relaxed. Id., at 513-516. The court declared that DR 2-102(A)(6) unconstitutionally restricted the right of plaintiff-appellees to receive and gather nonfee information and information concerning initial consultation fees. Defendants were permanently enjoined from enforcing DR 2-102(A)(6) save for its prohibition against advertising fees for services other than the initial consultation fee. Id., at 523.
12
Plaintiff-appellees appealed to this Court, challenging the District Court's refusal to enjoin enforcement of the prohibition of fee advertising. Defendants brought a cross-appeal, arguing that DR 2-102(A)(6) should have been upheld in its entirety. While these appeals were pending, we decided Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), in which we held that enforcement of a ban on attorney advertising would violate the First and Fourteenth Amendment rights of attorneys seeking to advertise the fees they charged for certain routine legal services. In light of Bates, the judgment below was vacated and the case was remanded for further consideration. 433 U.S. 917, 97 S.Ct. 2993, 53 L.Ed.2d 1104 (1977).
13
On remand, defendants agreed that in light of Bates DR 2-102(A)(6) could not constitutionally be enforced to prohibit attorneys from providing plaintiff-appellees with any of the information they sought to publish in their legal services directory. Defendants proposed that a permanent injunction be entered barring them from enforcing DR 2-102(A)(6) against attorneys providing plaintiff-appellees with information. On May 8, 1979, the District Court declared DR 2-102(A)(6) unconstitutional on its face and permanently enjoined defendants from enforcing it.6
14
Plaintiff-appellees also moved for costs, including an award of attorney's fees pursuant to the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988.7 The defendants objected to any fee award on various grounds, including judicial immunity. They did not object to their paying other costs. Although holding the individual defendants immune from attorney's fees liability in their individual capacities, the District Court held that the Act authorized in proper circumstances the award of fees against the State Bar, the Virginia Court and the individual defendants in their official capacities. Consumers Union of United States, Inc. v. American Bar Assn., 470 F.Supp. 1055, 1059-1061 (ED Va.1979).
15
The District Court went on to conclude that special circumstances made it unjust to award attorney's fees against the State Bar or against the State Bar officers in their official capacities because it was not these defendants but the Virginia Court that had the power to change the State Bar disciplinary rules and because the State Bar and its officers had unsuccessfully sought to persuade the court to amend the Code to conform to what they deemed to be constitutional standards. There were no similar circumstances making it unjust to award attorney's fees against the Virginia Court and its chief justice in his official capacity. This was because the court had denied the State Bar's petition to amend the Code to conform to what were deemed to be the requirements of Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975), and had also failed to amend the Code to conform to the holding inBates v. State Bar of Arizona, supra. Hence, "[i]t would hardly be unjust to order the Supreme Court of Virginia defendants to pay plaintiffs reasonable attorneys fees in light of their continued failure and apparent refusal to amend [the Code] to conform with constitutional requirements." 470 F.Supp., at 1063. The parties were directed to attempt to reach an agreement on a reasonable sum, failing which the court would determine the fee.8
16
On May 23, 1979, defendants filed a petition for rehearing, arguing for the first time, on judicial immunity grounds, that the Virginia Court and its chief justice were exempt from having declaratory and injunctive relief entered against them. It was also argued that in any event it was an abuse of discretion to enter the fee award against the Virginia Court and its chief justice.
17
Following denial of rehearing, the Virginia Court and its chief justice appealed, presenting the following questions:
18
1. Is the Supreme Court of Virginia immune from judgment under the doctrine of judicial immunity?
19
2. May the Civil Rights Attorney's Fees Awards Act of 1976 be construed to permit an award of attorneys' fees against the Supreme Court of Virginia for its judicial acts?
20
3. Does the doctrine of judicial immunity preclude the award of attorneys' fees for failure to correct a challenged judicial act which is the subject of litigation?
21
4. On the facts before it, did the District Court abuse its discretion in awarding fees against the Virginia Court?
22
Appellees moved to dismiss or affirm, the motion to dismiss urging that the claim of judicial immunity from declaratory or injunctive relief was not properly before the Court because it had not been timely raised in the District Court and had therefore been waived. We noted probable jurisdiction, 444 U.S. 914, 100 S.Ct. 226, 62 L.Ed.2d 168 (1979).
III
23
Title 42 U.S.C. § 1988, as amended by the Civil Rights Attorney's Fees Awards Act of 1976 (Act), 90 Stat. 2641, provides in pertinent part:
24
"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."
25
The District Court held that in light of the § 1983 judgment that had been entered in favor of appellees, the Act authorized an award of attorney's fees against appellants. Appellants urge that this was error. Their primary contention is that on the grounds of absolute legislative or judicial immunity they should have been excluded from the judgment below and also from liability for attorney's fees. Appellees on the other hand assert that neither judicial nor legislative immunity immunized these defendants from declaratory or injunctive relief as distinguished from a damages award; and in any event they insist that the judgment stand against these defendants because the Virginia Court itself shares direct enforcement authority with the State Bar and hence is subject to prospective judgments just as other enforcement officials are.9
26
* Appellees sought declaratory and injunctive relief with respect to particular provisions of the State Bar Code propounded by the Virginia Court. Although it is clear that under Virginia law the issuance of the Bar Code was a proper function of the Virginia Court, propounding the Code was not an act of adjudication but one of rulemaking. The District Court below referred to the issuance of the Code as a judicial function, but this is not conclusive upon us for the purpose of deciding whether issuance of the Code is a judicial act entitled to immunity under § 1983. Judge Warriner, dissenting in the District Court, agreed with a prior District Court holding in Hirschkop v. Virginia State Bar, 421 F.Supp. 1137, 1156 (ED Va.1976), rev'd in part on other grounds sub nom. Hirschkop v. Snead, 594 F.2d 356 (CA4 1979), that in promulgating disciplinary rules the Virginia Supreme Court acted in a legislative capacity. Judge Warriner said:
27
"Disciplinary rules are rules of general application and are statutory in character. They act not on parties litigant but on all those who practice law in Virginia. They do not arise out of a controversy which must be adjudicated, but instead out of a need to regulate conduct for the protection of all citizens. It is evident that, in enacting disciplinary rules, the Supreme Court of Virginia is constituted a legislature." 470 F.Supp., at 1064.
28
We agree with this analysis and hence must inquire whether the Virginia Court and its chief justice are immune from suit for acts performed in their legislative capacity.
29
We have already decided that the Speech or Debate Clause immunizes Congressmen from suits for either prospective relief or damages. 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). The purpose of this immunity is to insure that the legislative function may be performed independently without fear of outside interference. Ibid. To preserve legislative independence, we have concluded that "legislators engaged 'in the sphere of legitimate legislative activity,' Tenney v. Brandhove [341 U.S. 367, 376, 71 S.Ct. 783, 788, 95 L.Ed. 1019 (1951)], should be protected not only from the consequences of litigation's results but also from the burden of defending themselves." Dombrowski v. Eastland, 387 U.S. 82, 85, 87 S.Ct. 1425, 1427, 18 L.Ed.2d 577 (1967).
30
We have also recognized that state legislators enjoy common-law immunity from liability for their legislative acts, an immunity that is similar in origin and rationale to that accorded Congressmen under the Speech or Debate Clause, Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951). In Tenney we concluded that Congress did not intend § 1983 to abrogate the common-law immunity of state legislators. Although Tenney involved an action for damages under § 1983, its holding is equally applicable to § 1983 actions seeking declaratory or injunctive relief.10 In holding that § 1983 "does not create civil liability" for acts undertaken "in a field where legislators traditionally have power to act," id., at 379, 71 S.Ct., at 789, we did not distinguish between actions for damages and those for prospective relief. Indeed, we have recognized elsewhere that "a private civil action, whether for an injunction or damages, creates a distraction and forces [legislators] to divert their time, energy, and attention from their legislative tasks to defend the litigation." Eastland v. United States Servicemen's Fund, supra, at 503, 95 S.Ct., at 1821. Although the separation-of-powers doctrine justifies a broader privilege for Congressmen than for state legislators in criminal actions, United States v. Gillock, 445 U.S. 360, 100 S.Ct. 1185, 63 L.Ed.2d 454 (1980), we generally have equated the legislative immunity to which state legislators are entitled under § 1983 to that accorded Congressmen under the Constitution. Eastland v. United States Servicemen's Fund, supra, 421 U.S., at 502-503, 505, 506, 95 S.Ct., at 1820-1821, 1822, 1823; Dombrowski v. Eastland, supra, 387 U.S., at 84-85, 87 S.Ct., at 1427-1428; United States v. Johnson, 383 U.S. 169, 180, 86 S.Ct. 749, 755, 15 L.Ed.2d 681 (1966); Tenney v. Brandhove, supra, 341 U.S., at 377-379, 71 S.Ct., at 788-789.11 Thus, there is little doubt that if the Virginia Legislature had enacted the State Bar Code and if suit had been brought against the legislature, its committees, or members for refusing to amend the Code in the wake of our cases indicating that the Code in some respects would be held invalid, the defendants in that suit could successfully have sought dismissal on the grounds of absolute legislative immunity.12
31
Appellees submit that whatever may be true of state legislators, the Virginia Court and its members should not be accorded the same immunity where they are merely exercising a delegated power to make rules in the same manner that many executive and agency officials wield authority to make rules in a wide variety of circumstances. All of such officials, it is urged, are not absolutely immune from civil suit. As much could be conceded, but it would not follow that, as appellees would have it, in no circumstances do those who exercise delegated legislative power enjoy legislative immunity. In any event, in this case the Virginia Court claims inherent power to regulate the Bar, and as the dissenting judge below indicated, the Virginia Court is exercising the State's entire legislative power with respect to regulating the Bar, and its members are the State's legislators for the purpose of issuing the Bar Code. Thus the Virginia Court and its members are immune from suit when acting in their legislative capacity.
B
32
If the sole basis for appellees' § 1983 action against the Virginia Court and its chief justice were the issuance of, or failure to amend, the challenged rules, legislative immunity would foreclose suit against appellants. As has been pointed out, however, the Virginia Court performs more than a legislative role with respect to the State Bar Code. It also hears appeals from lower court decisions in disciplinary cases, a traditional adjudicative task; and in addition, it has independent enforcement authority of its own.
33
Adhering to the doctrine of Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872), we have held that judges defending against § 1983 actions enjoy absolute immunity from damages liability for acts performed in their judicial capacities. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978). However, we have never held that judicial immunity absolutely insulates judges from declaratory or injunctive relief with respect to their judicial acts. The Courts of Appeals appear to be divided on the question whether judicial immunity bars declaratory or injunctive relief;13 we have not addressed the question.14
34
We need not decide whether judicial immunity would bar prospective relief, for we believe that the Virginia Court and its chief justice properly were held liable in their enforcement capacities. As already indicated, § 54-74 gives the Virginia Court independent authority of its own to initiate proceedings against attorneys. For this reason the Virginia Court and its members were proper defendants in a suit for declaratory and injunctive relief, just as other enforcement officers and agencies were.15
35
Prosecutors enjoy absolute immunity from damages liability, Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), but they are natural targets for § 1983 injunctive suits since they are the state officers who are threatening to enforce and who are enforcing the law. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), is only one of a myriad of such cases since Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), decided that suits against state officials in federal courts are not barred by the Eleventh Amendment. If prosecutors and law enforcement personnel cannot be proceeded against for declaratory relief, putative plaintiffs would have to await the institution of state-court proceedings against them in order to assert their federal constitutional claims. This is not the way the law has developed, and, because of its own inherent and statutory enforcement powers, immunity does not shield the Virginia Court and its chief justice from suit in this case.16
IV
36
Because appellees properly prevailed in their § 1983 action, the Civil Rights Attorney's Fees Awards Act, 42 U.S.C. § 1988, authorized the District Court, "in its discretion," to award them "a reasonable attorney's fee," which may be recovered from state officials sued in their official capacities. Hutto v. Finney, 437 U.S. 678, 694, 98 S.Ct. 2565, 2576, 57 L.Ed.2d 522 (1978). Applying the standard of Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968), the District Court indicated that attorney's fees should ordinarily be awarded " 'unless special circumstances would render such an award unjust.' " 470 F.Supp., at 1061.17 Accordingly, enforcement authorities against whom § 1983 judgments have been entered would ordinarily be charged with attorney's fees. The District Court nevertheless considered it unjust to require the State Bar defendants to pay attorney's fees because they had recommended that the State Bar Code be amended to conform to what the Bar thought our cases required and because the Virginia Court declined or failed to adopt this proposal. No similar circumstances excused the Virginia Court, the court held, for it was the very authority that had propounded and failed to amend the challenged provisions of the Bar Code.
37
We are unable to agree that attorney's fees should have been awarded for the reasons relied on by the District Court. Although the Virginia Court and its chief justice were subject to suit in their direct enforcement role, they were immune in their legislative roles. Yet the District Court's award of attorney's fees in this case was premised on acts or omissions for which appellants enjoyed absolute legislative immunity. This was error.
38
We held in Hutto v. Finney, supra, that Congress intended to waive whatever Eleventh Amendment immunity would otherwise bar an award of attorney's fees against state officers, but our holding was based on express legislative history indicating that Congress intended the Act to abrogate Eleventh Amendment immunity. There is no similar indication in the legislative history of the Act to suggest that Congress intended to permit an award of attorney's fees to be premised on acts for which defendants would enjoy absolute legislative immunity. The House Committee Report on the Act indicates that Congress intended to permit attorney's fees awards in cases in which prospective relief was properly awarded against defendants who would be immune from damages awards, H.R.Rep. No. 94-1558, p. 9 (1976), but there is no indication that Congress intended to permit an award of attorney's fees to be premised on acts that themselves would be insulated from even prospective relief. Because the Virginia Court is immune from suit with respect to its legislative functions, it runs counter to that immunity for a district court's discretion in allowing fees to be guided by considerations centering on the exercise or nonexercise of the state court's legislative powers.
39
This is not to say that absent some special circumstances in addition to what is disclosed in this record, a fee award should not have been made in this case. We are not convinced that it would be unfair to award fees against the State Bar, which by statute is designated as an administrative agency to help enforce the State Bar Code. Fee awards against enforcement officials are run-of-the-mill occurrences, even though, on occasion, had a state legislature acted or reacted in a different or more timely manner, there would have been no need for a lawsuit or for an injunction. Nor would we disagree had the District Court awarded fees not only against the Bar but also against the Virginia Court because of its own direct enforcement role. However, we hold that it was an abuse of discretion to award fees because the Virginia Court failed to exercise its rulemaking authority in a manner that satisfied the District Court. We therefore vacate the award of attorney's fees and remand for further proceedings consistent with this opinion.
40
It is so ordered.
41
Mr. Justice POWELL took no part in the consideration or decision of this case.
1
"§ 54-48. Rules and regulations defining practice of law and prescribing procedure for practice by law students, codes of ethics and disciplinary procedure.—The Supreme Court may, from time to time, prescribe, adopt, promulgate and amend rules and regulations:
"(a) Defining the practice of law.
"(a1) Prescribing procedure for limited practice of law by third-year law students.
"(b) Prescribing a code of ethics governing the professional conduct of attorneys-at-law including the practice of law or patent law through professional law corporations, professional associations and partnerships, and a code of judicial ethics.
"(c) Prescribing procedure for disciplining, suspending, and disbarring attorneys-at-law."
2
"§ 54-49. Organization and government of Virginia State Bar.—The Supreme Court may, from time to time, prescribe, adopt, promulgate and amend rules and regulations organizing and governing the association known as the Virginia State Bar, composed of the attorneys-at-law of this State, to act as an administrative agency of the Court for the purpose of investigating and reporting the violation of such rules and regulations as are adopted by the Court under this article for such proceedings as may be necessary, and requiring all persons practicing law in this State to be members thereof in good standing."
3
"§ 54-51. Restrictions as to rules and regulations. Notwithstanding the foregoing provisions of this article, the Supreme Court shall not adopt or promulgate rules or regulations prescribing a code of ethics governing the professional conduct of attorneys-at-law, which shall be inconsistent with any statute; nor shall it adopt or promulgate any rule or regulation or method of procedure which shall eliminate the jurisdiction of the Courts to deal with the discipline of attorneys-at-law as provided by law; and in no case shall an attorney, who demands to be tried by a court of competent jurisdiction for the violation of any rule or regulation adopted under this article be tried in any other manner."
4
"§ 54-74. Procedure for suspension or revocation of license.—(1) Issuance of rule.—If the Supreme Court of Virginia, or any court of record of this State, observes, or if complaint, verified by affidavit, be made by any person to such court of any malpractice or of any unlawful or dishonest or unworthy or corrupt or unprofessional conduct on the part of any attorney, or that any person practicing law is not duly licensed to practice in this State, such court shall, if it deems the case a proper one for such action, issue a rule against such attorney or other person to show cause why his license to practice law shall not be revoked or suspended. If the complaint, verified by affidavit, be made by a District Committee of the Virginia State Bar, such court shall issue a rule against such attorney to show cause why his license to practice law shall not be revoked or suspended.
"(2) Judges hearing case.—At the time such rule is issued the court issuing the same shall certify the fact of such issuance and the time and place of the hearing thereon, to the chief justice of the Supreme Court of Virginia, who shall designate two judges, other than the judge of the court issuing the rule, of circuit courts or courts of record of cities of the first class to hear and decide the case in conjunction with the judge issuing the rule, which such two judges shall receive as compensation ten dollars per day and necessary expenses while actually engaged in the performance of their duties, to be paid out of the State treasury, from the appropriation for criminal charges.
"(3) Duty of Commonwealth's attorney.—It shall be the duty of the attorney for the Commonwealth for the county or city in which such case is pending to appear at the hearing and prosecute the case.
"(4) Action of court.—Upon the hearing, if the defendant be found guilty by the court, his license to practice law in this State shall be revoked, or suspended for such time as the court may prescribe; provided, that the court, in lieu of revocation or suspension, may, in its discretion, reprimand such attorney.
"(5) Appeal.—The person or persons making the complaint or the defendant, may, as of right, appeal from the judgment of the court to the Supreme Court of Virginia, by petition based upon a true transcript of the record, which shall be made up and certified as in actions at law. In all such cases where a defendant's license to practice law has been revoked by the judgment of the court, his privilege to practice law shall be suspended pending appeal."
Effective July 1, 1981, the judge issuing the rule to show cause will not participate in disciplinary cases, which are to be heard by three judges designated by the chief justice from any circuit other than the one in which the case is pending.
5
At the time Consumers Union sought to canvass Virginia attorneys, Disciplinary Rule 2-102(A) of the State Bar Code provided in pertinent part: "A lawyer or law firm shall not use professional cards, professional announcement cards, office signs, letterheads, telephone directory listings, law lists, legal directory listings, or similar professional notices or devices, except that the following may be used if they are in dignified form:
* * * * *
(6) A listing in a reputable law list or legal directory giving brief biographical and other informative data. . . . The published data may include only the following: name, including name of law firm and names of professional associates; addresses and telephone numbers; one or more fields of law in which the lawyer or law firm concentrates; a statement that practice is limited to one or more fields of law; a statement that the lawyer or law firm specializes in a particular field of law or law practice . . .; date and place of birth; date and place of admission to the bar of state and federal courts; schools attended, with dates of graduation, degrees, and other scholastic distinctions; public or quasi-public offices; military service; posts of honor; legal authorships; legal teaching positions; memberships, offices, committee assignments, and section memberships in bar associations; memberships and offices in legal fraternities and legal societies; technical and professional associations and societies; foreign language ability; names and addresses of references, and, with their consent, names of clients regularly represented."
6
The District Court's final order provided in pertinent part:
"1. The publication described in plaintiff's complaint, as amended, is declared valid and constitutionally protected;
"2. The Virginia Code of Professional Responsibility Disciplinary Rule 2-102(A)(6) is declared unconstitutional on its face;
"3. The defendants, their successors in office, their agents and attorneys and all acting in concert therewith are permanently enjoined from enforcement of Virginia Code of Professional Responsibility Disciplinary Rule 2-102(A)(6)."
7
The Civil Rights Attorney's Fees Awards Act was enacted into law on October 19, 1976, five months after the trial in this action and two months before the District Court's initial decision. The Act is applicable in this case because Congress intended for the Act to apply to actions that were pending when the Act was passed. Hutto v. Finney, 437 U.S. 678, 694-695, n. 23, 98 S.Ct. 2565, 2576, 57 L.Ed.2d 522 (1978).
8
Judge Warriner dissented on the grounds that legislative immunity barred an award of attorney's fees and that it would be unjust to award attorney's fees against a state supreme court in the absence of a showing of bad faith. 470 F.Supp., at 1063.
9
As indicated in the text, the motion to dismiss the appeal rested on the failure of appellants to have raised the immunity issue at an earlier time. We noted probable jurisdiction, and appellees' brief on the merits has not again urged that the claim of immunity was not timely raised either with respect to the fee question alone or with respect to the entry of prospective relief against the Virginia Court and its chief justice. Their arguments, like those of appellants, are centered on the issues of judicial and legislative immunity.
10
This seems to be the view of the Court of Appeals for the Second Circuit in its recent holding in Star Distributors, Ltd. v. Marino, 613 F.2d 4 (1980). That court held that the legislative immunity enjoyed by the members of a state legislative committee bars an action for declaratory and injunctive relief just as it bars an action for damages. Understanding that Tenney was based on the similarity between common-law immunity and the Speech or Debate Clause, the Second Circuit reasoned that legislative immunity should protect state legislators in a manner similar to the protection afforded Congressmen. The Courts of Appeals for the Fifth and Eighth Circuits have dismissed on immunity grounds suits seeking both damages and injunctive relief but without separately addressing the issue of immunity from prospective relief. Safety Harbor v. Birchfield, 529 F.2d 1251 (CA5 1976); Smith v. Klecker, 554 F.2d 848 (CA8 1977); Green v. DeCamp, 612 F.2d 368 (CA8 1980). The Court of Appeals for the Fourth Circuit, however, takes the contrary view and rejects the notion that the legislative immunity enjoyed by state officials bars suits for prospective relief. Jordan v. Hutcheson, 323 F.2d 597 (1963); Eslinger v. Thomas, 476 F.2d 225, 230 (1973). Both opinions of the Court of Appeals for the Fourth Circuit, however, were rendered prior to this Court's decision in Eastland v. United States Servicemen's Fund, 421 U.S. 491, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975). The Court of Appeals for the Ninth Circuit may have a similar view with respect to the immunity enjoyed by officials of a regional body exercising both legislative and executive powers. Jacobson v. Tahoe Regional Planning Agency, 566 F.2d 1353 (1977).
11
Contrary to appellees' suggestion, we do not view Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979), as indicating our approval of injunctive relief against a regional legislative body or its officers. No injunctive relief had been awarded when Lake Country Estates reached this Court. Although it is not entirely clear, the Court of Appeals in that case seemed to believe that immunity would not bar a suit for equitable relief against officials of the Tahoe Regional Planning Agency (TRPA). The court did not specify whether equitable relief could be founded on acts for which the officials would otherwise enjoy legislative immunity, and this Court did not have occasion to express any view on this question because the TRPA never challenged this aspect of the Court of Appeals' decision. We simply affirmed the Court of Appeals' holding that TRPA officials could not be held liable in damages for their legislative acts.
12
Of course, legislators sued for enacting a state bar code might also succeed in obtaining dismissals at the outset on grounds other than legislative immunity, such as the lack of a case or controversy.
13
The Courts of Appeals for the Second, Fourth, and Seventh Circuits are of the view that judicial immunity does not extend to declaratory and injunctive relief. Heimbach v. Village of Lyons, 597 F.2d 344, 347 (CA2 1979); Timmerman v. Brown, 528 F.2d 811, 814 (CA4 1975); Fowler v. Alexander, 478 F.2d 694, 696 (CA4 1973); Harris v. Harvey, 605 F.2d 330, 335, n. 7 (CA7 1979); Hansen v. Ahlgrimm, 520 F.2d 768, 769 (CA7 1975); Jacobson v. Schaefer, 441 F.2d 127, 130 (CA7 1971). Three other Courts of Appeals, the Eighth, Ninth, and District of Columbia Circuits seem to agree. Kelsey v. Fitzgerald, 574 F.2d 443, 444 (CA8 1978); Williams v. Williams, 532 F.2d 120, 121-122 (CA8 1976); Shipp v. Todd, 568 F.2d 133, 134 (CA9 1978); Briggs v. Goodwin, 186 U.S.App.D.C. 179, 184, n. 4, 569 F.2d 10, 15, n. 4 (1977). It is rare, however, that any kind of relief has been entered against judges in actions brought under § 1983 and seeking to restrain or otherwise control or affect the future performance of their adjudicative role. Such suits have been recurringly dismissed for a variety of reasons other than immunity. Hence, the question of awarding attorney's fees against judges will not often arise.
14
Although we did not address the issue, a state judge was among the defendants in Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972), where the Court held that § 1983 served to pierce the shield of 28 U.S.C. § 2283 against a federal court enjoining state-court proceedings. The Court did say, quoting from Ex parte Virginia, 100 U.S. 339, 346, 25 L.Ed. 676 (1880), to this effect, that § 1983 was designed to enforce the provisions of the Fourteenth Amendment against all state action, whether that action be executive, legislative, or judicial. The Court also noted that the proponents of § 1983 at the time it was enacted insisted that state courts were being used to harass and injure citizens, perhaps because they were powerless to stop deprivations or were in league with those who were bent upon abrogating federally protected rights. 407 U.S., at 242, 92 S.Ct., at 2162.
In Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971), and O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974), lower courts had entered injunctions against state officials including state-court judges. In each case, we reversed on the grounds that no case or controversy had been made out against any of the appellants in this Court; and in O'Shea, we concluded that even assuming that there was a case or controversy, insufficient grounds for equitable relief had been presented. We did not suggest, however, that judges were immune from suit in their judicial capacity.
Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), involved a judgment against state-court judges and a prosecuting official declaring unconstitutional and enjoining the enforcement of certain state statutes. The prosecutor brought the case to this Court. We affirmed the declaration that the Florida procedures at issue were unconstitutional and held that Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), did not bar injunctive relief in the circumstances of the case. No issue of absolute immunity was raised or addressed.
15
Of course, as Boyle v. Landry, supra, and O'Shea v. Littleton, supra, indicate, mere enforcement authority does not create a case or controversy with the enforcement official; but in the circumstances of this case, a sufficiently concrete dispute is as well made out against the Virginia Court as an enforcer as against the State Bar itself. See Person v. Association of Bar of New York, 554 F.2d 534, 536-537 (CA2 1977).
16
Although appellants argued below that the Virginia Court as an entity is not a "person" suable under § 1983, they have not raised this issue before this Court. In any event, prospective relief was properly awarded against the chief justice in his official capacity; and absent a valid claim of immunity, the question remains whether the District Court's award of attorney's fees was proper. Although we would not have appellate jurisdiction under 28 U.S.C. § 1253 to decide the attorney's fees question had it alone been appealed, because the case is properly here on the § 1983 issue we have jurisdiction to decide the attorney's fees issue. Cf. Rosado v. Wyman, 397 U.S. 397, 404-405, 90 S.Ct. 1207, 1213-1214, 25 L.Ed.2d 442 (1970).
17
The District Court derived this standard from the Senate Committee Report on the Civil Rights Attorney's Fees Awards Act, which stated:
"It is intended that the standards for awarding fees be generally the same as under the fee provisions of the 1964 Civil Rights Act. A party seeking to enforce the rights protected by the statutes covered by [the Act], if successful, 'should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.' Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968)." S.Rep. No. 94-1011, p. 4 (1976), U.S.Code Cong. & Admin.News 1976, pp. 5908, 5912.
| 12
|
446 U.S. 740
100 S.Ct. 1978
64 L.Ed.2d 659
Fred N. WALKER, Petitioner,v.ARMCO STEEL CORPORATION.
No. 78-1862.
Argued Jan. 8, 1980.
Decided June 2, 1980.
Syllabus
An Oklahoma statute provides that an action shall not be deemed to be "commenced" for purposes of the statute of limitations until service of summons on the defendant, but further provides (§ 97) that if the complaint is filed within the limitations period the action is deemed to have commenced from the date of that filing if the plaintiff serves the defendant within 60 days, even though such service occurs outside the limitations period. Federal Rule of Civil Procedure 3 provides that a civil action is commenced by filing a complaint. In this case, petitioner's personal injury action, based on diversity of citizenship, was brought against respondent in Federal District Court in Oklahoma, and although the complaint was filed within Oklahoma's 2-year statute of limitations, service on respondent was not effectuated until after the 2-year limitation period and the 60-day service period specified in § 97 had expired. The District Court dismissed the complaint as barred by the Oklahoma statute of limitations, holding that § 97 was an integral part of such statute and that therefore under Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520, state law, not Rule 3, applied. The Court of Appeals affirmed.
Held : The action is barred by the Oklahoma statute of limitations. Ragan, supra. Pp. 744-753.
(a) The scope of Rule 3 is not sufficiently broad to control the issue before the District Court. Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8, distinguished. There is no indication that the Rule was intended to toll a state statute of limitations, much less that it purported to displace state tolling rules for purposes of state statutes of limitations. In diversity actions, Rule 3 governs the date from which various timing requirements of the Federal Rules begin to run, but does not affect state statutes of limitations. Pp. 748-751.
(b) In contrast to Rule 3, the Oklahoma statute is a statement of a substantive decision by that State that actual service on, and accordingly actual notice to, the defendant is an integral part of the policies (establishment of a deadline after which the defendant may legitimately have peace of mind, and recognition that after a certain period of time it is unfair to require the defendant to attempt to piece together his defense to an old claim) served by the statute of limitations. Rule 3 does not replace such policy determinations found in state law, and that Rule and § 97 can exist side by side, each controlling its own intended sphere of coverage without conflict. Pp. 751-752.
(c) Although in this case failure to apply the state service law might not create any problem of forum shopping, the result would be an inequitable administration of the law. There is no reason why, in the absence of a controlling federal rule, an action based on state law which concededly would be barred in the state courts by the state statute of limitations should proceed to judgment in federal court solely because of the fortuity that there is diversity of citizenship between the litigants. Pp. 752-753.
10 Cir., 592 F.2d 1133, affirmed.
Don Manners, Oklahoma City, Okl., for petitioner.
Jay M. Galt, Oklahoma City, Okl., for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
This case presents the issue whether in a diversity action the federal court should follow state law or, alternatively, Rule 3 of the Federal Rules of Civil Procedure in determining when an action is commenced for the purpose of tolling the state statute of limitations.
2
* According to the allegations of the complaint, petitioner, a carpenter, was injured on August 22, 1975, in Oklahoma City, Okla., while pounding a Sheffield nail into a cement wall. Respondent was the manufacturer of the nail. Petitioner claimed that the nail contained a defect which caused its head to shatter and strike him in the right eye, resulting in permanent injuries. The defect was allegedly caused by respondent's negligence in manufacture and design.
3
Petitioner is a resident of Oklahoma, and respondent is a foreign corporation having its principal place of business in a State other than Oklahoma. Since there was diversity of citizenship, petitioner brought suit in the United States District Court for the Western District of Oklahoma. The complaint was filed on August 19, 1977. Although summons was issued that same day,1 service of process was not made on respondent's authorized service agent until December 1, 1977.2 On January 5, 1978, respondent filed a motion to dismiss the complaint on the ground that the action was barred by the applicable Oklahoma statute of limitations. Although the complaint had been filed within the 2-year statute of limitations, Okla.Stat., Tit. 12, § 95 (1971),3 state law does not deem the action "commenced" for purposes of the statute of limitations until service of the summons on the defendant, Okla.Stat., Tit. 12, § 97 (1971).4 If the complaint is filed within the limitations period, however, the action is deemed to have commenced from that date of filing if the plaintiff serves the defendant within 60 days, even though that service may occur outside the limitations period. Ibid. In this case, service was not effectuated until long after this 60-day period had expired. Petitioner in his reply brief to the motion to dismiss admitted that his case would be foreclosed in state court, but he argued that Rule 3 of the Federal Rules of Civil Procedure governs the manner in which an action is commenced in federal court for all purposes, including the tolling of the state statute of limitations.5
4
The District Court dismissed the complaint as barred by the Oklahoma statute of limitations. 452 F.Supp. 243 (1978). The court concluded that Okla.Stat., Tit. 12, § 97 (1971) was "an integral part of the Oklahoma statute of limitations," 452 F.Supp., at 245, and therefore, under Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1500 (1949), state law applied. The court rejected the argument that Ragan had been implicitly overruled in Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965).
5
The United States Court of Appeals for the Tenth Circuit affirmed. 592 F.2d 1133 (1979). That court concluded that Okla.Stat., Tit. 12, § 97 (1971), was in "direct conflict" with Rule 3. 592 F.2d, at 1135. However, the Oklahoma statute was "indistinguishable" from the statute involved in Ragan, and the court felt itself "constrained" to follow Ragan. 592 F.2d, at 1136.
6
We granted certiorari, 444 U.S. 823, 100 S.Ct. 43, 62 L.Ed.2d 29 (1979), because of a conflict among the Courts of Appeals.6 We now affirm.
II
7
The question whether state or federal law should apply on various issues arising in an action based on state law which has been brought in federal court under diversity of citizenship jurisdiction has troubled this Court for many years. In the landmark decision of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), we overturned the rule expressed in Swift v. Tyson, 16 Pet. 1, 10 L.Ed. 865 (1842), that federal courts exercising diversity jurisdiction need not, in matters of "general jurisprudence," apply the nonstatutory law of the State. The Court noted that "[d]iversity of citizenship jurisdiction was conferred in order to prevent apprehended discrimination in state courts against those not citizens of the State," Erie R. Co. v. Tompkins, supra, 304 U.S., at 74, 58 S.Ct., at 820. The doctrine of Swift v. Tyson had led to the undesirable results of discrimination in favor of noncitizens, prevention of uniformity in the administration of state law, and forum shopping. 304 U.S., at 74-75, 58 S.Ct., at 820-821. In response, we established the rule that "[e]xcept in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any [diversity] case is the law of the State," id., at 78, 58 S.Ct., at 822.
8
In Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945), we addressed ourselves to "the narrow question whether, when no recovery could be had in a State court because the action is barred by the statute of limitations, a federal court in equity can take cognizance of the suit because there is diversity of citizenship between the parties," id., at 107, 65 S.Ct., at 1469. The Court held that the Erie doctrine applied to suits in equity as well as to actions at law. In construing Erie we noted that "[i]n essence, the intent of that decision was to insure that, in all cases where a federal court is exercising jurisdiction solely because of the diversity of citizenship of the parties, the outcome of the litigation in the federal court should be substantially the same, so far as legal rules determine the outcome of a litigation, as it would be if tried in a State court." 326 U.S., at 109, 65 S.Ct., at 1470. We concluded that the state statute of limitations should be applied. "Plainly enough, a statute that would completely bar recovery in a suit if brought in a State court bears on a State-created right vitally and not merely formally or negligibly. As to consequences that so intimately affect recovery or non-recovery a federal court in a diversity case should follow State law." Id., at 110, 65 S.Ct. at 1470.
9
The decision in York led logically to our holding in Ragan v. Merchants Transfer & Warehouse Co., supra. In Ragan, the plaintiff had filed his complaint in federal court on September 4, 1945, pursuant to Rule 3 of the Federal Rules of Civil Procedure. The accident from which the claim arose had occurred on October 1, 1943. Service was made on the defendant on December 28, 1945. The applicable statute of limitations supplied by Kansas law was two years. Kansas had an additional statute which provided: "An action shall be deemed commenced within the meaning of [the statute of limitations], as to each defendant, at the date of the summons which is served on him . . . . An attempt to commence an action shall be deemed equivalent to the commencement thereof within the meaning of this article when the party faithfully, properly and diligently endeavors to procure a service; but such attempt must be followed by the first publication or service of the summons within sixty days." Kan.Gen.Stat. § 60-308 (1935). The defendant moved for summary judgment on the ground that the Kansas statute of limitations barred the action since service had not been made within either the 2-year period or the 60-day period. It was conceded that had the case been brought in Kansas state court it would have been barred. Nonetheless, the District Court held that the statute had been tolled by the filing of the complaint. The Court of Appeals reversed because "the requirement of service of summons within the statutory period was an integral part of that state's statute of limitations." Ragan, 337 U.S., at 532, 69 S.Ct., at 1234.
10
We affirmed, relying on Erie and York. "We cannot give [the cause of action] longer life in the federal court than it would have had in the state court without adding something to the cause of action. We may not do that consistently with Erie R. Co. v. Tompkins." 337 U.S., at 533-534, 69 S.Ct., at 1235. We rejected the argument that Rule 3 of the Federal Rules of Civil Procedure governed the manner in which an action was commenced in federal court for purposes of tolling the state statute of limitations. Instead, we held that the service of summons statute controlled because it was an integral part of the state statute of limitations, and under York that statute of limitations was part of the state-law cause of action.
11
Ragan was not our last pronouncement in this difficult area, however. In 1965 we decided Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8, holding that in a civil action where federal jurisdiction was based upon diversity of citizenship, Rule 4(d)(1) of the Federal Rules of Civil Procedure, rather than state law, governed the manner in which process was served. Massachusetts law required in-hand service on an executor or administrator of an estate, whereas Rule 4 permits service by leaving copies of the summons and complaint at the defendant's home with some person "of suitable age and discretion." The Court noted that in the absence of a conflicting state procedure, the Federal Rule would plainly control, 380 U.S., at 465, 85 S.Ct., at 1140. We stated that the "outcome-determination" test of Erie and York had to be read with reference to the "twin aims" of Erie : "discouragement of forum-shopping and avoidance of inequitable administration of the laws." 380 U.S., at 468, 85 S.Ct., at 1142. We determined that the choice between the state in-hand service rule and the Federal Rule "would be of scant, if any, relevance to the choice of a forum," for the plaintiff "was not presented with a situation where application of the state rule would wholly bar recovery; rather, adherence to the state rule would have resulted only in altering the way in which process was served." Id., at 469, 85 S.Ct., at 1143 (footnote omitted). This factor served to distinguish that case from York and Ragan. See 380 U.S., at 469 n. 10, 85 S.Ct., at 1143 n. 10.
12
The Court in Hanna, however, pointed out "a more fundamental flaw" in the defendant's argument in that case. Id., at 469, 85 S.Ct., at 1142. The Court concluded that the Erie doctrine was simply not the appropriate test of the validity and applicability of one of the Federal Rules of Civil Procedure:
13
"The Erie rule has never been invoked to void a Federal Rule. It is true that there have been cases where this Court had held applicable a state rule in the face of an argument that the situation was governed by one of the Federal Rules. But the holding of each such case was not that Erie commanded displacement of a Federal Rule by an inconsistent state rule, but rather that the scope of the Federal Rule was not as broad as the losing party urged, and therefore, there being no Federal Rule which covered the point in dispute, Erie commanded the enforcement of state law." 380 U.S., at 470, 85 S.Ct., at 1143.
14
The Court cited Ragan as one of the examples of this proposition, 380 U.S., at 470, n. 12, 85 S.Ct., at 1143, n. 12.7 The Court explained that where the Federal Rule was clearly applicable, as in Hanna, the test was whether the Rule was within the scope of the Rules Enabling Act, 28 U.S.C. § 2072, and if so, within a constitutional grant of power such as the Necessary and Proper Clause of Art. I. 380 U.S., at 470-472, 85 S.Ct., at 1143-1145.
III
15
The present case is indistinguishable from Ragan. The statutes in both cases require service of process to toll the statute of limitations, and in fact the predecessor to the Oklahoma statute in this case was derived from the predecessor to the Kansas statute in Ragan. See Dr. Koch Vegetable Tea Co. v. Davis, 48 Okl. 14, 22, 145 P. 337, 340 (1914). Here, as in Ragan, the complaint was filed in federal court under diversity jurisdiction within the 2-year statute of limitations, but service of process did not occur until after the 2-year period and the 60-day service period had run. In both cases the suit would concededly have been barred in the applicable state court, and in both instances the state service statute was held to be an integral part of the statute of limitations by the lower court more familiar than we with state law. Accordingly, as the Court of Appeals held below, the instant action is barred by the statute of limitations unless Ragan is no longer good law.
16
Petitioner argues that the analysis and holding of Ragan did not survive our decision in Hanna.8 Petitioner's position is that Okla.Stat., Tit. 12, § 97 (1971), is in direct conflict with the Federal Rule. Under Hanna, petitioner contends, the appropriate question is whether Rule 3 is within the scope of the Rules Enabling Act and, if so, within the constitutional power of Congress. In petitioner's view, the Federal Rule is to be applied unless it violates one of those two restrictions. This argument ignores both the force of stare decisis and the specific limitations that we carefully placed on the Hanna analysis.
17
We note at the outset that the doctrine of stare decisis weighs heavily against petitioner in this case. Petitioner seeks to have us overrule our decision in Ragan. Stare decisis does not mandate that earlier decisions be enshrined forever, of course, but it does counsel that we use caution in rejecting established law. In this case, the reasons petitioner asserts for overruling Ragan are the same factors which we concluded in Hanna did not undermine the validity of Ragan. A litigant who in effect asks us to reconsider not one but two prior decisions bears a heavy burden of supporting such a change in our jurisprudence. Petitioner here has not met that burden.
18
This Court in Hanna distinguished Ragan rather than overruled it, and for good reason. Application of the Hanna analysis is premised on a "direct collision" between the Federal Rule and the state law. 380 U.S., at 472, 85 S.Ct., at 1143. In Hanna itself the "clash" between Rule 4(d)(1) and the state in-hand service requirement was "unavoidable." 380 U.S., at 470, 85 S.Ct., at 1143. The first question must therefore be whether the scope of the Federal Rule in fact is sufficiently broad to control the issue before the Court. It is only if that question is answered affirmatively that the Hanna analysis applies.9
19
As has already been noted, we recognized in Hanna that the present case is an instance where "the scope of the Federal Rule [is] not as broad as the losing party urge[s], and therefore, there being no Federal Rule which cover[s] the point in dispute, Erie command[s] the enforcement of state law." Ibid. Rule 3 simply states that "[a] civil action is commenced by filing a complaint with the court." There is no indication that the Rule was intended to toll a state statute of limitations,10 much less that it purported to displace state tolling rules for purposes of state statutes of limitations. In our view, in diversity actions11 Rule 3 governs the date from which various timing requirements of the Federal Rules begin to run, but does not affect state statutes of limitations. Cf. 4 C. Wright & A. Miller, Federal Practice and Procedure § 1057, pp. 190-191 (1969); id., § 1051, at 165-166.
20
In contrast to Rule 3, the Oklahoma statute is a statement of a substantive decision by that State that actual service on, and accordingly actual notice by, the defendant is an integral part of the several policies served by the statute of limitations. See C & C Tile Co. v. Independent School District No. 7 of Tulsa County, 503 P.2d 554, 559 (Okl.1972). The statute of limitations establishes a deadline after which the defendant may legitimately have peace of mind; it also recognizes that after a certain period of time it is unfair to require the defendant to attempt to piece together his defense to an old claim. A requirement of actual service promotes both of those functions of the statute. See generally ibid.; Seitz v. Jones, 370 P.2d 300, 302 (Okl.1961). See also Ely, The Irrepressible Myth of Erie, 87 Harv.L.Rev. 693, 730-731 (1974).12 It is these policy aspects which make the service requirement an "integral" part of the statute of limitations both in this case and in Ragan. As such, the service rule must be considered part and parcel of the statute of limitations.13 Rule 3 does not replace such policy determinations found in state law. Rule 3 and Okla.Stat., Tit. 12, § 97 (1971), can exist side by side, therefore, each controlling its own intended sphere of coverage without conflict.
21
Since there is no direct conflict between the Federal Rule and the state law, the Hanna analysis does not apply.14 Instead, the policies behind Erie and Ragan control the issue whether, in the absence of a federal rule directly on point, state service requirements which are an integral part of the state statute of limitations should control in an action based on state law which is filed in federal court under diversity jurisdiction. The reasons for the application of such a state service requirement in a diversity action in the absence of a conflicting federal rule are well explained in Erie and Ragan, see supra, at 744-746, and need not be repeated here. It is sufficient to note that although in this case failure to apply the state service law might not create any problem of forum shopping,15 the result would be an "inequitable administration" of the law. Hanna v. Plumer, 380 U.S., at 468, 85 S.Ct., at 1142. There is simply no reason why, in the absence of a controlling federal rule, an action based on state law which concededly would be barred in the state courts by the state statute of limitations should proceed through litigation to judgment in federal court solely because of the fortuity that there is diversity of citizenship between the litigants. The policies underlying diversity jurisdiction do not support such a distinction between state and federal plaintiffs, and Erie and its progeny do not permit it.
The judgment of the Court of Appeals is
22
Affirmed.
1
The Court of Appeals stated that summons was issued the following day, August 20. See 592 F.2d 1133, 1134 (CA10 1979). However, the docket sheet in the District Court indicates that summons was issued August 19. See App. insert preceding p. A-1. Nothing turns on this difference.
2
The record does not indicate why this delay occurred. The face of the process record shows that the United States Marshal acknowledged receipt of the summons on December 1, 1977, and that service was effectuated that same day. Id., at A-5. At oral argument counsel for petitioner stated that the summons was found "in an unmarked folder in the filing cabinet" in counsel's office some 90 days after the complaint had been filed. Tr. of Oral Arg. 3. See also id., at 6. Counsel conceded that the summons was not delivered to the Marshal until December 1. Id., at 3-4. It is unclear why the summons was placed in the filing cabinet. See id., at 17.
3
Under Oklahoma law, a suit for products liability, whether based on a negligence theory or a breach of implied warranty theory, is governed by the 2-year statute of limitations period of Okla.Stat., Tit. 12, § 95 (1971). See Hester v. Purex Corp., 534 P.2d 1306, 1308 (Okl.1975); O'Neal v. Black & Decker Manufacturing Co., 523 P.2d 614, 615 (Okl.1974); Kirkland v. General Motors Corp., 521 P.2d 1353, 1361 (Okl.1974). The period begins to run from the date of injury. O'Neal v. Black & Decker Manufacturing Co., supra, at 615; Kirkland v. General Motors Corp., supra, at 1361.
4
Oklahoma Stat., Tit. 12, § 97 (1971), provides in pertinent part: "An action shall be deemed commenced, within the meaning of this article [the statute of limitations], as to each defendant, at the date of the summons which is served on him, or on a codefendant, who is a joint contractor or otherwise united in interest with him. . . . An attempt to commence an action shall be deemed equivalent to the commencement thereof, within the meaning of this article, when the party faithfully, properly and diligently endeavors to procure a service; but such attempt must be followed by the first publication or service of the summons, . . . within sixty (60) days."
5
Petitioner also argued in his reply brief to the motion to dismiss that respondent should have relied on Federal Rule of Civil Procedure 41—dismissal for failure to prosecute—rather than the state statute of limitations. Respondent in its response to the reply brief argued that a Rule 41 argument was implicit in its motion to dismiss. Neither the District Court nor the Court of Appeals addressed this issue.
6
Compare case below; Rose v. K. K. Masutoku Toy Factory Co., 597 F.2d 215 (CA10 1979); Lindsey v. Dayton-Hudson Corp., 592 F.2d 1118, 1121-1123 (CA10), cert. denied, 444 U.S. 856, 100 S.Ct. 116, 62 L.Ed.2d 75 (1979); Witherow v. Firestone Tire & Rubber Co., 530 F.2d 160, 163-166 (CA3 1976); Anderson v. Papillion, 445 F.2d 841 (CA5 1971) (per curiam ); Groninger v. Davison, 364 F.2d 638 (CA8 1966); Sylvester v. Messler, 351 F.2d 472 (CA6 1965) (per curiam ), cert. denied, 382 U.S. 1011, 86 S.Ct. 619, 15 L.Ed.2d 526 (1966), all holding that state law controls, with Smith v. Peters, 482 F.2d 799 (CA6 1973), cert. denied, 415 U.S. 989, 94 S.Ct. 1587, 39 L.Ed.2d 886 (1974), and Sylvestri v. Warner & Swasey Co., 398 F.2d 598 (CA2 1968), holding that Rule 3 controls. See also Ingram v. Kumar, 585 F.2d 566, 568 (CA2 1978) (reaffirming Sylvestri ), cert. denied, 440 U.S. 940, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979); Prashar v. Volkswagen of America, Inc., 480 F.2d 947 (CA8 1973) (distinguishing Ragan), cert. denied sub nom. Volkswagenwerk Aktiengesellschaft v. Prashar, 415 U.S. 994, 94 S.Ct. 1596, 39 L.Ed.2d 891 (1974); Chappell v. Rouch, 448 F.2d 446 (CA10 1971) (distinguishing Ragan ). See generally, Walko Corp. v. Burger Chef Systems, Inc., 180 U.S.App.D.C. 306, 308-311, 554 F.2d 1165, 1167-1170 (1977) (dicta).
7
The Court in Hanna noted that "this Court has never before been confronted with a case where the applicable Federal Rule is in direct collision with the law of the relevant State." 380 U.S., at 472, 85 S.Ct., at 1144.
8
Mr. Justice Harlan in his concurring opinion in Hanna concluded that Ragan was no longer good law. 380 U.S., at 474-478, 85 S.Ct., at 1145-1148. See also Sylvestri v. Warner & Swasey Co., 398 F.2d 598 (CA2 1968).
9
This is not to suggest that the Federal Rules of Civil Procedure are to be narrowly construed in order to avoid a "direct collision" with state law. The Federal Rules should be given their plain meaning. If a direct collision with state law arises from that plain meaning, then the analysis developed in Hanna v. Plumer applies.
10
"Rule 3 simply provides that an action is commenced by filing the complaint and has as its primary purpose the measuring of time periods that begin running from the date of commencement; the rule does not state that filing tolls the statute of limitations." 4 C. Wright & A. Miller, Federal Practice and Procedure § 1057, p. 191 (1969) (footnote omitted).
The Note of the Advisory Committee on the Rules states:
"When a Federal or State statute of limitations is pleaded as a defense, a question may arise under this rule whether the mere filing of the complaint stops the running of the statute, or whether any further step is required, such as, service of the summons and complaint or their delivery to the marshal for service. The answer to this question may depend on whether it is competent for the Supreme Court, exercising the power to make rules of procedure without affecting substantive rights, to vary the operation of statutes of limitations. The requirement of Rule 4 (a) that the clerk shall forthwith issue the summons and deliver it to the marshal for service will reduce the chances of such a question arising." 28 U.S.C.App., pp. 394-395.
This Note establishes that the Advisory Committee predicted the problem which arose in Ragan and arises again in the instant case. It does not indicate, however, that Rule 3 was intended to serve as a tolling provision for statute of limitations purposes; it only suggests that the Advisory Committee thought the Rule might have that effect.
11
The Court suggested in Ragan that in suits to enforce rights under a federal statute Rule 3 means that filing of the complaint tolls the applicable statute of limitations. 337 U.S., at 533, 69 S.Ct., at 1234, distinguishing Bomar v. Keyes, 162 F.2d 136, 140-141 (CA2), cert. denied, 332 U.S. 825, 68 S.Ct. 166, 92 L.Ed. 400 (1947). See Ely, The Irrepressible Myth of Erie, 87 Harv.L.Rev. 693, 729 (1974). See also Walko Corp. v. Burger Chef Systems, Inc., 180 U.S.App.D.C., at 308, n. 19, 554 F.2d, at 1167, n. 19; 4 Wright & Miller, supra, § 1056, and authorities collected therein. We do not here address the role of Rule 3 as a tolling provision for a statute of limitations, whether set by federal law or borrowed from state law, if the cause of action is based on federal law.
12
The importance of actual service, with corresponding actual notice, to the statute of limitations scheme in Oklahoma is further demonstrated by the fact that under Okla.Stat., Tit. 12, § 97 (1971), the statute of limitations must be tolled as to each defendant through individual service, unless a codefendant who is served is "united in interest" with the unserved defendant. That requirement, like the service requirement itself, does nothing to promote the general policy behind all statutes of limitations of keeping stale claims out of court. Instead, the service requirement furthers a different but related policy decision: that each defendant has a legitimate right not to be surprised by notice of a lawsuit after the period of liability has run. If the defendant is "united in interest" with a codefendant who has been served, then presumably the defendant will receive actual notice of the lawsuit through the codefendant and will not have his peace of mind disturbed when he receives official service of process. Similarly, the defendant will know that he must begin gathering his evidence while that task is still deemed by the State to be feasible.
13
The substantive link of § 97 to the statute of limitations is made clear as well by another provision of Oklahoma law. Under Okla.Stat., Tit. 12, § 151 (1971), "[a] civil action is deemed commenced by filing in the office of the court clerk of the proper court a petition and by the clerk's issuance of summons thereon." This is the state-law corollary to Rule 3. However, § 97, not § 151, controls the commencement of the lawsuit for statute of limitations purposes. See Tyler v. Taylor, 578 P.2d 1214 (Okl.App.1977). Just as § 97 and § 151 can both apply in state court for their separate purposes, so too § 97 and Rule 3 may both apply in federal court in a diversity action.
14
Since we hold that Rule 3 does not apply, it is unnecessary for us to address the second question posed by the Hanna analysis: whether Rule 3, if it applied, would be outside the scope of the Rules Enabling Act or beyond the power of Congress under the Constitution.
15
There is no indication that when petitioner filed his suit in federal court he had any reason to believe that he would be unable to comply with the service requirements of Oklahoma law or that he chose to sue in federal court in an attempt to avoid those service requirements.
| 89
|
446 U.S. 680
100 S.Ct. 1945
64 L.Ed.2d 611
Peter E. AARON, Petitioner,v.SECURITIES AND EXCHANGE COMMISSION.
No. 79-66.
Argued Feb. 25, 1980.
Decided June 2, 1980.
Syllabus
Section 17(a) of the Securities Act of 1933 (1933 Act) makes it unlawful for any person in the offer or sale of any security "(1) to employ any device, scheme, or artifice to defraud, or (2) to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact . . ., or (3) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser." Section 10(b) of the Securities Exchange Act of 1934 (1934 Act) makes it unlawful to use, in connection with the purchase or sale of any security, "any manipulative or deceptive device or contrivance" in violation of such regulations as the Securities and Exchange Commission (SEC) may prescribe, and Rule 10b-5 was promulgated to implement this section. Section 20(b) of the 1933 Act and § 21(d) of the 1934 Act authorize the SEC to seek injunctive relief against violations of the respective Acts and further provide that, "upon a proper showing," a district court shall grant the injunction. Pursuant to §§ 20(b) and 21(d), the SEC filed a complaint in a District Court against petitioner, a managerial employee of a broker-dealer, alleging that he had violated, and aided and abetted violations of, § 17(a) of the 1933 Act, § 10(b) of the 1934 Act, and SEC Rule 10b-5, in connection with his firm's sales campaign for certain securities. Concluding that there was scienter on petitioner's part, the District Court found that he had committed and aided and abetted the violations as alleged. The Court of Appeals affirmed, declining to decide whether petitioner's conduct would support a finding of scienter and holding instead that when the SEC is seeking injunctive relief, proof of negligence alone will suffice.
Held : The SEC is required to establish scienter as an element of a civil enforcement action to enjoin violations of § 10(b) of the 1934 Act, Rule 10b-5, and § 17(a)(1) of the 1933 Act, but need not establish scienter as an element of an action to enjoin violations of §§ 17(a)(2) and 17(a)(3) of the 1933 Act. Pp. 687-702.
(a) Scienter is an element of violations of § 10(b) and Rule 10b-5, regardless of the identity of the plaintiff or the nature of the relief sought. Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668. Section 10(b)'s language, particularly the terms "manipulative," "device," and "contrivance," clearly refer to "knowing and intentional misconduct," and the section's legislative history also points toward a scienter requirement. SEC v. Capital Gains Research Bureau, 375 U.S. 180, 84 S.Ct. 275, 11 L.Ed.2d 237, distinguished. Pp. 689-695.
(b) Section 17(a)(1)'s language, "to employ any device, scheme, or artifice to defraud," plainly evinces an intent on Congress' part to proscribe only knowing or intentional misconduct. By contrast, § 17(a)(2)'s language, "by means of any untrue statement of a material fact or any omission to state a material fact," is devoid of any suggestion of a scienter requirement. And § 17(a)(3)'s language, "to engage in any transaction, practice, or course of business whichoperates or would operate as a fraud or deceit," plainly focuses upon theeffect of particular conduct on members of the investing public, rather than upon the culpability of the person responsible. Cf. SEC v. Capital Gains Research Bureau, supra. There is nothing in § 17(a)'s legislative history to show a congressional intent contrary to the conclusion that scienter is thus required under § 17(a)(1) but not under §§ 17(a)(2) and 17(a)(3). Pp. 695-700.
(c) The language and legislative history of §§ 20(b) and 21(d) both indicate that Congress intended neither to add to nor detract from the requisite showing of scienter under the substantive provisions at issue. Pp. 700-701.
605 F.2d 612, vacated and remanded.
Barry M. Fallick, Asst. Dist. Atty., New York City, for petitioner.
Ralph C. Ferrara, Washington, D. C., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The issue in this case is whether the Securities and Exchange Commission (Commission) is required to establish scienter as an element of a civil enforcement action to enjoin violations of § 17(a) of the Securities Act of 1933 (1933 Act), § 10(b) of the Securities Exchange Act of 1934 (1934 Act), and Commission Rule 10b-5 promulgated under that section of the 1934 Act.
2
* When the events giving rise to this enforcement proceeding occurred, the petitioner was a managerial employee at E. L. Aaron & Co. (the firm), a registered broker-dealer with its principal office in New York City. Among other responsibilities at the firm, the petitioner was charged with supervising the sales made by its registered representatives and maintaining the so-called "due diligence" files for those securities in which the firm served as a market maker. One such security was the common stock of Lawn-A-Mat Chemical & Equipment Corp. (Lawn-A-Mat), a company engaged in the business of selling lawn-care franchises and supplying its franchisees with products and equipment.
3
Between November 1974 and September 1975, two registered representatives of the firm, Norman Schreiber and Donald Jacobson, conducted a sales campaign in which they repeatedly made false and misleading statements in an effort to solicit orders for the purchase of Lawn-A-Mat common stock. During the course of this promotion, Schreiber and Jacobson informed prospective investors that Lawn-A-Mat was planning or in the process of manufacturing a new type of small car and tractor, and that the car would be marketed within six weeks. Lawn-A-Mat, however, had no such plans. The two registered representatives also made projections of substantial increases in the price of Lawn-A-Mat common stock and optimistic statements concerning the company's financial condition. These projections and statements were without basis in fact, since Lawn-A-Mat was losing money during the relevant period.
4
Upon receiving several complaints from prospective investors, an officer of Lawn-A-Mat informed Schreiber and Jacobson that their statements were false and misleading and requested them to cease making such statements. This request went unheeded.
5
Thereafter, Milton Kean, an attorney representing Lawn-a-Mat, communicated with the petitioner twice by telephone. In these conversations, Kean informed the petitioner that Schreiber and Jacobson were making false and misleading statements and described the substance of what they were saying. The petitioner, in addition to being so informed by Kean, had reason to know that the statements were false, since he knew that the reports in Lawn-A-Mat's due diligence file indicated a deteriorating financial condition and revealed no plans for manufacturing a new car and tractor. Although assuring Kean that the misrepresentations would cease, the petitioner took no affirmative steps to prevent their recurrence. The petitioner's only response to the telephone calls was to inform Jacobson of Kean's complaint and to direct him to communicate with Kean. Otherwise, the petitioner did nothing to prevent the two registered representatives under his direct supervision from continuing to make false and misleading statements in promoting Lawn-A-Mat common stock.
6
In February 1976, the Commission filed a complaint in the District Court for the Southern District of New York against the petitioner and seven other defendants in connection with the offer and sale of Lawn-A-Mat common stock. In seeking preliminary and final injunctive relief pursuant to § 20(b) of the 1933 Act and § 21(d) of the 1934 Act, the Commission alleged that the petitioner had violated and aided and abetted violations of three provisions—§ 17(a) of the 1933 Act, § 10(b) of the 1934 Act, and Commission Rule 10b-5 promulgated under that section of the 1934 Act.1 The gravamen of the charges against the petitioner was that he knew or had reason to know that the employees under his supervision were engaged in fraudulent practices, but failed to take adequate steps to prevent those practices from continuing. Before commencement of the trial, all the defendants except the petitioner consented to the entry of permanent injunctions against them.
7
Following a bench trial, the District Court found that the petitioner had violated and aided and abetted violations of § 17(a), § 10(b), and Rule 10b-5 during the Lawn-A-Mat sales campaign and enjoined him from future violations of these provisions.2 The District Court's finding of past violations was based upon its factual finding that the petitioner had intentionally failed to discharge his supervisory responsibility to stop Schreiber and Jacobson from making statements to prospective investors that the petitioner knew to be false and misleading. Although noting that negligence alone might suffice to establish a violation of the relevant provisions in a Commission enforcement action, the District Court concluded that the fact that the petitioner "intentionally failed to terminate the false and misleading statements made by Schreiber and Jacobson, knowing them to be fraudulent, is sufficient to establish his scienter under the securities laws." As to the remedy, even though the firm had since gone bankrupt and the petitioner was no longer working for a brokerdealer, the District Court reasoned that injunctive relief was warranted in light of "the nature and extent of the violations . . ., the [petitioner's] failure to recognize the wrongful nature of his conduct and the likelihood of the [petitioner's] repeating his violative conduct."
8
The Court of Appeals for the Second Circuit affirmed the judgment. 605 F.2d 612. Declining to reach the question whether the petitioner's conduct would support a finding of scienter, the Court of Appeals held instead that when the Commission is seeking injunctive relief, "proof of negligence alone will suffice" to establish a violation of § 17(a), § 10(b), and Rule 10b-5. Id., at 619. With regard to § 10(b) and Rule 10b-5, the Court of Appeals noted that this Court's opinion in Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668, which held that an allegation of scienter is necessary to state a private cause of action for damages under § 10(b) and Rule 10b-5, had expressly reserved the question whether scienter must be alleged in a suit for injunctive relief brought by the Commission. Id., at 194, n. 12, 96 S.Ct. at 1381. The conclusion of the Court of Appeals that the scienter requirement ofHochfelder does not apply to Commission enforcement proceedings was said to find support in the language of § 10(b), the legislative history of the 1934 Act, the relationship between § 10(b) and the overall enforcement scheme of the securities laws, and the "compelling distinctions between private damage actions and government injunction actions"3 For its holding that scienter is not a necessary element in a Commission injunctive action to enforce § 17(a), the Court of Appeals relied on its earlier decision in SEC v. Coven, 581 F.2d 1020 (1978). There that court had noted that the language of § 17(a) contains nothing to suggest a requirement of intent and that, in enacting § 17(a), Congress had considered a scienter requirement, but instead "opted for liability without willfulness, intent to defraud, or the like." Id., at 1027-1028.4 Finally, the Court of Appeals affirmed the District Court's holding that, under all the facts and circumstances of this case, the Commission was entitled to injunctive relief. 605 F.2d, at 623-624.
9
We granted certiorari to resolve the conflict in the federal courts as to whether the Commission is required to establish scienter—an intent on the part of the defendant to deceive, manipulate, or defraud5—as an element of a Commission enforcement action to enjoin violations of § 17(a),6 § 10(b), and Rule 10b-5.7 444 U.S. 914, 900 S.Ct. 227, 62 L.Ed.2d 168.
II
10
The two substantive statutory provisions at issue here are § 17(a) of the 1933 Act, 48 Stat. 84, as amended, 15 U.S.C. § 77q(a), and § 10(b) of the 1934 Act, 48 Stat. 891, 15 U.S.C. § 78j(b). Section 17(a), which applies only to sellers, provides:
11
"It shall be unlawful for any person in the offer or sale of any securities by the use of any means or instruments of transportation or communication in interstate commerce or by the use of the mails, directly or indirectly—
12
"(1) to employ any device, scheme, or artifice to defraud, or
13
"(2) to obtain money or property by means of any untrue statement of a material fact or any omission 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, or
14
"(3) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser."
15
Section 10(b), which applies to both buyers and sellers, makes it "unlawful for any person . . . [t]o use or employ, in connection with the purchase or sale of any security . . ., any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors." Pursuant to its rulemaking power under this section, the Commission promulgated Rule 10b-5, which now provides:
16
"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,
17
"(a) To employ any device, scheme, artifice to defraud,
18
"(b) To 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, or
19
"(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).
20
The civil enforcement mechanism for these provisions consists of both express and implied remedies. One express remedy is a suit by the Commission for injunctive relief. Section 20(b) of the 1933 Act, 48 Stat. 86, as amended, as set forth in 15 U.S.C. § 77t(b), provides:
21
"Whenever it shall appear to the Commission that any person is engaged or about to engage in any acts or practices which constitute or will constitute a violation of the provisions of this subchapter [e. g., § 17(a)], or of any rule or regulation prescribed under authority thereof, it may in its discretion, bring an action in any district court of the United States . . . to enjoin such acts or practices, and upon a proper showing a permanent or temporary injunction or restraining order shall be granted without bond."
22
Similarly, § 21(d) of the 1934 Act, 48 Stat. 900, as amended, 15 U.S.C. § 78u(d), authorizes the Commission to seek injunctive relief whenever it appears that a person "is engaged or is about to engage in acts or practices [constituting]" a violation of the 1934 Act, (e. g., § 10(b)), or regulations promulgated thereto, (e. g., Rule 10b-5), and requires a district court "upon a proper showing" to grant injunctive relief.
23
Another facet of civil enforcement is a private cause of action for money damages. This remedy, unlike the Commission injunctive action, is not expressly authorized by statute, but rather has been judicially implied. See Ernst & Ernst v. Hochfelder, 425 U.S., at 196-197, 96 S.Ct., at 1382-1383. Although this Court has repeatedly assumed the existence of an implied cause of action under § 10(b) and Rule 10b-5, see Ernst & Ernst v. Hochfelder, supra; Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 730, 95 S.Ct. 1917, 1922, 44 L.Ed.2d 539; Affiliated Ute Citizens v. United States, 406 U.S. 128, 150-154, 92 S.Ct. 1456, 1470-1472, 31 L.Ed.2d 741; 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, it has not had occasion to address the question whether a private cause of action exists under § 17(a). See Blue Chip Stamps v. Manor Drug Stores, supra, 421 U.S., at 733, n. 6, 95 S.Ct., at 1924.
24
The issue here is whether the Commission in seeking injunctive relief either under § 20(b) for violations of § 17(a), or under § 21(d) for violations of § 10(b) or Rule 10b-5, is required to establish scienter. Resolution of that issue could depend upon (1) the substantive provisions of § 17(a), § 10(b), and Rule 10b-5, or (2) the statutory provisions authorizing injunctive relief "upon a proper showing," § 20(b) and § 21(d). We turn to an examination of each to determine the extent to which they may require proof of scienter.
A.
25
In determining whether scienter is a necessary element of a violation of § 10(b) and Rule 10b-5, we do not write on a clean slate. Rather, the starting point for our inquiry is Ernst & Ernst v. Hochfelder, supra, a case in which the Court concluded that a private cause of action for damages will not lie under § 10(b) and Rule 10b-5 in the absence of an allegation of scienter. Although the issue presented in the present case was expressly reserved in Hochfelder, supra, at 193, n. 12, 96 S.Ct., at 1381, we nonetheless must be guided by the reasoning of that decision.
26
The conclusion in Hochfelder that allegations of simple negligence could not sustain a private cause of action for damages under § 10(b) and Rule 10b-5 rested on several grounds. The most important was the plain meaning of the language of § 10(b). It was the view of the Court that the terms "manipulative," "device," and "contrivance"—whether given their commonly accepted meaning or read as terms of art—quite clearly evinced a congressional intent to proscribe only "knowing or intentional misconduct," 425 U.S., at 197-199, 96 S.Ct., at 1382-1383. This meaning, in fact, was thought to be so unambiguous as to suggest that "further inquiry may be unnecessary." Id., at 201, 96 S.Ct., at 1384.
27
The Court in Hochfelder nonetheless found additional support for its holding in both the legislative history of § 10(b) and the structure of the civil liability provisions in the 1933 and 1934 Acts. The legislative history, though "bereft of any explicit explanation of Congress' intent," contained "no indication . . . that § 10(b) was intended to proscribe conduct not involving scienter." Id., 201-202, 96 S.Ct., at 1385. Rather, as the Court noted, a spokesman for the drafters of the predecessor of § 10(b) described its function as a " 'catch-all clause to prevent manipulative devices.' " Id., at 202, 96 S.Ct., at 1385. This description, as well as various passages in the Committee Reports concerning the evils to which the 1934 Act was directed, evidenced a purpose to proscribe only knowing or intentional misconduct. Moreover, with regard to the structure of the 1933 and 1934 Acts, the Court observed that in each instance in which Congress had expressly created civil liability, it had specified the standard of liability. To premise civil liability under § 10(b) on merely negligent conduct, the Court concluded, would run counter to the fact that wherever Congress intended to accomplish that result, it said so expressly and subjected such actions to significant procedural restraints not applicable to § 10(b). Id., at 206-211, 96 S.Ct., at 1387-1389. Finally, since the Commission's rulemaking power was necessarily limited by the ambit of its statutory authority, the Court reasoned that Rule 10b-5 must likewise be restricted to conduct involving scienter.8
28
In our view, the rationale of Hockfelder ineluctably leads to the conclusion that scienter is an element of a violation of § 10(b) and Rule 10b-5, regardless of the identity of the plaintiff or the nature of the relief sought. Two of the three factors relied upon in Hochfelder —the language of § 10(b) and its legislative history—are applicable whenever a violation of § 10(b) or Rule 10b-5 is alleged, whether in a private cause of action for damages or in a Commission injunctive action under § 21(d).9 In fact, since Hochfelder involved an implied cause of action that was not within the contemplation of the Congress that enacted § 10(b), id., at 196, 96 S.Ct., at 1382, it would be quite anomalous in a case like the present one, involving as it does the express remedy Congress created for § 10(b) violations, not to attach at least as much significance to the fact that the statutory language and its legislative history support a scienter requirement.
29
The Commission argues that Hochfelder, which involved a private cause of action for damages, is not a proper guide in construing § 10(b) in the present context of a Commission enforcement action for injunctive relief. We are urged instead to look to SEC v. Capital Gains Research Bureau, 375 U.S. 180, 84 S.Ct. 275, 11 L.Ed.2d 237. That case involved a suit by the Commission for injunctive relief to enforce the prohibition in § 206(2) of the Investment Advisers Act of 1940, 15 U.S.C. § 80b-6, against any act or practice of an investment adviser that "operates as a fraud or deceit upon any client or prospective client." The injunction sought in Capital Gains was to compel disclosure of a practice known as "scalping," whereby an investment adviser purchases shares of a given security for his own account shortly before recommending the security to investors as a long-term investment, and then promptly sells the shares at a profit upon the rise in their market value following the recommendation.
30
The issue in Capital Gains was whether in an action for injunctive relief for violations of § 206(2)10 the Commission must prove that the defendant acted with an intent to defraud. The Court held that a showing of intent was not required. This conclusion rested upon the fact that the legislative history revealed that the "Investment Advisers Act of 1940 . . . reflects a congressional recognition 'of the delicate fiduciary nature of an investment advisory relationship,' as well as a congressional intent to eliminate, or at least to expose, all conflicts of interest which might incline an investment adviser consciously or unconsciously—to render advice which was not disinterested." 375 U.S., at 191-192, 84 S.Ct., at 282-283, (footnote omitted). To require proof of intent, the Court reasoned, would run counter to the expressed intent of Congress.
31
The Court added that its conclusion was "not in derogation of the common law of fraud." Id., at 192, 84 S.Ct., at 283. Although recognizing that intent to defraud was a necessary element at common law to recover money damages for fraud in an arm's-length transaction, the Court emphasized that the Commission's action was not a suit for damages, but rather a suit for an injunction in which the relief sought was the "mild prophylactic" of requiring a fiduciary to disclose his transactions in stocks he was recommending to his clients. Id., at 193, 84 S.Ct., at 283. The Court observed that it was not necessary in a suit for "equitable or prophylactic relief" to establish intent, for "[f]raud has a broader meaning in equity [than at law] and intention to defraud or to misrepresent is not a necessary element." Ibid., quoting W. De Funiak, Handbook of Modern Equity 235 (2d ed. 1956). Moreover, it was not necessary, the Court said, in a suit against a fiduciary such as an investment adviser, to establish all the elements of fraud that would be required in a suit against a party to an arm's-length transaction. Finally, the Court took cognizance of a "growing recognition by common-law courts that the doctrines of fraud and deceit which developed around transactions involving land and other tangible items of wealth are ill-suited to the sale of such intangibles as advice and securities, and that accordingly, the doctrines must be adapted to the merchandise in issue." 375 U.S., at 194, 84 S.Ct., at 284. Unwilling to assume that Congress was unaware of these developments at common law, the Court concluded that they "reinforce[d]" its holding that Congress had not sought to require a showing of intent in actions to enjoin violations of § 206(2). Id., at 195, 84 S.Ct., at 284.
32
The Commission argues that the emphasis in Capital Gains upon the distinction between fraud at law and in equity should guide a construction of § 10(b) in this suit for injunctive relief.11 We cannot, however, draw such guidance from Capital Gains for several reasons. First, wholly apart from its discussion of the judicial treatment of "fraud" at law and in equity, the Court in Capital Gains found strong support in the legislative history for its conclusion that the Commission need not demonstrate intent to enjoin practices in violation of § 206(2). By contrast, as the Court in Hochfelder noted, the legislative history of § 10(b) points towards a scienter requirement. Second, it is quite clear that the language in question in Capital Gains, "any * * * practice * * * which operates * * * as a fraud or deceit," (emphasis added) focuses not on the intent of the investment adviser, but rather on the effect of a particular practice. Again, by contrast, the Court in Hochfelder found that the language of § 10(b)—particularly the terms "manipulative," "device," and "contrivance"—clearly refers to "knowing or intentional misconduct." Finally insofar as Capital Gains involved a statutory provision regulating the special fiduciary relationship between an investment adviser and his client, the Court there was dealing with a situation in which intent to defraud would not have been required even in a common-law action for money damages.12 Section 10(b), unlike the provision at issue in Capital Gains, applies with equal force to both fiduciary and nonfiduciary transactions in securities. It is our view, in sum, that the controlling precedent here is not Capital Gains but ratherHochfelder. Accordingly, we conclude that scienter is a necessary element of a violation of § 10(b) and Rule 10b-5.
B
33
In determining whether proof of scienter is a necessary element of a violation of § 17(a), there is less precedential authority in this Court to guide us. But the controlling principles are well settled. Though cognizant that "Congress intended securities legislation enacted for the purpose of avoiding frauds to be construed 'not technically and restrictively, but flexibly to effectuate its remedial purposes,' " Affiliated Ute Citizens v. United States, 406 U.S., at 151, 92 S.Ct., at 1471, quoting, SEC v. Capital Gains Research Bureau, 375 U.S., at 195, 84 S.Ct., at 285, the Court has also noted that "generalized references to the 'remedial purposes' " of the securities laws "will not justify reading a provision '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, quoting SEC v. Sloan, 436 U.S. 103, 116, 98 S.Ct. 1702, 1711, 56 L.Ed.2d 148. Thus, if the language of a provision of the securities laws is sufficiently clear in its context and not at odds with the legislative history, it is unnecessary "to examine the additional considerations of 'policy' . . . that may have influenced the lawmakers in their formulation of the statute." Ernst & Ernst v. Hochfelder, 425 U.S., at 214, n. 33, 96 S.Ct., at 1391, n. 33.
34
The language of § 17(a) strongly suggests that Congress contemplated a scienter requirement under § 17(a)(1), but not under § 17(a)(2) or § 17(a)(3). The language of § 17(a)(1), which makes it unlawful "to employ any device, scheme, or artifice to defraud," plainly evinces an intent on the part of Congress to proscribe only knowing or intentional misconduct. Even if it be assumed that the term "defraud" is ambiguous, given its varied meanings at law and in equity, the terms "device," "scheme," and "artifice" all connote knowing or intentional practices.13 Indeed, the term "device," which also appears in § 10(b) figured prominently in the Court's conclusion in Hochfelder that the plain meaning of § 10(b) embraces a scienter requirement.14 Id., at 199, 96 S.Ct., at 1383.
35
By contrast, the language of § 17(a)(2), which prohibits any person from obtaining money or property "by means of any untrue statement of a material fact or any omission to state a material fact," is devoid of any suggestion whatsoever of a scienter requirement. As a well-known commentator has noted, "[t]here is nothing on the face of Clause (2) itself which smacks of scienter or intent to defraud." 3 L. Loss, Securities Regulation 1442 (2d ed. 1961). In fact, this Court in Hochfelder pointed out that the similar language of Rule 10b-5(b) "could be read as proscribing . . . any type of material misstatement or omission . . . that has the effect of defrauding investors, whether the wrongdoing was intentional or not." 425 U.S., at 212, 96 S.Ct., at 1390.
36
Finally, the language of § 17(a)(3), under which it is unlawful for any person "to engage in any transaction, practice, or course of business whichoperates or would operate as a fraud or deceit," (emphasis added) quite plainly focuses upon the effect of particular conduct on members of the investing public, rather than upon the culpability of the person responsible. This reading follows directly from Capital Gains, which attributed to a similarly worded provision in § 206(2) of the Investment Advisers Act of 1940 a meaning that does not require a "showing [of] deliberate dishonesty as a condition precedent to protecting investors." 375 U.S., at 200, 84 S.Ct., at 287.
37
It is our view, in sum, that the language of § 17(a) requires scienter under § 17(a)(1), but not under § 17(a)(2) or § 17(a)(3). Although the parties have urged the Court to adopt a uniform culpability requirement for the three subparagraphs of § 17(a), the language of the section is simply not amenable to such an interpretation. This is not the first time that this Court has had occasion to emphasize the distinctions among the three subparagraphs of § 17(a). In United States v. Naftalin, 441 U.S. 768, 774, 99 S.Ct. 2077, 2082, 60 L.Ed.2d 624, the Court noted that each subparagraph of § 17(a) "proscribes a distinct category of misconduct. Each succeeding prohibition is meant to cover additional kinds of illegalities—not to narrow the reach of the prior sections." (Footnote omitted.) Indeed, since Congress drafted § 17(a) in such a manner as to compel the conclusion that scienter is required under one subparagraph but not under the other two, it would take a very clear expression in the legislative history of congressional intent to the contrary to justify the conclusion that the statute does not mean what it so plainly seems to say.
38
We find no such expression of congressional intent in the legislative history. The provisions ultimately enacted as § 17(a) had their genesis in § 13 of identical bills introduced simultaneously in the House and Senate in 1933. H.R. 4314, 73d Cong., 1st Sess. (Mar. 29, 1933); S. 875, 73d Cong., 1st Sess. (Mar. 29, 1933).15 As originally drafted, § 13 would have made it unlawful for any person
39
"willfully to employ any device, scheme, or artifice to defraud or to obtain money or property by means of any false pretense, representation, or promise, or to engage in any transaction, practice, or course of business . . . which operates or would operate as a fraud upon the purchaser."
40
Hearings on these bills were conducted by both the House Interstate and Foreign Commerce Committee and the Senate Banking and Currency Committee.
41
The House and Senate Committees reported out different versions of § 13. The Senate Committee expanded its ambit by including protection against the intentionally fraudulent practices of a "dummy," a person holding legal or nominal title but under a moral or legal obligation to act for someone else. As amended by the Senate Committee, § 13 made it unlawful for any person
42
"willfully to employ any device, scheme, or artifice or to employ any 'dummy', or to act as any such 'dummy', with the intent to defraud or to obtain money or property by means of any false pretense, representation, or promise, or to engage in any transaction, practice, or course of business . . . which operates or would operate as a fraud upon the purchaser. . . ."
43
See S. 875, 73d Cong., 1st Sess. (Apr. 27, 1933); S.Rep. No. 47, 73d Cong., 1st Sess., 4-5 (1933). The House Committee retained the original version of § 13, except that the word "willfully" was deleted from the beginning of the provision.16 See H.R. 5480, 73d Cong., 1st Sess., § 16(a) (May 4, 1933). It also rejected a suggestion that the first clause, "to employ any device, scheme, or artifice," be modified by the phrase, "with intent to defraud." See ibid.; Federal Securities Act: Hearings on H.R. 4314 before the House Committee on Interstate and Foreign Commerce, 73d Cong., 1st Sess., 146 (1933). The House and Senate each adopted the version of the provision as reported out by its Committee. The Conference Committee then adopted the House version with a minor modification not relevant here, see H.R.Conf.Rep. No. 152, 73d Cong., 1st Sess., 12, 27 (1933), and it was later enacted into law as § 17(a) of the 1933 Act.
44
The Commission argues that the deliberate elimination of the language of intent reveals that Congress considered and rejected a scienter requirement under all three clauses of § 17(a). This argument, however, rests entirely on inference, for the Conference Report sheds no light on what the Conference Committee meant to do about the question of scienter under § 17(a).17 The legislative history thus gives rise to the equally plausible inference that the Conference Committee concluded that (1) in light of the plain meaning of § 17(a)(1), the language of intent—"willfully" and "with intent to defraud"—was simply redundant, and (2) with regard to § 17(a)(2) and § 17(a)(3), a "willful[ness]" requirement was not to be included. It seems clear, therefore, that the legislative history, albeit ambiguous, may be read in a manner entirely consistent with the plain meaning of § 17(a).18 In the absence of a conflict between reasonably plain meaning and legislative history, the words of the statute must prevail.19
C
45
There remains to be determined whether the provisions authorizing injunctive relief, § 20(b) of the 1933 Act and § 21(d) of the 1934 Act, modify the substantive provisions at issue in this case so far as scienter is concerned.
46
The language and legislative history of § 20(b) and § 21(d) both indicate that Congress intended neither to add to nor to detract from the requisite showing of scienter under the substantive provisions at issue. Sections 20(b) and 21(d) provide that the Commission may seek injunctive relief whenever it appears that a person "is engaged or [is] about to engage in any acts or practices" constituting a violation of the 1933 or 1934 Acts or regulations promulgated thereunder and that, "upon a proper showing," a district court shall grant the injunction. The elements of "a proper showing" thus include, at a minimum, proof that a person is engaged in or is about to engage in a substantive violation of either one of the Acts or of the regulations promulgated thereunder. Accordingly, when scienter is an element of the substantive violation sought to be enjoined, it must be proved before an injunction may issue. But with respect to those provisions such as § 17(a)(2) and § 17(a)(3), which may be violated even in the absence of scienter, nothing on the face of § 20(b) or § 21(d) purports to impose an independent requirement of scienter. And there is nothing in the legislative history of either provision to suggest a contrary legislative intent.
47
This is not to say, however, that scienter has no bearing at all on whether a district court should enjoin a person violating or about to violate § 17(a)(2) or § 17(a)(3). In cases where the Commission is seeking to enjoin a person "about to engage in any acts or practices which . . . will constitute" a violation of those provisions, the Commission must establish a sufficient evidentiary predicate to show that such future violation may occur. See SEC v. Commonwealth Chemical Securities, Inc., 574 F.2d 90, 98-100 (CA2 1978) (Friendly, J.); 3 L. Loss, Securities Regulation at 1976. An important factor in this regard is the degree of intentional wrongdoing evident in a defendant's past conduct. See SEC v. Wills, 472 F.Supp. 1250, 1273-1275 (DC 1978). Moreover, as the Commission recognizes, a district court may consider scienter or lack of it as one of the aggravating or mitigating factors to be taken into account in exercising its equitable discretion in deciding whether or not to grant injunctive relief. And the proper exercise of equitable discretion is necessary to ensure a "nice adjustment and reconciliation between the public interest and private needs." Hecht Co. v. Bowles, 321 U.S. 321, 329, 64 S.Ct. 587, 592, 88 L.Ed. 754.
III
48
For the reasons stated in this opinion, we hold that the Commission is required to establish scienter as an element of a civil enforcement action to enjoin violations of § 17(a)(1) of the 1933 Act, § 10(b) of the 1934 Act, and Rule 10b-5 promulgated under that section of the 1934 Act. We further hold that the Commission need not establish scienter as an element of an action to enjoin violations of § 17(a)(2) and § 17(a)(3) of the 1933 Act. The Court of Appeals affirmed the issuance of the injunction in this case in the misapprehension that it was not necessary to find scienter in order to support an injunction under any of the provisions in question. Accordingly, the judgment of the Court of Appeals is vacated, and the case is remanded to that court for further proceedings consistent with this opinion.
49
It is so ordered.
50
Mr. Chief Justice BURGER, concurring.
51
I join the opinion of the Court and write separately to make three points:
52
(1) No matter what mental state § 10(b) and § 17(a) were to require, it is clear that the District Court was correct here in entering an injunction against petitioner. Petitioner was informed by an attorney representing Lawn-A-Mat that two representatives of petitioner's firm were making grossly fraudulent statements to promote Lawn-A-Mat stock. Yet he took no steps to prevent such conduct from recurring. He neither discharged the salesmen nor rebuked them; he did nothing whatever to indicate that such salesmanship was unethical, illegal, and should stop. Hence, the District Court's findings (a) that petitioner "intentionally failed" to terminate the fraud and (b) that his conduct was reasonably likely to repeat itself find abundant support in the record. In my view, the Court of Appeals could well have affirmed on that ground alone.
53
(2) I agree that § 10(b) and § 17(a)(1) require scienter but that § 17(a)(2) and § 17(a)(3) do not. I recognize, of course, that this holding "drives a wedge between [sellers and buyers] and says that henceforth only the seller's negligent misrepresentations may be enjoined." At 715 (BLACKMUN, J., dissenting). But it is not this Court that "drives a wedge"; Congress has done that. The Court's holding is compelled in large measure by Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976), and gives effect to congressional intent as manifested in the language of the statutes and in their histories. If, as intimated, the result is "bad" public policy, that is the concern of Congress where changes can be made.
54
(3) It bears mention that this dispute, though pressed vigorously by both sides, may be much ado about nothing. This is so because of the requirement in injunctive proceedings of a showing that "there is a reasonable likelihood that the wrong will be repeated." SEC v. Manor Nursing Centers, Inc., 458 F.2d 1082, 1100 (CA2 1975). Accord, SEC v. Keller Corp., 323 F.2d 397, 402 (CA7 1963). To make such a showing, it will almost always be necessary for the Commission to demonstrate that the defendant's past sins have been the result of more than negligence. Because the Commission must show some likelihood of a future violation, defendants whose past actions have been in good faith are not likely to be enjoined. See opinion of the Court, at 701. That is as it should be. An injunction is a drastic remedy, not a mild prophylactic, and should not be obtained against one acting in good faith.
55
Mr. Justice BLACKMUN, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, concurring in part and dissenting in part.
56
I concur in the Court's judgment that §§ 17(a)(2) and (3) of the Securities Act of 1933, 15 U.S.C. §§ 77q(a)(2) and (3), do not require a showing of scienter for purposes of an action for injunctive relief brought by the Securities and Exchange Commission. I dissent from the remainder of the Court's reasoning and judgment. I am of the view that neither § 17(a)(1) of the 1933 Act, 15 U.S.C. § 77q(a)(1), nor § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), as elaborated by SEC Rule 10b-5, 17 CFR § 240.10b-5 (1979), requires the Commission to prove scienter before it can obtain equitable protection against deceptive practices in securities trading. Accordingly, I would affirm the judgment of the Court of Appeals in its entirety.
57
The issues before the Court in this case are important and critical. Sections 17(a) and 10(b) are the primary antifraud provisions of the federal securities laws. They are the chief means through which the Commission, by exercise of its authority to bring actions for injunctive relief, can seek protection against deception in the marketplace. See § 20(b) of the 1933 Act, 15 U.S.C. § 77t(b); § 21(d) of the 1934 Act, 15 U.S.C. § 78u(d). As a result, they are key weapons in the statutory arsenal for securing market integrity and investor confidence. See Douglas & Bates, The Federal Securities Act of 1933, 43 Yale L.J. 171, 182 (1933); Note, 57 Yale L.J. 1023 (1948). If the Commission is denied the ability effectively to nip in the bud the misrepresentations and deceptions that its investigations have revealed, honest investors will be the ones who suffer. Often they may find themselves stripped of their investments through reliance on information that the Commission knew was misleading but lacked the power to stop or contain.
58
Today's decision requires the Commission to prove scienter in many, if not most, situations before it is able to obtain an injunction. This holding unnecessarily undercuts the Commission's authority to police the marketplace. As I read the Court's opinion, it is little more than an extrapolation of the reasoning that was employed in Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976), in imposing a scienter requirement upon private actions for damages implied under § 10(b) and Rule 10b-5. Whatever the authority of Hochfelder may be in its own context, I perceive little reason to regard it as governing precedent here. I believe that there are sound reasons for distinguishing between private damages actions and public enforcement actions under these statutes, and for applying a scienter standard, if one must be applied anywhere, only in the former class of cases.
59
* In keeping with the reasoning of Hochfelder, the Court places much emphasis upon statutory language and its assertedly plain meaning. The words "device, scheme, or artifice to defraud" in § 17(a)(1), and the words "manipulative or deceptive device or contrivance" in § 10(b), are said to connote "knowing or intentional misconduct." At 690, 696. And this connotation, it is said, implicitly incorporates the requirement of scienter traditionally applicable in the common law of fraud. But there are at least two specific responses to this wooden analysis. First, it is quite unclear that the words themselves call for so restrictive a definition. Second, as the Court recognized in SEC v. Capital Gains Research Bureau, 375 U.S. 180, 84 S.Ct. 275, 11 L.Ed.2d 237 (1963), the common-law requirement of scienter generally observed in actions for fraud at law was often dispensed with in actions brought before chancery.
A.
60
The words of a statute, particularly one with a remedial object, have a " 'meaning imparted to them by the mischief to be remedied.' " St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 545, 98 S.Ct. 2923, 2932, 57 L.Ed.2d 932 (1978), quoting Duparquet Co. v. Evans, 297 U.S. 216, 221, 56 S.Ct. 412, 414, 80 L.Ed. 591 (1936). Thus, antifraud provisions of securities legislation are to be construed "not technically and restrictively, but flexibly to effectuate [their] remedial purposes." SEC v. Capital Gains Research Bureau, 375 U.S., at 195, 84 S.Ct., at 285; Superintendent of Insurance v. Bankers Life & Cas. Co., 404 U.S. 6, 12, 92 S.Ct. 165, 168, 30 L.Ed.2d 128 (1971); Affiliated Ute Citizens v. United States, 406 U.S. 128, 151, 92 S.Ct. 1456, 1471, 31 L.Ed.2d 741 (1972). See also SEC v. C. M. Joiner Leasing Corp., 320 U.S. 344, 350-351, 64 S.Ct. 120, 123, 88 L.Ed. 88 (1943); United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 849-851, 95 S.Ct. 2051, 2059-2060, 44 L.Ed.2d 621 (1975). I have no doubt that the "mischief" confronting Congress in 1933 and 1934 included a large measure of intentional deceit and misrepresentation. The concern, however, ran deeper still, and Congress sought to develop a regulatory framework that would ensure a free flow of honest, reliable information in the securities markets. This Court has recognized that it was Congress' desire "to substitute a philosophy of full disclosure for the philosophy of caveat emptor," and to place upon those in control of information the responsibility for misrepresentation. SEC v. Capital Gains Research Bureau, 375 U.S., at 186, 84 S.Ct., at 280; see, e. g., H.R.Rep.No.85, 73d Cong., 1st Sess., 1-5 (1933); Securities Act: Hearings on S. 875 before the Senate Committee on Banking and Currency, 73d Cong., 1st Sess., 71 (1933). This step was perceived as a fundamental prerequisite to restoration of investor confidence sorely needed after the market debacles that helped to plummet the Nation into a major economic depression. See United States v. Naftalin, 441 U.S. 768, 775, 99 S.Ct. 2077, 2082, 60 L.Ed.2d 624 (1979).
61
Reading the language of § 17(a)(1) and § 10(b) with these purposes in mind, I am not at all certain—although the Court professes to be—that the language is incapable of being read to include misrepresentations that result from something less than willful behavior. The word "willfully," that Congress employed elsewhere in the securities laws when it wanted to specify a prerequisite of knowledge or intent, is conspicuously missing.1 Instead, Congress employed a variety of terms to describe the conduct that it authorized the Commission to prohibit. These operative terms are expressed in the disjunctive, and each should be given its separate meaning. Contrary to the Court's view, I would conclude that they identify a range of behavior including but not limited to intentional misconduct, and that they admit an interpretation, in the context of Commission enforcement actions, that reaches deceptive practices whether the common-law condition of scienter is specifically present or not.
62
For example, the word "device" that is common to both statutes may have a far broader scope than the Court suggests. The legislative history of the 1934 Act used that term as a synonym for "practice," a word without any strong connotation of scienter, and it expressed a desire to confer upon the Commission authority under § 10(b) to prohibit "any . . . manipulative or deceptive practices . . . detrimental to the interests of the investor." S.Rep.No.792, 73d Cong., 2d Sess., 18 (1934). The term "device" also was used in § 15 (c)(1) of the Securities Exchange Act, 15 U.S.C. § 78o (c)(1), where it has been interpreted with congressional approval to apply to negligent acts and practices. See SEC Rule 15c-1-2, 17 CFR § 240.15cl-2 (1979); H.R.Rep.No.2307, 75th Cong., 3d Sess., 10 (1938). Moreover, "device" had been given broad definition in prior enactments. In Armour Packing Co. v. United States, 209 U.S. 56, 71, 28 S.Ct. 428, 431, 52 L.Ed. 681 (1908), the Court rejected the contention that its meaning in the Elkins Act, 32 Stat. 847, should be limited to conduct involving resort to underhanded, dishonest, or fraudulent means.
63
In my view, this evidence provides a stronger indication of congressional understanding of the term "device" than the dictionary definition on which the Court relies. At 696, n. 13; cf. Ernst & Ernst v. Hochfelder, 425 U.S., at 199, n. 20,2 96 S.Ct., at 1384. At the very least, it fully counters the Court's bald assertion that the meaning of terms used in the antifraud provisions is sufficiently "plain" that statutory policy and administrative interpretation may be ignored in defining the scope of the legislation. See, at 695, 700, n. 19. Division in the lower courts over the issues before us is itself an indication that reasonable minds differ over the import of the terminology that Congress has used. I can agree with the Court that the language of the statutes is the starting point of analysis, but at least in present circumstances I strongly disagree with the conclusion that it is the ending point as well.
B
64
An additional and independent ground for disagreement with the Court's analysis is its utter failure to harmonize statutory construction with prevailing equity practice at the time the securities laws were enacted. On prior occasions, the Court has emphasized the relevance of common-law principles in the interpretation of the antifraud provisions of the securities laws. See, e. g., Chiarella v. United States, 445 U.S. 222, 227-229, 100 S.Ct. 1108, 1114-1115, 63 L.Ed.2d 348 (1980). See also Lanza v. Drexel & Co., 479 F.2d 1277, 1289-1291 (CA2 1973) (en banc). Yet in this case, the Court oddly finds those principles inapplicable. It specifically casts aside the fact that proof of scienter was not required in actions seeking equitable relief against fraudulent practices. This position stands in stark contrast with the Court's clear recognition of this separate equity tradition in SEC v. Capital Gains Research Bureau, 375 U.S. 180, 84 S.Ct. 275, 11 L.Ed.2d 237 (1963).
65
In Capital Gains, the Court was called upon to construe § 206(2) of the Investment Advisers Act of 1940, 54 Stat. 847, as amended, 15 U.S.C. § 80b-6(2). The statute is a general antifraud provision framed in language similar to that of § 17(a)(3) of the 1933 Act. The Court of Appeals, sitting en banc, had decided by a close vote that the Commission could not obtain an injunction for violation of the statute unless it proved scienter. See SEC v. Capital Gains Research Bureau, 306 F.2d 606 (CA2 1962). This Court, rejecting the view of the lower court that scienter was required in all cases involving fraud, reversed. It said:
66
"The content of common-law fraud has not remained static as the courts below seem to have assumed. It has varied, for example, with the nature of the relief sought, the relationship between the parties, and the merchandise in issue. It is not necessary in a suit for equitable or prophylactic relief to establish all the elements required in a suit for monetary damages." 375 U.S., at 193, 84 S.Ct., at 283.
67
In particular, the Court observed that proof of scienter was one element of an action for damages that the equity courts omitted. Id., at 193-194, 84 S.Ct., at 283-284. See also Moore v. Crawford, 130 U.S. 122, 128, 9 S.Ct. 447, 448, 32 L.Ed. 878 (1889).
68
The Court does not now dispute the veracity of what it said in Capital Gains. Indeed, the different standards for fraud in law and at equity have been noted by commentators for more than a century. See, e. g., 1 J. Story, Equity Jurisprudence §§ 186-187 (6th ed. 1853); G. Bower, The Law of Actionable Misrepresentation § 250 (1911); 2 J. Pomeroy, Equity Jurisprudence § 885 (4th ed. 1918); 3 S. Williston, The Law of Contracts § 1500 (1920); W. Walsh, Equity § 109, p. 509 (1930). See also Shulman, Civil Liability and the Securities Act, 43 Yale L.J. 227, 231 (1933). The difference originally may have been attributable more to historical accident than to any conscious policy. See Keeton, Actionable Misrepresentation: Legal Fault as a Requirement (Part I), 1 Okl.L.Rev. 21, 22 (1948). But as one commentator explained, it has survived because in equity "[i]t is not the cause but the fact, of injury, and the problem of its practical control through judicial action, which concern the court." 1 F. Lawrence, Substantive Law of Equity Jurisprudence § 13 (1929) (emphasis in original); see also id., § 17. As a consequence of this different focus, common-law courts consistently have held that in an action for rescission or other equitable relief the fact of material misrepresentation is sufficient, and the knowledge or purpose of the wrongdoer need not be shown.
69
The Court purports to distinguish Capital Gains on the grounds that it involved a different statutory provision with somewhat different language, and that it stressed the confidential duties of investment advisers to their clients. At 693-695. These observations, in my view, do not weaken the relevance of the history on which the Court in Capital Gains relied. In fact, that history may be even more pertinent here. This case involves actual dissemination of material false statements by a broker-dealer serving as market maker in the relevant security; Capital Gains involved an investment adviser's omission to state material facts. Because there was no affirmative misrepresentation in Capital Gains, the existence of a confidential duty arguably was necessary before the broker's silence could become the basis for a charge of fraud. Cf. Chiarella v. United States, 445 U.S., at 228, 100 S.Ct., at 1114. Here, in contrast, the fraudulent nature of the underlying conduct is clear, and the only issue is whether the Commission may obtain the desired prophylactic relief.
70
The significance of this common-law tradition, moreover, is buttressed by reference to state precursors of the federal securities laws. The problem of securities fraud was by no means new in 1933, and many States had attempted to deal with it by enactment of their own "blue-sky" statutes. When Congress turned to the problem, it explicitly drew from their experience. One variety of state statute, the so-called "fraud" laws of New York, New Jersey, Maryland, and Delaware, empowered the respective state attorneys general to bring actions for injunctive relief when fraudulent practices in the sale of securities were uncovered. See, e. g., Federal Securities Act, Hearings on H.R. 4314 before the House Committee on Interstate and Foreign Commerce, 73d Cong., 1st Sess., 95 (1933). Of these statutes, the most prominent was the Martin Act of New York, 1921 N.Y.Laws, ch. 649, N.Y.Gen.Bus.Law, §§ 352-353 (Consol.1921), which had been fairly actively enforced. The drafters of the federal securities laws referred to these specific statutes as models for the power to seek injunctive relief that they requested for federal enforcement authorities. The experience of the State of New York, in particular, was repeatedly called to Congress' attention as an example for federal legislation to follow.3
71
In light of this legislative history, I find it far more significant than does the Court that proof of scienter was not a prerequisite to relief under the Martin Act and other similar "blue-sky" laws. In People v. Federated Radio Corp., 244 N.Y. 33, 154 N.E. 655 (1926), the New York Court of Appeals held that lack of scienter was no defense to Martin Act liability. The court justified this decision by looking to the traditional equity practice to which I have referred. It held:
72
"[I]ntentional misstatements, as in an action at law to recover damages for fraud and deceit . . . need not be alleged. Material misrepresentations intended to influence the bargain, on which an action might be maintained in equity to rescind a consummated transaction, are enough." Id., at 40-41, 154 N.E., at 658.
73
This decision was in keeping with the general tenor of state laws governing equitable relief in the context of securities transactions. See Note, 40 Yale L.J. 987, 988 (1931).
74
The Court dismisses all this evidence with the observation, at 700, n. 18, that the specific holdings of cases like Federated Radio were not explicitly placed before Congress. Yet these were not isolated holdings or novel twists of law. They were part of an established, longstanding equity tradition the significance of which the Court has chosen simply to ignore. I am convinced that Congress was aware of this tradition, see n. 3, supra, and that if it had intended to depart from it, it would have left more traces of that intention than the Court has been able to find. Cf. Hecht Co. v. Bowles, 321 U.S. 321, 329, 64 S.Ct. 587, 591-592, 88 L.Ed. 754 (1944) ("We are dealing here with the requirements of equity practice with a background of several hundred years of history").
II
75
Although I disagree with the Court's textual exegesis and its assessment of history, I believe its most serious error may be a failure to appreciate the structural interrelationship among equitable remedies in the 1933 and 1934 Acts, and to accord that interrelationship proper weight in determining the substantive reach of the Commission's enforcement powers under § 17(a) and § 10(b).
76
The structural considerations that were advanced in support of the decision to require proof of scienter in a private action for damages, see Ernst & Ernst v. Hochfelder, 425 U.S., at 206-211, 96 S.Ct., at 1387-1389, have no application in the present context. In Hochfelder, the Court noted that Congress had placed significant limitations on the private causes of action for negligence that were available under provisions of the 1934 Act other than § 10(b). Ibid. It concluded that the effectiveness of these companion statutes might be undermined if private plaintiffs sustaining losses from negligent behavior also could sue for damages under § 10(b). Id., at 210, 96 S.Ct., at 1389. Obviously, no such danger is created by Commission-initiated actions for injunctive relief, and the Court admits as much. At 691, n. 9.4
77
In fact, the consistent pattern in both the 1933 Act and the 1934 Act is to grant the Commission broad authority to seek enforcement without regard to scienter, unless criminal punishments are contemplated. In both Acts, state of mind is treated with some precision. Congress used terms such as "knowing," "willful," and "good faith," when it wished to impose a state-of-mind requirement. The omission of such terms in statutory provisions authorizing the Commission to sue for injunctive relief contrasts sharply with their inclusion in provisions authorizing criminal prosecution. Compare § 20(b) of the 1933 Act, 15 U.S.C. § 77t(b), and § 21(d) of the 1934 Act, 15 U.S.C. § 78u(d), with § 24 of the 1933 Act, 15 U.S.C. § 77x, and § 32(a) of the 1934 Act, 15 U.S.C. § 78ff(a). Moreover, the Acts create other civil remedies that may be pursued by the Commission that do not include state-of-mind prerequisites.5 This pattern comports with Congress' expressed intent to give the Commission maximum flexibility to deal with new or unanticipated problems, rather than to confine its enforcement efforts within a rigid statutory framework. See, e. g., H.R.Rep.No.1383, 73d Cong., 2d Sess., 6-7 (1934); S.Rep.No.792, 73d Cong., 2d Sess., 5-6 (1934); 78 Cong.Rec. 8113 (1934).
78
The Court's decision deviates from this statutory scheme. That deviation, of course, is only partial. After today's decision, it still will be possible for the Commission to obtain relief against some negligent misrepresentations under § 17(a) of the 1933 Act. Yet this halfway-house approach itself highlights the error of the Court's decision. Rule 10b-5 was promulgated to fill a gap in federal securities legislation, and to apply to both purchasers and sellers under § 10(b) the legal duties that § 17(a) had applied to sellers alone. See Ward La France Truck Corp., 13 S.E.C. 373, 381, n. 8 (1943); SEC Release No. 3230 (May 21, 1942). As the Commission thus recognized, the two statutes should operate in harmony. The Court now drives a wedge between them, and says that henceforth only the seller's negligent misrepresentations may be enjoined. I have searched in vain for any reason in policy or logic to support this division. Its only support, so far as I can tell, is to be found in the Court's technical linguistic analysis.
79
Many lower courts have refused to go so far. Both before and after Hochfelder, they have rejected the contention that the Commission must prove scienter under either § 17(a) or § 10(b) before it can obtain injunctive relief against deceptive practices.6 Even those judges who anticipated Hochfelder by advocating a scienter requirement in private actions for money damages found no reason to place similar strictures on the Commission. See, e. g., SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 866-868 (CA2 1968) (concurring opinion), cert. denied sub nom. Coates v. SEC, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969), cited with approval in Ernst & Ernst v. Hochfelder, 425 U.S., at 197, 211, 213, 214, 96 S.Ct., at 1382, 1389, 1391.
80
The reasons for this refusal to limit the Commission's authority are not difficult to fathom. As one court observed in the context of § 17(a), "[i]mpressive policies" support the need for Commission authority to seek prophylactic relief against misrepresentations that are caused by negligence, as well as those that are caused by deliberate swindling. SEC v. Coven, 581 F.2d 1020, 1027 (CA2 1978), cert. denied, 440 U.S. 950, 99 S.Ct. 1432, 59 L.Ed.2d 640 (1979). False and misleading statements about securities "can be instruments for inflicting pecuniary loss more potent than the chisel or the crowbar." United States v. Benjamin, 328 F.2d 854, 863 (CA2), cert. denied sub nom. Howard v. United States, 377 U.S. 953, 84 S.Ct. 1631, 12 L.Ed.2d 497 (1964). And when misinformation causes loss, it is small comfort to the investor to know that he has been bilked by negligent mistake rather than by fraudulent design, particularly when recovery of his loss has been foreclosed by this Court's decisions.7 As the reported cases illustrate, injunctions against negligent dissemination of misinformation play an essential role in preserving market integrity and preventing serious financial loss. See,e. g., SEC v. World Radio Mission, Inc., 544 F.2d 535, 540-541 (CA1 1976); SEC v. Management Dynamics, Inc., 515 F.2d 801, 809 (CA2 1975); SEC v. Manor Nursing Centers, Inc., 458 F.2d 1082, 1095-1097 (CA2 1972).8
III
81
I thus arrive at the conclusion that statutory language does not compel the judgment reached by the Court, while considerations of history, statutory structure, legislative purpose, and policy all strongly favor an interpretation of § 17(a) and § 10(b) that permits the Commission to seek injunctive relief without first having to prove scienter. In my view, this conclusion is fortified by the fact that Congress has approved it in a related context.9 Because I find nothing whatever in either Ernst & Ernst v. Hochfelder or today's decision that compels a different result, I dissent.
1
The Commission also charged the petitioner and three other defendants with violations of the registration provisions of §§ 5(a), (c) of the 1933 Act, 15 U.S.C. §§ 77e(a), (c). The District Court found that the petitioner had violated these provisions and enjoined him from future violations. The Court of Appeals affirmed this holding, and the petitioner has not challenged this portion of the Court of Appeals' decision.
2
The opinion of the District Court is reported in CCH Fed.Sec.L.Rep. ¶ 96,043 (1977).
3
The Court of Appeals observed that its previous decisions had required scienter in private damages actions under § 10(b) even before this Court's decision in the Hochfelder case, but also had "uniformly . . . held that the language and history of the section [did] not require a showing of scienter in an injunction enforcement action brought by the Commission." 605 F.2d, at 620-621. This distinction had been premised on the fact that the two types of suits under § 10(b) advance different goals: actions for damages are designed to provide compensation to individual investors, whereas suits for injunctive relief serve to provide maximum protection for the investing public. In the present case, the Court of Appeals, relying on its reasoning in previous cases, concluded that "[i]n view of the policy considerations underlying the securities acts, . . . the increased effectiveness of government enforcement actions predicated on a showing of negligence alone outweigh[s] the danger of potential harm to those enjoined from violating the securities laws." Id., at 621.
4
Neither the District Court nor the Court of Appeals gave any indication of which subsection or subsections of § 17(a) of the 1933 Act the petitioner had violated.
5
The term "scienter" is used throughout this opinion, as it was in Ernst & Ernst v. Hochfelder, 425 U.S. 185, 194, n. 12, 96 S.Ct. 1375, 1381, n. 12, 47 L.Ed.2d 668, to refer to "a mental state embracing intent to deceive, manipulate, or defraud." We have no occasion here to address the question, reserved in Hochfelder, ibid., whether, under some circumstances, scienter may also include reckless behavior.
6
Compare, e. g., the present case, and SEC v. Coven, 581 F.2d 1020 (CA2 1978) (scienter not required in Commission enforcement action under §§ 17(a)(1)-(3)), with Steadman v. SEC, 603 F.2d 1126 (CA5 1979) (scienter required in Commission disciplinary action under § 17(a)(1), but not under §§ 17(a)(2)-(3)), and with SEC v. Cenco, Inc., 436 F.Supp. 193 (ND Ill.1977) (scienter required in Commission enforcement action under §§ 17(a)(1)-(3)).
7
Compare, e. g., the present case, and SEC v. World Radio Mission, Inc., 544 F.2d 535 (CA1 1976) (scienter not required in Commission enforcement action under § 10(b) and Rule 10b-5), with SEC v. Blatt, 583 F.2d 1325 (CA5 1978) (scienter required in Commission enforcement action under § 10(b) and Rule 10b-5).
8
The Court in Hochfelder also found support for its conclusion as to the scope of Rule 10b-5 in the fact that the administrative history revealed that "when the Commission adopted the Rule it was intended to apply only to activities that involved scienter." 425 U.S., at 212, 96 S.Ct, at 1390.
9
The third factor—the structure of civil liability provisions in the 1933 and 1934 Acts—obviously has no applicability in a case involving injunctive relief. It is evident, however, that the third factor was not determinative in Hochfelder. Rather, the Court in Hochfelder clearly indicated that the language of the statute, which is applicable here, was sufficient, standing alone, to support the Court's conclusion that scienter is required in a private damages action under § 10(b). Id., at 201, 96 S.Ct., at 1384.
10
The statutory provision authorizing injunctive relief involved in the Capital Gains case was § 209(e) of the Investment Advisors Act, 15 U.S.C. § 80b-9(e), which provides in relevant part:
"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, . . . it may in its discretion bring an action in the proper district court 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, . . . a permanent or temporary injunction or decree or restraining order shall be granted without bond."
11
The Commission finds further support for its interpretation of § 10(b) as not requiring proof of scienter in injunctive proceedings in the fact that Congress was expressly informed of the Commission's interpretation on two occasions when significant amendments to the securities laws were enacted—the Securities Act Amendments of 1975, Pub.L. 94-29, 89 Stat. 97, and the Foreign Corrupt Practices Act of 1977, Pub.L. 95-213, 91 Stat. 1494—and on each occasion Congress left the administrative interpretation undisturbed. See S.Rep.No.94-75, p. 76 (1975), U.S.Code Cong. & Admin.News 1975, p. 179; H.R.Rep.No.95-640, p. 10 (1977). But, since the legislative consideration of those statutes was addressed principally to matters other than that at issue here, it is our view that the failure of Congress to overturn the Commission's interpretation falls far short of providing a basis to support a construction of § 10(b) so clearly at odds with its plain meaning and legislative history. See SEC v. Sloan, 436 U.S. 103, 119-121, 98 S.Ct. 1702, 1712-1713, 56 L.Ed.2d 148.
12
The Court in Capital Gains concluded: "Thus, even if we were to agree with the courts below that Congress had intended, in effect, to codify the common law of fraud in the Investment Advisers Act of 1940, it would be logical to conclude that Congress codified the common law 'remedially' as the courts had adapted it to the prevention of fraudulent securities transactions by fiduciaries, not 'technically' as it has traditionally been applied in damage suits between parties to arm's-length transactions involving land and ordinary chattels." 375 U.S., at 195, 84 S.Ct., at 284 (emphasis added).
13
Webster's International Dictionary (2d ed. 1934) defines (1) "device" as "[t]hat which is devised, or formed by design; a contrivance; an invention; project; scheme; often, a scheme to deceive; a stratagem; an artifice," (2) "scheme" as "[a] plan or program of something to be done; an enterprise; a project; as, a business scheme[, or] [a] crafty, unethical project," and (3) "artifice" as a "[c]rafty device; trickery; also, an artful stratagem or trick; artfulness; ingeniousness."
14
In addition, the Court in Hochfelder noted that the term "to employ," which appears in both § 10(b) and § 17(a)(1), is "supportive of the view that Congress did not intend § 10(b) to embrace negligent conduct." 425 U.S., at 199, n. 20, 96 S.Ct., at 1384, n. 20.
15
During the House hearings, H.R. 5480 was substituted for H.R. 4314. See H.R. 5480, 73d Cong., 1st Sess. (May 4, 1933).
16
The House Committee also renumbered § 13 as § 16(a), divided the provision into three subparagraphs, and modified the language of the second subparagraph in a manner not relevant here. See H.R. 5480, 73d Cong., 1st Sess., § 16(a) (May 4, 1933).
17
Although explaining that the "dummy" provision in the Senate bill was deleted from § 13 because it was substituted in modified form elsewhere in the statute, H.R. Conf. Rep. No. 152, 73d Cong., 1st Sess., 27 (1933), the Conference Report contained no explanation of why the Conference Committee acquiesced in the decision of the House to delete the word "willfully" from § 13. That the Committee failed to explain why it followed the House bill in this regard is not in itself significant, since the Conference Report, by its own terms, purported to discuss only the "differences between the House bill and the substitute agreed upon by the conferees." Id., at 24. The deletion of the word "willfully" was common to both the House bill and the Conference substitute.
18
The Commission, in further support of its view that scienter is not required under any of the subparagraphs of § 17(a), points out that § 17(a) was patterned upon New York's Martin Act, N. Y. Gen. Bus. Law §§ 352-353 (Consol.1921), and that the New York Court of Appeals had construed the Martin Act as not requiring a showing of scienter as a predicate for injunctive relief by the New York Attorney General. People v. Federated Radio Corp., 244 N.Y. 33, 154 N.E. 655 (1926). But, in the absence of any indication that Congress was even aware of the Federated Radio decision, much less that it approved of that decision, it cannot fairly be inferred that Congress intended to adopt not only the language of the Martin Act, but also a state judicial interpretation of that statute at odds with the plain meaning of the language Congress enacted as § 17(a)(1).
19
Since the language and legislative history of § 17(a) are dispositive, we have no occasion to address the "policy" arguments advanced by the parties. See Ernst & Ernst v. Hochfelder, 425 U.S., at 214, n. 33, 96 S.Ct., at 1391, n. 33.
1
The word "willfully" was originally included in the draft of what was to become § 17(a) of the 1933 Act, and both Houses of Congress considered the addition of the phrase "with intent to defraud" to the language of that provision. That phrase ultimately was inserted by the Senate, but the bill that emerged from conference lacked either of the references to a state-of-mind requirement. See H.R. 4314, § 13, 73d Cong., 1st Sess. (Mar. 29, 1933); S. 875, § 13, 73d Cong., 1st Sess. (Apr. 27, 1933); H.R.Conf.Rep.No. 152, 73d Cong., 1st Sess., 12, 26-27 (1933). The House bill, which as reported did not contain the words "willfully" and "intent to defraud," see H.R. 5480, § 16(a), 73d Cong., 1st Sess. (May 4, 1933), was used by the conferees as their working draft. See Landis, The Legislative History of the Securities Act of 1933, 28 Geo.Wash.L.Rev. 29, 45 (1959).
The Court suggests that no meaning should be attributed to these events, because Congress never explained its reasons for deleting this explicit state-of-mind language. At 699-700. But the Conference Report, which discussed differences between the House bill and the Conference substitute, noted that the conferees had adopted from the Senate bill several "minor and clarifying changes" that were intended "to make clear and effective the administrative procedure provided for and to remove uncertainties" concerning the powers of the Commission. H.R.Conf.Rep.No.152, 73d Cong., 1st Sess., 24 (1933). If the Court were correct in its interpretation of § 17(a)(1), retention of the Senate's explicit state-of-mind language undoubtedly would have added clarity to congressional intent. In light of the other changes to which the House acceded, it is thus difficult, on the Court's theory, to understand why this change would not have been adopted as well. Moreover, Congress was well aware of the significance that addition or deletion of these terms would have. See 77 Cong.Rec. 2994 (1933) (colloquy between Sens. Fess and Fletcher); id., at 2919 (remarks of Rep. Rayburn). It is also noteworthy that, when the 1934 Act was under consideration, a proposal was placed before Congress to amend § 17(a) to limit it to conduct that was undertaken "willfully and with intent to deceive." 78 Cong.Rec. 8703 (1934). The proposal was voted down. Id., at 8708.
2
I perceive no reason why the misrepresentations concerning Lawn-A-Mat Chemical & Equipment Corp. spread by petitioner's brokerage house would not qualify as a "device . . . to defraud," within the meaning of § 17(a)(1), or as a "deceptive device" in contravention of Rule 10b-5, within the meaning of § 10(b). I do not regard the word "deceptive," which focuses more on effect than on purpose, as adding significant connotations of scienter to the word "device." In light of the Court's disposition of this case, I shall not consider whether the misrepresentations might be reached under § 17(a)(2) or § 17(a)(3) as well, or whether the facts of the case establish scienter, as the District Court found.
3
See, e. g., Federal Securities Act, Hearings on H.R. 4314 before the House Committee on Interstate and Foreign Commerce, 73d Cong., 1st Sess., 11, 95, 109, 112 (1933); Securities Act: Hearings on S. 875 before the Senate Committee on Banking and Currency, 73d Cong., 1st Sess., 71, 146-147, 156, 170, 245-246, 253 (1933); see also 78 Cong.Rec. 8096 (1934). For a general discussion of state precursors and their consideration by Congress, see 1 L. Loss, Securities Regulation 33-34, 35-43 (2d ed. 1961).
4
Nor is there any danger that actions for prophylactic relief brought by the Commission will result in the " 'broadening of the class of plaintiff who may sue in this area of the law,' " that has been an animating concern of the Court's decisions limiting the scope of private damages actions under § 10(b). Ernst & Ernst v. Hochfelder, 425 U.S. 185, 214, n. 33, 96 S.Ct. 1375, 1391, n. 33, 47 L.Ed.2d 668 (1976), quoting Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 747-748, 95 S.Ct. 1917, 1931, 44 L.Ed.2d 539, 44 L.Ed.2d 539 (1975). Compare Ultramares Corp. v. Touche, 255 N.Y. 170, 179-180, 174 N.E. 441, 444 (1931), with People v. Federated Radio Corp., 244 N.Y. 33, 154 N.E. 655 (1926).
5
The prohibition in § 5 of the 1933 Act, 15 U.S.C. § 77e, against selling securities without an effective registration statement has been interpreted to require no showing of scienter. See, e. g., SEC v. Spectrum, Ltd., 489 F.2d 535, 541-542 (CA2 1973); SEC v. North American Research & Development Corp., 424 F.2d 63, 73-74 (CA2 1970). See also § 8(b), 15 U.S.C. § 77h(b) (power to withhold registration effectiveness); § 8(d), 15 U.S.C. § 77h(d) (power to issue "stop order" suspending registration effectiveness). The 1934 Act incorporated the culpability requirements for Commission remedies that the 1933 Act had established, although it did set a scienter standard for SEC remedies of criminal prosecution and administrative revocation of broker-dealer registrations. See Securities Exchange Act of 1934, Tit. II, § 210, 48 Stat. 908-909.
6
For cases involving § 10(b) see, e. g., SEC v. World Radio Mission, 544 F.2d 535, 541, n. 10 (CA1 1976); SEC v. Management Dynamics, Inc., 515 F.2d 801, 809 (CA2 1975); SEC v. Manor Nursing Centers, Inc., 458 F.2d 1082, 1096 (CA2 1972); SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 863 (CA2 1968), cert. denied sub nom. Coates v. SEC, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969); SEC v. Dolnick, 501 F.2d 1279, 1284 (CA7 1974); SEC v. Geyser Minerals Corp., 452 F.2d 876, 880-881 (CA10 1971). For cases involving § 17(a) see, e. g., SEC v. World Radio Mission, supra; SEC v. Coven, 581 F.2d 1020, 1026 (CA2 1978), cert. denied, 440 U.S. 950, 99 S.Ct. 1432, 59 L.Ed.2d 640 (1979); SEC v. American Realty Trust, 586 F.2d 1001, 1006-1007 (CA4 1978); SEC v. Van Horn, 371 F.2d 181, 185-186 (CA7 1966); SEC v. Geyser Minerals Corp., supra. Because several of the latter cases turn on interpretations of § 17(a)(2) or § 17(a)(3), they do not necessarily conflict in result with today's decision.
7
When questioned about civil liability, the drafters of the 1933 Act strongly defended the theory that it would be preferable to place liability for negligent misstatements on the shoulders of those responsible for their dissemination rather than to require innocent investors to suffer in silence. Judge Alexander Holtzoff, then Special Assistant to the Attorney General of the United States, put it this way:
"Criminal liability is based only on knowingly making a false statement. But civil liability exists even in the case of an innocent mistake. Let us assume that an innocent mistake is made and an investor loses money because of it. Now, who should suffer? The man who loses the money or the man who puts the mistake in circulation knowing that other people will rely upon that mistaken statement?" Securities Act, Hearings on S. 875 before the Senate Committee on Banking and Currency, 73d Cong., 1st Sess., 207 (1933).
See also Federal Securities Act, Hearings on H.R. 4314 before the House Committee on Interstate and Foreign Commerce, 73d Cong., 1st Sess., 124-125 (1933) (testimony of Ollie M. Butler, Foreign Service Division, Department of Commerce).
8
In recognition of the importance to the investing public of the Commission's authority to prevent negligent misstatements, the proposed Federal Securities Code drafted by the American Law Institute provides the Commission with power to obtain injunctions preventing deception and misrepresentation without proof of scienter. ALI, Federal Securities Code §§ 262(d), 297(a), 1602(a), 1819(a)(3), 1819(a)(4) (Prop. Off. Draft 1978). The ALI Code has been approved by the American Bar Association, 65 A.B.A.J. 341 (1979).
9
In 1975, Congress undertook relatively substantial revision of the securities laws. Securities Acts Amendments of 1975, Pub.L. 94-29, 89 Stat. 97; see Securities Acts Amendments of 1975: Hearings on S. 249 before the Subcommittee on Securities of the Senate Committee on Banking, Housing, and Urban Affairs, 94th Cong., 1st Sess., 1 (1975). In the course of its deliberations, Congress had occasion to consider the scope of Commission injunctive remedies. In reliance on the different purposes of Commission enforcement proceedings and private actions, Congress enacted § 21(g) of the Act, 15 U.S.C. § 78u(g), which provides that, absent consent from the Commission, private actions may not be consolidated with Commission proceedings. The Senate Committee in charge of the legislation observed that Commission enforcement actions and private suits for damages, though both civil in nature, "are very different," and it explained that private suits involve complications that are not present when the Commission seeks injunctive relief:
"Private actions frequently will involve more parties and more issues than the Commission's enforcement action, thus greatly increasing the need for extensive pretrial discovery. In particular, issues related to . . . scienter, causation, and the extent of damages, are elements not required to be demonstrated in a Commission injunctive action." S.Rep.No.94-75, p. 76 (1975), U.S.Code Cong. & Admin. News 1975, p. 254 (emphasis in original).
In 1977, following the decision in Ernst & Ernst v. Hochfelder, Congress re-examined the Commission's enforcement authority, this time in connection with the Foreign Corrupt Practices Act of 1977, Pub.L. 95-213, 91 Stat. 1494. Case law was discussed in some detail, and express approval was given to judicial decisions holding that scienter was not required when the SEC sought injunctive relief under Rule 10b-5. The responsible Committee in the House of Representatives declared:
"In the context of an SEC action to enjoin future violations of the securities laws, a defendant's state of mind should make no difference. The
harm to the public is the same regardless of whether or not the violative conduct involved scienter. Because an SEC enforcement action is designed to protect the public against the recurrence of violative conduct, and not to punish a state of mind, this Committee intends that scienter is not an element of any Commission enforcement proceeding." H.R.Rep.No.95-640, p. 10 (1977).
As expressions of later Congresses, these statements, of course, do not control the meaning of provisions enacted in 1933 and 1934. Yet the views of a subsequent Congress are entitled to some weight, particularly when that Congress undertakes significant revision of the statute but leaves the disputed provision intact. Cf., e. g., Andrus v. Allard, 444 U.S. 51, 59, n. 10, 100 S.Ct. 318, 323, 62 L.Ed.2d 210 (1979); United States v. Rutherford, 442 U.S. 544, 553-554, 99 S.Ct. 2470, 2476-2477, 61 L.Ed.2d 68 (1979); Board of Governors v. First Lincolnwood Corp., 439 U.S. 234, 248, 99 S.Ct. 505, 513, 58 L.Ed.2d 484 (1978); NLRB v. Bell Aerospace Co., 416 U.S. 267, 274-275, 94 S.Ct. 1757, 1761-1762, 40 L.Ed.2d 134 (1974).
| 78
|
447 U.S. 54
100 S.Ct. 2024
64 L.Ed.2d 723
NEW YORK GASLIGHT CLUB, INC., et al., Petitioners,v.Cidni CAREY.
No. 79-192.
Argued Feb. 19, 1980.
Decided June 9, 1980.
Syllabus
Section 706(k) of Title VII of the Civil Rights Act of 1964 provides that in "any action or proceeding under this title" the court may allow attorney's fees to "the prevailing party," other than the Equal Employment Opportunity Commission (EEOC) or the United States. Alleging that petitioners had denied her employment because of her race, respondent filed an employment discrimination charge with the EEOC, which, as required by Title VII, forwarded the complaint to the appropriate New York administrative agency. Respondent was represented by counsel throughout administrative and judicial proceedings in the state system, which proceedings ultimately resulted in affirmance of the state agency's order directing petitioners to offer respondent employment and pay back wages but not awarding attorney's fees. Meanwhile, the EEOC reassumed jurisdiction and, under § 706(f) of Title VII, issued a right-to-sue letter to respondent, who filed suit in Federal District Court, alleging a claim under Title VII, inter alia, and seeking appropriate relief, including attorney's fees. Petitioners having agreed to comply with the state agency's order, the District Court dismissed the federal action, except for respondent's request for attorney's fees, including fees for her attorney's services in the state proceedings. The court later denied the fee request, ruling that although the EEOC's issuance of a right-to-sue letter had forced respondent to preserve her rights by filing a complaint in federal court, the mere filing of a federal suit did not entitle an aggrieved party to attorney's fees, and that respondent had the option of pursuing her state administrative remedies without incurring any expenses for legal services, since state law provides that the case in support of the complaint is to be presented to the administrative hearing examiner by one of the state agency's attorneys. The Court of Appeals reversed.
Held : Sections 706(f) and 706(k) of Title VII authorize a federal-court action to recover an award of attorney's fees for work done by the prevailing complainant in state administrative and judicial proceedings to which the complainant was referred pursuant to the provisions of Title VII, and no special circumstances exist in this case that would justify denial of a fee award. Pp. 60-71.
(a) Congress' use of the broadly inclusive disjunctive phrase "any action or proceeding" in § 706(k) indicates an intent to subject the losing party to an award of attorney's fees and costs that includes expenses incurred for administrative proceedings. Other provisions of the statute that interact with § 706(k), the purpose of § 706(k) to facilitate the bringing of discrimination complaints, the humanitarian remedial policies of Title VII, and the statute's structure of cooperation between federal and state enforcement authorities—calling for deferral to state proceedings, with proceedings before the EEOC and in federal courts being supplements to available state remedies—all point to the conclusion that fee awards are authorized for work done in state administrative or judicial proceedings as well as in federal proceedings. Since Congress intended to authorize fee awards for work done in administrative proceedings, § 706(f)(1)'s authorization of a civil suit in federal court encompasses a suit solely to obtain an award of attorney's fees for legal work done in state or local proceedings. Pp. 60-66.
(b) Awarding fees for work done in state proceedings for which the State does not authorize fees does not infringe on the State's powers under the Tenth Amendment, since Congress' power under § 5 of the Fourteenth Amendment is broad and overrides any interest the State might have in not authorizing awards for fees. Nor is there any merit in the argument that Congress' intent to pre-empt the state law has not been clearly expressed. Section 706(k) does not "pre-empt" state law, since § 706(f)(1) merely provides a supplemental right to sue in federal court if satisfactory relief is not obtained in state forums, and one aspect of complete relief is an award of attorney's fees, which Congress considered necessary for the fulfillment of federal goals. And even if it can be said that § 706(k) pre-empts the state rule, Congress' intent to achieve this result is manifest. Furthermore, the availability under New York law of an agency attorney to present the case in support of the complaint at the public hearing is not a "special circumstance" depriving a prevailing complainant of a fee award, since a private attorney is needed to assist the complainant during administrative procedures before and after the public-hearing stage, and even if an agency attorney appears at the public hearing, he does not represent the complainant's interests, but rather those of the State. Pp. 66-70.
598 F.2d 1253, affirmed.
Albert N. Proujansky, New York City, for petitioners.
James I. Meyerson, New York City, for respondent.
Harriet S. Shapiro, Washington, D.C., for the United States et al ., as amici curiae, by special leave of Court.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
This case presents the question whether, under Title VII of the Civil Rights Act of 1964, a federal court may allow the prevailing party attorney's fees for legal services performed in prosecuting an employment discrimination claim in state administrative and judicial proceedings that Title VII requires federal claimants to invoke.
2
* Respondent Cidni Carey, in August 1974, applied for work as a cocktail waitress with petitioner New York Gaslight Club, Inc. After an interview, she was advised that no position was available.
3
The following January, respondent filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging that petitioners, the Club and its manager, had denied her a position because of her race. App. to Brief for Respondent a1-a3. As required by § 706(c) of Title VII of the Civil Rights Act of 1964, 78 Stat. 259, as redesignated, 86 Stat. 104, 42 U.S.C. § 2000e-5(c), respondent's complaint was forwarded to the New York State Division of Human Rights (Division).
4
In May 1975, after an investigation during which respondent was represented by counsel,1 the Division found probable cause to believe that petitioners had engaged in an unlawful discriminatory practice. Efforts at conciliation failed, and the Division, pursuant to N.Y.Exec.Law § 297(4)(a) (McKinney Supp.1979), recommended that a public hearing be held.
5
Counsel for respondent wrote to the EEOC on May 20, advising the Commission that respondent was proceeding in the Division. He asked that the Commission "reassume" jurisdiction over the claim so that, if necessary, respondent could obtain a right-to-sue letter at an appropriate time. On May 22, the EEOC responded, stating that an investigator would be assigned to respondent's matter as soon as possible.
6
The state administrative hearing was held on two separate days in late 1975 and early 1976. Both respondent and petitioners were represented by counsel. App. 68. No attorney for the State appeared. On August 13, 1976, the hearing examiner found that petitioners had discriminated against respondent because she is black. Id., at 70. Petitioners were ordered to offer respondent employment as a cocktail waitress and to pay her back wages from August 1974. Id., at 70-72. No attorney's fee was awarded.
7
Petitioners appealed to the New York State Human Rights Appeal Board, an agency established to hear appeals from orders of the Division. N.Y.Exec.Law § 297-a (McKinney 1972 and Supp.1979). The Board held a hearing in December 1976 at which counsel for petitioners, respondent, and the Division appeared.
8
Meanwhile, EEOC proceedings had begun. Giving due weight to the state finding of probable cause, see § 706(b), 42 U.S.C. § 2000e-5(b), the EEOC determined that there was reasonable cause to believe petitioners had violated Title VII. The EEOC's attempts at conciliation also failed. The Commission's General Counsel chose not to sue, and, as required by § 706(f)(1), § 2000e-5(f)(1), the EEOC issued respondent a right-to-sue letter. This was issued on July 13, 1977; respondent, under § 706(f)(1), then had 90 days to file a Title VII action in federal district court.
9
On August 26, the Appeal Board confirmed the Division's order. Petitioners immediately appealed the Board's decision to the New York Supreme Court. The Division cross-petitioned for enforcement of its order.
10
On September 30, respondent filed suit in the United States District Court for the Southern District of New York, asserting claims under the Civil Rights Act of 1866, 42 U.S.C. § 1981, Title VII, and the Thirteenth Amendment. App. 29. Respondent alleged that petitioners did not hire her because she is black, and that petitioner Club had employed only four blacks as waitresses during its 20-year existence. The complaint sought a declaratory judgment that petitioners' practices were unlawful under federal law, an order requiring petitioners to hire respondent, backpay with interest, retroactive employment-related benefits, attorney's fees, and other appropriate relief. Petitioners' answer denied virtually all the allegations in the complaint and cited the pendency of the state proceedings as an affirmative defense.
11
The Appellate Division of the New York Supreme Court on November 3 unanimously affirmed the Appeal Board's determination. New York Gaslight Club, Inc. v. New York State Human Rights Appeal Board, 59 App.Div.2d 852, 399 N.Y.S.2d 158 (1977). Petitioners unsuccessfully moved for reargument, and then filed a motion with the New York Court of Appeals for leave to appeal.
12
On February 3, 1978, while that motion was pending, the Federal District Court held a pretrial conference, after which petitioners agreed that if the state court denied their motion for leave to appeal, they would comply with the Division's order. App. 73. One week later the New York Court of Appeals denied petitioners' motion. 43 N.Y.2d 951 (1978).
13
The parties thereafter apparently agreed that the federal action could be dismissed, except for respondent's request for attorney's fees. See App. 75-79. Respondent sought an award for 82 hours of attorney's time. Of that total, 9 hours were spent in preparing and filing the EEOC charge and the federal suit, 22 hours were spent in preparing and presenting the case before the hearing examiner, 29 hours were spent in defending the Division's order before the Appeal Board and the state courts, and 22 hours were spent seeking the fee award. App. to Pet. for Cert. A39-A40.
14
In July 1978, the District Court dismissed respondent's complaint, App. 35, but left pending the application for attorney's fees. After further briefing, the court denied the fee request. 458 F.Supp. 79 (SDNY 1978).
15
The District Court found the propriety of the EEOC's issuance of a right-to-sue letter while state proceedings were pending "very doubtful." Id., at 80. Although the EEOC's action had given respondent no choice but to preserve her rights by filing a complaint in federal court, the District Court ruled that the mere filing of a federal suit does not entitle an aggrieved party to attorney's fees. The court reasoned that the fortuity of a need to file a protective federal suit should not make the defendants responsible for the costs of representing the plaintiff in the state forums. Id., at 81.
16
The District Court also relied on its conclusion that respondent "had the option of pursuing her state administrative remedies without incurring any expenses at all for legal services," since state law, N.Y.Exec.Law § 297(4)(a) (McKinney Supp.1978), provides that the case in support of the complaint is to be presented to the hearing examiner by one of the attorneys for the Division. 458 F.Supp., at 81. The decision in Parker v. Califano, 182 U.S.App.D.C. 322, 561 F.2d 320 (1977), upholding an award of attorney's fees for prosecution of a federal employee's Title VII claim in mandatory preliminary proceedings within the employee's agency, was distinguished on the ground that the agency did not provide an independent attorney to prosecute the complaint. 458 F.Supp., at 81.
17
A divided panel of the United States Court of Appeals for the Second Circuit reversed. 598 F.2d 1253 (1979). The court ruled: "A complaining party who is successful in state administrative proceedings after having her complaint under Title VII referred to a state agency in accordance with the statutory scheme of that Title is entitled to recover attorney's fees in the same manner as a party who prevails in federal court." Id., at 1260. The court relied on several factors in reaching its decision. Among them were the significant role of state human rights agencies in the Title VII enforcement scheme; the statute's strong preference for administrative resolution of a discrimination complaint; the importance of providing an incentive for complete development of the administrative record; the language of the statute's fee provision; and the desirability of encouraging a complainant to retain private counsel notwithstanding participation of a Division attorney at certain points during the state proceedings.
18
We granted certiorari, 444 U.S. 897, 100 S.Ct. 204, 62 L.Ed.2d 132 (1979), to consider this question that is significant to the enforcement of the antidiscrimination provisions of Title VII.
II
19
Section 706(k) of the Civil Rights Act of 1964, 78 Stat. 261, 42 U.S.C. § 2000e-5(k), provides:
20
"In any action or proceeding under this title the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee as part of the costs." The question presented is whether, in the words of the statute, respondent was the "prevailing party" in an "action or proceeding under this title." An examination of the language and history of the statute, the nature of the proceedings in which respondent participated, and the relationship of those proceedings to Title VII's enforcement mechanisms, together persuade us that Congress clearly intended to authorize awards of attorney's fees to persons in respondent's situation.
21
The words of § 706(k) leave little doubt that fee awards are authorized for legal work done in "proceedings" other than court actions. Congress' use of the broadly inclusive disjunctive phrase "action or proceeding" indicates an intent to subject the losing party to an award of attorney's fees and costs that includes expenses incurred for administrative proceedings. This conclusion is supported by a comparison of § 706(k) with another fee provision in the same Act, namely, § 204(b) of Title II, 78 Stat. 244, 42 U.S.C. § 2000a-3(b). The pertinent language of § 204(b) is identical to that of § 706(k) except that § 204(b) permits an award only with respect to "any action commenced pursuant to this title." The two provisions were enacted contemporaneously as parts of the Civil Rights Act of 1964. The omission of the words "or proceeding" from § 204(b) is understandable, since enforcement of Title II depends solely on court actions. See Newman v. Piggie Park Enterprises, 390 U.S. 400, 401, 88 S.Ct. 964, 965, 19 L.Ed.2d 1263 (1968). It is apparent, therefore, that the two fee provisions were carefully tailored to the enforcement scheme of each Title. It cannot be assumed that the words "or proceeding" in § 706(k) are mere surplusage.
22
It might be argued that the words "or proceeding" authorize fee awards only for work done in federal administrative proceedings,2 such as those before the EEOC, but not for state administrative or state judicial proceedings. This reading at least would not render the words "or proceeding" a complete nullity. We find nothing in the statute, however, to suggest that Congress intended to draw this particular line. Rather, other provisions of the statute that interact with § 706(k); the purpose of § 706(k); the humanitarian remedial policies of Title VII; and the statute's structure of cooperation between federal and state enforcement authorities, all point to the opposite conclusion.
23
Section 706(k) authorizes a fee award to the prevailing party in "any . . . proceeding under this title." (Emphasis added.) The same Title creates the system of deferral to state and local remedies. The statute uses the word "proceeding" to describe the state and local remedies to which complainants are required to resort. For example, § 706(c), 86 Stat. 104, provides:
24
"[N]o charge may be filed . . . before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated . . . . If any requirement for the commencement of such proceedings is imposed by a State or local authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent . . . ." (Emphasis added).
25
Indeed, throughout Title VII the word "proceeding," or its plural form, is used to refer to all the different types of proceedings in which the statute is enforced, state and federal, administrative and judicial.3 The conclusion that fees are authorized for work done at the state and local levels is inescapable.
26
This Court recently examined the legislative history and purpose of § 706(k). In Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978), it was noted that, although the legislative history of § 706(k) is "sparse," 434 U.S., at 420, 98 S.Ct., at 699, it is clear that one of Congress' primary purposes in enacting the section was to "make it easier for a plaintiff of limited means to bring a meritorious suit." Ibid., quoting 110 Cong.Rec. 12724 (1964) (remarks of Sen. Humphrey). Because Congress has cast the Title VII plaintiff in the role of "a private attorney general," vindicating a policy "of the highest priority," a prevailing plaintiff "ordinarily is to be awarded attorney's fees in all but special circumstances." 434 U.S., at 416, 417, 98 S.Ct., at 698. See also Newman v. Piggie Park Enterprises, 390 U.S., at 402, 88 S.Ct., at 966. It is clear that Congress intended to facilitate the bringing of discrimination complaints. Permitting an attorney's fee award to one in respondent's situation furthers this goal, while a contrary rule would force the complainant to bear the costs of mandatory state and local proceedings and thereby would inhibit the enforcement of a meritorious discrimination claim.
27
Title VII establishes a comprehensive enforcement scheme in which state agencies are given "a limited opportunity to resolve problems of employment discrimination and thereby to make unnecessary resort to federal relief by victims of the discrimination." Oscar Mayer & Co. v. Evans, 441 U.S. 750, 755, 99 S.Ct. 2066, 2071, 60 L.Ed.2d 609 (1979). Congress envisioned that Title VII's procedures and remedies would "mes[h] nicely, logically, and coherently with the State and city legislation," and that remedying employment discrimination would be an area in which "[t]he Federal Government and the State governments could cooperate effectively." 110 Cong.Rec. 7205 (1964) (remarks of Sen. Clark).
28
Pursuant to this policy of cooperation, Title VII provides that where the unlawful employment practice is alleged to have occurred in a State or locality which has a law prohibiting the practice and in which an agency has been established to enforce that law, "no charge may be filed [with the EEOC] by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated." § 706(c). In practice, § 706(c) has resulted in EEOC's development of a referral and deferral system, which the Court approved in Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972). When a charge is filed with the EEOC prior to exhaustion of state or local remedies, the Commission refers the complaint to the appropriate local agency. The EEOC then holds the complaint in "suspended animation." Id., at 526, 92 S.Ct., at 618. Upon termination of the state proceedings or expiration of the 60-day deferral period, whichever comes first, the EEOC automatically assumes concurrent jurisdiction of the complaint. Ibid.4
29
Of course, the "ultimate authority" to secure compliance with Title VII resides in the federal courts. Alexander v. Gardner-Denver Co., 415 U.S. 36, 44-45, 94 S.Ct. 1011, 1017-1018, 39 L.Ed.2d 147 (1974). The statute authorizes civil enforcement actions by both the EEOC and the private plaintiff. After the deferral period, the EEOC assumes jurisdiction, and, "as promptly as possible" it determines whether there is probable cause to believe that the charge is true. § 706(b). After an additional 30 days, the EEOC is authorized to bring an action, in which the complainant has an absolute right to intervene. § 706(f). If the Commission does not file suit, or enter into a conciliation agreement to which the complainant is a party, within 180 days after it reassumes jurisdiction, it must issue a "right to sue" letter notifying the complainant of his right to bring an action within 90 days. Ibid.5
30
It is clear from this scheme of interrelated and complementary state and federal enforcement that Congress viewed proceedings before the EEOC and in federal court as supplements to available state remedies for employment discrimination. Initial resort to state and local remedies is mandated, and recourse to the federal forums is appropriate only when the State does not provide prompt or complete relief. See Alexander v. Gardner-Denver Co., 415 U.S., at 48-50, 94 S.Ct., at 1019-1021.
31
The construction of § 706(k) that petitioners advocate clashes with this congressional design. Complainants unable to recover fees in state proceedings may be expected to wait out the 60-day deferral period, while focusing efforts on obtaining federal relief. See n. 6, infra. Only authorization of fee awards ensures incorporation of state procedures as a meaningful part of the Title VII enforcement scheme.
32
The District Court felt that granting a fee award to respondent would be a "windfall" based on the unforeseeable fortuity that filing a protective federal suit became necessary. 458 F.Supp., at 81. We agree with the District Court that the availability of a federal fee award for work done in state proceedings following EEOC referral and deferral should not depend upon whether the complaint ultimately finds it necessary to sue in federal court to obtain relief other than attorney's fees. But our agreement with the District Court compels us to reject its conclusion. It would be anomalous to award fees to the complainant who is unsuccessful or only partially successful in obtaining state or local remedies, but to deny an award to the complainant who is successful in fulfilling Congress' plan that federal policies be vindicated at the state or local level. Since it is clear that Congress intended to authorize fee awards for work done in administrative proceedings, we must conclude that § 706(f)(1)'s authorization of a civil suit in federal court encompasses a suit solely to obtain an award of attorney's fees for legal work done in state and local proceedings.6
III
33
Against the strong considerations favoring an award of fees, petitioners make three arguments. First, they contend that awarding fees for work done in state proceedings for which the State does not authorize fees7 infringes on the State's powers under the Tenth Amendment. Second, they argue that Congress' intent to pre-empt the state law has not been clearly expressed. Third, they contend that even if § 706(k) authorizes fees for work done in state proceedings in some instances, denial of an award here was within the District Court's discretion.
34
We must reject petitioners' Tenth Amendment argument. Congress' power under § 5 of the Fourteenth Amendment is broad, and overrides any interest the State might have in not authorizing awards for fees in connection with state proceedings. See Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978); Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976).
35
Petitioners cite Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 929, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963); Schwartz v. Texas, 344 U.S. 199, 73 S.Ct. 232, 97 L.Ed. 231 (1952), and Florida v. United States, 282 U.S. 194, 51 S.Ct. 119, 75 L.Ed. 291 (1931), in support of their argument that Congress' intent to pre-empt state regulation of the administration of state proceedings is not clearly expressed in § 706(k) and should not be inferred. We find these cases inapposite. Section 706(k) does not "pre-empt" state law. "Title VII was designed to supplement, rather than supplant, existing laws and institutions relating to employment discrimination." Alexander v. Gardner-Denver Co., 415 U.S., at 48-49, 94 S.Ct., at 1020. Title VII explicitly leaves the States free, and indeed encourages them, to exercise their regulatory power over discriminatory employment practices. Title VII merely provides a supplemental right to sue in federal court if satisfactory relief is not obtained in state forums. § 706(f)(1). One aspect of complete relief is an award of attorney's fees, which Congress considered necessary for the fulfillment of federal goals. Provision of a federal award of attorney's fees is not different from any other aspect of the ultimate authority of federal courts to enforce Title VII. For example, if state proceedings result in an injunction in favor of the complainant, but no award for backpay because state law does not authorize it, the complainant may proceed in federal court to "supplement" the state remedy. The state law which fails to authorize backpay has not been pre-empted. In any event, if it can be said that § 706(k) pre-empts the state rule, we believe that Congress' intent to achieve this result is manifest.
36
We also find no merit in petitioners' suggestion that denial of a fee award was within the District Court's discretion. As noted earlier, the court's discretion to deny a fee award to a prevailing plaintiff is narrow. Absent "special circumstances," see Newman v. Piggie Park Enterprises, 390 U.S., at 402, 88 S.Ct., at 966; Christiansburg Garment Co. v. EEOC, 434 U.S., at 416-417, 98 S.Ct., at 697-698, fees should be awarded. Petitioners argue that the availability of a Division attorney to present the "case in support of the complaint" is a "special circumstance" which should deprive a prevailing complainant of a fee award. Clearly, however, an attorney is needed to assist the complainant during the state proceedings, and the Division employee does not take the place of private counsel.
37
The New York state procedure, to which respondent's charge was referred, provides for adversary quasi-judicial hearings leading to findings of fact, administrative appeals, and judicial review. The first stage of the state administrative action is the investigation; this results in either a finding of probable cause or a dismissal of the complaint. N.Y.Exec.Law § 297(2) (McKinney Supp.1979). A finding of probable cause after investigation is a necessary prelude to the public hearing. § 297(4)(a). State law makes no provision for the participation of a Division attorney in the investigation, and a complainant is not represented by a Division attorney at this preliminary stage. See Brief for New York State Attorney General and New York State Division of Human Rights as Amici Curiae 4-5.
38
Following the investigation, the Division attempts to conciliate the complainant's grievance with the employer. N.Y.Exec.Law §§ 297(3)(a), (b), and (c) (McKinney 1972). No Division attorney participates in the conciliation efforts on behalf of the complainant, and the Division staff is even empowered to execute a settlement agreement with the employer over the complainant's objections. § 297(3)(c).
39
If efforts at conciliation fail and a hearing is scheduled, state law provides:
40
"The case in support of the complaint shall be presented by one of the attorneys or agents of the division and, at the option of the complainant, by his attorney. With the consent of the division, the case in support of the complainant may be presented solely by his attorney." § 297(4)(a) (McKinney Supp.1979).
41
At the time of the hearing on respondent's complaint, however, the practice of the Division was to involve one of its attorneys only if the complainant was not represented by private counsel. Brief for New York State Attorney General and New York State Division of Human Rights as Amici Curiae 5.8 Complainants were "encouraged" to obtain private counsel due to a growing caseload and staff limitations. App. to Pet. for Cert. A58-A59.
42
At the appellate level, the Division attorney appears only to support and seek enforcement of orders issued by the Division and the Appeal Board. N.Y.Exec.Law § 298 (McKinney Supp.1979). The Division attorney does not represent the complainant on an appeal from an order adverse to the claimant. In addition, the Division cannot appeal from an order of the Human Rights Appeal Board reversing a Division order. See Brief for New York State Attorney General and New York Division of Human Rights as Amici Curiae 5-6.
43
It is thus obvious that the assistance provided a complainant by the Division attorney is not fully adequate, and that the attorney has no obligation to the complainant as a client. In fact, at times the position of the Division may be detrimental to the interests of the complainant and to enforcement of federal rights. Representation by a private attorney thus assures development of a complete factual record at the investigative stage and at the administrative hearing. At both, settlement is possible and is encouraged. A Division employee cannot act as the complainant's attorney for purposes of advising him whether to accept a settlement. Retention of private counsel will help assure that federal rights are not compromised in the conciliation process.
44
If a Division attorney appears at the public hearing, he does not represent the interests of the complainant, but rather those of the State. Id., at 5; App. to Pet. for Cert. A59-A60. He presents the "case in support of the complaint," not in support of the complainant. N.Y.Exec.Law § 297(4)(a) (McKinney Supp.1979). Upon appeal, the Division attorney is authorized only to support the order entered by the Division or the Appeal Board. Without doubt, the private attorney has an important role to play in preserving and protecting federal rights and interests during the state proceedings.9
45
In sum, we conclude that §§ 706(f) and 706(k) of Title VII authorize a federal-court action to recover an award of attorney's fees for work done by the prevailing complainant in state proceedings to which the complainant was referred pursuant to the provisions of Title VII. We also conclude that no special circumstances exist in this case that would justify denial of a fee award.
46
The judgment of the Court of Appeals is therefore affirmed.
47
It is so ordered.
48
THE CHIEF JUSTICE joins the Court's opinion except footnote 6 thereof; in his view, resolution of the issue dealt with in that footnote is not necessary.
49
Mr. Justice WHITE and Mr. Justice REHNQUIST would reverse the judgment essentially for the reasons given by Judge Mulligan in dissenting from the judgment of the Court of Appeals.
50
Mr. Justice STEVENS, concurring in the judgment.
51
While I agree with most of what is said in the Court's opinion, it is useful to emphasize that this federal litigation was commenced in order to obtain relief for respondent on the merits of her basic dispute with petitioners, and not simply to recover attorney's fees. Whether Congress intended to authorize a separate federal action solely to recover costs, including attorney's fees, incurred in obtaining administrative relief in either a deferral or a nondeferral State is not only doubtful but is a question that is plainly not presented by this record.
52
On July 13, 1977, when the EEOC issued respondent a letter notifying her that she had a right to file an action in federal court, and on September 30, 1977, when she commenced her federal-court action, state judicial review of the state administrative proceedings had not yet been completed. It was not until sometime in February 1978, after the federal judicial proceeding had been pending for several months, that all questions other than the fee issue were finally removed from the federal case. It is clear, therefore, that under the plain language of § 706(k) of the Civil Rights Act of 1964, 78 Stat. 261, 42 U.S.C. § 2000e-5(k),* the Federal District Court then had jurisdiction to allow the prevailing party to recover attorney's fees as a part of her costs.
53
A quite different question would be presented if, before any federal litigation were commenced, an aggrieved party had obtained complete relief in the administrative proceedings. It is by no means clear that the statute, which merely empowers a "court" to award fees, would authorize a fee allowance when there is no need for litigation in the federal court to resolve the merits of the underlying dispute. Indeed, it is not even clear that the EEOC has the authority to issue a "right to sue" letter, empowering the complainant to bring suit in federal court, after the complainant has obtained complete relief on the merits of his claim in administrative proceedings. See § 706(f)(1) of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e-5(f)(1). In any event, the facts of this case present no occasion for the Court's resolution of the issue, ante, at 66. All that needs to be decided is whether an allowance of fees may properly cover the work performed in the administrative proceedings that were a prerequisite to the court action. I agree with the Court's disposition of that issue, and would also observe that the same analysis would apply to work performed in appearing before the federal agency in a nondeferral State.
54
Accordingly, I concur in the judgment.
1
Respondent was represented by counsel employed by the NAACP Special Contribution Fund.
2
In cases involving federal employees, all the Court of Appeals that have considered the question have upheld fee awards under § 706(k) for work done in federal administrative proceedings that must be exhausted as a condition to filing an action in federal court. E. g., Brown v. Bathke, 588 F.2d 634, 638 (CA8 1978); Fischer v. Adams, 572 F.2d 406 (CA1 1978); Parker v. Califano, 182 U.S.App.D.C. 322, 561 F.2d 320 (1977); Foster v. Boorstin, 182 U.S.App.D.C. 342, 561 F.2d 340 (1977); Johnson v. United States, 554 F.2d 632 (CA4 1977).
3
See, e. g., § 706(f)(1), 78 Stat. 260, as redesignated, 86 Stat. 105, 42 U.S.C. § 2000e-5(f)(1) (court may stay "further proceedings" pending the termination of "State or local proceedings"); § 706(i), 78 Stat. 261, as amended, 86 Stat. 107, 42 U.S.C. § 2000e-5(i) (Commission may commence "proceedings" to compel compliance with court order).
4
Other provisions of Title VII also evidence the policy of promoting federal-state cooperation in enforcement. Section 706(b), 78 Stat. 259, as redesignated, 86 Stat. 104, 42 U.S.C. § 2000e-5(b), requires the EEOC to "accord substantial weight" to a state administrative determination, and § 709(b), 78 Stat. 262, as amended, 86 Stat. 108, 42 U.S.C. § 2000e-8(b), authorizes the EEOC to "cooperate with State and local agencies charged with the administration of State fair employment practices laws" in funding research and other mutually beneficial projects, and to enter into work-sharing agreements with those agencies to facilitate the processing of complaints.
5
We thus disagree with the District Court that the propriety of EEOC's issuance of the right-to-sue letter in this case is "very doubtful." 458 F.Supp. 79, 80 (SDNY 1978). As we read the statute, the Commission was required to issue the letter after 180 days, regardless of the posture of any state proceedings.
6
We note that if fees were authorized only when the complainant found an independent reason for suing in federal court under Title VII, such a ground almost always could be found. Section 706(f)(1) requires the EEOC to give the complainant a "right to sue" letter if, after it assumes concurrent jurisdiction over the complaint, it does not sue within 180 days. Thus, after waiting 240 days (60 days deferral to the state or local agency and 180 days for the EEOC to act after deferral), the complainant appears to have an absolute right to resort to an action in federal court. The federal court may stay the action for a maximum of 60 more days, to permit completion of state proceedings. § 706(f)(1). It took three years for the New York proceedings in this case finally to provide respondent all the relief she desired other than attorney's fees. It is doubtful that the systems of many States could provide complete relief within 240 days. The existence of an incentive to get into federal court, such as the availability of a fee award, would ensure that almost all Title VII complainants would abandon state proceedings as soon as possible. This, however, would undermine Congress' intent to encourage full use of state remedies.
7
The Human Rights Law of the State of New York does not authorize an award of counsel fees for work done in either state administrative or judicial proceedings. See State Commission for Human Rights v. Speer, 35 App.Div.2d 107, 111-112, 313 N.Y.S.2d 28, 33 (1970), rev'd on other grounds, 29 N.Y.2d 555, 324 N.Y.S.2d 297, 272 N.E.2d 884 (1971); State Division of Human Rights v. Gorton, 32 App.Div.2d 933, 934, 302 N.Y.S.2d 966, 968 (1969).
8
On October 18, 1977, Division regulations were amended to provide for the presentation of the case in support of the complaint solely by the attorney for the complainant, upon consent of the Division. The regulation requires the Division attorney to submit a statement to the hearing examiner in lieu of appearance. 9 N.Y.C.R.R. § 465.11(d)(2).
9
We also reject petitioners' argument, not suggested in the petition for certiorari, that respondent's representation by a public interest group is a "special circumstance" that should result in denial of counsel fees. Federal Courts of Appeals' decisions are to the contrary. See, e. g., Reynolds v. Coomey, 567 F.2d 1166 (CA1 1978); Torres v. Sachs, 538 F.2d 10, 13 (CA 2 1976). Congress endorsed such decisions allowing fees to public interest groups when it was considering, and passed, the Civil Rights Attorney's Fees Awards Act of 1976, 90 Stat. 2641, 42 U.S.C. § 1988, which is legislation similar in purpose and design to Title VII's fee provision. See H.R.Rep.No.94-1558, pp. 5 and 8, n. 16 (1976).
*
That section provides in part:
"In any action or proceeding under this title the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs . . . ."
| 56
|
447 U.S. 74
100 S.Ct. 2035
64 L.Ed.2d 741
PRUNEYARD SHOPPING CENTER and Fred Sahadi, Appellants,v.Michael ROBINS et al.
No. 79-289.
Argued March 18, 1980.
Decided June 9, 1980.
Syllabus
Soon after appellees had begun soliciting in appellant privately owned shopping center's central courtyard for signatures from passersby for petitions in opposition to a United Nations resolution, a security guard informed appellees that they would have to leave because their activity violated shopping center regulations prohibiting any visitor or tenant from engaging in any publicly expressive activity that is not directly related to the center's commercial purposes. Appellees immediately left the premises and later filed suit in a California state court to enjoin the shopping center and its owner (also an appellant) from denying appellees access to the center for the purpose of circulating their petitions. The trial court held that appellees were not entitled under either the Federal or California Constitution to exercise their asserted rights on the shopping center property, and the California Court of Appeal affirmed. The California Supreme Court reversed, holding that the California Constitution protects speech and petitioning, reasonably exercised, in shopping centers even when the center is privately owned, and that such result does not infringe appellants' property rights protected by the Federal Constitution.
Held:
1. This case is properly before this Court as an appeal under 28 U.S.C. § 1257(2). A state constitutional provision is a "statute" within the meaning of § 1257(2), and in deciding that the State Constitution gave appellees the right to solicit signatures on appellants' property, the California Supreme Court rejected appellants' claim that recognition of such a right violated their "right to exclude others," a fundamental component of their federally protected property rights. Pp. 79-80.
2. State constitutional provisions, as construed to permit individuals reasonably to exercise free speech and petition rights on the property of a privately owned shopping center to which the public is invited, do not violate the shopping center owner's property rights under the Fifth and Fourteenth Amendments or his free speech rights under the First and Fourteenth Amendments. Pp. 80-88.
(a) The reasoning in Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131—which held that the First Amendment does not prevent a private shopping center owner from prohibiting the distribution on center premises of handbills unrelated to the center's operations—does not ex proprio vigore limit a State's authority to exercise it police power or its sovereign right to adopt in its own constitution individual liberties more expansive than those conferred by the Federal Constitution. And a State, in the exercise of its police power, may adopt reasonable restrictions on private property so long as the restrictions do not amount to taking without just compensation or contravene any other federal constitutional provision. Pp. 80-81.
(b) The requirement that appellants permit appellees to exercise state-protected rights of free expression and petition on shopping center property does not amount to an unconstitutional infringement of appellants' property rights under the Taking Clause of the Fifth Amendment, appellants, having failed to demonstrate that the "right to exclude others" is so essential to the use or economic value of their property that the state-authorized limitation of it amounted to a "taking." Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332, distinguished. And there is no merit to appellants' argument that they have been denied property without due process of law, where they have failed to show that the due process test whereby the challenged law must not be unreasonable, arbitrary, or capricious and the means selected must have a real and substantial relation to the objective to be obtained, is not satisfied by the State's asserted interest in promoting more expansive rights of free speech and petition than conferred by the Federal Constitution. Pp. 82-85.
(c) Nor have appellants' First Amendment rights been infringed by the California Supreme Court's decision. The shopping center by choice of its owner is not limited to the personal use of appellants, and the views expressed by members of the public in passing out pamphlets or seeking signatures for a petition thus will not likely be identified with those of the owner. Furthermore, no specific message is dictated by the State to be displayed on appellants' property, and appellants are free to publicly dissociate themselves from the views of the speakers or handbillers. Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752; West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628; and Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730, distinguished. Pp. 85-88.
23 Cal.3d 899, 153 Cal.Rptr. 854, 592 P.2d 341, affirmed.
Max L. Gillam, Jr., Los Angeles, Cal., for appellants.
Philip L. Hammer, San Jose, Cal., for appellees.
Elinor H. Stillman, Washington, D. C., for United States, as amicus curiae, by special leave of Court.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
We postponed jurisdiction of this appeal from the Supreme Court of California to decide the important federal constitutional questions it presented. Those are whether state constitutional provisions, which permit individuals to exercise free speech and petition rights on the property of a privately owned shopping center to which the public is invited, violate the shopping center owner's property rights under the Fifth and Fourteenth Amendments or his free speech rights under the First and Fourteenth Amendments.
2
* Appellant PruneYard is a privately owned shopping center in the city of Campbell, Cal. It covers approximately 21 acres—5 devoted to parking and 16 occupied by walkways, plazas, sidewalks, and buildings that contain more than 65 specialty shops, 10 restaurants, and a movie theater. The PruneYard is open to the public for the purpose of encouraging the patronizing of its commercial establishments. It has a policy not to permit any visitor or tenant to engage in any publicly expressive activity, including the circulation of petitions, that is not directly related to its commercial purposes. This policy has been strictly enforced in a nondiscriminatory fashion. The PruneYard is owned by appellant Fred Sahadi.
3
Appellees are high school students who sought to solicit support for their opposition to a United Nations resolution against "Zionism." On a Saturday afternoon they set up a card table in a corner of PruneYard's central courtyard. They distributed pamphlets and asked passersby to sign petitions, which were to be sent to the President and Members of Congress. Their activity was peaceful and orderly and so far as the record indicates was not objected to by PruneYard's patrons.
4
Soon after appellees had begun soliciting signatures, a security guard informed them that they would have to leave because their activity violated PruneYard regulations. The guard suggested that they move to the public sidewalk at the PruneYard's perimeter. Appellees immediately left the premises and later filed this lawsuit in the California Superior Court of Santa Clara County. They sought to enjoin appellants from denying them access to the PruneYard for the purpose of circulating their petitions.
5
The Superior Court held that appellees were not entitled under either the Federal or California Constitution to exercise their asserted rights on the shopping center property. App. to Juris. Statement A-2. It concluded that there were "adequate, effective channels of communication for [appellees] other than soliciting on the private property of the [PruneYard]." Id. at A-3. The California Court of Appeal affirmed.
6
The California Supreme Court reversed, holding that the California Constitution protects "speech and petitioning, reasonably exercised, in shopping centers even when the centers are privately owned." 23 Cal.3d 899, 910, 153 Cal.Rptr. 854, 860, 592 P.2d 341, 347 (1979). It concluded that appellees were entitled to conduct their activity on PruneYard property. In rejecting appellants' contention that such a result infringed property rights protected by the Federal Constitution, the California Supreme Court observed:
7
" 'It bears repeated emphasis that we do not have under consideration the property or privacy rights of an individual homeowner or the proprietor of a modest retail establishment. As a result of advertising and the lure of a congenial environment, 25,000 persons are induced to congregate daily to take advantage of the numerous amenities offered by the [shopping center there]. A handful of additional orderly persons soliciting signatures and distributing handbills in connection therewith, under reasonable regulations adopted by defendant to assure that these activities do not interfere with normal business operations (see Diamond [v. Bland, 3 Cal.3d 653, 665, 91 Cal.Rptr. 501, 509, 477 P.2d 733, 741 (1970)]) would not markedly dilute defendant's property rights.' [Diamond v. Bland, 11 Cal.3d 331, 345, 113 Cal.Rptr. 468, 478, 521 P.2d 460, 470 (1974)] (dis. opn. of Mosk, J.).)" Id., at 910-911, 153 Cal.Rptr., at 860-861, 592 P.2d, at 347-348.
8
The California Supreme Court thus expressly overruled its earlier decision in Diamond v. Bland, 11 Cal.3d 331, 113 Cal.Rptr. 468, 521 P.2d 460 (Diamond II ), cert. denied, 419 U.S. 885, 95 S.Ct. 152, 42 L.Ed.2d 125 (1974), which had reached an opposite conclusion. 23 Cal.3d, at 910, 153 Cal.Rptr., at 860, 592 P.2d, at 347.1 Before this Court, appellants contend that their constitutionally established rights under the Fourteenth Amendment to exclude appellees from adverse use of appellants' private property cannot be denied by invocation of a state constitutional provision or by judicial reconstruction of a State's laws of private property. We postponed consideration of the question of jurisdiction until the hearing of the case on the merits. 444 U.S. 949, 100 S.Ct. 419, 62 L.Ed.2d 318. We now affirm.
II
9
We initially conclude that this case is properly before us as an appeal under 28 U.S.C. § 1257(2). It has long been established that a state constitutional provision is a "statute" within the meaning of § 1257(2). See, e. g., Torcaso v. Watkins, 367 U.S. 488, 489, 81 S.Ct. 1680, 1681, 6 L.Ed.2d 982 (1961); Adamson v. California, 332 U.S. 46, 48, n. 2, 67 S.Ct. 1672, 1673, n. 2, 91 L.Ed. 1903 (1947); Railway Express Agency, Inc. v. Virginia, 282 U.S. 440, 51 S.Ct. 201, 75 L.Ed. 450 (1931). Here the California Supreme Court decided that Art. 1, §§ 2 and 3, of the California Constitution gave appellees the right to solicit signatures on appellants' property in exercising their state rights of free expression and petition.2 In so doing, the California Supreme Court rejected appellants' claim that recognition of such a right violated appellants' "right to exclude others," which is a fundamental component of their federally protected property rights. Appeal is thus the proper method of review.
III
10
Appellants first contend that Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972), prevents the State from requiring a private shopping center owner to provide access to persons exercising their state constitutional rights of free speech and petition when adequate alternative avenues of communication are available. Lloyd dealt with the question whether under the Federal Constitution a privately owned shopping center may prohibit the distribution of handbills on its property when the handbilling is unrelated to the shopping center's operations. Id., at 552, 92 S.Ct., at 2221. The shopping center had adopted a strict policy against the distribution of handbills within the building complex and its malls, and it made no exceptions to this rule. Id., at 555, 92 S.Ct., at 2222.3 Respondents in Lloyd argued that because the shopping center was open to the public, the First Amendment prevents the private owner from enforcing the handbilling restriction on shopping center premises. Id., at 564, 92 S.Ct., at 2226.4 In rejecting this claim we substantially repudiated the rationale of Food Employees v. Logan Valley Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968), which was later overruled in Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976). We stated that property does not "lose its private character merely because the public is generally invited to use it for designated purposes," and that "[t]he essentially private character of a store and its privately owned abutting property does not change by virtue of being large or clustered with other stores in a modern shopping center." 407 U.S., at 569, 92 S.Ct., at 2229.
11
Our reasoning in Lloyd, however, does not ex proprio vigore limit the authority of the State to exercise its police power or its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution. Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 791, 17 L.Ed.2d 730 (1967). See also 407 U.S., at 569-570, 92 S.Ct., at 2229. In Lloyd, supra, there was no state constitutional or statutory provision that had been construed to create rights to the use of private property by strangers, comparable to those found to exist by the California Supreme Court here. It is, of course, well established that a State in the exercise of its police power may adopt reasonable restrictions on private property so long as the restrictions do not amount to a taking without just compensation or contravene any other federal constitutional provision. See, e. g., Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926); Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). Lloyd held that when a shopping center owner opens his private property to the public for the purpose of shopping, the First Amendment to the United States Constitution does not thereby create individual rights in expression beyond those already existing under applicable law. See also Hudgens v. NLRB, supra, at 517-521, 96 S.Ct., at 1035-1037.
IV
12
Appellants next contend that a right to exclude others underlies the Fifth Amendment guarantee against the taking of property without just compensation and the Fourteenth Amendment guarantee against the deprivation of property without due process of law.5
13
It is true that one of the essential sticks in the bundle of property rights is the right to exclude others. Kaiser Aetna v. United States, 444 U.S. 164, 179-180, 100 S.Ct. 383, 392-393, 62 L.Ed.2d 332 (1979). And here there has literally been a "taking" of that right to the extent that the California Supreme Court has interpreted the State Constitution to entitle its citizens to exercise free expression and petition rights on shopping center property.6 But it is well established that "not every destruction or injury to property by governmental action has been held to be a 'taking' in the constitutional sense." Armstrong v. United States, 364 U.S. 40, 48, 80 S.Ct. 1563, 1568, 4 L.Ed.2d 1554 (1960). Rather, the determination whether a state law unlawfully infringes a landowner's property in violation of the Taking Clause requires an examination of whether the restriction on private property "forc[es] some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Id., at 49, 80 S.Ct., at 1569.7 This examination entails inquiry into such factors as the character of the governmental action, its economic impact, and its interference with reasonable investment-backed expectations. Kaiser Aetna v. United States, supra, at 175, 100 S.Ct., at 390. When "regulation goes too far it will be recognized as a taking." Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922).
14
Here the requirement that appellants permit appellees to exercise state-protected rights of free expression and petition on shopping center property clearly does not amount to an unconstitutional infringement of appellants' property rights under the Taking Clause. There is nothing to suggest that preventing appellants from prohibiting this sort of activity will unreasonably impair the value or use of their property as a shopping center. The PruneYard is a large commercial complex that covers several city blocks, contains numerous separate business establishments, and is open to the public at large. The decision of the California Supreme Court makes it clear that the PruneYard may restrict expressive activity by adopting time, place, and manner regulations that will minimize any interference with its commercial functions. Appellees were orderly, and they limited their activity to the common areas of the shopping center. In these circumstances, the fact that they may have "physically invaded" appellants' property cannot be viewed as determinative.
15
This case is quite different from Kaiser Aetna v. United States, supra. Kaiser Aetna was a case in which the owners of a private pond had invested substantial amounts of money in dredging the pond, developing it into an exclusive marina, and building a surrounding marina community. The marina was open only to fee-paying members, and the fees were paid in part to "maintain the privacy and security of the pond." Id., at 168, 100 S.Ct., at 386. The Federal Government sought to compel free public use of the private marina on the ground that the marina became subject to the federal navigational servitude because the owners had dredged a channel connecting it to "navigable water."
16
The Government's attempt to create a public right of access to the improved pond interfered with Kaiser Aetna's "reasonable investment backed expectations." We held that it went "so far beyond ordinary regulation or improvement for navigation as to amount to a taking. . . . " Id., at 178, 100 S.Ct., at 392. Nor as a general proposition is the United States, as opposed to the several States, possessed of residual authority that enables it to define "property" in the first instance. A State is, of course, bound by the Just Compensation Clause of the Fifth Amendment, Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 233, 236-237, 17 S.Ct. 581, 584-585, 41 L.Ed. 979 (1897), but here appellants have failed to demonstrate that the "right to exclude others" is so essential to the use or economic value of their property that the state-authorized limitation of it amounted to a "taking."
17
There is also little merit to appellants' argument that they have been denied their property without due process of law. In Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940 (1934), this Court stated:
18
"[N]either property rights nor contract rights are absolute . . . Equally fundamental with the private right is that of the public to regulate it in the common interest. . . .
19
* * * * *
20
". . . [T]he guaranty of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the objective sought to be attained." Id., at 523, 525, 54 S.Ct., at 510-511.
21
See also Railway Express Agency, Inc. v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533 (1949); Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 124-125, 98 S.Ct. 2207, 2213, 57 L.Ed.2d 91 (1978). Appellants have failed to provide sufficient justification for concluding that this test is not satisfied by the State's asserted interest in promoting more expansive rights of free speech and petition than conferred by the Federal Constitution.8
V
22
Appellants finally contend that a private property owner has a First Amendment right not to be forced by the State to use his property as a forum for the speech of others.9 They state that in Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977), this Court concluded that a State may not constitutionally require an individual to participate in the dissemination of an ideological message by displaying it on his private property in a manner and for the express purpose that it be observed and read by the public. This rationale applies here, they argue, because the message ofWooley is that the State may not force an individual to display any message at all.
23
Wooley, however, was a case in which the government itself prescribed the message, required it to be displayed openly on appellee's personal property that was used "as part of his daily life," and refused to permit him to take any measures to cover up the motto even though the Court found that the display of the motto served no important state interest. Here, by contrast, there are a number of distinguishing factors. Most important, the shopping center by choice of its owner is not limited to the personal use of appellants. It is instead a business establishment that is open to the public to come and go as they please. The views expressed by members of the public in passing out pamphlets or seeking signatures for a petition thus will not likely be identified with those of the owner. Second, no specific message is dictated by the State to be displayed on appellants' property. There consequently is no danger of governmental discrimination for or against a particular message. Finally, as far as appears here appellants can expressly disavow any connection with the message by simply posting signs in the area where the speakers or handbillers stand. Such signs, for example, could disclaim any sponsorship of the message and could explain that the persons are communicating their own messages by virtue of state law.
24
Appellants also argue that their First Amendment rights have been infringed in light of West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), and Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974). Barnette is inapposite because it involved the compelled recitation of a message containing an affirmation of belief. This Court held such compulsion unconstitutional because it "require[d] the individual to communicate by word and sign his acceptance" of government-dictated political ideas, whether or not he subscribed to them. 319 U.S., at 633, 63 S.Ct., at 1183. Appellants are not similarly being compelled to affirm their belief in any governmentally prescribed position or view, and they are free to publicly dissociate themselves from the views of the speakers or handbillers.
25
Tornillo struck down a Florida statute requiring a newspaper to publish a political candidate's reply to criticism previously published in that newspaper. It rests on the principle that the State cannot tell a newspaper what it must print. The Florida statute contravened this principle in that it "exact[ed] a penalty on the basis of the content of a newspaper." 418 U.S., at 256, 94 S.Ct., at 2839. There also was a danger in Tornillo that the statute would "dampe[n] the vigor and limi[t] the variety of public debate" by deterring editors from publishing controversial political statements that might trigger the application of the statute. Id., at 257, 94 S.Ct., at 2839. Thus, the statute was found to be an "intrusion into the function of editors." Id., at 258, 94 S.Ct., at 2839. These concerns obviously are not present here.
26
We conclude that neither appellants' federally recognized property rights nor their First Amendment rights have been infringed by the California Supreme Court's decision recognizing a right of appellees to exercise state-protected rights of expression and petition on appellants' property. The judgment of the Supreme Court of California is therefore
27
Affirmed.
28
Mr. Justice BLACKMUN joins the opinion of the Court except that sentence thereof, ante, at 84, which reads: "Nor as a general proposition is the United States, as opposed to the several States, possessed of residual authority that enables it to define 'property' in the first instance."
29
Mr. Justice MARSHALL, concurring.
30
I join the opinion of the Court, but write separately to make a few additional points.
31
* In Food Employees v. Logan Valley Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968), this Court held that the First and Fourteenth Amendments prevented a state court from relying on its law of trespass to enjoin the peaceful picketing of a business enterprise located within a shopping center. The Court concluded that because the shopping center "serves as the community business block" and is open to the general public, "the State may not delegate the power, through the use of its trespass laws, wholly to exclude those members of the public wishing to exercise their First Amendment rights on the premises." Id., at 319, 88 S.Ct., at 1609. The Court rejected the suggestion that such an abrogation of the state law of trespass would intrude on the constitutionally protected property rights of shopping center owners. And it emphasized that the shopping center was open to the public and that reasonable restrictions on the exercise of communicative activity would be permitted. "[N]o meaningful claim to protection of a right of privacy can be advanced by respondents here. Nor on the facts of the case can any significant claim to protection of the normal business operation of the property be raised. Naked title is essentially all that is at issue." Id., at 324, 88 S.Ct., at 1611.
32
The Court in Logan Valley emphasized that if the property rights of shopping center owners were permitted to overcome the First Amendment rights of prospective petitioners, a significant intrusion on communicative activity would result. Because "[t]he large-scale movement of this country's population from the cities to the suburbs has been accompanied by the advent of the suburban shopping center," a contrary decision would have "substantial consequences for workers seeking to challenge substandard working conditions, consumers protesting shoddy or overpriced merchandise, and minority groups seeking nondiscriminatory hiring policies." Ibid. In light of these realities, we concluded that the First and Fourteenth Amendments prohibited the State from using its trespass laws to prevent the exercise of expressive activities on privately owned shopping centers, at least when those activities were related to the operations of the store at which they were directed.
33
In Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972), the Court confined Logan Valley to its facts, holding that the First and Fourteenth Amendments were not violated when a State prohibited petitioning that was not designed to convey information with respect to the operation of the store that was being picketed. The Court indicated that a contrary result would constitute "an unwarranted infringement of property rights." 407 U.S., at 567, 92 S.Ct., at 2228. And in Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976), the Court concluded that Lloyd had in fact overruled Logan Valley.
34
I continue to believe that Logan Valley was rightly decided, and that both Lloyd and Hudgens were incorrect interpretations of the First and Fourteenth Amendments. State action was present in all three cases. In all of them the shopping center owners had opened their centers to the public at large, effectively replacing the State with respect to such traditional First Amendment forums as streets, sidewalks, and parks. The State had in turn made its laws of trespass available to shopping center owners, enabling them to exclude those who wished to engage in expressive activity on their premises.1 Rights of free expression become illusory when a State has operated in such a way as to shut off effective channels of communication. I continue to believe, then, that "the Court's rejection of any role for the First Amendment in the privately owned shopping center complex stems . . . from an overly formalistic view of the relationship between the institution of private ownership of property and the First Amendment's guarantee of freedom of speech." Hudgens v. NLRB, supra, at 542, 96 S.Ct., at 1047 (dissenting opinion).
II
35
In the litigation now before the Court, the Supreme Court of California construed the California Constitution to protect precisely those rights of communication and expression that were at stake in Logan Valley, Lloyd, and Hudgens. The California court concluded that its State "Constitution broadly proclaims speech and petition rights. Shopping centers to which the public is invited can provide an essential and invaluable forum for exercising those rights." 23 Cal.3d 899, 910, 153 Cal.Rptr. 854, 860, 592 P.2d 341, 347 (1979). Like the Court in Logan Valley, the California court found that access to shopping centers was crucial to the exercise of rights of free expression. And like the Court in Logan Valley, the California court rejected the suggestion that the Fourteenth Amendment barred the intrusion on the property rights of the shopping center owners. I applaud the court's decision, which is a part of a very healthy trend of affording state constitutional provisions a more expansive interpretation than this Court has given to the Federal Constitution. See Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489 (1977).
36
Appellants, of course, take a different view. They contend that the decision below amounts to a constitutional "taking" or a deprivation of their property without due process of law. Lloyd, they claim, did not merely overrule Logan Valley's First Amendment holding; it overruled its due process ruling as well, recognizing a federally protected right on the part of shopping center owners to enforce the pre-existing state law of trespass by excluding those who engage in communicative activity on their property. In my view, the issue appellants present is largely a restatement of the question of whether and to what extent a State may abrogate or modify common-law rights. Although the cases in this Court do not definitively resolve the question, they demonstrate that appellants' claim has no merit.
37
Earlier this Term, in Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980), the Court was also confronted with a claim that the abolition of a cause of action previously conferred by state law was an impermissible taking of "property." We responded that even if a pre-existing state-law remedy "is a species of 'property' protected by the Due Process Clause . . ., 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." Id., at 281-282, 100 S.Ct., at 557. Similarly, in the context of a claim that a guest statute impermissibly abrogated common-law rights of tort, the Court observed that the Due Process Clause does not forbid the "creation of new rights, or the abolition of old ones recognized by the common law, to attain a permissible legislative object." Silver v. Silver, 280 U.S. 117, 122, 50 S.Ct. 57, 58, 74 L.Ed. 221 (1929). And in Munn v. Illinois, 94 U.S. 113, 24 L.Ed. 77 (1877), the Court upheld a statute limiting the permissible rate for the warehousing of grain. "A person has no property, no vested interest, in any rule of the common law. . . . Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will . . . of the legislature, unless prevented by constitutional limitations. Indeed, the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances." Id., at 134. See alsoSecond Employers' Liability Cases, 223 U.S. 1, 50, 32 S.Ct. 169, 175, 56 L.Ed. 327 (1912); Crowell v. Benson, 285 U.S. 22, 41, 52 S.Ct. 285, 288, 76 L.Ed. 598 (1932).
38
Appellants' claim in this case amounts to no less than a suggestion that the common law of trespass is not subject to revision by the State, notwithstanding the California Supreme Court's finding that state-created rights of expressive activity would be severely hindered if shopping centers were closed to expressive activities by members of the public. If accepted, that claim would represent a return to the era of Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905), when common-law rights were also found immune from revision by State or Federal Government. Such an approach would freeze the common law as it has been constructed by the courts, perhaps at its 19th-century state of development. It would allow no room for change in response to changes in circumstance. The Due Process Clause does not require such a result.
39
On the other hand, I do not understand the Court to suggest that rights of property are to be defined solely by state law, or that there is no federal constitutional barrier to the abrogation of common-law rights by Congress or a state government. The constitutional terms "life, liberty, and property" do not derive their meaning solely from the provisions of positive law. They have a normative dimension as well, establishing a sphere of private autonomy which government is bound to respect.2 Quite serious constitutional questions might be raised if a legislature attempted to abolish certain categories of common-law rights in some general way. Indeed, our cases demonstrate that there are limits on governmental authority to abolish "core" common-law rights, including rights against trespass, at least without a compelling showing of necessity or a provision for a reasonable alternative remedy.3
40
That "core" has not been approached in this case. The California Supreme Court's decision is limited to shopping centers, which are already open to the general public. The owners are permitted to impose reasonable restrictions on expressive activity. There has been no showing of interference with appellants' normal business operations. The California court has not permitted an invasion of any personal sanctuary. Cf. Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). No rights of privacy are implicated. In these circumstances there is no basis for strictly scrutinizing the intrusion authorized by the California Supreme Court.
41
I join the opinion of the Court.
42
Mr. Justice WHITE, concurring in part and concurring in the judgment.
43
I join Mr. Justice POWELL's concurring opinion but with these additional remarks.
44
The question here is whether the Federal Constitution forbids a State to implement its own free-speech guarantee by requiring owners of shopping centers to permit entry on their property for the purpose of communicating with the public about subjects having no connection with the shopping centers' business. The Supreme Court of California held that in the circumstances of this case the federally protected property rights of appellants were not infringed. The state court recognized, however, that reasonable time and place limitations could be imposed and that it was dealing with the public or common areas in a large shopping center and not with an individual retail establishment within or without the shopping center or with the property or privacy rights of a homeowner. On the facts before it, "[a] handful of additional orderly persons soliciting signatures and distributing handbills . . . would not markedly dilute defendant's property rights." 23 Cal.3d 899, 911, 153 Cal.Rptr. 854, 860-861, 592 P.2d 341, 347-348 (1979).
45
I agree that on the record before us there was not an unconstitutional infringement of appellants' property rights. But it bears pointing out that the Federal Constitution does not require that a shopping center permit distributions or solicitations on its property. Indeed, Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976), and Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972), hold that the First and Fourteenth Amendments do not prevent the property owner from excluding those who would demonstrate or communicate on his property. Insofar as the Federal Constitution is concerned, therefore, a State may decline to construe its own constitution so as to limit the property rights of the shopping center owner.
46
The Court also affirms the California Supreme Court's implicit holding that appellants' own free-speech rights under the First and Fourteenth Amendments were not infringed by requiring them to provide a forum for appellees to communicate with the public on shopping center property. I concur in this judgment, but I agree with Mr. Justice Powell that there are other circumstances that would present a far different First Amendment issue. May a State require the owner of a shopping center to subsidize any and all political, religious, or social-action groups by furnishing a convenient place for them to urge their views on the public and to solicit funds from likely prospects? Surely there are some limits on state authority to impose such requirements; and in this respect, I am not in entire accord with Part V of the Court's opinion.
47
Mr. Justice POWELL, with whom Mr. Justice WHITE joins, concurring in part and in the judgment.
48
Although I join the judgment, I do not agree with all of the reasoning in Part V of the Court's opinion. I join Parts I-IV on the understanding that our decision is limited to the type of shopping center involved in this case. Significantly different questions would be presented if a State authorized strangers to picket or distribute leaflets in privately owned, freestanding stores and commercial premises. Nor does our decision today apply to all "shopping centers." This generic term may include retail establishments that vary widely in size, location, and other relevant characteristics. Even large establishments may be able to show that the number or type of persons wishing to speak on their premises would create a substantial annoyance to customers that could be eliminated only by elaborate, expensive, and possibly unenforceable time, place, and manner restrictions. As the Court observes, state power to regulate private property is limited to the adoption of reasonable restrictions that "do not amount to a taking without just compensation or contravene any other federal constitutional provision." Ante, at 81.
49
* Restrictions on property use, like other state laws, are invalid if they infringe the freedom of expression and belief protected by the First and Fourteenth Amendments. In Part V of today's opinion, the Court rejects appellants' contention that "a private property owner has a First Amendment right not to be forced by the State to use his property as a forum for the speech of others." Ante, at 85. I agree that the owner of this shopping center has failed to establish a cognizable First Amendment claim in this case. But some of the language in the Court's opinion is unnecessarily and perhaps confusingly broad. In my view, state action that transforms privately owned property into a forum for the expression of the public's views could raise serious First Amendment questions.
50
The State may not compel a person to affirm a belief he does not hold. See Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). Whatever the full sweep of this principle, I do not believe that the result in Wooley v. Maynard, supra, would have changed had the State of New Hampshire directed its citizens to place the slogan "Live Free or Die" in their shop windows rather than on their automobiles. In that case, we said that "[a] system which secures the right to proselytize religious, political, and ideological causes must also guarantee the concomitant right to decline to foster such concepts." 430 U.S., at 714, 97 S.Ct., at 1435. This principle on its face protects a person who refuses to allow use of his property as a marketplace for the ideas of others. And I can find no reason to exclude the owner whose property is "not limited to [his] personal use. . . ." Ante, at 87. A person who has merely invited the public onto his property for commercial purposes cannot fairly be said to have relinquished his right to decline "to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable." Wooley v. Maynard, supra, 430 U.S., at 715,1 97 S.Ct., at 1435.
51
As the Court observes, this case involves only a state-created right of limited access to a specialized type of property. Ante, at 87, 87-88. But even when no particular message is mandated by the State, First Amendment interests are affected by state action that forces a property owner to admit third-party speakers. In many situations, a right of access is no less intrusive than speech compelled by the State itself. For example, a law requiring that a newspaper permit others to use its columns imposes an unacceptable burden upon the newspaper's First Amendment right to select material for publication. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974). See also Columbia Broadcasting System, Inc. v. Democratic National committee, 412 U.S. 94, 117, 93 S.Ct. 2080, 2093, 36 L.Ed.2d 772 (1973) (plurality opinion). Such a right of access burdens the newspaper's "fundamental right to decide what to print or omit." Wooley v. Maynard, supra, 430 U.S., at 714, 97 S.Ct., at 1435; see Miami Herald Publishing Co. v. Tornillo, supra, 418 U.S., at 257, 94 S.Ct., at 2839. As such, it is tantamount to compelled affirmation and, thus, presumptively unconstitutional.2
52
The selection of material for publication is not generally a concern of shopping centers. But similar speech interests are affected when listeners are likely to identify opinions expressed by members of the public on commercial property as the views of the owner. If a state law mandated public access to the bulletin board of a freestanding store, hotel, office, or small shopping center, customers might well conclude that the messages reflect the view of the proprietor. The same would be true if the public were allowed to solicit or distribute pamphlets in the entrance area of a store or in the lobby of a private building. The property owner or proprietor would be faced with a choice: he either could permit his customers to receive a mistaken impression or he could disavow the messages. Should he take the first course, he effectively has been compelled to affirm someone else's belief. Should he choose the second, he had been forced to speak when he would prefer to remain silent. In short, he has lost control over his freedom to speak or not to speak on certain issues. The mere fact that he is free to dissociate himself from the views expressed on his property, see ante, at 87, cannot restore his "right to refrain from speaking at all." Wooley v. Maynard, supra, 430 U.S., at 714, 97 S.Ct., at 1435.
53
A property owner also may be faced with speakers who wish to use his premises as a platform for views that he finds morally repugnant. Numerous examples come to mind. A minority-owned business confronted with distributers from the American Nazi Party or the Ku Klux Klan, a church-operated enterprise asked to host demonstrations in favor of abortion, or a union compelled to supply a forum to right-to-work advocates could be placed in an intolerable position if state law requires it to make its private property available to anyone who wishes to speak. The strong emotions evoked by speech in such situations may virtually compel the proprietor to respond.
54
The pressure to respond is particularly apparent when the owner has taken a position opposed to the view being expressed on his property. But an owner who strongly objects to some of the causes to which the state-imposed right of access would extend may oppose ideological activities "of any sort" that are not related to the purposes for which he has invited the public onto his property. See Abood v. Detroit Board of Education, 431 U.S. 209, 213, 241, 97 S.Ct. 1782, 1802, 52 L.Ed.2d 261 (1977). To require the owner to specify the particular ideas he finds objectionable enough to compel a response would force him to relinquish his "freedom to maintain his own beliefs without public disclosure." Ibid.3 Thus, the right to control one's own speech may be burdened impermissibly even when listeners will not assume that the messages expressed on private property are those of the owner.4
II
55
One easily can identify other circumstances in which a right of access to commercial property would burden the owner's First and Fourteenth Amendment right to refrain from speaking. But appellants have identified no such circumstance. Nor did appellants introduce evidence that would support a holding in their favor under either of the legal theories outlined above.
56
On the record before us, I cannot say that customers of this vast center would be likely to assume that appellees' limited speech activity expressed the views of the PruneYard or of its owner. The shopping center occupies several city blocks. It contains more than 65 shops, 10 restaurants, and a theater. Interspersed among these establishments are common walkways and plazas designed to attract the public. See ante, at 77, 83. Appellees are high school students who set up their card table in one corner of a central courtyard known as the "Grand Plaza." App. to Juris. Statement B-2. They showed passersby several petitions and solicited signatures. Persons solicited could not reasonably have believed that the petitions embodied the views of the shopping center merely because it owned the ground on which they stood.
57
Appellants have not alleged that they object to the ideas contained in the appellees' petitions. Nor do they assert that some groups who reasonably might be expected to speak at the PruneYard will express views that are so objectionable as to require a response even when listeners will not mistake their source. The record contains no evidence concerning the numbers or types of interest groups that may seek access to this shopping center, and no testimony showing that the appellants strongly disagree with any of them.
58
Because appellants have not shown that the limited right of access held to be afforded by the California Constitution burdened their First and Fourteenth Amendment rights in the circumstances presented, I join the judgment of the Court. I do not interpret our decision today as a blanket approval for state efforts to transform privately owned commercial property into public forums. Any such state action would raise substantial federal constitutional questions not present in this case.
1
The California Supreme Court in Diamond II had reasoned:
"In this case, as in Lloyd [Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972)], plaintiffs have alternative, effective channels of communication, for the customers and employees of the center may be solicited on any public sidewalks, parks and streets adjacent to the Center and in the communities in which such persons reside. Unlike the situation in Marsh [v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946)] and [Food Employees v. Logan Valley Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968)], no reason appears why such alternative means of communication would be ineffective, and plaintiffs concede that unlike Logan, their initiative petition bears no particular relation to the shopping center, its individual stores or patrons." 11 Cal.3d, at 335, 113 Cal.Rptr., at 471, 521 P.2d, at 463.
Diamond II thus held that the shopping center owner's property rights outweighed the rights of free expression and petition asserted by the plaintiffs. Ibid.
2
Article 1, § 2, of the California Constitution provides:
"Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press."
Article 1, § 3, of the California Constitution provides:
"[P]eople have the right to . . . petition government for redress of grievances."
3
The center had banned handbilling because it "was considered likely to annoy customers, to create litter, potentially to create disorders, and generally to be incompatible with the purpose of the Center and the atmosphere sought to be preserved." 407 U.S., at 555-556, 92 S.Ct., at 2222.
4
Respondents relied on Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946), and Food Employees v. Logan Valley Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968), in support of their claim that the shopping center's permission to the public to enter its property for the purpose of shopping caused its property to lose its private character, thereby permitting members of the public to exercise the same free speech rights as they would have on similar public facilities or the streets of a city or town. Both of those cases, however, involved no state law authorizing the conduct of the solicitors or handbillers.
5
Appellants do not maintain that this is a condemnation case. Reply Brief for Appellants 2. Rather, they argue that "[t]he rights of a property owner . . . are rooted in the Fifth Amendment guarantee against the taking of property without just compensation and are incorporated in the Fourteenth Amendment guarantee against the deprivation of property without due process of law." Brief for Appellants 10. Here, of course, if the law required the conclusion that there was a "taking," there was concededly no compensation, just or otherwise, paid to appellants. This argument falls within appellants' contention that Lloyd is controlling, see 407 U.S., at 567, 92 S.Ct., at 2228, and was adequately presented below. See New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 67, 49 S.Ct. 61, 63, 73 L.Ed. 184 (1928).
6
The term "property" as used in the Taking Clause includes the entire "group of rights inhering in the citizen's [ownership]." United States v. General Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311 (1945). It is not used in the "vulgar and untechnical sense of the physical thing with respect to which the citizen exercises rights recognized by law. [Instead, it] denote[s] the group of rights inhering in the citizen's relation to the physical thing, as the right to possess, use and dispose of it. . . . The constitutional provision is addressed to every sort of interest the citizen may possess." Id., at 377-378, 65 S.Ct., at 359.
7
Thus, as this Court stated in Monongahela Navigation Co. v. United States, 148 U.S. 312, 325, 13 S.Ct. 622, 626, 37 L.Ed. 463 (1893) a case which has since been characterized as resting primarily on "estoppel," see, e. g., United States v. Rands, 389 U.S. 121, 126, 88 S.Ct. 265, 268, 19 L.Ed.2d 329 (1967), the Fifth Amendment "prevents the public from loading upon one individual more than his just share of the burdens of government, and says that when he surrenders to the public something more and different from that which is exacted from other members of the public, a full and just equivalent shall be returned to him." See also Penn Central Transportation Co. v. New York City, 438 U.S. 104, 123-125, 98 S.Ct. 2646, 2659-2660, 57 L.Ed.2d 631 (1978); Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922).
8
Although appellants contend there are adequate alternative avenues of communication available for appellees, it does not violate the United States Constitution for the State Supreme Court to conclude that access to appellants' property in the manner required here is necessary to the promotion of state-protected rights of free speech and petition.
9
Appellees contend that this issue is not properly before us because appellants have not met their burden of showing that it was raised in the state courts. It is well settled that in challenging the validity of a state law on the ground that it is repugnant to the Constitution of the United States, "[n]o particular form of words or phrases is essential, but only that the claim of invalidity on the ground therefor be brought to the attention of the state court with fair precision and in due time. And if the record as a whole shows either expressly or by clear intendment that this was done, the claim is to be regarded as having been adequately presented." New York ex rel. Bryant v. Zimmerman, 278 U.S., at 67, 49 S.Ct., at 63.
Before the Supreme Court of California, appellants argued:
"The constitutional right to exclude potential communicants from private property is inextricably intertwined with the right of the property owner
to select the way he wishes to use his property. . . . The right, which has been recognized as deriving from the owner's status as owner, also derives from the owner's status as himself a potential communicant. Defendant urges that his constitutional right to free speech would be infringed if he were required to make his property available to others for the purpose of their expressive activity." Brief in Response to Amici Curiae Briefs in No. S.F. 23812, p. 39 (Sup.Ct.Cal.).
In making this argument appellants explicitly relied on Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977), and West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). Brief in Response to Amici Curiae Briefs, supra, at 40-42. Before this Court appellants contend that "[t]he constitutional rights of private property owners also have their origins in the First Amendment right of the property owner not to be forced by the state to use his property as a forum for the speech of others." Brief for Appellants 12. See also Juris. Statement 12. And appellants throughout this litigation have been asserting their federal constitutional right to prohibit public expressive activity on their property that is not directly related to PruneYard's commercial purposes.
In addition, this Court has held federal claims to have been adequately presented even though not raised in lower state courts when the highest state court renders an unexpected interpretation of state law or reverses its prior interpretation. Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U.S. 673, 677-678, 50 S.Ct. 451, 453, 74 L.Ed. 1107 (1930); Missouri ex rel. Missouri Ins. Co. v. Gehner, 281 U.S. 313, 320, 50 S.Ct. 326, 327, 74 L.Ed. 870 (1930); Saunders v. Shaw, 244 U.S. 317, 320, 37 S.Ct. 638, 640, 61 L.Ed. 1163 (1917). Here prior to its decision below, the California Supreme Court had expressly decided to follow Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972), in defining the scope of state constitutional rights of free speech and petition. Diamond II, 11 Cal.3d, at 335, 113 Cal.Rptr., at 471, 521 P.2d, at 463. It was not until the instant case that the California Supreme Court overruled Diamond II, supra, and held that the California Constitution can and does require shopping center owners to grant access to individuals exercising their state rights of free expression and petition.
Prior to reaching the California Supreme Court, appellants argued that the Diamond II decision bound the California Superior Court and Court of Appeal to rule in appellants' favor. Appellants prevailed in these courts, and Diamond II was held to be controlling. Once before the California Supreme Court, as noted above, appellants explicitly presented
their federal constitutional right to prohibit public expression on their property in terms of Wooley and Barnette. It was not until that time that they could have reasonably expected that the validity of the earlier Diamond II decision would be questioned. In these circumstances we conclude that appellants have adequately raised the federal question.
1
In this respect the cases resembled Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), and New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.ED.2d 686 (1964), in which the common-law rules of contract and tort were held to constitute state action for Fourteenth Amendment purposes.
2
This understanding is embodied in cases in the procedural due process area holding that at least some "grievous losses" amount to deprivation of "liberty" or "property" within the meaning of the Due Process Clause, even if those losses are not protected by statutory or common law. See Vitek v. Jones, 445 U.S. 480, 488-489, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980), and cases cited; Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976). See also Meachum v. Fano, 427 U.S. 215, 229, 96 S.Ct. 2532, 2540, 49 L.Ed.2d 451 (1976) (STEVENS, J., dissenting).
3
For example, in Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977), the Court found a constitutional liberty interest in freedom from corporal punishment, in large part on the ground that that interest was protected at common law. The Court stated that the "Due Process Clause . . . was intended to give Americans at least the protection against governmental power that they had enjoyed as Englishmen against the power of the Crown. The liberty preserved from deprivation without due process included the right 'generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.' " Id., at 672-673, 97 S.Ct., at 1413 (citation omitted). In Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 88, 98 S.Ct. 2620, 2638, 57 L.Ed.2d 595 (1978), the Court reserved the question whether in creating a compensation scheme for victims of nuclear accidents, Congress was constitutionally obliged to "provide a reasonable substitute remedy" for the abrogation of common-law rights of tort. Similarly, in New York Central R. Co. v. White, 243 U.S., 188, 201, 37 S.Ct. 247, 252, 61 L.Ed. 667 (1917), the Court expressed uncertainty as to whether "a State might, without violence to the constitutional guaranty of 'due process of law,' suddenly set aside all common-law rules respecting liability as between employer and employee, without providing a reasonably just substitute," and "doubted whether the State could abolish all rights of action on the one hand, or all defenses on the other, without setting up something adequate in their stead."
1
Cf. Lloyd Corp. v. Tanner, 407 U.S. 551, 569, 92 S.Ct. 2219, 2229, 33 L.Ed.2d 131 (1972) ("property [does not] lose its private character merely because the public is generally invited to use it for designated purposes").
2
Even if a person's own speech is not affected by a right of access to his property, a requirement that he lend support to the expression of a third party's views may burden impermissibly the freedoms of association and belief protected by the First and Fourteenth Amendments. In Abood v. Detroit Board of Education, 431 U.S. 209, 235, 97 S.Ct. 1782, 1799, 52 L.Ed.2d 261 (1977), we held that a State may not require a person "to contribute to the support of an ideological cause he may oppose. . . . " To require a landowner to supply a forum for causes he finds objectionable also might be an unacceptable "compelled subsidization" in some circumstances. Id., at 237, 97 S.Ct., at 1800; cf. Central Hardware Co. v. NLRB, 407 U.S. 539, 543-545, 92 S.Ct. 2238, 2241-2242, 33 L.Ed.2d 122 (1972) ("property rights" may permit exclusion of union organizers); NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112, 76 S.Ct. 679, 684, 100 L.Ed. 975 (1956) (same). See generally Eastex, Inc. v. NLRB, 437 U.S. 556, 571-576, 98 S.Ct. 2505, 2515-2517, 57 L.Ed.2d 428 (1978); Hudgens v. NLRB, 424 U.S. 507, 521-522, 96 S.Ct. 1029, 1037-1038, 47 L.Ed.2d 196 (1976). The appellants do not argue, however, that Abood supports the claimed right to exclude speakers from their property. Nor have they alleged that they disagree with the messages at issue in this case. See infra, at 2051.
3
The problem is compounded where, as in shopping centers or in the lobby areas of hotels and office buildings, stores are leased to different proprietors with divergent views.
4
In a proper case, the property owner also may be protected by the principle that "a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch." Stanley v. Georgia, 394 U.S. 557, 565, 89 S.Ct. 1243, 1248, 22 L.Ed.2d 542 (1969). Observing that a State has no interest in controlling the moral content of a person's thoughts, ibid., the Court in Stanley invalidated a law imposing criminal penalties for the private possession of obscenity. Stanley prevents a State from removing from the home expressive materials that a person may wish to peruse privately. The same principle may extend to state action that forces individual exposure to third-party messages. Thus, a law that required homeowners to permit speakers to congregate on their front lawns would be a massive and possibly unconstitutional intrusion into personal privacy and freedom of belief. No such problem arises in this case.
| 34
|
447 U.S. 1
100 S.Ct. 1994
64 L.Ed.2d 681
UNITED STATES, Plaintiff,v.State of CALIFORNIA.
No. 5, Orig.
Argued March 17, 1980.
Decided June 9, 1980.
Rehearing Denied Dec. 1, 1980.
See 449 U.S. 1028, 101 S.Ct. 600.
Syllabus
The issue presented at this stage of this original action is whether—for purposes of determining California's ownership under the Submerged Lands Act of submerged lands and natural resources lying within three geographical miles seaward of the California coastline—the coastline follows the mean lower low-water line along the natural shore, or whether it follows the seaward edge of 15 piers and the Rincon Island complex projecting into the sea from the shore. Rincon Island, a privately owned artificial "island" used to service offshore oil facilities, is erected upon foundations resting on the ocean floor, has a dock on the seaward side, and is connected to the mainland by a causeway structure under which water flows freely. Neither the causeway nor the island have had any noticeable effect on the shoreline, and the complex is not a coast protective work. The piers in question, some of which are privately owned and some of which are operated by the State as docking facilities or for recreational purposes, are all attached to the mainland; water flows freely underneath each; they have no effect on the shoreline and are not coast protective works. The Special Master concluded that the piers and the Rincon Island complex do not constitute extensions of the coast and that the coastline follows the natural coast in the vicinity of these structures. California filed an exception to the Master's report.
Held: The Special Master's conclusion is proper. Under the Convention on the Territorial Sea and the Contiguous Zone, which is used for guidance in defining "coastline" for purposes of the Submerged Lands Act, the general rule expressed in Art. 3 therein is that the "normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State." Although the type of construction of the open piers involved here, being elevated above the ocean's surface on pilings, does not, without more, require a determination adverse to California, the absence of a "lower low-water line" deprives them of a "normal baseline," and precludes them from falling within the ambit of Art. 3. Moreover, Art. 8 of the Convention, whereby "the outermost permanent harbour works which form an integral part of the harbour system shall be regarded as forming part of the coast," does not encompass all structures erected on the shore. The structures in this case are not harbors and are not a part of outermost "harbour works," since they neither "protect," "enclose," nor "shelter," Louisiana Boundary Case, 394 U.S. 11, 37, n. 42, 89 S.Ct. 773, 788, 22 L.Ed.2d 44 and thus they cannot constitute an integral part of a harbor system. Nor does the Longshoremen's and Harbor Workers' Compensation Act and decisions thereunder indicate that Congress has withdrawn from the courts the authority to define "coastline" for purposes of the Submerged Lands Act. Pp. 5-9.
Exception to Special Master's report overruled.
John F. Briscoe, San Francisco, Cal., for defendant.
Stephen M. Shapiro, Washington, D.C., for plaintiff.
Mr. CHIEF JUSTICE BURGER delivered the opinion of the Court.
1
* The United States began this original action against the State of California under Art. III, § 2, of the Constitution in 1945 to determine whether the right to exploit natural resources under the submerged lands off the California coast belongs to the United States or to California.
2
In 1947, this Court decreed that the United States owned all submerged lands extending seaward of the ordinary low-water mark on the California coast. United States v. California, 332 U.S. 804, 805, 68 S.Ct. 20, 21, 92 L.Ed. 382. See also United States v. California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889 (1947). When Congress enacted the Submerged Lands Act of 1953, 67 Stat. 29, 43 U.S.C. § 1301 et seq., the United States, in effect, quitclaimed to California whatever interest the Federal Government may have had in, and to, all lands and natural resources lying within three geographical miles seaward of the California coastline. § 3(b)(1), 43 U.S.C. § 1311(b)(1). Congress subsequently enacted the Outer Continental Shelf Lands Act of 1953, 67 Stat. 462, 43 U.S.C. § 1331 et seq., which declared that the United States owned all submerged lands seaward of those granted to California by the Submerged Lands Act. §§ 1332, 1333.
3
In 1978, the parties filed cross-motions for entry of a supplemental decree. Although those motions proposed three issues for resolution, only one is presently before the Court.1 That issue is whether the coastline follows the mean lower low-water line along the natural shore, or whether it follows the seaward edge of 15 piers and the Rincon Island complex projecting into the sea from the shore.
4
This Court appointed a Special Master who received evidence and submitted recommendations. The Master made the following findings of fact:
5
Rincon Island is a privately owned artificial "island" off the shore near Punta Gorda, Ventura County, which is used to service offshore oil facilities. It is built upon large concrete tetrapods2 which rest on the ocean floor, and it has a surface consisting of rock and dirt fill. There are buildings and other structures on the island, all of which are related to an active oil well. On the seaward side of the island is a large dock equipped with hardware for the berthing of vessels.
6
The island is connected to the mainland by a structure commonly known and identified on maps as the Punta Gorda Causeway. Oil is pumped to shore by a pipeline running beneath and alongside the causeway structure. The wooden causeway deck surface rests on a steel frame supported by pilings filled with gravel and capped with concrete. Water flows freely underneath. Neither the structure nor the island has had any noticeable effect on the shoreline, and the complex is not a coast protective work.3
7
The 15 piers have asphalt, wood, or concrete deck surfaces mounted on precast concrete, steel, or wood pilings. They vary in length from 500 feet (at the Santa Barbara Biltmore Hotel) to 3,500 feet (at Ocean Beach). All are attached to the mainland, and water flows freely underneath each. The piers have no effect on the shoreline; they are not coast protective works. One pier is privately owned by a hotel; 3 others are privately owned and used to supply offshore oil rigs; the remaining 11 are operated by the California State Department of Parks and Recreation as docking facilities or for recreational purposes.4
8
The Special Master concluded that neither the Rincon Island complex nor the piers constitute extensions of the coast.5 The California coastline, he determined, follows the natural coast in the vicinity of these structures for purposes of measuring to the federal-state boundary under the Submerged Lands Act. California filed an exception to the Master's conclusion.
II
9
Since passage of the Submerged Lands Act granting California and other States ownership of submerged lands within three miles of their respective coasts, this Court has adverted to the Convention on the Territorial Sea and the Contiguous Zone, Apr. 29, 1958, [1964] 15 U.S.T. 1606, T.I.A.S. No. 5369, for guidance in the definition of the term "coastline." See Louisiana Boundary Case, 394 U.S. 11, 89 S.Ct. 773, 22 L.Ed.2d 44 (1969); United States v. California, 381 U.S. 139, 165, 85 S.Ct. 1401, 1415, 14 L.Ed.2d 296 (1965). The definitional contexts tend to be highly fact bound,6 and the Convention provides no rule for automatic application. The Submerged Lands Act does not indicate whether the word "coast" was intended by Congress to encompass only the natural shore, or to include structures extending seaward from shore. Although we have recognized in earlier proceedings of this case that some kinds of structures may modify the California coastline, see the 1977 decree, 432 U.S. 40, 97 S.Ct. 2915, 53 L.Ed.2d 94, this Court has never adopted a view that all structures erected on the coast may be considered extensions of the coast.
10
Open piers, such as those at issue here, are elevated above the surface of the ocean on pilings. Accordingly, they do not conform to the general rule for establishing a baseline from which to measure the extent of a coastal state's jurisdiction. That rule, contained in Art. 3 of the Convention, states:
11
"[T]he normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State."
12
The type of construction of the piers does not, without more, require a determination adverse to California. See, e. g., United States v. California, 381 U.S., at 176-177, 85 S.Ct., at 1421-1422. But the absence of a "lower low-water line" deprives the piers of a "normal baseline," and precludes them from falling within the ambit of Art. 3.
13
The ultimate conclusion of the Special Master implicitly recognizes this proposition. He did not view the discontinuity of the waterline as dispositive, correctly noting that some breakwaters, for example, also have discontinuous water-lines, and have been held to be part of the coastline. But by considering and disposing of California's claim under Art. 8 of the Convention, in effect on exception to the general rule embodied in Art. 3, see discussion infra, he necessarily found the criteria of Art. 3 were not satisfied.
14
The fact that every National Ocean Survey chart of the California coast "officially recognized" by the United States displays a black line connoting the coastal low-water mark following the configuration of the seaward edge of the 16 structures, as it does groins, breakwaters, and other structures that extend seaward, is likewise not dispositive. We agree with the Master's finding that the charts contain an aggregate of errors and in many places depict the territorial sea without regard to the coastline. And each chart as the Master found, includes a disclaimer to that effect.
15
California suggests that Article 8 of the Convention also affords support for its position. Art. 8 provides:
16
"For the purpose of delimiting the territorial sea, the outermost permanent harbour works which form an integral part of the harbour system shall be regarded as forming part of the coast."
17
Although in an earlier stage of this litigation we incorporated this text into the decree, 382 U.S. 448, 449, 86 S.Ct. 607, 15 L.Ed.2d 517 (1966), we did not construe the language as encompassing all structures erected on the shore.
18
The piers and the island complex involved in this case are not a part of outermost harbor works; nor do they form an integral part of a harbor system. We held in the Louisiana Boundary Case, supra, that the term "harbour works" refers to " '[s]tructures erected along the seacoast at inlets or rivers for protective purposes, or for enclosing sea areas adjacent to the coast to provide anchorage and shelter.' " 394 U.S., at 37, n. 42, 89 S.Ct., at 788.7 These structures neither "protect," "enclose," nor "shelter";8 they do not constitute harbor works within the meaning of Art. 8.
19
A "harbor" under Art. 8 is a body of water providing a haven for safe anchorage and shelter for vessels. See Louisiana Boundary Case, supra, at 37, n. 42, 89 S.Ct., at 788, citing 1 A. Shalowitz, Shore and Sea Boundaries 60, n. 65 (1962). That the piers and the Rincon Island complex provide no protection has been noted; that they are not bodies of water states the obvious. It follows that since the structures are neither harbor works nor harbors, they cannot constitute an integral part of a harbor system.
20
The State seeks to import language from the International Law Commission's Commentary to the final draft of Art. 8, primarily Comment 2, Report of the International Law Commission to the General Assembly, U.N.Gen.Ass.Off.Rec., 11th Sess., Supp. No. 9, U.N.Doc. A/3159, p. 16 (1956), as support for its position that Art. 8 should be construed to cover these structures. Comment 2 states:
21
"Permanent structures erected on the coast and jutting out to sea (such as jetties and coast protective works) are assimilated to harbour works."
22
Comment 2 has been held to envision erosion jetties, but we have highlighted the beach protection or harbor protection role they fulfill as well. Louisiana Boundary Case, supra, at 49-50, n. 64, 89 S.Ct., at 794-795. A construction of the Comment as including these piers and the island complex which concededly do not fulfill such a role would unwarrantedly extend the most generous intimation of the Comment.9
23
Finally, the State relies upon decisions in which the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424, 33 U.S.C. § 901 et seq., was applied to accidents which occurred on piers as evidence that Congress intended domestic rather than admiralty law to control judicial construction of the Submerged Lands Act. E. g., Nacirema Co. v. Johnson, 396 U.S. 212, 90 S.Ct. 347, 24 L.Ed.2d 371 (1969); Travelers Insurance Co. v. Shea, 382 F.2d 344 (CA5 1967); Michigan Mutual Liability Co. v. Arrien, 344 F.2d 640 (CA2 1965); East v. Oosting, 245 F.Supp. 51 (E.D.Va.1965); Johnson v. Traynor, 243 F.Supp. 184 (Md.1965). It suggests this is at least an implicit congressional declaration that piers are land, and are thus part of the coastline. However, in an earlier incarnation of this case, we held to the contrary. United States v. California, 381 U.S., at 150-154, 85 S.Ct., at 1407-1410; see also, Louisiana Boundary Case, supra, at 19, 89 S.Ct., at 779. Nothing that has occurred since that ruling indicates that Congress has withdrawn from the courts the authority to define "coastline." We have looked to the Convention to give content to the Submerged Lands Act; no reason is advanced which persuades us to do otherwise today.
24
The exception of the State of California to the report of the Special Master is overruled. The Special Master shall prepare a proposed form of decree consistent with this opinion and present it to this Court for entry in due course.
25
It is so ordered.
26
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
1
The other issues involve the location of the seaward limit of inland waters at the Port of San Pedro and at the mouth of San Diego Bay. The parties acquiesce in the Master's conclusion as to these issues and anticipate their resolution by agreement.
2
These blocks resemble giant versions of a child's "jacks."
3
As the Master correctly noted, "Rincon Island could not qualify as an 'island' for purposes of delimiting the territorial sea under the Geneva Convention because it is an artificial island." See Art. 10, Convention on the Territorial Sea and the Contiguous Zone, Apr. 29, 1958, [1964] 15 U.S.T. 1606, T.I.A.S. No. 5369. For all intents and purposes, then, the island complex is treated the same as the piers at issue.
4
The piers are not unlike fishing piers found in many coastal areas.
5
The Master noted that though some shipping is handled at some of the piers, it is insufficient to justify defining them as "ports." For example, one of them is fitted with a coin-operated davit for lowering small boats into the water. We agree with this conclusion. The island, as an island, was disqualified from serving as a base point for measuring the territorial sea because of its artificiality. See n. 3, supra.
6
For other discussions on the significance of factual distinctions and their attendant implications among jetties, groins, breakwaters, and spoil banks, see Texas v. Louisiana, 426 U.S. 465, 469, and n. 3, 96 S.Ct. 2155, 2157, 48 L.Ed.2d 775 (1976); United States v. Louisiana, 389 U.S. 155, 158, 88 S.Ct. 367, 369, 19 L.Ed.2d 383 (1967).
7
In ruling in the Boundary Case that Louisiana's dredged channels were not "harbour works," we said:
". . . Article 8 applies only to raised structures. The discussions of the Article by the 1958 Geneva Conference and the International Law Commission reveal that the term 'harbour works' connoted 'structures' and 'installations' which were 'part of the land' and which in some sense enclosed and sheltered the waters within." 394 U.S., at 36-37, 89 S.Ct., at 788 (emphasis added).
8
California's coastal engineering expert testified that these piers are designed to have no effect on the movement of the sea. By contrast, groins and jetties are intended to affect wave action.
9
Even if we were to assume, as did the Master, that "jetties" means "piers," we would also agree with his conclusion, as we have, that these piers do not fall within Art. 8 because they are not part of a harbor or harbor system. But in light of our disposition it is unnecessary, and we decline, to join the dispute between the parties over the precise definition of "jetties" as contained in the English and French versions of the Convention.
| 910
|
447 U.S. 10
100 S.Ct. 1999
64 L.Ed.2d 689
F. W. STANDEFER, Petitioner,v.UNITED STATES.
No. 79-383.
Argued April 14, 1980.
Decided June 9, 1980.
Syllabus
Petition was indicted for, inter alia, aiding and abetting a named Internal Revenue Service agent in accepting unlawful compensation, in violation of 26 U.S.C. § 7214(a)(2) and 18 U.S.C. § 2, which provides that whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal. Prior to the indictment, the IRS agent was acquitted of certain of the § 7214(a)(2) violations which petitioner was accused of aiding and abetting. Petitioner moved to dismiss his indictment as to aiding and abetting these violations on the ground that since the agent had been acquitted of such violations, petitioner could not be convicted of aiding and abetting them. The District Court denied the motion, and after trial petitioner was convicted. The Court of Appeals affirmed.
Held : A defendant accused of aiding and abetting in the commission of a federal offense may properly be convicted despite the prior acquittal of the alleged actual perpetrator of the offense. Pp. 14-26.
(a) Read against its common-law background, 18 U.S.C. § 2 evinces a clear congressional intent to permit such a conviction. The section gives general effect to what had always been the common-law rule for second-degree principals (principals who were actually or constructively present at the scene of the crime and aided and abetted its commission) and for all misdemeanants. The legislative history of § 2 confirms this understanding. With the enactment of § 2, all participants in conduct violating a federal criminal statute are "principals," and as such they are punishable for their criminal conduct, the fate of other participants being irrelevant. Pp. 15-20.
(b) The Government is not barred, under the doctrine of nonmutual collateral estoppel, from relitigating the issue of whether the IRS agent accepted unlawful compensation. Application of that doctrine is not appropriate here. In a criminal case, the Government is often without the kind of "full and fair opportunity to litigate" that is a prerequisite of estoppel. The application of collateral estoppel in criminal cases is also complicated by rules of evidence and exclusion unique to criminal law. Finally, in this case the important federal interest in the enforcement of the criminal law outweighs the economy concerns undergirding the collateral estoppel doctrine. Pp. 21-25.
3 Cir., 610 F.2d 1076, affirmed.
Harold Gondelman, Pittsburgh, Pa., for petitioner.
William H. Alsup, Washington, D. C., for respondent.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari in this case to decide whether a defendant accused of aiding and abetting in the commission of a federal offense may be convicted after the named principal has been acquitted of that offense.
2
* In June 1977, petitioner Standefer was indicted on four counts of making gifts to a public official, in violation of 18 U.S.C. § 201(f), and on five counts of aiding and abetting a revenue official in accepting compensation in addition to that authorized by law, in violation of 26 U.S.C. § 7214(a)(2) and 18 U.S.C. § 2.1 The indictment charged that petitioner, as head of Gulf Oil Corp.'s tax department, had authorized payments for five vacation trips to Cyril Niederberger, who then was the Internal Revenue Service agent in charge of the audits of Gulf's federal income tax returns.2 Specifically, the indictment alleged that Gulf, on petitioner's authorization, had paid for vacations for Niederberger in Pompano Beach (July 1971), Miami (January 1973), Absecon (August-September 1973), Pebble Beach (April 1974), and Las Vegas (June 1974). The four counts under 18 U.S.C. § 201(f) related to the Miami, Absecon, Pebble Beach, and Las Vegas vacations; the five counts under 26 U.S.C. § 7214(a)(2) and 18 U.S.C. § 2 were one for each vacation.3
3
Prior to the filing of this indictment, Niederberger was separately charged in a 10-count indictment—two counts for each of the five vacations—with violating 18 U.S.C. § 201(g)4 and 26 U.S.C. § 7214(a)(2). In February 1977, Niederberger was tried on these charges. He was convicted on four counts of violating § 201(g) in connection with the vacations in Miami, Absecon, Pebble Beach, and Las Vegas and of two counts of violating § 7214(a)(2) for the Pebble Beach and Las Vegas trips. He was acquitted on the § 201(g) count involving the Pompano Beach trip and on the three counts under § 7214(a)(2) charging him with accepting payments from Gulf for trips to Pompano Beach, Miami, and Absecon.5
4
In July 1977, following Niederberger's trial and before the trial in his own case commenced, petitioner moved to dismiss the counts under § 7214(a)(2) and 18 U.S.C. § 2 which charged him with aiding and abetting Niederberger in connection with the Pompano Beach, Miami, and Absecon vacations. Petitioner argued that because Niederberger, the only named principal, had been acquitted of accepting unlawful compensation as to those vacations, he could not be convicted of aiding and abetting in the commission of those offenses. The District Court denied the motion.
5
Petitioner's case then proceeded to trial on all nine counts. At trial, petitioner admitted authorizing payment for all five vacation trips, but testified that the trips were purely social and not designed to influence Niederberger in the performance of his official duties. The jury returned guilty verdicts on all nine counts.6 Petitioner was sentenced to concurrent terms of six months' imprisonment followed by two years' probation; he was fined a total of $18,000—$2,000 on each count.
6
Petitioner appealed his convictions to the Court of Appeals for the Third Circuit claiming, inter alia, that he could not be convicted of aiding and abetting a principal, Niederberger, when that principal had been acquitted of the charged offense. By a divided vote, the Court of Appeals, sitting en banc, rejected that contention. 610 F.2d 1076 (1979). It concluded that "the outcome of Niederberger's prosecution has no effect on [petitioner's] conviction." Id., at 1078.
7
Because the question presented is one of importance to the administration of criminal justice on which the Courts of Appeals are in conflict, we granted certiorari.7 444 U.S. 1011, 100 S.Ct. 658, 62 L.Ed.2d 640. We affirm.
II
8
Petitioner makes two main arguments: first, that Congress in enacting 18 U.S.C. § 2 did not intend to authorize prosecution of an aider and abettor after the principal has been acquitted of the offense charged; second, that, even if § 2 permits such a prosecution, the Government should be barred from relitigating the issue of whether Niederberger accepted unlawful compensation in connection with the Pompano Beach, Miami, and Absecon vacations.8 The first contention relies largely on the common law as it prevailed before the enactment of 18 U.S.C. § 2. The second rests on the contemporary doctrine of nonmutual collateral estoppel.
9
* At common law, the subject of principals and accessories was riddled with "intricate" distinctions. 2 J. Stephen, A History of the Criminal Law of England 231 (1883). In felony cases, parties to a crime were divided into four distinct categories: (1) principals in the first degree who actually perpetrated the offense; (2) principals in the second degree who were actually or constructively present at the scene of the crime and aided or abetted its commission; (3) accessories before the fact who aided or abetted the crime, but were not present at its commission; and (4) accessories after the fact who rendered assistance after the crime was complete. See W. LaFave & A. Scott, Criminal Law § 63 (1972); 4 W. Blackstone, Commentaries *33; Perkins, Parties to Crime, 89 U.Pa.L.Rev. 581 (1941). By contrast, misdemeanor cases "d[id] not admit of accessaries either before or after the fact," United States v. Hartwell, 26 F.Cas. No. 15, 318, pp. 196, 199 (CC Mass.1869); instead, all parties to a misdemeanor, whatever their roles, were principals. United States v. Dotterweich, 320 U.S. 277, 281, 64 S.Ct. 134, 136, 88 L.Ed. 48 (1943); 1 C. Torcia, Wharton's Criminal Law § 33 (14th ed. 1978).
10
Because at early common law all parties to a felony received the death penalty, certain procedural rules developed tending to shield accessories from punishment. See LaFave & Scott, supra, at 499. Among them was one of special relevance to this case: the rule that an accessory could not be convicted without the prior conviction of the principal offender. See 1 M. Hale, Pleas of the Crown *623-*624. Under this rule, the principal's flight, death, or acquittal barred prosecution of the accessory. And if the principal were pardoned or his conviction reversed on appeal, the accessory's conviction could not stand. In every way "an accessory follow [ed], like a shadow, his principal." 1 J.Bishop, Criminal Law § 666 (8th ed. 1892).
11
This procedural bar applied only to the prosecution of accessories in felony cases. In misdemeanor cases, where all participants were deemed principals, a prior acquittal of the actual perpetrator did not prevent the subsequent conviction of a person who rendered assistance. Queen v. Humphreys and Turner, [1965] 3 All E.R. 689; Queen v. Burton, 13 Cox C. C. 71, 75 (Crim.App.1875). And in felony cases a principal in the second degree could be convicted notwithstanding the prior acquittal of the first-degree principal. King v. Taylor and Shaw, 168 Eng.Rep. 283 (1785); Queen v. Wallis, 1 Salk. 334, 91 Eng.Rep. 294 (K.B.1703); Brown v. State, 28 Ga. 199 (1859); State v. Whitt, 113 N. C. 716, 18 S. E. 715 (1893). Not surprisingly, considerable effort was expended in defining the categories—in determining, for instance, when a person was "constructively present" so as to be a second-degree principal. 4 Blackstone, supra, at *34. In the process, justice all too frequently was defeated.
12
To overcome these judge-made rules, statutes were enacted in England and in the United States. In 1848 the Parliament enacted a statute providing that an accessory before the fact could be "indicted, tried, convicted, and punished in all respects like the Principal." 11 & 12 Vic. ch. 46, § 1 (emphasis added). As interpreted, the statute permitted an accessory to be convicted "although the principal be acquitted." Queen v. Hughes, Bell 242, 248, 169 Eng.Rep. 1245, 1248 (1860). Several state legislatures followed suit.9 In 1899, Congress joined this growing reform movement with the enactment of a general penal code for Alaska which abrogated the common-law distinctions and provided that "all persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the crime or aid and abet in its commission, though not present, are principals, and to be tried and punished as such." Act of Mar. 3, 1899, § 186, 30 Stat. 1282. In 1901, Congress enacted a similar provision for the District of Columbia.10
13
The enactment of 18 U.S.C. § 2 in 1909 was part and parcel of this same reform movement. The language of the statute, as enacted, unmistakably demonstrates the point:
14
"Whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal." Act of Mar. 4, 1909, § 332, 35 Stat. 1152 (emphasis added).11
15
The statute "abolishe[d] the distinction between principals and accessories and [made] them all principals." Hammer v. United States, 271 U.S. 620, 628, 46 S.Ct. 603, 604, 70 L.Ed. 1118 (1926). Read against its common-law background, the provision evinces a clear intent to permit the conviction of accessories to federal criminal offenses despite the prior acquittal of the actual perpetrator of the offense. It gives general effect to what had always been the rule for second-decree principals and for all misdemeanants.
16
The legislative history of § 2 confirms this understanding. The provision was recommended by the Commission to Revise and Codify the Criminal and Penal Laws of the United States as "[i]n accordance with the policy of recent legislation" by which "those whose relations to a crime would be that of accessories before the fact according to the common law are made principals." 1 Final Report of the Commission to Revise and Codify the Laws of the United States 118-119 (1906). The Commission's recommendation was adopted without change. The House and Senate Committee Reports, in identical language, stated its intended effect:
17
"The committee has deemed it wise to make those who are accessories before the fact at common law principal offenders, thereby permitting their indictment and conviction for a substantive offense.
18
"At common law an accessory can not be tried without his consent before the conviction or outlawry of the principal except where the principal and accessory are tried together; if the principal could not be found or if he had been indicted and refused to plea, had been pardoned or died before conviction, the accessory could not be tried at all. This change of the existing law renders these obstacles to justice impossible." S.Rep. No. 10, 60th Cong., 1st Sess., pt. 1, p. 13 (1908); H.R.Rep. No. 2, 60th Cong., 1st Sess., pt. 1, p. 13 (1908).12
19
And on the floor of the House of Representatives, Representative Moon, the Chairman of the Joint Select Committee, put the point simply: "We . . . have abolished the existing arbitrary distinction between felonies and misdemeanors." 42 Cong.Rec. 585 (1908).
20
This history plainly rebuts petitioner's contention that § 2 was not intended to authorize conviction of an aider and abettor after the principal had been acquitted of the offense charged.13 With the enactment of that section, all participants in conduct violating a federal criminal statute are "principals." As such, they are punishable for their criminal conduct; the fate of other participants is irrelevant.14
B
21
The doctrine of nonmutual collateral estoppel was unknown to the common law and to the Congress when it enacted § 2 in 1909.15 It emerged in a civil case in 1942, Bernhard v. Bank of America Nat. Trust & Savings Assn., 19 Cal.2d 807, 122 P.2d 892. This Court first applied the doctrine in Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971). There, we held that a determination of patent invalidity in a prior infringement action was entitled to preclusive effect against the patentee in subsequent litigation against a different defendant. Just this past Term we again applied the doctrine—this time "offensively"—to hold that a defendant who had had a "full and fair" opportunity to litigate issues of fact in a civil proceeding initiated by the Securities and Exchange Commission could be estopped from relitigating those issues in a subsequent action brought by a private plaintiff. Parkline Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). In both cases, application of nonmutual estoppel promoted judicial economy and conserved private resources without unfairness to the litigant against whom estoppel was invoked.
22
Here, petitioner urges us to apply nonmutual estoppel against the Government; specifically he argues that the Government should be barred from relitigating Niederberger's guilt under § 7214(a)(2) in connection with the vacation trips to Pompano Beach, Miami, and Absecon. That issue, he notes, was an element of his offense which was determined adversely to the Government at Niederberger's trial.16
23
This, however, is a criminal case, presenting considerations different from those in Blonder-Tongue or Parklane Hosiery. First, in a criminal case, the Government is often without the kind of "full and fair opportunity to litigate" that is a prerequisite of estoppel. Several aspects of our criminal law make this so: the prosecution's discovery rights in criminal cases are limited, both by rules of court and constitutional privileges; it is prohibited from being granted a directed verdict or from obtaining a judgment notwithstanding the verdict no matter how clear the evidence in support of guilt, cf. Fed.Rule Civ.Proc. 50; it cannot secure a new trial on the ground that an acquittal was plainly contrary to the weight of the evidence, cf. Fed.Rule Civ.Proc. 59; and it cannot secure appellate review where a defendant has been acquitted. See United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 1195, 41 L.Ed. 300 (1896).
24
The absence of these remedial procedures in criminal cases permits juries to acquit out of compassion or compromise or because of " 'their assumption of a power which they had no right to exercise, but to which they were disposed through lenity.' " Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356 (1932), quoting Steckler v. United States, 7 F.2d 59, 60 (CA2 1925). See generally H. Kalven & H. Zeisel, The American Jury 193-347 (ed. 1976).17 It is of course true that verdicts induced by passion and prejudice are not unknown in civil suits. But in civil cases, post-trial motions and appellate review provide an aggrieved litigant a remedy; in a criminal case the Government has no similar avenue to correct errors. Under contemporary principles of collateral estoppel, this factor strongly militates against giving an acquittal preclusive effect. See Restatement (Second) of Judgments § 68.1 (Tent. Draft No. 3, 1976) (denying preclusive effect to an unreviewable judgment).18
25
The application of nonmutual estoppel in criminal cases is also complicated by the existence of rules of evidence and exclusion unique to our criminal law. It is frequently true in criminal cases that evidence inadmissible against one defendant is admissible against another. The exclusionary rule, for example, may bar the Government from introducing evidence against one defendant because that evidence was obtained in violation of his constitutional rights. And the suppression of that evidence may result in an acquittal. The same evidence, however, may be admissible against other parties to the crime "whose rights were [not] violated." Alderman v. United States, 394 U.S. 165, 171-172, 89 S.Ct. 961, 965, 22 L.Ed.2d 176 (1969). Accord, Rakas v. Illinois, 439 U.S. 128, 134, 99 S.Ct. 421, 425, 58 L.Ed.2d 387 (1978). In such circumstances, where evidentiary rules prevent the Government from presenting all its proof in the first case, application of nonmutual estoppel would be plainly unwarranted.19
26
It is argued that this concern could be met on a case-by-case basis by conducting a pretrial hearing to determine whether any such evidentiary ruling had deprived the Government of an opportunity to present its case fully the first time around. That process, however, could prove protracted and burdensome. Under such a scheme, the Government presumably would be entitled to seek review of any adverse evidentiary ruling rendered in the first proceeding and of any aspect of the jury charge in that case that worked to its detriment. Nothing short of that would insure that its opportunity to litigate had been "full and fair." If so, the "pretrial hearing" would fast become a substitute for appellate review, and the very purpose of litigation economy that estoppel is designed to promote would be frustrated.
27
Finally, this case involves an ingredient not present in either Blonder-Tongue or Parklane Hosiery : the important federal interest in the enforcement of the criminal law. Blonder-Tongue and Parklane Hosiery were disputes over private rights between private litigants. In such cases, no significant harm flows from enforcing a rule that affords a litigant only one full and fair opportunity to litigate an issue, and there is no sound reason for burdening the courts with repetitive litigation.
28
That is not so here. The Court of Appeals opinion put the point well:
29
"[T]he purpose of a criminal court is not to provide a forum for the ascertainment of private rights. Rather it is to vindicate the public interest in the enforcement of the criminal law while at the same time safeguarding the rights of the individual defendant. The public interest in the accuracy and justice of criminal results is greater than the concern for judicial economy professed in civil cases and we are thus inclined to reject, at least as a general matter, a rule that would spread the effect of an erroneous acquittal to all those who participated in a particular criminal transaction. To plead crowded dockets as an excuse for not trying criminal defendants is in our view neither in the best interests of the courts, nor the public." 610 F.2d, at 1093.
30
In short, this criminal case involves "competing policy considerations" that outweigh the economy concerns that undergird the estoppel doctrine. See Restatement (Second) of Judgments § 68.1(e) and comments thereto (Tent. Draft No. 3, 1976); cf. Commissioner v. Sunnen, 333 U.S. 591, 68 S.Ct. 715, 92 L.Ed. 898 (1948).
III
31
In denying preclusive effect to Niederberger's acquittal, we do not deviate from the sound teaching that "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). This case does no more than manifest the simple, if discomforting, reality that "different juries may reach different results under any criminal statute. That is one of the consequences we accept under our jury system." Roth v. United States, 354 U.S. 476, 492, n. 30, 77 S.Ct. 1304, 1313, n. 30, 1 L.Ed.2d 1498 (1957). While symmetry of results may be intellectually satisfying, it is not required. See Hamling v. United States, 418 U.S. 87, 101, 94 S.Ct. 2887, 2899, 41 L.Ed.2d 590 (1974).
32
Here, petitioner received a fair trial at which the Government bore the burden of proving beyond reasonable doubt that Niederberger violated 26 U.S.C. § 7214(a)(2) and that petitioner aided and abetted him in that venture. He was entitled to no less and to no more.
The judgment of the Court of Appeals is
33
Affirmed.
1
Title 18 U.S.C. § 201(f) provides, in relevant part, as follows:
"Whoever, otherwise than as provided by law for the proper discharge of official duty, directly or indirectly gives, offers, or promises anything of value to any public official . . . for or because of any official act performed or to be performed by such public official . . . [is guilty of an offense]."
Title 26 U.S.C. § 7214(a)(2) punishes:
"Any officer or employee of the United States acting in connection with any revenue law of the United States . . . who knowingly demands other or greater sums than are authorized by law, or receives any fee, compensation, or reward, except as by law prescribed, for the performance of any duty."
Title 18 U.S.C. § 2 provides in relevant part:
"Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal."
2
The indictment also named Gulf Oil Corp. and Joseph Fitzgerald, a manager in Gulf's tax department, as defendants. Gulf pleaded guilty and Fitzgerald nolo contendere to all nine counts.
3
It appears that the statute of limitations had run on any violation of 18 U.S.C. § 201(f) in connection with the Pompano Beach vacation.
4
Title 18 U.S.C. § 201 (g) punishes:
"Whoever, being a public official . . ., otherwise than as provided by law for the proper discharge of official duty, directly or indirectly asks, demands, exacts, solicits, seeks, accepts, receives, or agrees to receive anything of value for himself for or because of any official act performed or to be performed by him."
5
Niederberger was sentenced to six months' imprisonment followed by a five-year period of probation, and he was fined $5,000. His convictions were affirmed by the Court of Appeals. United States v. Niederberger, 580 F.2d 63 (CA3 1978).
6
The jury was instructed that in order to render a guilty verdict on the § 7214 (a) counts it must determine (1) that Niederberger knowingly "received a fee, compensation or reward except as prescribed by law . . . for the performance . . . of any duty" and (2) that petitioner "willfully aided and abetted [him]." App. 53a-54a, 57a.
7
The Courts of Appeals for the Fifth Circuit, the Ninth Circuit, and the District of Columbia Circuit have reached the same conclusion as the Third Circuit. See United States v. Musgrave, 483 F.2d 327, 331-332 (CA5 1973); United States v. Azadian, 436 F.2d 81 (CA9 1971); Perkins v. United States, 315 F.2d 120, 122 (CA9 1963); Gray v. United States, 104 U.S. App.D.C. 153, 260 F.2d 483 (1958). The Court of Appeals for the Fourth Circuit has taken the contrary view that "where the only potential principal has been acquitted, no crime has been established and the conviction of an aider and abettor cannot be sustained." United States v. Shuford, 454 F.2d 772, 779 (1971). Accord, United States v. Prince, 430 F.2d 1324 (CA4 1970). See also n. 11, infra.
8
Petitioner also challenges the instructions to the jury on criminal intent. We agree with the Court of Appeals that the instructions were correct.
9
By 1909, when § 2 was enacted, 13 States had enacted legislation providing that the acquittal of the actual perpetrator was not a bar to the conviction of one charged with giving him aid. See Cal.Stat., ch. 99, §§ 11, 12 (1850) (see People v. Bearss, 10 Cal. 68, 70 (1858)); Del.Rev.Stat., ch. 133, § 1 (1893); Iowa Rev.Code Ann. § 4314 (1885) (see State v. Lee, 91 Iowa 499, 501-502, 60 N.W. 119, 120 (1894)); Kan.Gen.Stat. § 5180 (1889) (see State v. Bogue, 52 Kan. 79, 86-87, 34 P. 410, 412 (1893)); Ky.Stat. § 1128 (1903) (see Commonwealth v. Hicks, 118 Ky. 637, 642, 82 S.W. 265, 266 (1904); Miss.Code § 1026 (1906) (see Fleming v. State, 142 Miss. 872, 880-881, 108 So. 143, 144-145 (1926)); Mont.Penal Code Ann. § 1854 (1895); N.Y. Penal Code § 29 (1895)
(see People v. Kief, 126 N.Y. 661, 663-664, 27 N.E. 556, 557 (1891)); N.D.Rev.Code Crim.Proc. § 8060 (1895); Okla.Stat. § 5523 (1890); S.D.Stat.Ann. § 8520 (1899); Utah Comp. Laws § 4752 (1907); Wash.Code of Proc. § 1189 (1891) (see State v. Gifford, 19 Wash. 464, 467-468, 53 P. 709, 710 (1898)).
Since then, at least 21 other States have enacted legislation with that effect. See 1977 Ala. Act No. 607, § 425; Ariz.Rev.Stat.Ann. § 13-304-1 (1978); Ark.Stat.Ann. § 41-304 (1977); Colo.Rev.Stat. § 18-1-605 (1973) (see Roberts v. People, 103 Colo. 250, 87 P.2d 251 (1938)); Conn.Gen.Stat. § 53a-9 (1979); Fla.Stat. § 777.011 (1979) (see Butts v. State, Fla.App., 286 So.2d 28 (1973)); Ga.Code § 26-802 (1978); Ill.Rev.Stat., ch. 38, § 5-3 (1979); Ind.Code § 35-41-2-4 (Supp.1978); La.Rev.Stat.Ann. § 14:24 (West 1974) (see State v. McAllister, La., 366 So.2d 1340 (1978)); Me.Rev.Stat.Ann., Tit. 17-A, § 57 (1979); Mich.Comp.Laws § 767.39 (1970) (People v. Smith, 271 Mich. 553, 260 N.W. 911 (1935)); Mo.Rev.Stat. § 562.046 (1978); Neb.Rev.Stat. § 28-206 (Supp.1978) (State v. Rice, 188 Neb. 728, 199 N.W.2d 480 (1972)); N.H.Rev.Stat.Ann. § 626:8 (1974); N.J.Stat.Ann. § 2C:2-6 (West Spec.Pamph.1979); N.M.Stat.Ann. § 30-1-13 (1978); Pa.Cons.Stat., Tit. 18, § 306 (Supp.1979); S.C.Code § 16-1-50 (1976) (State v. Massey, 267 S.C. 432, 229 S.E.2d 332 (1976)); Tex.Penal Code Ann. § 7.03 (Vernon 1974); Wis.Stat. § 939.05 (1977).
Eleven other States have enacted statutes that modify the common-law rule; these statutes have not been authoritatively construed on whether an accessory can be prosecuted after his principal's acquittal. See Haw.Rev.Stat. § 702-225 (1976); Idaho Code § 19-1431 (1979); Mass.Gen.Laws Ann., ch. 274, § 3 (West 1970); Minn.Stat. § 609.05 (1978); Nev.Rev.Stat. § 195.040 (1979); Ohio Rev.Code Ann. § 2923.03 (1979); Ore.Rev.Stat. § 161.160 (1979); Vt.Stat.Ann., Tit. 13, § 3 (1974); Va.Code § 18.2-21 (1975); W.Va.Code § 61-11-7 (1977); Wyo.Stat. § 6-1-114 (1977).
Only four States—Maryland, North Carolina, Rhode Island, and Tennessee—clearly retain the common-law bar. See State v. Ward, 284 Md. 189, 396 A.2d 1041 (1978); State v. Jones, 101 N.C. 719, 8 S.E. 147 (1888) (interpreting N.C.Gen.Stat. § 14-5 (1969)); R.I.Gen.Laws § 11-1-3 (1970); Pierce v. State, 130 Tenn. 24, 168 S.W. 851 (1914).
The Model Penal code provides that an accomplice may be convicted "though the person claimed to have committed the offense . . . has been acquitted." § 2.06(7) (Tent. Draft No. 3, 1955), and see comments 38-39 (Tent. Draft No. 1, 1953).
10
The provision is still in effect; it provides that all persons "aiding or abetting the principal offender, shall be charged as principals and not as accessories, the intent of this section being that as to all accessories before the fact the law heretofore applicable in cases of misdemeanor only shall apply to all crimes . . . ." Act of Mar. 3, 1901, § 908, 31 Stat. 1337; D.C.Code § 22-105 (1973) (emphasis added).
11
In 1951, the words "is a principal" were altered to read "is punishable as a principal." That change was designed to eliminate all doubt that in the case of offenses whose prohibition is directed at members of specified classes (e. g. federal employees) a person who is not himself a member of that class may nonetheless be punished as a principal if he induces a person in that class to violate the prohibition. See S.Rep. No. 1020, 82d Cong., 1st Sess., 7-8 (1951). The change was fully consistent with congressional intent to treat accessories before the fact as principals and to abolish the common-law procedural bar. Indeed, by the time of the 1951 re-enactment, the Circuit Courts that had addressed the question had concluded that § 2 authorizes conviction of an aider and abettor notwithstanding the prior acquittal of the perpetrator of the offense. See United States v. Klass, 166 F.2d 373, 380 (CA3 1948); Von Patzoll v. United States, 163 F.2d 216, 219 (CA10 1947); Kelly v. United States, 258 F. 392, 402 (CA6 1919); Rooney v. United States, 203 F. 928, 931-932 (CA9 1913). Congress manifested no intent to disturb this interpretation. See Lorillard v. Pons, 434 U.S. 575, 580, 98 S.Ct. 866, 869, 55 L.Ed.2d 40 (1978).
12
Petitioner emphasizes the fact that the Committee Report fails to mention the common-law rule that the prior acquittal of a principal barred conviction of an accessory, and argues accordingly that Congress did not view that rule as an "obstacle to justice." The Court of Appeals correctly rejected this argument, being unwilling to "apply the canon of statutory interpretation . . . expressio unius, exclusio alterius . . . to the language employed in a committee report." 610 F.2d 1076, 1084 (CA3 1979) (emphasis added). We agree. Petitioner's argument would permit an omission in the legislative history to nullify the plain meaning of a statute. The language of § 2 abolishes the common-law categories and treats all parties as principals. It is not necessary for Congress in its committee reports to identify all of the "weeds" which are being excised from the garden.
13
It bears mention that even prior to 1909 petitioner would not have prevailed in his attempt to bar prosecution on the § 7214(a)(2) counts. As the Government notes, the version of 26 U.S.C. § 7214 then in effect defined the offense to be a misdemeanor. See Rev.Stat. § 3169 (1878). Hence, the prior acquittal of his principal would not have barred petitioner's prosecution. And because petitioner accompanied Niederberger on four of five trips and therefore was "present" at the scene of the crime, see Tr. 1018-1020, 1024-1027, 1034-1036, 1096, he could have been convicted at common law for those crimes even if the offense had been designated a felony.
14
Nothing in Shuttlesworth v. Birmingham, 373 U.S. 262, 83 S.Ct. 1130, 10 L.Ed.2d 335 (1963), relied on by petitioner, is to the contrary. There, petitioner had been convicted of aiding and abetting others to violate a city trespass ordinance which subsequently was declared constitutionally invalid. See Gober v. Birmingham, 373 U.S. 374, 83 S.Ct. 1311, 10 L.Ed.2d 419 (1963). Shuttlesworth's case merely applied the rule that "there can be no conviction for aiding and abetting someone to do an innocent act." 373 U.S., at 265, 83 S.Ct., at 1132. Here, by contrast, the Government proved in petitioner's case that Niederberger had violated § 7214(a)(2) in connection with each of the five trips. See n. 6, supra.
15
In 1912, in Bigelow v. Old Dominion Copper Co., 225 U.S. 111, 127, 32 S.Ct. 641, 642, 56 L.Ed. 1009, this Court stated that it was "a principle of general elementary law that the estoppel of a judgment must be mutual." See also Stone v. Farmers Bank of Kentucky, 174 U.S. 409, 19 S.Ct. 880, 43 L.Ed. 1027 (1899); Keokuk & Western R. Co. v. Missouri, 152 U.S. 301, 317, 14 S.Ct. 592, 598, 38 L.Ed. 450 (1894); Litchfield v. Goodnow, 123 U.S. 549, 552, 8 S.Ct. 210, 211, 31 L.Ed. 199 (1887).
16
Petitioner does not contend that the Constitution prevents the government from prosecuting him on the three § 7214(a)(2) counts as to which Niederberger was acquitted. Nothing in the Double Jeopardy Clause or the Due Process Clause forecloses putting petitioner on trial as an aider and abettor simply because another jury has determined that his principal was not guilty of the offenses charged. Cf. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).
17
Niederberger's case demonstrates the point. As to the Absecon and Miami vacations, the jury convicted Niederberger of receiving something of value "because of any official act performed . . . by him," 18 U.S.C. § 201(g), but acquitted him of receiving "any fee, compensation, or reward . . . for the performance of any duty," 26 U.S.C. § 7214(a)(2). No explanation has been offered for these seemingly irreconcilable determinations. This inconsistency is reason, in itself, for not giving preclusive effect to the acquittals on the Absecon and Miami counts. See Restatement (Second) of Judgments § 88(4) (Tent. Draft No. 3, 1976). See also 610 F.2d at 1112 (Gibbons, J., concurring in part and dissenting in part); Harary v. Blumenthal, 555 F.2d 1113, 1116-1117 (CA2 1977).
18
This is not to suggest that the availability of appellate review is always an essential predicate of estoppel. See Johnson Co. v. Wharton, 152 U.S. 252, 14 S.Ct. 608, 38 L.Ed. 429 (1894); see generally 1B J. Moore & T. Currier, Moore's Federal Practice ¶ 0.416[5] (2d ed. 1974). The estoppel doctrine, however, is premised upon an underlying confidence that the result achieved in the initial litigation was substantially correct. In the absence of appellate review, or of similar procedures, such confidence is often unwarranted.
19
Indeed, as the Court of Appeals observed, to give the first case preclusive effect would undermine the Alderman rule by affording a defendant whose rights were not violated the benefits of suppression. See 610 F.2d, at 1094, n. 51.
| 01
|
447 U.S. 27
100 S.Ct. 2009
64 L.Ed.2d 702
Gerald A. LEWIS, Comptroller of the State of Florida, etc., Appellant,v.BT INVESTMENT MANAGERS, INC., et al.
No. 79-45.
Argued Jan. 15, 1980.
Decided June 9, 1980.
Syllabus
A Florida statute (§ 659.141(1)) prohibits out-of-state banks, bank holding companies, and trust companies from owning or controlling a business within the State that sells investment advisory services. Another statute (§ 660.10) prohibits all corporations except state-chartered banks and trust companies and national banks located in Florida from performing certain trust and fiduciary functions. Appellee out-of-state bank holding company's proposal to operate appellee investment management subsidiary in Florida was rejected by the Board of Governors of the Federal Reserve System on the ground that it was prohibited by § 659.141(1). Appellees then brought suit in Federal District Court for declaratory and injunctive relief, alleging, inter alia, that § 659.141(1) violates the Commerce Clause and that the joint operation of that section with § 660.10 constitutes a similar violation since but for the existence of such statutes authority would be sought to establish a subsidiary trust company in Florida. The District Court held that the statutes violate the Commerce Clause, because in combination they discriminate against out-of-state bank holding companies and are "parochial legislation" that "must be deemed per se unconstitutional." The court also held that the federal Bank Holding Company Act of 1956 does not foster or permit the types of discrimination against out-of-state bank holding companies reflected in the Florida statutes. The court granted declaratory relief against both statutes but enjoined only the enforcement of § 659.141(1).
Held:
1. Section 659.141(1) directly burdens interstate commerce in a manner that contravenes the Commerce Clause's implicit limitation on state power. Pp. 37-49.
(a) While banking and related financial activities are of profound local concern, it does not follow that these same activities lack important interstate attributes that establish Congress' power to regulate commerce and that also support constitutional limitations on the powers of the States. Such limitations clearly apply in this case. Pp. 38-39.
(b) The District Court properly concluded that § 659.141(1) is "parochial" in the sense that it overtly prevents foreign enterprises from competing in local markets. Under that section, discrimination against affected business organizations is not evenhanded because only banks, bank holding companies, and trust companies with principal operations outside Florida are prohibited from operating investment subsidiaries or giving investment advice within the State. It follows that § 659.141(1) discriminates among affected business entities according to the extent of their contacts with the local economy. Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 98 S.Ct. 2207, 57 L.Ed.2d 91, distinguished. And the disparate treatment of out-of-state bank holding companies cannot be justified as an incidental burden necessitated by legitimate local concerns, such as discouraging economic concentration or protecting the citizenry against fraud, or by an asserted interest in promoting local control over financial institutions. Pp. 39-44.
(c) Neither § 3(d) of the Bank Holding Company Act—which prohibits bank holding companies from acquiring banking subsidiaries in other States without local authorization—nor § 7 of that Act—which reserves to the States a general power to enact regulations applicable to bank holding companies—authorizes a State to prohibit out-of-state holding companies from acquiring local investment subsidiaries. The only authority § 3(d) grants to the States is the authority to permit expansion of banking across state lines where it would be otherwise federally prohibited. Moreover, the Act's structure reveals that § 3(d) applies only to holding company acquisitions of banks. Section 7 was intended to preserve existing state regulations of bank holding companies and to define the extent of the Act's pre-emptive effect on state law, and there is nothing in § 7's language or legislative history to indicate that it was also intended to extend to the States new powers to regulate banking that they would not have possessed absent federal legislation. Section 7 applies only to state legislation that operates within the boundaries marked by the Commerce Clause. Pp. 44-49.
2. Since the constitutionality of § 660.10 was neither fully placed in issue nor fully determined by the District Court's decision, the validity of that section's limitation on the types of corporations that may perform trust responsibilities is not properly before this Court at this stage of the proceedings; hence, the District Court's judgment with respect to § 660.10 is vacated and the case is remanded for further proceedings. Moreover, the amendment, in the interim, of § 3(d) of the Bank Holding Company Act so as apparently to prohibit appellee bank holding company from establishing a Florida trust subsidiary raises new jurisdictional and substantive questions that should be addressed in the first instance by the District Court. Pp. 50-53.
461 F.Supp. 1187, affirmed in part, vacated in part, and remanded.
Ervin N. Griswold, Washington, D. C., for appellant.
John L. Warden, New York City, for appellees.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
This case concerns the constitutionality of two Florida statutes regulating the conduct of investment advisory and trust services within that State. A three-judge United States District Court, convened pursuant to 28 U.S.C. § 2281 (1970 ed.),1 held that the statutes violate the Commerce Clause, U.S.Const., Art. 1, § 8, cl. 3, because in combination they discriminate against bank holding companies that operate principally outside Florida. It also held that such discrimination is not authorized by federal legislation regulating the interstate operations of bank holding companies. The case was brought here on direct appeal, see 28 U.S.C. § 1253, and we noted probable jurisdiction to resolve the substantial constitutional and statutory issues presented. 444 U.S. 822, 100 S.Ct. 41, 62 L.Ed.2d 28 (1979).
2
* Appellee Bankers Trust New York Corporation (Bankers Trust) is a corporation organized under the laws of the State of New York. It maintains its principal place of business in that State. It is a bank holding company within the meaning of § 2(a) of the Bank Holding Company Act of 1956, 70 Stat. 133, as amended, 12 U.S.C. § 1841(a) (1976 ed. and Supp. II) (Act). Accordingly, it is subject to federal restrictions on the kinds of subsidiaries it may own or control. Upon authorization from the Board of Governors of the Federal Reserve System, however, it is permitted to own or control shares of any company the business of which is "so closely related to banking or managing or controlling banks as to be a proper incident thereto." § 4(c)(8) of the Act, 12 U.S.C. § 1843(c)(8). By regulation, the Board has designated both the provision of investment or financial advice and the performance of certain trust functions as "closely related" business within the meaning of this statute. See 12 CFR §§ 225.4(a)(4) and (5) (1979).
3
In 1972, the management of Bankers Trust decided to seek the Board's approval for an investment management subsidiary to operate in Florida. On October 3 of that year, Bankers Trust filed a formal proposal for such a subsidiary, which it planned to operate from offices in Palm Beach. Appellee BT Investment Managers, Inc. (BTIM), was Bankers Trust's intended vehicle for entry into the Florida market. It was incorporated under the laws of the State of Delaware as a wholly owned subsidiary on November 24, 1972. Three days later it qualified to do business in Florida. The application to the Board proposed that BTIM would provide "portfolio investment advice," as well as "general economic information and advice, general economic statistical forecasting services and industry studies" to persons other than banks. See Complaint ¶ 7, App. 9-10, and appellant's Answer ¶ 7, App. 19.
4
When Bankers Trust filed its application with the Board, certain Florida statutes restricted the ability of out-of-state bank holding companies to compete in the State's financial market. At that time Fla.Stat. § 659.141(1), added by 1972 Fla. Laws, ch. 72-96, § 1, and effective March 28, 1972, prohibited Bankers Trust from owning or controlling a bank or trust company located within the State; the same statute also prohibited it from owning businesses furnishing investment advisory services to local banks or trust companies. In addition, Fla.Stat. § 660.10 prohibited any corporation, other than a state-chartered bank and trust company or a national banking association located in Florida, from performing certain trust and fiduciary functions. Neither statute, however, directly prohibited an out-of-state bank holding company from owning or controlling a business furnishing investment advisory services to the general public. Thus, at the time Bankers Trust filed its application with the Board, it appeared that ownership of BTIM would not violate Florida law, although BTIM would be restricted in the types of financial services it could perform and the customers it could serve.
5
The reaction of the Florida financial community to Bankers Trust's proposed investment subsidiary was decidedly negative. The State Comptroller, the Florida Bankers Association, and the Palm Beach County Bankers Association, Inc., all filed comments with the Board objecting to the Bankers Trust proposal. More importantly for present purposes, the state legislature was persuaded to take action. On November 30, 1972, shortly after BTIM had qualified to do business in the State, a special session of the legislature amended Fla.Stat. § 659.141(1). That statute, which had been on the books only since March 28 of that year, was expanded to prohibit an out-of-state bank holding company from owning or controlling a business within the State that sells investment advisory services to any customer, rather than just to "trust companies or banks" in Florida, as the statute theretofore had read.2 This amendment took effect, without the Governor's approval, on December 21, 1972. There is evidence that the amendment was a direct response to Bankers Trust's pending application, and that it had the strong backing of the local financial community.
6
On April 26, 1973, the Board rejected Bankers Trust's proposal on the ground that it would conflict with state law. Bankers Trust New York Corp., 59 Fed.Res.Bull. 364. The Board observed that the proposal contemplated de novo entry into the Florida investment management market rather than acquisition of an existing concern, and it noted that de novo entry ordinarily has a desirable procompetitive impact. Absent evidence of a contrary effect in this case, the Board intimated that it would have been favorably inclined toward the proposal. But it found that the December amendment to Fla.Stat. § 659.141(1) "was intended to, and does, prohibit the performance of investment advisory services in Florida by non-Florida bank holding companies." 59 Fed.Res.Bull., at 365. In view of its obligation to respect the dictates of state law, the Board found itself constrained to reject the proposal. See 12 U.S.C. § 1846; Whitney Nat. Bank v. Bank of New Orleans, 379 U.S. 411, 424-425, 85 S.Ct. 551, 559-560, 13 L.Ed.2d 386 (1965).
7
Within six months of the Board's decision, the two appellees filed this action seeking declaratory and injunctive relief.3 Count I of their complaint alleged that Fla.Stat. § 659.141(1) "is not designed to promote lawful regulatory objectives, but is intended to shelter those organizations presently conducting an investment advisory business in Florida from competition by [BTIM]." Complaint ¶ 11, App. 11. The complaint alleged violations of the due process and equal protection guarantees of the Fourteenth Amendment, as well as violation of the Commerce Clause. Count II alleged similar constitutional defects as the result of the joint operation of §§ 659.141(1) and 660.10. Appellees alleged that "[b]ut for the existence of the challenged statutes," Bankers Trust would seek authority from the Board to establish "a subsidiary trust company having a national bank charter or a Florida state charter" that would engage exclusively in one or more of the functions regulated by § 660.10. Complaint ¶ 21, App. 14-15. A three-judge court was convened pursuant to 28 U.S.C. § 2281 (1970 ed.), and the case was submitted for summary judgment on a stipulated set of facts.
8
The District Court, by a divided vote, initially dismissed the complaint without prejudice on the ground that it should abstain from decision under either Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), or Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). BT Investment Managers, Inc. v. Dickinson, 379 F.Supp. 792 (ND Fla.1974). The United States Court of Appeals for the Fifth Circuit, however, reversed and remanded for consideration of the merits. 559 F.2d 950 (1977).
9
On remand, the District Court held that the challenged portions of the two statutes violate the Commerce Clause, 461 F.Supp. 1187 (1978). Without reaching appellees' due process and equal protection arguments, it found that the statutes under attack discriminate against interstate commerce. The court reasoned that § 659.141(1) "erects an insuperable barrier to the entry of foreign-based bank holding companies, through their subsidiaries, into the Florida investment advisory market," and that § 660.10 "similarly cordons off Florida trust companies from competition by out-of-state concerns." 461 F.Supp., at 1196. It ruled that the statutes are "parochial legislation" that "must be deemed per se unconstitutional." Ibid. Moreover, it held that the legislative purposes proffered by appellant, including a purported desire to curb anticompetitive abuses arising from agglomeration of financial power, failed to justify the discriminatory impact of the statutes.
10
Finally, the District Court held that the federal Bank Holding Company Act does not foster or permit the types of discrimination against out-of-state bank holding companies reflected in the Florida statutes. The court eschewed the argument that either § 3(d) of the Act, 12 U.S.C. § 1842(d), or § 7 of the Act, 12 U.S.C. § 1846, authorized the statutes in question. It recognized that § 3(d) prohibits bank holding companies from acquiring banking subsidiaries in other States without local authorization. But it rejected the contention that this prohibition implicitly extends as well to related businesses, such as the providing of investment advice.
11
The court issued an order granting declaratory relief against both statutes but enjoining the enforcement of only § 659.141(1) against appellees.4
II
12
This appeal presents two distinct but related questions with respect to the validity of the challenged Florida statutes.5 The first is whether the statutes, viewed independently of federal legislation regulating the banking industry, burden interstate commerce in a manner contrary to the Commerce Clause. The second is whether Congress, by its own legislation in this area, has created an area in which the States may regulate free from Commerce Clause restraints. Since there is no contention that federal legislation pre-empts the state laws in question, federal law becomes important only if it appears that the Florida statutes cannot survive without federal authorization. Thus, the second question becomes pertinent only if we reach an affirmative answer to the first.
13
These questions arise against a backdrop of familiar principles. The Commerce Clause grants to Congress the power "[t]o regulate Commerce . . . among the several States." U.S.Const. Art. 1, § 8, cl. 3. Although the Clause thus speaks in terms of powers bestowed upon Congress, the Court long has recognized that it also limits the power of the States to erect barriers against interstate trade. See, e. g., Hughes v. Oklahoma, 441 U.S. 322, 326, 99 S.Ct. 1727, 1731, 60 L.Ed.2d 250 (1979); Philadelphia v. New Jersey, 437 U.S. 617, 623, 98 S.Ct. 2531, 2535, 57 L.Ed.2d 475 (1978); H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 534-538, 69 S.Ct. 657, 663-665, 93 L.Ed. 865 (1949); Cooley v. Board of Wardens, 12 How. 299, 13 L.Ed. 996 (1852). This limitation upon state power, of course, is by no means absolute. In the absence of conflicting federal legislation, the States retain authority under their general police powers to regulate matters of "legitimate local concern," even though interstate commerce may be affected. See, e. g. , Raymond Motor Transportation, Inc. v. Rice, 434 U.S. 429, 440, 98 S.Ct. 787, 793, 54 L.Ed.2d 664 (1978); Great A&P Tea Co. v. Cottrell, 424 U.S. 366, 371, 96 S.Ct. 923, 927, 47 L.Ed.2d 55 (1976). Where such legitimate local interests are implicated, defining the appropriate scope for state regulation is often a matter of "delicate adjustment." Ibid., quoting H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S., at 553, 69 S.Ct., at 679 (Black, J., dissenting). Yet even in regulating to protect local interests, the States generally must act in a manner consistent with the "ultimate . . . principle that one state in its dealings with another may not place itself in a position of economic isolation." Baldwin v. G. A. F. Seelig, Inc., 294 U.S. 511, 527, 55 S.Ct. 497, 502, 79 L.Ed. 1032 (1935). However important the state interest at hand, "it may not be accomplished by discriminating against articles of commerce coming from outside the State unless there is some reason, apart from their origin, to treat them differently." Philadelphia v. New Jersey, 437 U.S., at 626-627, 98 S.Ct., at 2532.
14
Over the years, the Court has used a variety of formulations for the Commerce Clause limitation upon the States, but it consistently has distinguished between outright protectionism and more indirect burdens on the free flow of trade. The Court has observed that "where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected." Id., at 624, 98 S.Ct., at 2535. In contrast, legislation that visits its effects equally upon both interstate and local business may survive constitutional scrutiny if it is narrowly drawn. The Court stated in Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970):
15
"Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. . . . If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities." Id., at 142, 90 S.Ct., at 847.
16
See also Hughes v. Oklahoma, 441 U.S., at 336, 99 S.Ct., at 1736; Hunt v. Washington Apple Advertising Comm'n, 432 U.S. 333, 353, 97 S.Ct. 2434, 2446, 53 L.Ed.2d 383 (1977); Great A&P Tea Co. v. Cottrell, 424 U.S., at 371-372, 96 S.Ct., at 927-928; Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 443, 80 S.Ct. 813, 815, 4 L.Ed.2d 852 (1960). The principal focus of inquiry must be the practical operation of the statute, since the validity of state laws must be judged chiefly in terms of their probable effects. See Hughes v. Oklahoma, 441 U.S., at 336, 99 S.Ct., at 1736; Best & Co. v. Maxwell, 311 U.S. 454, 455-456, 61 S.Ct. 334, 335, 85 L.Ed. 275 (1940).
III
17
With these principles in mind, we first turn to § 659.141(1). This statute has been the chief object of controversy, since it is the statute that prevents appellees from setting up their projected investment advisory business within Florida. The statute prohibits ownership of local investment or trust businesses by firms possessing two characteristics: a certain kind of business organization and purpose, whether it be as a bank, trust company, or a bank holding company; and location of principal operations outside Florida.
18
Appellant and the amici supporting his position argue that the District Court's analysis of § 659.141(1) is flawed in three respects: First, the statute assertedly affects only matters of local character that have insufficient interstate attributes to bring federal constitutional limitations into play.6 Second, the District Court erroneously labeled the statute protectionist legislation and thus incorrectly relied upon the "per se rule of invalidity" identified in Philadelphia v. New Jersey, 437 U.S., at 624, 98 S.Ct., at 2535. Appellant argues that the statute should be treated as neutral legislation subject to the less stringent standards of Pike v. Bruce Church, Inc., supra, and he argues that it meets this test. Third, the District Court failed to accord proper significance, in appellant's view, to the Bank Holding Company Act of 1956. Appellant argues that the Act grants authority to the States to prohibit out-of-state bank holding companies from owning local subsidiaries that provide bank-related services.
19
The first of these arguments needs only brief mention. We readily accept the submission that, both as a matter of history and as a matter of present commercial reality, banking and related financial activities are of profound local concern. As appellees freely concede, Brief for Appellees 17, n. 10, sound financial institutions and honest financial practices are essential to the health of any State's economy and to the well-being of its people. Thus, it is not surprising that ever since the early days of our Republic, the States have chartered banks and have actively regulated their activities.
20
Nonetheless, it does not follow that these same activities lack important interstate attributes. An impressive array of federal statutes regulating not only the provision of banking services but also the formation of banking organizations, the rendering of investment advice, and the conduct of national investment markets, is substantial evidence to the contrary.7 We do not understand appellant to dispute the validity of these enactments, all of which rest primarily on Congress' powers under the Commerce Clause. Indeed, appellant's arguments under the Bank Holding Company Act assume the validity of federal regulation in this sphere. This Court has observed that the same interstate attributes that establish Congress' power to regulate commerce also support constitutional limitations on the powers of the States. Philadelphia v. New Jersey, 437 U.S., at 622-623, 98 S.Ct., at 2534-2535. For present purposes, it is clear that those limitations apply.
B
21
The contentions that the District Court erred by applying too stringent a standard in defining the limits of Florida's regulatory authority, and that § 659.141(1) is evenhanded local regulation, are more substantial. We nonetheless agree with the District Court's conclusion that this statute is "parochial" in the sense that it overtly prevents foreign enterprises from competing in local markets.
22
The statute makes the out-of-state location of a bank holding company's principal operations an explicit barrier to the presence of an investment subsidiary within the State. As Bankers Trust's application before the Board itself indicates, it thus prevents competition in local markets by out-of-state firms with the kinds of resources and business interests that make them likely to attempt de novo entry. Appellant virtually concedes this effect, Brief for Appellant 59, and the circumstances of enactment suggest that it was the legislature's principal objective.
23
Appellant argues, however, that the statute ought not to be declared per se invalid because it does not prevent all out-of-state investment enterprises from entering local markets. Investment enterprises that are not bank holding companies, banks, or trust companies either may own investment subsidiaries in Florida or may enter the state investment market directly by obtaining a license to do business. Furthermore, locally incorporated bank holding companies are subject to the same restrictions as their foreign counterparts if they maintain their principal operations elsewhere. Appellant thus analogizes § 659.141(1) to the Maryland statute prohibiting local retail operations by vertically integrated petroleum companies that the Court upheld in Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 98 S.Ct. 2207, 57 L.Ed.2d 91 (1978). The statute, it is said, discriminates against a particular kind of corporate organizational structure more than it does against the origin or citizenship of a particular business enterprise.
24
The statute involved in Exxon flatly prohibited producers and refiners of petroleum products from opening or operating retail services within Maryland under a variety of corporate or contractual arrangements. Id., at 120, n. 1, 98 S.Ct., at 2211, n. 1. It was enacted in response to perceived inequities in the allocation of petroleum products to retail outlets during the fuel shortage of 1973. Various oil companies, all of which engaged in production and refining as well as in sale of petroleum products, challenged the statute on a number of grounds. Among other arguments, they claimed that the statute violated the Commerce Clause because it discriminated against producers and refiners, all of which were interstate concerns, in favor of independent retailers, most of which were local businesses.
25
The Court rejected this contention. After holding that the statute served the legitimate state purpose of "controlling the gasoline retail market," id., at 125, 98 S.Ct., at 2213, the Court separately analyzed its effect on interstate commerce in the producing-refining and retailing ends of the petroleum industry. The Court concluded that the statute could not discriminateagainst interstate petroleum producers and refiners in favor of locally based competitors because, as a matter of fact, there were no such local producers or refiners to be favored. Ibid. For the same reason, it concluded that the flow of petroleum products in interstate commerce would not be reduced. Id., at 127, 98 S.Ct., at 2214. It also rejected a claim of discrimination at the retail level because the statute placed "no barriers whatsoever" on competition in local markets by "interstate independent dealers" that did not own production or refining facilities. Id., at 126, 98 S.Ct., at 2214. Despite the fact that the number of stations operated by independent dealers was small relative to the number operated by producer-refiners, the Court concluded that neither the placing of a disparate burden on some interstate competitors nor the shifting of business from one part of the interstate market to another was enough, under the circumstances, to establish a Commerce Clause violation. Id., at 126-127, 98 S.Ct., at 2214.
26
There are some points of similarity between Exxon and the present case. In the former, the statute in issue discriminated against vertical organization in the petroleum industry. Section 659.141(1) similarly discriminates against a particular kind of conglomerate organization in the investment and financial industries. And the Maryland statute permitted some kinds of interstate competitors free entry into the local market, as does the Florida statute at issue here.8
27
We disagree, however, with the suggestion that Exxon should be treated as controlling precedent for this case. Section 659.141(1) engages in an additional form of discrimination that is highly significant for purposes of Commerce Clause analysis. Under the Florida statute, discrimination against affected business organizations is not evenhanded because only banks, bank holding companies, and trust companies with principal operations outside Florida are prohibited from operating investment subsidiaries or giving investment advice within the State. It follows that § 659.141(1) discriminates among affected business entities according to the extent of their contacts with the local economy. The absence of a similar discrimination between interstate and local producer-refiners was a most critical factor in Exxon. Both on its face and in actual effect, § 659.141(1) thus displays a local favoritism or protectionism that significantly alters its Commerce Clause status. See Philadelphia v. New Jersey, 437 U.S., at 626-627, 98 S.Ct., at 2536-2537; Baldwin v. G. A. F. Seelig, Inc., 294 U.S., at 527, 55 S.Ct., at 502.9
28
We need not decide whether this difference is sufficient to render the Florida legislation per se invalid, for we are convinced that the disparate treatment of out-of-state bank holding companies cannot be justified as an incidental burden necessitated by legitimate local concerns. In the District Court and to some extent on this appeal, appellant and supporting amici have argued that the Florida legislation advances several important state policies. Among those that have been specifically identified are an interest in discouraging undue economic concentration in the arena of high finance; an interest in regulating financial practices, presumably to protect local residents from fraud; and an interest in maximizing local control over locally based financial activities. We think that these alleged purposes fail to justify the extent of the burden placed upon out-of-state bank holding companies.
29
Discouraging economic concentration and protecting the citizenry against fraud are undoubtedly legitimate state interests. But we are not persuaded that these interests justify the heavily disproportionate burden this statute places on bank holding companies that operate principally outside the State. Appellant has demonstrated no basis for an inference that all out-of-state bank holding companies are likely to possess the evils of monopoly power, that they are more likely to do so than their homegrown counterparts, or that they are any more inclined to engage in sharp practices than bank holding companies that are locally based.10 Nor is there any reason to conclude that outright prohibition of entry, rather than some intermediate form of regulation, is the only effective method of protecting against the presumed evils, particularly when other out-of-state businesses that may be just as large or far-flung are permitted to compete in the local market. We conclude that these asserted state interests simply do not suffice to eliminate § 659.141(1)'s apparent constitutional defect. Cf. Hunt v. Washington Apple Advertising Comm'n, 432 U.S., at 353-354, 97 S.Ct., at 2446-2447; Great A&P Tea Co. v. Cottrell, 424 U.S., at 375-376, 96 S.Ct., at 929-930.
30
With regard to the asserted interest in promoting local control over financial institutions, we doubt that the interest itself is entirely clear of any tinge of local parochialism. In almost any Commerce Clause case it would be possible for a State to argue that it has an interest in bolstering local ownership, or wealth, or control of business enterprise. Yet these arguments are at odds with the general principle that the Commerce Clause prohibits a State from using its regulatory power to protect its own citizens from outside competition. See H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S., at 538, 69 S.Ct., at 665; Buck v. Kuykendall, 267 U.S. 307, 315-316, 45 S.Ct. 324, 325-326, 69 L.Ed. 623 (1925); cf. Toomer v. Witsell, 334 U.S. 385, 403-404, 68 S.Ct. 1156, 1165-1166, 92 L.Ed. 1460 (1948). In any event, the interest is not well served by the present legislation. The statute, for example, does not restrict out-of-state ownership of local bank holding companies. Nor, as appellant concedes, does it prevent entry by out-of-state entities other than those having the prohibited organizational forms. There is thus no reason to believe that the State's interest in local control, to the extent it legitimately exists, has been significantly or evenhandedly advanced by the statutory means that have been employed.
31
For these reasons, we conclude that the District Court did not err in holding that § 659.141(1) directly burdens interstate commerce in a manner that contravenes the Commerce Clause's implicit limitation on state power.
C
32
Ordinarily, at this point we would have reached the end of our inquiry. But in this instance appellant has another string to his bow: the contention that by Act of Congress the State has been given additional authority to regulate entry by bank holding companies into the local investment advisory market. Congress, of course, has power to regulate the flow of interstate commerce in ways that the States, acting independently, may not. And Congress, if it chooses, may exercise this power indirectly by conferring upon the States an ability to restrict the flow of interstate commerce that they would not otherwise enjoy. See H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S., at 542-543, 69 S.Ct., at 667; Prudential Insurance Co. v. Benjamin, 328 U.S. 408, 423-424, 66 S.Ct. 1142, 1151-1152, 90 L.Ed. 1342 (1946); International Shoe Co. v. Washington, 326 U.S. 310, 315, 66 S.Ct. 154, 157, 90 L.Ed. 95 (1945). It is appellant's view that the Bank Holding Company Act of 1956, as amended, is enabling legislation of this very kind, and that it authorizes the restrictions on bank holding companies embodied in § 659.141(1).
33
This argument rests on two provisions in the federal legislation. Section 3(d) of the Act, 12 U.S.C. § 1842(d), prohibits the Board from approving an application by a bank holding company to acquire "any additional bank" located outside the State in which the holding company has its principal operations, unless that acquisition is specifically authorized by the statutory law of the State in which the proposed acquisition is located.11 Section 7 of the Act, 12 U.S.C. § 1846, reserves to the States a continuing role in the regulation of bank holding companies.12 Appellant argues that either or both of these provisions authorize the State to prohibit out-of-state bank holding companies from acquiring local investment subsidiaries.
34
The Bank Holding Company Act of 1956 was enacted to accomplish two primary objectives. First, it was designed to prevent the concentration of banking resources in the hands of a few financial giants. Second, it was intended to implement a congressional policy against control of banking and nonbanking enterprises by a single business entity. See S.Rep.No.1095, 84th Cong., 1st Sess., 2 (1955); U.S.Code Cong. & Admin.News, 1956 p. 2482; Board of Governors v. First Lincolnwood Corp., 439 U.S. 234, 242-243, 99 S.Ct. 505, 510, 58 L.Ed.2d 484 (1978). Underlying both objectives was a desire to prevent anticompetitive tendencies in national credit markets. See S.Rep.No.91-1084, pp. 2-3 (1970); U.S.Code Cong. & Admin.News, 1970, p. 5519.
35
Congress sought to accomplish these twin goals through separate statutory provisions. Section 3 of the Act placed limitations on the creation of bank holding companies and their expansion within the banking field. Section 3(a) required Board approval for such activities as formation of bank holding companies, acquisition of bank stock or assets by such holding companies or their subsidiaries, and merger of bank holding companies. Section 3(c) specified criteria to be considered by the Board in determining whether to grant approval. Section 4 sharply curtailed acquisition of nonbanking enterprises. Section 4(a) generally forbade future acquisition of nonbanking enterprises. What was then § 4(c)(6), however, carved out an exception for companies "of a financial, fiduciary, or insurance nature" if the Board determined that they are "so closely related to the business of banking or of managing or controlling banks as to be a proper incident thereto." 70 Stat. 137.
36
When this legislation was first proposed to the Senate, neither § 3 nor § 4 contained explicit limitations on interstate expansion by bank holding companies. See S. 2577, 84th Cong., 1st Sess., §§ 3, 4 (1955). But Senator Douglas introduced an amendment to § 3 prohibiting bank holding companies from expanding into banking across state lines. He argued that such an amendment was desirable in order to ensure that national banks would not use bank holding companies as mechanisms to evade state-law restrictions on branching of banks recognized and made applicable to national banks by the McFadden Act, 12 U.S.C. § 36. See 102 Cong.Rec. 6860 (1956) (remarks of Sen. Douglas). The Senate agreed to the amendment. A similar provision had been included in the companion bill introduced in the House of Representatives. See H.R.Rep.No.609, 84th Cong., 1st Sess., 2-5, 15, 24 (1955). The "Douglas Amendment" emerged as § 3(d) of the Act, the first of the two provisions on which appellant relies.
37
We conclude that § 3(d) offers scant support for the portions of § 659.141(1) subject to challenge in this proceeding. Preliminarily, it is doubtful that § 3(d) authorizes state restrictions of any nature on bank holding company activities. The language of the statute establishes a general federal prohibition on the acquisition or expansion of banking subsidiaries across state lines. The only authority granted to the States is the authority to create exceptions to this general prohibition, that is, to permit expansion of banking across state lines where it otherwise would be federally prohibited. Furthermore, the structure of the Act reveals that § 3(d) applies only to holding company acquisitions of banks. Nonbanking activities are regulated separately in § 4, which does not contain a parallel provision. Even if § 3(d) could be interpreted to authorize additional state regulation, ordinary canons of interpretation thus would lead to the inference that restraints so authorized could apply only to a holding company's banking activities.13
38
In contrast to § 3(d), § 7 of the Act does reserve to the States a general power to enact regulations applicable to bank holding companies. This section was intended to preserve existing state regulations of bank holding companies, even if they were more restrictive than federal law. See S.Rep.No.1095, 84th Cong., 1st Sess., 22 (1955). But we find nothing in its language or legislative history to support the contention that it also was intended to extend to the States new powers to regulate banking that they would not have possessed absent the federal legislation. Rather, it appears that Congress' concern was to define the extent of the federal legislation's pre-emptive effect on state law. In response to criticisms of the provision on the ground that it might be interpreted to expand state authority, one Committee Report stated that it was intended "to preserve to the States those powers which they now have in our dual banking system," yet "to make it clear that a State could not enact legislation inconsistent with the [Act] and therefore nullify its effect." S.Rep.No.1095, 84th Cong., 2d Sess., pt. 2, p. 5 (1956). Far from creating a new state power to discriminate between foreign and local bank holding companies, the legislative history evinces an intent to forestall such a broad interpretation. We therefore conclude that § 7 applies only to state legislation that operates within the boundaries marked by the Commerce Clause.
39
Since neither of these provisions authorizes state legislation of the variety contained in the challenged portions of § 659.141(1), we agree with the District Court that appellant's reliance on the Bank Holding Company Act is misplaced. The effects of the Florida statute on interstate commerce have not been permitted by Congress, and its Commerce Clause defects have not been removed. Therefore, the District Court's injunction against enforcement of the statute must be sustained.
IV
40
This brings us, finally, to § 660.10. That statute prohibits all corporations except state-chartered banks and national banks having their operations in Florida from performing specified fiduciary functions. It does not purport to regulate the ownership of such institutions by bank holding companies. For the reasons stated below, we conclude that its constitutionality has been neither fully placed in issue nor fully determined by the District Court's decision. We therefore vacate the judgment with respect to § 660.10 and remand for such further proceedings as may be necessary in light of this opinion.
41
As we have already noted, appellees' complaint challenged the constitutionality of § 660.10 only insofar as it operated in conjunction with § 659.141(1). The District Court followed the same approach, and it granted declaratory relief against § 660.10 on that basis. Jointly, of course, the statutes not only limit the kinds of corporations that may perform fiduciary functions within Florida, but also prevent out-of-state bank holding companies from owning such corporations as their subsidiaries. It was this joint effect that led the District Court to find that § 660.10 "cordons off Florida trust companies from competition by out-of-state concerns." 461 F.Supp., at 1196. Having so found, the District Court did not address the constitutionality of § 660.10 standing alone. It did not consider, for example, which of the many functions regulated by § 660.10 were in issue, or whether any of the exceptions created by that statute might apply. Indeed, it refused to grant injunctive relief against that statute and ruled that any challenge to its enforcement was premature. 461 F.Supp., at 1201.
42
On this appeal the argument over the constitutionality of § 660.10 has focused not on the concatenation of the two statutes, but on the power of a State under the Commerce Clause to require local incorporation as a condition of doing business in local markets. Cf. Railway Express Agency, Inc. v. Virginia, 282 U.S. 440, 51 S.Ct. 201, 75 L.Ed. 450 (1931). Because of the approach taken in the District Court, however, there has been no definitive ruling on this issue. The court may have touched obliquely on the question when it declared, on a motion for clarification, that a State may not wholly exclude foreign corporations from doing business in the State. See App. to Juris. Statement E2. But it made no specific determination whether § 660.10 would have such an effect, and it refused to speculate about the impact that enforcement of the statute might have upon appellees.
43
Nor is it clear that there is a present case or controversy with respect to the validity of the separate requirements imposed by § 660.10. As we have noted, appellees' complaint does not expressly join battle on this issue. The facts of the case show, moreover, that it was § 659.141(1) that prevented BTIM's entry into Florida. The application before the Board specified that BTIM would perform only investment advisory services that are outside the scope of § 660.10. Bankers Trust had not yet processed an application to the Board for permission to form a Florida trust subsidiary, and the Board had not yet determined whether such a subsidiary could be approved as a matter of federal law. The parties did stipulate that Bankers Trust would attempt to organize a Florida subsidiary having fiduciary powers were it not prohibited by state law from doing so. But we interpret this stipulation to mean that Bankers Trust was willing to comply with a local incorporation requirement, without contesting its validity, so long as it was not prohibited entirely from establishing a trust subsidiary in the State. Accordingly, the District Court may not have been in a position to decide the broad question the parties now ask us to resolve, even if that question had been clearly raised by the pleadings.
44
One further consideration counsels against our attempting to evaluate the validity of § 660.10 at this juncture. Since we noted probable jurisdiction of this appeal, Congress has amended § 3(d) of the Bank Holding Company Act to extend its restrictions on interstate expansion to fiduciary organizations of the kind Bankers Trust has stipulated it would attempt to organize in Florida. Depository Institutions Deregulation and Monetary Control Act of 1980, § 712(b), No.96-221, 94 Stat. 189 (Mar. 31, 1980).14 It thus appears that Bankers Trust is presently prohibited by federal law from establishing a Florida trust subsidiary. This amendment is "repealed" by its own terms, § 712(c), as of October 1, 1981, and there are indications in the legislative history that it was intended as a temporary moratorium on approval of trust company applications rather than as a prelude to more permanent restrictions. Nevertheless, we must review the judgment below in the light of both state and federal law as it now stands. See Diffenderfer v. Central Baptist Church, 404 U.S. 412, 414, 92 S.Ct. 574, 575, 30 L.Ed.2d 567 (1972). This enactment raises new questions, both jurisdictional and substantive, that should be addressed in the first instance by the District Court.
45
For these reasons, we determine that the constitutionality of § 660.10's limitation on the types of corporations that may perform trust responsibilities is not properly before us at this stage in the proceedings.
V
46
In summary, we affirm the judgment of the District Court insofar as it declares unconstitutional the challenged portions of § 659.141(1) and enjoins their enforcement. We vacate that portion of the judgment that relates to the constitutionality of § 660.10, and we remand the case for such further proceedings as are appropriate and consistent with this opinion.15
47
It is so ordered.
1
This action was filed on October 24, 1973, and is therefore unaffected by the subsequent repeal of 28 U.S.C. § 2281, which by its terms was made inapplicable to any action commenced on or before August 12, 1976. See Pub.L. 94-381, § 7, 90 Stat. 1120.
2
See 1972 Fla. Laws, ch. 72-726, §§ 1-7. As so amended, § 659.141(1) reads in pertinent part:
"[N]o bank, trust company, or holding company, the operations of which are principally conducted outside this state, shall acquire, [or] retain, or own, directly or indirectly, all, or substantially all the assets of, or control over, any bank or trust company having a place of business in this state where the business of banking or trust business or functions are conducted, or acquire, [or] retain, or own all, or substantially all, of the assets of, or control over, any business organization having a place of business in this state where or from which it furnishes investment advisory services [to trust companies or banks] in this state."
The italicized words were added, and the bracketed words were deleted, by the December 1972 amendment.
3
Bankers Trust in November 1973 petitioned the United States Court of Appeals for the Second Circuit for review of the Board's order denying the proposal. That petition has been withdrawn, with leave to reinstate, pending the outcome of this suit.
4
Initially the court declared the entire first sentence of § 659.141(1) unconstitutional. App. to Juris, Statement A1. It amended that order, however, to limit its declaration to that portion of the sentence dealing with investment advisory and trust services. See id., at D1-D2. The court rendered no decision on the constitutionality of those portions of the statute that govern acquisition of Florida banks by out-of-state banks, bank holding companies, or trust companies. The court refused to grant injunctive relief against § 660.10 because appellees had yet to attempt establishment of a trust company in Florida; the court accordingly determined that injunctive relief against that statute would be premature. 461 F.Supp. 1187, 1201 (ND Fla.1978).
5
Because the District Court granted injunctive relief with respect to § 659.141(1), we have jurisdiction, under 28 U.S.C. § 1253, over the appeal. See White v. Regester, 412 U.S. 755, 761, 93 S.Ct. 2332, 2337, 37 L.Ed.2d 314 (1973). See, however, Part IV, infra.
While this case was pending in the District Court, the Florida Division of Securities, acting pursuant to a "grandfather" clause, Fla.Stat. § 659.141(3), authorized Bankers Trust to conduct investment advisory services from a single Florida office. This authorization does not moot the controversy, because the District Court's injunction leaves Bankers Trust free to establish additional offices that § 659.141(1) would otherwise prohibit.
6
Appellant advanced this argument in the District Court but has substantially departed from it on appeal. Supporting amici, however, continue to press the contention. See, e. g., Brief for Conference of State Bank Supervisors as Amicus Curiae 8-12.
7
Some of the leading examples of federal regulation of banking, trust, and investment businesses include the National Bank Act, 12 U.S.C. § 21 et seq.; the Securities Act of 1933, 48 Stat. 74, as amended, 15 U.S.C. § 77a et seq.; the Securities Exchange Act of 1934, 48 Stat. 881, as amended 15 U.S.C. § 78a et seq.; the Trust Indenture Act of 1939, 53 Stat. 1149, as amended, 15 U.S.C. § 77aaa et seq.; and the Investment Company Act of 1940, 54 Stat. 789, as amended, 15 U.S.C. § 80a-1 et seq. For an express finding on the effect of investment advisory activities on interstate commerce, see Investment Advisors Act of 1940, § 201, 54 Stat. 847, 15 U.S.C. § 80b-1.
8
Appellant also argues that the present statute, like the one in Exxon Corp. v. Governor of Maryland, 437 U.S., at 125, 98 S.Ct., at 2213, has no discernible impact on the flow of goods in interstate commerce. Locally owned investment businesses are as free to channel their clients' investments into interstate markets as their interstate competitors. The validity of this argument cannot be determined on this record. In the Exxon case, as we have noted, all petroleum products sold in the State were produced and refined elsewhere. In contrast, investments may be directed into local as well as interstate markets. Since it is at least conceivable that an investment subsidiary owned by a locally operating bank holding company would be more likely to recommend investments in local businesses, we decline to assign any weight to this argument in the absence of proof concerning the actual effect of the Florida statute.
9
Appellant's argument that § 659.141(1) could also apply to locally organized bank holding companies, if they maintained their principal operations outside the State, is significantly weakened by federal restrictions on interstate expansion of a bank holding company's banking activities discussed in Part III-C, infra. As a result of these statutes, it is unlikely that many local bank holding companies would have their principal operations elsewhere. In any event, discrimination based on the extent of local operations is itself enough to establish the kind of local protectionism we have identified.
10
Both in-state and out-of-state bank holding companies, of course, are subject to extensive regulation by the Federal Government designed to protect against these same evils.
11
Appellant relies on that part of § 3(d) of the Bank Holding Company Act of 1956, 70 Stat. 135, as amended, 80 Stat. 238, 12 U.S.C. § 1842(d), which provides:
"Notwithstanding any other provision of this section, no application shall be approved under this section which will permit any bank holding company or any subsidiary thereof to acquire, directly or indirectly, any voting shares of, interest in, or all or substantially all of the assets of any additional bank located outside of the State in which the operations of such bank holding company's banking subsidiaries were principally conducted on the effective date of this amendment [July 1, 1966] or the date on which such company became a bank holding company, whichever is later, unless the acquisition of such shares or assets of a State bank by an out-of-State bank holding company is specifically authorized by the statute laws of the State in which such bank is located, by language to that effect and not merely by implication. For the purposes of this section, the State in which the operations of a bank holding company's subsidiaries are principally conducted is that State in which total deposits of all such banking subsidiaries are largest."
A new subsection was added to this statute effective March 31, 1980. See Part IV, infra.
12
Section 7 provides:
"The enactment by the Congress of the Bank Holding Company Act of 1956 shall not be construed as preventing any State from exercising such powers and jurisdiction which it now has or may hereafter have with respect to banks, bank holding companies, and subsidiaries thereof." 70 Stat. 138.
13
Appellant attempts to answer the latter of these observations by arguing that the restrictions of § 3(d) implicitly placed geographical
limitations on the expansion of nonbanking activities as well. Appellant asserts that the Board initially gave § 4(c) a narrow interpretation that effectively prohibited holding companies from owning nonbanking subsidiaries unless they were closely related to an existing banking operation controlled by the parent company. See, e. g., Transamerica Corp., 43 Fed.Res.Bull. 1014, 1016-1017 (1957). Since such banking operations were geographically confined by virtue of § 3(d), the Board's restrictive application of § 4(c) assertedly applied the same limitation to nonbanking operations.
We agree with appellees that this argument has been significantly undercut by 1970 amendments to the Act that revised the language of § 4(c). Although the principal purpose of these amendments was to extend the regulatory controls of the Act to one-bank holding companies that were formerly exempt, Congress also adopted changes designed to give the Board greater discretion in administering the Act. See S.Rep.No.91-1084, pp. 12-13 (1970); H.R.Rep.No.91-387, p. 14 (1969); see also Chase, The Emerging Financial Conglomerate: Liberalization of the Bank Holding Company Act, 60 Geo.L.J. 1225, 1236-1237 (1972). The Federal Reserve Board proposed several changes in § 4(c) designed to liberalize the standards for expansion into "related" nonbanking enterprises. These proposals met with different receptions in the two Houses of Congress, and the final product was a compromise. A proposal to substitute the phrase "functionally related" for "closely related" was not adopted; but the phrase "financial, fiduciary, or insurance nature" was dropped from the statute, and "business of banking" was changed simply to "banking." Bank Holding Company Act Amendments of 1970, Pub.L. 91-607, § 103, 84 Stat. 1763; see Note, 39 Geo.Wash.L.Rev. 1200, 1219-1223 (1971).
There was substantial disagreement among House and Senate conferees over the exact import of these changes with respect to the breadth of nonbanking activities that the amendments would permit. Compare H.R.Conf.Rep.No.91-1747, p. 21 (1970), and 116 Cong.Rec. 41950-41952 (1970) (remarks of Rep. Patman), with id., at 41953-41954 (remarks of Rep. Widnall); id., at 42424 (remarks of Sen. Sparkman); id., at 42435-42436 (remarks of Sen. Bennett). See also Note, 71 Mich.L.Rev. 1170, 1206-1207 (1973). We need not enter that debate at this juncture. For present purposes, it is sufficient to note that the change from "business of banking" to "banking" was explicitly proposed in order to free the Board from its prior requirement of relationship to a bank holding company's existing banking enterprises. See S.Rep.No.91-1084, p. 12 (1970); Letter dated November 23, 1970, from Arthur Burns, Federal Reserve Board Chairman, to Representative Patman, reprinted in 116 Cong.Rec. 41959 (1970); see also Note, 39 Geo.Wash.L.Rev., at 1220. Once that change was made, the implicit geographical limitation appellant infers from previous applications of the Act was removed along with the language from which it was derived.
14
This statute provides:
"Section 3(d) of the Bank Holding Company Act of 1956 (12 U.S.C. § 1842(d)) is amended by inserting (1) after (d) and by adding at the end thereof the following:
"(2)(A) Except as provided in subparagraph (B), the restrictions contained in paragraph (1) regarding the acquisition of shares or assets of, or interests in, an additional bank shall apply to the acquisition of shares or assets of, or interests in, a trust company.
"(B) Subparagraph (A) shall not apply with respect to the acquisition of shares or assets of, or interests in, a trust company if such acquisition was approved by the Board on or before March 5, 1980, and if such trust company opened for business and was operating on or before March 5, 1980.
"(C) For the purpose of this paragraph, the term 'trust company' means any company whose powers are limited to the powers specified in subsection (a) of the first section of the Act entitled 'An Act to place authority over the trust powers of national banks in the Comptroller of the Currency,' approved September 28, 1962 (12 U.S.C. § 92a), for a national bank located in the same State in which such trust company is located.
"(c) The amendments made by this section are hereby repealed on October 1, 1981."
15
Florida's Regulatory Reform Act of 1976, 1976 Fla.Laws, ch. 76-168, § 3(2)(t), repeals, as of July 1, 1980, chs. 659 and 660 of the Florida Statutes "relating to banking." These chapters include §§ 659.141(1) and 660.10. Section 2 of ch. 76-168 recites that it is "the intent of the Legislature . . . [t]o provide systematic legislative review of [licensing and regulation of businesses] . . . by a periodic review and termination, modification, or reestablishment of such programs and functions."
We are advised that pending in the Florida Legislature at the present time are S.B. 347 and a House substitute for S.B. 347; that both bills leave the substance of §§ 659.141(1) and 660.10 intact for the express purpose of, not mooting out pending litigation; and that action on these bills will be taken before the legislature adjourns. As of the date this opinion is filed, §§ 659.141(1) and 660.10 remain in effect so the case has not become moot, whatever the ultimate disposition of the pending bills.
| 78
|
447 U.S. 102
100 S.Ct. 2051
64 L.Ed.2d 766
CONSUMER PRODUCT SAFETY COMMISSION et al., Petitioners,v.GTE SYLVANIA, INC. et al.
No. 79-521.
Argued April 14, 1980.
Decided June 9, 1980.
Syllabus
Section 6(b)(1) of the Consumer Product Safety Act (CPSA) requires that, at least 30 days prior to the "public disclosure of any information" pertaining to a consumer product obtained by the Consumer Product Safety Commission (Commission) pursuant to its information-gathering authority, the Commission must notify the manufacturer and provide it with a summary of the information to be disclosed, if the product is to be designated or described in such a way as to permit the public to ascertain readily the manufacturer's identity; that the manufacturer be given a reasonable opportunity to submit comments regarding the information; and that the Commission "take reasonable steps to assure" that such information is "accurate" and that disclosure is "fair in the circumstances and reasonably related to effectuating the purposes" of the CPSA. In the instant case, the Commission, upon receiving Freedom of Information Act (FOIA) requests and without complying with § 6(b)(1), decided to release certain accident reports that it had obtained from respondent manufacturers and that were accompanied, for the most part, by claims of confidentiality. The District Court permanently enjoined the Commission from disclosing the materials, rejecting its contention that § 6(b)(1) applies only when the Commission affirmatively undertakes to disclose information to the public but not when it merely complies with a request for information under the FOIA. The Court of Appeals affirmed.
Held: Section 6(b)(1) governs the disclosure of records by the Commission pursuant to a request under the FOIA. Pp. 108-124.
(a) Nothing in § 6(b)(1)'s language or in any other provision of the CPSA, supports the claim that § 6(b)(1) is limited to disclosures initiated by the Commission, a disclosure pursuant to the FOIA being accurately characterized as a "public disclosure" within the plain meaning of § 6(b)(1). Moreover, § 6(b)(2), which contains specific exceptions to § 6(b)(1)'s requirements does not include the disclosure of information in response to an FOIA request. And § 25(c) of the CPSA—designating certain reports as "public information" notwithstanding that they might be exempted from disclosure under the FOIA and thus within the scope of § 6(a)(1), which incorporates by reference the exemptions of the FOIA—specifically makes the disclosure of the information subject to the limitations of § 6(b) whether it be "affirmatively" released by the Commission or released pursuant to an FOIA request. Pp. 108-110.
(b) Neither the legislative history of the CPSA prior to its enactment nor subsequent legislative and administrative interpretations of § 6(b)(1) warrant construing § 6(b)(1) as being limited to the Commission's "affirmative" disclosures. Pp. 110-120.
(c) Applicability of § 6(b)(1) to FOIA requests is not precluded on the alleged ground that the Commission would be unable to comply with FOIA time requirements for handling disclosure requests and administrative appeals from refusals to disclose. Such an argument assumes that the Commission must comply with FOIA time limitations, but its Exemption 3 states that the FOIA does not apply to matters that are specifically exempted from disclosure by another statute which requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or which establishes particular criteria for withholding or refers to particular types of matters to be withheld. Here, § 6(b)(1) sets forth sufficiently definite standards to fall within the scope of Exemption 3. Pp. 121-123.
(d) The argument that requiring the Commission to comply with § 6(b)(1) in meeting FOIA requests will impose insurmountable burdens on the agency is entirely speculative. Moreover, any increased burdens imposed on the Commission were intended by Congress in striking an appropriate balance between the interests of consumers and the need for fairness and accuracy with respect to information disclosed by the Commission and thus the claim of undue burdens is properly addressed to Congress, not this Court. Pp. 123-124.
598 F.2d 790, affirmed.
Peter Buscemi, Washington, D. C., for petitioners, pro hac vice, by special leave of Court.
Bernard G. Segal, Philadelphia, Pa., for respondents.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
The question presented is whether § 6(b)(1) of the Consumer Product Safety Act, 15 U.S.C. § 2055(b)(1), governs the disclosure of records by the Consumer Product Safety Commission pursuant to a request under the Freedom of Information Act. We granted certiorari to review a judgment of the Court of Appeals for the Third Circuit because of the importance of the question and because of a conflict in the Circuits.1 444 U.S. 979, 100 S.Ct. 479, 62 L.Ed.2d 405.
2
* In 1972, Congress enacted the Consumer Product Safety Act (CPSA), 86 Stat. 1207, 15 U.S.C. § 2051 et seq., in order, inter alia, "to protect the public against unreasonable risks of injury associated with consumer products" and "to assist consumers in evaluating the comparative safety of consumer products." 15 U.S.C. §§ 2051(b)(1) and (2). The CPSA created the Consumer Product Safety Commission (Commission) to carry out the statutory purposes. 15 U.S.C. § 2053. The Commission's powers include the authority to collect and disseminate product safety information, 15 U.S.C. § 2054(a)(1), to conduct research and tests on consumer products, 15 U.S.C. §§ 2054(b)(1) and (2), to promulgate safety standards, 15 U.S.C. § 2056, and to ban hazardous products, 15 U.S.C. § 2057.
3
Section 6 of the CPSA, 86 Stat. 1212, 15 U.S.C. § 2055, regulates the "public disclosure" of information by the Commission. Section 6(b)(1), with which we deal here, requires the Commission, at least 30 days before the public disclosure of information pertaining to a consumer product, to notify the manufacturer and to provide it with a summary of the information to be disclosed, if the product is to be designated or described in such a way as to permit the public to ascertain readily the manufacturer's identity. The manufacturer must be given a reasonable opportunity to submit comments regarding the information. And the Commission must take reasonable steps to assure that such information is accurate and that disclosure is "fair in the circumstances and reasonably related to effectuating the purposes" of the CPSA. If the Commission subsequently finds that it has made public disclosure of inaccurate or misleading information that adversely reflects on a manufacturer's products or practices, the Commission must "publish a retraction" in a manner "similar to that in which such disclosure was made . . . ."2
4
The relevant facts are set forth in a case decided by this Court earlier this Term, GTE Sylvania, Inc. v. Consumers Union, 445 U.S. 375, 100 S.Ct. 1194, 63 L.Ed.2d 467 (1980), and need not be restated in detail. Briefly, the Commission obtained from respondents various accident reports, most of which were accompanied by claims of confidentiality. The Commission subsequently decided, after receiving Freedom of Information Act (FOIA) requests from the Consumers Union of the United States, Inc., and the Public Citizen's Health Research Group (the requesters), to release even those accident reports that were claimed to be confidential. Not surprisingly, lawsuits were soon filed in several Federal District Courts. See GTE Sylvania, Inc. v. Consumers Union, supra, at 378, n. 1, 100 S.Ct., at 1197, n. 1.
5
The District Court for the District of Delaware ultimately granted respondents' motion for summary judgment and permanently enjoined the Commission from disclosing the submitted accident reports, as well as data compiled on a computer printout from those reports. 443 F.Supp. 1152 (1977).3 The District Court rejected the Commission's contention that § 6(b)(1) applies only when the Commission affirmatively undertakes to disclose information to the public, but not when it merely complies with a request for information under the FOIA. It held that § 6(b)(1) is applicable to disclosures in response to FOIA requests and that it establishes particular criteria for withholding information, thereby falling within the scope of Exemption 3 of the FOIA, 5 U.S.C. § 552(b)(3). It also found that the Commission failed to comply with § 6(b)(1) procedures in this case. Thus, it concluded that the release of the accident reports would be contrary to the CPSA. 443 F.Supp., at 1162.
6
The Court of Appeals for the Third Circuit affirmed. 598 F.2d 790 (1979). After thoroughly examining the language and legislative history of § 6(b)(1), it concluded that "Congress did not intend that provision to apply only to Commission press releases, news conferences, publication of reports and other forms of 'affirmative disclosure' of information obtained under the Act." 598 F.2d, at 811. Rather, "the information disclosure requirements of the CPSA were meant to protect manufacturers from the harmful effects of inaccurate or misleading public disclosure by the Commission, through any means, of material obtained pursuant to its broad information-gathering powers. The policies designed to be served by section 6(b)(1) would be severely undermined, if not eviscerated, were the Commission's interpretation to prevail." Id., at 811-812.
7
Petitioners repeat their contention here that § 6(b)(1) was intended to provide safeguards for the release of information by the Commission only when the Commission makes public disclosures of information on its own initiative in carrying out its responsibilities under the CPSA. When information is released in this fashion, they argue, the Commission explicitly or implicitly represents that it believes the disclosed information to be true and that the public should rely on it. Brief for Petitioners 10. When the Commission merely releases information in response to an FOIA request, by contrast, they claim the Commission is obliged to release whatever materials it possesses and need not comply with § 6(b)(1), because it has not made any express or implied statement regarding the documents released or the extent to which those documents reflect agency policy. Brief for Petitioners 11. Although there is some support for petitioners' interpretation of § 6(b)(1) in legislative history contained in a Conference Report four years after the enactment of that section, see Part IV, infra, we agree with the Court of Appeals' determination that "legislative history" of this sort cannot be viewed as controlling.
II
8
We begin with the familiar canon of statutory construction that the starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.
9
Section 6(b)(1) by its terms applies to the "public disclosure of any information" obtained by the Commission pursuant to its authority under the CPSA, and to any information "to be disclosed to the public in connection therewith." (Emphasis added.) Nothing in the language of that section, or in any other provision of the CPSA, supports petitioners' claim that § 6(b)(1) is limited to disclosures initiated by the Commission. And as a matter of common usage the term "public" is properly understood as including persons who are FOIA requesters. A disclosure pursuant to the FOIA would thus seem to be most accurately characterized as a "public disclosure" within the plain meaning of § 6(b)(1).4
10
Section 6(b)(2) of the CPSA, 15 U.S.C. § 2055(b)(2), contains specific exceptions to the requirements of § 6(b)(1).5 But the list of exceptions does not include the disclosure of information in response to an FOIA request. If Congress had intended to exclude FOIA disclosures from § 6(b)(1) it could easily have done so explicitly in this section as it did with respect to the other listed exceptions. That Congress was aware of the relationship between § 6 and the FOIA when it enacted the CPSA is exhibited by the fact that Congress in § 6(a)(1) specifically incorporated by reference the nine exemptions of the FOIA, 5 U.S.C. § 552(b). We are consequently reluctant to conclude that Congress' failure to include FOIA requests within the exceptions to § 6(b)(1) listed in § 6(b)(2) was unintentional.
11
Finally, § 25(c) of the CPSA, 15 U.S.C. § 2074(c), further supports the conclusion that § 6(b)(1) was not intended to distinguish between information disclosed to the public pursuant to FOIA requests and information disclosed at the initiative of the Commission.6 Section 25(c) designates accident and investigation reports that do not identify injured parties and their physicians, and reports on research and demonstration projects as "public information" notwithstanding the fact that they might be exempted from disclosure under the FOIA and thus within the scope of § 6(a)(1). Section 25(c), however, specifically makes the disclosure of this information subject to the limitations of §§ 6(a)(2) and 6(b), whether it be "affirmatively" released by the Commission or released pursuant to an FOIA request. The language of the CPSA thus provides little basis for accepting petitioners' claim that § 6(b)(1) does not apply to information released by the Commission in response to FOIA requests.
III
12
Petitioners next argue that the legislative history of the CPSA requires the conclusion that § 6(b)(1) is inapplicable to FOIA requests despite the language of the statute. In making their argument, petitioners concede that "the preenactment history of this legislation does not directly address the precise issue of statutory construction involved in this case." Brief for Petitioners 33. They nonetheless maintain that the principal concern underlying the adoption of the section was the danger that the Commission might on its own initiative disseminate findings, reports, and other product information harmful to manufacturers without first assuring the fairness and accuracy of the disclosure. We agree with petitioners that industry representatives were concerned about the harms resulting from information affirmatively disclosed by an agency. But petitioners have failed to establish that industry concerns were limited to information disclosed in this fashion.7 More importantly, a full examination of the legislative history of the CPSA prior to its enactment indicates that for purposes of § 6(b)(1) no distinction was made between information affirmatively disclosed by the Commission and information released pursuant to the FOIA.
13
The CPSA gave the Commission broad powers to gather, analyze, and disseminate vast amounts of private information. In granting the Commission such authority, Congress adopted safeguards specifically designed to protect manufacturers' reputations from damage arising from improper disclosure of information gathered and received by the Commission. The House Report on the CPSA states:
14
"If the Commission is to act responsibly and with adequate basis, it must have complete and full access to information relevant to its statutory responsibilities. Accordingly, the committee has built into this bill broad information-gathering powers. It recognizes that in so doing it has recommended giving the Commission the means of gaining access to a great deal of information which would not otherwise be available to the public or to Government. Much of this relates to trade secrets or other sensitive cost and competitive information. Accordingly, the committee has written into section 6 of the bill detailed requirements and limitations relating to the Commission's authority to disclose information which it acquires in the conduct of its responsibilities under this act." H.R.Rep.No.92-1153, p. 31 (1972).8
15
The House Report does not provide any indication that the safeguards for the release of CPSA information are inapplicable when the Commission discloses information in response to an FOIA request. And in its explanatory comments on § 6(b)(1) the Report makes no distinction whatsoever between information released at the initiative of the Commission and information disclosed pursuant to an FOIA request. Rather, it states:
16
"Before disseminating any information which identifies the manufacturer or private labeler of a product, the Commission is directed to give the manufacturer or private labeler 30 days in which to comment on the proposed disclosure of information. This procedure is intended to permit the manufacturer or private labeler an opportunity to come forward with explanatory data or other relevant information for the Commission's consideration." H.R.Rep.No.92-1153, supra, at 32 (emphasis added).
17
Nor does the Conference Report contain any suggestion that § 6(b)(1) does not apply to FOIA requests. As observed by the Court of Appeals, the "conferees' description of section 6(b)(1) is instructive in that the accuracy and fairness requirements for 'publicly disclosed information' are mentioned in almost the same breath as the description of section 6(a)(1), stating that no information need be 'publicly disclosed' by the Commission if it is exempt from disclosure under the FOIA." 598 F.2d, at 809.9
18
Further support for this construction of § 6(b)(1) can be found in examining comments made with respect to earlier versions of the House bill.10 In commenting on the disclosure provisions of the administration bill, H.R.8110, Representative Moss, chairman of the Subcommittee on Commerce and Finance, which was considering the House bills, stated: "I am sure the subcommittee will want to examine carefully this proposed change in the Freedom of Information Act." Subcommittee Hearings, pt. 2, p. 300.11 The operative information-disclosure requirements contained in § 4(c) of H.R.8110, absent a requirement that the Commission publish manufacturers' comments, were nonetheless enacted into law in § 6(b). See n. 8, supra.
19
Section 4(c) and the provision that was finally enacted as § 6(b) by their terms include both affirmative disclosures by the Commission and information released pursuant to the FOIA. And the Department of Health, Education, and Welfare, the agency that drafted H.R.8110, stated in its section-by-section analysis of the bill:
20
"Section 4(c) would protect the Secretary's refusal to disclose information not required to be released by the [FOIA], and would expressly prohibit his disclosure of commercial secrets, or of illness or injury data revealing [the] identity of the victim.
21
"It would also require the provision of thirty days notice to the manufacturer of any consumer product prior to the Secretary's public disclosure of information respecting that product, if such information would reveal the manufacturer's identity." Subcommittee Hearings, pt. 1, p. 188.
22
These comments clearly do not support petitioners' reading of the present disclosure requirements of the CPSA. And the General Counsel of the Department of Commerce, in opposing the Senate's less restrictive proposal for the disclosure of information by the Commission, wrote:
23
"[W]e believe that in the interest of fairness the disclosure of any information should be attendant with safeguards. These include prior notice to manufacturers, the right of the manufacturer to rebut false information, and a requirement that the information be fair and accurate." S.Rep.No.92-749, p. 100 (1972) (emphasis added).
24
The legislative history of § 6(b)(1) thus fails to establish that petitioners' proposed distinction should be read into the section.
IV
25
Petitioners also contend that legislative interpretations of § 6(b)(1) made after the section was enacted and the Commission's administrative interpretation of that section support their proposed construction. Petitioners first rely on a statement by Representative Moss, one of the sponsors of the House bill. In testimony before a congressional Oversight Subcommittee, then Commission Chairman Richard O. Simpson explained that the Commission interpreted § 6(b)(1) to be inapplicable to FOIA requests. Representative Moss then remarked: "As the primary author of both acts, I am inclined to agree with you." Regulatory Reform: Hearings before the Subcommittee on Oversight and Investigations of the House Committee on Interstate and Foreign Commerce, 94th Cong., 2d Sess., Vol. IV, pp. 7-8 (1976). Petitioners also note that when Congress added § 29(e), 15 U.S.C. § 2078(e), to the CPSA in the Consumer Product Safety Commission Improvements Act of 1976, the Conference Committee explained the joint operation of the new section and § 6(b) as follows:
26
"The requirement that the Commission comply with section 6(b) prior to another Federal agency's public disclosure of information obtained under the Act is not intended by the conferees to supersede or conflict with the requirements of the Freedom of Information Act (5 U.S.C. § 552(a)(3) and (a)(6)). The former relates to public disclosure initiated by the Federal agency while the latter relates to disclosure initiated by a specific request from a member of the public under the Freedom of Information Act." H.R.Conf.Rep.No.94-1022, p. 27 (1976); U.S.Code Cong. & Admin.News, pp. 993, 1029 (emphasis added).12
27
In evaluating the weight to be attached to these statements, we begin with the oft-repeated warning 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, 332, 4 L.Ed.2d 334 (1960), quoted in United States v. Philadelphia National Bank, 374 U.S. 321, 348-349, 83 S.Ct. 1715, 1733, 10 L.Ed.2d 915 (1963).13 And ordinarily even the contemporaneous remarks of a single legislator who sponsors a bill are not controlling in analyzing legislative history. Chrysler Corp. v. Brown, 441 U.S. 281, 311, 99 S.Ct. 1705, 1722, 60 L.Ed.2d 208 (1979). We do not think that either Representative Moss' isolated remark or the post hoc statement of the Conference Committee with respect to § 6(b) is entitled to much weight here.
28
While Representative Moss claimed sponsorship of the CPSA generally, he was not a sponsor of the original bill that ultimately provided that legislation with its provisions governing information disclosure. Rather he authored another bill, H.R.8157, that contained much less restrictive disclosure requirements than those ultimately adopted.14 His statement is thus not one that provides a reliable indication as to congressional intention.15
29
An examination of the statement of the Conference Committee, as the Court of Appeals concluded, reveals that it also is not persuasive authority in support of petitioners' position. Section 29(e) by its terms does not purport to interpret the scope of § 6(b). Rather, it deals solely with the release of accident and investigation reports by the Commission to other agencies. See n. 12, supra. And as the Court of Appeals stated:
30
"[T]he conference committee statement was made in the context of approving legislation that contained numerous and extensive amendments to the Consumer Product Safety Act; yet the problem before us here was not otherwise addressed by Congress in enacting the Improvements Act. The interpretation of section 6(b) espoused by the conferees was not mentioned by the House committee that drafted the Improvements Act. See H.R.Rep.No.94-325, 94th Cong., 1st Sess. 18 (1975). The Senate version of the Improvements Act did not contain a provision amending section 29. [H.R.Conf.Rep.No.94-1022, p. 26.] In the debates in the House the amendment to section 29, and the relationship between section 6(b) and the FOIA, were not mentioned. Nor was the conferees' interpretation of section 6(b) mentioned in either House when the conference report was debated. See 122 Cong.Rec. 10,811 (House approval of the conference report); id., 11,585 (Senate approval) (1976)." 598 F.2d, at 810-811.
31
In light of this background, the statement of the Conference Committee is far from authoritative as an expression of congressional will under the oft-quoted factors enunciated in Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944).16 For the same reasons, we reject petitioners' contention that the Commission's 1977 administrative interpretation should be afforded the degree of deference necessary for it to prevail here. See 42 Fed.Reg. 54304 et seq. (1977). This case presents a narrow legal issue that is readily susceptible of judicial resolution. Nor are we presented here with a situation in which there has been a longstanding contemporaneous administrative construction upon which those subject to the jurisdiction of the agency would have been likely to rely.17
V
32
Petitioners next argue that the interpretation of § 6(b)(1) by the Court of Appeals is inconsistent with the FOIA time requirements for the release of information. The FOIA requires an agency to "determine within ten days . . . whether to comply with [an FOIA] request" and to notify the requester "immediately" of the agency's determination. 5 U.S.C. § 552(a)(6)(A)(i). The FOIA also requires an agency to resolve any administrative appeal of a refusal to disclose within 20 days after the filing of the appeal. § 552(a)(6)(A)(ii). Petitioners claim that if § 6(b)(1) applies to FOIA requests the Commission will be unable to comply with FOIA time requirements.
33
Petitioners' argument assumes that despite the specific procedural safeguards set forth in § 6(b)(1) the Commission must comply with FOIA time limitations. Federal agencies, however, are granted discretion to refuse FOIA requests when the requested material falls within one of the nine statutory exemptions set forth in 5 U.S.C. § 552(b). Exemption 3 of the FOIA, 5 U.S.C. § 552(b)(3), states that the FOIA does not apply to matters that are
34
"specifically exempted from disclosure by statute (other than section 552(b) of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld."18
35
Here § 6(b)(1) sets forth sufficiently definite standards to fall within the scope of Exemption 3. It does not grant the Commission broad discretion to refuse to comply with FOIA requests. Rather, it requires that the Commission "take reasonable steps to assure" (1) that the information is "accurate," (2) that disclosure will be "fair in the circumstances," and (3) that disclosure will be "reasonably related to effectuating the purposes of [the CPSA]."19 We therefore do not believe there is any insoluble conflict between § 6(b)(1) and the FOIA.20
VI
36
Finally, petitioners argue that requiring the Commission to comply with § 6(b)(1) in meeting FOIA requests will impose insurmountable burdens on the agency. In making this claim, petitioners state that the Commission receives nearly 8,000 FOIA requests annually. The extent to which these requests will present problems of fairness and accuracy with respect to the information released by the Commission is entirely speculative. And in light of the fact that Exemption 3 is applicable to the disclosure of information controlled by § 6(b)(1), we do not think these burdens will prove to be unbearable. Most importantly, our interpretation of the language and legislative history of § 6(b)(1) reveals that any increased burdens imposed on the Commission as a result of its compliance with § 6(b)(1) were intended by Congress in striking an appropriate balance between the interests of consumers and the need for fairness and accuracy with respect to information disclosed by the Commission. Thus, petitioners' claim that the Commission's compliance with the requirements of § 6(b)(1) will impose undue burdens on the Commission is properly addressed to Congress, not to this Court.
37
For the foregoing reasons, the judgment of the Court of Appeals for the Third Circuit is
38
Affirmed.
1
The decision below, 598 F.2d 790 (1979), is in direct conflict with Pierce & Stevens Chemical Corp. v. U.S. Consumer Product Safety Comm'n, 585 F.2d 1382 (CA2 1978).
2
In its entirety, § 6 states:
"(a)(1) Nothing contained in this Act shall be deemed to require the release of any information described by subsection (b) of section 552, title 5, United States Code, or which is otherwise protected by law from disclosure to the public.
"(2) All information reported to or otherwise obtained by the Commission or its representative under this Act which information contains or relates to a trade secret or other matter referred to in section 1905 of title 18, United States Code, shall be considered confidential and shall not be disclosed, except that such information may be disclosed to other officers or employees concerned with carrying out this Act or when relevant in any proceeding under this Act. Nothing in this Act shall authorize the withholding of information by the Commission or any officer or employee under its control from the duly authorized committees of the Congress.
"(b)(1) Except as provided by paragraph (2) of this subsection, not less than 30 days prior to its public disclosure of any information obtained under this Act, or to be disclosed to the public in connection therewith (unless the Commission finds out that the public health and safety requires a lesser period of notice), the Commission shall, to the extent practicable,
notify, and provide a summary of the information to, each manufacturer or private labeler of any consumer product to which such information pertains, if the manner in which such consumer product is to be designated or described in such information will permit the public to ascertain readily the identity of such manufacturer or private labeler, and shall provide such manufacturer or private labeler with a reasonable opportunity to submit comments to the Commission in regard to such information. The Commission shall take reasonable steps to assure, prior to its public disclosure thereof, that information from which the identity of such manufacturer or private labeler may be readily ascertained is accurate, and that such disclosure is fair in the circumstances and reasonably related to effectuating the purposes of this Act. If the Commission finds that, in the administration of this Act, it has made public disclosure of inaccurate or misleading information which reflects adversely upon the safety of any consumer product, or the practices of any manufacturer, private labeler, distributor, or retailer of consumer products, it shall, in a manner similar to that in which such disclosure was made, publish a retraction of such inaccurate or misleading information.
"(2) Paragraph (1) (except for the last sentence thereof) shall not apply to the public disclosure of (A) information about any consumer product with respect to which product the Commission has filed an action under section 12 (relating to imminently hazardous products), or which the Commission has reasonable cause to believe is in violation of section 19 (relating to prohibited acts), or (B) information in the course of or concerning any administrative or judicial proceeding under this Act." 86 Stat. 1212, 15 U.S.C. § 2055.
3
Earlier decisions of the District Court are reported at 438 F.Supp. 208 (1977) and 404 F.Supp. 352 (1975). These decisions are discussed in GTE Sylvania, Inc. v. Consumers Union, 445 U.S., at 377-378, and n. 1, 100 S.Ct., at 1197, and n. 1.
4
Petitioners argue that the exception to the 30-day notice requirement where "the Commission finds out that the public health and safety requires a lesser period of notice" suggests that the term "public disclosure" in § 6(b)(1) should be read to encompass only affirmative disclosures by the Commission. The exception, they claim, makes little sense as applied to FOIA disclosures in that such disclosures are the result of the Commission's statutory obligation to comply with an FOIA request rather than a Commission-initiated decision to assist the public. The language of § 6(b)(1), however, does not limit the scope of that section to disclosures of information intended "to assist the public." Rather, it refers broadly to any "public disclosure." And, as discussed in Part III, infra, the legislative history indicates that the concerns underlying § 6(b)(1) were not limited to information affirmatively disclosed by the Commission.
5
These exceptions, for example, include the disclosure of information concerning an imminently hazardous product and disclosures in the course of an administrative or judicial proceeding under the CPSA.
6
Section 25(c), as set forth in 15 U.S.C. § 2074(c), states:
"Subject to sections 2055(a)(2) and 2055(b) of this title but notwithstanding section 2055(a)(1) of this title, (1) any accident or investigation report made under this chapter by an officer or employee of the Commission shall be made available to the public in a manner which will not identify any injured person or any person treating him, without the consent of the person so identified, and (2) all reports on research projects, demonstration projects, and other related activities shall be public information."
7
Thus, although as petitioners point out, a vice president of General Electric Co., James F. Young, cautioned against the dangers of information "[i]ssued under the dignity and with the apparent imprimatur of the U. S. Government," Consumer Product Safety Act: Hearings before the Subcommittee on Commerce and Finance of the House Committee on Interstate and Foreign Commerce, 92d Cong., 1st and 2d Sess., pt. 3, p. 1065 (1971-1972) (hereinafter Subcommittee Hearings), other statements by industry representatives expressed more general concerns about the disclosure by the Commission of information relating to product safety. For example, Bernard H. Falk, president of the National Electrical Manufacturers Association, stated that "[n]o information should be disclosed which is inaccurate, misleading or incomplete." Id., at 1197. And in a prepared statement George P. Lamb, general counsel of the Association of Home Appliance Manufacturers, voiced the following concern:
"Authority to collect and disseminate information carries with it a responsibility not to disclose data that may injure a company or reveal confidential information. A statute establishing a standards-setting agency should state explicitly, as do many other federal statutes, that confidential data are not to be disseminated. A statute should also assure that any information to be made public is accurate, and that if it is derogatory the company it identifies has had an opportunity to refute it. H.R. 8110 contains provisions in § 4(c) that would accomplish this." Id., at 1237 (emphasis added).
8
The provisions of § 6 of the CPSA, as finally enacted, can be traced to H.R. 8110, 92d Cong., 1st Sess. (1971), a bill introduced in the House on behalf of the administration. Section 4(c) of this bill, which was also introduced in the Senate, contained information disclosure limitations that were virtually identical to those ultimately enacted in § 6(b)(1) of the CPSA. It provided:
"(1) Nothing contained in this Act shall be deemed to require the release of any information described by subsection (b) of section 552, title 5, United States Code, or which is otherwise protected by law from disclosure to the public. The Secretary shall not make public information obtained by him under this Act which would disclose trade secrets, formulas, processes, costs, methods of doing business, or other competitive information not otherwise available to the general public; or the names or other means of identification of ill or injured persons without their express written consent.
"(2)(A) Except as provided by subparagraph (B) of this paragraph, not less than thirty days prior to his public disclosure of any information obtained under this Act, or to be disclosed to the public in connection therewith, the Secretary shall provide such information to each manufacturer of any consumer product to which such information pertains, if
the manner in which such consumer product is to be designated or described in such information will permit the public to ascertain readily the identity of such manufacturer, and shall provide such manufacturer with a reasonable opportunity to submit comments to the Secretary in regard to such information. Upon the request of such manufacturer, the Secretary shall publish such comments or a fair summary thereof, or a statement of the manufacturer of reasonable length in lieu thereof, concurrently and in association with the disclosure of the information to which such comments or statement appertain. The Secretary shall take reasonable steps to assure, prior to his public disclosure thereof, that information from which the identity of such manufacturer may be readily ascertained is accurate, and that such disclosure is fair in the circumstances and reasonably related to effectuating the purposes of this Act. If the Secretary finds that, in the administration of this Act, he has made public disclosure of inaccurate or misleading information which reflects adversely upon the safety of any consumer product, or the practices of any manufacturer of, distributor of, importer of, or dealer in consumer products, he shall, in a manner similar to that in which such disclosure was made, publish a retraction of such inaccurate or misleading information.
"(B) Subparagraph (A) (except for the last sentence thereof) shall not apply to the public disclosure of (i) information about any consumer product with respect to which product the Attorney General has filed an action (or an action against a manufacturer thereof with respect to such product) under section 12, or which the Secretary has reasonable cause to believe is in violation of section 15, or (ii) information about any administrative or judicial proceeding under this Act."
Although the bill passed by the Senate omitted these safeguards, see S.Rep.No.92-749, pp. 49, 51 (1972), the bill passed by the House, H.R.15003, incorporated the administration's proposal in this regard. See H.R.Rep.No.92-1153, pp. 5, 24 (1972). The information disclosure limitations contained in H.R.15003 were accepted by the Conference Committee and ultimately became law. See H.R.Conf.Rep.No.92-1593, p. 7 (1972).
9
The Conference Report stated:
"The Commission was directed to take steps to assure that publicly disclosed information from which specific manufacturers or distributors could be identified was accurate and that the disclosure was fair in the circumstances and reasonably related to carrying out its duties. No information would be required to be publicly disclosed if it is information described in section 552(b), title 5, United States Code (relating to information which is entitled to be protected from public access under the Freedom of Information Act), or which is otherwise protected by law from disclosure to the public." Id., at 41.
10
The conclusion that § 6(b)(1) applies to FOIA requests is also supported by a statement of Representative James Broyhill, a member of the Conference Committee on the CPSA. In the House debates on that CPSA, Representative Broyhill stated that the proposed legislation, H.R.15003, "requires the Commission to notify each manufacturer of its intent to release any information at least 30 days prior to disclosure and offer an opportunity for comment. This provision is not found in any other safety legislation." 118 Cong.Rec. 31381 (1972) (emphasis added).
11
The statement was made following his observation that the administration bill, H.R.8110, contained more restrictive disclosure provisions than his own bill, H.R.8157. Subcommittee Hearings, pt. 2, p. 300.
12
Section 29(e) was added to the CPSA to "prescrib[e] conditions under which the Commission may provide accident and investigation reports to other Federal agencies or State or local authorities engaged in activities relating to health, safety, or consumer protection." H.R.Conf.Rep.No.94-1022, at 26, U.S.Code Cong. & Admin.News, p. 1028. Section 29(e), 90 Stat. 510, provides:
"The Commission may provide to another Federal agency or a State or local agency or authority engaged in activities relating to health, safety, or consumer protection, copies of any accident or investigation report made under this Act by any officer, employee, or agent of the Commission only if (1) information which under section 6(a)(2) is to be considered confidential is not included in any copy of such report which is provided under this subsection; and (2) each Federal agency and State and local agency and authority which is to receive under this subsection a copy of such report provides assurances satisfactory to the Commission that the identity of any injured person and any person who treated an injured person will not, without the consent of the person identified, be included in—
"(A) any copy of any such report, or
"(B) any information contained in any such report,
"which the agency or authority makes available to any member of the public. No Federal agency or State or local agency or authority may disclose to the public any information contained in a report received by the agency or authority under this subsection unless with respect to such information the Commission has complied with the applicable requirements of section 6(b)."
13
Petitioners invoke the maxim that states: "Subsequent legislation declaring the intent of an earlier statute is entitled to great weight in statutory construction." Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 380-381, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371 (1969) (footnote omitted). With respect to subsequent legislation, however, Congress has proceeded formally through the legislative process. A mere statement in a conference report of such legislation as to what the Committee believes an earlier statute meant is obviously less weighty.
The less formal types of subsequent legislative history provide an extremely hazardous basis for inferring the meaning of a congressional enactment. While such history is sometimes considered relevant, this is because, as Mr. Chief Justice Marshall stated in United States v. Fisher, 2 Cranch 358, 386, 2 L.Ed. 304 (1805): "Where the mind labours to discover the design of the legislature, it seizes every thing from which aid can be derived." See Andrus v. Shell Oil Co., 446 U.S. 657, 666, n. 8, 100 S.Ct. 1932, 1938, n. 8, 64 L.Ed.2d 593 (1980). Such history does not bear strong indicia of reliability, however, because as time passes memories fade and a person's perception of his earlier intention may change. Thus, even when it would otherwise be useful, subsequent legislative history will rarely override a reasonable interpretation of a statute that can be gleaned from its language and legislative history prior to its enactment.
14
Section 19(d) of H.R.8175, 92d Cong., 1st Sess. (1971), provided:
"When the Commission finds that publication of any information obtained by it is in the public interest and would not give an unfair competitive advantage to any person, it is authorized to publish such information in the form and manner deemed best adapted for public use, except that data and information which relates to a trade secret, shall be held confidential and shall not be disclosed, unless the Commission determines that it is necessary to carry out the purposes of this Act." Subcommittee Hearings, pt. 1, pp. 68-69.
15
In addition, Chairman Simpson submitted to the Oversight Subcommittee a proposed amendment to § 6(b)(2) that would have added the release of information by the Commission under the FOIA to the list of exceptions from the requirements of § 6(b)(1). Regulatory Reform: Hearings before the Subcommittee on Oversight and Investigations of the House Committee on Interstate and Foreign Commerce, 94th Cong., 2d Sess., Vol. IV, p. 8 (1976). That proposed amendment was never reported out of Committee.
16
Petitioners also assert that under § 29(e) agencies that receive accident and investigation reports from the Commission would not have to comply with § 6(b)(1) when FOIA requests are made for information in such reports, and thus there would be an inconsistency in the statutory scheme if the Commission were required to comply with § 6(b)(1) before releasing such information. Although the other agencies themselves may not be required to comply with § 6(b)(1), the inconsistency is nonetheless not readily apparent in that § 29(e) states that "[n]o Federal agency or State or local agency or authority may disclose to the public any information contained in a report received by the agency or authority under this subsection unless with respect to such information the Commission has complied with the applicable requirements of section 6(b)." In any event, we need not address the scope of § 29(e) here.
17
The Commission did not reach its present interpretation of the statute until it met in executive session on October 6, 1975, 443 F.Supp. 1152, 1155, n. 6 (1977)—over six months after it had decided to release the information involved in this case and more than two months after the manufacturers' motions for preliminary injunction had been fully briefed and argued before the District Court. And it was not until October 5, 1977—two days before the Commission filed its brief opposing the manufacturers' motions for summary judgment (App. 7) and two years after the District Court concluded that the Commission must comply with § 6(b)(1) in responding to FOIA requests, 404 F.Supp., at 370—that the Commission's proposed rules were published. See 42 Fed.Reg. 54, 304 (1977). It is thus arguable that the Commission's interpretation here is primarily litigation inspired. Cf. Davies Warehouse Co. v. Bowles, 321 U.S. 144, 156, 64 S.Ct. 474, 481, 88 L.Ed. 635 (1944).
18
This exemption was amended in 1976 by § 5(b) of the Government in the Sunshine Act, Pub.L.94-409, 90 Stat. 1247. The amendment was to further define those statutes that "specifically exempt" material from disclosure. The Conference Report to the Sunshine Act states that the amendment was designed "to overrule the decision of the Supreme Court in Administrator, FAA v. Robertson, 422 U.S. 255, 95 S.Ct. 2140, 45 L.Ed.2d 164 (1975), which dealt with section 1104 of the Federal Aviation Act of 1958 (49 U.S.C. 1504)." H.R.Conf.Rep.No.94-1441, p. 25 (1976). Robertson held that § 1104, which vested broad discretion in the Federal Aviation Administration to withhold information from the public, fell within the scope of Exemption 3. The amendment was designed to eliminate from Exemption 3 those statutes that granted administrative agencies such discretion with respect to the disclosure or nondisclosure of material within their possession. As stated in the Report of the House Committee on Government Operations on the Sunshine Act, which recommended the amendment:
"Believing that the decision misconceives the intent of exemption (3), the committee recommends that the exemption be amended to exempt only material required to be withheld from the public by any statute establishing particular criteria or referring to particular types of information. The committee is of the opinion that this change would eliminate the gap created in the Freedom of Information Act by the Robertson case without in any way endangering statutes such as the Atomic Energy Act of 1954, 42 U.S.C. §§ 2161-2166, which provides explicitly for the protection of certain nuclear data.
"Under the amendment, the provision of the Federal Aviation Act of 1958 that was the subject of Robertson, and which affords the FAA Administrator cart blanche [sic ] to withhold any information he pleases, would not come within exemption 3. . . ." H.R.Rep.No.94-880, pt. 1, p. 23 (1976), U.S.Code Cong. & Admin.News, pp. 2183, 2205.
19
The statute in Robertson, by contrast, provided:
"Any person may make written objection to the public disclosure of information contained in any application, report, or document filed pursuant to the provisions of this Act or of information obtained by the Board or the Administrator, pursuant to the provisions of this Act, stating the grounds for such objection. Whenever such objection is made, the Board or Administrator shall order such information withheld from public disclosure when, in their judgment, a disclosure of such information would adversely affect the interests of such person and is not required in the interest of the public. The Board or Administrator shall be responsible for classified information in accordance with appropriate law: Provided, That nothing in this section shall authorize the withholding of information by the Board or Administrator from the duly authorized committees of the Congress." § 1104, 72 Stat. 797, 49 U.S.C. § 1504.
20
In addition, when Congress enacted the CPSA in 1972, the FOIA required only that an agency make records "promptly available" to any person requesting them. Pub.L.90-23, 81 Stat. 55. It was not until 1974, when Congress amended the FOIA, that the time requirements that petitioners argue conflict with § 6(b)(1) were adopted. Pub.L.93-502, § 1(c), 88 Stat. 1562, 5 U.S.C. § 552(a)(6). Because § 6(b)(1) has not been amended since 1972, these requirements also do not provide a sound basis for inferring a congressional intent to limit the application of § 6(b)(1) to disclosures initiated by the Commission.
| 45
|
447 U.S. 125
100 S.Ct. 2064
65 L.Ed.2d 1
State of CALIFORNIA, Plaintiff,v.State of NEVADA.
No. 73, Orig.
Argued April 14, 1980.
Decided June 10, 1980.
Syllabus
Held:
1. The Special Master was fully justified in invoking the doctrine of acquiescence in concluding that the true boundary between California and Nevada is that located by two surveys, funded by congressional appropriations in 1872 and 1892, since both States have acquiesced in those boundary lines from the time they were drawn. The issue of whether Congress had power to determine the lines even though an 1863 joint survey had been commissioned by the States, which both adopted the results thereof by statute, need not be decided, since it is not necessary that there be a particular relationship between the origins of a boundary and the legal consequences of acquiescence in that boundary. Longstanding acquiescence by the States can give the boundary lines the force of law whether or not federal authorities had the power to draw them. Pp. 130-132.
2. However, the Special Master's reference will not be expanded to authorize him to determine whether the United States should be made a party to the case and to make recommendations as to the quieting of title on various disputed borderlands. The ownership and title questions that remain typically will involve only one or the other State and the United States, or perhaps various citizens of those States, not disputes between the States. Thus, even if some of those questions do fall within this Court's original jurisdiction, they will not fall within its exclusive jurisdiction, and litigation in other forums is an appropriate means of resolving those questions. Pp. 132-133.
Exceptions to Special Master's report overruled, and report adopted in part.
James H. Thompson, Reno, Nev., for defendant.
Jan S. Stevens, Sacramento, Cal., for plaintiff.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The report of the Special Master tenders for the Court's approval his determination of the true boundary between the States of California and Nevada. That boundary was the subject of numerous surveys in the latter half of the 19th century, and the central question presented in this original action is which, if any, of the lines which resulted properly marks the rugged border between the two States.1 The Special Master combed the voluminous record and concluded that in combination the two most recent surveys had fixed a boundary to which both States have acquiesced for the better part of a century. Applying the doctrine of prescription and acquiescence, he concluded that the boundary so fixed was the proper one. Nevada takes exception to that determination on several grounds. We overrule those exceptions and, with the qualifications hereinafter noted, approve and adopt the Special Master's report.
2
* The two straight-line segments that make up the boundary between California and Nevada were initially defined in California's Constitution of 1849. The first, the "north-south" segment, commences on the Oregon border at the intersection of the 42d parallel and the 120th meridian and runs south along that meridian to the 39th parallel. And the second, the "oblique" segment, begins at that parallel and runs in a south-easterly direction to the point where the Colorado River crosses the 35th parallel. Cal.Const., Art. XII (1849). In 1850, when California was admitted to the Union, Congress approved the 1849 Constitution, and with it California's eastern boundary. Act of Sept. 9, 1850, 9 Stat. 452.
3
On the same day that it admitted California, Congress established a territorial government in the area immediately to the east. The organic Act for that new Territory—which was then called Utah—stated that it was to be "bounded on the west by the State of California." Act of Sept. 9, 1850, 9 Stat. 453. Eleven years later, the Territory of Nevada was created out of Utah. Congress indicated in the organic Act that Nevada might include portions of what was then California, but with the proviso that "so much of the Territory within the present limits of the State of California shall not be included within this Territory until the State of California shall assent to the same by an act irrevocable without the consent of the United States . . . ." Act of Mar. 2, 1861, 12 Stat. 210. No assent was ever given by California. Accordingly, when Nevada was admitted as a State in 1864 its western boundary and California's eastern one remained congruent.2
4
Notwithstanding brief and incomplete surveying efforts in the decade after California was admitted, the actual location on the ground of that State's eastern boundary remained highly uncertain so much that fighting broke out over the precise whereabouts of a small valley on the north-south line above Lake Tahoe, and a border town along the oblique line found itself claimed as the seat of both a Nevada and a California county.3 These difficulties led California and Nevada to commission a joint survey of their border. Conducted in 1863, that survey located what is known as the Houghton-Ives line from the Oregon border south along the 120th meridian to a point in Lake Tahoe and then southeast for about 103 miles along the oblique line in the direction of the relevant point on the Colorado River. The remaining 300-plus miles of the oblique border were not surveyed.4
5
Both California and Nevada adopted the Houghton-Ives line by statute, but its significance was to be short-lived. In 1867-1868 Daniel G. Major surveyed the Oregon-California boundary for the General Land Office. One step in his work was to locate the intersection of that boundary and the 120th meridian. This he did, at a point more than two miles west of that meridian as marked by Houghton-Ives. This discrepancy5 eventually led the Commissioner of the General Land Office to recommend that Congress appropriate money for a full survey of the eastern boundary of California. His recommendation was followed in 1872.
6
The new survey was conducted by Allexey W. Von Schmidt. While originally instructed to commence his north-south line at the point located by Daniel G. Major, Von Schmidt concluded that the actual 120th meridian lay not only east of "Major's corner," but six-tenths of a mile east of the Houghton-Ives line as well. Accordingly, Von Schmidt marked a new north-south line starting at this location. His survey of the oblique boundary also had its surprises. From the intersection of his north-south segment and the 39th parallel he set off in what he thought was the direction of the intersection of the Colorado River and the 35th parallel. Unfortunately, the Colorado River had shifted since the point for which he was aiming had been marked, and rather than end at the wrong place he attempted to correct the line he was marking. It later turned out that his corrections were not complete and his line not entirely straight. But linear or not, his work did generate a boundary. And, although neither State adopted it by statute, the Von Schmidt survey won gradual acceptance in both California and Nevada.
7
In the 1880's however, substantial doubts about the accuracy of the oblique segment of the Von Schmidt line were voiced in Washington. As a result, Congress appropriated funds in 1892 for a new survey of that segment. The survey was undertaken by personnel of the United States Coast and Geodetic Survey and conducted over a period of several years. It yielded a new oblique line and determined that the one chartered by Von Schmidt had been neither straight nor accurate. Both States adopted the United States Coast and Geodetic Survey line by statute—California in 1901 and Nevada in 1903.6
8
The Special Master concluded that the Von Schmidt survey of the north-south line and the United States Coast and Geodetic Survey one of the oblique line were the most recent and accurate surveys available. While noting that Von Schmidt had not been entirely accurate, the Master found that the north-south line that resulted from his survey had been consistently and routinely recognized and accepted by agencies and departments of the State of Nevada for more than a century. That the Houghton-Ives line was the first north-south boundary marked and the only one approved by statute was, he found, beside the point because as a practical matter that boundary had been superseded a decade after it was established and neither State had objected.7 As for the oblique boundary, the Master found that the United States Coast and Geodetic Survey line had not only been adopted by statute, but had also been accepted and used by the two States for nearly 80 years. Since both States had treated these lines as the boundary from the time they were drawn, the Master invoked the doctrine of acquiescence to determine that together they in fact constitute the true and correct interstate boundary.
II
9
The State of Nevada's primary contention is that the special Master's reliance upon the doctrine of acquiescence was in error. Basically, the argument is that once Nevada and California had conducted the 1863 joint survey which produced the Houghton-Ives line the Federal Government had no constitutional authority to mark a different line which had the effect of removing territory from one State and granting it to the other. Since the Congress was without power to determine the Von Schmidt and the United States Coast and Geodetic Survey lines, the argument continues, they are without legal effect. And because States may not confer upon the Federal Government a power which the Constitution does not vest in it, acquiescence in those lines cannot make them lawful. Thus, Nevada concludes, either (1) Congress is constitutionally empowered to redraw the boundaries of the several States, in which case the Von Schmidt and Geodetic Survey lines may be upheld regardless of acquiescence, or (2) Congress is constitutionally powerless to alter those boundaries, in which case no mere century of acquiescence can convert a usurpation into law.
10
The flaw in this argument is that it assumes that there must be a particular relationship between the origins of a boundary and the legal consequences of acquiescence in that boundary. In fact, however, no such relationship need exist. Longstanding acquiescence by California and Nevada can give the Von Schmidt and Geodetic Survey lines the force of law whether or not federal authorities had the power to draw them. And the determination that the two States' conduct has had precisely this effect, therefore, does not place any sort of constitutional imprimatur upon the federal actions involved. See Ohio v. Kentucky, 410 U.S. 641, 648-651, 93 S.Ct. 1178, 1182-1184, 35 L.Ed.2d 560 (1973); Indiana v. Kentucky, 136 U.S. 479, 509-510, 10 S.Ct. 1051, 1053-1054, 34 L.Ed. 329 (1890). Accordingly, we need not address the issue of federal power to which Nevada adverts. It is enough that California claims and has always claimed all territory up to a specifically described boundary—the 120th meridian and the oblique line with which it connects—and that both States have long acquiesced in particular lines marking that boundary.8 If Nevada felt that those lines were inaccurate and operated to deprive it of territory lawfully within it jurisdiction the time to object was when the surveys were conducted, not a century later. Ohio v. Kentucky, supra, 410 U.S. at 649, 93 S.Ct. at 1183. In consequence, we hold that in these circumstances the Special Master was fully justified in invoking the doctrine of acquiescence.9
III
11
Having determined that the Special Master's resolution of the boundary dispute was proper, we turn to his recommendations regarding the quite separate issue of ownership of various disputed borderlands. This matter is here on California's motion to file a second amended complaint and bifurcate issues, which seeks further proceedings before the Special Master after the boundary questions are determined. Specifically, the United States has apparently confirmed or "clear-listed" to California and Nevada certain parcels that turn out to be on the "wrong" side of the boundary between those States. The Special Master was of the view that California's motion should be allowed and that he should be authorized (1) to determine whether the United States should be made a party to this case and (2) to make recommendations as to the quieting of title on various borderlands.
12
We decline at this point to expand the Special Master's reference. The ownership and title questions that remain typically will involve only one or the other State and the United States, or perhaps various citizens of those States. Disputes between California and Nevada are not in the offing.10 In consequence, even if some of the ownership questions to come do fall within our original jurisdiction they will not fall within our exclusive jurisdiction. 28 U.S.C. § 1251 (1976 ed., Supp.II). Under these circumstances we see no reason to refer the matter to the Special Master. On the contrary, litigation in other forums seems an entirely appropriate means of resolving whatever questions remain.
13
In sum, we overrule Nevada's exceptions and approve and adopt the Special Master's report and recommendations except insofar as those recommendations would allow California's second amended complaint and permit proceedings relating to the ownership of disputed lands on the California-Nevada boundary.
14
So ordered.
1
California instituted this original action on April 22, 1977, when it filed its motion for leave to file complaint and complaint. On June 29, 1977, we granted that motion and appointed the Special Master. Basically, California sought a declaration that the currently recognized line dividing the two States was in fact the lawful boundary. As counsel for the State characterized it at oral argument, the suit was in the nature of a quiet title action and was precipitated by growing doubts about the geographic accuracy of the existing line as well as concerns regarding the validity of certain titles which depended upon the location of the border. The Special Master's report was filed in this Court on October 29, 1979, 444 U.S. 922, 100 S.Ct. 258, 62 L.Ed.2d 178, and we set Nevada's exceptions and related matters for oral argument, 444 U.S. 1065, 100 S.Ct. 1005, 62 L.Ed.2d 747 (1980).
2
Nevada's Constitution stated that its boundary would proceed "in a North Westerly direction along [the oblique section of the] Eastern boundary line of the State of California to the forty third degree of Longitude West from Washington [and then] North along said forty third degree of West Longitude, and said Eastern boundary line of the State of California to the forty second degree of North Latitude. . . ." Nev.Const., Art. XIV, § 1 (1864). Although it turns out that the 43d degree of longitude west from Washington does not exactly coincide with the 120th meridian west of Greenwich—which was the north-south reference in the California Constitution—the Special Master concluded that the Congress that approved Nevada's Constitution was of the view that the two lines were identical. Certainly the language of the Nevada Constitution supports this conclusion by seeming to equate the 43d degree of longitude west of Washington with the eastern boundary of California. In any event, we need not explore the matter further since it would be relevant only were we to require a new survey of one or the other longitudinal line, and we do not find such a new survey necessary.
3
Indeed, the town—Aurora—elected representatives to both the California and Nevada Legislatures in 1862, and those representatives apparently became speakers of their respective legislatures.
4
Two years later one James S. Lawson extended the oblique portion of the Houghton-Ives line another 73 miles.
5
A third survey, conducted in the summer of 1872 near the Oregon border, contributed to the confusion by concluding that the 120th meridian lay to the east of the locations pinpointed by both Major and Houghton-Ives.
6
Nevada's statute was in effect when the present litigation was commenced, although it had subsequently been repealed.
7
California notes that Nevada welcomed the Von Schmidt survey at the time it was conducted. Indeed, the Surveyor General of that State remarked that "within a year the State will be inclosed by an actual surveyed line and monuments, and the troubles heretofore existing, to State and county officials, in dealing with an imaginary line, will be entirely and forever obviated." Report of the Surveyor General and State Land Register of the State of Nevada for the years 1871 and 1872, p. 8.
8
Nor is Nevada's position saved by the contention that California could not profit by the doctrine of acquiescence because its claim to the lands up to the Von Schmidt and United States Coast and Geodetic Survey lands was not made under color of title or claim of right. The fact is that California's claim has always been for all lands on its side of the boundary described rather specifically in its Constitution. So long as its claims were made under a survey that purported to reflect that boundary, it had colorable title and a claim of right.
9
Several subsidiary issues relating to the California-Nevada border are considered in the Special Master's recommendations. First, it turns out that Von Schmidt's north-south line and the United States Coast and Geodetic Survey oblique line do not intersect at precisely the 39th parallel, as in theory they should. The Special Master suggests that the two States be given the opportunity to determine by agreement the point in Lake Tahoe where the two lines meet. Failing such an accord, he indicates that he would recommend a solution; but this probably will not be necessary since the parties are apparently in agreement that if the balance of the Master's report is accepted the best course is to extend the oblique line in a northwesterly direction to the point where it crosses the north-south line. This solution to the problem is entirely permissible. Cf. New Hampshire v. Maine, 426 U.S. 363, 96 S.Ct. 363, 48 L.Ed.2d 701 (1976). Second, the Master recommends that he be authorized to arrange for surveys, at the parties' expense, if necessary to resolve disputes over the precise location of portions of either of the lines we approve today. That, too, seems appropriate. And third, he states that we should reserve the taxing of costs until after a further report—a suggestion which we will follow since the possibility of partial surveys would make an assessment at this time premature.
10
At oral argument, counsel for the State of California conceded that he knew of no instance in which both States claimed the same parcel.
| 1011
|
447 U.S. 134
100 S.Ct. 2069
65 L.Ed.2d 10
State of WASHINGTON et al., Appellants,v.CONFEDERATED TRIBES OF the COLVILLE INDIAN RESERVATION et al. State of WASHINGTON v. UNITED STATES et al.
No. 78-630.
Argued Oct. 9, 1979.
Decided June 10, 1980.*
Rehearing Denied Aug. 11, 1980.
See 448 U.S. 911, 101 S.Ct. 25.
Syllabus
These cases concern challenges of several Indian Tribes to efforts by the State of Washington to apply various state taxes and other laws to transactions and activities occurring on Indian reservations. Washington imposes a cigarette excise tax on the "sale, use, consumption, handling, possession or distribution" of cigarettes within the State. It also imposes a general retail sales tax on sales of personal property, including cigarettes. The State sought to compel Indian retailers to collect both taxes with respect to sales of cigarettes to non-Indians and the latter tax with respect to sales of other goods as well. In addition, the State sought to apply its motor vehicle excise tax and mobile home, camper, and trailer taxes—which are imposed for the privilege of using the covered vehicles in the State—to vehicles owned by the Tribes or their members and used both on and off the reservation. Finally, the State took steps to assume civil and criminal jurisdiction over the affected reservations. The Indian Tribes involved in this litigation have each adopted ordinances imposing their own taxes upon on-reservation sales of cigarettes. In actions brought in Federal District Court, they sought declaratory and injunctive relief against enforcement of the state sales and cigarette taxes, and in particular against the State's seizure of untaxed cigarettes destined for delivery to the reservations, contending that those taxes could not lawfully be applied to tribal cigarette sales. In addition, the Tribes challenged the State's efforts to apply its vehicle excise taxes to Indian-owned vehicles and asserted that the State's assumption of jurisdiction was invalid. The complaints alleged, inter alia, that the challenged taxes were contrary to the Indian Commerce Clause. Because injunctive relief against enforcement of state statutes was sought, a three-judge District Court was convened pursuant to the then applicable requirement of 28 U.S.C. § 2281 (1970 ed.) that an injunction restraining the enforcement of any state statute shall not be granted by any district court upon the ground of the statute's unconstitutionality unless the application therefor is heard and determined by a three-judge court. After a consolidated proceeding, the District Court held that (1) it had jurisdiction as a three-judge court; (2) the cigarette tax could not be applied to on-reservation transactions because it was preempted by the tribal taxing ordinance and constituted an impermissible interference with tribal self-government; (3) the retail sales tax could not be applied to tribal cigarette sales; (4) the State could not impose certain recordkeeping requirements on the Tribes in connection with various tax-exempt sales; (5) the vehicle excise taxes could not be imposed on vehicles owned by the Tribes and their members; and (6) the State's assumption of civil and criminal jurisdiction over certain of the Tribes was unconstitutional. The court enjoined enforcement of the statutes it had invalidated, and the State moved unsuccessfully for a new trial.
Held:
1. The Tribes' Commerce Clause claims are not "insubstantial" and are not rendered inescapably frivolous by the decisions in Mescalero Apache Tribe v. Jones, 411 U.S. 145, 93 S.Ct. 1267, 36 L.Ed.2d 114, and McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129, so as to defeat application of § 2281. In addition, the Tribes' attack on the official seizure of cigarettes bound for the reservations also triggers the three-judge requirement of § 2281. Accordingly, this Court has jurisdiction over the appeals under 28 U.S.C. § 1253, which authorizes a direct appeal to this Court from an order granting an injunction in a suit "required by any Act of Congress to be heard and determined by a district court of three judges." Pp. 145-149.
2. The State's motion for a new trial on issues other than the motor-vehicle-tax and assumption-of-jurisdiction issues rendered nonfinal the disposition of all issues between the parties, and thus the State's appeal from the District Court's resolution of those two issues was timely under 28 U.S.C. § 2101(b), where it was filed within 60 days of the denial of the motion for a partial new trial but more than 60 days after the District Court's decision on those two issues. Accordingly, the appeal from such decision is properly before this Court. Pp. 149-150.
3. The imposition of Washington's cigarette and sales taxes on on-reservation purchases by nonmembers of the Tribes is valid. Pp. 150-162.
(a) The Tribes have the power to impose their cigarette taxes on nontribal purchases, since the power to tax transactions occurring on trust lands and significantly involving a tribe or its members is a fundamental attribute of sovereignty which the tribes retain unless divested of it by federal law or necessary implication of their dependent status. Here, there is no federal statute showing any congressional departure from the view that tribes have such power, and tribal powers are not implicitly divested by virtue of the tribes' dependent status. Pp. 152-154.
(b) But the Tribes' involvement in the operation and taxation of cigarette marketing on the reservation does not oust the State from any power to exact its sales and cigarette taxes from nonmembers purchasing cigarettes at tribal smokeshops. Principles of federal Indian law, whether stated in terms of pre-emption, tribal self-government, or otherwise, do not authorize Indian tribes to market an exemption from state taxation to persons who would normally do their business elsewhere. Federal statutes, such as the Indian Reorganization Act of 1934, the Indian Financing Act of 1974, and the Indian Self-Determination and Education Assistance Act of 1975, while evidencing a congressional concern with fostering tribal self-government and economic development, do not go so far as to grant tribal enterprises selling goods to nonmembers an artificial competitive advantage over all other businesses in a State. Washington does not infringe the right of reservation Indians to make their own laws and be ruled by them, merely because the result of imposing taxes will be to deprive the Tribes of revenues which they currently are receiving. Pp. 154-157.
(c) The Indian Commerce Clause does not, of its own force, automatically bar all state taxation of matters significantly touching the political and economic interests of the Tribes. That Clause may have a more limited role to play in preventing undue discrimination against, or burdens on, Indian commerce, but Washington's taxes are applied in a nondiscriminatory manner to all transactions within the State and do not burden commerce that would exist on the reservations without respect to the tax exemption. Although the result of these taxes will be to lessen or eliminate tribal commerce with nonmembers, that market existed in the first place only because of a claimed exemption for these very taxes. Such taxes do not burden commerce that would exist on the reservations without respect to the tax exemption. P. 157.
(d) The Tribes failed to show that business at the smokeshops would be significantly reduced by a state tax without a credit as compared to a state tax with a credit. Pp. 157-158.
(e) There is no direct conflict between the state taxes and the Tribes' cigarette ordinances so as to warrant invalidation of the state taxes on grounds of pre-emption or violation of the principle of tribal self-government. Pp. 158-159.
(f) The State may validly require, as a minimal burden, the tribal smokeshops to affix tax stamps purchased from the State to individual packages of cigarettes prior to the time of sale to nonmembers of the Tribe. Cf. Moe v. Salish & Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96. P. 159.
(g) The State's recordkeeping requirements are valid in toto. The Tribes failed to demonstrate that such requirements for exempt sales are not reasonably necessary as a means of preventing fraudulent transactions. Pp. 159-160.
(h) The State's interest in taxing nontribal purchasers outweighs any tribal interest that may exist in preventing the State from imposing its taxes. Pp. 160-161.
(i) The State's interest in enforcing its taxes is sufficient to justify its seizure of unstamped cigarettes as contraband if the Tribes do not cooperate in collecting the taxes. Pp. 161-162.
4. The motor vehicle and mobile home, camper, and trailer taxes cannot properly be imposed upon vehicles owned by the Tribes or their members and used both on and off the reservations. Moe, supra. P. 162-164.
5. The District Court erred in holding that the State's assumption of civil and criminal jurisdiction over the Makah and Lummi Reservations was unlawful. Washington v. Yakima Indian Nation, 439 U.S. 463, 99 S.Ct. 740, 58 L.Ed.2d 740, controlling. P. 164.
446 F.Supp. 1339, affirmed in part and reversed in part.
Slade Gorton, Olympia, Wash., for appellants.
Steven S. Anderson, James B. Hoves and Louis F. Claiborne, Washington, D. C., for appellees.
Mr. Justice WHITE delivered the opinion of the Court.
1
In recent Terms we have more than once addressed the intricate problem of state taxation of matters involving Indian tribes and their members. Moe v. Salish & Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976); McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973); Mescalero Apache Tribe v. Jones, 411 U.S. 145, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973). We return to that vexing area in the present cases. Although a variety of questions are presented, perhaps the most significant is whether an Indian tribe ousts a State from any power to tax on-reservation purchases by nonmembers of the tribe by imposing its own tax on the transaction or by otherwise earning revenues from the tribal business. A three-judge District Court held for the Tribes. We affirm in part and reverse in part.
2
* These cases are here on the State of Washington's appeal from declaratory judgments and permanent injunctions entered by the District Court at the close of consolidated proceedings in two separate cases that raised related issues. 446 F.Supp. 1339 (ED Wash. 1978). The first case, Confederated Tribes of the Colville Indian Reservation v. State of Washington, Civ.No. 3868, was filed on May 17, 1973, by the Confederated Tribes of the Colville Reservation (Colville), Makah, and Lummi Tribes. The second, United States of America and Confederated Bands and Tribes of the Yakima Indian Nation v. State of Washington, Civ. No. 3909, was commenced on July 18, 1973, by the United States on behalf of the Confederated Bands and Tribes of the Yakima Indian Nation (Yakima Tribe.1 In each action, the complainants contended that the State's cigarette and tobacco products taxes2 could not lawfully be applied to sales by on-reservation tobacco outlets. They sought declaratory judgments to that effect, as well as injunctions barring the State from taking any measures to enforce the challenged taxes. In particular, the plaintiffs sought to enjoin the State from seizing as contraband untaxed cigarettes destined for delivery to their reservations.3 In the Colville case, the Tribes also challenged the State's assumption of civil and criminal jurisdiction over their reservations and, by amended pleadings, attacked the application of the State's vehicle excise taxes to Indian-owned vehicles. The Yakima case did not present these latter issues, but it did make a broad attack on the application of the State's general retail sales tax to on-reservation transactions.
3
From the time of filing, the two cases pursued closely parallel courses. On November 5, 1973, a temporary restraining order against the State's enforcement of the taxing statutes was issued in each. App. 13, 147. Thereafter, because the complaints sought injunctive relief against the enforcement of state statutes, a three-judge District Court was convened pursuant to the then applicable requirement of 28 U.S.C. § 2281 (1970 ed.).4 On September 6, 1974, the three-judge court issued preliminary injunctions restraining the State from enforcing the challenged taxes against the Tribes. App. 15, 156. There followed extensive discovery,5 after which the parties to each case reached agreement on pretrial orders setting forth facts and clarifying the issues.
4
Trial was held in both cases on March 28, 1977, and the three-judge court entered its consolidated decision on February 22, 1978. The court concluded (1) that it had jurisdiction as a three-judge court to consider the issues presented; (2) that the state cigarette tax could not be applied to on-reservation transactions because it was pre-empted by the tribal taxing ordinances and constituted an impermissible interference with tribal self-government; (3) that the state retail sales tax could not be applied to tribal cigarette sales, but could be applied to sales of other goods to non-Indians; (4) that the State could not impose certain recordkeeping requirements in connection with various tax-exempt sales; (5) that the State could not impose its vehicle excise taxes upon vehicles owned by the Tribes and their members; and (6) that the State's assumption of civil and criminal jurisdiction over the Makah and Lummi Tribes was unconstitutional. The court enjoined enforcement of the statutes it had struck down, and the State moved unsuccessfully for a new trial. This appeal followed. We postponed consideration of certain jurisdictional questions to the merits. 440 U.S. 905, 100 S.Ct. 35, 62 L.Ed.2d 25 (1979).
5
We begin by sketching the relevant factual background, which is not seriously in dispute.6 Thereafter, we explore the jurisdictional questions previously postponed and then turn to the merits.
II
6
The State of Washington levies a cigarette excise tax of $1.60 per carton,7 on the "sale, use, consumption, handling, possession or distribution" of cigarettes within the State. Wash.Rev.Code § 82.24.020 (1976). The tax is enforced with tax stamps; and dealers are required to sell only cigarettes to which such stamps have been affixed. § 82.24.030. Indian tribes are permitted to possess unstamped cigarettes for purposes of resale to members of the tribe, but are required by regulation to collect the tax with respect to sales to non-members. § 82.24.260; Wash.Admin.Code § 458-20-192 (1977).8 The District Court found, on the basis of its examination of state authorities, that the legal incidence of the tax is on the purchaser in transactions between an Indian seller and a non-Indian buyer.9
7
The State has sought to enforce its cigarette tax by seizing as contraband unstamped cigarettes bound for various tribal reservations. It claims that it is entitled to make such seizures whenever the cigarettes are destined to be sold to non-Indians without affixation of stamps or collection of the tax.
8
Washington also imposes a sales tax on sales of personal property, including cigarettes. Wash.Rev.Code § 82.08.020 (1976). This tax, which was 5% during the relevant period, is collected from the purchaser by the retailer. § 82.08.050. It does not apply to on-reservation sales to reservation Indians. Wash.Admin.Code § 458-20-192 (1977).
9
The state motor vehicle excise tax is imposed on "the privilege of using in the state any motor vehicle." Wash.Rev.Code § 82.44.020 (Supp.1977). The tax is assessed annually, and during the relevant period the amount was 2% of the fair market value of the vehicle in question. In addition, the State imposes an annual tax in the amount of 1% of fair market value on the privilege of using campers and trailers in the State. § 82.50.400 (1976).10
10
Each of the Tribes involved in this litigation is recognized by the United States as a sovereign Indian tribe. Each is governed by a business or tribal council approved by the Secretary of the Interior.11 The Colville Tribe has some 5,800 members, of whom about 3,200 live on the Colville Indian Reservation.12 Enrolled members of the Tribe constitute just under half of the reservation's population. The Lummi Tribe has approximately 2,000 members. Roughly 1,250 of them live on the reservation.13 The Makah Tribe has about 1,000 members. Some 900 live on the reservation.14 The Colville, Lummi, and Makah Reservations are isolated and underdeveloped. Many members reside in mobile homes. Most own at least one automobile which is used both on and off the reservation.
11
The Yakima Tribe has more than 6,000 members, of whom about 5,000 live on the reservation.15 Enrolled members, however, constitute less than one-fifth of the reservation's population. The balance is made up of approximately 1,500 Indians who are not members of the Tribes and more than 20,000 non-Indians.
12
The Colville, Lummi, and Makah tribes have nearly identical cigarette sales and taxing schemes. Each Tribe has enacted ordinances pursuant to which it has authorized one or more on-reservation tobacco outlets.16 These ordinances have been approved by the Secretary of the Interior; and the dealer at each tobacco outlet is a federally licensed Indian trader. All three Tribes use federally restricted tribal funds17 to purchase cigarettes from out-of-state dealers.18 The Tribes distribute the cigarettes to the tobacco outlets and collect from the operators of those outlets both the wholesale distribution price and a tax of 40 to 50 cents per carton. The cigarettes remain the property of the Tribe until sale. The taxing ordinances specify that the tax is to be passed on to the ultimate consumer of the cigarettes. From 1972 through 1976, the Colville Tribe realized approximately $266,000 from its cigarette tax; the Lummi Tribe realized $54,000 and the Makah Tribe realized $13,000.
13
While the Colville, Lummi, and Mekah Tribes function as retailers, retaining possession of the cigarettes until their sale to consumers, the Yakima Tribe acts as a wholesaler. It purchases cigarettes from out-of-state dealers and then sells them to its licensed retailers. The Tribe receives a markup over the wholesale price from those retailers as well as a tax of 22.5 cents per carton. There is no requirement that this tax be added to the selling price. In 1975, the Yakima Tribe derived $278,000 from its cigarette business.
14
Indian tobacco dealers make a large majority of their sales to non-Indians—residents of nearby communities who journey to the reservation especially to take advantage of the claimed tribal exemption from the state cigarette and sales taxes. The purchaser saves more than a dollar on each carton, and that makes the trip worthwhile. All parties agree that if the State were able to tax sales by Indian smokeshops and eliminate that $1 saving, the stream of non-Indian bargain hunters would dry up. In short, the Indian retailer's business is to a substantial degree dependent upon his tax-exempt status, and if he loses that status his sales will fall off sharply.
III
15
We first address our jurisdiction to hear the State's appeal. Two attacks are made upon that jurisdiction, one grounded in the intricacies of the now repealed statute governing three-judge district courts and the other having to do with the timing of the State's appeal.
16
Under 28 U.S.C. § 1253, a direct appeal lies to this Court from an order granting or denying an injunction in a suit "required by any Act of Congress to be heard and determined by a district court of three judges." At the time the Yakima and Colville cases were filed, 28 U.S.C. § 2281 (1970 ed.) provided that:
17
"An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute . . . shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges . . . ."19
18
After the State filed its jurisdictional statement in this appeal, the United States moved to dismiss the Yakima case on the ground that it was not one required by § 2281 to be heard by a court of three judges and thus did not fall within the grant of appellate jurisdiction in § 1253. Although directed only to the Yakima case because that is the only one to which the Government is a party, this challenge is quite clearly germane to the Colville case as well.
19
Section 2281 does not require a three-judge court where a constitutional challenge to a state statute is grounded only in the Supremacy Clause. Swift & Co. v. Wickham, 382 U.S. 111, 128-129, 86 S.Ct. 258, 267-268, 15 L.Ed.2d 194 (1965). In addition, § 2281 is not brought into play by constitutional claims that are "insubstantial," Goosby v. Osser, 409 U.S. 512, 518, 93 S.Ct. 854, 858, 35 L.Ed.2d 36 (1973). The United States argues that the substantive tax claims raised by these cases fall into one or the other category, and thus failed to trigger § 2281.20 Further, the Government continues, the attacks on the State's seizure of cigarettes, while perhaps raising genuine Commerce Clause issues, are not properly characterized as challenges to the constitutionality of a state statute. Rather, the Government asserts, they go to the constitutionality of the result obtained by the use of the statute. We find neither contention persuasive.
20
The original complaints in these actions contended that the state taxes were unconstitutional under the Indian Commerce Clause as well as the Supremacy Clause. Relying primarily upon language in footnote 17 in Moe v. Salish & Kootenai Tribes, 425 U.S., at 481, 96 S.Ct., at 1645, the United States asserts that the Tribes' Commerce Clause claims were insubstantial.21 but Moe was decided in 1976—long after a three-judge court was convened to hear these cases—and it is thus apparent that footnote 17 alone cannot be dispositive, whatever its precise thrust. There is language in that footnote, however, which suggests that the insubstantiality of Commerce Clause claims such as those before us flows from Mescalero Apache Tribe v. Jones, 411 U.S. 145, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973), and McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973)—both of which were decided before the present suits were filed.22 We think the United States reads too much into this language. Goosby v. Osser, supra, made it clear that constitutional claims will not lightly be found insubstantial for purposes of § 2281. Indeed, Goosby explicitly states that prior decisions are not sufficient to support a conclusion that certain claims are insubstantial unless those prior decisions "inescapably render the claims frivolous." 409 U.S., at 518, 93 S.Ct., at 858. We cannot cannot say here that the Goosby test has been met. Neither Mescalero nor McClanahan "inescapably render[s] the [Tribes' Commerce Clause] claims frivolous" because neither holds that that Clause is wholly without force in situations like the present. And even footnote 17 merely rejects the stark and rather unhelpful notion that the Commerce Clause provides an "automatic exemptio[n] 'as a matter of constitutional law' " in such cases. (Emphasis added.) It does not take that Clause entirely out of play in the field of state regulation of Indian affairs.
21
In addition, it seems quite clear that the Tribes' attack on the official seizure of cigarettes bound for the reservations also triggers the three-judge requirement of § 2281. The United States concedes that that attack raised Commerce Clause issues, but maintains that the Tribes' target was not really the state enforcement statutes themselves, but rather the discretionary official conduct undertaken pursuant to those statutes. We have no quarrel with the proposition that the mere fact that executives seek shelter under various state statutes will not necessarily convert a suit to restrain their lawless behavior into a § 2281 case, Phillips v. United States, 312 U.S. 246, 248-253, 61 S.Ct. 480, 481-484, 85 L.Ed. 800 (1941). But this is not a situation in which the only connection with state statutes arises when officials accused of taking various ultra vires actions seek to trace their conduct back to vague statutes granting them broad executive discretion. Here the state officials involved were attempting to enforce the state tax laws by using the tools authorized for such enforcement by the state legislature. They manifested an intention to continue to use those tools for that purpose. And it is those tools, as applied to cigarettes in Indian commerce, which the Tribes challenged.23 We hold that this suffices to bring these cases within § 2281.
22
The other jurisdictional question postponed in 1979 is relevant only to the Colville case. It concerns the timeliness under 28 U.S.C. § 2101(b) of the State's appeal from the District Court's resolution of the motor-vehicle-tax and assumption-of-jurisdiction issues. Basically, the problem is this: the notice of appeal on these two issues was filed more than 60 days after the District Court's decision, but within 60 days of the denial of a state motion for partial new trial—a motion that was not addressed to the motor-vehicle-tax and assumption-of-jurisdiction issues. The question is whether a motion for partial new trial renders nonfinal the District Court's holding on all issues between the parties, or merely renders nonfinal the disposition of those issues actually raised in the new trial motion. If the former, the State's notice of appeal on the vehicle-taxes and assumption-of-jurisdiction issues was timely. If the latter, that notice was filed out of time and to that extent the appeal is jurisdictionally time-barred.24
23
We think that the filing of a motion for partial new trial in these circumstances must have rendered nonfinal the disposition of all issues between the parties. A contrary conclusion would serve no useful purpose. At best it would make little difference save to force future appellants to include in what might otherwise have been narrow motions for partial new trials a blanket request for reconsideration of all issues. And at worst it would be a procedural pitfall, devoid of any sound supporting rationale but capable of occasionally tripping those who failed to insert a line of boilerplate or file a redundant slip of paper. Accordingly, we hold that the appeal of the District Court's vehicle-tax and assumption-of-jurisdiction holdings is properly before us, and we turn to the merits.
IV
A.
24
In Moe v. Salish & Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976), we considered a state taxing scheme remarkably similar to the cigarette and sales25 taxes at issue in the present cases. Montana there sought to impose a cigarette tax on sales by smokeshops operated by tribal members and located on leased trust lands within the reservation, and sought to require the smokeshop operators to collect the tax. We upheld the tax, insofar as sales to non-Indians were concerned,26 because its legal incidence fell on the non-Indian purchaser. Hence, "the competitive advantage which the Indian seller doing business on tribal land enjoys over all other cigarette retailers, within and without the reservation, is dependent on the extent to which the non-Indian purchaser is willing to flout his legal obligation to pay the tax." Id., at 482, 96 S.Ct., at 1645 (emphasis in original). We upheld the collection requirement, as applied to purchases by non-Indians, on the ground that it was a "minimal burden" designed to aid the State in collecting an otherwise valid tax. Id., at 48, 96 S.Ct., at 1645.
25
Moe establishes several principles relevant to the present cases. The State may sometimes impose a nondiscriminatory tax on non-Indian customers of Indian retailers doing business on the reservation. Such a tax may be valid even if it seriously disadvantages or eliminates the Indian retailer's business with non-Indians.27 And the State may impose at least "minimal" burdens on the Indian retailer to aid in enforcing and collecting the tax. There is no automatic bar, therefore, to Washington's extending its tax and collection and recordkeeping requirements onto the reservation in the present cases.
26
Although it narrows the issues in the present cases, Moe does not definitively resolve several important questions. First, unlike in Moe, each of the Tribes imposes its own tax on cigarette sales, and obtains further revenues by participating in the cigarette enterprise at the wholesale or retail level. Second, Washington requires the Indian retailer to keep detailed records of exempt and nonexempt sales in addition to simply precollecting the tax. Moe expressed no opinion regarding the "complicated problems" of enforcement that distinctions between exempt and nonexempt purchasers might entail. Id., at 468, n. 6, 96 S.Ct., at 1638. Third, Moe left unresolved the question of whether a State can tax purchases by on-reservation Indians not members of the governing tribe, as Washington seeks to do in the present cases. Id., at 480-481, n. 16, 96 S.Ct., at 1644-1645. Finally, unlike in Moe, Washington has seized, and threatens to continue seizing, shipments of unstamped cigarettes en route to the reservations from wholesalers outside the State. We address each of these questions.
B
27
(1)
28
At the outset, the State argues that the Colville, Makah, and Lummi Tribes have no power to impose their cigarette taxes on nontribal purchasers.28 We disagree. The power to tax transactions occurring on trust lands and significantly involving a tribe or its members is a fundamental attribute of sovereignty which the tribes retain unless divested of it by federal law or necessary implication of their dependent status. Cf. United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978).
29
The widely held understanding within the Federal Government has always been that federal law to date has not worked a divestiture of Indian taxing power. Executive branch officials have consistently recognized that Indian tribes possess a broad measure of civil jurisdiction over the activities of non-Indians on Indian reservation lands in which the tribes have a significant interest, 17 Op.Atty.Gen. 134 (1881); 7 Op. Atty.Gen. 174 (1855), including jurisdiction to tax, 23 Op.Atty.Gen. 214 (1900); Powers of Indian Tribes, 55 I.D. 14, 46 (1934). According to the Solicitor of the Department of the Interior:
30
"Chief among the powers of sovereignty recognized as pertaining to an Indian tribe is the power of taxation. Except where Congress has provided otherwise, this power may be exercised over members of the tribe and over nonmembers, so far as such nonmembers may accept privileges of trade, residence, etc., to which taxes may be attached as conditions." Ibid. (emphasis added).
31
Federal courts also have acknowledged tribal power to tax non-Indians entering the reservation to engage in economic activity. Buster v. Wright, 135 F. 947, 950 (CA8 1905), appeal dism'd, 203 U.S. 599, 27 S.Ct. 777, 51 L.Ed. 334 (1906); Iron Crow v. Oglala Sioux Tribe, 231 F.2d 89 (CA8 1956); cf. Morris v. Hitchcock, 194 U.S. 384, 393, 24 S.Ct. 712, 715, 48 L.Ed. 1030 (1904). No federal statute cited to us shows any congressional departure from this view. To the contrary, authority to tax the activities or property of non-Indians taking place or situated on Indian lands, in cases where the tribe has a significant interest in the subject matter, was very probably one of the tribal powers under "existing law" confirmed by § 16 of the Indian Reorganization Act of 1934, 48 Stat. 987, 25 U.S.C. § 476. In these respects the present cases differ sharply from Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978), in which we stressed the shared assumptions of the Executive, Judicial, and Legislative Departments that Indian tribes could not exercise criminal jurisdiction over non-Indians.
32
Tribal powers are not implicitly divested by virtue of the tribes' dependent status. This Court has found such a divestiture in cases where the exercise of tribal sovereignty would be inconsistent with the overriding interests of the National Government, as when the tribes seek to engage in foreign relations, alienate their lands to non-Indians without federal consent, or prosecute non-Indians in tribal courts which do not accord the full protections of the Bill of Rights. See id., at 208-210, 98 S.Ct., at 1020-1021; United States v. Wheeler, supra, 435 U.S., at 326, 98 S.Ct., at 1087. In the present cases, we can see no overriding federal interest that would necessarily be frustrated by tribal taxation. And even if the State's interests were implicated by the tribal taxes, a question we need not decide, it must be remembered that tribal sovereignty is dependent on, and subordinate to, only the Federal Government, not the States.
33
(2)
34
The Tribes contend that their involvement in the operation and taxation of cigarette marketing on the reservation ousts the State from any power to exact its sales and cigarette taxes from nonmembers purchasing cigarettes at tribal smokeshops. The primary argument is economic. It is asserted that smokeshop cigarette sales generate substantial revenues for the Tribes which they expend for essential governmental services, including programs to combat severe poverty and underdevelopment at the reservations. Most cigarette purchasers are outsiders attracted onto the reservations by the bargain prices the smokeshops charge by virtue of their claimed exemption from state taxation. If the State is permitted to impose its taxes, the Tribes will no longer enjoy any competitive advantage vis-a-vis businesses in surrounding areas. Indeed, because the Tribes themselves impose a tax on the transaction, if the state tax is also collected the price charged will necessarily be higher and the Tribes will be placed at a competitive disadvantage as compared to businesses elsewhere. Tribal smokeshops will lose a large percentage of their cigarette sales and the Tribes will forfeit substantial revenues. Because of this economic impact, it is argued, the state taxes are (1) pre-empted by federal statutes regulating Indian affairs; (2) inconsistent with the principle of tribal self-government; and (3) invalid under "negative implications" of the Indian Commerce Clause.
35
It is painfully apparent that the value marketed by the smokeshops to persons coming from outside is not generated on the reservations by activities in which the Tribes have a significant interest. Cf. Moe v. Salish & Kootenai Tribes, 425 U.S., at 475-481, 96 S.Ct., at 1642-1645; McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973). What the smokeshops offer these customers, and what is not available elsewhere, is solely an exemption from state taxation. The Tribes assert the power to create such exemptions by imposing their own taxes or otherwise earning revenues by participating in the reservation enterprises. If this assertion were accepted, the Tribes could impose a nominal tax and open chains of discount stores at reservation borders, selling goods of all descriptions at deep discounts and drawing custom from surrounding areas. We do not believe that principles of federal Indian law, whether stated in terms of pre-emption, tribal self-government, or otherwise, authorize Indian tribes thus to market an exemption from state taxation to persons who would normally do their business elsewhere.
36
The federal statutes cited to us, even when given the broadest reading to which they are fairly susceptible, cannot be said to pre-empt Washington's sales and cigarette taxes. The Indian Reorganization Act of 1934, 48 Stat. 984, 25 U.S.C. § 461 et seq., the Indian Financing Act of 1974, 88 Stat. 77, 25 U.S.C. § 1451 et seq., and the Indian Self-Determination and Education Assistance Act of 1975, 88 Stat. 2203, 25 U.S.C. § 450 et seq., evidence to varying degrees a congressional concern with fostering tribal self-government and economic development, but none goes so far as to grant tribal enterprises selling goods to nonmembers an artificial competitive advantage over all other businesses in a State. The Indian traders statutes, 25 U.S.C. § 261 et seq., incorporate a congressional desire comprehensively to regulate businesses selling goods to reservation Indians for cash or exchange, see Warren Trading Post Co. v. Arizona Tax Comm'n, 380 U.S. 685, 85 S.Ct. 1242, 14 L.Ed.2d 165 (1965), but no similar intent is evident with respect to sales by Indians to nonmembers of the Tribe. The Washington Enabling Act, 25 Stat. 676, reflects an intent that the State not tax reservation lands or income derived therefrom, but the present taxes are assessed against nonmembers of the Tribes and concern transactions in personalty with no substantial connection to reservation lands. The relevant treaties, Treaty of Point Elliott, 12 Stat. 927 (1855) (Lummi Tribe); Treaty with the Makah Tribe, 12 Stat. 939 (1855); Treaty with the Yakimas, 12 Stat. 951 (1855), can be read to recognize inherent tribal power to exclude non-Indians or impose conditions on those permitted to enter; but purchasers entering the reservation are not the State's agents and any agreements which they might make cannot bind it. Finally, although the Tribes themselves could perhaps pre-empt state taxation through the exercise of properly delegated federal power to do so, cf. Fisher v. District Court, 424 U.S. 382, 390, 96 S.Ct. 943, 948, 47 L.Ed.2d 106 (1976) (per curiam); United States v. Mazurie, 419 U.S. 544, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975), we do not infer from the mere fact of federal approval of the Indian taxing ordinances, or from the fact that the Tribes exercise congressionally sanctioned powers of self-government, that Congress has delegated the far-reaching authority to pre-empt valid state sales and cigarette taxes otherwise collectible from nonmembers of the Tribe.
37
Washington does not infringe the right of reservation Indians to "make their own laws and be ruled by them," Williams v. Lee, 358 U.S. 217, 220, 79 S.Ct. 269, 271, 3 L.Ed.2d 251 (1959), merely because the result of imposing its taxes will be to deprive the Tribes of revenues which they currently are receiving. The principle of tribal self-government, grounded in notions of inherent sovereignty and in congressional policies, seeks an accommodation between the interests of the Tribes and the Federal Government, on the one hand, and those of the State, on the other. McClanahan v. Arizona State Tax Comm'n, supra, at 179, 93 S.Ct., at 1266. While the Tribes do have an interest in raising revenues for essential governmental programs, that interest is strongest when the revenues are derived from value generated on the reservation by activities involving the Tribes and when the taxpayer is the recipient of tribal services. The State also has a legitimate governmental interest in raising revenues, and that interest is likewise strongest when the tax is directed at off-reservation value and when the taxpayer is the recipient of state services. As we have already noted, Washington's taxes are reasonably designed to prevent the Tribes from marketing their tax exemption to nonmembers who do not receive significant tribal services and who would otherwise purchase their cigarettes outside the reservations.
38
It can no longer be seriously argued that the Indian Commerce Clause, of its own force, automatically bars all state taxation of matters significantly touching the political and economic interests of the Tribes. See Moe v. Salish & Kootenai Tribes, supra, 425 U.S., at 481, n. 17, 96 S.Ct., at 1645. That Clause may have a more limited role to play in preventing undue discrimination against, or burdens on, Indian commerce. But Washington's taxes are applied in a nondiscriminatory manner to all transactions within the State. And although the result of these taxes will be to lessen or eliminate tribal commerce with nonmembers, that market existed in the first place only because of a claimed exemption from these very taxes. The taxes under consideration do not burden commerce that would exist on the reservations without respect to the tax exemption.
39
We cannot fault the State for not giving credit on the amount of tribal taxes paid. It is argued that if a credit is not given, the tribal retailers will actually be placed at a competitive disadvantage, as compared to retailers elsewhere, due to the overlapping impact of tribal and state taxation. While this argument is not without force, we find that the Tribes have failed to demonstrate that business at the smokeshops would be significantly reduced by a state tax without a credit as compared to a state tax with a credit. With a credit, prices at the smokeshops would presumably be roughly the same as those off the reservation, assuming that the Indian enterprises are operated at an efficiency similar to that of businesses elsewhere; without a credit, prices at smokeshops would exceed those off the reservation by the amount of the tribal taxes, about 40 to 50 cents per carton for the Lummi, Makah, and Colville Tribes, and 22.5 cents per carton for the Yakima Tribe. It is evident that even if credit were given, the bulk of the smokeshops' present business would still be eliminated, since nonresidents of the reservation could purchase cigarettes at the same price and with greater convenience nearer their homes and would have no incentive to travel to the smokeshops for bargain purchases as they do now. Members of the Tribes, of course, would be indifferent to whether a credit were given because under Moe they are immune from any state tax, whether credited or not. Some nonmembers of the Tribes living on the reservations would possibly travel elsewhere to purchase cigarettes if a state credit were not given, and smokeshop business would to this extent be decreased as compared to the situation under a credited tax. But the Tribes have not shown whether or to what extent this would be the case, and we cannot infer on the present record that by failing to give a credit Washington impermissibly taxes reservation value by deterring sales that, if credit were given, would occur on the reservation because of its location and because of the efforts of the Tribes in importing and marketing the cigarettes.
40
A second asserted ground for the invalidity of the state taxes is that they somehow conflict with the Tribes' cigarette ordinances and thereby are subject to pre-emption or contravene the principle of tribal self-government. This argument need not detain us. There is no direct conflict between the state and tribal schemes, since each government is free to impose its taxes without ousting the other. Although taxes can be used for distributive or regulatory purposes, as well as for raising revenue, we see no nonrevenue purposes to the tribal taxes at issue in these cases, and, as already noted, we perceive no intent on the part of Congress to authorize the Tribes to pre-empt otherwise valid state taxes. Other provisions of the tribal ordinances do comprehensively regulate the marketing of cigarettes by the tribal enterprises; but the State does not interfere with the Tribes' power to regulate tribal enterprises when it simply imposes its tax on sales to nonmembers. Hence, we perceive no conflict between state and tribal law warranting invalidation of the State's taxes.
C
41
We recognized in Moe that if a State's tax is valid, the State may impose at least minimal burdens on Indian businesses to aid in collecting and enforcing that tax. The simple collection burden imposed by Washington's cigarette tax on tribal smokeshops is legally indistinguishable from the collection burden upheld in Moe, and we therefore hold that the State may validly require the tribal smokeshops to affix tax stamps purchased from the State to individual packages of cigarettes prior to the time of sale to nonmembers of the Tribe.
42
The state sales tax scheme requires smokeshop operators to keep detailed records of both taxable and nontaxable transactions. The operator must record the number and dollar volume of taxable sales to nonmembers of the Tribe. With respect to nontaxable sales, the operator must record and retain for state inspection the names of all Indian purchasers, their tribal affiliations, the Indian reservations within which sales are made, and the dollar amount and dates of sales. In addition, unless the Indian purchaser is personally known to the operator he must present a tribal identification card.
43
The District Court struck down all recordkeeping requirements with respect to cigarette sales, because it found that no cigarette sales were taxable. With respect to sales of items other than cigarettes, the District Court found no record evidence "as to whether the record keeping requirements, as promulgated, are or are not reasonably necessary to ensure payment of lawful taxes." 446 F.Supp., at 1373. The District Court upheld the requirements insofar as they pertained to taxable sales, but struck them down with respect to nontaxable sales on the ground that the State had not met its burden of showing that the regulation was reasonably necessary to ensure payment of taxes which it had power to impose.
44
Contrary to the District Court, we find the State's recordkeeping requirements valid in toto. The Tribes, and not the State as the District Court supposed, bear the burden of showing that the recordkeeping requirements which they are challenging are invalid. The District Court made the factual finding, which we accept, that there was no evidence of record on this question. Applying the correct burden of proof to the District Court's finding, we hold that the Tribes have failed to demonstrate that the State's recordkeeping requirements for exempt sales are not reasonably necessary as a means of preventing fraudulent transactions.
D
45
The State asserts the power to apply its sales and cigarette taxes to Indians resident on the reservation but not enrolled in the governing Tribe. The issue arose in the Yakima case in the wake of the District Court's determination that the state retail sales tax could be applied to the purchase by non-Indians of goods other than cigarettes. It was, of course, quite clear after Moe and McClanahan that the sales tax could not be applied to similar purchases by tribal members, but the State argued that this exemption should not extend to nonmembers of the Tribe. Relying in part on the lower court opinion in Moe, Confederated Salish & Kootenai Tribes v. Moe, 392 F.Supp. 1297, 1312 (Mont.1975) (three-judge court), the District Court rejected the contention. 446 F.Supp., at 1371-1372. This Court did not reach the question in Moe because Montana failed to raise it on appeal. We do reach it now, and we reverse.
46
Federal statutes, even given the broadest reading to which they are reasonably susceptible, cannot be said to pre-empt Washington's power to impose its taxes on Indians not members of the Tribe. We do not so read the Major Crimes Act, 18 U.S.C. § 1153, which at most provides for federal-court jurisdiction over crimes committed by Indians on another Tribe's reservation. Cf. United States v. Antelope, 430 U.S. 641, 646-647, n. 7, 97 S.Ct. 1395, 1398-1399, 51 L.Ed.2d 701 (1977). Similarly, the mere fact that nonmembers resident on the reservation come within the definition of "Indian" for purposes of the Indian Reorganization Act of 1934, 48 Stat. 988, 25 U.S.C. § 479, does not demonstrate a congressional intent to exempt such Indians from state taxation.
47
Nor would the imposition of Washington's tax on these purchasers contravene the principle of tribal self-government, for the simple reason that nonmembers are not constituents of the governing Tribe. For most practical purposes those Indians stand on the same footing as non-Indians resident on the reservation. There is no evidence that nonmembers have a say in tribal affairs or significantly share in tribal disbursements. We find, therefore, that the State's interest in taxing these purchasers outweighs any tribal interest that may exist in preventing the State from imposing its taxes.
E
48
Finally, the State contends that it has the power to seize unstamped cigarettes as contraband if the Tribes do not cooperate in collecting the State's taxes. The State in fact seized shipments traveling to the reservations from out-of-state wholesalers before being enjoined from doing so by the District Court, and it has declared its intention to continue such seizures if successful in this litigation. The Tribes contest this power, noting that because sales by wholesalers to the tribal businesses are concededly exempt from state taxation, no state tax is due while the cigarettes are in transit.
49
We find that Washington's interest in enforcing its valid taxes is sufficient to justify these seizures. Although the cigarettes in transit are as yet exempt from state taxation, they are not immune from seizure when the Tribes, as here, have refused to fulfill collection and remittance obligations which the State has validly imposed. It is significant that these seizures take place outside the reservation, in locations where state power over Indian affairs is considerably more expansive than it is within reservation boundaries. Cf. Mescalero Apache Tribe v. Jones, 411 U.S. 145, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973). By seizing cigarettes en route to the reservation, the State polices against wholesale evasion of its own valid taxes without unnecessarily intruding on core tribal interests.
50
Washington further contends that it may enter onto the reservations, seize stocks of cigarettes which are intended for sale to nonmembers, and sell these stocks in order to obtain payment of the taxes due. However, this question, which obviously is considerably different from the preceding one, is not properly before us. The record does not disclose that the State has ever entered the reservations to seize cigarettes because of the Tribes' failure to collect the taxes due on sales to nonmembers, or ever threatened to do so except in papers filed in this litigation. Indeed, the State itself concedes that "it may very well be that this Court will find it unnecessary to rule on this aspect of the appeal." Brief for Appellants in No. 78-630, p. 110. We therefore express no opinion on the matter.
V
51
The next issue concerns the challenge in the Colville case to the Washington motor vehicle and mobile home, camper and travel trailer taxes. Although not identical, these taxes are quite similar. Each is denominated an excise tax for the "privilege" of using the covered vehicle in the State, each is assessed annually at a certain percentage of fair market value, and each is sought to be imposed upon vehicles owned by the Tribe or its members and used both on and off the reservation.29
52
Once again, our departure point is Moe. There we held that Montana's personal property tax could not validly be applied to motor vehicles owned by tribal members who resided on the reservation. 425 U.S., at 480-481, 96 S.Ct., at 1644-1645. The vehicles Montana attempted to tax were apparently used both on and off the reservation,30 and the tax was assessed annually at a percentage of market value of the vehicles in question. Thus, the only difference between the taxes now before us and the one struck down in Moe is that these are called excise taxes and imposed for the privilege of using the vehicle in the State, while the Montana tax was labeled a personal property tax. The State asserts that this difference mandates a different result. In Moe, it argues, the District Court concluded that the taxable event was "the ownership of a motor vehicle as of January 1 of each year,"31 and that event took place on the reservation. Accordingly, under McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973), Montana was without authority to impose its tax. In the present case, the State continues, the taxable event is the use within the State of the vehicle in question. Thus, we are told, the McClanahan principle is inapplicable and the tax should be upheld under Mescalero Apache Tribe v. Jones, supra.
53
We do not think Moe and McClanahan can be this easily circumvented. While Washington may well be free to levy a tax on the use outside the reservation of Indian-owned vehicles, it may not under that rubric accomplish what Moe held was prohibited. Had Washington tailored its tax to the amount of actual off-reservation use, or otherwise varied something more than mere nomenclature, this might be a different case. But it has not done so, and we decline to treat the case as if it had.
VI
54
Finally, we come to the challenge by the Colville, Lummi, and Makah Tribes to the State's assumption of civil and criminal jurisdiction over them. The District Court found that assumption unlawful as regards the Makah and Lummi Reservations and lawful as regards the Colville Reservation. 446 F.Supp., at 1366-1367. The State challenges the former findings.
55
All parties apparently recognize that this issue is controlled by the intervening decision in the State's favor in Washington v. Yakima Indian Nation, 439 U.S. 463, 99 S.Ct. 740, 58 L.Ed.2d 740 (1979). There a pattern of jurisdiction identical to those created on the Makah and Lummi Reservations was upheld, and the holding of the Court of Appeals for the Ninth Circuit on which the District Court in the present case relied for its conclusion that such patterns are unconstitutional was reversed. We therefore uphold the State's assumption of jurisdiction over the Makah and Lummi Reservations.32 Accordingly, the judgment of the District Court is
56
Reversed in part and affirmed in part.
57
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, concurring in part and dissenting in part.
58
I agree with the Court's analysis of the jurisdictional questions posed in these cases, as well as with its treatment of the Washington motor vehicle, mobile home, camper and travel trailer taxes and its disposition of the assumption-of-jurisdiction issue. Accordingly, I join in their entirety Parts I, II, III, V, and VI of the Court's opinion. I also agree with Part IV insofar as it holds that the Colville, Makah, and Lummi Tribes have the power to impose their cigarette taxes on nontribal purchasers (Part IV-B(1)). As the Court points out, the power to tax on-reservation transactions that involve a tribe or its members is a "fundamental attribute of sovereignty which the tribes retain unless divested of it by federal law or necessary implication . . .." Ante, at 152. Recognition of that fundamental attribute, however, leads me to disagree with much of the balance of the Court's Part IV. In my view, the State of Washington's cigarette taxing scheme should be invalidated both because it undermines the Tribes' sovereign authority to regulate and tax the distribution of cigarettes on trust lands and because it conflicts with tribal activities and functions that have been expressly approved by the Federal Government.
59
* I begin with a somewhat general overview. While they are sovereign for some purposes, it is now clear that Indian reservations do not partake of the full territorial sovereignty of States or foreign countries.1 The result has been to blur the boundary between state and tribal authority. A few guideposts do exist, however. First, in the absence of tribal consent state law does not reach on-reservation conduct involving only Indians. Thus we have held that tribal courts have exclusive jurisdiction over adoption proceedings involving the on-reservation conduct of tribal members, Fisher v. District Court, 424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 106 (1976); that States cannot apply their income taxes to the receipts derived by reservation Indians from reservation sources, McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973); and that States may not levy cigarette taxes on on-reservation sales to reservation Indians or impose personal property taxes on property owned by such Indians, Moe v. Salish & Kootenai Tribes, 425 U.S. 463, 480-481, 96 S.Ct. 1634, 1644-1645, 48 L.Ed.2d 96 (1976).
60
Second, there is a significant territorial component to tribal power. Thus state taxes on the off-reservation activities of Indians are permissible, Mescalero Apache Tribe v. Jones, 411 U.S. 145, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973), and tribal laws will often govern the on-reservation conduct of non-Indians. Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959). See also United States v. Mazurie, 419 U.S. 544, 557-558, 95 S.Ct. 710, 717-718, 42 L.Ed.2d 706 (1975).2
61
Third, where it is necessary to resolve a conflict between state and tribal authority over on-reservation conduct involving Indians and non-Indians, a relatively particularistic look at the interests of State and tribe and the federal policies that govern relations with Indian tribes is appropriate. We have concluded, for example, that a tribe lacks jurisdiction to try a non-Indian for a crime, Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 208, 98 S.Ct. 1011, 1020, 55 L.Ed.2d 209 (1978), but that a State may not resolve a dispute arising out of on-reservation transactions between an Indian purchaser and a non-Indian seller, Williams v. Lee, supra, at 219, 79 S.Ct., at 270, or tax the gross receipts of a federally licensed retail trading post that deals on the reservation with reservation Indians, Warren Trading Post Co. v. Arizona State Tax Comm'n, 380 U.S. 685, 85 S.Ct. 1242, 14 L.Ed.2d 165 (1965).
62
And fourth, the preceding results flow from an intricate web of sources including federal treaties and statutes, the broad policies that underlie those federal enactments, and a presumption of sovereignty or autonomy that has roots deep in aboriginal independence. The prevalent mode of analysis is one of pre-emption. It takes as its starting point the exclusive power of the Federal Government to regulate Indian tribes and proceeds to bound state power where necessary to give vitality to the federal concerns at stake. Bryan v. Itasca County, 426 U.S. 373, 376, n.2, 96 S.Ct. 2102, 2105, 48 L.Ed.2d 710 (1976). Only rarely does the talismanic invocation of constitutional language or rigid conceptions of state and tribal sovereignty shed light on difficult problems. Moe, supra, 425 U.S., at 481, n.17, 96 S.Ct., at 1645, n.17; McClanahan v. Arizona State Tax Comm'n, supra, 411 U.S., at 172, 93 S.Ct., at 1262.
63
For present purposes, two federal concerns seem especially important. One is the strong and oft-cited policy of encouraging tribal self-government. United States v. Wheeler, 435 U.S. 313, 322-326, 98 S.Ct. 1079, 1085-1087, 55 L.Ed.2d 303 (1978); Fisher v. District Court, supra, at 386-388; McClanahan v. Arizona State Tax Comm'n, supra, 411 U.S., at 179, 93 S.Ct., at 1266; Williams v. Lee, supra, 358 U.S., at 219-220, 79 S.Ct., at 270. And the other is a complementary interest in stimulating Indian economic and commercial development. Both found expression in the Indian Reorganization Act of 1934, 25 U.S.C. § 461 et seq.,3 and are manifest in more recent statutes as well.4 They are, I believe, of central importance in analyzing any conflict of state and tribal law.
II
64
With this as background, I turn to the particular problem at hand. Like the Court, I begin with Moe, supra, which considered a state cigarette tax similar to the one at issue here. There we started with the observation that the tax itself was "concededly lawful"—it neither fell upon tribal members nor impinged on tribal functions. 425 U.S., at 483, 96 S.Ct., at 1646. The key problem, as we saw it, was one of enforcement: Could the State of Montana require the Indian seller to collect a tax validly imposed on the non-Indian purchaser? We determined that the burden of collection was minimal and noted that it would in no sense "frustrat[e] tribal self-government."5 Accordingly, we held that it could be imposed to prevent wholesale tax avoidance by non-Indian purchasers.
65
As the Court points out, Moe does suggest a number of limits upon Indian sovereignty in general and the federal interests in tribal self-government and economic growth in particular: It permits state law to come on the reservation in the form of a tax and collection requirement, and it upholds the imposition of a tax that will undoubtedly hurt Indian retailing activities by depriving tribal smokeshops of a competitive edge.
66
But while in Moe the cigarette business was largely a private operation, the Tribes involved in these cases have adopted comprehensive ordinances regulating and taxing the distribution of cigarettes by on-reservation shops. Phrased differently, these Tribes are acting in federally sanctioned and encouraged ways—they are raising governmental revenues, establishing commercial enterprises, and struggling to escape from " 'a century of oppression and paternalism.' " Mescalero Apache Tribe v. Jones, 411 U.S., at 152, 93 S.Ct., at 1272, quoting H.R.Rep. No. 1804, 73d Cong., 2d Sess., 6 (1934). As I see it, that difference has three important consequences. First, it means that in this case the sharp drop in cigarette sales that would result from imposition of the state tax will reduce revenues not only of individual Indian retailers, but also of the Tribes themselves as governmental units. Second, it means that a decision permitting application of the state tax would place Indian goods at an actual competitive disadvantage as compared to non-Indian ones because the former would have to bear two tax burdens while the latter bore but one. And third, it leads to an actual conflict of jurisdiction and sovereignty because imposition of the Washington tax would inject state law into an on-reservation transaction which the Indians have chosen to subject to their own laws.
67
The Court in effect concludes that these consequences are insignificant. The first, it suggests, is undercut by Moe, which made clear that Indian retailers have no absolute right to market their tax-exempt status. The second is too speculative—"the Tribes have failed to demonstrate that business at the smokeshops would be significantly reduced by a state tax without a credit as compared to a state tax with a credit." Ante, at 157. And the third "need not detain us" because "[t]here is no direct conflict between the state and tribal schemes. . . ." Ante, at 158.
68
I do not agree. Whatever their individual force, I think that in combination these three consequences bring the Washington taxes into sharp conflict with important federal policies. Perhaps most striking is the fact that a rule permitting imposition of the state taxes would have the curious effect of making the federal concerns with tribal self-government and commercial development inconsistent with one another. In essence, tribes are put to an unsatisfactory choice. They are free to tax sales to non-Indians, but doing so will place a burden upon such sales which may well make it profitable for non-Indian buyers who are located on the reservation to journey to surrounding communities to purchase cigarettes.6 Or they can decide to remain competitive by not taxing such sales, and in the process forgo revenues urgently needed to fill governmental coffers. Commercial growth, in short, can be had only at the expense of tax dollars. And having to make that choice seriously intrudes on the Indians' right "to make their own laws and be ruled by them," Williams v. Lee, 358 U.S., at 219-220, 79 S.Ct., at 271.7
69
The Court provides no satisfactory explanation of why the State is free to put the Tribes to such a choice. Rather, it characterizes the tribal business as an effort to market a tax exemption and proceeds to label that effort illegitimate and beyond the reasonable bounds of any federally protected tribal right. Yet that line of argument could at most justify a state tax which through some sort of credit mechanism ensures that the location of cigarette purchases is independent of state and tribal taxing schemes—it does not support a rule that the State may tax all on-reservation sales to non-Indians regardless of tribal taxes.8 Nor is the Court's argument saved by the contention that the Tribes have failed to prove that the combination of these particular tribal and state taxes will cause Indian smokeshops to lose volume that would otherwise be theirs. The fact is that the Court today permits the State to enact a tax without risking any attendant loss of business for its retailers while the Tribes must court economic harms when they enact taxes of their own. That result erodes the Tribes' sovereign authority and stands the special federal solicitude for Indian commerce and governmental autonomy on its head.
70
The conflict with federal law is particularly evident on the present facts because the Secretary of the Interior—acting pursuant to lawful regulations—has approved the tribal taxing and regulatory schemes at issue here. That approval, and the federal policies which underlie it, both enhances tribal authority and ousts inconsistent state law. Cf. Fisher v. District Court, 424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 106 (1976); United States v. Mazurie, 419 U.S. 544, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975).
71
The Court draws support for its result from the suggestion that a decision invalidating these taxes would give the Tribes carte blanche to establish vast tax-exempt shopping centers dealing in every imaginable good. I think these fears are substantially overdrawn. Moe made clear that Indians do not have an absolute entitlement to achieve some particular sales volume by passing their tax-exempt status to non-Indian customers, and I do not question that conclusion today. I would simply hold that the State may not impose a tax that forces the Tribes to choose between federally sanctioned goals and places their goods at an actual competitive disadvantage. Nothing in such a holding would emasculate state taxing authority or bring the specter of enormous tribal tax havens closer to reality. On the contrary, I am confident that the State could devise a taxing scheme without the flaws which mar the present one.
72
In sum, I would hold these taxes impermissible and save for another day the question of what sorts of less intrusive measures a State may take to protect its tax base and avoid the parade of horribles alluded to by the Court.
III
73
Because I would hold the state cigarette taxes invalid, I would not reach the bulk of the recordkeeping and enforcement issues addressed by the Court in Parts IV-C and IV-E of its opinion. Indeed, since the District Court failed to discuss most of those issues, I am startled that the majority proceeds to address and decide them rather than remanding for the views of that court. In my judgment, only one relatively narrow recordkeeping issue ought be addressed at this time, and that concerns the District Court's holding that the State could not require the Tribes to keep records of exempt sales to facilitate collection of valid taxes on nonexempt sales. 446 F.Supp. 1339, 1358-1359, 1373. The District Court found the record in this case inadequate to show any need for such documentation. The Court, however, sees this as no obstacle to upholding the requirement. I disagree. The State has no direct power over exempt sales, and I see no reason why it should be permitted to require Indians to keep records of such sales absent some showing of necessity or utility. In consequence, I would either affirm the District Court in this regard or remand so that the record may be supplemented.
74
For the foregoing reason, I dissent as to Parts IV-B(2), IV-C, and IV-E.
75
Mr. Justice STEWART, concurring in part and dissenting in part.
76
I join all but Part IV-B(2) and Part V of the Court's opinion. My disagreement with Part V is for the reasons stated in Part III of Mr. Justice REHNQUIST'S separate opinion. My disagreement with Part IV-B(2) stems from the belief that the State of Washington cannot impose the full combined measure of its cigarette and sales taxes on purchases by nontribal members of cigarettes from tobacco outlets on the Colville, Lummi, and Makah Reservations.
77
In Moe v. Salish & Kootenai Tribes, 425 U.S. 463, 481-483, 96 S.Ct. 1634, 1645-1646, 48 L.Ed.2d 96 the Court held that a State has the power to tax sales of cigarettes to non-Indians by Indian tobacco outlets, despite the exemptions from state taxes possessed by an Indian tribe and its members themselves. The State may exert this power, according to Moe, even if it thereby deprives the tribe or the enterprises the tribe operates of substantial revenues. Cf., Thomas v. Gay, 169 U.S. 264, 18 S.Ct. 340, 42 L.Ed. 740. The cigarette and sales tax aspects of this case would, therefore, be wholly controlled by the Moe decision, but for the fact that all of the appellee Tribes levy their own cigarette excise taxes on the on-reservation distribution of cigarettes to non-Indians.
78
It seems clear to me that the appellee Tribes enjoy a power at least equal to that of the State to tax the on-reservation sales of cigarettes to nontribal members. Those sales are entered into and consummated in places and circumstances subject to the Tribes' protection and control. Furthermore, the taxation of such transactions effectuates recognized federal policies by providing funds for the maintenance and operation of tribal self-government. See generally Indian Reorganization Act of 1934, 25 U.S.C. § 461 et seq.; McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 179-181, 93 S.Ct. 1257, 1266-1267, 36 L.Ed.2d 1295; Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251.
79
Consequently, when a State and an Indian tribe tax in a functionally identical manner the same on-reservation sales to nontribal members, it is my view that congressional policy conjoined with the Indian Commerce Clause requires the State to credit against its own tax the amount of the tribe's tax. This solution fully effectuates the State's goal of assuring that its citizens who are tribal members do not cash in on the exemption from state taxation that the tribe and its members enjoy. On the other hand, it permits the tribe to share with the State in the tax revenues from cigarette sales, without at the same time placing the tribe's federally encouraged enterprises at a competitive disadvantage compared to similarly situated off-reservation businesses.
80
Turning to the case at hand, the approach I have outlined leads me to one conclusion with respect to sales on the Colville, Lummi, and Makah Reservations, and another with respect to sales on the Yakima Reservation. The Colville, Lummi, and Makah Tribes each collect from the operators of on-reservation tobacco outlets a tax of 40 to 50 cents per carton. Although in each case the tax is imposed at the time the cigarettes are distributed by the Tribe to the retail outlets, the pertinent taxing ordinance requires that the tax be passed on to the ultimate consumer. Thus, the actual event taxed, as with the State's cigarette excise tax and general sales tax, is the sale to the nontribal purchaser. Since the Tribe's cigarette tax operates in functionally the same way as do the State's cigarette excise and general sales taxes, I would hold that the State must credit the tribal tax against the combination of its cigarette excise tax and general sales tax.
81
The tax imposed by the Yakima Tribe operates differently. The Tribe purchases cigarettes from out-of-state dealers and sells them to its licensed retailers. In connection with this transaction, the Tribe receives from its licensed retailers a tax of 22.5 cents per cigarette carton. Unlike the situation with the Colville, Lummi, and Makah taxes, however, there is no requirement that the tax then be added to the ultimate retail selling price. As a consequence, the event taxed is not the sale to the ultimate cigarette purchaser, and for this reason I believe that the State has no obligation to credit the Indian tax against the combination of its cigarette excise and general sales taxes.
82
Accordingly, I would vacate the judgment of the District Court, insofar as it invalidates in toto the imposition of the State's cigarette excise and general sales taxes upon cigarette sales on the Colville, Lummi, and Makah Reservations, and remand the case for further proceedings. I would reverse the judgment of the District Court insofar as it bars the imposition of the State's taxes upon sales of cigarettes on the Yakima Reservation.
83
Mr. Justice REHNQUIST, concurring in part, concurring in the result in part, and dissenting in part.
84
Since early in the last century, this Court has been struggling to develop a coherent doctrine by which to measure with some predictability the scope of Indian immunity from state taxation.1 In recent years, it appeared such a doctrine was well on its way to being established. I write separately to underscore what I think the contours of that doctrine are because I am convinced that a well-defined body of principles is essential in order to end the need for case-by-case litigation which has plagued this area of the law for a number of years. That doctrine, I had thought, was at bottom a pre-emption analysis based on the principle that Indian immunities are dependent upon congressional intent. McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973); Mescalero Apache Tribe v. Jones, 411 U.S. 145, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973); Moe v. Salish & Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976); Bryan v. Itasca County, 426 U.S. 373, 96 S.Ct. 2102, 48 L.Ed.2d 710 (1976), at least absent discriminatory state action prohibited by the Indian Commerce Clause. I see no need for this Court to balance the state and tribal interests in enacting particular forms of taxation in order to determine their validity. Supra, at 156-157. Absent discrimination, the question is only one of congressional intent. Either Congress intended to pre-empt the state taxing authority or it did not. Balancing of interest is not the appropriate gauge for determining validity since it is that very balancing which we have reserved to Congress. I concur in the Court's conclusion, however, that the cigarette tax is valid because Congress has not pre-empted state authority to impose the tax.
85
* The principles necessary for the resolution of this case are readily derived from our opinions in McClanahan and Mescalero. McClanahan confirmed the trend which had been developing in recent decades towards a reliance on a federal pre-emption analysis. Congress has for many years legislated extensively in the field of Indian affairs. McClanahan therefore recognized that the answer to most claims of Indian immunity from state power could be resolved by looking "to the applicable treaties and statutes which define the limits of state power." 411 U.S., at 172, 93 S.Ct., at 1262.2
86
Despite the expanse of congressional statutes regulating Indian affairs over the years, McClanahan foresaw that congressional intent would not always be readily apparent. As a guide to ascertaining that intent in such cases, the Court invoked the tradition of Indian sovereignty as reflected by the earlier decisions of this Court: "The Indian sovereignty doctrine is relevant, . . . not because it provides a definitive resolution of the issues in this suit, but because it provides a backdrop against which the applicable treaties and federal statutes must be read." Ibid.
87
McClanahan readily illustrates application of the analysis. The question presented in that case was whether the State of Arizona had jurisdiction to impose a tax on a reservation Indian's income derived solely from reservation sources. The Court first reviewed the "tradition of sovereignty" relevant to this "narrow question." Id., at 168, 93 S.Ct., at 1260.3 Historically this Court had found Indians to be exempt from taxes on Indian ownership and activity confined to the reservation and not involving non-Indians.4 The Kansas Indians, 5 Wall. 737, 18 L.Ed. 667 (1867). With this tradition placing reservation-ownership beyond the jurisdiction of the States, the Court undertook a review of the relevant treaties and statutes to determine whether this tradition of immunity had been altered by Congress.5 Although no legislation directly provided that Indians were to be immune from state taxation under these circumstances, the enactments reviewed were certainly suggestive of that interpretation. See Arizona Enabling Act, § 20, 36 Stat. 569; the Buck Act, 4 U.S.C. § 105. The Court therefore declined to infer a congressional departure from the prior tradition of Indian immunity absent an express provision otherwise. Thus, as this Court's opinion in Bryan v. Itasca County, supra, later characterized it, McClanahan established a rule against finding that "ambiguous statutes abolish by implication Indian tax immunities." 426 U.S., at 392, 96 S.Ct., at 2112-2113.
88
The companion case to McClanahan, Mescalero Apache Tribe v. Jones, supra, established the corollary principle: When tradition did not recognize a sovereign immunity in favor of the Indians, this Court would recognize one only if Congress expressly conferred one. In Mescalero, the State of New Mexico asserted the right to impose a tax on the gross receipts of a ski resort owned and operated by an Indian tribe. The resort was located on federal land adjacent to the Indian reservation, was developed under the auspices of the Indian Reorganization Act of 1934, 25 U.S.C. § 461 et seq., and was funded with federal money.
89
The Court in Mescalero applied precisely the analysis McClanahan adopted. First, the Court reviewed the tradition of sovereignty and found that no immunity for off-reservation activities had traditionally been recognized. See Shaw v. Gibson-Zahniser Oil Corp., 276 U.S. 575, 48 S.Ct. 333, 72 L.Ed. 709 (1928); Ward v. Race Horse, 163 U.S. 504, 16 S.Ct. 1076, 41 L.Ed. 244 (1896). With that tradition as its backdrop, the Court reviewed the particular statutes relevant to the question of whether or not Congress intended to immunize the Indian enterprise from the state gross receipts tax. The principal Act relevant to the inquiry was the Indian Reorganization Act, since it was the Act under which the tribal enterprise was being conducted. Section 5 of that Act, 25 U.S.C. § 465, provides that the lands acquired under authority of the Act are exempt from state and local taxation. The Court nevertheless refused to read § 5 as broadly conferring an immunity from income as well as property taxes. The Court invoked the well-established rule that " 'tax exemptions are not granted by implication,' " that such exemptions may not rest on " 'dubious inferences,' " but that they must be provided in " 'plain words.' " 411 U.S., at 156, 93 S.Ct., at 1274 quoting Oklahoma Tax Comm'n v. United States, 319 U.S. 598, 606-607, 63 S.Ct. 1284, 1287-1288, 87 L.Ed. 1612 (1943). Despite the clear federal purpose of promoting this tribal economic enterprise, the Court found that no judicial immunities could appropriately be implied.6
90
The subsequent Indian tax immunity cases have been unanimously resolved through application of the corollary principles of construction established in McClanahan and Mescalero. In Moe v. Salish & Kootenai Tribes, supra, the Court invalidated attempted state taxation of Indian conduct and property confined to the reservation. The Court, found, however, that imposition of a state tax on its non-Indian residents' purchases of cigarettes from Indian sellers on a reservation could not be found to "ru[n] afoul of any congressional enactment dealing with the affairs of reservation Indians." 425 U.S., at 483, 96 S.Ct., at 1646. In Bryan v. Itasca County, supra, the question was whether the congressional grant of civil jurisdiction to the States conferred by 28 U.S.C. § 1360 was a general grant of power to tax reservation Indians. The tradition, of course, was otherwise and the statute did not specifically state that a repeal of those immunities was intended. Consistent with the principles enunciated in McClanahan, the Court reasoned that
91
"[t]his omission has significance in the application of the canons of construction applicable to statutes affecting Indian immunities, as some mention would normally be expected if such a sweeping change in the status of tribal government and reservation Indians had been contemplated by Congress." 426 U.S., at 381, 96 S.Ct., at 2107.
92
Adherence to these principles of construction maximizes the ability of States and tribes to determine the scope of their respective authority without resort to adjudication, and maximizes judicial deference to the legislative forum.
II
93
Application of these principles readily resolves the validity of the cigarette tax levied by the State. The tax represents a permissible nondiscriminatory exercise of state sovereign authority which has not been pre-empted by Congress. These principles also dispose of the claim of nontribal Indians to an immunity.
A.
94
At issue here is not only Indian sovereignty, but also necessarily state sovereignty as well. As a general rule, of course, States are given wide latitude in the exercise of their sovereign powers to tax. In Michelin Tire Corp. v. Wages, 423 U.S. 276, 293, 96 S.Ct. 535, 544, 46 L.Ed.2d 495 (1976), this Court cautioned against invalidating any state taxation absent "the clearest . . . mandate." Here the State attempts to tax its citizens' use of cigarettes purchased in a territory subject to the control of another sovereign.7 As a general matter, we have repeatedly held that such an exercise of state taxing power is permissible. Here there is no question that the State, by taxing its own non-Indian residents, has "exerted its power in relation to opportunities which it has given, to protection which it has afforded, to benefits which it has conferred," 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. 267 (1940). Use tax schemes applicable to purchases in other States, precisely comparable to that in issue here, have long been upheld as a permissible exercise of state taxing power. Henneford v. Silas Mason Co., 300 U.S. 577, 57 S.Ct. 524, 81 L.Ed. 814 (1937); National Geographic Society v. California Board of Equalization, 430 U.S. 551, 97 S.Ct. 1386, 51 L.Ed.2d 631 (1977). Of course in order to collect the tax from the merchant located beyond the territorial jurisdiction of the taxing State, there must also be a relationship between the State and the burdened merchant sufficient to satisfy principles of due process. National Geographic Society, supra. After Moe, however, the retailers on the tribal reservation cannot gain invalidation of the tax on this basis. 425 U.S., at 482-483, 96 S.Ct., at 1645-1646. Thus the State has exercised its taxing authority consistent with its sovereign powers and constitutional due process.
95
An otherwise legitimate exercise of state taxing authority will be illegitimate, of course, if it is sought to be applied in contravention of a constitutional or federal statutory immunity. Indian sovereign immunity from nondiscriminatory taxation is a question of congressional pre-emption. As outlined, we must first identify the backdrop of sovereignty in order to interpret congressional intent in the field. As McClanahan implicitly recognized through its citation of authorities, the traditional cases clearly did not find that Indian sovereign immunity was contravened by subjecting tribes to the burdens inherent in state taxation of the reservation activities of non-Indians. Surplus Trading Co. v. Cook, 281 U.S. 647, 50 S.Ct. 455, 74 L.Ed. 1091 (1930); Utah & Northern R. Co. v. Fisher, 116 U.S. 28, 6 S.Ct. 246, 29 L.Ed. 542 (1885); Thomas v. Gay, 169 U.S. 264, 18 S.Ct. 340, 42 L.Ed. 740 (1898).
96
Thomas v. Gay, perhaps best illustrates the "backdrop" relevant to the State's cigarette tax in issue. In Thomas, the State attempted to tax the cattle grazing on reservation lands leased, pursuant to congressional authorization, by Indians to non-Indians. The Court found that the Indians' sovereign immunity did not operate to curtail state authority to impose this tax. The case is particularly significant because of the arguments which it expressly rejects. The tribe complained that the tax had to be invalidated because the revenues which it received as lessor would be directly reduced as a result of the state tax since lessees would be unwilling to pay the same price for tax-exempt grazing lands as for taxable grazing lands. The Court stated that it is urged that
97
"the money contracted to be paid for the privilege of grazing is paid to the Indians as a tribe, and is used and expended by them for their own purposes, and that if, by reason of this taxation, the conditions existing at the time the leases were executed were changed, or could be changed by the legislature of Oklahoma at its pleasure, the value of the lands for such purposes would fluctuate or be destroyed altogether according to such conditions." Id., at 273, 18 S.Ct., at 343.
98
Thomas v. Gay is a part of the "backdrop" which supports Washington's power to impose the tax in issue.8 The appellee Tribes maintain that the tax in issue is impermissible, though permissible in Moe, because here the Tribes are raising governmental revenues and establishing commercial enterprises. The effect of the state tax then would be to reduce the tribe's governmental revenues and force the tribe to choose between losing those revenues by forgoing its tax or subjecting reservation retailers to a competitive disadvantage compared to those retailers outside the reservation not subject to the tribal tax. These may be the facts, but they are facts which Thomas v. Gay held to be irrelevant to the recognition of a sovereign tribal immunity. In Thomas, the tribe's involvement was far more direct than that in issue here since it was a tribal leasing enterprise. There, the State's exercise of jurisdiction clearly required the tribe, as lessor, to forgo some portion of rent which could have been charged, and used the same as tax revenues, had the State not asserted its taxing authority. The tribe could recover the full rent (part of which may readily be considered the equivalent of a tax and another part perhaps proprietary profit) only at the risk of discouraging the economic enterprise. It is apparent therefore that the backdrop relevant to this action is one of no sovereign immunity.9
99
Congress could of course countermand this "tradition" of no immunity. But it has not done so. Under Mescalero, it is dispositive of this case that no express immunity has been granted by Congress since the tradition of sovereignty counsels against the immunity. Even going beyond the Mescalero rule against implying an immunity from taxation, I agree with the Court that a review of the statutes does not suggest, even remotely, that Congress intended either by its laws or the policies underlying them to prevent the States from taxing these transactions.10 In all areas of tax immunity, this Court has staunchly refused to consider the permissibility of a tax by reference to the economic burdens which it imposes if those burdens are nondiscriminatory and satisfy due process. See United States v. County of Fresno, 429 U.S. 452, 97 S.Ct. 699, 50 L.Ed.2d 683 (1977) (state taxation of the Federal Government); New York v. United States, 326 U.S. 572, 66 S.Ct. 310, 90 L.Ed. 326 (1946) (federal taxation of the state governments); Michelin Tire Corp. v. Wages, 423 U.S. 276, 96 S.Ct. 535, 46 L.Ed.2d 495 (1976) (state taxation of imports and exports). If Indians are to function as quasi co-sovereigns with the States, they like the States, must adjust to the economic realities of that status as every other sovereign competing for tax revenues, absent express intervention by Congress.11
B
100
Relying on the same pre-emption analysis, I also concur in the Court's conclusion that Indians not members of the governing tribe are not immune from taxation. McClanahan/Mescalero are once again dispositive. As McClanahan explained, the doctrine of sovereign immunity traditionally recognized by this court derived from the sovereign relationship between a tribe and its members, and a recognition that state jurisdiction should not be asserted in a manner which "frustrates tribal self-government." 411 U.S., at 170, 93 S.Ct., at 1261. See Williams v. Lee, 358 U.S. 217, 219-220, 79 S.Ct. 269, 270, 3 L.Ed.2d 251 (1959); Moe, 425 U.S., at 483, 96 S.Ct., at 1646. Immunities which have formed the backdrop for this Court's pre-emption analysis have been those derived from these precepts. This form of immunity, and the principles which underlie it, are simply inapplicable to the recognition of a tax immunity for an individual who resides on a reservation, but is not a member of the tribe. The holding in Moe that non-Indians, even those resident on a reservation, could be subject to cigarette taxes for on-reservation purchases, was a reflection of this principle. The fact that the nonmember resident happens to be an Indian by race provides no basis for distinction. The traditional immunity is not based on race, but accouterments of self-government in which a nonmember does not share.
101
Congress of course has gone beyond protection of merely Indian self-government, extending its regulatory authority to Indians not residing on the reservation of their own tribe, or, in fact, not residing on any reservation. See 25 U.S.C. § 13 (1970 ed.), as construed in Morton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974). See also the definition of "Indian" in the Indian Reorganization Act, 25 U.S.C. § 479. Congress, however, has certainly provided no express immunity from the type of taxation in issue for Indians not members of the tribe, and under the Mescalero principles of construction, the backdrop of sovereignty makes it clear that it is not this Court's province to imply such an immunity. These Indians residing on the reservation are citizens of the State, just the same as their non-Indian neighbors, and I am unwilling to conclude that their Indian status entitles them to an implied immunity from taxes which their non-Indian neighbors are required to pay.
III
102
I cannot concur in the Court's disposition of the challenge to the state vehicle excise tax. Wash.Rev.Code, chs. 82.44 and 82.50 (1976 and Supp.1977). The lower court did not conduct a very extensive inquiry into the mechanics or state interpretation of this excise taxing scheme, believing that the tax was clearly invalid under our prior decision in Moe. In Moe, this Court refused to uphold a State's authority to impose a property tax on motor vehicles owned by tribal members residing on the reservation. The lower court here found that Moe was controlling because in both cases the vehicles which the State seeks to tax are used both on and off the reservation, and the tax is assessed annually at a percentage of the market value of the vehicle. Thus the lower court, and this Court, have concluded that the only difference between the taxes is one of label, a difference insufficient to warrant a difference in outcome. Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977). The Court therefore looked no further to the operation of the taxing scheme in question.
103
I do not find the issue clearly disposed of by Moe without a dispositive construction of the actual operation of this state taxing scheme. There is of course no question that this Court has discarded the controlling significance of the label a State attaches to its taxes. A tax instead must be judged by its "practical operation." Detroit v. Murray Corp., 355 U.S. 489, 78 S.Ct. 458, 2 L.Ed.2d 441 (1958). But only if the practical operation of this excise taxing scheme is the same as the property taxing scheme addressed in Moe would the tax be invalid on the basis of that decision. In Moe, the tax was assessed on the basis of ownership, and, therefore, an Indian was required to pay the tax regardless of whether the vehicle was ever used off the reservation. If the state taxing scheme in question here, however, exacts a tax only in the event that the vehicle is used off the reservation, then the practical operation of the taxes would be totally different. In Moe, the Indian purchaser could not avoid assessment of the tax once the vehicle was purchased. It is possible, however, that under an excise taxing scheme no tax would be assessed if the vehicle were used only on the reservation.
104
What is dispositive for me then is whether Washington has structured or will construe its overall tax and exemption scheme so as to avoid exaction of the tax in the event the vehicle is never used off the reservation. No decision of this Court would preclude the State from taxing Indians for the use of off-reservation highways. The lower court did not appreciate the significance of this distinction and accordingly did not focus on the manner in which the state taxing scheme would be applied to Indians limiting their vehicle use to the reservation. Judge Kilkenny, in a dissenting opinion, found the record inadequate to resolve the question of validity. I agree with Judge Kilkenny that federal courts cannot invalidate state taxes without a thorough review of state law and precedents necessary to determine whether the scheme in fact contravenes federal law. It may well be that the excise tax is applicable without exception to even those Indians using their vehicles exclusively on the reservation, but I would remand the question to the lower court to clarify that this is the controlling question so that it might examine the state taxing scheme under a corrected view of what federal law requires. Cf. Perkins v. Benquet Consolidated Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485 (1952); Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 578-579, 97 S.Ct. 2849, 2859, 53 L.Ed.2d 965 (1977).
105
Assuming a construction which excludes reservation use, arguendo, I do not find it significant that Washington has not tailored this tax to the "amount of actual off-reservation use," in which case the Court suggests this tax might be permissible. A non-Indian resident of the State of Washington pays the same tax on his use of the public highways whether he drives his car once a year or every day. We have certainly never held that a State is under an obligation to apportion its use taxes in such a way that reflects actual use. I am aware of no principle for making a different rule to cover the case of Indians using the public highways. If they choose to avoid the use tax, they need only limit their driving to reservation boundaries. But once they venture onto highways off the reservation, nothing in the United States Constitution, or in the federal statutes, prevents them from being subject to use taxes in common with other state residents.
106
I would therefore reverse the judgment of the District Court on the issue of the permissibility of the State's assessment of its cigarette tax on purchases made by non-Indians, and by Indians not members of the governing tribe. I would remand the case to that court for a determination of the construction and effect of the state excise tax.
*
Together with No. 78-60, Confederated Tribes of the Colville Indian Reservation et al. v. Washington, also on appeal from the same court but not argued. See n. 32, infra.
1
On April 24, 1974, the Yakima Tribe intervened as a plaintiff in the United States' case. Its complaint appears at App. 149.
2
The state tobacco products tax, which is imposed on cigars and pipe tobacco pursuant to Wash.Rev.Code, ch. 82.26 (1976), is not before us. The District Court concluded that that tax fell upon the Indian sellers and not upon the non-Indian purchasers. 446 F.Supp. 1339, 1355, n. 15 (ED Wash. 1978). The State did not appeal from this holding, Brief for Appellants in No. 78-630, p. 55, n. 40, and all parties agree that in consequence the tobacco products tax may not be imposed on sales by trial dealers.
3
The Tribes also sought damages for interference with their cigarette businesses. The damages issues in both cases were remanded by the three-judge court to a single District Judge. 446 F.Supp., at 1367, 1373.
4
Although § 2281 was subsequently repealed, Act of Aug. 12, 1976, § 1, 90 Stat. 1119, it was expressly left in place for cases which, like those before us, were pending on the date of repeal. § 7, 90 Stat. 1120. We consider issues concerning the applicability of the former § 2281 to these cases in Part III, infra.
5
Proceedings in both cases were stayed for several months, however, pending this Court's decisions in Moe v. Salish & Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976), and Bryan v. Itasca County, 426 U.S. 373, 96 S.Ct. 2102, 48 L.Ed.2d 710 (1976).
6
Our statement of the factual background is drawn in large measure from the opinion of the District Court, 446 F.Supp., at 1345-1349, 1368-1370.
7
The cigarette excise tax is imposed pursuant to Wash.Rev.Code § 82.24.020 (1976). That provision authorizes a levy of 6.5 mills per cigarette. The tax is brought up to its full amount by Wash.Rev.Code §§ 28A.47.440 and 73.32.130 (1976), which add 0.5 mill and 1 mill respectively.
8
Initially the State asserted that it could tax all tribal cigarette sales, regardless of whether the buyer was Indian or non-Indian. Its theory was that Pub.L. 280, 67 Stat. 588, granted it general authority to tax reservation Indians. After this theory was rejected in Bryan v. Itasca County, supra, the State abandoned any claim of authority to tax sales to tribal members. See 446 F.Supp., at 1346, n. 4.
9
Id., at 1352-1355. Essentially, the court accepted the State's contention that the tax falls upon the first event which may constitutionally be subjected to it. In the case of sales by non-Indians to non-Indians, this means the incidence of the tax is on the seller, or perhaps on someone even further up the chain of distribution, because that person is the one who first sells, uses, consumes, handles, possesses, or distributes the products. But where the wholesaler or retailer is an Indian on whom the tax cannot be imposed under McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973), the first taxable event is the use, consumption, or possession by the non-Indian purchaser. Hence, the District Court concluded, the tax falls on that purchaser. We accept this conclusion.
10
The same chapter provided for an excise tax on mobile homes. Initially, the State sought to apply this tax to Indians as well; but after Bryan v. Itasca County, 426 U.S. 373, 96 S.Ct. 2102, 48 L.Ed.2d 710 (1976), and Moe v. Salish & Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976), it no longer attempts to do so. 446 F.Supp., at 1365.
11
The Makah Tribe is organized under the Indian Reorganization Act of 1934, 48 Stat. 984, 25 U.S.C. § 461 et seq. While the Lummi and Colville Tribes do have federally-approved constitutions, they voted in 1935 not to come under that Act. 446 F.Supp., at 1345, n. 2.
12
The Colville Reservation encompasses 1.3 million acres in the northeastern section of Washington. It was established by Executive Order on July 2, 1872. 1 C. Kappler, Indian Affairs, Laws and Treaties 916 (2d ed. 1904).
13
The Lummi Reservation encompasses 7,319 acres, most of them on a peninsula near Bellingham, Wash. It was established by the Treaty of Point Elliott in 1855. 12 Stat. 927.
14
The Makah Reservation encompasses 28,000 acres at the northwest tip of the Olympic Peninsula. It too was established by treaty in 1855. Treaty with the Makah Tribe, 12 Stat. 939. Roughly 63% of its inhabitants are enrolled members of the Tribe.
15
The Yakima Indian Reservation was set aside for the Tribe by treaty ratified March 8, 1859. Treaty with the Yakimas, 12 Stat. 951. It encompasses about 1.4 million acres in south-central Washington.
16
The tribal ordinances regulating the sale, distribution, and taxing of cigarettes are set forth at App. 104, 118, and 111.
17
The funds are maintained in individual accounts in the Bureau of Indian Affairs agency serving the reservation pursuant to 25 CFR Part 104 (1978). App. 32-34.
18
These out-of-state wholesalers are also federally licensed Indian traders.
19
The repeal of this provision in 1976 does not affect its application to these cases. See n. 4, supra.
20
As the Government recognizes, its position in this regard is somewhat anomalous since it was the United States which initially requested a three-judge court in the Yakima case. App. 145. At that time the Government seemed to have no doubt that it sought to enjoin the enforcement of a state statute on grounds of its unconstitutionality within the meaning of § 2281.
21
The District Court seems to have found this contention persuasive, 446 F.Supp., at 1350, although it addressed it only briefly. Presumably it saw no need to explore the matter more fully since it was confident that the three-judge requirement had in any event been satisfied by the Tribes' challenges to the State's enforcement measures. Id., at 1350-1351.
22
Footnote 17 in its entirety reads as follows:
"It is thus clear that the basis for the invalidity of these taxing measures, which we have found to be inconsistent with existing federal statutes, is the Supremacy Clause, U.S.Const., Art. VI, cl. 2, and not any automatic exemptions 'as a matter of constitutional law' either under the Commerce Clause or the intergovernmental-immunity doctrine as laid down originally in M'Culloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579 (1819). If so, then the basis for convening a three-judge court in this type of case has effectively disappeared, for this Court has expressly held that attacks on state statutes raising only Supremacy Clause invalidity do not fall within the scope of 28 U.S.C. § 2281. Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965). Here, however, the District Court properly convened a § 2281 court, because at the outset the Tribe's attack asserted unconstitutionality of these statutes under the Commerce Clause, a not insubstantial claim since Mescalero and McClanahan had not yet been decided. See Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973)." 425 U.S., at 481, 96 S.Ct., at 1645.
23
See Turner v. Fouche, 396 U.S. 346, 354, n. 10, 90 S.ct. 532, 537, 24 L.Ed.2d 567 (1970). See also Department of Employment v. United States, 385 U.S. 355, 87 S.Ct. 464, 17 L.Ed.2d 414 (1966); Query v. United States, 316 U.S. 486, 490, 62 S.Ct. 1122, 1124, 86 L.Ed. 1616 (1942).
24
The actual chronology was as follows: On May 10, 1978, the District Court entered its final order. On May 22, the State filed a motion for partial new trial on the cigarette and sales tax issues. On July 12, while that motion was pending, the State filed a notice of appeal raising the motor-vehicle-excise-tax and assumption-of-jurisdiction issues. On July 17, the motion for partial new trial was denied; and on August 14, the State filed a notice of appeal on the sales and cigarette tax issues. On September 8, the State filed an amended notice of appeal raising all relevant issues. The July 12 notice of appeal was filed more than 60 days after the original District Court order. Accordingly, under 28 U.S.C. § 2101(b), it was out of time. The notice of August 14 and the amended notice of September 8, however, were filed within 60 days of the District Court's denial of the motion for partial new trial. It seems clear that the filing of that motion rendered nonfinal the disposition of all covered issues—if not, one seeking a partial new trial would have to jeopardize his right to appeal. Communist Party of Indiana v. Whitcomb, 414 U.S. 441, 445-446, 94 S.Ct. 656, 659, 660, 38 L.Ed.2d 635 (1974); Department of Banking v. Pink, 317 U.S. 264, 266, 63 S.Ct. 233, 234, 87 L.Ed. 254 (1942). Thus, the only remaining question is whether the motion for partial new trial also suspended the finality of the District Court's disposition of issues not covered by that motion.
25
We are here generally concerned only with the application of Washington's retail sales tax to cigarette sales. The District Court upheld the sales tax as applied to sales of other goods to non-Indians, and the Tribes do not contest that holding. We do, however, consider the question of noncigarette sales when we discuss (1) whether Washington can tax purchases by Indians not members of the governing Tribe, and (2) whether Washington's recordkeeping requirements are valid.
26
We struck down the tax as applied to sales to Indians. 425 U.S., at 475-481, 96 S.Ct., at 1642-1645.
27
The United States reads Moe too parsimoniously in asserting its inapplicability to cases, such as the present ones, in which the economic impact on tribal retailers is particularly severe. Moe makes clear that the Tribes have no vested right to a certain volume of sales to non-Indians, or indeed to any such sales at all.
28
The incidence of the Colville, Lummi, and Makah taxes falls on the cigarette purchaser, since the tribal ordinances specify that the tax is to be passed on to the ultimate consumer. The Yakima ordinance, in contrast, does not require that the tax be added to the selling price, and the incidence of the Yakima tax therefore does not fall on the purchaser. The State's challenge is directed only at the Colville, Lummi, and Makah taxes.
29
In the wake of McClanahan v. Arizona State Tax Comm'n and Moe, the State does not claim that it can impose these taxes upon vehicles used wholly within the reservation. Brief for Appellants in No. 78-630, p. 111, and n. 77.
30
Moe did not focus upon vehicle use at all. The District Court opinion in that case, however, indicates that some of the vehicles to which Montana sought to apply its tax were used both on and off the reservation. Confederated Salish and Kootenai Tribes v. Montana, 392 F.Supp. 1325, 1328-1329 (Mont.1975) (three-judge court) (Smith, J., concurring in part and dissenting in part).
31
Id., at 1327, citing the Montana statute, Mont.Rev.Codes Ann. § 84-406(2) (Supp.1974).
32
In No. 78-60, Confederated Tribes of the Colville Indian Reservation et al. v. Washington et al., which is pending on appeal, the Colville Tribe appeals from so much of the District Court's judgment as reflects the holding that Washington's assumption of total jurisdiction over that Tribe's reservation was lawful. See 446 F.Supp., at 1366-1367. The Colville Tribe challenges that holding on grounds (1) that Washington could not assume jurisdiction without amending its Constitution and (2) that the assumption of total jurisdiction over only selected reservations violates the Equal Protection Clause. Washington v. Yakima Indian Nation, 439 U.S. 463, 99 S.Ct. 740, 58 L.Ed.2d 740 (1979), disposes of the first contention, id., at 493, 99 S.Ct., at 757, and makes clear that the second must fail if the assumption of jurisdiction is rationally related to some valid state purpose, id., at 500-502, 99 S.Ct., at 761-762. We find the pattern of jurisdiction in the present case rational: The Colville Tribe consented in 1965 to the State's assumption of jurisdiction over it, and the State has assumed total jurisdiction only over tribes that have so consented. The presence or absence of tribal consent is a rational basis for distinguishing among reservations, and there is thus no constitutional infirmity. Accordingly, the judgment is in this respect affirmed.
1
The starkest territorial conception of Indian sovereignty was sketched by Mr. Chief Justice Marshall in Worcester v. Georgia, 6 Pet. 515, 557-561, 8 L.Ed. 483 (1832). An Indian reservation, he stated, was "a distinct community, occupying its own territory . . . in which the laws of Georgia can have no force . . . ." See F. Cohen, Handbook of Federal Indian Law 122 (1942). Williams v. Lee, 358 U.S. 217, 219, 79 S.Ct. 269, 270, 3 L.Ed.2d 251 (1959), noted that this view had been "modified . . . in cases where essential tribal relations were not involved." Kake Village v. Egan, 369 U.S. 60, 71-75, 82 S.Ct. 562, 568-570, 7 L.Ed.2d 573 (1962), noted a shift as well. And McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 172, 93 S.Ct. 1257, 1262, 36 L.Ed.2d 129 (1973), observed that "the trend has been away from the idea of inherent Indian sovereignty as a bar to state jurisdiction." Rather, McClanahan concluded, sovereignty is better seen as a "backdrop against which the applicable treaties and federal statutes must be read." Ibid. In a similar vein, Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 208, 98 S.Ct. 1011, 1021, 55 L.Ed.2d 209 (1978) recognized that Indian Tribes are "prohibited from exercising both those powers of autonomous States that are expressly terminated by Congress and those powers 'inconsistent with their status.' " (Emphasis and citations omitted.) Still, United States v. Wheeler, 435 U.S. 313, 322-326, 98 S.Ct. 1079, 1085-1087, 55 L.Ed.2d 303 (1978), emphasized the sovereign nature of tribal authority over Indians. See also Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148, 93 S.Ct. 1267, 1270, 36 L.Ed.2d 114 (1973); Antoine v. Washington, 420 U.S. 194, 201-203, 95 S.Ct. 944, 949-950, 43 L.Ed.2d 129 (1975).
2
This territorial component is also suggested by recent statutes like the Clean Air Act Amendments of 1977, 91 Stat. 685, 735, which provide that "[l]ands within the exterior boundaries of reservations of federally recognized Indian tribes" may be redesignated for air quality purposes "only by the appropriate Indian governing body." A similar note is sounded in the Surface Mining Control and Reclamation Act of 1977, 91 Stat. 445, 523. In addition, a geographical or territorial source for Indian authority may be found in the Washington Enabling Act, 25 Stat. 676, § 4, by which the State was required to disclaim "all right and title" to lands "owned or held by any Indian or Indian tribes" and to agree that such lands "shall remain under the absolute jurisdiction and control of the Congress. . . ."
3
See Mescalero Apache Tribe v. Jones, 411 U.S., at 151-152, 93 S.Ct., at 1271-1272. There we noted that the "intent and purpose of the Reorganization Act was 'to rehabilitate the Indian's economic life and to give him a chance to develop the initiative destroyed by a century of oppression and paternalism.' " Id., at 152, 93 S.Ct., at 1272, quoting H.R.Rep. No. 1804, 73d Cong., 2d Sess., 6 (1934). The Reorganization Act itself contains a number of provisions that demonstrate Congress' concern with encouraging Indian economic development. See 25 U.S.C. §§ 469, 470, and 477. See also Santa Clara Pueblo v. Martinez, 436 U.S. 49, 59-60, 98 S.Ct. 1670, 1677-1678, 56 L.Ed.2d 106 (1978).
4
See the Indian Self-Determination and Education Assistance Act of 1975, 25 U.S.C. § 450 et seq., and the Indian Financing Act of 1974, 25 U.S.C. § 1451 et seq. Section 2 of the latter statute states as follows:
"It is hereby declared to be the policy of Congress to provide capital . . . to help develop and utilize Indian resources, both physical and human, to a point where the Indians will fully exercise responsibility for the utilization and management of their own resources and where they will enjoy a standard of living from their own productive efforts comparable to that enjoyed by non-Indians in neighboring communities." 88 Stat. 77.
Adherence to the policies underlying the Reorganization Act has not been without some interruption. The Termination Acts of the 1950's see, e. g., 25 U.S.C. §§ 564, 721-728, 741-760, and 891-901 (1958 ed), seem to have signalled a congressional urge to pursue an assimilationist policy somewhat akin to the approach that was dominant prior to the Reorganization Act. See generally Menominee Tribe v. United States, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968). But present policy "appears to be returning to a focus upon strengthening tribal self-government." Bryan v. Itasca County, 426 U.S. 373, 389, n.14, 96 S.Ct. 2102, 2111, n.14, 48 L.Ed.2d 710 (1976).
5
Moe, 425 U.S., at 483, 96 S.Ct., at 1646, citing Williams v. Lee, 358 U.S., at 219-220, 79 S.Ct., at 270.
6
This problem was entirely absent in Moe. Nothing in the result there disfavored the purchase of Indian goods. Rather, imposition of the state tax on non-Indians simply created a situation in which persons were encouraged to buy cigarettes on the basis of factors other than tax benefits and avoidance—factors like geographical location and convenience. In the present situation, the state tax actually tips the balance against the Indians.
7
It might be argued that the choice I describe is entirely commonplace—that in making its taxing decisions every governmental unit is required to balance its revenue needs against the economic impact of the taxes it considers. In one sense, this is quite true: If one State has a very low sales tax, a neighboring State's ability to impose a higher one may as a practical matter be impaired. In some circumstances, it can cope with this situation by imposing a complementary tax on the in-state use of goods purchased elsewhere. National Geographic Society v. California Bd. of Equalization, 430 U.S. 551, 555, 97 S.Ct. 1386, 1389, 51 L.Ed.2d 631 (1977). And in others there will exist no efficacious way of collecting such a tax. Whatever the case, however, the two States will face each other across their common border with equal arsenals.
I think the present situation is readily distinguishable for the simple reason that Indian reservations are not States. This has two sorts of consequences. First, it means the equality noted in the preceding paragraph is absent. Moe holds that sellers on an Indian reservation may be required to collect state taxes on sales to non-Indians that occur entirely on the reservation. Yet it is highly unlikely that the Tribes in these cases could require sellers elsewhere in Washington to collect tribal taxes. And second, Indian Tribes, while less autonomous than States in important respects, are the special beneficiaries of certain federal concerns and policies. As a result, the tradeoffs and frictions that may be inevitable in the state-state context demand special scrutiny in the state-reservation context. Tribes may lack the tools needed to protect themselves and protecting them is an important federal concern. Cf. Morton v. Mancari, 417 U.S. 535, 551-555, 94 S.Ct. 2474, 2483-2485, 41 L.Ed.2d 290 (1974).
8
See Mescalero Apache Tribe v. Jones, 411 U.S., at 152, 93 S.Ct., at 1272 (quoting legislative history to the effect that Indians should be able to "enter the white world on a footing of equal competition").
1
Much of that developmental history is recounted in McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 168-172, 93 S.Ct. 1257, 1260-1262, 36 L.Ed.2d 129 (1973).
2
The Court in McClanahan did not resolve to what extent residual Indian sovereignty in the total absence of federal treaty obligations or legislation still would be recognized. The Court found that "[t]he question is generally of little more than theoretical importance, . . . since in almost all cases federal treaties and statutes define the boundaries of federal and state jurisdiction." 411 U.S., at 172 n.8, 93 S.Ct., at 1262. I am convinced that this "residue" of sovereignty is no greater than the freedom from nondiscriminatory taxation held sufficient to protect sovereignty in other areas of constitutionality derived immunities. See n.9, infra. Our opinions have recognized that Indian sovereignty is dependent upon congressional preservation, see United States v. Wheeler, 435 U.S. 313, 323, 98 S.Ct. 1079, 1086, 55 L.Ed.2d 303 (1978), and I decline to use our adjudicatory powers to assume a role properly reserved to Congress.
3
The Court emphasized that its review of Indian sovereignty was relevant only to this narrow category, i. e., the reservation-derived income of a reservation Indian, and that the Court was expressly not reviewing any situation in which the State attempted to exert is sovereignty over non-Indians undertaking activity on Indian reservations. 411 U.S., at 168, 93 S.Ct., at 1260.
4
I use "Indians" throughout this discussion of sovereignty immunity to refer to members of a reservation tribe. See infra, at 186-187.
5
The Court has explicitly held that attributes of Indian sovereignty are subject to complete defeasance by Congress. United States v. Wheeler, supra, at 323, 98 S.Ct., at 1086.
6
In addition, the Court expresses the opinion that congressional policy was not at odds with state taxation since Congress intended that the Indians be prepared to "enter the white world on a footing of equal competition." 411 U.S., at 157, 93 S.Ct., at 1275.
7
Indian reservations are not or course subject to the exclusive control of the tribe. The Federal Government and the States also have jurisdiction for some purposes.
8
It should be noted that the principles in Thomas v. Gay were not always those used to determine Indian immunities. A series of decisions, as noted in McClanahan, treated Indian immunities as derivative from the Federal Government's immunity from state taxation. During the reign of the treatment of Indian reservations as federal instrumentalities for purposes of state taxation, this Court did prohibit States from taxing the net income derived by the lessees of Indian lands. Gillespie v. Oklahoma, 257 U.S. 501, 42 S.Ct. 171, 66 L.Ed. 338 (1922). See also Choctaw, O. & G. R. Co. v. Harrison, 235 U.S. 292, 35 S.Ct. 27, 59 L.Ed. 234 (1914); Indian Territory Illuminating Oil Co. v. Oklahoma, 240 U.S. 522, 36 S.Ct. 453, 60 L.Ed. 779 (1916). While Thomas v. Gay was never explicitly overruled, these decisions were clearly inconsistent. Nevertheless, it was the line of analysis employed in Gillespie that was later overruled in Helvering v. Mountain Producers Corp., 303 U.S. 376, 58 S.Ct. 632, 82 L.Ed. 907 (1938). Thomas v. Gay stands as the traditional analysis of Indian sovereign immunity held to be relevant in McClanahan.
9
This conclusion derives support from not only Thomas v. Gay but also analogous applications of sovereign tax immunities. When two sovereigns have legitimate authority to tax the same transaction, exercise of that authority by one sovereign does not oust the jurisdiction of the other. If it were otherwise, we would not be obligated to pay federal as well as state taxes on our income or gasoline purchases. Economic burdens on the competing sovereign also do not alter the concurrent nature of the taxing authority. Decisions of this Court unequivocally recognize that a state tax comparable to that in issue, imposed on its residents' transactions in another State, or on a federal enclave, will not be barred by force of the respective immunities of that State or the Federal Government. In Henneford v. Silas Mason Co., 300 U.S. 577, 57 S.Ct. 524, 81 L.Ed. 814 (1937), this Court upheld a state tax on one of its resident's use of goods purchased in another State without regard to the fact that the other State's competitive ability to tax the same transaction was obviously reduced. The Court observed that such a tax was permissible even if no credit for the other state tax were allowed. Id., at 581, 57 S.Ct., at 526. See also National Geographic Society v. California Board of Equalization, 430 U.S. 551, 97 S.Ct. 1386, 51 L.Ed.2d 631 (1977). Even the sovereign immunity of the Federal Government would not prevent the effects of a tax comparable to those in issue. In United States v. County of Fresno, 429 U.S. 452, 97 S.Ct. 699, 50 L.Ed.2d 683 (1977), the State sought to impose a possessory use tax on federal employees occupying federal housing located in federal enclaves within the State of California. This Court upheld the tax even though it accepted the Federal Government's argument that in order to remain competitive as an employer or landlord, it would have to reimburse the employees for the payment of the added cost. Id., at 464, and n. 12, 97 S.Ct. at 705. See also United States v. Detroit, 355 U.S. 466, 472, 78 S.Ct. 474, 477, 2 L.Ed.2d 424 (1958); Alabama v. King & Boozer, 314 U.S. 1, 12, 62 S.Ct. 43, 46, 86 L.Ed. 3 (1941). Thus the State, through its exercise of taxing authority, can effectively require the Federal Government to forgo revenues which would otherwise be available to it in order to remain competitive as an enterprise.
10
The total absence of any suggestion that Congress intended to confer the immunity sought in this action should not be surprising. As this Court has found, other statutes are premised on congressional "recognition of the imperative need of a State to administer its own fiscal operations," free from federal interference. Tully v. Griffin, Inc., 429 U.S. 68, 73, 97 S.Ct. 219, 222, 50 L.Ed.2d 227 (1976). In Tully, this congressional policy was not found to be diminished even though the State sought to assert its taxing authority over nonresidents.
11
These considerations, determinative in other areas of tax immunity law, are equally appropriate when one of the taxing jurisdictions is an Indian tribe. While Indian tribes are not States, the tribes are also not helpless hostages of the State absent judicial intervention. Two substantial sources of protection are available to them. First, the Indians could not be subjected to the burdens of discriminatory taxation, e. g., a state tax on only cigarette purchases on a reservation with no corresponding off-reservation tax. The prohibition of discriminatory taxation has been recognized by this Court as a substantial safeguard against the potential for any abusive taxation since only those taxes which the general population are willing to withstand can be imposed. See County of Fresno, supra, at 463, n. 11, 97 S.Ct., at 705, n. 11; Alabama v. King & Boozer, supra (federal immunity); Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977) (state taxation of interstate commerce). Second, Indian tribes are always subject to protection by Congress. This source of protection is more than adequate to preclude any unwarranted interference with tribal self-government. Congress, and not the judiciary, is the forum charged with the responsibility of extending the necessary level of protection beyond that inherent in prohibiting nondiscriminatory taxation.
| 12
|
447 U.S. 255
100 S.Ct. 2138
65 L.Ed.2d 106
Donald W. AGINS et ux., Appellants,v.CITY OF TIBURON.
No. 79-602.
Argued April 15, 1980.
Decided June 10, 1980.
Syllabus
After appellants had acquired five acres of unimproved land in appellee city for residential development, the city was required by California law to prepare a general plan governing land use and the development of open-space land. In response, the city adopted zoning ordinances that placed appellants' property in a zone in which property may be devoted to one-family dwellings, accessory buildings, and open-space uses, with density restrictions permitting appellants to build between one and five single-family residences on their tract. Without having sought approval for development of their tract under the ordinances, appellants brought suit against the city in state court, alleging that the city had taken their property without just compensation in violation of the Fifth and Fourteenth Amendments, and seeking inter alia, a declaration that the zoning ordinances were facially unconstitutional. The city's demurrer claiming that the complaint failed to state a cause of action was sustained by the trial court, and the California Supreme Court affirmed.
Held : The zoning ordinances on their face do not take appellants' property without just compensation. Pp. 260-263.
(a) The ordinances substantially advance the legitimate governmental goal of discouraging premature and unnecessary conversion of open-space land to urban uses and are proper exercises of the city's police power to protect its residents from the ill effects of urbanization. Pp. 261-262.
(b) Appellants will share with other owners the benefits and burdens of the city's exercise of such police power, and in assessing the fairness of the ordinances these benefits must be considered along with any diminution in market value that appellants might suffer. P. 262.
(c) Although the ordinances limit development, they neither prevent the best use of appellants' land nor extinguish a fundamental attribute of ownership. Since at this juncture appellants are free to pursue their reasonable investment expectations by submitting a development plan to the city, it cannot be said that the impact of the ordinances has denied them the "justice and fairness" guaranteed by the Fifth and Fourteenth Amendments. P. 262-263.
1
24 Cal.3d 266, 157 Cal.Rptr. 372, 598 P.2d 25, affirmed.
2
Gideon Kanner, Los Angeles, Cal., for appellants.
3
E. Clement Shute, Jr., San Francisco, Cal., for appellee.
4
[Amicus Curiae Information from page 256-257 intentionally omitted]
5
Mr. Justice POWELL delivered the opinion of the Court.
6
The question in this case is whether municipal zoning ordinances took appellants' property without just compensation in violation of the Fifth and Fourteenth Amendments.
7
* After the appellants acquired five acres of unimproved land in the city of Tiburon, Cal., for residential development, the city was required by state law to prepare a general plan governing both land use and the development of open-space land. Cal.Govt.Code Ann. §§ 65302(a) and (e) (West Supp.1979); see § 65563. In response, the city adopted two ordinances that modified existing zoning requirements. Tiburon, Cal., Ordinances Nos. 123 N.S. and 124 N.S. (June 28, 1973). The zoning ordinances placed the appellants' property in "RPD-1," a Residential Planned Development and Open Space Zone. RPD-1 property may be devoted to one-family dwellings, accessory buildings, and open-space uses. Density restrictions permit the appellants to build between one and five single-family residences on their 5-acre tract. The appellants never have sought approval for development of their land under the zoning ordinances.1
8
The appellants filed a two-part complaint against the city in State Superior Court. The first cause of action sought $2 million in damages for inverse condemnation.2 The second cause of action requested a declaration that the zoning ordinances were facially unconstitutional. The gravamen of both claims was the appellants' assertion that the city had taken their property without just compensation in violation of the Fifth and Fourteenth Amendments. The complaint alleged that land in Tiburon has greater value than any other suburban property in the State of California. App. 3. The ridgelands that appellants own "possess magnificent views of San Francisco Bay and the scenic surrounding areas [and] have the highest market values of all lands" in Tiburon. Id., at 4. Rezoning of the land "forever prevented [its] development for residential use. . . ." Id., at 5. Therefore, the appellants contended, the city had "completely destroyed the value of [appellants'] property for any purpose or use whatsoever. . . ." Id., at 7.3
9
The city demurred, claiming that the complaint failed to state a cause of action. The Superior Court sustained the demurrer,4 and the California Supreme Court affirmed. 24 Cal.3d 266, 157 Cal.Rptr. 372, 598 P.2d 25 (1979). The State Supreme Court first considered the inverse condemnation claim. It held that a landowner who challenges the constitutionality of a zoning ordinance may not "sue in inverse condemnation and thereby transmute an excessive use of the police power into a lawful taking for which compensation in eminent domain must be paid." Id., at 273, 157 Cal.Rptr. at 375, 598 P.2d, at 28. The sole remedies for such a taking, the court concluded, are mandamus and declaratory judgment. Turning therefore to the appellants' claim for declaratory relief, the California Supreme Court held that the zoning ordinances had not deprived the appellants of their property without compensation in violation of the Fifth Amendment.5
10
We noted probable jurisdiction. 444 U.S. 1011, 100 S.Ct. 658, 62 L.Ed.2d 639 (1980). We now affirm the holding that the zoning ordinances on their face does not take the appellants' property without just compensation.6
II
11
The Fifth Amendment guarantees that private property shall not "be taken for public use, without just compensation." The appellants' complaint framed the question as whether a zoning ordinance that prohibits all development of their land effects a taking under the Fifth and Fourteenth Amendments. The California Supreme Court rejected the appellants' characterization of the issue by holding, as a matter of state law, that the terms of the challenged ordinances allow the appellants to construct between one and five residences on their property. The court did not consider whether the zoning ordinances would be unconstitutional if applied to prevent appellants from building five homes. Because the appellants have not submitted a plan for development of their property as the ordinances permit, there is as yet no concrete controversy regarding the application of the specific zoning provisions. See Socialist Labor Party v. Gilligan, 406 U.S. 583, 588, 92 S.Ct. 1716, 1719, 32 L.Ed.2d 317 (1972). See also Goldwater v. Carter, 444 U.S. 996, 997, 100 S.Ct. 533, 534, 62 L.Ed.2d 428 (1979) (POWELL, J., concurring). Thus, the only question properly before us is whether the mere enactment of the zoning ordinances constitutes a taking.
12
The application of a general zoning law to particular property effects a taking if the ordinance does not substantially advance legitimate state interests, see Nectow v. Cambridge, 277 U.S. 183, 188, 48 S.Ct. 447, 448, 72 L.Ed. 842 (1928), or denies an owner economically viable use of his land, see Penn Central Transp. Co. v. New York City, 438 U.S. 104, 138, n. 36, 98 S.Ct. 2646, 2666, 57 L.Ed.2d 631 (1978). The determination that governmental action constitutes a taking is, in essence, a determination that the public at large, rather than a single owner, must bear the burden of an exercise of state power in the public interest. Although no precise rule determines when property has been taken, see Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 S.Ct. 332 (1979), the question necessarily requires a weighing of private and public interests. The seminal decision in Euclid v. Ambler Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926), is illustrative. In that case, the landowner challenged the constitutionality of a municipal ordinance that restricted commercial development of his property. Despite alleged diminution in value of the owner's land, the Court held that the zoning laws were facially constitutional. They bore a substantial relationship to the public welfare, and their enactment inflicted no irreparable injury upon the landowner. Id., at 395-397, 47 S.Ct., at 121.
13
In this case, the zoning ordinances substantially advance legitimate governmental goals. The State of California has determined that the development of local open-space plans will discourage the "premature and unnecessary conversion of open-space land to urban uses." Cal.Govt.Code Ann. § 65561(b) (West Supp.1979).7 The specific zoning regulations at issue are exercises of the city's police power to protect the residents of Tiburon from the ill effects of urbanization.8 Such governmental purposes long have been recognized as legitimate. See Penn Central Transp. Co. v. New York City, supra, 438 U.S., at 129, 98 S.Ct., at 2662; Village of Belle Terre v. Boraas, 416 U.S. 1, 9, 94 S.Ct. 1536, 1541, 39 L.Ed.2d 797 (1974); Euclid v. Ambler Co., supra, 272 U.S., at 394-395, 47 S.Ct., at 120-121.
14
The ordinances place appellants' land in a zone limited to single-family dwellings, accessory buildings, and open-space uses. Construction is not permitted until the builder submits a plan compatible with "adjoining patterns of development and open space." Tiburon, Cal., Ordinance No. 123 N.S. § 2(F). In passing upon a plan, the city also will consider how well the proposed development would preserve the surrounding environment and whether the density of new construction will be offset by adjoining open spaces. Ibid. The zoning ordinances benefit the appellants as well as the public by serving the city's interest in assuring careful and orderly development of residential property with provision for open-space areas. There is no indication that the appellants' 5-acre tract is the only property affected by the ordinances. Appellants therefore will share with other owners the benefits and burdens of the city's exercise of its police power. In assessing the fairness of the zoning ordinances, these benefits must be considered along with any diminution in market value that the appellants might suffer.
15
Although the ordinances limit development, they neither prevent the best use of appellants' land, see United States v. Causby, 328 U.S. 256, 262, and n. 7, 66 S.Ct. 1062, 1066, 90 L.Ed. 1206 (1946), nor extinguish a fundamental attribute of ownership, see Kaiser Aetna v. United States, supra, at 179-180, 100 S.Ct., at 393. The appellants have alleged that they wish to develop the land for residential purposes, that the land is the most expensive suburban property in the State, and that the best possible use of the land is residential. App. 3-4. The California Supreme Court has decided, as a matter of state law, that appellants may be permitted to build as many as five houses on their five acres of prime residential property. At this juncture, the appellants are free to pursue their reasonable investment expectations by submitting a development plan to local officials. Thus, it cannot be said that the impact of general land-use regulations has denied appellants the "justice and fairness" guaranteed by the Fifth and Fourteenth Amendments. SeePenn Central Transp. Co. v. New York City, 438 U.S., at 124, 98 S.Ct., at 2659.9
III
16
The State Supreme Court determined that the appellants could not recover damages for inverse condemnation even if the zoning ordinances constituted a taking. The court stated that only mandamus and declaratory judgment are remedies available to such a landowner. Because no taking has occurred, we need not consider whether a State may limit the remedies available to a person whose land has been taken without just compensation.
17
The judgment of the Supreme Court of California is
18
Affirmed.
1
Shortly after it enacted the ordinances, the city began eminent domain proceedings against the appellants' land. The following year, however, the city abandoned those proceedings, and its complaint was dismissed. The appellants were reimbursed for costs incurred in connection with the action.
2
Inverse condemnation should be distinguished from eminent domain. Eminent domain refers to a legal proceeding in which a government asserts its authority to condemn property. United States v. Clarke, 445 U.S. 253, 255-258, 100 S.Ct. 1127, 1129-1130, 63 L.Ed.2d 373 (1980). Inverse condemnation is "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." Id., at 257, 100 S.Ct. at 1130.
3
The appellants also contended that the city's aborted attempt to acquire the land through eminent domain had destroyed the use of the land during the pendency of the condemnation proceedings. App. 10.
4
The State Superior Court granted the appellants leave to amend the cause of action seeking a declaratory judgment, but the appellants did not avail themselves of that opportunity.
5
The California Supreme Court also rejected appellants' argument that the institution and abandonment of eminent domain proceedings themselves constituted a taking. The court found that the city had acted reasonably and that general municipal planning decisions do not violate the Fifth Amendment.
6
The appellants also contend that the state courts erred by sustaining the demurrer despite their uncontroverted allegations that the zoning ordinances would "forever preven[t] . . . development for residential use," id., at 5, and "completely destro[y] the value of [appellant's] property for any purpose or use whatsoever . . .," id., at 7. The California Supreme Court compared the express terms of the zoning ordinances with the factual allegations of the complaint. The terms of the ordinances permit construction of one to five residences on the appellants' 5-acre tract. The court therefore rejected the contention that the ordinances prevented all use of the land. Under California practice, allegations in a complaint are taken to be true unless "contrary to law or to a fact of which a court may take judicial notice." Dale v. City of Mountain View, 55 Cal.App.3d 101, 105, 127 Cal.Rptr. 520, 522 (1976); see Martinez v. Socoma Cos., 11 Cal.3d 394, 399-400, 113 Cal.Rptr. 585, 588, 521 P.2d 841, 844 (1974). California courts may take judicial notice of municipal ordinances. Cal.Evid.Code Ann. § 452(b) (West 1966). In this case, the State Supreme Court merely rejected allegations inconsistent with the explicit terms of the ordinance under review. The appellants' objection to the State Supreme Court's application of state law does not raise a federal question appropriate for review by this Court. See Patterson v. Colorado ex rel. Attorney General, 205 U.S. 454, 461, 27 S.Ct. 556, 557, 51 L.Ed. 879 (1907).
7
The State also recognizes that the preservation of open space is necessary "for the assurance of the continued availability of land for the production of food and fiber, for the enjoyment of scenic beauty, for recreation and for the use of natural resources." Cal.Govt.Code Ann. § 65561(a) (West Supp.1979); see Tiburon, Cal., Ordinance No. 124 N.S. §§ 1(f) and (h).
8
The City Council of Tiburon found that "[i]t is in the public interest to avoid unnecessary conversion of open space land to strictly urban uses, thereby protecting against the resultant adverse impacts, such as air, noise and water pollution, traffic congestion, destruction of scenic beauty, disturbance of the ecology and environment, hazards related to geology, fire and flood, and other demonstrated consequences of urban sprawl." Id., § 1(c).
9
Appellants also claim that the city's precondemnation activities constitute a taking. See nn. 1, 3, and 5, supra. The State Supreme Court correctly rejected the contention that the municipality's good-faith planning activities, which did not result in successful prosecution of an eminent domain claim, so burdened the appellants' enjoyment of their property as to constitute a taking. See also City of Walnut Creek v. Leadership Housing Systems, Inc., 73 Cal.App.3d 611, 620-624, 140 Cal.Rptr. 690, 695-697 (1977). Even if the appellants' ability to sell their property was limited during the pendency of the condemnation proceeding, the appellants were free to sell or develop their property when the proceedings ended. Mere fluctuations in value during the process of governmental decisionmaking, absent extraordinary delay, are "incidents of ownership. They cannot be considered as a 'taking' in the constitutional sense." Danforth v. United States, 308 U.S. 271, 285, 60 S.Ct. 231, 236, 84 L.Ed. 240 (1939). See Thomas W. Garland, Inc. v. City of St. Louis, 596 F.2d 784, 787 (CA8), cert. denied, 444 U.S. 899, 100 S.Ct. 208, 62 L.Ed.2d 135 (1979); Reservation Eleven Associates v. District of Columbia, 136 U.S.App.D.C. 311, 315-316, 420 F.2d 153, 157-158 (1969); Virgin Islands v. 50.05 Acres of Land, 185 F.Supp. 495, 498 (V.I.1960); 2 J. Sackman & P. Rohan, Nichols' Law of Eminent Domain § 6.13[3] (3d ed. 1979).
| 78
|
447 U.S. 207
100 S.Ct. 2109
65 L.Ed.2d 66
EXXON CORPORATION, Appellant,v.WISCONSIN DEPARTMENT OF REVENUE.
No. 79-509.
Argued March 18, 1980.
Decided June 10, 1980.
Syllabus
Appellant, a vertically integrated petroleum company doing business in several States, was organized, during the years in question in this case, into three levels of management, one of which was responsible for directing the operating activities of the company's functional departments. Transfers of products and supplies among the three major functional departments—Exploration and Production, Refining, and Marketing—were theoretically based on competitive wholesale prices. Appellant had no exploration and production or refining operations in Wisconsin and carried out only marketing in that State. During the years in question, appellant filed income tax returns in Wisconsin using a separate geographical system of accounting which reflected only the Wisconsin marketing operations and showed a loss for each year, thus resulting in no taxes being due, but appellee Wisconsin Department of Revenue, upon auditing the returns, assessed taxes, based on appellant's total income, pursuant to Wisconsin's tax apportionment statute. Ultimately, after appellant's application for abatement had proceeded through administrative and judicial review, the Wisconsin Supreme Court held that appellant's Wisconsin marketing operations were an integral part of one unitary business and that therefore its total corporate income was subject to the statutory apportionment formula. The court further held that situs income derived from crude oil produced by appellant outside Wisconsin and transferred to its own refineries and thus part of the unitary stream of income was apportionable under the Wisconsin statute despite appellant's separate functional accounting system, and that taxation of such situs income did not impermissibly burden interstate commerce.
Held:
1. The Due Process Clause of the Fourteenth Amendment did not prevent Wisconsin from applying its statutory apportionment formula to appellant's total income. Pp. 219-225.
(a) The Due Process Clause imposes two requirements for state taxation of the income of a corporation operating in interstate commerce: a "minimal connection" or "nexus" between the corporation's interstate activities and the taxing State, and "a rational relationship between the income attributed to the State and the intrastate values of the enterprise." Mobil Oil Corp. v. Commissioner of Taxes, 445 U.S. 425, 436-437, 100 S.Ct. 1223, 1231, 63 L.Ed.2d 510. Such a nexus is established if the corporation "avails itself of the 'substantial privilege of carrying on business' within the State." Id., at 437, 100 S.Ct., at 1231. Here, appellant concededly avails itself of that privilege through its marketing operations within Wisconsin. Pp. 219-220.
(b) Appellant's use of separate functional accounting by which it shows what portion of its income is derived from exploration and production and from refining—functions occurring outside Wisconsin—does not demonstrate that application of the Wisconsin apportionment statute violated the Due Process Clause. A company's internal accounting techniques are not binding on a State for tax purposes and are not required to be accepted as a matter of constitutional law for such purposes. Pp. 220-223.
(c) The "linchpin of apportionability" for state income taxation of an interstate enterprise is the "unitary-business principle." Mobil Oil Corp. v. Commissioner of Taxes, supra, at 439, 100 S.Ct. at 1232. If a company is a unitary business, then a State may apply an apportionment formula to the taxpayer's total income in order to obtain a "rough approximation" of the corporate income that is "reasonably related to the activities conducted within the taxing State." Moorman Mfg. Co. v. Bair, 437 U.S. 267, 273, 98 S.Ct. 2340, 2344, 57 L.Ed.2d 197. Here, the evidence fully supports the conclusion that appellant's marketing operations in Wisconsin were an integral part of such a unitary business. And appellant's use of separate functional accounting, and its decision for purposes of corporate accountability to assign wholesale market values to interdepartmental transfers of products and supplies, do not defeat the clear and sufficient nexus between appellant's interstate activities and the taxing State. Pp. 223-225.
2. Similarly, the Due Process Clause did not preclude Wisconsin from subjecting to taxation under its statutory apportionment formula appellant's income derived from extraction of oil and gas located outside the State which was used by the Refining Department and the State was not required to allocate such income to the situs State. There was a unitary stream of income, of which the income derived from internal transfers of raw materials from exploration and production to refining was a part. This was a sufficient nexus to satisfy the Due Process Clause, and there was also the necessary "rational relationship" between the income attributed to the State by the apportionment formula and the intrastate value of the business. Pp. 225-227.
3. The Commerce Clause did not require Wisconsin to allocate all income derived from appellant's exploration and production function to the situs State rather than include such income in the apportionment formula. The Wisconsin taxing statute, as applied, did not subject interstate business to an unfair burden of multiple taxation. Mobil Oil Corp. v. Commissioner of Taxes, supra. The State sought to tax income, not property ownership, and it was the risk of multiple taxation that was being asserted, actual multiple taxation not having been shown. The Commerce Clause did not require that any income which appellant was able to separate through accounting methods and attribute to exploration and production of crude oil and gas be allocated to the States in which those production centers were located. The geographic location of such raw materials did not alter the fact that such income was part of the unitary business of appellant's interstate enterprise and was subject to fair apportionment among all States to which there was a sufficient nexus with the interstate activities. Pp. 227-230.
90 Wis.2d 700, 281 N.W.2d 94, affirmed.
Thomas G. Ragatz, Madison, Wis., for appellant.
Gerald S. Wilcox, Madison, Wis., for appellee.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
This case raises three important questions regarding state taxation of the income of a vertically integrated corporation doing business in several States. The first issue is whether the Due Process Clause of the Fourteenth Amendment prevents a State from applying its statutory apportionment formula to the total corporate income of the taxpayer when the taxpayer's functional accounting separates its income into the three distinct categories of marketing, exploration and production, and refining, and when the taxpayer performs only marketing operations within the State. The second issue is whether the Due Process Clause permits a State to subject to taxation under its statutory apportionment formula income derived from the extraction of oil and gas located outside the State which is used by the refining department of the taxpayer, or whether the State is required to allocate such income to the situs State. The third issue is whether the Commerce Clause requires such an allocation to the situs State.
2
* A.
3
Appellant, Exxon Corp.,1 a vertically integrated petroleum company, is organized under the laws of Delaware, with its general offices located in Houston, Tex. During the years in question here, 1965 through 1968, appellant's corporate organization structure consisted of three parts: Corporate Management, Coordination and Services Management, and Operations Management.
4
Corporate Management, which was the highest order of management for the entire corporation, consisted of the board of directors, the executive committee, the chairman of the board (who was also the chief executive officer), the president, and various directors-in-charge who were members of the board of directors. Coordination and Services Management was composed of corporate staff departments which provided specialized corporate services. These services included long-range planning for the company, maximization of overall company operations, development of financial policy and procedures, financing of corporate activities, maintenance of the accounting system, legal advice, public relations, labor relations, purchase and sale of raw crude oil and raw materials, and coordination between the refining and other operating functions "so as to obtain an optimum short range operating program." App. 189; id., at 187-192.2
5
The third level of management within the corporation was Operations Management, which was responsible for directing the operating activities of the functional departments of the company. These functional departments were Exploration and Production, Refining, Marketing, Marine, Coal and Shale Oil, Minerals, and Land Management. Each functional department was organized as a separate unit operating independently of the other operating segments, and each department had its own separate management responsible for the proper conduct of the operation. These departments were treated as separate investment centers by the company, and a profit was determined for each functional department.
6
At all relevant times each operating department was independently responsible for its performance. This arrangement permitted centralized management to evaluate each operation separately. Each department was therefore required to compete with the other departments for available investment funds, and with other members of the industry performing the same function for the company's raw materials and refined products. There was no requirement that appellant's crude oil go to its own refineries or that the refined products sold through marketing be produced from appellant's crude oil.
7
Transfers of products and raw materials among the three major functional departments—Exploration and Production, Refining, and Marketing—were theoretically based on competitive wholesale market prices. For purposes of separate functional accounting, transfers of crude oil from Exploration and Production to Refining were treated as sales at posted industry prices; transfers of products from Refining to Marketing were also based on wholesale market prices. If no readily available wholesale market value existed for a product, then representatives of the two departments involved would negotiate as to the appropriate internal transfer value.
8
Appellant had no exploration and production operations or refining operations in Wisconsin; the only activity carried out in that State was marketing. The Wisconsin marketing district reported administratively to the central region office in Chicago, which in turn was responsible to the Marketing Department headquarters in Houston. App. 217. The motor oils, greases, and other packaged materials sold by appellant in Wisconsin during this period were manufactured outside the State and then shipped into that State from central warehouse facilities in Chicago. Tires, batteries, and accessories were centrally purchased through the Houston office and then shipped into Wisconsin for resale. The gasoline sold in Wisconsin was not produced by Exxon but rather was obtained from Pure Oil Co. in Illinois under an exchange agreement, permitting Exxon to reduce the cost of transporting the gasoline from its source to the retail outlets. This exchange agreement was negotiated by the Supply and Refining Departments. Additives were put into the Pure Oil gasoline in order to make the final product conform to uniform Exxon standards.
9
Exxon used a nationwide uniform credit card system, which was administered out of the national headquarters in Houston. Uniform packaging and brand names were used, and the overall plan for distribution of products was developed in Houston. Promotional display equipment was designed by the engineering staff at the marketing headquarters.
B
10
Because appellant marketed its products in Wisconsin during the calendar years 1965 through 1968, it was required to file corporate income and franchise tax returns in that State for those years. Exxon prepared the returns based on separate state accounting methods, reflecting only the Wisconsin marketing operation. The returns showed losses in the amounts of $821,320 for 1965, $1,159,830 for 1966, $1,026,224 for 1967, and $919,575 for 1968. Accordingly, no tax was shown as being due for any of those years.
11
Appellee Wisconsin Department of Revenue audited Exxon for the years in question, and on June 25, 1971, the Department sent the taxpayer a notice of assessment of additional income and franchise tax. The Department concluded that pursuant to Wis.Stat. § 71.07(2) (1967)3 the Wisconsin marketing operation was "an integral part of a unitary business," and therefore Exxon's taxable income in Wisconsin must be determined by application of the State's apportionment formula to the taxpayer's total income. The Department's calculation revealed an additional taxable income of $4,532,155 for the period 1965 through 1968. Additional taxes in the amount of $316,470.85 were assessed against appellant.4
12
Exxon filed an application for abatement in July 1971, which the Department denied on November 30, 1971. Appellant then filed a petition for review with the Wisconsin Tax Appeals Commission. The Commission agreed with the Department that Exxon's separate geographical accounting did not accurately reflect its Wisconsin income for tax purposes. CCH Wis. Tax Rep. ¶ 201-223, p. 10,410 (1976). However, the Commission concluded that appellant's three main functional operating departments—Exploration and Production, Refining, and Marketing—were separate unitary businesses. Id., at 10,409. According to the Commission, Exxon's marketing operation in Wisconsin was an integral part of its overall marketing function, but was not an integral part of exploration and production function nor its refining function. Id., at 10,411. The Commission found that the statutory apportionment formula as applied by the Department "had the effect of imposing a tax on the [appellant's] exploration and on its refining net income, all of which was derived solely from operations outside the State of Wisconsin and which had no integral relationship to the [appellant's] marketing operations within Wisconsin." Id., at 10,410. The Commission also found that taxation by Wisconsin of Exxon's net income from its exploration and production function and its refining function would subject appellant "to multiple-state taxation as to such income." Ibid. The Commission therefore concluded that the Department had erred in its application of the apportionment formula since it had included "extraterritorial income," but that "apportioning income earned by the [appellant] from its marketing function within and without the State of Wisconsin, would be proper. . . ." Id., at 10,411.
13
The Circuit Court for Dane County set aside some of the factual findings and conclusions of law of the Tax Appeals Commission. CCH Wis. Tax Rep. ¶ 201-373, pp. 10,501-10,504 (1977). In particular, the Circuit Court held that the Commission's finding that Exxon's three main functional operating departments were separate unitary businesses was an erroneous conclusion of law. Id., at 10,502. Similarly, the court set aside the findings that there was no economic dependence between the Wisconsin marketing operations and Exxon's exploration and production function or its refining function. Ibid. Instead the court held that "[t]he Wisconsin operation contributed sales to [Exxon's] business of producing, refining and marketing petroleum products. This contribution was sufficient alone in the opinion of this Court to make [Exxon's] business a unitary one." Ibid. Accordingly, appellant's business during the relevant years "considered as a whole both within and without Wisconsin constituted a unitary business" within the meaning of the apportionment statute. Ibid.
14
The Circuit Court concluded, however, that another statute, Wis.Stat. § 71.07(1) (1967),5 excluded from income subject to the apportionment formula all situs income derived from appellant's oil and gas wells. CCH Wis.Tax Rep. ¶ 201-373, at 10,502-10,504. The Department had used a so-called "barrel formula" to separate two sets of income figures: income derived from the sale of crude oil to third parties, and income derived from crude oil produced by Exxon and transferred to its own refineries. The former was allocated to the situs State and excluded from Wisconsin taxable income, and the latter was included in the apportionment formula. A similar division was made of the income derived from appellant's gas production. The Circuit Court held that both sets of income were derived from the oil and gas wells and should be allocated to the situs State under the statute. The court noted that "there is no question but that the department's inclusion of [Exxon's] income derived from crude oil and gas produced and not sold to third parties by [Exxon's] production department resulted in double taxation of such income."6 Id., at 10,503.
15
The Wisconsin Supreme Court affirmed in part and reversed in part. 90 Wis.2d 700, 281 N.W.2d 94 (1979). That court concluded that the test for what constituted a unitary business was " 'whether or not the operation of the portion of the business within the state is dependent upon or contributory to the operation of the business outside the state. If there is such a relationship the business is unitary.' " Id., at 711, 281 N.W.2d, at 100, quoting G. Altman & F. Keesling, Allocation of Income in State Taxation 101 (2d ed. 1950). Reviewing the organizational structure and business operations of Exxon, the court reasoned that Exxon's production and refining functions were dependent on its marketing operation to provide an outlet for its products, and Wisconsin was a part of that marketing system. In a high capital investment industry such as the petroleum industry, the court found, the existence of a stable marketing system was important for the full utilization of refining capacity. 90 Wis.2d, at 718, 281 N.W.2d, at 104. Accordingly, the court concluded that Exxon's Wisconsin marketing operations were an integral part of one unitary business and therefore its total corporate income was subject to the statutory apportionment formula. Id., at 721-722, 281 N.W.2d, at 105-106.
16
The Wisconsin Supreme Court disagreed with the Circuit Court on the issue of situs income. While the extraction and production of oil and gas constituted "mining" within the meaning of Wis.Stat. § 71.07(1) (1967), 90 Wis.2d, at 723, 281 N.W.2d, at 106, the court agreed with the Department that situs income which is part of the unitary stream of income is nonetheless apportionable under the statute, while situs income which does not enter the unitary stream of income is nonapportionable and must be excluded from the formula. Id., at 723-724, 281 N.W.2d, at 106-107. The Wisconsin Supreme Court rejected appellant's contention that its separate functional accounting proved that its exploration and production income was earned totally outside Wisconsin, noting that "the idea of separate functional accounting seems to be incompatible with the 'very essence of formulary apportionment, namely, that where there are integrated, interdependent steps in the economic process carried on by a business enterprise, there is no logical or viable method for accurately separating out the profit attributable to one step in the economic process from other steps.' " Id., at 726, 281 N.W.2d, at 109, quoting J. Hellerstein, State and Local Taxation 400 (3d ed. 1969). The court concluded that the State was acting within constitutional limitations despite appellant's evidence based on separate functional accounting.
17
The court also rejected Exxon's argument that the sources of income derived from exploration and production were all outside of Wisconsin and therefore could not be taxed in that State without impermissibly burdening interstate commerce. According to the court, Wisconsin was taxing only its "fair share" of appellant's income, there was a substantial nexus between appellant and the State, the tax was not claimed to discriminate between interstate and intrastate commerce, and the tax was fairly related to services provided by Wisconsin. 90 Wis.2d, at 729-731, 281 N.W.2d, at 110-111.
18
Because of the importance of the issues raised, we noted probable jurisdiction, 444 U.S. 961, 100 S.Ct. 446, 62 L.Ed.2d 373 (1979). We now affirm.
II
19
We recently set forth at some length the basic principles for state taxation of the income of a business operating in interstate commerce, see Mobil Oil Corp. v. Commissioner of Taxes, 445 U.S. 425, 436-442, 100 S.Ct. 1223, 1231-1234, 63 L.Ed.2d 510 (1980), and need not repeat them here in great detail. It has long been settled that "the 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. 450, 460, 79 S.Ct. 357, 363, 3 L.Ed.2d 421 (1959); Mobil Oil Corp. v. Commissioner of Taxes, supra, at 436, 100 S.Ct., at 1231. See generally Underwood Typewriter Co. v. Chamberlain, 254 U.S. 113, 41 S.Ct. 45, 65 L.Ed. 165 (1920); Hans Rees' Sons v. North Carolina ex rel. Maxwell, 283 U.S. 123, 51 S.Ct. 385, 75 L.Ed. 879 (1931); Butler Bros. v. McColgan, 315 U.S. 501, 62 S.Ct. 701, 86 L.Ed. 991 (1942); Moorman Mfg. Co. v. Bair, 437 U.S. 267, 98 S.Ct. 2340, 57 L.Ed.2d 197 (1978). See also Bass, Ratcliff & Gretton, Ltd. v. State Tax Comm'n, 266 U.S. 271, 45 S.Ct. 82, 69 L.Ed. 282 (1924). The Due Process Clause of the Fourteenth Amendment imposes two requirements for such state taxation: a "minimal connection" or "nexus" 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." Mobil Oil Corp. v. Commissioner of Taxes, supra, at 436, 437, 100 S.Ct., at 1231. See Moorman Mfg. Co. v. Bair, supra, 437 U.S., at 272-273, 98 S.Ct., at 2344; 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. State Tax Comm'n, 390 U.S. 317, 325, 88 S.Ct. 995, 1000, 19 L.Ed.2d 1201 (1968). The tax cannot be "out of all appropriate proportion to the business transacted by the appellant in that State." Hans Rees' Sons v. North Carolina ex rel. Maxwell, supra, 283 U.S., at 135, 51 S.Ct., at 389.
20
The nexus is established if the corporation "avails itself of the 'substantial privilege of carrying on business' within the State." Mobil Oil Corp. v. Commissioner of Taxes, supra, at 437, 100 S.Ct., at 1231, quoting Wisconsin v. J. C. Penney Co., 311 U.S. 435, 444-445, 61 S.Ct. 246, 249-50, 85 L.Ed. 267 (1940). In the present case, Exxon does not dispute that it avails itself of that privilege through its marketing operations within Wisconsin. Appellant contends, however, that this nexus is insufficient to permit inclusion of all of Exxon's corporate income within the apportionment formula. While appellant appears to concede that Wisconsin may properly apply its apportionment statute to Exxon's Marketing Department income as established by its separate functional accounting, see Brief for Appellant 18, 29, 33; Reply Brief for Appellant 2-3, it argues that it has demonstrated through its accounting method what portion of its income is derived from exploration and production and from refining functions which do not occur in Wisconsin and of which the marketing operation in that State is not an integral part.
21
Appellant relies heavily on Moorman Mfg. Co. v. Bair, supra. The principal issue in that case was whether the single-factor sales formula used by Iowa to apportion for income tax purposes the income of an interstate business was prohibited by either the Due Process Clause or the Commerce Clause. In the course of that decision we noted that "[a]ppellant does not suggest that it has shown that a significant portion of the income attributed to Iowa in fact was generated by its Illinois operations; the record does not contain any separate accounting analysis showing what portion of appellant's profits was attributable to sales, to manufacturing, or to any other phase of the company's operations." 437 U.S., at 272, 98 S.Ct., at 2344. See also id., at 275, n. 9, 98 S.Ct. at 2344. Exxon contends that Moorman sanctions the use of separate functional accounting in order to prove the extraterritorial reach of a state tax statute, and that its accounting in this case demonstrates that the Wisconsin Supreme Court's application of the state apportionment statute violates the Due Process Clause.
22
We cannot agree. As this Court has on several occasions recognized, a company's internal accounting techniques are not binding on a State for tax purposes. For example, in Butler Bros. v. McColgan, supra, an interstate business challenged the application of the California apportionment statute. The company was engaged in the wholesale dry goods and general merchandise business as a middleman, and it had distributing houses in seven States, including one in California. Each house maintained stocks of goods, had a cognizable territory, had its own sales force, did its own solicitation of sales, made its own credit and collection arrangements, and kept its own books. There was, however, a central buying division that was able to purchase goods for resale at a lower price. The company used "recognized accounting principles," 315 U.S., at 505, 62 S.Ct., at 703, to allocate all costs and charges to each house, with certain centralized expenses allocated among the houses. Based on that "separate accounting system," id., at 507, 62 S.Ct., at 704, the business asserted there was no net income in California.
23
We concluded that California could constitutionally apply its apportionment formula to the company's total net income to establish taxable income, rather than being limited to the income shown by the taxpayer's accounting methods to be attributable to the one house in that State. The company had the "distinct burden of showing by 'clear and cogent evidence' that it results in extraterritorial values being taxed," ibid., quoting Norfolk & Western R. Co. v. North Carolina ex rel. Maxwell, 297 U.S. 682, 688, 62 S.Ct. 701, 704, 80 L.Ed. 977 (1936), and the taxpayer's accounting evidence was insufficient to meet that burden.
24
"[W]e need not impeach the integrity of that accounting system to say that it does not prove appellant's assertion that extraterritorial values are being taxed. Accounting practices for income statements may vary considerably according to the problem at hand. . . . A particular accounting system, though useful or necessary as a business aid, may not fit the different requirements when a State seeks to tax values created by business within its borders. . . . That may be due to the fact, as stated by Mr. Justice Brandeis in Underwood Typewriter Co. v. Chamberlain, 254 U.S. 113, 121, 41 S.Ct. 45, 47, 65 L.Ed. 165, that a State in attempting to place upon a business extending into several States 'its fair share of the burden of taxation' is 'faced with the impossibility of allocating specifically the profits earned by the processes conducted within its borders.' Furthermore, the particular system used may not reveal the facts basic to the State's determination. Bass, Ratcliff & Gretton, Ltd. v. Tax Commission, supra, p. 283, 45 S.Ct., at 84. In either aspect of the matter, the results of the accounting system employed by appellant do not impeach the validity or propriety of the formula which California has applied here." 315 U.S., at 507-508, 62 S.Ct., at 704.
25
Similarly, in Mobil Oil Corp. v. Commissioner of Taxes, we 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." 445 U.S., at 438, 100 S.Ct., at 1232. Since such factors 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." Ibid.7
26
The dicta in Moorman upon which appellant relies are not incompatible with these principles. In Moorman we simply noted that the taxpayer had made no showing that its Illinois operations were responsible for profits from sales in Iowa. This hardly leads to the conclusion, urged by Exxon here, that a taxpayer's separate functional accounting, if it purports to separate out income from various aspects of the business, must be accepted as a matter of constitutional law for state tax purposes. Such evidence may be helpful, but Moorman in no sense renders such accounting conclusive.8
27
The "linchpin of apportionability" for state income taxation of an interstate enterprise is the "unitary-business principle." Mobil Oil Corp. v. Commissioner of Taxes, supra, at 439, 100 S.Ct., at 1232. If a company is a unitary business, then a State may apply an apportionment formula to the taxpayer's total income in order to obtain a "rough approximation" of the corporate income that is "reasonably related to the activities conducted within the taxing State." Moorman Mfg. Co. v. Bair, 437 U.S., at 273, 98 S.Ct., at 2341. See also Underwood Typewriter Co. v. Chamberlain, 254 U.S., at 120, 41 S.Ct., at 46. In order to exclude certain income from the apportionment formula, the company must prove that "the income was earned in the course of activities unrelated to the sale of petroleum products in that State." Mobil Oil Corp. v. Commissioner of Taxes, supra, at 439, 100 S.Ct., at 1232. The court looks to the "underlying economic realities of a unitary business," and the income must derive from "unrelated business activity" which constitutes a "discrete business enterprise," 455 U.S., at 441, 442, 439, 100 S.Ct., at 1233, 1234, 1232.
28
We agree with the Wisconsin Supreme Court that Exxon is such a unitary business and that Exxon has not carried its burden of showing that its functional departments are "discrete business enterprises" whose income is beyond the apportionment statute of the State. While Exxon may treat its operational departments as independent profit centers, it is nonetheless true that this case involves a highly integrated business which benefits from an umbrella of centralized management and controlled interaction.
29
As has already been noted, Exxon's Coordination and Services Management provided many essential corporate services for the entire company, including the coordination of the refining and other operational functions "to obtain an optimum short range operating program." App. 189. Many of the items sold by appellant in Wisconsin were obtained through a centralized purchasing office in Houston whose obvious purpose was to increase overall corporate profits through bulk purchases and efficient allocation of supplies among retailers. Cf.Butler Bros. v. McColgan, 315 U.S., at 508, 62 S.Ct. at 705 ("the operation of the central buying division alone demonstrates that functionally the various branches are closely integrated"). Even the gasoline sold in Wisconsin was available only because of an exchange agreement with another company arranged by the Supply Department, part of Coordination and Services Management, and the Refining Department. Similarly, sales were facilitated through the use of a uniform credit card system, uniform packaging, brand names, and promotional displays, all run from the national headquarters.
30
The important link among the three main operating departments of appellant was stated most clearly in the testimony of an Exxon senior vice president. This official testified that:
31
"[I]n any industry which is highly capital intensive, such as the petroleum industry, the fixed operating costs are highly relative to total operating costs, and for this reason the profitability of such an industry is very sensitive and directly related to the full utilization of the capacity of the facilities.
32
"So, in the case of the petroleum industry it is—where you have high capital investments in refineries, the existence of an assured supply of raw materials and crude is important and the assured and stable outlet for products is important, and therefore when there are—when these segments are under a single corporate entity, it provides for some assurance that the risk of disruptions in refining operations are minimized due to supply and demand imbalances that may occur from time to time.
33
* * * * *
34
"[T]he placing individual segments under one corporate entity does provide greater profits stability for the reason that . . . nonparallel and nonmutual economic factors which may affect one department may be offset by the factors existing in another department." App. 224-225.
35
The evidence fully supports the conclusion of the court below that appellant's marketing operation in Wisconsin is an integral part of a unitary business. Exxon's use of separate functional accounting, and its decision for purposes of corporate accountability to assign wholesale market values to interdepartmental transfers of products and supplies, does not defeat the clear and sufficient nexus between appellant's interstate activities and the taxing State.
36
The same analysis disposes of the other prong of Exxon's Due Process Clause attack on the Wisconsin statute. Appellant contends that at least the income derived from exploration and production must be treated as situs income and allocated to the situs State rather than included in the apportionment statute.9 Appellee did in fact exclude that income derived from the sale of crude oil and gas at the wellhead to third parties. However, the Department of Revenue concluded that the income characterized through appellant's separate functional accounting as income derived from intracorporate transfer of crude oil and gas for refining was part of the "unitary stream" of Exxon's income and apportionable.
37
We agree with appellee. As previously noted, appellant's internal accounting system is not binding on the State for tax purposes. The decision to assign wholesale market values to internal transfers of raw materials for corporate accountability does not change the unitary nature of appellant's business. An effective marketing operation is important to assure full or nearly full use of the refining capacities. Obviously the quality of the refined product affects the marketing operation. And the success of the Exploration and Production Department helps to keep the refineries operating at a capacity which is cost-efficient. There is indeed a unitary stream of income, of which the income derived from internal transfers of raw materials from exploration and production to refining is a part.10 There is a sufficient nexus to satisfy the Due Process Clause.
38
There is also the necessary "rational relationship" between the income attributed to the State by the apportionment formula and the intrastate value of the business. Exxon had a total of $60,073,293, in sales income from its Wisconsin operation in the years 1965 through 1968. App. 799. The Wisconsin assessed taxable income for the four years in question represented 0.22 percent of total company net income adjusted to the Wisconsin basis, and Exxon's Wisconsin sales for those years represented 0.41 percent of total company sales. 90 Wis.2d, at 729, 281 N.W.2d, at 110. This is hardly a case where the State has used its formula to attribute income "out of all appropriate proportion to the business transacted . . . in that State," Hans Rees' Sons v. North Carolina ex rel. Maxwell, 283 U.S., at 135, 51 S.Ct., at 389, and application of the formula has not "led to a grossly distorted result," Norfolk & Western R. Co. v. State Tax Comm'n, 390 U.S., at 326, 88 S.Ct., at 1002. See also Moorman Mfg. Co. v. Bair, 437 U.S., at 274, 98 S.Ct., at 2345. That Exxon's Wisconsin marketing operation, through the use of separate geographic accounting, failed to show a net profit for the years in question does not change this rational relationship. Butler Bros. v. McColgan, 315 U.S., at 507-508, 62 S.Ct., at 704. Bass, Ratcliff & Gretton, Ltd. v. State Tax Comm'n, 266 U.S., at 284, 45 S.Ct., at 85. Cf. Underwood Typewriter Co. v. Chamberlain, 254 U.S., at 120, 41 S.Ct., at 46. The Wisconsin Supreme Court's application of Wis.Stat. § 71.07(1) and (2) (1967) in this case does not violate the Due Process Clause of the Fourteenth Amendment.
III
39
Appellant also contends that the Commerce Clause requires allocation of all income derived from its exploration and production function to the situs State rather than inclusion of such income in the apportionment formula.11 The Court must therefore examine the "practical effect" of the 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.' " Mobil Oil Corp. v. Commissioner of Taxes, 445 U.S., at 443, 100 S.Ct., at 1234, quoting Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279, 97 S.Ct. 1076, 1079, 51 L.Ed.2d 326 (1977). See also Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 444-445, 99 S.Ct. 1813, 1819-20, 60 L.Ed.2d 336 (1979); Washington Revenue Dept. v. Association of Wash. Stevedoring Cos., 435 U.S. 734, 750, 98 S.Ct. 1388, 1399, 55 L.Ed.2d 682 (1978).
40
It has already been demonstrated that the necessary nexus is present and that the tax is fairly apportioned. Similarly, appellant does not contest the conclusion that the tax is fairly related to the services rendered by Wisconsin, which include police and fire protection, the benefit of a trained work force, and "the advantages of a civilized society." Japan Line, Ltd. v. County of Los Angeles, supra, at 445, 99 S.Ct., at 1820. Exxon asserts, however, that Wisconsin's taxing statute, as applied, subjects interstate business to an unfair burden of multiple taxation.
41
We were faced with a very similar argument in Mobil Oil Corp. v. Commissioner of Taxes, supra, and we reject it now for the same reasons we rejected it in that case. Here, as in that prior case, the State seeks to tax income, not property ownership. Similarly, it is the risk of multiple taxation that is being asserted; actual multiple taxation has not been shown.12 While of course "the constitutionality of a [Wisconsins tax should not depend on the vagaries of [another State's] tax policy," nonetheless "the absence of any existing duplicative tax does alter the nature of appellant's claim." Id., at 444, 100 S.Ct., at 1235. Exxon asserts, in essence, that the Commerce Clause requires allocation of exploration and production income to the situs State rather than apportionment among the States, regardless of the situs State's actual tax policy. Cf. ibid. (dividend income).
42
We do not agree. As was the case with income from intangibles, there is nothing "talismanic" about the concept of situs for income from exploration and production of crude oil and gas. Id., at 445, 100 S.Ct., at 1235. Presumably, the States in which appellant's crude oil and gas production is located are permitted to tax in some manner the income derived from that production, there being an obvious nexus between the taxpayer and those States. However, "there is no reason in theory why that power should be exclusive when the [exploration and production income as distinguished through separate functional accounting] reflect[s] 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." Id., at 445-446, 100 S.Ct., at 1236.
43
In short, the Commerce Clause does not require that any income which a taxpayer is able to separate through account-
Page 230
1
The original taxpayer during the years in question was Humble Oil and Refining Co., a wholly owned subsidiary of Standard Oil Co. of New Jersey. In 1956, Standard Oil Co. of New Jersey organized as a wholly owned subsidiary Pate Oil Co., a Delaware corporation. Pate acquired all of the assets and liabilities of Saxon Corp., a Wisconsin company which marketed petroleum products and accessory products in that State. Pate continued those marketing operations. In 1960, Pate was merged into Humble Oil and Refining Co., and the Wisconsin marketing operations were continued by that company under the brand name "Enco." In early 1973, Humble was merged into Standard Oil Co. of New Jersey, and the corporate name was changed to Exxon Corp. Exxon is the legal successor to Humble Oil and Refining Co. The taxpayer will be referred to throughout this opinion by its present name, Exxon.
2
The corporate staff departments which were part of Coordination and Services Management, and which were not considered profit centers for accounting purposes by appellant, included: Corporate Planning Department, Secretary's Department, Supply Department, Treasury Department, Comptroller's Department, Tax Department, Law Department, Public Relations Department, Government Relations Department, Employee Relations Department, General Services Department, Medical Department, and Aviation Department. App. 189-192.
3
Wisconsin Stat. § 71.07(2) (1967) during this period provided in relevant part:
"Persons engaged in business within and without the state shall be taxed only on such income as is derived from business transacted and property located within the state. The amount of such income attributable to Wisconsin may be determined by an allocation and separate accounting thereof, when the business of such person within the state is not an integral part of a unitary business, provided, however, that the department of taxation may permit an allocation and separate accounting in any case in which it is satisfied that the use of such method will properly reflect the income taxable by this state. In all cases in which allocation and separate accounting is not permissible, the determination shall be made in the following manner: There shall first be deducted from the total net income of the taxpayer such part thereof (less related expenses, if any) as follows the situs of the property . . . . The remaining net income shall be apportioned to Wisconsin on the basis of the ratio obtained by taking the arithmetical average of the following 3 ratios:
"(a) The ratio of the tangible property, real, personal and mixed, owned and used by the taxpayer in Wisconsin in connection with his trade or business during the income year to the total of such property of the taxpayer owned and used by him in connection with his trade or business everywhere. . . .
"(b) . . . the ratio of the total cost of manufacturing, collecting, assembling or processing within this state to the total cost of manufacturing, or assembling or processing everywhere. . . .
"(c) . . . the ratio of the total sales made through or by offices, agencies or branches located in Wisconsin during the income year to the total net sales made everywhere during said income year."
4
The additional net income was determined to be:
1965 ................. $759,371
1966 ............... $1,043,395
1967 ............... $1,264,946
1968 ............... $1,464,443
The additional taxes owed were determined to be:
1965 ............... $52,960.97
1966 ............... $72,842.65
1967 ............... $88,351.22
1968 .............. $102,316.01
5
Wisconsin Stat. § 71.07(1) (1967) during this period provided in relevant part:
"For the purposes of taxation income or loss from business, not requiring apportionment under sub. (2), . . . shall follow the situs of the business from which derived. Income or loss derived from . . . the operation of any . . . mine . . . shall follow the situs of the property from which derived."
6
The Circuit Court also held that on remand the Tax Appeals Commission should determine whether the Department had properly weighted the apportionment formula. The apportionment formula uses three factors: sales, property, and manufacturing costs. See n. 3, supra. The Department adjusted the formula as to manufacturing costs because not all of the products sold through Exxon's Marketing Department were manufactured by Exxon; the Department divided by 2.6 rather than the statutory 3. The Wisconsin Supreme Court agreed that it was an issue for the Tax Appeals Commission on remand. 90 Wis.2d 700, 731-735, 281 N.W.2d 94, 111-113 (1979). That particular question is not before this Court.
7
The fact that Exxon in the present case relies on its own separate functional accounting rather than separate geographic accounting, which it had used initially in preparing its Wisconsin income tax returns, does not make the principles expressed in Mobil Oil Corp. v. Commissioner of Taxes, any less applicable.
8
In reaching this conclusion we need not challenge the integrity of Exxon's separate functional accounting for its own internal purposes. See Butler Bros. v. McColgan, 315 U.S. 501, 507, 62 S.Ct. 701, 704, 86 L.Ed. 991 (1942).
9
Exxon also appears to suggest that the state statute requires allocation to the situs State of such income rather than apportionment. See Brief for Appellant 31-32, 40-41. That, of course, is a matter of state statutory construction which the Wisconsin Supreme Court, as the final arbiter of that State's law, has decided against appellant.
10
Since appellee determined that income derived from the sale of crude oil and gas at the wellhead to third parties must, under the state statute, be allocated to the situs State and excluded from the reach of the apportionment statute, we need not address the issue of whether the Due Process Clause would require such allocation rather than apportionment.
11
Because of appellee's construction of the state statute involved, we do not here address the issue of whether the Commerce Clause requires allocation of income derived from the sale of crude oil and gas at the wellhead to third parties to the situs State rather than apportionment.
12
Appellant presses the argument here that the risk of multiple taxation of income violates the Commerce Clause. Brief for Appellant 46-48; Reply Brief for Appellant 15-18; Supplemental Brief for Appellant 8. There was testimony by one witness before the Tax Appeals Commission that some States imposed "severance taxes" on oil and gas production. App. 432. Based on this brief testimony, the Tax Appeals Commission concluded that application of the state apportionment formula to Exxon's net income from its exploration, production, and refining functions subjected that income to multiple taxation, CCH Wis. Tax Rep. ¶ 201-223, p. 10,410 (1976), and the Circuit Court for Dane County reached a similar result solely as to the exploration and production income, CCH Wis. Tax Rep. ¶ 201-373, p. 10,503 (1977). Severance taxes, however, are directed at the gross value of the mineral extracted or the quantity of production rather than the net income derived from the production activities. See R. Sullivan, Handbook of Oil and Gas Law § 238, p. 490 (1955); 4 W. Summers, The Law of Oil and Gas § 801 (1938). See, e. g., La.Rev.Stat.Ann. § 47:633(7) and (9) (West Supp.1980). The Wisconsin Supreme Court therefore properly concluded that "[t]he fact that the producing states may impose . . . severance taxes which have been held to be occupation taxes or property taxes does not render unfair or unconstitutional Wisconsin's efforts to reach a proportionate share of the taxpayer's income." 90 Wis.2d, at 731, 281 N.W.2d, at 110-111 (footnotes omitted).
| 78
|
447 U.S. 231
100 S.Ct. 2124
65 L.Ed.2d 86
Dennis Seay JENKINS, Petitioner,v.Charles ANDERSON, Warden.
No. 78-6809.
Argued Jan. 8, 1980.
Decided June 10, 1980.
Syllabus
*
At his trial in a Michigan state court for first-degree murder, petitioner testified that he acted in self-defense. On cross-examination, the prosecutor questioned petitioner about the fact that he was not apprehended until he surrendered to governmental authorities about two weeks after the killing, and in closing argument again referred to petitioner's prearrest silence, thereby attempting to impeach petitioner's credibility by suggesting that he would have spoken out if he had killed in self-defense. Petitioner was convicted of manslaughter, and after his conviction was affirmed in the state courts he sought habeas corpus relief in Federal District Court, contending that his constitutional rights were violated when the prosecutor questioned him concerning prearrest silence. The District Court denied relief, and the Court of Appeals affirmed.
Held :
1. The Fifth Amendment, as applied to the States through the Fourteenth Amendment, is not violated by the use of prearrest silence to impeach a criminal defendant's credibility. While the Fifth Amendment prevents the prosecution from commenting on the silence of a defendant who asserts the right to remain silent during his criminal trial, it is not violated when a defendant who testifies in his own defense is impeached with his prior silence. Impeachment follows the defendant's own decision to cast aside his cloak of silence and advances the truthfinding function of the criminal trial. Cf.Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054; Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1; Brown v. United States, 356 U.S. 148, 78 S.Ct. 622, 2 L.Ed.2d 589. Pp. 235-238.
2. Nor does the use of prearrest silence to impeach a defendant's credibility deny him the fundamental fairness guaranteed by the Fourteenth Amendment. Common law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted. And each jurisdiction may formulate its own rules of evidence to determine when prior silence is so inconsistent with present statements that impeachment by reference to such silence is probative. In this case, in which no governmental action induced petitioner to remain silent before arrest, Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91, is inapplicable. Pp. 238-240.
6 Cir., 599 F.2d 1055, affirmed.
3. A state court is not required to allow impeachment through the use of prearrest silence. Each jurisdiction is free to formulate evidentiary rules defining the situations in which silence is viewed as more probative than prejudicial. Pp. 240-241.
Carl Ziemba, Detroit, Mich., for petitioner.
Robert A. Derengoski, Lansing, Mich., for respondent.
Mr. Justice POWELL delivered the opinion of the Court.
1
The question in this case is whether the use of prearrest silence to impeach a defendant's credibility violates either the Fifth or the Fourteenth Amendment to the Constitution.
2
* On August 13, 1974, the petitioner stabbed and killed Doyle Redding. The petitioner was not apprehended until he turned himself in to governmental authorities about two weeks later. At his state trial for first-degree murder, the petitioner contended that the killing was in self-defense.
3
The petitioner testified that his sister and her boyfriend were robbed by Redding and another man during the evening of August 12, 1974. The petitioner, who was nearby when the robbery occurred, followed the thieves a short distance and reported their whereabouts to the police. According to the petitioner's testimony, the next day he encountered Redding, who accused him of informing the police of the robbery. The petitioner stated that Redding attacked him with a knife, that the two men struggled briefly, and that the petitioner broke away. On cross-examination, the petitioner admitted that during the struggle he had tried "[t]o push that knife in [Redding] as far as [I] could," App. 36, but maintained that he had acted solely in self-defense.
4
During the cross-examination, the prosecutor questioned the petitioner about his actions after the stabbing:
5
"Q. And I suppose you waited for the Police to tell them what happened?
6
"A. No, I didn't.
7
"Q. You didn't?
8
"A. No.
9
"Q. I see.
10
"And how long was it after this day that you were arrested, or that you were taken into custody?" Id., at 33.
11
After some discussion of the date on which petitioner surrendered, the prosecutor continued:
12
"Q. When was the first time that you reported the things that you have told us in Court today to anybody?
13
"A. Two days after it happened.
14
"Q. And who did you report it to?
15
"A. To my probation officer.
16
"Q. Well, apart from him?
17
"A. No one.
18
"Q. Who?
19
"A. No one but my—
20
"Q. (Interposing) Did you ever go to a Police Officer or to anyone else?
21
"A. No, I didn't.
22
"Q. As a matter of fact, it was two weeks later, wasn't it?
23
"A. Yes." Id., at 34.
24
In closing argument to the jury, the prosecutor again referred to the petitioner's prearrest silence. The prosecutor noted that petitioner had "waited two weeks, according to the testimony—at least two weeks before he did anything about surrendering himself or reporting [the stabbing] to anybody." Id., at 43. The prosecutor contended that the petitioner had committed murder in retaliation for the robbery the night before.
25
The petitioner was convicted of manslaughter and sentenced to 10 to 15 years' imprisonment in state prison. The Michigan Court of Appeals affirmed the conviction, and the Michigan Supreme Court denied leave to appeal. The petitioner then sought a writ of habeas corpus from the Federal District Court for the Eastern District of Michigan, contending that his constitutional rights were violated when the prosecutor questioned him concerning prearrest silence. A Federal Magistrate concluded that the petition for habeas corpus relief should be denied. The District Court adopted the Magistrate's recommendation. The United States Court of Appeals for the Sixth Circuit affirmed. 599 F.2d 1055. This Court granted a writ of certiorari. 444 U.S. 824, 100 S.Ct. 45, 62 L.Ed.2d 30 (1979). We now affirm.1
II
26
At trial the prosecutor attempted to impeach the petitioner's credibility by suggesting that the petitioner would have spoken out if he had killed in self-defense. The petitioner contends that the prosecutor's actions violated the Fifth Amendment as applied to the States through the Fourteenth Amendment. The Fifth Amendment guarantees an accused the right to remain silent during his criminal trial and prevents the prosecution for commenting on the silence of a defendant who asserts the right. Griffin v. California, 380 U.S. 609, 614, 85 S.Ct. 1229, 1232, 14 L.Ed.2d 106 (1965). In this case, of course, the petitioner did not remain silent throughout the criminal proceedings. Instead, he voluntarily took the witness stand in his own defense.
27
This Court's decision in Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1926), recognized that the Fifth Amendment is not violated when a defendant who testifies in his own defense is impeached with his prior silence. The defendant in Raffel was tried twice. At the first trial, a Government agent testified that Raffel earlier had made an inculpatory statement. The defendant did not testify. After the first trial ended in deadlock the agent repeated his testimony at the second trial, and Raffel took the stand to deny making such a statement. Cross-examination revealed that Raffel had not testified at the first trial. Id., at 495, n., 46 S.Ct., at 567, n. The Court held that inquiry into prior silence was proper because "[t]he immunity from giving testimony is one which the defendant may waive by offering himself as a witness. . . . When he takes the stand in his own behalf, he does so as any other witness, and within the limits of the appropriate rules he may be cross-examined . . . ." Id., at 496-497, 46 S.Ct., at 568. Thus, the Raffel Court concluded that the defendant was "subject to cross-examination impeaching his credibility just like any other witness." Grunewald v. United States, 353 U.S. 391, 420, 77 S.Ct. 963, 982, 1 L.Ed.2d 931 (1957).2
28
It can be argued that a person facing arrest will not remain silent if his failure to speak later can be used to impeach him. But the Constitution does not forbid "every government-imposed choice in the criminal process that has the effect of discouraging the exercise of constitutional rights." Chaffin v. Stynchcombe, 412 U.S. 17, 30, 93 S.Ct. 1977, 1984, 36 L.Ed.2d 714 (1973). See Corbitt v. New Jersey, 439 U.S. 212, 218, and n. 8, 99 S.Ct. 492, 497, and n. 8, 58 L.Ed.2d 466 (1978). The " 'threshold question is whether compelling the election impairs to an appreciable extent any of the policies behind the rights involved.' " Chaffin v. Stynchcombe, supra, 412 U.S., at 32, 93 S.Ct., at 1985, quoting Crampton v. Ohio, decided with McGautha v. California, 402 U.S. 183, 213, 91 S.Ct. 1454, 1470, 28 L.Ed.2d 711 (1971).3 The Raffel Court explicitly rejected the contention that the possibility of impeachment by prior silence is an impermissible burden upon the exercise of Fifth Amendment rights. "We are unable to see that the rule that [an accused who] testified . . . must testify fully, adds in any substantial manner to the inescapable embarrassment which the accused must experience in determining whether he shall testify or not." 271 U.S., at 499, 46 S.Ct., at 568.4
29
This Court similarly defined the scope of the Fifth Amendment protection inHarris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). There the Court held that a statement taken in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), may be used to impeach a defendant's credibility. Rejecting the contention that such impeachment violates the Fifth Amendment, the Court said:
30
"Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. . . . Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process." 401 U.S., at 225, 91 S.Ct., at 645, 646.
31
See also Oregon v. Hass, 420 U.S. 714, 721-723, 95 S.Ct. 1215, 1220-1221, 43 L.Ed.2d 570 (1975); Walder v. United States, 347 U.S. 62, 65, 74 S.Ct. 354, 356, 98 L.Ed. 503 (1954).
32
In determining whether a constitutional right has been burdened impermissibly, it also is appropriate to consider the legitimacy of the challenged governmental practice. See Chaffin v. Stynchcombe, supra, 412 U.S., at 32, and n. 20, 93 S.Ct., at 1985, and n. 20. Attempted impeachment on cross-examination of a defendant, the practice at issue here, may enhance the reliability of the criminal process. Use of such impeachment on cross-examination allows prosecutors to test the credibility of witnesses by asking them to explain prior inconsistent statements and acts. A defendant may decide not to take the witness stand because of the risk of cross-examination. But this is a choice of litigation tactics. Once a defendant decides to testify, "[t]he interests of the other party and regard for the function of courts of justice to ascertain the truth become relevant, and prevail in the balance of considerations determining the scope and limits of the privilege against self-incrimination." Brown v. United States, 356 U.S. 148, 156, 78 S.Ct. 622, 627, 2 L.Ed.2d 589 (1958).
33
Thus, impeachment follows the defendant's own decision to cast aside his cloak of silence and advances the truth-finding function of the criminal trial. We conclude that the Fifth Amendment is not violated by the use of prearrest silence to impeach a criminal defendant's credibility.
III
34
The petitioner also contends that use of prearrest silence to impeach his credibility denied him the fundamental fairness guaranteed by the Fourteenth Amendment. We do not agree. Common law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted. 3A J. Wigmore, Evidence § 1042, p. 1056 (Chadbourn rev. 1970). Each jurisdiction may formulate its own rules of evidence to determine when prior silence is so inconsistent with present statements that impeachment by reference to such silence is probative. For example, this Court has exercised its supervisory powers over federal courts to hold that prior silence cannot be used for impeachment where silence is not probative of a defendant's credibility and where prejudice to the defendant might result. See United States v. Hale, 422 U.S. 171, 180-181, 95 S.Ct. 2133, 2138-2139, 45 L.Ed.2d 99 (1975); Stewart v. United States, 366 U.S. 1, 5, 81 S.Ct. 941, 943, 6 L.Ed.2d 84 (1961); Grunewald v. United States, 353 U.S., at 424, 77 S.Ct., at 984.5
35
Only in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), did we find that impeachment by silence violated the Constitution. In that case, a defendant received the warnings required by Miranda v. Arizona, supra, at 467-473, 86 S.Ct., at 1624-1627, when he was arrested for selling marihuana. At that time, he made no statements to the police. During his subsequent trial, the defendant testified that he had been framed. The prosecutor impeached the defendant's credibility on cross-examination by revealing that the defendant remained silent after his arrest. The State argued that the prosecutor's actions were permissible, but we concluded that "the Miranda decision compels rejection of the State's position." 426 U.S., at 617, 96 S.Ct., at 2244. Miranda warnings inform a person that he has the right to remain silent and assure him, at least implicitly, that his subsequent decision to remain silent cannot be used against him. Accordingly, " 'it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony.' " Id., at 619, 96 S.Ct., at 2245, quoting United States v. Hale, supra, at 182-183, 95 S.Ct., at 2139-2140 (WHITE, J., concurring in judgment).6
36
In this case, no governmental action induced petitioner to remain silent before arrest. The failure to speak occurred before the petitioner was taken into custody and given Miranda warnings. Consequently, the fundamental unfairness present in Doyle is not present in this case. We hold that impeachment by use of prearrest silence does not violate the Fourteenth Amendment.
IV
37
Our decision today does not force any state court to allow impeachment through the use of prearrest silence. Each jurisdiction remains free to formulate evidentiary rules defining the situations in which silence is viewed as more probative then prejudicial. We merely conclude that the use of prearrest silence to impeach a defendant's credibility does not violate the Constitution. The judgment of the Court of Appeals is
38
Affirmed.
39
Mr. Justice STEWART concurs in the judgment, agreeing with all but Part II of the opinion of the Court, and with Part I of the opinion of Mr. Justice STEVENS concurring in the judgment.
40
Mr. Justice STEVENS, concurring in the judgment.
41
My approach to both of petitioner's constitutional claims differs from the Court's. I would reject his Fifth Amendment claim because the privilege against compulsory self-incrimination1 is simply irrelevant to a citizen's decision to remain silent when he is under no official compulsion to speak. I would reject his due process claim for the reasons stated in my dissenting opinion in Doyle v. Ohio, 426 U.S. 610, 620, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91.
42
* The Court holds that a defendant who elects to testify in his own behalf waives any Fifth Amendment objection to the use of his prior silence for the purpose of impeachment. As the Court correctly points out, this holding is squarely supported by Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054, in which the Court upheld the use of a defendant's failure to take the stand at his first trial to impeach his testimony on retrial. Nevertheless, I would not rely on Raffel because such reliance incorrectly implies that a defendant's decision not to testify at his own trial is constitutionally indistinguishable from his silence in a precustody context.2 But the two situations are fundamentally different.
43
In the trial context it is appropriate to presume that a defendant's silence is an exercise of his constitutional privilege and to prohibit any official comment that might deter him from exercising that privilege.3 For the central purpose of the Fifth Amendment privilege is to protect the defendant from being compelled to testify against himself at his own trial.4 Moreover, since a defendant's decision whether to testify is typically based on the advice of his counsel, it often could not be explained without revealing privileged communications between attorney and client.
44
These reasons have no application in a prearrest context. The fact that a citizen has a constitutional right to remain silent when he is questioned has no bearing on the probative significance of his silence before he has any contact with the police. We need not hold that every citizen has a duty to report every infraction of law that he witnesses in order to justify the drawing of a reasonable inference from silence in a situation in which the ordinary citizen would normally speak out.5 When a citizen is under no official compulsion whatever, either to speak or to remain silent, I see no reason why his voluntary decision to do one or the other should raise any issue under the Fifth Amendment.6 For in determining whether the privilege is applicable, the question is whether petitioner was in a position to have his testimony compelled and then asserted his privilege, not simply whether he was silent. A different view ignores the clear words of the Fifth Amendment. See n. 1, supra. Consequently, I would simply hold that the admissibility of petitioner's failure to come forward with the excuse of self-defense shortly after the stabbing raised a routine evidentiary question that turns on the probative significance of that evidence and presented no issue under the Federal Constitution.7
II
45
For the reasons stated in Part I of my dissenting opinion in Doyle v. Ohio, 426 U.S., at 620-626, 96 S.Ct., at 2245-2248, I do not agree with the Court's view that the warnings required by Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 contain an implicit assurance that subsequent silence may not be used against the defendant. See ante, at 239-240. As the Court actually acknowledged in Doyle itself, see 426 U.S., at 619-620, n. 11, 96 S.Ct., at 2245-2246, n. 11, any such implicit assurance is far from being unqualified.8 Moreover, I continue to disagree with the Court's view, repeated today, ante, at 240, that there was "fundamental unfairness present in Doyle." In my judgment the fairness or unfairness of using a defendant's postarrest silence for impeachment purposes does not simply depend on whether or not he received Miranda warnings. Rather, it primarily depends on whether it is fair to infer that the defendant was silent because he was asserting his constitutional privilege.9
46
In any event, since I was unpersuaded by the due process rationale of Doyle,10 I readily concur in the Court's rejection of a similar argument in this case.
47
Mr. Justice STEWART concurs in Part I of this opinion.
48
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.
49
Today the Court holds that a criminal defendant's testimony in his own behalf may be impeached by the fact that he did not go to the authorities before his arrest and confess his part in the offense. The decision thus strikes a blow at two of the foundation stones of our constitutional system: the privilege against self-incrimination and the right to present a defense.
50
* The Court's decision today is extraordinarily broad. It goes far beyond a simple holding that the common-law rule permitting introduction of evidence of silence in the face of accusation or in circumstances calling for a response does not violate the privilege against self-incrimination. For in this case the prosecution was allowed to cast doubt on an accused's testimony that he acted in self-defense by forcing him to testify that he did not go to the police of his own volition, before he had been indicted, charged, or even accused of any offense, and volunteer his version of the events.
51
The Court's holding that a criminal defendant's testimony may be impeached by his prearrest silence has three patent—and, in my view, fatal—defects. First, the mere fact of prearrest silence is so unlikely to be probative of the falsity of the defendant's trial testimony that its use for impeachment purposes is contrary to the Due Process Clause of the Fourteenth Amendment. Second, the drawing of an adverse inference from the failure to volunteer incriminating statements impermissibly infringes the privilege against self-incrimination. Third, the availability of the inference for impeachment purposes impermissibly burdens the decision to exercise the constitutional right to testify in one's own defense.
A.
52
The use of prior silence for impeachment purposes depends, as the majority recognizes, ante, at 238, on the reasonableness of an inference that it is inconsistent with the statements that are to be impeached. If the defendant's prior silence does not make it more likely that his trial testimony was false, the evidence is simply irrelevant. Such an inference cannot fairly be drawn from petitioner's failure to go to the police before any charges were brought, admit that he had committed a homicide, and offer an exculpatory explanation.
53
In order for petitioner to offer his explanation of self-defense, he would necessarily have had to admit that it was he who fatally stabbed the victim, thereby supplying against himself the strongest possible proof of an essential element of criminal homicide. It is hard to imagine a purer case of self-incrimination. Since we cannot assume that in the absence of official warnings individuals are ignorant of or oblivious to their constitutional rights, we must recognize that petitioner may have acted in reliance on the constitutional guarantee. In fact, petitioner had most likely been informed previously of his privilege against self-incrimination, since he had two prior felony convictions. App. 28. One who has at least twice before been given the Miranda warnings, which carry the implied promise that silence will not be penalized by use for impeachment purposes, Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), may well remember the rights of which he has been informed, and believe that the promise is still in force. Accordingly, the inference that petitioner's conduct was inconsistent with his exculpatory trial testimony is precluded. See Doyle v. Ohio, supra; United States v. Hale, 422 U.S. 171, 176-177, 95 S.Ct. 2133, 2136-2137, 45 L.Ed.2d 99 (1975).1
54
Moreover, other possible explanations for silence spring readily to mind. It is conceivable that a person who had acted in self-defense might believe that he had committed no crime and therefore had no call to explain himself to the police. Indeed, all the witnesses agreed that after the stabbing the victim ran across the street and climbed a flight of stairs before collapsing. Initially, at least, then, petitioner might not have known that there was a homicide to explain. Moreover, petitioner testified that he feared retaliation if he went to the police. One need not be persuaded that any of these possible explanations represents the true reason for petitioner's conduct to recognize that the availability of other plausible hypotheses vitiates the inference on which the admissibility of the evidence depends. See United States v. Hale, supra, at 176-177, 180, 95 S.Ct., at 2136-2137, 2138.
55
The Court implies that its decision is consistent with the practice at common law; but at common law silence is admissable to contradict subsequent statements only if the circumstances would naturally have called for a response. For example, silence was traditionally considered a tacit admission if a statement made in the party's presence was heard and understood by the party, who was at liberty to respond, in circumstances naturally calling for a response, and the party failed to respond.2 Silence was not considered an admission if any of the prerequisites were absent, for in such a case the failure to speak could be explained other than as assent. Similarly, failure to assert a fact could be used for impeachment if it would have been natural, under the circumstances, to assert the fact. But the authority cited by the majority in support of this proposition, ante, at 239, makes it clear that the rule cannot be invoked unless the facts affirmatively show that the witness was called on to speak, circumstances which are not present in this case.3 As we have previously observed, "[i]n most circumstances silence is so ambiguous that it is of little probative force." United States v. Hale, supra, at 176, 95 S.Ct., at 2136.
56
Since petitioner's failure to report and explain his actions prior to his arrest was not probative of the falsity of his testimony at trial, it was fundamentally unfair and a deprivation of due process to allow the jury to draw from that silence an inference that his trial testimony was false. Doyle v. Ohio, supra.
B
57
The use of prearrest silence for impeachment purposes also violates the privilege against self-incrimination secured by the Fifth and Fourteenth Amendments. The privilege prohibits the government from imposing upon citizens any duty to present themselves to the authorities and report their own wrongdoing. See, e. g., Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968); Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968); Albertson v. SACB, 382 U.S. 70, 86 S.Ct. 194, 15 L.Ed.2d 165 (1965). As I have explained, in order to offer his exculpatory explanation petitioner would inevitably have had to incriminate himself as to facts that would be crucial in any subsequent prosecution. To penalize him for failing to relinquish his privilege against self-incrimination by permitting the jury to draw an adverse inference from his silence is to place an impermissible burden on his exercise of the privilege. See Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). In practical effect, it replaces the privilege against self-incrimination with a duty to incriminate oneself. The Court attempts to avoid this conclusion by asserting that the burden does not threaten the purposes underlying the Fifth Amendment. See ante, at 236. But it is hard to see how the burden could be more substantial or direct.4
58
It is sophistry to assert that the use of prearrest silence for impeachment does not infringe the privilege against self-incrimination because the fact of the silence will not come out unless petitioner chooses to testify, see ante, at 238. An accused has the absolute right to testify in his own defense, as well as the absolute right to refuse to incriminate himself prior to trial. He may not be forced to choose between those fundamental guarantees. We may not ignore the commands of the Constitution by asserting that the defendant brought his difficulties on himself by exercising the precious right to present a defense. Nor should we piously proclaim the protection of individual liberties but extend that protection only to the prosecution's case in chief while ensuring that the evidence can come before the jury by the back door. See Harris v. New York, 401 U.S. 222, 226-232, 91 S.Ct. 643, 646-649, 28 L.Ed.2d 1 (1971) (BRENNAN, J., dissenting).
59
The Court's reasoning is not saved by its reliance on Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1926). Raffel held that a defendant could be required upon testifying at a retrial, to disclose his failure to testify at the earlier trial. In my view, Raffel was wrongly decided; our subsequent cases, without expressly overruling it, limited it so severely as to appear to rob it of any continued vitality until its resurrection today. In Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957), the Court read Raffel as holding simply that a defendant who testifies at a second trial cannot continue to take advantage of the privilege asserted at the first trial. Instead, by taking the stand the defendant "becomes subject to cross-examination impeaching his credibility just like any other witness." 353 U.S., at 420, 77 S.Ct., at 982. But Grunewald carefully pointed out that "[t]he Court, in Raffel, did not focus on the question whether the cross-examination there involved was in fact probative in impeaching the defendant's credibility." Ibid. The logical underpinnings of Raffel were cut away almost completely by Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).5 Thus the majority's statement that Raffel holds that "the Fifth Amendment is not violated when a defendant who testifies in his own defense is impeached with his prior silence," ante, at 235, is both simplistic and overbroad.
60
Further, the Court implies most unfairly that to exclude evidence of petitioner's prior silence would be to countenance perjury. See ante, at 237-238. The Court quotes from Harris v. New York, supra, but in that case the defendant made two contradictory statements at different times. It was logical to infer, absent an explanation to the contrary, that the defendant was lying on one occasion or the other. See also Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954). Here there is only one statement, and a silence which is not necessarily inconsistent with the statement. There is no basis on which to conjure up the specter of perjury.
C
61
Finally, impeachment by prearrest silence impermissibly burdens the constitutionally protected decision to testify in one's own defense.
62
Under today's decision a defendant who did not report his conduct to the police at the first possible moment must, in deciding whether to testify in his own defense, take into account the possibility that if he does testify the jury may be permitted to add that omission to the reasons for disbelieving his defense. This means that a person who thinks he may have done something wrong must immediately decide, most likely without the assistance of counsel, whether, if he is ever charged with an offense and brought to trial, he may wish to take the stand. For if he may later want to take the stand, he had better go to the police station right away to preserve his exculpatory explanation of the events—even though in so doing he must incriminate himself and provide evidence which may be crucial to his eventual conviction. But if he decides not to incriminate himself, he may anticipate that his right to testify in his own defense will be undermined by the argument that his story is probably untrue because he did not volunteer it to the police at the earliest opportunity. All of these strategic decisions must be made before the individual even knows if he will be charged and of what offense he will be accused.
63
To force persons to make this kind of choice between two fundamental rights places an intolerable burden on the exercise of those rights. "It cuts down on the privilege [of testifying in one's own defense] by making its assertion costly," Griffin v. California, supra, 380 U.S., at 614, 85 S.Ct., at 1232, 1233, and is therefore forbidden.
II
64
I have explained why I believe the use for impeachment purposes of a defendant's prearrest failure to volunteer his version of events to the authorities is constitutionally impermissible. I disagree not only with the Court's holding in this case, but as well with its emerging conception of the individual's duty to assist the State in obtaining convictions, including his own—a conception which, I believe, is fundamentally at odds with our constitutional system. See, e. g., Roberts v. United States, 445 U.S. 552, 569-572, 100 S.Ct. 1358, 1369-1370, 63 L.Ed.2d 622 (1980) (MARSHALL, J., dissenting). This conception disparages not only individual freedoms, but also the social interest in preserving those liberties and in the integrity of the criminal justice system. There is no doubt an important social interest in enabling police and prosecutors to obtain convictions. But the Court does not serve the Nation well by subordinating to that interest the safeguards that the Constitution guarantees to the criminal defendant.
*
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 petitioner did not raise his constitutional claims during his state-court trial. Thus, the respondent argues that the rule of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), bars consideration of the petitioner's habeas petition. But the respondent failed to raise the Sykes question in either the District Court or the Court of Appeals. Ordinarily, we will not consider a claim that was not presented to the courts below. See Dorszynski v. United States, 418 U.S. 424, 431, n. 7, 94 S.Ct. 3042, 3047, n. 7, 41 L.Ed.2d 855 (1974). Considerations of judicial efficiency demand that a Sykes claim be presented before a case reaches this Court. The applicability of the Sykes "cause"-and-"prejudice" test may turn on an interpretation of state law. See Rummel v. Estelle, 445 U.S. 263, 267, n. 7, 100 S.Ct. 1133, 1135, n. 7, 63 L.Ed.2d 382 (1980). This Court's resolution of such a state-law question would be aided significantly by the views of other federal courts that may possess greater familiarity with Michigan law. Furthermore, application of the "cause"-and-"prejudice" standard may turn on factual findings that should be made by a district court. Accordingly, we do not consider the Sykes issue in this case.
2
In Raffel, the defendant's decision not to testify at his first trial was an invocation of his right to remain silent protected by the Fifth Amendment. In this case, the petitioner remained silent before arrest, but chose to testify at his trial. Our decision today does not consider whether or under what circumstances prearrest silence may be protected by the Fifth Amendment. We simply do not reach that issue because the rule of Raffel clearly permits impeachment even if the prearrest silence were held to be an invocation of the Fifth Amendment right to remain silent.
3
In Crampton v. Ohio, the Court considered a claim that a murder defendant's right to remain silent was burdened unconstitutionally because he could not argue for mitigation of punishment without risking incrimination on the question of guilt. The Court recognized that a defendant who speaks in his own defense cannot avoid testifying fully.
"It has long been held that a defendant who takes the stand in his own behalf cannot then claim the privilege against cross-examination on matters reasonably related to the subject matter of his direct examination. See, e. g., Brown v. Walker, 161 U.S. 591, 597-598 [16 S.Ct. 644, 40 L.Ed. 819] (1896); Fitzpatrick v. United States, 178 U.S. 304, 314-316 [20 S.Ct. 944, 948, 44 L.Ed. 1078] (1900); Brown v. United States, 356 U.S. 148 [78 S.Ct. 622, 2 L.Ed.2d 589] (1958). It is not thought overly harsh in such situations to require that the determination whether to waive the privilege take into account the matters which may be brought out on cross-examination. It is also generally recognized that a defendant who takes the stand in his own behalf may be impeached by proof of prior convictions or the like. See Spencer v. Texas, 385 U.S. [554, 561, 87 S.Ct. 648, 652, 17 L.Ed.2d 606 (1967)]; cf. Michelson v. United States, 335 U.S. 469 [69 S.Ct. 213, 93 L.Ed. 168] (1948); but cf. Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965); United States v. Palumbo, 401 F.2d 270 (CA2 1968)." 402 U.S., at 215, 91 S.Ct., at 1471.
The Court concluded that "the policies of the privilege against compelled self-incrimination are not offended when a defendant in a capital case yields to the pressure to testify on the issue of punishment at the risk of damaging his case on guilt." Id., at 217, 91 S.Ct., at 1472. Subsequently, a petition for rehearing in Crampton was granted and the underlying state-court decision was vacated on Eighth Amendment grounds. 408 U.S. 941, 92 S.Ct. 2873, 33 L.Ed.2d 765 (1972).
4
Both Mr. Justice STEVENS, post, at 241-242, n. 2, and Mr. Justice MARSHALL, post, at 252, suggest that the constitutional rule of Raffel was limited by later decisions of the Court. In fact, no Court opinion decided since Raffel has challenged its holding that the Fifth Amendment is not violated when a defendant is impeached on the basis of his prior silence. In United States v. Hale, 422 U.S. 171, 175, n. 4, 95 S.Ct. 2133, 2136, n. 4, 45 L.Ed.2d 99 (1975), the Court expressly declined to consider the constitutional question. The decision in Stewart v. United States, 366 U.S. 1, 81 S.Ct. 941, 6 L.Ed.2d 84 (1961), was based on federal evidentiary grounds, not on the Fifth Amendment. The Court in Grunewald v. United States, 353 U.S. 391, 421, 77 S.Ct. 963, 982, 1 L.Ed.2d 931 (1957), stated that it was not required to re-examine Raffel. In all three cases, the Court merely considered the question whether, as a matter of federal evidentiary law, prior silence was sufficiently inconsistent with present statements as to be admissible. See also n. 5, infra.
5
Mr. Justice MARSHALL contends that the petitioner's prearrest silence is not probative of his credibility. Post, at 248-250. In this case, that is a question of state evidentiary law. In federal criminal proceeding the relevance of such silence, of course, would be a matter of federal law. See United States v. Hale, supra, 422 U.S., at 181, 95 S.Ct., at 2139. Mr. Justice MARSHALL's further conclusion that introduction of the evidence in this trial violated due process relies upon the Court's reasoning in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), and United States v. Hale. Post, at 246-250. But the Court's decision in Hale rested upon nonconstitutional grounds, see n. 4, supra, and Doyle is otherwise distinguishable, see infra, at 240.
6
The Court reached a similar result in Johnson v. United States, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704 (1943). A trial judge mistakenly told a defendant that he could claim the privilege against self-incrimination. After the defendant invoked the privilege, the prosecutor commented on the defendant's refusal to speak. Under its supervisory power, this Court held that the prosecutor's comments constituted error because the trial court had assured the defendant that he might claim the protections of the Fifth Amendment. The Court stated that "[e]lementary fairness requires that an accused should not be misled on that score." Id., at 197, 63 S.Ct., at 553; see Doyle v. Ohio, supra, at 618, n. 9, 96 S.Ct., at 2245, n. 9. See also Raley v. Ohio, 360 U.S. 423, 437-438, 79 S.Ct. 1257, 1265-1267, 3 L.Ed.2d 1344 (1959).
1
The Fifth Amendment provides in pertinent part:
"No person . . . shall be compelled in any criminal case to be a witness against himself . . . ."
2
Moreover, there is a serious question about the continuing vitality of Raffel. In Johnson v. United States, 318 U.S. 189, 199, 63 S.Ct. 549, 554, the Court stated that when a trial judge "grants the claim of privilege but allows it to be used against the accused to his prejudice, we cannot disregard the matter. That procedure has such potentialities of oppressive use that we will not sanction its use in the federal courts over which we have supervisory powers."
In Grunewald v. United States, 353 U.S. 391, 415-424, 77 S.Ct. 963, 979-984, 1 L.Ed.2d 931 the Court held that it was error to permit the prosecutor, when cross-examining the defendant at trial, to use his assertion of the Fifth Amendment privilege while a witness before the grand jury for impeachment. In effect, the Court limited Raffel to cases in which the probative value of the cross-examination outweighed its possible impermissible
effect on the jury; see 353 U.S., at 420-421, 77 S.Ct., at 981-983. Because the Court held the probative value of the assertion of privilege to be negligible on the issue of the defendant's credibility, it was "not faced with the necessity of deciding whether Raffel, has been stripped of vitality by the later Johnson case, supra, or of otherwise reexamining Raffel." Id., at 421, 77 S.Ct., at 982. Mr. Justice Black, writing for four Justices, would have expressly overruled Raffel. He could "think of no special circumstances that would justify use of a constitutional privilege to discredit or convict a person who asserts it. The value of constitutional privileges is largely destroyed if persons can be penalized for relying on them." 353 U.S., at 425, 77 S.Ct., at 984-985.
See also Stewart v. United States, 366 U.S. 1, 5-7, 81 S.Ct. 941, 943-944, 6 L.Ed.2d 84; United States v. Hale, 422 U.S. 171, 175, n. 4, 95 S.Ct. 2133, 2136, n. 4, 45 L.Ed.2d 99.
3
"For comment on the refusal to testify is a remnant of the 'inquisitorial system of criminal justice,' Murphy v. Waterfront Comm'n, 378 U.S. 52, 55, [84 S.Ct. 1594, 1596, 12 L.Ed.2d 678,] which the Fifth Amendment outlaws. It is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly." Griffin v. California, 380 U.S. 609, 614, 85 S.Ct. 1229, 1232, 1233, 14 L.Ed.2d 106 (footnote omitted).
4
"The Fifth Amendment protects the individual's right to remain silent. The central purpose of the privilege against compulsory self-incrimination is to avoid unfair criminal trials. It is an expression of our conviction that the defendant in a criminal case must be presumed innocent, and that the State has the burden of proving guilt without resorting to an inquisition of the accused." Lefkowitz v. Cunningham, 431 U.S. 801, 810, 97 S.Ct. 2132, 2138, 53 L.Ed.2d 1 (STEVENS, J., dissenting) (footnote omitted).
"The Fifth Amendment itself is predicated on the assumption that there are innocent persons who might be found guilty if they could be compelled to testify at their own trials. Every trial lawyer knows that some truthful denials of guilt may be considered incredible by a jury—either because of their inherent improbability or because their explanation, under cross-examination, will reveal unfavorable facts about the witness or his associates. The Constitution therefore gives the defendant and his lawyer the absolute right to decide that the accused shall not become a witness against himself." Lakeside v. Oregon, 435 U.S. 333, 343, 98 S.Ct. 1091, 1096-1097, 55 L.Ed.2d 319 (STEVENS, J., dissenting) (footnote omitted).
5
There is, of course, no reason why we should encourage the citizen to conceal criminal activity of which he has knowledge. In Roberts v. United States, 445 U.S. 552, 557-558, 100 S.Ct. 1358, 1363, 63 L.Ed.2d 622, we pointed out:
"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 made known the same to [the appropriate] authority. . . .' Act of Apr. 30, 1790, § 6, 1 Stat. 113. 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.
"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, . . . the criminal defendant no less than any other citizen is obliged to assist the authorities." (Footnote omitted.)
6
"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 has 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." Roberts v. United States, supra, at 559, 100 S.Ct., at 1364.
7
Under my approach, assuming relevance, the evidence could have been used not only for impeachment but also in rebuttal even had petitioner not taken the stand.
8
It is interesting to note that Mr. Justice MARSHALL and Mr. Justice BRENNAN share my view that the Miranda warnings in Doyle did not create the right to remain silent or create an otherwise unavailable objection to the use of the defendants' silence for impeachment purposes. See post, at 247-248, n. 1. I do not, however, agree with their assumption that a holding that evidence of silence is admissible necessarily rests on the premise that a quiet person has any duty to speak. See post, at 250-251, n. 4. A dog's failure to bark may be probative whether or not he has been trained as a watchdog. Cf. A. Conan Doyle, Silver Blaze, in The Complete Sherlock Holmes (1938).
9
Generally, in the absence of an express assertion of the privilege, the presumption is that the privilege was not exercised. See Roberts v. United States, supra, at 559-560, 100 S.Ct., at 1364.
10
It strikes me as anomalous that, assuming Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054, has survived Doyle, a defendant who takes the stand is deemed to waive his Fifth Amendment objection to the use of his pretrial silence, but not to waive what I regard as a much less focussed, and hence weaker, due process objection. Perhaps the Court's opinion can best be understood by assuming that Raffel is not good law on its facts under the Doyle rationale.
1
See also E. Cleary, McCormick on Evidence § 161, pp. 355-356 (2d ed. 1972). For this reason I would not reach a different result from that of Doyle v. Ohio, simply because in Doyle the defendant had received the Miranda warnings. The furnishing of the Miranda warnings does not create the right to remain silent; that right is conferred by the Constitution. I have no doubt that if an accused were interrogated in police custody without receiving the Miranda warnings and remained silent, that silence would be inadmissible despite the lack of warnings. In that situation, no less than under the facts of Doyle, silence is "insolubly ambiguous." 426 U.S., at 617, 96 S.Ct., at 2244. Thus, properly considered, the use in Doyle of postarrest silence for impeachment purposes was fundamentally unfair not because it broke an implied promise by a single narcotics agent, but because it broke a promise made by the United States Constitution. Similarly, persons who are not taken into police custody may rely on their privilege not to incriminate themselves in failing to report their conduct to the police. Such silence is also "insolubly ambiguous."
I do not regard the facts of Doyle and this case as analytically indistinguishable, however, for in Doyle the possibility that the defendant may have known his constitutional rights became a certainty when he was informed of those rights by the police. I simply believe that in both cases, the existence of the privilege against self-incrimination renders the probative value of the accused's silence so negligible that, in view of its plainly prejudicial effect, the use of that silence for impeachment purposes violates the defendant's federal right to due process. That is why I disagree with the Court's statement that the lack of probativeness of the evidence was merely "a question of state evidentiary law." Ante, at 239, n.5.
2
See, e. g., McCormick supra n.1, §§ 161, 270; 4 J. Wigmore, Evidence §§ 1071, 1072 (J. Chadbourn rev. 1970); Gamble, The Tacit Admission Rule: Unreliable and Unconstitutional—A Doctrine Ripe for Abandonment, 14 Ga.L.Rev. 27 (1979); Brody, Admissions Implied from Silence, Evasion and Equivocation in Massachusetts Criminal Cases, 42 B.U.L.Rev. 46 (1962); Heller, Admissions by Acquiescence, 15 U.Miami L.Rev. 161 (1960); Note, Tacit Criminal Admissions, 112 U.Pa.L.Rev. 210 (1963).
3
The Wigmore treatise lists three categories of cases in which silence may be used for impeachment:
"(1) Omissions in legal proceedings to assert what would naturally have been asserted under the circumstances.
"(2) Omissions to assert anything . . . when formerly narrating, on the stand or elsewhere, the matter now dealt with.
"(3) Failure to take the stand at all. . . ." 3A Wigmore, supra, § 1042, pp. 1056-1058 (footnotes omitted, emphasis in original).
Plainly, the omission to seek out an opportunity to speak is not included within these categories. Of all the cases cited by Wigmore involving silence by a criminal defendant, not one involves prearrest silence by a suspect not in the presence of law enforcement officers.
4
I confess I find Mr. Justice STEVENS' view of the Fifth Amendment incomprehensible. Apparently, under that view, a person's right not to incriminate himself exists only if the government has already attempted to compel him to do so. See ante, at 243-244 (opinion concurring in judgment). If no officials have tried to get the person to speak, he evidently has a duty to incriminate himself, because the reporting of crime is a civic duty and the Fifth Amendment is not applicable since the decision to speak or remain silent is, at that time, "voluntary." See ante, at 244.
But the prohibition against compelled self-incrimination is another way of expressing the right not to incriminate oneself. See, e. g., United States v. Burr, 25 F.Cas. pp. 38, 39 (No. 14,692e) (CC Va.1807) ("It is a
settled maxim of law that no man is bound to criminate himself"). After all, the only means of compelling a person to incriminate himself is to penalize him if he does not. Of course the voluntary decision to remain silent in the absence of any official compulsion does not "raise any issue under the Fifth Amendment," ante, at 244 (STEVENS, J., concurring in judgment), since there has been no self-incrimination at all. A voluntary decision to speak also does not implicate the Fifth Amendment because the self-incrimination was not compelled. But to impose a duty to report one's own crime before an official accusation has been made would itself be to compel self-incrimination, thus bringing the Fifth Amendment into play. And, as Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), makes plain, the Constitution also prohibits the government from burdening the right not to incriminate oneself by penalizing silence. In the present case the violation of the Fifth Amendment occurred not when the defendant remained silent, but when that silence was later used against him at his criminal trial.
Mr. Justice STEVENS relies heavily on Roberts v. United States, 445 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980). That case held that a more severe sentence could be imposed on a defendant as a result of his refusal to provide information about criminal activities of other persons. The Court rejected Roberts' Fifth Amendment claim on grounds plainly inapplicable to this case: "At least where the Government has 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." Id., at 559, 100 S.Ct., at 1364; but see id., at 565-566, 100 S.Ct., at 1367-1368 (MARSHALL, J., dissenting).
5
Mr. Justice BLACK's concurring opinion for four Members of the Court in Grunewald, which he would have decided on constitutional grounds rather than under the Court's supervisory powers, eloquently foreshadowed the reasoning of Griffin :
"I can think of no special circumstances that would justify use of a constitutional privilege to discredit or convict a person who asserts it. The value of constitutional privileges is largely destroyed if persons can be penalized for relying on them. It seems peculiarly incongruous and indefensible for courts which exist and act only under the Constitution to draw inferences of lack of honesty from invocation of a privilege deemed worthy of enshrinement in the Constitution." Grunewald v. United States, 353 U.S. 391, 425-426, 77 S.Ct. 963, 984-985, 1 L.Ed.2d 931 (1957).
| 01
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447 U.S. 191
100 S.Ct. 2100
65 L.Ed.2d 53
Thomas E. COFFY, Petitioner,v.REPUBLIC STEEL CORP.
No. 79-81.
Argued Feb. 27, 1980.
Decided June 10, 1980.
Syllabus
The Vietnam Era Veterans' Readjustment Assistance Act of 1974 (Act) provides that any person who leaves a permanent job to enter the military, satisfactorily completes military service, and applies for re-employment within 90 days of being discharged from the military must be reinstated to the former job "without loss of seniority," 38 U.S.C. § 2021(b)(1). Upon being honorably discharged from military service, petitioner made timely application for reinstatement with respondent, his former employer. Because respondent was then in the process of laying off employees, petitioner was reinstated in layoff status. While laid off, he received weekly payments under the supplemental unemployment benefits (SUB) plan created by the applicable steel industry collective-bargaining agreement. Under the plan, an employee is entitled to receive SUB payments only if he has completed two years of continuous service prior to being laid off, and the amount of the weekly benefit is determined by his hourly wage rate, the number of his dependents, the amount of state unemployment compensation he is receiving, and the level of funding remaining in the plan. The length of time during which an employee receives SUB payments is determined by the number of credit units he has accumulated before being laid off, with one-half credit being accrued for each week in which he worked "any" hours, or was paid for "any" hours not worked (such as for vacation or jury duty), or lost "any" hours because he was performing certain union duties or was on disability leave. The plan also provides that if an employee enters the Armed Services, only the credit units credited to him at the time of his entry into the service shall be credited to him upon reinstatement as an employee with unbroken continuous service, except as may otherwise be required by law. Petitioner received SUB payments for only 25 weeks, whereas if he had been employed by respondent during his period of military service, he would have been entitled to 52 weeks of payments. Alleging that respondent violated his statutory re-employment rights by refusing to consider his military service time in computing the amount of SUB payments to which he was entitled, petitioner, represented by the Department of Justice pursuant to the Act, filed an action in Federal District Court, which ultimately held that SUB payments were not a perquisite of seniority entitled to statutory protection. The Court of Appeals affirmed.
Held : SUB payments provided pursuant to the steel industry collective-bargaining agreement are perquisites of seniority to which a returning veteran is entitled under the Act. Pp. 195-206.
(a) Under the Act, which is to be liberally construed for the returning veteran's benefit, the veteran steps back on the seniority escalator at the precise point he would have occupied had he kept his position with his employer continuously during the period of military service. Cf. Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 66 S.Ct. 1105, 90 L.Ed. 1230. In determining whether a particular benefit qualifies as a perquisite of seniority under the Act, first, there must be a reasonable certainty that the benefit would have accrued if the employee had not gone into the military service, and, second, the "real nature" of the benefit must be "a reward for length of service," rather than "a form of short-term compensation for services rendered." Alabama Power Co. v. Davis, 431 U.S. 581, 589, 97 S.Ct. 2002, 2007, 52 L.Ed.2d 595. Pp. 195-198.
(b) The SUB plan satisfies the reasonable-certainty prong of the Alabama Power test, since if petitioner had remained continuously employed by respondent instead of entering the military, he would have accumulated credits from the date he was hired until the date he was laid off. The plan also satisfies the second prong of the test, because supplemental unemployment benefits are not a form of deferred short-term compensation, but are a reward for length of service closely analogous to traditional forms of seniority. The purpose and function of SUB plans is to provide economic security during periods of layoff to employees who have been in the service of the employer for a significant period, and the specific provisions of the steel industry SUB plan support this general purpose of SUB programs. Pp. 199-206.
6th Cir., 590 F.2d 334, reversed and remanded.
Alan I. Horowitz, Asst. Sol. Gen., Washington, D.C., for petitioner, pro hac vice, by special leave of Court.
Michael A. Nims, Cleveland, Ohio, for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
The Vietnam Era Veterans' Readjustment Assistance Act of 1974, 38 U.S.C. § 2021 et seq., provides that any person who leaves a permanent job to enter the military, satisfactorily completes military service, and applies for re-employment within 90 days of being discharged from the military must be reinstated to the former job without loss of seniority. This case presents the question whether supplemental unemployment benefits provided pursuant to the steel industry collective-bargaining agreement are perquisites of seniority to which a returning veteran is entitled under the statute.
2
* Petitioner Thomas Coffy was employed by respondent Republic Steel Corp. (Republic) from April 30, 1968, until September 17, 1968, and again from January 24, 1969, until September 9, 1969, when he entered military service. He served in the military until he was honorably discharged on August 16, 1971. He made timely application for reinstatement on September 14, 1971. Because Republic was then in the process of laying off employees and Coffy would already have been laid off if he had remained continuously employed during his period of military service, he was reinstated in lay-off status. Coffy was recalled to work on July 1, 1972.
3
While Coffy was laid off, he received weekly payments under the supplemental unemployment benefits (SUB) plan created by the collective-bargaining agreement between the major steel companies, including Republic, and the United Steelworkers of America (Steelworkers). Coffy received SUB payments for 25 weeks.1 If he had been employed by Republic during his period of military service, he would have been entitled to 52 weeks of SUB payments. Coffy, represented by the Department of Justice pursuant to 38 U.S.C. § 2022, filed this action in the United States District Court for the Northern District of Ohio, alleging that Republic violated his statutory re-employment rights by refusing to consider his military service time in computing the amount of SUB payments to which he was entitled.2
4
The District Court, relying on Foster v. Dravo Corp., 420 U.S. 92, 95 S.Ct. 879, 43 L.Ed.2d 44 (1975), entered judgment for respondent. The court held that the plan was "a bona fide effort to relate qualification for weekly benefits . . . to work actually performed," App. to Pet. for Cert. 24a, and therefore the benefits were not a perquisite of seniority. While the case was pending on petitioner's appeal to the United States Court of Appeals for the Sixth Circuit, we held in Alabama Power Co. v. Davis, 431 U.S. 581, 97 S.Ct. 2002, 52 L.Ed.2d 595 (1977), that pension benefits are perquisites of seniority protected under the statute. The Court of Appeals sua sponte vacated the District Court's judgment and remanded for reconsideration in light of Alabama Power.
5
On remand, the District Court adhered to its decision that SUB credits are not seniority rights entitled to statutory protection. 461 F.Supp. 344 (1978). The Court of Appeals affirmed on the opinion of the District Court. 590 F.2d 334 (1978). We granted certiorari, 444 U.S. 924, 100 S.Ct. 261, 62 L.Ed.2d 180 (1979), to resolve a conflict among the Circuits concerning this important question in the interpretation of the statute.3 We now reverse.
II
6
The Vietnam Era Veterans' Readjustment Assistance Act of 1974 (Act), 38 U.S.C. § 2021 et seq., requires that returning veterans be reinstated to the jobs they left for military service "or to a position of like seniority, status, and pay." § 2021(a)(B)(i).4 The Act further provides that the veteran be reinstated "without loss of seniority." § 2021(b)(1). We interpreted the predecessor of § 20215 to mean that the returning veteran "does not step back on the seniority escalator at the point he stepped off. He steps back on at the precise point he would have occupied had he kept his position continuously during the war." Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 284-285, 66 S.Ct. 1105, 1111, 90 L.Ed. 1230 (1946). Congress incorporated this principle into the present statute by providing that any person reinstated under the Act should be given "such status in the person's employment as the person would have enjoyed if such person had continued in such employment continuously" during the period of military service. § 2021(b)(2). The statute is to be liberally construed for the benefit of the returning veteran. Fishgold v. Sullivan Drydock & Repair Corp., supra, at 285, 66 S.Ct., at 1111.
7
We have several times had occasion to consider whether a particular type of benefit is a perquisite of seniority. Accardi v. Pennsylvania R. Co., 383 U.S. 225, 86 S.Ct. 768, 15 L.Ed.2d 717 (1966), involved a claim for severance pay. The amount of the payment depended on the employee's length of "compensated service." Id., at 228, 86 S.Ct., at 770. We rejected the employer's argument that the payment was not based on seniority, but on total service to the company. Rather, we held, the "real nature" of the payments was compensation for the loss of the job. Id., at 230, 86 S.Ct., at 772. Because "the cost to an employee of losing his job is not measured by how much work he did in the past . . . but by the rights and benefits he forfeits by giving up his job"—rights and benefits that are largely determined by seniority—the severance payment was "just as much a perquisite of seniority as the more traditional benefits such as work preference and order of lay-off and recall." Ibid.
8
We reached a different result in evaluating a claim for vacation benefits in Foster v. Dravo Corp., 420 U.S. 92, 95 S.Ct. 879, 43 L.Ed.2d 44 (1975). The real nature of that benefit, we observed, was reflected in "the common conception of a vacation as a reward for and respite from a lengthy period of labor," id., at 101, 95 S.Ct., at 884. The contractual provisions for additional vacation credits and higher benefits for overtime work and for pro rata vacations for employees laid off before achieving the necessary number of weeks worked supported that conception. Accordingly, we held that vacation pay was intended as a form of deferred short-term compensation for work actually performed and was not, therefore, a seniority right protected by the statute.
9
Most recently, in Alabama Power Co. v. Davis, 431 U.S. 581, 97 S.Ct. 2002, 52 L.Ed.2d 595 (1977), we held that pension benefits were perquisites of seniority for purposes of the Act. Although the amount of the payment was directly dependent on the years of accredited service, the true nature of the benefits was "a reward for length of service," id., at 593, 97 S.Ct., at 2009. The lengthy period required for vesting, the use of payment formulas based on earnings at the time of retirement, and "the function of pension plans in the employment system"—namely, to provide financial security to employees, assure a stable work force, and increase efficiency—all led to the conclusion that pension payments "are predominantly rewards for continuous employment with the same employer." Id., at 594, 97 S.Ct., at 2010. In Alabama Power, we summarized the principles that have emerged from the cases and concluded that they establish a two-pronged test for determining whether a benefit is a perquisite of seniority under the Act. First, there must be a reasonable certainty that the benefit would have accrued if the employee had not gone into the military service. Id., at 589, 97 S.Ct., at 2007. Second, the nature of the benefit must be "a reward for length of service," rather than a form of "short-term compensation for services rendered." Ibid.
10
Our task, then, is to evaluate the SUB plan at issue in this case in light of these principles.
III
A.
11
The first SUB plan for the steel industry was established through collective bargaining in 1956. The revised plan which is the subject of this action became effective January 1, 1969. The plan provides three types of benefits: a "weekly benefit," a "short week benefit,"6 and a relocation allowance. Petitioner's claim involves weekly benefits, which are provided to employees laid off from work as a supplement to unemployment compensation benefits provided under state law. The amount of an employee's weekly SUB payment is determined by his hourly wage rate, the number of his dependents, the amount of state unemployment compensation he is receiving, and the level of funding remaining in the plan. The length of time during which the employee receives SUB payments is determined by the number of credit units he has accumulated before being laid off.
12
Section 2.0 of the plan provides that an employee accrues one-half credit for each week in which he worked any hours, or was paid for any hours not worked (such as for vacation or jury duty), or lost any hours because he was performing certain union duties or was on disability leave.7 A maximum of 52 credit units may be accrued by an employee at any one time. An employee is entitled to receive SUB payments only if he has completed two years of continuous service prior to being laid off. An employee who meets this threshold requirement may receive one week of supplemental unemployment benefits for each credit unit he has accumulated.
The plan also provides, in § 7.2:
13
"If an employee enters the armed services directly from the employment of the Company, he shall, while in service, be deemed for the purposes of the Plan to be on leave of absence and shall not be entitled to any Benefit. Only the credit units credited to him at the time of his entry into such service shall be credited to him upon his reinstatement as an employee of the Company with unbroken continuous service, except as may otherwise be required by law."
14
Under this provision Republic declined to credit petitioner for his military service time in calculating the number of SUB payments to which he was entitled.8 We must determine whether the provision is in conflict with the Act.
B
15
The SUB plan satisfies the reasonable-certainty prong of the Alabama Power test, since if Coffy had remained continuously employed by Republic instead of entering the military, he would have accumulated credits from the date he was hired until the date he was laid off. We conclude that the plan also satisfies the second prong of the test, because supplemental unemployment benefits are not a form of deferred short-term compensation, but are a reward for length of service closely analogous to traditional forms of seniority.
16
The concept of supplemental unemployment benefits evolved from the demand by organized labor for a guaranteed annual wage. When it became evident that a guaranteed annual wage was impractical in their industries, unions such as the Steelworkers and the United Auto Workers transformed their guaranteed annual wage demands into proposals to supplement existing unemployment compensation programs. These proposals ultimately were adopted in several industries in the form of SUB plans. See J. Becker, Guaranteed Income for the Unemployed: The Story of SUB 9-20 (1968); A. Freedman, Security Bargains Reconsidered: SUB, Severance Pay, Guaranteed Work 4-5 (The Conference Board 1978). From the beginning, then, the purpose of SUB plans was to provide employment security regardless of the hours worked rather than to afford additional compensation for work actually performed. From the employer's standpoint SUB's, like pension benefits, help to assure a stable work force through periods of short-term layoffs and, like severance payments, may increase management flexibility in implementing technological advances. See Becker, supra, at 55-57, 248.
17
The essential function of SUB plans is to provide economic security for regular employees in the event they are laid off. Protection against layoff is, of course, one of the traditional attributes of seniority. SUB payments provide a second-level protection against layoff. If an employee does not have sufficient seniority to avoid being laid off, he may still have achieved the minimum level of seniority necessary to receive SUB payments during his layoff. Unlike vacations, SUB's cannot be compensation for work performed, a "reward for and respite from a lengthy period of labor," Foster v. Dravo Corp., 420 U.S., at 101, 95 S.Ct., at 884, for they are contingent on the employee's being thrown out of work; unless the employee is laid off he will never receive SUB payments. In this sense, SUB's are analogous to severance payments: they are "compensation for loss of jobs." Accardi, 383 U.S., at 230, 86 S.Ct., at 772. See Freedman, supra, at 2.
18
We turn now to the specific provisions of the steel industry SUB plan to determine whether they support or contradict our understanding of the general purpose of SUB programs. The District Court held that the availability of SUB payments was so closely related to hours actually worked as to demonstrate that the plan was a " 'bona fide effort to [compensate for] work actually performed.' " 461 F.Supp., at 346. That conclusion is at odds with the literal terms of the plan, which provide that SUB credits are earned for all weeks in which an employee has any hours in one of the three categories specified in § 2.0. This provision was the result of a 1962 modification of the original 1956 plan, which had directly correlated hours worked with credits earned by providing that 1/10 credit would be earned for every eight hours worked, up to a maximum of 1/2 unit per week. The District Court recognized that the present plan did not expressly relate entitlement to benefits to hours worked, but found this fact to be of no significance because " '[c]ircumstances existing in the steel industry, as revealed by the uncontradicted evidence in this case, demonstrate that, in practice, the minimum workweek is 32 hours. . . . The plan must be construed in light of actual conditions in the steel industry. The possibility of an employee working only one hour during any week does not exist.' " Id., at 347.9
19
We of course accept the District Court's factual findings concerning the practice in the industry. We do not agree, however, that a de facto 32-hour minimum work week means that SUB's are intended as deferred compensation for work performed. Credits are also earned for weeks in which the employee is paid for any hours not worked, as for jury duty, or in which any hours are lost because the employee is disabled or performing certain union duties. These hours, even if considered similar to hours worked because the employee receives "wage substitutes" for them, are not subject to the 32-hour industry custom.
20
We observe also that the normal work-week in the industry, as provided by Art. 6, § 1, of the collective-bargaining agreement, is 40 hours, not 32. The SUB plan makes no provision for accrual of additional credits for hours worked over 32 per week, or for overtime work. This omission is not suggestive of a desire to compensate work actually performed.
21
Further, a major reason that it is rare for an employee who works at all to work fewer than 32 hours in a week is the "short week benefit" provided under the SUB plan.10 Qualified employees who work some hours, but fewer than 32, receive benefits under the short-week provisions of the plan; those who do not work at all receive weekly benefits. The union's success in effectively achieving a guaranteed 32-hour week through the mechanism of the short-week benefit does not logically alter the nature of the weekly benefit negotiated as part of the same plan.
22
Even if eligibility for SUB payments were closely related to hours worked, that fact would not, by itself, render them compensation rather than seniority rights. We emphasized in Alabama Power that it is the nature of the benefit, not the formula by which it is calculated, that is the crucial factor, for "[e]ven the most traditional kinds of seniority privileges could be as easily tied to a work requirement as to the more usual criterion of time as an employee." 431 U.S., at 592, 97 S.Ct., at 2008. As we have explained, the specific provisions of the steel industry plan support, rather than contradict, our conclusion that SUB payments are in the nature of a reward for length of service.
23
The District Court concluded that SUB payments could not be perquisites of seniority for the further reason that the benefits are not proportionate to the length of service. Under the plan, an employee must have a minimum of two years' seniority to be eligible for SUB payments, no employee may accumulate more than 52 units of SUB credits, and the amount of the benefit does not increase with the length of service as would a pension benefit. Thus an employee who has worked continuously for two years will have met the threshold requirement and will also have accumulated 52 units of credit;11 he is eligible for benefits for the same length of time, and computed according to the same formula, as an employee with 20 years' seniority.12 According to the District Court, the facts that no benefits are available to employees whose seniority is less than two years and that after 52 credits have been accumulated additional seniority does not lead to increased benefits were evidence that the benefit is not a reward for longevity of service.13
24
[6] A benefit need not be meticulously proportioned to longevity of service to constitute a perquisite of seniority, however, as long as it performs a function akin to traditional forms of seniority. In fact, the very factors the District Court cited to show that SUB's are not forms of seniority benefits are equally relevant to demonstrate that they are not compensation for services rendered. An employee receives no benefits if he has worked for fewer than two years when he is laid off or if he voluntarily terminates his employment. Such a threshold requirement is more characteristic of seniority provisions than of compensation; in fact, other seniority benefits of the collective-bargaining agreement between Republic and the Steelworkers are also available only to employees with two years' seniority.14 Similarly, an employee cannot accumulate more than 52 credits at a time; any work performed after that ceiling is reached goes "uncompensated." Moreover, the amount of the benefit payment is determined by four factors, none of which appears designed to compensate for hours actually worked: the wage rate at the time of layoff (not at the time the credits were earned); the number of dependents of the employee; the amount of state unemployment compensation received; and the financial position of the benefit fund.
IV
25
We conclude that the purpose and function of the steel industry SUB plan is to provide economic security during periods of layoff to employees who have been in the service of the employer for a significant period. Thus the benefits are in the nature of a reward for length of service, and do not represent deferred short-term compensation for services actually rendered. Accordingly, SUB payments are perquisites of seniority to which returning veterans are entitled under the Act. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
26
It is so ordered.
1
Republic erroneously credited Coffy with approximately nine SUB credits for his 1968 employment. The plan provides that accumulated SUB credits are canceled if an employee quits work voluntarily, as petitioner did after his layoff in 1968. The overpayment was recovered through deductions from petitioner's paycheck after he returned to work.
2
The complaint alleged a violation of § 9 of the Military Selective Service Act of 1967, 50 U.S.C. App. § 459 (1970 ed.). The provisions of that statute relating to veterans' re-employment rights were re-enacted without substantive change in Title IV of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, 38 U.S.C. § 2021 et seq.
3
The Third and Seventh Circuits have held that SUB payments are perquisites of seniority to which a returning veteran is entitled under the Act. Hoffman v. Bethlehem Steel Corp., 477 F.2d 860 (CA3 1973); Akers v. General Motors Corp., 501 F.2d 1042 (CA7 1974). Approximately 1,947,400 workers are covered by collective-bargaining agreements that provide supplemental unemployment benefits. See U.S. Dept. of Labor, Bureau of Labor Statistics, Dept. of Labor, Bull. No. 2065, Characteristics of Major Collective Bargaining Agreements 101 (Apr. 1980).
4
Title 38 U.S.C. § 2021 provides in relevant part:
"(a) In the case of any person who is inducted into the Armed Forces of the United States . . . and who leaves a position (other than a temporary position) in the employ of any employer in order to perform such training and service, and (1) receives a certificate described in section 9(a) of the Military Selective Service Act (relating to the satisfactory completion of military service), and (2) makes application for reemployment within ninety days after such person is relieved from such training and service . . .
* * * * *
"(B) if such position was in the employ of a . . . private employer, such person shall—
"(i) if still qualified to perform the duties of such position, be restored by such employer . . . to such position or to a position of like seniority, status, and pay[,]
* * * * *
"unless the employer's circumstances have so changed as to make it impossible or unreasonable to do so. . . .
"(b)(1) Any person who is restored to or employed in a position in accordance with the provisions of . . . this section shall be considered as having been on furlough or leave of absence during such person's period of training and service in the Armed Forces, shall be so restored or reemployed without loss of seniority, shall be entitled to participate in insurance or other benefits offered by the employer pursuant to established rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time such person was inducted into such forces, and shall not be discharged from such position without cause within one year after such restoration or reemployment.
"(2) It is hereby declared to be the sense of the Congress that any person who is restored to or employed in a position in accordance with . . . this section should be so restored or reemployed in such manner as to give such person such status in the person's employment as the person would have enjoyed if such person had continued in such employment continuously from the time of such person's entering the Armed Forces until the time of such person's restoration to such employment, or reemployment."
5
The Selective Training and Service Act of 1940, ch. 720, § 8(b), 54 Stat. 890, later re-enacted as the Military Selective Service Act of 1967, 50 U.S.C. App. § 459 (1970 ed.), and subsequently re-enacted as 38 U.S.C. § 2021 et seq. See n. 2, supra.
6
An employee having two years of continuous service is eligible for a "short week benefit" for any week in which some, but fewer than 32, hours are worked.
7
Certain categories of employees accrue and exhaust credits at a slightly different rate, see §§ 2.1 and 4.10 of the plan, App. 20, 27, but that distinction is not significant for purposes of this analysis.
8
Coffy received credit for his time in the military in computing his period of continuous service to determine his eligibility to receive benefits. We find no inconsistency in the company's action in counting his military service time toward eligibility to receive benefits, but not toward the number of credits he had accumulated. The plain intent of § 7.2 is that during their period of military service, employees shall neither receive benefits nor accrue credits, but that military service shall not be considered a break in continuous service.
9
The District Court's view that the benefits were intended to be correlated to work actually performed is supported by the testimony of James Carney, an attorney for United States Steel Corp. He stated that the reason for the 1962 change was that there was no need to keep track of the actual hours worked since it was rare for anyone to work fewer than 32 hours a week. This testimony was contradicted, to some extent, by that of Joseph Senturia, a consultant to the Steelworkers. He testified that the change was adopted to liberalize the accrual of credit units and as part of a general simplification of SUB plans in use in the steel industry. In fact, by 1962 SUB plans in all industries provided for accumulation of credit in any week in which any work was performed or any pay received. See J. Becker, Guaranteed Income for the Unemployed: The Story of SUB 125 (1968).
10
Employees having two years of continuous service are eligible for a "short week benefit" for any week in which they work some, but fewer than 32, hours. Roughly speaking, the employee is paid at his regular hourly rate for the difference between 32 hours and the number of hours worked. The amount of the benefit is computed by taking the amount by which 32 hours exceeds the sum of the hours worked, paid, not worked for reasons other than lack of work, lost because of labor problems involving the company or transportation or utility companies, or not worked because the employee quit or was suspended or discharged, and multiplying that number by the employee's regular hourly wage rate. One-half credit unit is canceled for every week in which the employee receives short-week benefits. Since the employee also receives one-half credit because he worked some hours in the week, the net effect is that his accumulated credits remain the same.
The other reasons for the 32-hour custom which were cited in the testimony included the nature of steel manufacturing operations, which must be conducted on a 24-hour basis; Art. 6, § 6, of the collective-bargaining agreement, which provides that any employee who reports for work must be given at least 4 hours' work; and Art. 10, § 7, of the agreement, which requires management to consult with the union on the distribution of work if a decrease in the amount of work available results in an average workweek of 32 hours or fewer.
11
The 2-year continuous service requirement and the 52-credit maximum accumulation are not coextensive. For example, an employee who is laid off before he has been with the company for two years continues to compute his period of continuous service from his original hire date, but does not accumulate credit units during the time he is laid off. Similarly, § 2.4 of the plan permits the employer to cancel the credit units of an employee who willfully falsifies or withholds information on which his weekly benefit is based; such cancellation would not affect the length of the employee's continuous service.
12
Of course, since a more senior employee's wage rate is likely to reflect his longer service with the company, a senior employee often will receive a higher SUB payment than will a junior employee.
Modifications to the steel industry SUB program adopted in 1977 have increased the differentiation between less senior employees and those with greater seniority. Benefit payments for employees with 20 or more years of service will no longer be reduced because of the financial position of the fund, and the maximum number of credits that may be accumulated has been doubled, to 104. See A. Freedman, Security Bargains Reconsidered: SUB, Severance Pay, Guaranteed Work 22 (The Conference Board 1978).
13
Respondent argues that in fact the SUB plan provides benefits in an inverse relationship to seniority. Respondent observes that, because seniority protects against layoff, the most senior employees are the least likely to receive SUB's, and by the time very senior employees are laid off their benefit payments may be reduced in amount pursuant to § 1.5 of the plan because the fund has been depleted by prior payments to less senior employees. This argument ignores that particular components of a seniority program need not invariably provide greater benefits to more senior workers. "Bumping" provisions, for example, may seldom be used by very senior employees, and yet they are unquestionably rights of seniority. In any event, the record contains no evidence of the funding history of the steel industry SUB program that would permit us to draw any conclusion as to the probability of benefit payments being reduced pursuant to § 1.5.
14
For example, an employee with two years' seniority who is laid off may exercise "bumping" rights over less senior employees in the seniority pool, or may transfer to another plant with priority over other applicants, including recently hired employees of the other plant.
| 12
|
447 U.S. 343
100 S.Ct. 2227
65 L.Ed.2d 175
Flynn Noye HICKS, Petitioner,v.State of OKLAHOMA.
No. 78-6885.
Argued March 26, 1980.
Decided June 16, 1980.
Syllabus
Upon the conviction of petitioner, a twice previously convicted felon, in an Oklahoma trial court, the jury imposed a 40-year sentence pursuant to instructions to do so under a provision of the state habitual offender statute mandating such a sentence. Thereafter, this provision was declared unconstitutional by the Oklahoma Court of Criminal Appeals in another case, but that court nevertheless affirmed petitioner's conviction and sentence, holding that he was not prejudiced by the impact of the invalid statute because his sentence was within the range of punishment that could have been imposed in any event.
Held : The State deprived petitioner of due process of law guaranteed by the Fourteenth Amendment. Under Oklahoma statutes, a convicted defendant is entitled to have his punishment fixed by the jury, and the jury, if it had been correctly instructed, could have imposed any sentence of not less than 10 years. Thus, the possibility that the jury would have returned a sentence of less than 40 years is substantial, and it is incorrect to say that petitioner could not have been prejudiced by the instruction requiring imposition of a 40-year prison sentence. Petitioner's interest in the exercise of the jury's discretion in imposing punishment is not merely a matter of state procedural law, but is a liberty interest that the Fourteenth Amendment preserves against arbitrary deprivation by the State. And the argument that, in view of the Court of Criminal Appeals' statutory authority to revise judgments on appeal, petitioner had no absolute right to a sentence imposed by a jury, is unpersuasive. Pp. 345-347.
Vacated and remanded.
David M. Ebel, Denver, Colo., for petitioner.
Janet L. Cox, Oklahoma City, Okl., for respondent, pro hac vice, by special leave of Court.
Mr. Justice STEWART delivered the opinion of the Court.
1
The petitioner was brought to trial in an Oklahoma court on a charge of unlawfully distributing heroin. Since he had been convicted of felony offenses twice within the preceding 10 years, the members of the jury were instructed, in accordance with the habitual offender statute then in effect in Oklahoma,1 that, if they found the petitioner guilty, they "shall assess [the] punishment at forty (40) years imprisonment." The jury returned a verdict of guilt and imposed the mandatory 40-year prison term.
2
Subsequent to the petitioner's conviction, the provision of the habitual offender statute under which the mandatory 40-year prison term had been imposed was in another case declared unconstitutional by the Oklahoma Court of Criminal Appeals. Thigpen v. State, 571 P.2d 467, 471 (1977). On his appeal, the petitioner sought to have his 40-year sentence set aside in view of the unconstitutionality of this statutory provision. The Court of Criminal Appeals acknowledged that the provision was unconstitutional, but nonetheless affirmed the petitioner's conviction and sentence, reasoning that the petitioner was not prejudiced by the impact of the invalid statute, since his sentence was within the range of punishment that could have been imposed in any event.2 We granted certiorari to consider the petitioner's contention that the State deprived him of due process of law guaranteed to him by the Fourteenth Amendment. 444 U.S. 963, 100 S.Ct. 447, 62 L.Ed.2d 374.
3
By statute in Oklahoma, a convicted defendant is entitled to have his punishment fixed by the jury. Okla.Stat., Tit. 22, § 926 (1971).3 Had the members of the jury been correctly instructed in this case, they could have imposed any sentence of "not less than ten . . . years." Okla.Stat., Tit. 21, § 51(A)(1) (1971). The possibility that the jury would have returned a sentence of less than 40 years is thus substantial. It is therefore, wholly incorrect to say that the petitioner could not have been prejudiced by the instruction requiring the jury to impose a 40-year prison sentence.
4
It is argued that all that is involved in this case is the denial of a procedural right of exclusively state concern. Where, however, a State has provided for the imposition of criminal punishment in the discretion of the trial jury, it is not correct to say that the defendant's interest in the exercise of that discretion is merely a matter of state procedural law. The defendant in such a case has a substantial and legitimate expectation that he will be deprived of his liberty only to the extent determined by the jury in the exercise of its statutory discretion, cf. Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), and that liberty interest is one that the Fourteenth Amendment preserves against arbitrary deprivation by the State. See Vitek v. Jones, 445 U.S. 480, 488-489, 100 S.Ct. 1254, 1261, 63 L.Ed.2d 552, citing Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935; Greenholtz v. Nebraska Penal Inmates, supra ; Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484. In this case Oklahoma denied the petitioner the jury sentence to which he was entitled under state law, simply on the frail conjecture that a jury might have imposed a sentence equally as harsh as that mandated by the invalid habitual offender provision. Such an arbitrary disregard of the petitioner's right to liberty is a denial of due process of law.4
5
The State argues, however, that, in view of the revisory authority of the Oklahoma Court of Criminal Appeals, the petitioner had no absolute right to a sentence imposed by a jury. See Okla.Stat., Tit. 22, § 1066 (1971) ("The Appellate Court may reverse, affirm or modify the judgment appealed from . . ."). The argument is unpersuasive. The State concedes that the petitioner had a statutory right to have a jury fix his punishment in the first instance, and this is the right that was denied. Moreover, it is a right that substantially affects the punishment imposed. No case has been cited to us in which the Court of Criminal Appeals has increased a sentence on appeal, and the State's Assistant Attorney General indicated at oral argument that it was doubtful whether the appellate court had power to do so. In consequence, it appears that the right to have a jury fix the sentence in the first instance is determinative, at least as a practical matter, of the maximum sentence that a defendant will receive. Nor did the appellate court purport to cure the deprivation by itself reconsidering the appropriateness of the petitioner's 40-year sentence.5 Rather, it simply affirmed the sentence imposed by the jury under the invalid mandatory statute. In doing so, the State deprived the petitioner of his liberty without due process of law.
6
Accordingly, the judgment is vacated, and the case is remanded to the Oklahoma Court of Criminal Appeals for further proceedings not inconsistent with this opinion.
7
So ordered.
8
Mr. Justice REHNQUIST, dissenting.
9
The Court concludes that the Oklahoma Court of Criminal Appeals denied petitioner due process of law by refusing to vacate the sentence imposed at his trial for unlawful distribution of heroin. That conclusion, in turn, depends on the Court's assertion that petitioner was impermissibly denied his state-created right to be sentenced by a jury. Because I believe that the Court either mischaracterizes the right conferred by state law or erroneously assumes a deprivation of that right, I dissent.
10
The Court is undoubtedly correct that Oklahoma law does confer a right to have a sentence imposed by a jury. Okla.Stat., Tit. 22, § 926 (1971). But it is equally true that petitioner was sentenced by a jury. The question is whether that sentence was validly imposed, either as a matter of state or federal law. For if the petitioner was constitutionally sentenced by his jury in the first instance, he has been afforded the process the State guaranteed him. The Oklahoma court found that petitioner was not properly sentenced. If this conclusion rested on an interpretation of state law, or a correct interpretation of federal law, then I would have less difficulty agreeing with the Court that petitioner was entitled to a new jury sentencing under principles of due process. But the Court fails to inquire into the basis of the Oklahoma court's conclusion that petitioner was improperly sentenced in the first instance. That question is central to the resolution of the due process issue presented by the case. The Court simply assumes that the Oklahoma court found that petitioner had not been sentenced in conformity with state law. This is an assumption, however, that cannot be divined from the available state cases. Those cases in fact strongly indicate that the decision of the state court here rested on an erroneous interpretation of federal law, not state law. If so, the Oklahoma court decision refusing to afford petitioner an opportunity to be resentenced by a jury would be correct, albeit for the wrong reason.
11
The issue in this case, then, is whether petitioner's original sentence denied him equal protection. The Oklahoma sentencing statute in effect at the time of petitioner's trial was designed to provide for increased sentences to multiple offenders of the criminal laws.* Under Okla.Stat., Tit. 21, § 51(A) (Supp.1977) a defendant who is found guilty of an offense punishable by a term of imprisonment in excess of 5 years, after having been convicted of one offense punishable by imprisonment, is subject to sentence, fixed by the jury, ranging from 10 years to apparent infinity. (Oklahoma juries have apparently exercised this discretion with great relish, imposing sentences as long as 1,500 years in prison for second-time offenders. See Callins v. State, 500 P.2d 1333 (Crim.App.1972)). Defendants convicted of more than one prior offense were subject to sentencing under § 51(B). Section 51(B) did not invest the jury with discretion to determine the length of the term of imprisonment. Instead the section provided a formula for determining the length of the mandatory sentence to be imposed by a jury pursuant to instruction. This statutory scheme permitted the jury to impose sentences on defendants with only one prior conviction far in excess of those which were specified for defendants with two or more prior convictions. In Thigpen v. State, 571 P.2d 467 (Okla.Crim.App.1977), decided after petitioner's mandatory sentence was imposed by the jury, a defendant with only one prior conviction challenged the constitutionality of the statute. The court concluded that this potential for disparate sentences rendered § 51(B) "unconstitutional," and struck that section.
12
The Thigpen opinion does not indicate whether this conclusion is based on an interpretation of the State or Federal Constitution. The opinion does indicate, however, that in determining the constitutionality of the Act, the court had relied on an advisory opinion submitted by an Oklahoma state district judge. 571 P.2d, at 471, n. 3. That advisory opinion is attached as an appendix to the court opinion. The position advocated in the advisory opinion is that the Oklahoma sentencing statute violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution because of the potential for longer terms of imprisonment to those convicted of only one prior offense. The author of the advisory opinion relies exclusively on federal law in reaching this determination.
13
In this case, the Oklahoma court thought the federal equal protection holding in Thigpen applied to petitioner's sentencing as well. I cannot agree. Petitioner was a third-time offender who was given the benefit of the more lenient mandatory sentencing provisions before the decision in Thigpen. Thus he was not within the class of one-time offenders subject to more burdensome treatment under the statute. Since petitioner was a member of the favored class, I cannot agree that petitioner's sentencing denied him equal protection or any other rights guaranteed under the Federal Constitution, I am unable to agree that due process required the State to afford him any additional opportunity to be sentenced by another jury, and would therefore affirm the judgment of the Court of Criminal Appeals of Oklahoma.
1
See 1976 Okla.Sess. Laws, ch. 94, § 1, codified at Okla.Stat., Tit. 21, § 51(B) (Supp.1977). The text of § 51 provided:
"(A) Every person who, having been convicted of any offense punishable by imprisonment in the penitentiary, commits any crime after such conviction is punishable therefor as follows:
"1. If the offense of which such person is subsequently convicted is such that upon a first conviction an offender would be punishable by imprisonment in the penitentiary for any term exceeding five (5) years, such person is punishable by imprisonment in the penitentiary for a term not less than ten (10) years.
"2. If such subsequent offense is such that upon a first conviction the offender would be punishable by imprisonment in the penitentiary for five (5) years, or any less term, then the person convicted of such subsequent offense is punishable by imprisonment in the penitentiary for a term not exceeding ten (10) years.
"3. If such subsequent conviction is for petit larceny, or for any attempt to commit an offense which, if committed, would be punishable by imprisonment in the penitentiary, then the person convicted of such subsequent offense is punishable by imprisonment in the penitentiary for a term not exceeding five (5) years.
"(B) Every person who, having been twice convicted of felony offenses, commits a third, or thereafter, felony offenses within ten (10) years of the date following the completion of the execution of the sentence, shall be punished by imprisonment in the State Penitentiary for a term of twenty (20) years plus the longest imprisonment for which the said third or subsequent conviction was punishable, had it been a first offense; provided, that felony offenses relied upon shall not have arisen out of the same transaction or occurrence or series of events closely related in time or location; provided, further, that nothing in this section shall abrogate or affect the punishment by death in all crimes now or hereafter made punishable by death."
The Oklahoma Legislature has since amended § 51(B). See 1978 Okla.Sess. Laws, ch. 281, § 1, Okla.Stat., Tit. 21, § 51(B) (Supp.1979).
2
"Defendant asserts in his fourth assignment of error that [Okla.Stat., Tit. 21,] § 51(B), under which he was sentenced, is unconstitutional. We agree. This question was laid to rest by this Court in Thigpen v. State, Okla.Cr., 571 P.2d 467 (1977). We must find however, that the defendant was not prejudiced by the use of this statute in that the sentence imposed is within the range of punishment authorized by the provisions of [Okla.Stat., Tit. 21,] § 51(A)." Hicks v. State, No. F-77-751 (Mar. 8, 1979).
The decision of the Oklahoma Court of Criminal Appeals is unreported. A petition for rehearing was denied April 6, 1979.
3
Only if the jury fails to do so may the trial court impose sentence. Okla.Stat., Tit. 22, § 927 (1971).
4
Because of our disposition of the case, we do not reach the petitioner's several other contentions.
5
Because the appellate court did not purport to resentence the petitioner, we have no occasion to consider his contention that due process of law requires that the State provide him with notice and a hearing, including the opportunity to present mitigating evidence, before appellate sentencing. See McGautha v. California, 402 U.S. 183, 218-220, 91 S.Ct. 1454, 28 L.Ed.2d 711; Specht v. Patterson, 386 U.S. 605, 606, 87 S.Ct. 1209, 1210, 18 L.Ed.2d 326. See also Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336.
*
The text of Okla.Stat., Tit. 21, § 51 (Supp.1977), provides:
"(A) Every person who, having been convicted of any offense punishable by imprisonment in the penitentiary, commits any crime after such conviction is punishable therefor as follows:
"1. If the offense of which such person is subsequently convicted is such that upon a first conviction an offender would be punishable by imprisonment in the penitentiary for any term exceeding five (5) years, such person is punishable by imprisonment in the penitentiary for a term not less than ten (10) years.
"2. If such subsequent offense is such that upon a first conviction the offender would be punishable by imprisonment in the penitentiary for five (5) years, or any less term, then the person convicted of such subsequent offense is punishable by imprisonment in the penitentiary for a term not exceeding ten (10) years.
"3. If such subsequent conviction is for petit larceny, or for any attempt to commit an offense which, if committed, would be punishable by imprisonment in the penitentiary, then the person convicted of such subsequent offense is punishable by imprisonment in the penitentiary for a term not exceeding five (5) years.
"(B) Every person who, having been twice convicted of felony offenses, commits a third, or thereafter, felony offenses within ten (10) years of the date following the completion of the execution of the sentence, shall be punished by imprisonment in the State Penitentiary for a term of twenty (20) years plus the longest imprisonment for which the said third or subsequent conviction was punishable, had it been a first offense; provided, that felony offense relied upon shall not have arisen out of the same transaction or occurrence or series of events closely related in time or location; provided, further, that nothing in this section shall abrogate or affect the punishment by death in all crimes now or hereafter made punishable by death."
| 34
|
447 U.S. 264
100 S.Ct. 2183
65 L.Ed.2d 115
UNITED STATES, Petitioner,v.Billy Gale HENRY.
No. 79-121.
Argued Jan. 16, 1980.
Decided June 16, 1980.
Syllabus
After respondent was indicted for armed robbery of a bank, and while he was in jail pending trial, Government agents contacted an informant who was then an inmate confined in the same cellblock as respondent. An agent instructed the informant to be alert to any statements made by federal prisoners but not to initiate conversations with or question respondent regarding the charges against him. After the informant had been released from jail, he reported to the agent that he and respondent had engaged in conversation and that respondent made incriminating statements about the robbery. The informant was paid for furnishing the information. At respondent's trial, which resulted in a conviction, the informant testified about the incriminating statements that respondent had made to him. Respondent moved to vacate his sentence on the ground that the introduction of the informant's testimony interfered with and violated his Sixth Amendment right to the assistance of counsel. The District Court denied the motion, but the Court of Appeals reversed, holding that the Government's actions impaired respondent's Sixth Amendment rights under Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246.
Held: Respondent's statements to the informant should not have been admitted at trial. By intentionally creating a situation likely to induce respondent to make incriminating statements without the assistance of counsel, the Government violated respondent's Sixth Amendment right to counsel. Under the facts—particularly the facts that the informant was acting under instructions as a paid informant for the Government while ostensibly no more than a fellow inmate, and that respondent was in custody and under indictment at the time—incriminating statements were "deliberately elicited" from respondent within the meaning of Massiah. Since respondent was unaware that the informant was acting for the Government, he cannot be held to have waived his right to the assistance of counsel. Pp. 269-275.
590 F.2d 544, affirmed.
Andrew L. Frey, Washington, D. C., for petitioner.
Michael E. Geltner, Washington, D. C., for respondent.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari to consider whether respondent's Sixth Amendment right to the assistance of counsel was violated by the admission at trial of incriminating statements made by respondent to his cellmate, an undisclosed Government informant, after indictment and while in custody. 444 U.S. 824, 100 S.Ct. 45, 62 L.Ed.2d 30 (1979).
2
* The Janaf Branch of the United Virginia Bank/Seaboard National in Norfolk, Va., was robbed in August 1972. Witnesses saw two men wearing masks and carrying guns enter the bank while a third man waited in the car. No witnesses were able to identify respondent Henry as one of the participants. About an hour after the robbery, the getaway car was discovered. Inside was found a rent receipt signed by one "Allen R. Norris" and a lease, also signed by Norris, for a house in Norfolk. Two men, who were subsequently convicted of participating in the robbery, were arrested at the rented house. Discovered with them were the proceeds of the robbery and the guns and masks used by the gunman.
3
Government agents traced the rent receipt to Henry; on the basis of this information, Henry was arrested in Atlanta, Ga., in November 1972. Two weeks later he was indicted for armed robbery under 18 U.S.C. §§ 2113(a) and (d). He was held pending trial in the Norfolk city jail. Counsel was appointed on November 27.
4
On November 21, 1972, shortly after Henry was incarcerated, Government agents working on the Janaf robbery contacted one Nichols, an inmate at the Norfolk city jail, who for some time prior to this meeting had been engaged to provide confidential information to the Federal Bureau of Investigation as a paid informant. Nichols was then serving a sentence on local forgery charges. The record does not disclose whether the agent contacted Nichols specifically to acquire information about Henry or the Janaf robbery.1
5
Nichols informed the agent that he was housed in the same cellblock with several federal prisoners awaiting trial, including Henry. The agent told him to be alert to any statements made by the federal prisoners, but not to initiate any conversation with or question Henry regarding the bank robbery. In early December, after Nichols had been released from jail, the agent again contacted Nichols, who reported that he and Henry had engaged in conversation and that Henry had told him about the robbery of the Janaf bank.2 Nichols was paid for furnishing the information.
6
When Henry was tried in March 1973, an agent of the Federal Bureau of Investigation testified concerning the events surrounding the discovery of the rental slip and the evidence uncovered at the rented house. Other witnesses also connected Henry to the rented house, including the rental agent who positively identified Henry as the "Allen R. Norris" who had rented the house and had taken the rental receipt described earlier. A neighbor testified that prior to the robbery she saw Henry at the rented house with John Luck, one of the two men who had by the time of Henry's trial been convicted for the robbery. In addition, palm prints found on the lease agreement matched those of Henry.
7
Nichols testified at trial that he had "an opportunity to have some conversations with Mr. Henry while he was in the jail," and that Henry told him that on several occasions he had gone to the Janaf Branch to see which employees opened the vault. Nichols also testified that Henry described to him the details of the robbery and stated that the only evidence connecting him to the robbery was the rental receipt. The jury was not informed that Nichols was a paid Government informant.
8
On the basis of this testimony,3 Henry was convicted of bank robbery and sentenced to a term of imprisonment of 25 years. On appeal he raised no Sixth Amendment claims. His conviction was affirmed, judgt. order reported at 483 F.2d 1401 (CA4 1973), and his petition to this Court for a writ of certiorari was denied. 421 U.S. 915, 95 S.Ct. 1575, 43 L.Ed.2d 781 (1975).
9
On August 28, 1975, Henry moved to vacate his sentence pursuant to 28 U.S.C. § 2255.4 At this stage, he stated that he had just learned that Nichols was a paid Government informant and alleged that he had been intentionally placed in the same cell with Nichols so that Nichols could secure information about the robbery. Thus, Henry contended that the introduction of Nichols' testimony violated his Sixth Amendment right to the assistance of counsel. The District Court denied the motion without a hearing. The Court of Appeals, however, reversed and remanded for an evidentiary inquiry into "whether the witness [Nichols] was acting as a government agent during his interviews with Henry."
10
On remand, the District Court requested affidavits from the Government agents. An affidavit was submitted describing the agent's relationship with Nichols and relating the following conversation:
11
"I recall telling Nichols at this time to be alert to any statements made by these individuals [the federal prisoners] regarding the charges against them. I specifically recall telling Nichols that he was not to question Henry or these individuals about the charges against them, however, if they engaged him in conversation or talked in front of him, he was requested to pay attention to their statements. I recall telling Nichols not to initiate any conversations with Henry regarding the bank robbery charges against Henry, but that if Henry initiated the conversations with Nichols, I requested Nichols to pay attention to the information furnished by Henry."
12
The agent's affidavit also stated that he never requested anyone affiliated with the Norfolk city jail to place Nichols in the same cell with Henry.
13
The District Court again denied Henry's § 2255 motion, concluding that Nichols' testimony at trial did not violate Henry's Sixth Amendment right to counsel. The Court of Appeals reversed and remanded, holding that the actions of the Government impaired the Sixth Amendment rights of the defendant under Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). The court noted that Nichols had engaged in conversation with Henry and concluded that if by association, by general conversation, or both, Nichols had developed a relationship of trust and confidence with Henry such that Henry revealed incriminating information, this constituted interference with the right to the assistance of counsel under the Sixth Amendment.5 590 F.2d 544 (1978).
II
14
This Court has scrutinized postindictment confrontations between Government agents and the accused to determine whether they are "critical stages" of the prosecution at which the Sixth Amendment right to the assistance of counsel attaches. See, e. g., United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The present case involves incriminating statements made by the accused to an undisclosed and undercover Government informant while in custody and after indictment. The Government characterizes Henry's incriminating statements as voluntary and not the result of any affirmative conduct on the part of Government agents to elicit evidence. From this, the Government argues that Henry's rights were not violated, even assuming the Sixth Amendment applies to such surreptitious confrontations; in short, it is contended that the Government has not interfered with Henry's right to counsel.6
15
This Court first applied the Sixth Amendment to postindictment communications between the accused and agents of the Government in Massiah v. United States, supra. There, after the accused had been charged, he made incriminating statements to his codefendant, who was acting as an agent of the Government. In reversing the conviction, the Court held that the accused was denied "the basic protections of [the Sixth Amendment] when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him." Id., at 206, 84 S.Ct., at 1203. The Massiah holding rests squarely on interference with his right to counsel.
16
The question here is whether under the facts of this case a Government agent "deliberately elicited" incriminating statements from Henry within the meaning of Massiah. Three factors are important. First, Nichols was acting under instructions as a paid informant for the Government; second, Nichols was ostensibly no more than a fellow inmate of Henry; and third, Henry was in custody and under indictment at the time he was engaged in conversation by Nichols.
17
The Court of Appeals viewed the record as showing that Nichols deliberately used his position to secure incriminating information from Henry when counsel was not present and held that conduct attributable to the Government. Nichols had been a paid Government informant for more than a year; moreover, the FBI agent was aware that Nichols had access to Henry and would be able to engage him in conversations without arousing Henry's suspicion. The arrangement between Nichols and the agent was on a contingent-fee basis; Nichols was to be paid only if he produced useful information.7 This combination of circumstances is sufficient to support the Court of Appeals' determination. Even if the agent's statement that he did not intend that Nichols would take affirmative steps to secure incriminating information is accepted, he must have known that such propinquity likely would lead to that result.
18
The Government argues that the federal agents instructed Nichols not to question Henry about the robbery.8 Yet according to his own testimony, Nichols was not a passive listener; rather, he had "some conversations with Mr. Henry" while he was in jail and Henry's incriminatory statements were "the product of this conversation." While affirmative interrogation, absent waiver, would certainly satisfy Massiah, we are not persuaded, as the Government contends that Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), modified Massiah's "deliberately elicited" test. See Rhode Island v. Innis, 446 U.S. 291, at 300, n. 4, 100 S.Ct. 1682, at 1689, n. 4, 64 L.Ed.2d 297 (1980).9 In Massiah, no inquiry was made as to whether Massiah or his codefendant first raised the subject of the crime under investigation.10
19
It is quite a different matter when the Government uses undercover agents to obtain incriminating statements from persons not in custody but suspected of criminal activity prior to the time charges are filed. In Hoffa v. United States, 385 U.S. 293, 302, 87 S.Ct. 408, 413, 17 L.Ed.2d 374 (1966), for example this Court held that "no interest legitimately protected by the Fourth Amendment is involved" because "the Fourth Amendment [does not protect] a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it." See also United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971). Similarly, the Fifth Amendment has been held not to be implicated by the use of undercover Government agents before charges are filed because of the absence of the potential for compulsion. SeeHoffa v. United States, supra, 385 U.S., at 303-304, 87 S.Ct., at 414-415. But the Fourth and Fifth Amendment claims made in those cases are not relevant to the inquiry under the Sixth Amendment here—whether the Government has interfered with the right to counsel of the accused by "deliberately eliciting" incriminating statements. Our holding today does not modify White or Hoffa.
20
It is undisputed that Henry was unaware of Nichols' role as a Government informant. The government argues that this Court should apply a less rigorous standard under the Sixth Amendment where the accused is prompted by an undisclosed undercover informant than where the accused is speaking in the hearing of persons he knows to be Government officers. That line of argument, however, seeks to infuse Fifth Amendment concerns against compelled self-incrimination into the Sixth Amendment protection of the right to the assistance of counsel. An accused speaking to a known Government agent is typically aware that his statements may be used against him. The adversary positions at that stage are well established; the parties are then "arms' length" adversaries.
21
When the accused is in the company of a fellow inmate who is acting by prearrangement as a Government agent, the same cannot be said. Conversation stimulated in such circumstances may elicit information that an accused would not intentionally reveal to persons known to be Government agents. Indeed, the Massiah Court noted that if the Sixth Amendment "is to have any efficacy it must apply to indirect and surreptitious interrogations as well as those conducted in the jailhouse." The Court pointedly observed that Massiah was more seriously imposed upon because he did not know that his codefendant was a Government agent. 377 U.S., at 206, 84 S.Ct., at 1203.
22
Moreover, the concept of a knowing and voluntary waiver of Sixth Amendment rights does not apply in the context of communications with an undisclosed undercover informant acting for the Government. See Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). In that setting, Henry, being unaware that Nichols was a Government agent expressly commissioned to secure evidence, cannot be held to have waived his right to the assistance of counsel.
23
Finally Henry's incarceration at the time he was engaged in conversation by Nichols is also a relevant factor.11 As a ground for imposing the prophylactic requirements in Miranda v. Arizona, 384 U.S. 436, 467, 86 S.Ct. 1602, 1624, 16 L.Ed.2d 694 (1966), this Court noted the powerful psychological inducements to reach for aid when a person is in confinement. See also id., at 448-454, 86 S.Ct., at 1614-1617. While the concern in Miranda was limited to custodial police interrogation, the mere fact of custody imposes pressures on the accused; confinement may bring into play subtle influences that will make him particularly susceptible to the ploys of undercover Government agents. The Court of Appeals determined that on this record the incriminating conversations between Henry and Nichols were facilitated by Nichols' conduct and apparent status as a person sharing a common plight. That Nichols had managed to gain the confidence of Henry, as the Court of Appeals determined, is confirmed by Henry's request that Nichols assist him in his escape plans when Nichols was released from confinement.12
24
Under the strictures of the Court's holdings on the exclusion of evidence, we conclude that the Court of Appeals did not err in holding that Henry's statements to Nichols should not have been admitted at trial. By intentionally creating a situation likely to induce Henry to make incriminating statements without the assistance of counsel, the Government violated Henry's Sixth Amendment right to counsel.13 This is not a case where, in Justice Cardozo's words, "the constable . . . blundered," People v. DeFore, 242 N.Y. 13, 21, 150 N.E. 585, 587 (1926); rather, it is one where the "constable" planned an impermissible interference with the right to the assistance of counsel.14
25
The judgment of the Court of Appeals for the Fourth Circuit is
26
Affirmed.
27
Mr. Justice POWELL, concurring.
28
The question in this case is whether the Government deliberately elicited information from respondent in violation of the rule of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). I join the opinion of the Court, but write separately to state my understanding of the Court's holding.
29
* In Massiah v. United States, this Court held that the Government violated the Sixth Amendment when it deliberately elicited incriminating information from an indicted defendant who was entitled to assistance of counsel. 377 U.S., at 206, 84 S.Ct., at 1203. Government agents outfitted an informant's automobile with radio transmitting equipment and instructed the informant to engage the defendant in conversation relating to the crimes. United States v. Massiah, 307 F.2d 62, 72 (CA2 1962) (Hays, J., dissenting). In suppressing statements overheard during the resulting conversation, the Court emphasized that the Sixth Amendment must " 'apply to indirect and surreptitious interrogations as well as those conducted in the jailhouse. . . . ' " 377 U.S. at 206, 84 S.Ct., at 1203, quoting 307 F.2d at 72 (Hays, J., dissenting). Similarly, in Brewer v. Williams, supra, we applied Massiah to a situation in which a police detective purposefully isolated a suspect from his lawyers and, during a long ride in a police car, elicited incriminating remarks from the defendant through skillful interrogation. We suppressed the statement because the government "deliberately and designedly set out to elicit" information from a suspect. 430 U.S., at 399, 97 S.Ct., at 1240; see id., at 407, 97 S.Ct., at 1244 (MARSHALL, J., concurring); id., at 412, 97 S.Ct., at 1246 (POWELL, J., concurring).
30
The rule of Massiah serves the salutary purpose of preventing police interference with the relationship between a suspect and his counsel once formal proceedings have been initiated. But Massiah does not prohibit the introduction of spontaneous statements that are not elicited by governmental action. Thus, the Sixth Amendment is not violated when a passive listening device collects, but does not induce, incriminating comments. See United States v. Hearst, 563 F.2d 1331, 1347-1348 (CA9 1977), cert. denied, 435 U.S. 1000, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978). Similarly, the mere presence of a jailhouse informant who had been instructed to overhear conversations and to engage a criminal defendant in some conversations would not necessarily be unconstitutional. In such a case, the question would be whether the informant's actions constituted deliberate and "surreptitious interrogatio[n]" of the defendant. If they did not, then there would be no interference with the relationship between client and counsel.
II
31
I view this as a close and difficult case on its facts because no evidentiary hearing has been held on the Massiah claim. Normally, such a hearing is helpful to a reviewing court and should be conducted. On balance, however, I accept the view of the Court of Appeals and of the Court that the record adequately demonstrates the existence of a Massiah violation. I could not join the Court's opinion if it held that the mere presence or incidental conversation of an informant in a jail cell would violate Massiah.* To demonstrate an infringement of the Sixth Amendment, a defendant must show that the government engaged in conduct that, considering all of the circumstances, is the functional equivalent of interrogation. See Brewer v. Williams, 430 U.S., at 399, 97 S.Ct., at 1239; id., at 411, 412, 97 S.Ct., at 1245, 1246 (POWELL, J., concurring). See also Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).
32
Because I understand that the decision today rests on a conclusion that this informant deliberately elicited incriminating information by such conduct, I join the opinion of the Court.
33
Mr. Justice BLACKMUN, with whom Mr. Justice WHITE joins, dissenting.
34
In this case the Court, I fear, cuts loose from the moorings of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964),1 and overlooks or misapplies significant facts to reach a result that is not required by the Sixth Amendment, by established precedent, or by sound policy.
35
The Court of Appeals resolved this case by a divided vote, with all three judges writing separately. Three of the seven judges then on that court dissented from the denial of rehearing en banc. And Mr. Justice POWELL, in his separate concurring opinion, obviously is less than comfortable, finds the case "close and difficult," ante, at 277, and writes to assure that his concurring vote preserves his contrary posture when the Court will be confronted with only "the mere presence or incidental conversation of an informant in a jail cell." Ibid. This division of opinion about this case attests to the importance of correct factual analysis here.
36
Because I view the principles of Massiah and the facts of this case differently than the Court does, I dissent.
37
* Massiah mandates exclusion only if a federal agent "deliberately elicited" statements from the accused in the absence of counsel. 377 U.S., at 206, 84 S.Ct., at 1203. The word "deliberately" denotes intent. Massiah ties this intent to the act of elicitation, that is, to conduct that draws forth a response. Thus Massiah, by its own terms, covers only action undertaken with the specific intent to evoke an inculpatory disclosure.
38
Faced with Agent Coughlin's unequivocal expression of an intent not to elicit statements from respondent Henry, but merely passively to receive them, ante, at 268; App. to Pet. for Cert. 58a, the Court, in its decision to affirm the judgment of the Court of Appeals, has no choice but to depart from the natural meaning of the Massiah formulation. The Court deems it critical that informant Nichols had been a paid informant; that Agent Coughlin was aware that Nichols "had access" to Henry and "would be able to engage him in conversations without arousing Henry's suspicion"; and that payment to Nichols was on a contingent-fee basis. Ante, at 270. Thus, it is said, even if Coughlin's "statement is accepted . . . he must have known that such propinquity likely would lead to that result" (that is, that Nichols would take "affirmative steps to secure incriminating information"). Ante, at 271. Later, the Court goes even further, characterizing this as a case of "intentionally creating a situation likely to induce Henry to make incriminating statements." Ante, at 274. (Emphasis added.) This determination, coupled with the statement that Nichols "prompted" respondent Henry's remarks, ante, at 273, and see ante, at 271, n. 9, leads the Court to find a Massiah violation.
39
Thus, while claiming to retain the "deliberately elicited" test, the Court really forges a new test that saps the word "deliberately" of all significance. The Court's extension of Massiah would cover even a "negligent" triggering of events resulting in reception of disclosures. This approach, in my view, is unsupported and unwise.
40
A. Authority. The Court's precedents appear to me to be contrary to this new objective approach. Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959), whose concurring opinions presaged Massiah, see 377 U.S., at 204, 84 S.Ct., at 1201, concerned an "all-night inquisition" during which the defendant "repeatedly asked to be allowed to send for his lawyer." 360 U.S., at 327, 79 S.Ct., at 1209 (concurring opinion). Obviously, that case involved deliberate efforts to extract information in the absence of counsel. In Massiah itself, the agent engineered a pretrial meeting between the accused and a turncoat codefendant. The agent instructed the latter to talk to the defendant about the crime, see United States v. Massiah, 307 F.2d 62, 66 (CA2 1962); id., at 72 (dissenting opinion), and he bugged the meeting place so he could listen in.2 United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973), by emphasizing that Massiah involved a "ruse" and that Massiah 's purpose was to neutralize "the overreaching of the prosecution," id., at 312, 93 S.Ct., at 2575, reinforced the view that deliberate elicitation entails purposeful police action.
41
If any question could possibly have remained about the subjective nature of the Massiah inquiry, it was dispelled by Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). There the Court closely examined testimony regarding the agent's intentions. In the face of vigorous dissents, it found a Sixth Amendment violation only because "[t]here can be no serious doubt . . . that Detective Leaming deliberately and designedly set out to elicit information from Williams," and because in giving his "Christian burial speech," Leaming "purposely sought . . . to obtain as much incriminating information as possible." Id., at 399, 97 S.Ct., at 1240 (emphasis added). See also Rhode Island v. Innis, 446 U.S. 291, 300, n. 4, 100 S.Ct. 1682, 1689, n. 4, 64 L.Ed.2d 297 (1980) (reaffirming the "deliberately elicited" criterion); Kamisar, Brewer v. Williams, Massiah, and Miranda : What is "Interrogation"? When Does it Matter? 67 Geo.L.J. 1, 42 (1978) ("The use of the term 'deliberately elicited' seems to be quite intentional").3
42
The unifying theme of Massiah cases, then, is the presence of deliberate, designed, and purposeful tactics, that is, the agent's use of an investigatory tool with the specific intent of extracting information in the absence of counsel. Thus, the Court's "likely to induce" test fundamentally restructures Massiah. Even if the agent engages in no "overreaching," and believes his actions to be wholly innocent and passive, evidence he comes by must be excluded if a court, with the convenient benefit of 20/20 hindsight, finds it likely that the agent's actions would induce the statements.
43
B. Policy. For several reasons, I believe that the Court's revamping of Massiah abrogates sound judicial policy. First, its test will significantly broaden Sixth Amendment exclusion; yet, as THE CHIEF JUSTICE has stressed before, the "high price society pays for such a drastic remedy" as exclusion of indisputably reliable evidence in criminal trials cannot be denied. See, e. g., Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 413, 91 S.Ct. 1999, 2013, 29 L.Ed.2d 619 (1971) (dissenting opinion). Second, I think the Court's approach fails to appreciate fully and to accommodate adequately the "value" and the "unfortunate necessity of undercover work." Weatherford v. Bursey, 429 U.S. 545, 557, 97 S.Ct. 837, 844, 51 L.Ed.2d 30 (1977). Third, I find it significant that the proffered statements are unquestionably voluntary. See United States v. Washington, 431 U.S. 181, 187, 97 S.Ct. 1814, 1818, 52 L.Ed.2d 238 (1977) ("Indeed, far from being prohibited by the Constitution, admissions of guilt by wrongdoers, if not coerced, are inherently desirable"). Fourth, the Court condemns and punishes police conduct that I do not find culpable. See Wilson v. Henderson, 584 F.2d 1185, 1191 (CA2 1978), cert. denied, 442 U.S. 945, 99 S.Ct. 2892, 61 L.Ed.2d 316 (1979) (investigating officer's "directions, 'Don't ask questions; just keep your ears open,' suggest familiarity and attempted compliance with, not circumvention of, the principle of Massiah "). Fifth, at least absent an active, orchestrated ruse, I have great difficulty perceiving how canons of fairness are violated when the Government uses statements flowing from a "wrongdoer's misplaced belief that a person to whom be voluntarily confides his wrongdoing will not reveal it." Hoffa v. United States, 385 U.S. 293, 302, 87 S.Ct. 408, 413, 17 L.Ed.2d 374 (1966).4
44
Finally, I note the limits, placed in other Sixth Amendment cases, of providing counsel to counterbalance prosecutorial expertise and to aid defendants faced with complex and unfamiliar proceedings. See Mr. Justice REHNQUIST's dissenting opinion, post, at 290-298.5 While not out of line with the Court's prior right-to-counsel cases, Massiah certainly is the decision in which Sixth Amendment protections have been extended to their outermost point. I simply do not perceive any good reason to give Massiah the expansion it receives in this case.6
II
45
In my view, the Court not only missteps in forging a new Massiah test; it proceeds to misapply the very test it has created. The new test requires a showing that the agent created a situation "likely to induce" the production of incriminatory remarks, and that the informant in fact "prompted" the defendant. Even accepting the most capacious reading of both this language and the facts, I believe that neither prong of the Court's test is satisfied.
46
A. "Likely to Induce." In holding that Coughlin's actions were likely to induce Henry's statements, the Court relies on three facts: a contingent-fee arrangement; Henry's assumption that Nichols was just a cellmate; and Henry's incarceration.7
47
The Court states: "The arrangement between Nichols and the agent was on a contingent-fee basis; Nichols was to be paid only if he produced useful information." Ante, at 270. The District Court, however, made no such finding, and I am unconvinced that the evidence of record establishes such an understanding.8 In any event, I question whether the existence of a contingent-fee arrangement is at all significant. The reasonable conclusion of an informant like Nichols would be that, whatever the arrangement, he would not be remunerated if he breached his promise; yet the Court asks us to infer that Coughlin's conversation with Nichols "likely would lead" Nichols to engage in the very conduct which Coughlin told him to avoid. Ante, at 271.
48
The Court also emphasizes that Henry was "unaware that Nichols was a Government agent." Ante, at 273. One might properly assign this factor some importance, were it not for Brewer v. Williams. In that case, the Court explicitly held that the fact "[t]hat the incriminating statements were elicited surreptitiously in the Massiah case, and otherwise here, is constitutionally irrelevant." 430 U.S., at 400, 97 S.Ct., at 1240. (Emphasis added.) The Court's teeter-tottering with this factor in Massiah analysis can only induce confusion.
49
It merits emphasis that the court's resurrection of the unawareness factor is indispensable to its holding. For, in Brewer, substantial contact and conversation with a confined defendant preceded delivery of the "Christian burial speech." Yet the Court clearly deemed the speech critical in finding a Massiah violation; it thus made clear that mere "association" and "general conversation" did not suffice to bring Massiah into play. Since nothing more transpired here, principled application of Brewer mandates reversal of the judgment in this case.
50
Finally, the Court notes that Henry was incarcerated when he made his statements to Nichols. The Court's emphasis of the "subtle influences" exerted by custody, however, is itself too subtle for me. This is not a case of a custodial encounter with police, in which the Government's display of power might overcome the free will of the accused. The relationship here was "social" and relaxed. Henry did not suspect that Nichols was connected with the FBI. Moreover, even assuming that "subtle influences" might encourage a detainee to talk about his crime, there are certainly counter-balances of at least equal weight. Since, in jail, "official surveillance has traditionally been the order of the day," Lanza v. New York, 370 U.S. 139, 143, 82 S.Ct. 1218, 1221, 8 L.Ed.2d 1234 (1962), and a jailmate has obvious incentives to assist authorities, one may expect a detainee to act with corresponding circumspection. Cf. Rhode Island v. Innis, 446 U.S., at 300, n. 4, 100 S.Ct., at 1689, n. 4 ("Custody in . . . a [Massiah ] case is not controlling; indeed, the petitioner in Massiah was not in custody").
51
The Court does more than rely on dubious factors in finding that Coughlin's actions were "likely to induce" Nichols' successful prompting of Henry; it fails to focus on facts that cut strongly against that conclusion. The Court ignores Coughlin's specific instruction to Nichols that he was not to question Henry or to initiate conversation with him about the robbery. Nor does it note Nichols' likely assumption that he would not be remunerated, but reprimanded and possibly penalized, if he violated Coughlin's orders. In addition, the record shows that Nichols had worked as an FBI informant for four years and that Coughlin and Nichols had worked together for about a year on several matters. It makes sense, given Nichols' experience and Coughlin's willingness to renew their working relationship, to conclude that Nichols would follow Coughlin's instruction. Finally, it is worth noting that Henry was only one of several federal detainees to whom Nichols was to pay attention;9 this is not a case in which officers singled out a specific target. On these facts, I cannot agree that Coughlin "must have known that [it was] likely" that Nichols would seek to elicit information from Henry.
52
Under the Court's analysis, it is not enough that Coughlin should have anticipated disobedience by Nichols; it must also be shown that his actions were "likely to induce" Henry to talk. In my view, however, there was little reason to believe that even the most aggressive efforts by Nichols would lead to disclosures by Henry. Nothing in the record suggests that Henry and Nichols knew each other, far less that they had the type of relationship that would lead Henry to discuss freely a crime for which he had not yet been tried. In this respect, the case stands in stark contrast to Massiah, where the informant had collaborated with Massiah in a drug smuggling operation and was a codefendant in the resulting and pending prosecution. Moreover, "[t]here is nothing in the record to suggest that . . . [the defendant] was peculiarly susceptible [to approaches by cellmates or that he] was unusually disoriented or upset." Rhode Island v. Innis, 446 U.S., at 302-303, 100 S.Ct., at 1685. On these facts, it seems to me extremely un likely that Coughlin's actions would lead to Henry's statements.
53
Even though the test forged by the Court has no precedent, we are not without some assistance in judging its application. Just a few weeks ago, in Rhode Island v. Innis, the Court held that Miranda was implicated only by "words or actions on the part of the police [officers] that they should have known were reasonably likely to elicit an incriminating response." 446 U.S., at 302, 100 S.Ct., at 1685 (emphasis deleted and added). Here, the Court asks whether agents "creat[ed] a situation likely to induce Henry to make incriminating statements." Ante, at 274. Although the Court in Innis emphasized that the Massiah and Miranda rules are distinct, 446 U.S., at 300, n. 4, 100 S.Ct., at 1689, n. 4, I have some difficulty in identifying a material difference between these formulations. Since the Court found its test not satisfied in Innis, it should follow that Henry's statements may be excluded only if there was greater reason in this case than in Innis to expect incriminatory disclosures. The case for finding that disclosures were "likely," however, was clearly stronger in Innis. There the defendant had just been arrested at 4:30 a. m.; he was handcuffed and confined in a "caged wagon"; and the three police officers accompanying him triggered his confession by conversing about the danger that a "little girl" attending a nearby school for the handicapped would "maybe kill herself" upon finding a gun he supposedly had hidden. Id., at 293-295, 100 S.Ct., at 1686-1687. Against the backdrop of Innis, I cannot fathom how the Court can conclude that Coughlin's actions rendered Henry's disclosures "likely."
54
B. "Prompting." All Members of the Court agree that Henry's statements were properly admitted if Nichols did not "prompt" him. Ante, at 273, and see ante, at 271, n. 9; ante, at 276 (concurring opinion); post, at 302 (dissenting opinion). The record, however, gives no indication that Nichols "stimulated" Henry's remarks, ante, at 273 with "affirmative steps to secure incriminating information." Ante, at 271. Certainly the known facts reveal nothing more than "a jailhouse informant who had been instructed to overhear conversations and to engage a criminal defendant in some conversations." Ante, at 276 (concurring opinion).10 The scant record demonstrates only that Nichols "had 'an opportunity to have some conversations with Mr. Henry while he was in the jail.' " Ante, at 267. "Henry had engaged [Nichols] in conversation," "had requested Nichols' assistance," and "had talked to Nichols about the bank robbery charges against him." App. to Pet. for Cert. 58a. Thus, we know only that Nichols and Henry had conversations, hardly a startling development, given their location in the same cellblock in a city jail. We know nothing about the nature of these conversations, particularly whether Nichols subtly or otherwise focused attention on the bank robberies. Indeed, to the extent the record says anything at all, it supports the inference that it was Henry, not Nichols, who "engaged" the other "in some conversations," and who was the moving force behind any mention of the crime. I cannot believe that Massiah requires exclusion when a cellmate previously unknown to the defendant and asked only to keep his ears open says: "It's a nice day," and the defendant responds: "It would be nicer if I hadn't robbed that bank." The Court of Appeals, however, found it necessary to swallow that bitter pill in order to decide this case the way it did, and this Court does not show that anything more transpired.
55
Conceivably, the amount of information purveyed by Henry to Nichols could support an inference that some fishing for detail occurred. The Court does not invoke this reasoning, however, and even if the record is stretched to produce such a finding, it clearly discloses nothing about the timing of Henry's disclosures. It may well be that Henry first "let the cat out of the bag," either by volunteering statements or by inadvertently discussing the crime with someone else within earshot of Nichols. These possibilities are not farfetched. In addition to revealing Coughlin's instructions, which we may infer were followed, the record specifically indicates that Henry "volunteered" information about the robbery to a cellmate other than Nichols. App. 85. Moreover, the record discloses Henry's eagerness to make contact with a potential collaborator outside the jail; Nichols, who was soon to be released, was a logical choice to serve as a go-between. The Court, however, seems unconcerned that some of Henry's statements were "spontaneously given." 590 F.2d 544, 549 (CA4 1978) (dissenting opinion). It emphasizes that "[i]n Massiah, no inquiry was made as to whether Massiah or his codefendant first raised the subject of the crime under investigation." Ante, at 271-272. This observation trivializes the central facts of Massiah, in which an agent arranged a bugged meeting between codefendants who shared a natural interest in their pending prosecution, and in which the informant was instructed to, and did, converse about the pair's misdeeds.
III
56
In sum, I think this is an unfortunate decision, which disregards precedent and stretches to the breaking point a virtually silent record. Whatever the bounds of Massiah, that case does not justify exclusion of the proof challenged here.
57
Mr. Justice REHNQUIST, dissenting.
58
The Court today concludes that the Government through the use of an informant "deliberately elicited" information from respondent after formal criminal proceedings had begun, and thus the statements made by respondent to the informant are inadmissible because counsel was not present. The exclusion of respondent's statements has no relationship whatsoever to the reliability of the evidence, and it rests on a prophylactic application of the Sixth Amendment right to counsel that in my view entirely ignores the doctrinal foundation of that right. The Court's ruling is based on Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), which held that a postindictment confrontation between the accused and his accomplice, who had turned State's evidence and was acting under the direction of the Government, was a "critical" stage of the criminal proceedings at which the Sixth Amendment right to counsel attached. While the decision today sets forth the factors that are "important" in determining whether there has been a Massiah violation, ante, at 270, I think that Massiah constitutes such a substantial departure from the traditional concerns that underlie the Sixth Amendment guarantee that its language, if not its actual holding, should be re-examined.
59
* The doctrinal underpinnings of Massiah have been largely left unexplained, and the result in this case, as in Massiah, is difficult to reconcile with the traditional notions of the role of an attorney. Here, as in Massiah, the accused was not prevented from consulting with his counsel as often as he wished. No meetings between the accused and his counsel were disturbed or spied upon. And preparation for trial was not obstructed. See 377 U.S., at 209, 84 S.Ct., at 1204 (WHITE, J., dissenting). In short, as Mr. Justice WHITE aptly observed in Massiah :
60
"It is only a sterile syllogism—an unsound one, besides—to say that because [the accused] had a right to counsel's aid before and during the trial, his out-of-court conversations and admissions must be excluded if obtained without counsel's consent or presence. The right to counsel has never meant as much before, Cicenia v. Lagay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523; Crooker v. California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448, and its extension in this case requires some further explanation, so far unarticulated by the Court." Ibid.
A.
61
Our decisions recognize that after formal proceedings have commenced an accused has a Sixth Amendment right to counsel at "critical stages" of the criminal proceedings. See, e. g., ante, at 269. This principle derives from Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), which held that a trial court's failure to appoint counsel until the trial began violated the Due Process Clause of the Fourteenth Amendment. Id., at 68-71, 53 S.Ct., at 63-65. Powell referred to the "critical period" as being "from the time of [the defendants'] arraignment until the beginning of their trial, when consultation, thorough-going investigation and preparation were vitally important." Id., at 57, 53 S.Ct., at 59-60. During that period, the defendants in Powell "did not have the aid of counsel in any real sense, although they were as much entitled to such aid during that period as at the trial itself." Ibid. They thus were deprived of the opportunity to consult with an attorney, and to have him investigate their case and prepare a defense for trial. After observing that the duty to assign counsel "is not discharged by an assignment at such time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case," id., at 71, 53 S.Ct., at 65, this Court held that the defendants had been unconstitutionally denied effective assistance of counsel.1
62
Powell was based on the rationale that an unaided layman, who has little or no familiarity with the law, requires assistance in the preparation and presentation of his case and in coping with procedural complexities in order to assure a fair trial. The Court in Powell stated:
63
"Historically and in practice, in our country at least, [a hearing] has always included the right to the aid of counsel when desired and provided by the party asserting the right. The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect." Id., at 68-69, 53 S.Ct., at 64.2
64
More recently this Court has again observed that the concerns underlying the Sixth Amendment right to counsel are to provide aid to the layman in arguing the law and in coping with intricate legal procedure, United States v. Ash, 413 U.S. 300, 307-308, 93 S.Ct. 2568, 2572-2573, 37 L.Ed.2d 619 (1973), and to minimize the imbalance in the adversary system that otherwise resulted with the creation of the professional prosecuting official. Id., at 308-309, 93 S.Ct., at 2573.3 Thus, in examining whether a stage of the proceedings is a "critical" one at which the accused is entitled to legal representation, it is important to recognize that the theoretical foundation of the Sixth Amendment right to counsel is based on the traditional role of an attorney as a legal expert and strategist.4
65
"Deliberate elicitation" after formal proceedings have begun is thus not by itself determinative. Ash held that an accused has no right to be present at a photo display because there is no possibility that he "might be misled by his lack of familiarity with the law or overpowered by his professional adversary." Id., at 317, 93 S.Ct., at 2577. See also Gilbert v. California, 388 U.S. 263, 267, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967) (taking of handwriting exemplars is not a "critical" stage of the proceedings because "there is a minimal risk that the absence of counsel might derogate from his right to a fair trial"). If the event is not one that requires knowledge of legal procedure, involves a communication between the accused and his attorney concerning investigation of the case or the preparation of a defense, or otherwise interferes with the attorney-client relationship, there is in my view simply no constitutional prohibition against the use of incriminatinginformation voluntarily obtained from an accused despite the fact that his counsel may not be present. In such circumstances, the accused at the least has been informed of his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and often will have received advice from his counsel not to disclose any information relating to his case, see, e. g. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977).
66
Once the accused has been made aware of his rights, it is his responsibility to decide whether or not to exercise them. If he voluntarily relinquishes his rights by talking to authorities, or if he decides to disclose incriminating information to someone whom he mistakenly believes will not report it to the authorities, cf. Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), he is normally accountable for his actions and must bear any adverse consequences that result. Such information has not in any sense been obtained because the accused's will has been overborne, nor does it result from any "unfair advantage" that the State has over the accused: the accused is free to keep quiet and to consult with his attorney if he so chooses. In this sense, the decision today and the result in Massiah are fundamentally inconsistent with traditional notions of the role of the attorney that underlie the Sixth Amendment right to counsel.
67
To the extent that Massiah relies on Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), in concluding that the confrontation in that case was a "critical" stage of the proceedings, 377 U.S., at 205, 84 S.Ct., at 1202. Massiah reads the language of Powell out of context. In Powell, the period between arraignment and trial was critical because the defendants had no opportunity whatsoever to consult with an attorney during that time, and thus they were altogether deprived of legal assistance in the investigation of their case and the preparation of a defense. The Court today similarly takes an overly broad view of the stages after the commencement of formal criminal proceedings that should be viewed as "critical" for purposes of the Sixth Amendment. And it is not amiss to point out that Powell was decided solely on the basis of the Due Process Clause of the Fourteenth Amendment long before the Court selected the Sixth Amendment as one that the Fourteenth Amendment "incorporated" and made applicable against the States as well as the United States. See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 199 (1963).
B
68
Massiah also relied heavily on a concurring opinion of its author in Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959), which expressed the notion that the adversary system commences with indictment, and should be followed by arraignment and trial. Id., at 327, 79 S.Ct., at 1209 (STEWART, J., concurring). Spano, however, was a coerced confession case in which the accused was interrogated for eight hours after he had been indicted until he confessed. While it is true that both the Fifth and Sixth Amendments reflect the Framers' intent to establish essentially an accusatory rather than an inquisitorial system of justice, neither suggests by its terms a rigid dichotomy between the types of police activities that are permissible before commencement of formal criminal proceedings and those that are subsequently permissible. More specifically, there is nothing in the Sixth Amendment to suggest, nor does it follow from the general accusatory nature of our criminal scheme, that once the adversary process formally begins the government may not make any effort to obtain incriminating evidence from the accused when counsel is not present. The role of counsel in an adversary system is to offer advice and assistance in the preparation of a defense and to serve as a spokesman for the accused in technical legal proceedings. And the Sixth Amendment, of course, protects the confidentiality of communications between the accused and his attorney. But there is no constitutional or historical support for concluding that an accused has a right to have his attorney serve as a sort of guru who must be present whenever an accused has an inclination to reveal incriminating information to anyone who acts to elicit such information at the behest of the prosecution. To the extent the accused is protected from revealing evidence that may be incriminatory, the focus must be on the Fifth Amendment privilege against compulsory self-incrimination. See, e. g., Spano v. New York, supra ; Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936); Ashcraft v. Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192 (1944).5
C
69
The objectives that underlie the exclusionary rule also suggest that the results reached in Massiah and the decision today are incorrect. Although the exclusion of reliable, probative evidence imposes tremendous costs on the judicial process and on society, see, e. g., Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), this Court has nonetheless imposed a rule for the exclusion of such evidence in some contexts in order to deter unlawful police activity. See, e. g., Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). In cases in which incriminating statements made by the accused are entirely voluntary, however, and the government has merely encouraged a third party to talk to the accused and report any incriminating information that the accused might reveal, there is in my view no valid justification for the exclusion of such evidence from trial.6
70
Ordinary citizens are expected to report any criminal activity they might observe, and they are often required under pain of compulsory process to reveal information that may incriminate others, even their friends and relatives. It generally does not matter that the information was obtained as a result of trust or confidence that develops from friendship or family ties. The incriminating information may still be obtained through use of the subpoena power, and in many instances of course it will be voluntarily revealed by the citizen interested in the enforcement of the laws.
71
In cases such as this one and Massiah, the effect of the governmental action is to encourage an informant to reveal information to the authorities that the ordinary citizen most likely would reveal voluntarily. While it is true that the informants here and in Massiah were encouraged to "elicit" the information from the accused, I doubt that most people would find this type of elicitation reprehensible. It involves merely engaging the accused in conversation about his criminal activity and thereby encouraging him voluntarily to make incriminating remarks. There is absolutely no element of coercion, nor is there any interference whatsoever with the attorney-client relationship. Anything the accused might reveal to the informant should, as with revelations he might make to the ordinary citizen, be available for use at trial. This Court has never held that an accused is constitutionally protected from his inability to keep quiet, whether or not he has been encouraged by third-party citizens to voluntarily make incriminating remarks. I do not think the result should be different merely because the government has encouraged a third-party informant to report remarks obtained in this fashion. When an accused voluntarily chooses to make an incriminatory remark in these circumstances, he knowingly assumes the risk that his confidant may be untrustworthy.7
II
72
In holding that the Government has "deliberately elicited" information from the accused here, the Court considers the following factors to be relevant:
73
"First, Nichols was acting under instructions as a paid informant for the Government; second, Nichols was ostensibly no more than a fellow inmate of Henry; and third, Henry was in custody and under indictment at the time he was engaged in conversation by Nichols." Ante, at 270.
74
I disagree with the Court's evaluation of these factors, and would conclude that no deliberate elicitation has taken place.
A.
75
The Court acknowledges that the use of undercover police-work is an important and constitutionally permissible method of law enforcement. Ante, at 272. As the Court observes, Hoffa v. United States, 385 U.S., at 302, 87 S.Ct., at 413, for example, recognizes that the Constitution affords no protection to "a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it," even if that person is an undisclosed informer. And in Weatherford v. Bursey, 429 U.S. 545, 557, 97 S.Ct. 837, 844, 51 L.Ed.2d 30 (1977), we acknowledged the "necessity of undercover work" and "the value it often is to effective law enforcement." See also, e. g., United States v. Russell, 411 U.S. 423, 432, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973); United States v. White, 401 U.S. 745, 752, 91 S.Ct. 1122, 1126, 28 L.Ed.2d 453 (1971).
76
The Court nonetheless holds that once formal criminal proceedings have commenced, such undercover activity in some circumstances may not be constitutionally permissible even though it leads to incriminating statements by an accused that are entirely voluntary and inherently reliable. The reason for this conclusion is not readily apparent from the Court's opinion.
77
The fact that police carry on undercover activities should not automatically be transmuted because formal criminal proceedings have begun. It is true that once such proceedings have commenced, there is an "adversary" relationship between the government and the accused. But an adversary relationship may very well exist prior to the commencement of formal proceedings. And, as this Court has previously recognized, many events, while perhaps "adversarial," are not of such a nature that an attorney can provide any special knowledge or assistance to the accused as a result of his legal expertise. See, e. g., United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973) (no right to an attorney at pretrial photographic identifications at which the accused is not present); Gilbert v. California, 388 U.S., at 267, 87 S.Ct., at 1953 (no right to an attorney at taking of handwriting exemplars). When an attorney has no such special knowledge or skill, the Sixth Amendment does not give the accused a right to have an attorney present.
78
In addition, the mere bringing of formal proceedings does not necessarily mean that an undercover investigation or the need for it has terminated. A person may be arrested on the basis of probable cause arising in the immediate aftermath of an offense and during early stages of investigation, but before the authorities have had an opportunity to investigate fully his connection with the crime. And for the criminal, there is no rigid dichotomy between the time before commencement of former criminal proceedings and the time after such proceedings have begun. Once out on bail the accused remains free to continue his criminal activity, and very well may decide to do so. See, e. g., Rogers v. United States, 325 F.2d 485 (CA 10 1963), cited in Massiah v. United States, 377 U.S., at 212, 84 S.Ct., at 1206 (WHITE, J., dissenting). Indeed, in Massiah itself there was evidence that after indictment one of the defendants attempted to persuade a Government agent to go into the narcotics business with him. Id., at 212-213, 84 S.Ct., at 1206-1207. (WHITE, J., dissenting). As the Court stated in Massiah : "We do not question that in this case, as in many cases, it was entirely proper to continue an investigation of the suspected criminal activities of the defendant and his alleged confederates, even though the defendant had already been indicted." Id., at 207, 84 S.Ct., at 1203. I would hold that the Government's activity here is merely a continuation of its lawful authority to use covert operations in investigating a criminal case after formal proceedings have commenced.8
B
79
The Court secondly states that here the informant ostensibly was no more than a fellow inmate, and thus the conversation "stimulated" by him may lead the accused to communicate information that he would not intentionally reveal to persons known to be government agents, who are "arm's-length" adversaries. While the Court deems relevant the question whether the informant took active steps as a result of a prearranged deal with the Government to elicit incriminating information from the accused, ante, at 273.9 I do not think this type of encounter is one that is properly viewed as a critical stage at which counsel is necessary to provide guidance or protection to the accused to enable him to cope with unfamiliar legal proceedings, or to counterbalance the expertise of a professional prosecutor. Rather, as previously discussed, when the accused voluntarily reveals incriminating information to a third party in this context. I do not think there is any justification for excluding his admissions from trial whether or not the third party was acting at the behest of the prosecution.
C
80
Finally, the Court considers relevant the fact that because the accused is confined and in custody, "subtle influences" are present "that will make him particularly susceptible to the ploys of undercover agents." Ante, at 274. An appeal to an accused's conscience or willingness to talk, however, does not in my view have a sufficiently overbearing impact on the accused's will to warrant special constitutional protection.
81
In the instant case, for example, if the informant had been in the cell next to respondent and overheard him make incriminating statements to his cellmate, no Sixth Amendment violation would have occurred. See, e. g., United States v. Hearst, 563 F.2d 1331, 1347-1348 (CA9 1977), cert. denied, 435 U.S. 1000, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978). In such circumstances it would be clear that the Government had engaged in no affirmative conduct specifically designed to extract incriminating statements from the accused. The same would be true if the accused made a statement that a prison guard happened to overhear. See, e. g., United States v. Barfield, 461 F.2d 661 (CA5 1972). I think there likewise is no Sixth Amendment violation when the accused's cellmate initiates conversation with him, and the accused makes incriminatory admissions. The fact that the cellmate is an informant has no impact on the accused, because the informant appears to him to be an ordinary cellmate. Whether the accused makes any statements is therefore dependent on his own disposition to do so, despite the fact that he is confined in a cell.
III
82
Finally, I disagree with the Court's reading of the facts, though that reading obviously narrows the scope of its holding. Here the District Court found that the Government did not employ Nichols to question respondent or to seek information from him, but merely to report what he heard. The Government had no part in having Nichols placed in the jail cell with respondent. App. to Pet. for Cert. 39a. And the record in my view fails to support the conclusion that Nichols engaged in any affirmative conduct to elicit information from respondent. The Court of Appeals did not either explicitly or implicitly find to the contrary. Thus, this Court's factual conclusions are not supported by the findings of the District Court. I consequently would conclude, as did the District Court, that here respondent has not been denied his Sixth Amendment right to counsel.
83
For the foregoing reasons, I would reverse the judgment of the Court of Appeals.
1
The record does disclose that on November 21, 1972, the same day the agent contacted Nichols, the agent's supervisor interrogated Henry at the jail. After denying participation in the robbery, Henry exercised his right to terminate the interview.
2
Henry also asked Nichols if he would help him once Nichols was released. Henry requested Nichols to go to Virginia Beach and contact a woman there. He prepared instructions on how to find the woman and wanted Nichols to tell her to visit Henry in the Norfolk jail. He explained that he wanted to ask the woman to carry a message to his partner, who was incarcerated in the Portsmouth city jail. Henry also gave Hichols a telephone number and asked him to contact an individual named "Junior" or "Nail." In addition Henry asked Nichols to provide him with a floor plan of the United States Marshals' office and a handcuff key because Henry intended to attempt an escape.
3
Joseph Sadler, another of Henry's cellmates, also testified at trial. He stated that Henry had told him that Henry had robbed a bank with a man named "Lucky" or "Luck." Sadler testified that on advice of counsel he informed Government agents of the conversation with Henry. Sadler was not a paid informant and had no arrangement to monitor or report on conversations with Henry.
4
In his § 2255 petition, Henry also alleged that Sadler's testimony was perjurious; that the Government failed to disclose Brady material, see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); that the United States Attorney's argument to the jury was impermissibly prejudicial; and that his trial counsel was incompetent. The District Court rejected each of these grounds, and none of these issues is before this Court.
5
The Court of Appeals acknowledged that the testimony of Sadler, another cellmate of Henry, supported the conviction but was not willing to conclude beyond a reasonable doubt that Nichols' testimony did not influence the jury. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).
6
Although both the Government, and Mr. Justice REHNQUIST in dissent, question the continuing vitality of the Massiah branch of the Sixth Amendment, we reject their invitation to reconsider it.
7
The affidavit of the agent discloses that "Nichols had been paid by the FBI for expenses and services in connection with information he had provided" as an informant for at least a year. The only reasonable inference from this statement is that Nichols was paid when he produced information, not that Nichols was continuously on the payroll of the FBI. Here, the service requested of Nichols was that he obtain incriminating information from Henry; there is no indication that Nichols would have been paid if he had not performed the requested service.
8
Two aspects of the agent's affidavit are particularly significant. First, it is clear that the agent in his discussions with Nichols singled out Henry as the inmate in whom the agent had a special interest. Thus, the affidavit relates that "I specifically recall telling Nichols that he was not to question Henry or these individuals" and "I recall telling Nichols not to initiate any conversations with Henry regarding the bank robbery charges," but to "pay attention to the information furnished by Henry." (Emphasis added.) Second, the agent only instructed Nichols not to question Henry or to initiate conversations regarding the bank robbery charges. Under these instructions, Nichols remained free to discharge his task of eliciting the statements in myriad less direct ways.
9
The situation where the "listening post" is an inanimate electronic device differs; such a device has no capability of leading the conversation into any particular subject or prompting any particular replies. See, e. g., United States v. Hearst, 563 F.2d 1331, 1347-1348 (CA9 1977), cert. denied, 435 U.S. 1000, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978). However, that situation is not presented in this case, and there is no occasion to treat it; nor are we called upon to pass on the situation where an informant is placed in close proximity but makes no effort to stimulate conversations about the crime charged.
10
No doubt the role of the agent at the time of the conversations between Massiah and his codefendant was more active than that of the federal agents here. Yet the additional fact in Massiah that the agent was monitoring the conversations is hardly determinative. In both Massiah and this case, the informant was charged with the task of obtaining information from an accused. Whether Massiah's codefendant questioned Massiah about the crime or merely engaged in general conversation about it was a matter of no concern to the Massiah Court. Moreover, we deem it irrelevant that in Massiah the agent had to arrange the meeting between Massiah and his codefendant while here the agents were fortunate enough to have an undercover informant already in close proximity to the accused.
11
This is not to read a "custody" requirement, which is a prerequisite to the attachment of Miranda rights, into this branch of the Sixth Amendment. Massiah was in no sense in custody at the time of his conversation with his codefendant. Rather, we believe the fact of custody bears on whether the Government "deliberately elicited" the incriminating statements from Henry.
12
This is admittedly not a case such as Massiah where the informant and the accused had a prior longstanding relationship. Nevertheless, there is ample evidence in the record which discloses that Nichols had managed to become more than a casual jailhouse acquaintance. That Henry could be induced to discuss his past crime is hardly surprising in view of the fact that Nichols had so ingratiated himself that Henry actively solicited his aid in executing his next crime—his planned attempt to escape from the jail.
13
The holding of the Court of Appeals that this was not harmless error is on less firm grounds in view of the strong evidence against Henry, including the testimony of a neutral fellow inmate, Henry's rental of the hideaway house, and his presence there with the other participants in the robbery before the crime. The Government, however, has not argued that the error was harmless, and on balance, we are not inclined to disturb the determination of the Court of Appeals.
14
Although it does not bear on the constitutional question in this case, we note that Disciplinary Rule 7-104(A)(1) of the Code of Professional Responsibility provides:
"(A) During the course of his representation of a client a lawyer shall not:
"(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so."
See also Ethical Consideration 7-18.
*
By reserving the question whether the mere presence of an informant in a jail cell violates Massiah, the Court demonstrates that its holding is not premised upon such a theory. Ante, at 269, n. 9.
1
For purposes of this case, I see no need to abandon Massiah v. United States, as Mr. Justice REHNQUIST does.
2
The planted bug, of course, not only underscored the agent's deliberate design to obtain incriminating information. By permitting the agent to monitor whether the codefendant informant abided by his agreement, it all but ensured that affirmative elicitation in fact would occur.
3
It is noteworthy that the phase "deliberately elicited" appears at least three times in the Massiah opinion. See 377 U.S., at 204, 206, 84 S.Ct., at 1201, 1203.
4
The Court's "likely to induce" analysis might also be subjected to the following criticism:
"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." Rhode Island v. Innis, 446 U.S. 291, 304, 100 S.Ct. 1682, 1691, 64 L.Ed.2d 297 (1980) (opinion concurring in judgment).
5
Mr. Justice POWELL observes, ante, at 276, that "Massiah serves the salutary purpose of preventing police interference with the relationship between a suspect and his counsel once formal proceedings have been initiated." I fail to see any greater "interference" on the facts of this case than in a case where an inmate is permitted to have a conversation with a trusted visitor, but with an electronic listening device in place, a practice Mr. Justice POWELL finds unobjectionable. Ibid. Indeed, bugging might be said to present an even stronger case for finding "deliberate elicitation." There is, after all, a likelihood that the inmate will place added confidence in a relative or longtime friend who visits him. Nichols, in contrast, had not known Henry previously. Moreover, with bugging, a defendant cannot know what he is dealing with. He lacks the ability intelligently to gauge the probability that his confidences will be "reported" back to government agents. See Wilson v. Henderson, 584 F.2d 1185, 1191 (CA2 1978), cert. denied, 442 U.S. 945, 99 S.Ct. 2892, 61 L.Ed.2d 316 (1979).
6
Rejection of an objective test in this context is not inconsistent with Rhode Island v. Innis, supra, since "the policies underlying the two constitutional protections [Fifth and Sixth Amendments] are quite distinct." 446 U.S., at 300, n. 4, 100 S.Ct., at 1689, n. 4. Miranda § "prophylactic rule," see Michigan v. Payne, 412 U.S. 47, 53, 93 S.Ct. 1966, 1970, 36 L.Ed.2d 736 (1973), seeks to protect a suspect's privilege against self-incrimination from "the compulsion inherent in custodial surroundings" when "interrogation" occurs. Miranda v. Arizona, 384 U.S. 436, 458, 86 S.Ct. 1602, 1619, 16 L.Ed.2d 694 (1966). Thus, in Miranda cases, the degree of compulsion is critical. Beyond an objectively defined "pressure point," statements will be deemed presumedly compelled and therefore properly excluded, absent the countercoercive effect of Miranda warnings. See id., at 467, 86 S.Ct., at 1624. Massiah, in contrast to Miranda, is not rooted in the Fifth Amendment privilege against self-incrimination. Rather, it is expressly designed to counter "deliberat[e]" interference with an indicted suspect's right to counsel. By focussing on deliberateness, Massiah imposes the exclusionary sanction on that conduct that is most culpable, most likely to frustrate the purpose of having counsel, and most susceptible to being checked by a deterrent. Cf. Brown v. Illinois, 422 U.S. 590, 604, 95 S.Ct. 2254, 2262, 45 L.Ed.2d 416 (1975).
7
The Court also notes that Henry, being located in the same cellblock as Nichols, was accessible to the informant. It nonetheless totally ignores the fact that the investigating agent had nothing to do with placing Henry and Nichols in the same cellblock. Indeed, the record shows that Coughlin did not confer with Nichols initially with the purpose of obtaining evidence about Henry; rather, the agent's affidavit indicates that he was unaware that Nichols and Henry were in the same cellblock until Nichols informed him. App. to Pet. for Cert. 57a-58a.
8
The record shows that Nichols "had been paid by the FBI for expenses and services in connection with information he had provided on . . . previous occasions," id., at 57a, and that "Nichols was paid by the FBI for expenses and services in connection with the [investigation] of Henry." Id., at 59a. These facts establish at most an amorphous course of dealing, emanating from an unspecified number of previous investigations. They do not show that Nichols previously was paid only when he produced information. There can be no assurance that Nichols would not have been paid had he failed to come up with evidence implicating Henry or other federal defendants. Nor is there anything to indicate that Nichols acted on this assumption.
9
The Court's suggestion to the contrary, see ante, at 271, n. 8, based on three isolated segments of Coughlin's affidavit, exemplifies its treatment of the record. The relevant portion of Coughlin's affidavit reads in full:
"Nichols advised that he was in the same cellblock as Billy Gale Henry as well as with other prisoners who had Federal charges against them. I recall telling Nichols at this time to be alert to any statements made by these individuals regarding the charges against them. I specifically recall telling Nichols that he was not to question Henry or these individuals about the charges against them, however, if they engaged him in conversation or talked in front of him, he was requested to pay attention to their statements. I recall telling Nichols not to initiate any conversations with Henry regarding the bank robbery charges against Henry, but that if Henry initiated the conversations with Nichols, I requested Nichols to pay attention to the information furnished by Henry." App. to Pet. for Cert. 58a (emphases added).
Since the affidavit containing this statement was submitted in Henry's case, it is neither surprising nor significant that it occasionally refers to Henry by name, while not referring specifically to remarks Coughlin might have made about other detainees. The Court's reading of this passage as establishing that "the agent . . . singled out Henry as the inmate in whom the agent had a special interest" seems to me extraordinary.
10
Indeed, here, unlike the scenario sketched by Mr. Justice POWELL, there was no instruction "to engage . . . in some conversations." It would seem that, a fortiori, Henry's statements should not be excluded.
1
The Court observed: "It is not enough to assume that counsel . . . precipitated into the case [on the morning of the trial] thought there was no defense, and exercised their best judgment in proceeding to trial without preparation. Neither they nor the court could say what a prompt and thoroughgoing investigation might disclose as to the facts. No attempt was made to investigate. No opportunity to do so was given. Defendants were immediately hurried to trial. Chief Justice Anderson, after disclaiming any intention to criticize harshly counsel who attempted to represent defendants at the trials, said: '. . . The record indicates that the appearance was rather pro forma than zealous and active. . . . ' Under the circumstances disclosed, we hold that defendants were not accorded the right of counsel in any substantial sense. To decide otherwise, would simply be to ignore actualities." 287 U.S., at 58, 53 S.Ct., at 60.
2
This rationale has also been applied to the arraignment, where "[a]vailable defenses may be as irretrievably lost, if not then and there asserted, as they are when an accused represented by counsel waives a right for strategic purposes," Hamilton v. Alabama, 368 U.S. 52, 54, 82 S.Ct. 157, 159, 7 L.Ed.2d 114 (1961), and to a preliminary hearing, where such defenses may similarly be lost when the accused enters his plea. White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963). See also United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (lineup); Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967) (combination probation-revocation and sentencing hearing); Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) (preliminary examination); Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977) (one-person showup at a hearing, which combined the functions of a preliminary arraignment and preliminary examination, that was adversary in nature and at which the accused was entitled to move for suppression of evidence and dismissal of charges).
3
As this Court stated in Ash, the "historical background suggests that the core purpose of the counsel guarantee was to assure 'Assistance' at trial, when the accused was confronted with both the intricacies of the law and the advocacy of the public prosecutor." 413 U.S., at 309, 93 S.Ct., at 2573. The English common-law rule, which severely limited the right of a person accused of a felony to consult with counsel, was apparently rejected by the Framers' as inherently irrational. Id., at 306-307, 93 S.Ct., at 2572-2573.
4
Any dealings that an accused may have with his attorney are of course confidential, and anything the accused says to his attorney is beyond the reach of the prosecution. But this Court has never held, nor does it hold today, that a confrontation or stage of the proceedings is critical because it may lead to the accused's conviction. Rather, the test under the Sixth Amendment as recognized in Ash "call[s] for examination of the event in order to determine whether the accused required aid in coping with legal problems or assistance in meeting his adversary." Id., at 313, 93 S.Ct., at 2575.
5
Whatever may be the appropriate role of counsel in protecting the accused's privilege against compulsory self-incrimination, see, e. g., Fare v. Michael C., 442 U.S. 707, 719, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979), when, as in this case, the accused merely engages in conversation with someone whom he does not know to be a governmental agent, the hazards of coercion and governmental overreaching are entirely absent.
6
As stated by Mr. Chief Justice BURGER in his dissenting opinion in Brewer v. Williams, 430 U.S. 387, 421-422, 97 S.Ct. 1232, 1251, 51 L.Ed.2d 424 (1977):
"[U]nlawfully obtained evidence is not automatically excluded from the factfinding process in all circumstances. In a variety of contexts we inquire whether application of the rule will promote its objectives sufficiently to justify the enormous cost it imposes on society. 'As with any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served.' United States v. Calandra [414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974)]; accord, Stone v. Powell, supra, 428 U.S., at 486-491, 96 S.Ct., at 3048-3051; United States v. Janis [428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976)]; Brown v. Illinois, 422 U.S. 590, 606-608-609, 95 S.Ct. 2254, 2263-2264-2265, 45 L.Ed.2d 416 (1975) (POWELL, J., concurring in part); United States v. Peltier [422 U.S. 531, 538-539, 95 S.Ct. 2313, 2318, 45 L.Ed.2d 374 (1975)]." (Footnote omitted.)
7
Cf. United States v. White, 401 U.S. 745, 752, 91 S.Ct. 1122, 1126, 28 L.Ed.2d 453 (1971), where this Court stated:
"Inescapably, one contemplating illegal activities must realize and risk that his companions may be reporting to the police. If he sufficiently doubts their trustworthiness, the association will very probably end or never materialize. But if he has no doubts, or allays them, or risks what doubt he has, the risk is his."
8
I also disagree with the Court that the fact that Nichols was a paid informant and on a contingency fee is relevant in making this determination. See ante, at 270.
9
It bears emphasis that even under the Court's holding today affirmative steps to induce the accused to reveal incriminating information are required before there can be a "deliberate" elicitation in violation of the Sixth Amendment. As noted by Mr. Justice POWELL in his concurring opinion:
"Massiah does not prohibit the introduction of spontaneous statements that are not elicited by governmental action. Thus, the Sixth Amendment is not violated when a passive listening device collects, but does not induce, incriminating comments. See United States v. Hearst, 563 F.2d 1331, 1347-1348 (CA9 1977), cert. denied, 435 U.S. 1000, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978). Similarly, the mere presence of a jailhouse informant who had been instructed to overhear conversations and to engage a criminal defendant in some conversations would not necessarily be unconstitutional. In such a case, the question would be whether the informant's actions constituted deliberate and 'surreptitious interrogatio[n]' of the defendant. If they did not, there would be no interference with the relationship between client and counsel." Ante, at 276.
Deliberate elicitation does not and cannot depend on the subjective intention of the government or its informant to obtain incriminatory evidence from the accused within the limits of the law. Such an intention of course is the essence of conscientious policework.
| 01
|
447 U.S. 381
100 S.Ct. 2247
65 L.Ed.2d 205
Alphonse BIFULCO, Petitioner,v.UNITED STATES.
No. 79-5010.
Argued Feb. 27, 1980.
Decided June 16, 1980.
Syllabus
Section 406 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (Act) provides that "[a]ny person who attempts or conspires to commit any offense defined in this title is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy" (the "target offense"). Petitioner and others were convicted of violating § 406 by conspiring to violate § 401(a)(1) of the Act by knowingly manufacturing, distributing, and possessing a controlled substance. In accordance with the provisions of § 401(b)(1)(B) prescribing penalties for violations of § 401(a)(1), petitioner was sentenced to a term of imprisonment, a fine, and a 5-year special parole term to be served upon completion of the term of imprisonment. The Court of Appeals affirmed petitioner's conviction, and thereafter he filed an action under 28 U.S.C. § 2255 to vacate his sentence, claiming that the sentence was unlawful because § 406 does not authorize the imposition of a special parole term. The District Court held that petitioner had been properly sentenced, and the Court of Appeals affirmed.
Held: Section 406 of the Act does not authorize the imposition of a special parole term even though that sanction is included within the penalty provision of the target offense. Pp. 387-401.
(a) A "plain meaning" interpretation of the term "imprisonment" in § 406 does not support the position that the term means a term of incarceration plus special parole made applicable by the target offense's penalty provisions. Moreover, the structure of the Act read as a whole supports the conclusion that § 406 defines the types of punishment authorized for conspirators—imprisonment, fine, or both—and sets maximum limits on those sanctions through reference to the penalty provisions of the target offense, but does not incorporate by reference any provisions for special parole. Pp. 388-390.
(b) Nor does the Act's legislative history demonstrate that Congress intended that the penalties authorized for substantive offenses, and those for conspiracies to commit them, were to be identical, thus authorizing special parole terms for conspiracy convictions. Instead, the history supports the view that § 406 authorizes two types of sanctions—fines and imprisonment—and fixes the maximum amount of each that may be imposed by reference to the target offense's penalty provisions. Pp. 391-398.
(c) A reading of § 406 to include the special parole provisions of target offenses cannot be supported on the ground that Congress' principal objective in enacting the Act's penalty provisions—to deter professional criminals from engaging in drug trafficking for profit—renders it unreasonable to ascribe to Congress the intent to authorize special parole for isolated substantive offenses while withholding this sentencing tool for conspiracies. A comparison of those drug offenses for which Congress clearly authorized special parole terms with those for which it clearly did not, does not reveal a coherent pattern based on the asserted justification for escalated sanctions. Moreover, since § 406 deals with both conspiracies and attempts, and prescribes an identical range of punishment for both, it is not surprising that Congress would provide for less stringent sanctions to be imposed for violations of § 406 than for a completed substantive offense. P. 398-399.
600 F.2d 407, reversed and remanded.
Steven Lloyd Barrett, New York City, for petitioner.
Harlon L. Dalton, New York City, for respondent.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
The issue presented in this case is whether § 406 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (Act), 84 Stat. 1265, 21 U.S.C. § 846,1 authorizes a sentencing court to impose a term of special parole upon a defendant who is convicted of conspiracy to manufacture or distribute a controlled substance.
2
* Section 406 provides:
3
"Any person who attempts or conspires to commit any offense defined in this title is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.
4
The object of the conspiracy at issue in this case was the commission of the substantive offense defined in § 401(a) of the Act, 21 U.S.C. § 841(a). That subsection reads:
5
"Except as authorized by this title, it shall be unlawful for any person knowingly or intentionally—
6
"(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or
7
"(2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance."
8
The penalties for violations of § 401(a) are set forth in § 401(b). That subsection authorizes the imposition of terms of imprisonment, fines, and, in some instances, mandatory minimum terms of special parole. The range of permissible punishments varies depending on the nature of the controlled substance involved, and on whether the defendant has been convicted previously of a drug offense. The penalty provision at issue is § 401(b)(1)(B).2 It states:
9
"Except as otherwise provided in section 405 [which deals with distribution to minors], any person who violates subsection (a) of this section shall be sentenced as follows:
10
* * * * *
11
"In the case of a controlled substance in schedule I or II which is not a narcotic drug or in the case of any controlled substance in schedule III, such person shall be sentenced to a term of imprisonment of not more than 5 years, a fine or not more than $15,000, or both. If any person commits such a violation after one or more prior convictions of him for an offense punishable under this paragraph, or for a felony under any other provision of this title or title III or other law of the United States relating to narcotic drugs, marihuana, or depressant or stimulant substances, have become final, such person shall be sentenced to a term of imprisonment of not more than 10 years, a fine of not more than $30,000, or both. Any sentence imposing a term of imprisonment under this paragraph shall, in the absence of such a prior conviction, impose a special parole term of at least 2 years in addition to such term of imprisonment and shall, if there was such a prior conviction, impose a special parole term of at least 4 years in addition to such term of imprisonment."
12
Section 401(c) describes the operation of the special parole term provisions in greater detail. It states:
13
"A special parole term imposed under this section or section 405 may be revoked if its terms and conditions are violated. In such circumstances the original term of imprisonment shall be increased by the period of the special parole term and the resulting new term of imprisonment shall not be diminished by the time which was spent on special parole. A person whose special parole term has been revoked may be required to serve all or part of the remainder of the new term of imprisonment. A special parole term provided for in this section or section 405 shall be in addition to, and not in lieu of, any other parole provided for by law."
14
The narrow, but important, question presented in this case is whether § 406, which states the penalty for conspiracy as "imprisonment or fine or both," but limits maximum punishment by reference to the penalty provisions of the substantive target offense, authorizes the imposition of a special parole term where that sanction is included within the penalty provisions of the target offense.
II
15
In an indictment filed in December 1976 with the United States District Court for the Eastern District of New York, petitioner Alphonse Bifulco and others were charged with a single count of conspiring to violate § 401(a)(1) by knowingly and intentionally manufacturing, distributing, and possessing substantial quantities of phencyclidine, a schedule III controlled substance. This conspiracy was charged as a violation of § 406. A jury found petitioner and several codefendants guilty of the offense charged, and petitioner was sentenced to a 4-year term of imprisonment, a fine of $1,000, and a 5-year special parole term.3 The United States Court of Appeals for the Second Circuit subsequently affirmed petitioner's conviction in an unpublished order.
16
In January 1979, petitioner, pursuant to 28 U.S.C. § 2255, filed pro se a motion to vacate his sentence. He claimed that the sentence was unlawful because § 406 does not authorize the imposition of a special parole term to be served upon completion of a term of imprisonment. The District Court held that petitioner had been properly sentenced, and dismissed his complaint. App. 7.
17
On appeal, the Second Circuit affirmed. 600 F.2d 407 (1979). In a per curiam opinion, that court followed two other Courts of Appeals that had held that § 406 authorizes the imposition of a special parole term. See United States v. Burman, 584 F.2d 1354, 1356-1358 (CA4 1978), cert. denied, 439 U.S. 1118, 99 S.Ct. 1026, 59 L.Ed.2d 77 (1979), and United States v. Jacobson, 578 F.2d 863, 867-868 (CA10), cert. denied, 439 U.S. 932, 99 S.Ct. 324, 58 L.Ed.2d 327 (1978). It also relied on the decision in United States v. Dankert, 507 F.2d 190 (CA5 1975), which reached a similar result with respect to the closely analogous sentencing provisions of § 1013 of the Act, 21 U.S.C. § 963 (proscribing any conspiracy to import a controlled substance).
18
Shortly after the Second Circuit's decision in this case, the United States Court of Appeals for the Third Circuit reached the opposite conclusion on the issue and held that a special parole term may not be imposed under § 406. United States v. Mearns, 599 F.2d 1296 (3rd Cir. 1979), aff'g 461 F.Supp. 641 (Del.1978) cert. pending, No. 79-415. We granted certiorari, 444 U.S. 897, 100 S.Ct. 205, 62 L.Ed.2d 133 (1979), to resolve this conflict among the Courts of Appeals.4
III
19
The Government recognizes, Brief for United States 31, n. 26, that our examination of the meaning of § 406 must be informed by the policy that the Court has expressed as "the rule of lenity." In past cases the Court has made it clear that this principle of statutory construction applies not only to interpretations of the substantive ambit of criminal prohibitions, but also to the penalties they impose. See, e. g., United States v. Batchelder, 442 U.S. 114, 121, 99 S.Ct. 2198, 2202, 60 L.Ed.2d 755 (1979); Simpson v. United States, 435 U.S. 6, 14-15, 98 S.Ct. 909, 913-914, 55 L.Ed.2d 70 (1978). The Court's opinion in Ladner v. United States, 358 U.S. 169, 178, 79 S.Ct. 209, 214, 3 L.Ed.2d 199 (1958), states the rule: "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." See Whalen v. United States, 445 U.S. 684, 695, n. 10, 100 S.Ct. 1432, 1440,n. 10, 63 L.Ed.2d 715, n. 10 (1980); Simpson v. United States, 435 U.S., at 15, 98 S.Ct., at 914.
20
The Court has emphasized that the "touchstone" of the rule of lenity "is statutory ambiguity." See, e. g., Lewis v. United States, 445 U.S. 55, 65, 100 S.Ct. 915, 921, 63 L.Ed.2d 198 (1980). Where Congress has manifested its intention, we may not manufacture ambiguity in order to defeat that intent. The Government argues here that there can be no uncertainty about Congress' intent to authorize a special parole term as a penalty for a conspiracy offense, whenever that penalty is authorized for the offense that was the target of the conspiracy. In advancing this argument, it focuses on the language and structure, legislative history, and motivating policies of the Act. We examine these three factors in turn.
21
* Language and structure of the Act. Several reviewing courts have adopted the view that the special parole term specified in § 401(b)(1)(B) is necessarily included within the "term of imprisonment" to which it is appended. See, e. g., United States v. Jacobson, 578 F.2d, at 868. Thus, when Congress stated in § 406 that a person guilty of attempt or conspiracy "is punishable by imprisonment," it meant to include within the term "imprisonment" any special parole term made applicable by the penalty provisions of the substantive offense. This argument is not too persuasive, however, because special parole is not authorized for all substantive offenses to which § 406 refers. Therefore, "imprisonment" within the meaning of § 406 does not always include special parole. As a period of supervision served upon completion of a prison term, special parole is also functionally distinct from incarceration. Finally, the penalty provisions of those substantive offenses that authorize special parole terms reflect this functional dichotomy. Section 401(b)(1)(B), for example, twice provides that a special parole term of years is to be imposed "in addition to such term of imprisonment." (Emphasis added.) We agree, therefore, with the conclusion of those courts that have rejected the argument that "imprisonment" in § 406 plainly means a term of incarceration plus special parole. See, e. g., United States v. Jacquinto, 464 F.Supp. 728, 729-730 (ED Pa.1979).
22
Faced with these obstacles, the Government cannot rely solely on a "plain meaning" interpretation of the term "imprisonment." Thus, in its principal argument, the Government asks this Court to take a broader view of the relationship between § 406 and the penalty provisions for substantive offenses and to conclude that the structure of the Act, viewed as a whole, creates an inference that § 406 incorporates by reference those substantive penalty provisions. The Government contends that the language of the statute supports this reading because § 406 authorizes penalties "which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy." While this argument is not wholly without force, it ignores the immediately preceding words of § 406, which state that "[a]ny person who attempts or conspires to commit any offense defined in this title is punishable by imprisonment or fine or both." (Emphasis added.)5 Petitioner argues that § 406 defines the types of punishment authorized for conspirators—imprisonment, fine, or both—and sets maximum limits on those sanctions through reference to the penalty provisions of the target offense. Petitioner's reading of the language of § 406, and the sentencing scheme that it proposes, is no less plausible than the Government's. Moreover, it is petitioner's reading that finds further support in the structure of the Act read as a whole.
23
Section 406 is not the only provision of the Act that defines sentences by reference to the penalty provisions of other offenses. Section 405(a) of the Act, 21 U.S.C. § 845(a), which enhances punishment for one convicted of distributing a controlled substance to a minor, provides:
24
"Any person at least eighteen years of age who violates section 401(a)(1) by distributing a controlled substance to a person under twenty-one years of age is . . . punishable by (1) a term of imprisonment, or a fine, or both, up to twice that authorized by section 401(b), and (2) at least twice any special parole term authorized by section 401(b), for a first offense involving the same controlled substance and schedule." (Emphasis supplied.)6
25
At the least, Congress' separate enumeration of intended penalties in § 405 confirms its design to adhere to the functional distinction between "imprisonment, or a fine, or both" and the unique and novel concept of special parole. That no reference is made to special parole in § 406 thus supports petitioner's view that Congress did not intend it to constitute an element of the sentence imposed upon one convicted of conspiracy or attempt.7
26
Further proof that Congress intended special parole to be imposed only for certain substantive offenses defined in § 401 and § 405, and not for other offenses under the Act, is found in § 401(c), which defines the workings of special parole. That subsection states: "A special parole term imposed under this section or section 405 may be revoked if its terms and conditions are violated." (Emphasis supplied.) One convicted and sentenced for conspiracy under § 406 cannot be said to have had his sentence "imposed under" § 401 or § 405.8
B
27
Legislative history. Conceding that Congress' draftsmanship when it enacted § 406 may have been less than "explicit," Brief for United States 17, and n. 10, the Government asks this Court to look beyond the ambiguous language of the statute, and to give its words "their fair meaning in accord with the manifest intent of the lawmakers." United States v. Brown, 333 U.S. 18, 26, 68 S.Ct. 376, 380, 92 L.Ed. 442 (1948). The Government argues that the legislative history of the Act demonstrates that Congress intended that the penalties authorized for substantive offenses, and those for conspiracies to commit them, were to be identical.
28
It is true that prior to the Act federal narcotics legislation provided for a congruence between sentences authorized for substantive violations and sentences authorized for conspiracies.9 A similar congruence was a feature of the several bills introduced in Congress in 1969 that were the forerunners of the Act. But a special parole term, a sanction previously unknown in the administration of our system of criminal justice, was not authorized as a penalty for any offense in those initial proposals.10
29
The special parole concept first was presented to Congress by John Ingersoll, Director of the Bureau of Narcotics and Dangerous Drugs, in testimony before a Senate Subcommittee on October 20, 1969. See Narcotics Legislation: Hearings on S. 1895 et al. before the Subcommittee to Investigate Juvenile Delinquency of the Senate Committee on the Judiciary, 91st Cong., 1st Sess., 663, 676 (1969). The Attorney General earlier had sought Subcommittee approval for further input from the Justice Department on the penalty structures in the pending legislation, id., at 255, and Mr. Ingersoll presented several alternative penalty schemes for the Subcommittee's consideration.11 His comments to the Subcommittee concerning the special parole provisions were, in their entirety, as follows:
30
"Another requirement that has been included in the alternative penalty schemes is a special parole term that is a part of the illicit trafficking sentence structure. Just as incarceration is not always a meaningful answer to effective rehabilitation, certainly incarceration without an adequate supervisory followup after release is not in the best interest of society.
31
"Therefore, we have required a special parole term so that persons sentenced for trafficking violations would be placed under supervision for a period of time regardless of whether they are incarcerated or their sentence probated or suspended. The intent here is to give the judges another tool for sentencing and another means of protecting society when dealing with the drug violator." Id., at 676.
32
Mr. Ingersoll did not specify whether special parole terms were to be authorized for conspiracies to commit trafficking offenses, see n. 11, supra, and the bill that eventually was approved by the full Senate Committee on the Judiciary was no less ambiguous. See S.Rep. No. 91-613, pp. 116-118 (1969). That bill, S. 3246, 91st Cong., 2d Sess. (1970), in its §§ 501(c)(1) and (2), mandated the imposition of a special parole term whenever a prison sentence was imposed under the forerunners to §§ 401(b)(1)(A) and (B).12 But § 504 of the bill, the forerunner to § 406, included no reference to special parole.13
33
The Judiciary Committee's section-by-section analysis of S. 3246 noted that special parole terms were to be imposed for certain substantive offenses, S.Rep. No. 91-613, at 25, but with respect to the "endeavor and conspiracy" provision stated only: "Section 504 provides that any person who endeavors or conspires to commit any offense defined in this title may be punished by imprisonment and/or a fine, which may not exceed the maximum punishment prescribed for the offense." Id., at 26. The Government argues that the Subcommittee meant to include a specific reference to special parole in § 504 when it amended the substantive offense sections in response to Mr. Ingersoll's testimony. For unexplained reasons, however, the Subcommittee neglected to make the conforming change in the conspiracy section. Brief for United States 22. The wording of the Judiciary Committee's section-by-section analysis, however, would seem to indicate its awareness that § 504, unlike the subsections of § 501 that had been amended to incorporate the concept of special parole, authorized punishments consisting only of "imprisonment and/or a fine."
34
Further support for the view that the Judiciary Committee knew what it was doing when it approved § 504 of S. 3246 may be found in those provisions of the bill that dealt with a second or subsequent offense. Under the Act, doubly enhanced penalties for second offenders are included within the provisions defining the sentences for individual substantive offenses. See, e. g., § 401(b)(1)(B), quoted, supra, at 383-384. S. 3246, however, contained a separate provision, § 508(a), that set out the penalties for repeat offenders. It stated:
35
"Any person convicted of any offense under this Act is, if the offense is a second or subsequent offense, punishable by a term of imprisonment twice that authorized, by twice the fine otherwise authorized, or by both. If the conviction is for an offense punishable under subsection 501(c)(1) or subsection 501(c)(2) of this Act [the forerunners to §§ 401(b)(1)(A) and (B)], and if it is the offender's second or subsequent offense, the court shall impose, in addition to any terms of imprisonment and fine, twice the special parole term otherwise authorized." S.Rep. No. 91-613, at 119-120.14
36
We think this section of the Senate bill makes it fairly evident that the Committee recognized that it had provided for the imposition of special parole terms under various subsections of § 501, but that it had not done so generally.15 Thus, § 508(a) of S. 3246, like § 405 of the Act, reveals that Congress' failure explicitly to incorporate the concept of special parole into the Act's conspiracy provision, alleged by the Government to have been inadvertent, in fact may have been intentional.
37
The only reference made to the special parole provisions during the Senate debates on S. 3246 tends to confirm this conclusion. Senator Dodd, the Subcommittee chairman, summarized the sentencing provisions of §§ 501(c)(1) and (2) as follows:
38
"Those selling schedule I and II narcotics such as heroin and opium can draw a sentence of up to 12 years and a possible fine of $25,000. For schedules I, II, and III sales of non-narcotics such as marihuana, 'pep pills' and the like, the sentence is up to 5 years and a possible fine not exceeding $15,000. A [minimum] special parole term of from 2 to 3 years is required for each of the above offenses." 116 Cong.Rec. 996 (1970).
39
Senator Dodd did not mention the special parole concept in the context of any other sentencing provisions; § 504, the conspiracy provision of S. 3246, was not mentioned at all during the Senate debates.
40
Given the scant support in the legislative history of the Senate bill for the Government's position, it is not surprising that the Government must place greater reliance on events that transpired during the House's consideration of proposed narcotics legislation similar to S. 3246. H.R. 17463, the subject of hearings before the House Committee on Ways and Means in July 1970, contained penalty provisions that were substantially identical to those in S. 3246. See H.R. 17463, 91st Cong., 2d Sess., §§ 501(c)(1), (c)(2), and 504 (1970), reprinted in Ways and Means Hearings 61, 66.
41
Mr. Ingersoll appeared before the Committee on Ways and Means, testified as to the Department of Justice's firm support for H.R. 17463, and submitted a section-by-section analysis of the bill which highlighted the differences between its provisions and existing federal narcotics legislation. Ways and Means Hearings 210-211. That analysis described the operation of the special parole terms applicable to § 501(c), and noted: "This special parole term is a new program, and there are no comparable laws now in force for narcotic drug law convictions." Id., at 222. With respect to the bill's conspiracy provision, § 504, Mr. Ingersoll's section-by-section analysis stated:
42
"This section provides that a person may be punished for endeavoring or conspiring to commit an offense under this Act. Upon conviction, his sentence may not exceed the punishment prescribed for the offense which was the object of the attempt or the conspiracy." Id., at 223.
43
The Government would read the second sentence of this passage as explaining "that the sentencing scheme contemplated that conspiracy was to be punished to the same extent as object offenses, without exception." Brief for United States 24. But the Ingersoll statement, like the language enacted in § 406, explains merely that the punishment imposed for conspiracy may not exceed the punishment authorized for the pertinent target offense. It does not define the punishment authorized under the conspiracy provision to include special parole, and it does not disavow petitioner's theory that § 406 defines the types of punishment authorized for conspiracy, while the penalty provisions of the target offense set the maximum amounts of those types of punishment that properly may be imposed. Moreover, a chart submitted to the Committee by the Justice Department, and appended to Mr. Ingersoll's section-by-section analysis, specifically noted that H.R. 17463 authorized the imposition of special parole terms for certain substantive offenses. Ways and Means Hearings 229. With respect to the conspiracy section of the bill, however, the chart contained a footnote that merely reads: "H.R. 17463 provides that any person who endeavors or conspires to commit any offense under the act may be punished by imprisonment and/or fine, which may not exceed the maximum punishment proscribed [sic ] for committing the offense." Id., at 230, n. 6. (Emphasis supplied.) In sum, we find no persuasive support for the Government's argument in the report of the hearings before the House Committee on Ways and Means.
44
The hearings before the Committee on Ways and Means followed earlier hearings conducted by the House Committee on Interstate and Foreign Commerce. The latter Committee issued the House Report on H.R. 18583, 91st Cong., 2d Sess. (1970), which contained additions and revisions to H.R. 17463 not pertinent to the sentencing provisions at issue here, H.R.Rep. No. 91-1444, pt. 1 (1970), U.S.Code Cong. & Admin.News 1970, p. 4566. Like the Senate Report, the House Report appears plainly to recognize the distinction between the penalties for specific substantive offenses, authorizing special parole terms, and the conspiracy offense, authorizing only terms of imprisonment and fines. Thus, with respect to § 406 of H.R. 18583, the direct ancestor of the present § 406, the House Report's section-by-section analysis states:
45
"Section 406 provides that any person who attempts or conspires to commit any offense defined in this title may be punished by imprisonment and/or fine which may not exceed the maximum amount set for the offense, the commission of which was the object of the attempt or conspiracy." H.R.Rep.No.91-1444, at 50, U.S.Code Cong. & Admin.News 1970, p. 4617. (Emphasis supplied.) The grammatical structure of this sentence lends obvious support to petitioner's theory that § 406 authorizes two types of sanctions—fines and imprisonment—and fixes the maximum amount of each that may be imposed by reference to the penalty provisions of the target offense.
46
In conclusion, we believe that, rather than supporting the Government's argument that Congress manifested an intention to authorize special parole terms for conspiracy convictions, the Act's legislative history supports the opposite view. In hearings, debates, and legislative reports, to the extent that Congress' attention was drawn to the matter, Members of both Houses explicitly recognized that the penalty provisions of some substantive offenses attached a mandatory minimum term of special parole to any term of imprisonment. On the other hand, every reference to one of the forerunners of § 406 stated that it authorized penalties consisting of imprisonment and/or fine, and failed to mention special parole.
C
47
Motivating policy. The Government strongly argues, finally, that Congress' principal objective in enacting the penalty provisions of the Act—to deter professional criminals from engaging in drug trafficking for profit—"render[s] it unreasonable to ascribe to [Congress] the intent to authorize special parole for isolated substantive offenses while withholding this major sentencing tool for conspiracy offenses." Brief for United States 28. This contention is unpersuasive for two reasons.
48
First, as petitioner points out, Brief for Petitioner 14-23; Reply Brief for Petitioner 1-3, a comparison of those drug offenses for which Congress clearly authorized the imposition of special parole terms with those for which it clearly did not, does not reveal a coherent pattern based on the asserted justification for escalated sanctions. For some of the most serious offenses, as measured by the length of the term of imprisonment and severity of the fine they authorize, special parole is not included among the available sanctions. E. g., § 408 of the Act, 21 U.S.C. § 848 (continuing criminal enterprise); § 403 of the Act, 21 U.S.C. § 843 (registrants); and the new § 401(d) of this Act, 21 U.S.C. § 841(d) (1976 ed., Supp. II) (piperidine offenses). Thus, the Government's argument based on Congress' sentencing objectives would prove too much.
49
Second, the thrust of the Government's argument is that the conspiracy to engage in drug trafficking presents at least as great a threat, if not a greater one, to the community as does an isolated act of distribution. In other contexts, we have recognized the logic of that view. See, e. g., Iannelli v. United States, 420 U. S. 770, 778, 95 S.Ct. 1284, 1290, 43 L.Ed.2d 616 (1975). From this premise, the Government contends that Congress must have desired the harsh sanctions incorporated within the concept of special parole—the unlimited maximum length of its term and the grave consequences attending its revocation, see § 401(c) to be available to the judge sentencing a drug conspirator.
50
What the Government does not mention, however, is that § 406 sets identical penalties for conspiracies and for attempts. Congress dealt with both these forms of inchoate crime in a single provision, and prescribed an identical range of punishment for a person convicted of participation in a major trafficking conspiracy, and for another person convicted of an unsuccessful attempt to manufacture or distribute a small amount of a controlled substance. When one focuses on the fact that § 406 penalizes attempts as well as conspiracies, it is not surprising that Congress would provide for less stringent sanctions to be imposed for violations of that provision than for a completed substantive offense. Indeed, as Mr. Ingersoll pointed out in his section-by-section analysis of H.R. 17463, prior to the passage of this Act an attempt to commit a substantive drug offense was not punishable at all under the federal narcotics laws. Ways and Means Hearings 223.16
IV
51
This investigation into the meaning of § 406, as informed by an examination of its language and structure, its history, and relevant policy considerations, yields the likely conclusion that Congress' failure specifically to authorize the imposition of special parole terms as punishment for those convicted of conspiracy was not a slip of the legislative pen, nor the result of inartful draftsmanship, but was a conscious and not irrational legislative choice. Our analysis reveals, at the least, a complete absence of an unambiguous legislative decision to authorize special parole terms as punishment for those convicted of drug conspiracies. Of course, to the extent that doubts remain, they must be resolved in accord with the rule of lenity.17 If our construction of Congress' intent, as evidenced by the scant record it left behind, clashes with present legislative expectations, there is a simple remedy—the insertion of a brief appropriate phrase, by amendment, into the present language of § 406. But it is for Congress, and not this Court, to enact the words that will produce the result the Government seeks in this case.
52
The judgment of the Court of Appeals is reversed, and the case is remanded to that court with instructions to vacate the special parole term that was imposed upon petitioner.
53
It is so ordered.
54
Mr. Chief Justice BURGER, concurring.
55
If the question presented by this case were as simple and easy as the dissent formulates it—whether "the directors of a narcotics distribution business [should] be punished less severely than their subordinates who merely peddle the poison"—none of us would have any difficulty with the decision. But that is not really the issue. Rather, the question before the Court is substantially more limited: What do the words of the statute mean? Of course, we must try to discern the intent of Congress. But we perform that task by beginning with the ordinary meaning of the language of the statute. Our compass is not to read a statute to reach what we perceive—or even what we think a reasonable person should perceive—is a "sensible result"; Congress must be taken at its word unless we are to assume the role of statute revisers. Aaron v. SEC, 446 U.S. 680, 100 S.Ct. 1945, 64 L.Ed.2d 611 (1980); TVA v. Hill, 437 U.S. 153, 173, 98 S.Ct. 2279, 2291, 57 L.Ed.2d 117 (1978).
56
Particularly in the administration of criminal justice, a badly drawn statute places strains on judges. See, e. g., Busic v. United States, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980); LaRocca v. United States (decided with Busic). The temptation to exceed our limited judicial role and do what we regard as the more sensible thing is great, but it takes us on a slippery slope. Our duty, to paraphrase Mr. Justice Holmes in a conversation with Judge Learned Hand, is not to do justice but to apply the law and hope that justice is done. The Spirit of Liberty: Papers and addresses of Learned Hand 306-307 (Dilliard ed. 1960).
57
Not without the same reluctance that in my view underlies the Court's opinion, I join the opinion.
58
Mr. Justice STEVENS, with whom Mr. Justice WHITE and Mr. Justice REHNQUIST join, dissenting.
59
Should the directors of a narcotics distribution business be punished less severely than their subordinates who merely peddle the poison? It is unlikely that Congress so intended. See Callanan v. United States, 364 U.S. 587, 593-594, 81 S.Ct. 321, 325, 5 L.Ed.2d 312.
60
Since an ordinary reading of § 4061 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 implies that a conspirator may be punished just as severely as a substantive offender, I would so construe the statute. This construction is fortified by the total absence of any statement by any legislator suggesting any purpose to treat conspirators in the drug trade with any greater lenity than substantive offenders.2 This is particularly important in view of the fact that prior to the 1970 Act, Congress had authorized identical penalties for conspiracies and completed offenses. See ante at 391.
61
Because the statutory language conveys quite a different meaning to me, and because the Court has not paused to consider the narrow issue presented by this case in the context of the larger objectives Congress was seeking, I respectfully dissent.
1
The Act, Pub.L. 91-513, is set forth at 84 Stat. 1236-1296. For the sake of simplicity, further otherwise appropriate citations to the Statutes at Large will be omitted.
2
This provision was amended in 1978, but the amendment is not pertinent to the issue presented here. See Pub.L. 95-633, § 201, 92 Stat. 3774, 21 U.S.C. § 841(b)(1)(B) (1976 ed., Supp. II).
3
The Court of Appeals stated that petitioner was charged with two substantive violations of § 401(a)(1), in addition to the conspiracy count, and that he was acquitted of the substantive charges. 600 F.2d 407, 408 (CA2 1979). The parties agree, however, that this is error and that petitioner was charged with, and convicted on, a single conspiracy count. Brief for Petitioner 4, n. 2; Brief for United States 4, n. 2.
4
Two Courts of Appeals, in addition to those followed by the Second Circuit in this case, have joined in the conclusion that § 406 authorizes the imposition of a special parole term where such a term is included in the penalty provisions of the target offense. See United States v, Sellers, 603 F.2d 53, 58 (CA8 1979), and Cantu v. United States, 598 F.2d 471, 472 (CA5 1979). In addition, in a number of cases appellate courts have affirmed the convictions of defendants sentenced to special parole terms under § 406 without considering the question whether special parole was authorized. For example, the question presented here may have lingered beneath the surface in United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979).
In Mearns, the Third Circuit followed the lead of two District Court opinions (in addition to the opinion there under review) holding that special parole is not a penalty authorized by § 406. See United States v. Jacquinto, 464 F.Supp. 728 (ED Pa. 1979), and Fassette v. United States, 444 F.Supp. 1245 (CD Cal.1978). Cf. United States v. Wells, 470 F.Supp. 216 (SD Iowa 1979) (adopting the Mearns rationale in sentencing, pursuant to 18 U.S.C. § 3, accessories after the fact to a drug conspiracy).
5
The dissent's "ordinary reading of § 406," post, at 402, appears to be based on this same incomplete reading of the words of the conspiracy provision.
6
Section 405(b) likewise provides for treble enhancement of the fine, the term of imprisonment, and the minimum length of any special parole term, for one who is convicted a second or subsequent time for distributing a controlled substance to a minor.
7
The Government argues that the express reference to special parole in § 405 does not detract from the view that § 406 incorporates special parole by implication. It contends that it was necessary for Congress to deal with special parole explicitly in § 405 because it chose to mandate a minimum special parole term of at least twice the length of the term authorized under § 401(b), whereas § 405 imposes a fine or imprisonment of up to twice that otherwise authorized. The Government's argument does not dispel the fact, however, that Congress specifically accommodated the concept of special parole in one general provision imposing sentence by reference to other offenses, but did not do so with respect to an adjacent provision, § 406.
8
The Government would explain the specificity of § 401(c) as an instance where the drafters of that provision "simply looked to see what sections of the proposed bill used the term special parole, and inserted those section numbers into [the forerunner of § 401(c)]." Brief for United States 26-27, n. 22. It argues, of course, that although § 406 did not refer to special parole in so many words, it did incorporate the sentencing provisions of § 401. We reject the Government's argument for reasons stated in the text. Moreover, its "explanation" assumes a carelessness in draftsmanship that probably is unwarranted; see the following subparts B and C.
9
See 21 U.S.C. §§ 174, 176a, 176b (1964 ed.); and 26 U.S.C. §§ 7237(a) and (b) (1964 ed.).
10
See S. 1895, 91st Cong., 1st Sess., §§ 701-708 (1969), and S. 2637, 91st Cong., 1st Sess., §§ 501-508 (1969), reprinted in Narcotics Legislation: Hearings on S. 1895 et al. before the Subcommittee to Investigate Juvenile Delinquency of the Senate Committee on the Judiciary, 91st Cong., 1st Sess,. 69-77, 160-170 (1969). See also H.R. 13743 and H.R. 14774, 91st Cong., 1st Sess., §§ 501-508 (1969), reprinted in Part 1, Drug Abuse Control Amendments—1970: Hearings on H.R. 11701 and H.R. 13743 before the Subcommittee on Public Health and Welfare of the House Committee on Interstate and Foreign Commerce, 91st Cong., 2d Sess., 17-20 (1970).
11
A chart setting out the alternative penalty schemes proposed by the Justice Department is included in the record of hearings held before the Subcommittee on Public Health and Welfare of the House Committee on Interstate and Foreign Commerce. Id., at 90-92. This chart describes the penalty provisions favored by the Department for attempt and conspiracy as providing "that any person who attempts or conspires to commit any offense under the Act may be punished by imprisonment and/or fine, which may not exceed the maximum punishment proscribed for committing the offense." Id., at 92. No mention is made of special parole terms in the conspiracy context. It seems, therefore, that the inexact draftsmanship that the Government would find in the legislative history of § 406 is not to be attributed solely to Congress.
12
The forerunner to § 401(b)(1)(B) was § 501(c)(2) of S. 3246. It provided an identical penalty scheme for first offenders as does the current substantive offense—a term of imprisonment of not more than five years, a fine of not more than $15,000, or both, and a 2-year minimum special parole term in addition to any term of imprisonment. See S.Rep. No. 91-613, at 116.
13
Section 504 of S. 3246, which differed from § 406 only in its use of the term "endeavor" rather than "attempt," provided:
"Any person who endeavors or conspires to commit any offense defined in this title is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the endeavor or conspiracy." S.Rep. No. 91-613, at 118.
14
An identical provision was contained in H.R. 17463, 91st Cong., 2d Sess., § 508(a) (1970), a forerunner of the Act approved by one of the two House Committees to conduct hearings on the proposed narcotics legislation. See Controlled Dangerous Substances, Narcotics and Drug Control Laws; Hearings on H.R. 17463 before the House Committee on Ways and Means, 91st Cong., 2d Sess., 69 (1970) (hereinafter Ways and Means Hearings). The bill eventually passed by the House, H.R. 18583, 91st Cong., 2d Sess. (1970), incorporated enhanced penalties for repeat offenders within the individual substantive offenses. See 116 Cong.Rec. 33625 (1970). The House bills are discussed further below.
15
The Government makes the same argument with respect to the repeat offender provisions of S. 3246 and H.R. 17463 that it makes with respect to § 405, see n. 7, supra. The argument is no more persuasive here.
16
The dissent takes us to task for failing to recognize that it is unlikely that Congress would intend that "the directors of a narcotics distribution business be punished less severely than their subordinates who merely peddle the poison." Post, at 402. But even a cursory reading of the Act should make it clear that our opinion today will not result in the sentencing disparity the dissent fears. Section 406's punishment provisions are not the sole sanctions Congress enacted for apprehended directors of organized drug trafficking operations. First, nothing prevents the Government from prosecuting the operators of a distribution network, either as principals or as aiders and abettors, for substantive manufacturing, distribution, and possession offenses, pursuant to § 401 of the Act, 21 U.S.C. § 841. Second, and more significantly, Congress enacted two special provisions with the directors of large trafficking operations particularly in mind. The sanctions available under those provisions are especially severe. See § 408 of the Act, 21 U.S.C. § 848 (continuing criminal enterprise); §§ 409(e)(2) and (3) of the Act, 21 U.S.C. §§ 849(e)(2) and (3) (defining a special drug offender).
17
One might quarrel with our conclusion that Congress was aware of the distinction between the penalty provisions of § 401(b)(1)(B) and § 406, and chose not to include special parole terms among the sanctions authorized for attempts and conspiracies. That it would be extremely difficult to accept the Government's argument that Congress unambiguously intended a contrary result, however, perhaps is best evidenced by the fact that the rule of lenity is not mentioned, let alone applied, in any of the lower court opinions that have accepted the Government's position. See cases cited in n. 4, supra, and accompanying text. The dissenting opinion would appear to fare little better on that score.
1
"Any person who attempts or conspires to commit any offense defined in this title is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy." 84 Stat. 1265, 21 U.S.C. § 846.
2
Surely the Court's reference ante, at 399, to the offense of attempt cuts the other way, for it is common for legislation to authorize the same range of punishments for attempts as for substantive offenses. See, e. g., American Law Institute, Model Penal Code § 5.05(1) (Prop. Off. Draft 1962), which provides in part: "Except as otherwise provided in this Section, attempt, solicitation and conspiracy are crimes of the same grade and degree as the most serious offense which is attempted or solicited or is an object of the conspiracy."
| 01
|
447 U.S. 352
100 S.Ct. 2232
65 L.Ed.2d 184
John M. BRYANT et al., Petitioners,v.Ben YELLEN et al. State of CALIFORNIA et al., Petitioners, v. Ben YELLEN et al. IMPERIAL IRRIGATION DISTRICT et al., Petitioners, v. Ben YELLEN et al.
Nos. 79-421, 79-425, and 79-435.
Argued March 25, 1980.
Decided June 16, 1980.
Rehearing Denied Aug. 11, 1980.
See 448 U.S. 911, 101 S.Ct. 25, 26.
Syllabus
The principal question in this action is whether the general rule under federal reclamation laws limiting irrigation water deliveries from reclamation projects to 160 acres under single ownership applies to certain private lands in Imperial Valley, Cal., being irrigated with Colorado River water through the irrigation system constructed pursuant to the Boulder Canyon Project Act (Project Act). When the Project Act became effective in 1929, a large acreage was already being irrigated by water delivered by the Imperial Irrigation District (District) through a privately owned irrigation system. Under the Project Act and a 1932 implementing contract, the United States constructed and the District agreed to pay for a new irrigation system. The Project Act, which implemented and ratified the seven-State Colorado River Compact (Compact) allocating the river's waters, provides in § 6 that project works shall be used for "irrigation and domestic uses and satisfaction of present perfected rights in pursuance of" the Compact, and in § 14 provides that the reclamation law "shall govern the construction, operation, and management of the works herein authorized, except as otherwise herein provided." Section 46 of the Omnibus Adjustment Act of 1926 (1926 Act), a reclamation law, forbids delivery of reclamation project water to any irrigable land held in private ownership by one owner in excess of 160 acres. In contracting with the District for the building of the new irrigation system, the United States represented that the Project Act did not impose acreage limitations on lands that already had vested or present rights to Colorado River waters, and the United States officially adhered to that position until repudiating it in 1964. When the District refused to accept the Government's new position, the United States, in 1967, instituted the instant District Court proceedings for a declaratory judgment that the excess-acreage limitation of § 46 of the 1926 Act applies to all private lands in the District, whether or not they had been irrigated in 1929. Meanwhile, in original proceedings involving the determination of how the state-allocated waters under the Compact and the Project Act should be divided, this Court recognized that a significant limitation on the power of the Secretary of the Interior (Secretary) under the Project Act was the requirement that he satisfy present perfected rights, and defined such rights under § 6 as those that had been acquired in accordance with state law and that had been perfected as of 1929 by the actual diversion of a specific quantity of water and its application to a defined area of land. Arizona v. California, 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542; 376 U.S. 340, 84 S.Ct. 755, 11 L.Ed.2d 757. And by a supplemental decree, 439 U.S. 419, 99 S.Ct. 995, 58 L.Ed.2d 627, this Court adjudged the District to have a present perfected right to a specified quantity of diversions from the mainstream or the quantity of water necessary to irrigate a specified number of acres, whichever was less. The District Court ruled against the Government in the instant action and, when the Government chose not to appeal, denied a motion to intervene for purpose of appeal that had been filed by respondents, a group of Imperial Valley residents who desired to purchase the excess lands that might become available at prices below the market value for irrigated land if § 46 were held applicable. The Court of Appeals reversed, holding that the appealing intervenors had standing under Art. III and that the 160-acre limitation of § 46 of the 1926 Act applied to Imperial Valley.
Held :
1. Since it is unlikely that any of the owners of excess lands would sell land at below current market prices absent the applicability of § 46, whereas it is likely that such lands would become available at less than market prices if § 46 were applied, the Court of Appeals properly concluded that respondents had a sufficient stake in the outcome of the controversy to afford them standing to appeal the District Court's decision, even though they could not with certainty establish that they would be able to purchase excess lands if § 46 were held applicable. Pp. 366-368.
2. Contrary to the Court of Appeals' conclusion, § 6 of the Project Act precludes application of the 160-acre limitation of § 46 of the 1926 Act to the lands under irrigation in Imperial Valley in 1929. Section 46 cannot be applied consistently with § 6 on the alleged ground that the perfected rights in Imperial Valley were owned by the District, not individual landowners, who were merely members of a class for whose benefit the water rights had been acquired and held in trust, and who had no right under the law to a particular proportion of the District's water. Such theory fails to take adequate account of § 6 and its implementation in this Court's opinion and decrees in Arizona v. California, which recognized that § 6 was an unavoidable limitation on the Secretary's power and that in satisfying "present perfected rights" the Secretary must take account of state law. Prior to 1929 and ever since, the District, in exercising its rights as trustee, delivered water to individual farmer beneficiaries without regard to the amount of land under single ownership, and, as a matter of state law, not only did the District's water right entitle it to deliver water to the farms in the District regardless of size, but also the right was equitably owned by the beneficiaries to whom the District was obligated to deliver water. Pp. 368-374.
3. There is nothing in the Project Act's legislative history to cast doubt on the foregoing construction of the Act or to suggest that Congress intended § 14, by bringing the 1926 Act into play, to interfere with the delivery of water to those lands already under irrigation in Imperial Valley and having present perfected rights that the Secretary was bound to recognize. Moreover, the contemporary construction of the Project Act by the parties to the 1932 contract was that the acreage limitation did not apply to lands in the District presently being irrigated, and this contemporaneous view of the Act, which supports the foregoing construction of the legislation, was not officially repudiated by the Secretary until 1964. Pp. 374-378.
4. Further questions involving the applicability of acreage limitations to approximately 14,000 acres in addition to those that were under irrigation in 1929, and the determination whether a live dispute remains in light of the foregoing "perfected rights" holding, should be considered initially by the courts below. Pp. 378-379.
559 F.2d 509, and 595 F.2d 524 and 525, reversed in part, vacated in part, and remanded.
Northcutt Ely, Washington, D. C., and Charles W. Bender, Los Angeles, Cal., for petitioners.
Sol. Gen. Wade H. McCree, Jr., Washington, D. C., and Arthur Brunwasser, San Francisco, Cal., for respondents.
Mr. Justice WHITE delivered the opinion of the Court.
1
When the Boulder Canyon Project Act, 45 Stat. 1057, 43 U.S.C. § 617 et seq. (Project Act), became effective in 1929, a large area in Imperial Valley, Cal., was already being irrigated by Colorado River water brought to the Valley by a privately owned delivery and distribution system. Pursuant to the Project Act, the United States constructed and the Imperial Irrigation District (District) agreed to pay for a new diversion dam and a new canal connecting the dam with the District. The Project Act was supplemental to the reclamation laws, which as a general rule limited water deliveries from reclamation projects to 160 acres under single ownership. The Project Act, however, required that the Secretary of the Interior (Secretary) observe rights to Colorado River water that had been perfected under state law at the time the Act became effective. In the course of contracting with the District for the building of the new dam and canal and for the delivery of water to the District, the United States represented that the Project Act did not impose acreage limitations on lands that already had vested or present rights to Colorado River water. The United States officially adhered to that position until 1964 when it repudiated its prior construction of the Project Act and sued the District, claiming that the 160-acre limitation contained in the reclamation law applies to all privately owned lands in the District, whether or not they had been irrigated in 1929. The District Court found for the District and its landowners, 322 F.Supp. 11 (SD Cal. 1971), but the Court of Appeals reversed and sustained the Government's position, 559 F.2d 509 (CA9 1977). We now reverse the Court of Appeals with respect to those lands that were irrigated in 1929 and with respect to which the District has been adjudicated to have a perfected water right as of that date, a water right which, until 1964, the United States Department of the Interior officially represented foreclosed the application of acreage limitations. The judgment is otherwise vacated.
2
* Imperial Valley is an area located south of the Salton Sea in southeastern California. It lies below sea level, and is an arid desert in its natural state. In 1901, however, irrigation began in the Valley, using water diverted from the Colorado River, which in that area marks the border between California and Arizona. Until at least 1940, irrigation water was brought to the Valley by means of a canal and distribution system that were completely privately financed. On June 25, 1929, when the Project Act became effective, the District1 was diverting, transporting, and delivering water to 424,145 acres of privately owned and very productive farmland in Imperial Valley.2 Under neither state law nor private irrigation arrangements in existence in Imperial Valley prior to 1929 was there any restriction on the number of acres that a single landholder could own and irrigate.
3
Prior to 1929 and for several years thereafter, the water diverted from the Colorado River was carried to the Valley through the Alamo Canal, which left the river north of the border with Mexico but then traversed Mexican territory for some 50 miles before turning northward into Imperial Valley. This distribution system, entirely privately financed and owned, comprised approximately 1,700 miles of main and lateral canals, all serving to divert and deliver the necessary waters to the lands in Imperial Valley.
4
The Project Act was the culmination of the efforts of the seven States in the Colorado River Basin to control flooding, regulate water supplies on a predictable basis, allocate waters among the Upper and Lower Basin States and among the States in each basin, and connect the river to the Imperial Valley by a canal that did not pass through Mexico.3 In 1922, the seven States executed the Colorado River Compact (Compact) allocating the waters of the river between the Upper and Lower Basins, and among other things providing in Art. VIII that "[p]resent perfected rights to the beneficial use of waters of the Colorado River System are unimpaired by this compact."4 The Project Act, passed in 1928 and effective in 1929, implemented and ratified the Compact; contained its own formula for allocating Lower Basin water among California, Arizona, and Nevada, Arizona v. California, 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963); and authorized the construction of the works required for the harnessing and more efficient utilization of the unruly River. The principal works of the Project, consisting of the Hoover Dam at Black Canyon and the storage facilities behind it, served to implement the division of the Compact. The dam was completed and storage began in 1935.5
5
Section 1 of the Project Act, which provided for the dam at Black Canyon, also authorized the construction of a new canal, the All-American Canal, which would replace the Alamo Canal and would traverse only territory located in the United States. A new diversion dam for Imperial Valley water was also authorized. Section 1 went on to provide that no charge should be made for the storage or delivery of irrigation or potable water to Imperial or Coachella Valley.6
6
Section 4(a) of the Project Act conditioned the effectiveness of the Act on the ratification of the Compact by the signatory States.7 Section 4(b), as well as requiring contractual provision for the repayment of specified costs with respect to the Hoover Dam, required that before any money was appropriated for the Imperial Valley works, the Secretary was to make provision for revenues "by contract or otherwise" to insure payment of all "expenses of construction, operation, and maintenance of said main canal and appurtenant structures in the manner provided in the reclamation law." Section 5 authorized the Secretary to contract for the storage of water and for its delivery at such points on the river and the canal as were agreed upon. Contracts were to be for permanent service and were required before any person would be entitled to stored water.
7
Section 6 of the Project Act, of critical importance in these cases, mandated that the works authorized by § 1 were to be used: "First, for river regulation, improvement of navigation, and flood control; second, for irrigation and domestic uses and satisfaction of present perfected rights in pursuance of Article VIII of said Colorado River compact; and third, for power." Section 9 authorized the opening to entry of the public lands that would become irrigable by the Project but in tracts not greater than 160 acres in size in accordance with the provisions of the reclamation law.
8
Section 14 provided that the Project Act should be deemed supplemental to the reclamation law, "which said reclamation law shall govern the construction, operation, and management of the works herein authorized, except as otherwise herein provided." The "reclamation law" referred to was defined in § 12 as the Act of June 17, 1902 (Reclamation Act), 32 Stat. 388, and Acts amendatory thereof and supplemental thereto. One of the statutes amendatory of or supplemental to the Reclamation Act was the Omnibus Adjustment Act of 1926 (1926 Act), § 46 of which, 44 Stat. (part 2) 649, 43 U.S.C. § 423e, forbade delivery of reclamation project water to any irrigable land held in private ownership by one owner in excess of 160 acres,8 and required owners to execute recordable contracts for the sale of excess lands before such lands could receive project water.
9
Pursuant to the Project Act, the United States and the District entered into a contract on December 1, 1932, providing for the construction of the Imperial Dam and the All-American Canal. The District undertook to pay the cost of the works, and to include within itself certain public lands of the United States and other specified lands.9 The United States undertook to deliver to the Imperial Dam the water which would be carried by the new canal to the various lands to be served by it. The contract contained no acreage limitation provision. Pursuant to this contract, the United States constructed the Imperial Dam in the Colorado River—some distance below Black Canyon but upriver from the existing point of diversion—and the All-American Canal connecting the dam and Imperial Valley. Use of the canal began in 1940, and by 1942 it carried all Colorado River water used by Imperial Valley.10
10
Article 31 of the contract between the District and the United States provided that the United States would not be bound by the contract until and unless court proceedings had been instituted by the District and a final judgment obtained confirming the authorization and the validity of the contract.11 Such an action, entitled Hewes v. All Persons, No. 15460, Superior Court, Imperial County, was instituted and final judgment was entered on July 1, 1933, confirming the validity of the contract in all respects. App. to Pet. for Cert. in No. 79-435, pp. 120a-154a. In connection with these proceedings, the then Secretary, Ray Lyman Wilbur, on February 24, 1933, submitted a letter to the District dealing with the question whether the 160-acre limitation of the reclamation law was applicable in Imperial Valley. Among other things, the letter stated:
11
"Upon careful consideration the view was reached that this limitation does not apply to lands now cultivated and having a present water right. These lands, having already a water right, are entitled to have such vested right recognized without regard to the acreage limitation mentioned. Congress evidently recognized that these lands had a vested right when the provision was inserted that no charge shall be made for the storage, use, or delivery of water to be furnished these areas."12
12
The trial court in the Hewes case expressly found and concluded that eligibility for project water was not limited to 160-acre tracts in single ownership.13 An appeal in the case was dismissed before judgment. The United States was not a party to the action.
13
The Wilbur letter expressing the view that lands under irrigation at the time the Project Act was passed and having a present water right were not subject to the 160-acre limitation remained the official view of the Department of the Interior until 196414 when the Department adopted the view of its then Solicitor that the limitation should have applied to all Imperial Valley lands in private ownership.
14
Meanwhile, it having become apparent that neither the Compact nor the Project Act settled to the satisfaction of the Lower Basin States how the water allocated to them should be divided, an original action was begun in this Court in 1952 to settle this fundamental question and related issues, including the ascertainment of present perfected rights the unimpaired preservation of which was required by both the Compact and the Project Act. After more than 10 years of litigation, the opinion in Arizona v. California was handed down on June 3, 1963. 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542. Although the dispute among the Lower Basin States was at the heart of the controversy, for present purposes the primary aspect of the case was the recognition given to present perfected rights in the opinion and the ensuing decrees.
15
The opinion recognized that under § 14 of the Project Act, the construction, operation, and management of the works were to be subject to the provisions of the reclamation law, except as the Act otherwise provided, and that one of the most significant limitations in the Project Act on the Secretary's authority to contract for the delivery of water is the requirement to satisfy present perfected rights, "a matter of intense importance to those who had reduced their water rights to actual beneficial use at the time the Act became effective." 373 U.S., at 584, 83 S.Ct., at 1490. The decree, which was entered on March 9, 1964, 376 U.S. 340, 84 S.Ct. 755, 11 L.Ed.2d 757, defined a perfected right as:
16
"[A] water right acquired in accordance with state law, which right has been exercised by the actual diversion of a specific quantity of water that has been applied to a defined area of land or to definite municipal or industrial works . . . ." Id., at 341, 84 S.Ct., at 756.
17
Present perfected rights were defined as those perfected rights "existing as of June 25, 1929, the effective date of the Boulder Canyon Project Act." Ibid. The decree also provided for the future determination of the specific present perfected rights in each of the Lower Basin States. A supplemental decree was eventually forthcoming, 439 U.S. 419, 99 S.Ct. 995, 58 L.Ed.2d 627 (1979), and in that decree the Imperial Irrigation District was adjudged to have a present perfected right
18
"in annual quantities not to exceed (i) 2,600,000 acre-feet of diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use required for irrigation of 424,145 acres and for the satisfaction of related uses, whichever of (i) or (ii) is less, with a priority date of 1901." Id., at 429, 99 S.Ct., at 1000.
19
As already indicated, the Department of the Interior repudiated the Wilbur interpretation of the Project Act in 1964. It then sought to include its revised position in a renegotiated contract with the District. When the District refused to accept the Department's position, the United States sued the District in 1967 for a declaratory judgment that the excess-acreage limitation of § 46 applied to all private lands in the Valley. The District Court permitted several Imperial Valley landowners to intervene as defendants representing the certified class of all landowners owning more than 160 acres.15 It then ruled against the Government, holding for several reasons that "the land limitation provisions of reclamation law have no application to privately owned lands lying within the Imperial Irrigation District" and that the District is not bound to observe such limitations. 322 F.Supp., at 27. The Department of the Interior recommended and the Solicitor General decided, after reviewing the case, that an appeal not be prosecuted on behalf of the United States.16 In consequence, respondents, a group of Imperial Valley residents, who had been given leave to participate as amici in the District Court and who desired to purchase the excess lands that might become available if § 46 were held applicable, attempted to intervene for purpose of appeal, but the District Court denied the motion. The Court of Appeals reversed the denial, 559 F.2d, at 543-544, and proceeded to hold that the appealing intervenors had standing under Art. III of the Constitution; that Hewes v. All Persons was not conclusive with respect to acreage limitation; that the clear import of § 46 and the Project Act was that the 160-acre limitation is applicable to the Imperial Valley; and that the Department's administrative practice over the years did not bar application of the limitation to the Valley.
20
Because of the importance of these cases, we granted the petitions for writs of certiorari filed by the District, the landowners, and the State of California. 444 U.S. 978, 100 S.Ct. 479, 62 L.Ed.2d 405 (1979).
II
21
As a preliminary matter, we agree with the Court of Appeals that the respondents who sought to enter the suit when the United States forwent an appeal from the District Court's adverse decision had standing to intervene and press the appeal on their own behalf. Respondents, most of whom are farmworkers, reside in Imperial Valley. The essence of their claim was that they desired to purchase farmlands in Imperial Valley and that if § 46 were applied as they believed it should be, there would be excess lands available for purchase at prices below the market value for irrigated land.17 The Court of Appeals, although recognizing that no owner of excess lands would be required to sell, concluded that it would be highly improbable that all owners of excess lands would prefer to withdraw their irrigable lands from agriculture in order to avoid § 46. In these circumstances, the Court of Appeals ruled that under Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), and other cases, respondents had standing even though they could not with certainty establish that they would be able to purchase excess lands if § 46 were held applicable.18
22
This was a proper application of our cases. It being unlikely that any of the 800 owners of excess lands would sell land at below current market prices absent the applicability of § 46 and it being likely that excess lands would become available at less than market prices if § 46 were applied, the Court of Appeals properly concluded that respondents had a sufficient stake in the outcome of the controversy to afford them standing to appeal the District Court's decision.
III
23
We are unable, however, to agree with the Court of Appeals that Congress intended that the 160-acre limitation of the 1926 Act would apply to the lands under irrigation in Imperial Valley in 1929.19 Under § 14 of the Project Act, the construction, operation, and management of the project works were to be governed by the reclamation law, but only if not otherwise provided for in the Project Act. Section 46 of the 1926 Act is one of the reclamation laws; and its acreage limitation, which expressly applies to contracts for "constructing, operating, and maintaining" project works, would appear to govern the delivery of project water unless its applicability is foreclosed by some other provision of the Project Act. The Court of Appeals, erroneously we think, found no such preclusion in § 6 of the Act.
24
Concededly, nothing in § 14, in § 46, or in the reclamation law in general would excuse the Secretary from recognizing his obligation to satisfy present perfected rights in Imperial Valley that were provided for by Art. VIII of the Compact and § 6 of the Project Act and adjudicated by this Court in Arizona v. California, 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963). The Court of Appeals nevertheless held that § 46 could be applied consistently with § 6 because the perfected rights in Imperial Valley were owned by and would be adjudicated to the District, not to individual landowners, who were merely members of a class for whose benefit the water rights had been acquired and held in trust. Individual farmers, the Court of Appeals said, had no right under the law to a particular proportion of the District's water. Applying § 46 and denying water to excess lands not sold would merely require reallocation of the water among those eligible to receive it and would not reduce the water which the District was entitled to have delivered in accordance with its perfected rights.
25
We find this disposition of the § 6 defense to the application of the 1926 Act's acreage limitation to be unpersuasive. Arizona v. California, supra, at 584, 83 S.Ct., at 1490, recognized that "one of the most significant limitations" on the Secretary's power under the Project Act was the requirement that he satisfy present perfected rights, a matter of great significance to those who had reduced their water rights to beneficial use prior to 1929. Accordingly, in our initial decree, the perfected right protected by § 6 was defined with some care: a right that had been acquired in accordance with state law and that had been exercised by the actual diversion of a specific quantity of water and its application to a defined area of land.20 In our supplemental decree, entered prior to the opinion of the Court of Appeals denying rehearing and rehearing en banc, there was decreed to the District a present perfected water right of 2.6 million acre-feet of diversions from the mainstream or the quantity of water necessary to supply the consumptive use required to irrigate 424,145 acres and related uses, whichever was less, with a priority date of 1901. 439 U.S., at 429, 99 S.Ct., at 1000. We thus determined that, as of 1929, the District had perfected its rights under state law to divert the specified amount of water and had actually diverted that water to irrigate the defined quantity and area of land. As we see it, the Court of Appeals failed to take adequate account of § 6 of the Project Act and its implementation in our opinion and decrees filed in the Arizona v. California litigation.
26
In the first place, it bears emphasizing that the § 6 perfected right is a water right originating under state law. In Arizona v. California, we held that the Project Act vested in the Secretary the power to contract for project water deliveries independent of the direction of § 8 of the Reclamation Act to proceed in accordance with state law and of the admonition of § 18 of the Project Act not to interfere with state law. 373 U.S., at 586-588, 83 S.Ct., at 1490-1491.21 We nevertheless clearly recognized that § 6 of the Project Act, requiring satisfaction of present perfected rights, was an unavoidable limitation on the Secretary's power and that in providing for these rights the Secretary must take account of state law. In this respect, state law was not displaced by the Project Act and must be consulted in determining the content and characteristics of the water right that was adjudicated to the District by our decree.22
27
It may be true, as the Court of Appeals said, that no individual farm in the District has a permanent right to any specific proportion of the water held in trust by the District. But there is no doubt that prior to 1929 the District, in exercising its rights as trustee, delivered water to individual farmer beneficiaries without regard to the amount of land under single ownership. It has been doing so ever since. There is no suggestion, by the Court of Appeals or otherwise, that as a matter of state law and absent the interposition of some federal duty, the District did not have the right and privilege to exercise and use its water right in this manner. Nor has it been suggested that the District, absent some duty or disability imposed by federal law, could have rightfully denied water to individual farmers owning more than 160 acres. Indeed, as a matter of state law, not only did the District's water right entitle it to deliver water to the farms in the District regardless of size, but also the right was equitably owned by the beneficiaries to whom the District was obligated to deliver water.23
28
These were important characteristics of the District's water right as of the effective date of the Project Act, and the question is whether Congress intended to effect serious changes in the nature of the water right by doing away with the District's privilege and duty to service farms regardless of their size. We are quite sure that Congress did not so intend and that to hold otherwise is to misunderstand the Project Act and the substantive meaning of "present perfected rights" as defined by this Court's decree.
29
The Court of Appeals said it would not be a breach of trust by a water district to obey the dictates of § 46, relying on Ivanhoe Irrig. Dist. v. All Parties and Persons, 53 Cal.2d 692, 712, 3 Cal.Rptr. 317, 329, 350 P.2d 69, 81 (1960). But the issue here is whether § 46 applies to lands already being irrigated in 1929. In the Ivanhoe proceedings, the courts were not dealing with perfected rights to water that the project there involved would furnish, nor with a Project Act that specifically required present perfected rights to be satisfied. Here, we are dealing with perfected rights protected by the Project Act; and because its water rights are to be interpreted in the light of state law, the District should now be as free of land limitations with respect to the land it was irrigating in 1929 as it was prior to the passage of the Project Act. To apply § 46 would go far toward emasculating the substance, under state law, of the water right decreed to the District, as well as substantially limiting its duties to, and the rights of, the farmer-beneficiaries in the District.24
30
It should also be recalled that we defined a present perfected right as one that had not only been acquired pursuant to state law but as one that had also been exercised by the diversion of water and its actual application to a specific area of land. We did not intend to decree a water right to the District under this definition, conditioned upon proof of actual diversion and use, but nevertheless to require the District to terminate service to the lands on the basis of which the right was decreed. The District has itself no power to require that excess lands be sold, and it is a contradiction in terms to say, as the Court of Appeals did, that the District has present perfected rights but that § 46 requires it to terminate deliveries to all persons with excess lands who refuse to sell.25 We consequently hold that the perfected water right decreed to the District may be exercised by it without regard to the land limitation provisions of § 46 of the 1926 Act or to any similar provisions of the reclamation laws.26
IV
31
The legislative history of the Project Act, which spans several years, raises no doubt in our minds about the foregoing construction of the Act.27 Our attention has been called to nothing in the relevant materials indicating that although Congress was careful to preserve present perfected rights in § 6, other provisions of the Project Act were nevertheless intended to invoke acreage limitation with respect to lands already being irrigated in Imperial Valley by means of water diverted from the Colorado River and delivered to the Valley by the District's own works. Indeed, the version of the Project Act passed in the House contained an express acreage limitation applicable to all privately owned lands; but the Senate substituted the provisions of its own bill, which did not contain an acreage limitation expressly applicable to lands then being irrigated, and it was this version which became the Project Act despite objections in the Senate that the bill should be amended to limit water deliveries to 160 acres under single ownership. There is nothing in this chain of events to suggest that Congress intended § 14, by bringing the 1926 Act into play, to interfere with the delivery of water to those lands already under irrigation in Imperial Valley and having present perfected rights that the Secretary was bound to recognize.28 If anything, the inference from the legislative history is to the contrary. This is not to say that we rely strongly on legislative materials in construing the Project Act. Statements by the opponents of a bill and failure to enact suggested amendments, although they have some weight, are not the most reliable indications of congressional intention. Ernst & Ernst v. Hochfelder, 425 U.S. 185, 204, n. 24, 96 S.Ct. 1375, 1386, 47 L.Ed.2d 668 (1976); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381-382, n. 11, 89 S.Ct. 1794, 1801-1802, 23 L.Ed.2d 371 (1969). But we do say that the respondents have not called our attention to anything in the hearings, Committee Reports or floor debates suggesting in any substantial way that our construction of the Project Act is in error.
32
There can be little question that the contemporary construction of the Project Act by the parties to the 1932 contract was that the acreage limitation did not apply to lands in the District presently being irrigated. Secretary Wilbur, in his letter of February 24, 1933, stated that early in the negotiations on the All-American Canal contract, the question was raised as to the 160-acre limitation, and the view was reached that the limitation did not apply to lands that were under cultivation and having a present water right.29 There is no reason to doubt that the parties went forward on this basis, especially since language in early drafts of the contract which might have indicated an acreage limitation was eliminated in the course of the negotiations. The Imperial Valley system was a going concern at the time, and the Alamo Canal continued to supply the water to the Valley for another 10 years. It is thus a fair inference that both the Imperial Valley landowners and the United States proceeded on the assumption that the 160-acre limit was of no concern to those who were receiving water from the Alamo Canal. This contemporaneous view of the Project Act, which supports our own construction of the legislation, was not officially repudiated by the Secretary until 1964. It is also a matter of unquestioned fact that in the ensuing years the Secretary has delivered water to the District pursuant to its contract and that the 160-acre provision of the reclamation laws has to this date never been an operative limitation with respect to lands under irrigation in 1929.30
V
33
There remains a further consideration. The parties stipulated and the District Court found that at the outset of this litigation, the District was irrigating approximately 14,000 more acres than the 424,145 acres under irrigation in 1929. If, in light of our perfected rights holding, an Art. III case or controversy remains with respect to the applicability of acreage limitations to this additional 14,000 acres, there would remain to be disposed of those arguments of petitioners for reversing the Court of Appeals which we have not addressed and which, if sustained, would exempt from acreage limitations all privately owned lands in Imperial Valley, a result which the District Court seemingly embraced.31 The parties, however, have not separately addressed the status of this additional 14,000 acres; nor does the record invite us to deal further with this case without additional proceedings in the lower court. We do not know, for example, whether the District is still irrigating the additional 14,000 acres, whether any of the 14,000 acres consists of lands held in excess of 160 acres, or whether for some other reason of fact or law there is not now a controversy that requires further adjudication. Even if a live dispute remains, it would be helpful to have the Court of Appeals, or the District Court in the first instance if the Court of Appeals deems it advisable, adjudicate the status of the 14,000 acres, freed of any misapprehensions about the applicability of the 160-acre limitation to lands under irrigation in 1929.
34
Accordingly, the judgment of the Court of Appeals is reversed with respect to those lands that were irrigated on June 25, 1929, and with respect to which the District has been adjudicated to have a perfected water right as of that date. The judgment is otherwise vacated, and the case is remanded to that court for further proceedings consistent with this opinion.32
35
So ordered.
1
Under California law, an irrigation district is a public corporation governed by a board of directors, usually elected by voters in the district. It is empowered to distribute and otherwise administer water for the beneficial use of its inhabitants and to levy assessments upon the lands served for the payment of its expenses.
2
The parties stipulated that the value of agricultural products in the Valley, overall, increased from some $4 million in 1909 to approximately $200 million in 1965.
3
The Colorado River was subject to flooding. In 1905, the river broke through its banks and flooded the Alamo Canal and Imperial Valley. The California Development Co., then the major force in Imperial Valley, sought financial assistance from the Southern Pacific Co. whose tracks were threatened by the floodwaters. The railroad, taking as security a controlling interest in the California Development Co., returned the river to its channel and ultimately foreclosed on its security, transferring these interests to the District. The District acquired certain mutual water companies in 1922-1923 and has been solely responsible since that time for the diversion, transportation, and distribution of water from the Colorado River to the Imperial Valley.
Difficulties also arose because the Alamo Canal passed through Mexican territory and hence was partly subject to Mexican sovereignty. As a Senate Committee remarked, a new canal would "end an intolerable situation, under which the Imperial Valley now secures its sole water supply from a canal running for many miles through Mexico. . . ." S.Rep.No. 592, 70th Cong., 1st Sess., 8 (1928).
4
The provision apparently resulted from the concern of the farmers of Imperial Valley that after two decades of productive reliance on the Alamo Canal Project, their existing water rights might be impaired by the Compact allocation. Delph Carpenter, one of the draftsmen of the Compact, testified in hearings on a precursor of the Project Act as follows:
"During the deliberations of the Colorado River Commission at Santa Fe, and after 10 days' work, a sketch or outline of the progress was released to the press, stating what had happened and the proposed terms of a treaty. . . . The Imperial Valley representatives were immediately responsive. They came before the Commission and presented their claims with great vigor. . . .
"In view of that claim, coming as it did from people who cultivated upward of half a million acres of very valuable land, . . . Article VIII of the compact was drawn at the last session of the proceedings." Hearings Pursuant to S.Res. 320 before the Senate Committee on Irrigation and Reclamation, 68th Cong., 2d Sess., pt. 1, p. 678 (1925).
5
The genesis of the Project Act and of the Colorado River Compact is described at greater length in Arizona v. California, 373 U.S. 546, 552-562, 83 S.Ct. 1468, 1473-1478, 10 L.Ed.2d 542 (1963).
6
Coachella Valley is an area lying north of Imperial Valley across the Salton Sea. Unlike Imperial Valley, it was not being irrigated with Colorado River water in 1929. Coachella Valley is not involved in these cases.
7
Section 4(a) also contained provisions which, together with the Secretary's power under § 5 to contract for storage and delivery of water with particular water users and with § 8's tying the Project Act and the Compact together, provided the basis for the Court's holding in Arizona v. California that the Project Act itself sufficiently revealed the intent of Congress with respect to the division of the project water among the Lower Basin States.
8
Section 46 provides in relevant part:
"No water shall be delivered upon the completion of any new project or new division of a project until a contract or contracts in form approved by the Secretary of the Interior shall have been made with an irrigation district or irrigation districts organized under State law providing for payment by the district or districts of the cost of constructing, operating, and maintaining the works during the time they are in control of the United States, such cost of constructing to be repaid within such terms of years as the Secretary may find to be necessary, in any event not more than forty years from the date of public notice hereinafter referred to, and the execution of said contract or contracts shall have been confirmed by a decree of a court of competent jurisdiction."
9
In 1942, pursuant to this provision, the District expanded its boundaries to include 271,588 acres of the unpatented public lands.
10
The All-American Canal system was not declared completed until 1952. By that time, pursuant to the 1932 contract, the care, operation, and maintenance of the system, with specified exceptions, had been transferred to the District, although title to the Imperial Dam and the canal remained in the United States. Repayment of construction charges commenced on March 1, 1955. The District's financial obligation was determined to be approximately $25 million, repayable in 40 annual installments, without interest. All payments to date have been made from net power revenues derived from the sale of electrical energy generated by hydro-electrical facilities of the All-American Canal, facilities which cost the District approximately $15 million.
11
The Act of May 15, 1922, ch. 190, § 1, 42 Stat. 541, 43 U.S.C. § 511, authorized the Secretary to contract with irrigation districts but provided that no contract under the section "shall be binding on the United States until the proceedings on the part of the district for the authorization of the execution of the contract with the United States shall have been confirmed by decree of a court of competent jurisdiction, or pending appellate action if ground for appeal be laid." The 1926 Act also required that the "execution" of the contracts referred to in the section be judicially confirmed.
In addition, the law of California specified preconditions to the effectiveness of water district contracts. Approval by the governing body was required as well as by district members voting in an election for that purpose. A district was also permitted to submit the contract to Superior Court for validation proceedings. The decree in Hewes v. All Persons, discussed in the text, concluded that California law had been satisfied in all respects.
12
App. 177a, 71 I.D. 496, 530 (1964). Secretary Wilbur's letter referred specifically only to the applicability of § 5 of the Reclamation Act to the privately owned district lands. Five days later, the Assistant Commissioner and Chief Counsel of the Bureau of Reclamation, Porter W. Dent, issued a letter confirming that the Department's interpretation likewise applied to § 46 of the 1926 Act. App. 179a, 71 I.D., at 531.
13
Finding of Fact No. 35 in pertinent part said that under the 1932 contract, "the delivery of water will not be limited to 160 acres in a single ownership . . . and that water service to lands regardless of the size of ownership will not be in any manner affected by said contract, so far as the size of individual ownership is concerned." App. to Pet. for Cert. in No. 79-435, p. 144a. Conclusion of Law No. XI stated that "neither the United States nor Imperial Irrigation District is limited by the terms of said contract or by any law applicable thereto in the delivery of water to any maximum acreage of land held in a single ownership." Id., at 149a.
14
As the District Court pointed out, there was no suggestion by anyone during the construction of the All-American Canal that acreage limitations would be applicable to lands under cultivation in 1929. And based on its own "thorough review of Departmental policy," the District Court also concluded that the Wilbur interpretation of the Project Act remained the official view of the United States "during the incumbencies of six successor Secretaries and four Presidential administrations." 322 F.Supp. 11, 26 (SD Cal.1971).
In 1942, in response to inquiry from the Federal Land Bank as to the applicability of the 160-acre limitation in Imperial Valley, the Commissioner of the Bureau of Reclamation replied in the negative. In 1944, Assistant Commissioner of Reclamation Warne testified before a Senate Subcommittee that "the limitation was never applied under the law to the Imperial Valley, except as a matter of new lands . . . ," and went on to make the Wilbur letter part of the Subcommittee's record. Hearings on H.R. 3961 before a Subcommittee of the Senate Committee on Commerce, 78th Cong., 2d Sess., pt. 4, pp. 599, 764-765 (1944).
In 1945, the Solicitor of the Interior Department rules that the 160-acre limitation was applicable to Coachella Valley. 71 I.D., at 533. In the course of the opinion, he also disagreed with the Wilbur letter with respect to Imperial Valley, but did not purport to overrule it. In 1948, Secretary Krug, in response to an inquiry from a veterans' organization, issued a letter affirming the Department's adherence to the Wilbur ruling. App. 253a-254a.
In 1952, after several years of negotiations, changes were effected in the 1932 contract between the District and the United States, but the Department did not insist that an acreage limitation be included or that the Wilbur position be abandoned.
In response to inquiry from the Solicitor General in 1958, the then Solicitor of the Department of the Interior reaffirmed the Department's position with respect to the Wilbur letter. Id., at 255a-260a. The Solicitor General, however, without the concurrence of the Department, answered the inquiry of the Special Master in Arizona v. California, suggesting that the question of acreage limitations was irrelevant to the proceedings before the Master but also indicating in a footnote his disagreement with the Wilbur letter and the Department's position. App. 260a-263a. Also in 1958, the Solicitor General expressed the same opinion in the Ivanhoe litigation. Brief for United States as Amicus Curiae in Ivanhoe Irrig. Dist. v. McCracken, O.T. 1957, Nos. 122 et al., p. 37, n. 9. It was not until 1964 that the Secretary repudiated the Department's prior position. 71 I.D. 496.
15
The District Court found that there were some 800 owners in the District owning in the aggregate approximately 233,000 acres of excess land. 322 F.Supp., at 12.
16
As indicated in a memorandum for the file prepared by the Solicitor General, the essence of the case for him was that an official construction of the Project Act had been made by the Department and followed for 38 years. To overturn such a longstanding administrative decision did "not strike [the Solicitor General] as good administration, or good government." 126 Cong.Rec. 3281 (1980). He concluded that an appeal to the Court of Appeals should not be taken because it would not, and, in his view, should not be successful. His second reason was prophetic.
17
Excess land offered for sale pursuant to § 46 must be sold at a price fixed by the Secretary of the Interior "on the basis of its actual bona fide value at the date of appraisal without reference to the proposed construction of the irrigation works . . . ." The Secretary may "cancel the water right attaching to the land" if it is sold for a different price. Because the federal reclamation project has added substantially to the value of land in the District, excess lands would be sold at prices far below their current fair market values. Since purchasers of such land would stand to reap significant gains on resale, the absence of detailed information about respondents' financial resources does not defeat respondents' claim of standing. Even if improvements to the land, such as installation of drainage systems, have enhanced its value, the potential windfall would remain and petitioners would possess a further incentive for offering excess lands for sale—to recoup the value of improvements—rather than withdrawing them from agricultural uses.
While the prospect of windfall profits could attract a large number of potential purchasers of the excess lands, respondents' interest is not "shared in substantially equal measure by all or a large class of citizens," Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975), because respondents are residents of the Imperial Valley who desire to purchase the excess land for purposes of farming.
18
In a subsequent opinion denying rehearing, the Court of Appeals reaffirmed that respondents had standing. 595 F.2d 525 (1979). The court rejected the argument that because the District had repaid more than one-half of the construction costs of the irrigation project the Secretary no longer had the authority to fix sale prices for excess land. Section 46 provides in pertinent part that "until one-half the construction charges against said lands shall have been fully paid no sale of any such lands shall carry the right to receive water unless and until the purchase price involved in such sale is approved by the Secretary of the Interior . . . ." The Court of Appeals concluded that this portion of § 46 did not apply with respect to the initial breakup of excess lands for which the Secretary must fix the sale price "on the basis of its actual bona fide value at the date of appraisal without reference to the proposed construction of the irrigation works."
19
Ever since its enactment in 1902, the reclamation law has generally limited to 160 acres the amount of private land in single ownership eligible to receive water from a reclamation project. This limitation helps open project lands to settlement by farmers of modest means, insures wide distribution of the benefits of federal projects, and guards against the possibility that speculators will earn windfall profits from the increase in value of their lands resulting from the federal project. See also Ivanhoe Irrig. Dist. v. McCracken, 357 U.S. 275, 292, 78 S.Ct. 1174, 1184, 2 L.Ed.2d 1313 (1958). The excess-acreage limitation has been retained in successive statutes culminating in § 46 of the 1926 Act.
20
This was the Special Master's recommended definition. We accepted it over the objection of California. In requiring actual diversion of water and its application to a defined area of land, the definition did not reach all appropriative water rights under state law. See Report of Special Master, Arizona v. California, O.T.1960, No. 8 Orig., pp. 307-309 (hereinafter Special Master Report).
21
In terms of reclamation law generally, the import of the Court's opinion in this respect was considerably narrowed in California v. United States, 438 U.S. 645, 98 S.Ct. 2985, 57 L.Ed.2d 1018 (1978), but the latter case did not question the description of the Secretary's power under the Project Act itself.
22
While the source of present perfected rights is to be found in state law, the question of whether rights provided by state law amount to present perfected rights within the meaning of § 6 is obviously one of federal law. See Ivanhoe Irrig. Dist. v. McCracken, supra, 357 U.S., at 289, 78 S.Ct., at 1182; California v. United States, supra, 438 U.S., at 668-669, n. 21, 671-673, 678, n. 31, 98 S.Ct., at 2997-2998, n. 21, 2999-3000, 3002 n. 31.
23
Ivanhoe Irrig. Dist. v. All Parties and Persons, 47 Cal.2d 597, 624-625, 306 P.2d 824, 840 (1957), rev'd sub nom. Ivanhoe Irrig. Dist. v. McCracken, 357 U.S. 275, 78 S.Ct. 1174, 2 L.Ed.2d 1313 (1958). As beneficiaries of the trust, the landowners have a legally enforceable right, appurtenant to their lands, to continued service by the District. Erwin v. Gage Canal Co., 226 Cal.App.2d 189, 194-195, 37 Cal.Rptr. 901, 903-904 (1964); South Pasadena v. Pasadena Land & Water Co., 152 Cal. 579, 588, 93 P. 490, 494 (1908). The District is obligated not only to continue delivery, but also to apportion water distributed for irrigation purposes ratably to each landowner in accordance with his share of the total assessments in the District. Cal. Water Code Ann. § 22250 (West 1956).
In the Ivanhoe litigation, the California Supreme Court originally determined that to deny water to farms in excess of 160 acres in single ownership would contravene § 22250, and would work a denial of due process and equal protection of the laws. Following this Court's decision that the 160-acre limitations contained in irrigation contracts for the Central Valley Project were mandated by federal reclamation law, the California Supreme Court, on remand, held that in light of this Court's opinion, water could be denied to farms exceeding the acreage limitation without violating state law. Ivanhoe Irrig. Dist. v. All Parties and Persons, 53 Cal.2d 692, 3 Cal.Rptr. 317, 350 P.2d 69 (1960). However, the court's decision made clear that absent an overriding provision of federal law imposing an acreage limitation, state law debars an irrigation district from denying water to farms on the basis of size.
24
In Ivanhoe Irrig. Dist. v. McCracken, supra, 357 U.S., at 292, 78 S.Ct., at 1184, the Court remarked that where a particular project has been exempted from the acreage limitation because of its peculiar circumstances, "the Congress has always made such exemption by express enactment." As we have explained, we have little trouble in concluding that the Project Act's provision for the satisfaction of perfected rights acquired under state law is an effective expression that the acreage limitation would be inapplicable to the lands served under such rights. As the Special Master observed in Arizona v. California, "the congressional intention was to insure that persons actually applying water to beneficial use would not have their uses disturbed by the erection of the dam and the storage of water in the reservoir." Special Master Report 309.
25
Indeed, the Department of the Interior observed in 1946 that the administrative practice under § 46 had usually been "to refuse to deliver water to any lands, excess or nonexcess, until the owner of excess land has executed the recordable contract agreeing to dispose of the excess." Department of Interior, Landownership Survey on Federal Reclamation Projects 47 (1946).
26
The United States urges that § 6 merely specifies priorities among those entitled to water from the Project and is irrelevant in determining entitlement itself. The argument has no merit.
27
The Project Act was the result of the fourth attempt by Congressman Swing and Senator Johnson of California to cause the Federal Government to move forward with such an undertaking. Their first bills were introduced in 1922, in the 67th Congress. The fourth set of bills, which were successful, were introduced in 1927, in the 70th Congress. Congressional action was completed on December 18, 1928, and the President's signature followed on December 21 of that year.
28
Respondents point out that although the District was to repay the cost of the All-American Canal and the Imperial Dam, the repayment obligation carried no interest. We should not hold, it is urged, that Congress intended this permanent subsidy to large landholders. Rather, we should find that the benefits of the Project to the District justify the application of § 46 and the requirement that excess landholdings be sold. We think, however, that Congress struck the balance between public and private rights and determined to respect those rights to Colorado River water that had been put to use as of 1929. The Project Act recited its purposes as "controlling the floods, improving navigation and regulating the flow of the Colorado River, providing for storage and for the delivery of the stored waters thereof for reclamation of public lands and other beneficial uses exclusively within the United States . . . ." Section 1 of the Act, 45 Stat. 1057, 43 U.S.C. § 617. The 1932 contract between the District and the United States contained nearly identical recitals as to the purposes of the Project. It also recited that there were public lands already within the District and required that substantial additional acreages of public and private lands be included within the District. The District Court found that certain national interests were advanced by the Project:
"1) The inclusion within the District by annexation, pursuant to Article 34 of the contract between the Government and the District dated December 1, 1932, of some 250,000 acres of Government lands.
"2) Added capacity in the Canal for the servicing of such lands and some 11,000 acres of Indian land.
"3) Flood control for the purpose of preserving the Laguna Dam and protecting the Yuma Reclamation Project as well as protecting the public lands and private interests in Imperial Valley.
"4) The control of silt because of the federal government's problem in handling silt in the Yuma Project.
"5) The need to build a canal on All-American soil to put the United States in a position to bargain with the Mexican Government over the use of the water of the Colorado River.
"6) It enabled the United States Government to reclaim and put to use large tracts of public and Indian lands of the United States in Coachella Valley." 322 F.Supp., at 19.
The District Court concluded that Congress was aware of the water rights held in Imperial Valley and determined to exempt them from the acreage limitations "in recognition of the fact that the All-American Canal Project
was not merely an arid lands reclamation project, but was a special purpose program designed for national purposes, including water negotiations with Mexico, as well as for regional agricultural development." Id., at 22.
The Senate Report on S. 728, S.Rep. No. 592, 70th Cong., 1st Sess. (1928), stated several purposes of the Project, one of which was that it would "end an intolerable situation, under which the Imperial Valley now secures its sole water supply from a canal running for many miles through Mexico, as well as make possible the reclamation of public lands lying around the rim of the present cultivated section of the valley." Id., at 8. The Report also stated as follows:
"The All-American Canal will carry a portion of the conserved waters to where they can be used for irrigation and domestic purposes. Looked at in a somewhat narrow way, it represents a cooperative enterprise between Imperial irrigation district, which serves the present irrigated area in Imperial Valley, the Coachella County water district, a public district embracing in its limits the Coachella Valley, and the United States as owner of approximately 200,000 acres of public land about the rim of Imperial Valley, and about 11,000 acres of Indian lands now without water but possessing the same possibilities of development with water as the fertile lands in the valley. Neither Imperial irrigation district, the Coachella district, nor the United States could afford alone to build a canal from the river. Acting in conjunction, the canal is entirely feasible." Id., at 21.
The House Report on H.R. 5773, H.R.Rep. No. 918, 70th Cong., 1st Sess., 6 (1928), also identified one of the purposes of the Project as ending the "intolerable situation" which existed in Imperial Valley:
"This valley now secures its sole water supply by a canal which runs for some 60 miles through Mexico. The All-American Canal will furnish a substitute for this and at the same time carry the water at an elevation sufficient to make possible, at some future date, the irrigation of additional land, mostly public, lying about the rim of the cultivated area."
29
The matter had been called to the Secretary's attention by a memorandum of February 7 from Porter W. Dent, the Assistant Commissioner and General Counsel of the Bureau of Reclamation. His memorandum contained almost identical language to that in the Secretary's later letter. Mr. Dent said:
"Early in the negotiations connected with the All-American Canal contract the question was raised regarding whether and to what extent the 160-acre limitation is applicable to lands to be irrigated from this proposed canal. So far as I am advised, all who have given this matter consideration agree that this limitation does not apply to lands now cultivated and having a present water right. The view has been, and is, I believe, that these lands having already a water right, are entitled to have such right recognized without regard to the acreage limitation mentioned." App. 220a.
30
This was the case despite the fact that in 1945 in the course of concluding that the lands in Coachella Valley were subject to the acreage limitation, the Department's Solicitor also took exception to the Wilbur view with respect to Imperial Valley. The Solicitor's opinion, however, totally ignored the existence of present perfected rights in Imperial Valley and their absence in Coachella. His view as to Imperial Valley did not prevail, in any event, for in 1948, Secretary Krug expressly declined to depart from the Department's consistent adherence to the Wilbur view that the Project Act did not require limiting water deliveries in Imperial Valley to 160 acres under single ownership. Furthermore, in 1952, when the District and the Department negotiated a revision of the 1932 contract in some respects, there was no effort made by the Department to insist on a limitation provision.
The Department's repudiation of its prior position in 1964 was based on its Solicitor's view that § 46 of the 1926 Act applied to Imperial Valley by virtue of § 14 of the Project Act and that under that section no farmer in Imperial Valley could have project water for more than 160 acres of land. Excess lands must either be sold or the District must deny water to them. The Solicitor's opinion, however, gave only cursory attention to § 6. After stating that the proper rule of construction in cases such as he was considering was that "rights, privileges and immunities not expressly granted are reserved," the opinion went on to conclude:
"For the same reason the requirement in section 6 for 'satisfaction of present perfected rights' cannot be read as insulating the District lands from acreage limitation. It is not in plain terms an exemption from the limitations of reclamation law in connection with the obligation to repay the cost of Imperial Dam and the All-American Canal." 71 I.D., at 511.
We agree with the District Court's conclusion that this is a totally inadequate conception of perfected rights.
31
Petitioners contend that contrary to 28 U.S.C. § 1738, the Court of Appeals failed to give the same full faith and credit to the Hewes decision as that decision would have by law or usage in the courts of California. They urge that the United States embraced and consistently adhered to a construction of the Project Act that would exempt from acreage limitations all privately owned lands in the District, a position which the Government should not now be permitted to repudiate. They also argue that quite apart from § 6, the structure and other provisions of the Project Act negate the applicability of acreage limitations to privately owned lands in Imperial Valley. Finally, they present a view of the legislative history of the Project Act that they claim supports the inference that Congress intended to exempt from acreage limitations any and all lands that the District might subsequently take into itself and irrigate with project water.
32
We note, further, that there has passed the Senate and is pending in the House a measure that would exempt lands in the District from the reach of acreage limitations in the reclamation law.
| 78
|
447 U.S. 404
100 S.Ct. 2180
65 L.Ed.2d 222
Charles ANDERSONv.Glenn CHARLES.
No. 79-1377.
Decided June 16, 1980.
Rehearing Denied Aug. 11, 1980.
See 448 U.S. 912, 101 S.Ct. 27.
PER CURIAM.
1
Respondent Glenn Charles was arrested in Grand Rapids, Mich., while driving a stolen car. The car belonged to Theodore Ziefle, who had been strangled to death in his Ann Arbor home less than a week earlier. The respondent was charged with first-degree murder. At his trial in the Circuit Court of Washtenaw County, Mich., the State presented circumstantial evidence linking the respondent with the crime. The respondent was found with Ziefle's car and some of his other personal property. The respondent also owned clothing like that worn by the man last seen with the victim, and he boasted to witnesses that he had killed a man and stolen his car. Police Detective Robert LeVanseler testified that he interviewed the respondent shortly after his arrest. After giving the respondent Miranda warnings, LeVanseler asked him about the stolen automobile. According to LeVanseler, the respondent said that he stole the car in Ann Arbor from the vicinity of Washtenaw and Hill Streets, about two miles from the local bus station.
2
The respondent testified in his own behalf. On direct examination, he stated that he took Ziefle's unattended automobile from the parking lot of Kelly's Tire Co. in Ann Arbor. On cross-examination, the following colloquy occurred:
3
"Q. Now, this Kelly's Tire Company, that's right next to the bus station, isn't it?
4
"A. That's correct.
5
"Q. And, the bus station and Kelly's Tire are right next to the Washtenaw County Jail are they not?
6
"A. They are.
7
"Q. And, when you're standing in the Washtenaw County Jail looking out the window you can look right out and see the bus station and Kelly's Tire, can you not?
8
"A. That's correct.
9
"Q. So, you've had plenty of opportunity from—well, first you spent some time in the Washtenaw County Jail, haven't you?
10
"A. Quite a bit.
11
"Q. And, you have had plenty of opportunity to look out that window and see the bus station and Kelly's Tire?
12
"A. That's right.
13
"Q. And, you've seen cars being parked there, isn't that right?
14
"A. That's correct.
15
"Q. Is this where you got the idea to come up with the story that you took a car from that location? "A. No, the reason I came up with that is because it's the truth.
16
"Q. It's the truth?
17
"A. That's right.
18
"Q. Don't you think it's rather odd that if it were the truth that you didn't come forward and tell anybody at the time you were arrested, where you got that car?
19
"A. No, I don't.
20
"Q. You don't think that's odd?
21
"A. I wasn't charged with auto theft, I was charged with murder.
22
"Q. Didn't you think at the time you were arrested that possibly the car would have something to do with the charge of murder?
23
"A. When I tried to talk to my attorney they wouldn't let me see him and after that he just said to keep quiet.
24
"Q. This is a rather recent fabrication of yours isn't [sic ] it not?
25
"A. No it isn't.
26
"Q. Well, you told Detective LeVanseler back when you were first arrested, you stole the car back on Washtenaw and Hill Street?
27
"A. Never spoke with Detective LeVanseler.
28
"Q. Never did?
29
"A. Right, except when Detective Hall and Price were there and then it was on tape." Trial Transcript 302-304.
30
The jury convicted the respondent of first-degree murder. The Michigan Court of Appeals affirmed, People v. Charles, 58 Mich.App. 371, 227 N.W.2d 348 (1975), and the Michigan Supreme Court denied leave to appeal, 397 Mich. 815 (1976). The respondent then sought a writ of habeas corpus in the United States District Court for the Eastern District of Michigan. The District Court withheld the writ, but a divided panel of the Court of Appeals for the Sixth Circuit reversed. The Court of Appeals held that "the prosecutor's questions about [respondent's] post-arrest failure to tell officers the same story he told the jury violated due process" under the rule of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). 610 F.2d 417, 422 (6 Cir. 1979).1 The prison warden now petitions for a writ of certiorari. We grant the petition, grant the respondent leave to proceed in forma pauperis, and reverse the judgment of the Court of Appeals.
31
In Doyle, we held that the Due Process Clause of the Fourteenth Amendment prohibits impeachment on the basis of a defendant's silence following Miranda warnings. The case involved two defendants who made no postarrest statements about their involvement in the crime.2 Each testified at trial that he had been framed. On cross-examination, the prosecutor asked the defendants why they had not told the frameup story to the police upon arrest. We concluded that such impeachment was fundamentally unfair because Miranda warnings inform a person of his right to remain silent and assure him, at least implicitly, that his silence will not be used against him. 426 U.S., at 618-619, 96 S.Ct., at 2245; see Jenkins v. Anderson, 447 U.S. 231, 239-240, 100 S.Ct. 2124, 2129-2130, 65 L.Ed.2d 86.
32
Doyle bars the use against a criminal defendant of silence maintained after receipt of governmental assurances. But Doyle does not apply to cross-examination that merely inquires into prior inconsistent statements. Such questioning makes no unfair use of silence because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent at all. See United States v. Agee, 597 F.2d 350, 354-356 (CA3) (en banc), cert. denied, 442 U.S. 944, 99 S.Ct. 2889, 61 L.Ed.2d 315 (1979); United States v. Mireles, 570 F.2d 1287, 1291-1293 (CA5 1978); United States v. Goldman, 563 F.2d 501, 503-504 (CA1 1977), cert. denied, 434 U.S. 1067, 98 S.Ct. 1245, 55 L.Ed.2d 768 (1978).
33
In this case, the Court of Appeals recognized that the respondent could be questioned about prior statements inconsistent with his trial testimony. The court therefore approved the "latter portion of the above quoted cross-examination . . . ." 610 F.2d, at 421. But the Court of Appeals found that "the earlier portion of the exchange" concerned the "separate issu[e]" of the respondent's "failure to tell arresting officers the same story he told the jury." Ibid. In the court's view, these questions were unconstitutional inquiries about postarrest silence. Thus, the Court of Appeals divided the cross-examination into two parts. It then applied Doyle to bar questions that concerned the respondent's failure to tell the police the story he recounted at trial.
34
We do not believe that the cross-examination in this case can be bifurcated so neatly. The quoted colloquy, taken as a whole, does "not refe[r] to the [respondent's] exercise of his right to remain silent; rather [it asks] the [respondent] why, if [his trial testimony] were true, he didn't tell the officer that he stole the decedent's car from the tire store parking lot instead of telling him that he took it from the street." 58 Mich.App., at 381, 227 N.W.2d, at 354. Any ambiguity in the prosecutor's initial questioning was quickly resolved by explicit reference to Detective LeVanseler's testimony, which the jury had heard only a few hours before. The questions were not designed to draw meaning from silence, but to elicit an explanation for a prior inconsistent statement.
35
We conclude that Doyle does not apply to the facts of this case. Each of two inconsistent descriptions of events may be said to involve "silence" insofar as it omits facts included in the other version. But Doyle does not require any such formalistic understanding of "silence," and we find no reason to adopt such a view in this case.
The judgment of the Court of Appeals is
36
Reversed.
37
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissents and would affirm the judgment of the Court of Appeals for the reasons stated in its opinion.
1
Neither the Court of Appeals nor the state courts addressed the question whether Doyle should be applied retroactively. Although the petitioner now claims that Doyle should be limited to prospective application, see Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), there is no indication that this claim was raised in the courts below. Moreover, the respondent asserts that Doyle's prohibition against use of postarrest silence was the law of the Sixth Circuit and of the State of Michigan long before his arrest. In view of our disposition of the merits of this controversy, we express no view on the retroactivity question.
2
One defendant said nothing at all. The other asked arresting officers, "What's this all about?" 426 U.S., at 615, n. 5, 96 S.Ct., at 2243. When told the reason for his arrest, he exclaimed "you got to be crazy," or "I don't know what you are talking about." Id., at 622-623, n. 4, 96 S.Ct., at 2246-2247 (STEVENS, J., dissenting). Both the Court and the dissent in Doyle analyzed the due process question as if both defendants had remained silent. The issue was said to involve cross-examination of a person who "does remain silent" after police inform him that he is legally entitled to do so. Id., at 620, 96 S.Ct., at 2245 (STEVENS, J., dissenting); see id., at 616-619, 96 S.Ct., at 2244-2245; id., at 621, 622, 626, 96 S.Ct., at 2246, 2247, 2248 (STEVENS, J., dissenting). In any event, neither the inquiry nor the exclamation quoted above contradicted the defendant's later trial testimony.
| 01
|
447 U.S. 303
100 S.Ct. 2204
65 L.Ed.2d 144
Sidney A. DIAMOND, Commissioner of Patents and Trademarks, Petitioner,v.Ananda M. CHAKRABARTY et al.
No. 79-136.
Argued March 17, 1980.
Decided June 16, 1980.
Syllabus
Title 35 U.S.C. § 101 provides for the issuance of a patent to a person who invents or discovers "any" new and useful "manufacture" or "composition of matter." Respondent filed a patent application relating to his invention of a human-made, genetically engineered bacterium capable of breaking down crude oil, a property which is possessed by no naturally occurring bacteria. A patent examiner's rejection of the patent application's claims for the new bacteria was affirmed by the Patent Office Board of Appeals on the ground that living things are not patentable subject matter under § 101. The Court of Customs and Patent Appeals reversed, concluding that the fact that micro-organisms are alive is without legal significance for purposes of the patent law.
Held: A live, human-made micro-organism is patentable subject matter under § 101. Respondent's micro-organism constitutes a "manufacture" or "composition of matter" within that statute. Pp. 308-318.
(a) In choosing such expansive terms as "manufacture" and "composition of matter," modified by the comprehensive "any," Congress contemplated that the patent laws should be given wide scope, and the relevant legislative history also supports a broad construction. While laws of nature, physical phenomena, and abstract ideas are not patentable, respondent's claim is not to a hitherto unknown natural phenomenon, but to a nonnaturally occurring manufacture or composition of matter—a product of human ingenuity "having a distinctive name, character [and] use." Hartranft v. Wiegmann, 121 U.S. 609, 615, 7 S.Ct. 1240, 1243, 30 L.Ed. 1012; Funk Brothers Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 68 S.Ct. 440, 92 L.Ed. 588, distinguished. Pp. 308-310.
(b) The passage of the 1930 Plant Patent Act, which afforded patent protection to certain asexually reproduced plants, and the 1970 Plant Variety Protection Act, which authorized protection for certain sexually reproduced plants but excluded bacteria from its protection, does not evidence congressional understanding that the terms "manufacture" or "composition of matter" in § 101 do not include living things. Pp. 310-314.
(c) Nor does the fact that genetic technology was unforeseen when Congress enacted § 101 require the conclusion that micro-organisms cannot qualify as patentable subject matter until Congress expressly authorizes such protection. The unambiguous language of § 101 fairly embraces respondent's invention. Arguments against patentability under § 101, based on potential hazards that may be generated by genetic research, should be addressed to the Congress and the Executive, not to the Judiciary. Pp. 314-318.
596 F.2d 952, affirmed.
Lawrence G. Wallace, Washington, D. C., for petitioner.
Edward F. McKie, Jr., Washington, D. C., for respondent.
[Amicus Curiae Information from page 304 intentionally omitted]
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari to determine whether a live, human-made micro-organism is patentable subject matter under 35 U.S.C. § 101.
2
* In 1972, respondent Chakrabarty, a microbiologist, filed a patent application, assigned to the General Electric Co. The application asserted 36 claims related to Chakrabarty's invention of "a bacterium from the genus Pseudomonas containing therein at least two stable energy-generating plasmids, each of said plasmids providing a separate hydrocarbon degradative pathway."1 This human-made, genetically engineered bacterium is capable of breaking down multiple components of crude oil. Because of this property, which is possessed by no naturally occurring bacteria, Chakrabarty's invention is believed to have significant value for the treatment of oil spills.2
3
Chakrabarty's patent claims were of three types: first, process claims for the method of producing the bacteria; second, claims for an inoculum comprised of a carrier material floating on water, such as straw, and the new bacteria; and third, claims to the bacteria themselves. The patent examiner allowed the claims falling into the first two categories, but rejected claims for the bacteria. His decision rested on two grounds: (1) that micro-organisms are "products of nature," and (2) that as living things they are not patentable subject matter under 35 U.S.C. § 101.
4
Chakrabarty appealed the rejection of these claims to the Patent Office Board of Appeals, and the Board affirmed the Examiner on the second ground.3 Relying on the legislative history of the 1930 Plant Patent Act, in which Congress extended patent protection to certain asexually reproduced plants, the Board concluded that § 101 was not intended to cover living things such as these laboratory created micro-organisms.
5
The Court of Customs and Patent Appeals, by a divided vote, reversed on the authority of its prior decision in In re Bergy, 563 F.2d 1031, 1038 (1977), which held that "the fact that microorganisms . . . are alive . . . [is] without legal significance" for purposes of the patent law.4 Subsequently, we granted the Acting Commissioner of Patents and Trademarks' petition for certiorari in Bergy, vacated the judgment, and remanded the case "for further consideration in light of Parker v. Flook, 437 U.S. 584, [98 S.Ct. 2522, 57 L.Ed.2d 451] (1978)." 438 U.S. 902, 98 S.Ct. 3119, 57 L.Ed.2d 1145 (1978). The Court of Customs and Patent Appeals then vacated its judgment in Chakrabarty and consolidated the case with Bergy for reconsideration. After re-examining both cases in the light of our holding in Flook, that court, with one dissent, reaffirmed its earlier judgments. 596 F.2d 952 (1979).
6
The Commissioner of Patents and Trademarks again sought certiorari, and we granted the writ as to both Bergy and Chakrabarty. 444 U.S. 924, 100 S.Ct. 261, 62 L.Ed.2d 180 (1979). Since then, Bergy has been dismissed as moot, 444 U.S. 1028, 100 S.Ct. 696, 62 L.Ed.2d 664 (1980), leaving only Chakrabarty for decision.
II
7
The Constitution grants Congress broad power to legislate to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Art. I, § 8, cl. 8. The patent laws promote this progress by offering inventors exclusive rights for a limited period as an incentive for their inventiveness and research efforts. Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 480-481, 94 S.Ct. 1879, 1885-1886, 40 L.Ed.2d 315 (1974); Universal Oil Co. v. Globe Co., 322 U.S. 471, 484, 64 S.Ct. 1110, 1116, 88 L.Ed. 1399 (1944). The authority of Congress is exercised in the hope that "[t]he productive effort thereby fostered will have a positive effect on society through the introduction of new products and processes of manufacture into the economy, and the emanations by way of increased employment and better lives for our citizens." Kewanee, supra, 416 U.S., at 480, 94 S.Ct., at 1885-86.
8
The question before us in this case is a narrow one of statutory interpretation requiring us to construe 35 U.S.C. § 101, which provides:
9
"Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title."
10
Specifically, we must determine whether respondent's micro-organism constitutes a "manufacture" or "composition of matter" within the meaning of the statute.5
III
11
In cases of statutory construction we begin, of course, with the language of the statute. Southeastern Community College v. Davis, 442 U.S. 397, 405, 99 S.Ct. 2361, 2366, 60 L.Ed.2d 980 (1979). And "unless otherwise defined, words will be interpreted as taking their ordinary, contemporary common meaning." Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 314, 62 L.Ed.2d 199 (1979). We have also cautioned that courts "should not read into the patent laws limitations and conditions which the legislature has not expressed." United States v. Dubilier Condenser Corp., 289 U.S. 178, 199, 53 S.Ct. 554, 561, 77 L.Ed. 1114 (1933).
12
Guided by these canons of construction, this Court has read the term "manufacture" in § 101 in accordance with its dictionary definition to mean "the production of articles for use from raw or prepared materials by giving to these materials new forms, qualities, properties, or combinations, whether by hand-labor or by machinery." American Fruit Growers, Inc. v. Brogdex Co., 283 U.S. 1, 11, 51 S.Ct. 328, 330, 75 L.Ed. 801 (1931). Similarly, "composition of matter" has been construed consistent with its common usage to include "all compositions of two or more substances and . . . all composite articles, whether they be the results of chemical union, or of mechanical mixture, or whether they be gases, fluids, powders or solids." Shell Development Co. v. Watson, 149 F.Supp. 279, 280 (D.C.1957) (citing 1 A. Deller, Walker on Patents § 14, p. 55 (1st ed. 1937)). In choosing such expansive terms as "manufacture" and "composition of matter," modified by the comprehensive "any," Congress plainly contemplated that the patent laws would be given wide scope.
13
The relevant legislative history also supports a broad construction. The Patent Act of 1793, authored by Thomas Jefferson, defined statutory subject matter as "any new and useful art, machine, manufacture, or composition of matter, or any new or useful improvement [thereof]." Act of Feb. 21, 1793, § 1, 1 Stat. 319. The Act embodied Jefferson's philosophy that "ingenuity should receive a liberal encouragement." 5 Writings of Thomas Jefferson 75-76 (Washington ed. 1871). See Graham v. John Deere Co., 383 U.S. 1, 7-10, 86 S.Ct. 684, 688-690, 15 L.Ed.2d 545 (1966). Subsequent patent statutes in 1836, 1870, and 1874 employed this same broad language. In 1952, when the patent laws were recodified, Congress replaced the word "art" with "process," but otherwise left Jefferson's language intact. The Committee Reports accompanying the 1952 Act inform us that Congress intended statutory subject matter to "include anything under the sun that is made by man." S.Rep.No.1979, 82d Cong., 2d Sess., 5 (1952); H.R.Rep.No.1923, 82d Cong., 2d Sess., 6 (1952).6
14
This is not to suggest that § 101 has no limits or that it embraces every discovery. The laws of nature, physical phenomena, and abstract ideas have been held not patentable. See Parker v. Flook, 437 U.S. 584, 98 S.Ct. 2522, 57 L.Ed.2d 451 (1978); Gottschalk v. Benson, 409 U.S. 63, 67, 93 S.Ct. 253, 255, 34 L.Ed.2d 273 (1972); Funk Brothers Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 130, 68 S.Ct. 440, 441, 92 L.Ed. 588 (1948); O'Reilly v. Morse, 15 How. 62, 112-121, 14 L.Ed. 601 (1854); Le Roy v. Tatham, 14 How. 156, 175, 14 L.Ed. 367 (1853). Thus, a new mineral discovered in the earth or a new plant found in the wild is not patentable subject matter. Likewise, Einstein could not patent his celebrated law that E=mc2; nor could Newton have patented the law of gravity. Such discoveries are "manifestations of . . . nature, free to all men and reserved exclusively to none." Funk, supra, 333 U.S., at 130, 68 S.Ct., at 441.
15
Judged in this light, respondent's micro-organism plainly qualifies as patentable subject matter. His claim is not to a hitherto unknown natural phenomenon, but to a nonnaturally occurring manufacture or composition of matter—a product of human ingenuity "having a distinctive name, character [and] use." Hartranft v. Wiegmann, 121 U.S. 609, 615, 7 S.Ct. 1240, 1243, 30 L.Ed. 1012 (1887). The point is underscored dramatically by comparison of the invention here with that in Funk. There, the patentee had discovered that there existed in nature certain species of root-nodule bacteria which did not exert a mutually inhibitive effect on each other. He used that discovery to produce a mixed culture capable of inoculating the seeds of leguminous plants. Concluding that the patentee had discovered "only some of the handiwork of nature," the Court ruled the product nonpatentable:
16
"Each of the species of root-nodule bacteria contained in the package infects the same group of leguminous plants which it always infected. No species acquires a different use. The combination of species produces no new bacteria, no change in the six species of bacteria, and no enlargement of the range of their utility. Each species has the same effect it always had. The bacteria perform in their natural way. Their use in combination does not improve in any way their natural functioning. They serve the ends nature originally provided and act quite independently of any effort of the patentee." 333 U.S., at 131, 68 S.Ct., at 442.
17
Here, by contrast, the patentee has produced a new bacterium with markedly different characteristics from any found in nature and one having the potential for significant utility. His discovery is not nature's handiwork, but his own; accordingly it is patentable subject matter under § 101.
IV
18
Two contrary arguments are advanced, neither of which we find persuasive.
19
(A)
20
The petitioner's first argument rests on the enactment of the 1930 Plant Patent Act, which afforded patent protection to certain asexually reproduced plants, and the 1970 Plant Variety Protection Act, which authorized protection for certain sexually reproduced plants but excluded bacteria from its protection.7 In the petitioner's view, the passage of these Acts evidences congressional understanding that the terms "manufacture" or "composition of matter" do not include living things; if they did, the petitioner argues, neither Act would have been necessary.
21
We reject this argument. Prior to 1930, two factors were thought to remove plants from patent protection. The first was the belief that plants, even those artificially bred, were products of nature for purposes of the patent law. This position appears to have derived from the decision of the patent office in Ex parte Latimer, 1889 Dec.Com.Pat. 123, in which a patent claim for fiber found in the needle of the Pinus australis was rejected. The Commissioner reasoned that a contrary result would permit "patents [to] be obtained upon the trees of the forest and the plants of the earth, which of course would be unreasonable and impossible." Id., at 126. The Latimer case, it seems, came to "se[t] forth the general stand taken in these matters" that plants were natural products not subject to patent protection. Thorne, Relation of Patent Law to Natural Products, 6 J. Pat.Off.Soc. 23, 24 (1923).8 The second obstacle to patent protection for plants was the fact that plants were thought not amenable to the "written description" requirement of the patent law. See 35 U.S.C. § 112. Because new plants may differ from old only in color or perfume, differentiation by written description was often impossible. See Hearings on H.R.11372 before the House Committee on Patents, 71st Cong., 2d Sess. 7 (1930) (memorandum of Patent Commissioner Robertson).
22
In enacting the Plant Patent Act, Congress addressed both of these concerns. It explained at length its belief that the work of the plant breeder "in aid of nature" was patentable invention. S.Rep.No.315, 71st Cong., 2d Sess., 6-8 (1930); H.R.Rep.No.1129, 71st Cong., 2d Sess., 7-9 (1930). And it relaxed the written description requirement in favor of "a description . . . as complete as is reasonably possible." 35 U.S.C. § 162. No Committee or Member of Congress, however, expressed the broader view, now urged by the petitioner, that the terms "manufacture" or "composition of matter" exclude living things. The sole support for that position in the legislative history of the 1930 Act is found in the conclusory statement of Secretary of Agriculture Hyde, in a letter to the Chairmen of the House and Senate Committees considering the 1930 Act, that "the patent laws . . . at the present time are understood to cover only inventions or discoveries in the field of inanimate nature." See S.Rep.No.315, supra, at Appendix A; H.R.Rep.No.1129, supra, at Appendix A. Secretary Hyde's opinion, however, is not entitled to controlling weight. His views were solicited on the administration of the new law and not on the scope of patentable subject matter—an area beyond his competence. Moreover, there is language in the House and Senate Committee Reports suggesting that to the extent Congress considered the matter it found the Secretary's dichotomy unpersuasive. The Reports observe:
23
"There is a clear and logical distinction between the discovery of a new variety of plant and of certain inanimate things, such, for example, as a new and useful natural mineral. The mineral is created wholly by nature unassisted by man. . . . On the other hand, a plant discovery resulting from cultivation is unique, isolated, and is not repeated by nature, nor can it be reproduced by nature unaided by man. . . . " S.Rep.No.315, supra, at 6; H.R.Rep.No.1129,supra, at 7 (emphasis added).
24
Congress thus recognized that the relevant distinction was not between living and inanimate things, but between products of nature, whether living or not, and human-made inventions. Here, respondent's micro-organism is the result of human ingenuity and research. Hence, the passage of the Plant Patent Act affords the Government no support.
25
Nor does the passage of the 1970 Plant Variety Protection Act support the Government's position. As the Government acknowledges, sexually reproduced plants were not included under the 1930 Act because new varieties could not be reproduced true-to-type through seedlings. Brief for Petitioner 27, n. 31. By 1970, however, it was generally recognized that true-to-type reproduction was possible and that plant patent protection was therefore appropriate. The 1970 Act extended that protection. There is nothing in its language or history to suggest that it was enacted because § 101 did not include living things.
26
In particular, we find nothing in the exclusion of bacteria from plant variety protection to support the petitioner's position. See n. 7, supra. The legislative history gives no reason for this exclusion. As the Court of Customs and Patent Appeals suggested, it may simply reflect congressional agreement with the result reached by that court in deciding In re Arzberger, 27 C.C.P.A. (Pat.) 1315, 112 F.2d 834 (1940), which held that bacteria were not plants for the purposes of the 1930 Act. Or it may reflect the fact that prior to 1970 the Patent Office had issued patents for bacteria under § 101.9 In any event, absent some clear indication that Congress "focused on [the] issues . . . directly related to the one presently before the Court," SEC v. Sloan, 436 U.S. 103, 120-121, 98 S.Ct. 1702, 1713, 56 L.Ed.2d 148 (1978), there is no basis for reading into its actions an intent to modify the plain meaning of the words found in § 101. See TVA v. Hill, 437 U.S. 153, 189-193, 98 S.Ct. 2279, 2299-2301, 57 L.Ed.2d 117 (1978); United States v. Price, 361 U.S. 304, 313, 80 S.Ct. 326, 331, 4 L.Ed.2d 334 (1960).
27
(B)
28
The petitioner's second argument is that micro-organisms cannot qualify as patentable subject matter until Congress expressly authorizes such protection. His position rests on the fact that genetic technology was unforeseen when Congress enacted § 101. From this it is argued that resolution of the patentability of inventions such as respondent's should be left to Congress. The legislative process, the petitioner argues, is best equipped to weigh the competing economic, social, and scientific considerations involved, and to determine whether living organisms produced by genetic engineering should receive patent protection. In support of this position, the petitioner relies on our recent holding in Parker v. Flook, 437 U.S. 584, 98 S.Ct. 2522, 57 L.Ed.2d 451 (1978), and the statement that the judiciary "must proceed cautiously when . . . asked to extend patent rights into areas wholly unforeseen by Congress." Id., at 596, 98 S.Ct. at 2529.
29
It is, of course, correct that Congress, not the courts, must define the limits of patentability; but it is equally true that once Congress has spoken it is "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). Congress has performed its constitutional role in defining patentable subject matter in § 101; we perform ours in construing the language Congress has employed. In so doing, our obligation is to take statutes as we find them, guided, if ambiguity appears, by the legislative history and statutory purpose. Here, we perceive no ambiguity. The subject-matter provisions of the patent law have been cast in broad terms to fulfill the constitutional and statutory goal of promoting "the Progress of Science and the useful Arts" with all that means for the social and economic benefits envisioned by Jefferson. Broad general language is not necessarily ambiguous when congressional objectives require broad terms.
30
Nothing in Flook is to the contrary. That case applied our prior precedents to determine that a "claim for an improved method of calculation, even when tied to a specific end use, is unpatentable subject matter under § 101." 437 U.S., at 595, n. 18, 98 S.Ct., at 2528, n. 18. The Court carefully scrutinized the claim at issue to determine whether it was precluded from patent protection under "the principles underlying the prohibition against patents for 'ideas' or phenomena of nature." Id., at 593, 98 S.Ct. at 2527. We have done that here. Flook did not announce a new principle that inventions in areas not contemplated by Congress when the patent laws were enacted are unpatentable per se.
31
To read that concept into Flook would frustrate the purposes of the patent law. This Court frequently has observed that a statute is not to be confined to the "particular application[s] . . . contemplated by the legislators." Barr v. United States, 324 U.S. 83, 90, 65 S.Ct. 522, 525, 89 L.Ed. 765 (1945). Accord, Browder v. United States, 312 U.S. 335, 339, 61 S.Ct. 599, 601, 85 L.Ed. 862 (1941); Puerto Rico v. Shell Co., 302 U.S. 253, 257, 58 S.Ct. 167, 169, 82 L.Ed. 235 (1937). This is especially true in the field of patent law. A rule that unanticipated inventions are without protection would conflict with the core concept of the patent law that anticipation undermines patentability. See Graham v. John Deere Co., 383 U.S., at 12-17, 86 S.Ct., at 691-693. Mr. Justice Douglas reminded that the inventions most benefiting mankind are those that "push back the frontiers of chemistry, physics, and the like." Great A. & P. Tea Co. v. Supermarket Corp., 340 U.S. 147, 154, 71 S.Ct. 127, 131, 95 L.Ed. 162 (1950) (concurring opinion). Congress employed broad general language in drafting § 101 precisely because such inventions are often unforeseeable.10
32
To buttress his argument, the petitioner, with the support of amicus, points to grave risks that may be generated by research endeavors such as respondent's. The briefs present a gruesome parade of horribles. Scientists, among them Nobel laureates, are quoted suggesting that genetic research may pose a serious threat to the human race, or, at the very least, that the dangers are far too substantial to permit such research to proceed apace at this time. We are told that genetic research and related technological developments may spread pollution and disease, that it may result in a loss of genetic diversity, and that its practice may tend to depreciate the value of human life. These arguments are forcefully, even passionately, presented; they remind us that, at times, human ingenuity seems unable to control fully the forces it creates—that with Hamlet, it is sometimes better "to bear those ills we have than fly to others that we know not of."
33
It is argued that this Court should weigh these potential hazards in considering whether respondent's invention is patentable subject matter under § 101. We disagree. The grant or denial of patents on micro-organisms is not likely to put an end to genetic research or to its attendant risks. The large amount of research that has already occurred when no researcher had sure knowledge that patent protection would be available suggests that legislative or judicial fiat as to patentability will not deter the scientific mind from probing into the unknown any more than Canute could command the tides. Whether respondent's claims are patentable may determine whether research efforts are accelerated by the hope of reward or slowed by want of incentives, but that is all.
34
What is more important is that we are without competence to entertain these arguments—either to brush them aside as fantasies generated by fear of the unknown, or to act on them. The choice we are urged to make is a matter of high policy for resolution within the legislative process after the kind of investigation, examination, and study that legislative bodies can provide and courts cannot. That process involves the balancing of competing values and interests, which in our democratic system is the business of elected representatives. Whatever their validity, the contentions now pressed on us should be addressed to the political branches of the Government, the Congress and the Executive, and not to the courts.11
35
We have emphasized in the recent past that "[o]ur individual appraisal of the wisdom or unwisdom of a particular [legislative] course . . . is to be put aside in the process of interpreting a statute." TVA v. Hill, 437 U.S., at 194, 98 S.Ct., at 2302. Our task, rather, is the narrow one of determining what Congress meant by the words it used in the statute; once that is done our powers are exhausted. Congress is free to amend § 101 so as to exclude from patent protection organisms produced by genetic engineering. Cf. 42 U.S.C. § 2181(a), exempting from patent protection inventions "useful solely in the utilization of special nuclear material or atomic energy in an atomic weapon." Or it may chose to craft a statute specifically designed for such living things. But, until Congress takes such action, this Court must construe the language of § 101 as it is. The language of that section fairly embraces respondent's invention.
36
Accordingly, the judgment of the Court of Customs and Patent Appeals is
37
Affirmed.
38
Mr. Justice BRENNAN, with whom Mr. Justice WHITE, Mr. Justice MARSHALL, and Mr. Justice POWELL join, dissenting.
39
I agree with the Court that the question before us is a narrow one. Neither the future of scientific research, nor even, the ability of respondent Chakrabarty to reap some monopoly profits from his pioneering work, is at stake. Patents on the processes by which he has produced and employed the new living organism are not contested. The only question we need decide is whether Congress, exercising its authority under Art. I, § 8, of the Constitution, intended that he be able to secure a monopoly on the living organism itself, no matter how produced or how used. Because I believe the Court has misread the applicable legislation, I dissent.
40
The patent laws attempt to reconcile this Nation's deep seated antipathy to monopolies with the need to encourage progress. Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518, 530-531, 92 S.Ct. 1700, 1707-1708, 32 L.Ed.2d 273 (1972); Graham v. John Deere Co., 383 U.S. 1, 7-10, 86 S.Ct. 684, 668-690, 15 L.Ed.2d 545 (1966). Given the complexity and legislative nature of this delicate task, we must be careful to extend patent protection no further than Congress has provided. In particular, were there an absence of legislative direction, the courts should leave to Congress the decisions whether and how far to extend the patent privilege into areas where the common understanding has been that patents are not available.1 Cf. Deepsouth Packing Co. v. Laitram Corp., supra.
41
In this case, however, we do not confront a complete legislative vacuum. The sweeping language of the Patent Act of 1793, as re-enacted in 1952, is not the last pronouncement Congress has made in this area. In 1930 Congress enacted the Plant Patent Act affording patent protection to developers of certain asexually reproduced plants. In 1970 Congress enacted the Plant Variety Protection Act to extend protection to certain new plant varieties capable of sexual reproduction. Thus, we are not dealing—as the Court would have it—with the routine problem of "unanticipated inventions." Ante, at 316. In these two Acts Congress has addressed the general problem of patenting animate inventions and has chosen carefully limited language granting protection to some kinds of discoveries, but specifically excluding others. These Acts strongly evidence a congressional limitation that excludes bacteria from patentability.2
42
First, the Acts evidence Congress' understanding, at least since 1930, that § 101 does not include living organisms. If newly developed living organisms not naturally occurring had been patentable under § 101, the plants included in the scope of the 1930 and 1970 Acts could have been patented without new legislation. Those plants, like the bacteria involved in this case, were new varieties not naturally occurring.3 Although the Court, ante, at 311, rejects this line of argument, it does not explain why the Acts were necessary unless to correct a pre-existing situation.4 I cannot share the Court's implicit assumption that Congress was engaged in either idle exercises or mere correction of the public record when it enacted the 1930 and 1970 Acts. And Congress certainly thought it was doing something significant. The Committee Reports contain expansive prose about the previously unavailable benefits to be derived from extending patent protection to plants.5 H.R. Rep. No. 91-1605, pp. 1-3 (1970), U.S.Code Cong. & Admin.News 1970, p. 5082; S.Rep.No.315, 71st Cong., 2d Sess., 1-3 (1930). Because Congress thought it had to legislate in order to make agricultural "human-made inventions" patentable and because the legislation Congress enacted is limited, it follows that Congress never meant to make items outside the scope of the legislation patentable.
43
Second, the 1970 Act clearly indicates that Congress has included bacteria within the focus of its legislative concern, but not within the scope of patent protection. Congress specifically excluded bacteria from the coverage of the 1970 Act. 7 U.S.C. § 2402(a). The Court's attempts to supply explanations for this explicit exclusion ring hollow. It is true that there is no mention in the legislative history of the exclusion, but that does not give us license to invent reasons. The fact is that Congress, assuming that animate objects as to which it had not specifically legislated could not be patented, excluded bacteria from the set of patentable organisms.
44
The Court protests that its holding today is dictated by the broad language of § 101, which cannot "be confined to the 'particular application[s] . . . contemplated by the legislators.' " Ante, at 315, quoting Barr v. United States, 324 U.S. 83, 90, 65 S.Ct. 522, 525, 89 L.Ed. 765 (1945). But as I have shown, the Court's decision does not follow the unavoidable implications of the statute. Rather, it extends the patent system to cover living material even though Congress plainly has legislated in the belief that § 101 does not encompass living organisms. It is the role of Congress, not this Court, to broaden or narrow the reach of the patent laws. This is especially true where, as here, the composition sought to be patented uniquely implicates matters of public concern.
1
Plasmids are hereditary units physically separate from the chromosomes of the cell. In prior research, Chakrabarty and an associate discovered that plasmids control the oil degradation abilities of certain bacteria. In particular, the two researchers discovered plasmids capable of degrading camphor and octane, two components of crude oil. In the work represented by the patent application at issue here, Chakrabarty discovered a process by which four different plasmids, capable of degrading four different oil components, could be transferred to and maintained stably in a single Pseudomonas bacterium, which itself has no capacity for degrading oil.
2
At present, biological control of oil spills requires the use of a mixture of naturally occurring bacteria, each capable of degrading one component of the oil complex. In this way, oil is decomposed into simpler substances which can serve as food for aquatic life. However, for various reasons, only a portion of any such mixed culture survives to attack the oil spill. By breaking down multiple components of oil, Chakrabarty's micro-organism promises more efficient and rapid oil-spill control.
3
The Board concluded that the new bacteria were not "products of nature," because Pseudomonas bacteria containing two or more different energy-generating plasmids are not naturally occurring.
4
Bergy involved a patent application for a pure culture of the micro-organism Streptomyces vellosus found to be useful in the production of lincomycin, an antibiotic.
5
This case does not involve the other "conditions and requirements" of the patent laws, such as novelty and nonobviousness. 35 U.S.C. §§ 102, 103.
6
This same language was employed by P. J. Federico, a principal draftsman of the 1952 recodification, in his testimony regarding that legislation: "[U]nder section 101 a person may have invented a machine or a manufacture, which may include anything under the sun that is made by man. . . . " Hearings on H.R. 3760 before Subcommittee No. 3 of the House Committee on the Judiciary, 82d Cong., 1st Sess., 37 (1951).
7
The Plant Patent Act of 1930, 35 U.S.C. § 161, provides in relevant part:
"Whoever invents or discovers and asexually reproduces any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber propogated plant or a plant found in an uncultivated state, may obtain a patent therefor . . . ."
The Plant Variety Protection Act of 1970, provides in relevant part:
"The breeder of any novel variety of sexually reproduced plant (other than fungi, bacteria, or first generation hybrids) who has so reproduced the variety, or his successor in interest, shall be entitled to plant variety protection therefor . . . ." 84 Stat. 1547, 7 U.S.C. § 2402(a).
See generally, 3 A. Deller, Walker on Patents, ch. IX (2d ed. 1964); R. Allyn, The First Plant Patents (1934).
8
Writing three years after the passage of the 1930 Act, R. Cook, Editor of the Journal of Heredity, commented: "It is a little hard for plant men to understand why [Art. I, § 8] of the Constitution should not have been earlier construed to include the promotion of the art of plant breeding. The reason for this is probably to be found in the principle that natural products are not patentable." Florists Exchange and Horticultural Trade World, July 15, 1933, p. 9.
9
In 1873, the Patent Office granted Louis Pasteur a patent on "yeast, free from organic germs of disease, as an article of manufacture." And in 1967 and 1968, immediately prior to the passage of the Plant Variety Protection Act, that Office granted two patents which, as the petitioner concedes, state claims for living micro-organisms. See Reply Brief for Petitioner 3, and n. 2.
10
Even an abbreviated list of patented inventions underscores the point: telegraph (Morse, No. 1,647); telephone (Bell, No. 174,465); electric lamp (Edison, No. 223,898); airplane (the Wrights, No. 821,393); transistor (Bardeen & Brattain, No. 2,524,035); neutronic reactor (Fermi & Szilard, No. 2,708,656); laser (Schawlow & Townes, No. 2,929,922). See generally Revolutionary Ideas, Patents & Progress in America, United States Patent and Trademark Office (1976).
11
We are not to be understood as suggesting that the political branches have been laggard in the consideration of the problems related to genetic research and technology. They have already taken action. In 1976, for example, the National Institutes of Health released guidelines for NIH-sponsored genetic research which established conditions under which such research could be performed. 41 Fed.Reg. 27902. In 1978 those guidelines were revised and relaxed. 43 Fed.Reg. 60080, 60108, 60134. And Committees of the Congress have held extensive hearings on these matters. See, e. g., Hearings on Genetic Engineering before the Subcommittee on Health of the Senate Committee on Labor and Public Welfare, 94th Cong., 1st Sess. (1975); Hearings before the Subcommittee on Science, Technology, and Space of the Senate Committee on Commerce, Science, and Transportation, 95th Cong., 1st Sess. (1977); Hearings on H.R. 4759 et al. before the Subcommittee on Health and the Environment of the House Committee on Interstate and Foreign Commerce, 95th Cong., 1st Sess. (1977).
1
I read the Court to admit that the popular conception, even among advocates of agricultural patents, was that living organisms were unpatentable. See ante, at 311-312, and n. 8.
2
But even if I agreed with the Court that the 1930 and 1970 Acts were not dispositive, I would dissent. This case presents even more cogent reasons than Deepsouth Packing Co. not to extend the patent monopoly in the face of uncertainty. At the very least, these Acts are signs of legislative attention to the problems of patenting living organisms, but they give no affirmative indication of congressional intent that bacteria be patentable. The caveat of Parker v. Flook, 437 U.S. 584, 596, 90 S.Ct. 2522, 2529, 57 L.Ed.2d 451 (1978), an admonition to "proceed cautiously when we are asked to extend patent rights into areas wholly unforeseen by Congress," therefore becomes pertinent. I should think the necessity for caution is that much greater when we are asked to extend patent rights into areas Congress has foreseen and considered but has not resolved.
3
The Court refers to the logic employed by Congress in choosing not to perpetuate the "dichotomy" suggested by Secretary Hyde. Ante, at 313. But by this logic the bacteria at issue here are distinguishable from a "mineral . . . created wholly by nature" in exactly the same way as were the new varieties of plants. If a new Act was needed to provide patent protection for the plants, it was equally necessary for bacteria. Yet Congress provided for patents on plants but not on these bacteria. In short, Congress decided to make only a subset of animate "human-made inventions," ibid., patentable.
4
If the 1930 Act's only purpose were to solve the technical problem of description referred to by the Court, ante, at 312, most of the Act, and in particular its limitation to asexually reproduced plants, would have been totally unnecessary.
5
Secretary Hyde's letter was not the only explicit indication in the legislative history of these Acts that Congress was acting on the assumption that legislation was necessary to make living organisms patentable. The Senate Judiciary Committee Report on the 1970 Act states the Committee's understanding that patent protection extended no further than the explicit provisions of these Acts:
"Under the patent law, patent protection is limited to those varieties of plants which reproduce asexually, that is, by such methods as grafting or budding. No protection is available to those varieties of plants which reproduce sexually, that is, generally by seeds." S.Rep.No.91-1246, p. 3 (1970).
Similarly, Representative Poage, speaking for the 1970 Act, after noting the protection accorded asexually developed plants, stated that "for plants produced from seed, there has been no such protection." 116 Cong.Rec. 40295 (1970).
| 78
|
447 U.S. 323
100 S.Ct. 2214
65 L.Ed.2d 159
Darnell BROWN, Petitioner,v.State of LOUISIANA.
No. 79-5364.
Argued March 25, 1980.
Decided June 16, 1980.
Syllabus
While petitioner's appeal from his felony conviction—based on a nonunanimous six-person jury verdict—was pending in the Louisiana Supreme court, Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96, was decided, holding unconstitutional those provisions of the Louisiana Constitution and Code of Criminal Procedure that sanctioned conviction of a nonpetty offense by a nonunanimous jury of six. The Louisiana Supreme Court thereafter affirmed petitioner's conviction, holding that the rule of Burch v. Louisiana, supra, should not be applied retroactively to cases tried by juries empaneled prior to the date of that decision.
Held: The judgment is reversed, and the case is remanded. Pp. 327-337; 337.
La., 371 So.2d 746, reversed and remanded.
1
Mr. Justice BRENNAN, joined by Mr. Justice STEWART, Mr. Justice MARSHALL, and Mr. Justice BLACKMUN, concluded that the constitutional principle announced in Burch v. Louisiana, supra, that conviction of a nonpetty criminal offense in a state court by a nonunanimous six-person jury violates the accused's right to trial by jury guaranteed by the Sixth Amendment as applied to the States through the Fourteenth Amendment, should be given retroactive application. Pp. 327-337.
2
(a) The test for deciding whether a new constitutional doctrine should be applied retroactively contemplates the consideration of (i) the purpose to be served by the new doctrine; (ii) the extent of the reliance by law enforcement authorities on the old standards; and (iii) the impact on the administration of justice of a retroactive application of the new standards. Foremost among these factors is the first, and controlling significance will be given to factors (ii) and (iii) only when factor (i) does not clearly favor retroactivity or prospectivity. Pp. 327-329.
3
(b) Burch established that the concurrence of six jurors was constitutionally required to preserve the substance of the jury trial right and assure the reliability of the jury's verdict. The Burch rule's purpose to eliminate a practice that threatened the jury's ability properly to perform its function of determining the truth in serious criminal cases clearly requires retroactive application Pp. 330-334.
4
(c) Due regard for the State's good-faith reliance on the old standards and the impact of retroactivity on the administration of justice does not counsel a contrary result. Here, the element of justifiable reliance on pre-Burch standards is minimal, since unlike other cases that have been accorded prospective effect only, Burch did not overrule any prior decisions of this Court or invalidate a practice of heretofore unquestioned legitimacy. Similarly, retroactive application of the Burch rule here will not have a devastating impact on the administration of criminal law, since it appears that by 1979 only two States permitted conviction of nonpetty offenses by a nonunanimous six-member jury, and that one of them—Louisiana—did not institute its scheme until 1975. Moreover, the decision in this case will not affect the validity of all convictions obtained under Louisiana's unconstitutional jury practice during that 4-year period but only those in which it can be shown that the verdict was less than unanimous. Pp. 335-337.
5
Mr. Justice POWELL, joined by Mr. Justice STEVENS, being of the view that new constitutional rules should apply retroactively in cases still pending on direct review, such as the instant case, concurred in the judgment. P. 337.
6
John M. Lawrence, New Orleans, La., for petitioner.
7
Thomas Chester, New Orleans, La., for respondent, pro hac vice, by special leave of Court.
8
Mr. Justice BRENNAN announced the judgment of the Court and delivered an opinion, in which Mr. Justice STEWART, Mr. Justice MARSHALL, and Mr. Justice BLACKMUN joined.
9
Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979), held that conviction of a nonpetty criminal offense by a nonunanimous six-person jury violates the accused's right to trial by jury guaranteed by the Sixth and Fourteenth Amendments. The issue in this case is whether the constitutional principle announced in Burch is to be given retroactive application.
10
* On July 31, 1978, petitioner Darnell Brown was charged by bill of information in Orleans Parish with simple burglary, a felony punishable by confinement in the parish prison or state penitentiary for a maximum term of 12 years. La.Rev.Stat.Ann. § 14:62 (West Supp.1979). At the time, the Louisiana Constitution and Code of Criminal Procedure provided that such crimes should be tried by a jury of six persons, five of whom must concur to render a verdict.1 Before trial, petitioner filed a motion to quash pursuant to Art. 532(9) of the Louisiana Code of Criminal Procedure, arguing that his "due process rights under the Sixth and the Fourteenth Amendments to the United States Constitution as enunciated in Ballew v. Georgia, [435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978)], will be violated by a less than unanimous vote by a six person jury." App. 5. Petitioner therefore requested the trial court to order a jury of 12 or, in the alternative, to require a unanimous verdict of the jury of 6.
11
Petitioner's motion was denied, and on August 23 his trial commenced before a six-member jury. That same afternoon, after deliberating for approximately one hour, the jury returned a verdict of guilty. At petitioner's request, the court polled the jurors and ascertained that their vote was 5 to 1 to convict. Sentencing was set for August 30, at which time petitioner renewed his objection to the nonunanimous six-person verdict by a motion for new trial. The trial judge again denied the motion and sentenced petitioner to a term of 22 years' imprisonment at hard labor.2
12
Petitioner appealed his conviction to the Louisiana Supreme Court, assigning as principal error the trial judge's refusal to grant the motion to quash. On April 17, 1979, while petitioner's case was still pending on direct review in the Louisiana courts, Burch v. Louisiana, supra, was decided, holding unconstitutional those provisions of the Louisiana Constitution and Code of Criminal Procedure that sanctioned conviction of a nonpetty offense by a nonunanimous jury of six. Some five weeks later, on May 21, 1979, the Louisiana Supreme Court affirmed petitioner's conviction. Although it implicitly acknowledged that Burch requires unanimous verdicts by six-person juries in all future prosecutions of simple burglary,3 the court nonetheless concluded, without elaboration, that "the rule of Burch, supra, should not be applied retroactively to juries empaneled prior to the date of the Burch decision." La., 371 So.2d 746, 748 (1979) (emphasis in original). We granted certiorari. 440 U.S. 990, 100 S.Ct. 520, 62 L.Ed.2d 419 (1979). We reverse.
II
13
Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), was the first instance in which the Court declined to apply a new doctrine respecting one of the provisions of the Bill of Rights retroactively for the benefit of a previously convicted defendant. In the intervening 15 years, we have often considered the question of the retroactivity of decisions expounding new constitutional rules of criminal procedure, and have endeavored to elaborate appropriate standards for determining which rules are to be accorded retrospective and which only prospective effect. From the welter of case law that has developed in this area, several unequivocal principles emerge to guide our analysis in the present case.
14
It is by now uncontroverted that "the Constitution neither prohibits nor requires retrospective effect." Id., at 629, 85 S.Ct., at 1737. Thus, although before Linkletter new constitutional rules had been applied to cases that had become final before promulgation of the rule, see id., at 628, and n. 13, 85 S.Ct., at 1737, and n. 13, that decision firmly settled that "in appropriate cases the Court may in the interest of justice make the rule prospective . . . where the exigencies of the situation require such an application." Id., at 628, 85 S.Ct., at 1737; Johnson v. New Jersey, 384 U.S. 719, 726-727, 86 S.Ct. 1772, 1777, 16 L.Ed.2d 882 (1966).
15
Similarly, it is clear that resolution of the question of retroactivity does not automatically turn on the particular provision of the Constitution on which the new prescription is based. "Each constitutional rule of criminal procedure has its own distinct functions, its own background of precedent, and its own impact on the administration of justice, and the way in which these factors combine must inevitably vary with the dictate involved." Id., at 728, 86 S.Ct., at 1778. Accordingly, the test consistently employed by the Court to decide whether a new constitutional doctrine should be applied retroactively contemplates the consideration of three criteria: "(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards." Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967).
16
Moreover, our decisions establish that "[f]oremost among these factors is the purpose to be served by the new constitutional rule," Desist v. United States, 394 U.S. 244, 249, 89 S.Ct. 1030, 1033, 22 L.Ed.2d 248 (1969), and that we will give controlling significance to the measure of reliance and the impact on the administration of justice "only when the purpose of the rule in question [does] not clearly favor either retroactivity or prospectivity." Id., at 251, 89 S.Ct., at 1035; Michigan v. Payne, 412 U.S. 47, 55, 93 S.Ct. 1966, 1970, 36 L.Ed.2d 736 (1973); see also Hankerson v. North Carolina, 432 U.S. 233, 242-244, 97 S.Ct. 2339, 2345, 53 L.Ed.2d 306 (1977); Adams v. Illinois, 405 U.S. 278, 280, 92 S.Ct. 916, 918, 31 L.Ed.2d 202 (1972) (plurality opinion of BRENNAN, J.). "Where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect. Neither good-faith reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances." Williams v. United States, 401 U.S. 646, 653, 91 S.Ct. 1148, 1152, 28 L.Ed.2d 388 (1971) (plurality opinion of WHITE, J.). Accord, Hankerson v. North Carolina, supra, 432 U.S., at 243, 97 S.Ct., at 2345; Gosa v. Mayden, 413 U.S. 665, 679, 93 S.Ct. 2926, 2935, 37 L.Ed.2d 873 (1973) (plurality opinion of BLACKMUN, J.); Ivan V. v. City of New York, 407 U.S. 203, 204, 92 S.Ct. 1951, 1952, 32 L.Ed.2d 659 (1972).
17
Finally, we have recognized that the extent to which the purpose of a new constitutional rule requires its retroactive application "is necessarily a matter of degree." Johnson v. New Jersey, supra, 384 U.S., at 729, 86 S.Ct., at 1778. Constitutional protections are frequently fashioned to serve multiple ends; while a new standard may marginally implicate the reliability and integrity of the factfinding process, it may have been designed primarily to foster other, equally fundamental values in our system of jurisprudence.4 Not every rule that "tends incidentally" to avoid unfairness at trial must be accorded retroactive effect. Gosa v. Mayden, supra, 413 U.S., at 680, 93 S.Ct., at 2936 (plurality opinion of BLACKMUN, J.). So, too, additional safeguards may already exist that minimize the likelihood of past injustices.5 In short, "[t]he extent to which a condemned practice infects the integrity of the truth-determining process at trial is a 'question of probabilities.' " Stovall v. Denno, supra, 388 U.S., at 298, 87 S.Ct., at 1970 (quoting Johnson v. New Jersey, supra, 384 U.S., at 729, 86 S.Ct., at 1778). And only when an assessment of those probabilities indicates that the condemned practice casts doubt upon the reliability of the determinations of guilt in past criminal cases must the new procedural rule be applied retroactively.6
III
18
With these principles in mind, then, we turn to consideration of the issue presented by this case: whether the rule of Burch v. Louisiana must be given retroactive effect. We conclude that it must.
A.
19
The right to jury trial guaranteed by the Sixth and Fourteenth Amendments "is a fundamental right, essential for preventing miscarriages of justice and for assuring that fair trials are provided for all defendants." Duncan v. Louisiana, 391 U.S. 145, 158, 88 S.Ct. 1444, 1452, 20 L.Ed.2d 491 (1968). Trial by jury in serious criminal cases has long been regarded as an indispensable protection against the possibility of governmental oppression; the history of the jury's development demonstrates "a long tradition attaching great importance to the concept of relying on a body of one's peers to determine guilt or innocence as a safeguard against arbitrary law enforcement." Williams v. Florida, 399 U.S. 78, 87, 90 S.Ct. 1893, 1899, 26 L.Ed.2d 446 (1970). "Given this purpose, the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group's determination of guilt or innocence." Id., at 100, 90 S.Ct., at 1906.
20
Although we have held that the constitutional guarantee of trial by jury prescribes neither the precise number that can constitute a jury, Williams v. Florida, supra (six-person jury does not violate Sixth and Fourteenth Amendments), nor the exact proportion of the jury that must concur in the verdict. Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972) (10-to-2 vote in state trial does not violate the Constitution), we have also declared that there do exist size and unanimity limits that cannot be transgressed if the essence of the jury trial right is to be maintained. Thus Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978), held that a reduction in the size of a jury to below six persons in nonpetty criminal cases raises such substantial doubts as to the fairness of the proceeding and the jury's ability to represent the true sense of the community that it deprives the accused of his right to trial by jury. For "much the same reasons," we concluded in Burch that "conviction for a nonpetty offense by only five members of a six-person jury presents a similar threat to preservation of the substance of the jury trial guarantee" and hence violates the Sixth Amendment as applied to the States through the Fourteenth. 441 U.S., at 138, 99 S.Ct., at 1628. Though the line separating the permissible jury practice from the impermissible may not be the brightest, cf. Burch v. Louisiana, supra, at 137, 99 S.Ct., at 1627; Ballew v. Georgia, 435 U.S., at 231-232, 98 S.Ct., at 1034-1035 (opinion of BLACKMUN, J.); id., at 245-246, 98 S.Ct., at 1041-1042 (opinion of POWELL, J.), a line must be drawn somewhere, and the constitutional inviolability of that border must be scrupulously respected lest the purpose and functioning of the jury be seriously impaired.
21
We think it apparent that the rationale behind the constitutional rule announced in Burch mandates its retroactive application. Mr. Justice BLACKMUN's opinion in Ballew7 cataloged the several considerations that led the Court to conclude that the operation of the jury was inhibited to a constitutionally significant degree by reducing its size to five members. Prominent among these concerns was the recognition, supported by a number of empirical studies,8 that a decline in jury size leads to less accurate factfinding and a greater risk of convicting an innocent person. Id., at 232-235, 98 S.Ct., at 1035-1036.9 In addition, statistical and empirical data established that because of a concomitant decrease in the number of hung juries, a reduction in the size of the jury panel in criminal cases unfairly disadvantages one side—the defense. Id., at 236, 98 S.Ct., at 1037.10 Lastly, the opinion noted that the opportunity for meaningful and appropriate minority representation diminishes with the size of the jury. Id., at 236-237, 98 S.Ct., at 1037.11
22
Identical considerations underlay our decision in Burch. The threat which conviction by a 5-to-0 verdict poses to the fairness of the proceeding and the proper role of the jury is not significantly alleviated when conviction is instead obtained by the addition of a sixth, but dissenting, ballot. When the requirement of unanimity is abandoned, the vote of this "additional" juror is essentially superfluous. The prosecution's demonstrated inability to convince all the jurors of the accused's guilt certainly does nothing to allay our concern about the reliability and accuracy of the jury's verdict. And while the addition of another juror to the five-person panel may statistically increase the representativeness of that body, relinquishment of the unanimity requirement removes any guarantee that the minority voices will actually be heard.12
23
In sum, Burch established that the concurrence of six jurors was constitutionally required to preserve the substance of the jury trial right and assure the reliability of its verdict. It is difficult to envision a constitutional rule that more fundamentally implicates "the fairness of the trial—the very integrity of the fact-finding process." Linkletter v. Walker, 381 U.S., at 639, 85 S.Ct., at 1743. "The basic purpose of a trial is the determination of truth," Tehan v. United States ex rel. Shott, 382 U.S. 406, 416, 86 S.Ct. 459, 465, 15 L.Ed.2d 453 (1966), and it is the jury to whom we have entrusted the responsibility for making this determination in serious criminal cases. Any practice that threatens the jury's ability properly to perform that function poses a similar threat to the truth-determining process itself. The rule in Burch was directed toward elimination of just such a practice. Its purpose, therefore, clearly requires retroactive application.13
B
24
Due regard for countervailing considerations—the State's good-faith reliance on the old standards and the impact of retroactivity on the administration of justice—does not counsel a contrary result. The element of justifiable reliance on pre-Burch standards is minimal here. Unlike other cases that have been accorded prospective effect only, Burch did not overrule any prior decisions of this Court or invalidate a practice of heretofore unquestioned legitimacy. See, e. g., Desist v. United States, 394 U.S., at 250-251, 89 S.Ct., at 1034; Stovall v. Denno, 388 U.S., at 300, 87 S.Ct., at 1971; Tehan v. United States ex rel. Shott, supra, at 417, 86 S.Ct., at 465. "Therefore, to build a case for good-faith reliance the State must wring from our decision[s] the negative implication" that conviction by a nonunanimous six-person jury does not offend the Sixth Amendment's guarantee. See Adams v. Illinois, 405 U.S., at 293, 92 S.Ct., at 925 (Douglas, J., dissenting). Yet if any implication is to be drawn from our opinions prior to Burch, it could only be that such a procedure was of doubtful constitutionality. Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), for example, highlighted the fact that the six-member jury approved in that case was required to render a unanimous verdict. Id., at 100, and n. 46, 90 S.Ct., at 1905, and n. 46. And Burch's rule was distinctly foreshadowed by our decision in Ballew, which was handed down more than five months before petitioner's trial and which was specifically cited to the trial court as mandating unanimity in the verdict of a six-member jury. See supra, at 325-326. Cf. Berger v. California, 393 U.S. 314, 315, 89 S.Ct. 540, 541, 21 L.Ed.2d 508 (1969).
25
Similarly, we are confident that retroactive application of the Burch rule will not have a devastating impact on the administration of the criminal law. It appears that by 1979 only two States—Louisiana and Oklahoma—permitted conviction of nonpetty offenses by a nonunanimous six-member jury, see Burch v. Louisiana, 441 U.S., at 138, and n. 12, 99 S.Ct., at 1627, and n. 12, and Louisiana, at least, did not institute its scheme until 1975.14 Furthermore, today's decision will not affect the validity of all convictions obtained under Louisiana's unconstitutional jury practice during that 4-year period, but only those in which it can be shown that the vote was in fact less than unanimous. Thus the number of persons who would have to be retried or released does not approach the magnitude involved in some of our previous cases. See, e. g., Linkletter v. Walker, 381 U.S., at 637, 85 S.Ct., at 1742 (retroactive application would "tax the administration of justice to the utmost"); Tehan v. United States ex rel. Shott, 382 U.S., at 419, 86 S.Ct., at 467 ("an impact upon the administration of their criminal law so devastating as to need no elaboration"); DeStefano v. Woods, 392 U.S. 631, 634, 88 S.Ct. 2093, 2095, 20 L.Ed.2d 1308 (1968). What little disruption to the administration of justice results from retroactive application of Burch "must be considered part of the price we pay for former failures to provide fair procedures." Adams v. Illinois, supra, 405 U.S., at 297, 92 S.Ct., at 927 (Douglas, J., dissenting).
26
Accordingly, the judgment of the Supreme Court of Louisiana is reversed. The case is remanded for further proceedings not inconsistent with this opinion.
27
It is so ordered.
28
Mr. Justice POWELL, with whom Mr. Justice STEVENS joins, concurring in the judgment.
29
This Court announced its decision in Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979), while the petitioner's objection to the nonunanimous verdict was pending on direct appeal. Ante, at 326. Since I believe that new constitutional rules should apply retroactively "in cases still pending on direct review," Hankerson v. North Carolina, 432 U.S. 233, 248, 97 S.Ct. 2339, 2348, 53 L.Ed.2d 306 (1977) (Powell, J., concurring in judgment), I concur in the judgment reversing the petitioner's conviction.
30
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE and Mr. Justice WHITE join, dissenting.
31
I am in agreement with the Court on the content of the applicable standards for gauging the need for retroactivity, but I cannot concur in the Court's application of those standards in this case. The most important question here is whether it is probable that the Louisiana juries convicting on a vote of 5 to 1 convicted innocent persons. As the Court states, "only when an assessment of those probabilities indicates that the condemned practice casts doubt upon the reliability of the determinations of guilt in past criminal cases must the new procedural rule be applied retroactively." Ante, at 329. Neither our precedents nor common experience supports the Court's conclusion that the 5-to-1 vote is inherently unreliable. Just as I think the Court has overstated the probabilities of jury error, I think it has unfairly understated the State's reliance on our prior law and the burdens on the administration of the Louisiana justice system which will be associated with today's ruling.
A.
32
In Williams v. United States, 401 U.S. 646, 655, n. 7, 91 S.Ct. 1148, 1154, n. 7, 28 L.Ed.2d 388 (1971), we held that retroactivity is only appropriate where the former practice "presents substantial likelihood that the results of a number of those trials were factually incorrect." In Hankerson v. North Carolina, 432 U.S. 233, 243, 97 S.Ct. 2339, 2345, 53 L.Ed.2d 306 (1977), we similarly concluded that the "major purpose" of the new rule must be to correct a process which "substantially impairs its truth-finding function" raising "serious questions about the accuracy of guilty verdicts in past trials" before a rule should be retroactively imposed. Quite simply, when five-sixths of the deliberating jurors reach a finding of guilt, I do not think that there is a substantial probability that their decision was wrong.
33
The Court stresses the part of Mr. Justice BLACKMUN's opinion in Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978), suggesting that some studies had indicated that the reliability of the truth-finding process declines when the jury size is reduced. But I do not think that those citations can be used here to support the conclusion that the jury verdicts in issue were probably inaccurate. First, the opinion in Ballew relies heavily on the conclusions that a jury of only five is too small in number to ensure effective deliberation and to ensure that someone among the group will have memory abilities sufficient to aid the jury in those deliberations. Id., at 241, 98 S.Ct., at 1039. These concerns are satisfied when the jury is composed of six members, even if one of those members is in the dissent. In fact, as indicated by Johnson v. Louisiana, 406 U.S. 356, 361, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972), the presence of a dissenting juror strongly supports the inference that the jury has engaged in meaningful deliberation:
34
"We have no grounds for believing that majority jurors, aware of their responsibility and power over the liberty of the defendant, would simply refuse to listen to arguments presented to them in favor of acquittal, terminate discussion, and render a verdict. On the contrary it is far more likely that a juror presenting reasoned argument in favor of acquittal would either have his arguments answered or would carry enough other jurors with him to prevent conviction. A majority will cease discussion and outvote a minority only after reasoned discussion has ceased to have persuasive effect or to serve any other purpose—when a minority, that is, continues to insist upon acquittal without having persuasive reasons in support of its position. At that juncture there is no basis for denigrating the vote of so large a majority of the jury or for refusing to accept their decision as being, at least in their minds, beyond a reasonable doubt."
35
Thus the jury that convicted petitioner satisfied the requirements of jury deliberation that the Court in Ballew found so critical. Further, our cases have indicated quite clearly that the degree of persuasion evidenced by a 5-to-1 vote is sufficient to meet the requirement that guilt be proved beyond a reasonable doubt. In Johnson, supra, this Court held that a 9-to-3 verdict could satisfy due process, or in other words, satisfy the requirement that guilt be proved beyond a reasonable doubt. The degree of persuasion found acceptable there was far less impressive than that demonstrated by the jury which convicted petitioner. And yet we said that guilt was proved beyond a reasonable doubt in Johnson. I think here too, we must then conclude that guilt was proved beyond a reasonable doubt. Since that is true, there has been no constitutionally unacceptable risk of erroneous convictions and Burch need not be applied retroactively.
36
There is a further weakness in the Court's estimation of the probabilities. We simply have no way of knowing whether the person voting to acquit would have held firm with further pressure by his fellow jurors. The Court's speculation about what would have happened had unanimity been required of Louisiana's six-man juries amounts to just that: speculation. As long as this Court has approved "Allen charges" in federal cases over which it may exercise its supervisory authority, it is difficult to say that a holdout juror might not ultimately have been persuaded by the five-member majority.
37
The Court's ruling is also at odds with our decisions in Gosa v. Mayden, 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973), and DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968). In both of those cases, the Court declined to give retroactive effect to rulings that the right to jury trial had been totally denied under circumstances where our system of fairness required that it be afforded. Nevertheless, as we stated in DeStefano, the "values implemented by the right to jury trial would not measurably be served by requiring retrial of all persons convicted in the past by procedures not consistent with the Sixth Amendment right to jury trial." Id., at 634, 88 S.Ct., at 2095. The deprivations addressed in those cases were no less based on procedural reliability than was decision in Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979).
B
38
I also think that the Court has unduly minimized Louisiana's reliance on pre-Burch standards, and greatly underestimated the impact its ruling will have on the Louisiana judicial system. We have every reason to credit Louisiana with the presumption that its law was enacted in good faith. Prior to 1974, the Louisiana Constitution allowed for conviction by unanimous five-person juries for certain offenses. La.Const., Art. 7, § 41 (1921). In 1974 this constitutional provision was replaced with the nonunanimous six-person jury provision. The coordinator of legal research for the Constitutional Convention explained in 1974 that he believed this provision satisfied the Federal Constitution, reasoning:
39
"A six-man jury was upheld in Williams v. Florida, 399 U.S. 78 [90 S.Ct. 1893, 26 L.Ed.2d 446] (1970). If 75 per cent concurrence (9/12) was enough for a verdict as determined in Johnson v. Louisiana, 406 U.S. 356 [92 S.Ct. 1620, 32 L.Ed.2d 152] (1972), then requiring 83 per cent concurrence (5/6) ought to be within the permissible limits of Johnson." Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L.Rev. 1, 56, n. 300 (1974).
40
The record similarly suggests that the administrative impact is substantial. In the first four months of 1979 in just Orleans Parish alone, 39 defendants were tried by six-person juries. Brief for Respondent 24, n. 43. The various courts in Louisiana apparently do not necessarily keep a record of the jury vote. Id., at 28, n. 49. With this large number of six-person jury trials, the potential for disruption is substantial. And although the Court states that the decision will only have an impact where the defendant was "in fact" convicted by less than six, how is it to be established what "in fact" occurred without clear records? Ante, at 336. As stated in the opinion of Mr. Justice BLACKMUN in Gosa, supra :
41
"Wholesale invalidation of convictions rendered years ago could well mean that convicted persons would be freed without retrial, for witnesses . . . no longer may be readily available, memories may have added, records may be incomplete or missing, and physical evidence may have disappeared. Society must not be made to tolerate a result of that kind when there is no significant question concerning the accuracy of the process by which judgment was rendered or, in other words, when essential justice is not involved." 413 U.S., at 685, 93 S.Ct., at 2938-2939.
42
Since Burch and Ballew held little more than that "lines must be drawn somewhere" 441 U.S., at 137, 99 S.Ct., at 1627; 435 U.S., at 239, 98 S.Ct., at 1038, Louisiana should not be required to retry defendants found guilty by reliable factfinders.
1
Article 1, § 17, of the Louisiana Constitution of 1974 provides:
"A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict. A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, five of whom must concur to render a verdict. The accused shall have the right to full voir dire examination of prospective jurors and to challenge jurors peremptorily. The number of challenges shall be fixed by law. Except in capital cases, a defendant may knowingly and intelligently waive his right to a trial by jury." (Emphasis added.)
At the time of petitioner's trial, Art. 782(A), La.Code Crim.Proc.Ann. (West Supp.1978), provided:
"Cases in which punishment may be capital shall be tried by a jury of twelve jurors, all of whom must concur to render a verdict. Cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. Cases in which the punishment may be confinement at hard labor shall be tried by a jury composed of six jurors, five of whom must concur to render a verdict." (Emphasis added.)
Following our decision in Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979), this statutory provision was amended to require a unanimous verdict of six-person juries. 1979 La. Acts, No. 56, § 2.
2
Because petitioner had two prior convictions, he was charged and sentenced as a habitual offender under La.Rev.Stat.Ann. § 15:529.1 (West Supp.1979).
3
Cf. State v. Jackson, 370 So.2d 570, decided April 19, 1979, in which the Louisiana Supreme Court held that Burch applies to all trials commenced after that date.
4
See, e. g., Tehan v. United States ex rel. Shott, 382 U.S. 406, 415, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966); Johnson v. New Jersey, 384 U.S. 719, 729-730, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Gosa v. Mayden, 413 U.S. 665, 681-682, 93 S.Ct. 2926, 2936-2937, 37 L.Ed.2d 873 (1973) (plurality opinion of BLACKMUN, J.).
5
See, e. g., Johnson v. New Jersey, supra, 384 U.S., at 730, 86 S.Ct., at 1779; Stovall v. Denno, 388 U.S. 293, 299, 87 S.Ct. 1967, 1971, 18 L.Ed.2d 1199 (1967); Michigan v. Payne, 412 U.S. 47, 54, 93 S.Ct. 1966, 1970, 36 L.Ed.2d 736 (1973).
6
The distinguishing characteristic of those new constitutional doctrines that are to be given retroactive effect has been described in myriad formulations. See, e. g., Johnson v. New Jersey, supra, at 727-728, 86 S.Ct., at 1778 ("the rule affected 'the very integrity of the fact-finding process' and averted 'the clear danger of convicting the innocent' "); Stovall v. Denno, supra, 388 U.S., at 298, 87 S.Ct., at 1970 ("rules of criminal procedure fashioned to correct serious flaws in the fact-finding process at trial"); Roberts v. Russell, 392 U.S. 293, 295, 88 S.Ct. 1921, 1922, 20 L.Ed.2d 1100 (1968) ("the constitutional error presents a serious risk that the issue of guilt or innocence may not have been reliably determined"); Williams v. United States, 401 U.S. 646, 653, 91 S.Ct. 1148, 1152-1153, 28 L.Ed.2d 388 (1971) (opinion of WHITE, J.) ("the purpose of the new constitutional standard [is] to minimize or avoid arbitrary or unreliable results"); id., at 655, n. 7, 91 S.Ct., at 1154, n. 7 ("the use of such a 'condemned practice' in past criminal trials presents substantial likelihood that the results of a number of those trials were factually incorrect"); United States v. U. S. Coin & Currency, 401 U.S. 715, 723, 91 S.Ct. 1041, 1045, 28 L.Ed.2d 434, 1046 (1971) ("a procedural rule which . . . undermine[s] the basic accuracy of the factfinding process at trial"); id., at 724, 91 S.Ct., at 1046 ("the failure to employ such rules at trial meant there was a significant chance that innocent men had been wrongfully punished in the past"); Michigan v. Payne, supra, 412 U.S., at 61-62, 93 S.Ct., at 1974 (MARSHALL, J., dissenting) ("a rule that was central to the process of determining guilt or innocence, and whose application might well have led to the acquittal of the defendant"). While the precise verbalisms may vary, all encompass the notion that any rule which raises substantial doubts about the reliability of the jury's verdict should be applied retroactively.
7
Mr. Justice BLACKMUN announced the judgment of the Court and delivered an opinion in which Mr. Justice STEVENS joined. 435 U.S., at 224, 98 S.Ct., at 1031. Mr. Justice BRENNAN, Mr. Justice STEWART, and Mr. Justice MARSHALL joined Mr. Justice BLACKMUN's opinion insofar as it held that the Sixth and Fourteenth Amendments require juries in criminal trials to contain more than five persons, but were of the view that the statute upon which the criminal prosecution was predicated was overboard and therefore facially unconstitutional. Id., at 246, 98 S.Ct., at 1042. Mr. Justice WHITE filed a statement concurring in the judgment, id., at 245, 98 S.Ct., at 1041, and Mr. Justice POWELL, joined by THE CHIEF JUSTICE and Mr. Justice REHNQUIST, filed a separate opinion concurring in the judgment. Ibid.
8
Almost all of the empirical research cited in Mr. Justice BLACKMUN's opinion, see 435 U.S., at 231-232, n. 10, 98 S.Ct., at 1034-1035, n. 10, had been prompted by Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). In comparing 12- and 6-member juries, the Court there observed: "What few experiments have occurred—usually in the civil area—indicate that there is no discernible difference between the results reached by the two different-sized juries." Id., at 101, 90 S.Ct., at 1906.
9
The data also showed that jury verdicts become less consistent as panel size decreases, a result that not only reduces the likelihood that a given jury will reach a "correct" result that is, one that truly represents the consensus of the community but also produces a greater proportion of aberrant compromise verdicts. See 435 U.S., at 234-235, 98 S.Ct., at 1036.
10
There are three reasons why this is so. First, because as a practical matter the State will decline to reprosecute a given proportion of cases that have produced hung juries in a prior trial, a hung jury may effectively serve as an acquittal. Second, the effects of time on witnesses' memories and the benefits of exposure to the State's case will generally aid the defendant in any retrial. Lastly, because studies show that jurors are more prone to convict than acquit, see id., at 235, and n. 19, 98 S.Ct., at 1036, and n. 19 a reduction in the number of hung juries will lead to a comparatively greater increase in the number of convictions than acquittals, thus operating to the defendant's disadvantage.
11
On the basis of these considerations, Mr. Justice BLACKMUN's opinion concluded:
"The assembled data raise substantial doubt about the reliability and appropriate representation of panels smaller than six. Because of the fundamental importance of the jury trial to the American system of criminal justice, any further reduction that promotes inaccurate and possibly biased decisionmaking, that causes untoward differences in verdicts, and that prevents juries from truly representing their communities, attains constitutional significance." Id., at 239, 98 S.Ct., at 1038-1039.
12
A procedure that permits conviction by the nonunanimous verdict of a six-member jury significantly decreases the likelihood that the views of a minority faction will produce a hung jury, thus creating a further imbalance to the detriment of the defense. See n. 10, supra. If a minority viewpoint is shared by 10% of the community, a 12-member jury may be expected to include at least 1 minority representative 72% of the time, a 6-member jury would contain 1 such person 47% of the time, and a 5-member jury only 41% of the time. More important for our purposes, however, a six-member jury may be expected to include two or more minority voices in only 11% of the cases. As one acknowledged authority on jury research has explained:
"The important element to observe is that the abandonment of the unanimity rule is but another way of reducing the size of the jury. But it is reduction with a vengeance, for a majority verdict requirement is far more effective in nullifying the potency of minority viewpoints than is the outright reduction of a jury to a size equivalent to the majority that is allowed to agree on a verdict." Zeisel, . . . And Then There Were None: The Diminution of the Federal Jury, 38 U.Chi.L.Rev. 710, 722 (1971). See also M. Saks, Jury Verdicts 99 (1977).
13
Nonetheless, respondent contends that the question of the retroactive application of Burch is controlled by DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968), in which the Court refused to give retroactive effect to the extension in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), to state criminal defendants of the right to jury trial in serious cases. Respondent argues that if the complete absence of a jury does not impair the factfinding process so substantially as to require retroactivity, then surely the mere presence of a single dissenting juror ought not to compel retroactive application.
It bears repeating, however, that "the retroactivity or nonretroactivity of a rule is not automatically determined by the provision of the Constitution on which the dictate is based." Johnson v. New Jersey, 384 U.S., at 728, 86 S.Ct., at 1778. Thus our decision not to grant new trials, with juries to all those who had been convicted of serious criminal offenses in trials without juries does not necessarily mean that a constitutional rule directed toward ensuring the proper functioning of the jury in those cases in which it has been provided must also be given only prospective effect. Cf. Witherspoon v. Illinois, 391 U.S. 510, 523, n. 22, 88 S.Ct. 1770, 1777, n. 22, 20 L.Ed.2d 776 (1968) (newly announced standards for selecting juries in capital cases must be applied retroactively). Rather, "we must determine retroactivity 'in each case' by looking to the peculiar traits of the specific 'rule in question'." Johnson v. New Jersey, supra, 384 U.S., at 728, 86 S.Ct., at 1778.
Once this principle is realized, it should be clear that today's holding is in no way inconsistent with DeStefano. While the Court there acknowledged that the right to jury trial generally tends to prevent arbitrariness and repression, 392 U.S., at 633, 88 S.Ct., at 2095, it also recognized that the decision in Duncan did not rest on the premise " 'that every criminal trial—or any particular trial—held before a judge alone is unfair or that a defendant may never be as fairly treated by a judge as he would be by a jury.' " 392 U.S., at 633-634, 88 S.Ct., at 2095. See also Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975); Gosa v. Mayden, 413 U.S., at 680-681, 93 S.Ct., at 2936-2937. Because other safeguards existed to ensure the integrity of the factfinding process, and in light of both the State's
justifiable reliance on past opinions of this Court and the devastating impact on the administration of justice that retroactivity would entail, Duncan was applied prospectively only.
The instant case simply does not fit within DeStefano's mold. As we have discussed in the text, the failure to provide petitioner with the constitutional guarantees announced in Burch raises serious doubts about the fairness of his trial and the reliability of the factfinding process. And as we explain below, retroactive application of Burch should not produce a significant disruption in the State's administration of its criminal laws.
14
In Louisiana prior to 1968, cases in which the defendant could not be sentenced to confinement at hard labor were tried by the judge without a jury; cases in which punishment at hard labor was optional, but not mandatory, were tried by a unanimous jury of 5; all other felonies were tried by a jury of 12. Following our decision in Duncan v. Louisiana, supra, the Louisiana Legislature amended its criminal code to require jury trials for all nonpetty offenses. See generally Comment, Jury Trial in Louisiana Implications of Duncan, 29 La.L.Rev. 118 (1968). In 1974, the Louisiana Legislature, through revision of the State Constitution and Code of Criminal Procedure, again amended its jury trial provisions to allow for conviction by nonunanimous six-member juries in cases in which punishment may be imprisonment at hard labor. 1974 La. Acts, Ex.Sess., Nos. 23 and 25. See n. 1, supra. These alterations were effective January 1, 1975.
Oklahoma appears to have permitted nonunanimous six-member jury verdicts only in trials for misdemeanors and in proceedings for the violation of ordinances or regulations of cities and towns. See Okla.Const., Art. 2, § 19.
| 01
|
447 U.S. 410
100 S.Ct. 2260
65 L.Ed.2d 228
State of ILLINOIS, Petitioner,v.John M. VITALE.
No. 78-1845.
Argued Jan. 8, 1980.
Decided June 19, 1980.
Syllabus
As the result of an accident in which an automobile driven by respondent struck and killed two children, respondent was convicted for failing to reduce speed to avoid the accident in violation of an Illinois statute. Subsequently, based on the same accident, respondent was charged with involuntary manslaughter under another Illinois statute. Ultimately, after the Illinois trial and intermediate appellate courts had held that the manslaughter prosecution was barred on statutory grounds, the Illinois Supreme Court held that it was barred by the Double Jeopardy Clause of the Fifth Amendment, as applied to the States through the Due Process Clause of the Fourth Amendment, the court reasoning that because the lesser offense required no proof beyond that necessary for a conviction of the greater offense of involuntary manslaughter, the greater offense was the "same" as the lesser-included offense.
Held: The Double Jeopardy Clause does not necessarily prohibit Illinois from prosecuting respondent for involuntary manslaughter. Pp. 415-421.
(a) Whether the offense of failing to reduce speed to avoid an accident is the "same offense" for double jeopardy purposes as the manslaughter charges, depends on whether each statute in question requires proof of a fact which the other does not. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306. Pp. 415-416.
(b) Thus, if manslaughter by automobile does not always entail proof of a failure to reduce speed, then the two offenses are not the "same" under the Blockburger test. And the mere possibility that the State will seek to rely on all of the ingredients necessarily included in the traffic offense to establish an element of its manslaughter case would not be sufficient to bar the latter prosecution. Pp. 416-419.
(c) But, if as a matter of Illinois law, a careless failure to reduce speed is always a necessary element of manslaughter by automobile, then the two offenses are the "same" under Blockburger and respondent's trial on the latter charge would constitute double jeopardy. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187. In any event, if in the pending manslaughter prosecution Illinois relies on and proves a failure to reduce speed to avoid an accident as the reckless act necessary to prove manslaughter, respondent would have a substantial claim of double jeopardy. Pp. 419-421.
(d) Because the relationship under Illinois law between the crimes of involuntary manslaughter and a careless failure to reduce speed to avoid an accident is unclear, and because the reckless act or acts the State will rely on to prove manslaughter are still unknown, the Illinois Supreme Court's judgment is vacated and the case is remanded to that court for further proceedings. P. 421.
71 Ill.2d 229, 16 Ill.Dec. 456, 375 N.E.2d 87, vacated and remanded.
James S. Veldman, Chicago, Ill., for petitioner.
Lawrence G. Dirksen, Olympia Fields, Ill., for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
The question in this case is whether the Double Jeopardy Clause of the Fifth Amendment prohibits the State of Illinois (State) from prosecuting for involuntary manslaughter the driver of an automobile involved in a fatal accident, who previously has been convicted for failing to reduce speed to avoid the collision.
2
* On November 24, 1974, an automobile driven by respondent John Vitale, a juvenile, struck two small children. One of the children died almost immediately; the other died the following day. A police officer at the scene of the accident issued a traffic citation charging Vitale with failing to reduce speed to avoid an accident in violation of § 11-601(a) of the Illinois Vehicle Code. Ill.Rev.Stat., ch. 951/2, § 11-601(a) (1979). This statute provides in part that "[s]peed must be decreased as may be necessary to avoid colliding with any person or vehicle on or entering the highway in compliance with legal requirements and the duty of all persons to use due care."1
3
On December 23, 1974, Vitale appeared in the Circuit Court of Cook County, Ill., and entered a plea of not guilty to the charge of failing to reduce speed.2 After a trial without a jury, Vitale was convicted and sentenced to pay a fine of $15.3
4
On the following day, December 24, 1974, a petition for adjudication of wardship was filed in the juvenile division of the Circuit Court of Cook County, charging Vitale with two counts of involuntary manslaughter.4 The petition, which was signed by the police officer who issued the traffic citation, alleged that Vitale "without lawful justification while recklessly driving a motor vehicle caused the death of" the two children killed in the November 20, 1974, accident. App. 2-4.
5
Vitale's counsel filed a motion to dismiss on the grounds, among others, that the manslaughter prosecution was "violative of statutory and/or constitutional double jeopardy," id., at 7, because of Vitale's previous conviction for failing to reduce speed to avoid the accident. The juvenile court found it unnecessary to reach a constitutional question because it held that the manslaughter prosecution was barred by Illinois statutes requiring, with certain nonpertinent exceptions, that all offenses based on the same conduct be prosecuted in a single prosecution. Ill.Rev.Stat., ch. 38, §§ 3-3 and 3-4(b)(1) (1979).5 The juvenile court dismissed the petition for adjudication of wardship and the State appealed. The Appellate Court of Illinois, First District, In re Vitale, 44 Ill.App.3d 1030, 3 Ill.Dec. 603, 358 N.E.2d 1288 (1976), affirmed the holding that the manslaughter prosecution was barred by the state compulsory joinder statutes. Ill.Rev.Stat., ch. 38, §§ 3-3 and 3-4(b)(1) (1979).
6
The Supreme Court of Illinois, with two justices dissenting, affirmed on other grounds. In re Vitale, 71 Ill.2d 229, 16 Ill.Dec. 456, 375 N.E.2d 87 (1978). The court did not reach the state statutory question for it found "a more compelling reason why respondent cannot be prosecuted for the offense of involuntary manslaughter": the Double Jeopardy Clause of the Fifth Amendment, as applied to the States through the Due Process Clause of the Fourteenth Amendment. After analyzing the elements of each offense, the court held that because "the lesser offense, failing to reduce speed, requires no proof beyond that which is necessary for conviction of the greater, involuntary manslaughter, . . . for purposes of the double jeopardy clause, the greater offense is by definition the 'same' as the lesser offense included within it." Id., at 239, 16 Ill.Dec., at 460, 375 N.E.2d, at 91. Thus the court concluded that the manslaughter prosecution was barred by the Double Jeopardy Clause.
7
The dissenting justices argued that the manslaughter prosecution was not barred by the Double Jeopardy Clause because the homicide charge could be proved by showing one or more reckless acts other than the failure to reduce speed. Id., at 242, 251-253, 16 Ill.Dec., at 462, 465-466, 375 N.E.2d, at 93, 96-97 (Underwood, J., joined by Ryan, J., dissenting).
8
On November 27, 1978, we granted the State's petition for certiorari, vacated the judgment, and remanded the case to the Supreme Court of Illinois to consider whether its judgment was based upon federal or state constitutional grounds. 439 U.S. 974, 99 S.Ct. 554, 58 L.Ed.2d 645 (1978). After the Supreme Court of Illinois, on remand, certified that its judgment was based upon federal constitutional grounds, we again granted a writ of certiorari. 444 U.S. 823, 100 S.Ct. 42, 62 L.Ed.2d 29 (1979).
II
9
The Double Jeopardy Clause of the Fifth Amendment provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." This constitutional guarantee is applicable to the States through the Due Process Clause of the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969), and it applies not only in traditional criminal proceedings but also in the kind of juvenile proceedings Vitale faced. Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975).
10
The constitutional prohibition of double jeopardy has been held to consist of three separate guarantees: (1) "It protects against a second prosecution for the same offense after acquittal. [(2) I]t protects against a second prosecution for the same offense after conviction. [(3)] And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted). Because Vitale asserts that his former conviction for failing to reduce speed bars his manslaughter prosecution, we are concerned with only the second of these three guarantees in the instant case. The sole question before us is whether the offense of failing to reduce speed to avoid an accident is the "same offense" for double jeopardy purposes as the manslaughter charges brought against Vitale.
11
In Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), we stated the principal test for determining whether two offenses are the same for purposes of barring successive prosecutions. Quoting from Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), which in turn relied on Gavieres v. United States, 220 U.S. 338, 342-343, 31 S.Ct. 421, 422, 55 L.Ed. 489 (1911), we held that
12
" '[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.' " 432 U.S., at 166, 97 S.Ct., at 2225.
13
We recognized that the Blockburger test focuses on the proof necessary to prove the statutory elements of each offense, rather than on the actual evidence to be presented at trial. Thus we stated that if " 'each statute requires proof of an additional fact which the other does not,' Morey v. Commonwealth, 108 Mass. 433, 434 (1871)," the offenses are not the same under the Blockburger test. 432 U.S., at 166, 97 S.Ct., at 2226 (emphasis supplied); Iannelli v. United States, 420 U.S. 770, 785, n. 17, 95 S.Ct. 1284, 1294, n. 17, 43 L.Ed.2d 616 (1975).6
III
14
We accept, as we must, the Supreme Court of Illinois' identification of the elements of the offenses involved here. Under Illinois law, involuntary manslaughter with a motor vehicle involves a homicide by the "reckless operation of a motor vehicle in a manner likely to cause death or great bodily harm." In re Vitale, 71 Ill.2d, at 239, 16 Ill.Dec., at 460, 375 N.E.2d, at 91. The charge of failing to reduce speed on which respondent was convicted requires proof "that the defendant drove carelessly and failed to reduce speed to avoid colliding with a person." Id., at 238, 16 Ill.Dec., at 460, 375 N.E.2d, at 91. The Illinois court, after specifying these elements, then stated that "the lesser offense, failing to reduce speed, requires no proof beyond that which is necessary for conviction of the greater, involuntary manslaughter" and concluded, as a matter of federal law, that "the greater offense is by definition the 'same' as the lesser offense included within it." Id., at 239, 16 Ill.Dec., at 460, 375 N.E.2d, at 91.
15
The Illinois court relied upon our holding in Brown v. Ohio, supra, that a conviction for a lesser-included offense precludes later prosecution for the greater offense. There, Brown was first convicted of joyriding in violation of an Ohio statute under which it was a crime to "take, operate, or keep any motor vehicle without the consent of its owner." He was then convicted under another statute of stealing the same motor vehicle. The Ohio courts had held that every element of the joyriding "is also an element of the crime of auto theft," and that to prove auto theft one need prove in addition to joyriding only the intent permanently to deprive the owner of possession. Holding that the second prosecution was barred, by the Double Jeopardy Clause and the Fourteenth Amendment, we observed that "the prosecutor who has established joyriding need only prove the requisite intent in order to establish auto theft." Id., at 167, 97 S.Ct., at 2226. But we also noted that "the prosecutor who has established auto theft necessarily has established joyriding as well." Id., at 168, 97 S.Ct., at 2226.
16
Both observations were essential to the Brown holding. Had the State been able to prove auto theft, without also proving that the defendant took, operated, or kept the auto without the consent of the owner—if proof of the auto theft had not necessarily involved proof of joyriding—the successive prosecutions would not have been for the "same offense" within the meaning of the Double Jeopardy Clause.
17
Vitale does not dispute this proposition, but insists that the Illinois court fully satisfied Brown when it held that the lesser offense of failure to reduce speed "requires no proof beyond that which is necessary for a conviction of the greater, involuntary manslaughter." It is clear enough from the opinion below that manslaughter by motor vehicle could be proved against Vitale by showing a death caused by his recklessly failing to slow his vehicle to avoid a collision with the victim. Proving manslaughter in this way would also prove careless failure to slow; nothing more would be needed to prove the latter offense, an offense for which Vitale has already been convicted.
18
The State, however, does not concede that its manslaughter charge will or must rest on proof of a reckless failure to slow; it insists that manslaughter by automobile need not involve any element of failing to reduce speed. The petition for wardship charging manslaughter alleged only that Vitale "without lawful justification, while recklessly driving a motor vehicle, caused [two] death[s]" in violation of the manslaughter statute. Further, the dissenting justices relied upon the absence of any showing that the manslaughter charge on which respondent had not been tried, would rest upon his reckless failure to reduce speed. Nor could it be known, in their view, what particular reckless acts might be relied upon to prove the homicide charge.7 The State agrees, and submits that because it is not necessary to prove a failure to slow to establish manslaughter, the rule of Brown v. Ohio does not bar its homicide case against Vitale.
19
The Illinois Supreme Court did not expressly address the contentions that manslaughter by automobile could be proved without also proving a careless failure to reduce speed, and we are reluctant to accept its rather cryptic remarks about the relationship between the two offenses involved here as an authoritative holding that under Illinois law proof of manslaughter by automobile would always involve a careless failure to reduce speed to avoid a collision.
20
Of course, any collision between two automobiles or between an automobile and a person involves a moving automobile and in that sense a "failure" to slow sufficiently to avoid the accident. But such a "failure" may not be reckless or even careless, if, when the danger arose, slowing as much as reasonably possible would not alone have avoided the accident. Yet, reckless driving causing death might still be proved if, for example, a driver who had not been paying attention could have avoided the accident at the last second, had he been paying attention, by simply swerving his car. The point is that if manslaughter by automobile does not always entail proof of a failure to slow, then the two offenses are not the "same" under the Blockburger test. The mere possibility that the State will seek to rely on all of the ingredients necessarily included in the traffic offense to establish an element of its manslaughter case would not be sufficient to bar the latter prosecution.
IV
21
If, as a matter of Illinois law, a careless failure to slow is always a necessary element of manslaughter by automobile, then the two offenses are the "same" under Blockburger and Vitale's trial on the latter charge would constitute double jeopardy under Brown v. Ohio.8 In any event, it may be that to sustain its manslaughter case the State may find it necessary to prove a failure to slow or to rely on conduct necessarily involving such failure; it may concede as much prior to trial. In that case, because Vitale has already been convicted for conduct that is a necessary element of the more serious crime for which he has been charged, his claim of double jeopardy would be substantial under Brown and our later decision in Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977).
22
In Harris, we held, without dissent, that a defendant's conviction for felony murder based on a killing in the course of an armed robbery barred a subsequent prosecution against the same defendant for the robbery. The Oklahoma felony-murder statute on its face did not require proof of a robbery to establish felony murder; other felonies could underlie a felony-murder prosecution.9 But for the purposes of the Double Jeopardy Clause, we did not consider the crime generally described as felony murder as a separate offense distinct from its various elements. Rather, we treated a killing in the course of a robbery as itself a separate statutory offense, and the robbery as a species of lesser-included offense. The State conceded that the robbery for which petitioner had been indicted was in fact the underlying felony, all elements of which had been proved in the murder prosecution. We held the subsequent robbery prosecution barred under the Double Jeopardy Clause, since under In re Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889), a person who has been convicted of a crime having several elements included in it may not subsequently be tried for a lesser-included offense—an offense consisting solely of one or more of the elements of the crime for which he has already been convicted. Under Brown, the reverse is also true; a conviction on a lesser-included offense bars subsequent trial on the greater offense.
23
By analogy, if in the pending manslaughter prosecution Illinois relies on and proves a failure to slow to avoid an accident as the reckless act necessary to prove manslaughter, Vitale would have a substantial claim of double jeopardy under the Fifth and Fourteenth Amendments of the United States Constitution.
V
24
Because of our doubts about the relationship under Illinois law between the crimes of manslaughter and a careless failure to reduce speed to avoid an accident, and because the reckless act or acts the State will rely on to prove manslaughter are still unknown, we vacate the judgment of the Illinois Supreme Court and remand the case to that court for further proceedings not inconsistent with this opinion.10
25
So ordered.
26
Mr. Justice STEVENS, with whom Mr. Justice BRENNAN, Mr. Justice STEWART, and Mr. Justice MARSHALL, join, dissenting.
27
The controlling issue in this case is whether respondent's failure to reduce speed to avoid a collision, in violation of § 11-601(a) of the Illinois Motor Vehicle Code,1 was a lesser offense included within the greater offense of killing a person by the reckless "driving of a motor vehicle," in violation of § 9-3(b) of the Illinois Criminal Code.2 The Illinois Supreme Court held that it was and that, because respondent had already been convicted on the lesser charge, the State was barred by the Double Jeopardy Clause of the Fifth Amendment, as applied to the State through the Fourteenth Amendment, from prosecuting him on the greater charge.
28
There are two separate reasons, each of which is sufficient in itself, for affirming the judgment of the Illinois Supreme Court. First, after applying the test set forth in Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187, the Illinois Supreme Court made a finding that failing to reduce speed to avoid a collision is a lesser-included offense of reckless homicide as a matter of state law. This Court clearly has a duty to respect that finding. Second, even if the dissenting members of the Illinois Supreme Court were correct in their view that, as a matter of state law, the traffic offense is not necessarily a lesser-included offense in every reckless homicide prosecution, the Double Jeopardy Clause bars the homicide prosecution under the particular facts of this case. For, even if the State intended to rely on evidence other than respondent's failure to reduce speed to establish the element of reckless driving necessary for a homicide conviction, the prosecutor's failure to apprise the respondent and the court of such a theory at some point in the lengthy proceedings on the double jeopardy issue should bar the second trial in this case.
29
* Relying on Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306, the Court holds that the question the Illinois Supreme Court should have addressed in this case was whether proof of reckless homicide by vehicle will always, in each and every case, establish the defendant's guilt of the traffic offense as well. If not, the Court states that the traffic offense is not necessarily the "same offense" for double jeopardy purposes and therefore the second prosecution may not be barred by the Double Jeopardy Clause.3 Ante, at 419. The Court then goes on to discuss the position of the dissenting justices in the Illinois Supreme Court that it is theoretically possible for an Illinois prosecutor to prove a charge of reckless homicide by vehicle without proving a failure to reduce speed in order to avoid a collision. Because it finds the majority's response to this argument "cryptic," the Court refuses to accept the Illinois court's clear determination that the traffic offense is a lesser included offense of reckless homicide; instead, it reverses and remands for a new determination as to whether "under Illinois law proof of manslaughter by automobile would always involve a careless failure to reduce speed to avoid a collision."4
30
I cannot agree that this is an appropriate disposition. As the Court itself recognizes, it is not the province of this or any other federal court to tell the State of Illinois what is or is not a lesser included offense under state law.5 To the extent that this Court has any role at all, it is to ensure that the States apply the proper analytic framework insofar as they rely on the Double Jeopardy Clause of the Federal Constitution. Unlike the Court, I have no doubt that in this case the Illinois Supreme Court did apply the proper test.
31
As the dissenting justices in the Illinois Supreme Court pointed out at some length, the Illinois courts are hardly unfamiliar with the Blockburger test, having consistently applied it for many years in determining whether two offenses are the same for purposes of either the Double Jeopardy Clause or the State's own compulsory joinder statute. In re Vitale, 71 Ill.2d 229, 244-245, 16 Ill.Dec. 456, 462-463, 375 N.E.2d 87, 93-94 (1978). In this case the majority of the Illinois court did not purport to deviate from that test. On the contrary, it relied heavily on this Court's opinion in Brown v. Ohio, supra, which in turn relied upon Blockburger.
32
Thus, after examining the statutory definitions of the two crimes at issue in this case, without reference to the particular facts of this case, the Illinois Supreme Court concluded:
33
"As is usually the situation between greater and lesser included offenses, the lesser offense, failing to reduce speed, requires no proof beyond that which is necessary for conviction of the greater, involuntary manslaughter. Accordingly, for purposes of the double jeopardy clause, the greater offense is by definition the 'same' as the lesser offense included within it." 71 Ill.2d, at 239, 16 Ill.Dec., at 460, 375 N.E.2d, at 91.
34
In so holding, the court made the same finding as this Court did in Brown v. Ohio :
35
"Applying the Blockburger test, we agree with the Ohio Court of Appeals that joyriding and auto theft, as defined by that court, constitute 'the same statutory offense' within the meaning of the Double Jeopardy Clause. App. 23. For it is clearly not the case that 'each [statute] requires proof of a fact which the other does not.' 284 U.S., at 304 [52 S.Ct., at 182]. As is invariably true of a greater and lesser included offense, the lesser offense—joyriding requires no proof beyond that which is required for conviction of the greater—auto theft. The greater offense is therefore by definition the 'same' for purposes of double jeopardy as any lesser offense included in it." 432 U.S., at 168, 97 S.Ct., at 2226.
36
Having made the finding required by Brown v. Ohio, based on its interpretation of its own law, the Illinois Supreme Court should not now be required to go through the process all over again simply to assure this Court that it really meant what it plainly said.
II
37
In Part IV of its opinion the Court states that, even if the Illinois Supreme Court should hold on remand that failure to reduce speed is not always a lesser-included offense as a matter of state law, respondent will still have a "substantial" double jeopardy claim if the State finds it necessary to rely on his failure to reduce speed in order to sustain its manslaughter case. In my opinion such a claim would not merely be "substantial"; it would be dispositive.
38
In Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054, we held that a conviction on a felony-murder charge barred a subsequent prosecution for robbery, where the robbery had been used to establish the requisite intent on the murder charge. Cf. Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715. Since it was theoretically possible that a different felony could have supported the murder charge, such a result may not have been required by a literal application of the Blockburger test, see Whalen v. United States, supra, at 708-711, 100 S.Ct., at 1446-1448 (REHNQUIST, J., dissenting). However, the entire Court agreed that it was required by the Double Jeopardy Clause. In this case, it is equally clear that the State could not use respondent's failure to reduce speed to avoid a collision as the reckless act necessary to establish reckless homicide by vehicle, even if theoretically his recklessness could be proved in some other way.
39
Throughout the five years that this case has been in litigation, the State has apparently not seen fit to reveal the basis of its homicide prosecution. The Court does not view this omission as an important one. On the contrary, its opinion implies that the State may proceed to trial before a determination is made on respondent's double jeopardy claim. But surely such a procedure is inconsistent with the Double Jeopardy Clause, which was specifically designed to protect the citizen from multiple trials. The vital interest in avoiding an unlawful second trial led the Court in Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651, to allow an appeal in advance of trial in order to assure the defendant that the substance of his constitutional right to be protected against double jeopardy would not be lost before his plea could be vindicated. In that case the Court emphasized that "the Double Jeopardy Clause protects an individual against more than being subjected to double punishments. It is a guarantee against being twice put to trial for the same offense." Id., at 660-661, 97 S.Ct., at 2041 (emphasis in original). Continuing, the Court stated:
40
"Because of this focus on the 'risk' of conviction, the guarantee against double jeopardy assures an individual that, among other things, he will not be forced, with certain exceptions, to endure the personal strain, public embarrassment, and expense of a criminal trial more than once for the same offense. It thus protects interests wholly unrelated to the propriety of any subsequent conviction. Mr. Justice Black aptly described the purpose of the Clause:
41
" 'The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety, and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.' Green [v. United States, 355 U.S. 184,] at 187-188 [78 S.Ct. 221, 223, 2 L.Ed.2d 199].
42
". . . [I]f a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs." Id., at 661-662, 97 S.Ct., at 2041. (Emphasis in original.)
43
If a defendant is entitled to have an appellate court rule on his double jeopardy claim in advance of trial, he is surely entitled to a definitive ruling by the trial court in advance of trial. Since the State has not provided the respondent with notice of any basis for the prosecution that does not depend upon proving, for the second time, a careless failure to reduce speed, I would not require this respondent to stand trial again.
44
I respectfully dissent.
1
Section 11-601(a) of the Illinois Vehicle Code, Ill.Rev.Stat., ch. 951/2, § 11-601(a) (1979), provides:
"No vehicle may be driven upon any highway of this State at a speed which is greater than is reasonable and proper with regard to traffic conditions and the use of the highway, or endangers the safety of any person or property. The fact that the speed of a vehicle does not exceed the applicable maximum speed limit does not relieve the driver from the duty to decrease speed when approaching and crossing an intersection, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, or when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions. Speed must be decreased as may be necessary to avoid colliding with any person or vehicle on or entering the highway in compliance with legal requirements and the duty of all persons to use due care."
2
With respect to the traffic offense, the record contains a copy of the complaint, which charged that respondent on "Wednesday, November 20, 1974, 12:29 p. m., did then and there operate a certain motor vehicle upon a public highway of this State, to wit 170th and Ingleside in Thornton, situated in Cook County, Illinois, and did then and there violate section 11-601(a) of the Illinois Vehicle Code by failure to reduce speed to avoid an accident." (Record 66-67.) Notations on the back of the complaint indicate that Vitale pleaded not guilty, waived a jury trial, was found guilty, and fined.
3
Failing to reduce speed to avoid an accident is punishable by no more than 30 days in jail or by a fine of no more than $500. Ill.Rev.Stat., ch. 951/2, § 16-104(a) (1975), and ch. 38, §§ 1005-9-1 and 1005-8-3 (1979).
4
At the time Vitale was prosecuted, § 9-3 of the Illinois Criminal Code, Ill.Rev.Stat., ch. 38, § 9-3 (1973), provided:
"(a) A person who kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly. (b) If the acts which cause the death consist of the driving of a motor vehicle, the person may be prosecuted for reckless homicide or if he is prosecuted for involuntary manslaughter, he may be found guilty of the included offense of reckless homicide."
5
Section 3-3 of the Illinois Criminal Code, Ill.Rev.Stat., ch. 38, § 3-3 (1979), provides:
"(a) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. (b) If the several offenses are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution, except as provided in Subsection (c), if they are based on the same act. (c) When 2 or more offenses are charged as required by Subsection (b), the court in the interest of justice may order that one or more of such charges be tried separately."
Section 3-4(b) of the Illinois Criminal Code, Ill.Rev.Stat., ch. 38, § 3-4(b) (1979), provides in pertinent part:
"A prosecution is barred if the defendant was formerly prosecuted for a different offense, . . . if such former prosecution: (1) Resulted in either a conviction or an acquittal, and the subsequent prosecution . . . was for an offense with which the defendant should have been charged on the former prosecution, as provided in Section 3-3 of this Code (unless the court ordered a separate trial of such charge). . . . "
The juvenile court held that because the prosecution knew at the time the traffic offense was prosecuted that the automobile accident had resulted in the deaths that were the basis of the manslaughter charges, § 3-3 required that the traffic offense and the manslaughter charges be prosecuted in a single prosecution. The court therefore concluded that the manslaughter prosecution was barred by § 3-4(b)(1).
6
In Iannelli v. United States, 420 U.S., at 785, n. 17, 95 S.Ct., at 1294, n. 17, we stated: "[T]he Court's application of the test focuses on the statutory elements of the offense. If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes."
7
"The petition for wardship may have been based on Vitale's acts in permitting his attention to be diverted while driving at a high rate of speed, failing to appropriately maintain the vehicle's braking system, failing to note the seven school zone and speed warning signs, initially raising the speed of his auto to a dangerous level, or by disobeying the commands of the crossing guard. While we do not now know which of that series of acts the State intended to rely on at trial, one certainly cannot now say that it would rely solely upon Vitale's failure to reduce speed to the exclusion of his other misconduct." In re Vitale, 71 Ill.2d 229, 251, 16 Ill.Dec. 456, 466, 375 N.E.2d 87, 97 (1978) (Underwood, J., dissenting).
The police report concerning Vitale's accident noted that the brakes on the automobile were defective and that there had been a school crossing guard and a stop sign at the intersection where the accident occurred. (Record 29, 30.)
8
We recognized in Brown v. Ohio, 432 U.S., at 169, n. 7, 97 S.Ct., at 2227, n. 7 that "[a]n exception may exist where the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence." This exception is not applicable here because the trial court found that the prosecution was aware that Vitale's accident had resulted in two deaths at the time he was prosecuted for failing to reduce speed.
9
The Oklahoma felony-murder statute under which Harris was convicted, Okla.Stat., Tit. 21, § 701(3) (1971), provided that homicide is murder "[w]hen perpetrated without any design to effect death by a person engaged in the commission of any felony."
10
We note also that the Illinois Supreme Court did not reach the question whether the lower Illinois courts were correct in dismissing the manslaughter case under the State's compulsory joinder statute.
1
Illinois Rev.Stat., ch. 951/2, § 11-601(a) (1979), provides:
"No vehicle may be driven upon any highway of this State at a speed which is greater than is reasonable and proper with regard to traffic conditions and the use of the highway, or endangers the safety of any person or property. The fact that the speed of a vehicle does not exceed the applicable maximum speed limit does not relieve the driver from the duty to decrease speed when approaching and crossing an intersection, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, or when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions. Speed must be decreased as may be necessary to avoid colliding with any person or vehicle on or entering the highway in compliance with legal requirements and the duty of all persons to use due care." (Emphasis supplied.)
2
"If the acts which cause the death consist of the driving of a motor vehicle, the person may be prosecuted for reckless homicide or if he is prosecuted for involuntary manslaughter, he may be found guilty of the included offense of reckless homicide." Ill.Rev.Stat., ch. 38, § 9-3(b) (1973).
3
See the discussion of Part IV of the Court's opinion, infra, at 426.
4
"The Illinois Supreme Court did not expressly address the contentions that manslaughter by automobile could be proved without also proving a careless failure to reduce speed and we are reluctant to accept its rather cryptic remarks about the relationship between the two offenses involved here as an authoritative holding that under Illinois law proof of manslaughter by automobile would always involve a careless failure to reduce speed to avoid a collision." Ante, at 419.
5
Despite its apparent agreement with the dissenters' reading of the Illinois statutes, see ibid., the Court does not hold that the Illinois Supreme Court is foreclosed from concluding on remand that failure to reduce speed is a lesser-included offense of reckless homicide by vehicle. On the contrary, the Court states:
"If, as a matter of Illinois law, a careless failure to slow is always a necessary element of manslaughter by automobile, then the two offenses are the 'same' under Blockburger and Vitale's trial on the latter charge would constitute double jeopardy under Brown v. Ohio." Ante, at 419-420.
See also Brown v. Ohio, 432 U.S. 161, 167, 97 S.Ct. 2221, 2226, 53 L.Ed.2d 187, where the Court reiterated that state courts " 'have the final authority to interpret . . . that State's legislation.' Garner v. Louisiana, 368 U.S. 157, 169 [82 S.Ct. 248, 254, 7 L.Ed.2d 207] (1961)," and thus accepted as "authoritative" the Ohio courts' definition of the elements of the two offenses.
| 01
|
447 U.S. 429
100 S.Ct. 2271
65 L.Ed.2d 244
REEVES, INC., Petitioner,v.William STAKE et al.
No. 79-677.
Argued April 16, 1980.
Decided June 19, 1980.
Syllabus
For more than 50 years, South Dakota has operated a cement plant that produced cement for both state residents and out-of-state buyers. In 1978, because of a cement shortage, the State Cement Commission announced a policy to confine the sale of cement by the state plant to residents of the State. This policy forced petitioner ready-mix concrete distributor, one of the out-of-state buyers, to cut its production severely. Petitioner then brought suit in Federal District Court, challenging the policy. The court granted injunctive relief on the ground that the policy violated the Commerce Clause. The Court of Appeals reversed on the ground that the State had simply acted in a proprietary capacity.
Held : South Dakota's resident-preference program for the sale of cement does not violate the Commerce Clause. Pp. 434-447.
(a) "Nothing in the purposes animating the Commerce Clause prohibits a State, in the absence of congressional action, from participating in the market and exercising the right to favor its own citizens over others." Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 810, 96 S.Ct. 2488, 2498, 49 L.Ed.2d 220. Pp. 434-436.
(b) The Commerce Clause responds principally to state taxes and regulatory measures impeding free private trade in the national marketplace, and there is no indication of a constitutional plan to limit the ability of the States themselves to operate freely in the free market. Restraint in this area is also counseled by considerations of state sovereignty, each State's role as guardian and trustee for its people, and the recognized right of a trader to exercise discretion as to the parties with whom he will deal. Moreover, state proprietary activities often are burdened with the same restrictions as private market participants. And, as this case illustrates, the competing considerations in cases involving state proprietary action often will be subtle, complex, politically charged, and difficult to assess under traditional Commerce Clause analysis. Given these factors, the adjustment of interests in this context is, as a rule, better suited for Congress than this Court. Pp. 436-439.
(c) The arguments for invalidating South Dakota's resident-preference program—that the State, having long exploited the interstate market for cement, should not be permitted to withdraw from it when a shortage arises; that the program responds solely to the nongovernmental objective of protectionism; that hoarding may have undesirable consequences; that the program places South Dakota suppliers of ready-mix concrete at a competitive advantage in the out-of-state market; and that if South Dakota had not acted, free market forces would have generated an appropriate level of supply at free market prices for all buyers in the region—are weak at best. Whatever residual force inheres in them is more than offset by countervailing considerations of policy and fairness. To invalidate the program would discourage similar state projects and rob South Dakota of the intended benefit of its foresight, risk, and industry. Pp. 440-447.
603 F.2d 736, 8 Cir., affirmed.
Dennis M. Kirven, Buffalo, Wyo., for petitioner.
William J. Janklow, Pierre, S. D., for respondents.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
The issue in this case is whether, consistent with the Commerce Clause, U. S. Const., Art. I, § 8, cl. 3, the State of South Dakota, in a time of shortage, may confine the sale of the cement it produces solely to its residents.
2
* In 1919, South Dakota undertook plans to build a cement plant. The project, a product of the State's then prevailing Progressive political movement, was initiated in response to recent regional cement shortages that "interfered with and delayed both public and private enterprises," and that were "threatening the people of this state." Eakin v. South Dakota State Cement Comm'n, 44 S.D. 268, 272, 183 N.W. 651, 652 (1921).1 In 1920, the South Dakota Cement Commission anticipated "[t]hat there would be a ready market for the entire output of the plant within the state." Report of State Cement Commission 9 (1920). The plant, however, located at Rapid City, soon produced more cement than South Dakotans could use. Over the years, buyers in no less than nine nearby States purchased cement from the State's plant. App. 26. Between 1970 and 1977, some 40% of the plant's output went outside the State.
3
The plant's list of out-of-state cement buyers included petitioner Reeves, Inc. Reeves is a ready-mix concrete2 distributor organized under Wyoming law and with facilities in Buffalo, Gillette, and Sheridan, Wyo. Id., at 15. From the beginning of its operations in 1958, and until 1978, Reeves purchased about 95% of its cement from the South Dakota plant. Id., at 15 and 22. In 1977, its purchases were $1,172,000. Id., at 17. In turn, Reeves has supplied three northwestern Wyoming counties with more than half their ready-mix concrete needs. Id., at 15. For 20 years the relationship between Reeves and the South Dakota cement plant was amicable, uninterrupted, and mutually profitable.
4
As the 1978 construction season approached, difficulties at the plant slowed production. Meanwhile, a booming construction industry spurred demand for cement both regionally and nationally. Id., at 13. The plant found itself unable to meet all orders. Faced with the same type of "serious cement shortage" that inspired the plant's construction, the Commission "reaffirmed its policy of supplying all South Dakota customers first and to honor all contract commitments, with the remaining volume allocated on a first come, first served basis." Ibid.3
5
Reeves, which had no pre-existing long-term supply contract, was hit hard and quickly by this development. On June 30, 1978, the plant informed Reeves that it could not continue to fill Reeves' orders, and on July 5, it turned away a Reeves truck. Id., at 17-18. Unable to find another supplier, id., at 21, Reeves was forced to cut production by 76% in mid-July. Id., at 20.
6
On July 19, Reeves brought this suit against the Commission, challenging the plant's policy of preferring South Dakota buyers, and seeking injunctive relief. Id., at 3-10. After conducting a hearing and receiving briefs and affidavits, the District Court found no substantial issue of material fact and permanently enjoined the Commission's practice. The court reasoned that South Dakota's "hoarding" was inimical to the national free market envisioned by the Commerce Clause. Id., at 27-30.
7
The United States Court of Appeals for the Eighth Circuit reversed. Reeves, Inc. v. Kelley, 8 Cir., 586 F.2d 1230, 1232 (1978). It concluded that the State had "simply acted in a proprietary capacity," as permitted by Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 96 S.Ct. 2488, 49 L.Ed.2d 220 (1976). Petitioner sought certiorari. This Court granted the petition, vacated the judgment, and remanded the case for further consideration in light of Hughes v. Oklahoma, 441 U.S. 322, 99 S.Ct. 1727, 60 L.Ed.2d 250 (1979). Reeves, Inc. v. Kelley, 441 U.S. 939, 99 S.Ct. 2155, 60 L.Ed.2d 1041 (1979). On remand, the Court of Appeals distinguished that case.4 Again relying on Alexandria Scrap, the court abided by its previous holding. Reeves, Inc. v. Kelley, 8 Cir., 603 F.2d 736 (1979). We granted Reeves' petition for certiorari to consider once again the impact of the Commerce Clause on state proprietary activity. 444 U.S. 1031, 100 S.Ct. 700, 62 L.Ed.2d 666 (1980).5
II
A.
8
Alexandria Scrap concerned a Maryland program designed to remove abandoned automobiles from the State's roadways and junkyards. To encourage recycling, a "bounty" was offered for every Maryland-titled junk car converted into scrap. Processors located both in and outside Maryland were eligible to collect these subsidies. The legislation, as initially enacted in 1969, required a processor seeking a bounty to present documentation evidencing ownership of the wrecked car. This requirement however, did not apply to "hulks," inoperable automobiles over eight years old. In 1974, the statute was amended to extend documentation requirements to hulks, which comprised a large majority of the junk cars being processed. Departing from prior practice, the new law imposed more exacting documentation requirements on out-of-state than in-state processors. By making it less remunerative for suppliers to transfer vehicles outside Maryland, the reform triggered a "precipitate decline in the number of bounty-eligible hulks supplied to appellee's [Virginia] plant from Maryland sources." 426 U.S., at 801, 96 S.Ct., at 2494. Indeed, "[t]he practical effect was substantially the same as if Maryland had withdrawn altogether the availability of bounties on hulks delivered by unlicensed suppliers to licensed non-Maryland processors." Id., at 803, n. 13, 96 S.Ct., at 2495; see id., at 819, 96 S.Ct., at 2502 (dissenting opinion).
9
Invoking the Commerce Clause, a three-judge District Court struck down the legislation. 391 F.Supp. 46 (Md.1975). It observed that the amendment imposed "substantial burdens upon the free flow of interstate commerce," id., at 62, and reasoned that the discriminatory program was not the least disruptive means of achieving the State's articulated objective. Id., at 63. See generally Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970).6
10
This Court reversed. It recognized the persuasiveness of the lower court's analysis if the inherent restrictions of the Commerce Clause were deemed applicable. In the Court's view, however, Alexandria Scrap did not involve "the kind of action with which the Commerce Clause is concerned." 426 U.S., at 805, 96 S.Ct., at 2495. Unlike prior cases voiding state laws inhibiting interstate trade, "Maryland has not sought to prohibit the flow of hulks, or to regulate the conditions under which it may occur. Instead, it has entered into the market itself to bid up their price," id., at 806, 96 S.Ct., at 2496, "as a purchaser, in effect, of a potential article of interstate commerce," and has restricted "its trade to its own citizens or businesses within the State." Id., at 808, 96 S.Ct., at 2497.7
11
Having characterized Maryland as a market participant, rather than as a market regulator, the Court found no reason to "believe the Commerce Clause was intended to require independent justification for [the State's] action." Id., at 809, 96 S.Ct., at 2497. The Court couched its holding in unmistakably broad terms. "Nothing in the purposes animating the Commerce Clause prohibits a State, in the absence of congressional action, from participating in the market and exercising the right to favor its own citizens over others." Id., at 810, 96 S.Ct., at 2498 (footnote omitted).8
B
12
The basic distinction drawn in Alexandria Scrap between States as market participants and States as market regulators makes good sense and sound law. As that case explains, the Commerce Clause responds principally to state taxes and regulatory measures impeding free private trade in the national marketplace. Id., at 807-808, 96 S.Ct., at 2496-2497, citing H. P. Hood & Sons v. DuMond, 336 U.S. 525, 539, 69 S.Ct. 657, 665, 93 L.Ed. 865 (1949) (referring to "home embargoes," "customs duties," and "regulations" excluding imports). There is no indication of a constitutional plan to limit the ability of the States themselves to operate freely in the free market. See L. Tribe, American Constitutional Law 336 (1978) ("the commerce clause was directed, as an historical matter, only at regulatory and taxing actions taken by states in their sovereign capacity"). The precedents comport with this distinction.9
13
Restraint in this area is also counseled by considerations of state sovereignty,10 the role of each State " 'as guardian and trustee for its people,' " Heim v. McCall, 239 U.S. 175, 191, 36 S.Ct. 78, 83, 60 L.Ed. 206 (1915), quoting Atkin v. Kansas, 191 U.S. 207, 222-223, 24 S.Ct. 124, 127-128, 48 L.Ed. 148 (1903),11 and "the long recognized right of trader or manufacturer, engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal." United States v. Colgate & Co., 250 U.S. 300, 307, 39 S.Ct. 465, 468, 63 L.Ed. 992 (1919).12 Moreover, state proprietary activities may be, and often are, burdened with the same restrictions imposed on private market participants.13 Evenhandedness suggests that, when acting as proprietors, States should similarly share existing freedoms from federal constraints, including the inherent limits of the Commerce Clause. See State ex rel. Collins v. Senatobia Blank Book & Stationery Co., 115 Miss. 254, 260, 76 So. 258, 260 (1917); Tribune Printing & Binding Co. v. Barnes, 7 N.D. 591, 597, 75 N.W. 904, 906 (1898). Finally, as this case illustrates, the competing considerations in cases involving state proprietary action often will be subtle, complex, politically charged, and difficult to assess under traditional Commerce Clause analysis. Given these factors, Alexandria Scrap wisely recognizes that, as a rule, the adjustment of interests in this context is a task better suited for Congress than this Court.
III
14
South Dakota, as a seller of cement, unquestionably fits the "market participant" label more comfortably than a State acting to subsidize local scrap processors. Thus, the general rule of Alexandria Scrap plainly applies here.14 Petitioner argues, however, that the exemption for marketplace participation necessarily admits of exceptions. While conceding that possibility, we perceive in this case no sufficient reason to depart from the general rule.
15
In finding a Commerce Clause violation, the District Court emphasized "that the Commission . . . made an election to become part of the interstate commerce system." App. 28. The gist of this reasoning, repeated by petitioner here, is that one good turn deserves another. Having long exploited the interstate market, South Dakota should not be permitted to withdraw from it when a shortage arises. This argument is not persuasive. It is somewhat self-serving to say that South Dakota has "exploited" the interstate market. An equally fair characterization is that neighboring States long have benefited from South Dakota's foresight and industry. Viewed in this light, it is not surprising that Alexandria Scrap rejected an argument that the 1974 Maryland legislation challenged there was invalid because cars abandoned in Maryland had been processed in neighboring States for five years. As in Alexandria Scrap, we must conclude that "this chronology does not distinguish the case, for Commerce Clause purposes, from one in which a State offered [cement] only to domestic [buyers] from the start." 426 U.S., at 809, 96 S.Ct., at 2497.15
16
Our rejection of petitioner's market-exploitation theory fundamentally refocuses analysis. It means that to reverse we would have to void a South Dakota "residents only" policy even if it had been enforced from the plant's very first days. Such a holding, however, would interfere significantly with a State's ability to structure relations exclusively with its own citizens. It would also threaten the future fashioning of effective and creative programs for solving local problems and distributing government largesse. See n. 1,supra. A healthy regard for federalism and good government renders us reluctant to risk these results.
17
"To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S.Ct. 371, 386, 76 L.Ed. 747 (1932) (Brandeis, J., dissenting).
B
18
Undaunted by these considerations, petitioner advances four more arguments for reversal:
19
First, petitioner protests that South Dakota's preference for its residents responds solely to the "non-governmental objectiv[e]" of protectionism. Brief for Petitioner 25. Therefore, petitioner argues, the policy is per se invalid. See Philadelphia v. New Jersey, 437 U.S. 617, 624, 98 S.Ct. 2531, 2535, 57 L.Ed.2d 475 (1978).
20
We find the label "protectionism" of little help in this context. The State's refusal to sell to buyers other than South Dakotans is "protectionist" only in the sense that it limits benefits generated by a state program to those who fund the state treasury and whom the State was created to serve. Petitioner's argument apparently also would characterize as "protectionist" rules restricting to state residents the enjoyment of state educational institutions, energy generated by a state-run plant, police and fire protection, and agricultural improvement and business development programs. Such policies, while perhaps "protectionist" in a loose sense, reflect the essential and patently unobjectionable purpose of state government—to serve the citizens of the State.16
21
Second, petitioner echoes the District Court's warning:
22
"If a state in this union, were allowed to hoard its commodities or resources for the use of their own residents only, a drastic situation might evolve. For example, Pennsylvania or Wyoming might keep their coal, the northwest its timber, and the mining states their minerals. The result being that embargo may be retaliated by embargo and commerce would be halted at state lines." App. 29.
23
See, e. g., Baldwin v. Montana Fish & Game Comm'n, 436 U.S. 371, 385-386, 98 S.Ct. 1852, 1860-1861, 56 L.Ed.2d 354 (1978). This argument, although rooted in the core purpose of the Commerce Clause, does not fit the present facts. Cement is not a natural resource, like coal, timber, wild game, or minerals. Cf. Hughes v. Oklahoma, 441 U.S. 322, 99 S.Ct. 1727, 60 L.Ed.2d 250 (1979) (minnows); Philadelphia v. New Jersey, supra (landfill sites); Pennsylvania v. West Virginia, 262 U.S. 553, 43 S.Ct. 658, 67 L.Ed. 1117 (1923) (natural gas); West v. Kansas Natural Gas Co., 221 U.S. 229, 31 S.Ct. 564, 55 L.Ed. 716 (1911) (same); Note, 32 Rutgers L.Rev. 741 (1979). It is the end product of a complex process whereby a costly physical plant and human labor act on raw materials. South Dakota has not sought to limit access to the State's limestone or other materials used to make cement. Nor has it restricted the ability of private firms or sister States to set up plants within its borders. Tr. of Oral Arg. 4. Moreover, petitioner has not suggested that South Dakota possesses unique access to the materials needed to produce cement.17 Whatever limits might exist on a State's ability to invoke the Alexandria Scrap exemption to hoard resources which by happenstance are found there, those limits do not apply here.
24
Third, it is suggested that the South Dakota program is infirm because it places South Dakota suppliers of ready-mix concrete at a competitive advantage in the out-of-state market; Wyoming suppliers, such as petitioner, have little chance against South Dakota suppliers who can purchase cement from the State's plant and freely sell beyond South Dakota's borders.
25
The force of this argument is seriously diminished, if not eliminated by several considerations. The argument necessarily implies that the South Dakota scheme would be unobjectionable if sales in other States were totally barred. It therefore proves too much, for it would tolerate even a greater measure of protectionism and stifling of interstate commerce than the challenge system allows. See K.S.B. Technical Sales Corp. v. North Jersey Dist. Water Supply Comm'n, 75 N.J. 272, 298, 381 A.2d 774, 787 (1977) ("It would be odd indeed to find that when a state becomes less parochial . . . its purpose becomes suspect under the Commerce Clause"). Cf. Pike v. Bruce Church, Inc., 397 U.S., at 142, 90 S.Ct., at 847. ("And the extent of the burden that will be tolerated will of course depend . . . on whether [the state interest] could be promoted as well with a lesser impact on interstate activities"). Nor is it to be forgotten that Alexandria Scrap approved a state program that "not only . . . effectively protect[ed] scrap processors with existing plants in Maryland from the pressures of competitors with nearby out-of-state plants, but [that] implicitly offer[ed] to extend similar protection to any competitor . . . willing to erect a scrap processing facility within Maryland's boundaries." 391 F.Supp., at 63. Finally, the competitive plight of out-of-state ready-mix suppliers cannot be laid solely at the feet of South Dakota. It is attributable as well to their own States' not providing or attracting alternative sources of supply and to the suppliers' own failure to guard against shortages by executing long-term supply contracts with the South Dakota plant.
26
In its last argument, petitioner urges that, had South Dakota not acted, free market forces would have generated an appropriate level of supply at free market prices for all buyers in the region. Having replaced free market forces, South Dakota should be forced to replicate how the free market would have operated under prevailing conditions.
27
This argument appears to us to be simplistic and speculative. The very reason South Dakota built its plant was because the free market had failed adequately to supply the region with cement. See n. 1, supra. There is no indication, and no way to know, that private industry would have moved into petitioner's market area, and would have ensured a supply of cement to petitioner either prior to or during the 1978 construction season. Indeed, it is quite possible that petitioner would never have existed—far less operated successfully for 20 years—had it not been for South Dakota cement.18
C
28
We conclude, then, that the arguments for invalidating South Dakota's resident-preference program are weak at best. Whatever residual force inheres in them is more than offset by countervailing considerations of policy and fairness. Reversal would discourage similar state projects, even though this project demonstrably has served the needs of state residents and has helped the entire region for more than a half century. Reversal also would rob South Dakota of the intended benefit of its foresight, risk, and industry.19 Under these circumstances, there is no reason to depart from the general rule of Alexandria Scrap.
29
The judgment of the United States Court of Appeals is affirmed.
30
It is so ordered.
31
Mr. Justice POWELL, with whom Mr. Justice BRENNAN, Mr. Justice WHITE, and Mr. Justice STEVENS join, dissenting.
32
The South Dakota Cement Commission has ordered that in times of shortage the state cement plant must turn away out-of-state customers until all orders from South Dakotans are filled. This policy represents precisely the kind of economic protectionism that the Commerce Clause was intended to prevent.1 The Court, however, finds no violation of the Commerce Clause, solely because the State produces the cement. I agree with the Court that the State of South Dakota may provide cement for its public needs without violating the Commerce Clause. But I cannot agree that South Dakota may withhold its cement from interstate commerce in order to benefit private citizens and businesses within the State.
33
* The need to ensure unrestricted trade among the States created a major impetus for the drafting of the Constitution. "The power over commerce . . . was one of the primary objects for which the people of America adopted their government. . . ." Gibbons v. Ogden, 9 Wheat. 1, 190, 6 L.Ed. 23 (1824). Indeed, the Constitutional Convention was called after an earlier convention on trade and commercial problems proved inconclusive. C. Beard, An Economic Interpretation of the Constitution 61-63 (1935); S. Bloom, History of the Formation of the Union Under the Constitution 14-15 (1940). In the subsequent debate over ratification, Alexander Hamilton emphasized the importance of unrestricted interstate commerce:
34
"An unrestrained intercourse between the States themselves will advance the trade of each, by an interchange of their respective productions. . . . Commercial enterprise will have much greater scope, from the diversity in the productions of different States. When the staple of one fails . . . it can call to its aid the staple of another." The Federalist, No. 11, p. 71 (J. Cooke ed., 1961) (A. Hamilton); see id., No. 42, p. 283 (J. Madison).
35
The Commerce Clause has proved an effective weapon against protectionism. The Court has used it to strike down limitations on access to local goods, be they animal, Hughes v. Oklahoma, 441 U.S. 322, 99 S.Ct. 1727, 60 L.Ed.2d 250 (1979) (minnows); vegetable, Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970) (cantalopes); or mineral, Pennsylvania v. West Virginia, 262 U.S. 553, 43 S.Ct. 658, 67 L.Ed.2d 1117 (1923) (natural gas). Only this Term, the Court held unconstitutional a Florida statute designed to exclude out-of-state investment advisers. Lewis v. BT Investment Managers, Inc., 447 U.S. 27, 100 S.Ct. 2009, 64 L.Ed.2d 702. As we observed in Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 803, 96 S.Ct. 2488, 2494, 49 L.Ed.2d 220 (1976), "this Nation is a common market in which state lines cannot be made barriers to the free flow of both raw materials and finished goods in response to the economic laws of supply and demand."
36
This case presents a novel constitutional question. The Commerce Clause would bar legislation imposing on private parties the type of restraint on commerce adopted by South Dakota. See Pennsylvania v. West Virginia, supra; cf. Great A & P Tea Co. v. Cottrell, 424 U.S. 366, 96 S.Ct. 923, 47 L.Ed.2d 55 (1976); Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1, 49 S.Ct. 1, 73 L.Ed. 147 (1928).2 Conversely, a private business constitutionally could adopt a marketing policy that excluded customers who come from another State. This case falls between those polar situations. The State, through its Commission, engages in a commercial enterprise and restricts its own interstate distribution. The question is whether the Commission's policy should be treated like state regulation of private parties or like the marketing policy of a private business.
37
The application of the Commerce Clause to this case should turn on the nature of the governmental activity involved. If a public enterprise undertakes an "integral operatio[n] in areas of traditional governmental functions," National League of Cities v. Usery, 426 U.S. 833, 852, 96 S.Ct. 2465, 2474, 49 L.Ed.2d 245 (1976), the Commerce Clause is not directly relevant. If, however, the State enters the private market and operates a commercial enterprise for the advantage of its private citizens, it may not evade the constitutional policy against economic Balkanization.
38
This distinction derives from the power of governments to supply their own needs, see Perkins v. Lukens Steel Co., 310 U.S. 113, 127, 60 S.Ct. 869, 876, 84 L.Ed. 1108 (1940); Atkin v. Kansas, 191 U.S. 207, 24 S.Ct. 124, 48 L.Ed. 148 (1903), and from the purpose of the Commerce Clause itself, which is designed to protect "the natural functioning of the interstate market," Hughes v. Alexandria Scrap Corp., supra, at 806, 96 S.Ct., at 2496. In procuring goods and services for the operation of government, a State may act without regard to the private marketplace and remove itself from the reach of the Commerce Clause. See American Yearbook Co. v. Askew, 339 F.Supp. 719 (M.D.Fla.), summarily aff'd, 409 U.S. 904, 93 S.Ct. 230, 34 L.Ed.2d 168 (1972). But when a State itself becomes a participant in the private market for other purposes, the Constitution forbids actions that would impede the flow of interstate commerce. These categories recognize no more than the "constitutional line between the State as government and the State as trader." New York v. United States, 326 U.S. 572, 579, 66 S.Ct. 310, 90 L.Ed. 326 (1946); see United States v. California, 297 U.S. 175, 56 S.Ct. 421, 80 L.Ed. 567 (1936); Ohio v. Helvering, 292 U.S. 360, 54 S.Ct. 725, 78 L.Ed. 1307 (1934); South Carolina v. United States, 199 U.S. 437, 26 S.Ct. 110, 50 L.Ed. 261 (1905).
39
The Court holds that South Dakota, like a private business, should not be governed by the Commerce Clause when it enters the private market. But precisely because South Dakota is a State, it cannot be presumed to behave like an enterprise " 'engaged in an entirely private business.' " See ante, at 439, quoting United States v. Colgate & Co., 250 U.S. 300, 307, 39 S.Ct. 465, 468, 63 L.Ed. 992 (1919). A State frequently will respond to market conditions on the basis of political rather than economic concerns. To use the Court's terms, a State may attempt to act as a "market regulator" rather than a "market participant." See ante, at 436. In that situation, it is a pretense to equate the State with a private economic actor. State action burdening interstate trade is no less state action because it is accomplished by a public agency authorized to participate in the private market.
II
40
The threshold issue is whether South Dakota has undertaken integral government operations in an area of traditional governmental functions, or whether it has participated in the marketplace as a private firm. If the latter characterization applies, we also must determine whether the State Commission's marketing policy burdens the flow of interstate trade. This analysis highlights the differences between the state action here and that before the Court in Hughes v. Alexandria Scrap Corp.
A.
41
In Alexandria Scrap, a Virginia scrap processor challenged a Maryland program to pay bounties for every junk car registered in Maryland that was converted into scrap. The program imposed more onerous documentation standards on non-Maryland processors, thereby diverting Maryland "hulks" to in-state processors. The Virginia plaintiff argued that this diversion burdened interstate commerce.
42
As the Court today notes, Alexandria Scrap determined that Maryland's bounty program constituted direct state participation in the market for automobile hulks. Ante, at 435. But the critical question—the second step in the opinion's analysis—was whether the bounty program constituted an impermissible burden on interstate commerce. Recognizing that the case did not fit neatly into conventional Commerce Clause theory, 426 U.S., at 807, 96 S.Ct., at 2496, we found no burden on commerce.
The Court first observed:
43
"Maryland has not sought to prohibit the flow of hulks, or to regulate the conditions under which it may occur. Instead, it has entered into the market itself to bid up their price. There has been an impact upon the interstate flow of hulks only because . . . Maryland effectively has made it more lucrative for unlicensed suppliers to dispose of their hulks in Maryland . . . ." Id., at 806, 96 S.Ct., at 2496.
44
We further stated "that the novelty of this case is not its presentation of a new form of 'burden' upon commerce, but that appellee should characterize Maryland's action as a burden which the Commerce Clause was intended to make suspect." Id., at 807, 96 S.Ct., at 2496. The opinion then emphasized that "no trade barrier of the type forbidden by the Commerce Clause, and involved in previous cases, impedes th[e] movement [of hulks] out of State." Id., at 809-810, 96 S.Ct., at 2498. Rather, the hulks "remain within Maryland in response to market forces, including that exerted by money from the State." Id., at 810, 96 S.Ct., at 2498. The Court concluded that the subsidies provided under the Maryland program erected no barriers to trade. Consequently, the Commerce Clause did not forbid the Maryland program.
B
45
Unlike the market subsidies at issue in Alexandria Scrap, the marketing policy of the South Dakota Cement Commission has cut off interstate trade.3 The State can raise such a bar when it enters the market to supply its own needs. In order to ensure an adequate supply of cement for public uses, the State can withhold from interstate commerce the cement needed for public projects. Cf. National League of Cities v. Usery, supra.
46
The State, however, has no parallel justification for favoring private, in-state customers over out-of-state customers.4 In response to political concerns that likely would be inconsequential to a private cement producer, South Dakota has shut off its cement sales to customers beyond its borders. That discrimination constitutes a direct barrier to trade "of the type forbidden by the Commerce Clause, and involved in previous cases . . . ." Alexandria Scrap, 426 U.S., at 810, 96 S.Ct., at 2498. The effect on interstate trade is the same as if the state legislature had imposed the policy on private cement producers. The Commerce Clause prohibits this severe restraint on commerce.
III
47
I share the Court's desire to preserve state sovereignty. But the Commerce Clause long has been recognized as a limitation on that sovereignty, consciously designed to maintain a national market and defeat economic provincialism. The Court today approves protectionist state policies. In the absence of contrary congressional action,5 those policies now can be implemented as long as the State itself directly participates in the market.6
48
By enforcing the Commerce Clause in this case, the Court would work no unfairness on the people of South Dakota. They still could reserve cement for public projects and share in whatever return the plant generated. They could not, however, use the power of the State to furnish themselves with cement forbidden to the people of neighboring States.
49
The creation of a free national economy was a major goal of the States when they resolved to unite under the Federal Constitution. The decision today cannot be reconciled with that purpose.
1
It was said that the plant was built because the only cement plant in the State "had been operating successfully for a number of years until it had been bought by the so-called trust and closed down." Report of South Dakota State Cement Commission 6 (1920). In its report advocating creation of a cement plant, the Commission noted both the substantial profits being made by private producers in the prevailing market, and the fact that producers outside the State were "now supplying all the cement used in" South Dakota. Under the circumstances, the Commission reasoned, it would not be to the "capitalists['] . . . advantage to build a new plant within the state." Id., at 8. This skepticism regarding private industry's ability to serve public needs was a hallmark of Progressivism. See, e. g., R. Hofstadter, The Age of Reform 227 (1955) ("In the Progressive era the entire structure of business . . . became the object of a widespread hostility"). South Dakota, earlier a bastion of Populism, id., at 50, became a leading Progressivist State. See R. Nye, Midwestern Progressive Politics 217-218 (1959); G. Mowry, Theodore Roosevelt and the Progressive Movement 155, and n. 125 (1946). Roosevelt carried South Dakota in the election of 1912, id., at 281, n. 69, and Robert La Follette—on a platform calling for public ownership of railroads and waterpower, see K. MacKay, The Progressive Movement of 1924, pp. 270-271 (app. 4) (1966)—ran strongly (36.9%) in the State in 1924. Congressional Quarterly's Guide to U. S. Elections 287 (1975).
The backdrop against which the South Dakota cement project was initiated is described in H. Schell, History of South Dakota 268-269 (3d ed. 1975):
"Although a majority of the voters [in 1918] had seemingly subscribed to a state-ownership philosophy, it was a question how far the Republican administration at Pierre would go in fulfilling campaign promises. As [Governor] Norbeck entered upon his second term, he again urged a state hail insurance law and advocated steps toward a state-owned coal mine, cement plant, and state-owned stockyards. He also recommended an appropriation for surveying dam sites for hydroelectric development. The lawmakers readily enacted these recommendations into law, except for the stockyards proposal. . . .
". . . In retrospect, [Norbeck's] program must be viewed as a part of the Progressives' campaign against monopolistic prices. There was, moreover, the fervent desire to make the services of the state government available to agriculture. . . . These were basic tenets of the Progressive philosophy of government."
2
"[C]ement is a finely ground manufactured mineral product, usually gray in color. It is mixed with water and sand, gravel, crushed stone, or other aggregates to form concrete, the rock-like substance that is the most widely used construction material in the world." Portland Cement Association, The U. S. Cement Industry, An Economic Report 5 (2d ed. 1978). "Ready-mixed concrete is the term applied to ordinary concrete that is mixed at a central depot instead of on the construction site, and is distributed in special trucks." 4 Encyclopedia Britannica 1077 (1974).
3
It is not clear when the State initiated its policy preferring South Dakota customers. The record, however, shows that the policy was in place at least by 1974. App. 24.
4
We now agree with the Court of Appeals that Hughes v. Oklahoma does not bear on analysis here. That case involved a State's attempt " 'to prevent privately owned articles of trade from being shipped and sold in interstate commerce.' " Philadelphia v. New Jersey, 437 U.S. 617, 627, 98 S.Ct. 2531, 2537, 57 L.Ed.2d 475 (1978), quoting Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1, 10, 49 S.Ct. 1, 4, 73 L.Ed. 147 (1928). Thus, it involved precisely the type of activity distinguished by the Court in Alexandria Scrap. See 426 U.S., at 805-806, 96 S.Ct. at 2495-2496.
5
During the pendency of this litigation, economic conditions have permitted South Dakota to discontinue enforcement of its resident-preference policy. We agree with the parties, however, that the case has not become moot. During at least three construction seasons within as many decades the cement plant has been unable, or nearly unable, to satisfy demand. See, e. g., Twelfth Biennial Report of the South Dakota State Cement Commission (1948); App. 23 (affidavit of C. A. Reeves). Under these circumstances, "(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again." Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975).
6
Maryland sought to justify its reform as an effort to reduce bounties paid to out-of-state processors on Maryland-titled cars abandoned outside Maryland. The District Court concluded that Maryland could achieve this goal more satisfactorily by simply restricting the payment of bounties to only those cars abandoned in Maryland.
7
The Court invoked this rationale after explicitly reiterating the District Court's finding that the Maryland program imposed " 'substantial burdens upon the free flow of interstate commerce.' " 426 U.S., at 804, 96 S.Ct., at 2495. Moreover, the Court was willing to accept the Virginia processor's characterization of the Maryland program as "reducing in some manner the flow of goods in interstate commerce." Id., at 805, 96 S.Ct. at 2495. Given this concession, we are unable to accept the dissent's description of Alexandria Scrap as a case in which "we found no burden on commerce," post, at 451, "concluded that the subsidies . . . erected no barriers to trade," post, at 452, and determined that the Maryland program did not "cut off," ibid., or "impede the flow of interstate commerce," post, at 450. Indeed, even the dissent in the present case recognizes that the Maryland subsidy program "divert[ed] Maryland 'hulks' to in-state processors." Post, at 451. To be sure, Alexandria Scrap rejected the argument that "the bounty program constituted an impermissible burden on
interstatecommerce."Ibid. (emphasis added). It did so, however, solely because Maryland had "entered into the market itself." 426 U.S., at 806, 96 S.Ct., at 2496. Thus, the two-step analysis distilled by the dissent from Alexandria Scrap, see post, at 451-453, collapses into a single inquiry: whether the challenged "program constituted direct state participation in the market." Post, at 451. The dissent agrees that the question is to be answered in the affirmative here. Ibid.
8
The dissent's central criticisms of the result reached here seem to be that the South Dakota policy does not emanate from "the power of governments to supply their own needs," and that it threatens " 'the natural functioning of the interstate market.' " Post, at 450. The same observations, however, apply with equal force to the subsidy program challenged in Alexandria Scrap.
9
Alexandria Scrap does not stand alone. In American Yearbook Co. v. Askew, 339 F.Supp. 719 (MD Fla.1972), a three-judge District Court upheld a Florida statute requiring the State to obtain needed printing services from in-state shops. It reasoned that "state proprietary functions" are exempt from Commerce Clause scrutiny. Id., at 725. This Court affirmed summarily. 409 U.S. 904, 93 S.Ct. 230, 34 L.Ed.2d 168 (1972). Numerous courts have rebuffed Commerce Clause challenges directed at similar preferences that exist in "a substantial majority of the states." Note, 58 Iowa L.Rev. 576 (1973). City of Phoenix v. Superior Court, 109 Ariz. 533, 535, 514 P.2d 454, 456 (1973) (citing American Yearbook to reaffirm Schrey v. Allison Steel Mfg. Co., 75 Ariz. 282, 255 P.2d 604 (1953)); Denver v. Bossie, 83 Colo. 329, 266 P. 214 (1928); In re Gemmill, 20 Idaho 732, 119 P. 298 (1911); People ex rel. Holland v. Bleigh Constr. Co., 61 Ill.2d 258, 274-275, 335 N.E.2d 469, 479 (1975) (citing American Yearbook ); State ex rel. Collins v. Senatobia Blank Book & Stationery Co., 115 Miss. 254, 76 So. 258 (1917); Allen v. Labsap, 188 Mo. 692, 87 S.W. 926 (1905); Hersey v. Neilson, 47 Mont. 132, 131 P. 30 (1913); Tribune Printing & Binding Co. v. Barnes, 7 N.D. 591, 75 N.W. 904 (1898). See also Dixon-Paul Printing Co. v. Board of Public Contracts, 117 Miss. 83, 77 So. 908 (1918); Luboil Heat & Power Corp. v. Pleydell, 178 Misc. 562, 564, 34 N.Y.S.2d 587, 591 (Sup.1942). The only clear departure from this pattern, People ex rel. Treat v. Coler, 166 N.Y. 144, 59 N.E. 776 (1901), drew a strong dissent, and has been uniformly criticized in later decisions. See, e. g., State ex rel. Collins v. Senatobia Blank Book & Stationery Co., supra; Allen v. Labsap, supra.
One other case merits comment. In Bethlehem Steel Corp. v. Board of Commissioners, 276 Cal.App.2d 221, 80 Cal.Rptr. 800 (1969), the court struck down a California statute requiring the State to contract only with persons who promised to use or supply materials produced in the United States. In Opinion No. 69-253, 53 Op.Cal.Atty.Gen. 72 (1970), the State's Attorney General reasoned that Bethlehem Steel similarly prohibited, under the "foreign commerce" Clause, statutes giving a preference to California-produced goods. We have no occasion to explore the limits imposed on state proprietary actions by the "foreign commerce" Clause or the constitutionality of "Buy American" legislation. Compare Bethlehem Steel Corp., supra, with K.S.B. Technical Sales Corp. v. North Jersey Dist. Water Supply Comm'n, 75 N.J. 272, 381 A.2d 774 (1977). We note, however, that Commerce Clause scrutiny may well be more rigorous when a restraint on foreign commerce is alleged. See Japan Line, Ltd. v. County Of Los Angeles, 441 U.S. 434, 99 S.Ct. 1813, 60 L.Ed.2d 336 (1979).
10
See American Yearbook Co. v. Askew, 339 F.Supp., at 725 ("ad hoc" inquiry into burdening of interstate commerce "would unduly interfere with state proprietary functions if not bring them to a standstill"). Considerations of sovereignty independently dictate that marketplace actions involving "integral operations in areas of traditional governmental functions"—such as the employment of certain state workers—may not be subject even to congressional regulation pursuant to the commerce power. National League of Cities v. Usery, 426 U.S. 833, 852, 96 S.Ct. 2465, 2474, 49 L.Ed.2d 245 (1976). It follows easily that the intrinsic limits of the Commerce Clause do not prohibit state marketplace conduct that falls within this sphere. Even where "integral operations" are not implicated, States may fairly claim some measure of a sovereign interest in retaining freedom to decide how, with whom, and for whose benefit to deal. The Supreme Court, 1975 Term, 90 Harv.L.Rev. 1, 56, 63 (1976).
11
See Foster-Fountain Packing Co. v. Haydel, 278 U.S., at 13, 49 S.Ct., at 4 ("As the representative of its people, the State might have retained the shrimp for consumption and use therein"); Toomer v. Witsell, 334 U.S. 385, 409, 68 S.Ct. 1156, 1168, 92 L.Ed. 1460 (1948) (concurring opinion) (state power to provide for own citizens by developing food supply distinguished from interference with private transactions in food products); Helvering v. Gerhardt, 304 U.S. 405, 427, 58 S.Ct. 969, 978, 82 L.Ed. 1427 (1938) (concurring opinion) ("The genius of our government provides that, within the sphere of constitutional action, the people . . . have the power to determine as conditions demand, what services and functions the public welfare requires").
12
When a State buys or sells, it has the attributes of both a political entity and a private business. Nonetheless, the dissent would dismiss altogether the "private business" element of such activity and focus solely on the State's political character. Post, at 450. The Court, however, heretofore has recognized that "[l]ike private individuals and businesses, the Government enjoys the unrestricted power to produce its own supplies, to determine those with whom it will deal, and to fix the terms and conditions upon which it will make needed purchases." Perkins v. Lukens Steel Co., 310 U.S. 113, 127, 60 S.Ct. 869, 876, 84 L.Ed. 1108 (1940) (emphasis added). While acknowledging that there may be limits on this sweepingly phrased principle, we cannot ignore the similarities of private businesses and public entities when they function in the marketplace.
13
See, e. g., National League of Cities v. Usery, 426 U.S., at 854, n. 18, 96 S.Ct., at 2475, n. 18; New York v. United States, 326 U.S. 572, 66 S.Ct. 310, 90 L.Ed. 326 (1946); United States v. California, 297 U.S. 175, 56 S.Ct. 421, 80 L.Ed. 567 (1936). See also LaFayette v. Louisiana Power & Light Co., 435 U.S. 389, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978).
14
The criticism received by Alexandria Scrap in part has been directed at its application of the proprietary immunity to state subsidy programs. See Note, 18 B.C.Ind & Com.L.Rev. 893, 924-925 (1977). But see The Supreme Court, 1975 Term, 90 Harv.L.Rev., at 60-61. We have no occasion here to inquire whether subsidy programs unlike that involved in Alexandria Scrap warrant characterization as proprietary, rather than regulatory, activity. Cf. 18 B.C.Ind. & Com.L.Rev., at 913-915.
15
Alexandria Scrap explained:
"It is true that the state money initially was made available to licensed out-of-state processors as well as those located within Maryland, and not until the 1974 amendment was the financial benefit channeled, in practical effect, to domestic processors. But this chronology does not distinguish the case, for Commerce Clause purposes, from one in which a State offered bounties only to domestic processors from the start. Regardless of when the State's largesse is first confined to domestic processors, the effect upon the flow of hulks resting within the State is the same: they will tend to be processed inside the State rather than flowing to foreign processors. But no trade barrier of the type forbidden by the Commerce Clause, and involved in previous cases, impedes their movement out of State. They remain within Maryland in response to market forces, including that exerted by money from the State." 426 U.S., at 809-810, 96 S.Ct., at 2497-2498. (Footnote omitted.)
16
Petitioner would distinguish Alexandria Scrap as involving state legislation designed to advance the nonprotectionist goal of environmentalism. This characterization is an oversimplification. The challenged feature of the Maryland program—the discriminatory documentation requirement—was not aimed at improving the environment; indeed by decreasing the profit margin a hulk supplier could expect to receive if he delivered to the most accessible recycling plant, it is likely that the amendment somewhat set back the goal of encouraging hulk processing. The stated justification for the discriminatory regulation—reducing payments to out-of-state processors for recycling of hulks abandoned outside Maryland—was not even mentioned by the Court in rebuffing the Virginia processor's Commerce Clause challenge. Indeed, the central point of the Court's analysis was that demonstration of an "independent justification" was unnecessary to sustain the State's program. See Note, 18 B.C.Ind. & Com.L.Rev., at 927-928. At bottom, the discrimination challenged in Alexandria Scrap was motivated by the same concern underlying South Dakota's resident-preference policy a desire to channel state benefits to the residents of the State supplying them. If some underlying "commendable as well as legitimate" purpose, 426 U.S., at 809, 96 S.Ct., at 2497, is also required, it is certainly present here. In establishing the plant, South Dakota sought the most unstartling governmental goal: improvement of the quality of life in that State by generating a supply of a previously scarce product needed for local construction and governmental improvements. A cement program, to be sure, may be a somewhat unusual or unorthodox way in which to utilize state funds to improve the quality of residents' lives. But "[a] State's project is as much a legitimate governmental activity whether it is traditional, or akin to private enterprise, or conducted for profit. . . . A State may deem it as essential to its economy that it own and operate a railroad, a mill, or an irrigation system as it does to own and operate bridges, street lights, or a sewage disposal plant. What might have been viewed in an earlier day as an improvident or even dangerous extension of state activities may today be deemed indispensable." New York v. United States, 326 U.S., at 591, 66 S.Ct., at 318 (dissenting opinion).
17
Nor has South Dakota cut off access to its own cement altogether, for the policy does not bar resale of South Dakota cement to out-of-state purchasers. Although the out-of-state buyer in the secondary market will undoubtedly have to pay a markup not borne by South Dakota competitors, this result is not wholly unjust. There should be little question that South Dakota at least could exact a premium on out-of-state purchases to compensate it for the State's investment and risk in the plan. If one views the added markup paid by out-of-state buyers to South Dakota middlemen as the rough equivalent of this "premium," the challenged program equates with a permissible result. The "bottom line" of the scheme closely parallels the result in Alexandria Scrap : out-of-state concrete suppliers are not removed from the market altogether; to compete successfully with in-state competitors, however, they must achieve additional efficiencies or exploit natural advantage such as their location to offset the incremental advantage channeled by the State's own market behavior to in-state concrete suppliers.
18
Petitioner also seeks to distinguish Alexandria Scrap on the ground that there, unlike here, the State "created" the relevant market. See 426 U.S., at 814-817, 96 S.Ct., at 2500-2501 (concurring opinion). It is clear, however, that Alexandria Scrap could not, and did not, rest on the notion that Maryland had created the interstate market in hulks. Id., at 809, n. 18, 96 S.Ct., at 2497. See Id., at 824-826, n. 6, 96 S.Ct., at 2504-2506 (dissenting opinion); Note, 18 B.C.Ind. & Com.L.Rev., at 927; The Supreme Court, 1975 Term, 90 Harv.L.Rev., at 62, n. 27; Note, 34 Wash. & Lee L.Rev. 979, 995 (1977).
19
The risk borne by South Dakota in establishing the cement plant is not to be underestimated. As explained in n. 1, supra, the cement plant was one of several projects through which the Progressive state government sought to deal with local problems. The fate of other similar projects illustrates the risk borne by South Dakota taxpayers in setting up the cement plant at a cost of some $2 million. Thus, "[t]he coal mine was sold in early 1934 for $5,500 with an estimated loss of nearly $175,000 for its fourteen years of operation. The 1933 Legislature also liquidated the state bonding department and the state hail insurance project. The total loss to the taxpayers from the latter venture was approximately $265,000." H. Schell, History of South Dakota, 286 (3d ed. 1975).
1
By "protectionism," I refer to state policies designed to protect private economic interests within the State from the forces of the interstate market. I would exclude from this term policies relating to traditional governmental functions, such as education, and subsidy programs like the one at issue in Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 96 S.Ct. 2488, 49 L.Ed.2d 220 (1976). See infra, at 451-453.
2
The Court attempts to distinguish prior decisions that address the Commerce Clause limitations on a State's regulation of natural resource exploitation. E. g., Hughes v. Oklahoma, 441 U.S. 322, 99 S.Ct. 1727, 60 L.Ed.2d 250 (1979); Pennsylvania v. West Virginia, 262 U.S. 553, 43 S.Ct. 658, 67 L.Ed. 1117 (1923). The Court contends that cement production, unlike the activities involved in those cases, "is the end product of a complex proces[s] whereby a costly physical plant and human labor act on raw materials." Ante, at 444. The Court's distinction fails in two respects. First, the principles articulated in the natural resources cases also have been applied in decisions involving agricultural production, notably milk processing. E. g., H. P. Hood & Sons v. DuMond, 336 U.S. 525, 69 S.Ct. 657, 93 L.Ed. 865 (1949); Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970). More fundamentally, the Court's definition of cement production describes all sophisticated economic activity, including the
exploitation of natural resources. The extraction of natural gas, for example, could hardly occur except through a "complex process whereby a costly physical plant and human labor act on raw materials."
The Court also suggests that the Commerce Clause has no application to this case because South Dakota does not "possess unique access to the materials needed to produce cement." Ante, at 444. But in its regional market, South Dakota has unique access to cement. A cutoff in cement sales has the same economic impact as a refusal to sell resources like natural gas. Customers can seek other sources of supply, or find a substitute product, or do without. Regardless of the nature of the product the State hoards, the consumer has been denied the guarantee of the Commerce Clause that he "may look to . . . free competition from every producing area in the Nation to protect him from exploitation by any." H. P. Hood & Sons v. DuMond, supra, at 539, 69 S.Ct., at 665.
3
One distinction between a private and a governmental function is whether the activity is supported with general tax funds, as was the case for the reprocessing program in Alexandria Scrap, or whether it is financed by the revenues it generates. In this case, South Dakota's cement plant has supported itself for many years. See Tr. of Oral Arg. 27. There is thus no need to consider the question whether a state-subsidized business could confine its sales to local residents.
4
The consequences of South Dakota's "residents-first" policy were devastating to petitioner Reeves, Inc., a Wyoming firm. For 20 years, Reeves had purchased about 95% of its cement from the South Dakota plant. When the State imposed its preference for South Dakota residents in 1978, Reeves had to reduce its production by over 75%. Ante, at 432-433. As a result, its South Dakota competitors were in a vastly superior position to compete for work in the region.
5
The Court explicitly does not exclude the possibility that, under the Commerce Clause, Congress might legislate against protectionist state policies. See ante, at 435-436.
6
Since the Court's decision contains no limiting principles, a State will be able to manufacture any commercial product and withhold it from citizens of other States. This prerogative could extend, for example, to pharmaceutical goods, food products, or even synthetic or processed energy sources.
| 78
|
447 U.S. 455
100 S.Ct. 2286
65 L.Ed.2d 263
Bernard CAREY, etc., Appellant,v.Roy BROWN et al.
No. 79-703.
Argued April 15, 1980.
Decided June 20, 1980.
Syllabus
An Illinois statute generally prohibits picketing of residences or dwellings, but exempts from its prohibition peaceful picketing of a place of employment involved in a labor dispute. Appellees were convicted in state court of violating the statute when they picketed the Mayor of Chicago's home in protest against his alleged failure to support the busing of schoolchildren to achieve racial integration. Thereafter, appellees brought suit in Federal District Court, seeking a declaratory judgment that the statute is unconstitutional on its face and as applied, and an injunction prohibiting appellant and other state and local officials from enforcing the statute. The District Court denied all relief, but the Court of Appeals reversed, holding that the statute, both on its face and as applied to appellees, violated the Equal Protection Clause of the Fourteenth Amendment.
Held : The Illinois statute is unconstitutional under the Equal Protection Clause of the Fourteenth Amendment since it makes an impermissible distinction between peaceful labor picketing and other peaceful picketing. Police Department of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212. Pp. 459-471.
(a) In prohibiting peaceful picketing on the public streets and sidewalks in residential neighborhoods, the statute regulates expressive conduct that falls within the First Amendment's preserve, and, in exempting peaceful labor picketing from its general prohibition, the statute discriminates between lawful and unlawful conduct based upon the content of the demonstrator's communication. On its face, the statute accords preferential treatment to the expression of views on one particular subject; information about labor disputes may be freely disseminated but discussion of all other issues is restricted. The permissibility of residential picketing is thus dependent solely on the nature of the message being conveyed. Pp. 459-463.
(b) Standing alone, the State's asserted interest in promoting the privacy of the home is not sufficient to save the statute. The statute makes no attempt to distinguish among various sorts of nonlabor picketing on the basis of the harms they would inflict on the privacy interest. More fundamentally, the exclusion of labor picketing cannot be upheld as a means of protecting residential privacy for the simple reason that nothing in the content-based labor-nonlabor distinction has any bearing on privacy. Pp. 464-465.
(c) Similarly, the State's interest in providing special protection for labor protests cannot, without more, justify the labor picketing exemption. Labor picketing is no more deserving of First Amendment protection than are public protests over other issues, particularly the important economic, social, and political subjects about which appellees wished to demonstrate. Pp. 466-467.
(d) Nor can the statute be justified as an attempt to accommodate the competing rights of the homeowner to enjoy his privacy and the employee to demonstrate over labor disputes, since such an attempt hinges on the validity of both of these goals, the latter of which—the desire to favor one form of speech over all others—is illegitimate. Likewise, the statute cannot be justified as an attempt to prohibit picketing that would impinge on residential privacy while permitting picketing that would not. Numerous types of peaceful picketing other than labor picketing would have but a negligible impact on privacy interests, and numerous other actions of a homeowner might constitute "nonresidential" uses of his property and would thus serve to vitiate the right to residential privacy. Pp. 467-469.
(e) While the State's interest in protecting the well-being, tranquility, and privacy of the home is of the highest order, the crucial question is whether the statute advances that objective in a manner consistent with the Equal Protection Clause. Because the statute discriminates among pickets based on the subject matter of their expression, the answer to that question must be "No." Pp. 470-471.
602 F.2d 791, 7th Cir., affirmed.
Ellen G. Robinson, Chicago, Ill., for appellant, pro hac vice, by special leave of Court.
Edward Burke Arnolds, Chicago, Ill., for appellees.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
At issue in this case is the constitutionality under the First and Fourteenth Amendments of a state statute that generally bars picketing of residences or dwellings, but exempts from its prohibition "the peaceful picketing of a place of employment involved in a labor dispute."
2
* On September 6, 1977, several of the appellees, all of whom are members of a civil rights organization entitled the Committee Against Racism, participated in a peaceful demonstration on the public sidewalk in front of the home of Michael Bilandic, then Mayor of Chicago, protesting his alleged failure to support the busing of schoolchildren to achieve racial integration. They were arrested and charged with unlawful residential picketing in violation of Ill.Rev.Stat., ch. 38, § 21.1-2 (1977), which provides:
3
"It is unlawful to picket before or about the residence or dwelling of any person, except when the residence or dwelling is used as a place of business. However, this Article does not apply to a person peacefully picketing his own residence or dwelling and does not prohibit the peaceful picketing of a place of employment involved in a labor dispute or the place of holding a meeting or assembly on premises commonly used to discuss subjects of general public interest."1
4
Appellees pleaded guilty to the charge and were sentenced to periods of supervision ranging from six months to a year.
5
In April 1978, appellees commenced this lawsuit in the United States District Court for the Northern District of Illinois, seeking a declaratory judgment that the Illinois residential picketing statute is unconstitutional on its face and as applied, and an injunction prohibiting defendants—various state, county, and city officials—from enforcing the statute. Appellees did not attempt to attack collaterally their earlier state-court convictions, but requested only prospective relief. Alleging that they wished to renew their picketing in residential neighborhoods but were inhibited from doing so by the threat of criminal prosecution under the residential picketing statute, appellees challenged the Act under the First and Fourteenth Amendments as an overbroad, vague, and, in light of the exception for labor picketing, impermissible content-based restriction on protected expression. The District Court, ruling on cross-motions for summary judgment, denied all relief. Brown v. Scott, 462 F.Supp. 518 (1978).
6
The Court of Appeals for the Seventh Circuit reversed. Brown v. Scott, 602 F.2d 791 (1979). Discerning "no principled basis" for distinguishing the Illinois statute from a similar picketing prohibition invalidated in Police Department of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972), the court concluded that the Act's differential treatment of labor and nonlabor picketing could not be justified either by the important state interest in protecting the peace and privacy of the home or by the special character of a residence that is also used as a "place of employment." Accordingly, the court held that the statute, both on its face and as applied to appellees, violated the Equal Protection Clause of the Fourteenth Amendment.2 We noted probable jurisdiction. 444 U.S. 1011, 100 S.Ct. 658, 62 L.Ed.2d 639 (1980). We affirm.
II
7
As the Court of Appeals observed this is not the first instance in which this Court has had occasion to consider the constitutionality of an enactment selectively proscribing peaceful picketing on the basis of the placard's message. Police Department of Chicago v. Mosley, supra, arose out of a challenge to a Chicago ordinance that prohibited picketing in front of any school other than one "involved in a labor dispute."3 We held that the ordinance violated the Equal Protection Clause because it impermissibly distinguished between labor picketing and all other peaceful picketing without any showing that the latter was "clearly more disruptive" than the former. 408 U.S., at 100, 92 S.Ct., at 2292. Like the Court of Appeals, we find the Illinois residential picketing statute at issue in the present case constitutionally indistinguishable from the ordinance invalidated in Mosley.
8
There can be no doubt that in prohibiting peaceful picketing on the public streets and sidewalks in residential neighborhoods, the Illinois statute regulates expressive conduct that falls within the First Amendment's preserve. See, e. g., Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940); Gregory v. Chicago, 394 U.S. 111, 112, 89 S.Ct. 946, 947, 22 L.Ed.2d 134 (1969); Shuttlesworth v. Birmingham, 394 U.S. 147, 152, 89 S.Ct. 935, 939, 22 L.Ed.2d 162 (1969). "Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939) (opinion of Roberts, J.). " '[S]treets, sidewalks, parks, and other similar public places are so historically associated with the exercise of First Amendment rights that access to them for the purpose of exercising such rights cannot constitutionally be denied broadly and absolutely.' " Hudgens v. NLRB, 424 U.S. 507, 515, 96 S.Ct. 1029, 1034, 47 L.Ed.2d 196 (1976) (quoting Food Employees v. Logan Valley Plaza, 391 U.S. 308, 315, 88 S.Ct. 1601, 1606, 20 L.Ed.2d 603 (1968)).
9
Nor can it be seriously disputed that in exempting from its general prohibition only the "peaceful picketing of a place of employment involved in a labor dispute," the Illinois statute discriminates between lawful and unlawful conduct based upon the content of the demonstrator's communication.4 On its face, the Act accords preferential treatment to the expression of views on one particular subject; information about labor disputes may be freely disseminated, but discussion of all other issues is restricted. The permissibility of residential picketing under the Illinois statute is thus dependent solely on the nature of the message being conveyed.5
10
In these critical respects, then, the Illinois statute is identical to the ordinance in Mosley, and it suffers from the same constitutional infirmities. When government regulation discriminates among speech-related activities in a public forum, the Equal Protection Clause mandates that the legislation be finely tailored to serve substantial state interests, and the justifications offered for any distinctions it draws must be carefully scrutinized. Police Department of Chicago v. Mosley, 408 U.S., at 98-99, 101, 92 S.Ct., at 2291-2292; see United States v. O'Brien, 391 U.S. 367, 376-377, 88 S.Ct. 1673, 1678-1679, 20 L.Ed.2d 672 (1968); Williams v. Rhodes, 393 U.S. 23, 30-31, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968); Dunn v. Blumstein, 405 U.S. 330, 342-343, 92 S.Ct. 995, 1003, 31 L.Ed.2d 274 (1972); San Antonio Independent School Dist. v. Rodriquez, 411 U.S. 1, 34, n. 75, 93 S.Ct. 1278, 1297, n. 75, 36 L.Ed.2d 16 (1973). As we explained in Mosley: "Chicago may not vindicate its interest in preventing disruption by the wholesale exclusion of picketing on all but one preferred subject. Given what Chicago tolerates from labor picketing, the excesses of some nonlabor picketing may not be controlled by a broad ordinance prohibiting both peaceful and violent picketing. Such excesses 'can be controlled by narrowly drawn statutes,' Saia v. New York, 334 U.S. [558], at 562 [68 S.Ct. 1148, at 1150, 92 L.Ed. 1574], focusing on the abuses and dealing evenhandedly with picketing regardless of subject matter." 408 U.S., at 101-102, 92 S.Ct., at 2293. Yet here, under the guise of preserving residential privacy, Illinois has flatly prohibited all nonlabor picketing even though it permits labor picketing that is equally likely to intrude on the tranquility of the home.
11
Moreover, it is the content of the speech that determines whether it is within or without the statute's blunt prohibition.6 What we said in Mosley has equal force in the present case:
12
"The central problem with Chicago's ordinance is that it describes permissible picketing in terms of its subject matter. Peaceful picketing on the subject of a school's labor-management dispute is permitted, but all other peaceful picketing is prohibited. The operative distinction is the message on a picket sign. . . . Any restriction on expressive activity because of its content would completely undercut the 'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.' New York Times Co. v. Sullivan, [376 U.S. 254], 270 [84 S.Ct. 710, 720, 11 L.Ed.2d, 686].
13
"Necessarily, then, under the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views. And it may not select which issues are worth discussing or debating in public facilities. There is an 'equality of status in the field of ideas,' and government must afford all points of view an equal opportunity to be heard. Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say. Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone." Id., at 95-96, 92 S.Ct., at 2290. (citations and footnote omitted).7
III
14
Appellant nonetheless contends that this case is distinguishable from Mosley. He argues that the state interests here are especially compelling and particularly well served by a statute that accords differential treatment to labor and nonlabor picketing. We explore in turn each of these interests, and the manner in which they are said to be furthered by this statute.
A.
15
Appellant explains that whereas the Chicago ordinance sought to prevent disruption of the schools, concededly a "substantial" and "legitimate" governmental concern, see id., at 99, 100, 92 S.Ct., at 2292, the Illinois statute was enacted to ensure privacy in the home, a right which appellant views as paramount in our constitutional scheme.8 For this reason, he contends that the same content-based distinctions held invalid in the Mosley context may be upheld in the present case.
16
We find it unnecessary, however, to consider whether the State's interest in residential privacy outranks its interest in quiet schools in the hierarchy of societal values. For even the most legitimate goal may not be advanced in a constitutionally impermissible manner. And though we might agree that certain state interests may be so compelling that where no adequate alternatives exist a content-based distinction—if narrowly drawn would be a permissible way of furthering those objectives, cf. Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (1919), this is not such a case.
17
First, the generalized classification which the statute draws suggests that Illinois itself has determined that residential privacy is not a transcendent objective: While broadly permitting all peaceful labor picketing notwithstanding the disturbances it would undoubtedly engender, the statute makes no attempt to distinguish among various sorts of nonlabor picketing on the basis of the harms they would inflict on the privacy interest. The apparent overinclusiveness and underinclusiveness of the statute's restriction would seem largely to undermine appellant's claim that the prohibition of all nonlabor picketing can be justified by reference to the State's interest in maintaining domestic tranquility.9
18
More fundamentally, the exclusion for labor picketing cannot be upheld as a means of protecting residential privacy for the simple reason that nothing in the content-based labor-nonlabor distinction has any bearing whatsoever on privacy. Appellant can point to nothing inherent in the nature of peaceful labor picketing that would make it any less disruptive of residential privacy than peaceful picketing on issues of broader social concern. Standing alone, then, the State's asserted interest in promoting the privacy of the home is not sufficient to save the statute.
B
19
The second important objective advanced by appellant in support of the statute is the State's interest in providing special protection for labor protests. He maintains that federal10 and state11 law has long exhibited an unusual concern for such activities, and he contends that this solicitude may be furthered by a narrowly drawn exemption for labor picketing.
20
The central difficulty with this argument is that it forthrightly presupposes that labor picketing is more deserving of First Amendment protection than are public protests over other issues, particularly the important economic, social, and political subjects about which these appellees wish to demonstrate. We reject that proposition. Cf. T. Emerson, The System of Freedom of Expression 444-449 (1970) (suggesting that nonlabor picketing is more akin to pure expression than labor picketing and thus should be subject to fewer restrictions). Public-issue picketing, "an exercise of . . . basic constitutional rights in their most pristine and classic form," Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 683, 9 L.Ed.2d 697 (1963), has always rested on the highest rung of the hierarchy of First Amendment values: "The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system." Stromberg v. California, 283 U.S. 359, 369, 51 S.Ct. 532, 536, 75 L.Ed. 1117 (1931). See generally A. Meiklejohn, Free Speech and Its Relation to Self-Government (1948). While the State's motivation in protecting the First Amendment rights of employees involved in labor disputes is commendable, that factor, without more, cannot justify the labor picketing exemption.
C
21
Appellant's final contention is that the statute can be justified by some combination of the preceding objectives. This argument is fashioned on two different levels. In its elemental formulation, it posits simply that a distinction between labor and nonlabor picketing is uniquely suited to furthering the legislative judgment that residential privacy should be preserved to the greatest extent possible without also compromising the special protection owing to labor picketing. In short, the statute is viewed as a reasonable attempt to accommodate the competing rights of the homeowner to enjoy his privacy and the employee to demonstrate over labor disputes.12 But this attempt to justify the statute hinges on the validity of both of these goals, and we have already concluded that the latter the desire in favor one form of speech over all others—is illegitimate.
22
The second and more complex formulation of appellant's position characterizes the statute as a carefully drafted attempt to prohibit that picketing which would impinge on residential privacy while permitting that picketing which would not. In essence, appellant asserts that the exception for labor picketing does not contravene the State's interest in preserving residential tranquility because of the unique character of a residence that is a "place of employment." By "inviting" a worker into his home and converting that dwelling into a place of employment, the argument goes, the resident has diluted his entitlement to total privacy. In other words, he has "waived" his right to be free from picketing with respect to disputes arising out of the employment relationship, thereby justifying the statute's narrow labor exception at those locations.13
23
The flaw in this argument is that it proves too little. Numerous types of peaceful picketing other than labor picketing would have but a negligible impact on privacy interests,14 and numerous other actions of a homeowner might constitute "nonresidential" uses of his property and would thus serve to vitiate the right to residential privacy. For example, the resident who prominently decorates his windows and front yard with posters promoting the qualifications of one candidate for political office might be said to "invite" a counter-demonstration for supporters of an opposing candidate. Similarly, a county chairman who uses his home to meet with his district captains and to discuss some controversial issue might well expect that those who are deeply concerned about the decision the chairman will ultimately reach would want to make their views known by demonstrating outside his home during the meeting. And, with particular regard to the facts of the instant case, it borders on the frivolous to suggest that a resident who invites a repairman into his home to fix his television set has "waived" his right to privacy with respect to a dispute between the repairman and the local union,15 but that the official who has voluntarily chosen to enter the public arena has not likewise "waived" his right to privacy with respect to a challenge to his views on significant issues of social and economic policy.16
IV
24
We therefore conclude that appellant has not successfully distinguished Mosley. We are not to be understood to imply, however, that residential picketing is beyond the reach of uniform and nondiscriminatory regulation. For the right to communicate is not limitless. E. g., Cox v. Louisiana, 379 U.S. 536, 554-555, 85 S.Ct. 453, 464, 13 L.Ed.2d 471 (1965); Cox v. Louisiana, 379 U.S. 559, 563-564, 85 S.Ct. 476, 480, 13 L.Ed.2d 487 (1965).17 Even peaceful picketing may be prohibited when it interferes with the operation of vital governmental facilities, see, e. g., ibid. (picketing or parading prohibited near courthouses); Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966) (demonstrations prohibited on jailhouse grounds), or when it is directed toward an illegal purpose, see, e. g., Teamsters v. Vogt, Inc., 354 U.S. 284, 77 S.Ct. 1166, 1 L.Ed.2d 1347 (1957) (prohibition of picketing directed toward achieving "union shop" in violation of state law).
25
Moreover, we have often declared that "[a] state or municipality may protect individual privacy by enacting reasonable time, place, and manner regulations applicable to all speech irrespective of content." Erznoznik v. City of Jacksonville, 422 U.S. 205, 209, 95 S.Ct. 2268, 2272, 45 L.Ed.2d 125 (1975) (emphasis supplied). See, e. g., Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941); Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949); Poulos v. New Hampshire, 345 U.S. 395, 73 S.Ct. 760, 97 L.Ed. 1105 (1953); Cox v. Louisiana, 379 U.S., at 554, 85 S.Ct., at 464; Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). In sum, "no mandate in our Constitution leaves States and governmental units powerless to pass laws to protect the public from the kind of boisterous and threatening conduct that disturbs the tranquility of spots selected by the people either for homes, wherein they can escape the hurly-burly of the outside business and political world, or for public and other buildings that require peace and quiet to carry out their functions, such as courts, libraries, schools, and hospitals." Gregory v. Chicago, 394 U.S. 111, 118, 89 S.Ct. 946, 950, 22 L.Ed.2d 134 (1969) (Black, J., concurring).
26
Preserving the sanctity of the home, the one retreat to which men and women can repair to escape from the tribulations of their daily pursuits, is surely an important value. Our decisions reflect no lack of solicitude for the right of an individual "to be let alone" in the privacy of the home, "sometimes the last citadel of the tired, the weary, and the sick." Id., at 125, 89 S.Ct., at 953 (Black, J., concurring). See generally Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969); Rowan v. United States Post Office Dept., 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970); FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978); Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). The State's interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society. " 'The crucial question, however, is whether [the Illinois' statute] advances that objective in a manner consistent with the command of the Equal Protection Clause.' Reed v. Reed, 404 U.S. [71], 76 [92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971)]." Police Department of Chicago v. Mosley, 408 U.S., at 99, 92 S.Ct., at 2292. And because the statute discriminates among pickets based on the subject matter of their expression, the answer must be "No."
The judgment of the Court of Appeals is
27
Affirmed.
28
Mr. Justice STEWART, concurring.
29
The opinion of the Court in this case, as did the Court's opinion in Police Department of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212, invokes the Equal Protection Clause of the Fourteenth Amendment as the basis of decision. But what was actually at stake in Mosley, and is at stake here, is the basic meaning of the constitutional protection of free speech:
30
"[W]hile a municipality may constitutionally impose reasonable time, place, and manner regulations on the use of its streets and sidewalks for First Amendment purposes, and may even forbid altogether such use of some of its facilities; what a municipality may not do under the First and Fourteenth Amendments is to discriminate in the regulation of expression on the basis of the content of that expression." Hudgens v. NLRB, 424 U.S. 507, 520, 96 S.Ct. 1029, 1036, 47 L.Ed.2d 196. (Citations omitted.)
31
It is upon this understanding that I join the opinion and judgment of the Court.
32
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE and Mr. Justice BLACKMUN join, dissenting.
33
I address the merits of the Court's constitutional decision first, although I also seriously question the appellees' standing to assert the grounds for invalidity on which the Court apparently relies.1 One who reads the opinion of the Court is probably left with the impression that Illinois has enacted a residential picketing statute which reads: "All residential picketing, except for labor picketing, is prohibited." Such an impression is entirely understandable; indeed, it is created by the Court's own phrasing throughout the opinion. The Court asserts that Illinois, "in exempting from its general prohibition only the 'peaceful picketing of a place of employment involved in a labor dispute,' . . . discriminates between lawful and unlawful CONDUCT BASED UPON . . . CONTENT. . . . " (emphasis added.) ante, at 460. It states that "information about labor disputes may be freely disseminated, but discussion of all other issues is restricted." Ante, at 461. The Court finds that the permissibility of residential picketing in Illinois is dependent "solely on the nature of the message being conveyed." Ibid. (Emphasis added.) And again the Court states that "Illinois has flatly prohibited all nonlabor picketing" while the statute is said to "broadly permi[t] all peaceful labor picketing." Ante, at 462, 465.
34
Dissenting opinions are more likely than not to quarrel with the Court's exposition of the law, but my initial quarrel is with the accuracy of the Court's paraphrasing and selective quotation from the Illinois statute. The complete language of the statute, set out accurately in the text of the Court's opinion, reveals a legislative scheme quite different from that described by the Court in its narrative paraphrasing of the enactment.2
35
The statute provides that residential picketing is prohibited, but goes on to exempt four categories of residences from this general ban. First, if the residence is used as a "place of business" all peaceful picketing is allowed. Second, if the residence is being used to "hol[d] a meeting or assembly on premises commonly used to discuss subjects of general public interest" all peaceful picketing is allowed. Third, if the residence is also used as a "place of employment" which is involved in a labor dispute, labor-related picketing is allowed. Finally, the statute provides that a resident is entitled to picket his own home. Thus it is clear that information about labor disputes may not be "freely disseminated" since labor picketing is restricted to a narrow category of residences. And Illinois has not "flatly prohibited all nonlabor picketing" since it allows nonlabor picketing at residences used as a place of business, residences used as public meeting places, and at an individual's own residence.
36
Only through this mischaracterization of the Illinois statute may the Court attempt to fit this case into the Mosley rule prohibiting regulation on the basis of "content alone." (Emphasis added.) Police Department of Chicago v. Mosley, 408 U.S. 92, 96, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212 (1972). For in Mosley, the sole determinant of an individual's right to picket near a school was the content of the speech. As the Court today aptly observes, such a regulation warrants exacting scrutiny. In contrast, the principal determinant of a person's right to picket a residence in Illinois is not content, as the Court suggests, but rather the character of the residence sought to be picketed. Content is relevant only in one of the categories established by the legislature.
37
The cases appropriate to the analysis therefore are those establishing the limits on a State's authority to impose time, place, and manner restrictions on speech activities. Under this rubric, even taking into account the limited content distinction made by the statute, Illinois has readily satisfied its constitutional obligation to draft statutes in conformity with First Amendment and equal protection principles. In fact, the very statute which the Court today cavalierly invalidates has been hailed by commentators as "an excellent model" of legislation achieving a delicate balance among rights to privacy, free expression, and equal protection. See Kamin, Residential Picketing and the First Amendment, 61 Nw.U.L.Rev. 177, 207 (1966); Comment, 34 U.Chi.L.Rev. 106, 139 (1966). The state legislators of the Nation will undoubtedly greet today's decision with nothing less than exasperation and befuddlement. Time after time, the States have been assured that they may properly promote residential privacy even though free expression must be reduced. To be sure, our decisions have adopted a virtual laundry list of "Don'ts" that must be adhered to in the process. Heading up that list of course is the rule that legislatures must curtail free expression through the "least restrictive means" consistent with the accomplishment of their purpose, and they must avoid standards which are either vague or capable of discretionary application. But somewhere, the Court says in these cases (with a reassuring pat on the head to the legislatures), there is the constitutional pot of gold at the end of the rainbow of litigation.
38
Here, where Illinois has drafted such a statute, avoiding an outright ban on all residential picketing, avoiding reliance on any vague or discretionary standards, and permitting categories of permissible picketing activity at residences where the State has determined the resident's own actions have substantially reduced his interest in privacy, the Court in response confronts the State with the "Catch-22" that the less-restrictive categories are constitutionally infirm under principles of equal protection. Under the Court's approach today, the State would fare better by adopting more restrictive means, a judicial incentive I had thought this Court would hesitate to afford. Either that, or uniform restrictions will be found invalid under the First Amendment and categorical exceptions found invalid under the Equal Protection Clause, with the result that speech and only speech will be entitled to protection. This can only mean that the hymns of praise in prior opinions celebrating carefully drawn statutes are no more than sympathetic clucking, and in fact the State is damned if it does and damned if it doesn't.
39
Equally troublesome is the methodology by which these difficult questions of constitutional law have been reached. The Court today figuratively walked a country mile to find a potential unconstitutional application of this statute, and it is primarily on that potential which the total nullification of this statute rests. Just because it is a statute which is in issue does not relieve this Court of its duty to decide only the concrete controversy presented by the case. As discussed below, I think it quite clear that the statute does not prohibit the appellees in this action from engaging in conduct which must be protected under the First Amendment, the state interests would not be satisfied by a statute employing less restrictive means, the statute is not facially overbroad by prohibiting conduct which clearly must be permitted under the First Amendment, and the appellees have not themselves been denied equal protection because they do not seek to picket under circumstances which are indistinguishable from the circumstances where picketing is allowed. Only by speculating that there might be an individual or group that will be denied equal protection by the statute can the Court invalidate it. This is speculation this Court is not permitted to indulge in when nullifying the acts of a legislative branch.
40
* The Illinois statute in issue simply does not contravene the First Amendment.
A.
41
Repeatedly, this Court has upheld state authority to restrict the time, place, and manner of speech, if those regulations "protect a substantial government interest unrelated to the suppression of free expression" and are narrowly tailored, limiting the restrictions to those reasonably necessary to protect the substantial governmental interest. Brown v. Glines, 444 U.S. 348, 354, 100 S.Ct. 594, 599, 62 L.Ed.2d 540 (1980); Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980). This standard of measuring permissible state regulation, often echoed in this Court's opinions, is readily satisfied in this case.
42
The interest which the State here seeks to protect is residential privacy, as clearly demonstrated by the legislature's statement of purpose. Ante, at 464, n. 8. When a residence is used for exclusively residential purposes, the State recognizes no exception to the ban on picketing. As in this case, it has not been asserted that Mayor Bilandic's home fell into any category other than a residence used solely for residential purposes. The appellees nevertheless assert that their interest in publicizing their opinions on the issue of school integration outweigh the State's asserted interest in protecting residential privacy.
43
Our cases simply do not support such a construction of the First Amendment. In Kovacs v. Cooper, 336 U.S. 77, 81, 69 S.Ct. 448, 450, 93 L.Ed. 513 (1949), the state interest in preventing interference with the "social activities in which [city residents] are engaged or the quiet that they would like to enjoy" warranted the prohibition of sound trucks on residential streets. In Rowan v. United States Post Office Dept., 397 U.S. 728, 736, 90 S.Ct. 1484, 1490, 25 L.Ed.2d 736 (1970), this Court held that "[t]he right of every person 'to be let alone' must be placed in the scales with the right of others to communicate." The Court recognized a "very basic right to be free from sights, sounds, and tangible matter we do not want" in the home. Ibid. These interests were sufficient to justify a resident's ability to absolutely preclude delivery of unwanted mail to his address. Similarly, in FCC v. Pacifica Foundation, 438 U.S. 726, 748, 98 S.Ct. 3026, 3040, 57 L.Ed.2d 1073 (1978), the Court found that an offensive broadcast could be absolutely banned from the airwaves because it "confronts the citizen, not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder." Under these authorities, the appellees have no fundamental First Amendment right to picket in front of a residence.
B
44
Nor can it be said that the state interest could be fully protected by a less restrictive statute. An absolute ban on picketing at residences used solely for residential purposes permissibly furthers the state interest in protecting residential privacy. The State could certainly conclude that the presence of even a solitary picket in front of a residence is an intolerable intrusion on residential privacy. The Court today suggests that some picketing activities would have but a "negligible impact on privacy interests," intimating that Illinois could satisfy its interests through more limited restrictions on picketing, such as regulating the hours and numbers of pickets. Ante, at 469. But I find nothing in the cases of this Court to suggest that a State may not permissibly conclude that even one individual camped in front of the home is unacceptable. It is the State, and not this Court, which legislates to prohibit evils which its citizens find unescapable, subject only to the limitations of the United States Constitution. Unlike sound trucks, it is not just the distraction of the noise which is in issue—it is the very presence of an unwelcome visitor at the home. As a Wisconsin court described in Wauwatosa v. King, 49 Wis.2d 398, 411-412, 182 N.W.2d 530, 537 (1971):
45
"To those inside . . . the home becomes something less than a home when and WHILE THE PICKETING . . . CONTINUE[S]. . . . [the] tensions and pressures may be psychological not physical, but they are not, for that reason less inimical to family privacy and truly domestic tranquility."
46
Whether noisy or silent, alone or accompanied by others, whether on the streets or on the sidewalk, I think that there are few of us that would feel comfortable knowing that a stranger lurks outside our home. The State's prohibition of this conduct is even easier to justify than regulations previously upheld by this Court limiting mailings and broadcasts into the home. In Rowan, as in Pacifica, the resident at least could have short-circuited the annoyance by throwing away the mail or turning off the radio. Even that alternative redress, however, was held not sufficient to preclude the legislative authorities from prohibiting the initial intrusion. Where, as here, the resident has no recourse of escape whatsoever, the State may quite justifiably conclude that the protection afforded by a statute such as this seems even more necessary.
C
47
Thus the appellees cannot secure the invalidation of this statute by urging that they seek to engage in expression which must be protected by the First Amendment or by demonstrating that a statute less restrictive of picketing would satisfy the state interest. On occasion this Court has, of course, permitted invalidation of a statute even though the plaintiff's conduct was not protected if the statute clearly "sweeps within its prohibitions what may not be punished under the First . . . Amendmen[t]." Grayned v. City of Rockford, 408 U.S. 104, 114-115, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222 (1972).
48
But this statute satisfies even the overbreadth challenge. It is arguable that when a resident has voluntarily used his home for nonresidential uses in a way which reduces the resident's privacy interest, and the person seeking to picket the home has no alternative forum for effectively airing the grievance because it relates to this nonresidential use of the home, some form of residential picketing might be protected under the First Amendment. The courts which have found general prohibitions on residential picketing to be permissible under the First Amendment have considered the question more difficult under such circumstances. For example, in Walinsky v. Kennedy, 94 Misc.2d 121, 404 N.Y.S.2d 491 (1977), the New York court enjoined all residential picketing but concluded that
49
"[A] more difficult question would be raised if the [resident's] office were in his home and there was thus no other suitable forum wherein he could be confronted or the picket's viewpoints could be heard." Id., at 132, n. 15, 404 N.Y.S.2d, at 498, n. 15.
50
Similarly, in Hibbs v. Neighborhood Organization to Rejuvenate Tenant Housing, 433 Pa. 578, 580, 252 A.2d 622, 623-624 (1969), the court found that a slumlord could be picketed at his home, but only because he effectively operated his business out of his residence and no other alternative situs was available to air the dispute. This Court has intimated a similar concern in dicta in Senn v. Tile Layers, 301 U.S. 468, 57 S.Ct. 857, 81 L.Ed. 1229 (1937). There the right of laborers under a state statute to picket the residence of an employer who operated his business in his home was upheld, and the Court went on to say that "[m]embers of a union might, without special statutory authorization by a state, make known the facts of a labor dispute, for freedom of speech is guaranteed by the Federal Constitution." Id., at 478, 57 S.Ct., at 862.
51
I would by no means say without more that the State would have to permit such residential picketing, but such circumstances would, as the courts have found, present the greatest potential for a complaint of overbreadth. The State in the present case has forestalled any such challenge, however, by exempting such groups from the ban on residential picketing. Whether required by the Constitution or not, such exemptions are the concern of this Court only if they violate the Constitution. This Court in fact upheld enforcement of a statute permitting similar residential picketing in Senn v. Tile Layers, supra. Since the State has a legitimate interest in protecting speech activity and in particular, providing a forum where no other is reasonably available, excluding residences used for nonresidential purposes from the general prohibition on residential picketing is an entirely rational legislative policy, even if not mandated by the First Amendment. Thus no overbreadth challenge should succeed here.
II
52
Even though the statute does not prohibit conduct which is protected, the statute must also survive the hurdle of the Equal Protection Clause of the Fourteenth Amendment. By choosing a less-restrictive-means approach and excluding pickets at residences used for nonresidential purposes from the general prohibition, the Court concludes the State has violated equal protection. I do not think this result can be sustained because the appellees have not been denied equal protection and that is the only question this Court may properly review.
A.
53
Police Department of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972), states a standard by which equal protection requirements in the First Amendment context must be measured. The Court in that case identified the "crucial question" as "whether there is an appropriate governmental interest suitably furthered by the differential treatment" of the appellees' picketing. Id., at 95, 92 S.Ct., at 2290. The interest asserted by the city was the prevention of disruption in the schools. Thus the statute, to satisfy Mosley, should have prohibited all picketing which could reasonably be categorized as disruptive. Yet the ordinance permitted labor picketing while prohibiting picketing relating to race discrimination (and all other nonlabor topics), even though both forms of picketing were equally disruptive.
54
Thus the question is whether the State has a substantial interest in differentiating between the picketing which appellees seek to conduct and the picketing which is permitted under the statute. For equal protection does not require that "things which are different in fact . . . be treated in law as though they were the same." Tigner v. Texas, 310 U.S. 141, 147, 60 S.Ct. 879, 882, 84 L.Ed. 1124 (1940). Appellees seek to picket a residence to voice their views on school integration. There has been no showing that the resident has used his home for nonresidential purposes, or that no other forum is available where appellees may publicize their dispute.3 All pickets who fall within this category, no matter what the content of their expression may be, are prohibited from residential picketing. School integration, public housing, labor disputes, and the recognition of Red China are treated alike in this respect. The State has differentiated only when the residence has been used as a place of business, a place for public meetings, or a place of employment, or is occupied by the picket himself. In each of these categories, the State has determined that the resident has waived some measure of privacy through voluntary use of his home for these purposes.
55
Our cases clearly support a State's authority to design the permissibility of picketing in relation to the use to which a particular building is put. As stated in Grayned v. City of Rockford, 408 U.S., at 116, 92 S.Ct., at 2303: "The nature of a place, 'the pattern of its normal activities, dictate the kinds of regulations of time, place, and manner that are reasonable'. . . . The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time." The fact that all areas could be classified as school grounds, however, would not mean that all school grounds had to be subject to the same restrictions. As the Court in Grayned noted: "Different considerations, of course, apply in different circumstances. For example, restrictions appropriate to a single-building high school during class hours would be inappropriate in many open areas on a college campus . . . ." Id., at 120, n. 45, 92 S.Ct., at 2308, n. 45. And just as surely the State may differentiate between residences used exclusively for residential purposes and those which are not. It is far from nonsensical or arbitrary for a legislature to conclude that privacy interests are reduced when the residence is used for these other purposes. In another First Amendment case, Paris Adult Theatre I v. Slaton, 413 U.S. 49, 61, 93 S.Ct. 2628, 2637, 37 L.Ed.2d 446 (1973), we stated: "From the beginning of civilized societies, legislators and judges have acted on various unprovable assumptions. Such assumptions underlie much lawful state regulation of commercial and business affairs."
56
Despite the state interest in treating residences which are used for nonresidential purposes differently from residences which are not, the Court finds that the categories are improper because there is an element of content regulation in the statutory scheme. While content is clearly not the principal focus of the statutory categories, since content is only relevant in the one subcategory of "places of employment," the content restriction is quite clearly related to a legitimate state purpose. When an individual hires an employee to perform services in his home, it would not seem reasonable to conclude that the resident had so greatly compromised his residential status so as to permit picketing on any subject. The State may quite properly decide that the balance is better struck by the rule embodied in this statute which recognizes a more limited waiver of privacy interests by allowing only picketing relating to any labor dispute involving the resident as employer which has arisen out of the resident's choice of using his residence as a place of employment.
57
Content regulation, when closely related to a permissible state purpose, is clearly permitted. Surely the Court would not prohibit a city from preventing an individual from interrupting an orderly city council discussion of public housing to orate on the vices or virtues of nuclear power. Yet this is content regulation. More accurately, it is restriction of topics to those appropriate to the forum. In this case, the forum is a confined one—residences used as a place of employment—and clearly labor picketing in that forum is the relevant topic.
58
This differentiation is supported by Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965). There the Court upheld a state prohibition on picketing in front of a government building which was used as a courthouse if the content of the picketing could be presumed to demonstrate an intent to influence the judiciary. In Cox then, because of the nature of the state interest invoked, both the content of the picketing as well as the use of the building were considered determinative. The Court noted that if a mayor had an office in the courthouse and individuals were picketing on a topic relevant to the mayor, rather than the judiciary, then the speech would be permissible. Thus use and content, or as Mr. Justice Stevens stated for the plurality in Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), "content and context" are important determinants. As in Cox, a State need not treat residences which are used for different purposes in the same fashion, and when reasonably related to the state purpose, distinctions in content are permissible. See also FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978); Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975); Young v. American Mini Theatres, supra.
59
The question, therefore, is not whether there is some differentiation on the basis of content, but whether the appellees' prohibited conduct can be said to share the same characteristics of the conduct which is permitted. The Court devotes less than one page to what purports to be an equal protection analysis of this determinative question. In fact, only one sentence relates to the differences between the litigants in this case and the permitted picketing:
60
"And, with particular regard to the facts of the instant case, it borders on the frivolous to suggest that a resident who invites a repairman into his home to fix his television set has 'waived' his right to privacy with respect to a dispute between the repairman and the local union, but that the official who has voluntarily chosen to enter the public arena has not likewise 'waived' his right to privacy with respect to a challenge to his views on significant issues of social and economic policy." Ante, at 469.
61
First, it is unclear whether the Illinois statute would be construed to permit the type of labor picketing described in the Court's example where the dispute is not between the employer and the employee.4 Second, the fact that an official has chosen to enter the public arena has no bearing on the question of how he uses his residence—the only question of relevance to the Illinois Legislature. Further, just as the State had an interest in Cox in preventing picketing which might tend to improperly influence the judicial process, the State certainly has an equal interest in preventing residential picketing of their officials where the result might be influence through the harassment of the official's family. This is not the type of influence that a democratic society has traditionally held high as a part of the Bill of Rights. Finally, at least in the case of the repairman, the home in fact is the situs of the publicized dispute, while the Mayor's home is not. The appellees do not seek to picket the situs of the dispute; they do not seek to picket the home of an individual who has used his residence for nonresidential purposes relevant to that dispute; they have not established the unavailability of any alternative forum. These are the characteristics of residential picketing which the State has allowed. The appellees have thereby failed to establish that they seek to picket under circumstances rationally indistinguishable from the circumstances under which the State has permitted picketing. They have therefore not been denied equal protection.
B
62
The Court makes little effort to establish that the appellees seek to picket under circumstances which are indistinguishable from the picketing permitted under the statute. Instead, it places the fulcrum of its equal protection argument on the fact that there might well be other actions of a homeowner which would constitute a "nonresidential" use of his property, warranting additional statutory exceptions. While I am not persuaded that the Court has identified an example of another picket who should likewise be permitted to picket under the justification forwarded by the State,5 the flaws in the analysis are more fundamental. First, the fact that there may be someone other than the appellees who has a right to be treated similarly to those permitted to picket is irrelevant to the question of constitutional validity in this case. The Court apparently believes it has a license to import the more relaxed standing requirements of First Amendment overbreadth into equal protection challenges. This, however, is not and should not be the law. Precedent supports no such approach and the rationale underlying the expanded standing principles in the overbreadth context are inapposite in the equal protection realm.
63
As we stated in Grayned, standing to challenge an ordinance which has been constitutionally applied to the plaintiff is permitted because otherwise the statute, if allowed to stand until a later challenge, will "deter privileged activity." 408 U.S., at 114, 92 S.Ct., at 2302. In the equal protection context, however, we are not concerned that conduct which must be permitted under the First Amendment will be prohibited, but only that conduct which could be and is properly prohibited be permitted if indistinguishable from other permitted conduct. The impact on speech is therefore a minimal one, while the jurisprudential considerations for declining to consider alternative applications loom large.
64
In Barrows v. Jackson, 346 U.S. 249, 256, 73 S.Ct. 1031, 1035, 97 L.Ed. 1586 (1953), an equal protection case, the Court identified the ordinary rule that, "even though a party will suffer a direct substantial injury from application of a statute, he cannot challenge its constitutionality unless he can show that he is within the class whose constitutional rights are allegedly infringed." The Court justified the rule, stating:
65
"One reason for this ruling is that the state court, when actually faced with the question, might narrowly construe the statute to obliterate the objectionable feature, or it might declare the unconstitutional provision separable. New York ex rel. Hatch v. Reardon, [204 U.S. 152], at 160-161 [27 S.Ct. 188, at 190, 51 L.Ed. 415]. It would indeed be undesirable for this Court to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation. Nor are we so ready to frustrate the expressed will of Congress or that of the state legislatures. Cf. Southern Pacific Co. v. Gallagher, 306 U.S. 167, 172 [59 S.Ct. 389, 391, 83 L.Ed. 586]." Id., at 256-257, 73 S.Ct., at 1035.
66
More recently in Craig v. Boren, 429 U.S. 190, 193, 97 S.Ct. 451, 455, 50 L.Ed.2d 397 (1976), we emphasized that standing is "designed to minimize unwarranted intervention into controversies where the applicable constitutional questions are ill-defined and speculative." Sound principles of standing simply do not permit this Court to entertain any claim by the appellees in this action that someone other than themselves might be denied equal protection by the operation of the statute. See also Young v. American Mini Theatres, Inc., 427 U.S., at 58-59, 60, 96 S.Ct., at 2446, 2447; Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). This consideration is particularly compelling in this case since the appellees had an opportunity to seek a limiting construction of the statute by the Illinois courts when originally prosecuted for their picketing, but chose to plead guilty instead, thereby denying the one court system that could authoritatively limit the statute the opportunity to do so.
67
Even if this Court could properly take cognizance of the fact that some identifiable person not clearly encompassed in the statutory categories permitting picketing should also be allowed to picket, under equal protection standards, that fact alone would not justify wholesale invalidation of the entire statutory framework. In Califano v. Jobst, 434 U.S. 47, 53-55, 98 S.Ct. 95, 99-100, 54 L.Ed.2d 228 (1977), this Court emphasized that sound equal protection analysis must uphold general rules "even though such rules inevitably produce seemingly arbitrary consequences in some individual cases," and that "The broad legislative classification must be judged by reference to characteristics typical of the affected classes rather than by focusing on selected, atypical examples." Any other standard of review, such as that employed by the Court today, will inevitably lead to invalidation, for this or any other court will always be able to conceive of a hypothetical not properly accounted for by the statutory categories. The state courts, if given an opportunity, have the tools to correct such minor deficiencies. This Court has soundly permitted state legislatures far more room for error in the drafting of its categories than what the Court today allows. As it stated in Ginsberg v. New York, 390 U.S. 629, 642-643, 88 S.Ct. 1274, 1282, 20 L.Ed.2d 195 (1968), "[w]e do not demand of legislatures 'scientifically certain criteria of legislation,' Noble State Bank v. Haskell, 219 U.S. 104, 110 [31 S.Ct. 186, 187, 55 L.Ed. 112]." And more recently, we recognized a compelling need to allow to local government "a reasonable opportunity to experiment with solutions to admittedly serious problems." Young v. American Mini Theatres, supra, at 71, 96 S.Ct., at 2453.
68
I can conclude this dissent with no more apt words than those of Mr. Justice Frankfurter in his concurring opinion in Kovacs v. Cooper, 336 U.S., at 97, 69 S.Ct., at 458: "[I]t is not for us to supervise the limits the legislature may impose in safeguarding the steadily narrowing opportunities for serenity and reflection."
1
A violation of § 21.1-2 is a "Class B" misdemeanor punishable by a fine of up to $500 and imprisonment for not more than six months. See Ill.Rev.Stat., ch. 38, §§ 21.1-3, 1005-8-3, 1005-9-1 (1977).
At least four other States have enacted antiresidential picketing laws similar in form to this statute. See Ark.Stat.Ann. §§ 41-2966 to 41-2968 (1977); Conn.Gen.Stat. § 31-120 (1979); Haw.Rev.Stat. § 379A-1 (1976); Md.Ann.Code, Art. 27, § 580A (1976). Connecticut's law has been construed to permit all picketing in a residential area except for labor picketing that is not conducted at the situs of a labor dispute. State v. Anonymous, 6 Conn.Cir. 372, 274 A.2d 897 (App.Div.1970); DeGregory v. Giesing, 427 F.Supp. 910 (D.C.Conn.1977) (three-judge court). The Maryland statute was declared unconstitutional by the Maryland Court of Appeals in State v. Schuller, 280 Md. 305, 372 A.2d 1076 (1977). See also People Acting Through Community Effort v. Doorley, 468 F.2d 1143 (CA1 1972) (invalidating municipal ordinance virtually identical to the Illinois residential picketing statute); but see Wauwatosa v. King, 49 Wis.2d 398, 182 N.W.2d 530 (1971) (upholding validity of similar ordinance).
2
Because the Court of Appeals concluded that the labor dispute exception was not severable from the remainder of the statute, it invalidated the enactment in its entirety. Cf. State v. Schuller, supra, 280 Md., at 318-321, 372 A.2d, at 1083-1084. The court therefore found it unnecessary to consider the constitutionality under the First Amendment of a statute that prohibited all residential picketing. Brown v. Scott, 602 F.2d 791, 795, n. 6 (7th Cir., 1979). Because we find the present statute defective on equal protection principles, we likewise do not consider whether a statute barring all residential picketing regardless of its subject matter would violate the First and Fourteenth Amendments.
3
Chicago Municipal Code, ch. 193-1(i) (1968), provided:
"A person commits disorderly conduct when he knowingly:
* * * * *
"(i) Pickets or demonstrates on a public way within 150 feet of any primary or secondary school building while the school is in session and one-half hour before the school is in session and one-half hour after the school session has been concluded, provided that this subsection does not prohibit the peaceful picketing of any school involved in a labor dispute. . . ." (Emphasis supplied.)
4
The Illinois residential picketing statute apparently has not been construed by the state courts. Throughout this litigation, however, all parties and the courts below have interpreted the statutory exception for "peaceful picketing of a place of employment involved in a labor dispute" as embodying the additional requirement that the subject of the picketing be related to the ongoing labor dispute. Police Department of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972), was premised upon an identical construction. See id., at 94, n. 2, 92 S.Ct., at 2289, n. 2, (statutory exemption for "the peaceful picketing of any school involved in a labor dispute" applies only to labor picketing of a school involved in such a dispute).
5
The District Court read the labor exception in this statute as creating two separate classifications: one between "places of employment" and all other "residences," and a second between "places of employment involved in a labor dispute" and "places of employment not involved in a labor dispute." The court held that the first classification was a permissible content-neutral regulation of the location of picketing. And although recognizing that the second distinction may well be based on the subject matter of the demonstration, see n. 4, supra, the court held that appellees lacked standing to challenge it because they were not seeking to picket "a place of employment," and thus would not have benefitted from a determination that the second classification was unconstitutional. Brown v. Scott, 462 F.Supp. 518, 534-535 (1978).
The Court of Appeals, in reversing the District Court, refused to adopt the lower court's interpretation of the statute. Rather, it read the "place of employment" exception to divide "residences and dwellings" into but two categories—those at which picketing is lawful (i. e., all places of employment involved in labor disputes) and those at which it is unlawful (i. e., all other residences and dwellings). Brown v. Scott, 602 F.2d, at 793-794. We accept the construction of the Court of Appeals. Appellees sought to picket at a residence and were denied permission to do so. They clearly have standing to attack the statutory classification on which that denial was premised. Indeed, appellant does not challenge the Court of Appeals' interpretation of the statute, Tr. of Oral Arg. 13, and he concedes that this restriction is content-based, id., at 21.
6
It is, of course, no answer to assert that the Illinois statute does not discriminate on the basis of the speaker's viewpoint, but only on the basis of the subject matter of his message. "The First Amendment's hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic." Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530, 537, 100 S.Ct. 2326, 2333, 65 L.Ed.2d 319.
7
Mosley was neither the Court's first nor its last pronouncement that the First and Fourteenth Amendments forbid discrimination in the regulation of expression on the basis of the content of that expression. See Cox v. Louisiana, 379 U.S. 536, 581, 85 S.Ct. 453, 470, 13 L.Ed.2d 471 (1965) (Black, J., concurring):
"Standing, patrolling, or marching back and forth on streets is conduct, not speech, and as conduct can be regulated or prohibited. But by specifically permitting picketing for the publication of labor union views, Louisiana is attempting to pick and choose among the views it is willing to have discussed on its streets. It thus is trying to prescribe by law what matters of public interest people whom it allows to assemble on its streets may and may not discuss. This seems to me to be censorship in a most odious form, unconstitutional under the First and Fourteenth Amendments. And to deny this appellant and his group use of the streets because of their views against racial discrimination, while allowing other groups to use the streets to voice opinions on other subjects, also amounts, I think, to an invidious discrimination forbidden by the Equal Protection Clause of the Fourteenth Amendment."
See also Erznoznik v. City of Jacksonville, 422 U.S. 205, 209, 215, 95 S.Ct. 2268, 2272, 2275, 45 L.Ed.2d 125 (1975); Hudgens v. NLRB, 424 U.S. 507, 520, 96 S.Ct. 1029, 1036, 47 L.Ed.2d 196 (1976); Madison Joint School District No. 8 v. Wisconsin Employment Relations Comm'n, 429 U.S. 167, 175-176, 97 S.Ct. 421, 426, 50 L.Ed.2d 376 (1976); First National Bank of Boston v. Bellotti, 435 U.S. 765, 784-785, 98 S.Ct. 1407, 1420, 55 L.Ed.2d 707 (1978); Consolidated Edison Co. v. Public Service Comm'n, 447 U.S., at 536-538, 100 S.Ct., at 2332-2333.
8
The importance which the State attaches to the interest in maintaining residential privacy is reflected in the Illinois Legislature's finding accompanying the residential picketing statute:
"The Legislature finds and declares that men in a free society have the right to quiet enjoyment of their homes; that the stability of community and family life cannot be maintained unless the right to privacy and a sense of security and peace in the home are respected and encouraged; that residential picketing, however just the cause inspiring it, disrupts home, family and communal life; that residential picketing is inappropriate in our society, where the jealously guarded rights of free speech and assembly have always been associated with respect for the rights of others. For these reasons the Legislature finds and declares this Article to be necessary." Ill.Rev.Stat., ch. 38, § 21.1-1 (1977).
9
Cf. Kalven, The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup.Ct.Rev. 1, 29 (quoted in Young v. American Mini Theatres, Inc., 427 U.S. 50, 67, n. 27, 96 S.Ct. 2440, 2451, n. 27, 49 L.Ed.2d 310 (1976) (opinion of STEVENS, J.)): "If some groups are exempted from a prohibition on parades and pickets, the rationale for regulation is fatally impeached." See also Police Department of Chicago v. Mosley, 408 U.S., at 100, 92 S.Ct., at 2292; Villiage of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 638-639, 100 S.Ct. 826, 837, 63 L.Ed.2d 73 (1980).
10
See generally 29 U.S.C. § 141 et seq.; Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940); AFL v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855 (1941). Appellant does not go so far as to suggest that the National Labor Relations Act preempts the State from enacting a law prohibiting the picketing of residences involved in labor disputes. Such an argument has dubious merit. See Machinists v. Wisconsin Employment Relations Comm'n, 427 U.S. 132, 136, and n. 2, 96 S.Ct. 2548, 2551, and n. 2, 49 L.Ed.2d 396 (1976).
11
See Ill.Rev.Stat., ch. 48, § 2a (1977), which provides:
"No restraining order or injunction shall be granted by any court of this State . . . in any case involving or growing out of a dispute concerning terms or conditions of employment, enjoining or restraining any person or persons, either singly or in concert, . . . from peaceably and without threats or intimidation being upon any public street, or thoroughfare or highway for the purpose of obtaining or communicating information, or to peaceably and without threats or intimidation persuade any person or persons to work or to abstain from working, or to employ or to peaceably and without threats or intimidation cease to employ any party to a labor dispute, or to recommend, advise, or persuade others so to do."
12
We note that the statute's labor dispute exemption is overbroad in this respect, for it not only protects the rights of the employee to picket the residence of his employer, but it also permits third parties to picket both the employer and his employee, even when there is no dispute between those individuals. As appellant's counsel explained at oral argument: "[T]he labor dispute could exist even if the employee wasn't part of the dispute. For example, if you have a condominium that employs non-union janitors and the non-union janitor is perfectly happy to be there, conceivably union janitors could engage in picketing, very much like a traditional labor law case." Tr. of Oral Arg. 14.
13
An alternative justification for the statute—one not pressed by appellant—is that it is intended to protect privacy in the home, but only insofar as that objective can be accomplished without prohibiting those forms of speech that are peculiarly appropriate to residential neighborhoods and cannot effectively be exercised elsewhere. Since labor picketing arising out of disputes occurring in residential neighborhoods can only be carried out in those neighborhoods, the argument would continue, it is permitted under the statute while other forms of picketing, for which suitable alternative forums will generally exist, are barred.
Even assuming that a content-based distinction might in some cases be permissible on these grounds, but see Schneider v. State, 308 U.S. 147, 163 (1939) ("one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place"), this is not such a case because the Illinois statute is seriously underinclusive in this respect. It singles out for special protection only one of the many sorts of picketing which must be carried out in residential neighborhoods or not at all. Protests arising out of landlord-tenant relationships, zoning disputes, and historic preservation issues are just some of the many demonstrations that bear a direct relation to residential neighborhoods. See generally Comment, Picketers at the Doorstep, 9 Harv.Civ.Rights Civ.Lib.L.Rev. 95, 101-102, 106 (1974). Indeed, appellees themselves assert that they want to engage in residential picketing because it is the only effective means they have of communicating their concern about the issue of busing to the desired neighborhood audience. Yet the Illinois statute bars all of these groups from picketing in residential areas while those wishing to picket at the site of a labor dispute are permitted to do so.
14
See supra, at 461-462.
15
See n. 12, supra.
16
Cf. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).
17
Mr. Justice Goldberg's opinion for the Court in the first Cox case stated: "The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy." 379 U.S., at 554, 85 S.Ct., at 464.
1
The Court premises its finding that the appellees have standing to challenge the statute at least in part on the basis of the appellant's "concessions" at oral argument that the State was not persisting in its challenge to appellees' standing in this Court. See ante, at 461, n. 5. But we have said that "[W]e are loath to attach conclusive weight to the relatively spontaneous responses of counsel to equally spontaneous questioning from the Court during oral argument." Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 170, 92 S.Ct. 1965, 1970, 32 L.Ed.2d 627 (1972). Moreover, while appellant may have chosen not to challenge appellees' standing to argue that they had been denied equal protection under the statute, appellant certainly did not concede that appellees had standing to argue that other individuals desiring to picket under circumstances dissimilar to appellees might be denied equal protection under the statute. In fact, counsel quite explicitly stated that the Court should only consider the constitutionality of prohibiting the appellees' conduct: "I would urge that the . . . First Amendment question only be as applied to the plaintiffs, to the conduct that the plaintiffs actually engaged in. . . . " Tr. of Oral Arg. 17. And this is the standing question that is implicated by the Court's opinion. See infra, at 486-489.
2
The simplistic construction of the statute reflected in the Court's opinion apparently is also justified by supposed "concessions" of appellant's counsel at oral argument. Ante, at 461, n. 5. Appellant, however, has never suggested that the statute regulates picketing solely by permitting labor, but not nonlabor, issues to be aired through residential picketing. While admitting the use of some content differentiation, the appellant asserts throughout its argument that the statute is a "place" regulation; it allows picketing at homes used for nonresidential purposes but not at those homes used exclusively for residential purposes. See e. g., the question presented for review in the Juris. Statement 4.
3
If it is the Mayor the appellees seek to reach, they have not shown they cannot do so at city hall. If it is the neighborhoods they seek to reach, they have not shown that they cannot do so in neighborhood parks. I think it is now clear that when speech interests are countered by other substantial governmental interests, the availability of another forum is a highly relevant factor in determining the appropriate balance. See Pell v. Procunier, 417 U.S. 817, 823-824, 94 S.Ct. 2800, 2804-2805, 41 L.Ed.2d 495 (1974).
4
If given an opportunity, the Illinois courts might determine that many repairmen are not "employees" under the statute. Further, it is also possible that the state courts would limit the disputes covered by the exception to those between the resident and his employee. More importantly, these are questions with which this court should not be concerned until the state courts have had an opportunity to address them. See infra, at 488.
5
The Court identifies several examples of picketing which the State would allegedly have to allow in order to avoid a successful equal protection attack. The Court indicates that there is no ground for differentiating between the picketing which is permitted and picketing relating to landlord-tenant disputes, zoning disputes, and historic preservation issues. Ante, at 468-469, n. 13. The first of these examples seems particularly inappropriate since picketing in relation to landlord-tenant disputes would most likely be permissible under the statute just as written. The statute exempts picketing by an individual at his residence, so it would certainly appear that a tenant could picket in front of his own dwelling (which also happens to be the situs of the dispute). If the landlord operates his business out of his home, the tenants would also be able to picket there under the statute. Thus there is no reason to believe that the picketing opportunities of tenants have been substantially limited by the statutory classifications, and in fact would appear to be at least as broad as those afforded to employees with labor disputes. Zoning disputes and historic preservation issues are distinguishable in several respects. First, those issues have no relationship to the use of an individual's residence (other than their own, which of course they may picket) and the individual resident would not have waived any privacy interests. Second, alternative forums would theoretically include residential parks as well as the office of the authorities responsible for the relevant decisions.
The Court's citation of lawn decorations as a waiver of residential privacy seems odd since that act does not involve the voluntary admission of strangers into the home for some nonresidential purposes—a characteristic shared by each of the other exceptions. Ante, at 469. The Court's citation of a political party meeting is also distinguishable since this example does not share the commercial attributes of the other exemptions where "nonresidential use" seems most readily found. An alternative forum would also not seem difficult to obtain in those circumstances.
| 23
|
447 U.S. 490
100 S.Ct. 2305
65 L.Ed.2d 289
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO, et al.
No. 79-1082.
Argued April 22, 1980.
Decided June 20, 1980.
Syllabus
This case presents the question whether Rules on Containers (Rules) in a collective-bargaining agreement between the International Longshoremen's Association (ILA) and employer organizations in the shipping industry which were adopted in response to the technological innovation of containerized shipping are a lawful work preservation agreement. The new technology involves the use on specially designed ships of large, reusable metal receptacles which can be removed on and off the vessel unopened and which can be attached to a truck chassis and transported intact to and from the pier, saving costs and time in loading and unloading ships and in warehousing cargo, as compared with the amount of on-pier work involved in handling loose cargo for conventional ships. The amount of work available for longshoremen has been further reduced by the shipping companies' practice of making their containers available for loading (stuffing) and unloading (stripping) away from the pier by shippers and by freight consolidators who combine the goods of various shippers into a single shipment. The Rules permit the great majority of containers to pass over the piers intact, reserving to the ILA the right to stuff and strip at the pier only those containers that would otherwise be stuffed or stripped "locally" (within a 50-mile radius of the port) by anyone except employees of the beneficial owner of the cargo, the shipping company being liable for specified liquidated damages for any container handled in violation of the Rules. Separate unfair labor practice proceedings were brought before the National Labor Relations Board (Board) by truckers and consolidators who, because of the operation against shipping companies of the Rules' liquidated-damages provisions, could no longer perform local stuffing and stripping services. The Board concluded that the Rules were not valid work preservation clauses because the work of stuffing and stripping containers away from the pier had not traditionally been done by ILA members, but had instead been performed by employees of consolidators and truckers. It therefore held that the Rules violated § 8(e) of the National Labor Relations Act, which makes unlawful those collective-bargaining agreements whereby the employer agrees to cease doing business with any other person, and that union action to enforce the Rules violated § 8(b)(4)(B), which prohibits unions from engaging in secondary activities whose object is to force one employer to cease doing business with another. The Court of Appeals, consolidating the cases and holding that the Board had erred as a matter of law in defining the work in controversy, vacated the Board's decisions, denied its applications for enforcement, and remanded the cases.
Held : The Board's definition of the work in controversy in this dispute was erroneous as a matter of law. Pp. 503-513.
(a) To constitute a lawful work preservation agreement, the agreement must have as its objective the preservation of work traditionally performed by employees represented by the union, and the contracting employer must have the power to give the employees the work in question. The first and most basic question is: What is the "work" that the agreement allegedly seeks to preserve? Cf. NLRB v. Pipefitters, 429 U.S. 507, 97 S.Ct. 891, 51 L.Ed.2d 1; National Woodwork Manufacturers Assn. v. NLRB, 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357. Pp. 504-505.
(b) Identification of the work at issue in a complex case of technological displacement requires a careful analysis of the traditional work patterns that the parties are allegedly seeking to preserve, and of how the agreement seeks to accomplish that result under the changed circumstances created by the technological advance. The inquiry must focus on the bargaining unit employees' work, not on the work of other employees who may be doing the same or similar work, and must examine the relationship between the work as it existed before the innovation and as the agreement proposes to preserve it. P. 507.
(c) The Board's conclusion that the "work in controversy" was the off-pier stuffing and stripping of containers erroneously focused on the work done by the employees of truckers and consolidators after the introduction of containerized shipping. That approach foreclosed, by definition, any possibility that the longshoremen could negotiate an agreement to permit them to play any part in the loading and unloading of containerized cargo. The Board's determination that the traditional work of ILA members was to load and unload ships should have been only the beginning of the analysis. The next step is to look at how the contracting parties sought to preserve that work, to the extent possible, in the face of a massive technological change that largely eliminated the need for cargo handling at intermediate stages of the intermodal transportation of goods, and to evaluate the relationship between traditional longshore work and the work which the Rules attempt to assign to ILA members. Pp. 507-510.
(d) Viewing the work allegedly to be preserved by the Rules from the proper perspective, the Board on remand will be free to determine whether the Rules represent a lawful attempt to preserve traditional longshore work, or whether, instead, they are tactically calculated to satisfy union goals elsewhere. This determination must be informed by an awareness of the congressional preference for collective bargaining as the method for resolving disputes over dislocations caused by the introduction of technological innovations in the workplace, the question being not whether the Rules represent the most rational or efficient response to innovation, but whether they are a legally permissible effort to preserve jobs. If the Board finds that the Rules have a lawful work preservation objective, it must then consider the charging parties' contention that members of the employer organization did not have the right to control the stuffing and stripping of containers. Pp. 510-512.
198 U.S.App.D.C. 157, 613 F.2d 890, affirmed.
Lawrence G. Wallace, Washington, D. C., for petitioner.
J. Alan Lips, Cincinnati, Ohio, for respondent Tidewater Motor Truck Association in support of the petitioner.
Constantine P. Lambos, New York City, for respondents New York Shipping Association, Inc., et al.
Thomas W. Gleason, Jr., New York City, for respondent International Longshoremen's Association, AFL-CIO.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
This case presents the question whether provisions of the collective-bargaining agreement between the International Longshoremen's Association (ILA) and employer organizations in the shipping industry which were adopted in response to the technological innovation of containerized shipping are a lawful work preservation agreement. The National Labor Relations Board held that the provisions did not preserve traditional work opportunities for employees represented by the union, but sought instead to acquire work they had not previously performed; therefore, it concluded that the provisions violated § 8(e) of the National Labor Relations Act, 29 U.S.C. § 158(e), and union action to enforce them violated § 8(b)(4)(B) of the Act, 29 U.S.C. § 158(b)(4)(B). International Longshoremen's Assn. (Dolphin Forwarding, Inc.), 236 N.L.R.B. 525 (1978); International Longshoremen's Assn. (Associated Transport, Inc.), 231 N.L.R.B. 351 (1977). A divided panel of the United States Court of Appeals for the District of Columbia Circuit declined to enforce the Board's orders. 198 U.S.App.D.C. 157, 613 F.2d 890 (1979). We granted certiorari, 444 U.S. 1042, 100 S.Ct. 727, 62 L.Ed.2d 728 (1980), to resolve a conflict among the Circuits on this important question of federal labor law.1
2
* This controversy arises out of the collective-bargaining response of the ILA and the east coast shipping industry to containerization, a technological innovation which has had such a profound effect on that industry that it has frequently been termed "the container revolution."2 In the words of one observer, "containerization may be said to constitute the single most important innovation in ocean transport since the steamship displaced the schooner."3
3
Containers are large, reusable metal receptacles, ranging in length from 20 to 40 feet and capable of carrying upwards of 30,000 pounds of freight, which can be moved on and off an ocean vessel unopened. Container ships are specially designed and constructed to carry the containers, which are affixed to the hold. A container can also be attached to a truck chassis and transported intact to and from the pier like a conventional trailer.
4
The use of containers is substantially more economical than traditional methods of handling ocean-borne cargo.4 Because cargo does not have to be handled and repacked as it moves from the warehouse by truck to the dock, into the vessel, then from the vessel to the dock and by truck or rail to its destination, the costs of handling are significantly reduced. Expenses of separate export packaging, storage, losses from pilferage and breakage, and costs of insurance and processing cargo documents may also be decreased. Perhaps most significantly, a container ship can be loaded or unloaded in a fraction of the time required for a conventional ship.5 As a result, the unprofitable in-port time of each ship is reduced, and a smaller number of ships are needed to carry a given volume of cargo.6
5
Before the introduction of container ships, and as is still the case with conventional vessels, trucks delivered loose, or break-bulk, cargo to the head of the pier. The cargo was then transferred piece by piece from the truck's tailgate to the ship by longshoremen employed by steamship or stevedoring companies. The longshoremen checked the cargo, sorted it, placed it on pallets and moved it by forklift to the side of the ship, and lifted it by means of a sling or hook into the ship's hold.7 The process was reversed for cargo taken off incoming ships. With the advent of containers, the amount of on-pier work involved in cargo handling has been drastically reduced, since the cargo need not be loaded and unloaded piece by piece. The amount of work available for longshoremen has been further reduced by the shipping companies' practice of making their containers available to shippers and consolidators8 for loading and unloading away from the pier.
6
Containerization, then, was a technological advance of great importance to the shipping industry which at the same time threatened the jobs of longshoremen by dramatically increasing their productivity.9 As one might expect, the subject has been a hotly disputed topic of collective bargaining between the union and the employers.10 We are concerned with the results of that collective-bargaining process as it affects the shipping industry in the Ports of New York, Baltimore, and Hampton Roads, Va.
B
7
It is necessary, in discussing the collective-bargaining agreements here at issue, to define certain industry terms of art pertaining to containerized cargo. Loading cargo into a container is called "stuffing"; unloading cargo from a container is called "stripping." Containers holding goods beneficially owned by one shipper or consignee are called full shippers' loads (FSL). Containers holding goods belonging to more than one shipper or consignee are called consolidated container loads. Such cargo is also called "less than trailer load" (LTL) or "less than container load" (LCL) cargo.
8
The first collective-bargaining agreement to contain a provision dealing with containerized shipping was the 1959 agreement between ILA and the New York Shipping Association (NYSA). At that time, containerization was in its infancy.11 The provision in the 1959 agreement was prompted by a dispute over the use of Dravo containers, boxes eight cubic feet in size. See International Longshoremen's Assn., (Consolidated Express, Inc.), 221 N.L.R.B. 956, 957 (1975), enf'd, 537 F.2d 706 (CA2 1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 740, 50 L.Ed.2d 753 (1977). The agreement recognized the right of NYSA members "to use any and all type [sic ] of containers without restriction or stripping by the union." 221 N.L.R.B., at 957. In return, NYSA agreed to contribute royalty payments on "containers which are loaded or unloaded away from the pier by non-ILA labor." Ibid. The agreement also provided:
9
"Any work performed in connection with the loading and discharging of containers for employer members of NYSA which is performed in the Port of Greater New York whether on piers or terminals controlled by them, or whether through direct contracting out, shall be performed by ILA labor at longshore rates." Ibid.
10
After the 1959 agreement was reached, the development of container shipping accelerated. In 1967, ILA demanded in collective-bargaining negotiations that longshoremen stuff and strip all containers crossing the piers. Following a lengthy strike, ILA and NYSA in 1969 adopted, as part of their 1968-1971 collective-bargaining agreement, the Rules on Containers (Rules). The terms of that master agreement were adopted by other ports on the North Atlantic coast, including Hampton Roads and Baltimore. The Rules were slightly modified in 1971, after another long strike. In 1973 ILA and the Council of North Atlantic Shipping Associations (CONASA) executed the "Dublin Supplement" as an "interpretive bulletin" to the Rules. The substance of the Dublin Supplement was incorporated in the version of the Rules contained in the 1974-1977 collective-bargaining agreement.12
11
In essence, the Rules contained in the 1968 and 1971 agreements provided that if containers owned or leased by the shipping companies and carrying LTL or consolidated container loads were to be stuffed or stripped within the local port area (that is, within a geographical radius of 50 miles of the port) by anyone other than the employees of the beneficial owner of the cargo, that work must be done at the piers by ILA labor. The shipping companies were required to pay a royalty on containers that passed over the piers intact, as well as liquidated damages, presently set at $1,000 per container, for any container handled in violation of the Rules. The Dublin Supplement declared that the Rules applied to all containers, including those designated as FSL containers, which were stuffed or stripped in the local area by other than the beneficial owner's own employees. The Supplement also noted an exception for FSL containers warehoused locally for at least 30 days, and, as a method of enforcing the Rules, prohibited the employers from releasing any of their containers to known consolidators with facilities located within 50 miles of the port.
12
Thus, under the final version of the Rules incorporated in the 1974 agreement, if containers owned or leased13 by the shipping companies are to be stuffed or stripped locally by anyone other than the employees of the beneficial owner of the cargo, that work must be done at the piers by ILA labor. FSL containers that are transported intact to or from the beneficial owner or that are warehoused locally for 30 days, and consolidated containers coming from or bound for points outside the local area, do not have to be stuffed and stripped by ILA members. The practical effect of the Rules is that some 80% of containers pass over the piers intact. App. 612. The remaining 20% are stuffed and stripped by longshoremen, regardless of whether that work duplicates work done by non-ILA employees off-pier.
C
13
This case involves two proceedings before the National Labor Relations Board (Board) on charges that the Rules are illegal secondary activity in violation of federal labor law. The cases were consolidated on appeal. The Dolphin proceeding, 236 N.L.R.B. 525 (1978), concerns the application of the provisions on LCL cargo to containers used by consolidators operating within 50 miles of the Port of New York. The Associated Transport proceeding, 231 N.L.R.B. 351 (1977), concerns the application of the Rules to FSL containers whose cargo was transferred by truckers to their own trucks within 50 miles of the Ports of Baltimore and Hampton Roads. The affected truckers and consolidators filed unfair labor practice charges with the Board, alleging that the Rules constituted a "hot cargo" agreement in violation of § 8(e) of the National Labor Relations Act (Act) and that the activities of the parties to the agreement in enforcing its terms were an illegal secondary boycott prohibited by § 8(b)(4)(B) of the Act.
14
The facts underlying the charges may be briefly stated. Dolphin Forwarding, Inc. (Dolphin), and San Juan Freight Forwarding, Inc. (San Juan), were NVOCC consolidators, see n. 8, supra, soliciting business from shippers throughout the United States who wished to transport LCL cargo between New York and Puerto Rico.14 Dolphin and San Juan received their customers' goods at their off-pier facilities, located within 50 miles of the Port of New York. Using subcontracted non-ILA labor, they consolidated the goods of two or more shippers, stuffed them into containers provided by members of NYSA, and had the filled containers trucked to the pier to be loaded onto ships by longshoremen.15 As a result of these practices, the NYSA members who had supplied their containers to the consolidators were assessed liquidated damages of approximately $47,000. Those carriers then informed Dolphin and San Juan that they would no longer furnish them with containers. Thereupon, Dolphin and San Juan filed unfair labor practice charges with the Board.
15
Houff Transport, Inc. (Houff), and Associated Transport, Inc. (Associated),16 were Interstate Commerce Commission-licensed common carriers who operated motor freight terminals within 50 miles of the Ports of Baltimore and Hampton Roads. Since the advent of containerization, they had transported FSL container loads to consignees both within and beyond the 50-mile radius, and routinely stripped such FSL containers and restuffed the cargo into their own vehicles for reasons of economy, safety, or state highway or bridge regulations.
16
The practice of using non-ILA labor to strip and restuff FSL cargo within the 50-mile radius is known as shortstopping. Although the Rules, prior to the Dublin Supplement, did not expressly discuss FSL cargo, see App. 235-250, 270-276, the ILA and the shipping companies apparently regarded shortstopping as an infraction, see 198 U.S.App.D.C., at 162, 613 F.2d, at 895; 231 N.L.R.B., at 355 (Fanning, Chairman, dissenting). The Dublin Supplement, and subsequent versions of the Rules, provided that ILA labor must handle all FSL containers that otherwise would be handled within the local area by other than the consignee's own employees, except for FSL cargo consigned to the beneficial owner's place of business or warehoused for 30 days within the port area.
17
After the new Rules became effective, Houff and Associated shortstopped containers picked up from CONASA members. The shipping companies were assessed liquidated damages for each such container. When Houff and Associated refused to indemnify them for the fines, the shipping companies cancelled their interchange agreements. Houff, Associated, and the Tidewater Motor Truck Association (TMTA), an association of which Associated was a member, filed unfair labor practice charges.
18
In holding that the charges were substantiated in both the Dolphin and Associated Transport proceedings, the Board relied on its previous decision in International Longshoremen's Assn. (Consolidated Express, Inc.), 221 N.L.R.B. 956 (1975), enf'd, 537 F.2d 706 (CA2 1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 740, 50 L.Ed.2d 753 (1977) (hereinafter Conex ).17 In Conex, the Board held that the traditional work of longshoremen has been to load and unload ships at the pier. As the Board explained in the Dolphin proceeding, Conex
19
"held that the Rules were not valid work-preservation clauses in that traditionally the off-pier stuffing and stripping of containers was performed by consolidating companies and not longshoremen. Since the work was not traditional longshore work and had never been performed by longshoremen, the Rules which required the shipping companies to stop doing business with consolidators did not have a lawful work-preservation object." 236 N.L.R.B., at 526.
20
Similarly, in the Associated Transport proceeding the Board affirmed the finding by the Administrative Law Judge (ALJ) of an unfair labor practice because longshoremen "had not historically done the work" of stripping FSL containers away from the pier. 231 N.L.R.B., at 353 (emphasis in original). In short, in the Board's view the Rules sought to acquire for ILA members work that had historically been performed not by longshoremen but by employees of consolidators and truckers. Therefore the Rules had a secondary objective forbidden by the Act.
21
ILA and CONASA appealed to the Court of Appeals, and the Board cross-applied for enforcement of its orders.18 The cases were consolidated. A divided panel of the Court of Appeals refused enforcement, holding that the Board had erred as a matter of law in defining the work in controversy. It therefore vacated the Board's decisions, denied its applications for enforcement, and remanded the cases for further proceedings. We affirm.
II
22
Section 8(b)(4)(B) of the Act19 prohibits unions and their agents from engaging in secondary activities whose object is to force one employer to cease doing business with another. Section 8(e)20 makes unlawful those collectivebargaining agreements in which the employer agrees to cease doing business with any other person. Although § 8(e) does not in terms distinguish between primary and secondary activity, we have held that, as in § 8(b)(4)(B), Congress intended to reach only agreements with secondary objectives. See NLRB v. Pipefitters, 429 U.S. 507, 517, 97 S.Ct. 891, 897, 51 L.Ed.2d 1 (1977) (hereinafter Pipefitters ); National Woodwork Manufacturers Assn. v. NLRB, 386 U.S. 612, 620, 635, 87 S.Ct. 1250, 1255, 1263, 18 L.Ed.2d 357 (1967) (hereinafter National Woodwork ).
23
Among the primary purposes protected by the Act is "the purpose of preserving for the contracting employees themselves work traditionally done by them." Pipefitters, supra, 429 U.S., at 517, 97 S.Ct., at 898. Whether an agreement is a lawful work preservation agreement depends on "whether, under all the surrounding circumstances, the Union's objective was preservation of work for [bargaining unit] employees, or whether the [agreement was] tactically calculated to satisfy union objectives elsewhere. . . . The touchstone is whether the agreement or its maintenance is addressed to the labor relations of the contracting employer vis-a-vis his own employees." National Woodwork, supra, 386 U.S., at 644-645, 87 S.Ct., at 1268 (footnotes omitted). Under this approach, a lawful work preservation agreement must pass two tests: First, it must have as its objective the preservation of work traditionally performed by employees represented by the union. Second, the contracting employer must have the power to give the employees the work in question—the so-called "right of control" test of Pipefitters, supra. The rationale of the second test is that if the contracting employer has no power to assign the work, it is reasonable to infer that the agreement has a secondary objective, that is, to influence whoever does have such power over the work. "Were the latter the case, [the contracting employer] would be a neutral bystander, and the agreement or boycott would, within the intent of Congress, become secondary." National Woodwork, supra, at 644-645, 87 S.Ct., at 1268.
24
In applying the work preservation doctrine, the first and most basic question is: What is the "work" that the agreement allegedly seeks to preserve? Sometimes the process of identifying the work at issue will require no subtle analysis. In National Woodwork, for example, the agreement preserved for the carpenters employed by a general contractor the work of fitting all doors installed on the jobsite. This was work they had always done, and the method the parties chose to preserve the carpenters' right to that work was simply to prohibit the employer from purchasing any doors that had been prefitted by any other employees. That the provision incidentally required the employer to boycott all prefitted doors was of no consequence to the validity of the agreement. See Pipefitters, supra, 429 U.S., at 510, 526, 97 S.Ct., at 894, 902.
25
But in many cases it is not so easy to find the starting point of the analysis. Work preservation agreements typically come into being when employees' traditional work is displaced, or threatened with displacement, by technological innovation. The national labor policy expresses a preference for addressing "the threats to workers posed by increased technology and automation" by means of "labor-management agreements to ease these effects through collective bargaining on this most vital problem created by advanced technology." National Woodwork, supra, 386 U.S., at 641, 642, 87 S.Ct., at 1267. In many instances, technological innovation may change the method of doing the work, instead of merely shifting the same work to a different location. One way to preserve the work of the employees represented by the union in the face of such a change is simply to insist that the innovation not be adopted and that the work continue to be done in the traditional way. The union in National Woodwork followed this tactic and negotiated an agreement in which the employer agreed not to use prefabricated materials. We held that agreement was lawful under §§ 8(e) and 8(b)(4)(B). But the protection Congress afforded to work preservation agreements cannot be limited solely to employees who respond to change with intransigence. Congress, in enacting § 8(e), did not intend to protect only certain kinds of work preservation agreements; rather, it "had no thought of prohibiting agreements directed to work preservation," National Woodwork, supra, at 640, 87 S.Ct., at 1266. The work preservation doctrine, then, must also apply to situations where unions attempt to accommodate change while preserving as much of their traditional work patterns as possible.21 When this is the case the inquiry must be more refined and the analysis more discriminating.
26
The Board held that " '[t]he traditional work of the longshoremen represented by ILA has been to load and unload ships. When necessary to perform their loading and unloading work, longshoremen have been required to stuff and strip containers on the piers.' " 231 N.L.R.B., at 364 (decision of ALJ, adopted by the Board), quoting Conex, 221 N.L.R.B., at 959; see 236 N.L.R.B., at 526. The Board then determined that the work in controversy was "the off-pier stuffing and stripping of containers," ibid.; see 231 N.L.R.B., at 364-365. Similarly, in Conex the Board stated: "It is clear from the record that the work in controversy here is the LCL and LTL container work performed by [the charging parties] at their own off-pier premises." 221 N.L.R.B., at 959. Because ILA members had never performed such work, the Board concluded that the Rules were an illegal attempt to reach out and acquire work that was not within the union's traditional work jurisdiction and which its members had never performed. We agree with the Court of Appeals that this approach to defining the work at issue was incorrect as a matter of law.
27
The Board's approach reflects a fundamental misconception of the work preservation doctrine as it has been applied in our previous cases. Identification of the work at issue in a complex case of technological displacement requires a careful analysis of the traditional work patterns that the parties are allegedly seeking to preserve, and of how the agreement seeks to accomplish that result under the changed circumstances created by the technological advance. The analysis must take into account "all the surrounding circumstances," National Woodwork, 386 U.S, at 644, 87 S.Ct., at 1268, including the nature of the work both before and after the innovation. In a relatively simple case, such as National Woodwork or Pipefitters, the inquiry may be of rather limited scope. Other, more complex cases will require a broader view, taking into account the transformation of several interrelated industries or types of work; this is such a case. Whatever its scope, however, the inquiry must be carefully focused: to determine whether an agreement seeks no more than to preserve the work of bargaining unit members, the Board must focus on the work of the bargaining unit employees, not on the work of other employees who may be doing the same or similar work,22 and examine the relationship between the work as it existed before the innovation and as the agreement proposes to preserve it.
28
The Board, by contrast, focused on the work done by the employees of the charging parties, the truckers and consolidators, after the introduction of containerized shipping. It found that work was similar to work those employees had done before the innovation, and concluded that ILA was trying to acquire the traditional work of those employees. That conclusion ignores the fact that the impact of containerization occurred at the interface between ocean and motor transport; not surprisingly, the work of stuffing and stripping containers is similar to work previously done by both longshoremen and truckers. The Board's approach would have been entirely appropriate in considering an agreement to preserve the work of truckers' employees, but it misses the point when applied to judge this contract between the ILA and the shipowner employers.
29
By focusing on the work as performed, after the innovation took place, by the employees who allegedly have displaced the longshoremen's work, the Board foreclosed—by definition—any possibility that the longshoremen could negotiate an agreement to permit them to continue to play any part in the loading or unloading of containerized cargo. For the very reason the Rules were negotiated was that longshoremen do not perform that work away from the pier, and never have. Thus it is apparent that under the Board's approach, in the words of the Court of Appeals, the "work preservation doctrine is sapped of all life." 198 U.S.App.D.C., at 176, 613 F.2d, at 909.
30
That this is so is vividly demonstrated by considering how different would have been the results in National Woodwork and Pipefitters if we had adopted the approach now chosen by the Board. In National Woodwork we held that carpenters could seek to preserve their traditional work of finishing blank doors at the construction jobsite by prohibiting the employer, a general contractor, from purchasing prefinished doors from the factory. If we had followed the Board's current approach in analyzing the agreement, we would have defined the work in controversy as "the finishing of blank doors away from the construction site." That work, of course, had never been done by the carpenters employed by the general contractor, but had been performed by the employees of the door manufacturers since before the adoption of the agreement. We would perforce have determined that the object of the agreement was work acquisition, not work preservation.
31
Similarly, Pipefitters involved an agreement between a subcontractor and a pipefitters' union that pipe threading and cutting were to be performed on the jobsite. Relying on the agreement, the union refused to install climate-control units whose internal piping had been cut, threaded, and installed at the factory. The Board held that the provision was a lawful work preservation agreement, but that the refusal to handle the prepiped units was an unfair labor practice because the units had been specified by the general contractor and the subcontractor had no power to assign the employees the work they sought. Neither the Court of Appeals nor this Court questioned the validity of the work preservation clause but for the fact that it was enforced against an employer who could not control the work. Under the Board's current approach, however, the "work" would have been "cutting, threading, and installing pipe in climate-control units at the factory." Since the bargaining unit employees had never performed that work, there would have been no reason to reach the "right of control" issue.
32
Thus the Board's determination that the work of longshoremen has historically been the loading and unloading of ships should be only the beginning of the analysis. The next step is to look at how the contracting parties sought to preserve that work, to the extent possible, in the face of a massive technological change that largely eliminated the need for cargo handling at intermediate stages of the intermodal transportation of goods, and to evaluate the relationship between traditional longshore work and the work which the Rules attempt to assign to ILA members.23 This case presents a much more difficult problem than either National Woodwork or Pipefitters because the union did not simply insist on doing the work as it had always been done and try to prevent the employers from using container ships at all—though such an approach would have been consistent with National Woodwork and Pipefitters. Instead, ILA permitted the great majority of containers to pass over the piers intact, reserving the right to stuff and strip only those containers that would otherwise have been stuffed or stripped locally by anyone except the beneficial owner's employees. The legality of the agreement turns, as an initial matter, on whether the historical and functional relationship between this retained work and traditional longshore work can support the conclusion that the objective of the agreement was work preservation rather than the satisfaction of union goals elsewhere.24
33
Respondents assert that the stuffing and stripping reserved for the ILA by the Rules is functionally equivalent to their former work of handling break-bulk cargo at the pier.25 Petitioners-intervenors, on the other hand, argue that containerization has worked such fundamental changes in the industry that the work formerly done at the pier by both longshoremen and employees of motor carriers has been completely eliminated.
34
These questions are not appropriate for initial consideration by reviewing courts. They are properly raised before the Board, whose determinations are, of course, entitled to deference. Since the Board has not had an opportunity to consider these questions in relation to a proper understanding of the work at issue, we will not address them here. We emphasize that neither our decision nor that of the Court of Appeals implies that the result of the Board's reconsideration of this case is foreordained.26 Viewing the work allegedly to be preserved by the Rules from the proper perspective, the Board will be free to determine whether the Rules represent a lawful attempt to preserve traditional longshore work, or whether, instead, they are "tactically calculated to satisfy union objectives elsewhere," National Woodwork, 386 U.S., at 644, 87 S.Ct., at 1268. This determination will, of course, be informed by an awareness of the congressional preference for collective bargaining as the method for resolving disputes over dislocations caused by the introduction of technological innovations in the workplace, see id., at 641-642, 87 S.Ct., at 1266-67. Thus, in judging the legality of a thoroughly bargained and apparently reasonable accommodation to technological change, the question is not whether the Rules represent the most rational or efficient response to innovation, but whether they are a legally permissible effort to preserve jobs.
35
If the Board finds, on remand, that the Rules have a lawful work preservation objective, it will then, of course, be obliged to consider the charging parties' contention that CONASA members did not have the right to control the stuffing and stripping of containers. Because the Board held that the agreement was directed at work acquisition, rather than work preservation, it did not decide the right-to-control issue in this case. That issue remains open on remand. Therefore, and because the arguments of the parties were necessarily addressed to an erroneous conception of the work whose control was disputed,27 any discussion of that issue here would be premature. Respondents have also argued that the employers, as common carriers who are subject to Government regulation and to the provisions of their own tariffs, shippers' bills of lading, and intermodal interchange agreements with motor carriers, have no legal right to withhold containers or container services from their customers on a selective basis, to condition access to the containers on compliance with the Rules, to seek indemnification from their customers for fines imposed under the Rules, or to enforce the Rules after the containers have been released to motor carriers. See, e. g., Shipping Act, 1916, 46 U.S.C. § 801 et seq.; Intercoastal Shipping Act, 1933, 46 U.S.C. § 843 et seq.; Sea-Land Service, Inc.—Proposed ILA Rules on Containers, 20 F.M.C. 788 (1978), review pending, No. 78-1776 (CADC). These contentions present difficult and complex problems which are not properly before us.
36
We conclude that the Court of Appeals correctly held that the Board's definition of the work in controversy in this dispute was erroneous as a matter of law, and we therefore affirm the Court of Appeals' judgment vacating the Board's decisions, denying the applications for enforcement, and remanding to the Board for further proceedings.
37
It is so ordered.
APPENDIX TO OPINION OF THE COURT
1974 Rules on Containers
CONASA-ILA RULES ON CONTAINERS
PREAMBLE
38
This Agreement made and entered into by and between the carrier and direct employer members of the CONASA Port Associations (hereinafter referred to collectively as "CONASA") and the International Longshoremen's Association, AFL-CIO ("ILA"), its Atlantic Coast District ("ACD") and its affiliated local unions in each CONASA port ("locals") covers all container work at a waterfront facility which includes but is not limited to the receiving and delivery of cargo, the loading and discharging of said cargo into and out of containers, the maintenance of containers, and the loading and discharging of containers on and off ships.
39
CONASA agrees that it will not directly perform work done on a container waterfront facility (as hereinafter defined) or contract out such work which historically and regularly has been and currently is performed by employees covered by CONASA-ILA Agreements, including CONASA-ILA craft agreements, unless such work on such container waterfront facility is performed by employees covered by CONASA-ILA Agreements.
RULES
40
The following provisions are intended to protect and preserve the work jurisdiction of longshoremen and all other ILA crafts which was performed at deepsea waterfront facilities. These rules do not have any effect on work which historically was not performed at a waterfront facility by deepsea ILA labor. To assure compliance with the collective bargaining provisions, the following rules and regulations shall be applied uniformly in all CONASA Ports to all imports or export cargo in containers:
Definitions
41
(a) Loading a Container—means the act of placing cargo into a container.
42
(b) Discharging a Container—means the act of removing cargo from a container.
43
(c) Loading Containers on a vessel—means the act of placing containers aboard a vessel.
44
(d) Discharging Containers from a vessel—means the act of removing containers from a vessel.
45
(e) Waterfront facility—means a pier or dock where vessels are normally worked including a container compound operated by a carrier or direct employer.
46
(f) Qualified Shipper—means the manufacturer or seller having a proprietary financial interest (other than in the transportation or physical consolidation or deconsolidation) in the export cargo being transported and who is named in the dock/cargo receipt.
47
(g) Qualified Consignee—means the purchaser or one who otherwise has a proprietary financial interest (other than in the transportation or physical consolidation or deconsolidation) in the import cargo being transported and who is named in the delivery order.
48
(h) Consolidated Container Load—means a container load of cargo where such cargo belongs to more than one shipper on export cargo or one consignee on import cargo.
49
Rule 1—Containers To Be Loaded or Discharged by Deepsea ILA Labor
50
(a) Cargo in containers referred to below shall be loaded into or discharged out of containers only at a waterfront facility by deepsea ILA labor:
51
(1) Containers owned, leased or used by carriers (including containers on wheels and trailers), hereinafter "containers", which contain consolidated container loads, which come from or go to any point within a geographic area of any CONASA port described by a 50-mile circle with its radius extending out from the center of each port (hereinafter "geographic area") or
52
(2) Containers which come from a single shipper which is not the manufacturer ("manufacturer's label") into which the cargo has been loaded (consolidated) by other than its own employees and such containers come from any point within the "geographical area," or
53
(3) Containers designated for a single consignee from which the cargo is discharged (deconsolidated) by other than its own employees within the "geographic area" and which is not warehoused in accordance with Rule 2(b).
54
(b) Such ILA labor shall be paid and employed at deep-sea longshore rates under the terms and conditions of the deep-sea ILA labor agreement in each CONASA port, including the provisions for all fringe benefits and any and all other benefits receivable by deep-sea ILA craft workers in each such Port. No cargo shall be loaded into or discharged out of any container by ILA deep-sea labor more than once.
55
(c) All export consolidated cargo, described in 1(a)(1) and (2) above, shall be received at the waterfront facility by deep-sea ILA labor and such cargo shall be loaded into a container at the waterfront facility for loading aboard ship.
56
(d) All import consolidated cargo, described in 1(a)(1) and (3) above, shall be discharged from the container and the cargo placed on the waterfront facility where it will be delivered and picked up by each consignee.
57
(e) No carrier or direct employee shall supply its containers to any consolidator or de-consolidator. No carrier or direct employer shall operate a facility in violation of the Rules on Containers which specifically require that all Rule 1 Containers be loaded or discharged at a waterfront facility.
58
Rule 2—Containers Not to be Loaded or Discharged by ILA Labor
59
Cargo in containers referred to below shall not be loaded or discharged by ILA labor:
A. Export Cargo:
60
(1) All cargo loaded in containers outside the "geographic area".
61
(2) Containers loaded with cargo at a qualified shipper's facility with its own employees.
62
(3) Containers loaded with the cargo of a single manufacturer (manufacturer's label).
63
(4) Consolidated container loads of mail, household effects of a person who is relocating his place of residence, with no other type of cargo in the container, or personal effects of military personnel.
B. Import Cargo:
64
(1) All cargo discharged from containers outside the "geographic area".
65
(2) Containers discharged at a qualified consignee's facility by its own employees.
66
(3) Consolidated container loads of mail, household effects of a person who is relocating his place of business, with no other type of cargo in the container, or personal effects of military personnel.
67
(4) Containers of a qualified consignee discharged at a bona fide public warehouse within the "geographic area" which comply with all of the following conditions.
68
1. The container cargo is warehoused at a bona fide public warehouse.
69
2. The qualified consignee pays the normal labor charges in and out; and the normal warehouse storage fees for a minimum period of thirty or more days, and;
70
3. The cargo being warehoused (a) in the normal course of the business of the qualified consignee; (b) title to such goods has not been transferred from the qualified consignee to another.
71
The carrier on request will furnish all documentation and other information which permits the Container Committee in the port to determine whether conditions 1, 2 and 3 have been met. This exception shall not apply where cargo is warehoused for the purpose of avoidance or evasion of Rule 1. It is limited to containers warehoused as provided in the above conditions and any warehouse which does not conform to such conditions shall be deemed a consolidator or deconsolidator.
Rule 3—Batching
72
When an employer-member or carrier uses a trucker to remove or deliver containers in batches, or in substantial number, from or to a terminal to another place of rest (outside of its terminal) where containers are stored pending their delivery to a consignee (or after being received from a shipper and while waiting the arrival of a ship), for the purpose of reducing the work jurisdiction of the ILA or any of its crafts, such use is deemed to be batching and an evasion of these Rules in violation of the CONASA-ILA contract.
Rule 4—Headload
73
Where a single qualified shipper sends an export container which contains all of his own cargo to a waterfront facility and such container is not full, the carrier or direct employer may load this container with additional cargo at the waterfront facility. On import cargo, the carrier or direct employer may discharge any such additional cargo and send the remaining cargo in the container to the qualified consignee. The loading or discharging of cargo at ILA ports shall be performed at a waterfront facility by deepsea ILA labor.
74
Rule 5—Overland Movement of Containers from CONASA Port to Non-CONASA Port
75
If a carrier moves containers from a CONASA Port to a non-CONASA Port for the purpose of evading the Rules on Containers, the carrier is in violation of the CONASA-ILA Agreement. If the cargo is being moved to a non-CONASA-ILA Port in the normal course of business, and not for the purpose of evasion, then such movement is not a violation.
76
Rule 6—Importers Advertising Evasion of Rules
77
The circulation, in writing, by importers of methods developed by them to evade the Rules on Containers by issuing single bills of lading on what are in fact consolidated container loads shall be deemed a violation and all CONASA-ILA Container Committees shall be advised to stop such evasion at the waterfront facilities.
Rule 7—No Avoidance or Evasion
78
The above rules are intended to be fairly and reasonably applied by the parties. To obtain non-discriminatory and fair implementation of the above, the following principles shall apply:
79
(a) Geographic Area—Agreement in the Port to the geographic area as provided in Rule 1 is based on present consolidated movement patterns in the port. Should any person, firm or corporation for the purpose of evading the provisions of the Rules on Containers, seek to change such pattern by shifting its operations to, or commencing new operations at, a point outside said agreed upon geographic area, then either party may raise the question whether said point should be included within the said geographic area, and upon agreement that the purpose of the shift in its operations was to evade the provisions of the Rules on Containers, then said point shall be deemed to be within the said geographic area for the purpose of these rules.
80
(b) Containers Owned, Leased or Used—Containers owned, leased or used by companies which are affiliated either directly or through a holding company with a carrier or a direct employer shall be deemed to be containers owned, leased or used by a carrier or direct employer. Affiliation shall include subsidiaries and/or affiliates which are effectively controlled by the carrier or direct employer, its parent, or stockholders of either of them.
81
(c) Liquidated Damages—Failure to load or discharge a container as required under these rules will be considered a violation of the contract between the parties. Use of improper, fictitious or incorrect documentation to evade the provisions of Rule 1 and Rule 2 shall also be considered a violation of the contract. If for any reason a container is no longer at the waterfront facility at which it should have been loaded or discharged under the Rules, then the carrier or its agent or direct employer shall pay, to the joint Container Royalty Fund, liquidated damages of $1,000 per container which should have been loaded or discharged. If any carrier does not pay liquidated damages within 30 days after exhausting its right to appeal the imposition of liquidated damages to the Committee provided in Rule 9(a) below, the ILA shall have the right to stop working such carrier's containers until such damages are paid.
82
(d) Any facility operated in violation of the Container Rules will not have service supplied to it by any direct employer and the ILA will not supply labor to such facility.
83
Rule 8—Renegotiation and Cancellation—No Arbitration
84
These Rules shall be in effect for the term of the CONASA-ILA Agreement, provided, however, that either party shall have the right to cancel the Rules on Containers at any time on or after December 1, 1974, on thirty (30) days written notice of a desire to renegotiate the provisions of these Rules. Negotiations shall be held during such thirty (30) day period and if the parties are unable to agree by the end of such period, these Rules shall be deemed cancelled. Thereafter, the ILA shall have the right to refuse to handle containers and CONASA shall have the right to refuse to hire employees under the said Rules. The negotiations referred to above shall, under no condition, be subject to the grievance or arbitration provisions of any CONASA-ILA Agreement.
85
Rule 9—Enforcement of the Rules on Containers
86
To assure effective, fair and non-discriminatory enforcement of the above Rules, the following regulations shall apply:
87
(a) A Committee in each CONASA Port represented equally by management and union shall be formed and shall have the responsibility and power to hear and pass judgment on any violations of these Rules. Any inability to agree shall be processed as a grievance under the applicable contract except as limited by Rule 8 hereof. A joint committee, known as the CONASA-ILA Container Committee, represented equally by management and labor and made up of representatives (to be mutually agreed upon) from each CONASA Port, namely, Boston, Rhode Island, New York, Philadelphia, Baltimore and Hampton Roads shall meet at least quarterly each year for the purpose of insuring uniformity in the interpretation of these Rules.
88
(b) A Committee of carriers, together with CONASA-ILA Container Committee will develop uniform documentation which shall be required to be prepared and maintained by all carriers in order to readily identify all Rule 1 containers which are subject to loading or discharging by deepsea ILA labor. It shall be the obligation of employer-members to clearly mark each container's documentation as to whether or not it is a Rule 1 container, which shall be loaded or discharged. If a container's documentation is not clearly marked, it shall be deemed a Rule 1 container and it shall be loaded or discharged by deepsea ILA labor at the waterfront facility. With respect to all containers received at or delivered from the waterfront facility, a record of the same shall be made by ILA Checkers or Clerks. All carriers will distribute to all other carriers any and all information and devices which are being used by any person to circumvent the Rules on Containers. Any carrier whose attention is brought to a violation of the Rules shall immediately cease such violation and report the matter to the appropriate CONASA-ILA Container Committee and to the policing agency provided in (e) below in its port.
89
(c) Every import container destined to a point within 50-miles of a CONASA Port shall be delivered only on a delivery order. Every export container coming from a point within 50-miles of a CONASA Port shall be received only on a dock/cargo receipt. Such delivery orders and dock/cargo receipts shall certify the place of delivery and origin of the container, the name or names of the person to whom the cargo is being delivered and from which it is shipped. The identity of the owner of the cargo, weight of the cargo, identity of the cargo and the origin and final destination of the container. Copies of such delivery orders and dock/cargo receipts shall be available to the local port Container Committee and the policing agency provided for in (e) below.
90
(d) The Container Committee in each CONASA Port shall promulgate to all carriers and direct employers and to the Container Committees in each CONASA Port, any and all interpretations of the Rules on Containers as and when they are made. This will include uniform interpretations as and when they are issued. The CONASA-ILA Container Committee shall also promulgate uniform interpretations to local port Container Committees, as and when they are issued.
91
(e) Policing Agency—Each CONASA Port shall establish a method of policing and enforcing these Rules on a uniform and non-discriminatory basis. No such method shall be implemented until presented to and approved by the joint CONASA-ILA Container Committee.
Rule 10—Container Royalty Payments
92
The two Container Royalty payments required by the CONASA-ILA collective bargaining agreements shall be payable only once in the Continental United States. They shall be paid in that ILA Port where the container is first handled by ILA longshore labor at longshore rates. The second container royalty payment (provided by paragraph 6 of the 1971-1974 CONASA-ILA Memorandum of Agreement) shall be continued and shall be used for fringe benefit purposes only, other than supplemental cash benefits, which purposes are to be determined locally on a port by port basis. Containers originating at a foreign port which are transshipped at a United States port for ultimate destination to another foreign port ("foreign sea-to-foreign-sea containers") are exempt from the payment of container royalties.
93
Mr. Chief Justice BURGER, with whom Mr. Justice STEWART, Mr. Justice REHNQUIST, and Mr. Justice STEVENS join, dissenting.
94
This case turns on the definition of the work in controversy. If viewed exclusively from the perspective of the ILA, without regard to other aspects of the transportation industry or to the evolutionary changes in methods of doing business, the work can be characterized broadly as the loading and unloading of vessels; that gives the contract Rules on Containers a plausible work preservation objective sufficient to escape what would otherwise be a violation of § 8(e) of the National Labor Relations Act. If viewed from the perspective of the consolidators and motor carriers—many of whose employees are also union members—the objective is not preservation of traditional longshoremen's work but a claim to work historically and traditionally performed by teamsters, truckers, and similar inland laborers. Which of these perspectives is chosen, in turn, depends on the view taken of the nature and function of a "container."
95
This is where the Court's analysis runs astray. To the Court, the work-in-controversy problem in the instant case is simply analogous to that involved in National Woodwork Manufacturers Assn. v. NLRB, 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967), or NLRB v. Pipefitters, 429 U.S. 507, 97 S.Ct. 891, 51 L.Ed.2d 1 (1977), although the Court disclaims this. Compare ante, at 508-509, with ante, at 509-510. But viewing the work in controversy, as we should, "under all the surrounding circumstances," National Woodwork, supra, 386 U.S., at 644, 87 S.Ct., at 1268, the Court's analysis simply will not "wash." A door may be a door in the carpenter's world, and a pipe may be a pipe to the plumber, but a "container" can be seen as sometimes like the hold of a ship, sometimes like the trailer of a truck—and sometimes an independent component.
96
Because of the many functions of a container, it affects both sea and land transportation systems. The Court apparently recognizes the complexities involved, see ante, at 509-510, n. 23, but does not seem to respond to the logical inferences as did the Board, which has a vast reservoir of experience with day-to-day industrial operations. We cannot blink the reality of this technological innovation, nor can we, as the Court does, focus merely on one aspect of the work it has affected. The Board understood the complexities involved here; consequently, it invalidated only that part of the Rules on Containers whose primary effect was to influence the loading and unloading of containers functioning away from the pier as truck trailers. See 231 N.L.R.B. 351 (1977) and 236 N.R.L.B. 525 (1978). The Court's failure to appreciate this distinction and unwillingness to concede its significance underscores the reason why reviewing courts must give weight to the Board's long and intimate experience with the workings of the industries implicated. See, e. g., Pipefitters, supra, 429 U.S., at 531-532, 97 S.Ct., at 905. Calling the issue one of law does not make it so.
97
The ILA argues that a container should be viewed as the functional equivalent of the hold of a ship. See, e. g., Brief for Respondent ILA 4. Superficially it can be made to appear that this Court has acquiesced in such an approach, but only in the context of discussing questions arising under the Longshoremen's and Harbor Workers' Compensation Act (LHWCA). See Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 270-271, 97 S.Ct. 2348, 2360-61, 53 L.Ed.2d 320 (1977); P. C. Pfeiffer Co. v. Ford, 444 U.S. 69, 100 S.Ct. 328, 62 L.Ed.2d 225 (1979). Even in that narrow context, a careful reading of the Court's statements shows that what the Court characterized as "maritime employment" within the meaning of the LHWCA was the work of one who "moves cargo between ship and land transportation." Pfeiffer, supra, at 84, 100 S.Ct., at 338. This characterization points toward the key to the proper view in this case—that the function of a container changes as it moves through the transportation system.
98
Prior to containerization, both consolidators and truckers functioned as part of the transportation industry. Teamsters and others loaded the vehicles used by the truckers and consolidators. When these vehicles reached the pier, longshoremen took over the task of moving the cargo onto the pier or into the ship's hold. Longshoremen also handled inbound cargo from the hold of the ship to the pier and until placed on a land-based truck. After that, any handling of the contents of the truck away from the pier was the work of others than longshoremen. See International Longshoremen's Assn. (Consolidated Express, Inc.), 221 N.L.R.B. 956, 959 (1975), enf'd, 537 F.2d 706 (CA2 1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 740, 50 L.Ed.2d 753 (1977); 231 N.L.R.B., at 359, 365.
99
After the advent of containerization, truckers and consolidators still perform their traditional functions. 221 N.L.R.B., at 959; 231 N.L.R.B., at 365. Their employees still load and unload the vehicles they use, 221 N.L.R.B., at 960, but with containerization the cargo-carrying part of those vehicles is the removable container. When such a vehicle with outbound cargo reaches the pier, there is no need whatever for anyone to "unpack" it; the container may itself be lifted and placed in the hold of the waiting ship, which is designed so that the container fits it as it did the prefitted bed of the truck chassis. Similarly, a container carrying inbound freight is hoisted from the hold of the ship and placed on a truck chassis hooked up to a tractor; the tractor-trailer is driven away from the pier, and the container is then part of land transportation.
100
To me, the work in controversy has two aspects—loading and unloading ships and loading and unloading trucks. Under this view, the Rules on Containers at issue would be valid insofar as they regulate what happens to containers—as distinguished from their contents—while they are on the pier; but those Rules are invalid insofar as they attempt, through fines placed on the shipowner/employers, to regulate what happens to containers once they have left the pier for overland transportation.
101
The Court finds it sufficient to say that the main object of the Rules on Containers is to preserve the traditional longshore work of moving cargo between ship and land transportation. That is too simplistic a view; it closes the eyes to the other aspects of the transportation industry and to the evolution of methods of handling freight. For our purposes, the relevant work in controversy is that involved in the part of the Rules affected by the Board's orders and now here for review. It seems clear to me as the Board saw—that the work which these Rules seek to control is the work of loading and unloading land-based transportation—the containers functioning as truck trailers—away from the pier; the record supports the Board's conclusion that such work has never been performed by longshoremen. See, e. g., 231 N.L.R.B., at 365. Through this aspect of the Rules, the ILA turns reality on its head and seeks to take work from those who have traditionally performed it.1 This is prohibited by § 8(e).
102
The ILA complains that the loading and unloading of land transportation which takes place away from the pier could be done by them on the pier with equal efficiency. See Tr. of Oral Arg. 49, 51. But everyone except the ILA has found, from experience, that this is not true, and in any event this assertion shows that the ILA is trying to acquire the work of others. Because the modern, efficient mechanism of containerization has affected their work at the pier, the ILA is using the Rules to reach out and bring to the pier work which employees of land-based transporters have always performed. Under the work preservation doctrine, the longshoremen may seek to mitigate the effect on them of this new technology, but they may not lawfully do so by reaching out for work which they have not traditionally performed. It is a gross perversion of the work preservation doctrine to permit such conduct; that doctrine, as applied here, ceases to be a shield to protect work and becomes a sword to cut work away from those who have traditionally performed it.
103
When a prepacked container which "violates" the Rules is taken off its trailer at the pier, the ILA demands that its members be paid for the utterly useless task of removing the contents and then repacking them, or alternatively that a fine be imposed on the shipping company which owns or leased the container.2 This is nothing less than an invidious form of "featherbedding" to block full implementation of modern technological progress. Allowing compromises in the interest of those whose jobs are affected is one thing; but what the Court sanctions today is quite another—taking work from non-ILA members to provide economically useless work for ILA members.
104
The Court of Appeals was obviously ill at ease with its decision and sought comfort by trying to restrict its scope through the intimation that its holding was limited to the presently claimed 50-mile limit.3 That court deceived itself, and the Court today puts on the same blinders in asserting that it is "groundless" to claim that the logic of its decision would allow the union "to follow containers around the country and assert the right to stuff and strip them far inland . . . ." Ante, at 510 n. 24. Should this occur, the Court states, "[t]hat work would bear an entirely different relation to traditional longshore work, and would require a wholly different analysis." Ibid.
105
It does not "reduce to absurdity," see n. 3, supra, to ask why 51 or 100 miles "would require a wholly different analysis." Following the Court's own strained reasoning, the work in controversy would still be the same—the longshoremen's work on the pier. Since they have never worked off the pier, the contested work could be nothing else. And, under the Court's analysis, "[t]he effect of work preservation agreements on the employment opportunities of employees not represented by the union, no matter how severe, is of course irrelevant to the validity of the agreement so long as the union had no forbidden secondary purpose to affect the employment relations of the neutral employer." Ante, at 507, n. 22.
106
By implying that the relevant work in controversy would suddenly shift from the pier to land if it occurred beyond the arbitrary 50-mile limit, the Court's opinion exposes its own error, much as the Court of Appeals comforted itself that the 50-mile point was the limit.4 Since longshoremen's work is and has always been confined to work "on the pier," the actual work in controversy here bears the same relation to traditional longshore work as it would if it were performed 500 miles away. It simply is not traditional longshore work. By looking only at one aspect of the problem and refusing to look at the whole, as the Board did, the Court's holding recalls the blind person who, holding an elephant's tail, concludes it is a snake. The Court fails, as did the Court of Appeals, to explain why a 50-mile limit is acceptable while 50-plus would not be so, and hence sanctions a widening of the work preservation exception that completely swallows the rules of §§ 8(e) and 8(b)(4)(B).
107
It is argued that the current Rules represent a collectively bargained compromise as to the ILA's asserted right to strip and stuff all containers (or at least all owned or leased by the shipping companies) at the pier, but the fact that an agreement was collectively bargained cannot save it if its object is to violate the law. As the Board decreed, that part of the Rules which attempts to regulate, through the economic pressure of fines on the shipping companies, the loading and unloading of land transportation away from the pier is invalid under §§ 8(e) and 8(b)(4)(B) of the NLRA.
108
The Board's findings are supported by substantial evidence on the record considered as a whole, cf. Pipefitters, 429 U.S., at 531, 97 S.Ct., at 905, and accordingly I would reverse the judgment of the Court of Appeals and remand with directions to enforce the Board's orders.
1
A contrary result was reached in International Longshoremen's Assn., Local 1575 v. NLRB, 560 F.2d 439 (CA1 1977), and in International Longshoremen's Assn. v. NLRB, 537 F.2d 706 (CA2 1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 740, 50 L.Ed.2d 753 (1977). Cf. Humphrey v. International Longshoremen's Assn., 548 F.2d 494 (CA4 1977).
2
See, e. g., Ullman, The Role of the American Ocean Freight Forwarder in Intermodal, Containerized Transportation, 2 J.Mar.L. & Comm. 625, 627 (1971); Schmeltzer & Peavy, Prospects and Problems of the Container Revolution, 1 J.Mar.L. & Comm. 203 (1970); Note, Containerization and Intermodal Service in Ocean Shipping, 21 Stan.L.Rev. 1077, 1078 (1969).
3
Ross, Waterfront Labor Response to Technological Change: A Tale of Two Unions, 21 Lab.L.J. 397, 398 (1970).
4
See Ross, supra n. 3, at 399-400; Schmeltzer & Peavy, supra n. 2, at 206-210; Note, supra n. 2, at 1087-1092.
5
See Ross, supra n. 3, at 399 (36-48 hours, compared to 7 or 8 days for conventional vessel); Schmeltzer & Peavy, supra n. 2, at 208 (8 hours compared to 3 days).
6
See Note, supra n. 2, at 1088 (container ship spends 25% of its time in port, compared to 60% for conventional vessel).
7
The longshore unit in the Port of New York was certified by the National Labor Relations Board as
"[a]ll longshore employees engaged in work pertaining to the rigging of ships, coaling of same, loading and unloading of cargoes, including mail, ships' stores and baggage, handling lines in connection with the docking and undocking of ships, including hatch bosses; cargo repairmen, checkers, clerks and timekeepers and their assistants, including head receiving and delivery clerks; general maintenance, mechanical and miscellaneous workers; horse and cattle fitters, grain ceilers, and marine carpenters, in the Port of Greater New York and vicinity. . . ." New York Shipping Assn., 116 N.L.R.B. 1183, 1188 (1956) (footnote omitted).
8
A freight consolidator combines the goods of various shippers into a single shipment at its own off-pier terminal and delivers the shipment to the pier. Ordinarily, consolidators operate no transportation of their own except for pick-up and delivery equipment. They contract with carriers, such as truckers and steamship lines, for the actual transportation of the goods. See Comment, Intermodal Transportation and the Freight Forwarder, 76 Yale L.J. 1360, 1362 (1967). A consolidator who acts as a carrier by arranging for the transportation of goods from port to port is called a nonvessel operating common carrier by water (NVOCC), and is regulated by the Federal Maritime Commission. See Federal Maritime Commission, Preliminary Staff Report on Non-Vessel Operating Common Carriers by Water (Dec. 8, 1970); see generally Ullman, supra n. 2.
9
See, e. g., 198 U.S.App.D.C., at 159, 613 F.2d, at 892; Ross, supra n. 3, at 400.
10
The longshoremen involved in this dispute are represented by the ILA. Their employers, shipowners and stevedoring companies operating in the Ports of New York, Baltimore, and Hampton Roads, belong to several employers' organizations. These include the New York Shipping Association (NYSA), the Steamship Trade Association of Baltimore (STAB), and the Hampton Roads Shipping Association (HRSA). Since 1970, the Council of North Atlantic Shipping Associations (CONASA), a multiemployer bargaining association representing shipping associations including NYSA, STAB, and HRSA, has bargained with ILA on a master-contract basis.
11
The first specially fitted container ship began operating in the late 1950's between New York and Puerto Rico. See App. 117. As late as 1966, the percentage of general cargo moved by containers in the Port of New York was only 3%. See Ross, supra n. 3, at 398. The first container ships did not appear in the Ports of Baltimore and Hampton Roads until 1965 and 1966. See 198 U.S.App.D.C., at 161, 613 F.2d, at 894; International Longshoremen's Assn. (Associated Transport, Inc.), 231 N.L.R.B. 351, 359 (1977).
12
The 1974 Rules are reproduced in the appendix to this opinion.
13
The 1968 and 1971 versions of the Rules referred only to containers "owned or leased" by the employers, see App. 237, 238, 247, 272, 273. The 1974 agreement refers to containers "owned, leased or used by carriers." See infra, at 514. There is nothing in the record to indicate that the fines which led to the unfair labor practice charges before us were imposed for infractions relating to containers which were not owned or leased by CONASA members. Therefore we, like the Board and the Court of Appeals, assume that the Rules have application only to containers that belong to the contracting employers. See 198 U.S.App.D.C., at 179, 613 F.2d, at 912; 236 N.L.R.B., at 526; 231 N.L.R.B., at 359; International Longshoremen's Assn. (Consolidated Express, Inc.), 221 N.L.R.B. 956, 958, 959 (1975); but see 231 N.L.R.B., at 353, n. 3 (Fanning, Chairman, dissenting).
14
Dolphin has since ceased doing business in New York.
15
Dolphin began such operations several years before the adoption of the Rules. The NYSA members contended that they supplied containers to Dolphin only because it listed Massachusetts as the point of origin for the containers rather than the actual facility within the port area. San Juan was established in 1972, several years after the Rules were first adopted. It apparently listed Chicago as the point of origin of containers it shipped. 198 U.S.App.D.C., at 166, 613 F.2d, at 899.
16
Associated is no longer in business.
17
The Rules were first litigated in 1970 when the United States Court of Appeals for the Second Circuit rejected a claim that their enforcement violated the antitrust laws. The Court of Appeals held that the Rules came under the labor exemption. Intercontinental Container Transport Corp. v. New York Shipping Assn., 426 F.2d 884 (CA2 1970). The plaintiff in the antitrust proceeding also initiated related unfair labor practice proceedings before the Board by filing unfair labor practice charges alleging violations of §§ 8(e) and 8(b)(4)(B). The Regional Director's dismissal of the charges, on the ground that the Rules were a valid work preservation agreement, was affirmed on appeal by the Board's General Counsel. App. 621.
18
Houff intervened on appeal, and TMTA and Dolphin were permitted to intervene after the Court of Appeals issued its decision.
19
Section 8(b), as set forth in 29 U.S.C. § 158(b), provides in pertinent part:
"It shall be an unfair labor practice for a labor organization or its agents—
* * * * *
"(4)(ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where . . . an object thereof is—
* * * * *
"(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person . . . Provided, That nothing contained in this clause (B) shall be construed to make unlawful . . . any primary strike or primary picketing. . . ."
20
Section 8(e), as set forth in 29 U.S.C. § 158(e), provides in pertinent part:
"It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforcible and void . . . ."
21
See Comment, Work Recapture Agreements and Secondary Boycotts: ILA v. NLRB (Consolidated Express, Inc.), 90 Harv.L.Rev. 815 (1977).
22
The effect of work preservation agreements on the employment opportunities of employees not represented by the union, no matter how severe, is of course irrelevant to the validity of the agreement so long as the union had no forbidden secondary purpose to affect the employment relations of the neutral employer. See Pipefitters, 429 U.S., at 510, 526, 97 S.Ct., at 894, 902.
23
We need hardly add that the analysis is not, as the parties have sometimes seemed to suggest, simply a matter of deciding whether a container is more like the hold of a ship or more like a big box. The usefulness of a container lies precisely in the fact that it may function as an integral part of the hold while it is aboard a vessel, as a trailer when it is transported by truck, and as part of a railroad car when it is carried by rail.
24
Obviously, the result will depend on how closely the parties have tailored their agreement to the objective of preserving the essence of the traditional work patterns. Thus the claim that if the Rules are upheld the union would be able to follow containers around the country and assert the right to stuff and strip them far inland is groundless. That work would bear an entirely different relation to traditional longshore work, and would require a wholly different analysis.
25
They contend that there is no significant economic advantage to be gained from containerization over break-bulk handling at the pier when the stuffing and stripping is done locally.
26
The dissenting opinion of THE CHIEF JUSTICE proceeds on the assumption that we decide today the proper definition of the work in controversy, see post, at 528, and hold that the Rules are a lawful work preservation agreement, see post, at 525, 528-529. Our holding, we repeat, is that the Board's definition of the work in controversy was erroneous as a matter of law. The question whether the Rules may be sustained under a proper understanding of the work preservation doctrine must be answered first by the Board on remand.
27
It is plain that the outcome of the right-to-control test will be significantly affected by whether the work in controversy is viewed as the stuffing and stripping done at the off-pier facilities of truckers and consolidators by their own employees or as, for example, the stuffing and stripping of certain types of cargo from containers owned or leased by, and in the possession and control of, the shipping companies.
1
This is thus far from a classic case of "labor" versus "management." Here, one segment of labor seeks to take work away from another segment, and to impose a "featherbedding" fine on employers as an enforcement device.
2
It is natural, of course, for individuals—and unions—to want to "preserve" work which by long practice has been "theirs." But there must be a balancing of this urge with the need for innovation and change in methods that spell progress and reduce consumer cost. In the complaints of the ILA, one hears the echoes of the complaints of stablekeepers and harness manufacturers when the automobile first gained wide acceptance. With practices such as those held permissible in this case, innovation and change in the utilization of modern machinery, methods, and labor will be retarded. Obsolete machinery and obsolete methods will tend to be used because industry will not be anxious to risk investment capital on labor-saving, cost-reducing methods and mechanisms if, by doing so, it must pay in tribute for the privilege a penalty that offsets the savings.
3
That court's opinion recites: "It is not difficult to imagine a party unhappy with this court's decision today subjecting that decision to the following exercise in reductio ad absurdum : Under the court's ruling, cannot longshoremen literally chase containers around the country, demanding the right to stuff and strip them? There is a short answer: No. Our decision does not radiate beyond the Rules on Containers, which are restricted in terms to a 50-mile area around each port." 198 U.S.App.D.C. 157, 177, n. 177, 613 F.2d 890, 910, n. 177 (1979).
4
Even under the current Rules, the 50-mile point is not strictly the limit. If a consolidator or trucker operating within the 50-mile limit relocates or opens new operations outside the limit, the parties to the Rules may decide nonetheless that the sanctions of the Rules are to apply. See Rule 7(a) of the 1974 Rules on Containers, reprinted in the Court's appendix, ante, at 518.
| 67
|
447 U.S. 649
100 S.Ct. 2395
65 L.Ed.2d 410
William WALTER, Petitioner,v.UNITED STATES. Arthur Randall SANDERS, Jr., et al., Petitioners, v. UNITED STATES.
Nos. 79-67, 79-148.
Argued Feb. 26, 1980.
Decided June 20, 1980.
Syllabus
When an interstate shipment of several securely sealed packages containing 8-millimeter films depicting homosexual activities was mistakenly delivered by a private carrier to a third party rather than to the consignee, employees of the third party opened each of the packages, finding individual film boxes, on one side of which were suggestive drawings, and on the other were explicit descriptions of the contents. One employee opened one or two of the boxes and attempted without success to view portions of the film by holding it up to the light. After the Federal Bureau of Investigation was notified and picked up the packages, agents viewed the films with a projector without first making any effort to obtain a warrant or to communicate with the consignor or the consignee of the shipment. Thereafter, petitioners were indicted on federal obscenity charges relating to the interstate transportation of certain of the films in the shipment, a motion to suppress and return the films was denied, and petitioners were convicted. The Court of Appeals affirmed, and rehearing was denied.
Held : The judgments are reversed. Pp. 653-660; 660-662.
Certiorari dismissed in part; 5th Cir., 592 F.2d 788 and 5th Cir., 597 F.2d 63, reversed.
Mr. Justice STEVENS, joined by Mr. Justice STEWART, concluded that even though the nature of the contents of the films was indicated by descriptive material on their individual containers, the Government's unauthorized screening of the films constituted an unreasonable invasion of their owner's constitutionally protected interest in privacy. It was a search; there was no warrant; the owner had not consented; and there were no exigent circumstances. Cf. Stanley v. Georgia, 394 U.S. 557, 569, 89 S.Ct. 1243, 1250, 22 L.Ed.2d 542 (STEWART, J., concurring in result). Pp. 653-660.
1
(a) The fact that FBI agents were lawfully in possession of the boxes of film did not give them authority to search their contents. An officer's authority to possess a package is distinct from his authority to examine its contents, and when the contents of the package are books or other materials arguably protected by the First Amendment, and the basis for the seizure is disapproval of the message contained therein, it is especially important that the Fourth Amendment's warrant requirement be scrupulously observed. Pp. 654-655.
2
(b) Nor does the fact that the packages and one or more of the boxes had been opened by a private party before they were acquired by the FBI excuse the failure to obtain a search warrant. Even though some circumstances—for example, if the results of the private search are in plain view when materials are turned over to the Government—may justify the Government's re-examination of the materials, the Government may not exceed the scope of the private search unless it has the right to make an independent search. Here, the private party had not actually viewed the films, and prior to the Government screening one could only draw inferences about what was on the films. Thus, the projection of the films was a significant expansion of the previous search by a private party and therefore must be characterized as a separate search, which was not supported by any exigency or by a warrant even though one could have easily been obtained. Pp. 656-657.
3
(c) The fact that the cartons of film boxes, which cartons were securely wrapped and had no markings indicating the character of their contents, were unexpectedly opened by a third party before the shipment was delivered to its intended consignee, thus uncovering the descriptive labels on the film boxes, does not alter the consignor's legitimate expectation of privacy in the films. The private search merely frustrated that expectation in part and did not strip the remaining unfrustrated portion of that expectation of all Fourth Amendment protection. Pp. 658-659.
4
Mr. Justice WHITE joined by Mr. Justice BRENNAN, concurring in part and in the judgment, agreed that the Government's warrantless projection of the films constituted a search that infringed petitioners' Fourth Amendment interests even though the Government had acquired the films from a private party, but disagreed with the suggestion that it is an open question whether the Government's projection of the films would have infringed any Fourth Amendment interest if private parties had projected the films before turning them over to the Government. The notion that private searches insulate from Fourth Amendment scrutiny subsequent governmental searches of the same or lesser scope is inconsistent with traditional Fourth Amendment principles, and even if the private parties in this action had projected the films before turning them over to the Government, the Government still would have been required to obtain a warrant for its subsequent screening of them. Pp. 660-662.
5
Mr. Justice MARSHALL concurred in the judgment.
6
W. Michael Maylock, Los Angeles, Cal., for petitioner William Walter.
7
Glenn Zell, Atlanta, Ga., for petitioners Arthur Randall Sanders, and others.
8
Elliott Schulder, Washington, D. C., for respondent in both cases.
9
Mr. Justice STEVENS announced the judgment of the Court and delivered an opinion, in which Mr. Justice STEWART joined.
10
Having lawfully acquired possession of a dozen cartons of motion pictures, law enforcement officers viewed several reels of 8-millimeter film on a Government projector. Labels on the individual film boxes indicated that they contained obscene pictures. The question is whether the Fourth Amendment required the agents to obtain a warrant before they screened the films.
11
Only a few of the bizarre facts need be recounted. On September 25, 1975, 12 large, securely sealed packages containing 871 boxes of 8-millimeter film depicting homosexual activities were shipped by private carrier from St. Petersburg, Fla., to Atlanta, Ga. The shipment was addressed to "Leggs, Inc.,"1 but was mistakenly delivered to a substation in the suburbs of Atlanta, where "L'Eggs Products, Inc.," regularly received deliveries. Employees of the latter company opened each of the packages, finding the individual boxes of film. They examined the boxes, on one side of which were suggestive drawings, and on the other were explicit descriptions of the contents. One employee opened one or two of the boxes, and attempted without success to view portions of the film by holding it up to the light.2 Shortly thereafter, they called a Federal Bureau of Investigation agent who picked up the packages on October 1, 1975.
12
Thereafter, without making any effort to obtain a warrant or to communicate with the consignor or the consignee of the shipment, FBI agents viewed the films with a projector. The record does not indicate exactly when they viewed the films, but at least one of them was not screened until more than two months after the FBI had taken possession of the shipment.3
13
On April 6, 1977, petitioners were indicted on obscenity charges relating to the interstate transportation of 5 of the 871 films in the shipment. A motion to suppress and return the films was denied, and petitioners were convicted on multiple counts of violating 18 U.S.C. §§ 371, 1462, and 1465. Over Judge Wisdom's dissent, the Court of Appeals for the Fifth Circuit affirmed, 592 F.2d 788, and rehearing was denied, 597 F.2d 63 (1979). We granted certiorari, 444 U.S. 914, 100 S.Ct. 227, 62 L.Ed.2d 168,4 and now reverse.
14
In his concurrence in Stanley v. Georgia, 394 U.S. 557, 569, 89 S.Ct. 1243, 1250, 22 L.Ed.2d 542, Mr. Justice STEWART expressed the opinion that the warrantless projection of motion picture films was an unconstitutional invasion of the privacy of the owner of the films. After noting that the agents in that case were lawfully present in the defendant's home pursuant to a warrant to search for wagering paraphernalia, Mr. Justice STEWART wrote:
15
"This is not a case where agents in the course of a lawful search came upon contraband, criminal activity, or criminal evidence in plain view. For the record makes clear that the contents of the films could not be determined by mere inspection. . . . After finding them, the agents spent some 50 minutes exhibiting them by means of the appellant's projector in another upstairs room. Only then did the agents return downstairs and arrest the appellant.
16
"Even in the much-criticized case of United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, the Court emphasized that 'exploratory searches . . . cannot be undertaken by officers with or without a warrant.' Id., at 62, 70 S.Ct., at 434. This record presents a bald violation of that basic constitutional rule. To condone what happened here is to invite a government official to use a seemingly precise and legal warrant only as a ticket to get into a man's home, and, once inside, to launch forth upon unconfined searches and indiscriminate seizures as if armed with all the unbridled and illegal power of a general warrant.
17
"Because the films were seized in violation of the Fourth and Fourteenth Amendments, they were inadmissible in evidence at the appellant's trial." Id., at 571-572, 89 S.Ct., at 1251 (footnote omitted).
18
Even though the cases before us involve no invasion of the privacy of the home, and notwithstanding that the nature of the contents of these films was indicated by descriptive material on their individual containers, we are nevertheless persuaded that the unauthorized exhibition of the films constituted an unreasonable invasion of their owner's constitutionally protected interest in privacy. It was a search; there was no warrant; the owner had not consented; and there were no exigent circumstances.
19
It is perfectly obvious that the agents' reason for viewing the films was to determine whether their owner was guilty of a federal offense. To be sure, the labels on the film boxes gave them probable cause to believe that the films were obscene and that their shipment in interstate commerce had offended the federal criminal code. But the labels were not sufficient to support a conviction and were not mentioned in the indictment. Further investigation—that is to say, a search of the contents of the films—was necessary in order to obtain the evidence which was to be used at trial.
20
The fact that FBI agents were lawfully in possession of the boxes of film did not give them authority to search their contents. Ever since 1878 when Mr. Justice Field's opinion for the Court in Ex parte Jackson, 96 U.S. 727, 24 L.Ed. 877, established that sealed packages in the mail cannot be opened without a warrant, it has been settled that an officer's authority to possess a package is distinct from his authority to examine its contents.5 See Arkansas v. Sanders, 442 U.S. 753, 758, 99 S.Ct. 2586, 2590, 61 L.Ed.2d 235; United States v. Chadwick, 433 U.S. 1, 10, 97 S.Ct. 2476, 2482, 53 L.Ed.2d 538. When the contents of the package are books or other materials arguably protected by the First Amendment, and when the basis for the seizure is disapproval of the message contained therein, it is especially important that this requirement be scrupulously observed.6
21
Nor does the fact that the packages and one or more of the boxes had been opened by a private party before they were acquired by the FBI excuse the failure to obtain a search warrant. It has, of course, been settled since Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048, that a wrongful search or seizure conducted by a private party does not violate the Fourth Amendment and that such private wrongdoing does not deprive the government of the right to use evidence that it has acquired lawfully. See Coolidge v. New Hampshire, 403 U.S. 443, 487-490, 91 S.Ct. 2022, 2048-2050, 29 L.Ed.2d 564. In these cases there was nothing wrongful about the Government's acquisition of the packages or its examination of their contents to the extent that they had already been examined by third parties. Since that examination had uncovered the labels, and since the labels established probable cause to believe the films were obscene, the Government argues that the limited private search justified an unlimited official search. That argument must fail, whether we view the official search as an expansion of the private search or as an independent search supported by its own probable cause.
22
When an official search is properly authorized—whether by consent or by the issuance of a valid warrant—the scope of the search is limited by the terms of its authorization.7 Consent to search a garage would not implicitly authorize a search of an adjoining house; a warrant to search for a stolen refrigerator would not authorize the opening of desk drawers. Because "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," Payton v. New York, 445 U.S. 573, 583, 100 S.Ct. 1371, 1378, 63 L.Ed.2d 639, that Amendment requires that the scope of every authorized search be particularly described.8
23
If a properly authorized official search is limited by the particular terms of its authorization, at least the same kind of strict limitation must be applied to any official use of a private party's invasion of another person's privacy. Even though some circumstances—for example, if the results of the private search are in plain view when materials are turned over to the Government may justify the Government's re-examination of the materials, surely the Government may not exceed the scope of the private search unless it has the right to make an independent search. In these cases, the private party had not actually viewed the films. Prior to the Government screening one could only draw inferences about what was on the films.9 The projection of the films was a significant expansion of the search that had been conducted previously by a private party and therefore must be characterized as a separate search. That separate search was not supported by any exigency, or by a warrant even though one could have easily been obtained.10
24
The Government claims, however, that because the packages had been opened by a private party, thereby exposing the descriptive labels on the boxes, petitioners no longer had any reasonable expectation of privacy in the films, and that the warrantless screening therefore did not invade any privacy interest protected by the Fourth Amendment. But petitioners expected no one except the intended recipient either to open the 12 packages or to project the films. The 12 cartons were securely wrapped and sealed, with no labels or markings to indicate the character of their contents.11 There is no reason why the consignor of such a shipment would have any lesser expectation of privacy than the consignor of an ordinary locked suitcase.12 The fact that the cartons were unexpectedly opened by a third party before the shipment was delivered to its intended consignee does not alter the consignor's legitimate expectation of privacy. The private search merely frustrated that expectation in part.13 It did not simply strip the remaining unfrustrated portion of that expectation of all Fourth Amendment protection.14 Since the additional search conducted by the FBI the screening of the films—was not supported by any justification, it violated that Amendment.
25
We therefore conclude that the rationale of Mr. Justice STEWART's concurrence in Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 is applicable to these cases and that it requires that the judgments of the Court of Appeals be reversed.
26
It is so ordered.
27
Mr. Justice MARSHALL concurs in the judgment.
28
Mr. Justice WHITE, with whom Mr. Justice BRENNAN joins, concurring in part and concurring in the judgment.
29
I agree with Mr. Justice STEVENS that the Government's warrantless projection of the films constituted a search that infringed petitioners' Fourth Amendment interests despite the fact that the Government had acquired the films from a private party.1 I write separately, however, because I disagree with Mr. Justice STEVENS' suggestion that it is an open question whether the Government's projection of the films would have infringed any Fourth Amendment interest if private parties had projected the films before turning them over to the Government, ante, at 657, n. 9. The notion that private searches insulate from Fourth Amendment scrutiny subsequent governmental searches of the same or lesser scope is inconsistent with traditional Fourth Amendment principles. Nor does it follow from our recognition in Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921), and Coolidge v. New Hampshire, 403 U.S. 443, 487-490, 91 S.Ct. 2022, 2048-2050, 29 L.Ed.2d 564 (1971), that the Fourth Amendment proscribes only governmental action.2
30
I agree with Mr. Justice STEVENS that there was "nothing wrongful" about the Government's examination of the contents of the packages that had been opened by private parties. When the private parties turned the films over to the Government, the packages already had been opened, and the Government saw no more than what was exposed to plain view. No Fourth Amendment interest was implicated by this conduct because the opening of the packages cannot be attributed to the Government and considered a governmental search.3 As the Court noted in Coolidge v. New Hampshire, supra, at 489, where a private party produced evidence for government inspection, "it was not incumbent on the police to stop her or avert their eyes."
31
This does not mean, however, that the Government subsequently may conduct the same kind of search that private parties have conducted without implicating Fourth Amendment interests. The contrary view would permit Government agents to conduct warrantless searches of personal property whenever probable cause exists as a result of a prior private search. We have previously held, however, that police must obtain a warrant before searching a suspect's luggage even if they have probable cause to believe that it contains contraband. Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979); United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). The fact that such probable cause may be the product of a private search would not alter the need to comply with the warrant requirement. Thus, if the private parties in these cases had projected the films before turning them over to the Government, the Government still would have been required to obtain a warrant for its subsequent screening of them. As Mr. Justice STEVENS recognizes, petitioners possessed a legitimate expectation of privacy in the films, and this expectation was infringed by the Government's unauthorized screening of them. Unlike the opening of the packages that destroyed their privacy by exposing their contents to the plain view of subsequent observers, a private screening of the films would not have destroyed petitioners' privacy interest in them. Thus the Government's subsequent screening of the films constituted an independent, governmental search that would have infringed petitioners' Fourth Amendment interests without regard to any previous screening by private parties.
32
I therefore concur in part and in the judgment.
33
Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE, Mr. Justice POWELL, and Mr. Justice REHNQUIST join, dissenting.
34
The Court at least preserves the integrity of the rule specifically recognized long ago in Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921). That rule is to the effect that the Fourth Amendment proscribes only governmental action, and does not apply to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.
35
I disagree with Mr. Justice STEVENS' opinion's parsing of the cases' "bizarre facts" see ante, at 651, to reach a result that the Government's screening of the films in question was an additional and unconstitutional search. The facts, indeed unusual, convince me that, by the time the FBI received the films, these petitioners had no remaining expectation of privacy in their contents.
36
The cartons in which the films were contained were shipped by petitioners via Greyhound, a private carrier, to a fictitious addressee, and with the shipper fictitiously identified. The private examination of the packages by employees of L'Eggs Products, Inc., whom Greyhound innocently asked to pick up the packages, revealed that they contained films and that the films were of an explicit sexual nature. This was obvious from the drawings and labels on the containers, drawings that Mr. Justice STEVENS' opinion describes as "suggestive," and descriptions he refers to as "explicit." Ante, at 652. The containers thus clearly revealed the nature of their contents. See 592 F.2d 788, 793-794, and n. 5 (CA5 1979). The opinion acknowledges that "there was nothing wrongful about the Government's acquisition of the packages or its examination of their contents to the extent that they had already been examined by third parties." Ante, at 656. But in finding that the FBI's "projection of the films was a significant expansion of the search that had been conducted previously by a private party," ante, at 657, the opinion seems conveniently to have overlooked the fact that the FBI received the film cartons after they had been opened, and after the films' labels had been exposed to the public.
37
I agree with the conclusion reached by the Court of Appeals' majority:
38
"Under these circumstances, since the L'Eggs employees so fully ascertained the nature of the films before contacting the authorities, we find that the FBI's subsequent viewing of the movies on a projector did not 'change the nature of the search' and was not an additional search subject to the warrant requirement." 592 F.2d, at 793-794.1
39
The STEVENS opinion's contrary conclusion apparently is based on the view that petitioners had a legitimate expectation of privacy in the contents of these films, which they had protected by sealing them securely in the proverbial "plain brown wrapper," that was "frustrated" only "in part," ante, at 659, by the earlier private search.2 But it seems to me that the opinion ignores the fact that the partial frustration of petitioners' subjective expectation of privacy was directly attributable to their own actions. The District Court described it well when it ruled:
40
"And it seems to me, under the circumstances of this case, that shipping or causing or suffering to be shipped by a common carrier, namely, Greyhound Bus Lines, with a fictitious name given for the shipper as well as the fictitious name given for the consignee or addressee, amounts to a relinquishment or abandonment of any reasonable expectation of privacy.
41
"Or, stated another way, it seems to me that it was reasonably foreseeable in those circumstances that what actually occurred would occur. That is to say, that there was substantial likelihood that the material would be misdelivered and fall into the hands of some third party, as actually happened in this case, where it would be opened and its privacy, if it had any, invaded." App. 37-38, quoted in part in 592 F.2d, at 791.
42
Given the facts, and the STEVENS opinion's conclusions based thereon, I cannot help but wonder at the concession that "if a gun case is delivered to a carrier, there could then be no expectation that the contents would remain private." Ante, at 659, n. 12. The films in question were in a state no different from Mr. Justice STEVENS' hypothetical gun case when they reached the FBI. Their contents were obvious from "the condition of the package," ante, at 658, n. 12, and those contents had been exposed as a result of a purely private search that did not implicate the Fourth Amendment. Moreover, it was petitioners' own actions that made it likely that such a private search would occur. The opinion fails to explain, at least to my satisfaction, why petitioners' subjective expectation of privacy at the time they shipped the films, rather than at the time the films came into possession of the FBI (with the resulting protection of constitutional safeguards from unreasonable governmental action), controls this inquiry. Any subjective expectation of privacy on the part of petitioners was undone by that time by their own actions and the private search. In any event, it was abandoned by their shunning the property, under the circumstances of these cases, for over 20 months.3
43
We tend occasionally to strain credulity and to spin the thread of argument so thin that we depart from the commonsense approach to an obvious fact situation. It seems to me to be beyond the limits of sound precedent to exclude the evidence of petitioners' crimes in the face of the "bizarre" developments that transpired here, developments that petitioners brought upon themselves. But the cases are strange and particular ones. The margin for reversal is narrow, and I rest assured that sound constitutional precepts will survive the result the Court reaches today.
44
I would affirm the judgments of the Court of Appeals.
1
There was no "Leggs, Inc." "Leggs" was the nickname of a woman employed by one of petitioners' companies. The packages indicated that the intended recipient would pick them up and pay for them at the carrier's terminal in Atlanta.
2
Each reel was eight millimeters in width. Petitioner Walter informs us that, excluding three millimeters for sprocketing and one millimeter for the border, the film itself is only four millimeters wide. Brief for Petitioner in No. 79-67, p. 30, n. 8. Since the scenes depicted within the frame are necessarily even more minute, it is easy to understand why such films cannot be examined successfully with the naked eye.
3
The FBI had meanwhile received no request from the consignee or the consignor of the films for their return, but the agents had been told by employees of L'Eggs Products, Inc., that inquiries had been made as to their whereabouts.
4
The petition for certiorari in No. 79-67 presented 10 separate questions, and the petition in No. 79-148 presented 5 separate questions. Except with respect to the issues discussed in the text, we have determined that certiorari was improvidently granted. We therefore dismiss as to the other questions that have been briefed and argued. For purposes of decision, we accept the Government's argument that the delivery of the films to the FBI by a third party was not a "seizure" subject to the warrant requirement of the Fourth Amendment.
5
"In th[e] enforcement [of regulations as to what may be transported in the mails], a distinction is to be made between different kinds of mail matter,—between what is intended to be kept free from inspection, such as letters, and sealed packages subject to letter postage; and what is open to inspection, such as newspapers, magazines, pamphlets, and other printed matter, purposely left in a condition to be examined. Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles. The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizure extends to their papers, thus closed against inspection, wherever they may be. Whilst in the mail, they can only be opened and examined under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one's own household. No law of Congress can place in the hands of officials connected with the postal service any authority to invade the secrecy of letters and such sealed packages in the mail; and all regulations adopted as to mail matter of this kind must be in subordination to the great principle embodied in the fourth amendment of the Constitution." 96 U.S., at 732-733.
And later in his opinion, Mr. Justice Field again noted that "regulations excluding matter from the mail cannot be enforced in a way which would require or permit an examination into letters, or sealed packages subject to letter postage, without warrant, issued upon oath or affirmation, in the search for prohibited matter. . . ." Id., at 735.
6
"This is the history which prompted the Court less than four years ago to remark that '[t]he use by government of the power of search and seizure as an adjunct to a system for the suppression of objectionable publications is not new.' Marcus v. Search Warrant, 367 U.S. 717, at 724, [81 S.Ct. 1708, at 1712, 6 L.Ed.2d 1127]. 'This history was, of course, part of the intellectual matrix within which our constitutional fabric was shaped. The Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression.' Id., at 729 [81 S.Ct., at 1714]. As Mr. Justice DOUGLAS has put it, 'The commands of our First Amendment (as well as the prohibitions of the Fourth and the Fifth) reflect the teachings of Entick v. Carrington [19 How.St.Tr. 1029 (1765)]. These three amendments are indeed closely related, safeguarding not only privacy and protection against self-incrimination but "conscience and human dignity and freedom of expression as well." ' Frank v. Maryland, 359 U.S. 360, 376 [79 S.Ct. 804, 813, 3 L.Ed.2d 877] (dissenting opinion).
"In short, what this history indispensably teaches is that the constitutional requirement that warrants must particularly describe the 'things to be seized' is to be accorded the most scrupulous exactitude when the 'things' are books, and the basis for their seizure is the ideas which they contain." Stanford v. Texas, 379 U.S. 476, 484-485, 85 S.Ct. 506, 511, 13 L.Ed.2d 431.
See also Roaden v. Kentucky, 413 U.S. 496, 501, 93 S.Ct. 2796, 2799, 37 L.Ed.2d 757. Although there were 871 reels of film in the shipment, there were only 25 different titles. Since only five of the titles were used as a basis for prosecution, it may be presumed that the other films were not obscene.
7
"The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another." Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231.
8
The Warrant Clause of the Fourth Amendment expressly provides that no warrant may issue except those "particularly describing the place to be searched, and the persons or things to be seized."
9
Since the viewing was first done by the Government when it screened the films with a projector, we have no occasion to decide whether the Government would have been required to obtain a warrant had the private party been the first to view them.
10
The fact that the labels on the boxes established probable cause to believe the films were obscene clearly cannot excuse the failure to obtain a warrant; for if probable cause dispensed with the necessity of a warrant, one would never be needed.
Contrary to the dissent, post, at 665-666, n. 3, there were no impracticalities in these cases that would vitiate the warrant requirement. The inability to serve a warrant on the owner of property to be searched does not make execution of the warrant unlawful. See ALI, Model Code of Pre-Arraignment Procedure § 220.3(4) (Prop. Off. Draft 1975). Obviously, such inability does not render a warrant unnecessary under the Fourth Amendment. Nor is it clear in these cases that it would have been impossible to serve petitioners with a search warrant had the FBI made any effort to find them prior to screening the films. See n. 3, supra.
11
For the same reason, one may not deem petitioners to have consented to the screening merely because the labels on the unexposed boxes were explicit.
Nor can petitioners' failure to make a more prompt claim to the Government for return of the films be fairly regarded as an abandonment of their interest in preserving the privacy of the shipment. As subsequent events have demonstrated, such a request could reasonably be expected to precipitate criminal proceedings. We cannot equate an unwillingness to invite a criminal prosecution with a voluntary abandonment of any interest in the contents of the cartons. In any event, the record in these cases does indicate that the defendants made a number of attempts to locate the films before they were examined by the FBI agents.
12
The consignor's expectation of privacy in the contents of a carton delivered to a private carrier must be measured by the condition of the package at the time it was shipped unless there is reason to assume that it would be opened before it arrived at its destination. Thus, for example, if a gun case is delivered to a carrier, there could then be no expectation that the contents would remain private, cf. Arkansas v. Sanders, 442 U.S. 753, 764-765, n. 13, 99 S.Ct. 2586, 2593, n. 13, 61 L.Ed.2d 235; but if the gun case were enclosed in a locked suitcase, the shipper would surely expect that the privacy of its contents would be respected.
The dissent asserts, post, at 665, that "[a]ny subjective expectation of privacy on the part of petitioners was undone . . . by their own actions and the private search." But it is difficult to understand how petitioners' subjective expectation of privacy could have been altered in any way by subsequent events of which they were obviously unaware.
13
A partial invasion of privacy cannot automatically justify a total invasion. As Learned Hand noted in a somewhat different context: "It is true that when one has been arrested in his home or his office, his privacy has already been invaded; but that interest, though lost, is altogether separate from the interest in protecting his papers from indiscriminate rummage, even though both are customarily grouped together as parts of the 'right of privacy.' " United States v. Rabinowitz, 176 F.2d 732, 735 (CA2 1949), rev'd, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653. Judge Hand's view was ultimately vindicated in Chimel v. California, 395 U.S. 752, 768, 89 S.Ct. 2034, 2042, 23 L.Ed.2d 685, which specifically disapproved this Court's decision in Rabinowitz. See also Mr. Justice STEWART's opinion concurring in the result in Stanley v. Georgia, 394 U.S. 557, 571-572, 89 S.Ct. 1243, 1251, 22 L.Ed.2d 542 quoted supra, at 653-654.
14
It is arguable that a third party's inspection of the contents of "private books, papers, memoranda, etc." could be so complete that there would be no additional search by the FBI when it re-examines the materials. Cf. Burdeau v. McDowell, 256 U.S. 465, 470, 41 S.Ct. 574, 65 L.Ed. 1048. But this is not such a case, because it was clearly necessary for the FBI to screen the films, which the private party had not done, in order to obtain the evidence needed to accomplish its law enforcement objectives.
1
Although Mr. Justice STEVENS' opinion refers to the films as having been "lawfully acquired" by the Government, ante, at 651, 654, 656, I note that he does not reach the question whether the Government's acquisition of the films was a "seizure" subject to the warrant requirement of the Fourth Amendment, ante, at 653, n. 4, a question on which the Court of Appeals was divided. 592 F.2d 788, 792-793, 800-802 (CA5 1979). Likewise, I do not address this question.
2
Neither Burdeau v. McDowell nor Coolidge v. New Hampshire supports the proposition that private searches insulate subsequent governmental searches from Fourth Amendment scrutiny. In Burdeau the Court held that the actions of a private party in illegally seizing evidence will not be attributed to the Government for Fourth Amendment purposes when the private party turns the evidence over to the Government. The Court noted that because "no official of the Federal Government had anything to do with the wrongful seizure of the petitioner's property, . . . [i]t is manifest that there was no invasion of the security afforded by the Fourth Amendment against unreasonable search and seizure, as whatever wrong was done was the act of individuals in taking the property of another." 256 U.S., at 475, 41 S.Ct., at 576. Similarly, in Coolidge v. New Hampshire, the Court held that a wife's voluntary action in turning over to police her husband's guns and clothing did not constitute a search and seizure by the government. 403 U.S., at 487-490, 91 S.Ct., at 2048-2050.
3
Because the private party's opening of the packages exposed their contents to plain view and made it unnecessary for the FBI agents to open the packages, there was no governmental search when the FBI viewed their contents. Except in such circumstances, I do not understand how a third party's inspection of a package's contents "could be so complete that there would be no additional search by the FBI when it re-examines the materials," ante, at 659, n. 14.
1
The Court of Appeals noted, 592 F.2d, at 794, n. 6, and placed some reliance on, the observations of Judge William H. Webster in his dissenting opinion in United States v. Haes, 551 F.2d 767 (CA8 1977):
"Can it be seriously argued that an agent receiving a suspected book or magazine from a freight carrier employee could not reasonably open the publication and peruse its pages to determine whether its contents offended the law? . . . Would a government agent who used a magnifying glass or other mechanical aid to identify an object to vulnerable to a claim of an unreasonable search independent of the lawful private search which produced the object? I think clearly not.
"The film in this case was not a means of concealing something else. In looking at the film through a projector, the agents did no more than view the motion pictures in the manner in which they were intended to be viewed." Id., at 772-773 (footnote omitted).
The present cases are even stronger ones for recognizing the legality of the Government's projection of the film than the case Judge Webster posed. When the FBI screened these films, they already were aware of the nature of their contents.
2
In contrast, I am at a loss to explain the conclusion stated in Mr. Justice WHITE'S opinion, ante, at 662, that even "a private screening of the films would not have destroyed petitioners' privacy interest in them."
3
All this is reinforced by the impracticalities the Court would impose upon the FBI in these cases. The STEVENS opinion and the WHITE opinion both insist that a warrant should have been obtained before any of the films were viewed. One might inquire, on whom would the warrant be served? Surely, not on L'Eggs Products, Inc., which no longer had possession and wanted only to wish these films a speedy good riddance. And surely not on the shippers, who purposefully had concealed their identities.
| 01
|
447 U.S. 530
100 S.Ct. 2326
65 L.Ed.2d 319
CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Appellant,v.PUBLIC SERVICE COMMISSION OF NEW YORK.
No. 79-134.
Argued March 17, 1980.
Decided June 20, 1980.
Syllabus
Held : An order of appellee New York Public Service Commission that prohibits the inclusion by appellant (and other public utility companies) in monthly bills of inserts discussing controversial issues of public policy directly infringes the freedom of speech protected by the First and Fourteenth Amendments and thus is invalid. Cf. First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707. Pp. 533-544.
(a) The restriction on bill inserts cannot be upheld on the ground that appellant, as a corporation, is not entitled to freedom of speech. "The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual." First National Bank of Boston v. Bellotti, supra, at 777, 98 S.Ct., at 1416. Pp. 533-535.
(b) Nor is the state action here a valid time, place, or manner restriction. While the validity of reasonable time, place, or manner regulations that serve a significant governmental interest and leave ample alternative channels for communication has been recognized, such regulations may not be based upon either the content or subject matter of speech. Appellee here does not pretend that its action is unrelated to the content of bill inserts, inserts that present information to consumers on certain subjects, such as energy conservation measures, being allowed but inserts that discuss public controversies being forbidden. Pp. 535-537.
(c) The prohibition against inserts is not a permissible subject-matter regulation merely because it applies to all discussion of political controversies, whether pro or con. The First Amendment's hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic, and the regulation at issue here does not fall within the narrow exceptions to the general prohibition against subject-matter distinctions. Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505, and Lehman v. Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770, distinguished. Pp. 537-540.
(d) Furthermore, the state action here is not valid as a narrowly drawn prohibition serving a compelling state interest. The prohibition cannot be justified as being necessary to avoid forcing appellant's views on a captive audience, since customers may escape exposure to objectionable material simply by throwing the bill insert into a wastebasket. Nor is the prohibition warranted as being necessary to allocate, in the public interest, the limited space in the billing envelope, there being nothing in the record to show that the bill inserts at issue would preclude the inclusion of other inserts that appellant might be ordered lawfully to include in the billing envelope. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371, distinguished. And the prohibition cannot be justified as being necessary to ensure that ratepayers do not subsidize the cost of the bill inserts, since there is no basis on the record to assume that appellee could not exclude the cost of the inserts from the utility's rate base. Pp. 540-543.
47 N.Y.2d 94, 417 N.Y.S.2d 30, 390 N.E.2d 749, reversed.
Joseph D. Block, New York City, for appellant.
Peter H. Schiff, Albany, N. Y., for appellee.
Mr. Justice POWELL delivered the opinion of the Court.
1
The question in this case is whether the First Amendment, as incorporated by the Fourteenth Amendment, is violated by an order of the Public Service Commission of the State of New York that prohibits the inclusion in monthly electric bills of inserts discussing controversial issues of public policy.
2
* The Consolidated Edison Company of New York, appellant in this case, placed written material entitled "Independence Is Still a Goal, and Nuclear Power Is Needed To Win the Battle" in its January 1976 billing envelope. The bill insert stated Consolidated Edison's views on "the benefits of nuclear power," saying that they "far outweigh any potential risk" and that nuclear power plants are safe, economical, and clean. App. 35. The utility also contended that increased use of nuclear energy would further this country's independence from foreign energy sources.
3
In March 1976, the Natural Resources Defense Council, Inc. (NRDC), requested Consolidated Edison to enclose a rebuttal prepared by NRDC in its next billing envelope. Id., at 45-46. When Consolidated Edison refused, NRDC asked the Public Service Commission of the State of New York to open Consolidated Edison's billing envelopes to contrasting views on controversial issues of public importance. Id., at 32-33.
4
On February 17, 1977, the Commission, appellee here, denied NRDC's request, but prohibited "utilities from using bill inserts to discuss political matters, including the desirability of future development of nuclear power." Id., at 50. The Commission explained its decision in a Statement of Policy on Advertising and Promotional Practices of Public Utilities issued on February 25, 1977. The Commission concluded that Consolidated Edison customers who receive bills containing inserts are a captive audience of diverse views who should not be subjected to the utility's beliefs. Accordingly, the Commission barred utility companies from including bill inserts that express "their opinions or viewpoints on controversial issues of public policy." App. to Juris. Statement 43a. The Commission did not, however, bar utilities from sending bill inserts discussing topics that are not "controversial issues of public policy." The Commission later denied petitions for rehearing filed by Consolidated Edison and other utilities. Id., at 59a.
5
Consolidated Edison sought review of the Commission's order in the New York state courts. The State Supreme Court, Special Term, held the order unconstitutional. 93 Misc.2d 313, 402 N.Y.S.2d 551 (1978). But the State Supreme Court, Appellate Division, reversed, 63 A.D.2d 364, 407 N.Y.S.2d 735 (1978), and the New York Court of Appeals affirmed that judgment. 47 N.Y.2d 94, 417 N.Y.S.2d 30, 390 N.E.2d 749 (1979). The Court of Appeals held that the order did not violate the Constitution because it was a valid time, place, and manner regulation designed to protect the privacy of Consolidated Edison's customers. Id., at 106-107, 417 N.Y.S.2d, at 36, 390 N.E.2d, at 755. We noted probable jurisdiction, 444 U.S. 822, 100 S.Ct. 41, 62 L.Ed.2d 28 (1979). We reverse.
II
6
The restriction on bill inserts cannot be upheld on the ground that Consolidated Edison is not entitled to freedom of speech. In First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978), we rejected the contention that a State may confine corporate speech to specified issues. That decision recognized that "[t]he inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual." Id., at 777, 98 S.Ct., at 1416. Because the state action limited protected speech, we concluded that the regulation could not stand absent a showing of a compelling state interest. Id., at 786, 98 S.Ct., at 1421.1
7
The First and Fourteenth Amendments guarantee that no State shall "abridg[e] the freedom of speech." See Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 500-501, 72 S.Ct. 777, 779-780, 96 L.Ed. 1098 (1952). Freedom of speech is "indispensable to the discovery and spread of political truth," Whitney v. California, 274 U.S. 357, 375, 47 S.Ct. 641, 648, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring), and "the best test of truth is the power of the thought to get itself accepted in the competition of the market . . . ." Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 22, 63 L.Ed. 1173 (1919) (Holmes, J., dissenting).2 The First and Fourteenth Amendments remove "governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity . . . ." Cohen v. California, 403 U.S. 15, 24, 91 S.Ct. 1780, 1786, 29 L.Ed.2d 284 (1971).3
8
This Court has emphasized that the First Amendment "embraces at the least the liberty to discuss publicly and truthfully all matters of public concern . . . ." Thornhill v. Alabama, 310 U.S. 88, 101-102, 60 S.Ct. 736, 744, 84 L.Ed. 1093 (1940); see Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 1436, 16 L.Ed.2d 484 (1966). In the mailing that triggered the regulation at issue, Consolidated Edison advocated the use of nuclear power. The Commission has limited the means by which Consolidated Edison may participate in the public debate on this question and other controversial issues of national interest and importance. Thus, the Commission's prohibition of discussion of controversial issues strikes at the heart of the freedom to speak.
III
9
The Commission's ban on bill inserts is not, of course, invalid merely because it imposes a limitation upon speech. See First National Bank of Boston v. Bellotti, supra, 435 U.S., at 786, 98 S.Ct., at 1421. We must consider whether the State can demonstrate that its regulation is constitutionally permissible. The Commission's arguments require us to consider three theories that might justify the state action. We must determine whether the prohibition is (i) a reasonable time, place, or manner restriction, (ii) a permissible subject-matter regulation, or (iii) a narrowly tailored means of serving a compelling state interest.
A.
10
This Court has recognized the validity of reasonable time, place, or manner regulations that serve a significant governmental interest and leave ample alternative channels for communication. See Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 93, 97 S.Ct. 1614, 1618, 50 L.Ed.2d 155 (1977); Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 771, 96 S.Ct. 1817, 1830, 48 L.Ed.2d 346 (1976). See also Kovacs v. Cooper, 336 U.S. 77, 104, 69 S.Ct. 448, 462, 93 L.Ed. 513 (1949) (Black, J., dissenting). In Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941), this Court upheld a licensing requirement for parades through city streets. The Court recognized that the regulation, which was based on time, place, or manner criteria, served the municipality's legitimate interests in regulating traffic, securing public order, and insuring that simultaneous parades did not prevent all speakers from being heard. Id., at 576, 61 S.Ct., at 765. Similarly, in Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972), we upheld an antinoise regulation prohibiting demonstrations that would disturb the good order of an educational facility. The narrowly drawn restriction constitutionally advanced the city's interest "in having an undisrupted school session conducive to the students' learning . . . ." Id., at 119, 92 S.Ct., at 2305. Thus, the essence of time, place, or manner regulation lies in the recognition that various methods of speech, regardless of their content, may frustrate legitimate governmental goals. No matter what its message, a roving sound truck that blares at 2 a. m. disturbs neighborhood tranquility.
11
A restriction that regulates only the time, place, or manner of speech may be imposed so long as it is reasonable. But when regulation is based on the content of speech, governmental action must be scrutinized more carefully to ensure that communication has not been prohibited "merely because public officials disapprove the speaker's views." Niemotko v. Maryland, 340 U.S. 268, 282, 71 S.Ct. 325, 333, 95 L.Ed. 267, 280 (1951) (Frankfurter, J., concurring in result). As a consequence, we have emphasized that time, place, and manner regulations must be "applicable to all speech irrespective of content." Erznoznik v. City of Jacksonville, 422 U.S. 205, 209, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975); see Carey v. Brown, 447 U.S. 455, 470, 100 S.Ct. 2286, 2295, 65 L.Ed.2d 263. Governmental action that regulates speech on the basis of its subject matter " 'slip[s] from the neutrality of time, place, and circumstance into a concern about content.' " Police Department of Chicago v. Mosley, 408 U.S. 92, 99, 92 S.Ct. 2286, 2292, 33 L.Ed.2d 212 (1972), quoting Kalven, The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup.Ct.Rev. 1, 29. Therefore, a constitutionally permissible time, place, or manner restriction may not be based upon either the content or subject matter of speech.4
12
The Commission does not pretend that its action is unrelated to the content or subject matter of bill inserts. Indeed, it has undertaken to suppress certain bill inserts precisely because they address controversial issues of public policy. The Commission allows inserts that present information to consumers on certain subjects, such as energy conservation measures, but it forbids the use of inserts that discuss public controversies. The Commission, with commendable candor, justifies its ban on the ground that consumers will benefit from receiving "useful" information, but not from the prohibited information. See App. to Juris. Statement at 66a-67a. The Commission's own rationale demonstrates that its action cannot be upheld as a content-neutral time, place, or manner regulation.
B
13
The Commission next argues that its order is acceptable because it applies to all discussion of nuclear power, whether pro or con, in bill inserts. The prohibition, the Commission contends, is related to subject matter rather than to the views of a particular speaker. Because the regulation does not favor either side of a political controversy, the Commission asserts that it does not unconstitutionally suppress freedom of speech.
14
The First Amendment's hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic. As a general matter, "the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Police Department of Chicago v. Mosley, supra, at 95, 92 S.Ct., at 2290; see Cox v. Louisiana, 379 U.S. 536, 580-581, 85 S.Ct. 466, 469-470, 13 L.Ed.2d 487 (1965) (opinion of Black, J.). In Mosley, we held that a municipality could not exempt labor picketing from a general prohibition on picketing at a school even though the ban would have reached both pro- and anti-union demonstrations. If the marketplace of ideas is to remain free and open, governments must not be allowed to choose "which issues are worth discussing or debating . . . ." 408 U.S., at 96, 92 S.Ct., at 2290. See also Erznoznik v. City of Jacksonville, supra, 422 U.S., at 214-215, 95 S.Ct., at 2275; Tinker v. Des Moines School District, 393 U.S. 503, 510-511, 89 S.Ct. 733, 738-739, 21 L.Ed.2d 731 (1969). To allow a government the choice of permissible subjects for public debate would be to allow that government control over the search for political truth.
15
Nevertheless, governmental regulation based on subject matter has been approved in narrow circumstances.5 The court below relied upon two cases in which this Court has recognized that the government may bar from its facilities certain speech that would disrupt the legitimate governmental purpose for which the property has been dedicated. 47 N.Y.2d, at 107, 417 N.Y.S.2d, at 36, 390 N.E.2d, at 755. In Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976), we held that the Federal Government could prohibit partisan political speech on a military base even though civilian speakers had been allowed to lecture on other subjects. See id., at 838, n. 10, 96 S.Ct., at 1217, n. 10.6 In Lehman v. Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974) (opinion of BLACKMUN, J.), a plurality of the Court similarly concluded that a city transit system that rented space in its vehicles for commercial advertising did not have to accept partisan political advertising. The municipality's refusal to accept political advertising was based upon fears that partisan advertisements might jeopardize long-term commercial revenue, that commuters would be subjected to political propaganda, and that acceptance of particular political advertisements might lead to charges of favoritism. Id., at 302, 304, 94 S.Ct., at 2716, 2717.7
16
Greer and Lehman properly are viewed as narrow exceptions to the general prohibition against subject-matter distinctions. In both cases, the Court was asked to decide whether a public facility was open to all speakers.8 The plurality in Lehman and the Court in Greer concluded that partisan political speech would disrupt the operation of governmental facilities even though other forms of speech posed no such danger.
17
The analysis of Greer and Lehman is not applicable to the Commission's regulation of bill inserts. In both cases, a private party asserted a right of access to public facilities. Consolidated Edison has not asked to use the offices of the Commission as a forum from which to promulgate its views. Rather, it seeks merely to utilize its own billing envelopes to promulgate its views on controversial issues of public policy. The Commission asserts that the billing envelope, as a necessary adjunct to the operations of a public utility, is subject to the State's plenary control. To be sure, the State has a legitimate regulatory interest in controlling Consolidated Edison's activities, just as local governments always have been able to use their police powers in the public interest to regulate private behavior. See New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516, 49 L.Ed.2d 511 (1976) (per curiam ). But the Commission's attempt to restrict the free expression of a private party cannot be upheld by reliance upon precedent that rests on the special interests of a government in overseeing the use of its property.
C
18
Where a government restricts the speech of a private person, the state action may be sustained only if the government can show that the regulation is a precisely drawn means of serving a compelling state interest. See First National Bank of Boston v. Bellotti, 435 U.S., at 786, 98 S.Ct., at 1421; Buckley v. Valeo, 424 U.S. 1, 25, 96 S.Ct. 612, 637, 46 L.Ed.2d 659 (1976) (per curiam ). See also Bates v. Little Rock, 361 U.S. 516, 524, 80 S.Ct. 412, 417, 4 L.Ed.2d 480 (1960).9 The Commission argues finally that its prohibition is necessary (i) to avoid forcing Consolidated Edison's views on a captive audience, (ii) to allocate limited resources in the public interest, and (iii) to ensure that ratepayers do not subsidize the cost of the bill inserts.
19
The State Court of Appeals largely based its approval of the prohibition upon its conclusion that the bill inserts intruded upon individual privacy.10 The court stated that the Commission could act to protect the privacy of the utility's customers because they have no choice whether to receive the insert and the views expressed in the insert may inflame their sensibilities. 47 N.Y.2d, at 106-107, 417 N.Y.S.2d, at 36, 390 N.E.2d, at 755. But the Court of Appeals erred in its assessment of the seriousness of the intrusion.
20
Even if a short exposure to Consolidated Edison's views may offend the sensibilities of some consumers, the ability of government "to shut off discourse solely to protect others from hearing it [is] dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner." Cohen v. California, 403 U.S., at 21, 91 S.Ct., at 1786. A less stringent analysis would permit a government to slight the First Amendment's role "in affording the public access to discussion, debate, and the dissemination of information and ideas." First National Bank of Boston v. Bellotti, supra, 435 U.S., at 783, 98 S.Ct., at 1419; see Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390, 89 S.Ct. 1794, 1806, 23 L.Ed.2d 371 (1969); Lamont v. Postmaster General, 381 U.S. 301, 308, 85 S.Ct. 1493, 1497, 14 L.Ed.2d 398 (1965) (BRENNAN, J., concurring). Where a single speaker communicates to many listeners, the First Amendment does not permit the government to prohibit speech as intrusive unless the "captive" audience cannot avoid objectional speech.
21
Passengers on public transportation, see Lehman v. Shaker Heights, 418 U.S., at 307-308, 94 S.Ct., at 2719 (Douglas, J., concurring in judgment), or residents of a neighborhood disturbed by the raucous broadcasts from a passing sound truck, cf. Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed.2d 513 (1949), may well be unable to escape an unwanted message. But customers who encounter an objectionable billing insert may "effectively avoid further bombardment of their sensibilities simply by averting their eyes." Cohen v. California, supra, 403 U.S., at 21, 91 S.Ct., at 1786. See Spence v. Washington, 418 U.S. 405, 412, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) (per curiam ). The customer of Consolidated Edison may escape exposure to objectionable material simply by transferring the bill insert from envelope to wastebasket.11
22
The Commission contends that because a billing envelope can accommodate only a limited amount of information, political messages should not be allowed to take the place of inserts that promote energy conservation or safety, or that remind consumers of their legal rights. The Commission relies upon Red Lion Broadcasting Co. v. FCC, supra, in which the Court held that the regulation of radio and television broadcast frequencies permits the Federal Government to exercise unusual authority over speech. But billing envelopes differ from broadcast frequencies in two ways. First, a broadcaster communicates through use of a scarce, publicly owned resource. No person can broadcast without a license, whereas all persons are free to send correspondence to private homes through the mails. Thus, it cannot be said that billing envelopes are a limited resource comparable to the broadcast spectrum. Second, the Commission has not shown on the record before us that the presence of the bill inserts at issue would preclude the inclusion of other inserts that Consolidated Edison might be ordered lawfully to include in the billing envelope. Unlike radio or television stations broadcasting on a single frequency, multiple bill inserts will not result in a "cacophony of competing voices." Id., at 376, 89 S.Ct., at 1799.
23
Finally, the Commission urges that its prohibition would prevent ratepayers from subsidizing the costs of policy-oriented bill inserts. But the Commission did not base its order on an inability to allocate costs between the shareholders of Consolidated Edison and the ratepayers. Rather, the Commission stated that "using bill inserts to proclaim a utility's viewpoint on controversial issues (even when the stockholder pays for it in full ) is tantamount to taking advantage of a captive audience. . . ." App. to Juris. Statement 43a (emphasis added). Accordingly, there is no basis on this record to assume that the Commission could not exclude the cost of these bill inserts from the utility's rate base.12 Mere speculation of harm does not constitute a compelling state interest. See Mine Workers v. Illinois Bar Assn., 389 U.S. 217, 222-223, 88 S.Ct. 353, 356, 19 L.Ed.2d 426 (1967).13
IV
24
The Commission's suppression of bill inserts that discuss controversial issues of public policy directly infringes the freedom of speech protected by the First and Fourteenth Amendments. The state action is neither a valid time, place, or manner restriction, nor a permissible subject-matter regulation, nor a narrowly drawn prohibition justified by a compelling state interest. Accordingly, the regulation is invalid. First National Bank of Boston v. Bellotti, 435 U.S., at 795, 98 S.Ct., at 1426.
25
The decision of the New York Court of Appeals is
26
Reversed.
27
Mr. Justice MARSHALL, concurring.
28
I join the Court's opinion. I write separately to emphasize that our decision today in no way addresses the question whether the Commission may exclude the costs of bill inserts from the rate base, nor does it intimate any view on the appropriateness of any allocation of such costs the Commission might choose to make. Ante, at 543. The Commission did not rely on the argument that the use of bill inserts required ratepayers to subsidize the dissemination of management's view in issuing its order, and we therefore are precluded from sustaining the order on that ground. Cf. SEC v. Chenery Corp., 318 U.S. 80, 95, 63 S.Ct. 454, 462, 87 L.Ed. 626 (1943) ("[A]n administrative order cannot be upheld unless the grounds upon which the agency acted in exercising its powers were those upon which its action can be sustained"); FPC v. Texaco Inc., 417 U.S. 380, 397, 94 S.Ct. 2315, 2326, 41 L.Ed.2d 141 (1974); FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 249, 92 S.Ct. 898, 907, 31 L.Ed.2d 170 (1972).
29
Mr. Justice STEVENS, concurring in the judgment.
30
Any student of history who has been reprimanded for talking about the World Series during a class discussion of the First Amendment knows that it is incorrect to state that a "time, place, or manner restriction may not be based upon either the content or subject matter of speech." Ante, at 536. And every lawyer who has read our Rules,1 or our cases upholding various restrictions on speech with specific reference to subject matter2 must recognize the hyperbole in the dictum: "But, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Police Department of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212, quoted in part, ante, at 537. Indeed, if that were the law, there would be no need for the Court's detailed rejection of the justifications put forward by the State for the restriction involved in this case. See ante, Part III-C.
31
There are, in fact, many situations in which the subject matter, or, indeed, even the point of view of the speaker, may provide a justification for a time, place, and manner regulation. Perhaps the most obvious example is the regulation of oral argument in this Court; the appellant's lawyer precedes his adversary solely because he seeks reversal of a judgment.3 As is true of many other aspects of liberty, some forms of orderly regulation actually promote freedom more than would a state of total anarchy.4
32
Instead of trying to justify our conclusion by reasoning from honey-combed premises, I prefer to identify the basis of decision in more simple terms. See Young v. American Mini Theatres, 427 U.S. 50, 65-66, 96 S.Ct. 2440, 2449-2450, 49 L.Ed.2d 310. A regulation of speech that is motivated by nothing more than a desire to curtail expression of a particular point of view on controversial issues of general interest is the purest example of a "law abridging the freedom of speech, or of the press."5 A regulation that denies one group of persons the right to address a selected audience on "controversial issues of public policy" is plainly such a regulation.
33
The only justification for the regulation relied on by the New York Court of Appeals is that the utilities' bill inserts may be "offensive" to some of their customers.6 But a communication may be offensive in two different ways. Independently of the message the speaker intends to convey, the form of his communication may be offensive—perhaps because it is too loud7 or too ugly in a particular setting.8 Other speeches, even though elegantly phrased in dulcet tones, are offensive simply because the listener disagrees with the speaker's message. The fact that the offensive form of some communication may subject it to appropriate regulation surely does not support the conclusion that the offensive character of an idea can justify an attempt to censor its expression. Since the Public Service Commission has candidly put forward this impermissible justification for its censorial regulation, it plainly violates the First Amendment.9
34
Accordingly, I concur in the judgment of the Court.
35
Mr. Justice BLACKMUN, with whom Mr. Justice REHNQUIST as to Parts I and II joins, dissenting.
36
My dissent in this case in no way indicates any disapprobation on my part of the precious rights of free speech (so carefully cataloged by the Court in its opinion) that are protected by the First and Fourteenth Amendments against repression by the State. My prior writings for the Court in the speech area prove conclusively my sensitivity about these rights and my concern for them. See, e. g., Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975); Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976); Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977). See also Central Hudson Gas & Elec. Corp. v. Public Service Comm'n, 447 U.S. 557, 573, 100 S.Ct. 2343, 2355, 65 L.Ed.2d 341 (opinion concurring in judgment).
37
But I cannot agree with the Court that the New York Public Service Commission's ban on the utility bill insert somehow deprives the utility of its First and Fourteenth Amendment rights. Because of Consolidated Edison's monopoly status and its rate structure, the use of the insert amounts to an exaction from the utility's customers by way of forced aid for the utility's speech. And, contrary to the Court's suggestion, an allocation of the insert's cost between the utility's shareholders and the ratepayers would not eliminate this coerced subsidy.
38
* A public utility is a state-created monopoly. See, e. g., N.Y.Pub.Serv.Law § 68 (McKinney 1955); Jones, Origins of the Certificate of Public Convenience and Necessity; Developments in the States 1870-1920, 79 Colum.L.Rev. 426, 458-461 (1979); Comment, Utility Rates, Consumers, and the New York State Public Service Commission, 39 Albany L.Rev. 707, 709-714 (1975). Although monopolies generally are against the public policies of the United States and of the State of New York, see, e. g., N.Y.Gen.Bus.Law § 340 (McKinney 1968 and Supp.1979-1980), Consolidated Edison and other utilities are permitted to operate as monopolies because of a determination by the State that the public interest is better served by protecting them from competition. See 2 A. Kahn, The Economics of Regulation 113-171 (1971).
39
This exceptional grant of power to private enterprises justifies extensive oversight on the part of the State to protect the ratepayers from exploitation of the monopoly power through excessive rates and other forms of overreaching. For this reason, the State regulates the rates that utilities may charge. See N.Y.Pub.Serv.Law § 66(12) (McKinney Supp.1979-1980). In addition, New York law gives its Public Service Commission plenary supervisory powers over all property, real and personal, "used or to be used for or in connection with or to facilitate the . . . sale or furnishing of electricity for light, heat or power." N.Y.Pub.Serv.Law §§ 2(12) and 66(1) (McKinney 1955). State law explicitly gives the Commission control over the format of the utility bill and any material included in the envelope with the bill. § 66(12-a) (McKinney Supp.1979-1980).
40
The rates authorized by the Public Service Commission may reflect only the costs of providing necessary services to customers plus a reasonable rate of return to the utility's shareholders. See, e. g., Comment, 39 Albany L.Rev., at 719-723. The entire bill payment system—meters, meter-reading, bill mailings, and bill inserts—are paid for by the customers under Commission rules permitting recovery of necessary operating expenses. Uniform System of Accounts—Expense Accounts—Customer Account Expenses, 16 N.Y.C.R.R. §§ 901-906 (1974). Under the laws of New York and other States, however, a public utility cannot include in the rate base the costs of political advertising and lobbying. See, e. g., Uniform System of Accounts, Account 426.4, Expenditures for Certain Civic, Political and Related Activities, 16 N.Y.C.R.R. ch. II, subch. F (1976); Southern Bell Tel. & Tel. Co. v. Louisiana Pub. Serv. Comm'n, 239 La. 175, 207-209, 118 So.2d 372, 384 (1960); Southwestern Bell Tel. Co., 19 P.U.R. 4th 1, 28-29 (Kan.Corp.Comm'n 1977); Boushey v. Pacific Gas & Elec. Co., 10 P.U.R. 4th 23 (Cal.Pub.Util.Comm'n 1975) (banning controversial bill inserts); Cascade Natural Gas Corp., 8 P.U.R. 4 th 19, 27 (Ore.Pub.Util.Comm'n 1974); Pacific Power & Light Co., 34 P.U.R. 3d 36, 46-47 (Ore.Pub.Util.Comm'n 1960); Southwestern Bell Tel. Co., 77 P.U.R. (n.s.) 33, 42 (Mo.Pub.Serv.Comm'n 1949); In re Investigation into the Advertising and Promotional Practices of Regulated Iowa Pub. Utils., No. U-463 (Iowa State Commerce Comm'n Jan. 29, 1975). These costs cannot be passed on to consumers because ratepayers derive no service-related benefits from political advertisements. The purpose of such advertising and lobbying is to benefit the utility's shareholders, and its cost must be deducted from profits otherwise available for the shareholders. The Federal Energy Regulatory Commission, formerly the Federal Power Commission, has adopted this rule as well. Alabama Power Co., 24 F.P.C. 278, 286-287 (1960), aff'd sub nom. Southwestern Electric Power Co. v. Federal Power Comm'n, 304 F.2d 29 (CA5), cert. denied, 371 U.S. 924, 83 S.Ct. 292, 9 L.Ed.2d 232 (1962); Federal Energy Regulatory Commission, Uniform System of Accounts, Account 426.4, 18 CFR Part 101, p. 383 (1979).
II
41
The Commission concluded, properly in my view, that use of the billing envelope to distribute management's pamphlets amounts to a forced subsidy of the utility's speech by the ratepayers.1 Consolidated Edison would counter this argument by pointing out that it is willing to allocate to shareholders the additional costs attributable to the inserts. It maintains: "The fact that the utilities may incidentally save money by the use of bill inserts, at no expense to the ratepayers, is not detrimental to the ratepayers or the public." Brief for Appellant 21.
42
I do not accept appellant's argument that preventing a "free ride" for the utility's message is not a substantial, legitimate state concern. Even though the free ride may cost the ratepayers nothing additional by way of specific dollars, it still qualifies as forced support of the utility's speech. See, e. g., Boushey v. Pacific Gas & Elec. Co., 10 P.U.R. 4th, at 27; Note, Utility Companies and the First Amendment: Regulating the Use of Political Inserts in Utility Bills, 64 Va.L.Rev. 921, 926 (1978). If the State compelled an individual to help defray the utility's speech expenses, that compulsion surely would violate that person's First and Fourteenth Amendment rights. Abood v. Detroit Board of Education, 431 U.S. 209, 233-235, 97 S.Ct. 1782, 1798-1799, 52 L.Ed.2d 261 (1977); id., at 256, 97 S.Ct., at 1810 (POWELL, J., concurring in judgment). The fact that providing such aid costs the individual nothing extra does not make the compulsion any less offensive. See Wooley v. Maynard, 430 U.S. 705, 714-715, 97 S.Ct. 1428, 1435, 51 L.Ed.2d 752 (1977); Buckley v. Valeo, 424 U.S. 1, 22-23, 36, 96 S.Ct. 612, 636-637, 643, 46 L.Ed.2d 659 (1976) (recognizing that permitting a candidate to use real or personal property provides material financial assistance to the candidate); id., at 91, n. 124, 96 S.Ct., at 669, n. 124 (1976).2 For example, a state law requiring a person to permit the utility to include its insert in the envelope with that person's private letters clearly would infringe upon the letterwriter's First and Fourteenth Amendment rights.
43
Of course, a private business does not deprive an individual of his constitutional rights unless state action is involved. Although the State has given utilities their monopoly power and thus contributed to a situation in which coerced support of the utility's speech is possible, the state-action requirement of the Fourteenth Amendment may not be met in this situation. See Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974).
44
I do not find it necessary, however, to decide whether state action in the Fourteenth Amendment sense has occurred here. It is not necessary to decide whether the ratepayers' First and Fourteenth Amendment rights have been infringed in order to determine whether the State has the power to prevent the utility from exacting aid from the ratepayers in dissemination of a message with which they do not all agree. Even if the State is not so entwined in the activities of Consolidated Edison to meet the state-action requirement, the State has made a monopoly possible by preventing others from competing with the utility. Thus the State is legitimately concerned with preventing the utility from taking advantage of this monopoly power to force consumers to subsidize dissemination of its viewpoint on political issues.3
45
In suggesting that the State's interest in eliminating forced subsidization of the utility's speech can be achieved by allocating the expenses of the inserts to the utility's shareholders, the Court has glossed over the difficult allocation issue underlying this controversy. It is not clear to me from the Court's opinion whether it believes that charging the shareholders with the marginal costs associated with the inserts, that is, the costs of printing and putting them into the envelope, will satisfy the State's interest, or whether the Court is suggesting some division of the fixed costs of the mailing, that is, the postage, the envelope, the creation and maintenance of the mailing list, and any other overhead expense. See ante, at 543.
46
The Commission maintains that no allocation short of charging all the fixed costs of mailing the bills to the utility's shareholders will eliminate the problem of forced subsidization of the utility's speech. The Commission is obviously correct that the utility will obtain a partial free ride for its message even if the shareholders are charged with part of the mailing costs in addition to the costs directly attributable to the inserts. Consumers would still be forced to aid in the dissemination of the utility's message by making the utility's distribution costs less than they otherwise would be.
47
Charging all the mailing costs to the shareholders is equivalent, as a practical matter, to the Commission's ban on political inserts. The utility wants to use the inserts only because they are less expensive than a separate mailing.4 Thus, there is no way for the State to achieve its important goal—protecting the ratepayers from forced support of ideas with which they disagree—that is less restrictive than a total ban.
48
Because ratepayers bear the cost of this medium of communication, the utility's claim to use the bill envelope for its own purposes is not analogous to that of a private letter writer, or of a nonmonopolistic business, whose customers can turn elsewhere if they object to inserts in their bills that their sales dollars help to finance. Cf. First National Bank of Boston v. Bellotti, 435 U.S. 765, 794, n. 34, 98 S.Ct. 1407, 1425, n. 34, 55 L.Ed.2d 707 (1978). This, therefore, is not a typical prohibition of a speaker's attempt "merely to utilize its own [property] to promulgate its views." Ante, at 540. Rather, this is an attempt by the utility to appropriate and make convenient use of property, for which the public is compelled to pay, for the utility's sole benefit. The Commission's ban on bill inserts does not restrict the utility from using the shareholders' resources to finance communication of its viewpoints on any topic. Consolidated Edison is completely free to use the mails and any other medium of communication on the same basis as any other speaker. The order merely prevents the utility from relying on a forced subsidy from the ratepayers. This leads me to conclude that the State's attempt here to protect the ratepayers from unwillingly financing the utility's speech and to preserve the billing envelope for the sole benefit of the customers who pay for it does not infringe upon the First and Fourteenth Amendment rights of the utility.
III
49
I might observe, additionally, that I am hopeful that the Court's decision in this case has not completely tied a State's hands in preventing this type of abuse of monopoly power. The Court's opinion appears to turn on the particular facts of this case, and slight differences in approach might permit a State to achieve its proper goals.
50
First, it appears that New York and other States might use their power to define property rights so that the billing envelope is the property of the ratepayers and not of the utility's shareholders. Cf. PruneYard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741. Since it is the ratepayers who pay for the billing packet, I doubt that the Court would find a law establishing their ownership of the packet violative of either the Takings Clause or the First and Fourteenth Amendments. If, under state law, the envelope belongs to the customers, I do not see how restricting the utility from using it could possibly be held to deprive the utility of its rights.
51
Second, the opinion leaves open the issue of cost allocation. The Commission could charge the utility's shareholders all the costs of the envelopes and postage and of creating and maintaining the mailing list, and charge the consumers only the cost of printing and inserting the bill and the consumer service insert. See Long Island Lighting Co. v. New York State Public Service Comm'n, No. 77 C 972 (EDNY, Mar. 30, 1979), reproduced in App. to Brief for Long Island Lighting Company as Amicus Curiae 22a. There is no reason that the shareholders should be given a free ride for their pamphlets, rather than the customers be given a free ride for their bills. Such an allocation would eliminate the most offensive aspects of the forced subsidization of the utility's speech. But see n. 3, supra.
52
Because I agree with the Appellate Division of the New York Supreme Court, that "[i]n the battle of ideas, the utilities are not entitled to require the consumers to help defray their expenses," 63 App.Div.2d 364, 368, 407 N.Y.S.2d 735, 737 (1978), I respectfully dissent.
1
Nor does Consolidated Edison's status as a privately owned but government regulated monopoly preclude its assertion of First Amendment rights. See Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 566-568, 100 S.Ct. 2343, 2351-2352, 65 L.Ed.2d 341. We have recognized that the speech of heavily regulated businesses may enjoy constitutional protection. See, e. g., Friedman v. Rogers, 440 U.S. 1, 99 S.Ct. 887, 59 L.Ed.2d 100 (1979); Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 763-765, 96 S.Ct. 1817, 1826-1827, 48 L.Ed.2d 346 (1976). Consolidated Edison's position as a regulated monopoly does not decrease the informative value of its opinions on critical public matters. See generally Public Media Center v. FCC, 190 U.S.App.D.C. 425, 428, 429, 587 F.2d 1322, 1325, 1326 (1978); Pacific Gas & Electric Co. v. City of Berkeley, 60 Cal.App.3d 123, 127-129, 131 Cal.Rptr. 350, 352-353 (1976).
2
Freedom of speech also protects the individual's interest in self-expression. First National Bank of Boston v. Bellotti, 435 U.S. 765, 777, n. 12, 98 S.Ct. 1407, 1416, n. 12, 55 L.Ed.2d 707 (1978); see T. Emerson, The System of Freedom of Expression 6 (1970).
3
See also A. Meiklejohn, Political Freedom 35-36 (1965).
4
See also Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 93-94, 97 S.Ct. 1614, 1618-1619, 52 L.Ed.2d 155 (1977); Papish v. University of Missouri Curators, 410 U.S. 667, 670, 93 S.Ct. 1197, 1199, 35 L.Ed.2d 618 (1973) (per curiam ).
5
For example, when courts are asked to determine whether a species of speech is covered by the First Amendment, they must look to the content of the expression. See Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 561-563, 100 S.Ct. 2343, 2349-2350, 65 L.Ed.2d 341 (commercial speech); Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789 (1974) (libel); Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) (obscenity); Chaplinsky v. New Hampshire, 315 U.S. 568, 572-573, 62 S.Ct. 766, 769-770, 86 L.Ed. 1031 (1942) (fighting words). Compare FCC v. Pacifica Foundation, 438 U.S. 726, 746-747, 98 S.Ct. 3026, 3038-3039, 57 L.Ed.2d 1073 (1978) (opinion of STEVENS, J.), and Young v. American Mini Theatres, Inc., 427 U.S. 50, 70-71, 96 S.Ct. 2440, 2452, 49 L.Ed.2d 310 (1976) (opinion of STEVENS, J.), with FCC v. Pacifica Foundation, supra, 438 U.S., at 761, 98 S.Ct., at 3046 (opinion of POWELL, J.), at 762-763, 98 S.Ct., at 3047-3048 (BRENNAN, J., dissenting), and Young v. American Mini Theatres, Inc., supra, 427 U.S., at 87, 96 S.Ct., at 2460 (STEWART, J., dissenting) (indecent speech).
6
The necessity for excluding partisan speech was based upon the traditional policy "of keeping official military activities . . . wholly free of entanglement with partisan political campaigns of any kind." 424 U.S., at 839, 96 S.Ct., at 1218. Thus, the Court's decision construed the public right of access in light of "the unique character of the Government property upon which the expression is to take place." Id., at 842, 96 S.Ct., at 1219 (POWELL, J., concurring).
7
Mr. Justice Douglas, who concurred in the judgment in Lehman, did not view "the content of the message as relevant either to petitioner's right to express it or to the commuters' right to be free from it." 418 U.S., at 308, 94 S.Ct., at 2719-2720. Rather, Mr. Justice Douglas upheld the municipality's actions because commuters were a captive audience. Id., at 306-308, 94 S.Ct., at 2718-2719. The Consolidated Edison customers who receive bill inserts are not a captive audience. See infra, at 541-542. Four Justices dissented in Lehman on the ground that the municipality could not discriminate among advertisers. 418 U.S., at 308, 309, 94 S.Ct., at 2719, 2720 (BRENNAN, J., joined by STEWART, MARSHALL, and POWELL, JJ., dissenting).
8
Lehman and Greer represent only one category of this Court's cases dealing with rights of access to governmental property. Compare Tinker v. Des Moines School District, 393 U.S. 503, 512-513, 89 S.Ct. 733, 739-740, 21 L.Ed.2d 731 (1969), and Hague v. CIO, 307 U.S. 496, 515-516, 59 S.Ct. 954, 963-964, 83 L.Ed. 1423 (1939) (opinion of Roberts, J.), with Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966).
9
The Commission contends that its order should be judged under the standard of United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968), because the order "is only secondarily concerned with the subject matter of Consolidated Edison communications. . . ." Brief for Appellee 9, n. 3. The O'Brien test applies to regulations that incidentally limit speech where "the governmental interest is unrelated to the suppression of free expression. . . ." 391 U.S., at 377, 88 S.Ct., at 1679. The bill insert prohibition does not further a governmental interest unrelated to the suppression of speech. Indeed, the court below justified the ban expressly on the basis that the speech might be harmful to consumers. 47 N.Y.2d 94, 106-107, 417 N.Y.S.2d 30, 36, 390 N.E.2d 749, 755 (1979).
10
The State Court of Appeals also referred to the alternative means by which Consolidated Edison might promulgate its views on controversial issues of public policy. Although a time, place, and manner restriction cannot be upheld without examination of alternative avenues of communication open to potential speakers, see Linmark Associates, Inc. v. Willingboro, 431 U.S., at 93, 97 S.Ct., at 1618, we have consistently rejected the suggestion that a government may justify a content-based prohibition by showing that speakers have alternative means of expression. See Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S., at 757, n. 15, 96 S.Ct. 1823, n. 15; Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 556, 95 S.Ct. 1239, 1245, 43 L.Ed.2d 448 (1975); Spence v. Washington, 418 U.S. 405, 411, n. 4, 94 S.Ct. 2727, 2731, n. 4, 41 L.Ed.2d 842 (1974) (per curiam ).
11
Although this Court has recognized the special privacy interests that attach to persons who seek seclusion within their own homes, see Rowan v. Post Office Department, 397 U.S. 728, 737, 90 S.Ct. 1484, 1489, 25 L.Ed.2d 736 (1970), the arrival of a billing envelope is hardly as intrusive as the visit of a door-to-door solicitor. Yet the Court has rejected the contention that a municipality may ban door-to-door solicitors because they may invade the privacy of households. Martin v. City of Struthers, 319 U.S. 141, 146-147, 63 S.Ct. 862, 864-865, 87 L.Ed. 1313 (1943). Even if there were a compelling state interest in protecting consumers against overly intrusive bill inserts, it is possible that the State could achieve its goal simply by requiring Consolidated Edison to stop sending bill inserts to the homes of objecting customers. See Rowan v. Post Office Department, supra.
12
In its denial of petitions for rehearing, the Commission re-emphasized that it would impose the ban without regard to allocation of costs between shareholders and ratepayers. App. to Juris. Statement 67a, n. 1.
13
The Commission also contends that ratepayers cannot be forced to support the costs of Consolidated Edison's bill inserts. Because the Commission has failed to demonstrate that such costs could not be allocated between shareholders and ratepayers, we have no occasion to decide whether the rule of Abood v. Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977), would prevent Consolidated Edison from passing on to ratepayers the costs of bill inserts that discuss controversial issues of public policy.
1
This Court's Rules 15, 16, 21, 22, 33, 34, 36 (effective June 30, 1980).
2
See, e. g., NLRB v. Retail Store Employees, 447 U.S. 607, 100 S.Ct. 2372, 65 L.Ed.2d 377 (labor picketing at site of neutral third parties in labor dispute); Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (in-person solicitation of legal business, distinguished from other forms of legal advertising); FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (indecent language in early afternoon radio broadcast); Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (zoning of "adult" movie theaters); Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (partisan political speeches on military base); Lehman v. Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (political advertising on municipal transit system); Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470 (Holmes, J.): "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." See also cases cited in American Mini Theatres, supra, at 67-71.
See generally Farber, Content Regulation and the First Amendment: A Revisionist View, 68 Geo. L.J. 727 (1980); Note, Pacifica Foundation v. FCC : "Filthy Words," the First Amendment and the Broadcast Media, 78 Colum.L.Rev. 164 (1978).
3
This Court's Rule 38.2. For the same reason, the color of his brief must be blue rather than red. Rule 33.2(b)(3).
4
"Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses." Cox v. New Hampshire, 312 U.S. 569, 574, 61 S.Ct. 762, 765, 85 L.Ed. 1049.
Cf. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 375, 89 S.Ct. 1794, 1798, 23 L.Ed.2d 371; Cox v. Louisiana, 379 U.S. 536, 554, 85 S.Ct. 453, 464, 13 L.Ed.2d 471.
5
The First Amendment provides:
"Congress shall make no law . . . abridging the freedom of speech, or of the press. . . ."
In a series of decisions beginning with Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138, this Court held that the liberty of speech and of the press which the First Amendment guarantees against abridgment by the Federal Government is within the liberty safeguarded by the Due Process Clause of the Fourteenth Amendment from invasion by state action. See Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 500, n. 8, 72 S.Ct. 777, 780, n. 8, 96 L.Ed. 1098.
6
"When the insert espouses the utility's viewpoint on a controversial question, it is as likely to offend the sensibilities of the recipient as it is to elicit agreement. Government need not stand idly by and deny assistance to those who are inflamed by having a particular opinion foisted upon them." 47 N.Y.2d 94, 106, 417 N.Y.S.2d 30, 36, 390 N.E.2d 749, 755 (1979).
7
Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513. See id., at 97, 69 S.Ct., at 458-459 (Frankfurter, J., concurring):
"So long as a legislature does not prescribe what ideas may be noisily expressed and what may not be, nor discriminate among those who would make inroads upon the public peace, it is not for us to supervise the limits the legislature may impose in safeguarding the steadily narrowing opportunities for serenity and reflection. Without such opportunities freedom of thought becomes a mocking phrase, and without freedom of thought there can be no free society."
In his dissenting opinion, Mr. Justice Rutledge, referring to sound trucks in public places, stated that he had "no doubt of state power to regulate their abuse in reasonable accommodation, by narrowly drawn statutes, to other interests concerned in use of the streets and in freedom from public nuisance." Id., at 105, 69 S.Ct., at 462-463.
8
See FCC v. Pacifica Foundation, supra, at 745-746, 98 S.Ct., at 3038-3039 (opinion of STEVENS, J.):
"The question in this case is whether a broadcast of patently offensive words dealing with sex and excretion may be regulated because of its content. Obscene materials have been denied the protection of the First Amendment because of their content is so offensive to contemporary moral standards. Roth v. United States, 354 U.S. 476 [77 S.Ct. 1304, 1 L.Ed.2d 1498.] But the fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas. If there were any reason to believe that the Commission's characterization of the Carlin monologue as offensive could be traced to its political content—or even to the fact that it satirized contemporary attitudes about four-letter words—First Amendment protection might be required. But that is simply not this case. These words offend for the same reasons that obscenity offends. Their place in the hierarchy of First Amendment values was aptly sketched by Mr. Justice Murphy when he said, '[S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.' Chaplinsky v. New Hampshire, 315 U.S. [568], at 572 [62 S.Ct. 766, 769, 86 L.Ed. 1031]" (Footnotes omitted.)
See also Paris Adult Theatre I v. Slaton, 413 U.S. 49, 84, 93 S.Ct. 2628, 2648, 37 L.Ed.2d 446 (BRENNAN, J., dissenting): "[T]he obscenity of any particular item may depend upon nuances of presentation and the context of its dissemination. . . . Redrup [v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515,] itself suggested that obtrusive exposure to unwilling individuals, distribution to juveniles, and 'pandering' may also bear upon the determination of obscenity."
9
I recognize that in this Court the Commission has also tried to defend its regulation on the ground that it is entitled to allocate limited resources in the public interest and to guarantee that ratepayers do not subsidize these communicative activities. I agree with the Court's explanation of why there is no merit to either of these suggestions. See ante, at 542-543.
Even viewing the restriction as merely a neutral subject-matter regulation (controversial issues generally) as may have been intended initially by the Commission, rather than a restriction of a particular viewpoint (the utilities' opinions on those issues), I still believe it to be unconstitutional. For the use of the "controversial" nature of speech as the touchstone for its regulation threatens a value at the very core of the First Amendment, the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." See New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 720, 11 L.Ed.2d 686.
1
Mr. Justice MARSHALL, in his concurring opinion, states: "The Commission did not rely on the argument that the use of bill inserts required ratepayers to subsidize the dissemination of management's view in issuing its order, and we therefore are precluded from sustaining the order on that ground." Ante, at 544.
I cannot agree that the Commission did not rely on the "forced subsidy" justification. In its opinion denying petitions for rehearing, the Commission stated:
"We note also that where the ratepayer's bill is accompanied by political advertisement, the political material is, absent allocation, getting a free ride; the utility is deriving the economic benefit of postage, envelope labor and overhead involved in the billing process. And even if an allocation of the expenses could be made the actual cost of enclosing such material in the bill itself does not approach the one-sided benefit to the management of being able to use the unique billing process in presenting its side of the controversy. It is certainly questionable whether ratepayers should be compelled to support views with which they do not agree. See Abood v. Detroit Board of Education, [431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261] (1977)." App. to Juris. Statement 67a, n. 1.
2
PruneYard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741, does not impinge upon this general principle. The decision there was based on the fact that the shopping center voluntarily chose to open its grounds to the public and therefore the State could require that the center permit the exercise of speech rights on the property.
3
An example makes this point clear. States authorize the creation of trusts, and the costs of administering a trust are charged to the trust estate. If the trustee, for example a bank, finds it necessary to communicate with the beneficiaries of the trust by letter concerning investments, income distribution, and the like, the expenses of that mailing ordinarily are proper administrative costs to be borne by the trust. In the trust situation, it would seem to be entirely permissible for the State to prohibit the trustee from including in such a mailing its own political insert on a matter unrelated to the trust. Even though adding the bank's insert may cost the beneficiaries nothing, assuming that the bank pays for the printing and stuffing of the insert, the State has an interest in assuring that the trustee does not derive personal benefit from its role as trustee. The trustee has no constitutional right to a free ride for its message. Here, the state interest in preventing a utility from obtaining a free ride is even stronger, since utility customers have no choice but to purchase electricity from Consolidated Edison, while trusts are voluntarily created and the trustee is chosen by the trustor.
4
Due to the greater likelihood that a recipient would read an insert with the bill, the utility well might desire to place its insert with the bill even if the total cost of the mailing were charged to the shareholders. See Long Island Lighting Co. v. New York State Public Service Comm'n, No. 77 C 972 (EDNY, March 30, 1979), reproduced in App. to Brief for Long Island Lighting Company as Amicus Curiae 1a. This, however, is just another type of forced aid for the utility's message that cannot be eliminated except by a total ban on bill inserts.
| 23
|
447 U.S. 557
100 S.Ct. 2343
65 L.Ed.2d 341
CENTRAL HUDSON GAS & ELECTRIC CORPORATION, Appellant,v.PUBLIC SERVICE COMMISSION OF NEW YORK.
No. 79-565.
Argued March 17, 1980.
Decided June 20, 1980.
Syllabus
Held : A regulation of appellee New York Public Service Commission which completely bans an electric utility from advertising to promote the use of electricity violates the First and Fourteenth Amendments. Pp. 561-572.
(a) Although the Constitution accords a lesser protection to commercial speech than to other constitutionally guaranteed expression, nevertheless the First Amendment protects commercial speech from unwarranted governmental regulation. For commercial speech to come within the First Amendment, it at least must concern lawful activity and not be misleading. Next, it must be determined whether the asserted governmental interest to be served by the restriction on commercial speech is substantial. If both inquiries yield positive answers, it must then be decided whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest. Pp. 561-566.
(b) In this case, it is not claimed that the expression at issue is either inaccurate or relates to unlawful activity. Nor is appellant electrical utility's promotional advertising unprotected commercial speech merely because appellant holds a monopoly over the sale of electricity in its service area. Since monopoly over the supply of a product provides no protection from competition with substitutes for that product, advertising by utilities is just as valuable to consumers as advertising by unregulated firms, and there is no indication that appellant's decision to advertise was not based on the belief that consumers were interested in the advertising. Pp. 566-568.
(c) The State's interest in energy conservation is clearly substantial and is directly advanced by appellee's regulations. The State's further interest in preventing inequities in appellant's rates—based on the assertion that successful promotion of consumption in "off-peak" periods would create extra costs that would, because of appellant's rate structure, be borne by all consumers through higher overall rates—is also substantial. The latter interest does not, however, provide a constitutionally adequate reason for restricting protected speech because the link between the advertising prohibition and appellant's rate structure is, at most, tenuous. Pp. 568-569.
(d) Appellee's regulation, which reaches all promotional advertising regardless of the impact of the touted service on overall energy use, is more extensive than necessary to further the State's interest in energy conservation which, as important as it is, cannot justify suppressing information about electric devices or services that would cause no net increase in total energy use. In addition, no showing has been made that a more limited restriction on the content of promotional advertising would not serve adequately the State's interests. Pp. 569-571.
47 N.Y.2d 94, 417 N.Y.S.2d 30, 390 N.E.2d 749, reversed.
Telford Taylor, New York City, for appellant.
Peter H. Schiff, Albany, N. Y., for appellee.
Mr. Justice POWELL delivered the opinion of the Court.
1
This case presents the question whether a regulation of the Public Service Commission of the State of New York violates the First and Fourteenth Amendments because it completely bans promotional advertising by an electrical utility.
2
* In December 1973, the Commission, appellee here, ordered electric utilities in New York State to cease all advertising that "promot[es] the use of electricity." App. to Juris. Statement 31a. The order was based on the Commission's finding that "the interconnected utility system in New York State does not have sufficient fuel stocks or sources of supply to continue furnishing all customer demands for the 1973-1974 winter." Id., at 26a.
3
Three years later, when the fuel shortage had eased, the Commission requested comments from the public on its proposal to continue the ban on promotional advertising. Central Hudson Gas & Electric Corp., the appellant in this case, opposed the ban on First Amendment grounds. App. A10. After reviewing the public comments, the Commission extended the prohibition in a Policy Statement issued on February 25, 1977.
4
The Policy Statement divided advertising expenses "into two broad categories: promotional—advertising intended to stimulate the purchase of utility services—and institutional and informational, a broad category inclusive of all advertising not clearly intended to promote sales."1 App. to Juris. Statement 35a. The Commission declared all promotional advertising contrary to the national policy of conserving energy. It acknowledged that the ban is not a perfect vehicle for conserving energy. For example, the Commission's order prohibits promotional advertising to develop consumption during periods when demand for electricity is low. By limiting growth in "off-peak" consumption, the ban limits the "beneficial side effects" of such growth in terms of more efficient use of existing power-plants. Id., at 37a. And since oil dealers are not under the Commission's jurisdiction and thus remain free to advertise, it was recognized that the ban can achieve only "piecemeal conservationism." Still, the Commission adopted the restriction because it was deemed likely to "result in some dampening of unnecessary growth" in energy consumption. Ibid.
5
The Commission's order explicitly permitted "informational" advertising designed to encourage "shifts of consumption" from peak demand times to periods of low electricity demand. Ibid. (emphasis in original). Informational advertising would not seek to increase aggregate consumption, but would invite a leveling of demand throughout any given 24-hour period. The agency offered to review "specific proposals by the companies for specifically described [advertising] programs that meet these criteria." Id., at 38a.
6
When it rejected requests for rehearing on the Policy Statement, the Commission supplemented its rationale for the advertising ban. The agency observed that additional electricity probably would be more expensive to produce than existing output. Because electricity rates in New York were not then based on marginal cost,2 the Commission feared that additional power would be priced below the actual cost of generation. This additional electricity would be subsidized by all consumers through generally higher rates. Id., at 57a-58a. The state agency also thought that promotional advertising would give "misleading signals" to the public by appearing to encourage energy consumption at a time when conservation is needed. Id., at 59a.
7
Appellant challenged the order in state court, arguing that the Commission had restrained commercial speech in violation of the First and Fourteenth Amendments.3 The Commission's order was upheld by the trial court and at the intermediate appellate level.4 The New York Court of Appeals affirmed. It found little value to advertising in "the noncompetitive market in which electric corporations operate." Consolidated Edison Co. v. Public Service Comm'n, 47 N.Y.2d 94, 110, 417 N.Y.S.2d 30, 39, 390 N.E.2d 749, 757 (1979). Since consumers "have no choice regarding the source of their electric power," the court denied that "promotional advertising of electricity might contribute to society's interest in 'informed and reliable' economic decisionmaking." Ibid. The court also observed that by encouraging consumption, promotional advertising would only exacerbate the current energy situation. Id., at 110, 417 N.Y.S.2d, at 39, 390 N.E.2d, at 758. The court concluded that the governmental interest in the prohibition outweighed the limited constitutional value of the commercial speech at issue. We noted probable jurisdiction, 444 U.S. 962, 100 S.Ct. 446, 62 L.Ed.2d 374 (1979), and now reverse.
II
8
The Commission's order restricts only commercial speech, that is, expression related solely to the economic interests of the speaker and its audience. Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 762, 96 S.Ct. 1817, 1825, 48 L.Ed.2d 346 (1976); Bates v. State Bar of Arizona, 433 U.S. 350, 363-364, 97 S.Ct. 2691, 2698-2699, 53 L.Ed.2d 810 (1977); Friedman v. Rogers, 440 U.S. 1, 11, 99 S.Ct. 887, 895, 59 L.Ed.2d 100 (1979). The First Amendment, as applied to the States through the Fourteenth Amendment, protects commercial speech from unwarranted governmental regulation. Virginia Pharmacy Board, 425 U.S., at 761-762, 96 S.Ct., at 1825. Commercial expression not only serves the economic interest of the speaker, but also assists consumers and furthers the societal interest in the fullest possible dissemination of information. In applying the First Amendment to this area, we have rejected the "highly paternalistic" view that government has complete power to suppress or regulate commercial speech. "[P]eople will perceive their own best interests if only they are well enough informed, and . . . the best means to that end is to open the channels of communication rather than to close them. . . ." Id., at 770, 96 S.Ct., at 1829, see Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 92, 97 S.Ct. 1614, 1618, 50 L.Ed.2d 155 (1977). Even when advertising communicates only an incomplete version of the relevant facts, the First Amendment presumes that some accurate information is better than no information at all. Bates v. State Bar of Arizona, supra, at 374, 97 S.Ct., at 2704.
9
Nevertheless, our decisions have recognized "the 'commonsense' distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech." Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 455-456, 98 S.Ct. 1912, 1918, 56 L.Ed.2d 444 (1978); see Bates v. State Bar of Arizona, supra, 433 U.S., at 381, 97 S.Ct., at 2707; see also Jackson & Jeffries, Commercial Speech: Economic Due Process and the First Amendment, 65 Va.L.Rev. 1, 38-39 (1979).5 The Constitution therefore accords a lesser protection to commercial speech than to other constitutionally guaranteed expression. 436 U.S., at 456, 457, 98 S.Ct., at 1918, 1919. The protection available for particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation.
10
The First Amendment's concern for commercial speech is based on the informational function of advertising. See First National Bank of Boston v. Bellotti, 435 U.S. 765, 783, 98 S.Ct. 1407, 1419, 55 L.Ed.2d 707 (1978). Consequently, there can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity. The government may ban forms of communication more likely to deceive the public than to inform it, Friedman v. Rogers, supra, at 13, 15-16, 99 S.Ct., at 896, 897; Ohralik v. Ohio State Bar Assn., supra, at 464-465, 98 S.Ct., at 1923-1925, or commercial speech related to illegal activity, Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376, 388, 93 S.Ct. 2553, 2560, 37 L.Ed.2d 669 (1973).6
11
If the communication is neither misleading nor related to unlawful activity, the government's power is more circumscribed. The State must assert a substantial interest to be achieved by restrictions on commercial speech. Moreover, the regulatory technique must be in proportion to that interest. The limitation on expression must be designed carefully to achieve the State's goal. Compliance with this requirement may be measured by two criteria. First, the restriction must directly advance the state interest involved; the regulation may not be sustained if it provides only ineffective or remote support for the government's purpose. Second, if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restrictions cannot survive.
12
Under the first criterion, the Court has declined to uphold regulations that only indirectly advance the state interest involved. In both Bates and Virginia Pharmacy Board, the Court concluded that an advertising ban could not be imposed to protect the ethical or performance standards of a profession. The Court noted in Virginia Pharmacy Board that "[t]he advertising ban does not directly affect professional standards one way or the other." 425 U.S., at 769, 96 S.Ct., at 1829. In Bates, the Court overturned an advertising prohibition that was designed to protect the "quality" of a lawyer's work. "Restraints on advertising . . . are an ineffective way of deterring shoddy work." 433 U.S., at 378, 97 S.Ct., at 2706.7
13
The second criterion recognizes that the First Amendment mandates that speech restrictions be "narrowly drawn." In re Primus, 436 U.S. 412, 438, 98 S.Ct. 1893, 1908, 56 L.Ed.2d 417 (1978).8 The regulatory technique may extend only as far as the interest it serves. The State cannot regulate speech that poses no danger to the asserted state interest, see First National Bank of Boston v. Bellotti, supra, at 794-795, 98 S.Ct., at 1425-1426, nor can it completely suppress information when narrower restrictions on expression would serve its interest as well. For example, in Bates the Court explicitly did not "foreclose the possibility that some limited supplementation, by way of warning or disclaimer or the like, might be required" in promotional materials. 433 U.S., at 384, 97 S.Ct., at 2709. See Virginia Pharmacy Board, supra, at 773, 96 S.Ct., at 1831. And in Carey v. Population Services International, 431 U.S. 678, 701-702, 97 S.Ct. 2010, 2025, 52 L.Ed.2d 675 (1977), we held that the State's "arguments . . . do not justify the total suppression of advertising concerning contraceptives." This holding left open the possibility that the State could implement more carefully drawn restrictions. See id., at 712, 97 S.Ct., at 2030 (POWELL, J., concurring in part and in judgment); id., at 716-717, 97 S.Ct., at 2032 (STEVENS, J., concurring in part and in judgment).9
14
In commercial speech cases, then, a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.
III
15
We now apply this four-step analysis for commercial speech to the Commission's arguments in support of its ban on promotional advertising.
A.
16
The Commission does not claim that the expression at issue either is inaccurate or relates to unlawful activity. Yet the New York Court of Appeals questioned whether Central Hudson's advertising is protected commercial speech. Because appellant holds a monopoly over the sale of electricity in its service area, the state court suggested that the Commission's order restricts no commercial speech of any worth. The court stated that advertising in a "noncompetitive market" could not improve the decisionmaking of consumers. 47 N.Y.2d, at 110, 417 N.Y.S.2d, at 39, 390 N.E.2d, at 757. The court saw no constitutional problem with barring commercial speech that it viewed as conveying little useful information.
17
This reasoning falls short of establishing that appellant's advertising is not commercial speech protected by the First Amendment. Monopoly over the supply of a product provides no protection from competition with substitutes for that product. Electric utilities compete with suppliers of fuel oil and natural gas in several markets, such as those for home heating and industrial power. This Court noted the existence of interfuel competition 45 years ago, see West Ohio Gas Co. v. Public Utilities Comm'n, 294 U.S. 63, 72, 55 S.Ct. 316, 321, 79 L.Ed. 761 (1935). Each energy source continues to offer peculiar advantages and disadvantages that may influence consumer choice. For consumers in those competitive markets, advertising by utilities is just as valuable as advertising by unregulated firms.10
18
Even in monopoly markets, the suppression of advertising reduces the information available for consumer decisions and thereby defeats the purpose of the First Amendment. The New York court's argument appears to assume that the providers of a monopoly service or product are willing to pay for wholly ineffective advertising. Most businesses—even regulated monopolies—are unlikely to underwrite promotional advertising that is of no interest or use to consumers. Indeed, a monopoly enterprise legitimately may wish to inform the public that it has developed new services or terms of doing business. A consumer may need information to aid his decision whether or not to use the monopoly service at all, or how much of the service he should purchase. In the absence of factors that would distort the decision to advertise, we may assume that the willingness of a business to promote its products reflects a belief that consumers are interested in the advertising.11 Since no such extraordinary conditions have been identified in this case, appellant's monopoly position does not alter the First Amendment's protection for its commercial speech.
B
19
The Commission offers two state interests as justifications for the ban on promotional advertising. The first concerns energy conservation. Any increase in demand for electricity—during peak or off-peak periods—means greater consumption of energy. The Commission argues, and the New York court agreed, that the State's interest in conserving energy is sufficient to support suppression of advertising designed to increase consumption of electricity. In view of our country's dependence on energy resources beyond our control, no one can doubt the importance of energy conservation. Plainly, therefore, the state interest asserted is substantial.
20
The Commission also argues that promotional advertising will aggravate inequities caused by the failure to base the utilities' rates on marginal cost. The utilities argued to the Commission that if they could promote the use of electricity in periods of low demand, they would improve their utilization of generating capacity. The Commission responded that promotion of off-peak consumption also would increase consumption during peak periods. If peak demand were to rise, the absence of marginal cost rates would mean that the rates charged for the additional power would not reflect the true costs of expanding production. Instead, the extra costs would be borne by all consumers through higher overall rates. Without promotional advertising, the Commission stated, this inequitable turn of events would be less likely to occur. The choice among rate structures involves difficult and important questions of economic supply and distributional fairness.12 The State's concern that rates be fair and efficient represents a clear and substantial governmental interest.
C
21
Next, we focus on the relationship between the State's interests and the advertising ban. Under this criterion, the Commission's laudable concern over the equity and efficiency of appellant's rates does not provide a constitutionally adequate reason for restricting protected speech. The link between the advertising prohibition and appellant's rate structure is, at most, tenuous. The impact of promotional advertising on the equity of appellant's rates is highly speculative. Advertising to increase off-peak usage would have to increase peak usage, while other factors that directly affect the fairness and efficiency of appellant's rates remained constant. Such conditional and remote eventualities simply cannot justify silencing appellant's promotional advertising.
22
In contrast, the State's interest in energy conservation is directly advanced by the Commission order at issue here. There is an immediate connection between advertising and demand for electricity. Central Hudson would not contest the advertising ban unless it believed that promotion would increase its sales. Thus, we find a direct link between the state interest in conservation and the Commission's order.
D
23
We come finally to the critical inquiry in this case: whether the Commission's complete suppression of speech ordinarily protected by the First Amendment is no more extensive than necessary to further the State's interest in energy conservation. The Commission's order reaches all promotional advertising, regardless of the impact of the touted service on overall energy use. But the energy conservation rationale, as important as it is, cannot justify suppressing information about electric devices or services that would cause no net increase in total energy use. In addition, no showing has been made that a more limited restriction on the content of promotional advertising would not serve adequately the State's interests.
24
Appellant insists that but for the ban, it would advertise products and services that use energy efficiently. These include the "heat pump," which both parties acknowledge to be a major improvement in electric heating, and the use of electric heat as a "backup" to solar and other heat sources. Although the Commission has questioned the efficiency of electric heating before this Court, neither the Commission's Policy Statement nor its order denying rehearing made findings on this issue. In the absence of authoritative findings to the contrary, we must credit as within the realm of possibility the claim that electric heat can be an efficient alternative in some circumstances.
25
The Commission's order prevents appellant from promoting electric services that would reduce energy use by diverting demand from less efficient sources, or that would consume roughly the same amount of energy as do alternative sources. In neither situation would the utility's advertising endanger conservation or mislead the public. To the extent that the Commission's order suppresses speech that in no way impairs the State's interest in energy conservation, the Commission's order violates the First and Fourteenth Amendments and must be invalidated. See First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978).
26
The Commission also has not demonstrated that its interest in conservation cannot be protected adequately by more limited regulation of appellant's commercial expression. To further its policy of conservation, the Commission could attempt to restrict the format and content of Central Hudson's advertising. It might, for example, require that the advertisements include information about the relative efficiency and expense of the offered service, both under current conditions and for the foreseeable future. Cf. Banzhaf v. FCC, 132 U.S.App.D.C. 14, 405 F.2d 1082 (1968), cert. denied sub nom. Tobacco Institute, Inc. v. FCC, 396 U.S. 842, 90 S.Ct. 50, 24 L.Ed.2d 93 (1969).13 In the absence of a showing that more limited speech regulation would be ineffective, we cannot approve the complete suppression of Central Hudson's advertising.14
IV
27
Our decision today in no way disparages the national interest in energy conservation. We accept without reservation the argument that conservation, as well as the development of alternative energy sources, is an imperative national goal. Administrative bodies empowered to regulate electric utilities have the authority—and indeed the duty—to take appropriate action to further this goal. When, however, such action involves the suppression of speech, the First and Fourteenth Amendments require that the restriction be no more extensive than is necessary to serve the state interest. In this case, the record before us fails to show that the total ban on promotional advertising meets this requirement.15
28
Accordingly, the judgment of the New York Court of Appeals is
29
Reversed.
30
Mr. Justice BRENNAN, concurring in the judgment.
31
One of the major difficulties in this case is the proper characterization of the Commission's Policy Statement. I find it impossible to determine on the present record whether the Commission's ban on all "promotional" advertising, in contrast to "institutional and informational" advertising, see ante, at 559, is intended to encompass more than "commercial speech." I am inclined to think that Mr. Justice STEVENS is correct that the Commission's order prohibits more than mere proposals to engage in certain kinds of commercial transactions, and therefore I agree with his conclusion that the ban surely violates the First and Fourteenth Amendments. But even on the assumption that the Court is correct that the Commission's order reaches only commercial speech, I agree with Mr. Justice BLACKMUN that "[n]o differences between commercial speech and other protected speech justify suppression of commercial speech in order to influence public conduct through manipulation of the availability of information." Post, at 578.
32
Accordingly, with the qualifications implicit in the preceding paragraph, I join the opinions of Mr. Justice BLACKMUN and Mr. Justice STEVENS concurring in the judgment.
33
Mr. Justice BLACKMUN, with whom Mr. Justice BRENNAN joins, concurring in the judgment.
34
I agree with the Court that the Public Service Commission's ban on promotional advertising of electricity by public utilities is inconsistent with the First and Fourteenth Amendments. I concur only in the Court's judgment, however, because I believe the test now evolved and applied by the Court is not consistent with our prior cases and does not provide adequate protection for truthful, nonmisleading, noncoercive commercial speech.
35
The Court asserts, ante, at 566, that "a four-part analysis has developed" from our decisions concerning commercial speech. Under this four-part test a restraint on commercial "communication [that] is neither misleading nor related to unlawful activity" is subject to an intermediate level of scrutiny, and suppression is permitted whenever it "directly advances" a "substantial" governmental interest and is "not more extensive than is necessary to serve that interest." Ante, at 564 and 566. I agree with the Court that this level of intermediate scrutiny is appropriate for a restraint on commercial speech designed to protect consumers from misleading or coercive speech, or a regulation related to the time, place, or manner of commercial speech. I do not agree, however, that the Court's four-part test is the proper one to be applied when a State seeks to suppress information about a product in order to manipulate a private economic decision that the State cannot or has not regulated or outlawed directly.
36
Since the Court, without citing empirical data or other authority, finds a "direct link" between advertising and energy consumption, it leaves open the possibility that the State may suppress advertising of electricity in order to lessen demand for electricity. I, of course, agree with the Court that, in today's world, energy conservation is a goal of paramount national and local importance. I disagree with the Court, however, when it says that suppression of speech may be a permissible means to achieve that goal. Mr. Justice STEVENS appropriately notes: "The justification for the regulation is nothing more than the expressed fear that the audience may find the utility's message persuasive. Without the aid of any coercion, deception, or misinformation, truthful communication may persuade some citizens to consume more electricity than they otherwise would." Post, at 581.
37
The Court recognizes that we have never held that commercial speech may be suppressed in order to further the State's interest in discouraging purchases of the underlying product that is advertised. Ante, at 566, n. 9. Permissible restraints on commercial speech have been limited to measures designed to protect consumers from fraudulent, misleading, or coercive sales techniques.1 Those designed to deprive consumers of information about products or services that are legally offered for sale consistently have been invalidated.2
38
I seriously doubt whether suppression of information concerning the availability and price of a legally offered product is ever a permissible way for the State to "dampen" demand for or use of the product. Even though "commercial" speech is involved, such a regulatory measure strikes at the heart of the First Amendment. This is because it is a covert attempt by the State to manipulate the choices of its citizens, not by persuasion or direct regulation, but by depriving the public of the information needed to make a free choice. As the Court recognizes, the State's policy choices are insulated from the visibility and scrutiny that direct regulation would entail and the conduct of citizens is molded by the information that government chooses to give them. Ante, at 566, n. 9 ("We review with special care regulations that entirely suppress commercial speech in order to pursue a nonspeech-related policy. In those circumstances, a ban on speech could screen from public view the underlying governmental policy"). See Rotunda, The Commercial Speech Doctrine in the Supreme Court, 1976 U.Ill.Law Forum 1080, 1080-1083.
39
If the First Amendment guarantee means anything, it means that, absent clear and present danger, government has no power to restrict expression because of the effect its message is likely to have on the public. See generally Comment, First Amendment Protection for Commercial Advertising: The New Constitutional Doctrine, 44 U.Chi.L.Rev. 205, 243-251 (1976). Our cases indicate that this guarantee applies even to commercial speech. In Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976), we held that Virginia could not pursue its goal of encouraging the public to patronize the "professional pharmacist" (one who provided individual attention and a stable pharmacist-customer relationship) by "keeping the public in ignorance of the entirely lawful terms that competing pharmacists are offering." Id., at 770, 96 S.Ct., at 1829-30. We noted that our decision left the State free to pursue its goal of maintaining high standards among its pharmacists by "requir[ing] whatever professional standards it wishes of its pharmacists." Ibid.
40
We went on in Virginia Pharmacy Board to discuss the types of regulation of commercial speech that, due to the "commonsense differences" between this form of speech and other forms, are or may be constitutionally permissible. We indicated that government may impose reasonable "time, place, and manner" restrictions, and that it can deal with false, deceptive, and misleading commercial speech. We noted that the question of advertising of illegal transactions and the special problems of the electronic broadcast media were not presented.
41
Concluding with a restatement of the type of restraint that is not permitted, we said: "What is at issue is whether a State may completely suppress the dissemination of concededly truthful information about entirely lawful activity, fearful of that information's effect upon its disseminators and its recipients. . . . [W]e conclude that the answer to this [question] is in the negative." Id., at 773, 96 S.Ct., at 1831.
42
Virginia Pharmacy Board did not analyze the State's interests to determine whether they were "substantial." Obviously, preventing professional dereliction and low quality health care are "substantial," legitimate, and important state goals. Nor did the opinion analyze the ban on speech to determine whether it "directly advance[d]," ante, at 566, 569, these goals. We also did not inquire whether a "more limited regulation of . . . commercial expression," ante, at 570, would adequately serve the State's interests. Rather, we held that the State "may not [pursue its goals] by keeping the public in ignorance." 425 U.S., at 770, 96 S.Ct., at 1829. (Emphasis supplied.)
43
Until today, this principle has governed. In Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 97 S.Ct. 1614, 50 L.Ed.2d 155 (1977), we considered whether a town could ban "For Sale" signs on residential property to further its goal of promoting stable, racially integrated housing. We did note that the record did not establish that the ordinance was necessary to enable the State to achieve its goal. The holding of Linmark, however, was much broader.3 We stated:
44
"The constitutional defect in this ordinance, however, is far more basic. The Township Council here, like the Virginia Assembly in Virginia Pharmacy Bd., acted to prevent its residents from obtaining certain information . . . which pertains to sales activity in Willingboro . . . . The Council has sought to restrict the free flow of these data because it fears that otherwise homeowners will make decisions inimical to what the Council views as the homeowners' self-interest and the corporate interest of the township: they will choose to leave town. The Council's concern, then, was not with any commercial aspect of "For Sale" signs—with offerors communicating offers to offerees but with the substance of the information communicated to Willingboro citizens." Id., at 96, 97 S.Ct., at 1620.
45
The Court in Linmark resolved beyond all doubt that a strict standard of review applies to suppression of commercial information, where the purpose of the restraint is to influence behavior by depriving citizens of information. The Court followed the strong statement above with an explicit adoption of the standard advocated by Mr. Justice Brandeis in his concurring opinion in Whitney v. California, 274 U.S. 357, 377, 47 S.Ct. 641, 649, 71 L.Ed. 1095 (1927): "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression." 431 U.S., at 97, 97 S.Ct., at 1620.
46
Carey v. Population Services International, 431 U.S. 678, 700-702, 97 S.Ct. 2010, 2024-2025, 52 L.Ed.2d 675 (1977), also applied to content-based restraints on commercial speech the same standard of review we have applied to other varieties of speech. There the Court held that a ban on advertising of contraceptives could not be justified by the State's interest in avoiding " 'legitimation' of illicit sexual behavior" because the advertisements could not be characterized as " 'directed to inciting or producing imminent lawless action and . . . likely to incite or produce such action,' " id., at 701, 97 S.Ct., at 2024, quoting Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430 (1969).
47
Our prior references to the " 'commonsense differences' " between commercial speech and other speech " 'suggest that a different degree of protection is necessary to insure that the flow of truthful and legitimate commercial information is unimpaired.' " Linmark Associates, 431 U.S., at 98, 97 S.Ct., at 1621, quoting Virginia Pharmacy Board, 425 U.S., at 771-772, n. 24, 96 S.Ct., at 1830, n. 24. We have not suggested that the "commonsense differences" between commercial speech and other speech justify relaxed scrutiny of restraints that suppress truthful, nondeceptive, noncoercive commercial speech. The differences articulated by the Court, see ante, at 564, n. 6, justify a more permissive approach to regulation of the manner of commercial speech for the purpose of protecting consumers from deception or coercion, and these differences explain why doctrines designed to prevent "chilling" of protected speech are inapplicable to commercial speech. No differences between commercial speech and other protected speech justify suppression of commercial speech in order to influence public conduct through manipulation of the availability of information. The Court stated in Carey v. Population Services International :
48
"Appellants suggest no distinction between commercial and noncommercial speech that would render these discredited arguments meritorious when offered to justify prohibitions on commercial speech. On the contrary, such arguments are clearly directed not at any commercial aspect of the prohibited advertising but at the ideas conveyed and form of expression—the core of First Amendment values." 431 U.S., at 701, n. 28, 97 S.Ct., at 2025, n. 28 (emphasis added).
49
It appears that the Court would permit the State to ban all direct advertising of air conditioning, assuming that a more limited restriction on such advertising would not effectively deter the public from cooling its homes. In my view, our cases do not support this type of suppression. If a governmental unit believes that use or overuse of air conditioning is a serious problem, it must attack that problem directly, by prohibiting air conditioning or regulating thermostat levels. Just as the Commonwealth of Virginia may promote professionalism of pharmacists directly, so too New York may not promote energy conservation "by keeping the public in ignorance." Virginia Pharmacy Board, 425 U.S., at 770, 96 S.Ct., at 1829.
50
Mr. Justice STEVENS, with whom Mr. Justice BRENNAN joins, concurring in the judgment.
51
Because "commercial speech" is afforded less constitutional protection than other forms of speech,1 it is important that the commercial speech concept not be defined too broadly lest speech deserving of greater constitutional protection be inadvertently suppressed. The issue in this case is whether New York's prohibition on the promotion of the use of electricity through advertising is a ban on nothing but commercial speech.
52
In my judgment one of the two definitions the Court uses in addressing that issue is too broad and the other may be somewhat too narrow. The Court first describes commercial speech as "expression related solely to the economic interests of the speaker and its audience." Ante, at 561. Although it is not entirely clear whether this definition uses the subject matter of the speech or the motivation of the speaker as the limiting factor, it seems clear to me that it encompasses speech that is entitled to the maximum protection afforded by the First Amendment. Neither a labor leader's exhortation to strike, nor an economist's dissertation on the money supply, should receive any lesser protection because the subject matter concerns only the economic interests of the audience. Nor should the economic motivation of a speaker qualify his constitutional protection; even Shakespeare may have been motivated by the prospect of pecuniary reward. Thus, the Court's first definition of commercial speech is unquestionably too broad.2
53
The Court's second definition refers to " 'speech proposing a commercial transaction.' " Ante, at 562. A salesman's solicitation, a broker's offer, and a manufacturer's publication of a price list or the terms of his standard warranty would unquestionably fit within this concept.3 Presumably, the definition is intended to encompass advertising that advises possible buyers of the availability of specific products at specific prices and describes the advantages of purchasing such items. Perhaps it also extends to other communications that do little more than make the name of a product or a service more familiar to the general public. Whatever the precise contours of the concept, and perhaps it is too early to enunciate an exact formulation, I am persuaded that it should not include the entire range of communication that is embraced within the term "promotional advertising."
54
This case involves a governmental regulation that completely bans promotional advertising by an electric utility. This ban encompasses a great deal more than mere proposals to engage in certain kinds of commercial transactions. It prohibits all advocacy of the immediate or future use of electricity. It curtails expression by an informed and interested group of persons of their point of view on questions relating to the production and consumption of electrical energy—questions frequently discussed and debated by our political leaders. for example, an electric company's advocacy of the use of electric heat for environmental reasons, as opposed to wood-burning stoves, would seem to fall squarely within New York's promotional advertising ban and also within the bounds of maximum First Amendment protection. The breadth of the ban thus exceeds the boundaries of the commercial speech concept, however that concept may be defined.4
55
The justification for the regulation is nothing more than the expressed fear that the audience may find the utility's message persuasive. Without the aid of any coercion, deception, or misinformation, truthful communication may persuade some citizens to consume more electricity than they otherwise would. I assume that such a consequence would be undesirable and that government may therefore prohibit and punish the unnecessary or excessive use of electricity. But if the perceived harm associated with greater electrical usage is not sufficiently serious to justify direct regulation, surely it does not constitute the kind of clear and present danger that can justify the suppression of speech.
56
Although they were written in a different context, the words used by Mr. Justice Brandeis in his concurring opinion in Whitney v. California, 274 U.S. 357, 376-377, 47 S.Ct. 641, 648-649, 71 L.Ed. 1095, explain my reaction to the prohibition against advocacy involved in this case:
57
"But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.
58
"Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Constitution." (Footnote omitted.)5
59
In sum, I concur in the result because I do not consider this to be a "commercial speech" case. Accordingly, I see no need to decide whether the Court's four-part analysis, ante, at 566, adequately protects commercial speech—as properly defined—in the face of a blanket ban of the sort involved in this case.
60
Mr. Justice REHNQUIST, dissenting.
61
The Court today invalidates an order issued by the New York Public Service Commission designed to promote a policy that has been declared to be of critical national concern. The order was issued by the Commission in 1973 in response to the Mideastern oil embargo crisis. It prohibits electric corporations "from promoting the use of electricity through the use of advertising, subsidy payments . . ., or employee incentives." State of New York Public Service Commission, Case No. 26532 (Dec. 5, 1973), App. to Juris. Statement 31a (emphasis added). Although the immediate crisis created by the oil embargo has subsided, the ban on promotional advertising remains in effect. The regulation was re-examined by the New York Public Service Commission in 1977. Its constitutionality was subsequently upheld by the New York Court of Appeals, which concluded that the paramount national interest in energy conservation justified its retention.1
62
The Court's asserted justification for invalidating the New York law is the public interest discerned by the Court to underlie the First Amendment in the free flow of commercial information. Prior to this Court's recent decision in Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976), however, commercial speech was afforded no protection under the First Amendment whatsoever. See E. g., Breard v. Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233 (1951); Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942). Given what seems to me full recognition of the holding of Virginia Pharmacy Board that commercial speech is entitled to some degree of First Amendment protection, I think the Court is nonetheless incorrect in invalidating the carefully considered state ban on promotional advertising in light of pressing national and state energy needs.
63
The Court's analysis in my view is wrong in several respects. Initially, I disagree with the Court's conclusion that the speech of a state-created monopoly, which is the subject of a comprehensive regulatory scheme, is entitled to protection under the First Amendment. I also think that the Court errs here in failing to recognize that the state law is most accurately viewed as an economic regulation and that the speech involved (if it falls within the scope of the First Amendment at all) occupies a significantly more subordinate position in the hierarchy of First Amendment values than the Court gives it today. Finally, the Court in reaching its decision improperly substitutes its own judgment for that of the State in deciding how a proper ban on promotional advertising should be drafted. With regard to this latter point, the Court adopts as its final part of a four-part test a "no more extensive than necessary" analysis that will unduly impair a state legislature's ability to adopt legislation reasonably designed to promote interests that have always been rightly thought to be of great importance to the State.
64
* In concluding that appellant's promotional advertising constitutes protected speech, the Court reasons that speech by electric utilities is valuable to consumers who must decide whether to use the monopoly service or turn to an alternative energy source, and if they decide to use the service how much of it to purchase. Ante, at 567. The Court in so doing "assume[s] that the willingness of a business to promote its products reflects a belief that consumers are interested in the advertising." Ante, at 568. The Court's analysis ignores the fact that the monopoly here is entirely state-created and subject to an extensive state regulatory scheme from which it derives benefits as well as burdens.
65
While this Court has stated that the "capacity [of speech] for informing the public does not depend upon the identity of its source," First National Bank of Boston v. Bellotti, 435 U.S. 765, 777, 98 S.Ct. 1407, 1416, 55 L.Ed.2d 707 (1978), the source of the speech nevertheless may be relevant in determining whether a given message is protected under the First Amendment.2 When the source of the speech is a state-created monopoly such as this, traditional First Amendment concerns, if they come into play at all, certainly do not justify the broad interventionist role adopted by the Court today. In Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530, 549-550, 100 S.Ct. 2326, 2339-2340, 65 L.Ed.2d 319, Mr. Justice BLACKMUN observed:
66
"A public utility is a state-created monopoly. See, e. g., N. Y. Pub. Serv. Law § 68 (McKinney 1955); Jones, Origins of the Certificate of Public Convenience and Necessity; Developments in the States 1870-1920, 79 Colum. L.Rev. 426, 458-461 (1979); Comment, Utility Rates, Consumers, and the New York State Public Service Commission, 39 Albany L.Rev. 707, 709-714 (1975). Although monopolies generally are against the public policies of the United States and of the State of New York, see, e. g., N. Y. Gen. Bus. Law § 340 (McKinney 1968 and Supp.1979-1980), . . . utilities are permitted to operate as monopolies because of a determination by the State that the public interest is better served by protecting them from competition. See 2 A. Kahn, The Economics of Regulation 113-171 (1971).
67
"This exceptional grant of power to private enterprises justifies extensive oversight on the part of the State to protect the ratepayers from exploitation of the monopoly power through excessive rates and other forms of overreaching. . . . New York law gives its Public Service Commission plenary supervisory powers over all property, real and personal, 'used or to be used for or in connection with or to facilitate the . . . sale or furnishing of electricity for light, heat or power.' N.Y.Pub.Serv.Law §§ 2(12) and 66(1) (McKinney 1955)."
68
Thus, although First National Bank of Boston v. Bellotti, supra, holds that speech of a corporation is entitled to some First Amendment protection, it by no means follows that a utility with monopoly power conferred by a State is also entitled to such protection.
69
The state-created monopoly status of a utility arises from the unique characteristics of the services that a utility provides. As recognized in Cantor v. Detroit Edison Co., 428 U.S. 579, 595-596, 96 S.Ct. 3110, 3120, 49 L.Ed.2d 1141 (1976), "public utility regulation typically assumes that the private firm is a natural monopoly and that public controls are necessary to protect the consumer from exploitation." The consequences of this natural monopoly in my view justify much more wide-ranging supervision and control of a utility under the First Amendment than this Court held in Bellotti to be permissible with regard to ordinary corporations. Corporate status is generally conferred as a result of a State's determination that the corporate characteristics "enhance its efficiency as an economic entity." First National Bank of Boston v. Bellotti, supra, at 825-826, 98 S.Ct., at 1441 (REHNQUIST, J., dissenting). A utility, by contrast fulfills a function that serves special public interests as a result of the natural monopoly of the service provided. Indeed, the extensive regulations governing decisionmaking by public utilities suggest that for purposes of First Amendment analysis, a utility is far closer to a state-controlled enterprise than is an ordinary corporation.3 Accordingly, I think a State has broad discretion in determining the statements that a utility may make in that such statements emanate from the entity created by the State to provide important and unique public services. And a state regulatory body charged with the oversight of these types of services may reasonably decide to impose on the utility a special duty to conform its conduct to the agency's conception of the public interest. Thus I think it is constitutionally permissible for it to decide that promotional advertising is inconsistent with the public interest in energy conservation. I also think New York's ban on such advertising falls within the scope of permissible state regulation of an economic activity by an entity that could not exist in corporate form, say nothing of enjoy monopoly status, were it not for the laws of New York.4
II
70
This Court has previously recognized that although commercial speech may be entitled to First Amendment protection, that protection is not as extensive as that accorded to the advocacy of ideas. Thus, we stated in Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 455-456, 98 S.Ct. 1912, 1918, 56 L.Ed.2d 444 (1978):
71
"Expression concerning purely commercial transactions has come within the ambit of the Amendment's protection only recently. In rejecting the notion that such speech 'is wholly outside the protection of the First Amendment,' Virginia Pharmacy, supra, [425 U.S.], at 761, [96 S.Ct., at 1825], we were careful not to hold 'that it is wholly undifferentiable from other forms' of speech. 425 U.S., at 771, n. 24, [96 S.Ct., at 1831, n. 24]. We have not discarded the 'common-sense' distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech. Ibid. To require a parity of constitutional protection for commercial and noncommercial speech alike could invite dilution, simply by a leveling process, of the force of the Amendment's guarantee with respect to the latter kind of speech. Rather than subject the First Amendment to such a devitalization, we instead have afforded commercial speech a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, while allowing modes of regulation that might be impermissible in the realm of noncommercial expression." (Footnote omitted.)
72
The Court's decision today fails to give due deference to this subordinate position of commercial speech. The Court in so doing returns to the bygone era of Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905), in which it was common practice for this Court to strike down economic regulations adopted by a State based on the Court's own notions of the most appropriate means for the State to implement its considered policies.
73
I had thought by now it had become well established that a State has broad discretion in imposing economic regulations. As this Court stated in Nebbia v. New York, 291 U.S. 502, 537, 54 S.Ct. 505, 516, 78 L.Ed. 940 (1934):
74
"[T]here can be no doubt that upon proper occasion and by appropriate measures the state may regulate a business in any of its aspects. . . .
75
"So far as the requirement of due process is concerned, and in the absence of other constitutional restriction, a state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation adapted to its purpose. The courts are without authority either to declare such policy, or, when it is declared by the legislature, to override it. If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination to that effect renders a court functus officio. . . . [I]t does not lie with the courts to determine that the rule is unwise."
76
And Mr. Justice Black, writing for the Court, observed more recently in Ferguson v. Skrupa, 372 U.S. 726, 730, 83 S.Ct. 1028, 1031, 10 L.Ed.2d 93 (1963):
77
"The doctrine . . . that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely—has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws."
78
The State of New York has determined here that economic realities require the grant of monopoly status to public utilities in order to distribute efficiently the services they provide, and in granting utilities such status it has made them subject to an extensive regulatory scheme. When the State adopted this scheme and when its Public Service Commission issued its initial ban on promotional advertising in 1973, commercial speech had not been held to fall within the scope of the First Amendment at all. Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976), however, subsequently accorded commercial speech a limited measure of First Amendment protection.
79
The Court today holds not only that commercial speech is entitled to First Amendment protection, but also that when it is protected a State may not regulate it unless its reason for doing so amounts to a "substantial" governmental interest, its regulation "directly advances" that interest, and its manner of regulation is "not more extensive than necessary" to serve the interest. Ante, at 566. The test adopted by the Court thus elevates the protection accorded commercial speech that falls within the scope of the First Amendment to a level that is virtually indistinguishable from that of noncommercial speech. I think the Court in so doing has effectively accomplished the "devitalization" of the First Amendment that it counseled against in Ohralik. I think it has also, by labeling economic regulation of business conduct as a restraint on "free speech," gone far to resurrect the discredited doctrine of cases such as Lochner and Tyson & Brother v. Banton, 273 U.S. 418, 47 S.Ct. 426, 71 L.Ed. 718 (1927). New York's order here is in my view more akin to an economic regulation to which virtually complete deference should be accorded by this Court.
80
I doubt there would be any question as to the constitutionality of New York's conservation effort if the Public Service Commission had chosen to raise the price of electricity, see, e. g., Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 60 S.Ct. 907, 84 L.Ed. 1263 (1940); Old Dearborn Distributing Co. v. Seagram-Distillers Corp., 299 U.S. 183, 57 S.Ct. 139, 81 L.Ed. 109 (1936), to condition its sale on specified terms, see, e. g., Nebbia v. New York, supra, at 527-528, 54 S.Ct., at 511-512, or to restrict its production, see, e. g., Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942). In terms of constitutional values, I think that such controls are virtually indistinguishable from the State's ban on promotional advertising.
81
An ostensible justification for striking down New York's ban on promotional advertising is that this Court has previously "rejected the 'highly paternalistic' view that government has complete power to suppress or regulate commercial speech. '[P]eople will perceive their own best interests if only they are well enough informed and . . . the best means to that end is to open the channels of communication, rather than to close them. . . .' " Ante, at 562. Whatever the merits of this view, I think the Court has carried its logic too far here.
82
The view apparently derives from the Court's frequent reference to the "marketplace of ideas," which was deemed analogous to the commercial market in which a laissez-faire policy would lead to optimum economic decisionmaking under the guidance of the "invisible hand." See, e. g., Adam Smith, Wealth of Nations (1776). This notion was expressed by Mr. Justice Holmes in his dissenting opinion in Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 22, 63 L.Ed. 1173 (1919), wherein he stated that "the best test of truth is the power of the thought to get itself accepted in the competition of the market . . . ." See also, e. g., Consolidated Edison v. Public Service Comm'n, 447 U.S., at 534, 100 S.Ct., at 2331; J. Mill, On Liberty (1858); J. Milton, Areopagitica, A Speech for the Liberty of Unlicensed Printing (1644).
83
While it is true that an important objective of the First Amendment is to foster the free flow of information, identification of speech that falls within its protection is not aided by the metaphorical reference to a "marketplace of ideas." There is no reason for believing that the marketplace of ideas is free from market imperfections any more than there is to believe that the invisible hand will always lead to optimum economic decisions in the commercial market. See, e. g., Baker, Scope of the First Amendment, Freedom of Speech, 25 UCLA L.Rev. 964, 967-981 (1978). Indeed, many types of speech have been held to fall outside the scope of the First Amendment, thereby subject to governmental regulation, despite this Court's references to a marketplace of ideas. See, e. g., Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) (fighting words); Beauharnais v. Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919 (1952) (group libel); Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) (obscenity). It also has been held that the government has a greater interest in regulating some types of protected speech than others. See, e. g., FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978) (indecent speech); Virginia Pharmacy Board v. Virginia Citizens Consumer Council, supra (commercial speech). And as this Court stated in Gertz v. Robert Welch, Inc., 418 U.S. 323, 344, n. 9, 94 S.Ct. 2997, 3009, n. 9, 41 L.Ed.2d 789 (1974): "Of course, an opportunity for rebuttal seldom suffices to undo [the] harm of a defamatory falsehood. Indeed the law of defamation is rooted in our experience that the truth rarely catches up with a lie." The Court similarly has recognized that false and misleading commercial speech is not entitled to any First Amendment protection. See, e. g., ante, at 566.
84
The above examples illustrate that in a number of instances government may constitutionally decide that societal interests justify the imposition of restrictions on the free flow of information. When the question is whether a given commercial message is protected, I do not think this Court's determination that the information will "assist" consumers justifies judicial invalidation of a reasonably drafted state restriction on such speech when the restriction is designed to promote a concededly substantial state interest. I consequently disagree with the Court's conclusion that the societal interest in the dissemination of commercial information is sufficient to justify a restriction on the State's authority to regulate promotional advertising by utilities; indeed, in the case of a regulated monopoly, it is difficult for me to distinguish "society" from the state legislature and the Public Service Commission. Nor do I think there is any basis for concluding that individual citizens of the State will recognize the need for and act to promote energy conservation to the extent the government deems appropriate, if only the channels of communication are left open.5 Thus, even if I were to agree that commercial speech is entitled to some First Amendment protection, I would hold here that the State's decision to ban promotional advertising, in light of the substantial state interest at stake, is a constitutionally permissible exercise of its power to adopt regulations designed to promote the interests of its citizens.
85
The plethora of opinions filed in this case highlights the doctrinal difficulties that emerge from this Court's decisions granting First Amendment protection to commercial speech. My Brother STEVENS, quoting Mr. Justice Brandeis in Whitney v. California, 274 U.S. 357, 376-377, 47 S.Ct. 641, 648-649, 71 L.Ed. 1095 (1927), includes Mr. Justice Brandeis' statement that "[t]hose who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty." Ante, at 582. Mr. Justice BLACKMUN, in his separate opinion, joins only in the Court's judgment because he believes that the Court's opinion "does not provide adequate protection for truthful, nonmisleading, noncoercive commercial speech." Ante, at 573. Both Mr. Justice STEVENS, ante, at 582, and Mr. Justice BLACKMUN, ante, at 577, would apply the following formulation by Mr. Justice Brandeis of the clear-and-present-danger test to the regulation of speech at issue in this case:
86
"If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression." Whitney v. California, supra, at 377, 47 S.Ct., at 649 (concurring opinion).
87
Although the Court today does not go so far as to adopt this position, its reasons for invalidating New York's ban on promotional advertising make it quite difficult for a legislature to draft a statute regulating promotional advertising that will satisfy the First Amendment requirements established by the Court in this context. See Part III, infra.
88
Two ideas are here at war with one another, and their resolution, although it be on a judicial battlefield, will be a very difficult one. The sort of "advocacy" of which Mr. Justice Brandeis spoke was not the advocacy on the part of a utility to use more of its product. Nor do I think those who won our independence, while declining to "exalt order at the cost of liberty," would have viewed a merchant's unfettered freedom to advertise in hawking his wares as a "liberty" not subject to extensive regulation in light of the government's substantial interest in attaining "order" in the economic sphere.
89
While I agree that when the government attempts to regulate speech of those expressing views on public issues, the speech is protected by the First Amendment unless it presents "a clear and present danger" of a substantive evil that the government has a right to prohibit, see, e. g., Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470 (1919), I think it is important to recognize that this test is appropriate in the political context in light of the central importance of such speech to our system of self-government. As observed in Buckley v. Valeo, 424 U.S. 1, 14, 96 S.Ct. 612, 632, 46 L.Ed.2d 659 (1976):
90
"Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order 'to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.' "
91
And in Garrison v. Louisiana, 379 U.S. 64, 74-75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125 (1964), this Court stated that "speech concerning public affairs is more than self-expression; it is the essence of self-government."
92
The First Amendment, however, does not always require a clear and present danger to be present before the government may regulate speech. Although First Amendment protection is not limited to the "exposition of ideas" on public issues, see, e. g., Winters v. New York, 333 U.S. 507, 510, 68 S.Ct. 665, 667, 92 L.Ed. 840 (1948)—both because the line between the informing and the entertaining is elusive and because art, literature, and the like may contribute to important First Amendment interests of the individual in freedom of speech—it is well established that the government may regulate obscenity even though it does not present a clear and present danger. Compare, e. g., Paris Adult Theatre I v. Slaton, 413 U.S. 49, 57-58, 93 S.Ct. 2628, 2635, 37 L.Ed.2d 446 (1973), with Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430 (1969). Indecent speech, at least when broadcast over the airwaves, also may be regulated absent a clear and present danger of the type described by Mr. Justice Brandeis and required by this Court in Brandenburg. FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978). And in a slightly different context this Court declined to apply the clear-and-present-danger test to a conspiracy among members of the press in violation of the Sherman Act because to do so would "degrade" that doctrine. Associated Press v. United States, 326 U.S. 1, 7, 65 S.Ct. 1416, 1418, 89 L.Ed. 2013 (1945). Nor does the Court today apply the clear-and-present-danger test in invalidating New York's ban on promotional advertising. As noted above, in these and other contexts the Court has clearly rejected the notion that there must be a free "marketplace of ideas."
93
If the complaint of those who feel the Court's opinion does not go far enough is that the "only test of truth is its ability to get itself accepted in the marketplace of ideas"—the test advocated by Thomas Jefferson in his first inaugural address, and by Mr. Justice Holmes in Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 22, 63 L.Ed. 1173 (1919) (dissenting opinion) there is no reason whatsoever to limit the protection accorded commercial speech to "truthful, nonmisleading, noncoercive" speech. See ante, at 573 (BLACKMUN, J., concurring in judgment). If the "commercial speech" is in fact misleading, the "marketplace of ideas" will in time reveal that fact. It may not reveal it sufficiently soon to avoid harm to numerous people, but if the reasoning of Brandeis and Holmes is applied in this context, that was one of the risks we took in protecting free speech in a democratic society.
94
Unfortunately, although the "marketplace of ideas" has a historically and sensibly defined context in the world of political speech, it has virtually none in the realm of business transactions. Even so staunch a defender of the First Amendment as Mr. Justice Black, in his dissent in Breard v. Alexandria, 341 U.S., at 650, n., 71 S.Ct., at 936, n., stated:
95
"Of course I believe that the present ordinance could constitutionally be applied to a 'merchant' who goes from door to door 'selling pots.' "
96
And yet, with the change in solicitation and advertising techniques, the line between what Central Hudson did here and the peddler selling pots in Alexandria a generation ago is difficult, if not impossible to fix. Doubtless that was why Mr. Justice Black joined the unanimous opinion of the Court in Valentine v. Chrestensen, 316 U.S., at 54, 62 S.Ct., at 921, in which the Court stated:
97
"This court has unequivocally held that the streets are proper places for the exercise of the freedom of communicating information and disseminating opinion and that, though the states and municipalities may appropriately regulate the privilege in the public interest, they may not unduly burden or proscribe its employment in these public thoroughfares. We are equally clear that the Constitution imposes no such restraint on government as respects purely commercial advertising. Whether, and to what extent, one may promote or pursue a gainful occupation in the streets, to what extent such activity shall be adjudged a derogation of the public right of user, are matters for legislative judgment." (Emphasis added.)
98
I remain of the view that the Court unlocked a Pandora's Box when it "elevated" commercial speech to the level of traditional political speech by according it First Amendment protection in Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). The line between "commercial speech," and the kind of speech that those who drafted the First Amendment had in mind, may not be a technically or intellectually easy one to draw, but it surely produced far fewer problems than has the development of judicial doctrine in this area since Virginia Board. For in the world of political advocacy and its marketplace of ideas, there is no such thing as a "fraudulent" idea: there may be useless proposals, totally unworkable schemes, as well as very sound proposals that will receive the imprimatur of the "marketplace of ideas" through our majoritarian system of election and representative government. The free flow of information is important in this context not because it will lead to the discovery of any objective "truth," but because it is essential to our system of self-government.
99
The notion that more speech is the remedy to expose falsehood and fallacies is wholly out of place in the commercial bazaar, where if applied logically the remedy of one who was defrauded would be merely a statement, available upon request, reciting the Latin maxim "caveat emptor." But since "fraudulent speech" in this area is to be remediable under Virginia Pharmacy Board, supra, the remedy of one defrauded is a lawsuit or an agency proceeding based on common-law notions of fraud that are separated by a world of difference from the realm of politics and government. What time, legal decisions, and common sense have so widely severed, I declined to join in Virginia Pharmacy Board, and regret now to see the Court reaping the seeds that it there sowed. For in a democracy, the economic is subordinate to the political, a lesson that our ancestors learned long ago, and that our descendants will undoubtedly have to relearn many years hence.
III
100
The Court concedes that the state interest in energy conservation is plainly substantial, ante, at 568, as is the State's concern that its rates be fair and efficient. Ante, at 569. It also concedes that there is a direct link between the Commission's ban on promotional advertising and the State's interest in conservation. Ibid. The Court nonetheless strikes down the ban on promotional advertising because the Commission has failed to demonstrate, under the final part of the Court's four-part test, that its regulation is no more extensive than necessary to serve the State's interest. Ante, at 569-571. In reaching this conclusion, the Court conjures up potential advertisements that a utility might make that conceivably would result in net energy savings. The Court does not indicate that the New York Public Service Commission has in fact construed its ban on "promotional" advertising to preclude the dissemination of information that clearly would result in a net energy savings, nor does it even suggest that the Commission has been confronted with and rejected such an advertising proposal.6 The final part of the Court's test thus leaves room for so many hypothetical "better" ways that any ingenious lawyer will surely seize on one of them to secure the invalidation of what the state agency actually did. As Mr. Justice BLACKMUN observed inIllinois Elections Bd. v. Socialist Workers Party, 440 U.S. 173, 188-189, 99 S.Ct. 983, 993, 59 L.Ed.2d 230 (1979) (concurring opinion):
101
"A judge would be unimaginative indeed if he could not come up with something a little less 'drastic' or a little less 'restrictive' in almost any situation, and thereby enable himself to vote to strike legislation down."
102
Here the Court concludes that the State's interest in energy conservation cannot justify a blanket ban on promotional advertising. In its statement of the facts, the Court observes that the Commission's ban on promotional advertising is not "a perfect vehicle for conserving energy." It states:
103
"[T]he Commission's order prohibits promotional advertising to develop consumption during periods when demand for electricity is low. By limiting growth in 'off-peak' consumption, the ban limits the 'beneficial side effects' of such growth in terms of more efficient use of existing powerplants. [App. to Juris. Statement] 37a." Ante, at 559.
104
The Court's analysis in this regard is in my view fundamentally misguided because it fails to recognize that the beneficial side effects of "more efficient use" may be inconsistent with the goal of energy conservation. Indeed, the Commission explicitly found that the promotion of off-peak consumption would impair conservation efforts.7 The Commission stated:
105
"Increased off-peak generation, . . . while conferring some beneficial side effects, also consumes valuable energy resources and, if it is the result of increased sales, necessarily creates incremental air pollution and thermal discharges to waterways. More important, any increase in off-peak generation from most of the major companies producing electricity in this State would not, at this time, be produced from coal or nuclear resources, but would require the use of oil-fired generating facilities. The increased requirement for fuel oil to serve the incremental off-peak load created by promotional advertising would aggravate the nations' already unacceptably high level of dependence on foreign sources of supply and would, in addition, frustrate rather than encourage conservation efforts." App. to Juris. Statement 37a.8
106
The Court also observes, as the Commission acknowledged, that the ban on promotional advertising can achieve only "piecemeal conservationism" because oil dealers are not under the Commission's jurisdiction, and they remain free to advertise. Until I have mastered electrical engineering and marketing, I am not prepared to contradict by virtue of my judicial office those who assume that the ban will be successful in making a substantial contribution to conservation efforts. And I doubt that any of this Court's First Amendment decisions justify striking down the Commission's order because more steps toward conservation could have been made. This is especially true when, as here, the Commission lacks authority over oil dealers.
107
The Court concludes that the Commission's ban on promotional advertising must be struck down because it is more extensive than necessary: it may result in the suppression of advertising by utilities that promotes the use of electrical devices or services that cause no net increase in total energy use. The Court's reasoning in this regard, however, is highly speculative. The Court provides two examples that it claims support its conclusion. It first states that both parties acknowledge that the "heat pump" will be "a major improvement in electric heating," and that but for the ban the utilities would advertise this type of "energy efficien[t]" product.9 The New York Public Service Commission, however, considered the merits of the heat pump and concluded that it would most likely result in an overall increase in electric energy consumption. The Commission stated:
108
"[I]nstallation of a heat pump means also installation of central air-conditioning. To this extent, promotion of off-peak electric space heating involves promotion of on-peak summer air-conditioning as well as on-peak usage of electricity for water heating. And the price of electricity to most consumers in the State does not now fully reflect the much higher marginal costs of on-peak consumption in summer peaking markets. In these circumstances, there would be a subsidization of consumption on-peak, and consequently, higher rates for all consumers." App. to Juris. Statement 58a.
109
Subsidization of peak consumption not only may encourage the use of scarce energy resources during peak periods, but also may lead to larger reserve generating capacity requirements for the State.
110
The Court next asserts that electric heating as a backup to solar and other heat may be an efficient alternative energy source. Ante, at 570. The Court fails to establish, however, that an advertising proposal of this sort was properly presented to the Commission. Indeed, the Court's concession that the Commission did not make findings on this issue suggests that the Commission did not even consider it. Nor does the Court rely on any support for its assertion other than the assertion of appellant. Rather, it speculates that "[i]n the absence of authoritative findings to the contrary, we must credit as within the realm of possibility the claim that electric heat can be an efficient alternative in some circumstances." Ibid.10
111
Ordinarily it is the role of the State Public Service Commission to make factual determinations concerning whether a device or service will result in a net energy savings and, if so, whether and to what extent state law permits dissemination of information about the device or service. Otherwise, as here, this Court will have no factual basis for its assertions. And the State will never have an opportunity to consider the issue and thus to construe its law in a manner consistent with the Federal Constitution. As stated in Barrows v. Jackson, 346 U.S. 249, 256-257, 73 S.Ct. 1031, 1035, 97 L.Ed. 1586 (1953):
112
It would indeed be undesirable for this Court to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation. Nor are we so ready to frustrate the expressed will of Congress or that of the state legislatures. Cf. Southern Pacific Co. v. Gallagher, 306 U.S. 167, 172 [, 59 S.Ct. 389, 391, 83 L.Ed. 586]."
113
I think the Court would do well to heed the admonition in Barrows here. The terms of the order of the New York Public Service Commission in my view indicate that advertising designed to promote net savings in energy use does not fall within the scope of the ban. The order prohibits electric corporations "from promoting the use of electricity through the use of advertising subsidy payments . . ., or employee incentives." App. to Juris. Statement 31a (emphasis added). It is not clear to me that advertising that is likely to result in net savings of energy is advertising that "promot[es] the use of electricity," nor does the Court point to any language in the Commission order that suggests it has adopted this construction. Rather, it would seem more accurate to characterize such advertising as designed to "discourage" the use of electricity.11 Indeed, I think it is quite likely that the Commission would view advertising that would clearly result in a net savings in energy as consistent with the objectives of its order and therefore permissible.12 The Commission, for example, has authorized the dissemination of information that would result in shifts in electrical energy demand, thereby reducing the demand for electricity during peak periods. Id., at 37a.13 It has also indicated a willingness to consider at least some other types of "specific proposals" submitted by utilities. Id., at 37a-38a. And it clearly permits informational as opposed to promotional dissemination of information. Id., at 43a-46a. Even if the Commission were ultimately to reject the view that its ban on promotional advertising does not include advertising that results in net energy savings, I think the Commission should at least be given an opportunity to consider it.
114
It is in my view inappropriate for the Court to invalidate the State's ban on commercial advertising here, based on its speculation that in some cases the advertising may result in a net savings in electrical energy use, and in the cases in which it is clear a net energy savings would result from utility advertising, the Public Service Commission would apply its ban so as to proscribe such advertising. Even assuming that the Court's speculation is correct, I do not think it follows that facial invalidation of the ban is the appropriate course. As stated in Parker v. Levy, 417 U.S. 733, 760, 94 S.Ct. 2547, 2563, 41 L.Ed.2d 439 (1974), "even if there are marginal applications in which a statute would infringe on First Amendment values, facial invalidation is inappropriate if the 'remainder of the statute . . . covers a whole range of easily identifiable and constitutionally proscribable . . . conduct. . . .' CSC v. Letter Carriers, 413 U.S. 548, 580-581, 93 S.Ct. 2880, 2898, 37 L.Ed.2d 796 (1973)." This is clearly the case here.
115
For the foregoing reasons, I would affirm the judgment of the New York Court of Appeals.
1
The dissenting opinion attempts to construe the Policy Statement to authorize advertising that would result "in a net energy savings" even if the advertising encouraged consumption of additional electricity. Post, at 604-605. The attempted construction fails, however, since the Policy Statement is phrased only in terms of advertising that promotes "the purchase of utility services" and "sales" of electricity. Plainly, the Commission did not intend to permit advertising that would enhance net energy efficiency by increasing consumption of electrical services.
2
"Marginal cost" has been defined as the "extra or incremental cost of producing an extra unit of output." P. Samuelson, Economics 463 (10th ed. 1976) (emphasis in original).
3
Central Hudson also alleged that the Commission's order reaches beyond the agency's statutory powers. This argument was rejected by the New York Court of Appeals, Consolidated Edison Co. v. Public Service Comm'n, 47 N.Y.2d 94, 102-104, 417 N.Y.S.2d 30, 33-35, 390 N.E.2d 749, 752-754 (1979), and was not argued to this Court.
4
Consolidated Edison Co. v. Public Service Comm'n, 63 A.D.2d 364, 407 N.Y.S.2d 735, (1978); App. to Juris. Statement 22a (N.Y.Sup.Ct., Feb. 17, 1978).
5
In an opinion concurring in the judgment, Mr. Justice STEVENS suggests that the Commission's order reaches beyond commercial speech to suppress expression that is entitled to the full protection of the First Amendment. See post, at 580-581. We find no support for this claim in the record of this case. The Commission's Policy Statement excluded "institutional and informational" messages from the advertising ban, which was restricted to all advertising "clearly intended to promote sales." App. to Juris. Statement 35a. The complaint alleged only that the "prohibition of promotional advertising by Petitioner is not reasonable regulation of Petitioner's commercial speech. . . ." Id., at 70a. Moreover, the state-court opinions and the arguments of the parties before this Court also viewed this litigation as involving only commercial speech. Nevertheless, the concurring opinion of Mr. Justice STEVENS views the Commission's order as suppressing more than commercial speech because it would outlaw, for example, advertising that promoted electricity consumption by touting the environmental benefits of such uses. See post, at 581. Apparently the concurring opinion would accord full First Amendment protection to all promotional advertising that includes claims "relating to . . . questions frequently discussed and debated by our political leaders." Ibid.
Although this approach responds to the serious issues surrounding our national energy policy as raised in this case, we think it would blur further the line the Court has sought to draw in commercial speech cases. It would grant broad constitutional protection to any advertising that links a product to a current public debate. But many, if not most, products may be tied to public concerns with the environment, energy, economic policy, or individual health and safety. We rule today in Consolidated Edison Co. v. Public Service Comm'n of New York, 447 U.S. 530, 100 S.Ct. 2326, 65 L.Ed.2d 319, that utilities enjoy the full panoply of First Amendment protections for their
direct comments on public issues. There is no reason for providing similar constitutional protection when such statements are made only in the context of commercial transactions. In that context, for example, the State retains the power to "insur[e] that the stream of commercial information flow[s] cleanly as well as freely." Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 772, 96 S.Ct. 1817, 1831, 48 L.Ed.2d 346 (1976). This Court's decisions on commercial expression have rested on the premise that such speech, although meriting some protection, is of less constitutional moment than other forms of speech. As we stated in Ohralik, the failure to distinguish between commercial and noncommercial speech "could invite dilution, simply by a leveling process, of the force of the [First] Amendment's guarantee with respect to the latter kind of speech." 436 U.S., at 456, 98 S.Ct., at 1918.
6
In most other contexts, the First Amendment prohibits regulation based on the content of the message. Consolidated Edison Co. v. Public Service Comm'n of New York, 447 U.S., at 537-540, 100 S.Ct., at 2333-2334. Two features of commercial speech permit regulation of its content. First, commercial speakers have extensive knowledge of both the market and their products. Thus, they are well situated to evaluate the accuracy of their messages and the lawfulness of the underlying activity. Bates v. State Bar of Arizona, 433 U.S. 350, 381, 97 S.Ct. 2691, 2708, 53 L.Ed.2d 810 (1977). In addition, commercial speech, the offspring of economic self-interest, is a hardy breed of expression that is not "particularly susceptible to being crushed by overbroad regulation." Ibid.
7
In Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 95-96, 97 S.Ct. 1614, 1619-1620, 52 L.Ed.2d 155 (1977), we observed that there was no definite connection between the township's goal of integrated housing and its ban on the use of "For Sale" signs in front of houses.
8
This analysis is not an application of the "overbreadth" doctrine. The latter theory permits the invalidation of regulations on First Amendment grounds even when the litigant challenging the regulation has engaged in no constitutionally protected activity. E. g., Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1951). The overbreadth doctrine derives from the recognition that unconstitutional restriction of expression may deter protected speech by parties not before the court and thereby escape judicial review. Broadrick v. Oklahoma, 413 U.S. 601, 612-613, 93 S.Ct. 2908, 2915-2916, 37 L.Ed.2d 830 (1973); see Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844, 853-858 (1970). This restraint is less likely where the expression is linked to "commercial well-being" and therefore is not easily deterred by "overbroad regulation." Bates v. State Bar of Arizona, supra, at 381, 97 S.Ct., at 2707.
In this case, the Commission's prohibition acts directly against the promotional activities of Central Hudson, and to the extent the limitations are unnecessary to serve the State's interest, they are invalid.
9
We review with special care regulations that entirely suppress commercial speech in order to pursue a nonspeech-related policy. In those circumstances, a ban on speech could screen from public view the underlying governmental policy. See Virginia Pharmacy Board, 425 U.S., at 780, n. 8, 96 S.Ct., at 1835, n. 8 (STEWART, J., concurring). Indeed, in recent years this Court has not approved a blanket ban on commercial speech unless the expression itself was flawed in some way, either because it was deceptive or related to unlawful activity.
10
Several commercial speech decisions have involved enterprises subject to extensive state regulation. E. g., Friedman v. Rogers, 440 U.S. 1, 4-5, 99 S.Ct. 887, 891, 59 L.Ed.2d 100 (1979) (optometrists); Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977) (lawyers); Virginia Pharmacy Board v. Virginia Citizens Consumer Council, supra, at 750-752, 96 S.Ct., at 1819-1820 (pharmacists).
11
There may be a greater incentive for a utility to advertise if it can use promotional expenses in determining its rate of return, rather than pass those costs on solely to shareholders. That practice, however, hardly distorts the economic decision whether to advertise. Unregulated businesses pass on promotional costs to consumers, and this Court expressly approved the practice for utilities in West Ohio Gas Co. v. Public Utilities Comm'n, 294 U.S. 63, 72, 55 S.Ct. 316, 321, 79 L.Ed. 761 (1935).
12
See W. Jones, Regulated Industries 191-287 (2d ed. 1976).
13
The Commission also might consider a system of previewing advertising campaigns to insure that they will not defeat conservation policy. It has instituted such a program for approving "informational" advertising under the Policy Statement challenged in this case. See supra, at 560. We have observed that commercial speech is such a sturdy brand of expression that traditional prior restraint doctrine may not apply to it. Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S., at 771-772, n. 24, 96 S.Ct., at 1830, n. 24. And in other areas of speech regulation, such as obscenity, we have recognized that a prescreening arrangement can pass constitutional muster if it includes adequate procedural safeguards. Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965).
14
In view of our conclusion that the Commission's advertising policy violates the First and Fourteenth Amendments, we do not reach appellant's claims that the agency's order also violated the Equal Protection Clause of the Fourteenth Amendment, and that it is both overbroad and vague.
15
The Commission order at issue here was not promulgated in response to an emergency situation. Although the advertising ban initially was prompted by critical fuel shortage in 1973, the Commission makes no claim that an emergency now exists. We do not consider the powers that the State might have over utility advertising in emergency circumstances. See State v. Oklahoma Gas & Electric Co., 536 P.2d 887, 895-896 (Okl.1975).
1
See Friedman v. Rogers, 440 U.S. 1, 10, 99 S.Ct. 887, 894, 59 L.Ed.2d 100 (1979) (Court upheld a ban on practice of optometry under a trade name as a permissible requirement that commercial information " 'appear in such a form . . . as [is] necessary to prevent its being deceptive,' " quoting from Virginia Pharmacy Board v. Virginia COnsumer Council, 425 U.S. 748, 772, n. 24, 96 S.Ct. 1817, 1830, n. 24, 48 L.Ed.2d 346 (1976)); Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978).
2
See Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977); Carey v. Population Services International, 431 U.S. 678, 700-702, 97 S.Ct. 2010, 2024-2025, 52 L.Ed.2d 675 (1977); Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 97 S.Ct. 1614, 50 L.Ed.2d 155 (1977); Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976); Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975).
3
In my view, the Court today misconstrues the holdings of both Virginia Pharmacy Board and Linmark Associates by implying that those decisions were based on the fact that the restraints were not closely enough related to the governmental interests asserted. See ante, at 564-565, and n. 7. Although the Court noted the lack of substantial relationship between the restraint and the governmental interest in each of those cases, the holding of each clearly rested on a much broader principle.
1
See Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 456, 98 S.Ct. 1912, 1918, 56 L.Ed.2d 444, quoted ante, at 563, n. 5. Cf. Smith v. United States, 431 U.S. 291, 318, 97 S.Ct. 1756, 1772, 52 L.Ed.2d 324 (STEVENS, J., dissenting).
2
See Farber, Commercial Speech and First Amendment Theory, 74 Nw.U.L.Rev. 372, 382-383 (1979):
"Economic motivation could not be made a disqualifying factor [from maximum protection] without enormous damage to the first amendment. Little purpose would be served by a first amendment which failed to protect newspapers, paid public speakers, political candidates with partially economic motives and professional authors." (Footnotes omitted.)
3
See id., at 386-387.
4
The utility's characterization of the Commission's ban in its complaint as involving commercial speech clearly does not bind this Court's consideration of the First Amendment issues in this new and evolving area of constitutional law.
Nor does the Commission's intention not to suppress "institutional and informational" speech insure that only "commercial speech" will be suppressed. The blurry line between the two categories of speech has the practical effect of requiring that the utilities either refrain from speech that is close to the line, or seek advice from the Public Service Commission. But the Commission does not possess the necessary expertise in dealing with these sensitive free speech questions; and, in any event, ordinarily speech entitled to maximum First Amendment protection may not be subjected to a prior clearance procedure with a government agency.
5
Mr. Justice Brandeis quoted Lord Justice Scrutton's comment in King v. Secretary of State for Home Affairs ex parte O'Brien, [1923] 2 K.B. 361, 382:
" 'You really believe in freedom of speech, if you are willing to allow it to men whose opinions seem to you wrong and even dangerous. . . .' " 274 U.S., at 377, n. 4, 47 S.Ct., at 648, n. 4.
See also Young v. American Mini Theatres, Inc., 427 U.S. 50, 63, 96 S.Ct. 2440, 2448, 49 L.Ed.2d 310 (opinion of STEVENS, J.).
1
The New York Court of Appeals stated:
"In light of current exigencies, one of the policies of any public service legislation must be the conservation of our vital and irreplaceable resources. The Legislature has but recently imposed upon the commission a duty 'to encourage all persons and corporations . . . to formulate and carry out long-range programs . . . [for] the preservation of environmental values and the conservation of natural resources' (Public Service Law, § 5, subd. 2). Implicit in this amendment is a legislative recognition of the serious situation which confronts our State and Nation. More important, conservation of resources has become an avowed legislative policy embodied in the commission's enabling act (see also, Matter of New York State Council of Retail Merchants v. Public Serv. Comm. of State of N. Y., 45 N.Y.2d 661, 673-674 [412 N.Y.S.2d 358, 384 N.E.2d 1282])." Consolidated Edison Co. v. Public Service Comm'n, 47 N.Y.2d 94, 102-103, 417 N.Y.S.2d 30, 34, 390 N.E.2d 749, 753 (1979).
2
In Brown v. Glines, 444 U.S. 348, 100 S.Ct. 594, 62 L.Ed.2d 540 (1980), for example, we recently upheld Air Force regulations that imposed restrictions on the free speech and petition rights of Air Force personnel. See also, e. g., Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974) (commissioned officer may be prohibited from publicly urging enlisted personnel to disobey orders that might send them into combat); Snepp v. United States, 444 U.S. 507, 100 S.Ct. 763, 62 L.Ed.2d 704 (1980) (employees of intelligence agency may be required to submit publications relating to agency activity for prepublication review by the agency).
3
In this regard the New York Court of Appeals stated:
"Public utilities, from the earliest days in this State, have been regulated and franchised to serve the commonweal. Our policy is 'to withdraw the unrestricted right of competition between corporations occupying . . . the public streets . . . and supplying the public with their products or utilities which are well nigh necessities' (People ex rel. New York Edison Co. v. Willcox, 207 N.Y. 86, 99, [100 N.E. 705], Matter of New York Elec. Lines Co., 201 N.Y. 321, [94 N.E. 1056]). The realities of the situation all but dictate that a utility be granted monopoly status (see People ex rel. New York Elec. Lines Co. v. Squire, 107 N.Y. 593, 603-605, [14 N.E. 820]). To protect against abuse of this superior economic position extensive governmental regulation has been deemed a necessary coordinate (see People ex rel. New York Edison Co. v. Willcox, supra, [207 N.Y.] at pp. 93-94 [100 N.E. 705]." 47 N.Y.2d, at 109-110, 417 N.Y.S.2d, at 38-39, 390 N.E.2d, at 757.
4
The Commission's restrictions on promotional advertising are grounded in its concern that electric utilities fulfill their obligation under the New York Public Service Law to provide "adequate" service at "just and reasonable" rates. N.Y.Pub.Serv.Law § 65(1) (McKinney 1955). The Commission, under state law, is required to set reasonable rates. N.Y.Pub.Serv.Law §§ 66(2) and 72 (McKinney 1955); § 66(12) (McKinney Supp.1979). The Commission has also been authorized by the legislature to prescribe "such reasonable improvements [in electric utilities' practices] as will best promote the public interest . . .." § 66(2). And in the performance of its duties the Commission is required to "encourage all persons and corporations subject to its jurisdiction to formulate and carry out long-range programs, individually or cooperatively, for the performance of their public service responsibilities with economy, efficiency, and care for the public safety, the preservation of environmental values, and the conservation of natural resources." N.Y.Pub.Serv.Law § 5(2) (McKinney Supp.1979). Here I think it was quite reasonable for the State Public Service Commission to conclude that the ban on promotional advertising was necessary to prevent utilities from using their broad state-conferred monopoly power to promote their own economic well-being at the expense of the state interest in energy conservation—an interest that could reasonably be found to be inconsistent with the promotion of greater profits for utilities.
5
Although the Constitution attaches great importance to freedom of speech under the First Amendment so that individuals will be better informed and their thoughts and ideas will be uninhibited, it does not follow that "people will perceive their own best interests," or that if they do they will act to promote them. With respect to governmental policies that do not offer immediate tangible benefits and the success of which depends on incremental contributions by all members of society, such as would seem to be the case with energy conservation, a strong argument can be made that while a policy may be in the longrun interest of all members of society, some rational individuals will perceive it to their own shortrun advantage to not act in accordance with that policy. When the regulation of commercial speech is at issue, I think this is a consideration that the government may properly take into account. As was observed in Townsend v. Yeomans, 301 U.S. 441, 451, 57 S.Ct. 842, 847, 81 L.Ed. 1210 (1937), "the Legislature, acting within its sphere, is presumed to know the needs of the people of the state." This observation in my view is applicable to the determination of the State Public Service Commission here.
6
Indeed appellee in its brief states:
"[N]either Central Hudson nor any other party made an attempt before the Commission to demonstrate or argue for a specific advertising strategy that would avoid the difficulties that the Commission found inherent in electric utility promotional advertising. The Commission, therefore continued to enforce its ban on promotion which it had instituted in 1973." Brief for Appellee 15.
The Court makes no attempt to address this statement, or to explain why, when no state body has addressed the issue, the Court should nonetheless resolve it by invalidating the state regulation.
7
In making this finding, the Commission distinguished "between promotional advertising designed to shift existing consumption from peak to off-peak hours and advertising designed to promote additional consumption during off-peak hours." App. to Juris. Statement 58a, n. 2. It proscribed only the latter. Ibid.
8
And in denying appellant's petition for rehearing, the Commission again stated:
"While promotion of off-peak usage, particularly electric space heating, is touted by some as desirable because it might increase off-peak usage and thereby improve a summer-peaking company's load factor, we are convinced that off-peak promotion, especially in the context of imperfectly structured electric rates, is inconsistent with the public interest, even if it could be divorced in the public mind from promoting electric usage generally. As we pointed out in our Policy Statement, increases in generation, even off-peak generation, at this time, requires the burning of scarce oil resources. This increased requirement for fuel oil aggravates the nation's already high level of dependence on foreign sources of supply." Id., at 58a (footnotes omitted).
9
As previously discussed, however, it does not follow that because a product is "energy efficient" it is also consistent with the goal of energy conservation. Thus, with regard to the heat pump, counsel for appellees stated at oral argument that "Central Hudson says there are some [heat pumps] without air conditioning, but . . . they have never advised us of that." Tr. of Oral Arg. 32-33. The electric heat pump, he continued, "normally carr[ies] with it air conditioning in the summer, and the commission found that this would result in air conditioning that would not otherwise happen." Id., at 33. This is but one example of the veritable Sargasso Sea of difficult nonlegal issues that we wade into by adopting a rule that requires judges to evaluate highly complex and often controversial questions arising in disciplines quite foreign to ours.
10
Even assuming the Court's speculation is correct, it has shown too little. For the regulation to truly be "no more extensive than necessary," it must be established that a more efficient energy source will serve only as a means for saving energy, rather than as an inducement to consume more energy because the cost has decreased or because other energy using products will be used in conjunction with the more efficient one.
11
This characterization is supported by the reasoning of the New York Court of Appeals, which stated:
"[P]romotional advertising . . . seeks . . . to encourage the increased consumption of electricity, whether during peak hours or off-peak hours. Thus, not only does such communication lack any beneficial informative content, but it may be affirmatively detrimental to the society. . . . Conserving diminishing resources is a matter of vital State concern and increased use of electrical energy is inimical to our interests. Promotional advertising, if permitted, would only serve to exacerbate the crisis." 47 N.Y.2d, at 110, 417 N.Y.S.2d, at 39, 390 N.E.2d, at 757-758.
12
At oral argument counsel for appellant conceded that the ban would not apply to utility advertising promoting the nonuse of electricity. Tr. of Oral Arg. 6. Indeed, counsel stated: "If the use reduces the amount of electricity used, it is not within the ban. The promotional ban is defined as anything which might be expected to increase the use of electricity." Ibid. And counsel for appellee stated that "the only thing that is involved here is the promotion by advertising of electric usage." Id., at 30. "And if a showing can be made that promotion in fact is going to conserve energy," counsel for appellee continued, "which . . . has never been made to us, the commission's order says we are ready to relax our ban, we're not interested in banning for the sake of banning it. We think that is basically a bad idea, if we can avoid it. In gas, we have been relaxing it as more gas has become available." Id., at 40.
13
By contrast, as previously discussed, the Public Service Commission does not permit the promotion of off-peak consumption alone. Supra, at 600-601, and n. 8.
| 23
|
447 U.S. 625
100 S.Ct. 2382
65 L.Ed.2d 392
Gilbert Franklin BECK, Petitioner,v.State of ALABAMA.
No. 78-6621.
Argued Feb. 20, 1980.
Decided June 20, 1980.
Syllabus
Under Alabama law felony murder is a lesser included offense of the capital crime of robbery-intentional killing. Under the Alabama death penalty statute the trial judge is prohibited from giving the jury the option of convicting the defendant of the lesser included offense; instead, the jury must either convict the defendant of the capital crime, in which case it must impose the death penalty, or acquit him. If the defendant is convicted, the trial judge must hold a hearing to consider aggravating and mitigating circumstances, and may then refuse to impose the death sentence and instead sentence the defendant to life imprisonment. Petitioner was convicted of robbery-intentional killing, and the jury accordingly imposed the death sentence, which the Alabama trial court refused to overturn. At petitioner's trial, his own testimony established his participation in the robbery, but he denied killing, or any intent to kill, the victim. Because of the statutory prohibition, the trial court did not instruct the jury as to the lesser included offense of felony murder. The Alabama appellate courts upheld the conviction and death sentence, rejecting petitioner's constitutional attack on the statutory prohibition on lesser included offense instructions.
Held : The death sentence may not constitutionally be imposed after a jury verdict of guilt of a capital offense where the jury was not permitted to consider a verdict of guilt of a lesser included offense. Pp. 633-646.
(a) Providing the jury with the "third option" of convicting on a lesser included offense ensures that the jury will accord the defendant the full benefit of the reasonable-doubt standard. This procedural safeguard is especially important in cases such as this one. For when the evidence establishes that the defendant is guilty of a serious, violent offense but leaves some doubt as to an element justifying conviction of a capital offense, the failure to give the jury such a "third option" inevitably enhances the risk of an unwarranted conviction. Such a risk cannot be tolerated in a case in which the defendant's life is at stake. Pp. 633-638.
(b) Alabama's argument that, in the context of an apparently mandatory death penalty statute, the preclusion of lesser included offense instructions heightens, rather than diminishes, the reliability of the guilt determination, must be rejected. The unavailability of lesser included offense instructions and the apparently mandatory nature of the death penalty both interject irrelevant considerations into the factfinding process, diverting the jury's attention from the central issue of whether the State has satisfied its burden of proving beyond a reasonable doubt that the defendant is guilty of a capital crime. Thus, on the one hand, the unavailability of the "third option" may encourage the jury to convict for an impermissible reason—its belief that the defendant is guilty of some serious crime and should be punished. On the other hand, the apparently mandatory nature of the death penalty may encourage the jury to acquit for an equally impermissible reason—that, whatever his crime, the defendant does not deserve death. While in any particular case these two extraneous factors may favor the defendant or the prosecution or may cancel each other out, in every case they introduce a level of uncertainty and unreliability into the factfinding process that cannot be tolerated in a capital case. Pp. 638-643.
(c) The jury's "option" of refusing to return any verdict at all, thus causing a mistrial, is not an adequate substitute for proper instructions on lesser included offenses. Nor does the fact that the trial judge has the ultimate sentencing power compensate for the risk that the jury may return an improper verdict because of the unavailability of the "third option." If the jury finds the defendant guilty only of a lesser included offense, the judge would not have the opportunity to impose the death sentence. Moreover, the jury's verdict must have a tendency to motivate the judge to impose the same sentence that the jury did. Under these circumstances, it cannot be presumed that a post-trial hearing will always correct whatever mistakes occurred in the performance of the jury's factfinding function. Pp. 643-646.
365 So.2d 1006, reversed.
David Klingsberg, New York City, for petitioner.
Edward E. Carnes, Montgomery, Ala., for respondent.
Mr. Justice STEVENS delivered the opinion of the Court.
1
We granted certiorari to decide the following question:
2
"May a sentence of death constitutionally be imposed after a jury verdict of guilt of a capital offense, when the jury was not permitted to consider a verdict of guilt of a lesser included non-capital offense, and when the evidence would have supported such a verdict?" 444 U.S. 897, 100 S.Ct. 204, 62 L.Ed.2d 132.
3
We now hold that the death penalty may not be imposed under these circumstances.
4
Petitioner was tried for the capital offense of "[r]obbery or attempts thereof when the victim is intentionally killed by the defendant."1 Under the Alabama death penalty statute the requisite intent to kill may not be supplied by the felony-murder doctrine.2 Felony murder is thus a lesser included offense of the capital crime of robbery-intentional killing. However, under the statute the judge is specifically prohibited from giving the jury the option of convicting the defendant of a lesser included offense.3 Instead, the jury is given the choice of either convicting the defendant of the capital crime, in which case it is required to impose the death penalty, or acquitting him, thus allowing him to escape all penalties for his alleged participation in the crime. If the defendant is convicted and the death penalty imposed, the trial judge must then hold a hearing with respect to aggravating and mitigating circumstances; after hearing the evidence, the judge may refuse to impose the death penalty, sentencing the defendant to life imprisonment without possibility of parole.4
5
In this case petitioner's own testimony established his participation in the robbery of an 80-year-old man named Roy Malone. Petitioner consistently denied, however, that he killed the man or that he intended his death. Under petitioner's version of the events, he and an accomplice entered their victim's home in the afternoon, and, after petitioner had seized the man intending to bind him with a rope, his accomplice unexpectedly struck and killed him. As the State has conceded, absent the statutory prohibition on such instructions, this testimony would have entitled petitioner to a lesser included offense instruction on felony murder as a matter of state law.5
6
Because of the statutory prohibition, the court did not instruct the jury as to the lesser included offense of felony murder. Instead, the jury was told that if petitioner was acquitted of the capital crime of intentional killing in the course of a robbery, he "must be discharged" and "he can never be tried for anything that he ever did to Roy Malone." Record 743. The jury subsequently convicted petitioner and imposed the death penalty; after holding a hearing with respect to aggravating and mitigating factors, the trial court refused to overturn that penalty.
7
In the courts below petitioner attacked the prohibition on lesser included offense instructions in capital cases, arguing that the Alabama statute was constitutionally indistinguishable from the mandatory death penalty statutes struck down in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944, and Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974.6 The Alabama Court of Criminal Appeals rejected this argument on the ground that the jury's only function under the Alabama statute is to determine guilt or innocence and that the death sentence it is required to impose after a finding of guilt is merely advisory.7 In a brief opinion denying review, the Alabama Supreme Court also rejected petitioner's arguments, citing Jacobs v. State, 361 So.2d 640 (Ala.1978), cert. denied, 439 U.S. 1122, 99 S.Ct. 1034, 59 L.Ed.2d 83, in which it had upheld the constitutionality of the Alabama death penalty statute against a similar challenge. 365 So.2d 1006, 1007 (1978).
8
In this Court petitioner contends that the prohibition on giving lesser included offense instructions in capital cases violates both the Eighth Amendment as made applicable to the States by the Fourteenth Amendment and the Due Process Clause of the Fourteenth Amendment by substantially increasing the risk of error in the factfinding process. Petitioner argues that, in a case in which the evidence clearly establishes the defendant's guilt of a serious noncapital crime such as felony murder, forcing the jury to choose between conviction on the capital offense and acquittal creates a danger that it will resolve any doubts in favor of conviction.8 In response, Alabama argues that the preclusion of lesser included offense instructions does not impair the reliability of the factfinding process or prejudice the defendant in any way. Rather, it argues that the apparently mandatory death penalty will make the jury more prone to acquit in a doubtful case and that the jury's ability to force a mistrial by refusing to return a verdict acts as a viable third option in a case in which the jury has doubts but is nevertheless unwilling to acquit. The State also contends that prohibiting lesser included offense instructions is a reasonable way of assuring that the death penalty is not imposed arbitrarily and capriciously as a result of compromise verdicts. Finally, it argues that any error in the imposition of the death penalty by the jury can be cured by the judge after a hearing on aggravating and mitigating circumstances.
9
* At common law the jury was permitted to find the defendant guilty of any lesser offense necessarily included in the offense charged.9 This rule originally developed as an aid to the prosecution in cases in which the proof failed to establish some element of the crime charged. See 2 C. Wright, Federal Practice and Procedure § 515, n. 54 (1969). But it has long been recognized that it can also be beneficial to the defendant because it affords the jury a less drastic alternative than the choice between conviction of the offense charged and acquittal. As Mr. Justice BRENNAN explained in his opinion for the Court in Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 1995, 36 L.Ed.2d 844, providing the jury with the "third option" of convicting on a lesser included offense ensures that the jury will accord the defendant the full benefit of the reasonable-doubt standard:
10
"Moreover, it is no answer to petitioner's demand for a jury instruction on a lesser offense to argue that a defendant may be better off without such an instruction. True, if the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense instruction is offered, the jury must, as a theoretical matter, return a verdict of acquittal. But a defendant is entitled to a lesser offense instruction—in this context or any other—precisely because he should not be exposed to the substantial risk that the jury's practice will diverge from theory. Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction. In the case before us, for example, an intent to commit serious bodily injury is a necessary element of the crime with which petitioner was charged, but not of the crime of simple assault. Since the nature of petitioner's intent was very much in dispute at trial, the jury could rationally have convicted him of simple assault if that option had been presented. But the jury was presented with only two options: convicting the defendant of assault with intent to commit great bodily injury, or acquitting him outright. We cannot say that the availability of a third option—convicting the defendant of simple assault could not have resulted in a different verdict. Indeed, while we have never explicitly held that the Due Process Clause of the Fifth Amendment guarantees the right of a defendant to have the jury instructed on a lesser included offense, it is nevertheless clear that a construction of the Major Crimes Act to preclude such an instruction would raise difficult constitutional questions." Id., at 212-213, 93 S.Ct., at 1997-98 (emphasis in original).
11
Alabama's failure to afford capital defendants the protection provided by lesser included offense instructions is unique in American criminal law.10 In the federal courts, it has long been "beyond dispute that the defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater." Keeble v. United States, supra, at 208, 93 S.Ct., at 1997.11 Similarly, the state courts that have addressed the issue have unanimously held that a defendant is entitled to a lesser included offense instruction where the evidence warrants it.12 Indeed, for all noncapital crimes Alabama itself gives the defendant a right to such instructions under appropriate circumstances. See n. 5, supra.
12
While we have never held that a defendant is entitled to a lesser included offense instruction as a matter of due process, the nearly universal acceptance of the rule in both state and federal courts establishes the value to the defendant of this procedural safeguard. That safeguard would seem to be especially important in a case such as this. For when the evidence unquestionably establishes that the defendant is guilty of a serious, violent offense—but leaves some doubt with respect to an element that would justify conviction of a capital offense—the failure to give the jury the "third option" of convicting on a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction.
13
Such a risk cannot be tolerated in a case in which the defendant's life is at stake. As we have often stated, there is a significant constitutional difference between the death penalty and lesser punishments:
14
"[D]eath is a different kind of punishment from any other which may be imposed in this country. . . . From the point of view of the defendant, it is different in both its severity and its finality. From the point of view of society, the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action. 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." Gardner v. Florida, 430 U.S. 349, 357-358, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (opinion of STEVENS, J.).
15
To insure that the death penalty is indeed imposed on the basis of "reason rather than caprice or emotion," we have invalidated procedural rules that tended to diminish the reliability of the sentencing determination.13 The same reasoning must apply to rules that diminish the reliability of the guilt determination. Thus, if the unavailability of a lesser included offense instruction enhances the risk of an unwarranted conviction, Alabama is constitutionally prohibited from withdrawing that option from the jury in a capital case.14
II
16
Alabama argues, however, that petitioner's factual premise is wrong and that, in the context of an apparently mandatory death penalty statute, the preclusion of lesser included offense instructions heightens, rather than diminishes, the reliability of the guilt determination. The State argues that, because the jury is led to believe that a death sentence will automatically follow a finding of guilt,15 it will be more likely to acquit than to convict whenever it has anything approaching a reasonable doubt. In support of this theory the State relies on the historical data described in Woodson v. North Carolina, 428 U.S., at 293, 96 S.Ct., at 2986 (opinion of STEWART, POWELL, and STEVENS, JJ.), which indicated that American juries have traditionally been so reluctant to impose the death penalty that they have "with some regularity, disregarded their oaths and refused to convict defendants where a death sentence was the automatic consequence of a guilty verdict."
17
The State's argument is based on a misreading of our cases striking down mandatory death penalties. In Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, the Court held unconstitutional a Georgia statute that vested the jury with complete and unguided discretion to impose the death penalty or not as it saw fit, on the ground that such a procedure led to the "wanton" and "freakish" imposition of the penalty. Id., at 310, 92 S.Ct., at 2762 (STEWART, J., concurring). In response to Furman several States enacted statutes that purported to withdraw any and all discretion from the jury with respect to the punishment decision by making the death penalty automatic on a finding of guilt. But, as the prevailing opinion noted in Woodson v. North Carolina, in so doing the States "simply papered over the problem of unguided and unchecked jury discretion." 428 U.S., at 302, 96 S.Ct., at 2990 (opinion of STEWART, POWELL, and STEVENS, JJ.). For, as historical evidence indicated, juries faced with a mandatory death penalty statute often created their own sentencing discretion by distorting the fact-finding process, acquitting even a clearly guilty defendant if they felt he did not deserve to die for his crime. Because the jury was given no guidance whatsoever for determining when it should exercise this de facto sentencing power, the mandatory death statutes raised the same possibility that the death penalty would be imposed in an arbitrary and capricious manner as the statute held invalid in Furman.16
18
The Alabama statute, which was enacted after Furman but before Woodson, has many of the same flaws that made the North Carolina statute unconstitutional. Thus, the Alabama statute makes the guilt determination depend, at least in part, on the jury's feelings as to whether or not the defendant deserves the death penalty, without giving the jury any standards to guide its decision on this issue.
19
In Jacobs v. State, 361 So.2d 640 (Ala.1978), cert. denied, 439 U.S. 1122, 99 S.Ct. 1034, 59 L.Ed.2d 83, Chief Justice Torbert attempted to distinguish the Alabama death statute from the North Carolina and Louisiana statutes on the ground that the unavailability of lesser included offense instructions substantially reduces the risk of jury nullification. Thus, because of their reluctance to acquit a defendant who is obviously guilty of some serious crime, juries will be unlikely to disregard their oaths and acquit a defendant who is guilty of a capital crime simply because of their abhorrence of the death penalty. However, because the death penalty is mandatory, the State argues that the jury will be especially careful to accord the defendant the full benefit of the reasonable-doubt standard. In the State's view the end result is a perfect balance between competing emotional pressures that ensures the defendant a reliable procedure, while at the same time reducing the possibility of arbitrary and capricious guilt determinations.17
20
The State's theory, however, is supported by nothing more than speculation. The 96% conviction rate achieved by prosecutors under the Alabama statute hardly supports the notion that the statute creates such a perfect equipoise.18 Moreover, it seems unlikely that many jurors would react in the theoretically perfect way the State suggests. As Justice Shores stated in dissent in Jacobs v. State, supra, at 651-652:
21
"The Supreme Court of the United States did remark in Furman, infra, and again in Woodson, supra, that this nation abhorred the mandatory death sentence. . . . I suggest that, although there is no historical data to support it, most, if not all, jurors at this point in our history perhaps equally abhor setting free a defendant where the evidence establishes his guilt of a serious crime. We have no way of knowing what influence either of these factors have on a jury's deliberation, and which of these unappealing alternatives a jury opts for in a particular case is a matter of purest conjecture. We cannot know that one outweighs the other. Jurors are not expected to come into the jury box and leave behind all that their human experience has taught them. The increasing crime rate in this country is a source of concern to all Americans. To expect a jury to ignore this reality and to find a defendant innocent and thereby set him free when the evidence establishes beyond doubt that he is guilty of some violent crime requires of our juries clinical detachment from the reality of human experience . . . ."
22
In the final analysis the difficulty with the Alabama statute is that it interjects irrelevant considerations into the factfinding process, diverting the jury's attention from the central issue of whether the State has satisfied its burden of proving beyond a reasonable doubt that the defendant is guilty of a capital crime. Thus, on the one hand, the unavailability of the third option of convicting on a lesser included offense may encourage the jury to convict for an impermissible reason—its belief that the defendant is guilty of some serious crime and should be punished. On the other hand, the apparently mandatory nature of the death penalty may encourage it to acquit for an equally impermissible reason—that, whatever his crime, the defendant does not deserve death.19 In any particular case these two extraneous factors may favor the defendant or the prosecution or they may cancel each other out. But in every case they introduce a level of uncertainty and unreliability into the factfinding process that cannot be tolerated in a capital case.
III
23
The State also argues that, whatever the effect of precluding lesser included offense instructions might otherwise be, there is no possibility of harm under the Alabama statute because of two additional safeguards. First, although the jury may not convict the defendant of a lesser included offense, the State argues that it may refuse to return any verdict at all in a doubtful case, thus creating a mistrial. After a mistrial, the State may reindict on the capital offense or on lesser included offenses.20 In this case the jury was instructed that a mistrial would be declared if it was unable to agree on a verdict or if it was unable to agree on fixing the death penalty; it was also told that, in the event of a mistrial, the defendant could be tried again. Record 743.
24
We are not persuaded by the State's argument that the mistrial "option" is an adequate substitute for proper instructions on lesser included offenses. It is extremely doubtful that juries will understand the full implications of a mistrial21 or will have any confidence that their choice of the mistrial option will ultimately lead to the right result. Thus, they could have no assurance that a second trial would end in the conviction of the defendant on a lesser included offense. Moreover, invoking the mistrial option in a case in which the jury agrees that the defendant is guilty of some offense, though not the offense charged, would require the jurors to violate their oaths to acquit in a proper case—contrary to the State's assertions that juries should not be expected to make such lawless choices. Finally, the fact that lesser included offense instructions have traditionally been given in noncapital cases despite the availability of the mistrial "option" indicates that such instructions provide a necessary additional measure of protection for the defendant.
25
The State's second argument is that, even if a defendant is erroneously convicted, the fact that the judge has the ultimate sentencing power will ensure that he is not improperly sentenced to death. Again, we are not persuaded that sentencing by the judge compensates for the risk that the jury may return an improper verdict because of the unavailability of a "third option."
26
If a fully instructed jury would find the defendant guilty only of a lesser, noncapital offense, the judge would not have the opportunity to impose the death sentence. Moreover, it is manifest that the jury's verdict must have a tendency to motivate the judge to impose the same sentence that the jury did. Indeed, according to statistics submitted by the State's Attorney General, it is fair to infer that the jury verdict will ordinarily be followed by the judge even though he must hold a separate hearing in aggravation and mitigation before he imposes sentence.22 Under these circumstances, we are unwilling to presume that a post-trial hearing will always correct whatever mistakes have occurred in the performance of the jury's factfinding function.
27
Accordingly, the judgment of the Alabama Supreme Court is
28
Reversed.
29
Mr. Justice BRENNAN, concurring.
30
Although I join the Court's opinion, I continue to believe that the death penalty is, in all circumstances, contrary to the Eighth Amendment's prohibition against imposition of cruel and unusual punishments. Gregg v. Georgia, 428 U.S. 153, 227, 96 S.Ct. 2909, 2950, 49 L.Ed.2d 859 (1976) (BRENNAN, J., dissenting).
31
Mr. Justice MARSHALL, concurring in the judgment.
32
I continue to believe that the death penalty is, under all circumstances, cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. Furman v. Georgia, 408 U.S. 238, 314-374, 92 S.Ct. 2726, 2764, 2796, 33 L.Ed.2d 346 (1972) (MARSHALL, J., concurring); Gregg v. Georgia, 428 U.S. 153, 231-241, 96 S.Ct. 2909, 2973-2977, 49 L.Ed.2d 859 (1976) (MARSHALL, J., dissenting); Godfrey v. Georgia, 446 U.S. 420, 433-442, 100 S.Ct. 1759, 1767-1772, 64 L.Ed.2d 398 (1980) (MARSHALL, J., concurring in judgment). In addition, I agree with the Court that Alabama's prohibition on giving lesser included offense instructions in capital cases is unconstitutional because it substantially increases the risk of error in the factfinding process. I do not, however, join in the Court's assumption that the death penalty may ever be imposed without violating the command of the Eighth Amendment that no "cruel and unusual punishments" be imposed. Lockett v. Ohio, 438 U.S. 586, 621, 98 S.Ct. 2954, 2973, 57 L.Ed.2d 973 (1978) (MARSHALL, J., concurring in judgment); Bell v. Ohio, 438 U.S. 637, 643-644, 98 S.Ct. 2977, 2981, 57 L.Ed.2d 1010 (1978) (MARSHALL, J., concurring in judgment). I join in the judgment of the Court.
33
Mr. Justice REHNQUIST, with whom Mr. Justice WHITE joins, dissenting.
34
The opinion of the Court begins by stating that we granted certiorari to decide the question of whether a sentence of death may be constitutionally imposed after a jury verdict of guilt of a capital offense, when the jury was not permitted to consider a verdict of guilt of a lesser included noncapital offense where the evidence would have supported such a verdict. I find the Court's treatment of this issue highly unusual, since although this question was raised in the Alabama trial court and the Alabama intermediate Court of Appeals, it was not preserved in the Supreme Court of Alabama. That court began its opinion with this language:
35
"Petitioner Beck raises only one issue here:
36
" 'Whether the Alabama Court of Criminal Appeals erred in its finding that the Alabama Death Penalty Statute is not in violation of Article III, Section 43, Article V, Section 124 and Amendment 38, of the 1901 Constitution of Alabama.' " 365 So.2d 1006, 1007.
37
Obviously, unless the Supreme Court of Alabama was wholly in error in deciding what issue petitioner had raised there, it was obviously not a question involving the United States Constitution.
38
I do not believe it suffices, under the jurisdiction granted to us by the Constitution and by Congress, to brush this matter off as the Court does in its footnote 6 on the grounds that petitioner presented his claim "in some fashion" to the Supreme Court of Alabama, and that "[t]he State has never argued that this presentation was insufficient, as a matter of state law, to preserve the issue."
39
This is not a matter that may be stipulated or waived by any of the parties to a case decided on its merits here. Title 28 U.S.C. § 1257 provides that our certiorari jurisdiction extends only to "[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had . . . ."
40
In Hulbert v. Chicago, 202 U.S. 275, 280, 26 S.Ct. 617, 618, 50 L.Ed. 1026 (1906), this Court said:
41
"It is urged that in the writ of error and petition for citation it is stated that certain rights and privileges were claimed under the Constitution of the United States, and that the Supreme Court of the State of Illinois decided against such rights and privileges, and, it is further urged, that the chief justice of the court allow the writ of error. This is not sufficient."
42
More recently, in Street v. New York, 394 U.S. 576, 582, 89 S.Ct. 1354, 1360, 22 L.Ed.2d 572 (1969), the Court has said:
43
"Moreover, this Court has stated that when, as here, the highest state court has failed to pass upon a federal question, it will be assumed that the omission was due to want of proper presentation in the state courts, unless the aggrieved party in this Court can affirmatively show the contrary." (Emphasis supplied.)
44
Thus it is insufficient that the State "has never argued" that a judgment under review is not that of the highest court of the State in which a judgment could be had; it will be assumed that the omission was due to want of proper presentation in the state courts, unless the aggrieved party in this Court can affirmatively show the contrary. Here I am not convinced that such a showing has been made.
45
Believing, therefore, because of the proceedings in the Supreme Court of Alabama, that we do not have jurisdiction under 28 U.S.C. § 1257 to decide the question which the Court purports to decide, I dissent.
1
There are 14 capital offenses under the Alabama statute, Ala.Code §§ 13-11-2(a)(1)-(14) (1975):
"(1) Kidnapping for ransom or attempts thereof, when the victim is intentionally killed by the defendant;
"(2) Robbery or attempts thereof when the victim is intentionally killed by the defendant;
"(3) Rape when the victim is intentionally killed by the defendant; carnal knowledge of a girl under 12 years of age, or abuse of such girl in an attempt to have carnal knowledge, when the victim is intentionally killed by the defendant;
"(4) Nighttime burglary of an occupied dwelling when any of the occupants is intentionally killed by the defendant;
"(5) The murder of any police officer, sheriff, deputy, state trooper or peace officer of any kind, or prison or jail guard while such prison or jail guard is on duty or because of some official or job-related act or performance of such officer or guard;
"(6) Any murder committed while the defendant is under sentence of life imprisonment;
"(7) Murder in the first degree when the killing was done for a pecuniary or other valuable consideration or pursuant to a contract or for hire;
"(8) Indecent molestation of, or an attempt to indecently molest, a child under the age of 16 years, when the child victim is intentionally killed by the defendant;
"(9) Willful setting off or exploding dynamite or other explosive under circumstances now punishable by section 13-2-60 or 13-2-61, when a person is intentionally killed by the defendant because of said explosion;
"(10) Murder in the first degree wherein two or more human beings are intentionally killed by the defendant by one or a series of acts;
"(11) Murder in the first degree where the victim is a public official or public figure and the murder stems from or is caused by or related to his official position, acts or capacity;
"(12) Murder in the first degree committed while the defendant is engaged or participating in the act of unlawfully assuming control of any aircraft by use of threats or force with intent to obtain any valuable consideration for the release of said aircraft or any passenger or crewman thereon, or to direct the route or movement of said aircraft, or otherwise exert control over said aircraft;
"(13) Any murder committed by a defendant who has been convicted of murder in the first or second degree in the 20 years preceding the crime; or
"(14) Murder when perpetrated against any witness subpoenaed to testify at any preliminary hearing, trial or grand jury proceeding against the defendant who kills or procures the killing of witness, or when perpetrated against any human being while intending to kill such witness."
2
Alabama Code § 13-11-2(b) (1975) states that "[e]vidence of intent under this section shall not be supplied by the felony-murder doctrine." In Ritter v. State, 375 So.2d 270, 275 (1979), cert. pending, No. 79-5741, the Alabama Supreme Court held that the State could not satisfy its burden of proof under the new death penalty statute simply by showing that the defendant intended to commit robbery or even by showing that he should have known that there was a substantial possibility that someone would be killed. Although the State is not required to prove that the defendant was the actual triggerman, it must show that he had a "particularized intent" to kill the victim or that he "sanctioned and facilitated the crime [of intentional killing] so that his culpability is comparable to that of" the actual killer.
3
Alabama Code § 13-11-2(a) (1975) provides:
"If the jury finds the defendant guilty, it shall fix the punishment at death when the defendant is charged by indictment with any of the following offenses and with aggravation, which must also be averred in the indictment, and which offenses so charged with said aggravation shall not include any lesser offenses."
The last phrase of this subsection has been consistently construed to preclude any lesser included offense instructions in capital cases. See Jacobs v. State, 361 So.2d 640, 646 (Ala.1978) (Torbert, C. J., concurring in part and dissenting in part), cert. denied, 439 U.S. 1122, 99 S.Ct. 1034, 59 L.Ed.2d 83; Evans v. Birtton, 472 F.Supp. 707, 714 (SD Ala.1979).
4
Alabama Code § 13-11-3 (1975) provides:
"If the jury finds the defendant guilty of one of the aggravated offenses listed in section 13-11-2 and fixes the punishment at death, the court shall thereupon hold a hearing to aid the court to determine whether or not the court will sentence the defendant to death or to life imprisonment without parole. In the hearing, evidence may be presented as to any matter that the court deems relevant to sentence and shall include any matters relating to any of the aggravating or mitigating circumstances enumerated in sections 13-11-6 and 13-11-7. Any such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay statements; provided further, that this section shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or the state of Alabama. The state and the defendant, or his counsel, shall be permitted to present argument for or against the sentence of death."
5
The Alabama rule in cases other than capital cases is that the defendant is entitled to a lesser included offense instruction if "there is any reasonable theory from the evidence which would support the position." Fulghum v. State, 291 Ala. 71, 75, 277 So.2d 886, 890 (1973). The State concedes that under this standard petitioner would have been entitled to instructions on first-degree (felony) murder and robbery. Brief for Respondent 78-79; Tr. of Oral Arg. 23. The parties disagree as to whether petitioner also would have been entitled to an instruction on second-degree murder under state law. We, of course, have no occasion to pass on this issue.
6
In the trial court petitioner's counsel argued that telling the jury that "you have got a choice of two things, either you can sentence him to die or you can acquit him" unconstitutionally interfered with its factfinding role and made the statute an unconstitutional mandatory death
penalty. Record 40. In the Alabama Court of Criminal Appeals the court described petitioner's argument with respect to the constitutionality of the Alabama death penalty statute as follows:
"The trial jury cannot be instructed on lesser included offenses.
"In the absence of such a provision, the appellant insists that the only choice that a petit jury has is imposing death or acquitting the defendant. He states that because only those two choices are presented to the jury, the statute can only be interpreted as having a mandatory death provision." 365 So.2d 985, 999 (1978).
In his petition for certiorari to the Alabama Supreme Court petitioner specifically stated that he was challenging the Alabama statute as being in violation of the Eighth, Sixth, and Fourteenth Amendments to the United States Constitution and argued that it is "in fact a mandatory death sentence." However, petitioner did not explore these issues more fully in his brief to the Alabama Supreme Court, Tr. of Oral Arg. 5, and, in its one-paragraph opinion affirming the judgment of the Alabama Court of Criminal Appeals, the Supreme Court adverted only to the state constitutional issues petitioner had raised.
In his dissenting opinion Mr. Justice REHNQUIST takes the position that we are required to construe the Alabama Supreme Court's failure to address petitioner's federal constitutional claims as a determination that petitioner had waived those claims. We disagree. It is clear that petitioner did present his federal claims in some fashion to the Alabama Supreme Court. The State has never argued that this presentation was insufficient, as a matter of state law, to preserve the issue. On the contrary, in its brief in opposition to the petition for certiorari, the State argued that "the Alabama Appellate Courts have reviewed these matters raised in the petition, fully considered them and correctly decided the issues." Similarly, after certiorari was granted, the State again did not argue that petitioner's due process and Eighth Amendment claims were not properly raised or preserved below.
While the parties of course cannot confer jurisdiction on this Court by agreement, we should not simply brush aside the Alabama Attorney General's view of his own State's law. Cf. Chambers v. Mississippi, 410 U.S. 284, 290, n. 3, 93 S.Ct. 1038, 1043, 35 L.Ed.2d 297. That is especially true in a case such as this, where the death penalty was imposed in a plainly unconstitutional manner. Cf. Vachon v. New Hampshire, 414 U.S. 478, 94 S.Ct. 664, 38 L.Ed.2d 666.
7
365 So.2d, at 1000. The Alabama Court of Criminal Appeals relied on Jacobs v. State, 361 So.2d 640 (Ala.1978), cert. denied, 439 U.S. 1122, 99 S.Ct. 1034, 59 L.Ed.2d 83, for this proposition. The majority in Jacobs did not specifically discuss the validity of the prohibition on lesser included offense instructions. However, in an opinion concurring in part and dissenting in part, Chief Justice Torbert stated that, far from being suspect, the prohibition helped to save the statute from being an unconstitutional mandatory death penalty. He noted that in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974, this Court had struck down a mandatory death penalty statute which required the judge to give the jury the option of convicting on lesser included offenses whether or not such instructions were warranted by the evidence, on the ground that such a statute gave the jury de facto, standardless sentencing discretion. Because Alabama's statute withdraws from the jury the discretion to control the imposition of the death penalty by convicting the defendant on a lesser included offense and because it is the judge and not the jury who does the actual sentencing, the chief justice concluded that the statute was acceptable as a matter of federal constitutional law.
8
Petitioner also argues that, because Alabama law requires a trial judge to give lesser included offense instructions where appropriate in noncapital cases, the total prohibition on such instructions in capital cases constitutes an irrational discrimination violative of the Equal Protection Clause of the Fourteenth Amendment. In view of our disposition of the case, it is not necessary to consider this issue. Moreover, petitioner failed to raise this claim in the courts below.
9
2 M. Hale, Pleas of the Crown 301-302 (1736); 2 W. Hawkins, Pleas of the Crown 623 (6th ed. 1787); 1 J. Chitty, Criminal Law 250 (5th Am. ed. 1847); T. Starkie, Treatise on Criminal Pleading 351-352 (2d ed. 1822).
10
Mississippi's post-Furman death penalty statute also contained a prohibition on charging lesser included offenses. In Jackson v. State, 337 So.2d 1242, 1255 (1976), the Mississippi Supreme Court struck down this part of the statute on the ground that it "constitutes an impediment to full and complete administration of justice in the trial of capital cases and is therefore not binding on the courts. . . ." While warning that lesser included offense instructions should not be given "indiscriminately or automatically," the court held that they should continue to be given when "warranted by the evidence."
11
This principle was first announced in Stevenson v. United States, 162 U.S. 313, 323, 16 S.Ct. 839, 843, 40 L.Ed. 980:
"A judge may be entirely satisfied from the whole evidence in the case, that the person doing the killing was actuated by malice; that he was not in any such passion as to lower the grade of the crime from murder to manslaughter by reason of any absence of malice; and yet if there be any evidence fairly tending to bear upon the issue of manslaughter, it is the province of the jury to determine from all the evidence what the condition of mind was, and to say whether the crime was murder or manslaughter."
See also Berra v. United States, 351 U.S. 131, 134, 76 S.Ct. 685, 688, 100 L.Ed. 1013, where Mr. Justice Harlan indicated that the defendant's entitlement to such an instruction could not be doubted:
"In a case where some of the elements of the crime charged themselves constitute a lesser crime, the defendant, if the evidence justified it, would no doubt be entitled to an instruction which would permit a finding of guilt of the lesser offense. See Stevenson v. United States, 162 U.S. 313, 16 S.Ct. 839, 40 L.Ed. 980."
Rule 31(c) of the Federal Rules of Criminal Procedure provides that "[t]he defendant may be found guilty of an offense necessarily included in the offense charged . . . ." Although the Rule is permissively phrased, it has been universally interpreted as granting a defendant a right to a requested lesser included offense instruction if the evidence warrants it. See, e. g., United States v. Scharf, 558 F.2d 498, 502 (CA8 1977); United States v. Crutchfield, 547 F.2d 496, 500 (CA9 1977); Government of Virgin Islands v. Carmona, 422 F.2d 95, 100 (CA3 1970); 2 C. Wright, Federal Practice and Procedure § 515, n. 57 (1969).
12
Although the States vary in their descriptions of the quantum of proof necessary to give rise to a right to a lesser included offense instruction, they agree that it must be given when supported by the evidence. See, e. g., Christie v. State, 580 P.2d 310 (Alaska 1978); State v. Valencia, 121 Ariz. 191, 589 P.2d 434 (1979); Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979); People v. Preston, 9 Cal.3d 308, 107 Cal.Rptr. 300, 508 P.2d 300 (1973); People v. White, 191 Colo. 353, 553 P.2d 68 (1976); State v. Brown, 173 Conn. 254, 377 A.2d 268 (1977); Matthews v. State, 310 A.2d 645 (Del.1973); State v. Terry, 336 So.2d 65 (Fla.1976); Loury v. State, 147 Ga.App. 152, 248 S.E.2d 291 (1978); State v. Travis, 45 Haw. 435, 368 P.2d 883 (1962); State v. Beason, 95 Idaho 267, 506 P.2d 1340 (1973); People v. Simpson, 57 Ill.App.3d 442, 15 Ill.Dec. 463, 373 N.E.2d 809 (1978); Pruitt v. State, 269 Ind. 559, 382 N.E.2d 150 (1978); State v. Millspaugh, 257 N.W.2d 513 (Iowa 1977); State v. White, 225 Kan. 87, 587 P.2d 1259 (1978); Martin v. Commonwealth, 571 S.W.2d 613 (Ky.1978); State v. Carmichael, 405 A.2d 732 (Me.1979); Blackwell v. State, 278 Md. 466, 365 A.2d 545 (1976), cert. denied, 431 U.S. 918, 97 S.Ct. 2183, 53 L.Ed.2d 229; Commonwealth v. Santo, 375 Mass. 299, 376 N.E.2d 866 (1978); People v. Jones, 395 Mich. 379, 236 N.W.2d 461 (1975); State v. Merrill, 274 N.W.2d 99 (Minn.1978); Jackson v. State, 337 So.2d 1242 (Miss.1976); State v. Stone, 571 S.W.2d 486 (Mo.App.1978); State v. Ostwald, 180 Mont. 530, 591 P.2d 646 (1979); State v. Hegwood, 202 Neb. 379, 275 N.W.2d 605 (1979); Colle v. State, 85 Nev. 289, 454 P.2d 21 (1969); State v. Boone, 119 N.H. 594, 406 A.2d 113 (1979); State v. Saulnier, 63 N.J. 199, 306 A.2d 67 (1973); State v. Aubrey, 91 N.M. 1, 569 P.2d 411 (1977); People v. Henderson, 41 N.Y.2d 233, 391 N.Y.S.2d 563, 359 N.E.2d 1357 (1976); State v. Drumgold, 297 N.C. 267, 254 S.E.2d 531 (1979); State v. Piper, 261 N.W.2d 650 (N.D.1977); State v. Kilby, 50 Ohio St.2d 21, 361 N.W.2d 1336 (1977); Gilbreath v. State, 555 P.2d 69 (Okl.Cr.App.1976); State v. Thayer, 32 Or.App. 193, 573 P.2d 758 (1978); Commonwealth v. Terrell, 482 Pa. 303, 393 A.2d 1117 (1978); State v. Funchess, 267 S.C. 427, 229 S.E.2d 331 (1976); State v. Grimes, 90 S.D. 43, 237 N.W.2d 900 (1976); Howard v. State, 578 S.W.2d 83 (Tenn.1979); Day v. State, 532 S.W.2d 302 (Tex.Cr.App.1975); State v. Gillian, 23 Utah 2d 372, 463 P.2d 811 (1970); Painter v. Commonwealth, 210 Va. 360, 171 S.E.2d 166 (1969); State v. Workman, 90 Wash.2d 443, 584 P.2d 382 (1978); State v. Wayne, W.Va., 245 S.E.2d 838 (1978); Leach v. State, 83 Wis.2d 199, 265 N.W.2d 495 (1978); Jones v. State, 580 P.2d 1150 (Wyo.1978).
13
See Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (opinion of STEVENS, J.); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973. In Lockett THE CHIEF JUSTICE explained the rationale for requiring more reliable procedures in capital sentencing determinations:
"There is no perfect procedure for deciding in which cases governmental authority should be used to impose death. But a statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant's character and record and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty. When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments." Id., at 605, 98 S.Ct., at 2965.
See also Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (opinion of STEWART, POWELL, and STEVENS, JJ.):
"Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case."
14
We need not and do not decide whether the Due Process Clause would require the giving of such instructions in a noncapital case.
15
The jury is not told that the judge is the final sentencing authority. Rather, the jury is instructed that it must impose the death sentence if it finds the defendant guilty and is led to believe, by implication, that its sentence will be final.
16
The same analysis led to the conclusion that Louisiana's death penalty statute was unconstitutional. Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (opinion of STEWART, POWELL, and STEVENS, JJ.). That case involved a mandatory death penalty statute that required the judge to give a lesser included offense instruction whether or not it was justified by the evidence. Because such a procedure "invites the jurors to disregard their oaths and choose a verdict for a lesser offense whenever they feel the death penalty is inappropriate," it was the equivalent of a discretionary death statute in which the jury was given complete and unreviewable discretion, unguided by any standards as to when the death penalty was appropriate. Id., at 335, 96 S.Ct., at 3007.
17
In Gregg v. Georgia, 428 U.S. 153, 199, 96 S.Ct. 2909, 2937, 49 L.Ed.2d 859 (opinion of STEWART, POWELL, and STEVENS, JJ.), the prevailing opinion specifically rejected the argument that the new Georgia statute was unconstitutional because the availability of lesser included offense instructions made it possible that a jury might erroneously remove a defendant from consideration as a candidate for the death penalty. Under a statute like Georgia's, where guilt is determined separately from punishment, there is little risk that the jury will use its power to decide guilt to make a de facto punishment decision. Thus, eliminating lesser included offense instructions would not have the effect of reducing the risk of arbitrariness in the imposition of the death penalty. On the contrary, as was stated in a footnote in Gregg, eliminating this and other procedural safeguards that have long been accorded criminal defendants would raise serious constitutional questions. Id., at 199, n. 50, 96 S.Ct., at 2937.
Thus, it is only in cases like this in which the preclusion of lesser included offenses is linked to a mandatory death penalty that the State could even raise the possibility that the elimination of this procedural safeguard was a permissible way to reduce the arbitrary and capricious infliction of the death penalty.
18
Forty-eight out of the first 50 defendants tried under the Alabama statute were convicted. See Brief in Opposition in Jacobs v. Alabama, O.T.1978, No. 78-5696, pp. 10, 35. In this case the State has argued that the reason for the high conviction rate is that prosecutors rarely indict for capital offenses except in the clearest of cases because of the risk that a failure of proof on an essential element of the crime might lead to an acquittal. Assuming that this is the reason for the high conviction rate, the statistics still do not support the hypothesis that juries will be more likely to acquit than convict in a doubtful case.
19
The closing arguments in this case indicate that under the Alabama statute the issue of whether or not the defendant deserves the death penalty will often seem more important than the issue of whether the State has proved each and every element of the capital crime beyond a reasonable doubt. Thus, in this case both the prosecutors and defense attorneys spent a great deal of argument time on the desirability of the death penalty in general and its application to the petitioner in particular, rather than focusing on the crucial issue of whether the evidence showed that petitioner had possessed the intent necessary to convict on the capital charge.
20
Alabama Code § 13-11-2(c) (1975) provides:
"[I]f the jury finds the defendant not guilty, the defendant must be discharged. The court may enter a judgment of mistrial upon failure of the jury to agree on a verdict of guilty or not guilty or on the fixing of the penalty of death. After entry of a judgment of mistrial, the defendant may be tried again for the aggravated offense, or he may be reindicted for an offense wherein the indictment does not allege an aggravated circumstance. If the defendant is reindicted for an offense wherein the indictment does not allege an aggravated circumstance, the punishment upon conviction shall be as heretofore or hereafter provided by law; however, the punishment shall not be death or life imprisonment without parole."
21
The jury in this case could hardly have been sure of the effect of a mistrial. In his closing argument one of petitioner's attorneys told the jury that "if I can have any opportunity under any reindictment or any other way to take him [petitioner] before this bar of justice and enter a plea of guilty of murder, robbery, either one, life in prison, I'll take him." Record 689. At another point, however, petitioner's other attorney indicated that petitioner could still be punished even if he were acquitted, stating: "I submit to you if you acquit him he's still in the Etowah County Jail. I submit to you if you acquit him that he can receive his due punishment, but I say to you his due punishment is not death." Id., at 709.
In his instructions to the jury the trial judge stated that, if acquitted, petitioner could not be tried "for anything he ever did to Roy Malone." And, although he explained that petitioner could be retried in the event of a mistrial, he did not elaborate on what that retrial would entail. Id., at 743.
22
The State's brief in opposition to the petition for certiorari in Jacobs v. Alabama, O.T.1978, No. 78-5696, states that of the first 45 defendants sentenced after conviction by a jury of capital offenses, 37 received the death penalty from the trial judge. See pp. 10, 35 of that brief. In his dissent in Jacobs v. State, 361 So.2d, at 650-651, Justice Jones pointed out the practical obstacles to treating the jury's imposition of the death penalty as being purely advisory:
"[T]o leave sentence reduction in the prerogative of the trial court is to place undue pressures upon this office. Again, admittedly, a trial judge must often be the bulwark of the legal system when presented with unpopular causes and adverse public opinion. This State's recent history, however, reflects the outcry of unjustified criticism attendant with a trial judge's reduction of a sentence to life imprisonment without possibility of parole, after a jury has returned a sentence of death. Clearly, this pressure constitutes an undue compulsion on the trial judge to conform the sentence which he imposes with that previously returned by the jury." (Footnote omitted.)
| 01
|
447 U.S. 773
100 S.Ct. 2467
65 L.Ed.2d 506
Helen B. O'BANNON, Secretary of Public Welfare, Pennsylvania, Petitioner,v.TOWN COURT NURSING CENTER et al.
No. 78-1318.
Argued Nov. 6, 1979.
Decided June 23, 1980.
Syllabus
After the Department of Health, Education, and Welfare (HEW) and the Pennsylvania Department of Public Welfare (DPW) had revoked the authority of Town Court Nursing Center (a nursing home) to provide elderly residents of the home with nursing care at government expense under Medicare and Medicaid provider agreements, the home and several of its patients (respondents) brought suit in Federal District Court, alleging, inter alia, that the patients were entitled to an evidentiary hearing on the merits of the revocation before the Medicaid payments were discontinued. The District Court ultimately rejected this argument. On appeal, the Court of Appeals reversed, holding that the patients had a constitutionally protected property interest in continued residence at the nursing home that gave them a right to a pretermination hearing on whether the home's Medicare and Medicaid provider agreements should be renewed. In so holding, the court relied on three Medicaid provisions: 42 U.S.C. § 1396a(a)(23) (1976 ed., Supp. II), which gives Medicaid recipients the right to obtain services from any qualified facility, a federal regulation prohibiting certified facilities from transferring or discharging a patient except for specified reasons, and a federal regulation prohibiting the reduction or termination of financial assistance without a hearing.
Held: The patients have no interest in receiving benefits for care in a particular facility that entitles them, as a matter of constitutional law, to a hearing before HEW and DPW can decertify that facility. Whatever legal rights the patients may have against the nursing home for failing to maintain its status as a qualified nursing home, the enforcement by HEW and DPW of their valid regulations did not directly affect the patients' legal rights or deprive them of any constitutionally protected interest in life, liberty, or property. Pp. 784-790.
(a) Whether viewed singly or in combination, the Medicaid provisions relied upon by the Court of Appeals do not confer a right to continued residence in the nursing home of one's choice. While 42 U.S.C. § 1396a(a)(23) (1976 ed., Supp. II) by implication gives recipients the right to be free from government interference with the choice to remain in a home that continues to be qualified, it does not confer a right to continue to receive benefits for care in a home that has been decertified. Although the regulations in question protect patients by limiting the circumstances under which a home may transfer or discharge a Medicaid recipient, they do not purport to limit the Government's right to make a transfer necessary by decertifying a facility. And, since decertification does not reduce or terminate a patient's financial assistance, but merely requires him to use it for care at a different facility, regulations granting recipients the right to a hearing prior to a reduction in financial benefits are irrelevant. Pp. 785-786.
(b) This case does not involve the withdrawal of direct benefits. Rather, it involves the Government's attempt to confer an indirect benefit on Medicaid patients by imposing and enforcing minimum standards of care on facilities like Town Court. When enforcement of those standards requires decertification of a facility, there may be an immediate, adverse impact on some residents. But that impact, which is an indirect and incidental result of the Government's enforcement action, does not amount to a deprivation of any interest in life, liberty, or property. Pp. 786-789.
586 F.2d 280, reversed and remanded.
Norman J. Watkins, Los Angeles, Cal., for petitioner.
Richard A. Allen, Washington, D. C., for respondent Secretary of HEW supporting petitioner.
Nathan L. Posner, Philadelphia, Pa., for respondents Town Court Nursing Center et al.
Mr. Justice STEVENS delivered the opinion of the Court.
1
The question presented is whether approximately 180 elderly residents of a nursing home operated by Town Court Nursing Center, Inc., have a constitutional right to a hearing before a state or federal agency may revoke the home's authority to provide them with nursing care at government expense. Although we recognize that such a revocation may be harmful to some patients, we hold that they have no constitutional right to participate in the revocation proceedings.
2
Town Court Nursing Center, Inc. (Town Court), operates a 198-bed nursing home in Philadelphia, Pa. In April 1976 it was certified by the Department of Health, Education, and Welfare (HEW) as a "skilled nursing facility," thereby becoming eligible to receive payments from HEW and from the Pennsylvania Department of Public Welfare (DPW), for providing nursing care services to aged, disabled, and poor persons in need of medical care. After receiving its certification,1 Town Court entered into formal "provider agreements" with both HEW and DPW. In those agreements HEW and DPW agreed to reimburse Town Court for a period of one year for care provided to persons eligible for Medicare or Medicaid benefits under the Social Security Act,2 on the condition that Town Court continue to qualify as a skilled nursing facility.
3
On May 17, 1977, HEW notified Town Court that it no longer met the statutory and regulatory standards for skilled nursing facilities and that, consequently, its Medicare provider agreement would not be renewed.3 The HEW notice stated that no payments would be made for services rendered after July 17, 1977, explained how Town Court might request reconsideration of the decertification decision, and directed it to notify Medicare beneficiaries that payments were being discontinued. Three days later DPW notified Town Court that its Medicaid provider agreement would also not be renewed.4
4
Town Court requested HEW to reconsider its termination decision. While the request was pending, Town Court and six of its Medicaid patients5 filed a complaint in the United States District Court for the Eastern District of Pennsylvania alleging that both the nursing home and the patients were entitled to an evidentiary hearing on the merits of the decertification decision before the Medicaid payments were discontinued. The complaint alleged that termination of the payments would require Town Court to close and would cause the individual plaintiffs to suffer both a loss of benefits and "immediate and irreparable psychological and physical harm." App. 11a.
5
The District Court granted a preliminary injunction against DPW and HEW, requiring payments to be continued for new patients as well as for patients already in the home and prohibiting any patient transfers until HEW acted on Town Court's petition for reconsideration. After HEW denied that petition, the District Court dissolved the injunction and denied the plaintiffs any further relief, except that it required HEW and DPW to pay for services actually provided to patients.
6
Town Court and the six patients filed separate appeals from the denial of the preliminary injunction, as well as a motion, which was subsequently granted, for reinstatement of the injunction pending appeal. The Secretary of HEW cross-appealed from the portion of the District Court's order requiring payment for services rendered after the effective date of the termination. The Secretary of DPW took no appeal and, though named as an appellee, took no position on the merits.
7
The United States Court of Appeals for the Third Circuit, sitting en banc, unanimously held that there was no constitutional defect in the HEW procedures that denied Town Court an evidentiary hearing until after the termination had become effective and the agency had ceased paying benefits.6 The Court of Appeals came to a different conclusion, however, with respect to the patients' claim to a constitutional right to a pretermination hearing. Town Court Nursing Center, Inc. v. Beal, 586 F.2d 280 (CA3 1978).7
8
Relying on the reasoning of Klein v. Califano, 586 F.2d 250 (CA3 1978) (en banc), decided the same day, a majority of the court concluded that the patients had a constitutionally protected property interest in continued residence at Town Court that gave them a right to a pretermination hearing. In Klein the court identified three Medicaid provisions—a statute giving Medicaid recipients the right to obtain services from any qualified facility,8 a regulation prohibiting certified facilities from transferring or discharging a patient except for certain specified reasons,9 and a regulation prohibiting the reduction or termination of financial assistance without a hearing10—which, in its view, created a "legitimate entitlement to continued residency at the home of one's choice absent specific cause for transfer." Id., at 258. It then cited the general due process maxim that, whenever a governmental benefit may be withdrawn only for cause, the recipient is entitled to a hearing as to the existence of such cause. See Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 11, 98 S.Ct. 1554, 1561, 56 L.Ed.2d 30. Finally, it held that, since the inevitable consequence of decertifying a facility is the transfer of all its residents receiving Medicaid benefits, a decision to decertify should be treated as a decision to transfer, thus triggering the patients' right to a hearing on the issue of whether there is adequate cause for the transfer.11
9
Applying this reasoning in Town Court, six judges held that the patients were entitled to a pretermination hearing on the issue of whether Town Court's Medicare and Medicaid provider agreements should be renewed.12 The court thus reinstated that portion of the preliminary injunction that prohibited patient transfers until after the patients had been granted a hearing and affirmed that portion that required HEW and DPW to continue paying benefits on behalf of Town Court residents. It then remanded, leaving the nature of the hearing to be accorded the patients to be determined, in the first instance, by the District Court. Three judges dissented, concluding that neither the statutes nor the regulations granted the patients any substantive interest in decertification proceedings and that they had no constitutionally protected property right in uninterrupted occupancy.13
10
The Secretary of DPW filed a petition for certiorari, which we granted.14 441 U.S. 904, 99 S.Ct. 1990, 60 L.Ed.2d 372. We now reverse, essentially for the reasons stated by Chief Judge Seitz in his dissent.
11
At the outset, it is important to remember that this case does not involve the question whether HEW or DPW should, as a matter of administrative efficiency, consult the residents of a nursing home before making a final decision to decertify it.15 Rather, the question is whether the patients have an interest in receiving benefits for care in a particular facility that entitles them, as a matter of constitutional law, to a hearing before the Government can decertify that facility. The patients have identified two possible sources of such a right. First, they contend that the Medicaid provisions relied upon by the Court of Appeals give them a property right to remain in the home of their choice absent good cause for transfer and therefore entitle them to a hearing on whether such cause exists. Second, they argue that a transfer may have such severe physical or emotional side effects that it is tantamount to a deprivation of life or liberty, which must be preceded by a due process hearing.16 We find both argument unpersuasive.17
12
Whether viewed singly or in combination, the Medicaid provisions relied upon by the Court of Appeals do not confer a right to continued residence in the home of one's choice. Title 42 U.S.C. § 1396a(a)(23) (1976 ed., Supp.II) gives recipients the right to choose among a range of qualified providers, without government interference. By implication, it also confers an absolute right to be free from government interference with the choice to remain in a home that continues to be qualified. But it clearly does not confer a right on a recipient to enter an unqualified home and demand a hearing to certify it, nor does it confer a right on a recipient to continue to receive benefits for care in a home that has been decertified. Second, although the regulations do protect patients by limiting the circumstances under which a home may transfer or discharge a Medicaid recipient, they do not purport to limit the Government's right to make a transfer necessary by decertifying a facility.18 Finally, since decertification does not reduce or terminate a patient's financial assistance, but merely requires him to use it for care at a different facility, regulations granting recipients the right to a hearing prior to a reduction in financial benefits are irrelevant.
13
In holding that these provisions create a substantive right to remain in the home of one's choice absent specific cause for transfer, the Court of Appeals failed to give proper weight to the contours of the right conferred by the statutes and regulations. As indicated above, while a patient has a right to continued benefits to pay for care in the qualified institution of his choice, he has no enforceable expectation of continued benefits to pay for care in an institution that has been determined to be unqualified.
14
The Court of Appeals also erred in treating the Government's decision to decertify Town Court as if it were equivalent in every respect to a decision to transfer an individual patient. Although decertification will inevitably necessitate the transfer of all those patients who remain dependent on Medicaid benefits, it is not the same for purposes of due process analysis as a decision to transfer a particular patient or to deny him financial benefits, based on his individual needs or financial situation.
15
In the Medicare and the Medicaid Programs the Government has provided needy patients with both direct benefits and indirect benefits. The direct benefits are essentially financial in character; the Government pays for certain medical services and provides procedures to determine whether and how much money should be paid for patient care. The net effect of these direct benefits is to give the patients an opportunity to obtain medical services from providers of their choice that is comparable, if not exactly equal, to the opportunity available to persons who are financially independent. The Government cannot withdraw these direct benefits without giving the patients notice and an opportunity for a hearing on the issue of their eligibility for benefits.19
16
This case does not involve the withdrawal of direct benefits. Rather, it involves the Government's attempt to confer an indirect benefit on Medicaid patients by imposing and enforcing minimum standards of care on facilities like Town Court. When enforcement of those standards requires decertification of a facility, there may be an immediate, adverse impact on some residents. But surely that impact, which is an indirect and incidental result of the Government's enforcement action, does not amount to a deprivation of any interest in life, liberty, or property.
17
Medicaid patients who are forced to move because their nursing home has been decertified are in no different position for purposes of due process analysis than financially independent residents of a nursing home who are forced to move because the home's state license has been revoked. Both groups of patients are indirect beneficiaries of government programs designed to guarantee a minimum standard of care for patients as a class. Both may be injured by the closing of a home due to revocation of its state license or its decertification as a Medicaid provider. Thus, whether they are private patients or Medicaid patients, some may have difficulty locating other homes they consider suitable or may suffer both emotional and physical harm as a result of the disruption associated with their move. Yet none of these patients would lose the ability to finance his or her continued care in a properly licensed or certified institution. And, while they might have a claim against the nursing home for damages,20 none would have any claim against the responsible governmental authorities for the deprivation of an interest in life, liberty, or property. Their position under these circumstances would be comparable to that of members of a family who have been dependent on an errant father; they may suffer serious trauma if he is deprived of his liberty or property as a consequence of criminal proceedings, but surely they have no constitutional right to participate in his trial or sentencing procedures.
18
The simple distinction between government action that directly affects a citizen's legal rights, or imposes a direct restraint on his liberty, and action that is directed against a third party and affects the citizen only indirectly or incidentally, provides a sufficient answer to all of the cases on which the patients rely in this Court. Thus, Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 98 S.Ct. 1554, 56 L.Ed.2d 30, involved the direct relationship between a publicly owned utility and its customers; the utility had provided its customers with a legal right to receive continued service as long as they paid their bills. We held that under these circumstances the utility's customers had a constitutional right to a hearing on a disputed bill before their service could be discontinued. But nothing in that case implies that if a public utility found it necessary to cut off service to a nursing home because of delinquent payments, it would be required to offer patients in the home an opportunity to be heard on the merits of the credit dispute. This would be true even if the termination of utility service required the nursing home to close and caused serious inconvenience or harm to patients who would therefore have to move. As in this case, such patients might have rights against the home, and might also have direct relationships with the utility concerning their own domestic service, but they would have no constitutional right to interject themselves into the dispute between the public utility and the home.21
19
Over a century ago this Court recognized the principle that the due process provision of the Fifth Amendment does not apply to the indirect adverse effects of governmental action. Thus, in the Legal Tender Cases, 12 Wall. 457, 551, 20 L.Ed. 287, the Court stated:
20
"That provision has always been understood as referring only to a direct appropriation, and not to consequential injuries resulting from the exercise of lawful power. It has never been supposed to have any bearing upon, or to inhibit laws that indirectly work harm and loss to individuals."
21
More recently, in Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481, we rejected the argument made by the parents of a girl murdered by a parolee that a California statute granting absolute immunity to the parole board for its release decisions deprived their daughter of her life without due process of law:
22
"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." Id., at 281, 100 S.Ct., at 557.
23
Similarly, the fact that the decertification of a home may lead to severe hardship for some of its elderly residents does not turn the decertification into a governmental decision to impose that harm.22
24
Whatever legal rights these patients may have against Town Court for failing to maintain its status as a qualified skilled nursing home—and we express no opinion on that subject—we hold that the enforcement by HEW and DPW of their valid regulations did not directly affect the patients' legal rights or deprive them of any constitutionally protected interest in life, liberty, or property.
25
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
26
It is so ordered.
27
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
28
Mr. Justice BLACKMUN, concurring in the judgment.
29
Although the Court reaches the result I reach, I find its analysis simplistic and unsatisfactory. I write separately to explain why and to set forth the approach I feel should be followed.
30
The patients rest their due process claim on two distinct foundations. First, they assert a property interest in continued residence at their home. Second, they claim life and liberty interests tied to their physical and psychological well-being. According to the patients, because each of these interests is threatened directly by decertification, they are constitutionally entitled to a hearing on the propriety of that action. Unlike the Court, I find it necessary to treat these distinct arguments separately.
31
* In my view, the Court deals far too casually with § 1902(a)(23) of the Social Security Act, 42 U.S.C. § 1396(a)(23) (1976 ed., Supp.II), in rejecting the patients' "property" claim.1 That provision guarantees that a patient may receive nursing home care "from any institution . . . qualified to perform THE . . . SERVICES . . . who undertakes to provide him such services." the statute thus vests each patient with a broad right to resist governmental removal, which can be disrupted only when the Government establishes the home's noncompliance with program participation requirements. Given this fact and our precedents, one can easily understand why seven judges of the Court of Appeals adopted the patients' argument. It would seem that, because the Government has generated a "justifiable expectation that [the patients] would not be transferred except for misbehavior or upon the occurrence of other specified events," Vitek v. Jones, 445 U.S. 480, 489, 100 S.Ct. 1254, 1261, 63 L.Ed.2d 552 (1980), they are "entitled . . . to the benefits of appropriate procedures in connection with determining the conditions that warranted [their] transfer." Id., at 490, 100 S.Ct., at 1262. Especially since the patients assert an interest in a home,2 I believe their claim to property has substantial force.
32
I agree with Judge Adams of the Court of Appeals that it "begs the question,"Town Court Nursing Center, Inc. v. Beal, 586 F.2d 280, 287 (concurring opinion), to counter this argument with the observation that § 1396(a)(23) expressly gives the patients only a right to stay in qualified facilities. See, ante, at 785. We have repeatedly rejected as too facile an approach that looks no further than the face of the statute to define the scope of protected expectancies. See Vitek v. Jones, 445 U.S., at 490-491, 100 S.Ct., at 1262, and n. 6, citing Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) (concurring and dissenting opinions); The Supreme Court, 1975 Term, 90 Harv.L.Rev. 56, 99 (1976) ("six Justices in Arnett must have looked outside the statute to consider the impact of government action on citizen expectations and reliance"). Here, as in numerous cases in which we have recognized protected interests, disqualification of the home is the very condition that alone permits disruption of the status quo and that the patients wish to contest. See Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 11-12, 98 S.Ct. 1554, 1561, 56 L.Ed.2d 30 (1978) ("Because petitioners may terminate service only 'for cause,' respondents assert a 'legitimate claim of entitlement' within the protection of the Due Process Clause"). (footnote omitted).
33
Perhaps aware that its treatment of § 1396(a)(23) is in some tension with our precedents, the Court launches another line of analysis. It reasons that "decertification . . . is not the same for purposes of due process analysis as a decision to transfer a particular patient." Ante, at 786. I am left wondering why. Certainly, the "real world" effect of the two actions is the same. Thus the Court's assertion will come as cold comfort to patients forced to relocate because of this decision. I also wonder why this analytical differentiation matters in determining whether the patients possess a constitutionally protected interest. Certainly decertification results in the loss of exactly the same interest—the ability to stay in one's home that a patient subject to an individual transfer suffers. The Court does not explain to my satisfaction why in the latter case, but not in the former, a constitutionally protected interest is affected.
34
I have no quarrel with the Court's observation that the Due Process Clause generally is unconcerned with "indirect" losses. I fear, however, that such platitudes often submerge analytical complexities in particular cases. Cf. Sherbert v. Verner, 374 U.S. 398, 404, 83 S.Ct. 1790, 1794, 10 L.Ed.2d 965 (1963); Braunfeld v. Brown, 366 U.S. 599, 607, 81 S.Ct. 1144, 1148, 6 L.Ed.2d 563 (1961) (plurality opinion); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 461, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488 (1958); American Communications Assn. v. Douds, 339 U.S. 382, 402, 70 S.Ct. 674, 685, 94 L.Ed. 925 (1950). I also question whether that generalization has relevance here.3 Even assuming it does, the Court's treatment of it leaves me unimpressed. To say that the decertification decision directly affects the home is not to say that it "indirectly" affects the patients. Transfer is not only the "inevitabl[e]," ante, at 786, clearly foreseeable consequence of decertification; a basic purpose of decertification is to force patients to relocate. Thus, not surprisingly, § 1396(a)(23) specifically ties the patients' right to continued residence in a home to qualification of the facility. Under these circumstances, I have great difficulty concluding that the patients' loss of their home should be characterized as "indirect and incidental," ante, at 787, "consequential," Meyer v. Richmond, 172 U.S. 82, 94, 19 S.Ct. 106, 111, 43 L.Ed. 374 (1898); "collateral," see Hannah v. Larche, 363 U.S. 420, 443, 80 S.Ct. 1502, 1515, 4 L.Ed.2d 1307 (1960); or "remote and indeterminate,"Goodrich v. Detroit, 184 U.S. 432, 437, 22 S.Ct. 397, 398, 46 L.Ed. 627 (1902).4 To be sure, decertification-induced transfers are designed to benefit patients. See ante, at 787. But so are a wide range of other governmental acts that invoke due process protections for the intended beneficiary. See, e. g., Vitek v. Jones, supra; Parham v. J.R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979). See also In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Indeed a basic purpose of affording a hearing in such cases is to test the Government's judgment that its action will in fact prove to be beneficial.
35
In my view, there exists a more principled and sensible analysis of the patients' "property" claim. Given § 1396(a)(23), I am forced to concede that the patients have some form of property interest in continued residence at Town Court. And past decisions compel me to observe that where, as here, a substantial restriction inhibits governmental removal of a presently enjoyed benefit, a property interest normally will be recognized.5 To state a general rule, however, is not to decide a specific case. The Court never has held that any substantive restriction upon removal of any governmental benefit gives rise to a generalized property interest in its continued enjoyment. Indeed, a majority of the Justices of this Court are already on record as concluding that the term "property" sometimes incorporates limiting characterizations of statutorily bestowed interests. See Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) (plurality opinion); Goss v. Lopez, 419 U.S. 565, 586-587, 95 S.Ct. 729, 742, 42 L.Ed.2d 725, and n. 4 (1975) (dissenting opinion). See also Smith v. Organization of Foster Families, 431 U.S. 816, 856, 860-861, 97 S.Ct. 2094, 2115, 2118, 53 L.Ed.2d 14 (1977) (opinion concurring in judgment). See generally Van Alstyne, Cracks in "The New Property" Adjudicative Due Process in the Administrative State, 62 Cornell L.Rev. 445, 460-466 (1977). Common sense and sound policy support this recognition of some measure of flexibility in defining "new property" expectancies. Public benefits are not held in fee simple. And even if we analogize the patients' claim to "continued residence" to holdings more familiar to the law of private property—even to interests in homes, such as life tenancies—we would find that those interests are regularly subject to easements, conditions subsequent, possibilities of reverter, and other similar limitations. In short, it does not suffice to say that a litigant holds property. The inquiry also must focus on the dimensions of that interest. SeeBoard of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972).
36
The determinative question is whether the litigant holds such a legitimate "claim of entitlement" that the Constitution, rather than the political branches, must define the procedures attending its removal. Id., at 578, 92 S.Ct., at 2709. Claims of entitlement spring from expectations that are "justifiable," Vitek v. Jones, 445 U.S., at 489, 100 S.Ct., at 1261, "protectible," Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7, 99 S.Ct. 2100, 2104, 60 L.Ed.2d 668 (1979); "sufficient," Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976); or "proper," id., at 362, 96 S.Ct., at 2085 (dissenting opinion). In contrast, the Constitution does not recognize expectancies that are "unilateral," Board of Regents v. Roth, 408 U.S., at 577, 92 S.Ct., at 2709, or "too ephemeral and insubstantial." Meachum v. Fano, 427 U.S. 215, 228, 96 S.Ct. 2532, 2540, 49 L.Ed.2d 451 (1976).
37
To mouth these labels does not advance analysis far. We must look further to determine which set of labels applies to particular constellations of fact. Whether protected entitlements exist and how far they extend, although dependent on subconstitutional rules, see, e. g., Bishop v. Wood, supra, are ultimately questions of constitutional law. See Memphis Light, Gas & Water Div. v. Craft, 436 U.S., at 9, 99 S.Ct., at 2105; Monaghan, Of "Liberty" and "Property," 62 Cornell L.Rev. 405, 435-436 (1977). Application of that law will seldom pose difficulties Government has exercised its option to bestow a benefit wholly at will, see Bishop v. Wood, supra, or the litigant has identified a "for cause" condition resembling those held to be property-creating in past cases. Cases, however, will not always fit neatly into these categories. And when such cases arise, some new analysis is needed. In my view, that inquiry should be broad-gauged. Reason and shared perceptions should be consulted to define the scope of the claimant's "justifiable" expectations. Nor should constitutional policy be ignored in deciding whether constitutional protections attach. This approach not only permits sensible application of due process protections; it reflects the unremarkable reality that reasonable legal rules themselves comport with reasonable expectations.
38
In applying this analysis to this case, four distinct considerations convince me that—even though the statutes place a significant substantive restriction on transferring patients—their expectancy in remaining in their home is conditioned upon its status as a qualified provider.
39
(1) The lengthy process of deciding the disqualification question has intimately involved Town Court. The home has been afforded substantial procedural protections, and, throughout the process, has shared with the patients who wish to stay there an intense interest in keeping the facility certified. These facts are functionally important. Procedural due process seeks to ensure the accurate determination of decisional facts, and informed unbiased exercises of official discretion. See, e. g., Fuentes v. Shevin, 407 U.S. 67, 81, 92 S.Ct. 1983, 1994, 32 L.Ed.2d 556 (1972); Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2599, 33 L.Ed.2d 484 (1972). To the extent procedural safeguards achieve these ends, they reduce the likelihood that persons will forfeit important interests without sufficient justification. In this case, since the home had the opportunity and incentive to make the very arguments the patients might make, their due process interest in accurate and informed decisionmaking already, in large measure was satisfied. This point embodies more than an abstract argument of policy. "[T]he rights of parties are habitually protected in court by those who act in a representative capacity." Voeller v. Neilston Warehouse Co., 311 U.S. 531, 537, 61 S.Ct. 376, 379, 85 L.Ed. 322 (1941). See also New Orleans Debenture Redemption Co. v. Louisiana, 180 U.S. 320, 21 S.Ct. 378, 45 L.Ed. 550 (1901); Bernheimer v. Converse, 206 U.S. 516, 532, 27 S.Ct. 755, 760, 51 L.Ed. 1163 (1907). Thus, not surprisingly, the Court heretofore has recognized that where known rules provide procedures through which we may expect others to protect a property holder's less directly threatened interests, that fact favors viewing compliance with those procedures as defining the outer limits of the property holder's expectancy. See Kersh Lake Dist. v. Johnson, 309 U.S. 485, 60 S.Ct. 640, 84 L.Ed. 881 (1940); McCaughey v. Lyall, 224 U.S. 558, 32 S.Ct. 602, 56 L.Ed. 883 (1912).
40
(2) Town Court is more than a de facto representative of the patients' interests; it is the underlying source of the benefit they seek to retain. Again, this fact is important, for the property of a recipient of public benefits must be limited, as a general rule, by the governmental power to remove, through prescribed procedures, the underlying source of those benefits. The Constitution would not have entitled John Kelly to a fair hearing if New York had chosen to disband its public assistance programs rather than to cut off his particular award. See Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). Nor would Texas have had to afford process to Professor Sindermann had it decided for budgetary reasons to close Odessa Junior College. See Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). And we would be surprised to learn that Dwight Lopez had a constitutional right to procedures before the Ohio Department of Education suspended classes at Columbus High School for 10 days due to the discovery of faulty electrical wiring requiring that much time for repair work. See Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975). These observations comport with common understanding and shared expectations. A farmer may sue for conversion if his upstream neighbor improperly diverts his water. But both can only grumble if the spring rains cease and the river runs dry.6
41
(3) That the asserted deprivation of property extends in a nondiscriminatory fashion to some 180 patients also figures in my calculus. See Dent v. West Virginia, 129 U.S. 114, 124, 9 S.Ct. 231, 234, 32 L.Ed. 623 (1889) (legislation comports with due process if, among other things, "it be general in its operation upon the subjects to which it relates"). "Where a rule of conduct applies to more than a few people, it is impracticable that every one should have a direct voice in its adoption. The Constitution does not require all public acts to be done in town meeting or an assembly of the whole." Bi-Metallic Investment Co. v. State Board, 239 U.S. 441, 445, 36 S.Ct. 141, 142, 60 L.Ed. 372 (1915). See Bowles v. Willingham, 321 U.S. 503, 519-520, 64 S.Ct. 641, 649-50, 88 L.Ed. 892 (1944); Goodrich v. Detroit, 184 U.S., at 438, 22 S.Ct., at 399. When governmental action affects more than a few individuals, concerns beyond economy, efficiency and expedition tip the balance against finding that due process attaches.7 We may expect that as the sweep of governmental action broadens, so too does the power of the affected group to protect its interests outside rigid constitutionally imposed procedures.8 Moreover, "the case for due protection grows stronger as the identity of the persons affected by a government choice becomes clearer; and the case becomes stronger still as the precise nature of the effect on each individual comes more determinately within the decisionmaker's purview. For when government acts in a way that singles out identifiable individuals—in a way that is likely to be premised on suppositions about specific persons—it activates the special concern about being personally talked to about the decision rather than simply being dealt with." L. Tribe, American Constitutional Law § 10-7, pp. 503-504 (1978) (emphasis in original). I agree with this general statement and find its "flipside" informative here.
42
(4) Finally I find it important that the patients' interest has been jeopardized not at all because of alleged shortcomings on their part. Frequently, significant interests are subjected to adverse action upon a contested finding of fault, impropriety or incompetence. In these contexts the Court has seldom hesitated to require that a hearing be afforded the "accused." See, e. g., Dixon v. Love, 431 U.S. 105, 112-113, 97 S.Ct. 1723, 1727, 52 L.Ed.2d 172 (1977); Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975); Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). This tendency reflects due process values extending beyond the need for accurate determinations. Affording procedural protections also aims at " 'generating the feeling, so important to a popular government, that justice has been done.' " Marshall v. Jerrico, Inc., 446 U.S. 238, 242, 100 S.Ct. 1610, 1613, 64 L.Ed.2d 182 (1980), quoting Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 172, 71 S.Ct. 624, 649, 95 L.Ed. 817 (1951) (concurring opinion). It may be that patients' participation in the decertification decision would vaguely heighten their and others' sense of the decision's legitimacy, even though the decision follows extensive government inspections undertaken with the very object of protecting the patients' interest. Even so, that interest is far less discernible in this context than when a stigmatizing determination of wrongdoing or fault supplements removal of a presently enjoyed benefit. See, e. g., Goss v. Lopez, 419 U.S., at 574-575, 95 S.Ct., at 736. See also Vitek v. Jones, supra.
43
For these reasons, I am willing to recognize in this case that "the very legislation which 'defines' the 'dimension' of the [patient's] entitlement, while providing a right to [remain in a home] generally, does not establish this right free of [disqualification of the home] in accord with [federal statutory] law." Goss v. Lopez, 419 U.S., at 586-587, 95 S.Ct., at 742 (dissenting opinion).9
II
44
Citing articles and empirical studies, the patients argue that the trauma of transfer so substantially exacerbates mortality rates, disease, and psychological decline that decertification deprives them of life and liberty.10 Although the Court assumes that "transfer trauma" exists, see ante, at 784, and n. 16, it goes on to reject this argument. By focusing solely on the "indirectness" of resulting physical and psychological trauma, the Court implies that regardless of the degree of the demonstrated risk that widespread illness or even death attends decertification-induced transfers, it is of no moment. I cannot join such a heartless holding. Earlier this Term, the Court recognized that a liberty interest emanates even from the likelihood that added stigma or harmful treatment might attend transfer from a prison to a mental hospital. Vitek v. Jones, supra; see also Parham v. J. R., 442 U.S., at 601, 99 S.Ct., at 2503. For me it follows easily that a governmental decision that imposes a high risk of death or serious illness on identifiable patients must be deemed to have an impact on their liberty.11 Nor am I soothed by the palliative that this harm is "indirect"; in my view, where such drastic consequences attend governmental action, their foreseeability, at least generally, must suffice to require input by those who must endure them. SeeBrede v. Director for Dept. of Health for Hawaii, 616 F.2d 407, 412 (CA9 1980).12
45
The fact of the matter, however, is that the patients cannot establish that transfer trauma is so substantial a danger as to justify the conclusion that transfers deprive them of life or liberty. Substantial evidence suggests that "transfer trauma" does not exist, and many informed researchers have concluded at least that this danger is unproved.13 Recognition of a constitutional right plainly cannot rest on such an inconclusive body of research and opinion. It is for this reason, and not for that stated by the Court, that I would reject the patients' claim of a deprivation of life and liberty.
III
46
Few statements are more familiar to judges than Holmes' pithy observation that "hard cases make bad law." I fear that the Court's approach to this case may manifest the perhaps equally valid proposition that easy cases make bad law. Sometimes, I suspect the intuitively sensed obviousness of a case induces a rush to judgment, in which a convenient rationale is too readily embraced without full consideration of its internal coherence or future ramifications. With respect, I express my concern that that path has been followed here.
47
I concur in the judgment.
48
Mr. Justice BRENNAN, dissenting.
49
Respondents have a constitutionally protected property interest in their " 'legitimate entitlement to continued residency at the home of [their] choice absent specific cause for transfer.' " Town Court Nursing Center, Inc. v. Beal, 586 F.2d 280, 286 (CA3 1978) (Adams, J., concurring), quoting Klein v. Califano, 586 F.2d 250, 258 (CA3 1978). The statutory and regulatory scheme gives a patient the right to choose any qualified nursing home. 42 U.S.C. §§ 1395a and 1396a(a)(23) (1976 ed., Supp.II). Once a patient has chosen a facility, the scheme carefully protects against undesired transfers by limiting the circumstances under which a home may transfer patients. 42 CFR § 442.311(c) (1979). And a qualified nursing home, which must have met detailed federal requirements to gain certification, 42 U.S.C. §§ 1395x(j) (1976 ed. and Supp.II) and 1396a(a)(28), cannot be decertified unless the Government can show good cause. See 42 U.S.C. § 1395cc(b)(2) (1976 ed., Supp.II). Thus the scheme is designed to enable a patient to stay in the chosen home unless there is a specific reason to justify a transfer.
50
Respondent patients chose a home which was, at the time, qualified. They moved into the home reasonably expecting that they would not be forced to move unless, for some sufficient reason, the home became unsuitable for them. The Government's disqualification of the home is, of course, one such reason. Respondents have no right to receive benefits if they choose to live in an unqualified home. That does not mean, however, that they have no right to be heard on the question whether the home is qualified—the answer to which will determine whether they must move to another home and suffer the allegedly great ills encompassed by the term "transfer trauma." See ante, at 784-785, n. 16. The Government's action in withdrawing the home's certification deprives them of the expectation of continued residency created by the statutes and regulations. Under our precedents, they are certainly "entitled . . . to the benefits of appropriate procedures" in connection with the decertification. Vitek v. Jones, 445 U.S. 480, 490, 100 S.Ct. 1254, 1262, 63 L.Ed.2d 552 (1980); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).*
51
The requirements of due process, to be sure, are flexible and are meant to be practical. See Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Here, the provider is entitled to formal proceedings in connection with the disqualification of the home. To the extent that patients want to remain in a home, their interests very nearly coincide with the home's own interests. The patients can count on the home to argue that it should not be disqualified. Nevertheless, the patients have some interests which are separate from the interests of the provider, and they could contribute some information relevant to the decertification decision if they were given an opportunity. See ante, at 2474784, n. 15. There is no indication that the patients have been accorded any opportunity to present their views on decertification. Because they were accorded no procedural protection, I dissent.
1
The certification in 1976 was Town Court's second; it had first been certified in 1967. It was decertified in 1974 as a result of substantial noncompliance with both state and federal requirements.
2
The Medicare Program, see 42 U.S.C. § 1395 et seq., which is primarily for the benefit of the aged and the disabled, is financed and administered entirely by the Federal Government (HEW); the Medicaid Program, see 42 U.S.C. § 1396 et seq., which is primarily designed for the poor, is a cooperative federal-state program.
3
HEW based its determination on a survey conducted by DPW, which recommended that the home be decertified. In its notice to Town Court HEW stated in part:
"In order to participate in the Medicare Program, a skilled nursing facility must meet the statutory requirements contained in section 1861(j) of the Act, 42 U.S.C. § 1395x(j), as well as all other health and safety requirements established by the Secretary in subpart J, part 405, title 20 of the Code of Federal Regulations. A participating skilled nursing facility is required to be in compliance with all of the eighteen conditions of participation for such facilities contained in subpart J.
"On May 8-11, 1977, the Pennsylvania Department of Health performed a survey of your facility. That survey found that your facility does not comply with seven of the eighteen conditions of participation. The seven conditions not being complied with are:
"II. Governing Body and Management (405.1121)
"III. Medical Direction (405.1122)
"IV. Physical Services (405.1123)
"V. Nursing Services (405.1124)
"VIII Pharmaceutical Services (405.1127)
"XIII. Medical Records (405.1132)
"XV. Physical Environment (405.1134)
"Your facility's failure to comply with these conditions of participation precludes renewal of your agreement. Renewal is also precluded by the fact that your facility has failed to maintain compliance with numerous standards which had previously been determined to be met. Please refer to 20 CFR 405.1908(d)." App. 295a-296a.
4
The state agency's letter read in part:
"Because the Medicare Program has terminated your participation, the Department of Public Welfare has no alternative but to likewise terminate your participation under the Medical Assistance Program. The Federal regulations, 45 C.F.R. § 249.33(a)(9), require that a State medical assistance plan must:
" 'Provide that in the case of skilled nursing facilities certified under the provisions of title XVIII of the Social Security Act, the term of a provider agreement shall be subject to the same terms and conditions and coterminous with the period of approval of eligibility specified by the Secretary pursuant to that title, and upon notification that an agreement with a facility under title XVIII of the Act has been terminated or cancelled, the single State agency will take appropriate action to terminate the facility's participation under the plan. A facility whose agreement has been cancelled or otherwise terminated may not be issued another agreement until the reasons which cause the cancellation or termination have been removed and reasonable assurance provided the survey agency that they will not recur.' (emphasis supplied)
"Because of the requirements of HEW, your facility must be terminated from participation in the Medical Assistance Program effective June 18, 1977." Id., at 291a-292a.
5
At the time the suit was filed, no Town Court residents were Medicare recipients. However, Town Court did have a Medicare provider agreement with HEW, the nonrenewal of which automatically triggered the nonrenewal of its Medicaid agreement. See n. 4, supra.
Although the plaintiffs filed their action on behalf of a class of all Medicaid recipients in the home, the District Court never certified the class. Thus, the action has proceeded throughout the Court of Appeals and in this Court as an individual action on behalf of the six named plaintiffs.
6
Relying on this Court's decision in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18, the Court of Appeals held that Town Court's property interests were sufficiently protected by informal pretermination procedures and by the opportunity for an administrative hearing and federal-court review after benefits had been terminated:
"As was true in Eldridge, the decision not to renew a provider agreement is an easily documented, sharply focused decision in which issues of credibility and veracity play little role. It is based in most cases upon routine, standard, unbiased reports by health care professionals. Those professionals evaluate the provider in light of well-defined criteria that were developed in the administrative rule-making process. Written submissions are adequate to allow the provider to present his case. Given the extensive documentation that the provider is able to submit in response to the findings of the survey teams, the provider is unlikely to need an evidentiary hearing in order to present his position more effectively. In any event, there is ample opportunity to expand orally upon written submissions during the exit interview or in discussions during the survey itself. There is opportunity to submit additional evidence after notice of deficiencies is given, and the evidence upon which the recommendation of the survey team is based is disclosed fully to the provider. Moreover, the criteria used to evaluate the provider are well known in advance to the provider, and compliance is readily proved or disproved by written submission. Finally, review by an administrative law judge, by the Appeals Council of HEW, and ultimately by the federal courts, insures that the decision of the Secretary will be thoroughly examined before becoming final.
"As stated in Eldridge, the public interest in preserving scarce financial and administrative resources is strong. Given the large number of providers participating in Medicare and the frequent surveys that are required, we believe that the costs of providing pre-termination hearings
would be substantial. Further, the public has a strong interest in insuring that elderly and infirm nursing home patients are not required to stay in noncomplying homes longer than is necessary to assure that the provider had adequate notice and opportunity to respond to charges of deficiencies." Town Court Nursing Center, Inc. v. Beal, 586 F.2d 266, 277-278 (1978).
Town Court did not seek further review of this determination.
7
At the time the litigation began Frank S. Beal was the Pennsylvania Secretary of Public Welfare. He has since been replaced in that position by Helen B. O'Bannon, the petitioner in this Court.
8
Title 42 U.S.C. § 1396a(a)(23) (1976 ed., Supp. II) provides, in relevant part:
" . . . any individual eligible for medical assistance (including drugs) may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required (including an organization which provides such services, or arranges for their availability, on a prepayment basis), who undertakes to provide him such services . . .."
The same "free choice of providers" is also guaranteed by 42 CFR § 431.51 (1979).
9
42 CFR § 405.1121(k)(4) (1979) requires skilled nursing facilities that are licensed either as Medicaid or Medicare providers to establish written policies and procedures to ensure that each patient admitted to the facility "[i]s transferred or discharged only for medical reasons, or for his welfare or that of other patients, or for nonpayment of his stay (except as prohibited by titles XVIII or XIX of the Social Security Act), and is given reasonable advance notice to ensure orderly transfer or discharge. . . . "
10
Title 45 CFR § 205.10(a)(5) (1979) provides, in relevant part, that an "opportunity for a hearing shall be granted to any applicant who requests a hearing because his or her claim for financial assistance . . . or medical assistance is denied, . . . and to any recipient who is aggrieved by any agency action resulting in suspension, reduction, discontinuance, or termination of assistance."
11
"Because a decision to decertify a nursing home as an unqualified provider is tantamount to an order to transfer a patient for his welfare, Medicaid residents threatened with transfer are entitled to some form of hearing on the existence of the condition or cause for transfer—whether the home is a qualified provider and whether decertification is for the patients' welfare." 586 F.2d, at 258.
12
Three judges joined a brief opinion announcing the judgment of the court authored by Judge Aldisert, which disposed of the case in a summary fashion based on the reasoning of Klein v. Califano. Judge Adams wrote a concurring opinion, which was also joined by three judges (two of whom also joined Judge Aldisert), in which he attempted to explain more fully the reasoning in Klein. Referring to the three provisions relied upon in Klein, Judge Adams stated that they
" . . . paint three distinct points in the landscape of a 'legitimate claim of entitlement' that Medicaid beneficiaries can assert. Taken alone, the interest created by each of these clauses might be dismissed as not rising to the level of a cognizable property interest. However, when viewed together, they compel the conclusion that they identify three aspects of an 'underlying substantive interest' that enjoys the stature of 'property.' " (Footnote omitted.) 586 F.2d, at 287.
Judge Adams also relied, to some extent, on the hardship that nursing home residents might suffer if forced to transfer to another home, stating that the "health" and "home" interests the residents possess in remaining in a particular nursing home are "among those that most persons would regard as being encompassed by the protections of the due process clause," Id., at 289. Finally, unlike Judge Aldisert, Judge Adams went on to suggest what types of procedures would be necessary before Medicaid patients could be transferred.
13
Chief Judge Seitz summarized his response to the three parts of the majority's analysis as follows:
"The majority finds that continued residency in the nursing home of one's choice absent specific cause for transfer is an underlying substantive interest created by three Medicaid provisions. Under the first, 42 U.S.C. § 1396a(a)(23), a Medicaid recipient may obtain medical care 'from any institution . . . qualified to perform the service or services required.' Clearly, what the majority characterizes as a recipient's right to obtain medical care from a 'freely selected provider' is limited to a choice among institutions which have been determined by the Secretary to be 'qualified.' Next, the majority's reliance on 45 C.F.R. § 205.10(a)(5), ensuring a notice and hearing to a recipient whose benefits are suspended, reduced, discontinued or terminated, is obviously misplaced. As the majority itself notes, the decertification of these facilities did not reduce or suspend the residents' rights to continued benefits.
"Finally, the majority relies upon 45 C.F.R. § 249.12(a)(1)(ii)(B)(4), which establishes as one requirement for an institution's certification that each resident admitted to that institution be 'transferred or discharged only for medical reasons or for his welfare or that of other patients, or for nonpayment for his stay.' The majority reads this provision as a limitation on the Secretary's power to interrupt a recipient's residence at a particular institution. Clearly, however, this provision is a standard of conduct imposed by the Secretary upon the provider. Violation of this standard is one of many grounds for decertifying the offending institution. See 45 C.F.R. §§ 249.33(a)(2), 249.10(b)(15). The provision creates no 'substantive interest' in the residents vis-a-vis the Secretary.
"Moving to its minor premise, the majority postulates that a decision to decertify is tantamount to a decision to transfer individual residents. Practically, of course, this may be a consequence in most cases, at least where an institution fails to remedy its insufficiencies. Analytically, however, the two decisions are different. Decertification focuses on the institution's noncompliance with HEW's standards. The majority does not and cannot contend that recipients have a right to remain in an institution that the Secretary has found, by appropriate procedures, to be in substantial noncompliance with the standards. 'Transfer trauma,' although a legitimate concern for some residents, is necessarily subordinate to the threat posed to all residents by substandard conditions." Id., at 295-296.
14
The patients urge us to dismiss the petition without reaching the merits on the ground that there is no one before the Court who may properly argue the petitioner's position. Thus, they contend that DPW is foreclosed from arguing here because, although its Secretary was formally an appellee in the Court of Appeals, it deliberately took a neutral position on the merits in that court. And they argue that HEW, which did argue the merits below, is foreclosed from arguing them here because its Secretary did not petition for certiorari. While we accept the patients' argument with respect to the portion of the injunction requiring continued payments for Medicaid patients, we reject it insofar as the main issue presented by the petition—the right of the patients to a pretermination hearing—is concerned.
When the District Court ruled against the patients and Town Court on their right to a pretermination hearing, it nevertheless ordered HEW and DPW to continue making payments for services actually rendered, no doubt to ensure that there would be no break in care or benefits while the patients were being transferred. The patients appealed on the hearing issue, but the HEW Secretary alone cross-appealed on the issue of whether HEW should continue paying benefits assuming that there was no right to a pretermination hearing. The DPW Secretary did not file a cross-appeal, thus accepting the District Court's order that DPW continue paying its share of benefits. Under these circumstances, the DPW Secretary petition for certiorari could not revive the issue of the propriety of that order. And, since the HEW Secretary did not file a petition for certiorari, we have no occasion to review it now.
However, the patients' jurisdictional argument fails insofar as the hearing issue is concerned. Because it contributes funds to the Medicaid program and has joint supervisory responsibilities with the Federal Government over Medicaid providers, DPW clearly has a sufficient interest in this question to give it standing to argue the merits. And, since it was victorious in the District Court on this issue, there was no need for it to file an appeal in order to keep it alive. Finally, although we would not normally allow a party to make an argument it had not raised below, the fact that the same argument was vigorously asserted by HEW and fully addressed by the Court of Appeals removes any prudential barrier to review that might otherwise exist.
Because he was a party to the proceeding below, the HEW Secretary was automatically joined as a respondent when the DPW Secretary filed his petition in this Court. See this Court's Rule 21(4). In that capacity, he may seek reversal of the judgment of the Court of Appeals on any ground urged in that court.
15
As Judge Adams pointed out in his concurring opinion, HEW and DPW would no doubt benefit from patient input on the questions whether the facility meets the applicable standards and, if not, whether decertification should be postponed pending attempts to bring the home into compliance. 586 F.2d, at 292-293. Indeed, HEW recognizes the value of patient input, requiring patient interviews to be conducted under some circumstances as a part of the periodic review of a facility's qualifications. See 42 CFR § 456.608 (1979). The fact that a person may be an important, or even critical, witness does not, however, give him a constitutional right to testify.
16
The patients cite a number of studies indicating that removal to another home may cause "transfer trauma," increasing the possibility of death or serious illness for elderly, infirm patients. They also argue that associational interests, such as friendship among patients and staff and family ties, may be disrupted if the patients are scattered to other nursing homes, perhaps in other areas of the country. In denying the motion for a preliminary injunction, the District Court did not take evidence or make any findings on the harm that might result from a transfer. Nevertheless, we assume for purposes of this decision that there is a risk that some residents may encounter severe emotional and physical hardship as a result of a transfer.
17
The patients also argue that they are third-party beneficiaries of the provider agreement between DPW and Town Court and that this status somehow entitles them to more than Town Court itself is entitled to—namely, a pretermination hearing. They also argue that a legitimate entitlement to continued care in the home of their choice arises out of Pennsylvania's long history of providing free medical care for those who are indigent. Nothing in the cited Pennsylvania statutes or court decisions, however, purports to create the kind of broad entitlement that the patients claim. In any event, neither of these state-law arguments was advanced in the courts below and therefore neither may provide the basis for an affirmance in this Court.
18
This regulation is clearly designed to prevent abuses by providers and not to define the Government's obligations or limit its powers in any way. Although the regulation allows a home to transfer or discharge a patient for medical reasons, we may assume that the Government could not order a patient transferred out of a qualified facility simply because it believed such a transfer was medically indicated. In other words, we assume that the statute referred to above would prohibit any such interference with the patient's free choice among qualified providers.
19
45 CFR § 205.10(a)(5) (1979). See also Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287.
20
This would, of course, depend on the contract between the patients and the nursing home, if any, and the provisions of the applicable state law.
21
Similarly, in Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570, and Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15, the Court was concerned with the direct relationship between a public employer and its employees. The character of that relationship determined whether the employee possessed an expectancy of continued employment that was legally enforceable against his employer—or at least could not be terminated by the employer without observing certain minimal safeguards. But those cases raised no question concerning the right of an employee who loses his job as a result of government action directed against a third party.
22
We of course need not and do not hold that a person may never have a right to a hearing before his interests may be indirectly affected by government action. Conceivably, for example, if the Government were acting against one person for the purpose of punishing or restraining another, the indirectly affected individual might have a constitutional right to some sort of hearing. But in this case the Government is enforcing its regulations against the home for the benefit of the patients as a whole and the home itself has a strong financial incentive to contest its enforcement decision; under these circumstances the parties suffering an indirect adverse effect clearly have no constitutional right to participate in the enforcement proceedings.
1
I agree with the Court that 45 CFR § 205.10(a)(5) (1979) does not help the patients. Even assuming that provision might otherwise be relevant, it merely prescribes procedures that must attend removal of a benefit. Thus, it has no bearing on whether a property interest exists. See Bishop v. Wood, 426 U.S. 341, 345, 347, 96 S.Ct. 2074, 2077, 2078, 48 L.Ed.2d 684 (1976); Monaghan, Of "Liberty" and "Property," 62 Cornell L.Rev. 405, 442-443, n. 232 (1977). I am less comfortable with the Court's treatment of 42 CFR § 442.311(c) (1979), restated from 45 CFR § 249.12(a)(1)(ii)(B)(4) (1976), which limits transfers by the home. After all, "[i]t is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined." Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). Since reliance can be generated by inhibitions on private, as well as governmental, alteration of the status quo, I am inclined to think that this provision, if applicable to Town Court, furnishes some support to the patients' claim of a protected expectancy. Accord, Brede v. Director for Dept. of Health for Hawaii, 616 F.2d 407, 410-411 (CA9 1980).
2
It is well recognized that the Due Process Clauses of the United States Constitution grew out of the "law of the land" provision of Magna Carta and its later manifestations in English statutory law. That the home was at the center of those property interests historically sought to be protected by due process is underscored by the fact the phrase "due process of law" first appeared in the following codification: "No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law." 28 Edw. III, ch. 3 (1354) (emphasis added), as quoted in The Constitution of the United States of America, Analysis and Interpretation 1138 (Cong. Research Serv. 1973).
3
It seems to me that the indirect character of a harm at least normally has to do with whether state action has "deprived" a person of a protected interest, not with whether a protected interest exists. Thus, in Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980), a case relied on by the Court, there was no question that the interest destroyed, a woman's life, was constitutionally protected. The Court concluded, however, that the loss of that life was "too remote a consequence" of government conduct to be deemed a deprivation attributable to state action. Id., at 285, 100 S.Ct., at 559. I would similarly distinguish the Court's "errant father" and "unpaid utility" hypotheticals as instances were no governmental deprivation occurred. Since the deprivation issue was neither briefed in this Court nor addressed below, I think there is a serious question whether the Court's inquiry into the indirect character of the patient's loss has any place in this case.
4
Because the "indirectness" of a result inevitably is a question of degree, and because countervailing considerations are likely to appear, I would prefer to treat "indirectness" as, at most, but one factor in the "property interest" calculus, which carries greater or lesser significance depending on the particular case. If I were to agree that the sole question here is whether the patients' loss must be rigidly characterized as either "indirect" or "direct," I doubt that I would reach the result the Court does. And if I did, I would undoubtedly rely on the policy-informed factors identified hereinafter, rather than on an essentially ipse dixit judgment informed by strained analogies. This would be so whether the relevant inquiry was whether a property interest exists or whether a deprivation had occurred. Cf. Monaghan, 62 Cornell L.Rev., at 428 (existence of "deprivation . . . depends . . . on such matters as the nature of the invasion, its magnitude, and the character of the justification asserted").
5
See Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 11, 98 S.Ct. 1554, 1561, 56 L.Ed.2d 30 (1978) (receipt of services from public utility not terminable except for "good and sufficient cause"); Bishop v. Wood, 426 U.S., at 345, n. 8, 96 S.Ct., at 2078, n. 8 (finding determinative that public employment was terminable "at will," rather than for cause); Goss v. Lopez, 419 U.S. 565, 573-574, 95 S.Ct. 729, 735-36, 42 L.Ed.2d 725 (1975) (public education must be continued absent "misconduct"); Board of Regents v. Roth, 408 U.S., at 578, 92 S.Ct., at 2709 (distinguishing situation where nonrenewal of state college professor's employment authorized only for "sufficient cause"); Goldberg v. Kelly, 397 U.S. 254, 262, 90 S.Ct. 1011, 1017, 25 L.Ed.2d 287 (1970) (public support payments to be continued unless recipient not qualified). See also Vitek v. Jones, 445 U.S. 480, 488-491, 100 S.Ct., at 1261-1262, (1980); Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 9-11, 99 S.Ct. 2100, 2104-06, 60 L.Ed.2d 668 (1979); Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976); Meachum v. Fano, 427 U.S. 215, 226-227, 96 S.Ct. 2532, 2539, 49 L.Ed.2d 451 (1976); Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). See generally Murray's Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 276, 15 L.Ed. 372 (1856) (Fifth Amendment "cannot be so construed as to leave congress free to make any process 'due process of law,' by its mere will").
6
This common-sense motion is supported by the Court's holding nearly a century ago in Fox v. Cincinnati, 104 U.S. 783, 26 L.Ed. 928 (1882). Ohio had dredged the Miami and Erie Canal which had one of its termini at the Ohio River in Cincinnati. Pursuant to statutory authority, the State entered into contracts with owners of land bordering the canal. Under these contracts, the State provided the landowners with water to generate hydraulic power in return for rents. Fox leased water from the State in 1855. In 1863, the State granted Cincinnati a portion of the canal so that a street might be laid. The city built the street, and Fox, alleging that the project ruined his lease, sued the city. The city responded that the State had implicitly rescinded Fox's lease by abandoning the canal. Fox replied that, if this were so, the grant was void because it deprived him of property without due process of law and without just compensation. Id., at 785.
The Court perceived the issue to be "whether there is anything in the lease . . . which prevents the State from making such an abandonment." Ibid.. It answered the question in the negative. The State could abandon the canal whenever the "public necessities" justified abandonment. Ibid. No specific provision in the lease was required "because the right to abandon followed necessarily from the right to build. . . . Every lessee of power took his lease and put up his improvements with full notice of the reserved right of the State to discontinue its canal and stop his supply of water." Id., at 786. See Kirk v. Providence Mill Co., 279 U.S. 807, 49 S.Ct. 511, 73 L.Ed. 969 (1929); Kirk v. Maumee Valley Co., 279 U.S. 797, 49 S.Ct. 507, 73 L.Ed. 963 (1929). If a State may abandon a canal without invading the "property" of a lessee of its waters, it also generally may "abandon" a college. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), or a high school, Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975), or a nursing home Medicaid provider.
7
The need for expeditious removal of patients from unsafe and unhealthful homes surely is substantial. See Lieberman, Relocation Research and Social Policy, 14 The Gerontologist 494, 500 (1974) ("Taking individuals out of environments that were sterile and barren and putting them into environments that were more humanizing and demanding produced positive results"). And providing procedures at the usual "meaningful time and in a meaningful manner," Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965), will inevitably delay beneficial transfer of some nursing home residents. See Brown, An Appraisal of the Nursing Home Enforcement Process, 17 Ariz.L.Rev. 304, 337 (1975) ("While the cases granting a prior hearing [to nursing home operators] seem to reflect judicial concern for the consequences of the proposed action on the patients of the affected facility, the effect has been to allow patients to remain in seriously deficient homes undercutting enforcement activities aimed at remedying these deficiencies"); id., at 338 ("because the homes may be expected to use any available delaying tactics, the process proceeds at a snail's pace").
8
"General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule." Bi-Metallic Investment Co. v. State Board, 239 U.S. 441, 445, 36 S.Ct. 141, 142, 60 L.Ed. 372 (1915). Of course, we cannot ignore that this generalization does not always work well in practice. Thus, the Court has recognized that "prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities." United States v. Carolene Products Co., 304 U.S. 144, 153, n. 4, 58 S.Ct. 778, 784, n. 4, 82 L.Ed. 1234 (1938). While nursing home patients may indeed make up a "minority," they are not so much the victims of social prejudice as of physical infirmity and social neglect. Moreover, concerned friends and relatives or organized interest groups may, and often do, step forward to protect the interests of nursing home patients.
9
Although basic analytical differences divide the Court and me, I am heartened by the Court's seeming recognition that most, if not all, of the factors I have identified and explained may figure, in future cases, in due process analysis. See ante, at 789-790, n. 22.
10
I question whether the life and liberty issue decided by the Court is properly presented. The District Court refused to extend a preliminary injunction after a brief hearing. In that court, the plaintiffs only touched on the concept of transfer trauma. There was no explicit argument that the patients were threatened with a deprivation of life or liberty; rather, the danger of transfer trauma was noted only as a circumstance raising a likelihood of irreparable injury justifying injunctive relief. See Memorandum of Law in Support of Application for Temporary Restraining Order and Motion for Preliminary Injunction (filed July 20, 1977) (asserting only "taking of property without due process"). The transfer trauma studies cited to this Court were not cited to the District Judge. Testimony regarding transfer trauma was limited to the little-explained assertion of an expert witness that removal would subject some patients in the group to endangerment of their lives or aggravation of their illnesses. App. 252a-253a. In the Court of Appeals, the patients again did not contend that decertification exposed them to a deprivation of life or liberty. See Reply Brief for Appellants in No. 77-2221 et al. (CA3), p.10 (raising only "property interest" argument). It is to be remembered that this case arises from the refusal to extend a preliminary injunction—an order preceded by limited development of the record and not guided by focused presentation of legal arguments. "[T]his Court above all others must limit its review of interlocutory orders." Goldstein v. Cox, 396 U.S. 471, 478, 90 S.Ct. 671, 675, 24 L.Ed.2d 663 (1970).
11
Blackstone, whose vision of liberty unquestionably informed the Framers of the Bill of Rights, see Gannett Co. v. DePasquale, 443 U.S. 368, 424, 99 S.Ct. 2898, 2929, 61 L.Ed.2d 608 (1979) (opinion concurring in part and dissenting in part), wrote that "[t]he right of personal security consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation." 1 W. Blackstone, Commentaries *129 (emphasis added).
12
The Court observes that "the fact that the decertification of a home may lead to severe hardship for some of its elderly residents does not turn the decertification into a governmental decision to impose that harm." Ante, at 789. I question the relevance of this observation. When the government erroneously commits a person to a mental hospital, it is not "deci[ding] to impose . . . harm" either. But we have recognized that the risk that such action "may lead to severe hardship" is sufficiently great to justify a hearing for the transferee. Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980).
13
See Borup, Gallego & Heffernan, Relocation and its Effect on Mortality, 19 The Gerontologist 135, 136 (1979) (noting that 6 previous studies found increased mortality rates, while 12 did not: "findings have been ambiguous and appear to be contradictory"); id., at 138 (concluding on basis of new study that "relocation does not increase the probability of mortality"); Bourestom & Tars, Alterations in Life Patterns Following Nursing Home Relocation, 14 The Gerontologist 506 (1974); Lieberman, Relocation Research and Social Policy, 14 The Gerontologist 494, 495 (1974).
*
It is no answer to say that respondents' only right is to stay in a qualified home, ante, at 785, because whether the home is qualified is precisely the issue to be determined. Nor is it an answer to say that respondents are third parties not "directly" affected by the governmental action. Ante, at 786-788. As the Court admits, the regulatory scheme operates for the direct benefit of the patients, ante, at 789-790, n. 22, and it generates expectations and reliance just as deserving of protection as other statutory entitlements.
| 34
|
447 U.S. 667
100 S.Ct. 2406
65 L.Ed.2d 424
UNITED STATES, Petitioner,v.Herman RADDATZ.
No. 79-8.
Argued Feb. 25, 1980.
Decided June 23, 1980.
Rehearing Denied Aug. 22, 1980.
See 448 U.S. 916, 101 S.Ct. 36.
Syllabus
Prior to his trial on federal criminal charges, respondent moved to suppress certain incriminating statements he had made to police officers and federal agents. Over objections, the District Court referred the motion to a Magistrate for an evidentiary hearing pursuant to a provision of the Federal Magistrates Act, 28 U.S.C. § 636(b)(1), which authorizes a district court to refer such a motion to a magistrate and thereafter to determine and decide such motion based on the record developed before the magistrate, including the magistrate's proposed findings of fact and recommendations. Section 636(b)(1) also provides that the judge shall make a "de novo determination" of those portions of the magistrate's report, findings, or recommendations to which objection is made, and that the judge may accept, reject, or modify, in whole or in part, the magistrate's findings or recommendations; alternatively the judge may receive further evidence or recommit the matter to the magistrate with instructions. Based on his view of the credibility of the testimony at the hearing on respondent's motion, the Magistrate found that respondent had knowingly, intelligently, and voluntarily made the inculpatory statements and recommended that the motion to suppress be denied. Over respondent's objections to the Magistrate's report, the District Court accepted the recommendation and denied the motion to suppress, stating that it had considered the transcript of the Magistrate's hearing, the parties' proposed findings of fact, conclusions of law, and supporting memoranda, the Magistrate's recommendation, and oral argument of counsel. Respondent was then tried and convicted, but the Court of Appeals reversed, holding, inter alia, that respondent had been deprived of due process by the District Court's failure personally to hear the controverted testimony on the motion to suppress.
Held :
1. Under the statute—which calls for "de novo determination," not a de novo hearing—the District Court was not required to rehear the testimony on which the Magistrate based his findings and recommendations in order to make an independent evaluation of credibility. The legislative history discloses that Congress purposefully used the word determination rather than hearing, believing that Art. III was satisfied if the ultimate adjudicatory determination was reserved to the Art. III officer, and that Congress intended to permit whatever reliance the judge, in the exercise of sound judicial discretion, chose to place on the magistrate's proposed findings and recommendations. Pp. 673-676.
2. The statute strikes the proper balance between the demands of due process under the Fifth Amendment and the constraints of Art. III. Pp. 677-684.
(a) The nature of the issues presented and the interests implicated in a motion to suppress evidence do not require, as a matter of due process, that the district judge must actually hear the challenged testimony. While the resolution of a suppression motion may determine the outcome of the case, the interests underlying a voluntariness hearing do not coincide with the criminal law objective of determining guilt or innocence, but are of a lesser magnitude than those in the criminal trial itself. The due process rights claimed here are adequately protected by the statute, under which the district judge alone acts as the ultimate decisionmaker, with the broad discretion to accept, reject, or modify the magistrate's proposed findings, or to hear the witnesses live to resolve conflicting credibility claims. The statutory scheme also includes sufficient procedures to alert the district court whether to exercise its discretion to conduct a hearing and view the witnesses itself. Pp. 677-681.
(b) Although the statute permits the district court to give the magistrate's proposed findings of fact and recommendations such weight as their merit commands and the sound discretion of the judge warrants, that delegation does not violate Art. III so long as the ultimate decision is made by the district court. Congress has not sought to delegate the task of rendering a final decision on a suppression motion to a non-Art. III officer, but instead has made clear that the district court has plenary discretion whether to authorize a magistrate to hold an evidentiary hearing and that the magistrate acts subsidiary to and only in aid of the court, the entire process thereafter taking place under the court's total control and jurisdiction. Pp. 681-683.
592 F.2d 976, reversed.
Andrew J. Levander, Washington, D. C., for petitioner, pro hac vice, by special leave of Court.
Joan B. Gottschall, Chicago, Ill., for respondent.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari, 444 U.S. 824, 100 S.Ct. 44, 62 L.Ed.2d 30, to resolve the constitutionality of a provision of the Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(B), which permits a district court to refer to a magistrate a motion to suppress evidence and authorizes the district court to determine and decide such motion based on the record developed before a magistrate, including the magistrate's proposed findings of fact and recommendations.
2
* Respondent Raddatz was indicted on March 31, 1977, in the Northern District of Illinois for unlawfully receiving a firearm in violation of 18 U.S.C. § 922(h). Prior to trial, respondent moved to suppress certain incriminating statements he had made to police officers and to agents of the Bureau of Alcohol, Tobacco, and Firearms. Over his objections, the District Court referred the motion to a Magistrate for an evidentiary hearing pursuant to the Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(B).
3
The evidence received at the suppression hearing disclosed that on August 8, 1976, two police officers responded to a report of a crime in progress. When they arrived at the scene, they observed respondent standing next to one Jimmy Baston, who was lying on the street, bleeding from the head. Respondent was placed under arrest for illegal use of a weapon and was given Miranda warnings. The arresting officers testified that respondent explained at the time of his arrest and after the warning that he had been fighting with Baston over a family dispute and had brought the gun with him in case any of Baston's friends tried to interfere.
4
In due course, state charges were filed against respondent. One month later, on November 19, 1976, Agents Russell and McCulloch of the Bureau of Alcohol, Tobacco, and Firearms interviewed respondent at his home. According to their testimony at the suppression hearing, the agents had been informed by state officials that a state firearms charge was pending against respondent. The agents questioned respondent about the gun found in his possession at the time he was arrested because it had at one time been owned by an out-of-state man who had been slain in an unsolved homicide. At this interview, respondent gave a different version of the events, stating that he had seized the gun from Baston during their August 8 fight and that he did not know where Baston had obtained a gun. The agents asked respondent to help them locate Baston and told him they would inform the United States Attorney of his cooperation if he were subsequently prosecuted.
5
Respondent's testimony before the Magistrate concerning the November 19 interview varied from that of the federal agents. According to his testimony, he was informed that he would shortly be indicted for violations of federal firearms laws, but that if he agreed to cooperate, "somebody would talk to the prosecutor, and it would be dismissed." He also testified that he was told that if he did not agree to help, he could find himself "going to the Federal penitentiary for a long time."
6
On January 12, 1977, respondent telephoned the agents and requested a meeting. At this interview, he retracted his November 19 version and stated that he had not taken the gun from Baston, but had obtained it from his half-brother. He testified at the suppression hearing that he made the incriminating statements at the January 12 meeting only after first obtaining confirmation from the agents of their November 19 promise that the indictment would be dismissed if he cooperated. The agents testified that no such promise was ever made to respondent, either on November 19 or on January 12. They testified that at the January 12 meeting respondent agreed to act as an informant and that they gave him $10 at that time to assist him in gathering information.
7
A final meeting occurred on January 14, 1977. Respondent returned to the local offices of the Bureau of Alcohol, Tobacco, and Firearms, accompanied by his wife and children. He was informed by Agent McCulloch that his case had been referred to the United States Attorney for prosecution. The agents again discussed with him the possibility of his becoming an informant, and repeated their promise that any cooperation would be brought to the attention of the United States Attorney. Agent McCulloch gave respondent $50 to pay expenses of acquiring information.
II
8
The focus of respondent's legal argument at the suppression hearing was that under Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964), and Bram v. United States, 168 U.S. 532, 542-543, 18 S.Ct. 183, 186-187, 42 L.Ed. 568 (1897), his confession was not freely and voluntarily given. He contended that he had been induced to utter the incriminating statements through a promise of immunity and sought to demonstrate a course of conduct on the part of the agents supportive of such a promise.
9
In his report and findings, the Magistrate recommended that the motion to suppress the statements made on August 8, November 19, and January 12 be denied. He made findings that respondent had knowingly, intelligently, and voluntarily made inculpatory statements on all three occasions. Moreover, the Magistrate specifically stated: "I find the testimony of the Alcohol, Tobacco and Firearms Agent more credible . . . ; I find that Federal agents never advised [respondent] that charges against him would be dismissed, if he cooperated." App. to Pet. for Cert. 41a. The evidence before the Magistrate showed that respondent had altered his version of events on several occasions.
10
Respondent filed objections to the Magistrate's report. In rendering its decision, the District Court stated that it considered the transcript of the hearing before the Magistrate on the motion to suppress, the parties' proposed findings of fact, conclusions of law, and supporting memoranda, and that it read the recommendation of the Magistrate and heard oral argument of counsel. Finding "that the three statements given by the defendant and sought to be suppressed were made voluntarily," the District Court accepted the recommendation of the Magistrate and denied the motion to suppress.
11
By agreement of the parties, the court tried respondent on the basis of the transcript of the suppression hearing, and stipulations that the firearm had been manufactured in Florida and that respondent had been convicted of eight felonies. He was found guilty and sentenced to six months' imprisonment to be followed by four and one-half years on probation.
12
The Court of Appeals reversed. 592 F.2d 976. It first rejected the statutory arguments, holding that the District Court had the power to refer to a magistrate the motion to suppress and did not abuse its discretion under the statute in deciding the issue without hearing live testimony of disputed questions of fact. Turning to the constitutional issues, the court held that the referral provisions of the Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(B), did not violate Art. III of the Constitution because the statute required the District Court to make a de novo determination of any disputed portion of the magistrate's proposed findings and recommendations. However, the Court of Appeals held that respondent had been deprived of due process by the failure of the District Court personally to hear the controverted testimony. Where credibility is crucial to the outcome, "the district court cannot constitutionally exercise its discretion to refuse to hold a hearing on contested issues of fact in a criminal case." 592 F.2d, at 986. The District Court was directed to hold a new hearing.
III
13
We first address respondent's contention that under the statute, the District Court was required to rehear the testimony on which the Magistrate based his findings and recommendations in order to make an independent evaluation of credibility. The relevant statutory provisions authorizing a district court to refer matters to a magistrate and establishing the mode of review of the magistrate's actions are in 28 U.S.C. § 636(b)(1). In § 636(b)(1)(A), Congress provided that a district court judge could designate a magistrate to "hear and determine" any pretrial matter pending before the court, except certain "dispositive" motions. Review by the district court of the magistrate's determination of these nondispositive motions is on a "clearly erroneous or contrary to law" standard.
14
Certain "dispositive" motions, including a "motion . . . to suppress evidence in a criminal case," are covered by § 636(b)(1)(B). As to these "dispositive" motions, the district judge may "designate a magistrate to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of [the] motion." However, the magistrate has no authority to make a final and binding disposition. Within 10 days after the magistrate files his proposed findings and recommendations, any party may file objections. The statute then provides:
15
"A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions." § 636(b)(1) (emphasis added).
16
It should be clear that on these dispositive motions, the statute calls for a de novo determination, not a de novo hearing. We find nothing in the legislative history of the statute to support the contention that the judge is required to rehear the contested testimony in order to carry out the statutory command to make the required "determination."1 Congress enacted the present version of § 636(b) as part of the 1976 amendments to the Federal Magistrates Act in response to this Court's decision in Wingo v. Wedding, 418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed.2d 879 (1974). Wingo held that as a matter of statutory construction, the 1968 Magistrates Act did not authorize magistrates to hold evidentiary hearings in federal habeas corpus cases. Congress amended the Act "in order to clarify and further define the additional duties which may be assigned to a United States Magistrate in the discretion of a judge of the district court." S.Rep.No.94-625, p. 1 (1976) (hereinafter S.Rep.); H.R.Rep.No.94-1609, p. 2 (1976) (hereinafter H.R.Rep.), U.S.Code Cong. & Admin.News 1976, p. 6162.
17
The bill as reported out of the Senate Judiciary Committee did not include the language requiring the district court to make a de novo determination.2 Rather, it included only the language permitting the district court to "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." Yet the Senate Report which accompanied the bill emphasized that the purpose of the bill's language was to vest "ultimate adjudicatory power over dispositive motions" in the district court while granting the "widest discretion" on how to treat the recommendations of the magistrate. S.Rep., at 10.
18
The House Judiciary Committee added to the Senate bill the present language of the statute, providing that the judge shall make a "de novo determination" of contested portions of the magistrate's report upon objection by any party. According to the House Report, "[t]he amendment states expressly what the Senate implied: i. e. that the district judge in making the ultimate determination of the matter, would have to give fresh consideration to those issues to which specific objection has been made by a party." The Report goes on to state, quite explicitly, what was intended by "de novo determination":
19
"The use of the words 'de novo determination' is not intended to require the judge to actually conduct a new hearing on contested issues. Normally, the judge, on application, will consider the record which has been developed before the magistrate and make his own determination on the basis of that record, without being bound to adopt the findings and conclusions of the magistrate. In some specific instances, however, it may be necessary for the judge to modify or reject the findings of the magistrate, to take additional evidence, recall witnesses, or recommit the matter to the magistrate for further proceedings." H.R.Rep., at 3, U.S.Code Cong. & Admin.News 1976, p. 6163.
20
Further evidence that Congress did not intend to require the district court to rehear the witnesses is provided in the House Committee Report's express adoption of the Ninth Circuit's procedures for district court review of a magistrate's credibility recommendations as announced in Campbell v. United States District Court for the Northern District of California, 501 F.2d 196, cert. denied, 419 U.S. 879, 95 S.Ct. 143, 42 L.Ed.2d 119 (1974). There, in language quoted in the Committee Report, the court had stated: " 'If [the district court] finds there is a problem as to the credibility of a witness or witnesses or for other good reasons, it may, in the exercise of its discretion, call and hear the testimony of a witness or witnesses in an adversary proceeding. It is not required to hear any witness and not required to hold a de novo hearing of the case.' " H.R.Rep., at 3-4 (emphasis added), U.S.Code Cong. & Admin.News 1976, p. 6163, quoting 501 F.2d, at 206.3
21
Congressional intent, therefore, is unmistakable. Congress focused on the potential for Art. III constraints in permitting a magistrate to make decisions on dispositive motions. See S.Rep., at 6; H.R.Rep., at 8. The legislative history discloses that Congress purposefully used the word determination rather than hearing, believing that Art. III was satisfied if the ultimate adjudicatory determination was reserved to the district court judge. And, in providing for a "de novo determination" rather than de novo hearing, Congress intended to permit whatever reliance a district judge, in the exercise of sound judicial discretion, chose to place on a magistrate's proposed findings and recommendations. See Mathews v. Weber, 423 U.S. 261, 275, 96 S.Ct. 549, 556, 46 L.Ed.2d 483 (1976).
IV
22
Having rejected respondent's statutory argument, we turn to his constitutional challenge. He contends that the review procedures established by § 636(b)(1) permitting the district court judge to make a de novo determination of contested credibility assessments without personally hearing the live testimony, violate the Due Process Clause of the Fifth Amendment and Art. III of the United States Constitution.
A.
23
The guarantees of due process call for a "hearing appropriate to the nature of the case." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). The issue before us, therefore, is whether the nature of the issues presented and the interests implicated in a motion to suppress evidence require that the district court judge must actually hear the challenged testimony. The core of respondent's challenge to the statute is that "[t]he one who decides must hear." Morgan v. United States, 298 U.S. 468, 481, 56 S.Ct. 906, 912, 80 L.Ed. 1288 (1936). Here, he contends, only the magistrate "hears," but the district court is permitted to "decide" by reviewing the record compiled before the magistrate and making a final determination.
24
In Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976), we emphasized that three factors should be considered in determining whether the flexible concepts of due process have been satisfied: (a) the private interests implicated; (b) the risk of an erroneous determination by reason of the process accorded and the probable value of added procedural safeguards; and (c) the public interest and administrative burdens, including costs that the additional procedures would involve. In providing the fullest measure of due process protection, the Court of Appeals stressed that in this particular case the success or failure of the motion to suppress would, as a practical matter, determine the outcome of the prosecution.
25
Of course, the resolution of a suppression motion can and often does determine the outcome of the case; this may be true of various pretrial motions. We have repeatedly pointed out, however, that the interests underlying a voluntariness hearing do not coincide with the criminal law objective of determining guilt or innocence.4 See, e. g., United States v. Janis, 428 U.S. 433, 453-454, 96 S.Ct. 3021, 3031-3032, 49 L.Ed.2d 1046 (1976); United States v. Peltier, 422 U.S. 531, 535-536, 538-539, 95 S.Ct. 2313, 2316, 2317-2318, 45 L.Ed.2d 374 (1975); Rogers v. Richmond, 365 U.S. 534, 540-544, 81 S.Ct. 735, 739-741, 5 L.Ed.2d 760 (1961). In Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972), we considered whether the prosecution was required to prove beyond a reasonable doubt that a confession was voluntary. In holding that a preponderance of the evidence was sufficient, we stated that "the purpose that a voluntariness hearing is designed to serve has nothing whatever to do with improving the reliability of jury verdicts." Id., at 486, 92 S.Ct., at 625. Accord, Jackson v. Denno, 378 U.S. 368, 384-385, 84 S.Ct. 1774, 1785, 12 L.Ed.2d 908 (1964), holding that the "reliability of a confession has nothing to do with its voluntariness." A defendant who has not prevailed at the suppression hearing remains free to present evidence and argue to—and may persuade—the jury that the confession was not reliable and therefore should be disregarded.5 See 18 U.S.C. § 3501(a).6
26
This Court on other occasions has noted that the interests at stake in a suppression hearing are of a lesser magnitude than those in the criminal trial itself. At a suppression hearing, the court may rely on hearsay and other evidence, even though that evidence would not be admissible at trial. United States v. Matlock, 415 U.S. 164, 172-174, 94 S.Ct. 988, 993-994, 39 L.Ed.2d 242 (1974); Brinegar v. United States, 338 U.S. 160, 172-174, 69 S.Ct. 1302, 1309-1310, 93 L.Ed. 1879 (1949); Fed.Rules Evid. 104(a), 1101(d)(1). Furthermore, although the Due Process Clause has been held to require the Government to disclose the identity of an informant at trial, provided the identity is shown to be relevant and helpful to the defense, Roviaro v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 627-628, 1 L.Ed.2d 639 (1957), it has never been held to require the disclosure of an informant's identity at a suppression hearing. McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967). We conclude that the process due at a suppression hearing may be less demanding and elaborate than the protections accorded the defendant at the trial itself.
27
To be sure, courts must always be sensitive to the problems of making credibility determinations on the cold record. More than 100 years ago, Lord Coleridge stated the view of the Privy Counsel that a retrial should not be conducted by reading the notes of the witnesses' prior testimony:
28
"The most careful note must often fail to convey the evidence fully in some of its most important elements. . . . It cannot give the look or manner of the witness: his hesitation, his doubts, his variations of language, his confidence or precipitancy, his calmness or consideration; . . . the dead body of the evidence, without its spirit; which is supplied, when given openly and orally, by the ear and eye of those who receive it." Queen v. Bertrand, 4 Moo.P.C.N.S. 460, 481, 16 Eng.Rep. 391, 399 (1867).
29
This admonition was made with reference to an appellate court's review of a nisi prius judge in a trial on the merits; here we are dealing with a situation more comparable to a special master's findings or actions of an administrative tribunal on findings of a hearing officer.
30
The Court of Appeals rejected an analogy to administrative agency cases because of its view that the interest inherent in a suppression motion was often the equivalent, as a practical matter, of the trial itself. Our view of the due process demands of a motion to suppress evidence makes those agency cases relevant, although to be sure we do not suggest that the interests inherent in administrative adjudications are always equivalent to those implicated in a constitutional challenge to the admissibility of evidence in a criminal case. Generally, the ultimate factfinder in administrative proceedings is a commission or board, and such trier has not heard the witnesses testify. See, e. g., 5 U.S.C. § 557 (general rule under the Administrative Procedure Act); 29 U.S.C. § 160(c) (National Labor Relations Board); 33 U.S.C. § 921(b)(3) (Benefits Review Board); 17 CFR § 201.17(g)(2) (1979) (Securities and Exchange Commission). While the commission or board—or an administrator—may defer to the findings of a hearing officer, that is not compelled. See, e. g., Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333, 350-351, 58 S.Ct. 904, 912-913, 82 L.Ed. 1381 (1938); Morgan v. United States, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288 (1936); Utica Mutual Ins. Co. v. Vincent, 375 F.2d 129, 132 (CA2) (Friendly, J.), cert. denied, 389 U.S. 839, 88 S.Ct. 63, 19 L.Ed.2d 102 (1967).
31
We conclude that the due process rights claimed here are adequately protected by § 636(b)(1). While the district court judge alone acts as the ultimate decisionmaker, the statute grants the judge the broad discretion to accept, reject, or modify the magistrate's proposed findings. That broad discretion includes hearing the witnesses live to resolve conflicting credibility claims. Finally, we conclude that the statutory scheme includes sufficient procedures to alert the district court whether to exercise its discretion to conduct a hearing and view the witnesses itself.7
B
32
In passing the 1976 amendments to the Federal Magistrates Act, Congress was alert to Art. III values concerning the vesting of decisionmaking power in magistrates.8 Accordingly, Congress made clear that the district court has plenary discretion whether to authorize a magistrate to hold an evidentiary hearing and that the magistrate acts subsidiary to and only in aid of the district court. Thereafter, the entire process takes place under the district court's total control and jurisdiction.
33
We need not decide whether, as suggested by the Government, Congress could constitutionally have delegated the task of rendering a final decision on a suppression motion to a non-Art. III officer. See Palmore v. United States, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973). Congress has not sought to make any such delegation. Rather, Congress has provided that the magistrate's proposed findings and recommendations shall be subjected to a de novo determination "by the judge who . . . then exercise[s] the ultimate authority to issue an appropriate order." S.Rep., at 3. Moreover, "[t]he authority—and the responsibility—to make an informed, final determination . . . remains with the judge." Mathews v. Weber, 423 U.S., at 271, 96 S.Ct., at 554.
34
On his Art. III claim, Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598 (1932), and its progeny offer little comfort to respondent.9 There, the Court stated that "[i]n cases brought to enforce constitutional rights, the judicial power of the United States necessarily extends to the independent determination of all questions, both of fact and law, necessary to the performance of that supreme function." Id., at 60, 52 S.Ct., at 296. See also Ng Fung Ho v. White, 259 U.S. 276, 42 S.Ct. 492, 66 L.Ed. 938 (1922).10 While stating that "the enforcement of constitutional rights requires that the Federal court should determine such an issue upon its own record and the facts elicited before it," 285 U.S., at 64, 52 S.Ct., at 597, the Court pointedly noted a "distinction of controlling importance" between records formed before administrative agencies and those compiled by officers of the court such as masters in chancery or commissioners in admiralty where the proceeding is "constantly subject to the court's control." We view the statutory scheme here as rendering a magistrate's recommendations more analogous to a master or a commissioner than to an administrative agency for Art. III purposes.11
35
Moreover, four years later, in St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 56 S.Ct. 720, 80 L.Ed. 1033 (1936), Mr. Chief Justice Hughes substantially cut back on the Court's Crowell holding, which he had authored, and on which respondent relies. The question there was whether administrative rate regulations were unconstitutionally confiscatory. While reaffirming his statement that administrative agencies cannot finally determine "constitutional facts," Mr. Chief Justice Hughes noted:
36
"But this judicial duty to exercise an independent judgment does not require or justify disregard of the weight which may properly attach to findings [by an administrative body] upon hearing and evidence. On the contrary, the judicial duty is performed in the light of the proceedings already had and may be greatly facilitated by the assembling and analysis of the facts in the course of the legislative determination." 298 U.S., at 53, 56 S.Ct., at 726.
37
See also Estep v. United States, 327 U.S. 114, 122-123, 66 S.Ct. 423, 427, 90 L.Ed. 567 (1946). Thus, although the statute permits the district court to give to the magistrate's proposed findings of fact and recommendations "such weight as [their] merit commands and the sound discretion of the judge warrants," Mathews v. Weber, supra, 423 U.S., at 275, 96 S.Ct., at 556, that delegation does not violate Art. III so long as the ultimate decision is made by the district court.
38
We conclude that the statute strikes the proper balance between the demands of due process and the constraints of Art. III. Accordingly, the judgment of the Court of Appeals is
39
Reversed.
40
Mr. Justice BLACKMUN, concurring.
41
While I join the Court's opinion, my analysis of the due process issue differs somewhat from that set forth therein, and I write separately to articulate it. The Court seems to focus on the diminished importance of pretrial suppression motions and the acceptability in some agency proceedings of decisionmaking without personal observation of witnesses. For me, these considerations are of less importance than the practical concern for accurate results that is the focus of the Due Process Clause. In testing the challenged procedure against that criterion, I would distinguish between instances where the district court rejects the credibility-based determination of a magistrate and instances, such as this one, where the court adopts a magistrate's proposed result.1
42
In the latter context, the judge accurately can be described as a "backup" jurist whose review serves to enhance reliability and benefit the defendant. Respondent was afforded procedures by which a neutral decisionmaker, after seeing and hearing the witnesses, rendered a decision.2 After that decisionmaker found against him, respondent received a second turn, albeit on a cold record, before another neutral decisionmaker. In asking us to invalidate the magistrate program, respondent in effect requests removal of the second level of procedural protections afforded him and others like him.3 In my view, such a result would tend to undermine, rather than augment, accurate decisionmaking. It therefore is not a result I could embrace under the Due Process Clause.
43
Although Mr. Justice MARSHALL ably argues that this characterization of the magistrate procedure clashes with Art. III, I am not persuaded. As the Court observes, the handling of suppression motions invariably remains completely in the control of the federal district court. The judge may initially decline to refer any matter to a magistrate. When a matter is referred, the judge may freely reject the magistrate's recommendation. He may rehear the evidence in whole or in part. He may call for additional findings or otherwise "recommit the matter to the magistrate with instructions." See 28 U.S.C. § 636(b)(1). Moreover, the magistrate himself is subject to the Art. III judge's control. Magistrates are appointed by district judges, § 631(a), and subject to removal by them, § 631(h). In addition, district judges retain plenary authority over when, what, and how many pretrial matters are assigned to magistrates, and "[e]ach district court shall establish rules pursuant to which the magistrates shall discharge their duties." § 636(b)(4). Thus, the only conceivable danger of a "threat" to the "independence" of the magistrate comes from within, rather than without, the judicial department.
44
It is also significant that the Magistrates Act imposes significant requirements to ensure competency and impartiality, §§ 631(b), (c), and (i), 632, 637 (1976 ed. and Supp.II), including a rule generally barring reduction of salaries of full-time magistrates, § 634(b). Even assuming that, despite these protections, a controversial matter might be delegated to a magistrate who is susceptible to outside pressures, the district judge—insulated by life tenure and irreducible salary—is waiting in the wings, fully able to correct errors. Under these circumstances, I simply do not perceive the threat to the judicial power or the independence of judicial decisionmaking that underlies Art. III. We do not face a procedure under which "Congress [has] delegate[d] to a non-Art. III judge the authority to make final determinations on issues of fact." Post, at 703 (dissenting opinion). Rather, we confront a procedure under which Congress has vested in Art. III judges the discretionary power to delegate certain functions to competent and impartial assistants, while ensuring that the judges retain complete supervisory control over the assistants' activities.
45
Mr. Justice POWELL, concurring in part and dissenting in part.
46
I agree with the Court's interpretation of the Federal Magistrates Act in Part III of its opinion. The terms and legislative record of § 636(b)(1) plainly indicate that Congress intended to vest broad discretion in the district courts to decide whether or not to rehear witnesses already heard by a magistrate in a suppression proceeding.
47
The Court recognizes that "serious questions" would be raised if a district judge rejected a magistrate's proposed findings on credibility. See ante, at 681, n.7. But the Court finds no error in this case, where the District Court accepted the Magistrate's judgment on credibility. I would reach a different conclusion. Under the standards set out in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976), due process requires a district court to rehear crucial witnesses when, as in this case, a suppression hearing turns only on credibility. As Mr. Justice MARSHALL points out in his dissenting opinion, the private interests at stake in a suppression hearing often are substantial. Moreover, the risk of erroneous deprivation of rights is real when a decider of fact has not heard and observed the crucial witnesses. The value of hearing and seeing those witnesses testify is undeniable. Finally, the government interest in limiting rehearing is not sufficient to outweigh these considerations.
48
In sum, I agree with Mr. Justice MARSHALL's statement that, under the Due Process Clause of the Fifth Amendment, a hearing requirement should be imposed
49
"only in situations in which the case turns on issues of credibility that cannot be resolved on the basis of a record. . . . If the district judge offered a statement of reasons presenting his independent view of the facts and explaining in some reasoned manner why it was not necessary for him to hear the witnesses in order to adopt that view, it would be an exceptionally rare case in which an abuse of discretion should be found." Post, at 701-702.*
50
I would affirm the judgment of the Court of Appeals on this ground.
51
Mr. Justice STEWART, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.
52
A federal indictment was returned charging the respondent, who had previously been convicted of a felony, with unlawfully receiving a firearm in violation of 18 U.S.C. § 922(h)(1). Before the trial, the respondent filed in the District Court a motion to suppress various incriminating statements he had made to agents of the Federal Bureau of Alcohol, Tobacco, and Firearms.1 Pursuant to the Federal Magistrates Act (Act), 28 U.S.C. § 636(b)(1),2 the District Judge referred this motion to a Magistrate, who held an evidentiary hearing and then recommended that the respondent's motion be denied. Without taking further evidence the District Judge accepted the Magistrate's recommendation and denied the motion to suppress. The Court of Appeals reversed, holding that the respondent was constitutionally entitled to a hearing by the judge before his suppression motion could be denied. Today this Court reverses that judgment. I dissent, because I believe that the statute itself required a hearing before the judge in this case.
53
The statute provides that a district judge, in ruling on a motion to suppress, "shall make a de novo determination of those portions of the [magistrate's] report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1) (emphasis added). It is my view that the judge could not make the statutorily required "de novo determination" of the critically contested factual issues in this case without personally observing the demeanor of the witnesses.
54
At the hearing before the Magistrate the respondent testified that he had made the incriminating statements to the federal agents only because they promised that he would not be prosecuted if he cooperated, and offered to employ him as an informer. The agents gave a different version of the relevant events. They expressly testified that at no time was the respondent ever told that he would not be prosecuted. Instead, according to the agents, he was simply told that any assistance he might provide would be mentioned to the United States Attorney. Their story also undermined the respondent's testimony that he had been offered employment as an informer before he made the incriminating statements.
55
If the respondent's testimony was true, his motion to suppress evidence of his incriminating statements should have been granted. See Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653; Bram v. United States, 168 U.S. 532, 542-543, 18 S.Ct. 183, 186-187, 42 L.Ed. 568. The Magistrate, however, did not believe him, expressly finding that "the testimony of the Alcohol, Tobacco and Firearms agent[s is] more credible" and that the "Federal agents never advised Raddatz that charges against him would be dismissed, if he cooperated." In concluding for this reason that the motion should be denied, the Magistrate properly exercised the authority granted him by 28 U.S.C. § 636(b)(1)(B) "to submit . . . proposed findings of fact and recommendations for the disposition" of the suppression motion. But the Act also empowered the respondent to object to these findings. He did so, and the responsibility then devolved on the District Judge to "make a de novo determination" of the contested issues of fact.
56
The phrase "de novo determination" has an accepted meaning in the law. It means an independent determination of a controversy that accords no deference to any prior resolution of the same controversy. Thus, in Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 23, 94 S.Ct. 1028, 1040, 39 L.Ed.2d 123, the Court had occasion to define "de novo proceeding" as a review that was "unfettered by any prejudice from the [prior] agency proceeding and free from any claim that the [agency's] determination is supported by substantial evidence."3 And, in United States v. First City National Bank, 386 U.S. 361, 368, 87 S.Ct. 1088, 1093, 18 L.Ed.2d 151, this Court observed that "review de novo" means "that the court should make an independent determination of the issues" and should "not . . . give any special weight to the [prior] determination of" the administrative agency.4
57
Here, the District Judge was faced with a transcript that contained two irreconcilable accounts of the critical facts. Neither version was intrinsically incredible or, for that matter, less plausible on its face than the other. Moreover, there was in the record no evidence inherently more trustworthy than that supported by human recollection. In these circumstances, the District Judge could not make the statutorily mandated "de novo determination" without being exposed to the one kind of evidence that no written record can ever reveal—the demeanor of the witnesses.5 In declining to conduct a hearing in this case, the District Judge thus necessarily gave the Magistrate's prior assessment of credibility the kind of "special weight" that the "de novo determination" standard does not permit.
58
Contrary to the Court's assertion, nothing in the legislative history of the 1976 amendments to the Federal Magistrates Act compels a different conclusion. Congress, to be sure, explicitly rejected a version of the ultimately enacted bill that would have required a district judge always to "hear de novo" those aspects of the case whose proposed resolution by the magistrate dissatisfied one or more of the parties. Compare S.Rep.No.94-625, p. 2 (1976) (hereinafter S.Rep.) (bill as reported by Senate Committee on the Judiciary), with S.1283, 94th Cong., 1st Sess. (1975) (bill as originally introduced by Senator Burdick). Moreover, as the Court points out, the Report of the House Judiciary Committee says that "[t]he use of the words 'de novo determination' is not intended to require the judge to actually conduct a new hearing on contested issues." H.R.Rep.No.94-1609, p. 3 (1976) (hereinafter H.R.Rep.), U.S.Code Cong. & Admin.News 1976, p. 6163.
59
Other passages in the legislative history, however, make clear that these indications of legislative intent comport with the plain language of the statute. As the Senate and House Reports emphasize, "the ultimate adjudicatory power over" suppression and other dispositive motions is to be "exercised by [a district] judge . . . after receiving assistance from and the recommendation of the magistrate." S.Rep., at 10; H.R.Rep., at 11, U.S.Code Cong. & Admin.News 1976, p. 6171. Thus, according to the House Report, a district judge, "in making the ultimate determination of the matter, would have to give fresh consideration to those issues to which specific objection has been made by a party." Id., at 3, U.S.Code Cong. & Admin.News 1978, p. 6163 (emphasis supplied). The Report describes this responsibility as follows:
60
"Normally, the judge . . . will consider the record which has been developed before the magistrate and make his own determination on the basis of that record . . . . In some specific instances, however, it may be necessary for the judge . . . to take additional evidence, recall witnesses. . . ." Ibid. (emphasis supplied).
61
See also 122 Cong.Rec. 35182 (1976) (Rep. Railsback). It is thus evident that Congress anticipated that occasions would arise when a district judge could not make the requisite "do novo determination" without hearing the evidence himself.6
62
Congress' prime objective in 1976 was to overrule this Court's decision in Wingo v. Wedding, 418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed.2d 879, which had interpreted the then existing Federal Magistrates Act as barring a magistrate from holding an evidentiary hearing on a petition for habeas corpus. See S.Rep., at 3, 9; H.R.Rep., at 5, 11. The 1976 Act thus granted magistrates the power to take evidence on matters like habeas corpus petitions and motions to suppress. By enacting such legislation, Congress obviously anticipated that hearings conducted by magistrates would in many instances obviate the need for district judges to take evidence as well.
63
It does not follow, however, that Congress told district judges that they need not conduct hearings in every case where an evidentiary hearing has been conducted by a magistrate, regardless of the circumstances. Instead, Congress expressly limited the "clearly erroneous" standard of review to pretrial motions that are termed non-"dispositive" in the Act's legislative history, see S.Rep., at 7, 9-10; H.R.Rep., at 9, 10-11, and excluded habeas corpus petitions, motions to suppress, and other important motions from that category, see 28 U.S.C. § 636(b)(1).
64
The Court suggests that a plain reading of the statutory language would, as a practical matter, frustrate the Act's objective of alleviating the increasing congestion of litigation in the district courts. But, as I interpret the statutory language, district judges need not always hold evidentiary hearings in order properly to dispose of suppression motions. Although many motions to suppress turn on issues of credibility, many do not. A suppression motion predicated, for instance, on the claim that a search warrant was not supported by an adequate affidavit could normally be resolved without the taking of any testimony.
65
More importantly, the "de novo determination" requirement of the Federal Magistrates Act applies to a much wider range of motions and applications than simply pretrial motions to suppress.7 Some of these—such as motions to dismiss for failure to state a claim, motions for judgment on the pleadings, and motions for summary judgment—presume as a legal matter the lack of any need for an evidentiary hearing, even at the magistrate's level. Others—such as motions for injunctive relief, motions to dismiss or quash an indictment, motions to dismiss or to permit maintenance of a class action, motions to dismiss an action involuntarily, applications for post-trial relief made by those convicted of criminal offenses, and petitions by prisoners challenging conditions of confinement—could often, as a practical matter, be granted or denied by a district court on the strength alone of the transcript of the magistrate's hearing and his recommendation. Thus, contrary to the Court's suggestion, the plain reading I would give to the pertinent statutory language would not equate "de novo determination" with "de novo hearing."
66
Since I believe that the plain language of the statute required the District Judge in this case to hear the conflicting factual testimony of the witnesses, I would affirm the judgment of the Court of Appeals.
67
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins dissenting.
68
I agree with my Brother STEWART that the statutory provision for "a de novo determination of . . . specified proposed findings . . . to which objection is made," 28 U.S.C. § 636(b)(1), should be construed to require the district court to conduct an evidentiary hearing when there are case-dispositive issues of credibility that cannot be resolved on the basis of the record compiled before the magistrate. I write separately to express my view that unless the Act is construed in that fashion, its application in this case is impermissible under the Due Process Clause of the Fifth Amendment and under Art. III.
69
In my view, the Due Process Clause requires that a judicial officer entrusted with finding the facts in a criminal case must hear the testimony whenever a fair resolution of disputed issues cannot be made on the basis of a review of the cold record. Accordingly, if the Act permits the district judge not to hear the witnesses, but at the same time requires him to make a de novo determination of the facts, its application violates the Due Process Clause in any case that turns on issues of credibility that cannot be resolved on the written record. This infirmity cannot be avoided by interpreting the Act to allow the district judge to give final effect to the magistrate's findings on issues of credibility. Such an interpretation would render the Act fatally inconsistent with Art. III of the Constitution, which entitles a criminal defendant in a federal court to an independent determination of the case-dispositive facts by an Art. III judge.
70
* The Court of Appeals held that the unconsented referral of the suppression motion to the Magistrate was not an unlawful delegation of the federal judicial power to a non-Art. III judge. To reach this conclusion, it relied on its understanding that the Act required the District Judge to make a de novo determination of all contested issues. At the same time, it concluded that the Due Process Clause required the District Judge to hear the witnesses before making a de novo determination of the facts. The Court rejects this conclusion in an analysis suggesting that the individual's interest in vindicating his right against compulsory self-incrimination is an unimportant one. I disagree.
A.
71
One of the most deeply engrained principles in Anglo-American jurisprudence requires that an official entrusted with finding facts must hear the testimony on which his findings will be based. As I explained in Swisher v. Brady, 438 U.S. 204, 229-233, 98 S.Ct. 2699, 2713-2716, 57 L.Ed.2d 705 (1978) (dissenting opinion),1 our constitutional tradition rejects the notion that factual findings in criminal cases may be made by an official who acts in isolation and on the basis of a cold record.
72
The principle that "[t]he one who decides must hear," Morgan v. United States, 298 U.S. 468, 481, 56 S.Ct. 906, 912, 80 L.Ed. 1288 (1936), is supported by two distinct rationales. First, judicial factfinding on the basis of a written record carries an intolerably high risk of error. Any experienced lawyer is aware that findings of fact frequently rest on impressions of demeanor and other factors which do not appear on the face of the record. As the Court stated in Holiday v. Johnston, 313 U.S. 342, 352, 61 S.Ct. 1015, 1018, 85 L.Ed. 1392 (1941), "[o]ne of the essential elements of the determination of the crucial facts is the weighing and appraising of the testimony." Accordingly, the Court has rejected the proposition "that an appraisal of the truth of the [witness'] oral testimony by a master or commissioner is, in the light of the purpose and object of the proceeding, the equivalent of the judge's own exercise of the function of the trier of the facts." See also Wingo v. Wedding, 418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed.2d 879 (1974); United States v. Oregon Medical Society, 343 U.S. 326, 339, 72 S.Ct. 690, 698, 96 L.Ed. 978 (1952); Dyer v. MacDougall, 201 F.2d 265, 268-269 (CA2 1952).
73
The principle is not, however, based solely on the constitutional interest in accurate factfinding. It also derives from the notion that, as a matter of basic fairness, a person facing the prospect of grievous loss is entitled to relate his version of the facts to the official entrusted with judging its accuracy. The Due Process Clause "promot[es] participation and dialogue . . . in the decisionmaking process." Marshall v. Jerrico, Inc., 446 U.S. 238, 242, 100 S.Ct. 1610, 1613, 64 L.Ed.2d 182 (1980), by ensuring that individuals adversely affected by governmental action may confront the ultimate decisionmaker and thus play some part in formulating the ultimate decision. See Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978); Board of Curators, Univ. of Mo. v. Horowitz, 435 U.S. 78, 103, n. 15, 98 S.Ct. 948, 961, 55 L.Ed.2d 124 (1978) (MARSHALL, J., concurring in part and dissenting in part).2 In this respect, the requirement that a finder of facts must hear the testimony offered by those whose liberty is at stake derives from deep-seated notions of fairness and human dignity. See Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 170, 71 S.Ct. 624, 647, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring). A rule that would allow a criminal defendant to face a jail sentence on the basis of factual findings made by one who has not heard the evidence is, in my view, foreign to notions of fair adjudicative procedure embodied in the Due Process Clause.3
74
I do not, of course, mean to suggest that a district judge must hear the witnesses in every case, or even in all cases in which issues of credibility are raised. An actual rehearing would be required only in cases involving case-dispositive issues that are impossible to resolve on the basis of the written record. But as my Brother STEWART demonstrates, the District Judge could not make an independent finding in this case without hearing the witnesses. Neither respondent's nor the agents' story carried inherent indicia of reliability. Both accounts suffered from inconsistencies. In the end the issue was solely one of credibility. On the basis of the cold record, the District Judge had no basis for determining whether the respondent or the agents were telling the truth. He was required, therefore, either blindly to accept the Magistrate's findings as to matters of credibility or to flip a coin. The first course is forbidden by the statute and by Art. III;4 the second is forbidden by the requirements of fair adjudicative procedure that the Due Process Clause reflects.
B
75
It is true that the principle that "[t]he one who decides must hear" should not be applied with mechanical rigidity. Administrators are permitted to base factual findings on a record compiled before a hearing examiner who does not play a role in formulating the ultimate findings. See Morgan v. United States, 298 U.S. 468, 481, 56 S.Ct. 906, 912, 80 L.Ed. 1288 (1936); 2 K. Davis, Administrative Law Treatise § 11.02 (1958). Similar qualifications of the principle have been recognized by lower courts in certain civil contexts. See, e. g., Utica Mutual Ins. Co. v. Vincent, 375 F.2d 129 (CA2), cert. denied, 389 U.S. 839, 88 S.Ct. 63, 19 L.Ed.2d 102 (1967) (National Labor Relations Board determination of proper unit in a representation election). The Court errs, however, in suggesting that those exceptions provide support for the decision announced today. In a number of the cases in which such exceptions have been permitted, the factual issues to be resolved did not at all depend on issues of credibility; the demeanor of the witnesses was entirely irrelevant. See examples cited ante, at 680. And in other cases, the factfinder was not entrusted, as was the District Judge here, with making a de novo determination, but was instead permitted to give appropriate deference to the conclusions of the official who conducted the hearing. See 2 K. Davis, supra, § 10.04.
76
I am aware of no case, and the Court cites none, in which a federal court has upheld a procedure in which a judge is required to conduct a de novo determination without hearing the witnesses when the factual issues have turned on issues of credibility that cannot be fairly resolved on the basis of the record. Under such a procedure, the judge's determination is so inevitably arbitrary, and so plainly a blind guess, that I believe it to be prohibited by the Due Process Clause under any circumstances. But even if I were not so persuaded, the answer in the present context would be clear, for the simple reason that this case is criminal in nature. It is, of course, in such cases that the need for scrupulous observance of procedural safeguards is greatest. Whatever the appropriate limits of the principle that the factfinder must hear the witnesses where demeanor evidence is critical, the principle is fully applicable to criminal cases.
77
As the Court correctly observes, see ante, at 677, under Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976), the determination of "what process is due" turns on a balancing of three factors: "[f]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." The Court recites this test, but it does not even attempt to apply it.
78
Instead, the Court resolves the due process issue solely by distinguishing a motion to suppress evidence from a criminal trial. See ante, at 677-681. To state the obvious point that guilt or innocence is not determined in a suppression hearing, however, is only the beginning of the inquiry. That fact does not render the interest of both the defendant and the public in vindicating the right against compulsory self-incrimination an unimportant one, or make it analogous to other interests, such as those involved in a securities transaction, that have been thought to merit comparatively little due process protection, see ante, at 680. Mathews contemplates and requires a thorough inquiry into the three factors it specifies rather than the conclusory approach taken by the Court today.
79
The private interests at stake here are hardly insignificant. The suppression hearing was conducted to determine whether the agents had violated respondent's privilege against self-incrimination, an interest that the Constitution singles out for special protection and that our cases recognize as fundamentally important. See, e. g., Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Moreover, respondent's liberty was wholly dependent on whether the trier of fact believed his account of his confession rather than that of the agents. The subsequent history of the case confirms this fact. As my Brother POWELL has explained: "In our criminal justice system as it has developed, suppression hearings often are as important as the trial which may follow. The government's case may turn upon the confession or other evidence that the defendant seeks to suppress, and the trial court's ruling on such evidence may determine the outcome of the case." Gannett Co. v. DePasquale, 443 U.S. 368, 397, n. 1, 99 S.Ct. 2898, 2914, 61 L.Ed.2d 608 (1979) (POWELL, J., concurring). See also id., at 434, 99 S.Ct., at 2933 (BLACKMUN, J., dissenting in part). Indeed, Congress itself recognized the importance of suppression motions by providing for a de novo determination by the district judge.
80
Second, both the risk of an erroneous deprivation and the probable value of the additional safeguard were substantial. The issues presented here could not be resolved de novo solely on the basis of the record. As my Brother STEWART suggests, the case was a classic swearing match: the only issues were ones of credibility. The risk of error could be minimized only if the District Judge heard the witnesses himself.
81
The Court itself confirms that if the judge does not hear the witnesses his decisions on credibility issues can only be a blind guess, when it intimates that a district judge may not reject a magistrate's findings without hearing the witnesses. See ante, at 680-681. The sole distinction that can be drawn between accepting the magistrate's findings and rejecting them is that in the former case the district judge is deferring to the magistrate. But the Court rejects this distinction by asserting, in order to avoid the Art. III objection, that in either event it is the district judge who "[makes] the ultimate decision." See ante, at 683.
82
Finally, the governmental interest—essentially one of administrative convenience—is not in this context substantial. The Court of Appeals' holding would not require the district judge to hear the witnesses whenever objection is made to the magistrate's findings. A rehearing requirement would be imposed only in situations in which the case turns on issues of credibility that cannot be resolved on the basis of a record. Nor is there much force to the Government's argument that an occasional rehearing of the witnesses would impose an intolerable burden on the district courts.5 Finally, I would afford the district judge considerable discretion to determine whether a rehearing of the witnesses was required in order for him to make the requisite de novo determination. If the district judge offered a statement of reasons presenting his independent view of the facts and explaining in some reasoned manner why it was not necessary for him to hear the witnesses in order to adopt that view, it would be an exceptionally rare case in which an abuse of discretion should be found.
83
In this case, it is plain that a de novo determination could not be made without hearing the witnesses. I am therefore brought to the conclusion that the Due Process Clause required the District Judge to rehear the witnesses. Indeed, a contrary conclusion would suggest that, save for the criminal trial itself, there may be no settings in which the principle that "[t]he one who decides must hear" will carry force.
84
In Speiser v. Randall, 357 U.S. 513, 520, 78 S.Ct. 1332, 1339, 2 L.Ed.2d 1460 (1958), we observed that "the outcome of a lawsuit—and hence the vindication of legal rights—depends more often on how the factfinder appraises the facts than on a disputed construction of a statute or interpretation of a line of precedents." By today's decision, the Court permits the vindication of Fifth Amendment rights to depend on a form of bureaucratic factfinding foreign to our constitutional traditions. I am unwilling to join in that enterprise.
II
85
The due process infirmity cannot be remedied by interpreting the statute to permit the district judge to give final effect to the magistrate's findings on issues of credibility. Such an interpretation would render the Act fatally inconsistent with Art. III of the Constitution. The Court attempts to avoid this conclusion by suggesting that the district judge retains "control" of the suppression motion and by indicating that Art. III in any event does not prohibit a federal court from giving final effect to a magistrate's findings of fact. I find neither argument convincing.
A.
86
At the outset, it is important to observe that the Court's suggestion that "a magistrate's recommendations [are] analogous to [those of] a master or a commissioner," ante, at 682-683, is highly misleading. If the motion to suppress turns on issues of credibility that cannot be resolved on the basis of the record, and if the district judge does not hear the witnesses, the magistrate's report is no mere "recommendation." Unless the district judge ventures a blind guess, that report is effectively the final determination of the facts underlying the suppression motion. For this reason, it is simply incorrect to say that the "ultimate decision is made by the district court." Ante, at 683. This case squarely presents the issue whether, in a criminal case tried in federal court, Congress may delegate to a non-Art. III judge the authority to make final determinations on issues of fact.
87
Article III vests the "judicial Power of the United States . . . in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." It provides that judges "both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office."
88
The rationale underlying the tenure and salary protections of Art. III has often been stated and need not be rehearsed in detail here. But it is worth remembering that the Framers of the Constitution believed that those protections were necessary in order to guarantee that the judicial power of the United States would be placed in a body of judges insulated from majoritarian pressures and thus able to enforce constitutional principles without fear of reprisal or public rebuke. See The Federalist Nos. 78 and 79; Glidden Co. v. Zdanok, 370 U.S. 530, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962) (plurality opinion); O'Donoghue v. United States, 289 U.S. 516, 530, 53 S.Ct. 740, 743, 77 L.Ed. 1356 (1933).
89
In this case it is agreed that magistrates are not Art. III judges. Appointed by the judges of the district court, they serve 8-year terms. They are subject to removal by the judges of the district court for "incompetency, misconduct, neglect of duty, or physical or mental disability." If the Judicial Conference concludes that "the services performed by his office are no longer needed," 28 U.S.C. § 631(h), a magistrate's office may be terminated. None of these factors, of course, suggests that a magistrate will be unable to perform his assigned tasks fairly and in accordance with constitutional principles. But there can be no doubt that one holding the office of magistrate is unprotected by the safeguards that the Framers regarded as indispensable to assuring the independence of the federal judiciary.
90
It is true that a number of our decisions have recognized Congress' authority to create legislative tribunals unprotected by the tenure and salary provisions of Art. III. See Glidden Co. v. Zdanok, supra, 370 U.S., at 543-552, 82 S.Ct., at 1469-1473, and cases cited. Those decisions do not, however, provide any support for the proposition that Congress may, with respect to suppression hearings in criminal cases, displace the federal judiciary and entrust the finding of case-dispositive facts to a non-Art. III tribunal. The rationale of our decisions involving legislative courts has been far more limited, focusing on Congress' plenary power over specialized areas of geography or subject matter and on the manifest need for a more flexible tribunal to perform adjudicatory functions in those areas. See generally 370 U.S., at 543-552, 82 S.Ct., at 1469-1474. Nor has the Court suggested that it will defer blindly to a congressional determination that an alternative tribunal is necessary. "The touchstone of decision in all these cases has been the need to exercise the jurisdiction then and there and for a transitory period. Whether constitutional limitations on the exercise of judicial power have been held inapplicable has depended on the particular local setting, the practical necessities, and the possible alternatives." Id., at 547-548, 82 S.Ct., at 1471. Thus "the requirements of Art. III, which are applicable where laws of national applicability and affairs of national concern are at stake, must in proper circumstances give way to accommodate plenary grants of power to Congress to legislate with respect to specialized areas having particularized needs and warranting distinctive treatment." Palmore v. United States, 411 U.S. 389, 407-408, 93 S.Ct. 1670, 1681, 36 L.Ed.2d 342 (1973) (emphasis added). Congress has never attempted to displace Art. III courts when laws of nationwide applicability were involved, and nothing in our prior decisions suggest that it may constitutionally do so.6
91
Our decision in United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8 (1955), confirms that there are severe limits on Congress' authority to displace Art. III courts. In that case the Government attempted to try a civilian ex-serviceman in a military tribunal. The Court agreed that Congress' authority under Art. I, § 8, cl. 14, "To make Rules for the Government and Regulation of the land and naval Forces" permitted it to subject persons in the Armed Services to trial by court-martial. Nonetheless, it concluded that the clause should not be construed to encompass civilian ex-servicemen. Such a construction, the Court held, "necessarily encroaches on the jurisdiction of federal courts set up under Article III of the Constitution." Id., at 15, 76 S.Ct., at 4. The Court emphasized that "[t]he provisions of Article III were designed to give judges maximum freedom from possible coercion or influence by the executive or legislative branches of the Government." Id., at 16, 76 S.Ct., at 5. Accordingly, Congress' power to circumvent criminal trials in Art. III tribunals would not "be inferred through the Necessary and Proper Clause," but would instead call "for limitation to 'the least possible power adequate to the end proposed,' " id., at 22-23, 76 S.Ct., at 8 (emphasis omitted), quoting Anderson v. Dunn, 6 Wheat. 204, 231, 5 L.Ed. 242 (1821). The Quarles decision has been applied in other contexts to limit sharply Congress' power to try civilians in Art. I courts. See Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957) (civilian dependents living with servicemen on military base may not be tried in Art. I court); O'Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969) (crimes that are not service connected may not be tried in Art. I court). In my view, Quarles and its progeny foreclose the conclusion that Congress may use its Art. I powers to create legislative tribunals in order to divest Art. III courts of their authority to conduct federal criminal proceedings.
B
92
As the Court observes, see ante, at 681, Congress has not in this case attempted to substitute magistrates for Art. III judges on a wholesale basis. The district court retains authority over questions of law. Under the Court's construction, it is also compelled to make a de novo determination of the facts, to the extent that that task can be performed on the basis of an evidentiary record. Reasoning by analogy from the context of masters and commissioners, the Court suggests that the retained power of the district court is sufficient to satisfy the requirements of Art. III. As I have explained, however, when a district judge does not hear the witnesses, it is the magistrate who makes the final determination of factual questions in any case involving issues of credibility that cannot be resolved on the basis of the record. The Court's conclusion must therefore rest on an understanding that the requirements of Art. III were fully applicable when the issues are ones of law, but not when the issues are factual in nature. See ante, at 683. I am unable to discern any such distinction in Art. III or in any other provision of the Constitution.
93
As the Court rightly observes, the primary case relevant to the question is Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598 (1932). There the Court upheld the constitutionality of an administrative scheme by which deputy commissioners adjudicated compensation claims under the Longshoremen's and Harbor Workers' Compensation Act, but at the same time ruled that the federal district court must find de novo whether a master-servant relationship existed and whether the injury occurred on the navigable waters of the United States. Mr. Chief Justice Hughes, speaking for the Court, did rely on the "historic practice" of permitting the courts to be assisted in factual findings by masters and commissioners, id., at 51, 52 S.Ct., at 292. But the Court's opinion in Crowell provides no authority for the statutory scheme upheld today.
94
The Court in Crowell expressly rejected the proposition that Congress had authority to displace the federal judiciary by removing all questions of fact from Art. III courts. "In cases brought to enforce constitutional rights, the judicial power of the United States necessarily extends to the independent determination of all questions, both of fact and law, necessary to the performance of that supreme function." Id., at 60, 52 S.Ct., at 296. The Court's reasoning on this point bears quotation in full:
95
"[T]he question is not the ordinary one as to the propriety of provision for administrative determinations. . . . It is rather a question of the appropriate maintenance of the Federal judicial power in requiring the observance of constitutional restrictions. It is the question whether the Congress may substitute for constitutional courts, in which the judicial power of the United States is vested, an administrative agency . . . for the final determination of the existence of the facts upon which the enforcement of the constitutional rights of the citizen depend. The recognition of the utility and convenience of administrative agencies for the investigation and finding of facts within their proper province, and the support of their authorized action, does not require the conclusion that there is no limitation of their use, and that the Congress could completely oust the courts of all determinations of fact by vesting the authority to make them with finality in its own instrumentalities or in the Executive Department. That would be to sap the judicial power as it exists under the Federal Constitution, and to establish a government of a bureaucratic character alien to our system, wherever fundamental rights depend, as not infrequently they do depend, upon the facts, and finality as to facts becomes in effect finality in law." Id., at 56-57, 52 S.Ct., at 294-295.
96
The Court relied on Ng Fung Ho v. White, 259 U.S. 276, 42 S.Ct. 492, 66 L.Ed. 938 (1922), where it held that persons involved in deportation proceedings and claiming to be citizens of the United States are constitutionally entitled to a de novo judicial determination of their factual claims. "[W]hen fundamental rights are in question, this Court has repeatedly emphasized 'the difference in security of judicial over administrative action.' " Crowell v. Benson, supra, 285 U.S., at 61, 52 S.Ct., at 296, quoting Ng Fung Ho v. White, supra, at 285, 42 S.Ct., at 495. In this respect, the Court found that its earlier discussion of the historical use of masters and commissioners was irrelevant, for even as to factual issues "their reports are essentially advisory, a distinction of controlling importance when questions of a fundamental character are in issue." Crowell v. Benson, supra, 285 U.S., at 61, 52 S.Ct., at 296.
97
In his celebrated dissent, Mr. Justice Brandeis rejected the view that the particular factual issues in Crowell were ones that must constitutionally by resolved de novo in an Art. III court. He did agree, however, that there are some issues of fact which must be found independently in an Art. III court. "[U]nder certain circumstances," he stated, "the constitutional requirement of due process is a requirement of judicial process." 285 U.S., at 87, 52 S.Ct., at 306. As he explained in a subsequent opinion: "A citizen who claims that his liberty is being infringed is entitled, upon habeas corpus, to the opportunity of a judicial determination of the facts. And, so highly is this liberty prized, that the opportunity must be accorded to any resident of the United States who claims to be a citizen." St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 77, 56 S.Ct. 720, 737, 80 L.Ed. 1033 (1936) (concurring opinion) (emphasis added).7
98
It may fairly be said that in certain respects at least, Mr. Justice Brandeis' views in Crowell and St. Joseph Stock Yards have become the law. It can no longer be claimed that a person is entitled under Art. III or the Due Process Clause to a de novo judicial determination of the facts in every case that implicates constitutional rights. Yet neither Crowell nor Ng Fung Ho has been overruled, and the Court has cited both with approval in recent years. See Agosto v. INS, 436 U.S. 748, 753, 98 S.Ct. 2081, 2085, 56 L.Ed.2d 677 (1978); Atlas Roofing Co. v. Occupational Safety and Health Review Comm'n, 430 U.S. 442, 450, n. 7, 97 S.Ct. 1261, 1266, 51 L.Ed.2d 464 (1977). Cf. Hampton v. Mow Sun Wong, 426 U.S. 88, 118, 96 S.Ct. 1895, 1912, 48 L.Ed.2d 495 (1976) (REHNQUIST, J., dissenting); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 102, and n. 20, 93 S.Ct. 2628, 2657, 37 L.Ed.2d 446 (1973) (BRENNAN, J., dissenting).8 There is no basis, then, for a conclusion that there are no circumstances in which a person is entitled to a determination of the facts by an Art. III court. In my view, both Mr. Chief Justice Hughes and Mr. Justice Brandeis were correct on one of the few propositions on which they were in agreement in Crowell: that there remain some cases in which an opportunity for an independent judicial determination of the facts is constitutionally required.
99
The Court's conclusion to the contrary appears premised on its perception that, under the Act, effective control of suppression motions remains in the hands of district judges, and the submission of "recommendations" by magistrates is a relatively mechanical task for which the special characteristics of an Art. III judge are unnecessary. But in view of the likely finality of the magistrate's decision and the importance of factfinding to the process of legal decision, that view is unsupportable. As I have explained, in cases like this one the magistrate's decision is effectively unreviewable if the district judge does not hear the witnesses. The fact that the judge is permitted to hear the witnesses is an irrelevance in any case in which he does not do so. Moreover, the Court has emphasized that the vindication of constitutional rights more frequently depends on findings of fact than abstract principles of law. See Speiser v. Randall, 357 U.S., at 520, 78 S.Ct., at 1338. And it cannot seriously be suggested that the majoritarian pressures the Framers sought to avoid by the tenure and salary protections of Art. III become inapplicable when the relevant question is one of fact. Indeed, it is precisely in resolving constitutional issues that are dependent on questions of credibility as between a government official and one accused of crime that a detached and independent arbiter may be most indispensable. A contrary conclusion would mean that the protections of Art. III, viewed as so fundamental by the Framers of the Constitution, were intended to apply solely to appellate judges.
C
100
Since I reject the suggestion that every issue of fact may be removed from Art. III courts and submitted instead to federal magistrates, the question remains whether a suppression hearing is one of the admittedly few contexts in which independent factfinding by an Art. III judge is constitutionally required. I believe that it is.
101
As noted above, Mr. Justice Brandeis would have restricted the requirement of independent judicial factfinding to situations in which personal liberty was at stake, such as habeas corpus and deportation. I agree that for both criminal cases and deportation, a citizen is constitutionally entitled to an independent determination of the case-dispositive facts by an Art. III court. My conclusion is based on two factors, the nature of the issue and the individual interest in a determination by an Art. III judge.9 Resolution of the issues involved in criminal cases and deportation proceedings does not require specialization or expertise in an area in which a federal judge is untrained. Moreover, the Framers adopted Art. III precisely in order to protect individual interests of the sort involved here.10 In my view, the independence provided by Art. III is hardly dispensable in finding facts underlying a motion to suppress evidence on Fifth Amendment grounds. Nor, for these purposes, is it possible to distinguish between suppression motions and the trial itself; as experience shows, the primary issues in a criminal case often deal with whether evidence should be excluded because illegally obtained. I am therefore brought to the conclusion that the Constitution entitled respondent to an independent judicial determination of the facts on which his motion to suppress was based.11
III
102
The Court's holding today is undoubtedly influenced by its sympathy with Congress' perception that the assistance of federal magistrates was a necessary measure to ensure that the already severe pressures on the federal district courts do not become overwhelming. I too sympathize with that concern. And I applaud the conspicuous and conscientious legislative effort to conform to the dictates of the Constitution by ensuring maximum control of suppression motions by the federal district courts. I agree with my Brother STEWART that § 636 1) should be construed to avoid the constitutional objections and to require the district court to call witnesses when a fair resolution of the facts is not otherwise possible.
103
The Court's unwillingness to construe the relevant provision in this fashion may be attributable to an understandable desire to minimize existing burdens on federal district judges, burdens that may seem especially unnecessary with respect to the gathering and evaluation of the facts. But the replacement of Art. III judges with magistrates, even if the replacement extends only to the finding of facts, erodes principles that strike near the heart of the constitutional order. In such contexts considerations of administrative cost are least forceful, and the Court must be most wary lest principles that were meant to endure be sacrificed to expediency. I would affirm the decision of the Court of Appeals.
1
Before the Court of Appeals, respondent apparently conceded that the statute permits the procedures employed here. His statutory arguments in the Court of Appeals were that the reference was invalid because not made pursuant to required enabling rules and that the Court of Appeals should exercise its supervisory powers to prohibit the procedure employed. That court rejected both arguments, and he has pursued neither before this Court.
2
As originally introduced in the Senate, the bill provided that upon request by a party to a proceeding before a magistrate, the district "court shall hear de novo those portions of the report or specific proposed findings of fact or conclusions of law to which objection is made." S. 1283, 94th Cong., 1st Sess. (1975) (emphasis added). As reported out of the Senate Judiciary Committee, however, this language, including the word "hear," was deleted.
3
We conclude that to construe § 636(b)(1) to require the district court to conduct a second hearing whenever either party objected to the magistrate's credibility findings would largely frustrate the plain objective of Congress to alleviate the increasing congestion of litigation in the district courts. We cannot "impute to Congress a purpose to paralyze with one hand what it sought to promote with the other." Clark v. Uebersee Finanz-Korporation, 332 U.S. 480, 489, 68 S.Ct. 174, 178, 92 L.Ed. 88 (1947).
4
Under the Fifth Amendment, a criminal defendant may not be compelled to testify against himself. In that sense, the exclusion of involuntary confessions derives from the Amendment itself. United States v. Janis, 428 U.S. 433, 443, 96 S.Ct. 3021, 3026, 49 L.Ed.2d 1046 (1976).
5
Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972), also rejected the argument that because of the high value society places on the constitutional right to be free from compulsory self-incrimination, due process requires proof of voluntariness beyond a reasonable doubt. This Court found no indication that federal rights would suffer from determining admissibility by a preponderance of the evidence.
6
Nothing in the Magistrates Act or other statute precludes renewal at trial of a motion to suppress evidence even though such motion was denied before trial. A district court's authority to consider anew a suppression motion previously denied is within its sound judicial discretion. See generally Gouled v. United States, 255 U.S. 298, 312, 41 S.Ct. 261, 266, 65 L.Ed. 647 (1921); Rouse v. United States, 123 U.S.App.D.C. 348, 359 F.2d 1014 (1966).
7
Neither the statute nor its legislative history reveals any specific consideration of the situation where a district judge after reviewing the record in the process of making a de novo "determination" has doubts concerning the credibility findings of the magistrate. The issue is not before us, but we assume it is unlikely that a district judge would reject a magistrate's proposed findings on credibility when those findings are dispositive and substitute the judge's own appraisal; to do so without seeing and hearing the witness or witnesses whose credibility is in question could well give rise to serious questions which we do not reach.
8
The Committee Reports noted several instances prior to the 1976 amendments where Congress had vested in officers of the court, other than the judge, the power to exercise discretion in performing an adjudicatory function, "subject always to ultimate review by a judge of the court," citing 11 U.S.C. § 67(c) (reference to bankruptcy referee) and 28 U.S.C. § 1920 (power of clerk of court to tax costs). By analogy, Congress reasoned that permitting the exercise of an adjudicatory function by a magistrate, subject to ultimate review by the district court, would also pass constitutional muster. S.Rep., at 6; H.R.Rep., at 8.
9
In Crowell, in reviewing the constitutionality of the delegation of factfinding to administrative officers to consider claims under the Longshoremen's and Harbor Workers' Compensation Act, the Court was concerned that Congress could not reach beyond the constitutional limits which are inherent in the admiralty and maritime jurisdiction. It stated that unless the injuries to which the Act relates occurred upon the navigable waters of the United States, they would fall outside that jurisdiction. 285 U.S., at 55, 52 S.Ct., at 294.
10
The Crowell Court rejected a wholesale attack on any delegation of factfinding to the administrative tribunal. It noted that "there is no requirement that, in order to maintain the essential attributes of the judicial power, all determinations of fact in constitutional courts shall be made by judges." Id., at 51-52, 52 S.Ct., at 292.
11
In exercising our original jurisdiction under Art. III, we appoint special masters who may be either Art. III judges or members of the Bar; the role of the master is, for these purposes, analogous to that of a magistrate. The master is generally charged to "take such evidence as may be . . . necessary," Nebraska v. Iowa, 379 U.S. 996, 85 S.Ct. 716, 13 L.Ed.2d 699 (1965), and to "find the facts specially and state separately his conclusions of law thereon." Mississippi v. Louisiana, 346 U.S. 862, 74 S.Ct. 102, 98 L.Ed. 374 (1953). In original cases, as under the Federal Magistrates Act, the master's recommendations are advisory only, yet this Court regularly acts on the basis of the master's report and exceptions thereto.
1
This is not to say that a district court's rejection of a magistrate's recommendation in favor of a defendant will inevitably violate the Due Process Clause.
2
The magistrate, of course, makes only a recommendation, rather than a formal decision. But, at least in this context, I see no reason to believe that the process of "recommending" is more susceptible to error than "finally deciding." And even if we were to speculate that some additional risk of error inheres in "recommending," I would conclude that it is more than offset by the doublecheck provided by the district judge and the congressional determination that this procedure permits independent judicial evaluation of suppression motions while conserving scarce judicial resources.
3
Certainly respondent does not have a due process right to have an Art. III judge resolve all factual issues surrounding his suppression motion. If he did, virtually every decision on a suppression motion in a state court would violate the Due Process Clause.
*
The classic situation requiring a hearing de novo is when the record of a suppression proceeding contains little beyond a "swearing contest." In many cases, however, the entire record will contain additional evidence—direct or circumstantial—that fully supports the magistrate's recommendation. In those cases, the district court may decide, within its sound discretion, not to hear witnesses.
1
The respondent also moved to suppress certain statements the Government claimed he had made to Chicago police officers shortly after his arrest. At the suppression hearing, the respondent denied having ever made such remarks. A Chicago police officer testified to the contrary, making the issue one for determination at trial by the trier of fact.
2
Title 28 U.S.C. § 636(b)(1) provides:
"Notwithstanding any provision of law to the contrary—
"(A) a judge may designate a magistrate to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate's order is clearly erroneous or contrary to law.
"(B) a judge may also designate a magistrate to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subparagraph (A), of applications for postrial [sic] relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement.
"(C) the magistrate shall file his proposed findings and recommendations under subparagraph (B) with the court and a copy shall forthwith be mailed to all parties.
"Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions."
3
In Renegotiation Board v. Bannercraft Clothing Co., the Court was construing the following language in the Renegotiation Act of 1951 as amended:
"Any contractor . . . aggrieved by an order of the Board [of Renegotiation] determining the amount of excessive profits received or accrued by such contractor . . . may—
* * * * *
file a petition with the Court of Claims for a redetermination thereof. . . . A proceeding before the Court of Claims to finally determine the amount, if any, of excessive profits shall not be treated as a proceeding to review the determination of the Board, but shall be treated as a proceeding de novo. . . ." 65 Stat. 21, as amended, 50 U.S.C.App. § 1218.
4
In United States v. First City National Bank the Court was construing 12 U.S.C. § 1828(c)(7)(A), which provides that in an antitrust action brought under the Bank Merger Act of 1966 the court "shall review de novo the issues presented."
5
In other contexts, the Courts of Appeals have held that critical issues of credibility can be resolved only by personally hearing live testimony. See, e. g., Weahkee v. Perry, 190 U.S.App.D.C. 359, 370, 587 F.2d 1256, 1267 (1978) (Title VII of Civil Rights Act of 1964); Hackley v. Roudebush, 171 U.S.App.D.C. 376, 427, and n. 202, 520 F.2d 108, 159, and n. 202 (1975) (same); Pignatello v. Attorney General, 350 F.2d 719, 723-724 (CA2 1965) (Immigration and Nationality Act).
6
Nothing in the passage from the opinion of the Court of Appeals in Campbell v. United States District Court, 501 F.2d 196, 206-207 (CA9 1974), that is quoted in the House Report can be read to mean anything different. In Campbell, the court said that a district court "may, in the exercise of its discretion, call and hear the testimony of a witness or witnesses" when "it finds there is a problem as to the credibility of a witness or witnesses or for other good reasons." Nothing said in Campbell, however, implied that a district judge's failure to call a witness or witnesses is invariably permissible.
7
See n. 2, supra.
1
Swisher involved a Maryland procedure whereby a master first made factual findings with respect to the issue of juvenile delinquency, and a judge subsequently conducted a de novo review of the evidence. The judge's review was confined to the record, with the exception that he could receive additional evidence when the parties did not object. The Court held that the procedure did not violate the double Jeopardy Clause, but reserved the due process issue on the ground that it was not properly presented. Writing for myself and my Brothers BRENNAN and POWELL, I expressed the view that the issue was before us and that the procedure violated the due process principle that, where demeanor evidence is critical, the ultimate factfinder in a criminal case must hear the witnesses on whose testimony his findings will be based.
2
Cf. Michelman, Formal and Associational Aims in Procedural Due Process, in J. Pennock & J. Chapman, Due Process: Nomos XVIII, pp. 126-171 (1977). I do not, of course, mean to suggest that all adverse effects fall within the categories of "life, liberty, [and] property" under the Fifth and Fourteenth Amendments. In recent years the Court has held that those terms encompass only so-called statutory entitlements and certain kinds of grievous losses. See Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980); cf. PruneYard Shopping Center v. Robins, 447 U.S. 74, 93-94, and n. 2, 100 S.Ct. 2035, 2047, and n. 2, 64 L.Ed.2d 741 (MARSHALL, J., concurring).
3
The principle that deference must be paid to the findings of the official who hears the testimony is reflected in a wide variety of areas of the law. Under Rule 52 of the Federal Rules of Civil Procedure, a trial court's factual findings may be reversed only when "clearly erroneous," a standard that reflects the common understanding that "[f]ace to face with living witnesses the original trier of the facts holds a position of advantage from which appellate judges are excluded. In doubtful cases the exercise of his power of observation often proves the most accurate method of ascertaining the truth." United States v. Oregon Medical Society, 343 U.S. 326, 339, 72 S.Ct. 690, 698, 96 L.Ed. 978 (1952). For this reason, the successor of a trial judge who has resigned or died after the conclusion of a trial is ordinarily barred from resolving factual disputes on the basis of the trial transcript. Brennan v. Grisso, 91 U.S.App.D.C. 101, 198 F.2d 532 (1952); United State v. Nugent, 100 F.2d 215 (CA6 1938), cert. denied, 306 U.S. 648, 59 S.Ct. 591, 83 L.Ed. 1046 (1939). And in United States ex rel. Graham v. Mancusi, 457 F.2d 463 (CA2 1972) (Friendly, J.), the court applied the principle in habeas corpus proceedings to invalidate a procedure under which a state appellate court had entered a conviction for a lesser offense when reversal of the original conviction was required because of improperly admitted evidence. The court stated: "Due process forbids that, when an issue of fact is presented, a man should be sent to prison without the trier of the facts having seen and heard his accusers and himself, if he desires to testify, and weighing their credibility in the light of their demeanor on the stand." Id., at 469.
4
See Part II, infra.
5
Experience shows that motions to suppress evidence consume a relatively small proportion of the time of federal district judges. A recent study indicated that suppression motions involving confessions were filed in only 4% of all federal criminal cases. GAO, Impact of the Exclusionary Rule on Federal Criminal Prosecutions, Report by the Comptroller General of the United States, App. II, p. 8 (Apr. 19, 1979). Moreover, a rehearing by the district judge would be required only in some of those cases, since the rehearing requirement would be imposed solely in situations (1) involving case-dispositive issues that (2) could not be resolved on the basis of the record and (3) that were contested by a party. Finally, the rehearing requirement would create an additional burden only where the judge would otherwise choose not to hear the witnesses. In light of these factors, the incremental expenses that would be imposed by the ruling of the Court of Appeals would be relatively small.
6
The Government contends that since Congress is constitutionally entitled not to create federal courts, see Palmore v. United States, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973); Sheldon v. Sill, 8 How. 441, 12 L.Ed. 1147 (1850), and may instead entrust the resolution of federal questions to state courts, it follows that Congress also has the authority to create federal tribunals that do not carry the safeguards of Art. III. Such a view would, of course, render the requirements of Art. III practically meaningless by permitting Congress to vest the judicial power in whatever tribunal it chose.
The argument is unpersuasive for two additional reasons. First, it represents a revival of the now discredited idea that Congress may attach whatever conditions it wishes to entities or programs that it is free not to create. Cf. Vitek v. Jones, 445 U.S., at 487-494, 100 S.Ct., at 1261. But there is no logical infirmity in concluding that although Congress is free not to create federal courts, if it chooses to do so, those courts must be as described in Art. III, subject to limited exceptions.
Second, the argument misconceives the intentions that underlay theconstitutional compromise embodied in Art. III. The Framers were especially concerned about the possibility of an alliance between federal judges and the Congress. For this reason, they ensured that federal judges would be isolated from the legislative branch of the Federal Government and protected from congressional reprisal. State courts were perceived as necessarily independent from the Federal Government and as a relatively reliable buffer against its excesses. No such assurance would be possible with respect to federal judges unprotected by the provisions of Art. III. It follows from those assumptions that under Art. III, Congress is generally prohibited from creating specially accountable federal tribunals but at the same time is permitted to entrust issues of federal law to state tribunals. See generally Tushnet, Invitation to a Wedding: Some Thoughts on Article III and a Problem of Statutory Interpretation, 60 Iowa L.Rev. 937, 944-945 (1975); cf. R. Berger, Congress v. The Supreme Court 8, 117-119 (1969).
7
Federal courts on habeas corpus are not obliged to examine the facts independently in every case. Under Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), deference to the state-court findings is permitted in the absence of any allegation of procedural irregularity. As the holdings of Ng Fung Ho and Crowell make clear, however, this deference is based on the special role played by state courts in the federal system, and not on any rule allowing Congress to create non-Art. III tribunals to make findings of fact that are binding on Art. III courts. See n. 6, supra.
8
In St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 53, 56 S.Ct. 720, 726, 80 L.Ed. 1033 (1936), the Court indicated that, in the context of a claim of unconstitutional confiscation, the requirement of independent judicial judgment would be satisfied even if the court gives "the weight which may properly attach to findings [by an administrative body] upon hearing and evidence." In subsequent cases the Court has made clear that the scope of judicial review of confiscation claims may be limited to the substantial-evidence test. See FPC v. National Gas Pipeline Co., 315 U.S. 575, 62 S.Ct. 736, 86 L.Ed. 1037 (1942); FPC v. Hope Natural Gas Co., 320 U.S. 591, 64 S.Ct. 281, 88 L.Ed. 333 (1944); Alabama Public Service Comm'n v. Southern R. Co., 341 U.S. 341, 348, 71 S.Ct. 762, 767, 95 L.Ed. 1002 (1951); American Trucking Assns. v. United States, 344 U.S. 298, 73 S.Ct. 307, 97 L.Ed. 337 (1953). See generally 4 K. Davis, Administrative Law Treatise § 29.09 (1958). But the Court errs if it reads St. Joseph Stock Yards to establish the far more radical proposition that all questions of fact may be transferred to and decided by non-Art. III federal tribunals. See ante, at 683. Our continued adherence to Ng Fung Ho v. White, 259 U.S. 276, 42 S.Ct. 492, 66 L.Ed. 938 (1922), demonstrates that such a reading would be unwarranted.
9
See L. Jaffe, Judicial Control of Administrative Action 640-648 (1965). In my view, this standard is far preferable to a test that would draw a rigid line between issues of law and issues of fact, and hold that, with the exception of the criminal trial, the latter need never be resolved independently by an Art. III court. No such line appears in the Constitution, and it is contradicted by the rationale that underlies the tenure and salary protections of Art. III.
10
Alexander Hamilton justified the tenure and salary protections of Art. III in this fashion:
"That inflexible and uniform adherence to the rights of the constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. . . .
* * * * *
"Next to permanency in office, nothing can contribute more to the independence of the judges, than a fixed provision for their support. . . . In the general course of human nature, a power over a man's subsistence amounts to a power over his will." The Federalist No. 78, p. 489, and No. 79, p. 491 (Gideon ed. 1818) (emphasis in original).
11
Actual rehearing of the witnesses, of course, would be required only in exceptional cases. In most circumstances the requirement of independent judicial factfinding would be satisfied on the basis of record review. It is only when that task cannot fairly be performed in the absence of the witnesses that a de novo hearing should be required. And as I have indicated, see supra, at 701-702, if the district judge offered a statement of reasons explaining why it was not necessary for him to hear the witnesses, an abuse of discretion would be found quite rarely. See n. 5, supra; ante, at 693-694 (STEWART, J., dissenting).
| 34
|
447 U.S. 807
100 S.Ct. 2486
65 L.Ed.2d 532
MOHASCO CORPORATION, Petitioner,v.Ralph H. SILVER.
No. 79-616.
Argued March 25, 1980.
Decided June 23, 1980.
Syllabus
Section 706(c) of the Civil Rights Act of 1964 (Act) provides that in the case of an alleged unlawful employment practice occurring in a State having a law prohibiting such practices no charge may be "filed" with the Equal Employment Opportunity Commission (EEOC) before the expiration of 60 days after proceedings have been commenced in the appropriate state agency unless such proceedings have been earlier terminated. Section 706(e) requires that an unlawful employment practice charge be "filed" in such a State within 300 days after the alleged practice occurred or within 30 days after the aggrieved person receives notice that the state agency has terminated its proceedings, whichever is earlier. Petitioner employer discharged respondent employee on August 29, 1975. On June 15, 1976—291 days later—the EEOC received a letter from respondent claiming that petitioner had discriminated against him because of his religion, and this letter was promptly referred to the appropriate New York agency, which in due course determined that there was no merit to the charge. Meanwhile, on August 20, 1976—more than 60 days after respondent's letter had been submitted to the EEOC and 357 days after respondent's discharge—the EEOC notified petitioner that respondent had filed an employment discrimination charge. About a year later, on August 24, 1977, the EEOC issued its determination that there was no reasonable cause to believe respondent's charge was true and notified respondent that he had a statutory right to file a private action. Respondent then commenced such an action 91 days later in Federal District Court. Granting summary judgment for petitioner, the District Court held that § 706(c) precluded any filing with the EEOC until a date 60 days after June 15, 1976, and because that date was 51 days beyond § 706(e)'s 300-day time limit for filing in so-called "deferral States," the charge was not timely filed. The Court of Appeals reversed, holding that the District Court's literal reading of the Act did not give sufficient weight to the Act's overriding purpose of insuring that employment discrimination is redressed, that it was necessary to conclude that a charge is "filed" for purposes of § 706(e) when received, and "filed" as required by § 706(c) when the state deferral period ends, and that therefore the letter received by the EEOC on June 15, 1976, had been filed within 300 days as required by § 706(e) but had not been filed during the 60-day deferral period for purposes of § 706(c).
Held: A literal reading of §§ 706(c) and (e) so as to give the word "filed" the same meaning in both subsections gives full effect to the several policies reflected in the Act. Under this literal reading, respondent's charge was not timely filed, because it was "filed" on the 351st day (60 days after June 15, 1976, or the earliest date upon which the EEOC could allow the charge to be filed), by which time the applicable 300-day limitations period had run. Pp. 815-826.
(a) The Act's legislative history is entirely consistent with the wording of the Act itself, there being nothing to indicate that complainants in some States were to be allowed to proceed with less diligence than those in other States or to give deferral state complainants any advantage over nondeferral state complainants with respect to the time for filing unlawful employment practice charges. Pp. 818-824.
(b) A literal reading of the statute is not unfair to victims of employment discrimination who often proceed without the assistance of counsel. P. 825.
(c) There is no merit to respondent's argument based on the EEOC's interpretation, since that agency's interpretation cannot supersede the language chosen by Congress. P. 825.
(d) Nor is there any merit to the argument that a less literal reading of the statute allowing the EEOC to treat a letter received on the 291st day as "filed" and interpreting § 706(c)'s prohibition as merely requiring the EEOC to postpone any action on a charge for at least 60 days, would adequately effectuate the policy of deferring to state agencies. Congress clearly intended to encourage the prompt processing of all employment discrimination charges. To accept respondent's position would add a 60-day period to the schedule mandated by Congress and would unreasonably give the word "filed" two different meanings in the same section of the Act. Pp. 825-826.
2 Cir., 602 F.2d 1083, reversed.
Thomas Mead Santoro, Albany, N. Y., for petitioner.
Judith P. Vladeck, New York City, for respondent.
Edwin S. Kneedler, Washington, D.C., for the United States, et al., as amici curiae, by special leave of Court.
Mr. Justice STEVENS delivered the opinion of the Court.
1
The question in this Title VII case is whether Congress intended the word "filed" to have the same meaning in subsections (c)1 and (e)2 of § 706 of the Civil Rights Act of 1964, 78 Stat. 260, as amended in 1972, 86 Stat. 104-105, 42 U.S.C. §§ 2000e-5(c) and (e). The former subsection prohibits the filing of an unfair employment practice charge with the federal Equal Employment Opportunity Commission (EEOC) until after a state fair employment practices agency has had an opportunity to consider it. The latter subsection requires that in all events the charge must be filed with the EEOC within 300 days of the occurrence. We hold that a literal reading of the two subsections gives full effect to the several policies reflected in the statute.
2
On August 29, 1975, Mohasco Corp. discharged the respondent from his position as senior marketing economist.3 On June 15, 1976—291 days later—the EEOC received a letter from respondent asserting that Mohasco had discriminated against him because of his religion. The letter was promptly referred to the New York State Division of Human Rights. That state agency reviewed the matter4 and, in due course, determined that there was no merit in the charge.5
3
Meanwhile, on August 20, 1976—a date more than 60 days after respondent's letter had been submitted to the EEOC and 357 days after respondent's discharge—the EEOC notified Mohasco that respondent had filed a charge of employment discrimination.6
4
About a year later, on August 24, 1977, the EEOC issued its determination that "there is not reasonable cause to believe the charge is true,"7 and formally notified respondent that if he wished to pursue the matter further, he had a statutory right to file a private action in a federal district court within 90 days.8 Respondent commenced this litigation 91 days later9 in the United States District Court for the Northern District of New York.10
5
The District Court granted Mohasco's motion for summary judgment on the ground that respondent's failure to file a timely charge with the EEOC deprived the court of subject-matter jurisdiction. The court concluded that June 15, 1976 (the 291st day), could not be treated as the date that respondent's charge was "filed" with the EEOC, because § 706(c) provides that in States which have their own fair employment practice agencies—and New York is such a State—"no charge may be filed . . . by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated. . . ." Since no proceedings had been commenced before the New York agency prior to June 15, 1976, and since the proceedings that were commenced at that time did not terminate within 60 days, the District Court read § 706(c) as precluding any filing with the EEOC until 60 days after June 15, 1976.11 Because that date was 51 days beyond § 706(e)'s 300-day time limit for filing in so-called "deferral States," the charge was not timely filed.
6
The District Court refused to apply an EEOC regulation12 that would have treated respondent's charge as timely because it was submitted to the EEOC within 300 days of the practice complained of and also within the applicable New York limitations period.13 The District Court held that the regulation was contrary to the plain language of the statute, and in any event, had not been followed by the EEOC itself in this case.14
7
Over the dissent of Judge Meskill, the Court of Appeals for the Second Circuit reversed. 602 F.2d 1083 (1979). It recognized that the District Court had read the statute literally, but concluded that a literal reading did not give sufficient weight to the overriding purpose of the Act. In the majority's view, in order to be faithful to "the strong federal policy in insuring that employment discrimination is redressed," id., at 1087, it was necessary "to conclude that a charge is 'filed' for purposes of § 706(e) when received, and 'filed' as required by § 706(c) when the state deferral period ends." Ibid. By giving the word "filed" two different meanings, the court concluded that the letter received by the EEOC on June 15, 1976, had been filed within 300 days as required by § 706(e),15 but had not been filed during the 60-day deferral period for purposes of § 706(c).
8
Judge Meskill believed that a literal reading of the statute was not only consistent with its basic purpose, but was also warranted by the additional purpose of "requir[ing] prompt action on the part of Title VII plaintiffs." 602 F.2d, at 1092. He noted that Congress had imposed a general requirement of filing within 180 days, and that the exceptional period of 300 days for deferral States was merely intended to give the charging party a fair opportunity to invoke his state remedy without jeopardizing his federal rights; the exception was not intended to allow residents of deferral States to proceed with less diligence than was generally required.
9
Because there is a conflict among the Courts of Appeals on the proper interpretation of the word "filed" in this statute,16 we granted certiorari. 444 U.S. 990, 100 S.Ct. 519, 62 L.Ed.2d 418.17 We now reverse.
10
We first review the plain meaning of the relevant statutory language; we next examine the legislative history of the 1964 Act and the 1972 amendments for evidence that Congress intended the statute to have a different meaning; and finally we consider the policy arguments in favor of a less literal reading of the Act.
11
* Section 706(e) begins with the general rule that a "charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred. . . ."18 Since respondent's letter was submitted to the EEOC 291 days after the occurrence, he plainly did not exercise the diligence required by that general rule. Nor, as we shall explain, did he have to; but it should be pointed out that had he sent his charge to either the state agency or the EEOC within 180 days, he would have had no difficulty in complying with the terms of the exception to that general rule allowing a later filing with the EEOC in deferral States.
12
That exception allows a filing with the EEOC after 180 days if "the person aggrieved has initially instituted proceedings with a State or local agency WITH AUTHORITY TO GRANT OR SEEK RELIEF FROM SUCH PRACTICE . . .".19 When respondent submitted his letter to the EEOC, he had not yet instituted any state proceedings. Under the literal terms of the statute, it could therefore be argued that he did not bring himself within the exception to the general 180-day requirement. But in Love v. Pullman Co., 404 U.S. 522, 525, 92 S.Ct. 616, 618, 30 L.Ed.2d 679, we held that "[n]othing in the Act suggests that the state proceedings may not be initiated by the EEOC acting on behalf of the complainant rather than by the complainant himself . . . ." Here, state proceedings were instituted by the EEOC when it immediately forwarded his letter to the state agency on June 15, 1976. Accordingly, we treat the state proceedings as having been instituted on that date. Since the EEOC could not proceed until either state proceedings had ended or 60 days had passed, the proceedings were "initially instituted with a State . . . agency" prior to their official institution with the EEOC. Therefore, respondent came within § 706(e)'s exception allowing a federal filing more than 180 days after the occurrence.
13
That exception states that "such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier . . . ." Since the State proceedings did not terminate until well after the expiration of the 300-day period, see n. 5, supra, the 300-day limitations period is the one applicable to respondent's charge. The question, then, is whether the June 15, 1976, letter was "filed" when received by the EEOC within the meaning of subsection (e) of § 706.
14
The answer is supplied by subsection (c), which imposes a special requirement for cases arising in deferral States: "no charge may be filed under subsection [(b)] by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated . . . ." Thus, in terms, the statute prohibited the EEOC from allowing the charge to be filed on the date the letter was received. Although, as the Court held in Love v. Pullman Co., supra, it was proper for the EEOC to hold respondent's "complaint in 'suspended animation,' automatically filing it upon termination of the State proceedings,"20 404 U.S., at 526, 92 S.Ct., at 618 (emphasis added), that means that the charge was filed on the 351st day, not the 291st. By that time, however, the 300-day period had run and the filing was therefore untimely.
II
15
In contrast to this rather straightforward reading of the statute, respondent urges us to give the word "filed" two different meanings within the same statutory section in order better to effectuate Congress' purpose underlying Title VII. Essentially, his argument is that a rule permitting filings for up to 300 days after the discriminatory occurrence—regardless of the rule against filing during the deferral period—would help further the cause of eliminating discriminatory employment practices. We therefore turn to the legislative history, but in doing so we emphasize that the words of the statute are not ambiguous. Nor does a literal reading of them lead to "absurd or futile results," United States v. American Trucking Assns., Inc., 310 U.S. 534, 543, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345. For time limitations are inevitably arbitrary to some extent; and the limitations at issue here are not so short21 that a plaintiff's remedy is effectively denied for all practical purposes without an opportunity for a hearing.22
16
It is unquestionably true that the 1964 statute was enacted to implement the congressional policy against discriminatory employment practices,23 and that that basic policy must inform construction of this remedial legislation. It must also be recognized, however, in light of the tempestuous legislative proceedings that produced the Act, that the ultimate product reflects other, perhaps countervailing, purposes that some Members of Congress sought to achieve. The present language was clearly the result of a compromise. It is our task to give effect to the statute as enacted. See Toussie v. United States, 397 U.S. 112, 123-124, 90 S.Ct. 858, 865, 25 L.Ed.2d 156.24
17
The typical time limitations provision in the numerous proposed civil rights bills required the filing of a charge with the new federal fair employment practices agency within six months of the discriminatory conduct.25 These initial proposals did not provide for mandatory deferral by the federal agency during comparable state administrative proceedings,26 though some proposals would have authorized the federal agency to enter agreements of cooperation with state agencies, under which the federal agency would refrain from processing charges in specified cases.27
18
On February 10, 1964, the House of Representatives passed H.R. 7152, its version of the comprehensive Civil Rights Act. Title VII of that bill contained a 6-month limitations provision for the filing of charges with the EEOC, and directed the EEOC to enter into agreements with state agencies providing for suspension of federal enforcement.28 In the Senate, H.R. 7152 met with exceptionally strong opposition. The principal opposition focused not on the details of the bill, but on its fundamental purpose. During the course of one of the longest filibusters in the history of the Senate, the bipartisan leadership of the Senate carefully forged the compromise substitute (Dirksen compromise) that was ultimately to become in substantial part the Civil Rights Act of 1964. The purpose of the compromise was to attract sufficient support to achieve the two-thirds vote necessary for cloture.29 This effort was successful. Fifteen days after the Dirksen compromise was offered as an amendment, a cloture motion carried the necessary votes.30
19
Section 706(d)31 of the compromise provided for a 90-day limitations period for filing discrimination claims with the EEOC in nondeferral States, the period ultimately adopted in the 1964 version of the Act. It was the first time the 90-day figure appeared in any proposed bill, and its appearance was unaccompanied by any explanation. Section 706(b) of the compromise introduced the mandatory deferral concept for the first time, providing that during a 60-day deferral period, "no charge may be filed"—language that figures so prominently in this case. In such deferral States, § 706(d) extended the time for filing with the EEOC to 210 days.
20
Since the Senate did not explain why it adopted a time limitation of only half that adopted by the House, one can only speculate. But it seems clear that the 90-day provision to some must have represented a judgment that most genuine claims of discrimination would be promptly asserted and that the costs associated with processing and defending stale or dormant claims outweigh the federal interest in guaranteeing a remedy to every victim of discrimination. To others it must have represented a necessary sacrifice of the rights of some victims of discrimination in order that a civil rights bill could be enacted. Section 706(b) was rather clearly intended to increase the role of States and localities in resolving charges of employment discrimination.32 And § 706(d)'s longer time of 210 days for filing with the EEOC in deferral States was included to prevent forfeiture of a complainant's federal rights while participating in state proceedings.33
21
But neither this latter provision nor anything else in the legislative history contains any "suggestion that complainants in some states were to be allowed to proceed with less diligence than those in other states." Moore v. Sunbeam Corp., 459 F.2d 811, 825, n. 35 (CA7 1972). The history identifies only one reason for treating workers in deferral States differently from workers in other States: to give state agencies an opportunity to redress the evil at which the federal legislation was aimed, and to avoid federal intervention unless its need was demonstrated.34 The statutory plan was not designed to give the worker in a deferral State the option of choosing between his state remedy and his federal remedy, nor indeed simply to allow him additional time in which to obtain state relief. Had that been the plan, a simple statute prescribing a 90-day period in nondeferral States and a 210-day period in deferral States would have served the legislative purpose. Instead, Congress chose to prohibit the filing of any federal charge until after state proceedings had been completed or until 60 days had passed, whichever came sooner.
22
To be sure, in deferral States having fair employment practices agencies over one year old, Congress in effect gave complainants an additional 60 days in which initially to file a charge and still ensure preservation of their federal rights. In other words, under the 1964 Act, a complainant in such a deferral State could have filed on the 150th day, and then filed with the EEOC on the 210th day at the end of the 60-day deferral period, while a complainant in a nondeferral State had to file on the 90th day with the EEOC. But there is no reason to believe that the 1964 Congress intended deferral state complainants to have the additional advantage of being able to ignore the 210-day limitations period when they failed to invoke their rights early enough to allow the 60-day deferral period to expire within the 210-day period.
23
In sum, the legislative history of the 1964 statute is entirely consistent with the wording of the statute itself.
B
24
In 1972, Congress amended § 706 by changing the general limitations period from 90 days to 180 days and correspondingly extended the maximum period for deferral States from 210 days to 300 days.35 The amendment did not make any change in the procedural scheme, however, although such a change was proposed and rejected.
25
As initially introduced in the House of Representatives, the proposed 1972 amendments to Title VII would have deleted § 706(b)'s prohibition against the filing of a federal charge until 60 days after the institution of state proceedings, and would have substituted language merely prohibiting the EEOC from taking any action on the charge until the prescribed period had elapsed.36 The House, however, concluded that no change in this aspect of the 1964 statute should be made, and deleted the amendment prior to passage.37 The Senate version of the amendments passed with the provision merely prohibiting the EEOC from taking any action on a charge in the deferral period.38 But at conference, the position of the House prevailed on the understanding that the law as interpreted in Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679, was controlling.39 As already noted, our literal reading of the word "filed" in § 706 is fully supported by the Love opinion.40
26
It is true that a section-by-section analysis of the 1972 amendments filed by Senator Williams refers to the then recent decision of the Tenth Circuit in Vigil v. American Tel. & Tel. Co., 455 F.2d 1222 (1972), see n. 16, supra, with approval, and that that case supports respondent's reading of the Act. But we do not find that isolated reference—which was first inserted into the legislative history after the completion of the work of both the Senate Committee and House Committee, as well as after the Report of the joint conference just referred to41—to represent either a sound interpretation of the 1964 enactment42 or a conscious intention of Congress to change existing law. The point at which it appears in the legislative history simply refutes any notion that Congress focused on the precise issue, much less adopted the approach of the Vigil case.43 To the extent that Congress focused on the issue at all in 1972, it expressly rejected the language that would have mandated the exact result that respondent urges.
III
27
Finally we consider the additional points advanced in support of respondent's position: (1) that it is unfair to victims of discrimination who often proceed without the assistance of counsel; (2) that it is contrary to the interpretation of the Act by the agency charged with responsibility for its enforcements and (3) that a less literal reading of the Act would adequately effectuate the policy of deferring to state agencies.
28
The unfairness argument is based on the assumption that a lay person reading the statute would assume that he had 300 days in which to file his first complaint with either a state or federal agency. We find no merit in this argument. We believe that a lay person would be more apt to regard the general obligation of filing within 180 days as the standard of diligence he must satisfy, and that one who carefully read the entire section would understand it to mean exactly what it says.
29
We must also reject any suggestion that the EEOC may adopt regulations that are inconsistent with the statutory mandate. As we have held on prior occasions, its "interpretation" of the statute cannot supersede the language chosen by Congress.44
30
Finally, we reject the argument that the timeliness requirements would be adequately served by allowing the EEOC to treat a letter received on the 291st day as "filed" and interpreting the § 706(c) prohibition as merely requiring it to postpone any action on the charge for at least 60 days. There are two reasons why this interpretation is unacceptable.
31
By choosing what are obviously quite short deadlines, Congress clearly intended to encourage the prompt processing of all charges of employment discrimination.45 Under a literal reading of the Act, the EEOC has a duty to commence its investigation no later than 300 days after the alleged occurrence; under respondent's "interpretation" of § 706(c), that duty might not arise for 360 days. Perhaps the addition of another 60-day delay in the work of an already seriously overburdened agency is not a matter of critical importance. But in a statutory scheme in which Congress carefully prescribed a series of deadlines measured by numbers of days—rather than months or years—we may not simply interject an additional 60-day period into the procedural scheme. We must respect the compromise embodied in the words chosen by Congress. It is not our place simply to alter the balance struck by Congress in procedural statutes by favoring one side or the other in matters of statutory construction.
32
In the end, we cannot accept respondent's position without unreasonably giving the word "filed" two different meanings in the same section of the statute. Even if the interests of justice might be served in this particular case by a bifurcated construction of that word, in the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.
33
Accordingly, the judgment of the Court of Appeals is reversed.
34
So ordered.
35
Mr. Justice BLACKMUN, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.
36
This might be viewed as "one of those cases that occasionally appears in the procedural area where it is more important that it be decided (in order to dispel existing conflict . . .) than that it be decided correctly." Oscar Mayer & Co. v. Evans, 441 U.S. 750, 766, 99 S.Ct. 2066, 2077, 60 L.Ed.2d 609 (1979) (concurring opinion). But, I cannot concur in the result the Court reaches today. For reasons set out below, I believe that the Court's decision neither is correct as a matter of statutory construction, nor does it dispel the existing decisional conflict, see ante, at 814-815, n. 16, in an acceptable fashion. I would affirm the holding of the Court of Appeals that, in a deferral State, a Title VII complaint is timely filed with the EEOC if it is "filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred." § 706(e), 42 U.S.C. § 2000e-5(e).
37
* The Court finds its interpretation of the interplay between §§ 706(c) and (e) of Title VII, 42 U.S.C. §§ 2000e-5(c) and (e), to be based upon a "rather straightforward reading of the statute." Ante, at 818. That finding is cast into some doubt when one carefully considers the language, structure, and purpose of § 706. Moreover, the relevant legislative history leaves no room whatsoever for doubt that the Court's perception of Congress' intent is erroneous.
38
The rule the Court adopts today requires a Title VII complainant residing in a deferral State to file a charge of employment discrimination within 240 days of the allegedly unlawful act, in order to be certain that his complaint is timely. Yet the numeral "240" nowhere appears in Title VII. It seems a bit odd that Congress, in enacting "a statutory scheme in which laymen, unassisted by trained lawyers initiate the process," Love v. Pullman Co., 404 U.S. 522, 527, 92 S.Ct. 616, 619, 30 L.Ed.2d 679 (1972); see ante, at 816, n. 19, would create a filing rule that a complainant could not locate by reading any single statutory provision. One commentator has observed:
39
"A case of employment discrimination may require a party to refer to the United States Code for the first and only time in his life. An intelligent, but isolated reading of section 706(e) could easily lead one to believe that 300 days is the time limitation for filing an initial claim with the EEOC. A complainant should not be penalized for Congressional ambiguity, or because he does not possess the reading ability of one trained in statutory interpretation. This indeed is the level of skill required to find the 'hidden' 240-day limitation advocated by the district court in Silver." Comment, 55 Notre Dame Law. 396, 410 (1980).
40
Of course, as was stated just the other day, "[o]ur compass is not to read a statute to reach what we perceive . . . is a 'sensible result,' " Bifulco v. United States, 447 U.S. 381, 401, 100 S.Ct. 2247, 2259, 65 L.Ed.2d 205 (concurring opinion); yet, where alternative meanings of Congress' words are plausible, we should not close our eyes to those alternatives through a strong-armed invocation of the plain-meaning rule. I believe that an alternative to the Court's interpretation of the interplay between §§ 706(c) and (e) does exist, and that Congress intended to adopt that alternative.
41
The Court of Appeals in this case viewed § 706(e), standing alone, as stating the filing requirements for one who wishes to institute a charge of employment discrimination with the EEOC. It concluded that "the requirement in § 706(c) that no charge be 'filed' before the deferral period ends simply means that the EEOC may not process a Title VII complaint until sixty days after it has been referred to a state agency." 602 F.2d 1083, 1088 (1979) (emphasis supplied). The dual meaning that the Court of Appeals gave to the word "filed" might seem strained at first blush, but that court's interpretation is supported by the structure of Title VII. Reading the word "filed" to mean two different things in the two subsections avoids an interpretation of the statute that requires a lay person to determine the time requirements for filing a complaint through reference to two separate provisions. Moreover, the Court of Appeals' interpretation of the meaning of the word "filed" in § 706(c) in no way detracts from Congress' purpose in enacting that subsection—to prevent the EEOC from taking action on a discrimination complaint until the relevant state agencies have had an opportunity to resolve the employee's dispute with his employer. See ante, at 821. Given these considerations, I am not willing to reject the Court of Appeals' interpretation of the statute out of hand.
42
Furthermore, examination of Title VII's legislative history leads me to conclude that Congress, in 1972, adopted the interpretation of the statute that the Court of Appeals was later to espouse. In examining this legislative history, it is important to note that the EEOC, the agency charged by Congress with administering Title VII, has always treated as timely a charge filed within the 300-day period specified in § 706(e), without regard to the 60-day deferral period specified in § 706(c). See 29 CFR § 1601.12(b)(1)(v)(A) (1977); 29 CFR § 1601.13(a) (1979). Aside from the fact that the EEOC's consistent interpretation of the filing requirements is " 'entitled to great deference,' " Oscar Mayer & Co. v. Evans, 441 U.S., at 761, 99 S.Ct., at 2074, quoting from Griggs v. Duke Power Co., 401 U.S. 424, 434, 91 S.Ct. 849, 855, 28 L.Ed.2d 158 (1971) that interpretation was approved by Congress expressly when it re-enacted the forerunners to the present §§ 706(c) and (e) in 1972. Under such circumstances, this Court is bound to accept the agency's interpretation.1
43
In 1971, the pertinent House and Senate Committees both reported bills to amend Title VII that would have deleted the "no charge shall be filed" language from § 706(c), and substituted in its place a provision that "the Commission shall take no action with respect to the investigation of such charge" until the deferral period had expired. See S.Rep. No. 92-415, p. 56 (1971); H.R.Rep. No. 92-238, p. 43 (1971), U.S.Code Cong. & Admin.News 1978, p. 2137.2 Had either of these bills been enacted, the Court of Appeals' interpretation of Title VII's filing requirements could not be questioned. The proposed amendments to § 706(c) generated no controversy during the debates in either House. For reasons completely unrelated to the question presented here, however, the House of Representatives adopted a substitute bill that made no change in the language of § 706(c). See Legislative History of the Equal Employment Opportunity Act of 1972 (Committee Print compiled for the Senate Committee on Labor and Public Welfare by the Subcommittee on Labor), pp. 326-332 (1972).3 The Senate, on the other hand, retained the Committee on Labor and Public Welfare's amendment to the forerunner of § 706(c). See 118 Cong.Rec. 4945 (1972); Legislative History, p. 1781.
44
The Conference Committee did not adopt the Senate bill's version of § 706(c), but its explanation for failing to do so is clear and is critical to an understanding of the effect of the 1972 amendments on the question presented here. The Conference Committee stated:
45
"The Senate amendment contained two provisions allowing the Commission to defer to state and local equal employment opportunity agencies. It deleted the language of existing law providing that no charge may be filed during the 60-day period allowed for the deferral and substituted a provision prohibiting the Commission from acting on such a charge until the expiration of the 60-day period. The House bill made no change in existing law. The Senate receded with an amendment that would re-state the existing law on the deferral of charges to state agencies. The conferees left existing law intact with the understanding that the decision in Love v. Pullman [Co., 404] U.S. [522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972)] interpreting the existing law to allow the Commission to receive a charge (but not act on it) during such deferral period is controlling." S.Conf.Rep. No. 92-681, p. 17 (1972); H.R.Conf.Rep. No. 92-899, p. 17 (1972) (emphasis supplied).
46
In addition, a section-by-section analysis prepared by Senators Williams and Javits, and presented to both Houses along with the Conference Report, contained the following explanation of re-enacted § 706(c):
47
"No change . . . was deemed necessary in view of the recent Supreme Court decision of Love v. Pullman Co. . . . which approved the present EEOC deferral procedures as fully in compliance with the intent of the Act. That case held that the EEOC may receive and defer a charge to a State agency on behalf of a complainant and begin to process the charge in the EEOC upon lapse of the 60-day deferral period, even though the language provides that no charge can be filed under § 706(a) by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law. Similarly, the recent circuit court decision in Vigil v. AT&T, [455] F.2d [1222] . . . (10th Cir. 1972), which provided that in order to protect the aggrieved person's right to file with the EEOC within the time periods specified in sections 706(c) and (d), a charge filed with a State or local agency may also be filed with the EEOC during the 60-day deferral period, is within the intent of this Act." 118 Cong.Rec. 7167 (1972) (Senate); id., at 7564 (House) (emphasis supplied).4
48
In the face of these indicia of Congress' intent, the Court states blithely that "our literal reading of the word 'filed' in § 706 is fully supported by the Love opinion." Ante, at 823. But even setting aside its questionable dismissal of the Williams-Javits section-by-section analysis, see n. 4, supra, the Court here obviously errs in interpreting the Conference Report itself. The relevant inquiry is not what this Court actually held in Love, as the Court seems to think, but what the Conference Committee, writing some six weeks after Love, thought that the Court held. The passage, quoted above, from the Conference Report makes it clear that the conferees believed the import of the Love decision was that the proposed Senate amendment to § 706(c) was totally unnecessary. Congress thus believed this Court to have held that existing law permitted the EEOC to treat as timely those charges filed in a deferral State within 300 days, without regard to the "no charge may be filed" language of § 706(c), and intended that that interpretation should continue to be considered "controlling."
49
The Court concludes that Congress in 1972 "expressly rejected the language that would have mandated the exact result that respondent urges." Ante, at 824. But a fair analysis of the legislative history demonstrates that Congress re-enacted §§ 706(c) and (e) with an expectation that those provisions, as re-enacted, would be interpreted to mandate the result that had long been accepted by the EEOC. The Court's decision today not only ignores Congress' avowed intent but it also is inconsistent with our past opinions recognizing that "[w]hen a Congress that re-enacts a statute voices its approval of an administrative or other interpretation thereof, Congress is treated as having adopted that interpretation, and this Court is bound thereby." United States v. Sheffield Board of Comm'rs, 435 U.S. 110, 134, 98 S.Ct. 965, 981, 55 L.Ed.2d 148 (1978); Albemarle Paper Co. v. Moody, 422 U.S. 405, 414, n. 8, 95 S.Ct. 2362, 2370, n. 8, 45 L.Ed.2d 280 (1975) (construing 1972 amendments to Title VII).
II
50
Despite the Court's failure to give effect to the obvious intent of Congress in enacting the 1972 amendments, one might be tempted to go along with the rule it creates today if that rule had at least the advantage of creating a fixed and settled procedure for the filing of a Title VII complaint. But measured by the standard of practicality and ease of administration, I find the Court's rule sadly wanting.
51
Contemplate for a moment the plight of the local EEOC officer charged with responsibility for explaining the Court's rule to a prospective Title VII complainant in one of the Nation's 42 deferral States.5 The prospective complainant informs the officer that he was fired from his job nine months ago, and now has reason to believe that his discharge was motivated by racial discrimination. He wants to know whether he still may file a timely charge with the EEOC. Under the Court's rule, the EEOC officer will not be able to answer the concerned employee with anything more than an equivocal "maybe." He must reply (paraphrasing the words of the Court, ante, at 822): "It depends on whether you invoke your rights early enough to allow the 60-day deferral period to expire within 300 days." In other words, if the hypothetical complainant files his charge 270 days after his discharge, and the EEOC refers the charge to the relevant state agency immediately, and that agency terminates its proceedings within 30 days, the federal charge will have been timely filed. But if the state agency does not terminate its proceedings for a year (perhaps due to backlog or, ironically, because the complaint has merit), then the EEOC cannot consider the charge to have been filed until 330 days have elapsed, and the complainant will be unable to invoke his federally protected rights.
52
The foregoing example demonstrates that the rule the Court adopts today serves only to add more complexity to the already complex procedural provisions of Title VII. To be sure, an employee will be able to guarantee timely filing by bringing a complaint to the attention of the EEOC within 240 days (a time limitation that nowhere appears in the text of the statute), but if that employee files his charge between day 240 and day 300, he must await further developments.6 This "wait and see" rule seems out of place in the context of a federal statute designed to vindicate workers' rights to be free from invidious discrimination in the workplace. Moreover, the Court's rule will no doubt result in future complications that the courts or Congress will have to disentangle.
53
One wonders whether the Court has anticipated the problems that may arise from the indeterminancy of the "240-day maybe" rule it announces. Will complainants in deferral States be permitted to seek artificially speedy terminations of state proceedings in order to preserve their federal rights? Will employers be permitted to oppose such early terminations of state proceedings? Will state and local agencies be permitted to adopt a practice of terminating proceedings immediately whenever a complainant referred to them by the EEOC needs prompt action in order to preserve his federal remedies? These unanswered questions lead me to conclude that the Court's "rather straightforward reading" of § 706 may indeed lead to "absurd or futile results," despite the Court's conclusion to the contrary. Ante, at 818. The possible problems that I pose, of course, would cause me less concern were it clear that they result from the scheme that Congress intended to enact. But for the reasons stated in Part I, supra, I believe that Congress clearly did not intend to enact the Court's "240-day maybe" rule for judging the timeliness of a charge filed with the EEOC.
54
It remains for Congress to restrike "the balance," ante, at 826, it plainly intended to set when it re-enacted §§ 706(c) and (e) in 1972. I dissent from the Court's adoption of a rule that both alters that balance and, at the same time, serves no useful end.
1
"In the case of an alleged unlawful employment practice occurring in a State, or political subdivision of a State, which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no charge may be filed under subsection [(b)] by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated, provided that such sixty-day period shall be extended to one hundred and twenty days during the first year after the effective date of such State or local law. If any requirement for the commencement of such proceedings is imposed by a State or local authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent by registered mail to the appropriate State or local authority." 86 Stat. 104.
2
"A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred and notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) shall be served upon the person against whom such charge is made within ten days thereafter, except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier, and a copy of such charge shall be filed by the Commission with the State or local agency." 86 Stat. 105.
3
According to respondent's complaint, he holds a master's degree in economics from Columbia University. Record Item No. 1, p. 3.
4
The District Court stated that "[t]he period of limitation for filing a complaint with the New York State Division of Human Rights is one year. N.Y.Exec.Law § 297(5) (McKinney Supp.1977)." App. to Pet. for Cert. A14.
5
The determination by the New York State Division of Human Rights that there was no probable cause to believe Mohasco had engaged in the discriminatory conduct described by respondent was issued on February 9, 1977. That determination was upheld by order of the New York State Human Rights Appeal Board on December 22, 1977.
6
The notice was on a printed form which merely advised Mohasco of the name of the charging party, the date of the alleged violation, and that the nature of the charge was an alleged discharge on the basis of religion. The notice further advised Mohasco that "[b]ecause of the Commission's volume of pending work, we are unable to tell you when we are able to schedule investigation of this charge . . .." App. 18. One might therefore infer that as of 1976, the EEOC had not overcome its enormous backlog as documented in 1971. See H.R.Rep.No.92-238, p. 64 (1971), Legislative History of Equal Employment Opportunity Act of 1972 (Committee Print compiled for the Senate Committee on Labor and Public Welfare by the Subcommittee on Labor), p. 124 (1972) (hereinafter 1972 Leg.Hist.); S.Rep.No.92-415, p. 23, 1972 Leg.Hist. 432, U.S.Code Cong. & Admin.News 1972, p. 2137; Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 369, n. 24, 97 S.Ct. 2447, 2456, n. 24, 53 L.Ed.2d 402.
7
App. to Pet. for Cert. A49.
8
App. 19.
9
Petitioner did not assert respondent's failure to file the action within 90 days as a defense.
10
The pro se complaint prayed for an injunction against alleged continuing unlawful employment practices, compensatory damages against Mohasco and several of its executives jointly and severally in the sum of $100,000, punitive damages against Mohasco in the sum of $1 million and against each individual defendant in the sum of $100,000. Record Item No. 1, p. 19. The District Court dismissed the complaint against the individual defendants on the ground that they had not been named in the original charge. The validity of that dismissal is not before us.
11
The District Court noted that the EEOC's letter forwarding respondent's charge to the state agency had stated that the EEOC would automatically file the charge "at the expiration date of the deferral period, unless the EEOC was notified of an earlier termination of proceedings by the Division of Human Rights." App. to Pet. for Cert. A15 (emphasis in original). Thus, the Court concluded that the EEOC itself did not deem the charge filed until 60 days after June 15, 1976. Ibid.
12
Title 29 CFR § 1601.12(b)(1)(v)(A) (1977) states:
"In cases where the document is submitted to the Commission more than 180 days from the date of the alleged violation but within the period of limitation of the particular 706 Agency, the case shall be deferred pursuant to the procedures set forth above: Provided, however, That unless the Commission is earlier notified of the termination of the State or local proceedings, the Commission will consider the charge to be filed with the Commission on the 300th day following the alleged discrimination and will commence processing the case. Where the State or local agency terminates its proceedings prior to the 300th day following the alleged act of discrimination, without notification to the Commission of such termination, the Commission will consider the charge to be filed with the Commission on the date the person making the charge is notified of the termination."
A current regulation to substantially the same effect is found at 29 CFR §§ 1601.13(a), (c), (d)(2)(iii) (1979).
13
See n. 4, supra.
14
App. to Pet. for Cert. A15. See n. 11, supra.
15
The 300-day period expired on June 24, 1976.
16
The decision of the Court of Appeals in this case is consistent with the decision of the Tenth Circuit in Vigil v. American Tel. & Tel. Co., 455 F.2d 1222 (1972), but is in conflict with the decision of the Seventh Circuit in Moore v. Sunbeam Corp., 459 F.2d 811 (1972). Anderson v. Methodist Evangelical Hospital, Inc., 464 F.2d 723 (CA6 1972), cited Vigil with approval, though the court's conclusion that the plaintiff's filing in that case was timely would have been the same under the construction of § 706 adopted in the Moore case.
The approach of the Eighth Circuit, see Olson v. Rembrandt Printing Co., 511 F.2d 1228 (1975), also conflicts with the decision of the Second Circuit in this case, but in a way that substantially differs from that of the Seventh Circuit decision in Moore. Olson held that in order to preserve his rights under Title VII, a complainant must under all circumstances initially file his charge with either a state fair employment practices agency or the EEOC within 180 days of the discriminatory occurrence. See also Geromette v. General Motors Corp., 609 F.2d 1200 (CA6 1979) (citing Olson with approval, thus perhaps signalling a retreat from Anderson's endorsement of Vigil ); Rodriguez v. Southern Pacific Transp. Co., 587 F.2d 980 (CA9 1978). Cf. Ciccone v. Textron Inc., 616 F.2d 1216 (CA1 1980) (substantially same approach under similar provisions in the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634).
As indicated in n. 19, infra, we believe that the restrictive approach exemplified by Olson, is not supported by the statute. Under the Moore decision, which we adopt today, a complainant in a deferral State having a fair employment practices agency over one year old need only file his charge within 240 days of the alleged discriminatory employment practice in order to insure that his federal rights will be preserved. If a complainant files later than that (but not more than 300 days after the practice complained of), his right to seek relief under Title VII will nonetheless be preserved if the State happens to complete its consideration of the charge prior to the end of the 300-day period. In a State with a fair employment practices agency less than one year old, however, a complainant must file within 180 days in order to be sure that his federal rights will be preserved, since the EEOC must defer consideration during proceedings before such a new agency for up to 120 days. See 42 U.S.C. § 2000e-5(c), n. 1, supra.
17
The District Court refused to consider respondent's allegations that discrimination in the form of blacklisting had continued beyond the date of his discharge, since in its view that allegation was not fairly comprised by respondent's June 15, 1976, letter to the EEOC. The Court of Appeals unanimously reversed on that point, and remanded the case to the District Court. Petitioner sought review of that ruling in this Court, but we limited our grant of certiorari to the timeliness question discussed in today's opinion. For purposes of decision, we assume that the discrimination complained of ended with respondent's discharge on August 29, 1975.
18
Section 706(e) is quoted in full in n. 2, supra.
19
This language has been construed to require that the filing with the state agency be made within 180 days. Olson v. Rembrandt Printing Co., see n. 16, supra. Although that construction is consistent with the general rule announced at the beginning of § 706(e), and is supported by one Congressman's understanding of the procedures at the time of the 1972 amendment to that section, see 1972 Leg.Hist. 1863 (remarks of Rep. Dent), Congress included no express requirement that state proceedings be initiated by any specific date in the portion of the subsection that relates to time limitations in deferral States. Further, there are contemporaneous indications in the legislative history, which, while not authoritative, contradict Representative Dent's views. See nn. 41-43, infra. See also Doski v. M. Goldseker Co., 539 F.2d 1326, 1330-1332 (CA4 1976) (rejecting both Olson and its reliance on the analysis of Rep. Dent).
In any event, we do not believe that a court should read in a time limitation provision that Congress has not seen fit to include, see Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 97 S.Ct. 2447, 53 L.Ed.2d 402, at least when dealing with "a statutory scheme in which laymen, unassisted by trained lawyers initiate the process." Love v. Pullman Co., 404 U.S. 522, 527, 92 S.Ct. 616, 619, 30 L.Ed.2d 679. In contrast to the construction of the statute we adopt today, the Olson approach, urged upon us by petitioner and amici, is not compelled by the plain meaning of the statutory language.
20
The Court further noted that "[i]t is clear that Congress found nothing wrong, in this circumstance, with EEOC's holding the charge in abeyance until a state agency is given a chance to act." 404 U.S., at 526, n. 6, 92 S.Ct., at 619, n. 6.
21
Compare the 6-month limitations provision for filing complaints with the National Labor Relations Board under the Labor Management Relations Act, 29 U.S.C. § 160(b).
22
We are not confronted with a case in which it is claimed that the plaintiff was reasonably unaware of the existence of his cause of action until after the expiration of the limitations period. Cf. United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (medical malpractice action).
23
See, e. g., S.Rep.No.867, 88th Cong., 2d Sess., 1 (1964) (hereinafter 1964 Senate Report).
24
See also Hodgson v. Lodge 851, Int'l Assn. of Machinists & Aerospace Workers, 454 F.2d 545, 562 (CA7 1971) (Stevens, J., dissenting).
25
See, e. g., Hearings on Miscellaneous Proposals Regarding the Civil Rights of Persons within the Jurisdiction of the United States before Subcommittee No. 5 of the House Judiciary Committee, 88th Cong., 1st Sess., 97, 188, 899, 2294 (1963) (hereinafter 1963 House Judiciary Committee Hearings). Others contained 1-year provisions, see id., at 10, 50, and at one point the Senate Committee on Labor and Public Welfare Committee recommended a bill with a 2-year provision. See 1964 Senate Report, at 13.
26
See, e. g., 1963 House Judiciary Committee Hearings, at 9-10, 50.
27
Id., at 2296; 1964 Senate Report, at 16.
28
See 110 Cong.Rec. 2511-2512, 12598 (1964).
29
Id., at 12593-12594 (remarks of Sen. Clark).
30
See id., at 11926, 13327.
31
The 1972 amendment added a new subsection (a) to § 706. Subsections (b) and (d) in the 1964 version with certain changes thus became the current subsections (c) and (e) in the amended 1972 version.
32
See 110 Cong.Rec. 11937 (1964) (remarks of Sen. Humphrey); id., at 8193, 13087 (remarks of Sen. Dirksen): "[W]ith respect to the enforcement of the title, we undertook to keep primary, exclusive jurisdiction in the hands of the State commissions for a sufficient period of time to let them work out their own problems at the local level."
33
See id., at 12819.
34
At the time, it was believed that 60 days was more than sufficient time for state administrative resolution of employment discrimination complaints. See id., at 13087 (remarks of Sen. Dirksen): "In the case of California, FEPC [FEPC] cases are disposed of in an average of about 5 days. In my own State [Illinois] it is approximately 14 days."
35
86 Stat. 104-105.
36
H.R.1746, 92d Cong., 1st Sess. (Jan. 22, 1972), 1972 Leg.Hist. 4.
37
H.R.1746, supra, 1972 Leg.Hist. 326.
38
S.2515, 92d Cong., 2d Sess. (Feb. 21, 1971), 1972 Leg.Hist. 1781.
39
S.Rep.No.92-681, p. 17 (1972), 1972 Leg.Hist. 1815:
"The Senate amendment contained two provisions allowing the Commission to defer to state and local equal employment opportunity agencies. It deleted the language of existing law providing that no charge may be filed during the 60-day period allowed for the deferral and substituted a provision prohibiting the Commission from acting on such a charge until the expiration of the 60-day period. The House bill made no change in existing law. The Senate receded with an amendment that would restate the existing law on the deferral of charges to state agencies. The conferees left existing law intact with the understanding that the decision in Love v. Pullman [Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972)] interpreting the existing law to allow the Commission to receive a charge (but not act on it) during such deferral period is controlling." (Emphasis added.)
40
See n. 20, supra.
41
The section-by-section analysis is dated March 6, 1972. The Conference Report quoted in n. 39, supra, is dated March 2, 1972.
42
In Oscar Mayer & Co. v. Evans, 441 U.S. 750, 758, 99 S.Ct. 2066, 2071, 60 L.Ed.2d 609, we rejected a similar argument: "Respondent argues finally that a Committee Report that accompanied 1978 ADEA amendments[, which made no change in the language at issue in the case,] supports his construction of § 14(b). This Committee Report suggested that resort to state remedies should be optional under § 14(b). See S.Rep.No.95-493, pp. 6-7 (1978), adopted in Joint Explanatory Statement of the Committee of Conference, H.R.Conf.Rep.No.95-950, pp. 7, 12 (1978), U.S.Code Cong. & Admin.News 1978, p. 504.
"We are not persuaded. The Senate Report No. 95-493 was written 11 years after the ADEA was passed in 1967, and such '[l]egislative observations . . . are in no sense part of the legislative history.' United Airlines, Inc. v. McMann, 434 U.S. 192, 200, n. 7, 98 S.Ct. 444, 449, n. 7, 54 L.Ed.2d 402 (1977). 'It is the intent of the Congress that enacted [the section] . . . that controls.' Teamsters v. United States, 431 U.S. 324, 354, n. 39, 97
S.Ct. 1843, 1864, n. 39, 52 L.Ed.2d 396 (1977). Whatever evidence is provided by the 1978 Committee Report of the intent of Congress in 1967, it is plainly insufficient to overcome the clear and convincing evidence that Congress intended § 14(b) to have the same meaning as § 706(c). We therefore hold that under § 14(b) of the ADEA, as under § 706(c) of Title VII, resort to administrative remedies in deferral States by individual claimants is mandatory, not optional." (Footnotes omitted.)
See also Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 116-120, 100 S.Ct. 2051, 2060-2062, 64 L.Ed.2d 766.
43
Indeed as we pointed out in n. 19, supra, Congressman Dent had an entirely different understanding of the limitations period that Congress adopted. Representative Dent's remarks are dated March 8, 1972.
44
See General Electric Co. v. Gilbert, 429 U.S. 125, 140-142, 97 S.Ct. 401, 410-411, 50 L.Ed.2d 343.
45
S.Rep.No.92-415, p. 24 (1971), 1972 Leg.Hist. 433.
1
It seems significant that the Court today "adopts," ante, at 814, n. 16, the decision in Moore v. Sunbeam Corp., 459 F.2d 811 (CA7 1972), the initial opinion in which was filed prior to the passage of the 1972 reenactment of §§ 706(c) and (e). See id., at 830 (order on petition for rehearing). In Moore the Seventh Circuit stated that the legislative history of the 1972 re-enactment was not relevant to a proper interpretation of Title VII's filing requirements, as they were enacted in 1964. Ibid. Today, this Court goes a step further in failing to give that legislative history appropriate weight in interpreting the 1972 re-enactment.
2
The Senate Committee on Labor and Welfare explained the need for an amendment to the forerunner of § 706(c) in the following terms:
"The only change in the present law is to delete the phrase 'no charge may be filed' with the Commission by an aggrieved person in [a deferral] State or locality. The present statute is somewhat ambiguous respecting Commission action on charges filed prior to resort to the State or local agency. The new language clarifies the present statute by permitting the charge to be filed but prohibiting the Commission from taking action with respect thereto until the prescribed period has elapsed." S.Rep. No. 92-415, p. 36 (1971).
3
There is absolutely no support in the reports of the House debates for the Court's implication, ante, at 822-823, that the House expressly considered the desirability of effecting a change in the forerunner to § 706(c) and purposefully rejected the amendment that had been proposed by its Committee on Education and Labor.
4
The Court fails to credit the Williams-Javits section-by-section analysis as an authoritative interpretation of the 1972 re-enactment of § 706,
primarily because it fails to recognize the Conference Committee's intent that the re-enacted section be interpreted differently from the Court's perception of what would constitute "a sound interpretation of the 1964 enactment." Ante, at 823. It is the legislative history of the 1972 amendments that is of primary relevance here, and the compilation of that history prepared by the Subcommittee on Labor for use of the Senate Committee on Labor and Public Welfare (cited throughout the Court's opinion), endorse the Williams-Javits section-by-section analysis as "a more detailed explanation of all the provisions of the bill as viewed by the sponsors and legislative leaders." Legislative History of the Equal Employment Opportunity Act of 1972, (Committee Print compiled for the Senate Committee on Labor and Public Welfare by the Subcommittee on Labor), p. xv, n. 3 (1972). The analysis of re-enacted § 706 presented to the House by Representative Dent, discussed by the Court, ante. at 816, n. 19, on the other hand, does not purport to speak for the views of the sponsors and managers of the 1972 amendments. See 118 Cong.Rec. 7569 (1972).
5
The EEOC in its current regulations, 29 CFR § 1601.74(a) (1979), lists 42 statewide deferral agencies, in addition to deferral agencies for the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, and a substantial number of municipalities and counties.
6
The Court asserts that the prospective complainant will not be prejudiced unfairly by the adoption of its "240-day maybe" rule because "a lay person would be more apt to regard the general obligation of filing within 180 days as the standard of diligence he must satisfy." Ante, at 825. The Court's conclusion that the plain meaning of § 706(e), standing alone, is that a charge must be filed within 180 days in a deferral State is myopic, at best.
| 12
|
447 U.S. 715
100 S.Ct. 2432
65 L.Ed.2d 458
SUN SHIP, INC., Appellant,v.Commonwealth of PENNSYLVANIA et al.
No. 79-343.
Argued April 14, 1980.
Decided June 23, 1980.
Rehearing Denied Aug. 22, 1980.
See 448 U.S. 916, 101 S.Ct. 37.
Syllabus
Held: A State may apply its workers' compensation scheme to landbased injuries that fall within the coverage of the Longshoremen's and Harbor Workers' Compensation Act (Act), as amended in 1972. Pp. 717-726.
(a) Under the law governing jurisdiction over marine-related injuries before 1972, nonlocal maritime injuries fell under the Act, "maritime but local" injuries "upon the navigable waters of the United States," 33 U.S.C. § 903(a), could be compensated either under the Act or under state law, and injuries suffered beyond navigable waters—albeit within the range of federal admiralty jurisdiction—were remediable only under state law. Cf. Davis v. Department of Labor, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246; Calbeck v. Travelers Insurance Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368; Nacirema Operating Co. v. Johnson, 396 U.S. 212, 90 S.Ct. 347, 24 L.Ed.2d 371. Pp. 717-719.
(b) The extension of federal jurisdiction landward beyond the shoreline of the navigable waters of the United States under the 1972 amendments of the Act supplements, rather than supplants, state compensation law. The language of the 1972 amendments cannot fairly be understood as pre-empting state workers' remedies from the field of the Act, and thereby resurrecting the jurisdictional monstrosity that existed before the clarifying opinions in Davis, supra, and Calbeck, supra. Nor does the legislative history suggest a congressional decision to exclude state laws from the terrain newly occupied by the post-1972 Act. Pp. 719-722.
(c) The disparities which Congress had in view in amending the Act lay primarily in the paucity of relief under state compensation laws, and concurrent jurisdiction for state and federal compensation laws is not inconsistent with the amendments' policy of raising awards to a federal minimum. Even though, if state remedial schemes are more generous than federal law, concurrent jurisdiction could result in more favorable awards for workers' injuries than under an exclusively federal compensation system, there is no evidence that Congress was concerned about a disparity between adequate federal benefits and superior state benefits, the quid pro quo to employers for the 1972 landward extension of the Act being simply the abolition of the longshoremen's unseaworthiness remedy. Nor does the bare fact that the federal and state compensation systems are different give rise to a conflict that, from the employer's standpoint, necessitates exclusivity for each system within a separate sphere, since, even were the Act exclusive within its field, many employers would be compelled to abide by state-imposed responsibilities lest a claim fall beyond the Act's scope. Pp. 723-726.
41 Pa.Cmwlth. 302, 398 A.2d 1111, affirmed.
Jeffery C. Hayes, Philadelphia, Pa., for appellant.
Joseph Lurie, Philadelphia, Pa., for appellees.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The single question presented by these consolidated cases is whether a State may apply its workers' compensation scheme to land-based injuries that fall within the coverage of the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), as amended in 1972. 33 U.S.C. §§ 901-950. We hold that it may.
2
* The individual appellees are five employees of appellant Sun Ship, Inc., a shipbuilding and ship repair enterprise located on the Delaware River, a navigable water of the United States in Pennsylvania. Each employee was injured after the effective date of the 1972 amendments to the LHWCA while involved in shipbuilding or ship repair activities. Although the LHWCA applied to the injuries sustained, each appellee filed claims for benefits under the Pennsylvania Workmen's Compensation Act with state authorities. Appellant contended that the federal compensation statute was the employees' exclusive remedy. In upholding awards to each appellee,1 the Pennsylvania Workmen's Compensation Appeal Board ruled that the LHWCA did not pre-empt state compensation laws. The Commonwealth Court affirmed, and the Supreme Court of Pennsylvania denied petitions for allowance of appeal. We noted probable jurisdiction, 444 U.S. 1011, 100 S.Ct. 658, 62 L.Ed.2d 639 (1980), and affirm.
II
3
The evolution of the law of compensation for workers injured in maritime precincts is familiar. In 1917, Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, declared that States were constitutionally barred from applying their compensation systems to maritime injuries, and thus interfering with the overriding federal policy of a uniform maritime law. Subsequent decisions invalidated congressional efforts to delegate compensatory authority to the States within this national maritime sphere. Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 40 S.Ct. 438, 64 L.Ed. 834 (1920); Washington v. W. C. Dawson & Co., 264 U.S. 219, 44 S.Ct. 302, 68 L.Ed. 646 (1924). At the same time, the Court began to narrow the Jensen doctrine by identifying circumstances in which the subject of litigation might be maritime yet "local in character," and thus amenable to relief under state law. Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210 (1921); Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321 (1922). And, in 1927, Congress was finally successful in extending a measure of protection to marine workers excluded by Jensen by enacting a federal compensation law—the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. That statute provided, in pertinent part, that "[c]ompensation shall be payable [for an injury] . . . occurring upon the navigable waters of the United States . . . if recovery . . . through workmen's compensation proceedings may not validly be provided by State law." 44 Stat. 1426.
4
Federal and state law were thus linked together to provide theoretically complete coverage for maritime laborers. But the boundary at which state remedies gave way to federal remedies was far from obvious in individual cases. As a result, the injured worker was compelled to make a jurisdictional guess before filing a claim; the price of error was unnecessary expense and possible foreclosure from the proper forum by statue of limitations. Davis v. Department of Labor, 317 U.S. 249, 254, 63 S.Ct. 225, 228, 87 L.Ed. 246 (1942). After a decade and a half during which there had not been formulated "any guiding, definite rule to determine the extent of state power in advance of litigation," id., at 253, 63 S.Ct., at 227, the Court determined that the border between federal and state compensation schemes was less a line than a "twilight zone," in which "employees must have their rights determined case by case . . . ," id., at 256, 63 S.Ct., at 229. Within this zone, Davis effectively established a regime of concurrent jurisdiction.
5
Calbeck v. Travelers Insurance Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962), further overlapped federal and state-law coverage for marine workers. Calbeck held that the LHWCA comprehended "all injuries sustained by employees on navigable waters," id., at 124, 82 S.Ct., at 1202, without regard to whether the locus of an event was "maritime but local," and hence within the scope of state compensation provisions. We interpreted the statutory phrase "if recovery . . . may not validly be provided by State law" to mean that the LHWCA would
6
"reac[h] all those cases of injury to employees on navigable waters as to which Jensen, Knickerbocker and Dawson had rendered questionable the availability of a state compensation remedy . . . [,] whether or not a particular one was also within the constitutional reach of a state workmen's compensation law." Id., at 126-127, 82 S.Ct., at 1203.
7
Yet having extended the LHWCA into the "maritime but local" zone, Calbeck did not overturn Davis by treating the federal statute as exclusive. To the contrary, Calbeck relied upon Davis, and discussed at length its proposition that an injury within the "maritime but local" sphere might be compensated under either state or federal law. 370 U.S., at 128-129, 82 S.Ct., at 1204. So, too, Calbeck's explanation of Avondale Marine Ways, Inc. v. Henderson, 346 U.S. 366, 74 S.Ct. 100, 98 L.Ed. 77 (1953), indicated that although an injury might be compensable under the Longshoremen's Act, "there is little doubt that a state compensation act could validly have been applied to it." 370 U.S., at 129, 82 S.Ct., at 1204. Even more significantly, Calbeck's ruling that one of the employees in a consolidated case should not be held to have elected to pursue state remedies was necessarily premised upon the view that state relief was concurrently available. Id., at 131-132, 82 S.Ct., at 1205-1206; see alsoNacirema Co. v. Johnson, 396 U.S. 212, 220-221, 90 S.Ct. 347, 352-353, 24 L.Ed.2d 371 (1969); Nations v. Morris, 483 F.2d 577 (C.A.5 1973) (Brown, C.J.).
8
Before 1972, then, marine-related injuries fell within one of three jurisdictional spheres as they moved landward. At the furthest extreme, Jensen commanded that nonlocal maritime injuries fall under the LHWCA. "Maritime but local" injuries "upon the navigable waters of the United States," 33 U.S.C. § 903(a), could be compensated under the LHWCA or under state law. And injuries suffered beyond navigable waters—albeit within the range of federal admiralty jurisdiction—were remediable only under state law. Nacirema Co. v. Johnson, supra.
III
9
In 1972, Congress superseded Nacirema Co. v. Johnson by extending the LHWCA landward beyond the shoreline of the navigable waters of the United States. Pub.L. 92-576, 86 Stat. 1251, amending 33 U.S.C. § 903(a). In so doing, the Longshoremen's Act became, for the first time, a source of relief for injuries which had always been viewed as the province of state compensation law.
10
Absent any contradicting signal from Congress, the principles of Davis v. Department of Labor, supra, and of Calbeck v. Travelers Insurance Co., supra, direct the conclusion that the 1972 extension of federal jurisdiction supplements, rather than supplants, state compensation law. Given that the pre-1972 Longshoremen's Act ran concurrently with state remedies in the "maritime but local" zone, it follows that the post-1972 expansion of the Act landward would be concurrent as well. For state regulation of worker injuries is even more clearly appropriate ashore than it is upon navigable waters. Compare State Industrial Comm'n v. Nordenholt Corp., 259 U.S. 263, 42 S.Ct. 473, 66 L.Ed. 933 (1922), with Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917). Furthermore, the "jurisdictional dilemma," Davis, supra, 317 U.S., at 255, 63 S.Ct., at 228, that results when employees must claim relief under one of two exclusive compensation schemes is as acute when the jurisdictional boundary between schemes is fixed upon land, as it is when the line is drawn between two maritime spheres. To read the 1972 amendments as compelling laborers to seek relief under two mutually exclusive remedial systems would lead to the prejudicial consequences which we described in Davis as
11
"defeat[ing] the purpose of the federal act, which seeks to give 'to these hardworking men, engaged in a somewhat hazardous employment, the justice involved in the modern principle of compensation,' and the state acts . . . which ai[m] at 'sure and certain relief for workmen.' " 317 U.S., at 254, 63 S.Ct., at 228.
12
See Calbeck, supra, 370 U.S., at 126, 82 S.Ct., at 1203.
13
The language of the 1972 amendments cannot fairly be understood as pre-empting state workers' remedies from the field of the LHWCA, and thereby resurrecting the jurisdictional monstrosity that existed before the clarifying opinions in Davis and Calbeck. Appellant focuses our attention upon the deletion from amended § 903(a) of the phrase: "[i]f recovery . . . through workmen's compensation proceedings may not validly be provided by State law." But, if anything, that change reinforces our previous interpretation of that section as contemplating concurrent jurisdiction. Calbeck, supra, at 126, 82 S.Ct., at 1203. For it was that reference to state law which provided the strongest (although ultimately unsuccessful) argument for reading the pre-1972 § 903(a) as an exclusive jurisdictional provision. Calbeck, 370 U.S., at 132, 82 S.Ct., at 1206 (STEWART, J., dissenting). Whether Congress acceptedCalbeck's view that the state-law clause was consonant with concurrent jurisdiction, or the dissenters' construction of the clause as inconsistent with concurrent jurisdiction, the deletion of that language in 1972—if it indicates anything—may logically only imply acquiescence in Calbeck's conclusion that the LHWCA operates within the same ambit as state workers' remedies.2 It would be a tour de force of statutory misinterpretation to treat the removal of phrasing that arguably establishes exclusive jurisdiction as manifesting the intent to command such exclusivity.
14
Nor does the legislative history suggest a congressional decision to exclude state laws from the terrain newly occupied by the post-1972 Longshoremen's Act. Appellant can draw little support from general expressions of intent to alleviate unjust disparities in recovery conditioned upon the location of marine laborers at the time of an accident; as Part IV, infra, demonstrates, concurrency of jurisdiction in no way undercuts that commendable policy. And appellant is not much assisted by fixing upon the sentence in the bill Reports that declares:
15
"It is apparent that if the Federal benefit structure embodied in Committee bill is enacted, there would be a substantial disparity in benefits payable to a permanently disabled longshoreman, depending on which side of the water's edge the accident occurred, if State laws are permitted to continue to apply to injuries occurring on land." S.Rep.No.92-1125, p. 13 (1972); H.R.Rep.No.92-1441, p. 10 (1972), U.S.Code Cong. & Admin.News 1972, pp. 4698, 4707 (emphasis added).
16
That statement likely means only that state laws should not be permitted to apply exclusively to injuries occurring upon land; the "substantial disparity in benefits" that troubled Congress is eliminated once federal law provides a concurrent or supplementary route to compensation. And, in any event, as Professors Gilmore and Black have noted, "the statement does not appear to be entitled to much weight," since the "part of the Committee Report which is devoted to the shoreward extension of LH[W]CA coverage does not so much as mention the pre-1972 case law on 'maritime but local' and the 'twilight zone.' . . ." G. Gilmore & C. Black, The Law of Admiralty 425 (2d ed. 1975) (hereafter Gilmore & Black).3 In particular, there is no intimation of intent to overrule Davis and Calbeck —a significant omission in light of the care which the Reports elsewhere take in identifying the Supreme Court cases to be overturned by the abolition of longshoremen's actions for unseaworthiness. See S.Rep.No.92-1125, supra, at 8-12; H.R.Rep.No.92-1441, supra, at 4-8, U.S.Code Cong. & Admin.News 1972, p. 4698; Gilmore & Black 425.
17
We therefore find no sign in the 1972 amendments to the LHWCA that Congress wished to alter the accepted understanding that federal jurisdiction would coexist with state compensation laws in that field in which the latter may constitutionally operate under the Jensen doctrine.4
IV
18
Appellant vigorously contends, nevertheless, that jurisdictional exclusivity is—in "fact" or in "law"—implied in the LHWCA. Pointing to declarations of congressional policy to eliminate disparities in compensation to marine workers depending on whether they were injured on land or over water, S.Rep.No.92-1125, supra, at 12-13; H.R.Rep.No.92-1441, supra, at 10-11, U.S.Code Cong. & Admin.News 1972, at 4707, appellant urges that concurrent remedial jurisdiction on land would defeat the uniformity principle underlying the statute.
19
As the Reports make clear, the disparities which Congress had in view in amending the LHWCA lay primarily in the paucity of relief under state compensation laws.5 The thrust of the amendments was to "upgrade the benefits." S.Rep.No.92-1125, supra, at 1; see Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 261-262, 97 S.Ct. 2348, 2356, 53 L.Ed.2d 320 (1977). Concurrent jurisdiction for state and federal compensation laws is in no way inconsistent with this policy of raising awards to a federal minimum. When laborers file claims under the LHWCA, they are compensated under federal standards. And workers who commence their actions under state law will generally be able to make up the difference between state and federal benefit levels by seeking relief under the Longshoremen's Act, if the latter applies.6
20
To be sure, if state remedial schemes are more generous than federal law, concurrent jurisdiction could result in more favorable awards for workers' injuries than under an exclusively federal compensation system.7 But we find no evidence that Congress was concerned about a disparity between adequate federal benefits and superior state benefits. Rather, it seems that the quid pro quo to the employers for the landward extension of the LHWCA by the 1972 amendments was simply abolition of the longshoremen's unseaworthiness remedy. See S.Rep.No.92-1125, supra, at 4-5; H.R.Rep.No.92-1141, supra, at 1, U.S.Code Cong. & Admin.News 1972, at 4698; Northeast Marine Terminal Co. v. Caputo, supra, at 261-262, 97 S.Ct., at 2356. Indeed, it is noteworthy that in their discussion of advantages to employers under the 1972 amendments, the bill Reports dwell upon the rejection of the unseaworthiness action, and do not mention pre-emption of state remedies. See S.Rep.No.92-1125, supra, at 4-5; H.R.Rep.No.92-1441, supra, at 1, U.S.Code Cong. & Admin.News 1972, at 4698.
21
Finally, we are not persuaded that the bare fact that the federal and state compensation systems are different gives rise to a conflict that, from the employer's standpoint, necessitates exclusively for each compensation system within a separate sphere. Mandating exclusive jurisdiction will not relieve employers of their distinct obligations under state and federal compensation law. The line that circumscribes the jurisdictional compass of the LHWCA—a compound of "status" and "situs"—is no less vague than its counterpart in the pre-"twilight zone" Jensen era. See generally P. C. Pfeiffer Co. v. Ford, 444 U.S. 69, 100 S.Ct. 328, 62 L.Ed.2d 225 (1979); Northeast Marine Terminal Co. v. Caputo, supra; Gilmore & Black 424, 428-430; 4 A. Larson, Law of Workmen's Compensation § 89.70, p. 16-283 (1979). Thus, even were the LHWCA exclusive within its field, many employers would be compelled to abide by state-imposed responsibilities lest a claim fall beyond the scope of the LHWCA.8 Our observation about exclusive jurisdiction in Davis v. Department of Labor, is apt whether jurisdictional barriers are erected on land or at the water's edge: "The horns of the jurisdictional dilemma press as sharply on employers as on employees." 317 U.S., at 255, 63 S.Ct., at 228.
22
Of one thing we may be certain. The exclusivity rule which appellant urges upon us would thrust employees into the same jurisdictional peril from which they were rescued by Davis and Calbeck v. Travelers Insurance Co. See Gilmore & Black 425.9 The legislative policy animating the LHWCA's landward shift was remedial; the amendments' framers acted out of solicitude for the workers. See P. C. Pfeiffer Co., supra, at 74-75, 100 S.Ct., at 333; Northeast Marine Terminal Co., 432 U.S., at 268, 97 S.Ct., at 2359. To adopt appellant's position, then, would blunt the thrust of the 1972 amendments, and frustrate Congress' intent to aid injured maritime laborers. We decline to do so in the name of "uniformity."
23
Accordingly, we affirm.
24
It is so ordered.
1
Initially referees heard each of the claims. Four referees granted compensation, rejecting appellant's pre-emption argument. The referee in appellee Fields' case determined that a compensable injury had been inflicted, but agreed with appellant's jurisdictional contention, and dismissed the case.
2
If Congress jointed in Calbeck's understanding that the phrase underscored the LHWCA's application where state-law compensability had been drawn into question by Jensen, then the striking of the language may be explained on the ground of its superfluity once Congress had pushed the federal Act landward beyond the Jensen line. If the Court took the dissenters' position that the state-law clause imposed jurisdictional exclusivity, then its deletion indicates repeal of any such exclusivity. Finally, Congress may simply have endeavored to reaffirm the correctness of the Calbeck result by removing possibly contradictory language.
3
"It may be that the writer of the Report mistakenly assumed that the LH[W]CA had always provided the exclusive compensation remedy for injuries which occurred on navigable waters and consequently assumed that it would also be exclusive with respect to the land injuries newly covered by the amendments." Gilmore & Black 425.
4
Appellant also argues that a mandate for exclusive jurisdiction may be discerned in 33 U.S.C. § 905(a), which provides in pertinent part that "[t]he liability of an employer . . . shall be exclusive and in place of all other liability of such employer to the employee. . . ." Since that provision predates the 1972 amendments, however, appellant's interpretation would also discredit our previous decisions in Davis v. Department of Labor, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246 (1942), and Calbeck v. Travelers Insurance Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962). In fact, Calbeck upheld an award under the LHWCA against which had been credited payments made under the aegis of a state compensation statute; we noted that 33 U.S.C. § 905 was "not involved in this case," 370 U.S., at 132, n. 16, 82 S.Ct., at 1206, n. 16. Thus, we did not construe § 905(a) to exclude remedies offered by other jurisdictions. See Gilmore & Black 432-433, and n. 335d; cf. Industrial Comm'n v. McCartin, 330 U.S. 622, 67 S.Ct. 886, 91 L.Ed. 1140 (1947). The 1972 amendments signify no rejection of this interpretation.
5
"To make matters worse, most State Workmen's Compensation laws provide benefits which are inadequate; even the better State laws generally come nowhere close to meeting the National Commission on State Workmen's Compensation Laws recommended standard of a maximum limit on benefits . . . ." S.Rep.No.92-1125, p. 12 (1972); H.R.Rep.No.92-1441, p. 10 (1972), U.S.Code Cong. & Admin.News 1972, at 4707.
6
Most often, state workmen's compensation laws will not be treated as making awards thereunder final or conclusive. See Calbeck v. Travelers Insurance Co., supra, at 131-132, 82 S.Ct., at 1205-1206; Industrial Comm'n v. McCartin, supra; Gilmore & Black 431-433; 4 A. Larson, Law of Workmen's Compensation §§ 85.20, 89.53(a) and (b) (1979); Larson, The Conflict of Laws Problem Between the Longshoremen's Act and State Workmen's Compensation Acts, 45 S.Cal.L.Rev. 699, 729-730 (1972). Admittedly, if a particular state compensation law provision does indisputably declare its awards final, a conflict with the LHWCA may possibly arise where a claimant seeks inferior state benefits in the first instance. But the consequences to the claimant of this error would be less drastic than those of a mistake under the rule appellant contemplates—under which a misstep could result in no benefits. At any rate, although the question is not directly before us, we observe that if federal preclusion ever need be implied to cope with this remote contingency, a less disruptive approach would be to pre-empt the state compensation exclusivity clause, rather than to pre-empt the entire state compensation statute as appellant suggests.
7
But this situation will be exceedingly rare. See 4 A. Larson, Law of Workmen's Compensation, supra, § 89.27, at 16-180.
8
See also, Larson, 45 S.Cal.L.Rev., supra, at 736-737.
Of course, there is no danger of double recovery under concurrent jurisdiction since employers' awards under one compensation scheme would be credited against any recovery under the second scheme. See, e. g., Calbeck v. Travelers Insurance Co., supra, at 131, 82 S.Ct., at 1205.
9
"Indeed a theory of concurrent jurisdiction . . . seems to be the only sensible way of dealing with state and federal statutes which meet at some vaguely defined line." Gilmore & Black 425.
| 78
|
447 U.S. 752
100 S.Ct. 2455
65 L.Ed.2d 488
ROADWAY EXPRESS, INC., Petitioner,v.Robert E. PIPER, Jr., et al.
No. 79-701.
Argued April 15, 1980.
Decided June 23, 1980.
Syllabus
Respondents were counsel for the plaintiffs in a civil rights class action in Federal District Court against petitioner alleging that its employment policies discriminated on the basis of race. Because respondents failed to comply with orders relating to discovery and the filing of briefs, petitioner moved to dismiss the suit and requested an award of attorney's fees and court costs under Federal Rule of Civil Procedure 37. The District Court dismissed the action with prejudice and ordered respondents to pay petitioner's costs and attorney's fees for the entire lawsuit. The court found justification for its ruling in the confluence of the civil rights statutes, 42 U.S.C. §§ 1988, 2000e-5(k), which allow the prevailing party to recover attorney's fees "as part of the costs" of litigation, and 28 U.S.C. § 1927, which permits a court to tax the excess "costs" of a proceeding against a lawyer "who so multiplies the proceedings . . . as to increase costs unreasonably and vexatiously . . . ." However, the Court of Appeals vacated and remanded, holding that respondents were not liable for attorney's fees and rejecting the view that the civil rights statutes could be read into § 1927.
Held:
1. Title 28 U.S.C. § 1927 cannot be read to support the sanction of taxing attorney's fees against counsel who unreasonably extend court proceedings, by defining the term "costs" therein according to the civil rights statutes as including attorney's fees. Pp. 757-763.
(a) It may be assumed that when the first version of § 1927 was enacted in 1813, Congress followed the "American rule" that attorney's fees ordinarily are not among the "costs" that a winning party may recover. In an 1853 statute Congress substantially re-enacted the provisions now codified in § 1927 as part of a uniform, comprehensive measure setting the fees and costs for all federal actions. The history of the 1853 Act suggests that § 1927 should be read together with the provisions currently codified in 28 U.S.C. § 1920 which, without including attorney's fees, enumerate the costs that ordinarily may be taxed to a losing party. Moreover, petitioner offered no evidence that Congress intended to incorporate into § 1927 the attorney's fee provisions of 42 U.S.C. §§ 1988, 2000e-5(k), which do not mention attorney liability for costs and fees. Pp. 759-761.
(b) The statutory interpretation proposed by petitioner could introduce into § 1927 distinctions unrelated to its goal of controlling abuses of judicial processes. The fee provisions of the civil rights laws are sensitive to the merits of the action and to antidiscrimination policy, restrict recovery to prevailing parties, and have been construed to treat plaintiffs and defendants somewhat differently. In contrast, § 1927 does not distinguish between winners and losers or between plaintiffs and defendants, and is indifferent to the equities of a dispute and to the values advanced by the substantive law. Moreover, petitioner's statutory construction would create an unjustifiable two-tier system of attorney sanctions whereby lawyers in cases brought under statutes permitting the award of attorney's fees would face stiffer penalties for prolonging litigation than would other attorneys. Pp. 761-763.
2. Rule 37(b)'s sanctions for failure to comply with discovery orders, including holding parties and counsel personally liable for expenses, "including attorney's fees," must be applied diligently both to penalize those whose conduct may be deemed to warrant such a sanction, and to deter those who might be tempted to such conduct in the absence of such a deterrent. National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747. On remand, the District Court will have the authority to act upon petitioner's request for costs and attorney's fees under Rule 37(b). Pp. 763-764.
3. In narrowly defined circumstances federal courts have inherent power to assess attorney's fees against counsel. The general rule is that a litigant cannot recover his counsel fees, but that rule does not apply when the opposing party has acted in bad faith, including bad faith in the conduct of the litigation. In view of a court's power over members of its bar, if it may tax counsel fees against a party who has litigated in bad faith, it certainly may assess those expenses against counsel who willfully abuse judicial processes. In this case, the trial court did not make a specific finding as to whether counsel's conduct constituted or was tantamount to bad faith, a finding that should precede any sanction under the court's inherent powers. Pp. 764-767.
5th Cir., 599 F.2d 1378, affirmed and remanded.
M. Curtiss McKee, Jackson, Miss., for petitioner.
Herschel E. Richard, Jr., Shreveport, La., for respondents.
Harriet S. Shapiro, Washington, D. C., for the United States, as amicus curiae, by special leave of Court.
Mr. Justice POWELL delivered the opinion of the Court.
1
This case presents the question whether federal courts have statutory or inherent power to tax attorney's fees directly against counsel who have abused the processes of the courts.
2
* In June 1975, two former employees and one unsuccessful job applicant brought a civil rights class action against petitioner Roadway Express, Inc. (Roadway). The complaint filed in the United States District Court for the Western District of Louisiana alleged that Roadway's employment policies discriminated on the basis of race, and asked for equitable relief.1
3
Counsel for the plaintiffs—Robert E. Piper, Jr., Frank E. Brown, Jr., and Bobby Stromile—are the respondents in the present case. In September 1975, respondents served interrogatories on Roadway. Having secured an extension from the District Court, Roadway answered the interrogatories on January 5, 1976, and served its own set of interrogatories at the same time. Thereafter, however, the litigation was stalled by respondents' uncooperative behavior.
4
On April 13, 1976, Roadway moved for an order compelling answers to its interrogatories. The motion was set for argument on the morning of April 21, but counsel for the plaintiffs did not appear. They did attend a rescheduled hearing that afternoon, and the Magistrate ordered that the interrogatories be answered by May 24. Respondents ignored that deadline and, in fact, never answered the interrogatories. Roadway also served notice in April that it would take depositions from all three plaintiffs in early May. One of the plaintiffs did not appear on the appointed days, however, and he never was deposed.
5
The respondents showed no greater respect for the orders of the District Court than for the requests of their adversaries. On April 7, the court instructed counsel for both sides to file briefs evaluating the impact of a recent decision in a related case. Although respondents' brief was due within 10 days, nothing arrived for six weeks. On May 19, the District Court gave respondents 10 additional days to file a brief or face dismissal of the action. No brief was ever submitted.
6
On June 14, Roadway moved to dismiss the suit under Federal Rule of Civil Procedure 37.2 Roadway also requested an award of attorney's fees and court costs. On June 30, the District Court heard argument and dismissed the action with prejudice. A second hearing, limited to the question of costs and attorney's fees, was held in October 1976.
7
The District Court's opinion sharply criticized the respondents for their "deliberate inaction" in handling the case. Monk v. Roadway Express, Inc., 73 F.R.D. 411, 417 (1977). Observing that respondents apparently had not advised their clients that the suit was a class action, id., at 414, 417, the court concluded that the three lawyers "improvidently enlarged and inadequately prosecuted" the action, id., at 417. As a sanction, the court ordered them to pay Roadway's costs and attorney's fees for the entire lawsuit. The total assessment exceeded $17,000. Monk v. Roadway Express, Inc., 599 F.2d 1378, 1381 (CA5 1979).
8
The District Court found justification for its ruling in the confluence of several statutes. The civil rights statutes allow the prevailing party to recover attorney's fees "as part of the costs" of litigation. See 42 U.S.C. §§ 1988, 2000e-5(k). And 28 U.S.C. § 1927 permits a court to tax the excess "costs" of a proceeding against a lawyer "who so multiplies the proceedings . . . as to increase costs unreasonably and vexatiously . . . ."3 Read together, the District Court concluded, the statutes authorize the assessment of costs and attorney's fees against respondents.
9
The United States Court of Appeals for the Fifth Circuit found no clear error in the ruling that respondents had violated § 1927. 599 F.2d, at 1381. The appellate court held, however, that respondents were not liable for attorney's fees. It rejected the District Court's view that the civil rights statutes can be read into § 1927. The civil rights laws, the court wrote, "provide for attorneys' fees awards against unsuccessful parties to a suit, and they focus on actions which are frivolous, unreasonable and baseless. . . ." 599 F.2d, at 1383 (emphasis in original). In contrast, § 1927 deals only with attorney conduct and involves taxing costs against counsel. The Court of Appeals vacated the District Court's order and remanded for recalculation of costs under § 1927. We granted certiorari, 444 U.S. 1012, 100 S.Ct. 659, 62 L.Ed.2d 640 (1980).
II
10
This case involves the problem of what sanctions may be imposed on lawyers who unreasonably extend court proceedings.4 Two specific provisions have been said to be controlling in this case: 28 U.S.C. § 1927, and Federal Rule of Civil Procedure 37. This opinion considers both provisions.
11
Section 1927 provides that lawyers who multiply court proceedings vexatiously may be assessed the excess "costs" they create. The provision, however, does not define the critical word. Only if "costs" includes attorney's fees can § 1927 support the sanction in this case.
12
Courts generally have defined costs under § 1927 according to 28 U.S.C. § 1920, which enumerates the costs that ordinarily may be taxed to a losing party. E. g., United States v. Ross, 535 F.2d 346, 350 (CA6 1976); Kiefel v. Las Vegas Hacienda, Inc., 404 F.2d 1163, 1170 (CA7 1968), cert. denied sub nom. Hubbard v. Kiefel, 395 U.S. 908, 89 S.Ct. 1750, 23 L.Ed.2d 221 (1969). Section 1920 lists clerk's and marshal's fees, court reporter charges, printing and witness fees, copying costs, interpreting costs, and the fees of court-appointed experts. Section 1920 also permits the assessment of the attorney "docket" fees set by 28 U.S.C. § 1923. In this case, that fee is $20. 28 U.S.C. § 1923(a).
13
Roadway insists, however, that its recovery should not be restricted to the costs listed in § 1920. It argues that since courts look to § 1920 to determine the costs taxable under § 1927, they should be equally free to define costs according to other statutes that may be involved in a lawsuit. Roadway emphasizes that the civil rights statutes allow the award of attorney's fees "as part of the costs" of the litigation. 42 U.S.C. § 2000e-5(k); 42 U.S.C. § 1988.5 Accordingly, Roadway asks that we reinstate the District Court's award. This superficially appealing argument cannot survive careful consideration.
14
* Congress enacted the first version of § 1927 in 1813. It was drafted by a Senate Committee appointed "to inquire what Legislative provision is necessary to prevent multiplicity of suits or processes, where a single suit or process might suffice. . . ." 26 Annals of Cong. 29 (1813). The resulting legislation provided in part that any person who "multiplied the proceedings in any cause . . . so as to increase costs unreasonably and vexatiously" could be held liable for "any excess of costs so incurred." Act of July 22, 1813, 3 Stat. 21. The sparse legislative history makes this provision difficult to interpret.6
15
In construing "costs," however, we may look to the contemporaneous understanding of the term. Cf. Gilbert v. United States, 370 U.S. 650, 655, 82 S.Ct. 1399, 1402, 8 L.Ed.2d 750 (1962). In 1796 the Court decided Arcambel v. Wiseman, 3 Dall. 306, 1 L.Ed. 613. That ruling overturned an award of counsel fees on the ground that "[t]he general practice of the United States is in op[p]osition to it." Ibid. Thus, the Court recognized the "American rule" that attorney's fees ordinarily are not among the costs that a winning party may recover. See Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717-718, 87 S.Ct. 1404, 1406-1407, 18 L.Ed.2d 475 (1967). We may assume that Congress followed that rule when it approved the 1813 Act.
16
Congress returned to the problems of the federal courts in 1853, when it approved a comprehensive measure setting the fees and costs for all federal actions. Act of Feb. 26, 1853, 10 Stat. 161, 162; see Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 251-253, 95 S.Ct. 1612, 1618-1619, 44 L.Ed.2d 141 (1975). Some of those provisions survive, largely intact, in 28 U.S.C. §§ 1920 and 1923. See 10 Stat. 161-162, 168. The 1853 statute also substantially re-enacted the earlier provision that allows lawyers who multiply legal proceedings to be taxed with the extra "costs" they generate. That provision, now codified as § 1927, has remained basically unchanged since 1853.7
17
This history suggests that § 1920 and § 1927 should be read together as part of the integrated statute approved in 1853. See Erlenbaugh v. United States, 409 U.S. 239, 243-244, 93 S.Ct. 477, 480, 34 L.Ed.2d 446 (1972); 2A C. Sands, Sutherland on Statutory Construction § 51.03, p. 299 (4th ed. 1973). The 1853 Act specified the costs recoverable in federal litigation and also allowed the award of excess "costs" against counsel who vexatiously multiply litigation. The most reasonable construction is that the Act itself defined those costs that may be recovered from counsel. Congress, of course, may amend those provisions that derive from the 1853 Act.8 In the absence of express modification of those provisions by Congress, however, we should not look beyond the Act for the definition of costs under § 1927.
18
The available legislative material supports this view. Congress in 1853 prescribed taxable costs for the same reasons it authorized the assessment of costs against dilatory attorneys: "[T]o prevent abuses arising from ingenious constructions . . . to discourage unnecessary prolixity, old useless forms, and the multiplication of proceedings, and the prosecutions of several suits which might better be joined in one." H.R.Rep.No.50, 32d Cong., 1st Sess., 6 (1852); see also Alyeska Pipeline Co. v. Wilderness Society, supra, at 251-253, 95 S.Ct., at 1618-1619. Above all, Congress sought to standardize the treatment of costs in federal courts, to "make them uniform—make the law explicit and definite." H.R.Rep.No.50, supra, at 6. The sponsor of the legislation spoke of the need for "uniform rule[s]," Cong.Globe, 32d Cong., 2d Sess., App. 207 (1853) (Sen. Bradbury), while other Senators agreed that the legislation was designed to impose "uniformity," id., at 584 (Sen. Bayard); see also id., at 589 (Sen. Geyer).
19
Roadway presses us to abandon the uniform approach of the 1853 Act. Because prevailing parties now may recover counsel fees in civil rights suits, Roadway argues that the statutes authorizing those recoveries should be read to modify § 1927. But Roadway offers no evidence that Congress intended to incorporate those attorney's fee provisions into § 1927. Neither § 1988 nor § 2000e-5(k) makes any mention of attorney liability for costs and fees. Roadway identifies nothing in the legislative records of those provisions that suggests that Congress meant to control the conduct of litigation.9 Without any evidence that Congress wished to alter the uniform structure established by the 1853 Act, we are reluctant to disrupt it. See Fleischmann Distilling Corp. v. Maier Brewing Co., supra, at 719-720, 87 S.Ct., at 1407-1408.
2
20
The statutory interpretation proposed by Roadway not only runs counter to the apparent intent of Congress in 1813 and 1853, but also could introduce into the statute distinctions unrelated to its goal. Indeed, Roadway's argument could result in virtually random application of § 1927 on the basis of other laws that do not address the problem of controlling abuses of judicial processes.
21
The fee provisions of the civil rights laws are acutely sensitive to the merits of an action and to antidiscrimination policy. Unlike § 1927, both § 1988 and § 2000e-5(k) restrict recovery to prevailing parties. In addition, those provisions have been construed to treat plaintiffs and defendants somewhat differently. Prevailing plaintiffs in civil rights cases win fee awards unless "special circumstances would render such an award unjust," Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968) (per curiam ), but a prevailing defendant may be awarded counsel fees only when the plaintiff's underlying claim is "frivolous, unreasonable, or groundless." Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978). This distinction advances the congressional purpose to encourage suits by victims of discrimination while deterring frivolous litigation.
22
But § 1927 does not distinguish between winners and losers, or between plaintiffs and defendants. The statute is indifferent to the equities of a dispute and to the values advanced by the substantive law. It is concerned only with limiting the abuse of court processes. Dilatory practices of civil rights plaintiffs are as objectionable as those of defendants. In order to assess counsel fees against respondents under § 1927, the Court would have to adopt one of two alternatives. It could incorporate into § 1927 the normative considerations of the civil rights laws that are foreign to the 1813 enactment. Or the Court could select on an ad hoc basis those features of § 1988 and § 2000e-5(k) that should be read into § 1927. The first course would alter fundamentally the nature of § 1927; the second would constitute standardless judicial lawmaking.
23
Moreover, Roadway's statutory construction would create a two-tier system of attorney sanctions. A number of federal statutes permit the award of attorney's fees. See Alyeska Pipeline Co. v. Wilderness Society, 421 U.S., at 260, n. 33, 95 S.Ct., at 1623, n. 33. Under Roadway's view of § 1927, lawyers in cases brought under those statutes would face stiffer penalties for prolonging litigation than would other attorneys. There is no persuasive justification for subjecting lawyers in different areas of practice to differing sanctions for dilatory conduct. A court's processes may be as abused in a commercial case as in a civil rights action. Without an express indication of congressional intent, we must hesitate to reach the imaginative outcome urged by Roadway, particularly when a more plausible construction flows from the original enactments in 1813 and 1853. To avoid the arbitrary results of Roadway's argument, Commissioner v. Brown, 380 U.S. 563, 571, 85 S.Ct. 1162, 1166, 14 L.Ed.2d 75 (1965), citing Helvering v. Hammel, 311 U.S. 504, 510-511, 61 S.Ct. 368, 371, 85 L.Ed. 303 (1941), we must reject the claim that § 1988 and § 2000e-5(k) may supplant the framework established by the 1853 Act.
B
24
Federal Rule of Civil Procedure 37(b) authorizes sanctions for failure to comply with discovery orders. The District Court may bar the disobedient party from introducing certain evidence, or it may direct that certain facts shall be "taken to be established for the purposes of the action. . . ." The Rule also permits the trial court to strike claims from the pleadings, and even to "dismiss the action . . . or render a judgment by default against the disobedient party." See National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976) (per curiam ); Dellums v. Powell, 184 U.S.App.D.C. 339, 566 F.2d 231 (1977). Both parties and counsel may be held personally liable for expenses, "including attorney's fees," caused by the failure to comply with discovery orders.10 Rule 37 sanctions must be applied diligently both "to penalize those whose conduct may be deemed to warrant such a sanction, [and] to deter those who might be tempted to such conduct in the absence of such a deterrent." National Hockey League v. Metropolitan Hockey Club, supra, at 643, 96 S.Ct., at 2781.
25
The respondents in this case never have complied with the District Court's order that they answer Roadway's interrogatories. That failure was the immediate ground for dismissing the case, 73 F.R.D., at 412, and it also exposed respondents and their clients to liability under Rule 37(b) for the resulting costs and attorney's fees. Indeed, Roadway's motion for dismissal sought recovery of those expenses under Rule 37. On the remand of this action, the District Court will have the authority to act upon that request.
III
26
Roadway also contends that the District Court's ruling was a proper exercise of the court's inherent powers.11 The inherent powers of federal courts are those which "are necessary to the exercise of all others." United States v. Hudson, 7 Cranch 32, 34, 3 L.Ed. 259 (1812). The most prominent of these is the contempt sanction, "which a judge must have and exercise in protecting the due and orderly administration of justice and in maintaining the authority and dignity of the court . . . ." Cooke v. United States, 267 U.S. 517, 539, 45 S.Ct. 390, 395, 69 L.Ed. 767 (1925); see 4 W. Blackstone, Commentaries *282-*285. Because inherent powers are shielded from direct democratic controls, they must be exercised with restraint and discretion. See Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 450-451, 31 S.Ct. 492, 501-502, 55 L.Ed. 797 (1911); Green v. United States, 356 U.S. 165, 193-194, 78 S.Ct. 632, 648, 2 L.Ed.2d 672 (1958) (Black, J., dissenting). There are ample grounds for recognizing, however, that in narrowly defined circumstances federal courts have inherent power to assess attorney's fees against counsel.
27
In Link v. Wabash R. Co., 370 U.S. 626, 632, 82 S.Ct. 1386, 1389, 8 L.Ed.2d 734 (1962), this Court recognized the "well-acknowledged" inherent power of a court to levy sanctions in response to abusive litigation practices. The trial court had dismissed an action for failure to prosecute. Mr. Justice Harlan wrote for the Court:
28
"The authority of a federal trial court to dismiss a plaintiff's action with prejudice because of his failure to prosecute cannot seriously be doubted. The power to invoke this sanction is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Courts. The power is of ancient origin, having its roots in judgments of nonsuit and non prosequitur entered at common law, e. g., 3 Blackstone, Commentaries (1768), 295-296, and dismissals for want of prosecution of bills in equity, e. g., id., at 451." Id., at 629-630, 82 S.Ct., at 1388 (footnote omitted).
29
The Court denied that Federal Rule of Civil Procedure 41(b) limits a court's power to dismiss for failure to prosecute to instances where a defendant moves for dismissal. The Court wrote: "The authority . . . to dismiss sua sponte for lack of prosecution has generally been considered an 'inherent power,' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs . . . ." 370 U.S., at 630, 82 S.Ct., at 1389. Since the assessment of counsel fees is a less severe sanction than outright dismissal, Link strongly supports Roadway's contention here.
30
Of course, the general rule in federal courts is that a litigant cannot recover his counsel fees. See Alyeska Pipeline Co. v. Wilderness Society, 421 U.S., at 257, 95 S.Ct., at 1621. But that rule does not apply when the opposing party has acted in bad faith. In Alyeska, we acknowledged the "inherent power" of courts to
31
"assess attorneys' fees for the 'willful disobedience of a court order . . . as part of the fine to be levied on the defendant[,] Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 426-428, [43 S.Ct. 458, 465-466, 67 L.Ed. 719] (1923), Fleischmann Distilling Corp. v. Maier Brewing Co., supra, [386 U.S.,] at 718, [87 S.Ct., at 1407,] or when the losing party has 'acted in bad faith, vexatiously, wantonly, or for oppressive reasons . . . .' F. D. Rich Co. [v. United States ex rel. Industrial Lumber Co.], 417 U.S. [116], at 129, [94 S.Ct. 2157, at 2165, 40 L.Ed.2d 703] [(1974)] (citing Vaughan v. Atkinson, 369 U.S. 527, [82 S.Ct. 997, 8 L.Ed.2d 88] (1962))." Id., at 258-259, 95 S.Ct., at 1622.
32
The bad-faith exception for the award of attorney's fees is not restricted to cases where the action is filed in bad faith. " '[B]ad faith' may be found, not only in the actions that led to the lawsuit, but also in the conduct of the litigation." Hall v. Cole, 412 U.S. 1, 15, 93 S.Ct. 1943, 1951, 36 L.Ed.2d 702 (1973). See Browning Debenture Holders' Comm. v. DASA Corp., 560 F.2d 1078, 1088 (CA2 1977). This view coincides with the ruling in Link, supra, which approved judicial power to dismiss a case not because the substantive claim was without merit, but because the plaintiff failed to pursue the litigation.
33
The power of a court over members of its bar is at least as great as its authority over litigants.12 If a court may tax counsel fees against a party who has litigated in bad faith, it certainly may assess those expenses against counsel who willfully abuse judicial processes. See Renfrew, Discovery Sanctions: A Judicial Perspective, 67 Calif.L.Rev. 264, 268 (1979).13 Like other sanctions, attorney's fees certainly should not be assessed lightly or without fair notice and an opportunity for a hearing on the record.14 But in a proper case, such sanctions are within a court's powers.
IV
34
We affirm the ruling of the Court of Appeals on § 1927. Since the District Court did not consider the costs and fees that Roadway might recover under Rule 37, that question must be addressed on remand. Similarly, the trial court did not make a specific finding as to whether counsel's conduct in this case constituted or was tantamount to bad faith, a finding that would have to precede any sanction under the court's inherent powers. The case is remanded to the Court of Appeals with directions to return it to the District Court for proceedings consistent with this opinion.
35
So ordered.
36
Mr. Justice BLACKMUN, concurring in part and dissenting in part.
37
I join the Court's opinion except Part II-A thereof and except the first sentence of Part IV thereof.
38
Essentially for the reasons stated in the first three paragraphs of the respective opinions of THE CHIEF JUSTICE and of Mr. Justice STEVENS, I do not join Part II-A. I add to those reasons my concern that the Court's analysis means that 28 U.S.C. § 1927 does not permit imposition on opposing counsel of "excess" attorney's fees generated by his vexatiousness and otherwise shifted to his client under 42 U.S.C. § 2000e-5(k), 42 U.S.C. § 1988, or any other specialized attorney's fees provisions. See Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 260, n. 33, 95 S.Ct. 1612, 1623, n. 33, 44 L.Ed.2d 141 (1975) (collecting statutes). This construction of the statute penalizes the innocent client while insulating his wrongdoing attorney. That result, in my view, clashes with common sense, basic fairness, and the plain meaning of the statute. See Owen v. City of Independence, 445 U.S. 622, 654, 100 S.Ct. 1398, 1417, 63 L.Ed.2d 673 (1980) ("Elemental notions of fairness dictate that one who causes a loss should bear the loss"). See also 122 Cong.Rec. 31832 (1976) (regarding proposed § 1988: "Mr. ABOUREZK. So if somebody thought, some lawyer thought, he was going to make a lot of money by bringing civil rights suits he would be subject to being penalized himself ; is that not correct? Mr. HATHAWAY. The Senator is correct") (emphasis added).1
39
Significantly different considerations of policy and fairness bear on the inherent-power issue addressed in Part III of the Court's opinion. I believe, however, that the opinion marshals persuasive reasons for recognizing a component of the bad-faith exception of the American Rule authorizing recovery of attorney's fees directly from a vexatious opposing counsel.2
40
Mr. Justice STEVENS, concurring in part and dissenting in part.
41
By its terms, 28 U.S.C. § 1927 applies to "cases in any court of the United States" and allows the recovery of excess costs from "[a]ny attorney" who vexatiously multiplies the proceedings "in any case."1 This language is broad enough to encompass a civil rights class action alleging racial discrimination in employment. Two separate statutes specifically authorize the recovery of attorney's fees "as part of the costs" in this kind of litigation.2 Of course, such fees, like any other cost items, are normally recoverable only from the losing litigant rather than from the attorney personally. But it seems to me that § 1927 gives the court the power to assess against counsel any item of cost that could be assessed against a party when that attorney unreasonably and vexatiously multiplies the proceedings.
42
The Court seems concerned about the fact that the standards for allowing a party to recover fees differ for plaintiffs and defendants in civil rights litigation. Ante, at 762. I simply do not understand the relevance of that concern. As I read § 1927, the sanction may be applied to an obstreperous lawyer regardless of whether his client prevails, so long as fees may be awarded as part of the costs in the litigation.
43
The Court also states that there "is no persuasive justification" for subjecting lawyers in different areas of practice to the risk of differing sanctions. Ante, at 763. But Congress has made a legislative decision to treat lawyers in civil rights litigation differently than they are treated in most types of litigation. Because of that congressional determination, lawyers in these cases are more likely to be well paid than other lawyers and, conversely, their misconduct may subject their clients to liability for the fees of opposing counsel. A conclusion that such special treatment also subjects these lawyers to an additional risk for failing to observe the normal proprieties that obtain in litigation does not strike me as anomalous.
44
Ironically, the Court rejects my rather straightforward approach to the statutory language because it "would constitute standardless judicial lawmaking" ante, at 762, but then, in Part III of its opinion, embarks on a venture of its own that surely fits that description neatly. Although a trial court has inherent contempt powers, I have the gravest doubts about its inherent power to order a lawyer to pay damages to an opposing litigant. Since it is not at all necessary to reach out to decide that issue, however, I would simply answer the statutory question presented by the certiorari petition.
45
Although I do not disagree with the Court's discussion of Rule 37 in Part II-B of its opinion, I respectfully dissent from its construction of § 1927 and its inherent-power holding.
46
Mr. Chief Justice BURGER, dissenting.
47
I dissent from the Court's holding that it was improper for the District Court to look to 42 U.S.C. §§ 1988 and 2000e-5(k) to determine whether attorney's fees were assessable as part of the excess costs which the respondent attorneys could be made to pay under 28 U.S.C. § 1927.
48
Section 1927 does not itself attempt to define the costs which an attorney may be forced to pay because of vexatious, dilatory tactics and conduct except to state that the attorney may be forced to pay only the excess costs generated by his misconduct. One must look elsewhere to determine the types of costs which are assessable. It may be correct that ordinarily a court would look to 28 U.S.C. § 1920, which does not include attorney's fees among its enumerated items. But whether or not attorney's fees are recoverable as costs depends on the type of action involved. In Hutto v. Finney, 437 U.S. 678, 697, 98 S.Ct. 2565, 2577, 57 L.Ed.2d 522 (1978), the Court noted that "there are a large number of statutory and common-law situations in which allowable costs include counsel fees." In a footnote, the Court observed: "In 1975, we listed 29 statutes allowing federal courts to award attorney's fees in certain suits. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. at 260-261, n. 33, [95 S.Ct., at 1623, n. 33]. Some of these statutes define attorney's fees as an element of costs, while others separate fees from other taxable costs. Compare 42 U.S.C. § 2000a-3(b) with 29 U.S.C. § 216(b) (1970 ed., Supp. V)." Id., at 697, n. 28, 98 S.Ct., at 2577, n. 28. Title 42 U.S.C. § 2000a-3(b), in pertinent part, states that the court in its discretion "may allow the prevailing party . . . a reasonable attorney's fee as part of the costs . . .," whereas 29 U.S.C. § 216(b) states that the court shall "allow a reasonable attorney's fee to be paid by the defendant, and costs of the action." Comparing the language of these sections to that of 42 U.S.C. §§ 1988 and 2000e-5(k) at issue here, it seems plain to me that §§ 1988 and 2000e-5(k) fall within the first category statutes which define attorney's fees as an element of costs. The Court said this in so many words in Hutto with regard to § 1988. 437 U.S., at 695, 98 S.Ct., at 2576.
49
Thus, by statute, in Title VII actions, or in actions to enforce 42 U.S.C. §§ 1981, 1983, 1985, and 1986, attorney's fees are an element of costs. Sections 1988 and 2000e-5(k) state that the awards may be made to the prevailing party, as was the instant award. They do not state who is to bear the costs. Normally, of course, the losing party will bear the costs. But if the court finds that the costs have been increased "unreasonably and vexatiously," § 1927 empowers the court to make the errant attorneys themselves bear the excess costs occasioned by their misconduct. That is what happened here.
50
Respondents correctly point out that this Court has held in Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978), that if the award is against the plaintiff, the suit must be found to have been frivolous, unreasonable, or without foundation. But that case does not determine the standard for an award of excess costs against an attorney. Section 1927 itself provides that standard; the attorney must have so multiplied the proceedings as to have increased costs unreasonably and vexatiously. Here, both the District Court and the Court of Appeals agreed that that standard had been met.
51
Given this disposition, I would not reach the other issues decided by the Court today.
1
The initial complaint also named a local of the International Brotherhood of Teamsters as defendant.
2
If a party "fails to obey an order to provide or permit discovery;" Rule 37(b)(2)(C) allows the district court to "dismis[s] the action or proceeding or any part thereof, or rende[r] a judgment by default against the disobedient party." Rule 37(b)(2)(E) also permits a court to "require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney's fees, caused by the failure . . . ."
3
Section 1927 states in full:
"Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case as to increase costs unreasonably and vexatiously may be required by the court to satisfy personally such excess costs."
As the Court of Appeals pointed out, "§ 1927 provides only for excess costs caused by the plaintiffs' attorneys' vexatious behavior and consequent multiplication of the proceedings, and not for the total costs of the litigation." Monk v. Roadway Express, Inc., 599 F.2d 1378, 1383 (CA5 1979) (emphasis in original).
4
Due to sloth, inattention, or desire to seize tactical advantage, lawyers have long indulged in dilatory practices. Cf. C. Dickens, Bleak House 2-5 (1948). A number of factors legitimately may lengthen a lawsuit, and the parties themselves may cause some of the delays. Nevertheless, many actions are extended unnecessarily by lawyers who exploit or abuse judicial procedures, especially the liberal rules for pretrial discovery. See Burger, Agenda for 2000 A. D.—A Need for Systematic Anticipation, 70 F.R.D. 83, 95-96 (1976); ABA, Report of Pound Conference Follow-Up Task Force, 74 F.R.D. 159, 191-192 (1976); U.S. Dept. of Justice, C. Ellington, A Study of Sanctions for Discovery Abuse 117 (1979). The glacial pace of much litigation breeds frustration with the federal courts and, ultimately, disrespect for the law.
5
Section 2000e-5(k) states: "In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the [Equal Employment Opportunity] Commission or the United States, a reasonable attorney's fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person."
Section 1988 provides in relevant part: "In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or in any civil action or proceedings [to enforce] a provision of the United States Internal Revenue Code, or title VI of the Civil Rights Act of 1964, 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."
For the purposes of the issues in this opinion, the two provisions may be considered to have the same substantive content. See Lopez v. Arkansas County Independent School Dist., 570 F.2d 541, 545 (CA5 1978); Mid-Hudson Legal Services, Inc. v. G & U, Inc., 578 F.2d 34, 37-38 (CA2 1978). They authorize fee awards in identical language, and Congress acknowledged the close connection between the two statutes when it approved § 1988. S.Rep.No.94-1011, pp. 2-6 (1976); H.R.Rep.No.94-1558, pp. 5-8 (1976), U.S.Code Cong. & Admin.News, 1976, p. 5908.
6
A letter from the Secretary of the Treasury to the House of Representatives in 1842 suggests that the provision was prompted by the practices of certain United States Attorneys. H.R.Doc.No.25, 27th Cong., 3d Sess., 21-22 (1842). Some of those officers, who were paid on a piecework basis, apparently had filed unnecessary lawsuits to inflate their compensation.
7
The attorney liability portion of the 1853 Act was codified as § 982 of the Revised Statutes, while the cost-setting portions were included as §§ 823 and 824. The portions assumed their present positions at §§ 1920, 1923, and 1927 of Title 28 in the Revised Code of 1948. See 28 U.S.C. §§ 1920, 1923, 1927 (1946 ed., Supp. II).
8
For example, in 1978 Congress added 28 U.S.C. § 1920(6) (1976 ed., Supp. II), providing for recovery of interpreting costs. Pub.L. 95-539, § 7, 92 Stat. 2044. Congress is now considering legislation that would expand § 1927 in all cases to include "costs, expenses and attorney's fees. . . ." H.R.4047, 96th Cong., 1st Sess. (1979); S.390, 96th Cong., 1st Sess., § 4 (1979).
9
The Senate Report accompanying § 1988 stated that the bill authorizes "an award of attorneys' fees against a party . . . ." S.Rep.No.94-1011, p. 5 (1976), U.S.Code Cong. & Admin.News 1976, p. 5912 (emphasis supplied). This reference reinforces the view that the statute was not intended to permit recovery from opposing counsel.
10
See Stanziale v. First National City Bank, 74 F.R.D. 557 (S.D.N.Y. 1977) (attorneys); Charron v. Meaux, 66 F.R.D. 64 (S.D.N.Y. 1975) (party); Chesa International, Ltd. v. Fashion Associates, Inc., 425 F.Supp. 234 (S.D.N.Y.), aff'd, 573 F.2d 1288 (CA2 1977) (joint liability of attorney and party).
11
Mr. Justice STEWART and Mr. Justice REHNQUIST would not reach the inherent power question considered in Part III of the opinion. Rather, they view that question as a substantial issue that should be addressed by the District Court on remand.
12
See generally In re Bithoney, 486 F.2d 319, (CA1 1973); Flaksa v. Little River Marine Constr. Co., 389 F.2d 885, 888-889 (CA5), cert. denied, 392 U.S. 928, 88 S.Ct. 2287, 20 L.Ed.2d 1387 (1968); Gamble v. Pope & Talbot, Inc., 307 F.2d 729, 735-736 (CA3) (en banc) (Biggs, C. J., dissenting), cert. denied sub nom. United States District Court v. Mahoney, 371 U.S. 888, 83 S.Ct. 187, 9 L.Ed.2d 123 (1962).
13
New York courts have ordered attorneys who delay litigation to pay costs or fines to the opposing party. E. g., Moran v. Rynar, 39 App.Div.2d 718, 332 N.Y.S.2d 138 (1972); Kahn v. Stamp, 52 App.Div.2d 748, 382 N.Y.S.2d 199 (1976); Gillet v. Beth Israel Medical Center, 99 Misc.2d 172, 415 N.Y.S.2d 738 (Sup.Ct.1979). The state-court opinions cite no statutory authority for their holdings, apparently relying on the inherent powers of those courts. Moran v. Rynar, supra, noted favorable commentary on Schwarz v. United States, 384 F.2d 833, 836 (CA2 1967), which suggested that courts faced with cases "of inexcusable neglect by counsel [should consider] imposing substantial costs and attorney's fees payable by offending counsel personally to the opposing party . . . ." Although the New York courts have sanctioned lawyers for mere negligence, this opinion addresses only bad-faith conduct.
14
Some due process implications of sanctions for misconduct of litigation were discussed in Societe Internationale v. Rogers, 357 U.S. 197, 208-212, 78 S.Ct. 1087, 1093-1095, 2 L.Ed.2d 1255 (1958), which reversed the dismissal of an action for failure to comply with a pretrial discovery order. The due process concerns posed by an outright dismissal are plainly greater than those presented by assessing counsel fees against lawyers. Cf. Schwarz v. United States, supra. Moreover, Societe Internationale did not involve willful misconduct or bad faith. The Court found that the party whose claim was dismissed had been barred by a Swiss criminal statute from complying with the order. 357 U.S., at 209, 211, 78 S.Ct., at 1094, 1095.
1
One point regarding the Court's analysis of § 1927 seems to me to merit special mention. In rejecting the District Court's reading of that statute, the Court concludes that "a prevailing defendant may be awarded counsel fees only when the plaintiff's underlying claim is 'frivolous, unreasonable, or groundless.' " Ante, at 762 (emphasis added), citing Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978). This statement has two troubling implications. First, it would seem to pretermit the § 1927 issue, which the Court goes on to consider at length. Clearly, the District Court based its attorney's fee award on counsel's conduct during the suit, rather than on the absence of a meritorious claim. If only the latter can support fee-shifting under § 1988 or § 2000e-5(k), attorney's fees were not "reasonable" in the first place, the predicate for applying § 1927 was lacking, and this case presents no occasion to construe that provision. Second, the Court's reading of Christiansburg Garment is a questionable one that may produce undesirable results in future cases. Christiansburg Garment simply did not present the issue whether "frivolous, unreasonable, or groundless" conduct by a plaintiff in the course of prosecuting a colorable claim might justify fee-shifting in favor of the defendant under § 1988 or § 2000e-5(k). In my view, there are strong arguments that attorney's fees generated by such conduct would be "reasonable" within the meaning of those statutes. I am troubled that the Court reaches the opposite conclusion without explaining why.
2
The Court does not explore the specific features of this exception. Most significantly, it does not address the permissibility of applying this new exception to award attorney's fees beyond those actually attributable to the culpable attorney's vexatious actions (i. e., "excess costs" under § 1927). Like the Court, I am willing to let this issue be considered in the first instance on the remand.
1
See ante, at 756, n. 3.
2
Title 42 U.S.C. § 1988 and § 2000e-5(k) both authorize an award of attorney's fees to the prevailing party "as part of the costs" of the litigation.
| 56
|
65 L.Ed.2d 468
100 S.Ct. 2439
447 U.S. 727
UNITED STATES, Petitioner,v.Jack PAYNER.
No. 78-1729.
Argued Feb. 20, 1980.
Decided June 23, 1980.
Rehearing Denied Aug. 11, 1980.
See 448 U.S. 911, 101 S.Ct. 25.
Syllabus
At respondent's nonjury trial for falsifying a federal income tax return by denying that he maintained a foreign bank account, respondent moved to suppress a loan guarantee agreement in which he pledged the funds in the bank account as security. The District Court found respondent guilty on the basis of all the evidence, but then (1) found that the Government had discovered the guarantee agreement as the result of a flagrantly illegal search of a bank officer's briefcase, (2) suppressed all the Government's evidence except for respondent's tax return and related testimony, and (3) set aside the conviction for failure to demonstrate knowing falsification. The court held, inter alia, that, although the illegal search did not violate respondent's Fourth Amendment rights, the inherent supervisory power of the federal courts required it to exclude evidence tainted by the illegal search. The Court of Appeals affirmed.
Held:
1. Respondent lacks standing under the Fourth Amendment to suppress the documents illegally seized from the bank officer. A defendant's Fourth Amendment rights are violated only when the challenged conduct invaded his legitimate expectation of privacy rather than that of a third party, and respondent possessed no privacy interest in the documents seized in this case. Cf. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387; United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71. Pp. 731-733.
2. The supervisory power of the federal courts does not authorize a court to suppress otherwise admissible evidence on the ground that it was seized unlawfully from a third party not before the court. Under the Fourth Amendment, the interest in deterring illegal searches does not justify the exclusion of tainted evidence at the instance of a party who was not the victim of the challenged practices. And the values assigned to the competing interest of deterring illegal searches and of furnishing the trier of fact with all relevant evidence do not change because a court has elected to analyze the question under the supervisory power instead of the Fourth Amendment. Such power does not extend so far as to confer on the judiciary discretionary power to disregard the considered limitations of the law it is charged with enforcing. Pp. 733-737.
590 F.2d 206 (6th Cir.), reversed.
Sol. Gen. Wade H. McCree, Jr., Washington, D.C., for petitioner.
Bennet Kleinman, Cleveland, Ohio, for respondent.
Mr. Justice POWELL delivered the opinion of the Court.
1
The question is whether the District Court properly suppressed the fruits of an unlawful search that did not invade the respondent's Fourth Amendment rights.
2
* Respondent Jack Payner was indicted in September 1976 on a charge of falsifying his 1972 federal income tax return in violation of 18 U.S.C. § 1001.1 The indictment alleged that respondent denied maintaining a foreign bank account at a time when he knew that he had such an account at the Castle Bank and Trust Company of Nassau, Bahama Islands. The Government's case rested heavily on a loan guarantee agreement dated April 28, 1972, in which respondent pledged the funds in his Castle Bank account as security for a $100,000 loan.
3
Respondent waived his right to jury trial and moved to suppress the guarantee agreement. With the consent of the parties, the United States District Court for the Northern District of Ohio took evidence on the motion at a hearing consolidated with the trial on the merits. The court found respondent guilty as charged on the basis of all the evidence. The court also found, however, that the Government discovered the guarantee agreement by exploiting a flagrantly illegal search that occurred on January 15, 1973. The court therefore suppressed "all evidence introduced in the case by the Government with the exception of Jack Payner's 1972 tax return . . . and the related testimony." 434 F.Supp. 113, 136 (D.C.Ohio 1977). As the tax return alone was insufficient to demonstrate knowing falsification, the District Court set aside respondent's conviction.2
4
The events leading up to the 1973 search are not in dispute. In 1965, the Internal Revenue Service launched an investigation into the financial activities of American citizens in the Bahamas. The project, known as "Operation Trade Winds," was headquartered in Jacksonville, Fla. Suspicion focused on the Castle Bank in 1972, when investigators learned that a suspected narcotics trafficker had an account there. Special Agent Richard Jaffe of the Jacksonville office asked Norman Casper, a private investigator and occasional informant, to learn what he could about the Castle Bank and its depositors. To that end, Casper cultivated his friendship with Castle Bank vice president Michael Wolstencroft. Casper introduced Wolstencroft to Sybol Kennedy, a private investigator and former employee. When Casper discovered that the banker intended to spend a few days in Miami in January 1973, he devised a scheme to gain access to the bank records he knew Wolstencroft would be carrying in his briefcase. Agent Jaffe approved the basic outline of the plan.
5
Wolstencroft arrived in Miami on January 15 and went directly to Kennedy's apartment. At about 7:30 p. m., the two left for dinner at a Key Biscayne restaurant. Shortly thereafter, Casper entered the apartment using a key supplied by Kennedy. He removed the briefcase and delivered it to Jaffe. While the agent supervised the copying of approximately 400 documents taken from the briefcase, a "lookout" observed Kennedy and Wolstencroft at dinner. The observer notified Casper when the pair left the restaurant, and the briefcase was replaced. The documents photographed that evening included papers evidencing a close working relationship between the Castle Bank and the Bank of Perrine, Fla. Subpoenas issued to the Bank of Perrine ultimately uncovered the loan guarantee agreement at issue in this case.
6
The District Court found that the United States, acting through Jaffe, "knowingly and willfully participated in the unlawful seizure of Michael Wolstencroft's briefcase. . . ." Id., at 120. According to that court, "the Government affirmatively counsels its agents that the Fourth Amendment standing limitation permits them to purposefully conduct an unconstitutional search and seizure of one individual in order to obtain evidence against third parties . . . ." Id., at 132-133. The District Court also found that the documents seized from Wolstencroft provided the leads that ultimately led to the discovery of the critical loan guarantee agreement. Id., at 123.3 Although the search did not impinge upon the respondent's Fourth Amendment rights, the District Court believed that the Due Process Clause of the Fifth Amendment and the inherent supervisory power of the federal courts required it to exclude evidence tainted by the Government's "knowing and purposeful bad faith hostility to any person's fundamental constitutional rights." Id., at 129; see id., at 133, 134-135.
7
The Court of Appeals for the Sixth Circuit affirmed in a brief order endorsing the District Court's use of its supervisory power. 590 F.2d 206 (6th Cir. 1979) (per curiam ). The Court of Appeals did not decide the due process question. We granted certiorari, 444 U.S. 822, 100 S.Ct. 42, 62 L.Ed.2d 28 (1979), and we now reverse.
II
8
This Court discussed the doctrine of "standing to invoke the [Fourth Amendment] exclusionary rule" in some detail last Term. Rakas v. Illinois, 439 U.S. 128, 138, 99 S.Ct. 421, 427-28, 58 L.Ed.2d 387 (1978). We reaffirmed the established rule that a court may not exclude evidence under the Fourth Amendment unless it finds that an unlawful search or seizure violated the defendant's own constitutional rights. Id., at 133-140, 99 S.Ct., at 425-429. See, e. g., Brown v. United States, 411 U.S. 223, 229-230, 93 S.Ct. 1565, 1569-70, 36 L.Ed.2d 208 (1973); Alderman v. United States, 394 U.S. 165, 171-172, 89 S.Ct. 961, 965, 22 L.Ed.2d 176 (1969); Simmons v. United States, 390 U.S. 377, 389, 88 S.Ct. 967, 973, 19 L.Ed.2d 1247 (1968). And the defendant's Fourth Amendment rights are violated only when the challenged conduct invaded his legitimate expectation of privacy rather than that of a third party. Rakas v. Illinois, 439 U.S., at 143, 99 S.Ct., at 430; id., at 149-152, 99 S.Ct., at 433-435 (POWELL, J., concurring); Combs v. United States, 408 U.S. 224, 227, 92 S.Ct. 2284, 2286, 33 L.Ed.2d 308 (1972); Mancusi v. DeForte, 392 U.S. 364, 368, 88 S.Ct. 2120, 2123, 20 L.Ed.2d 1154 (1968).
9
The foregoing authorities establish, as the District Court recognized, that respondent lacks standing under the Fourth Amendment to suppress the documents illegally seized from Wolstencroft. 434 F.Supp., at 126. The Court of Appeals did not disturb the District Court's conclusion that "Jack Payner possessed no privacy interest in the Castle Bank documents that were seized from Wolstencroft." Ibid.; see 590 F.2d, at 207. Nor do we. United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976), established that a depositor has no expectation of privacy and thus no "protectable Fourth Amendment interest" in copies of checks and deposit slips retained by his bank. Id., at 437, 96 S.Ct., at 1621; see id., at 442, 96 S.Ct., at 1623. Nothing in the record supports a contrary conclusion in this case.4
10
The District Court and the Court of Appeals believed, however, that a federal court should use its supervisory power to suppress evidence tainted by gross illegalities that did not infringe the defendant's constitutional rights. The United States contends that this approach—as applied in this case—upsets the careful balance of interests embodied in the Fourth Amendment decisions of this Court. In the Government's view, such an extension of the supervisory power would enable federal courts to exercise a standardless discretion in their application of the exclusionary rule to enforce the Fourth Amendment. We agree with the Government.
III
11
We certainly can understand the District Court's commendable desire to deter deliberate intrusions into the privacy of persons who are unlikely to become defendants in a criminal prosecution. See 434 F.Supp., at 135. No court should condone the unconstitutional and possibly criminal behavior of those who planned and executed this "briefcase caper."5 Indeed, the decisions of this Court are replete with denunciations of willfully lawless activities undertaken in the name of law enforcement. E. g., Jackson v. Denno, 378 U.S. 368, 386, 84 S.Ct. 1774, 1785, 12 L.Ed.2d 908 (1964); see Olmstead v. United States, 277 U.S. 438, 485, 48 S.Ct. 564, 575, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting). But our cases also show that these unexceptional principles do not command the exclusion of evidence in every case of illegality. Instead, they must be weighed against the considerable harm that would flow from indiscriminate application of an exclusionary rule.
12
Thus, the exclusionary rule "has been restricted to those areas where its remedial objectives are most efficaciously served." United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974). The Court has acknowledged that the suppression of probative but tainted evidence exacts a costly toll upon the ability of courts to ascertain the truth in a criminal case. E. g., Rakas v. Illinois, 439 U.S., at 137-138, 99 S.Ct., at 427-28; United States v. Ceccolini, 435 U.S. 268, 275-279, 98 S.Ct. 1054, 1059-61, 55 L.Ed.2d 268 (1978); Stone v. Powell, 428 U.S. 465, 489-491, 96 S.Ct. 3037, 3050-51, 49 L.Ed.2d 1067 (1976); see Michigan v. Tucker, 417 U.S. 433, 450-451, 94 S.Ct. 2357, 2367, 41 L.Ed.2d 182 (1974).6 Our cases have consistently recognized that unbending application of the exclusionary sanction to enforce ideals of governmental rectitude would impede unacceptably the truth-finding functions of judge and jury. E. g., Stone v. Powell, supra, 428 U.S., at 485-489, 96 S.Ct., at 3048-3050; United States v. Calandra, supra, 414 U.S., at 348, 94 S.Ct., at 620. After all, it is the defendant, and not the constable, who stands trial.
13
The same societal interests are at risk when a criminal defendant invokes the supervisory power to suppress evidence seized in violation of a third party's constitutional rights. The supervisory power is applied with some caution even when the defendant asserts a violation of his own rights.7 In United States v. Caceres, 440 U.S. 741, 754-757, 99 S.Ct. 1465, 1473-74, 59 L.Ed.2d 733 (1979), we refused to exclude all evidence tainted by violations of an executive department's rules. And in Elkins v. United States, 364 U.S. 206, 216, 80 S.Ct. 1437, 1443, 4 L.Ed.2d 1669 (1960), the Court called for a restrained application of the supervisory power.
14
"[A]ny apparent limitation upon the process of discovering truth in a federal trial ought to be imposed only upon the basis of considerations which outweigh the general need for untrammeled disclosure of competent and relevant evidence in a court of justice." Ibid.
15
See also Nardone v. United States, 308 U.S. 338, 340, 60 S.Ct. 266, 267, 84 L.Ed. 307 (1939).
16
We conclude that the supervisory power does not authorize a federal court to suppress otherwise admissible evidence on the ground that it was seized unlawfully from a third party not before the court. Our Fourth Amendment decisions have established beyond any doubt that the interest in deterring illegal searches does not justify the exclusion of tainted evidence at the instance of a party who was not the victim of the challenged practices. Rakas v. Illinois, supra, 439 U.S., at 137, 99 S.Ct., at 427; Alderman v. United States, 394 U.S., at 174-175, 89 S.Ct., at 966-67.8 The values assigned to the competing interests do not change because a court has elected to analyze the question under the supervisory power instead of the Fourth Amendment. In either case, the need to deter the underlying conduct and the detrimental impact of excluding the evidence remain precisely the same.
17
The District Court erred, therefore, when it concluded that "society's interest in deterring [bad faith] conduct by exclusion outweigh[s] society's interest in furnishing the trier of fact with all relevant evidence." 434 F.Supp., at 135. This reasoning, which the Court of Appeals affirmed, amounts to a substitution of individual judgment for the controlling decisions of this Court.9 Were we to accept this use of the supervisory power, we would confer on the judiciary discretionary power to disregard the considered limitations of the law it is charged with enforcing. We hold that the supervisory power does not extend so far.
The judgment of the Court of Appeals is
18
Reversed.
19
Mr. Chief Justice BURGER, concurring.
20
I join the Court's opinion because Payner—whose guilt is not in doubt—cannot take advantage of the Government's violation of the constitutional rights of Wolstencroft, for he is not a party to this case. The Court's opinion makes clear the reason for that sound rule.
21
Orderly government under our system of separate powers calls for internal self-restraint and discipline in each Branch; this Court has no general supervisory authority over operations of the Executive Branch, as it has with respect to the federal courts. I agree fully with the Court that the exclusionary rule is inapplicable to a case of this kind, but that should not be read as condoning the conduct of the IRS "private investigators" as disclosed by this record, or as approval of their evidence-gathering methods.
22
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN and Mr. Justice BLACKMUN join, dissenting.
23
The Court today holds that a federal court is unable to exercise its supervisory powers to prevent the use of evidence in a criminal prosecution in that court, even though that evidence was obtained through intentional illegal and unconstitutional conduct by agents of the United States, because the defendant does not satisfy the standing requirement of the Fourth Amendment. That holding effectively turns the standing rules created by this Court for assertions of Fourth Amendment violations into a sword to be used by the Government to permit it deliberately to invade one person's Fourth Amendment rights in order to obtain evidence against another person. Unlike the Court, I do not believe that the federal courts are unable to protect the integrity of the judicial system from such gross Government misconduct.
24
* The facts as found by the District Court need to be more fully stated in order to establish the level of purposeful misconduct to which agents of the United States have sunk in this case. Operation Trade Winds was initiated by the Internal Revenue Service (IRS) in 1965 to gather information about the financial activities of American citizens in the Bahamas. The investigation was supervised by Special Agent Richard Jaffe in the Jacksonville, Fla., office. It was not until June 1972 that the investigation focused on the Castle Bank and Trust Company of the Bahamas. In late October 1972 Jaffe asked one of his informants, Norman Casper, to obtain the names and addresses of the individuals holding accounts with the Castle Bank. Casper set to work soon thereafter. He was already an acquaintance of Michael Wolstencroft, vice president and trust officer of the Castle Bank. Casper knew that Wolstencroft frequently visited the United States carrying a briefcase with documents from the Castle Bank. Casper therefore introduced Wolstencroft to Sybol Kennedy, a private detective who worked for Casper. In early January 1973, Casper learned that Wolstencroft planned a business trip to the United States on January 15, 1973, and that he would have Castle Bank records with him on that trip. Plans for the "briefcase caper," as Casper called it, began in earnest.
25
As found by the District Court, Casper discussed the details of the plan with Jaffe on several occasions during the week before Wolstencroft's trip.1 Casper told Jaffe that he could get the needed documents from Wolstencroft, but that Jaffe would have to supply photographic services. On January 11, Casper specifically informed Jaffe that he planned to enter an apartment and take Wolstencroft's briefcase. Jaffe then stated that he would have to clear the operation with his superior, Troy Register, Jr., Chief of the IRS Intelligence Division in Jacksonville. Clearance was obtained, and Jaffe told Casper to proceed with the plan.2 Casper called Jaffe the following day and asked if the IRS could refer him to a locksmith who could be "trusted." Jaffe gave him such a referral.3
26
The plans were finalized by the time of Wolstencroft's arrival on January 15. Wolstencroft went directly to Sybol Kennedy's apartment. The couple eventually went to a restaurant for dinner.4 Using a key provided by Kennedy,5 Casper entered the apartment and stole Wolstencroft's briefcase. Casper then rendezvoused with the IRS-recommended locksmith in a parking lot five blocks from the apartment; the locksmith made a key to fit the lock on the case. Casper took the briefcase and newly made key to the home of an IRS agent. Jaffe had selected that location for the photographing because it was only eight blocks from the parking lot where Casper met the locksmith and Jaffe knew there was a need to act with haste.6 The briefcase was opened in Jaffe's presence. Jaffe, Casper, and an IRS photography expert then photographed over 400 documents.7 Casper had arranged for Kennedy and Wolstencroft to be watched on their date, and this lookout called Casper at the IRS agent's home when the couple finished their dinner. After all the documents had been copied, Casper relocked the briefcase and returned it to Kennedy's apartment. The entire "caper" lasted approximately one and one-half hours.
27
The illegalities of agents of the United States did not stop even at that point, however. During the following two weeks, Jaffe told Casper that the IRS needed additional information. Casper therefore sent Kennedy to visit Wolstencroft in the Bahamas. While there, acting pursuant to Casper's instructions, Kennedy stole a rolodex file from Wolstencroft's office. This file was turned over to Jaffe, who testified in the District Court that he had not cared how the rolodex file had been obtained.8
28
The IRS paid Casper $8,000 in cash for the services he rendered in obtaining the information about Castle Bank. Casper in turn paid approximately $1,000 of this money to Kennedy for her role in the "briefcase caper" and the theft of the rolodex file.
29
The "briefcase caper" revealed papers which showed a close relationship between the Castle Bank and a Florida bank. Subpoenas issued to that Florida bank resulted in the uncovering of the loan guarantee agreement which was the principal piece of evidence against respondent at trial. It is that loan agreement and the evidence discovered as a result of it that the District Court reluctantly9 suppressed under the Due Process Clause of the Fifth Amendment and under its supervisory powers.
30
The District Court made several key findings concerning the level of misconduct of agents of the United States in these activities. The District Court found that "the United States, through its agents, Richard Jaffe, and others, knowingly and willfully participated in the unlawful seizure of Michael Wolstencroft's briefcase, and encouraged its informant, Norman Casper, to arrange the theft of a rolodex from the offices of Castle Bank." 434 F.Supp. 113, 120-121 (ND Ohio 1977) (footnotes omitted). The District Court concluded that "the United States was an active participant in the admittedly criminal conduct in which Casper engaged . . . ." Id., at 121. The District Court found that "the illegal conduct of the government officials involved in this case compels the conclusion that they knowingly and purposefully obtained the briefcase materials with bad faith hostility toward the strictures imposed on their activities by the Constitution." Id., at 130 (footnote omitted) (emphasis in original). The District Court considered the actions of Jaffe and Casper "outrageous," ibid., because they "plotted, schemed and ultimately acted in contravention of the United States Constitution and laws of Florida, knowing that their conduct was illegal." Ibid.
31
The most disturbing finding by the District Court, however, related to the intentional manipulation of the standing requirements of the Fourth Amendment by agents of the United States, who are, of course, supposed to uphold and enforce the Constitution and laws of this country. The District Court found:
32
"It is evident that the Government and its agents, including Richard Jaffe, were, and are, well aware that under the standing requirement of the Fourth Amendment, evidence obtained from a party pursuant to an unconstitutional search is admissible against third parties who's [sic ] own privacy expectations are not subject to the search, even though the cause for the unconstitutional search was to obtain evidence incriminating those third parties. This Court finds that, in its desire to apprehend tax evaders, a desire the Court fully shares, the Government affirmatively counsels its agents that the Fourth Amendment standing limitation permits them to purposefully conduct an unconstitutional search and seizure of one individual in order to obtain evidence against third parties, who are the real targets of the governmental intrusion, and that the IRS agents in this case acted, and will act in the future, according to that counsel. Such governmental conduct compels the conclusion that Jaffe and Casper transacted the 'briefcase caper' with a purposeful, bad faith hostility toward the Fourth Amendment rights of Wolstencroft in order to obtain evidence against persons like Payner." Id., at 131-133 (footnotes omitted).
33
The Court of Appeals did not disturb any of these findings. 590 F.2d 206 (CA6 1979) (per curiam ). Nor does the Court today purport to set them aside. See ante, at 730-731, n. 3. But cf. ante, at 733-734, n. 5. It is in the context of these findings intentional illegal actions by Government agents taken in bad-faith hostility toward the constitutional rights of Wolstencroft for the purpose of obtaining evidence against persons such as the respondent through manipulation of the standing requirements of the Fourth Amendment—that the suppression issue must be considered.
II
34
This Court has on several occasions exercised its supervisory powers over the federal judicial system in order to suppress evidence that the Government obtained through misconduct. See, e. g., McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943); Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100 (1948); Mesarosh v. United States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1 (1956); Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957); Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). Cf. Rea v. United States,, 350 U.S. 214, 76 S.Ct. 292, 100 L.Ed. 233 (1956) (supervisory powers used to enjoin federal agent from testifying in state criminal prosecution concerning illegal search and from turning over to the State evidence illegally seized). The rationale for such suppression of evidence is twofold: to deter illegal conduct by Government officials, and to protect the integrity of the federal courts. McNabb v. United States, supra, 318 U.S., at 342, 345, 347, 63 S.Ct., at 613, 615, 616; Mesarosh v. United States, supra, 352 U.S., at 14, 77 S.Ct., at 8; Elkins v. United States, supra, 364 U.S., at 217, 222-223, 80 S.Ct., at 1444, 1446-1447. Cf. Mapp v. Ohio, 367 U.S. 643, 659-660, 81 S.Ct. 1684, 1693-94, 6 L.Ed.2d 1081 (1961) (Fourth and Fourteenth Amendments); Brown v. Illinois, 422 U.S. 590, 599-600, 95 S.Ct. 2254, 2259-60, 45 L.Ed.2d 416 (1975) (Fourth and Fourteenth Amendments); Dunaway v. New York, 442 U.S. 200, 218, 99 S.Ct. 2248, 2259, 60 L.Ed.2d 824 (1979) (Fourth and Fourteenth Amendments). The Court has particularly stressed the need to use supervisory powers to prevent the federal courts from becoming accomplices to such misconduct. See, e. g., McNabb v. United States, supra, 318 U.S., at 345, 63 S.Ct., at 615 ("Plainly, a conviction resting on evidence secured through such a flagrant disregard of the procedure which Congress has commanded cannot be allowed to stand without making the courts themselves accomplices in willful disobedience of law"); Mesarosh v. United States, supra, 352 U.S., at 14, 77 S.Ct., at 8 (the Court should use its supervisory powers in federal criminal cases "to see that the waters of justice are not polluted"); Elkins v. United States, supra, 364 U.S., at 223, 80 S.Ct., at 1447 (federal courts should not be "accomplices in the willful disobedience of a Constitution they are sworn to uphold").
35
The need to use the Court's supervisory powers to suppress evidence obtained through governmental misconduct was perhaps best expressed by Mr. Justice Brandeis in his famous dissenting opinion in Olmstead v. United States, 277 U.S. 438, 471-485, 48 S.Ct. 564, 570-575, 72 L.Ed. 944 (1928):
36
"Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means—to declare that the Government may commit crimes in order to secure the conviction of a private criminal—would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face." Id., at 485, 48 S.Ct., at 575.
37
Mr. Justice Brandeis noted that "a court will not redress a wrong when he who invokes its aid has unclean hands," id., at 483, 48 S.Ct., at 574, and that in keeping with that principle the court should not lend its aid in the enforcement of the criminal law when the government itself was guilty of misconduct. "Then aid is denied despite the defendant's wrong. It is denied in order to maintain respect for law; in order to promote confidence in the administration of justice; in order to preserve the judicial process from contamination." Id., at 484, 48 S.Ct., at 574-575. See also id., at 469-471, 48 S.Ct. at 569-70 (HOLMES, J., dissenting); id., at 488, 48 S.Ct., at 576 (STONE, J., dissenting); Lopez v. United States, 373 U.S. 427, 453, n. 3, 83 S.Ct. 1381, 1395, 10 L.Ed.2d 462 (1963) (BRENNAN, J., dissenting).10
38
The reason for this emphasis on the need to protect the integrity of the federal courts through the use of supervisory powers can be derived from the factual contexts in which supervisory powers have been exercised. In large part when supervisory powers have been invoked the Court has been faced with intentional illegal conduct. It has not been the case that "[t]he criminal is to go free because the constable has blundered," People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585, 587 (1926). In these cases there has been no "blunder" by the Government agent at all; rather, the agent has intentionally violated the law for the explicit purpose of obtaining the evidence in question. Cf. Lopez v. United States, supra, 373 U.S., at 440, 83 S.Ct., at 1388 (supervisory powers should be exercised only if there has been "manifestly improper conduct by federal officials"). If the federal court permits such evidence, the intended product of deliberately illegal Government action, to be used to obtain a conviction, it places its imprimatur upon such lawlessness and thereby taints its own integrity.
39
The present case falls within that category. The District Court found, and the record establishes, a deliberate decision by Government agents to violate the constitutional rights of Wolstencroft for the explicit purpose of obtaining evidence against persons such as Payner. The actions of the Government agents—stealing the briefcase, opening it, and photographing all the documents inside—were both patently in violation of the Fourth Amendment rights of Wolstencroft11 and plainly in violation of the criminal law.12 The Government knew exactly what information it wanted, and it was that information which was stolen from Wolstencroft. Similarly, the Government knew that it wanted to prosecute persons such as Payner, and it made a conscious decision to forgo any opportunity to prosecute Wolstencroft in order to obtain illegally the evidence against Payner and others.13
40
Since the supervisory powers are exercised to protect the integrity of the court, rather than to vindicate the constitutional rights of the defendant, it is hard to see why the Court today bases its analysis entirely on Fourth Amendment standing rules. The point is that the federal judiciary should not be made accomplices to the crimes of Casper, Jaffe, and others. The only way the IRS can benefit from the evidence it chose to obtain illegally is if the evidence is admitted at trial against persons such as Payner; that was the very point of the criminal exercise in the first place. If the IRS is permitted to obtain a conviction in federal court based almost entirely on that illegally obtained evidence and its fruits, then the judiciary has given full effect to the deliberate wrongdoings of the Government. The federal court does indeed become the accomplice of the Government lawbreaker, an accessory after the fact, for without judicial use of the evidence the "caper" would have been for nought. Such a pollution of the federal courts should not be permitted.14
41
It is particularly disturbing that the Court today chooses to allow the IRS deliberately to manipulate the standing rules of the Fourth Amendment to achieve its ends. As previously noted, the District Court found that "the Government affirmatively counsels its agents that the Fourth Amendment standing limitation permits them to purposefully conduct an unconstitutional search and seizure of one individual in order to obtain evidence against third parties, who are the real targets of the governmental intrusion, and that the IRS agents in this case acted, and will act in the future, according to that counsel." 434 F.Supp., at 132-133 (emphasis supplied). Whatever role those standing limitations may play, it is clear that they were never intended to be a sword to be used by the Government in its deliberate choice to sacrifice the constitutional rights of one person in order to prosecute another.
42
The Court's decision to engraft the standing limitations of the Fourth Amendment onto the exercise of supervisory powers is puzzling not only because it runs contrary to the major purpose behind the exercise of the supervisory powers—to protect the integrity of the court—but also because it appears to render the supervisory powers superfluous. In order to establish that suppression of evidence under the supervisory powers would be proper, the Court would also require Payner to establish a violation of his Fourth or Fifth Amendment rights,15 in which case suppression would flow directly from the Constitution. This approach is totally unfaithful to our prior supervisory power cases, which, contrary to the Court's suggestion, are not constitutional cases in disguise.
43
I also do not understand the basis for the Court's assertion that this is not a case in which the District Court was supervising the administration of justice "among the parties before the bar," ante, at 735, n. 7, and therefore supervisory powers are inapplicable. Clearly the Government is before the bar. Equally clearly, the Government embarked on this deliberate pattern of lawless behavior for the express purpose of gaining evidence against persons such as Payner, so there can be no legitimate claim that the illegal actions are only tangentially related to the present prosecution. Instead, the Government misconduct is at the very heart of this case; without the evidence produced by the illegal conduct, there would have been no case at all, and Payner would never have been brought before the bar. This is simply not a case in which a federal court has attempted to exercise "general supervisory authority over operations of the Executive Branch," ante, at 737 (BURGER, C. J., concurring). Rather, this is a case where the District Court refused to be made an accomplice to illegal conduct by the IRS by permitting the agency to use the proceeds of its crimes for the very purpose for which they were committed—to convict persons such as Payner.
44
Contrary to the Court's characterization, this is also not a case in which there has been "indiscriminate" or "unbending" application of the exclusionary rule. The District Court noted that "exclusion on the basis of supervisory power is only done as a last resort," 434 F.Supp., at 134, n. 74. That court concluded that suppression was proper only where there had been "purposefully illegal" conduct by the Government to obtain the evidence or where the Government's conduct was "motivated by an intentional bad faith hostility to a constitutional right." Id., at 134-135 (footnotes omitted). In this case, both those threshold requirements were met, and the District Court in addition concluded that absent suppression there was no deterrent to continued lawless conduct undertaken by the IRS to facilitate these types of prosecutions.16 This is not "a 'chancellor's foot' veto [by the District Court] over law enforcement practices of which it did not approve," United States v. Russell, 411 U.S. 423, 435, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Hampton v. United States, 425 U.S. 484, 490, 96 S.Ct. 1646, 1650, 48 L.Ed.2d 113 (1976) (plurality opinion). As my Brother POWELL noted on a prior occasion: "The fact that there is sometimes no sharply defined standard against which to make these judgments [of fundamental fairness] is not itself a sufficient reason to deny the federal judiciary's power to make them when warranted by the circumstances. . . . Nor do I despair of our ability in an appropriate case to identify appropriate standards for police practices without relying on the 'chancellor's' 'fastidious squeamishness or private sentimentalism.' " Hampton v. United States, supra, at 495, n. 6, 96 S.Ct., at 1652 (concurring in judgment). That appropriate case has arrived, and the Court should prevent the Government from profiting by use in the federal courts of evidence deliberately obtained by illegal actions taken in bad-faith hostility to constitutional rights.
45
I would affirm the judgment of the Court of Appeals and suppress the fruits of the Government's illegal action under the Court's supervisory powers.17 Accordingly, I dissent.
1
Title 18 U.S.C. § 1001 provides in relevant part:
"Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully . . . makes any false, fictitious or fraudulent statements or representations, . . . shall be fined not more than $10,000 or imprisoned not more than five years, or both."
2
The unusual sequence of rulings was a byproduct of the consolidated hearing conducted by the District Court. The court initially failed to enter judgment on the merits. At the close of the evidence, it simply granted respondent's motion to suppress. After the Court of Appeals for the Sixth Circuit dismissed the Government's appeal for want of jurisdiction, the District Court vacated the order granting the motion to suppress and entered a verdict of guilty. The court then reinstated its suppression order and set aside the verdict. Respondent does not challenge these procedures.
3
The United States argued in the District Court and the Court of Appeals that the guarantee agreement was discovered through an independent investigation untainted by the briefcase search. The Government also denied that its agents willfully encouraged Casper's illegal behavior. For purposes of this opinion, we need not question the District Court's contrary findings on either point.
4
We are not persuaded by respondent's suggestion that the Bahamian law of bank secrecy creates an expectation of privacy not present in United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976). At the outset, it is not clear that secret information regarding this respondent's account played any role in the investigation that led to the discovery of the critical loan guarantee agreement. See supra, at 730. Even if the causal link were established, however, respondent's claim lacks merit. He cites a provision, 1909 Bah.Acts, ch. 4, that is no longer in effect. Bank secrecy is now safeguarded by § 19 of the Banks Act, Bah.Islands Rev.Laws, ch. 96 (1965), as added, 1965 Bah.Acts, No. 65, which provides in relevant part:
"(1) Except for the purpose of the performance of his duties or the exercise of his functions under this Act or when lawfully required to do so by any court of competent jurisdiction within the Colony or under the provisions of any law, no person shall disclose any information relating to the affairs of . . . the customer of a bank which he has acquired in the performance of his duties or the exercise of his functions under this Act."
See also the Banks and Trust Companies Regulation Act, 1965 Bah.Acts, No. 64, § 10, as amended, 1968 Bah.Acts, No. 34, 1969 Bah.Acts, No. 20, 1971 Bah.Acts, No. 15. The statute is hardly a blanket guarantee of privacy. Its application is limited; it is hedged with exceptions; and we have been directed to no authority construing its terms. Moreover, American depositors know that their own country requires them to report relationships with foreign financial institutions. 31 U.S.C. § 1121; 31 CFR § 103.24 (1979). See generally California Bankers Assn. v. Shultz, 416 U.S. 21, 59-63, 71-76, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974). We conclude that respondent lacked a reasonable expectation of privacy in the Castle Bank records that documented his account.
5
"The security of persons and property remains a fundamental value which law enforcement officers must respect. Nor should those who flout the rules escape unscathed." Alderman v. United States, 394 U.S. 165, 175, 89 S.Ct. 961, 967, 22 L.Ed.2d 176 (1969). We note that in 1976 Congress investigated the improprieties revealed in this record. See Oversight Hearings into the Operations of the IRS before a Subcommittee of the House Committee on Government Operations (Operation Tradewinds, Project Haven, and Narcotics Traffickers Tax Program), 94th Cong., 1st Sess. (1975). As a result, the Commissioner of Internal Revenue "called off" Operation Trade Winds. Tr. of Oral Arg. 35. The Commissioner also adopted guidelines that require agents to instruct informants on the requirements of the law and to report known illegalities to a supervisory officer, who is in turn directed to notify appropriate state authorities. IR Manual §§ 9373.3(3), 9373.4 (Manual Transmittal 9-21, Dec. 27, 1977). Although these measures appear on their face to be less positive than one might expect from an agency charged with upholding the law, they do indicate disapproval of the practices found to have been implemented in this case. We cannot assume that similar lawless conduct, if brought to the attention of responsible officials, would not be dealt with appropriately. To require in addition the suppression of highly probative evidence in a trial against a third party would penalize society unnecessarily.
6
See also Kaufman v. United States, 394 U.S. 217, 237-238, 89 S.Ct. 1068, 1079-80, 22 L.Ed.2d 227 (1969) (Black, J., dissenting); Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U.Chi.L.Rev. 665, 736-746, 755-756 (1970).
7
Federal courts may use their supervisory power in some circumstances to exclude evidence taken from the defendant by "willful disobedience of law." McNabb v. United States, 318 U.S. 332, 345, 63 S.Ct. 608, 615, 87 L.Ed. 819 (1943); see Elkins v. United States, 364 U.S. 206, 223, 80 S.Ct. 1437, 1447, 4 L.Ed.2d 1669 (1960); Rea v. United States, 350 U.S. 214, 216-217, 76 S.Ct. 292, 293-294, 100 L.Ed. 233 (1956); cf. Hampton v. United States, 425 U.S. 484, 495, 96 S.Ct. 1646, 1652, 48 L.Ed.2d 113 (1976) (POWELL, J., concurring in judgment). This Court has never held, however, that the supervisory power authorizes suppression of evidence obtained from third parties in violation of Constitution, statute, or rule. The supervisory power merely permits federal courts to supervise "the administration of criminal justice" among the parties before the bar. McNabb v. United States, supra, 318 U.S., at 340, 63 S.Ct. 612.
8
"The deterrent values of preventing the incrimination of those whose rights the police have violated have been considered sufficient to justify the suppression of probative evidence even though the case against the defendant is weakened or destroyed. We adhere to that judgment. But
we are not convinced that the additional benefits of extending the exclusionary rule to other defendants would justify further encroachment upon the public interest in prosecuting those accused of crime and having them acquitted or convicted on the basis of all the evidence which exposes the truth." Alderman v. United States, 394 U.S., at 174-175, 89 S.Ct., at 967. See also Stone v. Powell, 428 U.S. 465, 488-489, 96 S.Ct. 3037, 3049-50, 49 L.Ed.2d 1067 (1976); United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974).
The dissent post, at 746, urges that the balance of interests under the supervisory power differs from that considered in Alderman and like cases, because the supervisory power focuses upon the "need to protect the integrity of the federal courts." Although the District Court in this case relied upon a deterrent rationale, we agree that the supervisory power serves the "twofold" purpose of deterring illegality and protecting judicial integrity. See post, at 744. As the dissent recognizes, however, the Fourth Amendment exclusionary rule serves precisely the same purposes. Ibid., citing, inter alia, Dunaway v. New York, 442 U.S. 200, 218, 99 S.Ct. 2248, 2259, 60 L.Ed.2d 824 (1979), and Mapp v. Ohio, 367 U.S. 643, 659-660, 81 S.Ct. 1684, 1693-94, 6 L.Ed.2d 1081 (1961). Thus, the Fourth Amendment exclusionary rule, like the supervisory power, is applied in part "to protect the integrity of the court, rather than to vindicate the constitutional rights of the defendant. . . . " Post, at 747; see generally Stone v. Powell, supra, at 486, 96 S.Ct., at 3048; United States v. Calandra, supra, at 348, 94 S.Ct., at 620.
In this case, where the illegal conduct did not violate the respondent's rights, the interest in preserving judicial integrity and in deterring such conduct is outweighed by the societal interest in presenting probative evidence to the trier of fact. See the first paragraph, supra; see also, e. g., Stone v. Powell, supra, 428 U.S., at 485-486, 96 S.Ct., at 3048. None of the cases cited by the dissent, post, at 744-745, supports a contrary view, since none of those cases involved criminal defendants who were not themselves the victims of the challenged practices. Thus, our decision today does not limit the traditional scope of the supervisory power in any way; nor does it render that power "superfluous." Post, at 748. We merely reject its use as a substitute for established Fourth Amendment doctrine.
9
The same difficulty attends respondent's claim to the protections of the Due Process Clause of the Fifth Amendment. The Court of Appeals expressly declined to consider the Due Process Clause. But even if we assume that the unlawful briefcase search was so outrageous as to offend fundamental " 'canons of decency and fairness,' " Rochin v. California, 342 U.S. 165, 169, 72 S.Ct. 205, 208, 96 L.Ed. 183 (1952), quoting Malinski v. New York, 324 U.S. 401, 417, 65 S.Ct. 781, 789, 89 L.Ed. 1029 (1945) (opinion of Frankfurter, J.), the fact remains that "[t]he limitations of the Due Process Clause . . . come into play only when the Government activity in question violates some protected right of the defendant," Hampton v. United States, supra, 425 U.S., at 490, 96 S.Ct., at 1650 (plurality opinion).
1
The Court rather blandly states that "Agent Jaffe approved the basic outline of the plan," ante, at 730. Such a characterization is misleading in light of the findings of the District Court. As is noted in the text infra, Jaffe knew explicit details of the operation in advance and helped to make the arrangements by recommending a locksmith who could be "trusted," by providing a safe and convenient location for the photographing of the documents, and by providing a photographer from the IRS.
2
Jaffe testified in the District Court that "[w]hatever I knew, he [Register] knew." See 434 F.Supp. 113, 121, n. 40; Tr. 513.
3
It was clear why Casper needed a locksmith who could be "trusted." Casper testified as follows in the District Court:
"Q. Isn't it a fact, Mr. Casper, you knew you were committing an illegal act, and you wanted somebody who could be trusted to keep his mouth shut about it?
"A. There is that possibility, yes.
"Q. Isn't that the fact?
* * * * *
"A. Yes." 434 F.Supp., at 119, n. 20; Tr. 452-453.
It is interesting to note that even the locksmith who could be "trusted" refused to enter Kennedy's apartment with Casper. Id., at 451.
The Government contends that when Agent Jaffe made the referral he did not know what use Casper intended to make of such a locksmith. Brief for United States 6, n. 4. The District Court found, however, that Jaffe already knew at the time of the referral that Casper intended to enter Kennedy's apartment and to take and open Wolstencroft's briefcase. There were, then, only two logical alternatives why Casper would want such a locksmith: to make a key to enter the briefcase, or to make a key to enter the apartment. Either way, Jaffe must have known that Casper's conduct was improper, and yet Jaffe made the referral anyway.
4
It was not established at trial what occurred in Kennedy's apartment prior to the couple's departure for dinner. Since it was peculiarly within the power of the United States to produce Kennedy as a witness and since the Government did not explain her absence from the trial, the District Court inferred that Kennedy's testimony "would be unfavorable to the Government by further delineating the improprieties" of the "briefcase caper." 434 F.Supp., at 119, n. 22.
5
The District Court, after hearing the testimony of both Casper and Jaffe, disbelieved Jaffe's assertion that Casper had informed him beforehand that Kennedy had given Casper a key with which to enter the apartment. See id., at 119, n. 15, 121, n. 40. See also n. 3, supra.
6
434 F.Supp., at 120, n. 25; Tr. 494-496.
7
As noted previously, Casper had told Jaffe to provide the photographic equipment. Jaffe testified that one of the cameras used was a "microfilmer" which was "much quicker" than a regular camera. This camera had been brought by the IRS because "Casper had to get the documents and the briefcase back to the apartment prior to the return of the owner." Id., at 493-495. This testimony again shows that Jaffe was fully aware in advance that the activities of the evening were improper.
8
See 434 F.Supp., at 120, and n. 34; Tr. 501.
9
See 434 F.Supp., at 124, 129, 134, n. 74.
10
The Court's opinion inexplicably ignores this basic thrust of our prior supervisory powers cases, and instead implies that the only value served by suppression is deterrence of future misconduct. See ante, at 736. Deterrence is one purpose behind the suppression of evidence in such situations, but it is by no means the only one.
11
The Government conceded below that Wolstencroft's Fourth Amendment rights had been violated. 434 F.Supp., at 126. See Tr. 502. See also Brief for United States in No. 78-5278 (CA6), p. 20. Cf. Tr. of Oral Arg. 14; Brief for United States 39. The Court agrees that the conduct was unconstitutional. Ante, at 733.
12
The Court characterizes the actions of Jaffe and Casper in the briefcase incident as "possibly criminal behavior," ibid. The District Court concluded that the actions of the IRS appeared to constitute a prima facie case of criminal larceny under Florida law, and possibly violated other criminal laws of that State as well. 434 F.Supp., at 130, n. 66. Casper admitted in the District Court that he knew he was committing an illegal act. Tr. 452-453. The stealing of the rolodex file from Wolstencroft's office was also both unconstitutional and criminal. That theft, however, produced no additional evidence against Payner. See 434 F.Supp., at 123, n. 56.
13
See id., at 129, n. 65, 131-133, and n. 69. See also Tr. 505.
Wolstencroft in fact was indicted for aiding and abetting Payner. Brief for United States 3, n. 2. However, Wolstencroft is a Bahamian resident, and did not return to the United States to answer the indictment. Ibid. The mere fact that the Government went through the steps of indicting Wolstencroft does not in any way undermine the District Court's finding, based on substantial evidence in the record, that Wolstencroft was never the target of the IRS investigation. In light of the Government's concession that Wolstencroft's Fourth Amendment rights were violated, it is hard to see how the banker could be successfully prosecuted on the aiding and abetting charge.
14
It is simply not a sufficient cure for the Court to denounce the actions of the IRS, ante, at 734, while at the same time rewarding the Government for this conduct by permitting the IRS to use the evidence in the very manner which was the purpose of the illegal and unconstitutional activities.
15
The Court appears to suggest that there can be no suppression of evidence based on a violation of the Due Process Clause in this case because it was not Payner who was the immediate victim of the Government's outrageous conduct. Ante, at 737, n. 9. Although the District Court concluded that the evidence should be suppressed under the Due Process Clause as well as under its supervisory powers, the Court of Appeals specifically did not reach that issue, 590 F.2d 206 (CA6 1979) (per curiam ), and the Government purposely did not raise the issue in this Court. See Pet. for Cert. 21, n. 13. The Court therefore should not reach out to address the issue in a footnote.
In addition, the only authority cited by the Court for its suggestion is Hampton v. United States, 425 U.S. 484, 490, 96 S.Ct. 1646, 1650, 48 L.Ed.2d 113 (1976) (plurality opinion). Hampton was only a plurality opinion, and the issue for which the Court purports to cite it was not raised by the facts of that case. Similarly, in the Court of Appeals below the United States was able to cite only Sims v. Georgia, 389 U.S. 404, 407, 88 S.Ct. 523, 525, 19 L.Ed.2d 634 (1967), a case plainly not on point, and the sentence from the Hampton plurality opinion quoted by the Court, ante, at 737, n. 9, for the proposition that Payner lacked standing to raise a due process argument. See Brief for United States in No. 78-5278 (CA6), pp. 21-22; Reply Brief for United States in No. 78-5278, p. 6. The issue whether the standing limitations this Court has imposed for challenging Fourth Amendment violations also apply for violations of the Due Process Clause based on outrageous Government conduct has not yet been settled by this Court. Cf. 434 F.Supp., at 129, n. 65, and authorities discussed therein. The due process issue should be left for consideration in the first instance by the Court of Appeals on remand.
16
There is no suggestion by the Government that any action has been taken against Casper, Jaffe, or others for the conduct exposed in this case. The Court admits that the corrective measures taken by the IRS "appear on their face to be less positive than one might expect from an agency charged with upholding the law," ante, at 733, n. 5. The District Court specifically found that the Government agents knew they were violating the Constitution at the time, 434 F.Supp., at 135, n. 79, and that continued manipulation of the standing limitations of the Fourth Amendment by the IRS could be deterred only by suppression of the evidence, id., at 133.
17
The Government argues that Rule 402 of the Federal Rules of Evidence stripped the federal judiciary of its supervisory powers to exclude evidence obtained through gross misconduct by agents of the United States. In the Court of Appeals, this argument was relegated to one footnote, see Brief for United States in No. 78-5278 (CA6), p. 41, n. 27. The Court does not address the issue. I would merely note that the Government's discussion of the legislative history behind Rule 402 fails to convince me that it was Congress' intent to attempt such a radical curtailment of the long-established supervisory powers of the federal judiciary. See United States v. Jacobs, 547 F.2d 772, 777 (CA2 1976), cert. dism'd as improvidently granted, 436 U.S. 31, 98 S.Ct. 1873, 56 L.E.2d 53 (1978).
| 01
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448 U.S. 98
100 S.Ct. 2558
-- L.Ed.2d -- RAWLINGSv.KENTUCKY
No. 79-5146.
Argued March 26, 1980.
Decided June 25, 1980.
Syllabus
When police officers, armed with a warrant to arrest one Marquess, arrived at his house, another resident of the house and four visitors including petitioner, were there. While searching the house unsuccessfully for Marquess, several officers smelled marihuana smoke and saw marihuana seeds. Two of the officers left to obtain a warrant to search the house, and the other officers detained the occupants, allowing them to leave only if they consented to a body search. About 45 minutes later, the officers returned with the search warrant; the warrant was read to the remaining occupants, including petitioner, and they were also given "Miranda" warnings; and Cox, an occupant, was ordered to empty her purse, which contained drugs that were controlled substances under Kentucky law. Cox told petitioner, who was standing nearby in response to an officer's command, "to take what was his," and petitioner immediately claimed ownership of the drugs. At that time, an officer searched petitioner, finding $4,500 in cash and a knife, and petitioner was then formally arrested. Petitioner was indicted for possessing with intent to sell the controlled substances recovered from Cox's purse, and the Kentucky trial court denied petitioner's motion to suppress, as fruits of an illegal detention and illegal searches, the drugs, the money, and the statements made by him when the police discovered the drugs. Petitioner's conviction was affirmed by the Kentucky Court of Appeals, and the Kentucky Supreme Court in turn affirmed, holding that petitioner had no "standing" to contest the search of Cox's purse because he had no legitimate or reasonable expectation of freedom from governmental intrusion into the purse, and that the search uncovering the money in petitioner's pocket was justifiable as incident to a lawful arrest based on probable cause.
Held:
1. The conclusion that petitioner did not sustain his burden of proving that he had a legitimate expectation of privacy in Cox's purse so as to allow him to challenge the validity of the search of the purse is supported by the record, which includes petitioner's admission at the suppression hearing that he did not believe that the purse would be free from governmental intrusion. Nor was petitioner entitled to challenge the search, regardless of his expectation of privacy, merely because he claimed ownership of the drugs in the purse. While petitioner's ownership of the drugs is one fact to be considered, "arcane" concepts of property law do not control the ability to claim the protections of the Fourth Amendment. Cf. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387. Pp. 104-106.
2. Under the totality of circumstances present (the giving of Miranda warnings, the short lapse of time between petitioner's detention and his admissions being outweighed by the "congenial atmosphere" in the house during this interval, his admissions being apparently spontaneous reactions to the discovery of the drugs in Cox's purse, the police conduct not appearing to rise to the level of conscious or flagrant misconduct requiring prophylactic exclusion of petitioner's admissions, and petitioner not having argued that his admissions were anything other than voluntary), Kentucky carried its burden of showing that petitioner's statements to the police admitting his ownership of the drugs were acts of free will unaffected by any illegality in his detention, assuming, arguendo, that the police violated the Fourth and Fourteenth Amendments by detaining petitioner and his companions in the house while they obtained a search warrant. Cf. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416. Pp. 106-110.
3. The search of petitioner's person that uncovered the money and the knife was valid as incident to his formal arrest. Once he admitted ownership of the drugs found in Cox's purse, the police had probable cause to arrest him, and where the arrest followed quickly after the search of petitioner's person it is not important that the search preceded the arrest rather than vice versa. P. 110-111.
581 S.W.2d 348, affirmed.
J. Vincent Aprile II, Asst. Public Defender, Frankfort, Ky., for petitioner.
Victor Fox, Asst. Atty. Gen., Frankfort, Ky., for respondent.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Petitioner David Rawlings was convicted by the Commonwealth of Kentucky on charges of trafficking in, and possession of, various controlled substances. Throughout the proceedings below, Rawlings challenged the admissibility of certain evidence and statements on the ground that they were the fruits of an illegal detention and illegal searches. The trial court, the Kentucky Court of Appeals, and the Supreme Court of Kentucky all rejected Rawlings' challenges. We granted certiorari, 444 U.S. 989, 100 S.Ct. 519, 62 L.Ed.2d 418, and now affirm.
2
* In the middle of the afternoon on October 18, 1976, six police officers armed with a warrant for the arrest of one Lawrence Marquess on charges of drug distribution arrived at Marquess' house in Bowling Green, Ky. In the house at the time the police arrived were one of Marquess' housemates, Dennis Saddler, and four visitors, Keith Northern, Linda Braden, Vanessa Cox, and petitioner David Rawlings. While searching unsuccessfully in the house for Marquess, several police officers smelled marihuana smoke and saw marihuana seeds on the mantel in one of the bedrooms. After conferring briefly, Officers Eddie Railey and John Bruce left to obtain a search warrant. While Railey and Bruce were gone, the other four officers detained the occupants of the house in the living room, allowing them to leave only if they consented to a body search. Northern and Braden did consent to such a search and were permitted to depart. Saddler, Cox, and petitioner remained seated in the living room.
3
Approximately 45 minutes later, Railey and Bruce returned with a warrant authorizing them to search the house. Railey read the warrant to Saddler, Cox, and petitioner, and also read "Miranda " warnings from a card he carried in his pocket. At that time, Cox was seated on a couch with petitioner seated to her left. In the space between them was Cox's handbag.
4
After Railey finished his recitation, he approached petitioner and told him to stand. Officer Don Bivens simultaneously approached Cox and ordered her to empty the contents of her purse onto a coffee table in front of the couch. Among those contents were a jar containing 1,800 tablets of LSD and a number of smaller vials containing benzphetamine, methamphetamine, methyprylan, and pentobarbital, all of which are controlled substances under Kentucky law.
5
Upon pouring these objects out onto the coffee table, Cox turned to petitioner and told him "to take what was his." App. 62. Petitioner, who was standing in response to Officer Railey's command, immediately claimed ownership of controlled substances. At that time, Railey searched petitioner's person and found $4,500 in cash in petitioner's shirt pocket and a knife in a sheath at petitioner's side. Railey then placed petitioner under formal arrest.
6
Petitioner was indicted for possession with intent to sell the various controlled substances recovered from Cox's purse. At the suppression hearing, he testified that he had flown into Bowling Green about a week before his arrest to look for a job and perhaps to attend the local university. He brought with him at that time the drugs later found in Cox's purse. Initially, petitioner stayed in the house where the arrest took place as the guest of Michael Swank, who shared the house with Marquess and Saddler. While at a party at that house, he met Cox and spent at least two nights of the next week on a couch at Cox's house.
7
On the morning of petitioner's arrest, Cox had dropped him off at Swank's house where he waited for her to return from class. At that time, he was carrying the drugs in a green bank bag. When Cox returned to the house to meet him, petitioner dumped the contents of the bank bag into Cox's purse. Although there is dispute over the discussion that took place, petitioner testified that he "asked her if she would carry this for me, and she said, 'yes'. . . ." App. 42.1 Petitioner then left the room to use the bathroom and, by the time he returned, discovered that the police had arrived to arrest Marquess.
8
The trial court denied petitioner's motion to suppress the drugs and the money and to exclude the statements made by petitioner when the police discovered the drugs. According to the trial court, the warrant obtained by the police authorized them to search Cox's purse. Moreover, even if the search of the purse was illegal, the trial court believed that petitioner lacked "standing" to contest that search. Finally, the trial court believed that the search that revealed the money and the knife was permissible "under the exigencies of the situation." Id., at 21. After a bench trial, petitioner was found guilty of possession with intent to sell LSD and of possession of benzphetamine, methamphetamine, methyprylan, and pentobarbital.
9
The Kentucky Court of Appeals affirmed. Disagreeing with the trial court, the appellate court held that petitioner did have "standing" to dispute the legality of the search of Cox's purse but that the detention of the five persons present in the house and the subsequent searches were legitimate because the police had probable cause to arrest all five people in the house when they smelled the marihuana smoke and saw the marihuana seeds.
10
The Supreme Court of Kentucky in turn affirmed, but again on a somewhat different rationale. See 581 S.W.2d 348 (1979). According to the Supreme Court, petitioner had no "standing" because he had no "legitimate or reasonable expectation of freedom from governmental intrusion" into Cox's purse. Id., at 350, citing Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Moreover, according to the Supreme Court, the search uncovering the money in petitioner's pocket, which search followed petitioner's admission that he owned the drugs in Cox's purse, was justifiable as incident to a lawful arrest based on probable cause.
II
11
In this Court, petitioner challenges three aspects of the judgment below. First, he claims that he did have a reasonable expectation of privacy in Cox's purse so as to allow him to challenge the legality of the search of that purse.2 Second, petitioner argues that his admission of ownership was the fruit of an illegal detention that began when the police refused to let the occupants of the house leave unless they consented to a search. Third, petitioner contends that the search uncovering the money and the knife was itself illegal.
12
* In holding that petitioner could not challenge the legality of the search of Cox's purse, the Supreme Court of Kentucky looked primarily to our then recent decision in Rakas v. Illinois, supra, where we abandoned a separate inquiry into a defendant's "standing" to contest an allegedly illegal search in favor of an inquiry that focused directly on the substance of the defendant's claim that he or she possessed a "legitimate expectation of privacy" in the area searched. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). In the present case, the Supreme Court of Kentucky looked to the "totality of the circumstances," including petitioner's own admission at the suppression hearing that he did not believe that Cox's purse would be free from governmental intrusion,3 and held that petitioner "[had] not made a sufficient showing that his legitimate or reasonable expectations of privacy were violated" by the search of the purse. 581 S.W.2d, at 350.
13
We believe that the record in this case supports that conclusion. Petitioner, of course, bears the burden of proving not only that the search of Cox's purse was illegal, but also that he had a legitimate expectation of privacy in that purse. See Rakas v. Illinois, supra, 439 U.S., at 131, n. 1, 99 S.Ct., at 423, n. 1; Simmons v. United States, 390 U.S. 377, 389-390, 88 S.Ct. 967, 973-974, 19 L.Ed.2d 1247 (1968). At the time petitioner dumped thousands of dollars worth of illegal drugs into Cox's purse, he had known her for only a few days. According to Cox's uncontested testimony, petitioner had never sought or received access to her purse prior to that sudden bailment. Contrast Jones v. United States, 362 U.S. 257, 259, 80 S.Ct. 725, 730, 4 L.Ed.2d 697 (1960). Nor did petitioner have any right to exclude other persons from access to Cox's purse. See Rakas v. Illinois, supra, 439 U.S., at 149, 99 S.Ct., at 433. In fact, Cox testified that Bob Stallons, a longtime acquaintance and frequent companion of Cox's, had free access to her purse on the very morning of the arrest had rummaged through its contents in search of a hairbrush. Moreover, even assuming that petitioner's version of the bailment is correct and that Cox did consent to the transfer of possession,4 the precipitous nature of the transaction hardly supports a reasonable inference that petitioner took normal precautions to maintain his privacy. Contrast United States v. Chadwick, 433 U.S. 1, 11, 97 S.Ct. 2476, 2483, 53 L.Ed.2d 538 (1977); Katz v. United States, supra, 389 U.S., at 352, 88 S.Ct., at 511. In addition to all the foregoing facts, the record also contains a frank admission by petitioner that he had no subjective expectation that Cox's purse would remain free from governmental intrusion, an admission credited by both the trial court and the Supreme Court of Kentucky. See n. 3, supra, and accompanying text.
14
Petitioner contends nevertheless that, because he claimed ownership of the drugs in Cox's purse, he should be entitled to challenge the search regardless of his expectation of privacy. We disagree. While petitioner's ownership of the drugs is undoubtedly one fact to be considered in this case,Rakas emphatically rejected the notion that "arcane" concepts of property law ought to control the ability to claim the protections of the Fourth Amendment. See 439 U.S., at 149-150, n. 17, 99 S.Ct., at 434, n. 17. See also United States v. Salvucci, 448 U.S., at 91-92, 100 S.Ct., at 2552-2553. Had petitioner placed his drugs in plain view, he would still have owned them, but he could not claim any legitimate expectation of privacy. Prior to Rakas, petitioner might have been given "standing" in such a case to challenge a "search" that netted those drugs but probably would have lost his claim on the merits. After Rakas, the two inquiries merge into one: whether governmental officials violated any legitimate expectation of privacy held by petitioner.
15
In sum, we find no reason to overturn the lower court's conclusion that petitioner had no legitimate expectation of privacy in Cox's purse at the time of the search.
B
16
We turn, then, to petitioner's contention that the occupants of the house were illegally detained by the police and that his admission to ownership of the drugs was a fruit of that illegal detention. Somewhat surprisingly, none of the courts below confronted this issue squarely, even though it would seem to be presented under any analysis of this case except that adopted by the Kentucky Court of Appeals, which concluded that the police officers were entitled to arrest the five occupants of the house as soon as they smelled marihuana smoke and saw the marihuana seeds.
17
We can assume both that this issue was properly presented in the Kentucky courts and that the police violated the Fourth and Fourteenth Amendments by detaining petitioner and his companions in the house while they obtained a search warrant for the premises. Even given such a constitutional violation, however, exclusion of petitioner's admissions would not be necessary unless his statements were the result of his illegal detention. As we noted in Brown v. Illinois, 422 U.S. 590, 603, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416 (1975), where we rejected a "but for" approach to the admissibility of such statements, "persons arrested illegally frequently may decide to confess, as an act of free will unaffected by the initial illegality." In Brown we also set forth the standard for determining whether such statements were tainted by antecedent illegality:
18
"The question whether a confession is the product of a free will . . . must be answered on the facts of each case. No single fact is dispositive. . . . The Miranda warnings are an important factor, to be sure, in determining whether the confession is obtained by exploitation of an illegal arrest. But they are not the only factor to be considered. The temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct are all relevant. The voluntariness of the statement is a threshold requirement. And the burden of showing admissibility rests, of course, on the prosecution." Id., at 603-604, 95 S.Ct., at 2261-2262 (footnotes and citations omitted).
19
See also Dunaway v. New York, 442 U.S. 200, 218, 99 S.Ct. 2248, 2259, 60 L.Ed.2d 824 (1979). As already noted, the lower courts did not undertake the inquiry suggested by Brown. Nevertheless, as in Brown itself, we believe that "the trial resulted in a record of amply sufficient detail and depth from which the determination may be made." 422 U.S., at 604, 95 S.Ct., at 2262.
20
First, we observe that petitioner received Miranda warnings only moments before he made his incriminating statements, a consideration Brown treated as important, although not dispositive, in determining whether the statements at issue were obtained by exploitation of an illegal detention.
21
Second, Brown calls our attention to the "temporal proximity of the arrest and the confession. . .." Id., at 603, 95 S.Ct., at 2261. In this case, petitioner and his companions were detained for a period of approximately 45 minutes. Although under the strictest of custodial conditions such a short lapse of time might not suffice to purge the initial taint, we believe it necessary to examine the precise conditions under which the occupants of this house were detained. By all accounts, the three people who chose not to consent to a body search in order to leave sat quietly in the living room, or at least initially, moved freely about the first floor of the house. Upon being informed that he would be detained until Officers Railey and Bruce returned with a search warrant, Dennis Saddler "just went on in and got a cup of coffee and sat down and started waiting" for the officers to return. Tr. 109. When asked by petitioner's counsel whether there was "any show of force or violence by you or Dave or anybody else," Saddler explained:
22
"A Oh, no. One person tried to sick my four and a half month old dog on one of the officers. (laughing)
23
"Q48 You're saying that in a joking manner?
24
"A Yeah. He just wagged his tail.
25
"Q49 And other than that, that's the most violent thing you proposed toward these police officers; is that correct?
26
"A Yes, sir. I would—they were more or less courteous to us and were trying to be—we offered them coffee or a drink of water or whatever they wanted." Id., at 113.
27
According to Saddler, petitioner's first reaction when the officers told him that he would be detained pending issuance of a search warrant was to "[get] up and put an album on. . . ." Id., at 110. As even the dissenting judge in the Court of Appeals noted: "[A]ll witnesses for both sides of this litigation agreed to the congenial atmosphere existing during the forty-five minute interval. . .." App. 73 (Lester, J., dissenting). We think that these circumstances outweigh the relatively short period of time that elapsed between the initiation of the detention and petitioner's admissions.
28
Third, Brown suggests that we inquire whether any circumstances intervened between the initial detention and the challenged statements. Here, where petitioner's admissions were apparently spontaneous reactions to the discovery of his drugs in Cox's purse, we have little doubt that this factor weighs heavily in favor of a finding that petitioner acted "of free will unaffected by the initial illegality." 422 U.S., at 603, 95 S.Ct., at 2261. Nor need we speculate as to petitioner's motivations in admitting ownership of the drugs, since he explained them later to Lawrence Marquess and Dennis Saddler. Under examination by petitioner's counsel, Marquess testified as follows:
29
"Q1 Mr. Marquess, when you were talking to David Rawlings in the jail, and he told you that the things were dumped out on the table and that he admitted they were his, did he tell you why he did that?
30
"A Well, he said Vanessa [Cox] was freaking out, you know, or something.
31
"Q2 Did he tell you that he did that to protect her or words to that effect?
32
"A Well, now, I mean he said he was going to take what was his, I mean, he wasn't going to try to pin that on her." Tr. 130.
33
Saddler offered additional insight into petitioner's motivations:
34
"Q114 Did Dave Rawlings make any statements to you in jail about any of these substances?
35
"A Yes sir.
36
"Q115 And would you tell the Court what statements he made?
37
"A Well, his main concern was whether or not Vanessa Cox was going to say anything, and he just kept talking and harping on that, and I don't know how many times he mentioned it, you know, 'I hope she doesn't break,' or hope she doesn't talk. And I saw her walking on the sidewalk through the windows and got a little upset about that because we all thought she turned State's evidence." Id., at 103.
38
Fourth, Brown mandates consideration of "the purpose and flagrancy of the official misconduct. . .." 422 U.S., at 604, 95 S.Ct., at 2262. The officers who detained petitioner and his companions uniformly testified that they took those measures to avoid the asportation or destruction of the marihuana they thought was present in the house and that they believed that a warrant authorizing them to search the house would also authorize them to search the five occupants of the house. While the legality of temporarily detaining a person at the scene of suspected drug activity to secure a search warrant may be an open question,5 and while the officer's belief about the scope of the warrant they obtained may well have been erroneous under our recent decision in Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), the conduct of the police here does not rise to the level of conscious or flagrant misconduct requiring prophylactic exclusion of petitioner's statements. Contrast Brown v. Illinois, supra, 422 U.S., at 605, 95 S.Ct., at 2262.
39
Finally, while Brown requires that the voluntariness of the statement be established as a threshold requirement, petitioner has not argued here or in any other court that his admission to ownership of the drugs was anything other than voluntary. Thus, examining the totality of circumstances present in this case, we believe that the Commonwealth of Kentucky has carried its burden of showing that petitioner's statements were acts of free will unaffected by any illegality in the initial detention.
C
40
Petitioner also contends that the search of his person that uncovered the money and the knife was illegal. Like the Supreme Court of Kentucky, we have no difficulty upholding this search as incident to petitioner's formal arrest. Once petitioner admitted ownership of the sizable quantity of drugs found in Cox's purse, the police clearly had probable cause to place petitioner under arrest. Where the formal arrest followed quickly on the heels of the challenged search of petitioner's person, we do not believe it particularly important that the search preceded the arrest rather than vice versa. See Bailey v. United States, 128 U.S.App.D.C. 354, 357, 389 F.2d 305, 308 (1967); United States v. Brown, 150 U.S.App.D.C. 113, 114, 463 F.2d 949, 950 (1972). See also Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973); United States v. Gorman, 355 F.2d 151, 160 (CA2 1965) (dictum), cert. denied, 384 U.S. 1024, 86 S.Ct. 1962, 16 L.Ed.2d 1027 (1966).6
III
41
Having found no error in the lower courts' refusal to suppress the evidence challenged by petitioner, we believe that the judgment of the Supreme Court of Kentucky should be, and the same hereby is,
42
Affirmed.
43
Mr. Justice BLACKMUN, concurring.
44
I join the Court's opinion, but I write separately to explain my somewhat different approach to the issues addressed in Part II-A thereof.
45
In my view, Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), recognized two analytically distinct but "invariably intertwined" issues of substantive Fourth Amendment jurisprudence. Id., at 139, 99 S.Ct., at 428. The first is "whether [a] disputed search or seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect," id., at 140, 99 S.Ct., at 429, the second is whether "the challenged search or seizure violated [that] Fourth Amendment righ[t]," ibid. The first of these questions is answered by determining whether the defendant has a "legitimate expectation of privacy" that has been invaded by a governmental search or seizure. The second is answered by determining whether applicable cause and warrant requirements have been properly observed.
46
I agree with the Court that these two inquiries "merge into one," ante, at 106, in the sense that both are to be addressed under the principles of Fourth Amendment analysis developed in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), and its progeny. But I do not read today's decision, or Rakas, as holding that it is improper for lower courts to treat these inquiries as distinct components of a Fourth Amendment claim. Indeed, I am convinced that it would invite confusion to hold otherwise. It remains possible for a defendant to prove that his legitimate interest of privacy was invaded, and yet fail to prove that the police acted illegally in doing so. And it is equally possible for a defendant to prove that the police acted illegally, and yet fail to prove that his own privacy interest was affected.
47
Nor do I read this Court's decisions to hold that property interests cannot be, in some circumstances at least, weighty factors in establishing the existence of fourth Amendment rights. Not every concept of ownership or possession is "arcane." Not every interest in property exists only in the desiccated atmosphere of ancient maxims and dusty books. Earlier this Term the Court recognized that "the right to exclude" is an essential element of modern property rights. Kaiser Aetna v. United States, 444 U.S. 164, at 179-180, 100 S.Ct. 383, at 393, 62 L.Ed.2d 332 (1979). In my view, that "right to exclude" often may be a principal determinant in the establishment of a legitimate Fourth Amendment interest. Accordingly, I would confine analysis to the facts of this case. On those facts, however, I agree that petitioner's possessory interest in the vials of controlled substances is not sufficient to create a privacy interest in Vanessa Cox's purse, and that such an interest was not otherwise conferred by any agreement between petitioner and Cox.
48
Mr. Justice WHITE, with whom Mr. Justice STEWART joins, concurring in part.
49
Although I join Parts I and II-A of the Court's opinion, I do not join Parts II-B, II-C, and III because I believe that the fruits inquiry undertaken in Part II-B should not be done in the first instance in this Court. As the Court recognizes, the Supreme Court of Kentucky did not address the question whether petitioner's admission to ownership of the drugs was the fruit of an illegal detention, even though the question was presented there. The state-court majority did state that in concluding that the search of petitioner's person was incident to a valid arrest it "disregard[ed] as irrelevant the detention during the period in which the officers were procuring a search warrant." The court also observed that "[t]his search was not explored in detail at the suppression hearing" and that "the sequence of the search of the purse and Rawlings' admission of ownership of the drugs is not clearly established in the record." The court then concluded that "[c]learly, after Rawlings admitted ownership of the drugs, the officers were entitled to arrest and search the person, or search and then arrest." 581 S.W.2d 348, 350 (1979).
50
In proceeding in this manner, the Supreme Court of Kentucky plainly failed properly to dispose of a federal question, as the Court implicitly recognizes. Because the fruits question was never addressed below and was barely mentioned in the briefs before this Court, I would vacate the judgment below and remand to permit the state court to address the question under the correct legal standard. This Court should not attempt to decide a factual issue on a record that the state court itself apparently thought inadequate for that purpose.
51
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.
52
The vials of pills found in Vanessa Cox's purse and petitioner's admission that they belonged to him established his guilt conclusively. The State concedes, as it must, that the search of the purse was unreasonable and in violation of the Fourth Amendment, see Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), and the Court assumes that the detention which led to the search, the seizure, and the admissions also violated the Fourth Amendment, ante, at 106. Nevertheless, the Court upholds the conviction. I dissent.
53
* The Court holds first that petitioner may not object to the introduction of the pills into evidence because the unconstitutional actions of the police officers did not violate his personal Fourth Amendment rights. To reach this result, the Court holds that the Constitution protects an individual against unreasonable searches and seizures only if he has "a 'legitimate expectation of privacy' in the area searched." Ante, at 104. This holding cavalierly rejects the fundamental principle, unquestioned until today, that an interest in either the place searched or the property seized is sufficient to invoke the Constitution's protections against unreasonable searches and seizures.
54
The Court's examination of previous Fourth Amendment cases begins and ends—as it must if it is to reach its desired conclusion—with Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Contrary to the Court's assertion, however, Rakas did not establish that the Fourth Amendment protects individuals against unreasonable searches and seizures only if they have a privacy interest in the place searched. The question before the Court in Rakas was whether the defendants could establish their right to Fourth Amendment protection simply by showing that they were "legitimately on [the] premises" searched, see Jones v. United States, 362 U.S. 257, 267, 80 S.Ct. 725, 734, 4 L.Ed.2d 697 (1960). Overruling that portion of Jones, the Court held that when a Fourth Amendment objection is based on an interest in the place searched, the defendant must show an actual invasion of his personal privacy interest. The petitioners in Rakas did not claim that they had standing either under the Jones automatic standing rule for persons charged with possessory offenses, which the Court overrules today, see United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619, or because their possessory interest in the items seized gave them "actual standing." No Fourth Amendment claim based on an interest in the property seized was before the Court, and, consequently, the Court did not and could not have decided whether such a claim could be maintained. In fact, the Court expressly disavowed any intention to foreclose such a claim ("This is not to say that such [casual] visitors could not contest the lawfulness of the seizure of evidence or the search if their own property were seized during the search," 439 U.S., at 142, n. 11, 99 S.Ct., at 430), and suggested its continuing validity ("[P]etitioners' claims must fail. They asserted neither a property nor a possessory interest in the automobile, nor an interest in the property seized," id., at 148, 99 S.Ct., at 433 (emphasis supplied)).
55
The decision today, then, is not supported by the only case directly cited in its favor.* Further, the Court has ignored a long tradition embodying the opposite view. United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951), for example, involved a seizure of contraband alleged to belong to the defendant from a hotel room occupied by his two aunts. The Court rejected the Government's argument that because the search of the room did not invade Jeffers' privacy he lacked standing to suppress the evidence. It held that standing to object to the seizure could not be separated from standing to object to the search, for "[t]he search and seizure are . . . incapable of being untied." Id., at 52, 72 S.Ct., at 95. The Court then concluded that Jeffers "unquestionably had standing . . . unless the contraband nature of the narcotics seized precluded his assertion, for purposes of the exclusionary rule, of a property interest therein." Ibid. (emphasis supplied).
56
Similarly, Jones v. United States, supra, is quite plainly premised on the understanding that an interest in the seized property is sufficient to establish that the defendant "himself was the victim of an invasion of privacy." 362 U.S., at 261, 80 S.Ct., at 731. The Court observed that the "conventional standing requirement," id., at 262, 80 S.Ct., at 731, required the defendant to "claim either to have owned or possessed the seized property or to have had a substantial possessory interest in the premises searched," id., at 261, 80 S.Ct., at 731 (emphasis supplied). The Court relaxed that rule for defendants charged with possessory offenses because "[t]he same element . . . which has caused a dilemma, i. e., that possession both convicts and confers standing, eliminates any necessity for a preliminary showing of an interest in the premises searched or the property seized, which ordinarily is required when standing is challenged." Id., at 263, 80 S.Ct., at 732 (emphasis supplied). Instead, "[t]he possession on the basis of which petitioner is to be and was convicted suffices to give him standing," id., at 264, 80 S.Ct., at 732.
57
Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), proceeded upon a like understanding. The Court there reiterated that prior to Jones "a defendant who wished to assert a Fourth Amendment objection was required to show that he was the owner or possessor of the seized property or that he had a possessory interest in the searched premises." 390 U.S., at 389-390, 88 S.Ct., at 974 (emphasis supplied). Jones had changed that rule only with respect to defendants charged with possessory offenses, so the defendant Garrett, who was charged with armed robbery, had to establish standing. Because he was not "legitimately on [the] premises" at the time of the search, see Jones, supra, 362 U.S., at 267, 80 S.Ct., at 734, "[t]he only, or at least the most natural, way in which he could found standing to object to the admission of the suitcase was to testify that he was its owner." 390 U.S., at 391, 88 S.Ct., at 975 (footnote omitted). See also Brown v. United States, 411 U.S. 223, 228, 93 S.Ct. 1565, 1568, 36 L.Ed.2d 208 (1973); Mancusi v. DeForte, 392 U.S. 364, 367, 88 S.Ct. 2120, 2123, 20 L.Ed.2d 1154 (1968).
58
The Court's decision today is not wrong, however, simply because it is contrary to our previous cases. It is wrong because it is contrary to the Fourth Amendment, which guarantees 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 Court's reading of the Amendment is far too narrow. The Court misreads the guarantee of security "in their persons, houses, papers, and effects, against unreasonable searches and seizures" to afford protection only against unreasonable searches and seizures of persons and places.
59
The Fourth Amendment, it seems to me, provides in plain language that if one's security in one's "effects" is disturbed by an unreasonable search and seizure, one has been the victim of a constitutional violation; and so it has always been understood. Therefore the Court's insistence that in order to challenge the legality of the search one must also assert a protected interest in the premises is misplaced. The interest in the item seized is quite enough to establish that the defendant's personal Fourth Amendment rights have been invaded by the government's conduct.
60
The idea that a person cannot object to a search unless he can show an interest in the premises, even though he is the owner of the seized property, was squarely rejected almost 30 years ago in United States v. Jeffers, supra. There the Court stated:
61
"The Government argues . . . that the search did not invade respondent's privacy and that he, therefore, lacked the necessary standing to suppress the evidence seized. The significant act, it says, is the seizure of the goods of the respondent without a warrant. We do not believe the events are so easily isolable. Rather they are bound together by one sole purpose—to locate and seize the narcotics of respondent. The search and seizure are, therefore, incapable of being untied. To hold that this search and seizure were lawful as to the respondent would permit a quibbling distinction to overturn a principle which was designed to protect a fundamental right." Id., 342 U.S., at 52, 72 S.Ct., at 95-96.
62
When the government seizes a person's property, it interferes with his constitutionally protected right to be secure in his effects. That interference gives him the right to challenge the reasonableness of the government's conduct, including the seizure. If the defendant's property was seized as the result of an unreasonable search, the seizure cannot be other than unreasonable.
63
In holding that the Fourth Amendment protects only those with a privacy interest in the place searched, and not those with an ownership or possessory interest in the things seized, the Court has turned the development of the law of search and seizure on its head. The history of the Fourth Amendment shows that it was designed to protect property interests as well as privacy interests; in fact, until Jones the question whether a person's Fourth Amendment rights had been violated turned on whether he had a property interest in the place searched or the items seized. Jones and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), expanded our view of the protections afforded by the Fourth Amendment by recognizing that privacy interests are protected even if they do not arise from property rights. But that recognition was never intended to exclude interests that had historically been sheltered by the Fourth Amendment from its protection. Neither Jones nor Katz purported to provide an exclusive definition of the interests protected by the Fourth Amendment. Indeed, as Katz recognized: "That Amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all." 389 U.S., at 350, 88 S.Ct., at 510. Those decisions freed Fourth Amendment jurisprudence from the constraints of "subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical." Jones, 362 U.S., at 266, 80 S.Ct., at 733. Rejection of those finely drawn distinctions as irrelevant to the concerns of the Fourth Amendment did not render property rights wholly outside its protection, however. Not every concept involving property rights, we should remember, is "arcane." Cf. ante, at 105.
64
In fact, the Court rather inconsistently denies that property rights may, by themselves, entitle one to the protection of the Fourth Amendment, but simultaneously suggests that a person may claim such protection only if his expectation of privacy in the premises searched is so strong that he may exclude all others from that place. See ante, at 105-106; Rakas v. Illinois, 439 U.S., at 149, 99 S.Ct., at 433. Such a harsh threshold requirement was not imposed even in the heyday of a property rights oriented Fourth Amendment.
II
65
Petitioner also contends that his admission of ownership of the drugs should have been suppressed as the fruit of an unlawful detention. The state courts did not pass on that claim, and no factual record was developed which would shed light on the proper disposition of the claim. In such circumstances, it would be appropriate for us to defer to the state court and permit it to make the initial determination. Nevertheless, the majority proceeds to dispose of petitioner's claim by concluding that, even if the detention was illegal, "petitioner's statements were acts of free will unaffected by any illegality in the initial detention." Ante, at 110. I disagree.
66
Petitioner's admissions, far from being "spontaneous," ante, at 108, were made in response to Vanessa Cox's demand that petitioner "take what was his." In turn, it is plain that her statement was the direct product of the illegal search of her purse. And that search was made possible only because the police refused to let anyone in the house depart unless they "consented" to a body search; that detention the Court has assumed was illegal. Under these circumstances petitioner's admissions were obviously the fruit of the illegal detention and should have been suppressed.
III
67
In the words of Mr. Justice Frankfurter: "A decision [of a Fourth Amendment claim] may turn on whether one gives that Amendment a place second to none in the Bill of Rights, or considers it on the whole a kind of nuisance, a serious impediment in the war against crime." Harris v. United States, 331 U.S. 145, 157, 67 S.Ct. 1098, 1104, 91 L.Ed. 1399 (1947) (dissenting opinion). Today a majority of the Court has substantially cut back the protection afforded by the Fourth Amendment and the ability of the people to claim that protection, apparently out of concern lest the government's ability to obtain criminal convictions be impeded. A slow and steady erosion of the ability of victims of unconstitutional searches and seizures to obtain a remedy for the invasion of their rights saps the constitutional guarantee of its life just as surely as would a substantive limitation. Because we are called on to decide whether evidence should be excluded only when a search has been "successful," it is easy to forget that the standards we announce determine what government conduct is reasonable in searches and seizures directed at persons who turn out to be innocent as well as those who are guilty. I continue to believe that ungrudging application of the Fourth Amendment is indispensable to preserving the liberties of a democratic society. Accordingly, I dissent.
1
At petitioner's trial, Vanessa Cox described the transfer of possession quite differently. She testified that, as she and petitioner were getting
ready to leave the house, petitioner asked "would you please carry this for me" and simultaneously dumped the drugs into her purse. According to Cox, she looked into her purse, saw the drugs, and said "would you please take this, I do not want this in my purse." Petitioner allegedly replied "okay, just a minute, I will," and then went out of the room. At that point the police entered the house. Tr. 12-14. David Saddler, who was in the next room at the time of the transfer, corroborated Cox's version of the events, testifying that he heard Cox say "I do not want this in my purse" and that he heard petitioner reply "don't worry" or something to that effect. Id., at 100.
Although none of the lower courts specifically found that Cox did not consent to the bailment, the trial court clearly was skeptical about petitioner's version of events:
"The Court finds it unbelievable that just of his own volition, David Rawlings put the contraband in the purse of Mrs. Cox just a minute before the officers knocked on the door. He had been carrying these things around Bowling Green in a bank deposit sack for days, either on his person or in his pocket, and it is unworthy of belief that just immediately before the officers knocked on the door that he put them in the purse of Vanessa Cox. It is far more plausible to believe that he saw the officers pull up out front and then elected to 'push them off' on Vanessa Cox, believing that search was probable, possible, and emminent [sic ]." App. 21.
2
Petitioner also claims that he is entitled to "automatic standing" to contest the legality of the search that uncovered the drugs. See Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). Our decision today in United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619, disposes of this contention adversely to him.
3
Under questioning by his own counsel, petitioner testified as follows:
"Q72 Did you feel that Vannessa [sic ] Cox's purse would be free from the intrusion of the officers as you sat there? When you put the pills in her purse, did you feel that they would be free from governmental intrusion?
"A No sir." App. 48.
The trial court also credited this statement, noting immediately:
"You know what, I believe this boy tells the truth. You all wanted to bring him in here before the Court, and he said, 'no, I want a jury.' He said 'no, I don't understand that.' And I don't blame him for not understanding that. That's the first time I've ever seen such a thing brought on before this Court, and I've been here for quite a few years as an attorney, of course.
"Now, no question but what the boy fully understood what was meant by that. None at all in the Court's mind. If you want to go ahead, you can do so." Ibid.
4
But see n. 1, supra.
5
"The reasonableness of seizures that are less intrusive than a traditional arrest, see Dunaway v. New York, 442 U.S. 200, 209-210, [99 S.Ct. 2248, 2254-2255, 60 L.Ed.2d 824] (1979); Terry v. Ohio, 392 U.S. 1, 20, [88 S.Ct. 1868, 1879, 20 L.Ed.2d 889] (1968), depends 'on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers.' Pennsylvania v. Mimms, 434 U.S. 106, 109, [98 S.Ct. 330, 332, 54 L.Ed.2d 331] (1977); United States v. Brignoni-Ponce, [422 U.S. 873, 878, [95 S.Ct. 2574, 2578, 45 L.Ed.2d 607] (1975)]. Consideration of the constitutionality of such seizures involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty." Brown v. Texas, 443 U.S. 47, 50-51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979).
6
The fruits of the search of petitioner's person were, of course, not necessary to support probable cause to arrest petitioner.
*
The Court invites the reader to "contrast" Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), which it expressly overrules, and to "see" Simmons v. United States, 390 U.S. 377, 389-390, 88 S.Ct. 967, 973-974, 19 L.Ed.2d 1247 (1968). Ante, at 105, 104. The passage cited in Simmons contains the following language: "At one time a defendant who wished to assert a Fourth Amendment objection was required to show that he was the owner or possessor of the seized property or that he had a possessory interest in the searched premises." 390 U.S., at 389-390, 88 S.Ct., at 974 (emphasis supplied). The Court in Simmons then observed that Jones had "relaxed" those standing requirements by holding that in a case charging a possessory offense "the Government is precluded from denying that the defendant has the requisite possessory interest to challenge the admission of the evidence. . . ." Ibid. The Court also "contrasts" two other cases in connection with its subsidiary point that a "bailment" that is "precipitous" may not be enough to show that a person "took normal precautions to maintain his privacy." Ante, at 105. The Court also cites Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), as the source of the phrase "legitimate expectation of privacy." But Katz did not purport to restrict the interest protected by the Fourth Amendment, see infra, at 119-120.
| 01
|
448 U.S. 56
100 S.Ct. 2531
65 L.Ed.2d 597
State of OHIO, Petitioner,v.Herschel ROBERTS.
No. 78-756.
Argued Nov. 26, 1979.
Decided June 25, 1980.
Syllabus
At respondent's preliminary hearing in an Ohio state court on charges of forgery of a check in the name of one Bernard Isaacs and of possession of stolen credit cards belonging to Isaacs and his wife, respondent's counsel called as a witness the Isaacs' daughter, who testified that she had permitted respondent to use her apartment for several days while she was away. However, she refused to admit that she had given respondent checks and the credit cards without informing him that she did not have permission to use them. Respondent's counsel did not ask to have the witness declared hostile or to place her on cross-examination. At respondent's subsequent criminal trial, he testified that the daughter had given him her parents' checkbook and credit cards with the understanding that he could use them. When the daughter failed to appear at the trial despite the State's having issued five separate subpoenas to her at her parents' residence, the State offered in rebuttal the transcript of her preliminary hearing testimony, relying on an Ohio statute which permits the use of such testimony when the witness "cannot for any reason be produced at the trial." At a voir dire hearing on admissibility, conducted after the defense objected to the use of the transcript as violative of the Sixth Amendment's Confrontation Clause, the mother, as the sole witness, testified that the daughter had left home soon after the preliminary hearing; that about a year before the trial a San Francisco social worker had communicated with the parents about the daughter's welfare application filed there; that the last time the daughter telephoned, some seven or eight months before trial, she told her parents that she "was traveling" outside Ohio, but did not reveal where she was; that the mother knew of no way to reach the daughter in case of an emergency; and that she did not know of anybody who knew where the daughter was. The trial court admitted the transcript into evidence, and respondent was convicted. Affirming the Ohio Court of Appeals' reversal of the conviction, the Ohio Supreme Court held that the transcript was inadmissible because the daughter had not been actually cross-examined at the preliminary hearing and was absent at trial, the admission of the transcript thus having violated respondent's confrontation right.
Held: The introduction in evidence at respondent's trial of the daughter's preliminary hearing testimony was constitutionally permissible. Pp. 62-77.
(a) When a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate "indicia of reliability." Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness. Cf. Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293. Pp. 62-66.
(b) The daughter's prior testimony at the preliminary hearing bore sufficient "indicia of reliability." Cf. California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489. It need not be decided whether, under Green, the mere opportunity to cross-examine satisfies the Confrontation Clause, for defense counsel tested the daughter's testimony with the equivalent of significant cross-examination. His questioning, which was replete with leading questions, clearly partook of cross-examination as a matter of form and comported with the principal purpose of cross-examination by challenging the daughter's veracity. Regardless of how state law might formally characterize the questioning, it afforded substantial compliance with the purposes behind the confrontation requirement. Nor can this case be distinguished from Green merely because the daughter was not personally available for questioning at trial or because respondent had a different lawyer at trial from the one at the preliminary hearing. Moreover, this case does not fall among those in which a particularized search for "indicia of reliability" must be made. Pp. 67-73.
(c) On the facts presented, the trial court and the Ohio Supreme Court correctly concluded that the daughter's unavailability to appear at the trial, in the constitutional sense, was established. Pp. 74-77.
55 Ohio St.2d 191, 378 N.E.2d 492, reversed and remanded.
John E. Shoop, Painesville, Ohio, for petitioner.
Marvin R. Plasco, Mentor, Ohio, for respondent.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
This case presents issues concerning the constitutional propriety of the introduction in evidence of the preliminary hearing testimony of a witness not produced at the defendant's subsequent state criminal trial.
2
* Local police arrested respondent, Herschel Roberts, on January 7, 1975, in Lake County, Ohio. Roberts was charged with forgery of a check in the name of Bernard Isaacs, and with possession of stolen credit cards belonging to Isaacs and his wife Amy.
3
A preliminary hearing was held in Municipal Court on January 10. The prosecution called several witnesses, including Mr. Isaacs. Respondent's appointed counsel had seen the Isaacs' daughter, Anita, in the courthouse hallway, and called her as the defense's only witness. Anita Isaacs testified that she knew respondent, and that she had permitted him to use her apartment for several days while she was away. Defense counsel questioned Anita at some length and attempted to elicit from her an admission that she had given respondent checks and the credit cards without informing him that she did not have permission to use them. Anita, however, denied this. Respondent's attorney did not ask to have the witness declared hostile and did not request permission to place her on cross-examination. The prosecutor did not question Anita.
4
A county grand jury subsequently indicted respondent for forgery, for receiving stolen property (including the credit cards), and for possession of heroin. The attorney who represented respondent at the preliminary hearing withdrew upon becoming a Municipal Court Judge, and new counsel was appointed for Roberts.
5
Between November 1975 and March 1976, five subpoenas for four different trial dates1 were issued to Anita at her parents' Ohio residence. The last three carried a written instruction that Anita should "call before appearing." She was not at the residence when these were executed. She did not telephone and she did not appear at trial.
6
In March 1976, the case went to trial before a jury in the Court of Common Pleas. Respondent took the stand and testified that Anita Isaacs had given him her parents' checkbook and credit cards with the understanding that he could use them. Tr. 231-232. Relying on Ohio Rev.Code Ann. § 2945.49 (1975),2 which permits the use of preliminary examination testimony of a witness who "cannot for any reason be produced at the trial," the State, on rebuttal, offered the transcript of Anita's testimony. Tr. 273-274.
7
Asserting a violation of the Confrontation Clause and indeed, the unconstitutionality thereunder of § 2945.49, the defense objected to the use of the transcript. The trial court conducted a voir dire hearing as to its admissibility. Tr. 194-199. Amy Isaacs, the sole witness at voir dire, was questioned by both the prosecutor and defense counsel concerning her daughter's whereabouts. Anita, according to her mother, left home for Tucson, Ariz., soon after the preliminary hearing. About a year before the trial, a San Francisco social worker was in communication with the Isaacs about a welfare application Anita had filed there. Through the social worker, the Isaacs reached their daughter once by telephone. Since then, however, Anita had called her parents only one other time and had not been in touch with her two sisters. When Anita called, some seven or eight months before trial, she told her parents that she "was traveling" outside Ohio, but did not reveal the place from which she called. Mrs. Isaacs stated that she knew of no way to reach Anita in case of an emergency. App. 9. Nor did she "know of anybody who knows where she is." Id. at 11. The trial court admitted the transcript into evidence. Respondent was convicted on all counts.
8
The Court of Appeals of Ohio reversed. After reviewing the voir dire, that court concluded that the prosecution had failed to make a showing of a "good-faith effort" to secure the absent witness' attendance, as required by Barber v. Page, 390 U.S. 719, 722-725, 88 S.Ct. 1318, 1320-1322, 20 L.Ed.2d 255 (1968). The court noted that "we have no witness from the prosecution to testify . . . that no one on behalf of the State could determine Anita's whereabouts, [or] that anyone had exhausted contact with the San Francisco social worker." App. 5. Unavailability would have been established, the court said, "[h]ad the State demonstrated that its subpoenas were never actually served on the witness and that they were unable to make contact in any way with the witness. . . . Until the Isaacs' voir dire, requested by the defense, the State had done nothing, absolutely nothing, to show the Court that Anita would be absent because of unavailability, and they showed no effort having been made to seek out her whereabouts for purpose of trial." Ibid.
9
The Supreme Court of Ohio, by a 4-3 vote, affirmed, but did so on other grounds. 55 Ohio St.2d 191, 378 N.E.2d 492 (1978). It first held that the Court of Appeals had erred in concluding that Anita was not unavailable. Barber v. Page was distinguished as a case in which "the government knew where the absent witness was," whereas Anita's "whereabouts were entirely unknown." 55 Ohio St.2d, at 194, 378 N.E.2d, at 495, "[T]he trial judge could reasonably have concluded from Mrs. Isaacs' voir dire testimony that due diligence could not have procured the attendance of Anita Isaacs"; he "could reasonably infer that Anita had left San Francisco"; and he "could properly hold that the witness was unavailable to testify in person." Id., at 195, 378 N.E.2d, at 495-496.
10
The court, nonetheless, held that the transcript was inadmissible. Reasoning that normally there is little incentive to cross-examine a witness at a preliminary hearing, where the "ultimate issue" is only probable cause, id., at 196, 378 N.E.2d, at 496, and citing the dissenting opinion in California v. Green, 399 U.S. 149, 189, 90 S.Ct. 1930, 1951, 26 L.Ed.2d 489 (1970), the court held that the mere opportunity to cross-examine at a preliminary hearing did not afford constitutional confrontation for purposes of trial. See 55 Ohio St.2d, at 191, 378 N.E.2d, at 493 (court syllabus).3 The court distinguished Green, where this Court had ruled admissible the preliminary hearing testimony of a declarant who was present at trial, but claimed forgetfulness. The Ohio court perceived a "dictum" in Green that suggested that the mere opportunity to cross-examine renders preliminary hearing testimony admissible. 55 Ohio St.2d, at 198, and n. 2, 378 N.E.2d, at 497, and n. 2, citing 399 U.S., at 165-166, 90 S.Ct., at 1938-1939. But the court concluded that Green "goes no further than to suggest that cross-examination actually conducted at preliminary hearing may afford adequate confrontation for purposes of a later trial." 55 Ohio St.2d, at 199, 378 N.E.2d, at 497 (emphasis in original). Since Anita had not been cross-examined at the preliminary hearing and was absent at trial, the introduction of the transcript of her testimony was held to have violated respondent's confrontation right. The three dissenting justices would have ruled that " 'the test is the opportunity for full and complete cross-examination rather than the use which is made of that opportunity' " (citing United States v. Allen, 409 F.2d 611, 613 (CA10 1969)). 55 Ohio St.2d, at 200, 378 N.E.2d, at 498.
11
We granted certiorari to consider these important issues under the Confrontation Clause. 441 U.S. 904, 99 S.Ct. 1990, 60 L.Ed.2d 372 (1979).
II
A.
12
The Court here is called upon to consider once again the relationship between the Confrontation Clause and the hearsay rule with its many exceptions. The basic rule against hearsay, of course, is riddled with exceptions developed over three centuries. See E. Cleary, McCormick on Evidence § 244 (2d ed. 1972) (McCormick) (history of rule); id., §§ 252-324 (exceptions).4 These exceptions vary among jurisdictions as to number, nature, and detail. See, e. g., Fed.Rules Evid. 803, 804 (over 20 specified exceptions). But every set of exceptions seems to fit an apt description offered more than 40 years ago: "an old-fashioned crazy quilt made of patches cut from a group of paintings by cubists, futurists and surrealists." Morgan & Maguire, Looking Backward and Forward at Evidence, 50 Harv.L.Rev. 909, 921 (1937).
13
The Sixth Amendment's Confrontation Clause, made applicable to the States through the Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400, 403-405, 85 S.Ct. 1065, 1067-1068, 13 L.Ed.2d 923 (1965); Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." If one were to read this language literally, it would require, on objection, the exclusion of any statement made by a declarant not present at trial. See Mattox v. United States, 156 U.S. 237, 243, 15 S.Ct. 337, 340, 39 L.Ed. 409 (1895) ("[T]here could be nothing more directly contrary to the letter of the provision in question than the admission of dying declarations"). But, if thus applied, the Clause would abrogate virtually every hearsay exception, a result long rejected as unintended and too extreme.
14
The historical evidence leaves little doubt, however, that the Clause was intended to exclude some hearsay. See California v. Green, 399 U.S., at 156-157, and nn. 9 and 10, 90 S.Ct., at 1934 and nn. 9 and 10; see also McCormick § 252, p. 606. Moreover, underlying policies support the same conclusion. The Court has emphasized that the Confrontation Clause reflects a preference for face-to-face confrontation at trial,5 and that "a primary interest secured by [the provision] is the right of cross-examination." Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965).6 In short, the Clause envisions
15
"a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief." Mattox v. United States, 156 U.S., at 242-243, 15 S.Ct., at 339.
16
These means of testing accuracy are so important that the absence of proper confrontation at trial "calls into question the ultimate 'integrity of the fact-finding process.' " Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297 (1973), quoting Berger v. California, 393 U.S. 314, 315, 89 S.Ct. 540, 541, 21 L.Ed.2d 508 (1969).
17
The Court, however, has recognized that competing interests, if "closely examined," Chambers v. Mississippi, 410 U.S., at 295, 93 S.Ct., at 1045, may warrant dispensing with confrontation at trial. See Mattox v. United States, 156 U.S., at 243, 15 S.Ct., at 340 ("general rules of law of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case"). Significantly, every jurisdiction has a strong interest in effective law enforcement, and in the development and precise formulation of the rules of evidence applicable in criminal proceedings. See Snyder v. Massachusetts, 291 U.S. 97, 107, 54 S.Ct. 330, 333, 78 L.Ed. 674 (1934); California v. Green, 399 U.S., at 171-172, 90 S.Ct., at 1941-1942 (concurring opinion).
18
This Court, in a series of cases, has sought to accommodate these competing interests. True to the common-law tradition, the process has been gradual, building on past decisions, drawing on new experience, and responding to changing conditions. The Court has not sought to "map out a theory of the Confrontation Clause that would determine the validity of all . . . hearsay 'exceptions.' " California v. Green, 399 U.S., at 162, 90 S.Ct., at 1937. But a general approach to the problem is discernible.
B
19
The Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First, in conformance with the Framers' preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case (including cases where prior cross-examination has occurred), the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant. See Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972); Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). See also Motes v. United States, 178 U.S. 458, 20 S.Ct. 993, 44 L.Ed. 1150 (1900); California v. Green, 399 U.S., at 161-162, 165, 167, n. 16, 90 S.Ct., at 1936-1937, 1938, 1939, n. 16.7
20
The second aspect operates once a witness is shown to be unavailable. Reflecting its underlying purpose to augment accuracy in the factfinding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that "there is no material departure from the reason of the general rule." Snyder v. Massachusetts, 291 U.S., at 107, 54 S.Ct., at 333. The principle recently was formulated in Mancusi v. Stubbs :
21
"The focus of the Court's concern has been to insure that there 'are indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant,' Dutton v. Evans, supra, at 89, 91 S.Ct., at 220 and to 'afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement,' California v. Green, supra, 399 U.S., at 161, 90 S.Ct., at 1936. It is clear from these statements, and from numerous prior decisions of this Court, that even though the witness be unavailable his prior testimony must bear some of these 'indicia of reliability.' " 408 U.S., at 213, 92 S.Ct., at 2313.
22
The Court has applied this "indicia of reliability" requirement principally by concluding that certain hearsay exceptions rest upon such solid foundations that admission of virtually any evidence within them comports with the "substance of the constitutional protection." Mattox v. United States, 156 U.S., at 244, 15 S.Ct., at 340.8 This reflects the truism that "hearsay rules and the Confrontation Clause are generally designed to protect similar values," California v. Green, 399 U.S., at 155, 90 S.Ct., at 1933, and "stem from the same roots," Dutton v. Evans, 400 U.S. 74, 86, 91 S.Ct. 210, 218, 27 L.Ed.2d 213 (1970). It also responds to the need for certainty in the workaday world of conducting criminal trials.
23
In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate "indicia of reliability." Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.9
III
24
We turn first to that aspect of confrontation analysis deemed dispositive by the Supreme Court of Ohio, and answered by it in the negative—whether Anita Isaacs' prior testimony at the preliminary hearing bore sufficient "indicia of reliability." Resolution of this issue requires a careful comparison of this case to California v. Green, supra.
A.
25
In Green, at the preliminary hearing, a youth named Porter identified Green as a drug supplier. When called to the stand at Green's trial, however, Porter professed a lapse of memory. Frustrated in its attempt to adduce live testimony, the prosecution offered Porter's prior statements. The trial judge ruled the evidence admissible, and substantial portions of the preliminary hearing transcript were read to the jury. This Court found no error. Citing the established rule that prior trial testimony is admissible upon retrial if the declarant becomes unavailable, Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed.409 (1895); Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972), and recent dicta suggesting the admissibility of preliminary hearing testimony under proper circumstances, Barber v. Page, 390 U.S., at 725726, 88 S.Ct., at 1322; Pointer v. Texas, 380 U.S., at 407, 85 S.Ct., at 1069, the Court rejected Green's Confrontation Clause attack. It reasoned:
26
"Porter's statement at the preliminary hearing had already been given under circumstances closely approximating those that surround the typical trial. Porter was under oath; respondent was represented by counsel—the same counsel in fact who later represented him at the trial; respondent had every opportunity to cross-examine Porter as to his statement; and the proceedings were conducted before a judicial tribunal, equipped to provide a judicial record of the hearings." 399 U.S., at 165, 90 S.Ct., at 1938.
27
These factors, the Court concluded, provided all that the Sixth Amendment demands: "substantial compliance with the purposes behind the confrontation requirement." Id., at 166, 90 S.Ct., at 1939.10
28
This passage and others in the Green opinion suggest that the opportunity to cross-examine at the preliminary hearing—even absent actual cross-examination—satisfies the Confrontation Clause. Yet the record showed, and the Court recognized, that defense counsel in fact had cross-examined Porter at the earlier proceeding. Id., at 151, 90 S.Ct., at 1931. Thus, Mr. Justice BRENNAN, writing in dissent, could conclude only that "[p]erhaps" "the mere opportunity for face-to-face encounter [is] sufficient." Id., at 200, n. 8, 90 S.Ct., at 1957. See Note, 52 Texas L.Rev. 1167, 1170 (1974).
29
We need not decide whether the Supreme Court of Ohio correctly dismissed statements in Green suggesting that the mere opportunity to cross-examine rendered the prior testimony admissible. See Westen, The Future of Confrontation, 77 Mich.L.Rev. 1185, 1211 (1979) (issue is "truly difficult to resolve under conventional theories of confrontation"). Nor need we decide whether de minimis questioning is sufficient, for defense counsel in this case tested Anita's testimony with the equivalent of significant cross-examination.
B
30
Counsel's questioning clearly partook of cross-examination as a matter of form. His presentation was replete with leading questions,11 the principal tool and hallmark of crossexamination. In addition, counsel's questioning comported with the principal purpose of cross-examination: to challenge "whether the declarant was sincerely telling what he believed to be the truth, whether the declarant accurately perceived and remembered the matter he related, and whether the declarant's intended meaning is adequately conveyed by the language he employed." Davenport, The Confrontation Clause and the Co-Conspirator Exception in Criminal Prosecutions: A Functional Analysis, 85 Harv.L.Rev. 1378 (1972). Anita's unwillingness to shift the blame away from respondent became discernible early in her testimony. Yet counsel continued to explore the underlying events in detail. He attempted, for example, to establish that Anita and respondent were sharing an apartment, an assertion that was critical to respondent's defense at trial and that might have suggested ulterior personal reasons for unfairly casting blame on respondent. At another point, he directly challenged Anita's veracity by seeking to have her admit that she had given the credit cards to respondent to obtain a television. When Anita denied this, defense counsel elicited the fact that the only television she owned was a "Twenty Dollar . . . old model." App. 21. Cf. Davis v. Alaska, 415 U.S. 308, 316-317, 94 S.Ct. 1105, 1110-1111, 39 L.Ed.2d 347 (1974).
31
Respondent argues that, because defense counsel never asked the court to declare Anita hostile, his questioning necessarily occurred on direct examination. See State v. Minneker, 27 Ohio St.2d 155, 271 N.E.2d 821 (1971). But however state law might formally characterize the questioning of Anita, it afforded "substantial compliance with the purposes behind the confrontation requirement," Green, 399 U.S., at 166, 90 S.Ct., at 1939, no less so than classic cross-examination. Although Ohio law may have authorized objection by the prosecutor or intervention by the court, this did not happen. As in Green, respondent's counsel was not "significantly limited in any way in the scope or nature of his cross-examination." Ibid. We are also unpersuaded that Green is distinguishable on the ground that Anita Isaacs—unlike the declarant Porter in Green —was not personally available for questioning at trial. This argument ignores the language and logic of Green :
32
"Porter's statement would, we think, have been admissible at trial even in Porter's absence if Porter had been actually unavailable . . . . That being the case, we do not think a different result should follow where the witness is actually produced." Id., at 165, 90 S.Ct., at 1938-39.
33
Nor does it matter that, unlike Green, respondent had a different lawyer at trial from the one at the preliminary hearing. Although one might strain one's reading of Green to assign this factor some significance, respondent advances no reason of substance supporting the distinction. Indeed, if we were to accept this suggestion, Green would carry the seeds of its own demise; under a "same attorney" rule, a defendant could nullify the effect of Green by obtaining new counsel after the preliminary hearing was concluded.
34
Finally, we reject respondent's attempt to fall back on general principles of confrontation, and his argument that this case falls among those in which the Court must undertake a particularized search for "indicia of reliability." Under this theory, the factors previously cited—absence of face-to-face contact at trial, presence of a new attorney, and the lack of classic cross-examination—combine with considerations uniquely tied to Anita to mandate exclusion of her statements. Anita, respondent says, had every reason to lie to avoid prosecution or parental reprobation. Her unknown whereabouts is explicable as an effort to avoid punishment, perjury, or self-incrimination. Given these facts, her prior testimony falls on the unreliable side, and should have been excluded.
35
In making this argument, respondent in effect asks us to disassociate preliminary hearing testimony previously subjected to cross-examination from previously cross-examined prior-trial testimony, which the Court has deemed generally immune from subsequent confrontation attack. Precedent requires us to decline this invitation. In Green the Court found guarantees of trustworthiness in the accouterments of the preliminary hearing itself; there was no mention of the inherent reliability or unreliability of Porter and his story. See also Mancusi v. Stubbs, 408 U.S., at 216, 92 S.Ct., at 2314.
36
In sum, we perceive no reason to resolve the reliability issue differently here than the Court did in Green. "Since there was an adequate opportunity to cross-examine [the witness], and counsel . . . availed himself of that opportunity, the transcript . . . bore sufficient 'indicia of reliability' and afforded ' "the trier of fact a satisfactory basis for evaluating the truth of the prior statement." ' " 408 U.S., at 216, 92 S.Ct., at 2314.12
IV
37
Our holding that the Supreme Court of Ohio erred in its "indicia of reliability" analysis does not fully dispose of the case, for respondent would defend the judgment on an alternative ground. The State, he contends, failed to lay a proper predicate for admission of the preliminary hearing transcript by its failure to demonstrate that Anita Issacs was not available to testify in person at the trial. All the justices of the Supreme Court of Ohio rejected this argument. 55 Ohio St.2d, at 195 and 199, 378 N.E.2d, at 495 and 497.
A.
38
The basic litmus of Sixth Amendment unavailability is established: "[A] witness is not 'unavailable' for purposes of the . . . exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial." Barber v. Page, 390 U.S., at 724-725, 88 S.Ct., at 1322 (emphasis added). Accord, Mancusi v. Stubbs, supra; California v. Green, 399 U.S., at 161-162, 165, 167, n. 16, 90 S.Ct., at 1936-1937, 1938-1939, n. 16; Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508 (1969).
39
Although it might be said that the Court's prior cases provide no further refinement of this statement of the rule, certain general propositions safely emerge. The law does not require the doing of a futile act. Thus, if no possibility of procuring the witness exists (as, for example, the witness' intervening death), "good faith" demands nothing of the prosecution. But if there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation. "The lengths to which the prosecution must go to produce a witness . . . is a question of reasonableness." California v. Green, 399 U.S., at 189, n. 22, 90 S.Ct., at 1951 (concurring opinion, citing Barber v. Page, supra ). The ultimate question is whether the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and present that witness. As with other evidentiary proponents, the prosecution bears the burden of establishing this predicate.
B
40
On the facts presented we hold that the trial court and the Supreme Court of Ohio correctly concluded that Anita's unavailability, in the constitutional sense, was established.
41
At the voir dire hearing, called for by the defense, it was shown that some four months prior to the trial the prosecutor was in touch with Amy Isaacs and discussed with her Anita's whereabouts. It may appropriately be inferred that Mrs. Isaacs told the prosecutor essentially the same facts to which she testified at voir dire : that the Isaacs had last heard from Anita during the preceding summer; that she was not then in San Francisco, but was traveling outside Ohio; and that the Isaacs and their other children knew of no way to reach Anita even in an emergency. This last fact takes on added significance when it is recalled that Anita's parents earlier had undertaken affirmative efforts to reach their daughter when the social worker's inquiry came in from San Francisco. This is not a case of parents abandoning all interest in an absent daughter.
42
The evidence of record demonstrates that the prosecutor issued a subpoena to Anita at her parents' home, not only once, but on five separate occasions over a period of several months. In addition, at the voir dire argument, the prosecutor stated to the court that respondent "witnessed that I have attempted to locate, I have subpoenaed, there has been a voir dire of the witness' parents, and they have not been able to locate her for over a year." App. 12.
43
Given these facts, the prosecution did not breach its duty of good-faith effort. To be sure, the prosecutor might have tried to locate by telephone the San Francisco social worker with whom Mrs. Isaacs had spoken many months before and might have undertaken other steps in an effort to find Anita. One, in hindsight, may always think of other things. Nevertheless, the great improbability that such efforts would have resulted in locating the witness, and would have led to her production at trial, neutralizes any intimation that a concept of reasonableness required their execution. We accept as a general rule, of course, the proposition that "the possibility of a refusal is not the equivalent of asking and receiving a rebuff." Barber v. Page, 390 U.S., at 724, 88 S.Ct., at 1322, quoting from the dissenting opinion in that case in the Court of Appeals (381 F.2d 479, 481 (CA10 1966)). But the service and ineffectiveness of the five subpoenas and the conversation with Anita's mother were far more than mere reluctance to face the possibility of a refusal. It was investigation at the last-known real address, and it was conversation with a parent who was concerned about her daughter's whereabouts.
44
Barber and Mancusi v. Stubbs, supra, are the cases in which this Court has explored the issue of constitutional unavailability. Although each is factually distinguishable from this case, Mancusi provides significant support for a conclusion of good-faith effort here,13 and Barber has no contrary significance. Insofar as this record discloses no basis for concluding that Anita was abroad, the case is factually weaker than Mancusi ; but it is stronger than Mancusi in the sense that the Ohio prosecutor, unlike the prosecutor in Mancusi, had no clear indication, if any at all, of Anita's whereabouts. In Barber, the Court found an absence of good-faith effort where the prosecution made no attempt to secure the presence of a declarant incarcerated in a federal penitentiary in a neighboring State. There, the prosecution knew where the witness was, procedures existed whereby the witness could be brought to the trial, and the witness was not in a position to frustrate efforts to secure his production. Here, Anita's whereabouts were not known, and there was no assurance that she would be found in a place from which she could be forced to return to Ohio.
45
We conclude that the prosecution carried its burden of demonstrating that Anita was constitutionally unavailable for purposes of respondent's trial.
46
The judgment of the Supreme Court of Ohio is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
47
It is so ordered.
48
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL and Mr. Justice STEVENS join, dissenting.
49
The Court concludes that because Anita Isaacs' testimony at respondent's preliminary hearing was subjected to the equivalent of significant cross-examination, such hearsay evidence bore sufficient "indicia of reliability" to permit its introduction at respondent's trial without offending the Confrontation Clause of the Sixth Amendment. As the Court recognizes, however, the Constitution imposes the threshold requirement that the prosecution must demonstrate the unavailability of the witness whose prerecorded testimony it wishes to use against the defendant. Because I cannot agree that the State has met its burden of establishing this predicate, I dissent.1
50
"There are few subjects, perhaps, upon which this Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal." Pointer v. Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965). Accord, Berger v. California, 393 U.S. 314, 315, 89 S.Ct. 540, 541, 21 L.Ed.2d 508 (1969); Barber v. Page, 390 U.S. 719, 721, 88 S.Ct. 1318, 1320, 20 L.Ed.2d 255 (1968); Pointer v. Texas, supra, 380 U.S., at 410, 85 S.Ct., at 1071 (STEWART, J., concurring); Kirby v. United States, 174 U.S. 47, 55-56, 19 S.Ct. 574, 577, 43 L.Ed. 890 (1899). Historically, the inclusion of the Confrontation Clause in the Bill of Rights reflected the Framers' conviction that the defendant must not be denied the opportunity to challenge his accusers in a direct encounter before the trier of fact. See California v. Green, 399 U.S. 149, 156-158, 90 S.Ct. 1930, 1934-1935, 26 L.Ed.2d 489 (1970); Park v. Huff, 506 F.2d 849, 861-862 (CA5 1975) (Gewin, J., concurring). At the heart of this constitutional guarantee is the accused's right to compel the witness "to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief." Mattox v. United States, 156 U.S. 237, 242-243, 15 S.Ct. 337, 339, 39 L.Ed. 409 (1895). See also California v. Green, supra, 399 U.S., at 174-183, 90 S.Ct., at 1943-1948 (Harlan, J., concurring).
51
Despite the literal language of the Sixth Amendment,2 our cases have recognized the necessity for a limited exception to the confrontation requirement for the prior testimony of a witness who is unavailable at the defendant's trial. In keeping with the importance of this provision in our constitutional scheme, however, we have imposed a heavy burden on the prosecution either to secure the presence of the witness or to demonstrate the impossibility of that endeavor. Barber v. Page, supra, held that the absence of a witness from the jurisdiction does not excuse the State's failure to attempt to compel the witness' attendance at trial; in such circumstances, the government must show that it has engaged in a diligent effort to locate and procure the witness' return. "In short, a witness is not 'unavailable' for purposes of the foregoing exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial." Id., 390 U.S., at 724-725, 88 S.Ct., at 1322. See, e. g., United States v. Mann, 590 F.2d 361, 367 (CA1 1978); United States v. Lynch, 163 U.S.App.D.C. 6, 18-19, 499 F.2d 1011, 1023-1024 (1974); Government of the Virgin Islands v. Aquino, 378 F.2d 540, 549-552 (CA3 1967). See generally 5 J. Wigmore, Evidence § 1405 (J. Chadbourn rev. 1974) and cases cited therein.
52
In the present case, I am simply unable to conclude that the prosecution met its burden of establishing Anita Isaacs' unavailability. From all that appears in the record—and there has been no suggestion that the record is incomplete in this respect the State's total effort to secure Anita's attendance at respondent's trial consisted of the delivery of five subpoenas in her name to her parents' residence, and three of those were issued after the authorities had learned that she was no longer living there.3 At least four months before the trial began, the prosecution was aware that Anita had moved away; yet during that entire interval it did nothing whatsoever to try to make contact with her. It is difficult to believe that the State would have been so derelict in attempting to secure the witness' presence at trial had it not had her favorable preliminary hearing testimony upon which to rely in the event of her "unavailability." The perfunctory steps which the State took in this case can hardly qualify as a "good-faith effort." In point of fact, it was no effort at all.
53
The Court, however, is apparently willing to excuse the prosecution's inaction on the ground that any endeavor to locate Anita Isaacs was unlikely to bear fruit. See ante, at 75-76. I not only take issue with the premise underlying that reasoning that the improbability of success can condone a refusal to conduct even a cursory investigation into the witness' whereabouts—but I also seriously question the Court's conclusion that a bona fide search in the present case would inevitably have come to naught.
54
Surely the prosecution's mere speculation about the difficulty of locating Anita Isaacs cannot relieve it of the obligation to attempt to find her. Although the rigor of the undertaking might serve to palliate a failure to prevail, it cannot justify a failure even to try. Just as Barber cautioned that " 'the possibility of a refusal is not the equivalent of asking and receiving a rebuff,' " 390 U.S., at 724, 88 S.Ct., at 1322 (quoting the decision below, 381 F.2d 479, 481 (CA10 1966) (Aldrich, J., dissenting)), so, too, the possibility of a defeat is not the equivalent of pursuing all obvious leads and returning emptyhanded. The duty of "good-faith effort" would be meaningless indeed "if that effort were required only in circumstances where success was guaranteed." Mancusi v. Stubbs, 408 U.S. 204, 223, 92 S.Ct. 2308, 2318, 33 L.Ed.2d 293 (1972) (MARSHALL, J., dissenting).
55
Nor do I concur in the Court's bleak prognosis of the likelihood of procuring Anita Isaacs' attendance at respondent's trial.4 Although Anita's mother testified that she had no current knowledge of her daughter's whereabouts, the prosecution possessed sufficient information upon which it could have at least initiated an investigation. As the Court acknowledges, one especially promising lead was the San Francisco social worker to whom Mrs. Isaacs had spoken and with whom Anita had filed for welfare. What the Court fails to mention, however, is that the prosecution had more to go on than that datum alone. For example, Mrs. Isaacs testified that on the same day she talked to the social worker, she also spoke to her daughter. And although Mrs. Isaacs told defense counsel that she knew of no way to get in touch with her daughter in an emergency, Tr. 195, in response to a similar question from the prosecutor she indicated that someone in Tucson might be able to contact Anita. Id., at 198-199. It would serve no purpose here to essay an exhaustive catalog of the numerous measures the State could have taken in a diligent attempt to locate Anita. It suffices simply to note that it is not "hindsight," see ante, at 75, that permits us to envision how a skilled investigator armed with this information (and any additional facts not brought out through the voir dire )5 might have discovered Anita's whereabouts with reasonable effort. Indeed, precisely because the prosecution did absolutely nothing to try to locate Anita, hindsight does not enhance the vista of investigatory opportunities that were available to the State had it actually attempted to find her.
56
In sum, what the Court said in Barber v. Page, 390 U.S., at 725, 88 S.Ct., at 1322, is equally germane here: "[S]o far as this record reveals, the sole reason why [the witness] was not present to testify in person was because the State did not attempt to seek [her] presence. The right of confrontation may not be dispensed with so lightly."
1
A number of continuances were granted for reasons unrelated to Anita's absence.
2
The statute reads:
"Testimony taken at an examination or a preliminary hearing at which the defendant is present, or at a former trial of the cause, or taken by deposition at the instance of the defendant or the state, may be used whenever the witness giving such testimony dies, or cannot for any reason be produced at the trial, or whenever the witness has, since giving such testimony, become incapacitated to testify. If such former testimony is contained within a bill of exceptions, or authenticated transcript of such testimony, it shall be proven by the bill of exceptions, or transcript, otherwise by other testimony."
3
The Ohio "syllabus rule" is stated in Baltimore & Ohio R. Co. v. Baillie, 112 Ohio St. 567, 570, 148 N.E. 233, 234 (1925). See Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 565, 97 S.Ct. 2849, 2852, 53 L.Ed.2d 965 (1977).
4
With the caveat, "[s]implification has a measure of falsification," McCormick defines hearsay evidence as "testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-course asserter." § 246, p. 584.
5
See California v. Green, 399 U.S. 149, 157, 90 S.Ct. 1930, 1934, 26 L.Ed.2d 489 (1970) ("it is this literal right to 'confront' the witness at the time of the trial that forms the core of the values furthered by the Confrontation Clause"); id., at 172-189, 90 S.Ct., at 1942-1951 (concurring opinion); Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255 (1968); Dowdell v. United States, 221 U.S. 325, 330, 31 S.Ct. 590, 55 L.Ed. 753 (1911).
6
See also Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1109, 39 L.Ed.2d 347 (1974); Bruton v. United States, 391 U.S. 123, 126, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); Pointer v. Texas, 380 U.S. 400, 406-407, 85 S.Ct. 1065, 1069, 13 L.Ed.2d 923 (1965); California v. Green, 399 U.S., at 158, 90 S.Ct., at 1935 (cross-examination is the " 'greatest legal engine ever invented for the discovery of truth,' " quoting 5 J. Wigmore, Evidence § 1367 (3d ed. 1940)). Of course, these purposes are interrelated, since one critical goal of cross-examination is to draw out discrediting demeanor to be viewed by the factfinder. See Government of Virgin Islands v. Aquino, 378 F.2d 540, 548 (CA3 1967).
Confrontation at trial also operates to ensure reliability in other ways. First, "[t]he requirement of personal presence . . . undoubtedly makes it more difficult to lie against someone, particularly if that person is an accused and present at trial." 4 J. Weinstein & M. Berger, Weinstein's Evidence ¶ 800[01], pp. 800-10 (1979). See also Note, 54 Iowa L.Rev. 360, 365 (1968). Second, it "insures that the witness will give his statements under oath—thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury." California v. Green, 399 U.S., at 158, 90 S.Ct., at 1935.
7
A demonstration of unavailability, however, is not always required. In Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), for example, the Court found the utility of trial confrontation so remote that it did not require the prosecution to produce a seemingly available witness. Cf. Read, The New Confrontation—Hearsay Dilemma, 45 S.Cal.L.Rev. 1, 43, 49 (1972); The Supreme Court, 1970 Term, 85 Harv.L.Rev. 3, 194-195, 197-198 (1971).
8
See, e. g., Pointer v. Texas, 380 U.S., at 407, 85 S.Ct., at 1069 (dying declarations); Mattox v. United States, 156 U.S., at 243-244, 15 S.Ct., at 339-340 (same); Mancusi v. Stubbs, 408 U.S. 204, 213-216, 92 S.Ct. 2308, 2313-2314, 33 L.Ed.2d 293 (1972) (cross-examined prior-trial testimony); Comment, 30 La.L.Rev. 651, 668 (1970) ("Properly administered the business and public records exceptions would seem to be among the safest of the hearsay exceptions").
9
The complexity of reconciling the Confrontation Clause and the hearsay rules has triggered an outpouring of scholarly commentary. Few observers have commented without proposing, roughly or in detail, a basic approach. Some have advanced theories that would shift the general mode of analysis in favor of the criminal defendant. See F. Heller, The Sixth
Amendment 105 (1951); Seidelson, Hearsay Exceptions and the Sixth Amendment, 40 Geo.Wash.L.Rev. 76, 91-92 (1971) (all hearsay should be excluded except, perhaps, when prosecution shows absolute necessity, high degree of trustworthiness, and "total absence" of motive to falsify); The Supreme Court, 1967 Term, 82 Harv.L.Rev. 63, 237 (1968); Note, 31 Vand.L.Rev. 682, 694 (1978).
Others have advanced theories that would relax constitutional restrictions on the use of hearsay by the prosecutor. See 5 J. Wigmore, Evidence § 1397, p. 159 (J. Chadbourn rev. 1974); Note, The Confrontation Test for Hearsay Exceptions: An Uncertain Standard, 59 Calif.L.Rev. 580, 594 (1971) ("fixed procedural definition of the confrontation clause makes the actual protection afforded depend upon the particular evidence rules in force in each state"); Younger, Confrontation and Hearsay: A Look Backward, A Peek Forward, 1 Hofstra L.Rev. 32 (1973); Westen, The Future of Confrontation, 77 Mich.L.Rev. 1185 (1979); Graham, The Confrontation Clause, the Hearsay Rule and the Forgetful Witness, 56 Texas L.Rev. 151 (1978); Note, 75 Yale L.J. 1434 (1966). See California v. Green, 399 U.S., at 172-189, 90 S.Ct., at 1942-1951 (Harlan, J., concurring) (Confrontation Clause requires only that prosecution produce available witnesses; Due Process Clause bars conviction "where the critical issues at trial were supported only by ex parte testimony not subjected to cross-examination, and not found to be reliable by the trial judge," id., at 186, n. 20, 90 S.Ct., at 1950).
Still others have proposed theories that might either help or hurt the accused. See Graham, The Right of Confrontation and the Hearsay Rule: Sir Walter Raleigh Loses Another One, 8 Crim.L.Bull. 99, 129 (1972); Baker, The Right to Confrontation, the Hearsay Rules, and Due Process, 6 Conn.L.Rev. 529 (1974); Comment, 13 UCLA L.Rev. 366, 376-377 (1966) (advocating sliding-scale "probative value-need quotient"); Comment, 52 Texas L.Rev. 1167, 1190-1191 (1974).
Finally, a number of commentators, while sometimes criticizing particular results or language in past decisions, have generally agreed with the Court's present approach. See Davenport, The Confrontation Clause and The Co-Conspirator Exception in Criminal Prosecutions: A Functional Analysis, 85 Harv.L.Rev. 1378, 1405 (1972); Read, The New Confrontation-Hearsay Dilemma, 45 S.Cal.L.Rev. 1, 48 (1972) ("the traditional approach . . . with its recognition of a core constitutional value to be preserved, but with its reluctance to make sweeping declarations as to the
meaning of that RIGHT . . . IS THE BEST . . . compRomise"); note, 113 U.pa.l.rev. 741, 748, and n. 38 (1965) (requiring "adequate substitute for confrontation," while recognizing that no substitute can be "fully adequate"). See also Natali, Green, Dutton and Chambers : Three Cases in Search of a Theory, 7 Rutgers-Camden L.J. 43, 62 (1975); The Supreme Court, 1970 Term, 85 Harv.L.Rev. 3, 199 (1971).
Notwithstanding this divergence of critical opinion, we have found no commentary suggesting that the Court has misidentified the basic interests to be accommodated. Nor has any commentator demonstrated that prevailing analysis is out of line with the intentions of the Framers of the Sixth Amendment. Convinced that "no rule will perfectly resolve all possible problems," Natali, 7 Rutgers-Camden L.J., at 73, we reject the invitation to overrule a near-century of jurisprudence. Our reluctance to begin anew is heightened by the Court's implicit prior rejection of principal alternative proposals, see Dutton v. Evans, 400 U.S., at 93-100, 91 S.Ct., at 221-225 (concurring opinion), and California v. Green, 399 U.S., at 172-189, 90 S.Ct., at 1942-1951 (concurring opinion); the mutually critical character of the commentary; and the Court's demonstrated success in steering a middle course among proposed alternatives.
10
This reasoning appears in Part III of Green, the only section of that opinion directly relevant to the issue raised here. The Ohio court in the present case appears to have dismissed Part III as "dictum." 55 Ohio St.2d, at 198, 378 N.E.2d, at 497. The United States has suggested that Part III properly is viewed as an "alternative holding." Brief for United States as Amicus Curiae 24, n. 15. Either view, perhaps, would diminish Green's precedential significance. We accept neither.
In Part II of Green, the Court held that use of a trial witness' prior inconsistent statements as substantive evidence did not, as a general rule, violate the Confrontation Clause. In Part III, the Court went further and held: "Porter's preliminary hearing testimony was admissible . . . wholly apart from the question of whether respondent had an effective opportunity for confrontation at the subsequent trial. For Porter's statement at the preliminary hearing had already been given under circumstances closely approximating those that surround the typical trial." 399 U.S., at 165, 90 S.Ct., at 1938. In Part IV, the Court returned to the general rule articulated in Part II. The Court contrasted cases in which the declarant testifies at trial that he has forgotten the underlying events, rather than claiming recollection but advancing an inconsistent story. The Court noted that commentators disagreed over whether the former class of cases should be brought within the general rule articulated in Part II. Id., at 169, n. 18, 90 S.Ct., at 1940, n. 18. Given the difficulty of the issue, which was neither briefed in this Court nor addressed below, the Court remanded the case for a determination of whether assertedly inconsistent remarks made by Porter to a police officer could be admitted under the rule of Part II. Since the critical reason for this disposition was Porter's asserted forgetfulness at trial, the same result clearly would have obtained in regard to Porter's preliminary hearing testimony were it not for the Court's holding in Part III. It follows that Part III was not an alternative holding, and certainly was not dictum. That portion of the opinion alone dispositively established the admissibility of Porter's preliminary hearing testimony. See also Note, 59 Calif.L.Rev., at 589; The Supreme Court, 1969 Term, 84 Harv.L.Rev. 1, 114-115 (1970).
11
No less than 17 plainly leading questions were asked, as indicated by phrases in counsel's inquiries: "is[n't] it a fact . . . that"; "is it to your knowledge, then, that . . . "; "is[n't] that correct"; "you never gave them . . . "; "this wasn't then in the pack . . . "; "you have never [not] seen [discussed; talked] . . . "; "you never gave. . . . "
12
We need not consider whether defense counsel's questioning at the preliminary hearing surmounts some inevitably nebulous threshold of "effectiveness." In Mancusi, to be sure, the Court explored to some extent the adequacy of counsel's cross-examination at the earlier proceeding. See 408 U.S., at 214-215, 92 S.Ct., at 2313-2314. That discussion, however, must be read in light of the fact that the defendant's representation at the earlier proceeding, provided by counsel who had been appointed only four days prior thereto, already had been held to be ineffective. See id., at 209, 92 S.Ct., at 2311. Under those unusual circumstances, it was necessary to explore the character of the actual cross-examination to ensure that an adequate opportunity for full cross-examination had been afforded to the defendant. Cf. Pointer v. Texas, 380 U.S., at 407, 85 S.Ct., at 1069. We hold that in all but such extraordinary cases, no inquiry into "effectiveness" is required. A holding that every case involving prior testimony requires such an inquiry would frustrate the principal objective of generally validating the prior-testimony exception in the first place—increasing certainty and consistency in the application of the Confrontation Clause.
The statement in Mancusi quoted in the text indicates the propriety of this approach. To the same effect is Mattox v. United States, 156 U.S., at 244, 15 S.Ct., at 340. ("The substance of the constitutional protection is preserved to the prisoner in the advantage he has once had of seeing the witness face to face, and of subjecting him to the ordeal of a cross-examination").
13
In Mancusi, the declarant "who had been born in Sweden but had become a naturalized American citizen, had returned to Sweden and taken up permanent residence there." 408 U.S., at 209, 92 S.Ct., at 2311. While in this country, he had testified against Stubbs at his Tennessee trial for murder and kidnaping. Stubbs was convicted, but obtained habeas corpus relief 10 years later, and was retried by Tennessee. Before the second trial, the prosecution sent a subpoena to be served in Texas, the declarant's last place of residence in this country. It could not be served. The Court rejected Stubbs' assertion that the prosecution had not undertaken good-faith efforts in failing to do more. "Tennessee . . . was powerless to compel his attendance . . . either through its own process or through established procedures." Id., at 212, 92 S.Ct., at 2313.
1
Because I am convinced that the State failed to lay a proper foundation for the admission of Anita Isaacs' preliminary hearing testimony, I have no occasion to consider whether that testimony had in fact been subjected to full and effective adverse questioning and whether, even conceding the adequacy of the prior cross-examination, the significant differences in the nature and objectives of the preliminary hearing and the trial preclude substituting confrontation at the former proceeding for the constitutional requirement of confrontation at the latter. See California v. Green, 399 U.S. 149, 195-203, 90 S.Ct. 1930, 1954-1958, 26 L.Ed.2d 489 (1970) (BRENNAN, J., dissenting).
2
"In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him."
3
The five subpoenas, all of which were issued to Anita at her parents' address, showed that returns were made on November 3 and 4, 1975, December 10, 1975, February 3, 1976, and February 25, 1976, respectively. During the course of the voir dire of Anita's mother, the prosecutor indicated that sometime in November 1975 the Isaacs had told him that Anita had left home. See Tr. 197; ante, at 75.
4
In attempting to distinguish this case from Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), and demonstrate the reasonableness of the State's conduct the Court states that "there was no assurance that [Anita] would be found in a place from which she could be forced to return to Ohio." Ante, at 77. Once located, however, it is extremely unlikely that Anita could have resisted the State's efforts to secure her return. The Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings enables prosecuting authorities in one State to obtain an order from a court in another State compelling the witness' appearance to testify in court in the first State. The Uniform Act has been adopted in the District of Columbia, the Panama Canal Zone, Puerto Rico, the Virgin Islands, and every State in the Union except Alabama. 11 U.L.A. 1 (Supp. 1980).
5
The Court of Appeals of Ohio expressed some doubt as to whether Mrs. Isaacs had been totally forthcoming in professing no knowledge of the whereabouts of her daughter, who had been linked to respondent's criminal involvements and who, in Mrs. Isaacs' words, "wants to make her own way, and forget all the unpleasantness that happened here, and prove something to herself and to us, and to think about her future and forget her past." Tr. 195-196. See App. 5-6. These reservations about the candidness of Mrs. Isaacs' testimony provide yet another reason why the State was not justified in relying solely on the Isaacs' representations to establish Anita's unavailability.
| 01
|
448 U.S. 83
100 S.Ct. 2547
65 L.Ed.2d 619
UNITED STATES, Petitioner,v.John M. SALVUCCI, Jr. and Joseph G. Zackular.
No. 79-244.
Argued March 26, 1980.
Decided June 25, 1980.
Syllabus
Respondents were charged with unlawful possession of stolen mail. The checks that formed the basis of the indictment had been seized by police during a search, conducted pursuant to a warrant, of an apartment rented by one respondent's mother. Respondents moved to suppress the checks on the ground that the affidavit supporting the application for the search warrant was inadequate to show probable cause. The District Court granted the motion. The Court of Appeals affirmed, holding, in reliance on Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, that since respondents were charged with crimes of possession, they were entitled to claim "automatic standing" to challenge the legality of the search without regard to whether they had an expectation of privacy in the premises searched.
Held: Defendants charged with crimes of possession may only claim the benefits of the exclusionary rule if their own Fourth Amendment rights have in fact been violated. Jones v. United States, supra, overruled. Pp. 86-95.
(a) The "dilemma" identified in Jones (and given as one of the two reasons for establishing the "automatic standing" rule as an exception to the exclusionary rule) that a defendant charged with a possessory offense might only be able to establish his standing to challenge a search and seizure by giving self-incriminating testimony admissible as evidence of his guilt, was eliminated by Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, wherein it was held that testimony given by a defendant in support of a motion to suppress cannot be admitted as evidence of his guilt at trial. Pp. 89-90.
(b) The second reason given in Jones for the "automatic standing" rule that such rule would prevent the "vice of prosecutorial self-contradiction" whereby the Government would assert that the defendant possessed the goods in question for purposes of criminal liability while simultaneously asserting that he did not possess them for the purposes of claiming the protections of the Fourth Amendment, has likewise been eroded. It is now the rule that a prosecutor, without legal contradiction, may simultaneously maintain that a defendant criminally possessed the seized goods but was not subject to a Fourth Amendment deprivation. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387. The underlying assumption for such "vice of prosecutorial self-contradiction" that possession of seized goods is the equivalent of Fourth Amendment "standing" to challenge the search creates too broad a gauge for measurement of Fourth Amendment rights. Rather, it must be asked not merely whether the defendant has a possessory interest in the items seized but also whether he had an expectation of privacy in the area searched. Pp. 90-93.
(c) The issue whether the prosecutor, although not permitted under Simmons v. United States, supra, to use a defendant's testimony at a suppression hearing as substantive evidence of guilt at trial, may still be permitted to use such testimony to impeach the defendant at trial, need not be resolved here, since it is an issue that more aptly relates to the proper breadth of the Simmons privilege and not to the need for retaining automatic standing. Pp. 93-94.
(d) Respondents' argument that the "automatic standing" rule should be retained since it maximizes the deterrence of illegal police conduct by permitting an expanded class of potential challengers, is without merit. Pp. 94-95.
599 F.2d 1094, 1 Cir., reversed and remanded.
Mark I. Levy, Washington, D.C., for petitioner.
Willie J. Davis, Boston, Mass., for respondent John M. Salvucci, Jr.
John C. McBride, Everett, Mass., for respondent Joseph G. Zackular.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Relying on Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), the Court of Appeals for the First Circuit held that since respondents were charged with crimes of possession, they were entitled to claim "automatic standing" to challenge the legality of the search which produced the evidence against them, without regard to whether they had an expectation of privacy in the premises searched. 599 F.2d 1094 (1979). Today we hold that defendants charged with crimes of possession may only claim the benefits of the exclusionary rule if their own Fourth Amendment rights have in fact been violated. The automatic standing rule of Jones v. United States, supra, is therefore overruled.
2
* Respondents, John Salvucci and Joseph Zackular, were charged in a federal indictment with 12 counts of unlawful possession of stolen mail, in violation of 18 U.S.C. § 1708. The 12 checks which formed the basis of the indictment had been seized by the Massachusetts police during the search of an apartment rented by respondent Zackular's mother. The search was conducted pursuant to a warrant.
3
Respondents filed a motion to suppress the checks on the ground that the affidavit supporting the application for the search warrant was inadequate to demonstrate probable cause. The District Court granted respondents' motions and ordered that the checks be suppressed.1 The Government sought reconsideration of the District Court's ruling, contending that respondents lacked "standing" to challenge the constitutionality of the search. The District Court reaffirmed its suppression order and the Government appealed.
4
The Court of Appeals affirmed, holding that respondents had "standing" and the search warranted was constitutionally inadequate. The court found that the respondents were not required to establish a legitimate expectation of privacy in the premises searched or the property seized because they were entitled to assert "automatic standing" to object to the search and seizure under Jones v. United States, supra. The court observed that the vitality of the Jones doctrine had been challenged in recent years, but that "[u]ntil the Supreme Court rules on this question, we are not prepared to hold that the automatic standing rule of JONES HAS BEEN . . . OVERRULED . . . . THAt is an issue which the Supreme Court must resolve." 599 F.2d, at 1098. The Court of Appeals was obviously correct in its characterization of the status of Jones, and we granted certiorari in order to resolve the controversy.2 444 U.S. 989, 100 S.Ct. 519, 62 L.Ed.2d 418 (1979).
II
5
As early as 1907, this Court took the position that remedies for violations of constitutional rights would only be afforded to a person who "belongs to the class for whose sake the constitutional protection is given." Hatch v. Reardon, 204 U.S. 152, 160, 27 S.Ct. 188, 190, 51 L.Ed. 415. The exclusionary rule is one form of remedy afforded for Fourth Amendment violations, and the Court in Jones v. United States held that the Hatch v. Reardon principle properly limited its availability. The Court reasoned that ordinarily "it is entirely proper to require of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he . . . establish, that he himself was the victim of an invasion of privacy." 362 U.S., at 261, 80 S.Ct., at 731. Subsequent attempts to vicariously assert violations of the Fourth Amendment rights of others have been repeatedly rejected by this Court. Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966, 22 L.Ed.2d 176 (1969); Brown v. United States, 411 U.S. 223, 230, 93 S.Ct. 1565, 1569, 36 L.Ed.2d 208 (1973). Most recently, in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), we held that "it is proper to permit only defendants whose Fourth Amendment rights have been violated to benefit from the [exclusionary] rule's protections." Id., at 134, 99 S.Ct., at 425.
6
Even though the Court in Jones recognized that the exclusionary rule should only be available to protect defendants who have been the victims of an illegal search or seizure, the Court thought it necessary to establish an exception. In cases where possession of the seized evidence was an essential element of the offense charged, the Court held that the defendant was not obligated to establish that his own Fourth Amendment rights have been violated, but only that the search and seizure of the evidence was unconstitutional.3 Upon such a showing, the exclusionary rule would be available to prevent the admission of the evidence against the defendant.
7
The Court found that the prosecution of such possessory offenses presented a "special problem" which necessitated the departure from the then settled principles of Fourth Amendment "standing."4 Two circumstances were found to require this exception. First, the Court found that in order to establish standing at a hearing on a motion to suppress, the defendant would often be "forced to allege facts the proof of which would tend, if indeed not be sufficient, to convict him," since several Courts of Appeals had "pinioned a defendant within this dilemma" by holding that evidence adduced at the motion to suppress could be used against the defendant at trial. 362 U.S., at 262, 80 S.Ct., at 731. The Court declined to embrace any rule which would require a defendant to assert his Fourth Amendment claims only at the risk of providing the prosecution with self-incriminating statements admissible at trial. The Court sought resolution of this dilemma by relieving the defendant of the obligation of establishing that his Fourth Amendment rights were violated by an illegal search or seizure.
8
The Court also commented that this rule would be beneficial for a second reason. Without a rule prohibiting a Government challenge to a defendant's "standing" to invoke the exclusionary rule in a possessory offense prosecution, the Government would be allowed the "advantage of contradictory positions." Id., at 263, 80 S.Ct., at 732. The Court reasoned that the Government ought not to be allowed to assert that the defendant possessed the goods for purposes of criminal liability, while simultaneously asserting that he did not possess them for the purposes of claiming the protections of the Fourth Amendment. The Court found that "[i]t is not consonant with the amenities, to put it mildly, of the administration of criminal justice to sanction such squarely contradictory assertions of power by the Government." Id., at 263-264, 80 S.Ct., at 732. Thus in order to prevent both the risk that self-incrimination would attach to the assertion of Fourth Amendment rights, as well as to prevent the "vice of prosecutorial self-contradiction," see Brown v. United States, supra, at 229, 93 S.Ct., at 1569, the Court adopted the rule of "automatic standing."
9
In the 20 years which have lapsed since the Court's decision in Jones, the two reasons which led the Court to the rule of automatic standing have likewise been affected by time. This Court has held that testimony given by a defendant in support of a motion to suppress cannot be admitted as evidence of his guilt at trial. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Developments in the principles of Fourth Amendment standing, as well, clarify that a prosecutor may, with legal consistency and legitimacy, assert that a defendant charged with possession of a seized item did not have a privacy interest violated in the course of the search and seizure. We are convinced not only that the original tenets of the Jones decision have eroded, but also that no alternative principles exist to support retention of the rule.
A.
10
The "dilemma" identified in Jones, that a defendant charged with a possessory offense might only be able to establish his standing to challenge a search and seizure by giving self-incriminating testimony admissible as evidence of his guilt, was eliminated by our decision in Simmons v. United States, supra. In Simmons, the defendant Garrett was charged with bank robbery. During the search of a codefendant's mother's house, physical evidence used in the bank robbery, including a suitcase, was found in the basement and seized. In an effort to establish his standing to assert the illegality of the search, Garrett testified at the suppression hearing that the suitcase was similar to one he owned and that he was the owner of the clothing discovered inside the suitcase. Garrett's motion to suppress was denied, but his testimony was admitted into evidence against him as part of the Government's case-in-chief at trial. This Court reversed, finding that "a defendant who knows that his testimony may be admissible against him at trial will sometimes be deterred from presenting the testimonial proof of standing necessary to assert a Fourth Amendment claim." 390 U.S., at 392-393, 88 S.Ct., at 975. The Court found that, in effect, the defendant was
11
"obliged either to give up what he believed, with advice of counsel, to be a valid Fourth Amendment claim or, in legal effect, to waive his Fifth Amendment privilege against self-incrimination. In these circumstances, we find it intolerable that one constitutional right should have to be surrendered in order to assert another. We therefore hold that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection." Id., at 394, 88 S.Ct., at 976.
12
This Court's ruling in Simmmons thus not only extends protection against this risk of self-incrimination in all of the cases covered by Jones, but also grants a form of "use immunity" to those defendants charged with nonpossessory crimes. In this respect, the protection of Simmons is therefore broader than that of Jones. Thus, as we stated in Brown v. United States, 411 U.S., at 228, 93 S.Ct., at 1568, "[t]he self-incrimination dilemma, so central to the Jones decision, can no longer occur under the prevailing interpretation of the Constitution [in Simmons ]."
B
13
This Court has identified the self-incrimination rationale as the cornerstone of the Jones opinion. See Brown v. United States, supra, at 228, 93 S.Ct., at 1568. We need not belabor the question of whether the "vice" of prosecutorial contradiction could alone support a rule countenancing the exclusion of probative evidence on the grounds that someone other than the defendant was denied a Fourth Amendment right. The simple answer is that the decisions of this Court, especially our most recent decision in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), clearly establish that a prosecutor may simultaneously maintain that a defendant criminally possessed the seized good, but was not subject to a Fourth Amendment deprivation, without legal contradiction. To conclude that a prosecutor engaged in self-contradiction in Jones, the Court necessarily relied on the unexamined assumption that a defendant's possession of a seized good sufficient to establish criminal culpability was also sufficient to establish Fourth Amendment "standing." This assumption, however, even if correct at the time, is no longer so.5
14
The person in legal possession of a good seized during an illegal search has not necessarily been subject to a Fourth Amendment deprivation.6 As we hold today in Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633, legal possession of a seized good is not a proxy for determining whether the owner had a Fourth Amendment interest, for it does not invariably represent the protected Fourth Amendment interest. This Court has repeatedly repudiated the notion that "arcane distinctions developed in property and tort law" ought to control our Fourth Amendment inquiry. Rakas v. Illinois, supra, at 143, [99 S.Ct. 421]. In another section of the opinion inJones itself, the Court concluded that, "it is unnecessary and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private property law . . . ." 362 U.S., at 266, 80 S.Ct., at 733. See also Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 816, 19 L.Ed.2d 869 (1968); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).
15
While property ownership is clearly a factor to be considered in determining whether an individual's Fourth Amendment rights have been violated, see Rakas, supra, at 144, n. 12, 99 S.Ct., at 431, property rights are neither the beginning nor the end of this Court's inquiry. In Rakas, this Court held that an illegal search only violates the rights of those who have "a legitimate expectation of privacy in the invaded place." 439 U.S., at 140, 99 S.Ct., at 430. See also Mancusi v. DeForte, supra.
16
We simply decline to use possession of a seized good as a substitute for a factual finding that the owner of the good had a legitimate expectation of privacy in the area searched. In Jones, the Court held not only that automatic standing should be conferred on defendants charged with crimes of possession, but, alternatively, that Jones had actual standing because he was "legitimately on the premises" at the time of the search. In Rakas, this Court rejected the adequacy of this second Jones standard, finding that it was "too broad a gauge for measurement of Fourth Amendment rights." 439 U.S., at 142, 99 S.Ct., at 429. In language appropriate to our consideration of the automatic standing rule as well, we reasoned:
17
"In abandoning 'legitimately on premises' for the doctrine that we announce today, we are not forsaking a time-tested and workable rule, which has produced consistent results when applied, solely for the sake of fidelity to the values underlying the Fourth Amendment. Rather, we are rejecting blind adherence to a phrase which at most has superficial clarity and which conceals underneath that thin veneer all of the problems of line drawing which must be faced in any conscientious effort to apply the Fourth Amendment. Where the factual premises for a rule are so generally prevalent that little would be lost and much would be gained by abandoning case-by-case analysis, we have not hesitated to do so. . . . We would not wish to be understood as saying that legitimate presence on the premises is irrelevant to one's expectation of privacy, but it cannot be deemed controlling." Id., at 147-148, 99 S.Ct., at 432.
18
As in Rakas, we again reject "blind adherence" to the other underlying assumption in Jones that possession of the seized good is an acceptable measure of Fourth Amendment interests. As in Rakas, we find that the Jones standard "creates too broad a gauge for measurement of Fourth Amendment rights" and that we must instead engage in a "conscientious effort to apply the Fourth Amendment" by asking not merely whether the defendant had a possessory interest in the items seized, but whether he had an expectation of privacy in the area searched. Thus neither prosecutorial "vice," nor the underlying assumption of Jones that possession of a seized good is the equivalent of Fourth Amendment "standing" to challenge the search, can save the automatic standing rule.
C
19
Even though the original foundations of Jones are no longer relevant, respondents assert that principles not articulated by the Court in Jones support retention of the rule. First, respondents maintain that while Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), eliminated the possibility that the prosecutor could use a defendant's testimony at a suppression hearing as substantive evidence of guilt at trial, Simmons did not eliminate other risks to the defendant which attach to giving testimony on a motion to suppress.7 Principally, respondents assert that the prosecutor may still be permitted to use the defendant's testimony to impeach him at trial.8 This Court has not decided whether Simmons precludes the use of a defendant's testimony at a suppression hearing to impeach his testimony at trial.9 But the issue presented here is quite different from the one of whether "use immunity" extends only through the Government's case-in-chief, or beyond that to the direct and cross-examination of a defendant in the event he chooses to take the stand. That issue need not be and is not resolved here, for it is an issue which more aptly relates to the proper breadth of the Simmons privilege, and not to the need for retaining automatic standing.
20
Respondents also seek to retain the Jones rule on the grounds that it is said to maximize the deterrence of illegal police conduct by permitting an expanded class of potential challengers. The same argument has been rejected by this Court as a sufficient basis for allowing persons whose Fourth Amendment rights were not violated to nevertheless claim the benefits of the exclusionary rule. In Alderman v. United States, 394 U.S., at 174-175, we explicitly stated:
21
"The deterrent values of preventing the incrimination of those whose rights the police have violated have been considered sufficient to justify the suppression of probative evidence even though the case against the defendant is weakened or destroyed. We adhere to that judgment. But we are not convinced that the additional benefits of extending the exclusionary rule to other defendants would justify further encroachment upon the public interest in prosecuting those accused of crime and having them acquitted or convicted on the basis of all the evidence which exposes the truth."
22
See also Rakis v. Illinois, 439 U.S., at 137; United States v. Ceccolini, 435 U.S. 268, 275-276 (1978); United States v. Calandra, 414 U.S. 338, 350-351 (1974). Respondents' deterrence argument carries no special force in the context of possessory offenses and we therefore again reject it.
23
We are convinced that the automatic standing rule of Jones has outlived its usefulness in this Court's Fourth Amendment jurisprudence. The doctrine now serves only to afford a windfall to defendants whose Fourth Amendment rights have not been violated. We are unwilling to tolerate the exclusion of probative evidence under such circumstances since we adhere to the view of Alderman that the values of the Fourth Amendment are preserved by a rule which limits the availability of the exclusionary rule to defendants who have been subjected to a violation of their Fourth Amendment rights.
24
This action comes to us as a challenge to a pretrial decision suppressing evidence. The respondents relied on automatic standing and did not attempt to establish that they had a legitimate expectation of privacy in the areas of Zackular's mother's home where the goods were seized. We therefore think it appropriate to remand so that respondents will have an opportunity to demonstrate, if they can, that their own Fourth Amendment rights were violated. See Combs v. United States, 408 U.S. 224 (1972).
25
Reversed and remanded.
26
Mr. JUSTICE MARSHALL, with whom Mr. JUSTICE BRENNAN joins, dissenting.
27
Today the Court overrules the "automatic standing" rule of Jones v. United States, 362 U.S. 257 (1960), because it concludes that the rationale underpinning the rule has been "eroded", ante, at 89. I do not share that view.
28
A defendant charged with a possessory offense who moves to suppress the items he is charged with possessing must now establish at the suppression hearing that the police conduct of which he complains violated his personal Fourth Amendment rights. In many cases, a defendant will be able to make the required showing only by taking the stand and testifying about his interest in the place searched and the evidence seized; the need for the defendant's own testimony may, in fact, be more likely to arise in possession cases than in cases involving other types of offenses. The holding in Jones was premised, in part, on the unfairness of "pinion[ing] a defendant within th[e] dilemma," 362 U.S., at 262, of being able to assert his Fourth Amendment privilege against self-incrimination. The Court finds that this dilemma no longer exits because Simmons v. United States, 390 U.S. 377 (1968), held that testimony given by a defendant in support of a motion to suppress "may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection." Id., at 394.
29
I cannot agree that Simmons provides complete protection against the "self-incrimination dilemma," Brown v. United States, 411 U.S. 223, 228 (1973). Respondents contend that the testimony given at the suppression hearing might be held admissible for impeachment purposes and, while acknowledging that that question is not before us in this case, the majority broadly hints that this is so. Ante, at 94, n. 9; see Harris v. New York, 401 U.S. 222 (1971); United States v. Kahan, 415 U.S. 239 (1974); United States v. Havens, 446 U.S. 620 (1980); Jenkins v. Anderson, 447 U.S. 231 (1980); but see New Jersey v. Portash, 440 U.S. 450 (1979). The use of the testimony for impeachment purposes would subject a defendant to precisely the same dilemma, unless he was prepared to relinquish his constitutional right to testify in his own defense, and would thereby create a strong deterrent to asserting Fourth Amendment claims. One of the purposes of Jones and Simmons was to remove such obstacles. See Simmons, supra, at 392-394. Moreover, the opportunity for cross-examination at the suppression hearing may enable the prosecutor to elicit incriminating information beyond that offered on direct examination to establish the requisite Fourth Amendment interest. Even if such information could not be introduced at the subsequent trial, it might be helpful to the prosecution in developing its case or deciding its trial strategy. The furnishing of such a tactical advantage to the prosecution should not be the price of asserting a Fourth Amendment claim. Simmons, therefore, does not eliminate the possibility that a defendant will be deterred from presenting a Fourth Amendment claim because of "the risk that the words which he utters may later be used to incriminate him." Simmons, supra, at 393. Accordingly, I conclude that this part of the reasoning in Jones remains viable.
30
A second ground for relieving the defendant charged with possession from the necessity of showing "an interest in the premises searched or the property seized" was that "to hold to the contrary ... would be to permit the Government to have the advantage of contradictory positions as a basis for conviction," Jones, 362 U.S., at 263. That is, since "possession both convicts and confers standing," ibid., the Government, which had charged the defendant with possession, would not be permitted to deny that he had standing. By holding today in Rawlings v. Kentucky, post, p. 98, that a person may assert a Fourth Amendment claim only if he has a privacy interest in the area that was searched, the Court has, to be sure, done away with that logical inconsistency. For reasons stated in my dissenting opinion in that case, I believe that holding is diametrically opposed to the meaning of the Fourth Amendment as it has always been understood.
31
In sum, I find neither of the Court's grounds for abandoning Jones persuasive. The automatic standing rule is a salutary one which protects the rights of defendants and eliminates the wasteful requirement of making a preliminary showing of standing in pretrial proceedings involving possessory offenses, where the charge itself alleges an interest sufficient to support a Fourth Amendment claim. I dissent.
1
The District Court held that the affidavit was deficient because the affiant relied on double hearsay, and failed to specify the dates on which information included in the affidavit had been obtained.
2
The Courts of Appeals have divided on the continued applicability of the automatic standing rule. The Sixth Circuit abandoned the rule after our decision in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). See, e. g., United States v. Hunter, 550 F.2d 1066 (1977). Most of the remaining Circuits appear to have retained the rule, but many with "misgivings." See, e. g., United States v. Oates, 560 F.2d 45, 52 (CA2, 1977); United States v. Edwards, 577 F.2d 883, 892 (CA5), cert. denied, 439 U.S. 968, 99 S.Ct. 458, 58 L.Ed.2d 427 (1978).
3
In Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 1569, 36 L.Ed.2d 208 (1973), this Court clarified that the automatic standing rule of Jones was applicable only where the offense charged "possession of the seized evidence at the time of the contested search and seizure."
4
In Rakas, this Court discarded reliance on concepts of "standing" in determining whether a defendant is entitled to claim the protections of the exclusionary rule. The inquiry, after Rakas, is simply whether the defendant's rights were violated by the allegedly illegal search or seizure. Because Jones was decided at a time when "standing" was designated as a separate inquiry, we use that term for the purposes of re-examining that opinion.
5
Respondent Salvucci cites this Court's decision in United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951), as support for the view that legal ownership of the seized good was sufficient to confer Fourth Amendment "standing." In Rakas, however, we stated that "[s]tanding in Jeffers was based on Jeffers' possessory interest in both the premises searched and the property seized." 439 U.S., at 136, 99 S.Ct., at 426. (Emphasis added.)
6
Legal possession of the seized good may be sufficient in some circumstances to entitle a defendant to seek the return of the seized property if the seizure, as opposed to the search, was illegal. See, e. g., United States v. Lisk, 522 F.2d 228 (CA7, 1975) (Stevens, J.), cert. denied, 423 U.S. 1078, 96 S.Ct. 865, 47 L.Ed.2d 89 (1976), although in that case the property was ultimately found not to have been illegally seized. We need not explore this issue since respondents did not challenge the constitutionality of the seizure of the evidence.
7
The respondents argue that the prosecutor's access to the suppression testimony will unfairly provide the prosecutor with information advantageous to the preparation of his case and trial strategy. This argument, however, is surely applicable equally to possessory and nonpossessory offenses. This Court has clearly declined to expand the Jones rule to other classes of offenses, Alderman v. United States, 394 U.S. 165 (1969); Brown v. United States, 411 U.S. 223 (1973), and thus respondents' rationale cannot support the retention of a special rule of automatic standing here.
8
A number of courts considering the question have held that such testimony is admissible as evidence of impeachment. Gray v. State, 43 Md. App. 238, 403 A.2d 853 (1979); People v. Douglas, 66 Cal. App. 3d 998, 136 Cal Rptr. 358 (1977); People v. Sturgis, 58 Ill. 2d 211, 317 N.E. 2d 545 (1974). See also Woody v. United States, 126 U.S. App. D.C. 353, 354-355, 379 F.2d 130, 131-132 (Burger, J.), cert. denied, 389 U.S. 961 (1967).
| 01
|
448 U.S. 1
100 S.Ct. 2502
65 L.Ed.2d 555
State of MAINE et al., Petitioners,v.Joline THIBOUTOT, et vir., etc.
No. 79-838.
Argued April 22, 1980.
Decided June 25, 1980.
Syllabus
Held:
1. Title 42 U.S.C. § 1983—which provides that anyone who, under color of state statute, regulation, or custom deprives another of any rights, privileges, or immunities "secured by the Constitution and laws" shall be liable to the injured party encompasses claims based on purely statutory violations of federal law, such as respondents' state-court claim that petitioners had deprived them of welfare benefits to which they were entitled under the federal Social Security Act. Given that Congress attached no modifiers to the phrase "and laws," the plain language of the statute embraces respondents' claim, and even were the language ambiguous this Court's earlier decisions, including cases involving Social Security Act claims, explicitly or implicitly suggest that the § 1983 remedy broadly encompasses violations of federal statutory as well as constitutional law. Cf., e. g., Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442; Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662; Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611. Pp. 4-8.
2. In view of its plain language and legislative history, the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988 which provides that attorney's fees may be awarded to the prevailing party (other than the United States) in "any action . . . to enforce" a provision of § 1983, inter alia, and which makes no exception for statutory § 1983 actions—authorizes the award of attorney's fees in such actions. Moreover, it follows from the legislative history and from the Supremacy Clause that the fee provision is part of the § 1983 remedy whether the action is brought in a federal court or, as was the instant action, in a state court. Pp. 8-11.
405 A.2d 230, affirmed.
James Eastman Smith, Augusta, Me., for petitioners.
Robert Edmond Mittle, Portland, Me., for respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The case presents two related questions arising under 42 U.S.C. §§ 1983 and 1988. Respondents brought this suit in the Maine Superior Court alleging that petitioners, the State of Maine and its Commissioner of Human Services, violated § 1983 by depriving respondents of welfare benefitsto which they were entitled under the federal Social Security Act, specifically 42 U.S.C. § 602(a)(7). The petitioners present two issues: (1) whether § 1983 encompasses claims based on purely statutory violations of federal law, and (2) if so, whether attorney's fees under § 1988 may be awarded to the prevailing party in such an action.1
2
* Respondents, Lionel and Joline Thiboutot, are married and have eight children, three of whom are Lionel's by a previous marriage. The Maine Department of Human Services notified Lionel that, in computing the Aid to Families with Dependent Children (AFDC) benefits to which he was entitled for the three children exclusively his, it would no longer make allowance for the money spent to support the other five children, even though Lionel is legally obligated to support them. Respondents, challenging the State's interpretation of 42 U.S.C. § 602(a)(7), exhausted their state administrative remedies and then sought judicial review of the administrative action in the State Superior Court. By amended complaint, respondents also claimed relief under § 1983 for themselves and others similarly situated. The Superior Court's judgment enjoined petitioners from enforcing the challenged rule and ordered them to adopt new regulations, to notify class members of the new regulations, and to pay the correct amounts retroactively to respondents and prospectively to eligible class members.2 The court, however, denied respondents' motion for attorney's fees. The Supreme Judicial Court of Maine, 405 A.2d 230 (1979), concluded that respondents had no entitlement to attorney's fees under state law, but were eligible for attorney's fees pursuant to the Civil Rights Attorney's Fees Awards Act of 1976, 90 Stat. 2641, 42 U.S.C. § 1988.3 We granted certiorari. 444 U.S. 1042, 100 S.Ct. 727, 62 L.Ed.2d 728 (1980). We affirm.
II
Section 1983 provides:
3
"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." (Emphasis added.)
4
The question before us is whether the phrase "and laws," as used in § 1983, means what it says, or whether it should be limited to some subset of laws. Given that Congress attached no modifiers to the phrase, the plain language of the statute undoubtedly embraces respondents' claim that petitioners violated the Social Security Act.
5
Even were the language ambiguous, however, any doubt as to its meaning has been resolved by our several cases suggesting, explicitly or implicitly, that the § 1983 remedy broadly encompasses violations of federal statutory as well as constitutional law. Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970), for example, "held that suits in federal court under § 1983 are proper to secure compliance with the provisions of the Social Security Act on the part of participating States." Edelman v. Jordan, 415 U.S. 651, 675, 94 S.Ct. 1347, 1362, 39 L.Ed.2d 662 (1974). Monell v. New York City Dept. of Social Services, 436 U.S. 658, 700-701, 98 S.Ct. 2018, 2040-2041, 56 L.Ed.2d 611 (1978), as support for its conclusion that municipalities are "persons" under § 1983, reasoned that "there can be no doubt that § 1 of the Civil Rights Act [of 1871] was intended to provide a remedy, to be broadly construed, against all forms of official violation of federally protected rights." Similarly, Owen v. City of Independence, 445 U.S. 622, 649, 100 S.Ct. 1398, 1415, 63 L.Ed.2d 273 (1980), in holding that the common-law immunity for discretionary functions provided no basis for according municipalities a good-faith immunity under § 1983, noted that a court "looks only to whether the municipality has conformed to the requirements of the Federal Constitution and statutes." Mitchum v. Foster, 407 U.S. 225, 240, n. 30, 92 S.Ct. 2151, 2161, 32 L.Ed.2d 705 (1972), and Lynch v. Household Finance Corp., 405 U.S. 538, 543, n. 7, 92 S.Ct. 1113, 1117, 31 L.Ed.2d 424 (1972), noted that § 1983's predecessor "was enlarged to provide protection for rights, privileges, or immunities secured by federal law." Greenwood v. Peacock, 384 U.S. 808, 829-830, 86 S.Ct. 1800, 1813, 16 L.Ed.2d 944 (1966), observed that under § 1983 state "officers may be made to respond in damages not only for violations of rights conferred by federal equal civil rights laws, but for violations of other federal constitutional and statutory rights as well." The availability of this alternative sanction helped support the holding that 28 U.S.C. § 1443(1) did not permit removal to federal court of a state prosecution in which the defense was that the state law conflicted with the defendants' federal rights. As a final example, Mr. Justice Stone, writing in Hague v. CIO, 307 U.S. 496, 525-526, 59 S.Ct. 954, 969, 83 L.Ed. 1423 (1939), expressed the opinion that § 1983 was the product of an "exten[sion] to include rights, privileges and immunities secured by the laws of the United States as well as by the Constitution."
6
While some might dismiss as dictum the foregoing statements, numerous and specific as they are, our analysis in several § 1983 cases involving Social Security Act (SSA) claims has relied on the availability of a § 1983 cause of action for statutory claims. Constitutional claims were also raised in these cases, providing a jurisdictional base, but the statutory claims were allowed to go forward, and were decided on the merits, under the court's pendent jurisdiction. In each of the following cases § 1983 was necessarily the exclusive statutory cause of action because, as the Court held in Edelman v. Jordan, 415 U.S, at 673-674, 94 S.Ct., at 1360-1361; id., at 690, 94 S.Ct., at 1369 (Marshall, J., dissenting), the SSA affords no private right of action against a State. Miller v. Youakim, 440 U.S. 125, 132, and n. 13, 99 S.Ct. 957, 963, 59 L.Ed.2d 194 (1979) (state foster care program inconsistent with SSA); Quern v. Mandley, 436 U.S. 725, 729, and n. 3, 98 S.Ct. 2068, 2072, 56 L.Ed.2d 658 (1978) (state emergency assistance program consistent with SSA); Van Lare v. Hurley, 421 U.S. 338, 95 S.Ct. 1741, 44 L.Ed.2d 208 (1975) (state shelter allowance provisions inconsistent with SSA); Townsend v. Swank, 404 U.S. 282, 92 S.Ct. 502, 30 L.Ed.2d 448 (1971) (state prohibition against AFDC aid for college students inconsistent with SSA); King v. Smith, 392 U.S. 309, 311, 88 S.Ct. 2128, 2130, 20 L.Ed.2d 1118 (1968) (state cohabitation prohibition inconsistent with SSA). Cf. Hagans v. Lavine, 415 U.S. 528, 532-533, 543, 94 S.Ct. 1372, 1376-1377, 1382, 39 L.Ed.2d 577 (1974) (District Court had jurisdiction to decide whether state recoupment provisions consistent with SSA); Carter v. Stanton, 405 U.S. 669, 670, 92 S.Ct. 1232, 1233, 31 L.Ed.2d 569 (1972) (District Court had jurisdiction to decide whether state absent-spouse rule consistent with SSA).
7
In the face of the plain language of § 1983 and our consistent treatment of that provision, petitioners nevertheless persist in suggesting that the phrase "and laws" should be read as limited to civil rights or equal protection laws.4 Petitioners suggest that when § 1 of the Civil Rights Act of 1871, 17 Stat. 13, which accorded jurisdiction and a remedy for deprivations of rights secured by "the Constitution of the United States," was divided by the 1874 statutory revision into a remedial section, Rev.Stat. § 1979, and jurisdictional sections, Rev.Stat. §§ 563(12) and 629(16), Congress intended that the same change made in § 629(16) be made as to each of the new sections as well. Section 629(16), the jurisdictional provision for the circuit courts and the model for the current jurisdictional provision, 28 U.S.C. § 1343(3), applied to deprivations of rights secured by "the Constitution of the United States or of any right secured by any law providing for equal rights." On the other hand, the remedial provision, the predecessor of § 1983, was expanded to apply to deprivations of rights secured by "the Constitution and laws," and § 563(12), the provision granting jurisdiction to the district courts, to deprivations of rights secured by "the Constitution of the United States, or of any right secured by any law of the United States."
8
We need not repeat at length the detailed debate over the meaning of the scanty legislative history concerning the addition of the phrase "and laws." See Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979); id., at 623, 99 S.Ct., at 1919. (POWELL, J., concurring); id., at 646, 99 S.Ct., at 1930. (WHITE, J., concurring in judgment); id., at 672, 99 S.Ct., at 1944. (STEWART, J., dissenting). One conclusion which emerges clearly is that the legislative history does not permit a definitive answer. Id., at 610-611, 99 S.Ct., at 1912-1913; id., at 674, 99 S.Ct., at 1945 (STEWART, J., dissenting). There is no express explanation offered for the insertion of the phrase "and laws." On the one hand, a principal purpose of the added language was to "ensure that federal legislation providing specifically for equality of rights would be brought within the ambit of the civil action authorized by that statute." Id., at 637, 99 S.Ct., at 1926 (POWELL, J., concurring). On the other hand, there are no indications that that was the only purpose, and Congress' attention was specifically directed to this new language. Representative Lawrence, in a speech to the House of Representatives that began by observing that the revisers had very often changed the meaning of existing statutes, 2 Cong.Rec. 825 (1874), referred to the civil rights statutes as "possibly [showing] verbal modifications bordering on legislation," id., at 827. He went on to read to Congress the original and revised versions. In short, Congress was aware of what it was doing, and the legislative history does not demonstrate that the plain language was not intended.5 Petitioners' arguments amount to the claim that had Congress been more careful, and had it fully thought out the relationship among the various sections,6 it might have acted differently. That argument, however, can best be addressed to Congress, which, it is important to note, has remained quiet in the face of our many pronouncements on the scope of § 1983. Cf. TVA v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978).
III
9
Petitioners next argue that, even if this claim is within § 1983, Congress did not intend statutory claims to be covered by the Civil Rights Attorney's Fees Awards Act of 1976, which added the following sentence to 42 U.S.C. § 1988 (emphasis added):
10
"In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318 [20 U.S.C. 1681 et seq.], or in any civil action or proceeding, by or on behalf of the United States of America, to enforce, or charging a violation of, a provision of the United States Internal Revenue Code, or title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq.], 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."
11
Once again, given our holding in Part II, supra, the plain language provides an answer. The statute states that fees are available in any § 1983 action. Since we hold that this statutory action is properly brought under § 1983, and since § 1988 makes no exception for statutory § 1983 actions, § 1988 plainly applies to this suit.7
12
The legislative history is entirely consistent with the plain language. As was true with § 1983, a major purpose of the Civil Rights Attorney's Fees Awards Act was to benefit those claiming deprivations of constitutional and civil rights. Principal sponsors of the measure in both the House and the Senate, however, explicitly stated during the floor debates that the statute would make fees available more broadly. Representative Drinan explained that the Act would apply to § 1983 and that § 1983 "authorizes suits against State and local officials based upon Federal statutory as well as constitutional rights. For example Blue against Craig, 505 F.2d 830 (4th Cir. 1974)." 122 Cong.Rec. 35122 (1976).8 Senator Kennedy also included an SSA case as an example of the cases "enforc[ing] the rights promised by Congress or the Constitution" which the Act would embrace.9 Id., at 33314.10 In short, there can be no question that Congress passed the Fees Act anticipating that it would apply to statutory § 1983 claims.
13
Several States, participating as amici curiae, argue that even if § 1988 applies to § 1983 claims alleging deprivations of statutory rights, it does not apply in state courts. There is no merit to this argument.11 As we have said above, Mar- tinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980), held that § 1983 actions may be brought in state courts. Representative Drinan described the purpose of the Civil Rights Attorney's Fees Awards Act as "authoriz[ing] the award of a reasonable attorney's fee in actions brought in State or Federal courts." 122 Cong.Rec. 35122 (1976). And Congress viewed the fees authorized by § 1988 as "an integral part of the remedies necessary to obtain" compliance with § 1983. S.Rep.No.94-1011, p. 5 (1976), U.S.Code Cong. & Admin.News 1976 at 5913. It follows from this history and from the Supremacy Clause that the fee provision is part of the § 1983 remedy whether the action is brought in federal or state court.12
14
Affirmed.
15
Mr. Justice POWELL, with whom THE CHIEF JUSTICE and Mr. Justice REHNQUIST join, dissenting.
16
The Court holds today, almost casually, that 42 U.S.C. § 1983 creates a cause of action for deprivations under color of state law of any federal statutory right. Having transformed purely statutory claims into "civil rights" actions under § 1983, the Court concludes that 42 U.S.C. § 1988 permits the "prevailing party" to recover his attorney's fees. These two holdings dramatically expand the liability of state and local officials and may virtually eliminate the "American Rule" in suits against those officials.
17
The Court's opinion reflects little consideration of the consequences of its judgment. It relies upon the "plain" meaning of the phrase "and laws" in § 1983 and upon this Court's assertedly "consistent treatment" of that statute. Ante, at 4, 6. But the reading adopted today is anything but "plain" when the statutory language is placed in historical context. Moreover, until today this Court never had held that § 1983 encompasses all purely statutory claims. Past treatment of the subject has been incidental and far from consistent. The only firm basis for decision is the historical evidence, which convincingly shows that the phrase the Court now finds so clear was—and remains—nothing more than a shorthand reference to equal rights legislation enacted by Congress. To read "and laws" more broadly is to ignore the lessons of history, logic, and policy.
18
Part I of this opinion examines the Court's claim that it only construes the "plain meaning" of § 1983, while Part II reviews the historical evidence on the enactment. Part III considers the practical consequences of today's decision. The final substantive section demonstrates that this Court's precedents do not support the Court's ruling today.
19
* Section 1983 provides in relevant part that "[e]very person who, under color of [state law,] subjects . . . any . . . person . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured . . . ." The Court asserts that "the phrase 'and laws' . . . means what it says," because "Congress attached no modifiers to the phrase . . . ." Ante, at 4. Finding no "definitive" contrary indications in the legislative history of § 1983, the Court concludes that that statute provides a remedy for violations of the Social Security Act. The Court suggests that those who would read the phrase "and laws" more narrowly should address their arguments to Congress. Ante, at 8.
20
If we were forbidden to look behind the language in legislative enactments, there might be some force to the suggestion that "and laws" must be read to include all federal statutes. Ante, at 4.1 But the "plain meaning" rule is not as inflexible as the Court imagines. Although plain meaning is always the starting point, 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), this Court rarely ignores available aids to statutory construction. See, e. g., Cass v. United States, 417 U.S. 72, 77-79, 94 S.Ct. 2167, 2170-2171, 40 L.Ed.2d 668 (1974); Harrison v. Northern Trust Co., 317 U.S. 476, 479, 63 S.Ct. 361, 362, 87 L.Ed. 407 (1943), quoting United States v. American Trucking Ass'ns, Inc., 310 U.S. 534, 543-544, 60 S.Ct. 1059, 1063-1064, 84 L.Ed. 1345 (1940). We have recognized consistently that statutes are to be interpreted " 'not only by a consideration of the words themselves, but by considering, as well, the context, the purposes of the law, and the circumstances under which the words were employed.' " District of Columbia v. Carter, 409 U.S. 418, 420, 93 S.Ct. 602, 604, 34 L.Ed.2d 613 (1973), quoting Puerto Rico v. Shell Co., 302 U.S. 253, 258, 58 S.Ct. 167, 169, 82 L.Ed. 235 (1937); see generally TVA v. Hill, 437 U.S. 153, 204-205, and n. 14, 98 S.Ct. 2279, 2306-2307, and n. 14, 57 L.Ed.2d 117 (1978) (POWELL J., dissenting).
21
The rule is no different when the statute in question is derived from the civil rights legislation of the Reconstruction Era. Those statutes "must be given the meaning and sweep" dictated by "their origins and their language"—not their language alone. Lynch v. Household Finance Corp., 405 U.S. 538, 549, 92 S.Ct. 1113, 1120, 31 L.Ed.2d 424 (1972). When the language does not reflect what history reveals to have been the true legislative intent, we have readily construed the Civil Rights Acts to include words that Congress inadvertently omitted. See Examining Board v. Flores de Otero, 426 U.S. 572, 582-586, 96 S.Ct. 2264, 2272-2273, 49 L.Ed.2d 65 (1976) (interpreting 28 U.S.C. § 1343(3) to confer jurisdiction upon territorial courts). Thus, "plain meaning" is too simplistic a guide to the construction of § 1983.
22
Blind reliance on plain meaning is particularly inappropriate where, as here, Congress inserted the critical language without explicit discussion when it revised the statutes in 1874. See ante, at 6-7. Indeed, not a single shred of evidence in the legislative history of the adoption of the 1874 revision mentions this change. Since the legislative history also shows that the revision generally was not intended to alter the meaning of existing law, see Part II, infra, this Court previously has insisted that apparent changes be scrutinized with some care. As Mr. Justice Holmes observed, the Revised Statutes are "not lightly to be read as making a change . . . ." United States v. Sischo, 262 U.S. 165, 168-169, 43 S.Ct. 511, 512, 67 L.Ed. 925 (1923).
II
23
The origins of the phrase "and laws" in § 1983 were discussed in detail in two concurring opinions last Term. Compare Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 623, 99 S.Ct. 1905, 1919, 60 L.Ed.2d 508 (1979) (POWELL, J., concurring), with id., at 646, 99 S.Ct., at 1930 (WHITE, J., concurring in judgment). I shall not recount the full historical evidence presented in myChapman opinion. Nevertheless, the Court's abrupt dismissal of the proposition that "Congress did not intend to change the meaning of existing laws when it revised the statutes in 1874," ante, at 8, n. 5, reflects a misconception so fundamental as to require a summary of the historical record.
A.
24
Section 1983 derives from § 1 of the Civil Rights Act of 1871, which provided a cause of action for deprivations of constitutional rights only. "Laws" were not mentioned. Act of Apr. 20, 1871, 17 Stat. 13. The phrase "and laws" was added in 1874, when Congress consolidated the laws of the United States into a single volume under a new subject-matter arrangement. See 2 Cong.Rec. 827 (Jan. 21, 1874) (remarks of Rep. Lawrence). Consequently, the intent of Congress in 1874 is central to this case.
25
In addition to creating a cause of action, § 1 of the 1871 Act conferred concurrent jurisdiction upon "the district or circuit courts of the United States. . . . " 17 Stat. 13. In the 1874 revision, the remedial portion of § 1 was codified as § 1979 of the Revised Statutes, which provided for a cause of action in terms identical to the present § 1983. The jurisdictional portion of § 1 was divided into § 563(12), conferring district court jurisdiction, and § 629(16), conferring circuit court jurisdiction. Although §§ 1979, 563(12), and 629(16) came from the same source, each was worded differently. Section 1979 referred to deprivations of rights "secured by the Constitution and laws"; § 563(12) described rights secured "by the Constitution of the United States, or . . . by any law of the United States"; and § 629(16) encompassed rights secured "by the Constitution of the United States, or . . . by any law providing for equal rights of citizens of the United States."2 When Congress merged the jurisdiction of circuit and district courts in 1911, the narrower language of § 629(16) was adopted and ultimately became the present 28 U.S.C. § 1343(3). Act of Mar. 3, 1911, § 24(14), 36 Stat. 1092.3
B
26
In my view, the legislative history unmistakably shows that the variations in phrasing introduced in the 1874 revision were inadvertent, and that each section was intended to have precisely the same scope. Chapman v. Houston Welfare Rights Org., supra, at 631-640, 99 S.Ct., at 1922-1927 (POWELL, J., concurring). Moreover, the only defensible interpretation of the contemporaneous legislative record is that the reference to "laws" in each section was intended "to do no more than ensure that federal legislation providing specifically for equality of rights would be brought within the ambit of the civil action authorized by [§ 1979]." 441 U.S., at 637, 99 S.Ct., at 1926. Careful study of the available materials leaves no serious doubt that the Court's contrary conclusion is completely at odds with the intent of Congress in 1874. Id., at 640, 99 S.Ct., at 1927.
27
The Court holds today that the foregoing reasoning is based on a "flawed premise," because Congress instructed the Revision Commission to change the statutes in certain respects. Ante, at 8, n. 5; Act of June 27, 1866, § 2, 14 Stat. 75. But it is the Court's premise that is flawed. The Revision Commission, which worked for six years on the project, submitted to Congress a draft that did contain substantive changes.4 But a Joint Congressional Committee, which was appointed in early 1873 to transform the draft into a bill, concluded that it would be "utterly impossible to carry the measure through, if it was understood that it contained new legislation." 2 Cong.Rec. 646 (Jan. 14, 1874) (remarks of Rep. Poland); see Act of Mar. 3, 1873, 17 Stat. 579. Therefore, the Committee employed Thomas Jefferson Durant to "strike out . . . modifications of the existing law" "wherever the meaning of the law had been changed." 2 Cong.Rec. 646 (Jan. 14, 1874) (remarks of Rep. Poland); see id., at 826 (Jan. 21, 1874) (remarks of Rep. Lawrence); id., at 129 (Dec. 10, 1873) (remarks of Rep. Butler). On December 10, 1873, Durant's completed work was introduced in the House with the solemn assurance that the bill "embodies the law as it is." Ibid.5
28
The House met in a series of evening sessions to review the bill and to restore original meaning where necessary. During one of these sessions, Representative Lawrence delivered the speech upon which the Court now relies. Ante, at 7-8. Lawrence explained that the revisers often had separated existing statutes into substantive, remedial, and criminal sections to accord with the new organization of the statutes by topic. He read both the original and revised versions of the civil rights statutes to illustrate the arrangement, and "possibly [to] show verbal modifications bordering on legislation." 2 Cong.Rec. 827 (Jan. 21, 1874). After reading § 1979 without mentioning the addition of "and laws," Lawrence stated that "[a] comparison of all these will present a fair specimen of the manner in which the work has been done, and from these all can judge of the accuracy of the translation." Id., at 828. Observing that "[t]his mode of classifying . . . to some extent duplicates in the revision portions of statutes" that previously were one, Lawrence praised "the general accuracy" of the revision. Ibid. Nothing in this sequence of remarks supports the decision of the Court today. There was no mention of the addition of "and laws" nor any hint that the reach of § 1983 was to be extended. If Lawrence had any such intention, his statement to the House was a singularly disingenuous way of proposing a major piece of legislation.
29
In context, it is plain that Representative Lawrence did not mention changes "bordering on legislation" as a way of introducing substantive changes in § 1 of the 1871 Act. Rather, he was emphasizing that the revision was not intended to modify existing statutes, and that his reading might reveal errors that should be eliminated. No doubt Congress "was aware of what it was doing." Ante, at 8. It was meeting specially in one last attempt to detect and strike out legislative changes that may have remained in the proposed revision despite the best efforts of Durant and the Joint Committee. No Representative challenged those sections of the Revised Statutes that derived from § 1 of the Civil Rights Act of 1871. That silence reflected the understanding of those present that "and laws" did not alter the original meaning of the statute.6 The Members of Congress who participated in the yearlong effort to expunge all substantive alterations from the Revised Statutes evinced no intent whatever to enact a far-reaching modification of § 1 of the Civil Rights Act of 1871. The relevant evidence, largely ignored by the Court today, shows that Congress painstakingly sought to avoid just such changes.
III
30
The legislative history alone refutes the Court's assertion that the 43d Congress intended to alter the meaning of § 1983. But there are other compelling reasons to reject the Court's interpretation of the phrase "and laws." First, by reading those words to encompass every federal enactment, the Court extends § 1983 beyond the reach of its jurisdictional counterpart. Second, that reading creates a broad program for enforcing federal legislation that departs significantly from the purposes of § 1983. Such unexpected and plainly unintended consequences should be avoided whenever a statute reasonably may be given an interpretation that is consistent with the legislative purpose. See Sorrells v. United States, 287 U.S. 435, 446-448, 53 S.Ct. 210, 214-215, 77 L.Ed. 413 (1932); United States v. Ryan, 284 U.S. 167, 175, 52 S.Ct. 65, 68, 76 L.Ed. 224 (1931); Holy Trinity Church v. United States, 143 U.S. 457, 459, 12 S.Ct. 511, 512, 36 L.Ed. 226 (1892).
A.
31
The Court acknowledges that its construction of § 1983 creates federal "civil rights" for which 28 U.S.C. § 1343(3) supplies no federal jurisdiction. Ante, at 8, n. 6.7 The Court finds no "inherent illogic" in this view. Ibid. But the gap in the Court's logic is wide indeed in light of the history and purpose of the civil rights legislation we consider today. Sections 1983 and 1343(3) derive from the same section of the same Act. See supra, at 15-16. As originally enacted, the two sections necessarily were coextensive. See Chapman v. Houston Welfare Rights Org., 441 U.S., at 616, 99 S.Ct., at 1915. And this Court has emphasized repeatedly that the right to a federal forum in every case was viewed as a crucial ingredient in the federal remedy afforded by § 1983.
32
We have stated, for example, that a major purpose of the Civil Rights Acts was to "involve the federal judiciary" in the effort to exert federal control over state officials who refused to enforce the law. District of Columbia v. Carter, 409 U.S., at 427, 93 S.Ct., at 607. Congress did so in part because it thought the state courts at the time would not provide an impartial forum. See id., at 426-429, 93 S.Ct., at 607-608. See generally Monroe v. Pape, 365 U.S. 167, 174-183, 81 S.Ct. 473, 477-482, 5 L.Ed.2d 492 (1961); Developments in the Law—Section 1983, and Federalism, 90 Harv.L.Rev. 1133, 1150-1153 (1977). Thus, Congress elected to afford a "uniquely federal remedy," Mitchum v. Foster, 407 U.S. 225, 239, 92 S.Ct. 2151, 2160, 32 L.Ed.2d 705 (1972), that is, a " 'federal right in federal courts,' " District of Columbia v. Carter, supra, 409 U.S., at 428, 93 S.Ct., at 608, quoting Monroe v. Pape, supra, 365 U.S., at 180, 81 S.Ct., at 480 (emphasis added). Four Terms ago, we considered the origins of § 1343(3) and § 1983 and concluded that "the two provisions were meant to be, and are, complementary." Examining Board v. Flores de Otero, 426 U.S., at 583, 96 S.Ct., at 2272; see Lynch v. Household Finance Corp., 405 U.S., at 543, n. 7, 92 S.Ct., at 1117.
33
The Court ignores these perceptions and dismisses without explanation the proposition, explicitly accepted in Flores, that § 1983 and § 1343(3) are coextensive. The Court cites no evidence that Congress ever intended to alter so fundamentally its original remedial plan, and I am aware of none.8 Nearly every commentator who has considered the question has concluded that § 1343(3) was intended to supply federal jurisdiction in all § 1983 actions. See Chapman v. Houston Welfare Rights Org., supra, 441 U.S., at 637, n. 19, 99 S.Ct., at 1926 (POWELL, J., concurring) (collecting citations).9 Since § 1343(3) covers statutory claims only when they arise under laws providing for the equal rights of citizens, Chapman v. Houston Welfare Rights Org., supra, at 615-618, 99 S.Ct., at 1914-1916, the same limitation necessarily is implicit in § 1983. The Court's decision to apply that statute without regard to the scope of its jurisdictional counterpart is at war with the plainly expressed intent of Congress.
B
34
The Court's opinion does not consider the nature or scope of the litigation it has authorized. In practical effect, today's decision means that state and local governments, officers, and employees10 now may face liability whenever a person believes he has been injured by the administration of any federal-state cooperative program, whether or not that program is related to equal or civil rights.11
35
* Even a cursory survey on the United States Code reveals that literally hundreds of cooperative regulatory and social welfare enactments may be affected.12 The States now participate in the enforcement of federal laws governing migrant labor, noxious weeds, historic preservation, wildlife conservation, anadromous fisheries, scenic trails, and strip mining. Various statutes authorize federal-state cooperative agreements in most aspects of federal land management. In addition, federal grants administered by state and local governments now are available in virtually every area of public administration. Unemployment, Medicaid, school lunch subsidies, food stamps, and other welfare benefits may provide particularly inviting subjects of litigation. Federal assistance also includes a variety of subsidies for education, housing, health care, transportation, public works, and law enforcement. Those who might benefit from these grants now will be potential § 1983 plaintiffs.
36
No one can predict the extent to which litigation arising from today's decision will harass state and local officials; nor can one foresee the number of new filings in our already overburdened courts. But no one can doubt that these consequences will be substantial. And the Court advances no reason to believe that any Congress—from 1874 to the present day-intended this expansion of federally imposed liability on state defendants.
37
Moreover, state and local governments will bear the entire burden of liability for violations of statutory "civil rights" even when federal officials are involved equally in the administration of the affected program. Section 1983 grants no right of action against the United States, and few of the foregoing cooperative programs provide expressly for private actions to enforce their terms. Thus, private litigants may sue responsible federal officials only in the relatively rare case in which a cause of action may be implied from the governing substantive statute. Cf. Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979); Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979). It defines reason to believe that Congress intended—without discussion—to impose such a burden only upon state defendants.
38
Even when a cause of action against federal officials is available litigants are likely to focus efforts upon state defendants in order to obtain attorney's fees under the liberal standard of 42 U.S.C. § 1988. There is some evidence that § 1983 claims already are being appended to complaints solely for the purpose of obtaining fees in actions where "civil rights" of any kind are at best an afterthought. In this case, for example, the respondents added a § 1983 count to their complaint some years after the action was initiated, apparently in response to the enactment of the Civil Rights Attorney's Fees Awards Act of 1976. See also United States v. Imperial Irrigation Dist., 595 F.2d 525, 529 (CA9 1979), rev'd on other grounds sub nom. Bryant v. Yellen, 447 U.S. 352, 100 S.Ct. 2232, 65 L.Ed.2d 184 (1980). The uses of this technique have not been explored fully. But the rules of pendent jurisdiction are quite liberal, and plaintiffs who prevail on pendent claims may win awards under § 1988. Maher v. Gagne, 448 U.S. 122, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980). Consequently, ingenious pleaders may find ways to recover attorney's fees in almost any suit against a state defendant.13 Nothing in the legislative history of the Civil Rights Attorney's Fees Awards Act of 1976 suggests that Congress intended to remove so completely the protection of the "American Rule" in suits against state defendants.14
2
39
When Congress revised the statutes in 1874, it hardly could have anticipated the subsequent proliferation of federal statutes. Yet, congressional power to enact laws under the Spending and Commerce Clauses was well known in 1874. Congress need not have foreseen the ultimate scope of those powers to have understood that the expansion of § 1983 to statutory claims would have serious consequences.
40
Today's decision confers upon the courts unprecedented authority to oversee state actions that have little or nothing to do with the individual rights defined and enforced by the civil rights legislation of the Reconstruction Era.15 This result cannot be reconciled with the purposes for which § 1983 was enacted. It also imposes unequal burdens on state and federal officials in the joint administration of federal programs and may expose state defendants to liability for attorney's fees in virtually every case. If any Member of the 43d Congress had suggested legislation embodying these results, the proposal certainly would have been hotly debated. It is simply inconceivable that Congress, while professing a firm intention not to make substantive changes in the law, nevertheless intended to enact a major new remedial program by approving—without discussion—the addition of two words to a statute adopted only three years earlier.
IV
41
The Court finally insists that its interpretation of § 1983 is foreordained by a line of precedent so strong that further analysis is unnecessary. Ante, at 4-5. It is true that suits against state officials alleging violations of the Social Security Act have become commonplace in the last decade. Ibid. The instant action follows that pattern. Thus, the Court implies, today's decision is a largely inconsequential reaffirmation of a statutory interpretation that has been settled authoritatively for many years.
42
This is a tempting way to avoid confronting the serious issues presented by this case. But the attempt does not withstand analysis. Far from being a long-accepted fact, purely statutory § 1983 actions are an invention of the last 20 years. And the Court's seesaw approach to § 1983 over the last century leaves little room for certainty on any question that has not been discussed fully and resolved explicitly by this Court. Compare Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), with Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Yet, until last Term, neither this Court nor any Justice ever had undertaken directly and thoroughly—a consideration of the question presented in this case.
A.
43
Commentators have chronicled the tortuous path of judicial interpretation of the Civil Rights Acts enacted after the Civil War. See Gressman, The Unhappy History of Civil Rights Legislation, 50 Mich.L.Rev. 1323 (1952); Note, Developments in the Law—Section 1983 and Federalism, 90 Harv.L.Rev. 1133 (1977); Note, The Proper Scope of the Civil Rights Acts, 66 Harv.L.Rev. 1285 (1953). One writer found only 21 cases decided under § 1983 in the first 50 years of its history. Comment, The Civil Rights Act: Emergence of an Adequate Federal Civil Remedy?, 26 Ind.L.J. 361, 363 (1951). Another lamented, as late as 1952, that the statute could not be given its intended broad effect without a "judicial and constitutional upheaval of the first magnitude." Gressman, supra, at 1357. That upheaval ultimately did take place, and § 1983 actions now constitute a substantial share of the federal caseload.16 Nevertheless, cases dealing with purely statutory civil rights claims remain nearly as rare as in the early years.
44
Holt v. Indiana Manufacturing Co., 176 U.S. 68, 20 S.Ct. 272, 44 L.Ed. 374 (1900), appears to be the first reported decision to deal with a statutory claim under § 1983. In that case, the Court dismissed for want of jurisdiction a claim based upon the Constitution and the federal patent laws. The Court stated that §§ 1979, 563(12), and 629(16) of the Revised Statutes "refer to civil rights only and are inapplicable here." 176 U.S., at 72, 20 S.Ct., at 273. Since Holt involved both constitutional and statutory claims, its "civil rights" limitation later was viewed as a general restriction on the application of § 1983.
45
Although constitutional claims under § 1983 generally were limited to "personal" rights in the wake of Holt and Mr. Justice Stone's influential opinion in Hague v. CIO, 307 U.S. 496, 531, 59 S.Ct. 954, 971, 83 L.Ed. 1423 (1939),17 purely statutory claims remained virtually unrecognized. When the United States Court of Appeals for the Second Circuit considered a statutory claim nearly half a century after Holt, it found no case whatever "in which the right or privilege at stake was secured by a 'law' of the United States." Bomar v. Keyes, 162 F.2d 136, 139, cert. denied, 332 U.S. 825, 68 S.Ct. 166, 92 L.Ed. 400 (1947). The plaintiff in Bomar was a public school teacher who alleged that the school board had discharged her because of absences incurred while exercising her statutory right to serve on a federal jury. The Court of Appeals concluded that the complaint stated a claim under § 1983. 162 F.2d, at 139.
46
The opinion in Bomar, which cited no authority and reviewed no legislative history, provoked widespread commentary. See generally Note, The Propriety of Granting a Federal Hearing for Statutorily Based Actions under the Reconstruction-Era Civil Rights Acts: Blue v. Craig, 43 Geo.Wash.L.Rev. 1343, 1363-1364, and n. 169 (1975). But it appears to have had little practical effect.18 The issue did not arise with any frequency until the late 1960's, when challenges to state administration of federal social welfare legislation became commonplace. The lower courts responded to these suits with conflicting conclusions. Some found § 1983 applicable to all federal statutory claims.19 Others refused to apply it to purely statutory rights.20 Yet others believed that § 1983 covered some but not all rights derived from nonconstitutional sources.21 Numerous scholarly comments discussed the possible solutions, without reaching a consensus.22
B
47
The courts and commentators who debated the issue during this period were singularly obtuse if, as the Court now asserts, all doubt as to the meaning of "and laws" had been resolved by a long line of consistent authority going back to 1939. Ante, at 4-5. I know of no court or commentator who has thought that all such doubt had been extinguished before today.23
48
The Court quotes the statement in Edelman v. Jordan, 415 U.S. 651, 675, 94 S.Ct. 1347, 1361, 39 L.Ed.2d 662 (1974), that Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970), " 'held that suits in federal court under § 1983 are proper to secure compliance with the provisions of the Social Security Act on the part of participating States.' " Ante, at 4. If that statement is true, the confusion remaining after Rosado is simply inexplicable. In fact, of course, Rosado established no such proposition of law. The plaintiffs in that case challenged a state welfare provision on constitutional grounds premising jurisdiction upon 28 U.S.C. § 1343(3), and added a pendent statutory claim. This Court held first that the District Court retained its power to adjudicate the statutory claim even after the constitutional claim, on which § 1343(3) jurisdiction was based, became moot. 397 U.S., at 402-405, 90 S.Ct., at 1212-1214. The opinion then considered the merits of the plaintiffs' argument that New York law did not comport with the Social Security Act. Id., at 407-420, 90 S.Ct., at 1215-1221. Although the Court had to assume the existence of a private right of action to enforce that Act, the opinion did not discuss or purport to decide whether § 1983 applies to statutory claims.
49
Rosado is not the only case to have assumed sub silentio that welfare claimants have a cause of action to challenge the adequacy of state programs under the Social Security Act. As the Court observes, many of our recent decisions construing the Act made the same unspoken assumption. Ante, at 6. It does not necessarily follow that the Court in those cases assumed that the cause of action was provided by § 1983 rather than the Social Security Act itself.24 But even if it did, these cases provide no support for the Court's ruling today. "[W]hen questions of jurisdiction have been passed on in prior decisions sub silentio, this Court has never considered itself bound when a subsequent case finally brings the jurisdictional issue before us." Hagans v. Lavine, 528, 535, n. 5, 94 S.Ct. 1372, 1378, n. 5, 39 L.Ed.2d 577 (1974); see Monell v. New York City Dept. of Social Services, 436 U.S., at 663, 98 S.Ct., at 2022; United States v. More, 3 Cranch 159, 172, 2 L.Ed. 397 (1805). This rule applies with even greater force to questions involving the availability of a cause of action, because the question whether a cause of action exists—unlike the existence of federal jurisdiction—may be assumed without being decided. Burks v. Lasker, 441 U.S. 471, 476, and n. 5, 99 S.Ct. 1831, 1836, 60 L.Ed.2d 404 (1979). Thus, the Court's ruling finds no support in past cases in which the issue was not squarely raised. Here, as in Hagans v. Lavine, supra, 415 U.S., at 535, n. 5, 94 S.Ct., at 1378, we must approach the question "as an open one calling for a canvass of the relevant . . . considerations."25
50
The Court also relies upon "numerous and specific" dicta in prior decisions. Ante, at 5. But none of the cited cases contains anything more than a bare assertion of the proposition that is to be proved. Most say much less than that. For example, the Court occasionally has referred to § 1983 as a remedy for violations of "federally protected rights" or of "the Federal Constitution and statutes." Monell v. New York City Dept. of Social Services, supra, 436 U.S., at 700-701, 98 S.Ct., at 2040-2041; Owen v. City of Independence, 445 U.S. 622, 649, 650, 100 S.Ct. 1398, 1414, 1415, 63 L.Ed.2d 673 (1980). These generalized references merely restate the language of the statute. They shed no light on the question whether all or only some statutory rights are protected. To the extent they have any relevance to the issue at hand, they could be countered by the frequent occasions on which the Court has referred to § 1983 as a remedy for constitutional violations without mentioning statutes.26 But the debate would be meaningless, for none of these offhand remarks provides the remotest support for the positions taken in this case.27
51
The only remaining decisions in the Court's "consistent" line of precedents are Greenwood v. Peacock, 384 U.S. 808, 829-830, 86 S.Ct. 1800, 1813-1814, 16 L.Ed.2d 944 (1966), and Edelman v. Jordan, 415 U.S., at 675, 94 S.Ct., at 1361. In each case, the Court asserted—without discussion and in the course of disposing of other issues—that § 1983's coverage of statutory rights extended beyond federal equal rights laws. Neither contains any discussion of the question; neither cites relevant authority.28 Nor has this Court always uncritically assumed the proposition for which Greenwood and Edelman now are said to stand. On the same day the Court decided Edelman, it refused to express a view on the question whether § 1983 creates a cause of action for purely statutory claims. Hagans v. Lavine, supra, 415 U.S., at 534, n. 5, 94 S.Ct., at 1378. The point was reserved again in Southeastern Community College v. Davis, 442 U.S. 397, 404-405, n. 5, 99 S.Ct. 2361, 2366, 60 L.Ed.2d 980 (1979).
52
To rest a landmark decision of this Court on two statements made in dictum without critical examination would be extraordinary in any case. In the context of § 1983, it is unprecedented. Our decisions construing the civil rights legislation of the Reconstruction era have repudiated "blind adherence to the principle of stare decisis . . . ." Greenwood v. Peacock, supra, 384 U.S., at 831, 86 S.Ct., at 1814. As Mr. Justice Frankfurter once observed, the issues raised under § 1983 concern "a basic problem of American federalism" that "has significance approximating constitutional dimension." Monroe v. Pape, 365 U.S., at 222, 81 S.Ct., at 503 (dissenting opinion). Although Mr. Justice Frankfurter's view did not prevail in Monroe, we have heeded consistently his admonition that the ordinary concerns of stare decisis apply less forcefully in this than in other areas of the law. E. g., Monell v. New York City Dept. of Social Services, supra. Against this backdrop, there is no justification for the Court's reliance on unexamined dicta as the principal support for a major extension of liability under § 1983.
V
53
In my view, the Court's decision today significantly expands the concept of "civil rights" and creates a major new intrusion into state sovereignty under our federal system. There is no probative evidence that Congress intended to authorize the pervasive judicial oversight of state officials that will flow from the Court's construction of § 1983. Although today's decision makes new law with far-reaching consequences, the Court brushes aside the critical issues of congressional intent, national policy, and the force of past decisions as precedent. I would reverse the judgment of the Supreme Judicial Court of Maine.
APPENDIX TO OPINION OF POWELL, J., DISSENTING
54
A small sample of statutes that arguably could give rise to § 1983 actions after today may illustrate the nature of the "civil rights" created by the Court's decision. The relevant enactments typically fall into one of three categories: (A) regulatory programs in which States are encouraged to participate, either by establishing their own plans of regulation that meet conditions set out in federal statutes, or by entering into cooperative agreements with federal officials; (B) resource management programs that may be administered by cooperative agreements between federal and state agencies; and (C) grant programs in which federal agencies either subsidize state and local activities or provide matching funds for state or local welfare plans that meet federal standards.
A. Joint regulatory endeavors
55
1. Federal Insecticide, Fungicide, and Rodenticide Act, 86 Stat. 973, as amended, 7 U.S.C. § 136 et seq. (1976 ed. and Supp.III); see, e. g., §§ 136u, 136v (1976 ed., Supp.III).
56
2. Federal Noxious Weed Act of 1974, 88 Stat. 2148, 7 U.S.C. § 2801-2813; see § 2808.
57
3. Historic Sites, Buildings, and Antiquities Act, 49 Stat. 666, as amended, 16 U.S.C. §§ 461-467 (1976 ed. and Supp.III); see § 462(e).
58
4. Fish and Wildlife Coordination Act, 48 Stat. 401, as amended, 16 U.S.C. §§ 661-666c; see § 661.
59
5. Anadromous Fish Conservation Act, 79 Stat. 1125, as amended, 16 U.S.C. §§ 757a-757d (1976 ed., Supp.III); see § 757a(a) (1976 ed., Supp.III).
60
6. Wild Free-Roaming Horses and Burros Act, 85 Stat. 649, as amended, 16 U.S.C. §§ 1331-1340 (1976 ed. and Supp.III); see § 1336.
61
7. Marine Mammal Protection Act of 1972, 86 Stat. 1027, as amended, 16 U.S.C. §§ 1361-1407 (1976 ed. and Supp.III); see § 1379.
62
8. Wagner-Peyser National Employment System Act, 48 Stat. 113, 29 U.S.C. § 49 et seq.; see § 49g (employment of farm laborers).
63
9. Surface Mining Control and Reclamation Act of 1977, 91 Stat. 447, 30 U.S.C. §§ 1201 et seq. (1976 ed., Supp.III); see § 1253 (1976 ed., Supp.III).
64
10. Interstate Commerce Act, 49 Stat. 548, as amended, 49 U.S.C. § 11502(a)(2) (1976 ed., Supp.III) (enforcement of highway transportation law).
B. Resource management
65
1. Laws involving the administration and management of national parks and scenic areas: e. g., Act of May 15, 1965, § 6, 79 Stat. 111, 16 U.S.C. § 281e (Nez Perce National Historical Park); Act of Sept. 21, 1959, § 3, 73 Stat. 591, 16 U.S.C. § 410u (Minute Man National Historical Park); Act of Oct. 27, 1972, § 4, 86 Stat. 1302, 16 U.S.C. § 460bb-3(b) (Muir Woods National Monument).
66
2. Laws involving the administration of forest lands: e. g., Act of Mar. 1, 1911, § 2, 36 Stat. 961, 16 U.S.C. § 563; Act of Aug. 29, 1935, 49 Stat. 963, 16 U.S.C. §§ 567a-567b.
67
3. Laws involving the construction and management of water projects: e. g., Water Supply Act of 1958, § 301, 72 Stat. 319, 43 U.S.C. § 390b; Boulder Canyon Projects Act, §§ 4, 8, 45 Stat. 1058, 1062, as amended, 43 U.S.C. §§ 617c, 617g; Rivers and Harbors Appropriation Act of 1899, § 9, 30 Stat. 1151, 33 U.S.C. § 401.
68
4. National Trails System Act, 82 Stat. 919, as amended, 16 U.S.C. §§ 1241-1249 (1976 ed. and Supp.III); see § 1246(h) (1976 ed., Supp.III).
69
5. Outer Continental Shelf Lands Act Amendment of 1978, § 208, 92 Stat. 652, 43 U.S.C. § 1345 (1976 ed., Supp.III) (oil leasing).
C. Grant programs
70
In addition to the familiar welfare, unemployment, and medical assistance programs established by the Social Security Act, these may include:
71
1. Food Stamp Act of 1964, 78 Stat. 703, as amended, 7 U.S.C. §§ 2011-2026 (1976 ed. and Supp.III); see, e. g., §§ 2020(e)-2020(g) (1976 ed., Supp.III).
72
2. Small Business Investment Act of 1958, § 602(d), 72 Stat. 698, as amended, 15 U.S.C. § 636(d) (1976 ed., Supp.III).
73
3. Education Amendments of 1978, 92 Stat. 2153, as amended, 20 U.S.C. § 2701 et seq. (1976 ed., Supp.III); see, e. g., §§ 2734, 2902.
74
4. Federal-Aid Highway Act legislation, e. g., 23 U.S.C. §§ 128, 131 (1976 ed. and Supp.III).
75
5. Comprehensive Employment and Training Act Amendments of 1978, 92 Stat. 1909, 29 U.S.C. § 801 et seq. (1976 ed., Supp.III); see, e. g., §§ 823, 824.
76
6. United States Housing Act of 1937, as added, 88 Stat. 653, and amended, 42 U.S.C. § 1437 et seq. (1976 ed. and Supp.III); see, e. g., §§ 1437d(c), 1437j.
77
7. National School Lunch Act, 60 Stat. 230, as amended, 42 U.S.C. § 1751 et seq. (1976 ed. and Supp.III); see, e. g., § 1758 (1976 ed. and Supp.III).
78
8. Public Works and Economic Development Act of 1965, 79 Stat. 552, as amended, 42 U.S.C. § 3121 et seq.; see, e. g., §§ 3132, 3151a, 3243.
79
9. Justice System Improvement Act of 1979, 93 Stat. 1167, 42 U.S.C. § 3701 et seq. (1976 ed., Supp.III); see, e. g., §§ 3742, 3744(c). 10. Juvenile Justice and Delinquency Prevention Act of 1974, 88 Stat. 1109, as amended, 42 U.S.C. § 5601 et seq. (1976 ed. and Supp.III); see, e. g., § 5633 (1976 ed. and Supp.III).
80
11. Energy Conservation and Production Act, 90 Stat. 1125, as amended, 42 U.S.C. § 6801 et seq. (1976 ed. and Supp.III); see, e. g., §§ 6805, 6836 (1976 ed. and Supp.III).
81
12. Developmentally Disabled Assistance and Bill of Rights Act, § 125, 89 Stat. 496, as amended, 42 U.S.C. § 6000 et seq. (1976 ed. and Supp.III); see, e. g., §§ 6011, 6063 (1976 ed. and Supp.III).
82
13. Urban Mass Transportation Act of 1964, 78 Stat. 302, as amended, 49 U.S.C. § 1601 et seq. (1976 ed. and Supp.III); see, e. g., §§ 1602, 1604(g)-(m) (1976 ed. and Supp.III).
1
Petitioners also argue that jurisdiction to hear § 1983 claims rests exclusively with the federal courts. Any doubt that state courts may also entertain such actions was dispelled by Martinez v. California, 444 U.S. 277, 283-284, n. 7, 100 S.Ct. 553, 558, n. 7, 62 L.Ed.2d 481 (1980). There, while reserving the question whether state courts are obligated to entertain § 1983 actions, we held that Congress has not barred them from doing so.
2
The State did not appeal the judgment against it.
3
The Supreme Judicial Court remanded to allow the Superior Court to exercise its discretion under § 1988 to determine the appropriate disposition of the fee request.
4
Where the plain language, supported by consistent judicial interpretation, is as strong as it is here, ordinarily "it is not necessary to look beyond the words of the statute." TVA v. Hill, 437 U.S. 153, 184, n. 29, 98 S.Ct. 2279, 2296, 57 L.Ed.2d 117 (1978).
5
In his concurring opinion in Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979), Mr. Justice POWELL's argument proceeds on the basis of the flawed premise that Congress did not intend to change the meaning of existing laws when it revised the statutes in 1874. He assumed that Congress had instructed the revisers not to make changes, and that the revisers had obeyed those instructions. In fact, the second section of the statute creating the Revision Commission, 14 Stat. 75, mandated that the commissioners "mak[e] such alterations as may be necessary to reconcile the contradictions, supply the omissions, and amend the imperfections of the original text." Furthermore, it is clear that Congress understood this mandate to authorize the Commission to do more than merely "copy and arrange in proper order, and classify in heads the actual text of statutes in force." 2 Cong.Rec. 825 (1874). We have already decided that the "customary stout assertions of the codifiers that they had merely clarified and reorganized without changing substance" cannot be taken at face value. United States v. Price, 383 U.S. 787, 803, 86 S.Ct. 1152, 1161, 16 L.Ed.2d 267 (1966) (holding that the revisers significantly broadened the forerunner of 18 U.S.C. § 242).
6
There is no inherent illogic in construing § 1983 more broadly than § 1343(3) was construed in Chapman v. Houston Welfare Rights Organization, supra. It would only mean that there are statutory rights which Congress has decided cannot be enforced in the federal courts unless 28 U.S.C. § 1331(a)'s $10,000 jurisdictional amount is satisfied.
7
The States appearing as amici suggest that Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), left open the issue whether Congress, exercising its power under § 5 of the Fourteenth Amendment, could set aside the States' Eleventh Amendment immunity in statutory as opposed to constitutional cases. Hutto, however, concluded alternatively that the Eleventh Amendment did not bar attorney's fee awards in federal courts because the fee awards are part of costs, which "have traditionally been awarded without regard for the State's Eleventh Amendment immunity." Id., at 695, 98 S.Ct., at 2576. No Eleventh Amendment question is present, of course, where an action is brought in a state court since the Amendment, by its terms, restrains only "[t]he Judicial power of the United States."
8
In Blue v. Craig, the plaintiffs claimed that North Carolina's Medicaid plan was inconsistent with the SSA.
9
"In a case now pending, officials accepted Social Security Act funds for years for certain medical screening programs when in fact they had no such programs in most of the State. Bond v. Stanton, 528 F.2d 688 (7th Cir. 1976)." 122 Cong.Rec. 33314 (1976). In the same list of examples, Senator Kennedy included La Raza Unida v. Volpe, 57 F.R.D. 94 (N.D.Cal.1972), in which plaintiffs demonstrated violations of "the Department of Transportation Act of 1966 and various sections of 23 U.S.C. dealing with housing displacement and relocation." Id., at 95.
10
The Committee Reports are in accord. The Senate Report recognized that actions under § 1983 covered by the Act would include suits "redressing violations of the Federal Constitution or laws." S.Rep.No.94-1011, p. 4 (1976), U.S.Code Cong. & Admin.News 1976, pp. 5908, 5911. The House Report, after suggesting that a party prevailing on a claim which could not support a fee award should be entitled to a determination on an attached claim covered by § 1988 in order to determine eligibility for fees, recognizes that a special problem is presented because "[i]n some instances . . . the claim with fees may involve a constitutional question. . . ." H.R.Rep.No.94-1558, p. 4, n. 7 (1976). The negative pregnant is that in other instances the claim with fees need not involve a constitutional question.
11
The state courts which have addressed this issue have reached that same result. 405 A.2d 230, 239 (Me.1979) (case below); Ramirez v. County of Hudson, 169 N.J.Super. 455, 404 A.2d 1271 (1979); Tobeluk v. Lind, 589 P.2d 873 (Alaska 1979); Young v. Toia, 66 A.D.2d 377, 413 N.Y.S.2d 530 (1979); Lange v. Nature Conservancy, Inc., 24 Wash.App. 416, 422, 601 P.2d 963, 967 (1979); Board of Trustees v. Holso, 584 P.2d 1009 (Wyo.1978); Thorpe v. Durango School District, 41 Colo.App. 473, 591 P.2d 1329 (1978), cert. granted by Colorado Supreme Court (1979).
12
If fees were not available in state courts, federalism concerns would be raised because most plaintiffs would have no choice but to bring their complaints concerning state actions to federal courts. Moreover, given that there is a class of cases stating causes of action under § 1983 but not cognizable in federal court absent the $10,000 jurisdictional amount of § 1331(a), see n. 6, supra, some plaintiffs would be forced to go to state courts, but contrary to congressional intent, would still face financial disincentives to asserting their claimed deprivations of federal rights.
1
The "plain meaning" of "and laws" may be more elusive than the Court admits. One might expect that a statute referring to all rights secured either by the Constitution or by the laws would employ the disjunctive "or." This is precisely what Congress did in the only Civil Rights Act that referred to laws when it was originally enacted. Act of May 31, 1870, § 6, 16 Stat. 141 (now codified at 18 U.S.C. § 241). That statute created criminal penalties for conspiracy to deprive persons of rights secured by "the Constitution or laws." Ibid. (emphasis added). Five years later, when Congress enacted a statute providing for general federal-question jurisdiction, it described matters "arising under the Constitution or laws." Act of Mar. 3, 1875, § 1, 18 Stat. 470 (emphasis added) (now codified at 28 U.S.C. § 1331).
In contrast, a natural reading of the conjunctive "and" in § 1983 would require that the right at issue be secured both by the Constitution and by the laws. In 1874, this would have included the rights set out in the Civil Rights Act of 1866, which had been incorporated in the Fourteenth Amendment and re-enacted in the Civil Rights Act of 1870. See Gressman, The Unhappy History of Civil Rights Legislation, 50 Mich.L.Rev. 1323, 1329, 1333-1334 (1952). The legislative history does not suggest that the Court should adopt such a limited construction. But an advocate of "plain meaning" hardly can ignore the ambiguity.
2
The 1874 revision also drew a third jurisdictional provision from § 1 of the 1871 Act. That provision authorized review in this Court, without regard to the amount in controversy, of "[a]ny final judgment . . . in any case brought on account of the deprivation of any right, privilege, or immunity secured by the Constitution of the United States, or if any right or privilege of a citizen of the United States." Rev.Stat. § 699(4). Thus, § 1 actually became four separate statutes in 1874. In the Court's view, Congress intended to broaden the remedial and district court jurisdictional provisions to encompass violations of all laws, while simultaneously restricting circuit court jurisdiction to "laws providing for equal rights." Although the Court does not mention § 699(4), that statute is not easily read to encompass rights secured by any federal law. Thus, the Court attributes to Congress an intention to create a new class of civil rights claims which could be litigated in district but not circuit courts, and without any right of review in this Court. I would not assume that Congress intended such senseless jurisdictional results.
3
Section 563(12) did not survive the 1911 revision.
4
It is worth noting, however, that the statute creating the Revision Commission also directed that the revisers "shall suggest to Congress" all statutory imperfections they had corrected and "the mode" in which they had done so. Act of June 27, 1866, § 3, 14 Stat. 75. The revisers obeyed this directive by placing marginal comments next to each section they deemed to have amended the law. See 2 Cong.Rec. 648 (Jan. 14, 1874) (Rep. Hoar). That no such comment accompanied § 1979 is strong evidence that the revisers intended no substantive change. See 1 Revision of the United States Statutes as Drafted by the Commissioners Appointed for that Purpose 947 (1872).
5
These assurances were repeated again and again. Representative Butler told his colleagues that the Committee had "not attempted to change the law [in force on December 1, 1873], in a single word or letter, so as to make a different reading or different sense." 2 Cong.Rec. 129 (Dec. 10, 1873). A month later, Representative Poland stated that the bill was meant to be "an exact transcript, an exact reflex, of the existing statute law of the United States—that there shall be nothing omitted and nothing changed." Id., at 646 (Jan. 14, 1874). Senator Conkling said that "the aim throughout has been to preserve absolute identity of meaning. . . . " Id., at 4220 (May 25, 1874). See Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 625-627, 99 S.Ct. 1905, 1919-1920, 60 L.Ed.2d 508 (1979) (POWELL, J., concurring).
Contrary to the Court's suggestion, ante, at 8, n. 5, this Court never has held that "the revisers significantly broadened the forerunner of 18 U.S.C. § 242." United States v. Price, 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966), involved the interpretation of 18 U.S.C. § 241. The opinion contained dictum to the effect that the similarly worded § 242 was expanded in 1874. 383 U.S., at 803, 86 S.Ct., at 1161. But the Court did not consider the legislative history of the 1874 revision, and the passing reference to § 242 certainly is not binding precedent.
6
The addition of "and laws" did not change the meaning of § 1 because Congress assumed that that phrase referred only to federal equal rights legislation. In 1874, the only such legislation was contained in the 1866 and 1870 Civil Rights Acts, which conferred rights also secured by the recently adopted Fourteenth Amendment. See n. 1, supra.
7
Section 1343(3) supplies jurisdiction for claims involving rights secured by the Constitution "or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States." Neither § 1983 itself nor the Social Security Act provides for equal rights within the meaning of this section. Chapman v. Houston Welfare Rights Org., supra.
8
In the Court's view today, § 1983 actions based on statutes unrelated to equal rights could have been brought in district but not circuit courts after 1874. See n. 2, supra. When Congress merged the two jurisdictional provisions in 1911, the narrower language of the circuit court provision was adopted. Act of Mar. 3, 1911, § 24(14), 36 Stat. 1092. Yet there is no indication in the legislative history of the 1911 Act that Congress intended to change the scope of federal jurisdiction. The Senate Report states that the new section "merges the jurisdiction now vested in the district courts . . . and in the circuit courts . . . and vests it in the district courts." S.Rep.No. 388, 61st Cong., 2d Sess., pt. 1, pp. 15, 50-51 (1910).
9
One author thought it "idiotic" to interpret § 1343(3) and § 1983 differently. Cover, Establishing Federal Jurisdiction in Actions Brought to Vindicate Statutory (Federal) Rights When No Violations of Constitutional Rights Are Alleged, 2 Clearinghouse Rev., No. 16, pp. 5, 25 (1969). "Only when there is no uncertainty should the courts conclude that Congress has set up a remedial system which overlooks nothing but the minor technicality of giving jurisdiction to some court. The courts should be especially reluctant to reach such a result when there is every evidence that a federal forum was a focal point of the legislation." Ibid.
10
Section 1983 actions may be brought against States, municipalities and other subdivisions, officers, and employees. Although I will refer to all such potential defendants as "state defendants" for purposes of this opinion, there may be a notable difference among them. States are protected against retroactive damages awards by the Eleventh Amendment, and individual defendants generally can claim immunity when they act in good faith. Municipalities, however, will be strictly liable for errors in the administration of complex federal statutes. See Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980).
11
The only exception will be in cases where the governing statute provides an exclusive remedy for violations of its terms. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 150-151, n. 5, 90 S.Ct. 1598, 1604-1605, 26 L.Ed.2d 142 (1970); cf. Great American Fed. S. & L. Assn. v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979).
12
An incomplete sample of statutes requiring federal-state cooperation is collected in the Appendix to this opinion. Plaintiffs also may contend that state activities unrelated to cooperative programs have burdened rights secured by federal statutes. E. g., Chase v. McMasters, 573 F.2d 1011, 1017-1019 (CA8) (authority of Secretary of Interior to hold Indian lands), cert. denied, 439 U.S. 965, 99 S.Ct. 453, 58 L.Ed.2d 423 (1978); Wirth v. Surles, 562 F.2d 319 (CA4 1977), (extradition of prisoners), cert. denied, 435 U.S. 933, 98 S.Ct. 1509, 55 L.Ed.2d 531 (1978); Bomar v. Keyes, 162 F.2d 136, 139 (CA2), (right to sit on federal juries), cert. denied, 332 U.S. 825, 68 S.Ct. 166, 92 L.Ed. 400 (1947); Gage v. Commonwealth Edison Co., 356 F.Supp. 80, 88 (ND Ill.1972) (right to an environmental impact statement prior to action in which federal agency participates); McGuire v. Amrein, 101 F.Supp. 414, 417, 419-420 (Md.1951) (federal ban on the taping of telephones).
13
See Wolf, Pendent Jurisdiction, Multi-Claim Litigation, and the 1976 Civil Rights Attorney's Fees Awards Act, 2 W. New Eng.L.Rev. 193, 249 (1979).
14
The few references to statutory claims cited by the Court, ante, at 10, and n. 9, fall far short of demonstrating that Congress considered or intended the consequences of the Court's interpretation of § 1983.
15
Section 1983 was passed for the express purpose of "enforc[ing] the Provisions of the Fourteenth Amendment." Act of Apr. 20, 1871, 17 Stat. 13; see Lynch v. Household Finance Corp., 405 U.S., 538, 545, 92 S.Ct. 1113, 1118, 31 L.Ed.2d 424 (1972); Monroe v. Pape, 365 U.S. 167, 171, 81 S.Ct. 473, 475, 5 L.Ed.2d 492 (1961). The Civil Rights Attorney's Fees Awards Act of 1976 also was passed under the Enforcement Clauses of the Thirteenth and Fourteenth Amendments. 122 Cong.Rec. 33315 (1976) (remarks of Sen. Abourezk); id., at 35123 (remarks of Rep. Drinan). I do not imply that either statute must be limited strictly to claims arising under the post-Civil War Amendments. That Congress elected to proceed under the enforcement powers suggests, however, an intention to protect enduring civil rights rather than the virtually limitless entitlements created by federal statutes.
16
Between 1961 and 1977, then number of cases filed in federal court under civil rights statutes increased from 296 to 13,113. See Butz v. Economou, 438 U.S. 478, 526, 98 S.Ct. 2894, 2921, 57 L.Ed.2d 895 (1978) (REHNQUIST, J., dissenting). New filings have remained relatively constant from 1977 to date. See Director of the Administrative Office of the United States Courts Ann.Rep. 6, Table 6 (1979). These figures do not include the many prisoner petitions filed annually under 42 U.S.C. § 1983. Ibid. If prisoner petitions are included, the number of civil rights cases filed in 1979 rises to 24,951. See id., at A16-A17, Table C-3.
17
Drawing on Holt v. Indiana Manufacturing Co., Mr. Justice Stone argued that § 1983 applies only to rights involving "personal liberty, not dependent for [their] existence upon the infringement of property rights." Hague v. CIO, 307 U.S., at 531, 59 S.Ct., at 971. This view was widely held until this Court rejected it in Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972). See Note, The Propriety of Granting a Federal Hearing for Statutorily Based Actions under the Reconstruction-Era Civil Rights Acts: Blue v. Craig, 43 Geo.Wash.L.Rev. 1343, 1359-1361 (1975). Lynch explained the result in Holt as a product of special restrictions on federal jurisdiction over challenges to the collection of state taxes. 405 U.S., at 542-543, n. 6, 92 S.Ct., at 1116-1117.
18
The prevailing view limiting § 1983 actions to "personal" rights may have discouraged statutory claims. See n. 17, supra. And there was little occasion to consider whether § 1983 was limited to "equal rights" statutes, because the personal/property rights distinction served much the same purpose. Note, 43 Geo.Wash.L.Rev., at 1361, n. 157.
19
E. g., Blue v. Craig, 505 F.2d 830, 835-838 (CA4 1974) (Social Security Act); Gomez v. Florida State Employment Service, 417 F.2d 569, 579 (CA5 1969) (Wagner-Peyser Act of 1933); La Raza Unida of Southern Alameda County v. Volpe, 440 F.Supp. 904, 908-910 (N.D.Cal.1977) (Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970).
20
E. G., Wynn v. Indiana State Department of Public Welfare, 316 F.Supp. 324, 330-333 (N.D.Ind.1970) (Social Security Act).
21
E. g., Chase v. McMasters, 573 F.2d, at 1017, and n. 5 (relationship between Federal Government and Indians embodied in the Indian Organization Act of 1934 has "constitutional dimensions"); McCall v. Shapiro, 416 F.2d 246, 249-250 (CA2 1969) (Social Security Act not a statute providing for equal or civil rights); First Nat. Bank of Omaha v. Marquette Nat. Bank, 482 F.Supp. 514, 521-522 (Minn.1979) (National Bank Act restriction on interest rates not a statute providing for equal or civil rights); cf. Schatte v. International Alliance of Theatrical Stage Employees, 182 F.2d 158, 166-167 (CA9 1950) (Social Security Act and National Labor Relations Act enforceable only by remedies prescribed therein).
22
See Cover, supra, n. 9, at 24-25; Herzer, Federal Jurisdiction Over Statutorily-Based Welfare Claims, 6 Harv.Civ.Rights. Civ.Lib.L.Rev. 1, 6-8, 19 (1970); Note, 43 Geo.Wash.L.Rev., supra, n. 17, at 1361-1362; Note, Federal Jurisdiction over Challenges to State Welfare Programs, 72 Colum.L.Rev. 1404, 1426 (1972); Note, The Proper Scope of the Civil Rights Act, 66 Harv.L.Rev. 1285, 1299-1300 (1953); Note, 16 Geo.Wash.L.Rev. 253, 263 (1948).
23
See, e. g., La Raza Unida of Southern Alameda County v. Volpe, supra, at 908 (issue "has yet to be definitively resolved").
24
Contrary to the Court's suggestion, ante, at 6, Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), did not exclude the possibility of an implied private right of action under the Social Security Act. Edelman held only that a State does not waive its Eleventh Amendment immunity by participating in the federal assistance program established by that Act. Id., at 673-674, 94 S.Ct., at 1360-1361. Thus, the lower courts properly have regarded the question as undecided. Holley v. Lavine, 605 F.2d 638, 646-647 (CA2 1979); Podrazik v. Blum, 479 F.Supp. 182, 187-188 (N.D.N.Y.1979).
25
In finding an open question in Hagans, the Court expressly declined to follow the implicit holdings of no less than eight decisions of this Court. 415 U.S., at 535, n. 5, 94 S.Ct., at 1377, n. 5.
26
E. g., Monroe v. Pape, 365 U.S., at 172, 81 S.Ct., at 476; see Procunier v. Navarette, 434 U.S. 555, 561-562, 98 S.Ct. 855, 859-860, 55 L.Ed.2d 24 (1978); Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 1000, 43 L.Ed.2d 214 (1975).
27
Slightly more specific support may be gleaned from three opinions stating that the Revised Statutes of 1874 "enlarged" or "extended" § 1983's predecessor to provide protection for rights secured by federal laws as well as by the Constitution. Mitchum v. Foster, 407 U.S. 225, 240, n. 30, 92 S.Ct. 2151, 2161, n. 30, 32 L.Ed.2d 705 (1972); Lynch v. Household Finance Corp., 405 U.S., at 543, n. 7, 92 S.Ct., at 1117; Hague v. CIO, 307 U.S., at 525-526, 59 S.Ct., at 968-969 (opinion of Stone, J.). But each statement was pure dictum incorporated in a discussion of the historical background of § 1343(3). Moreover, each merely noted the evident change in language worked by the revisers. None implies that all statutory rights are covered by § 1983. Mr. Justice Stone, for example, undoubtedly would be surprised to learn that his opinion—in which he argued that § 1983 applied only to "personal" rights—stands for the proposition that statutory rights are covered without limitation.
28
Greenwood v. Peacock, 384 U.S., at 828-829, 86 S.Ct., at 1812-1813, cited only § 1983 itself and the leading case of Monroe v. Pape, supra. Monroe had nothing whatever to do with statutory claims. In Edelman v. Jordan, supra, at 675, 94 S.Ct., at 1361, the Court relied exclusively on Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970), which also did not discuss the coverage of § 1983. See supra, at 30.
| 12
|
448 U.S. 38
100 S.Ct. 2521
65 L.Ed.2d 581
Randall Dale ADAMS, Petitioner,v.State of TEXAS.
No. 79-5175.
Argued March 24, 1980.
Decided June 25, 1980.
Syllabus
Trials for capital offenses in Texas are conducted in two phases. First, the jury considers the question of the defendant's guilt or innocence. If the jury finds the defendant guilty, the trial court holds a separate sentencing proceeding at which additional evidence in mitigation or aggravation is admissible. The jury is then required by statute to answer three specific questions concerning (1) whether the defendant's conduct causing the death at issue was deliberate, (2) whether the defendant's conduct in the future would constitute a continuing threat to society, and (3) whether his conduct in killing the victim was unreasonable in response to the victim's provocation, if any. If the jury answers "Yes" to each of these questions, the court must impose a death sentence, but if the jury answers "No" to any of the questions, the court imposes a life sentence. At the petitioner's murder trial, the Texas trial judge, pursuant to statute (§ 12.31(b)), excluded from the jury a number of prospective jurors who were unwilling or unable to take an oath that the mandatory penalty of death or life imprisonment would not "affect [their] deliberations on any issue of fact." The jury that was selected convicted petitioner and answered the statutory questions in the affirmative at the punishment phase, thus causing the death sentence to be imposed. On appeal, the Texas Court of Criminal Appeals rejected petitioner's contention that the prospective jurors had been excluded in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, wherein it was held that a State may not constitutionally execute a death sentence imposed by a jury culled of all those who revealed during voir dire examination that they had conscientious scruples against or were otherwise opposed to capital punishment.
Held: Section 12.31(b) was applied in this case to exclude jurors in contravention of the Sixth and Fourteenth Amendments as construed and applied in Witherspoon, supra. Pp. 43-51.
(a) The general proposition established by Witherspoon and related cases that a juror may not be challenged for cause based in his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and oath, is applicable to the bifurcated procedure employed by Texas in capital cases. If the Texas juror is to obey his oath and follow Texas law, he must be willing not only to accept that in certain circumstances death is an acceptable penalty but also to answer the three statutory questions without conscious distortion or bias. Pp. 43-47.
(b) Witherspoon and § 12.31(b) may not coexist as separate and independent bases for excluding jurors so as to permit exclusion under § 12.31(b) on grounds broader than permitted by Witherspoon. Although the State could, consistently with Witherspoon, use § 12.31(b) to exclude prospective jurors whose views on capital punishment are such as to make them unable to follow the law or obey their oaths, the use of § 12.31(b) to exclude jurors on broader grounds based on their opinions concerning the death penalty is impermissible. The appearance of neutrality created by the theoretical availability of § 12.31(b) as a defense challenge to prospective jurors who favor the death penalty is not sufficiently substantial to take § 12.31(b) out of Witherspoon's ambit. Pp. 47-49.
(c) As § 12.31(b) was employed here, the touchstone of the inquiry was not whether putative jurors could and would follow their instructions and answer the posited questions in the affirmative if they honestly believed the evidence warranted it beyond reasonable doubt, but rather whether the fact that the imposition of the death penalty would follow automatically from affirmative answers to the questions would have any effect at all on the jurors' performance of their duties. Such a test could, and did, exclude jurors whose only fault was to take their responsibilities with special seriousness or to acknowledge honestly that they might or might not be affected. It does not appear that these individuals were so irrevocably opposed to capital punishment as to frustrate the State's legitimate efforts to administer its constitutionally valid death penalty scheme. Accordingly, the Constitution disentitles the State to execute a death sentence imposed by a jury from which such prospective jurors have been excluded. Pp. 49-51.
Tex.Cr.App., 577 S.W.2d 717, reversed.
Melvyn Carson Bruder, Dallas, Tex., for petitioner.
Douglas M. Becker, Austin, Tex., for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
This capital case presents the question whether Texas contravened the Sixth and Fourteenth Amendments as construed and applied in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), when it excluded members of the venire from jury service because they were unable to take an oath that the mandatory penalty of death or imprisonment for life would not "affect [their] deliberations on any issue of fact." We hold that there were exclusions that were inconsistent with Witherspoon, and we therefore reverse the sentence of death imposed on the petitioner.
2
* Trials for capital offenses in Texas are conducted in a two-phase proceeding. See Tex.Code Crim.Proc.Ann., Art. 37.071 (Vernon Supp.1979). In the first phase, the jury considers the question of the defendant's guilt or innocence. If the jury finds the defendant guilty of a capital offense, the trial court holds a separate sentencing proceeding at which a wide range of additional evidence in mitigation or aggravation is admissible. The jury is then required to answer the following questions based on evidence adduced during either phase of the trial:
3
"(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;
4
"(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and
5
"(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased." Art. 37.071(b).
6
If the jury finds beyond a reasonable doubt that the answer to each of these questions is "Yes," the court is required to impose a sentence of death. If the jury finds that the answer to any of the three questions is "No," the court imposes a sentence of life imprisonment. Arts. 37.071(c), (e).
7
The petitioner in this case was charged with the capital offense of murdering a peace officer.1 During voir dire examination of individual prospective jurors, the prosecutor, and sometimes the trial judge, intensively inquired as to whether their attitudes about the death penalty permitted them to take the oath set forth in Tex.Penal Code Ann. § 12.31(b) (1974). Section 12.31(b) provides as follows:
8
"Prospective jurors shall be informed that a sentence of life imprisonment or death is mandatory on conviction of a capital felony. A prospective juror shall be disqualified from serving as a juror unless he states under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact."
9
Typically, the prospective juror was first advised that the State was seeking the death penalty and asked to state his general views on the subject, which were sometimes explored in considerable depth. He was then informed in detail of the special procedure used by Texas in capital cases, including in particular the fact that "Yes" answers to the three punishment questions would automatically result in the trial judge's imposing the death sentence. Finally, he was asked whether he could state under oath, as required by § 12.31(b), that the mandatory penalty of death or imprisonment for life would not affect his deliberations on any issue of fact. On the State's submission and over petitioner's objections, the trial judge excused a number of prospective jurors who were unwilling or unable to take the § 12.31(b) oath.
10
The jury selected under this procedure convicted the petitioner of the charged offense and answered the statutory questions affirmatively at the punishment phase, thus causing the trial judge to impose the death sentence as required by Art. 37.071(e). On appeal, the petitioner argued that prospective jurors had been excluded in violation of this Court's decision in Witherspoon v. Illinois, supra. The Texas Court of Criminal Appeals rejected the contention on the authority of its previous cases, which had "consistently held that the statutory scheme for the selection of jurors in capital cases in Texas, and in particular the application of [§ 12.31(b)] to the punishment issues, comports with the constitutional requirements of Witherspoon." 577 S.W.2d 717, 728 (1979). We granted the petition for a writ of certiorari, 444 U.S. 990, 100 S.Ct. 519, 62 L.Ed.2d 419 (1979), limited to the following questions:
11
"(1) Is the doctrine of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, applicable to the bifurcated procedure employed by Texas in capital cases? (2) If so, did the exclusion from jury service in the present case of prospective jurors pursuant to Texas Penal Code § 12.31(b) violate the doctrine of Witherspoon v. Illinois, supra ?"2
II
A.
12
Witherspoon involved a state procedure for selecting jurors in capital cases, where the jury did the sentencing and had complete discretion as to whether the death penalty should be imposed. In this context, the Court held that a State may not constitutionally execute a death sentence imposed by a jury culled of all those who revealed during voir dire examination that they had conscientious scruples against or were otherwise opposed to capital punishment. The State was held to have no valid interest in such a broad-based rule of exclusion, since "[a] man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him . . . and can thus obey the oath he takes as a juror." Witherspoon v. Illinois, 391 U.S., at 519, 88 S.Ct., at 1775. The defendant, on the other hand, was seriously prejudiced by the State's practice. The jury which sentenced him to death fell "woefully short of that impartiality to which the petitioner was entitled" on the issue of punishment, id., at 518, 88 S.Ct., at 1775. By excluding all those who opposed capital punishment, the State "crossed the line of neutrality" and "produced a jury uncommonly willing to condemn a man to die." Id., at 520, 521, 88 S.Ct., at 1776.
13
The Court recognized that the State might well have power to exclude jurors on grounds more narrowly drawn:
14
"[N]othing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt." Id., at 522-523, n. 21, 88 S.Ct., at 1777 (emphasis in original).
15
This statement seems clearly designed to accommodate the State's legitimate interest in obtaining jurors who could follow their instructions and obey their oaths. For example, a juror would no doubt violate his oath if he were not impartial on the question of guilt. Similarly, the Illinois law in effect at the time Witherspoon was decided required the jury at least to consider the death penalty, although it accorded the jury absolute discretion as to whether or not to impose it. A juror wholly unable even to consider imposing the death penalty, no matter what the facts of a given case, would clearly be unable to follow the law of Illinois in assessing punishment.
16
In Boulden v. Holman, 394 U.S. 478, 483-484, 89 S.Ct. 1138, 1141, 22 L.Ed.2d 433 (1969), we again emphasized the State's legitimate interest in obtaining jurors able to follow the law:
17
"[I]t is entirely possible that a person who has a 'fixed opinion against' or who does not 'believe in' capital punishment might nevertheless be perfectly able as a juror to abide by existing law—to follow conscientiously the in structions of a trial judge and to consider fairly the imposition of the death sentence in a particular case."
18
And in Lockett v. Ohio, 438 U.S. 586, 595-596, 98 S.Ct. 2954, 2960, 57 L.Ed.2d 973 (1978), we upheld against a Witherspoon challenge the exclusion of several jurors who were unable to respond affirmatively to the following question:
19
"[D]o you feel that you could take an oath to well and truely [sic ] try this case . . . and follow the law, or is your conviction so strong that you cannot take an oath, knowing that a possibility exists in regard to capital punishment?"
20
This line of cases establishes the general proposition that a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. The State may insist, however, that jurors will consider and decide the facts impartially and conscientiously apply the law as charged by the court.
B
21
We have little difficulty in concluding that this rule applies to the bifurcated procedure employed by Texas in capital cases.3 This procedure differs from the Illinois statute in effect at the time Witherspoon was decided in three principal ways: (1) the Witherspoon jury assessed punishment at the same time as it rendered its verdict, whereas in Texas the jury considers punishment in a subsequent penalty proceeding; (2) the Witherspoon jury was given unfettered discretion to impose the death sentence or not, whereas the discretion of a Texas jury is circumscribed by the requirement that it impartially answer the statutory questions; and (3) the Witherspoon jury directly imposed the death sentence, whereas Texas juries merely give answers to the statutory questions, which in turn determine the sentence pronounced by the trial judge. Because of these differences, the jury plays a somewhat more limited role in Texas than it did in Illinois. If the juror is to obey his oath and follow the law of Texas, he must be willing not only to accept that in certain circumstances death is an acceptable penalty but also to answer the statutory questions without conscious distortion or bias. The State does not violate the Witherspoon doctrine when it excludes prospective jurors who are unable or unwilling to address the penalty questions with this degree of impartiality.
22
Nevertheless, jurors in Texas must determine whether the evidence presented by the State convinces them beyond reasonable doubt that each of the three questions put to them must be answered in the affirmative. In doing so, they must consider both aggravating and mitigating circumstances, whether appearing in the evidence presented at the trial on guilt or innocence or during the sentencing proceedings. Jurors will characteristically know that affirmative answers to the questions will result in the automatic imposition of the death penalty, Hovila v. State, 532 S.W.2d 293, 294 (Tex.Crim.App.1975), and each of the jurors whose exclusion is challenged by petitioner was so informed. In essence, Texas juries must be allowed to consider "on the basis of all relevant evidence not only why a death sentence should be imposed, but also why it should not be imposed." Jurek v. Texas, 428 U.S. 262, 271, 96 S.Ct. 2950, 2956, 49 L.Ed.2d 929 (1976) (opinion of STEWART, POWELL and STEVENS, JJ.). This process is not an exact science, and the jurors under the Texas bifurcated procedure unavoidably exercise a range of judgment and discretion while remaining true to their instructions and their oaths.
23
With these considerations in mind, it is apparent that a Texas juror's views about the death penalty might influence the manner in which he performs his role but without exceeding the "guided jury discretion," 577 S.W.2d, at 730, permitted him under Texas law. In such circumstances, he could not be excluded consistently with Witherspoon. Exclusions under § 12.31(b), like other exclusions, must be examined in this light.4
C
24
The State urges that Witherspoon and § 12.31(b) may coexist as separate and independent bases for excluding jurors in Texas and that exclusion under the statute is consistent with the Sixth and Fourteenth Amendments as construed in Witherspoon. Brief for Respondent 48. It is the State's position that even if some jurors in the present case were excluded on grounds broader than that permitted under Witherspoon, the exclusion was nevertheless proper under § 12.31(b). The State's argument is consistent with the holdings of decisions in the Texas Court of Criminal Appeals which have considered the relationship between Witherspoon and § 12.31(b).5 The argument such as it is, is unpersuasive.
25
As an initial matter, it is clear beyond peradventure that Witherspoon is not a ground for challenging any prospective juror. It is rather a limitation on the State's power to exclude: if prospective jurors are barred from jury service because of their views about capital punishment on "any broader basis" than inability to follow the law or abide by their oaths, the death sentence cannot be carried out. Witherspoon v. Illinois, 391 U.S., at 522, n. 21, 88 S.Ct., at 1777, n. 21. While this point may seem too obvious to bear repetition, it is apparent from their frequent references to Witherspoon as a ground for "disqualifying" prospective jurors6 that the State, and the Texas Court of Criminal Appeals, might have fallen into the error of assuming that Witherspoon and § 12.31(b) are both grounds for exclusion, so that there is no conflict if § 12.31(b) excludes prospective jurors thatWitherspoon does not.
26
Nor do we agree with the State's argument that because it has a different origin and purpose § 12.31(b) cannot and will not lead to exclusions forbidden by Witherspoon. Unlike grounds for exclusion having nothing to do with capital punishment, such as personal bias, ill health, financial hardship, or peremptory challenges, § 12.31(b) focuses the inquiry directly on the prospective juror's beliefs about the death penalty, and hence clearly falls within the scope of the Witherspoon doctrine. The State could, consistently with Witherspoon, use § 12.31(b) to exclude prospective jurors whose views on capital punishment are such as to make them unable to follow the law or obey their oaths. But the use of § 12.31 (b) to exclude jurors on broader grounds based on their opinions concerning the death penalty is impermissible.
27
Finally, we cannot agree that § 12.31(b) is "neutral" with respect to the death penalty since under that section the defendant may challenge jurors who state that their views in favor of the death penalty will affect their deliberations on fact issues. Despite the hypothetical existence of the juror who believes literally in the Biblical admonition "an eye for an eye," see Witherspoon v. Illinois, supra, at 536, 88 S.Ct. at 1784 (Black, J., dissenting), it is undeniable, and the State does not seriously dispute, that such jurors will be few indeed as compared with those excluded because of scruples against capital punishment. The appearance of neutrality created by the theoretical availability of § 12.31(b) as a defense challenge is not sufficiently substantial to take the statute out of the ambit of Witherspoon.
III
28
Based on our own examination of the record, we have concluded that § 12.31(b) was applied in this case to exclude prospective jurors on grounds impermissible under Witherspoon and related cases. As employed here, the touchstone of the inquiry under § 12.31(b) was not whether putative jurors could and would follow their instructions and answer the posited questions in the affirmative if they honestly believed the evidence warranted it beyond reasonable doubt. Rather, the touchstone was whether the fact that the imposition of the death penalty would follow automatically from affirmative answers to the questions would have any effect at all on the jurors' performance of their duties. Such a test could, and did, exclude jurors who stated that they would be "affected" by the possibility of the death penalty, but who apparently meant only that the potentially lethal consequences of their decision would invest their deliberations with greater seriousness and gravity or would involve them emotionally.7 Others were excluded only because they were unable positively to state whether or not their deliberations would in any way be "affected."8 But neither nervousness, emotional involvement, nor inability to deny or confirm any effect whatsoever is equivalent to an unwillingness or an inability on the part of the jurors to follow the court's instructions and obey their oaths, regardless of their feelings about the death penalty. The grounds for excluding these jurors were consequently insufficient under the Sixth and Fourteenth Amendments. Nor in our view would the Constitution permit the exclusion of jurors from the penalty phase of a Texas murder trial if they aver that they will honestly find the facts and answer the questions in the affirmative if they are convinced beyond reasonable doubt, but not otherwise, yet who frankly concede that the prospects of the death penalty may affect what their honest judgment of the facts will be or what they may deem to be a reasonable doubt. Such assessments and judgments by jurors are inherent in the jury system, and to exclude all jurors who would be in the slightest way affected by the prospect of the death penalty or by their views about such a penalty would be to deprive the defendant of the impartial jury to which he or she is entitled under the law.
29
We repeat that the State may bar from jury service those whose beliefs about capital punishment would lead them to ignore the law or violate their oaths. But in the present case Texas has applied § 12.31(b) to exclude jurors whose only fault was to take their responsibilities with special seriousness or to acknowledge honestly that they might or might not be affected. It does not appear in the record before us that these individuals were so irrevocably opposed to capital punishment as to frustrate the State's legitimate efforts to administer its constitutionally valid death penalty scheme. Accordingly, the Constitution disentitles the State to execute a sentence of death imposed by a jury from which such prospective jurors have been excluded.
30
The judgment of the Texas Court of Criminal Appeals is consequently reversed to the extent that it sustains the imposition of the death penalty.
31
So ordered.
32
THE CHIEF JUSTICE concurs in the judgment.
33
Mr. Justice BRENNAN, concurring.
34
Although I join the Court's opinion, I continue to believe that the death penalty is, in all circumstances, contrary to the Eighth Amendment's prohibition against imposition of cruel and unusual punishments. Gregg v. Georgia, 428 U.S. 153, 227, 96 S.Ct. 2909, 2950, 49 L.Ed.2d 859 (1976) (BRENNAN, J., dissenting).
35
Mr. Justice MARSHALL, concurring in the judgment.
36
I continue to believe that the death penalty is, under all circumstances, cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. Furman v. Georgia, 408 U.S. 238, 314-374, 92 S.Ct. 2726, 2764-2796, 33 L.Ed.2d 346 (1972) (MARSHALL, J., concurring); Gregg v. Georgia, 428 U.S. 153, 231-241, 96 S.Ct. 2909, 2973-2977, 49 L.Ed.2d 859 (1976) (MARSHALL, J., dissenting); Godfrey v. Georgia, 446 U.S. 420, 437-440, 100 S.Ct. 1759, 1769-1771, 64 L.Ed.2d 398 (1980) (MARSHALL, J., concurring in judgment). In addition, I agree with the Court that the exclusion of veniremen in this case violated the doctrine of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). I do not, however, join in the Court's assumption that the death penalty may ever be imposed without violating the command of the Eighth Amendment that no "cruel and unusual punishments" be imposed. Cf. Beck v. Alabama, 447 U.S. 625, 646, 100 S.Ct. 2382, 2393, 65 L.Ed.2d 392 (MARSHALL, J., concurring in judgment). I join in the judgment of the Court.
37
Mr. Justice REHNQUIST, dissenting.
38
The Court today holds that, under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), the State of Texas may not excuse from service on a jury considering a capital case persons who are unwilling or unable to swear that the possibility that the defendant will be executed will not affect their deliberations on any issue of fact. Thus, at a time when this Court should be re-examining the doctrinal underpinnings of Witherspoon in light of our intervening decisions in capital cases, it instead expands that precedent as if those underpinnings had remained wholly static and would benefit from expansion of the holding. I find myself constrained to dissent.
39
At the time Witherspoon was decided, Illinois, like many States, gave the juries in capital cases complete and unbridled discretion in considering the death penalty. In the words of Witherspoon itself, "the State of Illinois empowered the jury . . . to answer 'yes' or 'no' to the question whether this defendant was fit to live." 391 U.S., at 521, n. 20, 88 S.Ct., at 1776, n. 20. This feature of the capital-sentencing scheme under consideration in that case was perhaps the single most important factor in this Court's ultimate decision:
40
"[I]n Illinois . . . the jury is given broad discretion to decide whether or not death is "the proper penalty" in a given case, and a juror's general views about capital punishment play an inevitable role in any such decision.
41
"A man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror. But a jury from which all such men have been excluded cannot perform the task demanded of it. Guided by neither rule nor standard, 'free to select or reject as it [sees] fit,' a jury that must choose between life imprisonment and capital punishment can do little more—and must do nothing less—than express the conscience of the community on the ultimate question of life or death." Id., at 519, 88 S.Ct., at 1775 (emphasis in original; footnote omitted).
42
However one feels about the constitutionality of excluding persons with qualms about the death penalty from such a jury, one has to admit that the conditions that formed the predicate for Witherspoon no longer exist. Our recent decisions on the constitutionality of the death penalty leave little doubt that, contrary to this Court's only slightly less recent decision in McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), a State may not leave the decision whether to impose capital punishment upon a particular defendant solely to the untrammeled discretion of a jury. See Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976).
43
The statute presently in force in Texas requires imposition of the death penalty if the jury in a capital case answers three questions in the affirmative:
44
"(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;
45
"(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and
46
"(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased." Tex.Code Crim.Proc.Ann., Art. 37.071(b) (Vernon Supp.1979).
47
If the jury answers any of these inquiries in the negative, capital punishment cannot be imposed.
48
It is hard to imagine a system of capital sentencing that leaves less discretion in the hands of the jury while at the same time allowing them to consider the particular circumstances of each case—that is, to perform their assigned task at all. In upholding this system against constitutional challenge in Jurek v. Texas, supra, the opinion announcing the judgment stressed that this procedure "guides and focuses the jury's objective consideration of the particularized circumstances of the individual offense and the individual offender before it can impose a sentence of death." Id., 428 U.S., at 274, 96 S.Ct., at 2957 (emphasis added). Given this mandate to a jury in a capital case to answer certain specific questions on the basis of the evidence submitted, I see no reason why Texas should not be entitled to require each juror to swear that he or she will answer those questions without regard to their possible cumulative consequences.
49
In holding otherwise, the Court seems to recognize that the jury's role in this case is fundamentally different from that considered in Witherspoon. It nevertheless dismisses this difference on the grounds that the sentencing process employed by Texas "is not an exact science" and that "the jurors under the Texas bifurcated procedure unavoidably exercise a range of judgment and discretion while remaining true to their instructions and their oaths." Ante, at 46. I would suggest that the Court's observations in this regard are as true when applied to the initial determination of guilt as they are when applied to the sentencing proceeding. In either determination, a juror is required to make "unscientific" determinations and to exercise a good deal of discretion within the bounds of his or her oath. In fact, I can see no plausible distinction between the role of the jury in the guilt/innocence phase of the trial and its role, as defined by the State of Texas, in the sentencing phase. No one would suggest, however, that jurors could not be excused for cause if they declined to swear that the possibility of capital punishment would not affect their determination of the defendant's guilt or innocence. Cf. Witherspoon v. Illinois, 391 U.S., at 523, n. 21, 88 S.Ct., at 1777, n. 21 ("Nor . . . does today's holding render invalid the conviction, as opposed to the sentence, in this or any other case").
50
In his dissent in Witherspoon, Mr. Justice Black pointed out that society, as much as the defendant, has a right to an impartial jury. Id., at 535, 88 S.Ct., at 1784. He also observed that, if a person could not be excluded from a jury for being "too soft" on the death penalty, then a court would be without a basis for excluding someone who was "too hard." As he wrote, "I would not dream of foisting on a criminal defendant a juror who admitted that he had conscientious or religious scruples against not inflicting the death sentence on any person convicted of murder (a juror who claims, for example, that he adheres literally to the Biblical admonition of 'an eye for an eye')." Id., at 536, 88 S.Ct., at 1784 (emphasis added). I cannot believe that the Court would question the excusal of a juror who would not take the challenged oath for those same reasons. To dismiss this possibility, as does the Court here, because "such jurors will be few indeed," ante, at 49, is not only to engage in unsupportable speculation, but also to miss the point of Mr. Justice Black's argument. The question is not one of statistical parity, but of logical consistency.
51
Like the Texas Court of Criminal Appeals, I do not read Witherspoon as casting any doubt upon the constitutionality of the oath required by Tex. Penal Code Ann. § 12.31(b) (1974). See Hughes v. State, 563 S.W.2d 581 (1978); Freeman v. State, 556 S.W.2d 287 (1977); Burns v. State, 556 S.W.2d 270 (1977); Boulware v. State, 542 S.W.2d 677 (1976). I therefore would affirm the judgment of the court below.
1
Under Tex.Penal Code Ann. § 19.03(a)(1) (1974), whoever "murders a peace officer or fireman who is acting in the lawful discharge of an official duty and who the person knows is a peace officer or fireman" is guilty of a capital felony. Texas also authorizes the death penalty for four other offenses: murder committed in the course of kidnaping, burglary, robbery, forcible rape, or arson; murder committed for remuneration; murder committed while escaping or attempting to escape from a penal institution; and murder of a prison employee by a prison inmate. § 19.03.
Under the current Texas capital punishment scheme, the jury's discretion over sentencing is limited both by § 19.03, which authorizes the death penalty for only a small class of aggravated crimes, and by Tex.Code Crim.Proc.Ann., Art. 37.071 (Vernon Supp.1979), which mandates a sentence of death if, but only if, the jury answers "Yes" to each of the statutory penalty questions. This system was adopted in response to the Court's judgment in Branch v. Texas, decided together with Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), which struck down a statute giving the jury absolute discretion whether to impose the death penalty or not. The Court upheld the revised Texas capital punishment scheme in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976).
2
In Burns v. Estelle, 592 F.2d 1297 (1979), a panel of the Court of Appeals for the Fifth Circuit found that the application of Tex.Penal Code Ann. § 12.31(b) (1974) to the facts of that case violated Witherspoon. The en banc Fifth Circuit has since set the case for rehearing en banc. 598 F.2d 1016 (1979). The court held oral argument on January 8, 1980, but has as yet issued no decision.
3
In Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976), the Court applied the Witherspoon doctrine to a case arising under a death penalty scheme similar in some respects to the current Texas system. Petitioner and amicus suggest that Davis conclusively establishes the applicability of Witherspoon to the present case. We do not treat the question as foreclosed, however, because the issue was not explicitly raised in that case.
4
Even the State concedes that Witherspoon "applies" to the Texas system. Brief for Respondent 36-48. The State suggests that this proposition is questionable as a matter of "logic," but agrees that Texas experience and case law conclusively demonstrate Witherspoon's applicability. The Texas Court of Criminal Appeals has consistently held that Witherspoon is "alive and well" in that State. E. g., Woodkins v. State, 542 S.W.2d 855, 862 (1976), cert. denied, 431 U.S. 960, 97 S.Ct. 2688, 53 L.Ed.2d 279 (1977); Burns v. State, 556 S.W.2d 270, 275, cert. denied, 434 U.S. 935, 98 S.Ct. 422, 54 L.Ed.2d 294 (1977); Brock v. State, 556 S.W.2d 309, 312, cert. denied, 434 U.S. 1002, 98 S.Ct. 647, 54 L.Ed.2d 498 (1977); Whitmore v. State, 570 S.W.2d 889, 893 (1976).
5
E. g., Moore v. State, 542 S.W.2d 664, 672 (1976), cert. denied, 431 U.S. 949, 97 S.Ct. 2666, 53 L.Ed.2d 266 (1977); Woodkins v. State, supra, at 862; Shippy v. State, 556 S.W.2d 246, 251, cert. denied, 434 U.S. 935, 98 S.Ct. 422, 54 L.Ed.2d 294 (1977); Burns v. State, supra, at 275-276; Freeman v. State, 556 S.W.2d 287, 297-298 (1977), cert. denied, 434 U.S. 1088, 98 S.Ct. 1284, 55 L.Ed.2d 794 (1978); Brock v. State, supra, at 313; Hughes v. State, 562 S.W.2d 857, 859-861, cert. denied, 439 U.S. 903, 99 S.Ct. 268, 58 L.Ed.2d 250 (1978); Hughes v. State, 563 S.W.2d 581, 583 (1978), cert. denied, 440 U.S. 950, 99 S.Ct. 1432, 59 L.Ed.2d 640 (1979); Bodde v. State, 568 S.W.2d 344, 348-349 (1978), cert. denied, 440 U.S. 968, 99 S.Ct. 1520, 59 L.Ed.2d 784 (1979); Whitmore v. State, supra, at 893; Garcia v. State, 581 S.W.2d 168, 174-175 (1979); cert. pending, No. 79-5464; Burks v. State, 583 S.W.2d 389, 393-394 (1979), cert. pending, No. 79-5533.
6
E. g., Brief for Respondent 34, 42, 48; Moore v. State, supra, at 672; Brock v. State, supra, at 313; Hughes v. State, 562 S.W.2d, at 860; Hughes v. State, 563 S.W.2d, at 586; Chambers v. State, 568 S.W.2d 313, 320 (1978), cert. denied, 440 U.S. 928, 99 S.Ct. 1264, 59 L.Ed.2d 484 (1979); Bodde v. State, supra, at 348; Garcia v. State, supra, at 175.
7
Prospective jurors Mahon, Jenson, and Ferguson fell into this category. As Jenson said at one point during his voir dire examination:
"Well, I think it probably would [affect my deliberations] because afterall [sic ], you're talking about a man's life here. You definitely don't want to take it lightly." Tr. of Voir Dire 367.
8
Prospective jurors Coyle, White, McDonald, and Riddle were excluded on this ground.
| 01
|
448 U.S. 122
100 S.Ct. 2570
65 L.Ed.2d 653
Edward W. MAHER, etc., Petitioner,v.Virginia GAGNE, etc.
No. 78-1888.
Argued Jan. 9, 1980.
Decided June 25, 1980.
Syllabus
Respondent is a recipient of benefits under Connecticut's federally funded Aid to Families with Dependent Children (AFDC) program. She brought this action in Federal District Court under 42 U.S.C. § 1983, alleging that Connecticut's AFDC regulations denied her credit for substantial portions of her actual work-related expenses, thus reducing the level of her benefits, and that such regulations violated the Social Security Act and the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Ultimately, the case was settled and the District Court entered a consent decree that provided for a substantial increase in the standard allowances for work-related expenses and gave AFDC recipients the right to prove that their actual work-related expenses were in excess of the standard. The District Court then awarded respondent's counsel a fee pursuant to the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, which provides that in any action to enforce 42 U.S.C. § 1983, inter alia, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs. The court held that respondent was entitled to fees under the Act because, in addition to her statutory claim, she had alleged constitutional claims that were sufficiently substantial to support federal jurisdiction. The Court of Appeals affirmed.
Held :
1. Under § 1988 the district courts' authority to award attorney's fees is not limited to cases in which § 1983 is invoked as a remedy for a constitutional violation or a violation of a federal statute providing for the protection of civil or equal rights. As the Court holds in Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555, § 1988 applies to all types of § 1983 actions, including actions based solely on Social Security Act violations. Thus, even if respondent's claim could be characterized as arising solely out of a Social Security Act violation, this would not preclude the award of attorney's fees under § 1988. P. 128-129.
2. The fact that respondent prevailed through a settlement rather than through litigation does not preclude her from claiming attorney's fees as the "prevailing party" within the meaning of § 1988. And petitioner's contention that respondent did not gain sufficient relief through the consent decree to be considered the prevailing party is without merit in view of the District Court's contrary finding, which was upheld by the Court of Appeals. P. 129-130.
3. The District Court was not barred by the Eleventh Amendment from awarding attorney's fees against the State. Respondent alleged constitutional violations which both courts below held to be sufficiently substantial to support federal jurisdiction, and the constitutional issues remained in the case until the consent decree was entered. Under these circumstances, petitioner's Eleventh Amendment claim is foreclosed by Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522. In Hutto, the Court rejected the argument that the general language of the Act was insufficient to remove an Eleventh Amendment barrier, noting that "this Court has never viewed the Eleventh Amendment as barring such awards, even in suits between States and individual litigants." Id., at 695, 98 S.Ct., at 2576. Moreover, even if the Eleventh Amendment would otherwise present a barrier to an award of attorney's fees against a State, Congress clearly acted within its power under § 5 of the Fourteenth Amendment in removing that barrier. Under § 5, Congress may pass any legislation that is appropriate to enforce the Fourteenth Amendment's guarantees, and a statute awarding attorney's fees in a case in which the plaintiff prevails on a wholly statutory, non-civil-rights claim pendent to a substantial constitutional claim or in one in which both a statutory and a substantial constitutional claim are settled favorably to the plaintiff without adjudication falls within the category of "appropriate" legislation. Pp. 130-133.
594 F.2d 336, affirmed.
Edmund C. Walsh, Asst. Atty. Gen., Hartford, Conn., for petitioner.
Joan E. Pilver, Hartford, Conn., for respondent.
Mr. Justice STEVENS delivered the opinion of the Court.
1
In an action brought under 42 U.S.C. § 1983, the court, in its discretion, may allow the prevailing party to recover a reasonable attorney's fee as part of the award of costs.1 The question presented by this petition is whether fees may be assessed against state officials after a case has been settled by the entry of a consent decree, without any determination that the plaintiff's constitutional rights have been violated.
2
Petitioner is responsible for the administration of Connecticut's Aid to Families with Dependent Children (AFDC), a federally funded public assistance program.2 Respondent is a working recipient of AFDC benefits. Under state and federal regulations, the amount of her benefits depends, in part, on her net earnings, which are defined as her wages minus certain work-related expenses. In 1975 respondent filed a complaint in the United States District Court for the District of Connecticut alleging that Connecticut's AFDC regulations denied her credit for substantial portions of her actual work-related expenses,3 thus reducing the level of her benefits. Her complaint alleged that these regulations violated § 402(a)(7) of the Social Security Act, 42 U.S.C. § 602(a)(7),4 and the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution.5 The complaint further alleged that relief was authorized by 42 U.S.C. § 19836 and invoked federal jurisdiction under 28 U.S.C. § 1343.7
3
A few months after the action was commenced, while discovery was underway, petitioner amended the AFDC regulations to authorize a deduction for all reasonable work-related expenses. After an interval of almost a year and a half, respondent filed an amended complaint alleging that actual expenses in excess of certain standard allowances were still being routinely disallowed. Thereafter, a settlement was negotiated and the District Court entered a consent decree that, among other things, provided for a substantial increase in the standard allowances and gave AFDC recipients the right to prove that their actual work-related expenses were in excess of the standard.8 The parties informally agreed that the question whether respondent was entitled to recover attorney's fees would be submitted to the District Court after the entry of the consent decree.
4
Following an adversary hearing, the District Court awarded respondent's counsel a fee of $3,012.19. 455 F.Supp. 1344 (1978). The court held that respondent was the "prevailing party" within the meaning of § 1988 because, while not prevailing "in every particular," she had won "substantially all of the relief originally sought in her complaint" in the consent decree. Id., at 1347. The court also rejected petitioner's argument that an award of fees against him was barred by the Eleventh Amendment in the absence of a judicial determination that respondent's constitutional rights had been violated. Relying on the basic policy against deciding constitutional claims unnecessarily, the court held that respondent was entitled to fees under the Act because, in addition to her statutory claim, she had alleged constitutional claims that were sufficiently substantial to support federal jurisdiction under the reasoning of Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577.
5
The Court of Appeals affirmed, 594 F.2d 336 (CA2 1979), holding that Congress intended to authorize an award of fees in this kind of situation and that it had the constitutional power to do so.9 We granted certiorari to consider both the statutory and constitutional questions. 444 U.S. 824, 100 S.Ct. 44, 62 L.Ed.2d 30.
6
* Petitioner's first argument is that Congress did not intend to authorize the award of attorney's fees in every type of § 1983 action, but rather limited the courts' authority to award fees to cases in which § 1983 is invoked as a remedy for a constitutional violation or a violation of a federal statute providing for the protection of civil rights or equal rights. In support of this contention, petitioner relies on our holding in Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed.2d 508, that there is no federal jurisdiction under § 1343 over § 1983 claims outside these categories and that there is therefore no jurisdiction under § 1343 over a § 1983 claim based solely on a violation of the Social Security Act. Characterizing respondent's claim in this case as arising solely out of a Social Security Act violation, petitioner argues that the District Court had no authority under § 1988 to award her attorney's fees.
7
Even if petitioner's characterization of respondent's claim were correct,10 his argument would have to be rejected. In Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555, decided this day, we hold that § 1988 applies to all types of § 1983 actions, including actions based solely on Social Security Act violations. As Mr. Justice BRENNAN's opinion for the Court in Thiboutot demonstrates, neither the language of § 1988 nor its legislative history provides any basis for importing the distinctions Chapman made among § 1983 actions for purposes of federal jurisdiction into the award of attorney's fees by a court that possesses jurisdiction over the claim.11
8
We also find no merit in petitioner's suggestion that respondent was not the "prevailing party" within the meaning of § 1988. The fact that respondent prevailed through a settlement rather than through litigation does not weaken her claim to fees. Nothing in the language of § 1988 conditions the District Court's power to award fees on full litigation of the issues or on a judicial determination that the plaintiff's rights have been violated. Moreover, the Senate Report expressly stated that "for purposes of the award of counsel fees, parties may be considered to have prevailed when they vindicate rights through a consent judgment or without formally obtaining relief." S.Rep. No. 94-1011, p. 5 (1976), U.S.Code Cong. & Admin.News 1976, pp. 5908, 5912.
9
Nor can we accept petitioner's contention that respondent did not gain sufficient relief through the consent decree to be considered the prevailing party. The District Court's contrary finding was based on its familiarity with the progress of the litigation through the pleading, discovery, and settlement negotiation stages. That finding was upheld by the Court of Appeals, and we see no reason to question its validity. See Graver Mfg. Co. v. Linde Co., 336 U.S. 271, 275, 69 S.Ct. 535, 537, 93 L.Ed.2d 672.
II
10
Petitioner's second argument is that, regardless of Congress' intent, a federal court is barred by the Eleventh Amendment from awarding fees against a State in a case involving a purely statutory, non-civil-rights claim.12 Petitioner argues that Congress may empower federal courts to award fees against the States only insofar as it is exercising its power under § 5 of the Fourteenth Amendment to enforce substantive rights conferred by that Amendment. Thus, petitioner contends that fees can only be assessed in § 1983 actions brought to vindicate Fourteenth Amendment rights or to enforce civil rights statutes that were themselves enacted pursuant to § 5 of the Fourteenth Amendment.13
11
In this case, there is no need to reach the question whether a federal court could award attorney's fees against a State based on a statutory, non-civil-rights claim. For, contrary to petitioner's characterization, respondent did allege violations of her Fourteenth Amendment due process and equal protection rights, which the District Court and the Court of Appeals both held to be sufficiently substantial to support federal jurisdiction under Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1342, 39 L.Ed.2d 577. Although petitioner is correct that the trial judge did not find any constitutional violation, the constitutional issues remained in the case until the entire dispute was settled by the entry of a consent decree. Under these circumstances, petitioner's Eleventh Amendment claim is foreclosed by our decision in Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522.
12
In Hutto, we rejected the argument of the Attorney General of Arkansas that the general language of § 1988 was insufficient to overcome a State's claim of immunity under the Eleventh Amendment, noting that "[t]he Court has never viewed the Eleventh Amendment as barring such awards, even in suits between States and individual litigants."14 Id., at 695, 98 S.Ct., at 2576. Moreover, even if the Eleventh Amendment would otherwise present a barrier to an award of fees against a State, Congress was clearly acting within its power under § 5 of the Fourteenth Amendment in removing that barrier. Under § 5 Congress may pass any legislation that is appropriate to enforce the guarantees of the Fourteenth Amendment. A statute awarding attorney's fees to a person who prevails on a Fourteenth Amendment claim falls within the category of "appropriate" legislation. And clearly Congress was not limited to awarding fees only when a constitutional or civil rights claim is actually decided. We agree with the courts below that Congress was acting within its enforcement power in allowing the award of fees in a case in which the plaintiff prevails on a wholly statutory, non-civil-rights claim pendent to a substantial constitutional claim or in one in which both a statutory and a substantial constitutional claim are settled favorably to the plaintiff without adjudication.15 As the Court of Appeals pointed out, such a fee award "furthers the Congressional goal of encouraging suits to vindicate constitutional rights without undermining the longstanding judicial policy of avoiding unnecessary decision of important constitutional issues." 594 F.2d, at 342. It is thus an appropriate means of enforcing substantive rights under the Fourteenth Amendment.16
13
The judgment is affirmed.
14
So ordered.
15
Mr. Justice POWELL, with whom THE CHIEF JUSTICE and Mr. Justice REHNQUIST join, concurring in the judgment, and in Part II of the Court's opinion.
16
Respondent's complaint presented claims under both the Social Security Act and the Fourteenth Amendment. Following a settlement between the parties, the District Court ruled that respondent is a "prevailing party" under 42 U.S.C. § 1988, and that she alleged "substantial" constitutional claims as defined in Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1342, 39 L.Ed.2d 577 (1974).
17
In this situation, the District Court and the Court of Appeals for the Second Circuit both found, the award of attorney's fees under § 1988 does not require an adjudication on the merits of the constitutional claims. I agree with this conclusion. Consequently, I see no reason to reach out, as the Court does in Part I of its opinion, to apply today's ruling in Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555. See ante, at 128-129. That decision holds that plaintiffs may win attorney's fees under § 1988 when they bring an action under 42 U.S.C. § 1983 without any constitutional claim whatever. For the reasons given in my dissenting opinion in Thiboutot, I believe that decision seriously misconceives the congressional purpose behind § 1983. In this case, however, the complaint included a substantial constitutional claim which "remained in the case until the entire dispute was settled by the entry of a consent decree." Ante, at 131. Since Congress has made plain its intent that fees be awarded to "prevailing" parties in these circumstances, see ante, at 132-133, n.15, we have no occasion to look behind the settlement agreement to evaluate further the constitutional cause of action.
18
In contrast, Part II of the Court's opinion resolves the Eleventh Amendment question on the narrow ground that respondent alleged "substantial" Fourteenth Amendment claims. Ante, 131. Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), held that since Congress may qualify the States' Eleventh Amendment immunity under the Enforcement Clause of the Fourteenth Amendment, § 1988 authorizes fee awards against States in these circumstances. I believe that Congress should not be deemed to have qualified the Eleventh Amendment in the absence of explicit evidence of that intent. See Hutto, supra, at 704, 98 S.Ct., at 2581 (POWELL, J., concurring in part and dissenting in part). Nevertheless, I accept Hutto as binding precedent for this case and note only that the Court has reserved the question "whether a federal court could award attorney's fees against a State based on a statutory, non-civil-rights claim." Ante, at 130.
1
The Civil Rights Attorney's Fees Awards Act of 1976, 90 Stat. 2641, provides:
"In any action or proceeding to enforce a provision of sections 1977, 1978, 1979, 1980, and 1981 of the Revised Statutes, title IX of Public Law 92-318, or in any civil action or proceeding, by or on behalf of the United States of America, to enforce, or charging a violation of, a provision of the United States Internal Revenue Code, or title VI of the Civil Rights Act of 1964, 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."
This statute is codified in 42 U.S.C. § 1988; in the codification § 1979 of the Revised Statutes has been renumbered to refer to § 1983 of Title 42 of the United States Code.
2
The action was filed against petitioner's predecessor in office, Nicholas Norton, Commissioner of Welfare of the State of Connecticut. The title of the position has since been changed to "Commissioner of Income Maintenance." We shall simply refer to the Commissioner as "petitioner."
3
Connecticut's Department of Social Services Manual provided that only certain enumerated expenses could be deducted; the amounts allowed for lunches and automobile transportation were limited to 50 cents per working day and 6 cents per mile respectively. App. 66. The complaint alleged that respondent's actual transportation expenses were 13.9 cents per mile and that her meal expenses amounted to $1.65 per day. Id., at 8.
4
The statute requires States to take into consideration "any expenses reasonably attributable to the earning of . . . income." In Shea v. Vialpando, 416 U.S. 251, 94 S.Ct. 1746, 40 L.Ed.2d 120, this Court held that participating States could not place arbitrary limits on the amount of work-related expenses that could be claimed by recipients. Although States may use standardized allowances for the sake of administrative convenience, they must give recipients the opportunity to demonstrate that their actual expenses exceed the standard.
5
In her complaint respondent alleged:
"28. Defendants' practice and policy constitute an invidious discrimination against persons whose work-related expenses exceed the allowances set forth in Index 332.31 and violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by forbidding plaintiff and the class she represents ever from controverting the presumption that their work-related expenses exceeding the transportation and food allowances of Index 332.31 are reasonable.
* * * * *
"32. Defendants' practice and policy violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution in that:
"a) Defendants' practice and policy establish an irrebutable [sic] presumption that the plaintiff's work-related transportation and lunch allowances are unreasonable and operate to deny plaintiff and the class she represents a fair opportunity to rebut it.
"b) The standard lunch and transportation allowances contained in Index 332.31 are arbitrary in that they were not developed by a statistically fair averaging, nor do they reflect current prices." App. 9-10.
6
"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
Title 28 U.S.C. §§ 1343(3) and (4) provide as follows:
"The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
* * * * *
"(3) To 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;
"(4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote."
8
As is customary, the consent decree did not purport to adjudicate respondent's statutory or constitutional claims. Rather, it explicitly stated that "[n]othing in this Consent Decree is intended to constitute an admission of fault by either party to this action." App. 76.
9
The court rejected petitioner's constitutional claim on two grounds. First, it held that the Eleventh Amendment does not apply to an award of attorney's fees because such fees are ancillary to the imposition of prospective relief within the reasoning of Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662. Second, the court held that, even if the Eleventh Amendment did apply, Congress had the power to authorize the assessment of fees in a case such as this under the Fourteenth Amendment:
"The State contends, however, that Congress' power under the Fourteenth Amendment to override state sovereign immunity extends only to suits in which a party prevails on a constitutional claim. On this view, Congress cannot validly authorize a fee award against a state in the absence of a judicial determination that plaintiff had a meritorious constitutional claim. We disagree. We think it is within Congress' Fourteenth Amendment power to authorize a fee award when a party prevails on a statutory claim as long as the pendent constitutional claim is a substantial one and arises out of the same operative facts. Such a fee award furthers the Congressional goal of encouraging suits to vindicate constitutional rights without undermining the longstanding judicial policy of avoiding unnecessary decision of important constitutional issues. As we understand the Supreme Court decisions, any appropriate means of implementing the Fourteenth Amendment overrides the State's Eleventh Amendment rights, see, e. g., Fitzpatrick v. Bitzer, supra, 427 U.S. 445, at 453, 456, 96 S.Ct. 2666, at 2670, 2671, 49 L.Ed.2d 614; Katzenbach v. Morgan, 384 U.S. 641, 648-650, 86 S.Ct. 1717, 1722-1723, 16 L.Ed.2d 828 (1966). We hold that the authorization of attorneys' fees to be awarded under the standards set forth above is an appropriate way to achieve the competing goals described above." (Emphasis in original.) 594 F.2d, at 342-343.
10
Petitioner ignores the fact that respondent did allege constitutional claims which the District Court and the Court of Appeals both found to be sufficiently substantial to support federal jurisdiction under Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577. Under these circumstances petitioner could not have prevailed on his statutory argument even if the Court had reached the opposite result in Thiboutot. See n.15, infra.
11
The jurisdictional statute at issue in Chapman, 28 U.S.C. § 1343, specifically limits district court jurisdiction to cases in which the plaintiff alleges a violation of a right secured by the Constitution or by a federal statute "providing for equal rights" or "civil rights." Inasmuch as it does not create substantive rights at all, but merely provides a remedy for the violation of rights conferred by the Constitution or other statutes, § 1983 does not fall within the category of statutes providing for equal rights or civil rights. Therefore, there is not automatically federal jurisdiction under § 1343 whenever a plaintiff files a § 1983 claim; rather, the court must look to the underlying substantive right that was allegedly violated to determine whether that right was conferred by the Constitution or by a civil rights statute.
Section 1988 does not contain language like that in § 1343. Rather, § 1988 provides that attorney's fees may be awarded to the prevailing party "[i]n any action or proceeding to enforce [§ 1983]." Although the reference to actions "to enforce" § 1983 is somewhat imprecise in light of the fact that § 1983 does not itself create substantive rights, the legislative history makes it perfectly clear that the Act was intended to apply in any action for which § 1983 provides a remedy. See Maine v. Thiboutot, 448 U.S., at 9-10, 100 S.Ct., at 2506-2507.
12
The Eleventh Amendment provides:
"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."
The Eleventh Amendment issue was not before the Court in Thiboutot because that case involved an award of fees by a state court pursuant to § 1988. 448 U.S., at 9, n.7, 100 S.Ct., at 2506, n.7.
13
"The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."
14
Referring to the argument of the Attorney General, we said:
"[H]e argues that these plain indications of legislative intent are not enough. In his view, Congress must enact express statutory language making the States liable if it wishes to abrogate their immunity. The Attorney General points out that this Court has sometimes refused to impose retroactive liability on the States in the absence of an extraordinarily explicit statutory mandate. See Employees v. Missouri Public Health & Welfare Dept., 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251; see also Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662. But these cases concern retroactive liability for prelitigation conduct rather than expenses incurred in litigation seeking only prospective relief.
"The Act imposes attorney's fees 'as part of the costs.' Costs have traditionally been awarded without regard for the States' Eleventh Amendment immunity. The practice of awarding costs against the States goes back to 1849 in this Court. See Missouri v. Iowa, 7 How. 660, 681, 12 L.Ed. 861; North Dakota v. Minnesota, 263 U.S. 583, 44 S.Ct. 208, 68 L.Ed. 461 (collecting cases). The Court has never viewed the Eleventh Amendment, as barring such awards even in suits between States and individual litigants.
"In Fairmont Creamery Co. v. Minnesota, 275 U.S. 70, 48 S.Ct. 97, 72 L.Ed.2d 168, the State challenged this Court's award of costs, but we squarely rejected the State's claim of immunity. Far from requiring an explicit abrogation of state immunity, we relied on a statutory mandate that was entirely silent on the question of state liability. The power to make the award was supported by 'the inherent authority of the Court in the orderly administration of justice as between all parties litigant.' Id., at 74, 48 S.Ct., at 99. A federal court's interest in orderly, expeditious proceedings 'justifies [it] in treating the state just as any other litigant and in imposing costs upon it' when an award is called for. Id., at 77, 48 S.Ct., at 100.
"Just as a federal court may treat a State like any other litigant when it assesses costs, so also may Congress amend its definition of taxable costs and have the amended class of costs apply to the States, as it does to all other litigants, without expressly stating that it intends to abrogate the States' Eleventh Amendment immunity. For it would be absurd to require an express reference to state litigants whenever a filing fee, or a new item, such as an expert witness' fees, is added to the category of taxable costs." 437 U.S., at 695-697, 98 S.Ct., at 2575-2577 (footnotes omitted).
15
The legislative history makes it clear that Congress intended fees to be awarded where a pendent constitutional claim is involved, even if the statutory claim on which the plaintiff prevailed is one for which fees cannot be awarded under the Act. The Report of the Committee on the Judiciary of the House of Representatives accompanying H.R. 15460, a bill substantially identical to the Senate bill that was finally enacted, stated:
"To the extent a plaintiff joins a claim under one of the statutes enumerated in H.R. 15460 with a claim that does not allow attorney fees, that plaintiff, if it prevails on the non-fee claim, is entitled to a determination on the other claim for the purpose of awarding counsel fees. Morales v. Haines, 486 F.2d 880 (7th Cir. 1973). In some instances, however, the claim with fees may involve a constitutional question which the courts are reluctant to resolve if the non-constitutional claim is dispositive. Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1342, 39 L.Ed.2d 577 (1974). In such cases, if the claim for which fees may be awarded meets the 'substantiality' test, see Hagans v. Lavine, supra; United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), attorney's fees may be allowed even though the court declines to enter judgment for the plaintiff on that claim, so long as the plaintiff prevails on the non-fee claim arising out of a 'common nucleus of operative fact.' United Mine Workers v. Gibbs, supra, at 725, 86 S.Ct., at 1138." H.R.Rep. No. 94-1558, p. 4, n.7 (1976).
16
Petitioner seeks to distinguish this case from Hutto v. Finney on the ground that Hutto involved an adjudication of a constitutional violation, rather than a statutory violation. However, as Mr. Justice REHNQUIST noted in his dissent, 437 U.S., at 717-718, 98 S.Ct., at 2588, the underlying claim in Hutto was predicated on the Eighth Amendment as made applicable to the States by the Fourteenth Amendment rather than on any substantive provision of the Fourteenth Amendment itself. The prisoners' claim in Hutto was therefore arguably more analogous to the statutory claim involved in this case then to the constitutional claims asserted here or to the equal protection claim asserted in Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614.
| 56
|
448 U.S. 160
100 S.Ct. 2592
65 L.Ed.2d 684
CENTRAL MACHINERY COMPANY, Appellant,v.ARIZONA STATE TAX COMMISSION.
No. 78-1604.
Argued Jan. 14, 1980.
Decided June 27, 1980.
Syllabus
Held : Arizona had no jurisdiction to impose a tax on appellant Arizona corporation's sale of farm machinery to an Indian tribe, where the sale took place on an Indian reservation even though appellant did not have a permanent place of business on the reservation and was not licensed to trade with Indians. Since the transaction was plainly subject to regulation under the federal statutes and implementing regulations governing the licensing of Indian traders, federal law pre-empts the asserted state tax. It is irrelevant that appellant was not a licensed Indian trader, since it is the existence of the Indian trader statutes, not their administration, that pre-empts the field of transactions with Indians occurring on reservations. Nor is it relevant that appellant did not maintain a permanent place of business on the reservation, since the Indian trader statutes and regulations apply no less to a nonresident who sells goods to Indians on a reservation than they do to a resident trader. The purpose of these statutes and regulations to protect Indians from becoming victims of fraud in dealings with sellers of goods would be easily circumvented if a seller could avoid federal regulations simply by failing to adopt a permanent place of business on a reservation or to obtain a federal license. Pp. 163-166.
126 Ariz. 183, 589 P.2d 426, reversed.
Rodney B. Lewis, Sacaton, Ariz., for appellant.
Ian A. Macpherson, Asst. Atty. Gen., Phoenix, Ariz., for appellee.
Louis F. Claiborne, Asst. Sol. Gen., Washington, D. C., for the United States, as amicus curiae, by special leave of Court.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
This case presents the question whether a State may tax the sale of farm machinery to an Indian tribe when the sale took place on an Indian reservation and was made by a corporation that did not reside on the reservation and was not licensed to trade with Indians.
2
* Appellant is a corporation chartered by and doing business in Arizona. In 1973 it sold 11 farm tractors to Gila River Farms, an enterprise of the Gila River Indian Tribe. The Tribe is federally recognized and is governed by a constitution adopted pursuant to the Indian Reorganization Act, 25 U.S.C. § 476. Gila River Farms conducts farming operations on tribal and individual trust land within the Gila River Reservation, which was established in Arizona by the Act of Feb. 28, 1859, ch. 66, 11 Stat. 388, 401.
3
Appellant's salesman solicited the sale of these tractors on the reservation, the contract was made there, and payment for and delivery of the tractors also took place there. Appellant does not have a permanent place of business on the reservation, and it is not licensed under 25 U.S.C. §§ 261-264 and 25 CFR Part 251 (1979) to engage in trade with Indians on reservations. The transaction was approved, however, by the Bureau of Indian Affairs.
4
The State of Arizona imposes a "transaction privilege tax" on the privilege of doing business in the State. Ariz.Rev.Stat.Ann. §§ 42-1309, 42-1312, 42-1361 (Supp.1979).1 The tax amounts to a percentage of the gross receipts of the taxable entity. The tax is assessed against the seller of goods, not against the purchaser. In this case, appellant added the amount of this tax—$2,916.62—as a separate item to the price of the tractors, thereby increasing by that amount the total purchase price paid by Gila River Farms. Appellant paid this tax to the State under protest and instituted state administrative proceedings to claim a refund.2 The administrative claim was denied, and appellant then filed this action in state court, contending that federal regulation of Indian trading pre-empted application of the state tax to the transaction in question. The Superior Court for Maricopa County held that the State had no jurisdiction to tax the transaction, and accordingly it ordered a refund. The Supreme Court of Arizona reversed. State v. Central Machinery Co., 121 Ariz. 183, 589 P.2d 426 (1978).
5
We noted probable jurisdiction, 444 U.S. 822, 100 S.Ct. 41, 62 L.Ed.2d 28 (1979), and now reverse.
II.
6
In 1790, Congress passed a statute regulating the licensing of Indian traders. Act of July 22, 1790, ch. 33, 1 Stat. 137. Ever since that time, the Federal Government has comprehensively regulated trade with Indians to prevent "fraud and imposition" upon them. H.R.Rep. No. 474, 23d Cong., 1st Sess., 11 (1834) (Committee Report with respect to Indian Trade and Intercourse Act of 1834, ch. 161, 4 Stat. 729). In the current regulatory scheme, the Commissioner of Indian Affairs has "the sole power and authority to appoint traders to the Indian tribes and to make . . . rules and regulations . . . specifying the kind and quantity of goods and the prices at which such goods shall be sold to the Indians." 25 U.S.C. § 261. All persons desiring to trade with Indians are subject to the Commissioner's authority. 25 U.S.C. § 262. The President is authorized to prohibit the introduction of any article into Indian land. 25 U.S.C. § 263. Penalties are provided for unlicensed trading, introduction of goods, or residence on a reservation for the purpose of trade. 25 U.S.C. § 264. The Commissioner has promulgated detailed regulations to implement these statutes. 25 CFR Part 251 (1979).
7
In Warren Trading Post Co. v. Arizona Tax Comm'n, 380 U.S. 685, 85 S.Ct. 1242, 14 L.Ed.2d 165 (1965), the Court unanimously held that these "apparently all-inclusive regulations and the statutes authorizing them," id., at 690, 85 S.Ct., at 1245, prohibited the State of Arizona from imposing precisely the same tax as is at issue in the present case on the operator of a federally licensed retail trading post located on a reservation. We determined that these regulations and statutes are "in themselves sufficient to show that Congress has taken the business of Indian trading on reservations so fully in hand that no room remains for state laws imposing additional burdens upon traders." Ibid. We noted that the Tribe had been left "largely free to run the reservation and its affairs without state control, a policy which has automatically relieved Arizona of all burdens for carrying on those same responsibilities." Ibid. See White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 152, 100 S.Ct. 2578, 2588, 65 L.Ed.2d 665.
8
There are only two distinctions between Warren Trading Post, supra, and the present case: appellant is not a licensed Indian trader, and it does not have a permanent place of business on the reservation.3 The Supreme Court of Arizona concluded that these distinctions indicated that federal law did not bar imposing the transaction privilege tax on appellant. We disagree.
9
The contract of sale involved in the present case was executed on the Gila River Reservation, and delivery and payment were effected there. Under the Indian trader statutes, 25 U.S.C. §§ 261-264, this transaction is plainly subject to federal regulation. It is irrelevant that appellant is not a licensed Indian trader. Indeed, the transaction falls squarely within the language of 25 U.S.C. § 264, which makes it a criminal offense for "[a]ny person . . . to introduce goods, or to trade" without a license "in the Indian country, or on any Indian reservation." It is the existence of the Indian trader statutes, then, and not their administration, that pre-empts the field of transactions with Indians occurring on reservations.4
10
Nor is it relevant that appellant did not maintain a permanent place of business on the reservation. The Indian trader statutes and their implementing regulations apply no less to a nonresident person who sells goods to Indians on a reservation than they do to a resident trader. See 25 U.S.C. § 262 ("[a]ny person desiring to trade with the Indians on any Indian reservation" subject to regulatory authority of Commissioner of Indian Affairs); 25 U.S.C. § 263 ("President is authorized . . . to prohibit the introduction of goods . . . into the country belonging to any Indian tribe"); 25 U.S.C. § 264 (making it an offense for "[a]ny person" to introduce goods or to trade on a reservation without a license). Indeed, an implementing regulation expressly provides for the licensing of "itinerant peddlers," 25 CFR § 251.9(b) (1979), who are by definition nonresidents, see 25 CFR § 252.3(i) (1979). One of the fundamental purposes of these statutes and regulations—to protect Indians from becoming victims of fraud in dealings with persons selling goods—would be easily circumvented if a seller could avoid federal regulation simply by failing to adopt a permanent place of business on a reservation or by failing to obtain a federal license.
11
Since the transaction in the present case is governed by the Indian trader statutes, federal law pre-empts the asserted state tax. As we held in Warren Trading Post, supra, 380 U.S., at 691, n. 18, 85 S.Ct., at 1246, by enacting these statutes Congress "has undertaken to regulate reservation trading in such a comprehensive way that there is no room for the States to legislate on the subject." It may be that in light of modern conditions the State of Arizona should be allowed to tax transactions such as the one involved in this case. Until Congress repeals or amends the Indian trader statutes, however, we must give them "a sweep as broad as [their] language," United States v. Price, 383 U.S. 787, 801, 86 S.Ct. 1152, 1160, 16 L.Ed.2d 267 (1966), and interpret them in light of the intent of the Congress that enacted them, see Wilson v. Omaha Indian Tribe, 442 U.S. 653, 666, 99 S.Ct. 2529, 2537, 61 L.Ed.2d 153 (1979); Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 206, 98 S.Ct. 1011, 1019, 55 L.Ed.2d 209 (1978).5
12
The decision of the Supreme Court of Arizona is
13
Reversed.
14
Mr. Justice STEWART, with whom Mr. Justice POWELL, Mr. Justice REHNQUIST, and Mr. Justice STEVENS join, dissenting.
15
The question before us is whether the appellant is immune from a state tax imposed on the proceeds of the sale by it of farm machinery to an Indian tribe. The Court concludes that an affirmative answer is required by the rationale of Warren Trading Post Co. v. Arizona Tax Comm'n, 380 U.S. 685, 85 S.Ct. 1242, 14 L.Ed.2d 165, a case that is similar in some respects to this one. While I agree that Warren Trading Post states the relevant legal principles, I cannot agree that those principles lead to the result reached by the Court in this case. Accordingly, I dissent.
16
In Warren Trading Post the Court held that the State of Arizona may not impose the same tax involved here on the operator of a federally licensed retail trading business located on an Indian reservation. The Court determined that the "apparently all-inclusive [federal] regulations and the statutes authorizing them," id., at 690, 85 S.Ct., at 1245, under which the trader in that case had been licensed, were "in themselves sufficient to show that Congress has taken the business of trading on reservations so fully in hand that no room remains for state laws imposing additional burdens on traders," ibid.
17
As the Court recognizes, the circumstances of this case differ from those presented by Warren Trading Post. Specifically, the appellant here is not a licensed Indian trader and does not have a permanent place of business on the reservation. See ante, at 164. The Court considers these differences immaterial, however, apparently because, as it reads the relevant statutes, the appellant could have been subjected to regulation somewhat like that in Warren Trading Post, though in fact it was not. Thus the Court relies on 25 U.S.C. § 264, which makes it unlawful for "[a]ny person . . . to introduce goods, or to trade" without a license "in the Indian country, or on any Indian reservation."
18
Even assuming that the Court correctly reads the statutory language to reach anybody who sells goods "on any Indian reservation," I cannot understand why the Court ascribes to that fact the significance that it does. The question, after all, is not whether the appellant may be required to have a license, but rather, as the Arizona Supreme Court correctly believed, whether the state tax "runs afoul of any congressional enactments" dealing with the affairs of reservation Indians, State v. Central Machinery Co., 121 Ariz. 183, 184, 589 P.2d 426, 427 (1978). This Court has consistently recognized that " '[e]nactments of the federal government passed to protect and guard its Indian wards only affect the operation, within the [reservation,] of such state laws as conflict with the federal enactments,' " Moe v. Salish & Kootenai Tribes, 425 U.S. 463, 483, 96 S.Ct. 1634, 1646, 48 L.Ed.2d 96, quoting United States v. McGowan, 302 U.S. 535, 539, 58 S.Ct. 286, 288, 82 L.Ed. 410.1 With regard to the determinative issue whether Arizona's tax in this case is inconsistent with federal law, the Court says only that "[i]t is the existence of the Indian trader statutes . . . that pre-empts the field of transactions with Indians occurring on reservations," ante, at 165, and that those statutes must be given " 'a sweep as broad as [their] language,' " ante, at 166, quoting United States v. Price, 383 U.S. 787, 801, 86 S.Ct. 1152, 1160, 16 L.Ed.2d 267.2
19
But the rationale of the decision in Warren Trading Post, supra, was not so simple as this. The grounds of that decision were twofold. First, as the Court today reiterates, a tax on the gross income of a licensed trader residing on the reservation could "disturb and disarrange the statutory plan Congress set up in order to protect Indians against prices deemed unfair or unreasonable," id., 380 U.S., at 691, 85 S.Ct., at 1246. Second, the Court saw in that case no governmental justification to support the State's "put[ting] financial burdens on [the trader] or the Indians with whom it deals in addition to those Congress or the tribes have prescribed," ibid. Because Congress for nearly a century had "left the Indians . . . free to run the reservation and its affairs without state control," Arizona had been "automatically relieved . . . of all burdens for carrying on those same responsibilities," id., at 690, 85 S.Ct., at 1245. That being so, the Court did not "believe that Congress intended to leave to the State the privilege of levying this tax," id., at 691, 85 S.Ct., at 1246.
20
Neither of these considerations is present here. First, although the appellant was obliged to obtain federal approval of the sale transaction in this case, see 25 U.S.C. §§ 262, 264, it was not subjected to the much more comprehensive regulation that governs licensed traders engaged in a continuous course of dealing with reservation Indians. See 25 CFR Part 251 (1979). In these circumstances, the Court's expressed belief that the minimal regulation to which the appellant was subject "leaves no room" for the state tax in this case strikes me as hyperbolic. Even were the appellant administratively required to possess a license, taxation of an isolated sale by it to the Indians simply would not jeopardize those federal and tribal interests involved in the thorough regulation of on-reservation merchants trading continuously with the Indians—the situation dealt with in Warren Trading Post. There the financial burdens of state taxation would have impaired the Commissioner's ability to prescribe "the kind and quantity of goods and the prices at which such goods shall be sold to the Indians," 25 U.S.C. § 261, and might have threatened the very existence of the resident trader's enterprise, on which the tribe depended for its essential commerce. No similar risks exist in a case such as this one, involving an isolated sales transaction. The viability of the seller may be assumed from its willingness to trade, and the reasonableness of the terms of sale may be guaranteed, as they were in this case, by the Commissioner's review of them. It is true that the prices paid by the Indians might be lower if the appellant is immune from the tax. But that is hardly relevant. The Court has on more than one occasion sustained state taxation of transactions occurring on Indian reservations, notwithstanding the fact that the economic burden of the tax fell indirectly on the Indian tribe or its members. See Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 151, 156-157, 100 S.Ct. 2069, 2080, 2083, 65 L.Ed.2d 10; Moe v. Salish & Kootenai Tribes, supra. Cf. Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148, 93 S.Ct. 1267, 1270, 36 L.Ed.2d 114.
21
Second, the Court inexplicably ignores the State's wholly legitimate purpose in taxing the appellant, a corporation that does business within the State at large and presumably derives substantial benefits from the services provided by the State at taxpayer's expense.3 Aside from entering the reservation to solicit and execute the contract of sale and to receive payment, circumstances that are certain to characterize all sales to reservation Indians after today's decision, the appellant conducts its affairs in all respects like any other business to which the State's nondiscriminatory tax concededly applies. Thus, quite unlike the circumstances in Warren Trading Post, the State in this case has not been relieved of all duties or responsibilities respecting the business it would tax. Yet, despite the settled teaching of the Court's decisions in this area that every relevant state interest is to be given weight, see Washington v. Confederated Tribes of Colville Indian Reservation, supra; McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 171, 93 S.Ct. 1257, 1261, 36 L.Ed.2d 129; cf. White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 144, 100 S.Ct. 2578, 2584, 65 L.Ed.2d 665, the Court does not even consider the State's valid governmental justification for taxing the transaction here involved.
22
It is important to recognize the limits inherent in the principles of federal pre-emption on which the Warren Trading Post decision rests. Those limits make necessary in every case such as this a careful inquiry into pertinent federal, tribal, and state interests, without which a rational accommodation of those interests is not possible. Had such an inquiry been made in this case, I am convinced the Court could not have concluded that Arizona's exercise of the sovereign power to tax its non-Indian citizens had been pre-empted by federal law.
23
Mr. Justice POWELL, dissenting and concurring.
24
I write separately because I would distinguish Central Machinery Co. v. Arizona State Tax Comm'n, 448 U.S. 160, 100 S.Ct. 2592, 65 L.Ed.2d 684, from White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 100 S.Ct. 2578, 65 L.Ed.2d 665. I agree with the Court that a non-Indian contractor continuously engaged in logging upon a reservation is subject to such pervasive federal regulation as to bring into play the pre-emption doctrine of Warren Trading Post Co. v. Arizona Tax Comm'n, 380 U.S. 685, 85 S.Ct. 1242, 14 L.Ed.2d 165 (1965). But Warren Trading Post simply does not apply to routine state taxation of a non-Indian corporation that makes a single sale to reservation Indians. I therefore join the Court's opinion in White Mountain Apache Tribe, but I dissent from its decision in Central Machinery.
25
* Central Machinery
26
Warren Trading Post held that Arizona could not levy its transaction privilege tax against a company regularly engaged in retail trading with the Indians upon a reservation. The company operated under a federal license, and it was subject to the federal regulatory scheme authorized by 25 U.S.C. §§ 261-264. "These apparently all-inclusive regulations," the Court concluded, "show that Congress has taken the business of Indian trading on reservations so fully in hand that no room remains for state laws imposing additional burdens upon traders." 380 U.S., at 690, 85 S.Ct., at 1245.
27
The Court today is too much persuaded by the superficial similarity between Warren Trading Post and Central Machinery. The Court mistakenly concludes that a company having no license to trade with the Indians and no place of business within a reservation is engaged in "the business of Indian trading on reservations. . . ." 380 U.S., at 690, 85 S.Ct., at 1245. Although "[a]ny person" desiring to sell goods to Indians inside a reservation must secure federal approval, see 25 U.S.C. §§ 262, 264, the federal regulations—and the facts of this case—show that a person who makes a single approved sale need not become a fully regulated Indian trader. Even itinerant peddlers who engage in a pattern of selling within a reservation are merely "considered as traders" for purposes of the licensing requirement. 25 CFR § 251.9(b) (1979). "The business of a licensed trader," in fact, "must be managed by the bonded principal, who must habitually reside upon the reservation. . . ." 25 CFR § 251.14 (1979).1 Since Warren Trading Post involved a resident trader subject to the complete range of federal regulation, the Court had no occasion to consider whether federal regulation also pre-empts state taxation of a seller who enters a reservation to make a single transaction.2
28
Our most recent cases undermine the notion that 25 U.S.C. §§ 261-264 occupy the field so as to pre-empt all state regulation affecting licensed Indian traders. The unanimous Court in Moe v. Salish & Kootenai Tribes, 425 U.S. 463, 481-483, 96 S.Ct. 1634, 1645-1646, 48 L.Ed.2d 96 (1976), concluded that a State could require tribal retailers to prepay a tax validly imposed on non-Indian customers. Rejecting an argument based on Warren Trading Post, the Court concluded that federal laws " 'passed to protect and guard [the Indians] only affect the operation, within the [reservation], of such state laws as conflict with the federal enactments.' " 425 U.S., at 483, 96 S.Ct., at 1646, quoting United States v. McGowan, 302 U.S. 535, 539, 58 S.Ct. 286, 288, 82 L.Ed. 410 (1938). In Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 159-160, 100 S.Ct. 2069, 2084, 2085, 65 L.Ed.2d 10 (1980), the Court holds that a State can require licensed traders to keep detailed tax records of their sales to both Indians and non-Indians. Cf. Confederated Tribes v. Washington, 446 F.Supp. 1339, 1347, 1358-1359 (ED Wash.1978) (three-judge court).
29
Finally, unlike taxes imposed upon an Indian trader engaged in a continuous course of dealing within the reservation, the tax assessed against Central Machinery does not "to a substantial extent frustrate the evident congressional purpose of ensuring that no burden shall be imposed upon Indian traders for trading with Indians . . . except as authorized by Acts of Congress or by valid regulations promulgated under those Acts." Warren Trading Post, supra, at 691, 85 S.Ct., at 1245. In this case, the Bureau of Indian Affairs approved all aspects of the only sale Central Machinery made to the Gila River Indian Tribe. The contract price approved by the Bureau included costs attributable to the very tax that Central Machinery now seeks to recover. 448 U.S., at 161-162, 100 S.Ct., at 2594. Thus, the State's tax did not interfere with "the statutory plan Congress set up in order to protect Indians against prices deemed unfair or unreasonable . . . ." Warren Trading Post, supra, at 691, 85 S.Ct., at 1246. Since a seller not licensed to trade with the Indians must secure specific federal approval for each isolated transaction, there is no danger that ordinary state business taxes upon the seller will impair the Bureau's ability to prevent fraudulent or excessive pricing. To hold the seller immune from state taxes otherwise due upon a single transaction with the Indians gives the non-Indian seller a windfall or the Indian buyer an unwarranted advantage over all others who deal with the seller.
II
White Mountain Apache Tribe
30
White Mountain Apache Tribe presents a different situation. Petitioner Pinetop Logging Co. operates solely and continuously upon an Indian reservation under its contract with a tribal enterprise. Pinetop's daily operations are controlled by a comprehensive federal regulatory scheme designed to assure the Indian tribes the greatest possible return from their timber. Federal officials direct Pinetop's hauling operations down to such details as choice of equipment, selection of routes, speeds of travel, and dimensions of the loads. 448 U.S., at 146-148, 100 S.Ct., at 2585-2586. Pinetop does all of the hauling at issue in this case over roads constructed, maintained, and regulated by the White Mountain Apache Tribe and the Bureau of Indian Affairs. The Bureau requires the Tribe and its contractors to repair existing roads and to construct new roads necessary for sustained logging. Pinetop exhausts a large percentage of its gross income in performing these contractual obligations. 448 U.S., at 148, 100 S.Ct., at 2586.
31
Since the Federal Government, the Tribe, and its contractors are solely responsible for the roads that Pinetop uses, I "cannot believe that Congress intended to leave to the State the privilege of levying" road use taxes upon Pinetop's operations. See Warren Trading Post, 380 U.S., at 691, 85 S.Ct., at 1246. The State has no interest in raising revenues from the use of Indian roads that cost it nothing and over which it exercises no control. See Washington v. Confederated Tribes, supra, at 162-164, 100 S.Ct., at 2086.3 The addition of these taxes to the road construction and repair expenses that Pinetop already bears also would interfere with the federal scheme for maintaining roads essential to successful Indian timbering. See 380 U.S., at 691, 85 S.Ct., at 1245. The Tribe or its contractors would pay twice for use of the same roads. This double exaction could force federal officials to reallocate work from non-Indian contractors to the tribal enterprise itself or to make costly concessions to the contractors. I therefore join the Court in concluding that this case "is in all relevant respects indistinguishable from Warren Trading Post." 448 U.S., at 153, 100 S.Ct., at 2588.
1
At the time of the transaction in question, Ariz.Rev.Stat.Ann. § 42-1309 (Supp.1979) provided:
"A. There is levied and there shall be collected . . . privilege taxes measured by the amount or volume of business transacted by persons on account of their business activities, and in the amounts to be determined by the application of rates against values, gross proceeds of sales, or gross income, as the case may be, in accordance with the schedule as set forth in §§ 42-1310 through 42-1315."
At the time of the transaction, Ariz.Rev.Stat.Ann. § 42-1312 (Supp.1979) provided:
"A. The tax imposed by subsection A of § 42-1309 shall be levied and collected at an amount equal to two per cent of the gross proceeds of sales or
gross income from the business upon every person engaging or continuing within this state in the business of selling any tangible personal property whatever at retail, . . . ."
At the time of the transaction, Ariz.Rev.Stat.Ann. § 42-1361 (Supp.1973) provided:
"A. There is levied and shall be collected by the department of revenue a tax:
"1. On the privilege of doing business in this state, measured by the amount or volume of business transacted by persons on account of their business activities, and in the amounts to be determined by the application, against values, gross proceeds of sales, or gross income, as the case may be, in accordance with the provisions and schedules as set forth in [§ 42-1301 et seq.], at rates equal to fifty per cent of the rates imposed in such article." 1973 Ariz.Sess.Laws, ch. 123, § 117.
2
It is stipulated that appellant will pay over any tax refund to Gila River Farms.
3
It is irrelevant that the sale was made to a tribal enterprise rather than to the Tribe itself. See Mescalero Apache Tribe v. Jones, 411 U.S. 145, 157, n. 13, 93 S.Ct. 1267, 1275, n. 13, 36 L.Ed.2d 114 (1973). Nor may appellee distinguish the present case from Warren Trading Post by contending that the tax at issue in this case falls upon the seller of goods and not the buyer because it is a tax on the privilege of doing business in Arizona rather than a sales tax. The tax at issue in the present case is precisely the same tax as was involved in Warren Trading Post. The argument made by appellee in the present case was used by the Supreme Court of Arizona in Warren Trading Post to uphold imposition of the tax. Warren Trading Post Co. v. Moore, 95 Ariz. 110, 387 P.2d 809 (1963). Our reversal of that decision recognized that, regardless of the label placed upon this tax, its imposition as to on-reservation sales to Indians could "disturb and disarrange the statutory plan Congress set up in order to protect Indians against prices deemed unfair or unreasonable by the Indian Commission." 380 U.S., at 691, 85 S.Ct., at 1246. See id., at 686, and n. 1, 85 S.Ct., at 1243, and n. 1.
4
In any event, it should be recognized that the transaction at issue in this case was subjected to comprehensive federal regulation. Although appellant was not licensed to engage in trading with Indians, the Bureau of Indian Affairs had approved both the contract of sale for the tractors in question and the tribal budget, which allocated money for the purchase of this machinery.
5
We decline appellee's invitation to re-examine our conclusion in Warren Trading Post, 380 U.S., at 691, n. 18, 85 S.Ct., at 1245, n. 18, that the Buck Act, 4 U.S.C. §§ 105-110, dos not permit States to tax transactions on Indian reservations.
1
As Mr. Justice POWELL observes in his dissenting opinion, 448 U.S. 160, 172, 100 S.Ct. 2599, 2600, 65 L.Ed.2d 684, the Court in Moe v. Salish & Kootenai Tribes, rejected the contention that the Indian trader statutes occupy the field so completely as to pre-empt all state laws affecting those who trade on the reservation with reservation Indians.
2
The Court's construction of the trader statutes, in fact, sweeps far more broadly than their language, no portion of which indicates a congressional intention to immunize anybody from state taxation.
3
"The State also has a legitimate governmental interest in raising revenues, and that interest is likewise strongest when the tax is directed at [economic value created off of the reservation] and when the taxpayer is the recipient of state services." Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 157, 100 S.Ct. 2069, 2083, 65 L.Ed.2d 10.
1
The regulation dealing with itinerant peddlers was promulgated after the decision in Warren Trading Post. See 30 Fed.Reg. 8267 (1965). Thus, the regulations before the Court in Warren Trading Post required all licensed Indian traders to conduct their businesses under the management of a habitual resident upon the reservation. 25 CFR § 251.14 (1958).
2
At oral argument, counsel for Central Machinery conceded that the State could have taxed the transaction in question if it had been completed at the firm's usual place of business. Tr. of Oral Arg. 7. Thus, Central Machinery's argument reduces to the proposition that the locus of the transaction is dispositive. Quite apart from the opportunities for tax evasion that it creates, this position is unsound. Persons who make an unauthorized sale to Indians upon a reservation can be prosecuted. 25 U.S.C. § 264; see United States ex rel. Hornell v. One 1976 Chevrolet Station Wagon, 585 F.2d 978 (CA10 1978). But that certainly does not prove that all persons who make an authorized sale are subject to the pervasive regulation considered in Warren Trading Post.
3
The motor carrier license tax imposed by Ariz.Rev.Stat.Ann. § 40-641 (Supp.1979) is a tax on the privilege of engaging in a business that makes inordinate use of public roads. See Purolator Security, Inc. v. Thorneycroft, 116 Ariz. 394, 396-397, 569 P.2d 824, 826-827 (1977); Campbell v. Commonwealth Plan, Inc., 101 Ariz. 554, 557, 422 P.2d 118, 121 (1966). All revenues from this tax are earmarked for maintenance and improvement of the State's highways. Ariz.Rev.Stat.Ann. § 40-641(C) (Supp.1979). The fuel use excise tax imposed by Ariz.Rev.Stat.Ann. § 28-1551 (Supp.1979) is "for the purpose of partially compensating the state for the use of its highways." § 28-1552 (Supp.1979).
| 12
|
448 U.S. 176
100 S.Ct. 2601
65 L.Ed.2d 696
DAWSON CHEMICAL COMPANY et al., Petitioners,v.ROHM AND HAAS COMPANY.
No. 79-669.
Argued April 21, 1980.
Decided June 27, 1980.
Rehearing Denied Sept. 17, 1980.
See 448 U.S. 917, 101 S.Ct. 40.
Syllabus
Title 35 U.S.C. § 271(c) provides that "[w]hoever sells a component of a patented machine, manufacture, combination or composition, or a material or apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use, shall be liable as a contributory infringer." Section 271(d) provides that "[n]o patent owner otherwise entitled to relief for infringement or contributory infringement of a patent shall be denied relief or deemed guilty of misuse or illegal extension of the patent right by reason of his having done one or more of the following: (1) derived revenue from acts which if performed by another without his consent would constitute contributory infringement of the patent; (2) licensed or authorized another to perform acts which if performed without his consent would constitute contributory infringement of the patent; (3) sought to enforce his patent rights against infringement or contributory infringement." Respondent chemical manufacturer obtained a patent on the method or process for applying propanil, a chemical compound herbicide, to inhibit the growth of undesirable plants in rice crops. Propanil is a nonstaple commodity that has no use except through practice of the patented method. Petitioners manufactured and sold propanil for application to rice crops, with directions to purchasers to apply the propanil in accordance with respondent's patented method. Respondent filed suit in Federal District Court, seeking injunctive relief and alleging that petitioners contributed to infringement of its patent rights by farmers who purchased and used petitioners' propanil and that petitioners induced such infringement by instructing the farmers how to apply the herbicide. Petitioners responded by requesting licenses for the patented method, but when respondent refused to grant licenses, petitioners raised a defense of patent misuse, claiming that there had been misuse because respondent had "tied" the sale of patent rights to the purchase of propanil, an unpatented and unpatentable article, and because it refused to grant licenses to other propanil producers. The District Court granted summary judgment for petitioners on the ground that respondent was barred from obtaining relief against infringers because it had attempted illegally to extend its patent monopoly. The court ruled that the language of § 271(d) specifying conduct that is deemed not to be patent abuse did not encompass the totality of respondent's conduct. The Court of Appeals reversed, holding that, by specifying in § 271(d) conduct that is not to be deemed patent misuse, Congress conferred upon a patentee the right to exclude others and reserve to itself, if it chooses, the right to sell nonstaples used substantially only in its invention, and that since respondent's conduct was designed to accomplish only what the statute contemplated, petitioners' misuse defense was of no avail.
Held: Respondent has not engaged in patent misuse, either by its method of selling propanil, or by its refusal to license others to sell that commodity. Pp. 187-223.
(a) Viewed against the backdrop of judicial precedent involving the doctrines of contributory infringement and patent misuse, the language and structure of § 271 support respondent's contention that, because § 271(d) immunizes its conduct from the charge of patent misuse, it should not be barred from seeking relief against contributory infringement. Section 271(c) identifies the basic dividing line between contributory infringement and patent misuse and adopts a restrictive definition of contributory infringement that distinguishes between staple and nonstaple articles of commerce. Section 271(c)'s limitations on contributory infringement are counterbalanced by the limitations on patent misuse in § 271(d), which effectively confer upon the patentee, as a lawful adjunct of his patent rights, a limited power to exclude others from competition in nonstaple goods. Respondent's conduct is not dissimilar in either nature or effect from the three species of conduct that are expressly excluded by § 271(d) from characterization as misuse. It sells propanil, authorizes others to use it, and sues contributory infringers, all protected activities. While respondent does not license others to sell propanil, nothing on the face of the statute requires it to do so. And, although respondent's linkage of two protected activities—sale of propanil and authorization to practice the patented process—together in a single transaction is not expressly covered by § 271(d), petitioners have failed to identify any way in which such "tying" of two expressly protected activities resdent's contention that, because § 271(d) immunizes its conults in any extension of control over unpatented materials beyond what § 271(d) already allows. Pp. 200-202.
(b) The relevant legislative materials, especially the extensive congressional hearings that led up to the final enactment of § 271 in 1952, reinforce the conclusion that § 271(d) was designed to immunize from the charge of patent misuse behavior similar to that in which respondent has engaged, and that, by enacting §§ 271(c) and (d), Congress granted to patent holders a statutory right to control nonstaple goods that are capable only of infringing use in a patented invention and are essential to that invention's advance over prior art. There is nothing in the legislative history to show that respondent's behavior falls outside § 271(d)'s scope. Pp. 202-215.
(c) The above interpretation of § 271(d) is not foreclosed by decisions in this Court following passage of the 1952 Patent Act. Contrary to petitioners' assertion, this Court in those decisions did not continue to apply the holdings of Mercoid Corp. v. Mid-Continent Investment Co., 320 U.S. 661, 64 S.Ct. 268, 88 L.Ed. 376, and Mercoid Corp. v. Minneapolis-Honeywell Regulator Co., 320 U.S. 680, 64 S.Ct. 278, 88 L.Ed. 396—that even an attempt to control the market for unpatented goods having no use outside a patented invention would constitute patent misuse—and did not effectively construe § 271(d) to codify the result of the Mercoid decisions. The staple-nonstaple distinction supplies the controlling benchmark and ensures that the patentee's right to prevent others from contributorily infringing his patent affects only the market for the invention itself. Aro Mfg. Co. v. Convertible Top Co., 365 U.S. 336, 81 S.Ct. 599, 5 L.Ed.2d 592, and Aro Mfg. Co. v. Convertible Top Co., 377 U.S. 476, 84 S.Ct. 1526, 12 L.Ed.2d 457, distinguished. Pp. 215-220.
599 F.2d 685, affirmed.
Ned L. Conley, Houston, Tex., for petitioners.
Rudolf E. Hutz, Wilmington, Del. (Arthur G. Connolly, Januar D. Bove, Jr., James M. Mulligan, and Connolly, Bove & Lodge, Wilmington, Del., George W. F. Simmons, William E. Lambert, III, Philadelphia, Pa., J. Fay Hall, Jr., Wynnewood, Pa., and James C. Winters, and Winters, Deaton, Briggs & Britton, Houston, Tex., on the brief), for respondent.
Eugene L. Bernard, Washington, D. C., for the National Agricultural Chemicals Association, et al., as amici curiae, by special leave of Court.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
This case presents an important question of statutory interpretation arising under the patent laws. The issue before us is whether the owner of a patent on a chemical process is guilty of patent misuse, and therefore is barred from seeking relief against contributory infringement of its patent rights, if it exploits the patent only in conjunction with the sale of an unpatented article that constitutes a material part of the invention and is not suited for commercial use outside the scope of the patent claims. The answer will determine whether respondent, the owner of a process patent on a chemical herbicide, may maintain an action for contributory infringement against other manufacturers of the chemical used in the process. To resolve this issue, we must construe the various provisions of 35 U.S.C. § 271, which Congress enacted in 1952 to codify certain aspects of the doctrines of contributory infringement and patent misuse that previously had been developed by the judiciary.
2
* The doctrines of contributory infringement and patent misuse have long and interrelated histories. The idea that a patentee should be able to obtain relief against those whose acts facilitate infringement by others has been part of our law since Wallace v. Holmes, 29 F.Cas. 74 (No. 17,100) (CC Conn. 1871). The idea that a patentee should be denied relief against infringers if he has attempted illegally to extend the scope of his patent monopoly is of somewhat more recent origin, but it goes back at least as far as Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U.S. 502, 37 S.Ct. 416, 61 L.Ed. 871 (1917). The two concepts, contributory infringement and patent misuse, often are juxtaposed, because both concern the relationship between a patented invention and unpatented articles or elements that are needed for the invention to be practiced.
3
Both doctrines originally were developed by the courts. But in its 1952 codification of the patent laws Congress endeavored, at least in part, to substitute statutory precepts for the general judicial rules that had governed prior to that time. Its efforts find expression in 35 U.S.C. § 271:
4
"(a) Except as otherwise provided in this title, whoever without authority makes, uses or sells any patented invention, within the United States during the term of the patent therefor, infringes the patent.
5
"(b) Whoever actively induces infringement of a patent shall be liable as an infringer.
6
"(c) Whoever sells a component of a patented machine, manufacture, combination or composition, or a material or apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use, shall be liable as a contributory infringer.
7
"(d) No patent owner otherwise entitled to relief for infringement or contributory infringement of a patent shall be denied relief or deemed guilty of misuse or illegal extension of the patent right by reason of his having done one or more of the following: (1) derived revenue from acts which if performed by another without his consent would constitute contributory infringement of the patent; (2) licensed or authorized another to perform acts which if performed without his consent would constitute contributory infringement of the patent; (3) sought to enforce his patent rights against infringement or contributory infringement."
8
Of particular import to the present controversy are subsections (c) and (d). The former defines conduct that constitutes contributory infringement; the latter specifies conduct of the patentee that is not to be deemed misuse.
A.
9
The catalyst for this litigation is a chemical compound known to scientists as "3, 4-dichloropropionanilide" and referred to in the chemical industry as "propanil." In the late 1950's, it was discovered that this compound had properties that made it useful as a selective, "post-emergence" herbicide particularly well suited for the cultivation of rice. If applied in the proper quantities, propanil kills weeds normally found in rice crops without adversely affecting the crops themselves. It thus permits spraying of general areas where the crops are already growing, and eliminates the necessity for hand weeding or flooding of the rice fields. Propanil is one of several herbicides that are commercially available for use in rice cultivation.
10
Efforts to obtain patent rights to propanil or its use as a herbicide have been continuous since the herbicidal qualities of the chemical first came to light. The initial contender for a patent monopoly for this chemical compound was the Monsanto Company. In 1957, Monsanto filed the first of three successive applications for a patent on propanil itself. After lengthy proceedings in the United States Patent Office, a patent, No. 3,382,280, finally was issued in 1968. It was declared invalid, however, when Monsanto sought to enforce it by suing Rohm and Haas Company (Rohm & Haas), a competing manufacturer, for direct infringement. Monsanto Co. v. Rohm & Haas Co., 312 F.Supp. 778 (ED Pa. 1970), aff'd, 456 F.2d 592 (CA3), cert. denied, 407 U.S. 934, 92 S.Ct. 2463, 32 L.Ed.2d 817 (1972). The District Court held that propanil had been implicitly revealed in prior art dating as far back as 1902, even though its use as a herbicide had been discovered only recently. 312 F.Supp., at 787-790. Monsanto subsequently dedicated the patent to the public, and it is not a party to the present suit.
11
Invalidation of the Monsanto patent cleared the way for Rohm & Haas, respondent here, to obtain a patent on the method of process for applying propanil. This is the patent on which the present lawsuit is founded. Rohm & Haas' efforts to obtain a propanil patent began in 1958. These efforts finally bore fruit when, on June 11, 1974, the United States Patent Office issued Patent No. 3,816,092 (the Wilson patent) to Harold F. Wilson and Dougal H. McRay.1 The patent contains several claims covering a method for applying propanil to inhibit the growth of undesirable plants in areas containing established crops.2 Rohm & Haas has been the sole owner of the patent since its issuance.
12
Petitioners, too, are chemical manufacturers. They have manufactured and sold propanil for application to rice crops since before Rohm & Haas received its patent. They market the chemical in containers on which are printed directions for application in accordance with the method claimed in the Wilson patent. Petitioners did not cease manufacture and sale of propanil after that patent issued, despite knowledge that farmers purchasing their products would infringe on the patented method by applying the propanil to their crops. Accordingly, Rohm & Haas filed this suit, in the United States District Court for the Southern District of Texas, seeking injunctive relief against petitioners on the ground that their manufacture and sale of propanil interfered with its patent rights.
13
The complaint alleged not only that petitioners contributed to infringement by farmers who purchased and used petitioners' propanil, but also that they actually induced such infringement by instructing farmers how to apply the herbicide. See 35 U.S.C. §§ 271(b) and (c). Petitioners responded to the suit by requesting licenses to practice the patented method. When Rohm & Haas refused to grant such licenses, however, petitioners raised a defense of patent misuse and counterclaimed for alleged antitrust violations by respondent. The parties entered into a stipulation of facts, and petitioners moved for partial summary judgment. They argued that Rohm & Haas has misused its patent by conveying the right to practice the patented method only to purchasers of its own propanil.
14
The District Court granted summary judgment for petitioners. 191 USPQ 691 (1976). It agreed that Rohm & Haas was barred from obtaining relief against infringers of its patent because it had attempted illegally to extend its patent monopoly. The District Court recognized that 35 U.S.C. § 271(d) specifies certain conduct which is not to be deemed patent misuse. The court ruled, however, that "[t]he language of § 271(d) simply does not encompass the totality of [Rohm & Haas'] conduct in this case." 191 USPQ, at 704. It held that respondent's refusal to grant licenses, other than the "implied" licenses conferred by operation of law upon purchasers of its propanil, constituted an attempt by means of a "tying" arrangement to effect a monopoly over an unpatented component of the process. The District Court concluded that this conduct would be deemed patent misuse under the judicial decisions that preceded § 271(d), and it held that "[n]either the legislative history nor the language of § 271 indicates that this rule has been modified." 191 USPQ, at 707.3
15
The United States Court of Appeals for the Fifth Circuit reversed. 599 F.2d 685 (1979). It emphasized the fact that propanil, in the terminology of the patent law, is a "nonstaple" article, that is, one that has no commercial use except in connection with respondent's patented invention. After a thorough review of the judicial developments preceding enactment of § 271, and a detailed examination of the legislative history of that provision, the court concluded that the legislation restored to the patentee protection against contributory infringement that decisions of this Court theretofore had undermined. To secure that result, Congress found it necessary to cut back on the doctrine of patent misuse. The Court of Appeals determined that, by specifying in § 271(d) conduct that is not to be deemed misuse, "Congress did clearly provide for a patentee's right to exclude others and reserve to itself, if it chooses, the right to sell nonstaples used substantially only in its invention." 599 F.2d, at 704 (emphasis in original). Since Rohm & Haas' conduct was designed to accomplish only what the statute contemplated, the court ruled that petitioners' misuse defense was of no avail.
16
We granted certiorari, 444 U.S. 1012, 100 S.Ct. 659, 62 L.Ed.2d 640 (1980), to forestall a possible conflict in the lower courts4 and to resolve an issue of prime importance in the administration of the patent law.
B
17
For present purposes certain material facts are not in dispute. First, the validity of the Wilson patent is not in question at this stage in the litigation.5 We therefore must assume that respondent is the lawful owner of the sole and exclusive right to use, or to license others to use, propanil as a herbicide on rice fields in accordance with the methods claimed in the Wilson patent. Second, petitioners do not dispute that their manufacture and sale of propanil together with instructions for use as a herbicide constitute contributory infringement of the Rohm & Haas patent. Tr. of Oral Arg. 14. Accordingly, they admit that propanil constitutes "a material part of [respondent's] invention," that it is "especially made or especially adapted for use in an infringement of [the] patent," and that it is "not a staple article or commodity of commerce suitable for substantial noninfringing use," all within the language of 35 U.S.C. § 271(c).6 They also concede that they have produced and sold propanil with knowledge that it would be used in a manner infringing on respondent's patent rights. To put the same matter in slightly different terms, as the litigation now stands, petitioners admit commission of a tort and raise as their only defense to liability the contention that respondent, by engaging in patent misuse, comes into court with unclean hands.7
18
As a result of these concessions, our chief focus of inquiry must be the scope of the doctrine of patent misuse in light of the limitations placed upon that doctrine by § 271(d). On this subject, as well, our task is guided by certain stipulations and concessions. The parties agree that Rohm & Haas makes and sells propanil; that it has refused to license petitioners or any others to do the same; that it has not granted express licenses either to retailers or to end users of the product; and that farmers who buy propanil from Rohm & Haas may use it, without fear of being sued for direct infringement, by virtue of an "implied license" they obtain when Rohm & Haas relinquishes its monopoly by selling the propanil. See App. 35-39. See also United States v. Univis Lens Co., 316 U.S. 241, 249, 62 S.Ct. 1088, 1092, 86 L.Ed. 1408 (1942); cf. Adams v. Burke, 17 Wall. 453, 21 L.Ed. 700 (1873). The parties further agree that §§ 271(d)(1) and (3) permit respondent both to sell propanil itself and to sue others who sell the same product without a license, and that under § 271(d)(2) it would be free to demand royalties from others for the sale of propanil if it chose to do so.
19
The parties disagree over whether respondent has engaged in any additional conduct that amounts to patent misuse. Petitioners assert that there has been misuse because respondent has "tied" the sale of patent rights to the purchase of propanil, an unpatented and indeed unpatentable article, and because it has refused to grant licenses to other producers of the chemical compound. They argue that § 271(d) does not permit any sort of tying arrangement, and that resort to such a practice excludes respondent from the category of patentees "otherwise entitled to relief" within the meaning of § 271(d). Rohm & Haas, understandably, vigorously resists this characterization of its conduct. It argues that its acts have been only those that § 271(d), by express mandate, excepts from characterization as patent misuse. It further asserts that if this conduct results in an extension of the patent right to a control over an unpatented commodity, in this instance the extension has been given express statutory sanction.
II
20
Our mode of analysis follows closely the trail blazed by the District Court and the Court of Appeals. It is axiomatic, of course, that statutory construction must begin with the language of the statute itself. But the language of § 271 is generic and freighted with a meaning derived from the decisional history that preceded it. The Court of Appeals appropriately observed that more than one interpretation of the statutory language has a surface plausibility. To place § 271 in proper perspective, therefore, we believe that it is helpful first to review in detail the doctrines of contributory infringement and patent misuse as they had developed prior to Congress' attempt to codify the governing principles.
21
As we have noted, the doctrine of contributory infringement had its genesis in an era of simpler and less subtle technology. Its basic elements are perhaps best explained with a classic example drawn from that era. In Wallace v. Holmes, 29 F.Cas. 74 (No. 17,100) (CC Conn.1871), the patentee had invented a new burner for an oil lamp. In compliance with the technical rules of patent claiming, this invention was patented in a combination that also included the standard fuel reservoir, wick tube, and chimney necessary for a properly functioning lamp. After the patent issued, a competitor began to market a rival product including the novel burner but not the chimney. Id., at 79. Under the sometimes scholastic law of patents, this conduct did not amount to direct infringement, because the competitor had not replicated every single element of the patentee's claimed combination. Cf., e. g., Prouty v. Ruggles, 16 Pet. 336, 341, 10 L.Ed. 985 (1842). Yet the court held that there had been "palpable interference" with the patentee's legal rights, because purchasers would be certain to complete the combination, and hence the infringement, by adding the glass chimney. 29 F.Cas., at 80. The court permitted the patentee to enforce his rights against the competitor who brought about the infringement, rather than requiring the patentee to undertake the almost insuperable task of finding and suing all the innocent purchasers who technically were responsible for completing the infringement. Ibid. See also Bowker v. Dows, 3 F.Cas. 1070 (No. 1,734) (CC Mass. 1878).
22
The Wallace case demonstrates, in a readily comprehensible setting, the reason for the contributory infringement doctrine. It exists to protect patent rights from subversion by those who, without directly infringing the patent themselves, engage in acts designed to facilitate infringement by others. This protection is of particular importance in situations, like the oil lamp case itself, where enforcement against direct infringers would be difficult, and where the technicalities of patent law make it relatively easy to profit from another's invention without risking a charge of direct infringement. See Thomson-Houston Electric Co. v. Ohio Brass Co., 80 F. 712, 721 (CA6 1897) (Taft, Circuit Judge); Miller, Some Views on the Law of Patent Infringement by Inducement, 53 J.Pat.Off.Soc. 86, 87-94 (1971).
23
Although the propriety of the decision in Wallace v. Holmes seldom has been challenged, the contributory infringement doctrine it spawned has not always enjoyed full adherence in other contexts. The difficulty that the doctrine has encountered stems not so much from rejection of its core concept as from a desire to delimit its outer contours. In time, concern for potential anticompetitive tendencies inherent in actions for contributory infringement led to retrenchment on the doctrine. The judicial history of contributory infringement thus may be said to be marked by a period of ascendancy, in which the doctrine was expanded to the point where it became subject to abuse, followed by a somewhat longer period of decline, in which the concept of patent misuse was developed as an increasingly stringent antidote to the perceived excesses of the earlier period.
24
The doctrine of contributory infringement was first addressed by this Court in Morgan Envelope Co. v. Albany Paper Co., 152 U.S. 425, 14 S.Ct. 627, 38 L.Ed. 500 (1894). That case was a suit by a manufacturer of a patented device for dispensing toilet paper against a supplier of paper rolls that fit the patented invention. The Court accepted the contributory infringement doctrine in theory but held that it could not be invoked against a supplier of perishable commodities used in a patented invention. The Court observed that a contrary outcome would give the patentee "the benefit of a patent" on ordinary articles of commerce, a result that it determined to be unjustified on the facts of that case. Id., at 433, 14 S.Ct., at 630.
25
Despite this wary reception, contributory infringement actions continued to flourish in the lower courts.8 Eventually the doctrine gained more wholehearted acceptance here. In Leeds & Catlin Co. v. Victor Talking Machine Co., 213 U.S. 325, 29 S.Ct. 503, 53 L.Ed. 816 (1909), the Court upheld an injunction against contributory infringement by a manufacturer of phonograph discs specially designed for use in a patented disc-and-stylus combination. Although the disc itself was not patented, the Court noted that it was essential to the functioning of the patented combination, and that its method of interaction with the stylus was what "mark[ed] the advance upon the prior art." Id., at 330, 29 S.Ct., at 504. It also stressed that the disc was capable of use only in the patented combination, there being no other commercially available stylus with which it would operate. The Court distinguished the result in Morgan Envelope on the broad grounds that "[n]ot one of the determining factors there stated exists in the case at bar," and it held that the attempt to link the two cases "is not only to confound essential distinctions made by the patent laws, but essential differences between entirely different things." 213 U.S., at 335, 29 S.Ct., at 506.
26
The contributory infringement doctrine achieved its high-water mark with the decision in Henry v. A. B. Dick Co., 224 U.S. 1, 32 S.Ct. 364, 56 L.Ed. 645 (1912). In that case a divided Court extended contributory infringement principles to permit a conditional licensing arrangement whereby a manufacturer of a patented printing machine could require purchasers to obtain all supplies used in connection with the invention, including such staple items as paper and ink, exclusively from the patentee. The Court reasoned that the market for these supplies was created by the invention, and that sale of a license to use the patented product, like sale of other species of property, could be limited by whatever conditions the property owner wished to impose. Id., at 31-32, 32 S.Ct., at 373. The A. B. Dick decision and its progeny in the lower courts led to a vast expansion in conditional licensing of patented goods and processes used to control markets for staple and nonstaple goods alike.9
27
This was followed by what may be characterized through the lens of hindsight as an inevitable judicial reaction. In Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U.S. 502, 37 S.Ct. 416, 61 L.Ed. 871 (1917), the Court signalled a new trend that was to continue for years thereafter.10 The owner of a patent on projection equipment attempted to prevent competitors from selling film for use in the patented equipment by attaching to the projectors it sold a notice purporting to condition use of the machine on exclusive use of its film. The film previously had been patented but that patent had expired. The Court addressed the broad issue whether a patentee possessed the right to condition sale of a patented machine on the purchase of articles "which are no part of the patented machine, and which are not patented." Id., at 508, 37 S.Ct., at 417. Relying upon the rule that the scope of a patent "must be limited to the invention described in the claims," id., at 511, 37 S.Ct., at 419, the Court held that the attempted restriction on use of unpatented supplies was improper:
28
"Such a restriction is invalid because such a film is obviously not any part of the invention of the patent in suit; because it is an attempt, without statutory warrant, to continue the patent monopoly in this particular character of film after it has expired, and because to enforce it would be to create a monopoly in the manufacture and use of moving picture films, wholly outside of the patent in suit and of the patent law as we have interpreted it." Id., at 518, 37 S.Ct., at 421.
29
By this reasoning, the Court focused on the conduct of the patentee, not that of the alleged infringer. It noted that as a result of lower court decisions, conditional licensing arrangements had greatly increased, indeed, to the point where they threatened to become "perfect instrument[s] of favoritism and oppression." Id., at 515, 37 S.Ct., at 420. The Court warned that approval of the licensing scheme under consideration would enable the patentee to "ruin anyone unfortunate enough to be dependent upon its confessedly important improvements for the doing of business." Ibid. This ruling was directly in conflict with Henry v. A. B. Dick Co., supra, and the Court expressly observed that that decision "must be regarded as overruled." 243 U.S., at 518, 37 S.Ct., at 421.
30
The broad ramifications of the Motion Picture case apparently were not immediately comprehended, and in a series of decisions over the next three decades litigants tested its limits. In Carbice Corp. v. American Patents Corp., 283 U.S. 27, 51 S.Ct. 334, 75 L.Ed. 819 (1931), the Court denied relief to a patentee who, through its sole licensee, authorized use of a patented design for a refrigeration package only to purchasers from the licensee of solid carbon dioxide ("dry ice"), a refrigerant that the licensee manufactured.11 The refrigerant was a well-known and widely used staple article of commerce, and the patent in question claimed neither a machine for making it nor a process for using it. Id., at 29, 51 S.Ct., at 334. The Court held that the patent holder and its licensee were attempting to exclude competitors in the refrigerant business from a portion of the market, and that this conduct constituted patent misuse. It reasoned:
31
"Control over the supply of such unpatented material is beyond the scope of the patentee's monopoly; and this limitation, inherent in the patent grant, is not dependent upon the peculiar function or character of the unpatented material or on the way in which it is used. Relief is denied because the [licensee] is attempting, without sanction of law, to employ the patent to secure a limited monopoly of unpatented material used in applying the invention." Id., at 33-34, 51 S.Ct., at 336.
32
The Court also rejected the patentee's reliance on the Leeds & Catlin decision. It found "no suggestion" in that case that the owner of the disc-stylus combination patent had attempted to derive profits from the sale of unpatented supplies as opposed to a patented invention. 283 U.S., at 34, 51 S.Ct., at 336.
33
Other decisions of a similar import followed. Leitch Mfg. Co. v. Barber Co., 302 U.S. 458, 58 S.Ct. 288, 82 L.Ed. 371 (1938), found patent misuse in an attempt to exploit a process patent for the curing of cement through the sale of bituminous emulsion, an unpatented staple article of commerce used in the process. The Court eschewed an attempt to limit the rule of Carbice and Motion Picture to cases involving explicit agreements extending the patent monopoly, and it stated the broad proposition that "every use of a patent as a means of obtaining a limited monopoly of unpatented material is prohibited." 302 U.S., at 463, 58 S.Ct., at 290. Morton Salt Co. v. G. S. Suppiger Co., 314 U.S. 488, 492-494, 62 S.Ct. 402, 405-406, 86 L.Ed. 363 (1942), which involved an attempt to control the market for salt tablets used in a patented dispenser, explicitly linked the doctrine of patent misuse to the "unclean hands" doctrine traditionally applied by courts of equity. Its companion case, B. B. Chemical Co. v. Ellis, 314 U.S. 495, 495-498, 62 S.Ct. 406, 406-408, 86 L.Ed. 367 (1942), held that patent misuse barred relief even where infringement had been actively induced, and that practical difficulties in marketing a patented invention could not justify patent misuse.12
34
Although none of these decisions purported to cut back on the doctrine of contributory infringement itself, they were generally perceived as having that effect, and how far the developing doctrine of patent misuse might extend was a topic of some speculation among members of the patent bar. The Court's decisions had not yet addressed the status of contributory infringement or patent misuse with respect to nonstaple goods, and some courts and commentators apparently took the view that control of nonstaple items capable only of infringing use might not bar patent protection against contributory infringement.13 This view soon received a serious, if not fatal, blow from the Court's controversial decisions in Mercoid Corp. v. Mid-Continent Investment Co., 320 U.S. 661, 64 S.Ct. 268, 88 L.Ed. 376 (1944) (Mercoid I ), and Mercoid Corp. v. Minneapolis-Honeywell Regulator Co., 320 U.S. 680, 64 S.Ct. 278, 88 L.Ed. 396 (1944) (Mercoid II ). In these cases, the Court definitely held that any attempt to control the market for unpatented goods would constitute patent misuse, even if those goods had no use outside a patented invention. Because these cases served as the point of departure for congressional legislation, they merit more than passing citation.
35
Both cases involved a single patent that claimed a combination of elements for a furnace heating system. Mid-Continent was the owner of the patent, and Honeywell was its licensee. Although neither company made or installed the furnace system, Honeywell manufactured and sold stoker switches especially made for and essential to the system's operation. The right to build and use the system was granted to purchasers of the stoker switches, and royalties owed the patentee were calculated on the number of stoker switches sold. Mercoid manufactured and marketed a competing stoker switch that was designed to be used only in the patented combination. Mercoid had been offered a sublicense by the licensee but had refused to take one. It was sued for contributory infringement by both the patentee and the licensee, and it raised patent misuse as a defense.
36
In Mercoid I the Court barred the patentee from obtaining relief because it deemed the licensing arrangement with Honeywell to be an unlawful attempt to extend the patent monopoly. The opinion for the Court painted with a very broad brush. Prior patent misuse decisions had involved attempts "to secure a partial monopoly in supplies consumed . . . or unpatented materials employed" in connection with the practice of the invention. None, however, had involved an integral component necessary to the functioning of the patented system. 320 U.S., at 665, 64 S.Ct., at 271. The Court refused, however, to infer any "difference in principle" from this distinction in fact. Ibid. Instead, it stated an expansive rule that apparently admitted no exception:
37
"The necessities or convenience of the patentee do not justify any use of the monopoly of the patent to create another monopoly. The fact that the patentee has the power to refuse a license does not enable him to enlarge the monopoly of the patent by the expedient of attaching conditions to its use. . . . The method by which the monopoly is sought to be extended is immaterial. . . . When the patentee ties something else to his invention, he acts only by virtue of his right as the owner of property to make contracts concerning it and not otherwise. He then is subject to all the limitations upon that right which the general law imposes upon such contracts. The contract is not saved by anything in the patent laws because it relates to the invention. If it were, the mere act of the patentee could make the distinctive claim of the patent attach to something which does not possess the quality of invention. Then the patent would be diverted from its statutory purpose and become a ready instrument for economic control in domains where the anti-trust acts or other laws not the patent statutes define the public policy." Id., at 666, 64 S.Ct., at 271.
38
The Court recognized that its reasoning directly conflicted with Leeds & Catlin Co. v. Victor Talking Machine Co., supra, and it registered disapproval, if not outright rejection, of that case. 320 U.S., at 668, 64 S.Ct., at 272. It also recognized that "[t]he result of this decision, together with those which have preceded it, is to limit substantially the doctrine of contributory infringement." Id., at 669, 64 S.Ct., at 273. The Court commented, rather cryptically, that it would not "stop to consider" what "residuum" of the contributory infringement doctrine "may be left." Ibid.
39
Mercoid II did not add much to the breathtaking sweep of its companion decision. The Court did reinforce, however, the conclusion that its ruling made no exception for elements essential to the inventive character of a patented combination. "However worthy it may be, however essential to the patent, an unpatented part of a combination patent is no more entitled to monopolistic protection than any other unpatented device." 320 U.S., at 684, 64 S.Ct., at 280.
40
What emerges from this review of judicial development is a fairly complicated picture, in which the rights and obligations of patentees as against contributory infringers have varied over time. We need not decide how respondent would have fared against a charge of patent misuse at any particular point prior to the enactment of 35 U.S.C. § 271. Nevertheless, certain inferences that are pertinent to the present inquiry may be drawn from these historical developments.
41
First, we agree with the Court of Appeals that the concepts of contributory infringement and patent misuse "rest on antithetical underpinnings." 599 F.2d, at 697. The traditional remedy against contributory infringement is the injunction. And an inevitable concomitant of the right to enjoin another from contributory infringement is the capacity to suppress competition in an unpatented article of commerce. See, e. g., Thomson-Houston Electric Co. v. Kelsey Electric R. Specialty Co., 72 F. 1016, 1018-1019 (CC Conn. 1896). Proponents of contributory infringement defend this result on the grounds that it is necessary for the protection of the patent right, and that the market for the unpatented article flows from the patentee's invention. They also observe that in many instances the article is "unpatented" only because of the technical rules of patent claiming, which require the placement of an invention in its context. Yet suppression of competition in unpatented goods is precisely what the opponents of patent misuse decry.14 If both the patent misuse and contributory infringement doctrines are to coexist, then, each must have some separate sphere of operation with which the other does not interfere.
42
Second, we find that the majority of cases in which the patent misuse doctrine was developed involved undoing the damage thought to have been done by A. B. Dick. The desire to extend patent protection to control of staple articles of commerce died slowly, and the ghost of the expansive contributory infringement era continued to haunt the courts. As a result, among the historical precedents in this Court, only the Leeds & Catlin and Mercoid cases bear significant factual similarity to the present controversy. Those cases involved questions of control over unpatented articles that were essential to the patented inventions, and that were unsuited for any commercial noninfringing use. In this case, we face similar questions in connection with a chemical, propanil, the herbicidal properties of which are essential to the advance on prior art disclosed by respondent's patented process. Like the record disc in Leeds & Catlin or the stoker switch in the Mercoid cases, and unlike the dry ice in Carbice or the bituminous emulsion in Leitch, propanil is a nonstaple commodity which has no use except through practice of the patented method. Accordingly, had the present case arisen prior to Mercoid, we believe it fair to say that it would have fallen close to the wavering line between legitimate protection against contributory infringement and illegitimate patent misuse.
III
43
The Mercoid decisions left in their wake some consternation among patent lawyers15 and a degree of confusion in the lower courts. Although some courts treated the Mercoid pronouncements as limited in effect to the specific kind of licensing arrangement at issue in those cases, others took a much more expansive view of the decision.16 Among the latter group, some courts held that even the filing of an action for contributory infringement, by threatening to deter competition in unpatented materials, could supply evidence of patent misuse. See, e. g., Stroco Products, Inc. v. Mullenbach, 67 USPQ 168, 170 (SD Cal. 1944). This state of affairs made it difficult for patent lawyers to advise their clients on questions of contributory infringement and to render secure opinions on the validity of proposed licensing arrangements. Certain segments of the patent bar eventually decided to ask Congress for corrective legislation that would restore some scope to the contributory infringement doctrine. With great perseverance, they advanced their proposal in three successive Congresses before it eventually was enacted in 1952 as 35 U.S.C. § 271.
44
The critical inquiry in this case is how the enactment of § 271 affected the doctrines of contributory infringement and patent misuse. Viewed against the backdrop of judicial precedent, we believe that the language and structure of the statute lend significant support to Rhom & Haas' contention that, because § 271 (d) immunizes its conduct from the charge of patent misuse, it should not be barred from seeking relief. The approach that Congress took toward the codification of contributory infringement and patent misuse reveals a compromise between those two doctrines and their competing policies that permits patentees to exercise control over nonstaple articles used in their inventions.
45
Section 271(c) identifies the basic dividing line between contributory infringement and patent misuse. It adopts a restrictive definition of contributory infringement that distinguishes between staple and nonstaple articles of commerce. It also defines the class of nonstaple items narrowly. In essence, this provision places materials like the dry ice of the Carbice case outside the scope of the contributory infringement doctrine. As a result, it is no longer necessary to resort to the doctrine of patent misuse in order to deny patentees control over staple goods used in their inventions.
46
The limitations on contributory infringement written into § 271(c) are counterbalanced by limitations on patent misuse in § 271(d). Three species of conduct by patentees are expressly excluded from characterization as misuse. First, the patentee may "deriv[e] revenue" from acts that "would constitute contributory infringement" if "performed by another without his consent." This provision clearly signifies that a patentee may make and sell nonstaple goods used in connection with his invention. Second, the patentee may "licens[e] or authoriz[e] another to perform acts" which without such authorization would constitute contributory infringement. This provision's use in the disjunctive of the term "authoriz[e]" suggests that more than explicit licensing agreements is contemplated. Finally, the patentee may "enforce his patent rights against . . . contributory infringement." This provision plainly means that the patentee may bring suit without fear that his doing so will be regarded as an unlawful attempt to suppress competition. The statute explicitly states that a patentee may do "one or more" of these permitted acts, and it does not state that he must do any of them.
47
In our view, the provisions of § 271(d) effectively confer upon the patentee, as a lawful adjunct of his patent rights, a limited power to exclude others from competition in nonstaple goods. A patentee may sell a nonstaple article himself while enjoining others from marketing that same good without his authorization. By doing so, he is able to eliminate competitors and thereby to control the market for that product. Moreover, his power to demand royalties from others for the privilege of selling the nonstaple item itself implies that the patentee may control the market for the nonstaple good; otherwise, his "right" to sell licenses for the marketing of the nonstaple good would be meaningless, since no one would be willing to pay him for a superfluous authorization. See Note, 70 Yale L.J. 649, 659 (1961).
48
Rohm & Haas' conduct is not dissimilar in either nature or effect from the conduct that is thus clearly embraced within § 271(d). It sells propanil; it authorizes others to use propanil; and it sues contributory infringers. These are all protected activities. Rohm & Haas does not license others to sell propanil, but nothing on the face of the statute requires it to do so. To be sure, the sum effect of Rohm & Haas' actions is to suppress competition in the market for an unpatented commodity. But as we have observed, in this its conduct is no different from that which the statute expressly protects.
49
The one aspect of Rohm & Haas' behavior that is not expressly covered by § 271(d) is its linkage of two protected activities sale of propanil and authorization to practice the patented process—together in a single transaction. Petitioners vigorously argue that this linkage, which they characterize pejoratively as "tying," supplies the otherwise missing element of misuse. They fail, however, to identify any way in which this "tying" of two expressly protected activities results in any extension of control over unpatented materials beyond what § 271(d) already allows. Nevertheless, the language of § 271(d) does not explicitly resolve the question when linkage of this variety becomes patent misuse. In order to judge whether this method of exploiting the patent lies within or without the protection afforded by § 271(d), we must turn to the legislative history.
B
50
Petitioners argue that the legislative materials indicate at most a modest purpose for § 271. Relying mainly on the Committee Reports that accompanied the "Act to Revise and Codify the Patent Laws" (1952 Act), 66 Stat. 792, of which § 271 was a part, petitioners assert that the principal purpose of Congress was to "clarify" the law of contributory infringement as it had been developed by the courts, rather than to effect any significant substantive change. They note that the 1952 Act undertook the major task of codifying all the patent laws in a single title, and they argue that substantive changes from recodifications are not lightly to be inferred. See United States v. Ryder, 110 U.S. 729, 739-740, 4 S.Ct. 196, 201, 28 L.Ed. 308 (1884). They further argue that, whatever the impact of § 271 in other respects, there is not the kind of "clear and certain signal from Congress" that should be required for an extension of patent privileges. See Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518, 531, 92 S.Ct. 1700, 1708, 32 L.Ed.2d 273 (1972). We disagree with petitioners' assessment. In our view, the relevant legislative materials abundantly demonstrate an intent both to change the law and to expand significantly the ability of patentees to protect their rights against contributory infringement.
51
The 1952 Act was approved with virtually no floor debate. Only one exchange is relevant to the present inquiry. In response to a question whether the Act would effect any substantive changes, Senator McCarran, a spokesman for the legislation, commented that the Act "codif[ies] the patent laws." 98 Cong.Rec. 9323 (1952). He also submitted a statement, which explained that, although the general purpose of the Act was to clarify existing law, it also included several changes taken "[i]n view of decisions of the Supreme Court and others." Ibid. Perhaps because of the magnitude of the recodification effort, the Committee Reports accompanying the 1952 Act also gave relatively cursory attention to its features. Nevertheless, they did identify § 271 as one of the "major changes or innovations in the title." H.R.Rep.No. 1923, 82d Cong., 2d Sess., 5 (1952).17 In explaining the provisions of § 271, the Reports stated that they were intended "to codify in statutory form the principles of contributory infringement and at the same time [to] eliminate . . . doubt and confusion" that had resulted from "decisions of the courts in recent years." Id., at 9. The Reports also commented that §§ 271(b), (c), and (d) "have as their main purpose clarification and stabilization." Ibid.
52
These materials sufficiently demonstrate that the 1952 Act did include significant substantive changes, and that § 271 was one of them.
53
The principal sources for edification concerning the meaning and scope of § 271, however, are the extensive hearings that were held on the legislative proposals that led up to the final enactment. In three sets of hearings over the course of four years, proponents and opponents of the legislation debated its impact and relationship with prior law. Draftsmen of the legislation contended for a restriction on the doctrine of patent misuse that would enable patentees to protect themselves against contributory infringers. Others, including representatives of the Department of Justice, vigorously opposed such a restriction.
54
Although the final version of the statute reflects some minor changes from earlier drafts, the essence of the legislation remained constant. References were made in the later hearings to testimony in the earlier ones.18 Accordingly, we regard each set of hearings as relevant to a full understanding of the final legislative product. Cf., e. g., Schwegmann Bros. v. Calbert Distillers Corp., 341 U.S. 384, 390, 71 S.Ct. 745, 748, 95 L.Ed. 1035 (1951); Transcontinental & Western Air, Inc. v. CAB, 336 U.S. 601, 605-606, n. 6, 69 S.Ct. 756, 758, n. 6, 93 L.Ed. 911 (1949). Together, they strongly reinforce the conclusion that § 271(d) was designed to immunize from the charge of patent misuse behavior similar to that in which the respondent has engaged.
55
1. The 1948 Hearings. The first bill underlying § 271 was H.R. 5988, proposed to the 80th Congress. During the hearings on this bill its origin and purpose were carefully explained. The New York Patent Law Association, which had supervised drafting of the legislation, submitted a prepared memorandum that candidly declared that the purpose of the proposal was to reverse the trend of Supreme Court decisions that indirectly had cut back on the contributory infringement doctrine. Hearings on H.R. 5988, etc., before the Subcommittee on Patents, Trade-Marks, and Copyrights of the House Committee on the Judiciary, 80th Cong., 2d Sess., 4 (1948) (1948 Hearings). The memorandum explained the rationale behind contributory infringement, and it gave as one example of its proper application the protection of a patent for use of a chemical:
56
"[O]ne who supplies a hitherto unused chemical to the public for use in a new method is stealing the benefit of the discovery of the property of this chemical which made the new method possible. To enjoin him from distributing the chemical for use in the new method does not prevent him from doing anything which he could do before the new property of the chemical had been discovered." Ibid.
57
It criticized several decisions, including Leitch and Carbice as well as the two Mercoids, on the ground that together they had effectively excluded such "new-use inventions" from the protections of the patent law. 1948 Hearings, at 4-5. It went on to explain that the proposed legislation was designed to counteract this effect by providing that "the mere use or enforcement of the right to be protected against contributory infringement . . . shall not be regarded as misuse of the patent." Id., at 6. This approach, the memorandum stated, "does away with the ground on which the Supreme Court has destroyed the doctrine of contributory infringement" and "is essential to make the rights against contributory infringers which are revived by the statute practically useful and enforceable." Ibid.
58
Testimony by proponents of the bill developed the same theme. Giles Rich, then a prominent patent lawyer, was one of the draftsmen. He highlighted the tension between the judicial doctrines of contributory infringement and patent misuse. He stated that early patent misuse decisions "seem to us now to have been just," but that "this doctrine has been carried too far—so far that it . . . has practically eliminated from law the doctrine of contributory infringement as a useful legal doctrine." Id., at 9. To illustrate this point, he contrasted the Carbice and Mercoid cases, and noted that the latter had involved an item without any noninfringing use. Because it incorporated a staple-nonstaple distinction in the definition of contributory infringement, Mr. Rich argued that the bill would "correct [the] situation" left by Mercoid "without giving sanction to practices such as those in the Carbice case." 1948 Hearings, at 11.
59
Rich's testimony was followed by that of Robert W. Byerly, another draftsman. He stressed the confusion in which the Mercoid decisions had left the lower courts, and the need for Congress to define the scope of protection against contributory infringement by drawing a clear line between deliberate taking of another's invention and legitimate trade in staple articles of commerce. Id., at 13-16. Byerly discussed the practical difficulties some patentees would encounter if suits against direct infringers were their only option to protect against infringement. Id., at 13-14. He argued that the breadth of the Court's misuse decision in Mercoid I could be discerned from the fact that it "overruled" Leeds & Catlin. 1948 Hearings, at 14. He explained the section of the bill restricting the scope of patent misuse as intended to give the patentee recourse to either or both of two options: "A man can either say, 'you cannot sell the part of my invention to somebody else to complete it,' or he can say, 'yes, you can sell the part of my invention to help others complete it provided you pay me a royalty.' " Id., at 16.
60
The bill attracted opponents as well, some of whom defended the result of the Mercoid decisions.19 In addition, Roy C. Hackley, Jr., Chief of the Patent Section, Department of Justice, made an appearance on behalf of the Department. He took the position that statutory clarification of the scope of contributory infringement was desirable, but he warned Congress against using language that might "permit illegal extension of the patent monopoly." 1948 Hearings, at 69. On this ground he opposed the portion of the proposed bill that included language substantially similar to what is now § 271(d). Ibid.
61
2. The 1949 Hearings. The 1948 bill did not come to a vote, but the patent bar resubmitted its proposal in 1949. Again, there were fairly extensive hearings, with debate, and again Rich led the list of favorable witnesses. He renewed his attempt to explain the legislation in terms of past decisions of this Court. The result in the Carbice case, he argued, was proper because the patentee had tried to interfere with the market in an old and widely used product. On the other hand, he cited the Mercoid cases as examples of a situation where "[t]here is no practical way to enforce that patent, except through a suit for contributory infringement against the party who makes the thing which is essentially the inventive subject matter [and] which, when put into use, creates infringement." Hearings on H.R. 3866 before Subcommittee No. 4 of the House Committee on the Judiciary, 81st Cong., 1st Sess., 11 (1949) (1949 Hearings).
62
To restore the doctrine of contributory infringement where it was most needed, Rich argued, it was essential to restrict pro tanto the judicially created doctrine of patent misuse:
63
"I would like to recall that we are dealing with a problem which involves a conflict between two doctrines, contributory infringement and misuse.
64
"It is crystal clear, when you have thoroughly studied this subject, that the only way you can make contributory infringement operative again as a doctrine, is to make some exceptions to the misuse doctrine and say that certain acts shall not be misuse. Then contributory infringement, which is there all the time, becomes operative again.
65
"Contributory infringement has been destroyed by the misuse doctrine; and to revive it you do not have to do anything with contributory infringement itself. You go back along the same road until you get to the point where you have contributory infringement working for you again." Id., at 13-14.
66
Rich warned against going too far. He took the position that a law designed to reinstate the broad contributory infringement reasoning of Henry v. A. B. Dick Co., 224 U.S. 1, 32 S.Ct. 364, 56 L.Ed. 645 (1912), "would kill itself in time." 1949 Hearings, at 17. The proposed legislation, however, "stopped short of that" and "said that you can control only things like the switches in the Mercoid case, which are especially made or adapted for use in connection with such patent and which are not suitable for actual, commercial, noninfringing use." Ibid.
67
In the 1949 Hearings, the Department of Justice pressed more vigorous opposition to the contributory infringement proposal than it had in 1948. Represented by John C. Stedman, Chief, Legislation and Clearance Section, Antitrust Division, the Department argued that legislation was unnecessary because the Mercoid decisions were correct, because they had not produced as much confusion as the proponents of the new legislation claimed, and because the legislation would produce new interpretative problems. 1949 Hearings, at 50-56. Stedman defended the result of the Mercoid decisions on the ground that marketing techniques employed in those cases were indistinguishable in effect from tying schemes previously considered by the Court. He took the view that the staplenonstaple distinction should be irrelevant for purposes of patent misuse. "If the owner of the patent is using his patent in a way to prevent the sale of unpatented elements, then the misuse doctrine would apply." 1949 Hearings, at 54. Stedman added that the effect of the legislation would be to revive the Leeds & Catlin decision, a result the Department of Justice opposed. 1949 Hearings, at 59. Later in the hearings, he offered several methods of exploiting patent rights that arguably would eliminate the need for the contributory infringement doctrine, and he stated that a suit for contributory infringement could involve patent misuse, even if there were no conditional licensing of patent rights. Id., at 76-77.
68
After Stedman's opening testimony, Rich was recalled for further questioning. Rich agreed with Stedman's assessment of the effect that the legislation would have, but argued that the Justice Department's arguments ignored the bill's limitation of contributory infringement to nonstaple articles. To clarify the effect of the statute, Rich declared:
69
"[I]t is absolutely necessary, to get anywhere in the direction we are trying to go, to make some exception to the misuse doctrine because it is the conflict between the doctrine of contributory infringement and the doctrine of misuse that raises the problem." Id., at 67.
He added:
70
"The exception which we wish to make to the misuse doctrine would reverse the result in the Mercoid case; it would not reverse the result in the Carbice case." Ibid.
71
In response to questioning, Rich agreed that the bill would preserve both the contributory infringement and misuse doctrines as they had existed in this Court's cases prior to the Mercoid decisions. 1949 Hearings, at 68. He asserted that the method by which the patentee's invention was exploited in Mercoid was necessary given the nature of the businesses involved. 1949 Hearings, at 69. When asked whether the proposed legislation would allow that kind of licensing activity, Rich responded with an unqualified "Yes." Ibid.
72
3. The 1951 Hearings. By the time the proposal for a statutory law of contributory infringement and patent misuse was presented to the 82d Congress, the battle lines of the earlier hearings had solidified substantially, and the representatives of the patent bar once again found themselves faced with the formidable opposition of the Department of Justice.
73
In his opening remarks before the 1951 Hearings, Rich reminded the congressional Subcommittee that, as a practical matter, it was necessary to deal with the contributory infringement and the misuse doctrines as a unit "if we are to tackle the problem at all." 1951 Hearings, at 152. He urged on the Subcommittee the need to eliminate confusion in the law left by the Mercoid decisions by drawing a "sensible line" between contributory infringement and patent misuse that would be "in accordance with public policy as it seems to exist today." 1951 Hearings, at 152. Rich also attempted to play down the controversiality of the proposal by arguing that a restrictive definition of contributory infringement had been incorporated into the bill. Id., at 153-154.
74
When questioned about the effect of the bill on present law, Rich replied that it would not extend the contributory infringement doctrine unless "you take the point of view that there is no such things [sic ] as contributory infringement today." Id., at 158. He rejected the suggestion that the legislation would return the law of contributory infringement to the A. B. Dick era, and he reminded the Subcommittee that the law "would not touch the result of the Carbice decision." 1951 Hearings, at 161. Rich concluded his opening testimony with this explanation of subsection (d):
75
"It deals with the misuse doctrine, and the reason it is necessary is that the Supreme Court has made it abundantly clear that there exist in the law today two doctrines, contributory infringement on the one hand, and misuse on the other, and that, where there is a conflict, the misuse doctrine must prevail because of the public interest inherently involved in patent cases.
76
"Other decisions following Mercoid have made it quite clear that at least some courts are going to say that any effort whatever to enforce a patent against a contributory infringer is in itself misuse. . . . Therefore we have always felt—we who study this subject particularly—that to put any measure of contributory infringement into law you must, to that extent and to that extent only, specifically make exceptions to the misuse doctrine, and that is the purpose of paragraph (d).
77
"It goes with, supports, and depends upon paragraph (c)." Id., at 161-162.
78
The Department of Justice, now represented by Wilbur L. Fugate of the Antitrust Division, broadly objected to "writing the doctrine of contributory infringement into the law." Id., at 165. Its most strenuous opposition was directed at what was to become § 271(d). Fugate warned that this provision "would have the effect of wiping out a good deal of the law relating to misuse of patents, particularly with reference to tying-in clauses." Ibid. He repeatedly asserted that the language of subsection (d) was unclear, and that it was impossible to tell how far it would serve to insulate patentees from charges of misuse. See id., at 167-169. But as the Department construed it, the subsection would "seriously impair the doctrine of misuse of patents in favor of the doctrine of contributory infringements." Id., at 168. Fugate would not say that any of the three acts protected by subsection (d) were per se illegal, but he felt that they could become evidence of misuse in some contexts. Id., at 168-169.
79
When Representative Crumpacker challenged Fugate's interpretation of the statute, Fugate replied that Rich had advanced the same construction, and he called upon Rich to say whether he agreed. Id., at 169. The following colloquy then took place:
80
"Mr. RICH: I will agree with [Mr. Fugate's interpretation] to this extent: That as I testified it is necessary to make an exception to misuse to the extent that you revive contributory infringement in paragraph (c), and this whole section (d) is entirely dependent on (c). Where (d) refers to contributory infringement, it only refers to contributory infringement as defined in (c) and nothing more.
81
"Mr. CRUMPACKER: In other words, all it says is that bringing an action against someone who is guilty of contributory infringement is not a misuse of the patent.
82
"Mr. RICH: That is true." Ibid.
83
Rich and Fugate then discussed the law in the courts before and after the Mercoid decisions. In an effort to clarify the intendment of the statute, Congressman Rogers asked Rich to identify misuse decisions exemplifying the acts specified in the three parts of subsection (d). Rich identified the Leitch and Carbice cases as examples of situations where deriving revenue from acts that would be contributory infringement was held to be evidence of misuse; he stated that the Mercoid cases exemplified misuse from licensing others; and he referred to Stroco Products, Inc. v. Mullenbach, supra, as an example of a case where the mere bringing of an action against contributory infringers was found to exemplify misuse. 1951 Hearings, at 174-175. He again reminded the Subcommittee that the scope of subsection (d) was implicitly limited by the restrictive definition of contributory infringement in subsection (c), and he assured the Subcommittee that "[i]f [a patentee] has gone beyond those and done other acts which could be misuse, then the misuse doctrine would be applicable." Id., at 175. As an example of such "other acts," he suggested that a patentee would be guilty of misuse if he tried to license others to produce staple articles used in a patented invention. Ibid.
C
84
Other legislative materials that we have not discussed bear as well on the meaning to be assigned to § 271(d); but the materials that we have culled are exemplary, and they amply demonstrate the intended scope of the statute. It is the consistent theme of the legislative history that the statute was designed to accomplish a good deal more than mere clarification. It significantly changed existing law, and the change moved in the direction of expanding the statutory protection enjoyed by patentees. The responsible congressional Committees were told again and again that contributory infringement would wither away if the misuse rationale of the Mercoid decisions remained as a barrier to enforcement of the patentee's rights. They were told that this was an undesirable result that would deprive many patent holders of effective protection for their patent rights. They were told that Congress could strike a sensible compromise between the competing doctrines of contributory infringement and patent misuse if it eliminated the result of theMercoid decisions yet preserved the result in Carbice. And they were told that the proposed legislation would achieve this effect by restricting contributory infringement to the sphere of nonstaple goods while exempting the control of such goods from the scope of patent misuse. These signals cannot be ignored. They fully support the conclusion that, by enacting §§ 271(c) and (d), Congress granted to patent holders a statutory right to control nonstaple goods that are capable only of infringing use in a patented invention, and that are essential to that invention's advance over prior art.
85
We find nothing in this legislative history to support the assertion that respondent's behavior falls outside the scope of § 271(d).20 To the contrary, respondent has done nothing that would extend its right of control over unpatented goods beyond the line that Congress drew. Respondent, to be sure, has licensed use of its patented process only in connection with purchases of propanil. But propanil is a nonstaple product, and its herbicidal property is the heart of respondent's invention. Respondent's method of doing business is thus essentially the same as the method condemned in the Mercoid decisions, and the legislative history reveals that § 271(d) was designed to retreat from Mercoid in this regard.
86
There is one factual difference between this case and Mercoid : the licensee in the Mercoid cases had offered a sublicense to the alleged contributory infringer, which offer had been refused. Mercoid II, 320 U.S., at 683, 64 S.Ct., at 280. Seizing upon this difference, petitioners argue that respondent's unwillingness to offer similar licenses to its would-be competitors in the manufacture of propanil legally distinguishes this case and sets it outside § 271(d). To this argument, there are at least three responses. First, as we have noted, § 271(d) permits such licensing but does not require it. Accordingly, petitioners' suggestion would import into the statute a requirement that simply is not there. Second, petitioners have failed to adduce any evidence from the legislative history that the offering of a license to the alleged contributory infringer was a critical factor in inducing Congress to retreat from the result of the Mercoid decisions. Indeed, the Leeds & Catlin decision, which did not involve such an offer to license, was placed before Congress as an example of the kind of contributory infringement action the statute would allow. Third, petitioners' argument runs contrary to the long-settled view that the essence of a patent grant is the right to exclude others from profiting by the patented invention. 35 U.S.C. § 154; see Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U.S. 405, 424-425, 28 S.Ct. 748, 753-754, 52 L.Ed. 1122 (1908); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 135, 89 S.Ct. 1562, 1582, 23 L.Ed.2d 129 (1969). If petitioners' argument were accepted, it would force patentees either to grant licenses or to forfeit their statutory protection against contributory infringement. Compulsory licensing is a rarity in our patent system,21 and we decline to manufacture such a requirement out of § 271(d).
IV
87
Petitioners argue, finally, that the interpretation of § 271(d) which we have adopted is foreclosed by decisions of this Court following the passage of the 1952 Act. They assert that in subsequent cases the Court has continued to rely upon the Mercoid decisions, and that it has effectively construed § 271(d) to codify the result of those decisions, rather than to return the doctrine of patent misuse to some earlier stage of development. We disagree.
88
The cases to which petitioners turn for this argument include some that have cited the Mercoid decisions as evidence of a general judicial "hostility to use of the statutorily granted patent monopoly to extend the patentee's economic control to unpatented products." United States v. Loew's, Inc., 371 U.S. 38, 46, 83 S.Ct. 97, 107, 9 L.Ed.2d 11 (1962); see also Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 343-344, 91 S.Ct. 1434, 1450, 28 L.Ed.2d 788 (1971). These decisions were not directly concerned with the doctrine of contributory infringement, and they did not require the Court to evaluate § 271(d) or its impact on the holdings in Mercoid. Like other cases that do not specifically mention those decisions, see, e. g., Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S., at 136, 89 S.Ct., at 1583, they state the general thrust of the doctrine of patent misuse without attending to its specific statutory limitations.
89
In another case, Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518, 92 S.Ct. 1700, 32 L.Ed.2d 273 (1972), the Court dealt only with the scope of direct infringement under § 271(a). The question under consideration was whether a patent is infringed when unpatented elements are assembled into the combination outside the United States. The Court held that such assembly would not have constituted direct infringement prior to the enactment of § 271(a), and it concluded that enactment of the statute effected no change in that regard. The Court cited Mercoid I for the well-established proposition that unless there has been direct infringement there can be no contributory infringement. 406 U.S., at 526, 92 S.Ct., at 1706. Again, the Court did not have occasion to focus on the meaning of § 271(d).
90
The only two decisions that touch at all closely upon the issues of statutory construction presented here are Aro Mfg. Co. v. Convertible Top Co., 365 U.S. 336, 81 S.Ct. 599, 5 L.Ed.2d 592 (1961) (Aro I ), and Aro Mfg. Co. v. Convertible Top Co., 377 U.S. 476, 84 S.Ct. 1526, 12 L.Ed.2d 457 (1964) (Aro II ). These decisions emerged from a single case involving an action for contributory infringement based on the manufacture and sale of a specially cut fabric designed for use in a patented automobile convertible top combination. In neither case, however, did the Court directly address the question of § 271(d)'s effect on the law of patent misuse.
91
The controlling issue in Aro I was whether there had been any direct infringement of the patent. The Court held that purchasers of the specially cut fabric used it for "repair" rather than "reconstruction" of the patented combination; accordingly, under the patent law they were not guilty of infringement. 365 U.S., at 340, 346, 81 S.Ct., at 601, 604. Since there was no direct infringement by the purchasers, the Court held that there could be no contributory infringement by the manufacturer of the replacement tops. This conclusion rested in part on a holding that § 271(c) "made no change in the fundamental precept that there can be no contributory infringement in the absence of a direct infringement." Id., at 341, 81 S.Ct., at 602. It in no way conflicts with our decision.
92
As petitioners observe, Aro I does quote certain passages from the Mercoid decisions standing for the proposition that even single elements constituting the heart of a patented combination are not within the scope of the patent grant. 365 U.S., at 345, 81 S.Ct., at 604. In context, these references to Mercoid are not inconsonant with our view of § 271(d). In the course of its decision, the Court eschewed the suggestion that the legal distinction between "reconstruction" and "repair" should be affected by whether the element of the combination that has been replaced is an "essential" or "distinguishing" part of the invention. 365 U.S., at 344, 81 S.Ct., at 603. The Court reasoned that such a standard would "ascrib[e] to one element of the patented combination the status of patented invention in itself," and it drew from the Mercoid cases only to the extent that they described limitations on the scope of the patent grant. 365 U.S., at 344-345, 81 S.Ct., at 603-604. In a footnote, the Court carefully avoided reliance on the misuse aspect of those decisions. Id., at 344, n. 10, 81 S.Ct., at 604, n. 10. Accordingly, it had no occasion to consider whether or to what degree § 271(d) undermined the validity of the Mercoid patent misuse rationale.22
93
Aro II is a complicated decision in which the Court mustered different majorities in support of various aspects of its opinion. See 377 U.S., at 488, n. 8, 84 S.Ct., at 1533, n. 8. After remand from Aro I, it became clear that the Court's decision in that case had not eliminated all possible grounds for a charge of contributory infringement. Certain convertible top combinations had been sold without valid license from the patentee. Because use of these tops involved direct infringement of the patent, there remained a question whether fabric supplied for their repair might constitute contributory infringement notwithstanding the Court's earlier decision.
94
Aro II decided several questions of statutory interpretation under § 271. First, it held that repair of an unlicensed combination was direct infringement under the law preceding enactment of § 271, and that the statute did not effect any change in this regard. 377 U.S., at 484, 84 S.Ct., at 1531. Like the constructions of § 271(a) in Aro I and Deepsouth Packing Co., this conclusion concerns a statutory provision not at issue in this case.
95
Second, the Court held that supplying replacement fabrics specially cut for use in the infringing repair constituted contributory infringement under § 271(c). The Court held that the specially cut fabrics, when installed in infringing equipment, qualified as nonstaple items within the language of § 271(c), and that supply of similar materials for infringing repair had been treated as contributory infringement under the judicial law that § 271(c) was designed to codify. 377 U.S., at 485-488, 84 S.Ct., at 1531-1533. It also held that § 271(c) requires a showing that an alleged contributory infringer knew that the combination for which his component was especially designed was both patented and infringing. 377 U.S., at 488-491, 84 S.Ct., at 1534. We regard these holdings as fully consistent with our understanding of § 271(c). In any event, since petitioners have conceded contributory infringement for the purposes of this decision, the scope of that subsection is not directly before us.
96
Third, the Court held that the alleged contributory infringer could not avoid liability by reliance on the doctrine of the Mercoid decisions. Although those decisions had cast contributory infringement into some doubt, the Court held that § 271 was enacted "for the express purpose . . . of overruling any blanket invalidation of the [contributory infringement] doctrine that could be found in the Mercoid opinions." 377 U.S., at 492, 84 S.Ct., at 1535. Although our review of the legislative history finds a broader intent, it is not out of harmony with Aro II 's analysis. The Court explicitly noted that a defense of patent misuse had not been pressed. Id., at 491, 84 S.Ct., at 1534. Accordingly, its discussion of legislative history was limited to those materials supporting the observation, sufficient for purposes of the case, that any direct attack on the contributory infringement doctrine in its entirety would be contrary to the manifest purpose of § 271(c). Since the Court in Aro II was not faced with a patent misuse defense, it had no occasion to consider other evidence in the hearings relating to the scope of § 271(d).
97
Finally, in a segment of the Court's opinion that commanded full adherence of only four Justices, 377 U.S., at 493-500, 84 S.Ct., at 1535-1539, it was stated that an agreement in which the patentee had released some purchasers of infringing combinations from liability defeated liability for contributory infringement with respect to replacement of convertible tops after the agreement went into effect. The plurality rejected the patentee's attempt to condition its release by reserving "rights in connection with future sales of replacement fabrics." Id., at 496, 84 S.Ct., at 1537. It relied on the Carbice and Mercoid decisions, as well as United States v. Loew's, Inc., supra, for the proposition that a patentee "cannot impose conditions concerning the unpatented supplies, ancillary materials, or components with which the use [of a patented combination] is to be effected." 377 U.S., at 497, 84 S.Ct., at 1538. This statement is qualified by the circumstances to which it applied. Because the Court already had determined in Aro I that replacement of wornout convertible top fabric constituted a permissible repair of the combination, the agreement sought to control an unpatented article in the context of a noninfringing use. The determination that the agreement defeated liability does not reflect resort to the principles of patent misuse; rather it betokens a recognition that the patentee, once it had authorized use of the combination, could not manufacture contributory infringement by contract where under the law there was none.
98
Perhaps the quintessential difference between the Aro decisions and the present case is the difference between the primary-use market for a chemical process and the replacement market out of which the Aro litigation arose. The repair-reconstruction distinction and its legal consequences are determinative in the latter context, but are not controlling here. Instead, the staple-nonstaple distinction, which Aro I found irrelevant to the characterization of replacements, supplies the controlling benchmark. This distinction ensures that the patentee's right to prevent others from contributorily infringing his patent affects only the market for the invention itself. Because of this significant difference in legal context, we believe our interpretation of § 271(d) does not conflict with these decisions.
V
99
Since our present task is one of statutory construction, questions of public policy cannot be determinative of the outcome unless specific policy choices fairly can be attributed to Congress itself. In this instance, as we have already stated, Congress chose a compromise between competing policy interests. The policy of free competition runs deep in our law. It underlies both the doctrine of patent misuse and the general principle that the boundary of a patent monopoly is to be limited by the literal scope of the patent claims. But the policy of stimulating invention that underlies the entire patent system runs no less deep. And the doctrine of contributory infringement, which has been called "an expression both of law and morals," Mercoid I, 320 U.S., at 677, 64 S.Ct., at 277 (Frankfurter, J., dissenting), can be of crucial importance in ensuring that the endeavors and investments of the inventor do not go unrewarded.
100
It is perhaps, noteworthy that holders of "new use" patents on chemical processes were among those designated to Congress as intended beneficiaries of the protection against contributory infringement that § 271 was designed to restore. See 1948 Hearings, at 4, 5, 18. We have been informed that the characteristics of practical chemical research are such that this form of patent protection is particularly important to inventors in that field. The number of chemicals either known to scientists or disclosed by existing research is vast. It grows constantly, as those engaging in "pure" research publish their discoveries.23 The number of these chemicals that have known uses of commercial or social value, in contrast, is small. Development of new uses for existing chemicals is thus a major component of practical chemical research. It is extraordinarily expensive.24 It may take years of unsuccessful testing before a chemical having a desired property is identified, and it may take several years of further testing before a proper and safe method for using that chemical is developed.25
101
Under the construction of § 271(d) that petitioners advance, the rewards available to those willing to undergo the time, expense, and interim frustration of such practical research would provide at best a dubious incentive. Others could await the results of the testing and then jump on the profit bandwagon by demanding licenses to sell the unpatented, nonstaple chemical used in the newly developed process. Refusal to accede to such a demand, if accompanied by any attempt to profit from the invention through sale of the unpatented chemical, would risk forfeiture of any patent protection whatsoever on a finding of patent misuse. As a result, noninventors would be almost assured of an opportunity to share in the spoils, even though they had contributed nothing to the discovery. The incentive to await the discoveries of others might well prove sweeter than the incentive to take the initiative oneself.
102
Whether such a regime would prove workable, as petitioners urge, or would lead to dire consequences, as respondent and several amici insist, we need not predict. Nor do we need to determine whether the principles of free competition could justify such a result. Congress' enactment of § 271(d) resolved these issues in favor of a broader scope of patent protection. In accord with our understanding of that statute, we hold that Rohm & Haas has not engaged in patent misuse, either by its method of selling propanil, or by its refusal to license others to sell that commodity. The judgment of the Court of Appeals is therefore affirmed.
103
It is so ordered.
104
Mr. Justice WHITE, with whom Mr. Justice BRENNAN, Mr. Justice MARSHALL, and Mr. Justice STEVENS join, dissenting.
105
For decades this Court has denied relief from contributory infringement to patent holders who attempt to extend their patent monopolies to unpatented materials used in connection with patented inventions. The Court now refuses to apply this "patent misuse" principle in the very area in which such attempts to restrain competition are most likely to be successful. The Court holds exempt from the patent misuse doctrine a patent holder's refusal to license others to use a patented process unless they purchase from him an unpatented product that has no substantial use except in the patented process. The Court's sole justification for this radical departure from our prior construction of the patent laws is its interpretation of 35 U.S.C. § 271, a provision that created exceptions to the misuse doctrine and that we have held must be strictly construed "in light of this Nation's historical antipathy to monopoly," Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518, 530, 92 S.Ct. 1700, 1708, 32 L.Ed.2d 273 (1972). The Court recognizes, as it must, that § 271 does not on its face exempt the broad category of nonstaple materials from the misuse doctrine, yet construes it to do so based on what it has gleaned from the testimony of private patent lawyers given in hearings before congressional Committees and from the testimony of Department of Justice attorneys opposing the bill. The Court has often warned that in construing statutes, we should be "extremely wary of testimony before committee hearings and of debates on the floor of Congress save for precise analyses of statutory phrases by the sponsors of the proposed laws." § & E Contractors, Inc. v. United States, 406 U.S. 1, 13, n. 9, 92 S.Ct. 1411, 1418, n. 9, 31 L.Ed.2d 658 (1972). We have expressed similar reservations about statements of the opponents of a bill: "The fears and doubts of the opposition are no authoritative guide to the construction of legislation. It is the sponsors that we look to when the meaning of the statutory words is in doubt." Schwegman Bros. v. Calvert Distillers Corp., 341 U.S. 384, 394-395, 71 S.Ct. 745, 750-751, 95 L.Ed. 1035 (1951). NLRB v. Fruit Packers, 377 U.S. 58, 66, 84 S.Ct. 1063, 1068, 12 L.Ed.2d 129 (1964). Here, nothing in support of the Court's novel construction is to be found in the Committee Reports or in the statements of those Congressmen or Senators sponsoring the bill. The Court focuses only on the opposing positions of nonlegislators, none of which I find sufficient to constitute that "clear and certain signal from Congress" that is required before construing the 1952 Patent Act to extend the patent monopoly beyond pre-existing standards.
106
* All parties to this litigation, as well as the courts below, agree that were it not for § 271(d), respondent's refusal to license the use of its patent except to those who purchase unpatented propanil from it would be deemed patent misuse and would bar recovery from contributory infringement. 599 F.2d 685, 688 (CA5 1979). In a long line of decisions commencing with Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U.S. 502, 37 S.Ct. 416, 61 L.Ed. 871 (1917), this Court has denied recovery to patent holders who attempt to extend their patent monopoly to unpatented materials used in connection with patented inventions. In Motion Picture Patents the Court held that a license to use a patented motion picture projector could not be conditioned on the purchase of unpatented film from the patent holder. The Court emphasized that
107
"the exclusive right granted in every patent must be limited to the invention described in the claims of the patent and that it is not competent for the owner of a patent . . . to, in effect, extend the scope of its patent monopoly by restricting the use of it to materials necessary in its operation but which are no part of the patented invention," id., at 516, 37 S.Ct., at 420.
108
Accordingly, the Court refused to enforce the patent against contributory infringers because "it would be gravely injurious to [the] public interest," which it deemed "more a favorite of the law than is the promotion of private fortunes." Id., at 519, 37 S.Ct., at 421.1
109
The "patent misuse" doctrine, as it came to be known, was further enunciated in Carbice Corp. v. American Patents Development Corp., 283 U.S. 27, 51 S.Ct. 334, 75 L.Ed. 819 (1931). In Carbice the Court unanimously denied relief for contributory infringement where a patentee required users of its combination patent to purchase from its exclusive licensee unpatented material (dry ice) that was an essential component of the patented comnation (a container for transporting frozen goods). The Court acknowledged that the owner of the process patent properly could "prohibit entirely the manufacture, sale, or use of such packages," or "grant licenses upon terms consistent with the limited scope of the patent monopoly" and "charge a royalty or license fee." However, the Court concluded that the patent holder "may not exact as the condition of a license that unpatented materials used in connection with the invention shall be purchased only from the licensor; and if it does so, relief against one who supplies such unpatented materials will be denied." Id., at 31, 51 S.Ct., at 335. The Court deemed immaterial the fact that "the unpatented refrigerant is one of the necessary elements of the patented product," for the patent holder had "no right to be free from competition in the sale of solid carbon dioxide" (dry ice) and "this limitation, inherent in the patent grant, is not dependent upon the peculiar function or character of the unpatented material or on the way in which it is used." Id., at 33, 51 S.Ct., at 336. If the owner of a combination patent were permitted to restrain competition in "unpatented materials used in its manufacture," then "[t]he owner of a patent for a machine might thereby secure a partial monopoly on the unpatented supplies consumed in its operation." Id., at 32, 51 S.Ct., at 335.
110
In Leitch Mfg. Co. v. Barber Co., 302 U.S. 458, 58 S.Ct. 288, 82 L.Ed. 371 (1938), the Court, without dissent, denied relief to the holder of a process patent who licensed only those who purchased from it an unpatented material used in the patented process. Rather than expressly tying the grant of a patent license to purchase of unpatented material the patent holder in Leitch merely sold unpatented materials used in the patented process, thereby granting purchasers an implied license to use the patent. The Court deemed this distinction to be "without legal significance" because "every use of a patent as a means of obtaining a limited monopoly of unpatented material is prohibited." Id., at 463, 58 S.Ct., at 290-291. The Court emphasized that the patent misuse doctrine "applies whatever the nature of the device by which the owner of a patent seeks to effect such unauthorized extension of the monopoly." Ibid.
111
Four years later, the Court, again without dissent, applied the patent misuse doctrine to prohibit recovery against a direct infringer by a patent holder who required purchasers of a patented product to buy from it unpatented material for use in the patented product. Morton Salt Co. v. G. S. Suppiger Co., 314 U.S. 488, 62 S.Ct. 402, 86 L.Ed. 363 (1942). In a companion case the Court denied relief from contributory infringement to a patent holder who licensed only those who purchased from it an unpatented component product specially designed for use in the patented process. B. B. Chemical Co. v. Ellis, 314 U.S. 495, 62 S.Ct. 406, 86 L.Ed. 367 (1942). In B. B. Chemical the lower courts had rejected the patent owner's attempt to distinguish previous patent misuse cases as involving efforts to control the use of staple materials with substantial noninfringing uses. 117 F.2d 829, 834-835 (CA1 1941). This Court affirmed without dissent, holding that the patent misuse doctrine barred relief "in view of petitioner's use of the patent as the means of establishing a limited monopoly in its unpatented materials," B. B. Chemical Co. v. Ellis, supra, 314 U.S., at 497, 62 S.Ct., at 408, and necessarily rejecting petitioner's position that patent misuse was limited to staple products and did not apply when the alleged infringer went beyond selling an unpatented staple material and manufactured and sold materials useful only in the patented construct.2 The Court rejected the patent holder's argument that it should be able to license only purchasers of the unpatented material because this was the only practicable way to exploit its process patent. "The patent monopoly is not enlarged by reason of the fact that it would be more convenient to the patentee to have it so, or because he cannot avail himself of its benefits within the limits of the grant." 314 U.S., at 498, 62 S.Ct., at 408. However, the Court reserved the question whether the patent misuse doctrine would apply if the patent holder also was willing to license manufacturers who did not purchase from it the unpatented material. Ibid.3
112
These decisions established even before this Court's decisions in the Mercoid cases, Mercoid Corp. v. Mid-Continent Investment Co., 320 U.S. 661, 64 S.Ct. 268, 88 L.Ed. 376 (1944) (Mercoid I ), and Mercoid Corp. v. Minneapolis-Honeywell Regulator Co., 320 U.S. 680, 64 S.Ct. 278, 88 L.Ed. 396 (1744) (Mercoid II ), that the patent misuse doctrine would bar recovery by a patent holder who refused to license others to use a patented process unless they purchased from him an unpatented product for use in the process.4 Such conduct was deemed patent misuse because it involved an attempt to extend the patent monopoly beyond the scope of the invention to restrain competition in the sale of unpatented materials. This conduct was deemed misuse regardless of whether it was effected by means of express conditions in patent licenses or by a policy of granting only implied licenses to purchasers of unpatented materials, and even though unpatented materials "tied" to the license had no use other than as an integral part of the patented structure.
II
113
Respondent's conduct in this case clearly constitutes patent misuse under these pre-Mercoid decisions because respondent refuses to license others to use its patented process unless they purchase from it unpatented propanil. The fact that respondent accomplishes this end through the practice of granting implied licenses to those who purchase propanil from it is as devoid of legal significance to alter this conclusion as it was in Leitch Mfg., 302 U.S., at 463, 58 S.Ct., at 290, and B. B. Chemical, 314 U.S., at 498, 62 S.Ct., at 408. Moreover, the fact that propanil is a nonstaple product having no substantial use except in the patented process has been without significance at least sinceB. B. Chemical and only serves to reinforce the conclusion that respondent is attempting to extend the patent monopoly to unpatented materials. Because propanil has no substantial noninfringing use, it cannot be sold without incurring liability for contributory infringement unless the vendor has a license to sell propanil or its vendee has an unconditional license to use the patented process. Respondent's refusal to license those who do not purchase propanil from it thus effectively subjects all competing sellers of propanil to liability for contributory infringement. As the Court recognizes, ante, at 201, if this conduct is not deemed patent misuse, respondent will acquire the ability "to eliminate competitors and thereby to control the market" for propanil even though propanil is unpatented, unpatentable, and in the public domain.5 This would permit an even more complete extension of the patent monopoly to a market for unpatented materials than would result from a patentee's attempts to control sales of staples that have substantial alternative uses outside of the patented process.
III
114
Despite the undoubted exclusionary impact of respondent's conduct on the market for unpatented propanil, the Court holds that such conduct no longer constitutes patent misuse solely because of congressional enactment of 35 U.S.C. § 271. Section 271 is no stranger to this Court. Our previous attempts to construe this statute have been guided by the principle that "we should not expand patent rights by overruling or modifying our prior cases construing the patent statutes, unless the argument for expansion of privilege is based on more than mere inference from ambiguous statutory language." Deepsouth Packing Co. v. Laitram Corp., 406 U.S., at 531, 92 S.Ct., at 1708. "[I]n light of this Nation's historical antipathy to monopoly," we have concluded that "[w]e would require a clear and certain signal from Congress before approving the position of a litigant who, as respondent here, argues that the beachhead of privilege is wider, and the area of public use narrower, than courts had previously thought." Id., at 530, 531, 92 S.Ct., at 1708. These principles are not less applicable to, and should resolve the statutory question presented in, this case, because as the Court concedes, the language of § 271(d) does not itself resolve the question and because nothing in the legislative materials to which the Court is forced to turn furnishes the necessary evidence of congressional intention.6
Section 271(d) provides:
115
"No patent owner otherwise entitled to relief for infringement or contributory infringement of a patent shall be denied relief or deemed guilty of misuse or illegal extension of the patent right by reason of his having done one or more of the following: (1) derived revenue from acts which if performed by another without his consent would constitute contributory infringement of the patent; (2) licensed or authorized another to perform acts which if performed without his consent would constitute contributory infringement of the patent; (3) sought to enforce his patent rights against infringement or contributory infringement."
116
The plain language of § 271(d) indicates that respondent's conduct is not immunized from application of the patent misuse doctrine. The statute merely states that respondent may (1) derive revenue from sales of unpatented propanil, (2) license others to sell propanil, and (3) sue unauthorized sellers of propanil. While none of these acts can be deemed patent misuse if respondent is "otherwise entitled to relief," the statute does not state that respondent may exclude all competitors from the propanil market by refusing to license all those who do not purchase propanil from it. This is the very conduct that constitutes patent misuse under the tradial doctrine; thus the fact that respondent may have engaged in one or more of the acts enumerated in § 271(d) does not preclude its conduct from being deemed patent misuse.
117
The Court of Appeals conceded that the foregoing would be "a plausible construction" of the statutory language, 599 F.2d, at 688,7 yet it chose instead to interpret subsection (d)(1) as granting respondent the "right to exclude others and reserve to itself, if it chooses, the right to sell nonstaples used substantially only in its invention." Id., at 704. The court based this conclusion on the reasoning that "the rights to license another to sell [nonstaple] unpatented items would be rendered worthless if the only right conferred by (d)(1) were the right to sell the item as one competitor among many freely competing." Id., at 703. This reasoning not only ignores the fact that royalties may be collected from competitors selling unpatented nonstaples, who still must obtain licenses from the patentee,8 but it also is fundamentally inconsistent with the congressional policy "to preserve and foster competition" in the sale of unpatented materials, a policy that, as we have recognized, survived enactment of § 271. Deepsouth Packing Co. v. Laitram Corp., supra, at 530, 92 S.Ct., at 1708; Aro Mfg. Co. v. Convertible Top Replacement Co., 365 U.S. 336, 81 S.Ct. 599, 5 L.Ed.2d 592 (1961) (Aro I ); Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U.S. 476, 84 S.Ct. 1526, 12 L.Ed.2d 457 (1964) (Aro II ). Subsection (d)(1) leaves respondent free to "deriv[e] revenue" from sales of propanil without thereby being deemed guilty of patent misuse; but it does not free respondent to derive monopoly profits from the sale of an unpatented product by refusing to license competitors that do not purchase the unpatented product from it.9
118
The Court acknowledges that respondent refused to license others to sell propanil, but it observes that "nothing on the face of the statute requires it to do so." Ante, at 202; cf. ante, at 213-214. As much could be conceded but it would not follow that respondent is absolved from a finding of patent misuse. Section 271(d) does not define conduct that constitutes patent misuse; rather it simply outlines certain conduct that is not patent misuse. Because the terms of the statute are terms of exception, the absence of any express mention of a licensing requirement does not indicate that respondent's refusal to license others is protected by § 271(d). This much seems elementary.10
119
Nor does the legislative history of § 271(d) indicate to me that Congress intended to exempt respondent's conduct from application of the patent misuse doctrine. This Court has already addressed this subject and there is at least a rough consensus on the impetus for the congressional action. In Aro II, supra, at 492, 84 S.Ct., at 1535, we held that "Congress enacted § 271 for the express purpose of reinstating the doctrine of contributory infringement as it had been developed by decisions prior to Mercoid, and of overruling any blanket invalidation of the doctrine that could be found in the Mercoid opinions. See, e. g., 35 U.S.C. §§ 271(c), (d); Hearings [on H.R. 3760 before Subcommittee No. 3 of House Committee on the Judiciary, 82d Cong., 1st Sess.], 159, 161-162; and the Aro I opinions of Mr. Justice BLACK, 365 U.S., at 348-349, and nn. 3-4 [, 81 S.Ct., at 605-606]; Mr. Justice HARLAN, id., at 378, n. 6 [, 81 S.Ct., at 621]; and Mr. Justice BRENNAN, id., at 365-367 [, 81 S.Ct., at 614-615]." As Mr. Justice Black stated in Aro I, § 271(d) "was designed specifically to prevent the Mercoid case from being interpreted to mean that any effort to enforce a patent against a contributory infringer in itself constitutes a forfeiture of patent rights," 365 U.S., at 349, n. 4, 81 S.Ct., at 606, n. 4 (concurring opinion).
120
As these passages indicate, and as all parties agree, the impetus for enactment of § 271 was this Court's decisions in the Mercoid cases. Each case involved a suit by the owner of a combination patent seeking relief for contributory infringement against a company that had sold an unpatented article useful only in connection with the patented combination. Unlike the situation in B. B. Chemical Co. v. Ellis, 314 U.S. 495, 62 S.Ct. 406, 86 L.Ed. 367 (1942), the alleged contributory infringer in each case had refused an offer of a license "to make, use, and sell" components of the combination patent that was not conditioned upon the purchase of unpatented materials. Mid-Continent Investment Co. v. Mercoid Corp., 133 F.2d 803, 810 (CA7 1942); Mercoid II, 320 U.S., at 682-683, 64 S.Ct., at 279-280. Despite their offers to license, this Court denied relief on the grounds that the patentees were misusing their patents to extend the scope of the patent monopoly to unpatented articles useful only in connection with the patents. Mr. Justice Douglas, speaking for the Court in Mercoid I, concluded: "The result of this decision, together with those which have preceded it, is to limit substantially the doctrine of contributory infringement. What residuum may be left we need not stop to consider." 320 U.S., at 669, 64 S.Ct., at 273.
121
In light of the Court's suggestion that the doctrine of contributory infringement might not have survived Mercoid I, there was "[c]onsiderable doubt and confusion as to the scope of contributory infringement," H.R.Rep.No. 1923, 82d Cong., 2d Sess., 9 (1952); S.Rep.No. 1979, 82d Cong., 2d Sess., 8 (1952), U.S.Code Cong. & Admin.News 1952, p. 2402. This confusion was understandable because the Mercoid decisions for the first time had applied the patent misuse doctrine to situation where contributory infringers had refused to accept patent licenses that were not conditioned on the purchase of unpatented materials from the patentee. As was indicated in Aro II, supra, 377 U.S., at 492, 84 S.Ct., at 1535, the express purpose for the legislation was to reinstate the doctrine of contributory infringement that existed prior to Mercoid and to overrule any implication that Mercoid made the mere act of suing for contributory infringement a form of patent misuse.
122
The Court nevertheless follows a course quite at odds with the Court's prior approach to the construction of § 271. Conceding that the language of the section will not itself support its result, the Court turns to the legislative history of the section. It discovers nothing favoring its position in the Committee Reports, the floor debates, or in any materials originating with the legislators who sponsored or managed the bill or who had any other intimate connection with the legislation. The Court is left with the opinions of private patent attorneys as to the meaning of the proposed legislation and with the hearing testimony of representatives of the Department of Justice opposing the bill. We have generally been reluctant to rely on such citations for definitive guidance in construing legislation;11 and we should not do so here, particularly when it means departing from the standards announced in our prior cases for construing the 1952 legislation.
123
However that may be, the testimony of the patent attorneys given in Committee hearings does not support the Court's broad holding that Congress intended to give patent holders complete control over nonstaple materials that otherwise would be in the public domain. Section 271(c) does declare that selling a material or apparatus for use in practicing a patented process, constituting a material part of the invention, knowing that the material or apparatus is especially made or especially adapted for use in an infringement of such patent, is contributory infringement, so long as the material or apparatus is not a staple article or commodity of commerce. Making or selling nonstaples especially made or adapted for use in practicing a patent is contributory infringement; but making or selling staples is not, however useful in practicing a patent.12 But it does not follow that the patentee is never subject to the defense of patent misuse when he seeks to control the sale of a nonstaple used in connection with his patent. Section 271(d) specifies precisely what acts he may perform with respect to the nonstaple and not be guilty of patent misuse. As the principal witness on whom the Court relies explained, these acts were specified as exceptions to what otherwise might have been considered patent misuse under the Mercoid decision. Hearings on H.R. 3760 before Subcommittee No. 3 of the House Committee on the Judiciary, 82d Cong., 1st Sess., 161-162 (1951) (hereinafter 1951 Hearings).
124
The Court offers little to support its position that § 271(d) was intended to put nonstaples completely beyond the reach of the misuse doctrine. Otherwise, § 271(c) could simply have stated that the patentee could have his appropriate remedies against contributory infringement as defined in the section without regard to the defense of patent misuse. Of course, this is precisely the result the Court arrives at, but this extends the exemption far beyond what the Committees were told § 271(d) would effect. Indeed, the representations were that, aside from the exemptions spelled out in § 271(d), a patentee's control of nonstaples would be subject to the doctrine of patent misuse. Ibid.
125
It is also apparent that the private patent attorneys understood the 1952 Act as not destroying the defense of patent misuse but as confining the defense to its pre-Mercoid reach. As I have said, B. B. Chemical denied a patentee relief in connection with a nonstaple article but left open whether the same would be true if licenses were available to but were refused by the alleged infringers. In Mercoid I, as the patentee in that case emphasized in its brief here, Brief for Respondent Mid-Continent Investment Co., O.T. 1943, Nos. 54 and 55, pp. 31, 39, the defendant-infringer had repeatedly refused licenses, but the Court nevertheless held that the misuse defense barred relief. To this extent, § 271 overturned Mercoid and intended to arm the patentee with the power to sue unlicensed contributory infringers selling nonstaple components used in connection with the patented process. But I do not understand the Committee witnesses, when pressed in the 1951 Hearings, to suggest that § 271(d) authorized the patentee to condition the use of his process on purchasing the unpatented material from him and to exclude from the market all other manufacturers or sellers even though they would be willing to pay a reasonable royalty to the patent owner. For example, after listening to the witness, a member of the Committee stated: "In other words, all [§ 271(d)] says is that bringing an action against someone who is guilty of contributory infringement is not a misuse of the patent." The witness's response was: "That is true." 1951 Hearings, at 169.
126
I have no quarrel with this reading of § 271, but such reading falls far short of insulating the patentee from the misuse defense when he refuses licenses to competing manufacturers of an unpatentable nonstaple and conditions use of his patented process on the user's buying the nonstaple from the patentee itself, thereby employing his patent to profit from the manufacture and sale of an article in the public domain. This was patent misuse before Mercoid, and I fail to find convincing evidence in the congressional materials to indicate that Congress intended to overturn the prior law in this respect.13 It is apparent that the Court overstates the legislative record when it says, ante, at 213, that Congress was told not only that contributory infringement would be confined to nonstaples but also that § 271 would exempt the control of such goods from the scope of patent misuse. I find no statement such as this among those quoted or cited by the Court.14
127
I should add that even if the applicability of the patent misuse doctrine to nonstaple materials was not settled until Mercoid, overturning Mercoid where the infringer refused a license, would not resolve the case where, as here, the patentee refuses licenses to others and reserves to itself the entire market for the unpatentable, nonstaple article lying in the public domain. It may be true, as the Court emphasizes, ante, at 197, that the concepts of contributory infringement and patent misuse rest on antithetical foundations, but it does not follow that the price of their coexistence inevitably must be the wholesale suppression of competition in the markets for unpatentable nonstaples.
128
The Court offers reasons of policy for its obvious extension of patent monopoly, but whether to stimulate research and development in the chemical field it is necessary to give patentees monopoly control over articles not covered by their patents is a question for Congress to decide, and I would wait for that body to speak more clearly than it has.
129
Accordingly, I respectfully dissent.
130
Mr. Justice STEVENS, dissenting.
131
This patentee has offered no licenses, either to competing sellers of propanil or to consumers, except the implied license that is granted with every purchase of propanil from it. Thus, every license granted under this patent has been conditioned on the purchase of an unpatented product from the patentee. This is a classic case of patent misuse. As Mr. Justice WHITE demonstrates in his dissenting opinion, nothing in 35 U.S.C. § 271(d) excludes this type of conduct from the well-established misuse doctrine.
132
The Court may have been led into reaching the contrary, and in my view erroneous, conclusion by the particular facts of this case. It appears that it would not be particularly profitable to exploit this patent by granting express licenses for fixed terms to users of propanil or by granting licenses to competing sellers. Under these circumstances, the patent may well have little or no commercial value unless the patentee is permitted to engage in patent misuse. But surely this is not a good reason for interpreting § 271(d) to permit such misuse. For the logic of the Court's holding would seem to justify the extension of the patent monopoly to unpatented "nonstaples" even in cases in which the patent could be profitably exploited without misuse. Thus, for example, it appears that the Court's decision would allow a manufacturer to condition a long-term lease of a patented piece of equipment on the lessee's agreement to purchase tailormade—i. e., nonstaple—supplies or components for use with the equipment exclusively from the patentee. Whether all of the five Members of the Court who have joined today's revision of § 271(d) would apply their "nonstaple" exception in such a case remains to be seen. In all events, I respectfully dissent for the reasons stated in Mr. Justice WHITE's opinion, which I join.
1
The patent was issued to Rohm & Haas as the result of an interference proceeding in the United States Patent Office between Rohm & Haas and Monsanto. In that proceeding the Patent Office decided that Wilson, and not the applicant for the Monsanto patent (Huffman), was actually the first to invent the process for using propanil as a herbicide.
2
The Wilson patent contains several claims relevant to this proceeding. Of these the following are illustrative:
1. "A method for selectively inhibiting growth of undesirable plants in an area containing growing undesirable plants in an established crop, which comprises applying to said area 3, 4-dichloropropionanilide at a rate of application which inhibits growth of said undesirable plants and which does not adversely affect the growth of said established crop."
2. "The method according to claim 1 wherein the 3, 4-dichloropropionanilide is applied in a composition comprising 3, 4-dichloropropionanilide and an inert diluent therefor at a rate of between 0.5 and 6 pounds of 3, 4-dichloropropionanilide per acre." 191 USPQ 691, 695 (SD Tex.1976).
3
The District Court limited its ruling on the motion for partial summary judgment to the question of patent misuse. It admonished that "[n]othing in this ruling should be construed to be determinative" of petitioners' antitrust counterclaims. 191 USPQ, at 707. These counterclaims are based, inter alia, on allegations that Rohm & Haas engaged in coercive marketing practices prior to issuance of the Wilson patent. These charges are not implicated in this appeal, and they remain for development on remand.
4
There is no direct conflict, but a number of decisions exhibit some tension on questions of patent misuse and the scope of 35 U.S.C. § 271(d). Cf., e. g., Ansul Co. v. Uniroyal, Inc., 306 F.Supp. 541, 562 (SDNY 1969), aff'd in part and rev'd in part, 448 F.2d 872 (CA2 1971), cert. denied, sub nom. Uniroyal, Inc. v. Louisville Chemical Co., 404 U.S. 1018, 92 S.Ct. 680, 30 L.Ed.2d 666 (1972); Rohm & Haas Co. v. Roberts Chemicals, Inc., 245 F.2d 693, 699 (CA4 1957); Harte & Co. v. L. E. Carpenter & Co., 138 USPQ 578, 584 (SDNY 1963); Sola Electric Co. v. General Electric Co., 146 F.Supp. 625, 647-648 (ND Ill. 1956). See also Nelson, Mercoid-Type Misuse is Alive, 56 J.Pat.Off.Soc. 134 (1974).
5
In their answers to the complaint, petitioners asserted the invalidity of Rohm & Haas' patent on a variety of grounds. See 599 F.2d 685, 687 (1979). These contentions have not yet been addressed or decided by either the District Court or the Court of Appeals.
6
We follow the practice of the Court of Appeals and the parties by using the term "nonstaple" throughout this opinion to refer to a component as defined in 35 U.S.C. § 271(c), the unlicensed sale of which would constitute contributory infringement. A "staple" component is one that does not fit this definition. We recognize that the terms "staple" and "nonstaple" have not always been defined precisely in this fashion.
7
See Thomson-Houston Electric Co. v. Ohio Brass Co., 80 F. 712, 721 (CA6 1897) (contributory infringement a tort); Morton Salt Co. v. G. S. Suppiger Co., 314 U.S. 488, 492-494, 62 S.Ct. 402, 405-406, 86 L.Ed. 363 (1942) (patent misuse linked to equitable doctrine of "unclean hands").
8
See, e. g., Thomson-Houston Electric Co. v. Kelsey Electric R. Specialty Co., 72 F. 1016 (CC Conn. 1896); American Graphophone Co. v. Amet, 74 F. 789 (CC ND Ill. 1896); Thomson-Houston Electric Co. v. Ohio Brass Co., supra ; Red Jacket Mfg. Co. v. Davis, 82 F. 432, 439 (CA7 1897); American Graphophone Co. v. Leeds, 87 F. 873 (CC SDNY 1898); Wilkins Shoe-Button Fastener Co. v. Webb, 89 F. 982, 996 (CC ND Ohio 1898); Canda v. Michigan Malleable Iron Co., 124 F. 486, 489 (CA6 1903); James Heekin Co. v. Baker, 138 F. 63, 66 (CA8 1905) (Van Devanter, Circuit Judge).
9
See F. Vaughan, Economics of Our Patent System 253-254 (1925) (collecting cases).
10
In addition to this judicial reaction, there was legislative reaction as well. In 1914, partly in response to the decision in Henry v. A. B. Dick Co., 224 U.S. 1, 32 S.Ct. 364, 56 L.Ed. 645 (1912), Congress enacted § 3 of the Clayton Act, 38 Stat. 731, 15 U.S.C. § 14. See International Business Machines Corp. v. United States, 298 U.S. 131, 137-138, 56 S.Ct. 701, 704, 80 L.Ed. 1085 (1936).
11
In a subsequent decision rendered during the same Term, the Court held that the patent itself was invalid because the claimed package had been anticipated by prior art. Carbice Corp. v. American Patents Co., 283 U.S. 420, 51 S.Ct. 496, 75 L.Ed. 1153 (1931).
12
This case arguably involved an application of the misuse doctrine to an attempt to control a nonstaple material. It arose from a suit for infringement of a process patent claiming a method for reinforcing insoles used in shoes. The patentee marketed its patented process in connection with sale of canvas duck that had been precoated with adhesive for use in the patented process. It claimed that suppliers of a rival adhesive-coated duck fabric, suitable for use in the patented method, had both contributed to and induced infringement of the patent. The Court of Appeals found patent misuse. It rejected, inter alia, the patentee's contention that Carbice Corp. v. American Patents Corp., 283 U.S. 27, 51 S.Ct. 334, 75 L.Ed. 819 (1931), and Leitch Mfg. Co. v. Barber Co., 302 U.S. 458, 58 S.Ct. 288, 82 L.Ed. 371 (1938), were inapplicable because the adhesive-coated duck was a nonstaple article. B. B. Chemical Co. v. Ellis, 117 F.2d 829, 834-835 (CA1 1941). The question whether the allegedly nonstaple nature of the item affected the applicability of the Carbice and Leitch standards was presented to this Court on certiorari. See Pet. for Cert. in B. B. Chemical Co. v. Ellis, O.T. 1941, No. 75, p. 10. In the petitioner's brief on the merits, however, the nonstaple character of the item was not pressed as a ground for legal distinction, and respondents argued that the material was not a nonstaple. See Brief for Petitioner, O.T. 1941, No. 75, p. 20; Brief for Respondents, O.T. 1941, No. 75, pp. 11-13. The Court did not mention this question in its brief opinion. In contrast to the dissent, post, at 227-229, we decline in the absence of any articulated reasoning to speculate whether the Court accepted the respondents' view that only a staple commodity was involved, adopted some other position, or, as the failure to discuss Leeds & Catlin Co. v. Victor Talking Machine Co., 213 U.S. 325, 29 S.Ct. 503, 53 L.Ed. 816 (1909), might suggest, simply chose not to address a matter that had not been fully presented. We also disagree with the dissent's attempt, post, at 229, n. 3, to equate the unconditional licenses belatedly proposed by the patentee in B. B. Chemical with the licensing scheme practiced in Mercoid Corp. v. Mid-Continent Investment Co., 320 U.S. 661, 64 S.Ct. 268, 88 L.Ed. 376 (1944), and Mercoid Corp. v. Minneapolis-Honeywell Regulator Co., 320 U.S. 680, 64 S.Ct. 278, 88 L.Ed. 396 (1944). See infra, at 195-197.
13
See, e. g., J. C. Ferguson Mfg. Works v. American Lecithin Co., 94 F.2d 729, 731 (CA1), cert. denied, 304 U.S. 573, 58 S.Ct. 1042, 82 L.Ed. 1537 (1938); Johnson Co. v. Philad Co., 96 F.2d 442, 446-447 (CA9 1938); but see Philad Co. v. Lechler Laboratories, Inc., 107 F.2d 747, 748 (CA2 1939). See also Diamond, The Status of Combination Patents Owned by Sellers of an Element of the Combination, 21 J.Pat.Off.Soc. 843, 849-850 (1939); Thomas, The Law of Contributory Infringement, 21 J.Pat.Off.Soc. 811, 835, 842 (1939).
14
Even in the classic contributory infringement case of Wallace v. Holmes, 29 F.Cas. 74 (No. 17,100) (CC Conn. 1871), the patentee's effort to control the market for the novel burner that embodied his invention arguably constituted patent misuse. If the patentee were permitted to prevent competitors from making and selling that element, the argument would run, he would have the power to erect a monopoly over the production and sale of the burner, an unpatented element, even though his patent right was limited to control over use of the burner in the claimed combination.
15
See, e. g., Mathews, Contributory Infringement and the Mercoid Case, 27 J.Pat.Off.Soc. 260 (1945); Wiles, Joint Trespasses on Patent Property, 30 A.B.A.J. 454 (1944); Wood, The Tangle of Mercoid Case Implications, 13 Geo.Wash.L.Rev. 61 (1944); Comment, 42 Mich.L.Rev. 915 (1944).
16
Compare, e. g., Harris v. National Machine Works, Inc., 171 F.2d 85, 89-90 (CA10 1948), cert. denied, 336 U.S. 905, 69 S.Ct. 491, 93 L.Ed. 1070 (1949); Florence-Mayo Nuway Co. v. Hardy, 168 F.2d 778, 785 (CA4 1948); Aeration Processes, Inc. v. Walter Kidde & Co., 77 F.Supp. 647, 654 (WDNY 1948); Detroit Lubricator Co. v. Toussaint, 57 F.Supp. 837, 838 (ND Ill. 1944); and Hall v. Montgomery Ward & Co., 57 F.Supp. 430, 437-438 (ND W.Va. 1944), with Galion Metallic Vault Co. v. Edward G. Budd Mfg. Co., 169 F.2d 72, 75-76 (CA3), cert. denied, 335 U.S. 859, 69 S.Ct. 132, 93 L.Ed. 405 (1948); Chicago Pneumatic Tool Co. v. Hughes Tool Co., 61 F.Supp. 767, 769 (Del. 1945), aff'd, 156 F.2d 981 (CA3), cert. denied, 329 U.S. 781, 67 S.Ct. 204, 91 L.Ed. 670 (1946); Landis Machinery Co. v. Chaso Tool Co., 141 F.2d 800, 801 (CA6), cert. denied, 323 U.S. 720, 65 S.Ct. 52, 89 L.Ed. 579 (1944); Master Metal Strip Service, Inc. v. Protex Weatherstrip Mfg. Co., 75 USPQ 32, 34-35 (ND Ill. 1947); and Stroco Products, Inc. v. Mullenbach, 67 USPQ 168, 170 (SD Cal. 1944).
17
The House and Senate Committee Reports in their significant parts were identical. See S.Rep.No. 1979, 82d Cong., 2d Sess. (1952) U.S.Code Cong. & Admin.News 1952, p. 2394. We confine the citations in the text, therefore, to the House Report.
18
See, e. g., Hearings on H.R. 3760 before Subcommittee No. 3 of the House Committee on the Judiciary, 82d Cong., 1st Sess., 150-151 (1951) (1951 Hearings) (testimony of Giles Rich).
19
See, e. g., the testimony of I. E. McCabe, Chief Engineer of Mercoid Corp. 1948 Hearings, at 55-59. McCabe also testified at length in the 1949 and 1951 Hearings.
20
Petitioners argue that the exchange in the 1951 Hearings among Representative Crumpacker, Mr. Rich, and Mr. Fugate, see supra, at 210-212, counters our interpretation of the legislative history. They argue that Mr. Fugate initially interpreted § 271(d) to allow tying arrangements, that this construction was rejected by Crumpacker and disavowed by Rich, and that the contention ultimately was dropped by the Department of Justice. Although the relevant passage is not entirely free from doubt, we do not find petitioners' interpretation of it particularly persuasive. Rather, it appears that Fugate initially interpreted the statute to insulate the patentee from any charge of misuse so long as he also engaged in at least one of the practices specified in the statute. See 1951 Hearings, at 167. Representative Crumpacker demurred from this interpretation, and Rich reminded the Subcommittee of the limitation implicitly built into the scope of § 271(d) by the restrictive definition of contributory infringement in § 271(c). 1951 Hearings, at 169. Rich subsequently did state that an attempt to secure a monopoly on "unpatented articles" still would be patent misuse. Id., at 172-173. But in the context of his clarification regarding the scope of subsection (c), his agreement to this proposition appears to be based on an assumption that the unpatented articles referred to were staples of commerce. Taken as a whole, this exchange suggests that § 271(d) would afford no defense to a charge of misuse for an attempt to control staple materials; it does not, in our view, support the further conclusion that an attempt to control nonstaple materials should be subject to the same charge.
21
Compulsory licensing of patents often has been proposed, but it has never been enacted on a broad scale. See, e. g., Compulsory Licensing of Patents under some Non-American Systems, Study of the Subcommittee on Patents, Trademarks, and Copyrights of the Senate Committee on the Judiciary, 85th Cong., 2d Sess., 1, 2 (Comm. Print 1959). Although compulsory licensing provisions were considered for possible incorporation into the 1952 revision of the patent laws, they were dropped before the final bill was circulated. See House Committee on the Judiciary, Proposed Revision and Amendment of the Patent Laws: Preliminary Draft, 81st Cong., 2d Sess., 91 (Comm. Print 1950).
22
In his concurring opinion in Aro I, Mr. Justice Black did address the scope of § 271(d). 365 U.S., at 346, 347-350, 81 S.Ct., at 604, 605-606. His conclusion is inconsistent with today's decision.
23
As of March 1980, the Chemical Registry System maintained by the American Chemical Society listed in excess of 4,848,000 known chemical compounds. The list grows at a rate of about 350,000 per year. The Society estimates that the list comprises between 50% and 60% of all compounds that ever have been prepared. See Brief for American Chemical Society as Amicus Curiae 4-5.
24
For example, the average cost of developing one new pharmaceutical drug has been estimated to run as high as $54 million. Hansen, The Pharmaceutical Development Process: Estimates of Development Costs and Times and the Effects of Proposed Regulatory Changes, in Issues in Pharmaceutical Economics 151, 180 (R. Chien ed. 1979).
25
See Wardell, The History of Drug Discovery, Development, and Regulation, in Issues in Pharmaceutical Economics 1, 8-10 (R. Chien ed. 1979) (describing modern techniques and testing requirements for development of pharmaceuticals). Although testing of chemicals destined for pharmaceutical use may be the most extensive, testing for environmental effects of chemicals used in industrial or agricultural settings also can be both expensive and prolonged. See A. Wechsler, J. Harrison, & J. Neumeyer, Evaluation of the Possible Impact of Pesticide Legislation on Research and Development Activities of Pesticide Manufacturers 18-52 (Environmental Protection Agency, Office of Pesticide Programs, pub. no. 540/9-75-018, 1975). See generally A. Baines, F. Bradbury, & C. Suckling, Research in the Chemical Industry 82-163 (1969).
1
The Court rejected the argument that the licensing scheme was justified because it reduced the cost of the patented invention. The Court noted:
"It is argued as a merit of this system of sale . . . that the public is benefited by the sale of the machine at what is practically its cost and by the fact that the owner of the patent makes its entire profit from the sale of the supplies with which it is operated. This fact, if it be a fact, instead of commending, is the clearest possible condemnation of, the practice adopted, for it proves that under color of its patent the owner intends to and does derive its profit, not from the invention on which the law gives it a monopoly but from the unpatented supplies with which it is used and which are wholly without the scope of the patent monopoly, thus in effect extending the power to the owner of the patent to fix the price to the public of the unpatented supplies as effectively as he may fix the price on the patented machine." 243 U.S., at 517, 37 S.Ct., at 421.
2
The patent involved in B. B. Chemical Co. v. Ellis, covered a process for reinforcing shoe insoles by applying to them strips of reinforcing material coated with an adhesive. Rather than expressly licensing shoe manufacturers to use the patented process, the patentee sold them precoated reinforcing material which had been "slit into strips of suitable width for use by the patented method," 314 U.S., at 496, 62 S.Ct., at 407, thereby granting purchasers implied licenses to use the patent. The patentee argued in the Court of Appeals for the First Circuit that application of the patent misuse doctrine is limited "to those situations in which the alleged contributory infringer supplies staple articles of commerce." 117 F.2d 829, 834 (1941). As the Court of Appeals noted, the patentee "insists that where the articles
supplied are specially manufactured for use in this particular [patented] process, relief is not to be denied the patentee no matter what his course of business." Ibid. The Court of Appeals, expressly agreeing for the Second Circuit and disagreeing with the contrary view of the Court of Appeals for the Ninth Circuit, rejected this view. It noted: "The language of [Leitch Mfg. Co. v. Barber Co., 302 U.S. 458, 58 S.Ct. 288, 82 L.Ed. 371 (1938), and Carbice Corp. v. American Patents Development Corp., 283 U.S. 27, 51 S.Ct. 334, 75 L.Ed. 819 (1931),] is extremely comprehensive and is by no means restricted to staple articles. . . . There is every indication that the Carbice and Leitch cases apply to specially designed non-patented articles. . . . [T]he emphasis is on the fact that the articles sold by the alleged contributory infringers were not covered by the plaintiff's patent although it conducted its business as though they were." Id., at 834-835.
The patentee-petitioner purse-nonstaple distinction in its petition for certiorari, arguing that the patent misuse principle of Carbice Corp. v. American Patents Development Corp., supra, and Leitch Mfg. Co. v. Barber Co., supra, should not bar relief because the unpatented materials furnished by the defendants were not "staple articles of commerce" but rather were "especially designed and prepared for use in the process of the patent." Pet. for Cert., O.T. 1941, No. 75, p. 10. It also noted the conflict among the Courts of Appeals with respect to nonstaples and patent misuse and urged that certiorari be granted on this basis. The Court granted certiorari, and the Court of Appeals was affirmed over petitioner's arguments that the patent misuse doctrine should not bar relief when the defendant did more than make and sell an unpatented staple. Brief for Petitioner, O.T. 1941, No. 75, pp. 21-22. Petitioner's brief also called attention to the conflict in the cases, id., at 36-37, and both respondents and the United States as amicus curiae argued that nonstaples, as well as staples, were subject to the misuse doctrine. Brief for Respondents, O.T. 1941, No. 75, pp. 11-12; Brief for United States as Amicus Curiae, O.T. 1941, No. 75, pp. 12-13. The issue was plainly not abandoned and was part and parcel of petitioner's argument that defendant went beyond selling a staple by manufacturing and selling materials expressly designed for and usable only as part of the patented use. The argument was rejected on the authority of the companion case, Morton Salt Co. v. G. S. Suppiger Co., 314 U.S. 488, 62 S.Ct. 402, 86 L.Ed. 363 (1942).
3
Two years after B. B. Chemical, in Mercoid Corp. v. Mid-Continent Investment Co., 320 U.S. 661, 64 S.Ct. 268, 88 L.Ed. 376 (1944), and Mercoid Corp. v. Minneapolis-Honeywell Regulator Co., 320 U.S. 680, 64 S.Ct. 278, 88 L.Ed. 396 (1944), the Court was confronted with the question reserved in B. B. Chemical : whether the patent misuse doctrine would apply to a patent holder whose offers to license contributory infringers had been refused.
4
Although the Court is willing to concede that B. B. Chemical "arguably involved an application of the misuse doctrine to an attempt to control a nonstaple material," ante, at 194, n. 12, it subsequently states that "among the historical precedents in this Court, only . . . Leeds & Catlin [Co. v. Victor Talking Machine Co., 213 U.S. 325, 29 S.Ct. 503, 53 L.Ed. 816 (1909),] and [the] Mercoid cases bear significant factual similarity to the present controversy." Ante, at 198. The latter statement is particularly puzzling because B. B. Chemical, like this case, involved a patentee's initial refusal to license others to sell nonstaples, while Mercoid, unlike this case, involved a contributory infringer's refusal to accept proffered licenses.
Moreover, the Court implies, ante, at 195, n. 13, that until Mercoid, there was division in the Courts of Appeals with regard to whether the patent misuse doctrine applied to patentees attempting to control nonstaple items. Yet all of the authorities the Court cites are pre-B. B. Chemical, and it is apparent that in B. B. Chemical as in Mercoid, the Court treated staple and nonstaple materials alike insofar as patent misuse was concerned. It is especially interesting that the Court cites J. C. Ferguson Works v. American Lecithin Co., 94 F.2d 729, 731 (CA1), cert. denied, 304 U.S. 573, 58 S.Ct. 1042, 82 L.Ed. 1537 (1938), as a decision supporting the inapplicability of the misuse doctrine to efforts to control nonstaples. That case was a decision by the Court of Appeals for the First Circuit, and the same Court of Appeals in B. B. Chemical expressly indicated that its decision in J. C. Ferguson did not imply that the patent misuse doctrine was inapplicable to a patentee's efforts to control nonstaples. 117 F.2d, at 834-835. In B. B. Chemical the Court of Appeals held that the patent misuse doctrine applied to nonstaples as well as staples, and this Court affirmed.
5
Respondent's efforts to use its process patent to exclude, in effect, propanil from the public domain are particularly ironic because in prior litigation respondent successfully maintained, when sued for infringement, that propanil was unpatentable for lack of novelty. Monsanto Co. v. Rohm & Haas Co., 456 F.2d 592 (CA3 1972).
6
Although the Court acknowledges that we previously have construed § 271, ante, at 215-220, it ignores the principles of statutory construction followed in those cases apparently because the cases did not involve the precise question presented in this case. The Court fails to explain, however, why the need for "a clear and certain signal from Congress" is any less urgent in this case.
7
The Court of Appeals noted not only that petitioner's interpretation of § 271 was "plausible," but also that it is supported by numerous commentators, that "the legislative history [of § 271] is not crystal clear," and that this Court's subsequent construction of § 271 "cut against" its reading of the statute. 599 F.2d, at 688, 703, 705-706, and n. 29.
8
Because respondent may collect royalties on these licenses, the right to license competing sellers of propanil is not without economic value. In any event, even if it is more efficient or more profitable for respondent to collect its returns by exacting monopoly profits from the sale of propanil, this does not justify extension of the patent monopoly to the market for unpatented materials. B. B. Chemical Co. v. Ellis, 314 U.S., at 498, 62 S.Ct., at 408; see n. 1, supra.
9
Like the Court of Appeals, this Court concludes that, despite the silence of the statutory language, § 271(d) must "effectively confer upon the patentee, as a lawful adjunct of his patent rights, a limited power to exclude others from competition in nonstaple goods." Ante, at 201. While it recognizes the anticompetitive impact of such a holding, the Court bases its conclusion on the assertion that the patentee's "power to demand royalties from others for the privilege of selling the nonstaple items itself implies that the patentee may control the market for the nonstaple good; otherwise, his 'right' to sell licenses for the marketing of the nonstaple good would be meaningless, since no one would be willing to pay him for a superfluous authorization." Ibid. I fail to see, however, why a license to practice a patented process would in any sense be "superfluous," for, as I have said, competitors selling propanil would still be required to obtain patent licenses from respondent. The fact that royalties could be collected on such licenses might have some effect on the propanil market, but it does not follow that respondent may refuse to grant any licenses, thereby excluding all competitors from the propanil market.
10
The fact that respondent may not refuse to license competing sellers of propanil who do not purchase the product from it is not inconsistent with the notion that a patent holder is free to suppress his invention or to reserve it entirely to himself. Respondent may discontinue all sales of propanil and all licensing of its patented process and yet itself continue to use propanil in the patented process without being guilty of patent misuse. But it may not sell propanil to others, thus granting them patent licenses by operation of law, while refusing to license competing sellers of propanil, thus effectively excluding them from the market.
11
§ & E Contractors, Inc. v. United States, 406 U.S. 1, 13, n. 9, 92 S.Ct. 1411, 1418, n. 9, 31 L.Ed.2d 658 (1972).
12
Section 271(c)'s limitation of the contributory infringement doctrine to sales of nonstaples does not establish that the exemptions contained in § 271(d) are relevant only to infringement actions against sellers of nonstaples, for § 271(d) is equally applicable to infringement actions brought under § 271(b).
13
The fact that § 271 was not intended to work a major repeal of the patent misuse doctrine is reflected in the treatment the legislation received on the floor of the House and Senate. As the Court of Appeals recognized, there was no debate on the House floor and scant comment in the Senate. Just prior to the Senate vote, Senator McCarran, chairman of the Judiciary Committee that had been responsible for the bill in the Senate, was asked by Senator Saltonstall: "Does the bill change the law in any way or only codify the present patent laws?" Senator McCarran replied: "It codifies the present patent laws." 98 Cong.Rec. 9323 (1952). Although Senator McCarran later referred to the desire to clarify confusion that may have arisen from Mercoid, there was no indication that the legislation would work a major repeal of the patent misuse doctrine.
14
The Justice Department's opposition to congressional enactment of § 271 does not indicate that the statute was intended to immunize respondent's conduct in this case. "[W]e have often cautioned against the danger, when interpreting a statute, of reliance upon the views of its legislative opponents. In their zeal to defeat a bill, they understandably tend to overstate its reach." NLRB v. Fruit Packers, 377 U.S. 58, 66, 84 S.Ct. 1063, 1068, 12 L.Ed.2d 129 (1964).
| 78
|
448 U.S. 261
100 S.Ct. 2647
65 L.Ed.2d 757
Halley I. THOMAS, Petitioner,v.WASHINGTON GAS LIGHT COMPANY et al.
No. 79-116.
Argued March 19, 1980.
Decided June 27, 1980.
Syllabus
Petitioner, a resident of the District of Columbia, received an award of disability benefits from the Virginia Industrial Commission under the Virginia Workmen's Compensation Act for injuries received in Virginia while employed by respondent employer (hereafter respondent), which was principally located in the District of Columbia, where petitioner was hired. Subsequently, petitioner received a supplemental award under the District of Columbia Workmen's Compensation Act over respondent's contention that since, as a matter of Virginia law, the Virginia award excluded any other recovery "at common law or otherwise" on account of the injury in Virginia, the District of Columbia's obligation to give that award full faith and credit precluded a second, supplemental award in the District. The administrative order upholding the supplemental award was reversed by the Court of Appeals, which held that the award was precluded by the Full Faith and Credit Clause.
Held : The judgment is reversed, and the case is remanded. Pp. 266-286; 286-290.
4 Cir., 598 F.2d 617, reversed and remanded.
1
Mr. Justice STEVENS, joined by Mr. Justice BRENNAN, Mr. Justice STEWART, and Mr. Justice BLACKMUN, concluded that the Full Faith and Credit Clause does not preclude successive workmen's compensation awards, since a State has no legitimate interest within the context of the federal system in preventing another State from granting a supplemental compensation award when that second State would have had the power, as here, to apply its workmen's compensation law in the first instance. Pp. 266-286.
2
(a) The rule of Industrial Comm'n of Wisconsin v. McCartin, 330 U.S. 622, 67 S.Ct. 886, 91 L.Ed. 1140, authorizing a State, by drafting or construing its workmen's compensation statute in "unmistakable language," directly to preclude a compensation award in another State, represents an unwarranted delegation to the States of this Court's responsibility for the final arbitration of full faith and credit questions. To vest the power of determining such extraterritorial effect in the State itself risks the very kind of parochial entrenchment on the interests of other States that it was the purpose of the Full Faith and Credit Clause and other provisions of Art. IV to prevent. A re-examination of McCartin § "unmistakable language" test reinforces the conclusion that it does not provide an acceptable basis on which to distinguishMagnolia Petroleum Co. v. Hunt, 320 U.S. 430, 64 S.Ct. 208, 88 L.Ed. 149, wherein it was held that the Full Faith and Credit Clause precluded an employee, who received a workmen's compensation award for injuries received in one State, from seeking supplementary compensation in another State where he had been hired. Pp. 266-272.
3
(b) In view, however, of the history of subsequent state cases showing that they overwhelmingly followed McCartin and applied the "unmistakable language" test in permitting successive workmen's compensation awards, the principal values underlying the doctrine of stare decisis would not be served by attempting either to revive Magnolia or to preserve the coexistence of Magnolia and McCartin. The latter attempt could only breed uncertainty and unpredictability, since the application of the "unmistakable language" rule necessarily depends on a determination by one state tribunal of the effect to be given to statutory language enacted by the legislature of a different State. And the former would represent a change that would not promote stability in the law. Moreover, since Magnolia has been so rarely followed, there is little danger that there has been any significant reliance on its rule. Hence, a fresh examination of the full faith and credit issue is appropriate. Pp. 272-277.
4
(c) Since petitioner could have sought a compensation award in the first instance in either Virginia or the District of Columbia even if one statute or the other purported to confer an exclusive remedy, respondent and its insurer, for all practical purposes, would have had to measure their potential liability exposure by the more generous of the two workmen's compensation schemes. It follows that a State's interest in limiting the potential liability of businesses within the State is not of controlling importance. Moreover, the state interest in providing adequate compensation to the injured worker would be fully served by the allowance of successive awards. Pp. 277-280.
5
(d) With respect to whether Virginia's interest in the integrity of its tribunal's determinations precludes a supplemental award in the District of Columbia, the critical differences between a court of general jurisdiction and an administrative agency with limited statutory authority foreclose the conclusion that constitutional rules applicable to court judgments are necessarily applicable to workmen's compensation awards. The Virginia Industrial Commission, although it could establish petitioner's rights under Virginia law, neither could nor purported to determine his rights under District of Columbia law. Full faith and credit must be given to the determination that the Commission had the authority to make but need not be given to determinations that it had no power to make. Since it was not requested, and had no authority, to pass on petitioner's rights under District of Columbia law, there can be no constitutional objection to a fresh adjudication of those rights. While Virginia had an interest in having respondent pay petitioner the amounts specified in its award, allowing a supplementary recovery in the District of Columbia does not conflict with that interest. And whether or not petitioner sought an award from the less generous jurisdiction in the first instance, the vindication of that State's interest in placing a ceiling on employers' liability would inevitably impinge upon the substantial interests of the second jurisdiction in the welfare and subsistence of disabled workers—interests that a court of general jurisdiction might consider, but which must be ignored by the Virginia Industrial Commission. Pp. 280-285.
6
Mr. Justice WHITE, joined by Mr. Chief Justice BURGER and Mr. Justice POWELL, concluded that the Virginia Workmen's Compensation Act lacks the "unmistakable language" which McCartin, supra, requires if a workmen's compensation award is to preclude a subsequent award in another State. P. 289-290.
7
James F. Green, Washington, D. C., for petitioner.
8
Alan I. Horowitz, Washington, D. C., for federal respondent supporting petitioner, pro hac vice, by special leave of Court.
9
Kevin Jeffrey Baldwin, Washington, D. C., for respondent Washington Gas Light Company.
10
Mr. Justice STEVENS announced the judgment of the Court and delivered an opinion, in which Mr. Justice BRENNAN, Mr. Justice STEWART, and Mr. Justice BLACKMUN joined.
11
Petitioner received an award of disability benefits under the Virginia Workmen's Compensation Act. The question presented is whether the obligation of the District of Columbia to give full faith and credit to that award1 bars a supplemental award under the District's Workmen's Compensation Act.2
12
Petitioner is a resident of the District of Columbia and was hired in the District of Columbia. During the year that he was employed by respondent, he worked primarily in the District but also worked in Virginia and Maryland. He sustained a back injury while at work in Arlington, Va., on January 22, 1971. Two weeks later he entered into an "Industrial Commission of Virginia Memorandum of Agreement as to Payment of Compensation" providing for benefits of $62 per week. Several weeks later the Virginia Industrial Commission approved the agreement and issued its award directing that payments continue "during incapacity," subject to various contingencies and changes set forth in the Virginia statute. App. 49.
13
In 1974, petitioner notified the Department of Labor of his intention to seek compensation under the District of Columbia Act. Respondent opposed the claim primarily3 on the ground that since, as a matter of Virginia law, the Virginia award excluded any other recovery "at common law or otherwise" on account of the injury in Virginia,4 the District of Columbia's obligation to give that award full faith and credit precluded a second, supplemental award in the District.
14
The Administrative Law Judge agreed with respondent that the Virginia award must be given res judicata effect in the District to the extent that it was res judicata in Virginia.5 He held, however, that the Virginia award, by its terms, did not preclude a further award of compensation in Virginia.6 Moreover, he construed the statutory prohibition against additional recovery "at common law or otherwise" as merely covering "common law and other remedies under Virginia law."7 After the taking of medical evidence, petitioner was awarded permanent total disability benefits payable from the date of his injury with a credit for the amounts previously paid under the Virginia award. Id., at 31.
15
The Benefits Review Board upheld the award. 9 BRBS 760 (1978). Its order, however, was reversed by the United States Court of Appeals for the Fourth Circuit, judgment order reported at 598 F.2d 617,8 which squarely held that a "second and separate proceeding in another jurisdiction upon the same injury after a prior recovery in another State [is] precluded by the Full Faith and Credit Clause."9 We granted certiorari, 444 U.S. 962, 100 S.Ct. 447, 62 L.Ed.2d 374, and now reverse.
16
* Respondent contends that the District of Columbia was without power to award petitioner additional compensation because of the Full Faith and Credit Clause of the Constitution or, more precisely, because of the federal statute implementing that Clause.10 An analysis of this contention must begin with two decisions from the 1940's that are almost directly on point: Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 64 S.Ct. 208, 88 L.Ed. 149, and Industrial Comm'n of Wisconsin v. McCartin, 330 U.S. 622, 67 S.Ct. 886, 91 L.Ed. 1140.
17
In Magnolia, a case relied on heavily both by respondent and the Court of Appeals, the employer hired a Louisiana worker in Louisiana. The employee was later injured during the course of his employment in Texas. A tenuous majority11 held that Louisiana was not permitted to award the injured worker supplementary compensation under the Louisiana Act after he had already obtained a recovery from the Texas Industrial Accident Board:
18
"Respondent was free to pursue his remedy in either state but, having chosen to seek it in Texas, where the award was res judicata, the full faith and credit clause precludes him from again seeking a remedy in Louisiana upon the same grounds." 320 U.S., at 444, 64 S.Ct., at 216.
19
Little more than three years later, the Court severely curtailed the impact of Magnolia. In McCartin, the employer and the worker both resided in Illinois and entered into an employment contract there for work to be performed in Wisconsin. The employee was injured in the course of that employment. He initially filed a claim with the Industrial Commission of Wisconsin. Prior to this Court's decision in Magnolia, the Wisconsin Commission informed him that under Wisconsin law, he could proceed under the Illinois Workmen's Compensation Act, and then claim compensation under the Wisconsin Act, with credit to be given for any payments made under the Illinois Act. Thereafter, the employer and the employee executed a contract for payment of a specific sum in full settlement of the employee's right under Illinois law. The contract expressly provided, however, that it would " 'not affect any rights that applicant may have under the Workmen's Compensation Act of the State of Wisconsin.' " 330 U.S., at 624, 67 S.Ct., at 888. The employee then obtained a supplemental award from the Wisconsin Industrial Commission; but the Wisconsin state courts vacated it under felt compulsion of the intervening decision in Magnolia.
20
This Court reversed, holding without dissent12 that Magnolia was not controlling. Although the Court could have relied exclusively on the contract provision reserving the employee's rights under Wisconsin law to distinguish the case from Magnolia, Mr. Justice Murphy's opinion provided a significantly different ground for the Court's holding when it said:
21
"[T]he reservation spells out what we believe to be implicit in [the Illinois Workmen's Compensation] Act—namely, that an . . . award of the type here involved does not foreclose an additional award under the laws of another state. And in the setting of this case, that fact is of decisive significance." 330 U.S., at 630, 67 S.Ct., at 890.
22
Earlier in the opinion, the Court had stated that "[o]nly some unmistakable language by a state legislature or judiciary would warrant our accepting . . . a construction" that a workmen's compensation statute "is designed to preclude any recovery by proceedings brought in another state." Id., at 627-628, 67 S.Ct., at 889. The Illinois statute, which the Court held not to contain the "unmistakable language" required to preclude a supplemental award in Wisconsin, broadly provided:
23
" 'No common law or statutory right to recover damages for injury or death sustained by any employe while engaged in the line of his duty as such employe, other than the compensation herein provided, shall be available to any employe who is covered by the provisions of this act, . . .' " Id., at 627, 67 S.Ct., at 889.
24
The Virginia Workmen's Compensation Act's exclusive-remedy provision, see n. 4, supra, is not exactly the same as Illinois'; but it contains no "unmistakable language" directed at precluding a supplemental compensation award in another State that was not also in the Illinois Act. Consequently, McCartin by its terms, rather than the earlier Magnolia decision, is controlling as between the two precedents. Nevertheless, the fact that we find ourselves comparing the language of two state statutes, neither of which has been construed by the highest court of either State, in an attempt to resolve an issue arising under the Full Faith and Credit Clause makes us pause to inquire whether there is a fundamental flaw in our analysis of this federal question.
II
25
We cannot fail to observe that, in the Court's haste to retreat from Magnolia,13 it fashioned a rule that clashes with normally accepted full faith and credit principles. It has long been the law that "the judgment of a state court should have the same credit, validity, and effect, in every other court in the United States, which it had in the state where it was pronounced." Hampton v. McConnel, 3 Wheat. 234, 235, 4 L.Ed. 378 (Marshall, C. J.). See also Mills v. Duryee, 7 Cranch 481, 484, 3 L.Ed. 411 (Story, J.). This rule, if not compelled by the Full Faith and Credit Clause itself, see n. 18, infra, is surely required by 28 U.S.C. § 1738, which provides that the "Acts, records and judicial proceedings . . . [of any State] shall have the same full faith and credit in every court within the United States . . . as they have by law or usage in the courts of [the] State . . . from which they are taken." See n. 1, supra.14 Thus, in effect, by virtue of the full faith and credit obligations of the several States, a State is permitted to determine the extraterritorial effect of its judgment; but it may only do so indirectly by prescribing the effect of its judgments within the State.
26
The McCartin rule, however, focusing as it does on the extraterritorial intent of the rendering State, is fundamentally different. It authorizes a State, by drafting or construing its legislation in "unmistakable language," directly to determine the extraterritorial effect of its workmen's compensation awards. An authorization to a state legislature of this character is inconsistent with the rule established in Pacific Em- ployers Ins. Co. v. Industrial Accident Comm'n, 306 U.S. 493, 502, 59 S.Ct. 629, 633, 83 L.Ed. 940:
27
"This Court must determine for itself how far the full faith and credit clause compels the qualification or denial of rights asserted under the laws of one state, that of the forum, by the statute of another state."
28
It follows inescapably that the McCartin "unmistakable language" rule represents an unwarranted delegation to the States of this Court's responsibility for the final arbitration of full faith and credit questions.15 The Full Faith and Credit Clause "is one of the provisions incorporated into the Constitution by its framers for the purpose of transforming an aggregation of independent, sovereign States into a nation." Sherrer v. Sherrer, 334 U.S. 343, 355, 68 S.Ct. 1087, 1092-93, 92 L.Ed. 1429. To vest the power of determining the extraterritorial effect of a State's own laws and judgments in the State itself risks the very kind of parochial entrenchment on the interests of other States that it was the purpose of the Full Faith and Credit Clause and other provisions of Art. IV of the Constitution to prevent. See Nevada v. Hall, 440 U.S. 410, 424-425, 99 S.Ct. 1182, 1190-1191, 59 L.Ed.2d 416.16
29
Thus, a re-examination of McCartin's "unmistakable language" test reinforces our tentative conclusion that it does not provide an acceptable basis on which to distinguish Magnolia. But if we reject that test, we must decide whether to overrule either Magnolia or McCartin. In making this kind of decision, we must take into account both the practical values served by the doctrine of stare decisis and the principles that inform the Full Faith and Credit Clause.
III
30
The doctrine of stare decisis imposes a severe burden on the litigant who asks us to disavow one of our precedents. For that doctrine not only plays an important role in orderly adjudication;17 it also serves the broader societal interests in evenhanded, consistent, and predictable application of legal rules. When rights have been created or modified in reliance on established rules of law, the arguments against their change have special force.18
31
It is therefore appropriate to begin the inquiry by considering whether a rule that permits, or a rule that forecloses, successive workmen's compensation awards is more consistent with settled practice. The answer to this question is pellucidly clear.
32
It should first be noted that Magnolia, by only the slimmest majority, see n. 11, supra, effected a dramatic change in the law that had previously prevailed throughout the United States. See Mr. Justice Black's dissent in Magnolia, 320 U.S., at 457-459, 462, 64 S.Ct., at 222-223, 224.19 Of greater importance is the fact that as a practical matter the "unmistakable language" rule of construction announced in McCartin left only the narrowest area in which Magnolia could have any further precedential value. For the exclusivity language in the Illinois Act construed in McCartin was typical of most state workmen's compensation laws. Consequently, it was immediately recognized that Magnolia no longer had any significant practical impact.20 Moreover, since a state legislature seldom focuses on the extraterritorial effect of its enactments,21 and since a state court has even less occasion to consider whether an award under its State's law is intended to preclude a supplemental award under another State's Workmen's Compensation Act, the probability that any State would thereafter announce a new rule against supplemental awards in other States was extremely remote. As a matter of fact, subsequent cases in the state courts have overwhelmingly followed McCartin and permitted successive state workmen's compensation awards.22 Thus, all that really remained of Magnolia after McCartin was a largely theoretical difference between what the Court described as "unmistakable language" and the broad language of the exclusive-remedy provision in the Illinois Workmen's Compensation Act involved in McCartin.
33
This history indicates that the principal values underlying the doctrine of stare decisis would not be served either by attempting to revive Magnolia or by attempting to preserve the uneasy coexistence of Magnolia and McCartin. The latter attempt could only breed uncertainty and unpredictability, since the application of the "unmistakable language" rule of McCartin necessarily depends on a determination by one state tribunal of the effect to be given to statutory language enacted by the legislature of a different State. And the former would represent a rather dramatic change that surely would not promote stability in the law. Moreover, since Magnolia has been so rarely followed, there appears to be little danger that there has been any significant reliance on its rule. We conclude that a fresh examination of the full faith and credit issue is therefore entirely appropriate.
IV
34
Three different state interests are affected by the potential conflict between Virginia and the District of Columbia. Virginia has a valid interest in placing a limit on the potential liability of companies that transact business within its borders. Both jurisdictions have a valid interest in the welfare of the injured employee—Virginia because the injury occurred within that State, and the District because the injured party was employed and resided there. And finally, Virginia has an interest in having the integrity of its formal determinations of contested issues respected by other sovereigns.
35
The conflict between the first two interests was resolved in Alaska Packers Assn. v. Industrial Accident Comm'n, 294 U.S. 532, 55 S.Ct. 518, 79 L.Ed. 1044, and a series of later cases. In Alaska Packers, California, the State where the employment contract was made, was allowed to apply its own workmen's compensation statute despite the statute of Alaska, the place where the injury occurred, which was said to afford the exclusive remedy for injuries occurring there. Id., at 539, 55 S.Ct., at 520. The Court held that the conflict between the statutes of two States ought not to be resolved "by giving automatic effect to the full faith and credit clause, compelling the courts of each state to subordinate its own statutes to those of the other, but by appraising the governmental interests of each jurisdiction, and turning the scale of decision according to their weight." Id., at 547, 55 S.Ct., at 524.
36
The converse situation was presented in Pacific Employers Ins. Co. v. Industrial Accident Comm'n, 306 U.S. 493, 59 S.Ct. 629, 83 L.Ed. 940. In that case the injury occurred in California, and the objection to California's jurisdiction was based on a statute of Massachusetts, the State where the employee resided and where the employment contract had been made. The Massachusetts statute provided that the remedy afforded was exclusive of the worker's " 'right of action at common law or under the law of any other jurisdiction.' " Id., at 498, 59 S.Ct., at 631. Again, however, California was permitted to provide the employee with an award under the California statute.23
37
The principle that the Full Faith and Credit Clause does not require a State to subordinate its own compensation policies to those of another State has been consistently applied in more recent cases. Carroll v. Lanza, 349 U.S. 408, 75 S.Ct. 804, 99 L.Ed. 1183; Crider v. Zurich Ins. Co., 380 U.S. 39, 85 S.Ct. 769, 13 L.Ed.2d 641; Nevada v. Hall, 440 U.S., at 421-424, 99 S.Ct., at 1188-1190. Indeed, in the Nevada case the Court not only rejected the contention that California was required to respect a statutory limitation on the defendant's liability, but did so in a case in which the defendant was the sovereign State itself asserting, alternatively, an immunity from any liability in the courts of California.
38
It is thus perfectly clear that petitioner could have sought a compensation award in the first instance either in Virginia, the State in which the injury occurred, Carroll v. Lanza, supra; Pacific Employers, supra,24 or in the District of Columbia, where petitioner resided, his employer was principally located, and the employment relation was formed, Cardillo v. Liberty Mutual Ins. Co., 330 U.S. 469, 67 S.Ct. 801, 91 L.Ed. 1028; Alaska Packers Assn. v. Industrial Accident Comm'n, supra. And as those cases underscore, compensation could have been sought under either compensation scheme even if one statute or the other purported to confer an exclusive remedy on petitioner. Thus, for all practical purposes, respondent and its insurer would have had to measure their potential liability exposure by the more generous of the two workmen's compensation schemes in any event. It follows that a State's interest in limiting the potential liability of businesses within the State is not of controlling importance.
39
It is also manifest that the interest in providing adequate compensation to the injured worker would be fully served by the allowance of successive awards. In this respect the two jurisdictions share a common interest and there is no danger of significant conflict.
40
The ultimate issue, therefore, is whether Virginia's interest in the integrity of its tribunal's determinations forecloses a second proceeding to obtain a supplemental award in the District of Columbia. We return to the Court's prior resolution of this question in Magnolia.
41
The majority opinion in Magnolia took the position that the case called for a straightforward application of full faith and credit law: the worker's injury gave rise to a cause of action; relief was granted by the Texas Industrial Accident Board; that award precluded any further relief in Texas;25 and further relief was therefore precluded elsewhere as well. The majority relied heavily on Chicago, R. I. & P. R. Co. v. Schendel, 270 U.S. 611, 46 S.Ct. 420, 70 L.Ed. 757, for the propositions that a workmen's compensation award stands on the same footing as a court judgment, and that a compensation award under one State's law is a bar to a second award under another State's law. See 320 U.S., at 441, 446, 64 S.Ct., at 214, 217.
42
But Schendel did not compel the result in Magnolia. See 320 U.S., at 448, 64 S.Ct., at 218 (Douglas, J., dissenting); id., at 457, 64 S.Ct., at 222 (Black, J., dissenting).26 In Schendel, the Court held that an Iowa state compensation award, which was grounded in a contested factual finding that the deceased railroad employee was engaged in intrastate commerce, precluded a subsequent claim under the Federal Employers' Liability Act (FELA) brought in the Minnesota state courts, which would have required a finding that the employee was engaged in interstate commerce. Schendel therefore involved the unexceptionable full faith and credit principle that resolutions of factual matters underlying a judgment must be given the same res judicata effect in the forum State as they have in the rendering State. See Durfee v. Duke, 375 U.S. 106, 84 S.Ct. 242, 11 L.Ed.2d 186; Sherrer v. Sherrer, 334 U.S., at 351-352, 68 S.Ct., at 1090-1091. The Minnesota courts could not have granted relief under the FELA and also respected the factual finding made in Iowa.27
43
In contrast, neither Magnolia nor this case concerns a second State's contrary resolution of a factual matter determined in the first State's proceedings. Unlike the situation in Schendel, which involved two mutually exclusive remedies, compensation could be obtained under either Virginia's or the District's workmen's compensation statutes on the basis of the same set of facts. A supplemental award gives full effect to the facts determined by the first award and also allows full credit for payments pursuant to the earlier award. There is neither inconsistency nor double recovery.
44
We are also persuaded that Magnolia's reliance on Schendel for the proposition that workmen's compensation awards stand on the same footing as court judgments was unwarranted. To be sure, as was held in Schendel, the factfindings of state administrative tribunals are entitled to the same res judicata effect in the second State as findings by a court. But the critical differences between a court of general jurisdiction and an administrative agency with limited statutory authority forecloses the conclusion that constitutional rules applicable to court judgments are necessarily applicable to workmen's compensation awards.
45
A final judgment entered by a court of general jurisdiction normally establishes not only the measure of the plaintiff's rights but also the limits of the defendant's liability. A traditional application of res judicata principles enables either party to claim the benefit of the judgment insofar as it resolved issues the court had jurisdiction to decide. Although a Virginia court is free to recognize the perhaps paramount interests of another State by choosing to apply that State's law in a particular case, the Industrial Commission of Virginia does not have that power. Its jurisdiction is limited to questions arising under the Virginia Workmen's Compensation Act. See Va.Code § 65.1-92 (1980). Typically, a workmen's compensation tribunal may only apply its own State's law.28 In this case, the Virginia Commission could and did establish the full measure of petitioner's rights under Virginia law, but it neither could nor purported to determine his rights under the law of the District of Columbia. Full faith and credit must be given to the determination that the Virginia Commission had the authority to make; but by a parity of reasoning, full faith and credit need not be given to determinations that it had no power to make.29 Since it was not requested, and had no authority, to pass on petitioner's rights under District of Columbia law, there can be no constitutional objection to a fresh adjudication of those rights.30
46
It is true, of course, that after Virginia entered its award, that State had an interest in preserving the integrity of what it had done. And it is squarely within the purpose of the Full Faith and Credit Clause, as explained in Pacific Employers, 306 U.S., at 501, n. 23, supra, 59 S.Ct., at 632, "to preserve rights acquired or confirmed under the public acts" of Virginia by requiring other States to recognize their validity. See n. 23, supra. Thus, Virginia had an interest in having respondent pay petitioner the amounts specified in its award. Allowing a supplementary recovery in the District does not conflict with that interest.
47
As we have already noted, Virginia also has a separate interest in placing a ceiling on the potential liability of companies that transact business within the State. But past cases have established that that interest is not strong enough to prevent other States with overlapping jurisdiction over particular injuries from giving effect to their more generous compensation policies when the employee selects the most favorable forum in the first instance. Thus, the only situations in which the Magnolia rule would tend to serve that interest are those in which an injured workman has either been constrained by circumstances to seek relief in the less generous forum or has simply made an ill-advised choice of his first forum.
48
But in neither of those cases is there any reason to give extra weight to the first State's interest in placing a ceiling on the employer's liability than it otherwise would have had. For neither the first nor the second State has any overriding interest in requiring an injured employee to proceed with special caution when first asserting his claim. Compensation proceedings are often initiated informally, without the advice of counsel, and without special attention to the choice of the most appropriate forum. Often the worker is still hospitalized when benefits are sought as was true in this case. And indeed, it is not always the injured worker who institutes the claim. See Schendel, 270 U.S., at 614, 46 S.Ct., at 421.31 This informality is consistent with the interests of both States. A rule forbidding supplemental recoveries under more favorable workmen's compensation schemes would require a far more formal and careful choice on the part of the injured worker than may be possible or desirable when immediate commencement of benefits may be essential.
49
Thus, whether or not the worker has sought an award from the less generous jurisdiction in the first instance, the vindication of that State's interest in placing a ceiling on employers' liability would inevitably impinge upon the substantial interests of the second jurisdiction in the welfare and subsistence of disabled workers—interests that a court of general jurisdiction might consider, but which must be ignored by the Virginia Industrial Commission. The reasons why the statutory policy of exclusivity of the other jurisdictions involved in Alaska Packers and Pacific Employers, could not defeat California's implementation of its own compensation policies therefore continue to apply even after the entry of a workmen's compensation award.
50
Of course, it is for each State to formulate its own policy whether to grant supplemental awards according to its perception of its own interests. We simply conclude that the substantial interests of the second State in these circumstances should not be overridden by another State through an unnecessarily aggressive application of the Full Faith and Credit Clause,32 as was implicitly recognized at the time of McCartin.
51
We therefore would hold that a State has no legitimate interest within the context of our federal system in preventing another State from granting a supplemental compensation award when that second State would have had the power to apply its workmen's compensation law in the first instance. The Full Faith and Credit Clause should not be construed to preclude successive workmen's compensation awards. Accordingly, Magnolia Petroleum Co. v. Hunt should be overruled.
52
The judgment of the Court of Appeals is reversed, and the case is remanded.
53
So ordered.
54
Mr. Justice WHITE, with whom THE CHIEF JUSTICE and Mr. Justice POWELL join, concurring in the judgment.
55
I agree that the judgment of the Court of Appeals should be reversed, but I am unable to join in the reasoning by which the plurality reaches that result. Although the plurality argues strenuously that the rule of today's decision is limited to awards by state workmen's compensation boards, it seems to me that the underlying rationale goes much further. If the employer had exercised its statutory right of appeal to the Supreme Court of Virginia and that Court upheld the award, I presume that the plurality's rationale would nevertheless permit a subsequent award in the District of Columbia. Otherwise, employers interested in cutting off the possibility of a subsequent award in another jurisdiction need only seek judicial review of the award in the first forum. But if such a judicial decision is not preclusive in the second forum, then it appears that the plurality's rationale is not limited in its effect to judgments of administrative tribunals.
56
The plurality contends that unlike courts of general jurisdiction, workmen's compensation tribunals generally have no power to apply the law of another State and thus cannot determine the rights of the parties thereunder. Ante, at 282. Yet I see no reason why a judgment should not be entitled to full res judicata effect under the Full Faith and Credit Clause merely because the rendering tribunal was obligated to apply the law of the forum—provided, of course, as was certainly the case here, that the forum could constitutionally apply its law. The plurality's analysis seems to grant state legislatures the power to delimit the scope of a cause of action for federal full faith and credit purposes merely by enacting choice-of-law rules binding on the State's workmen's compensation tribunals. The plurality criticizes theMcCartin case for vesting in the State the power to determine the extraterritorial effect of its own laws and judgments, ante, at 271; yet it seems that its opinion is subject to the same objection. In any event, I am not convinced that Virginia, by instructing its Industrial Commission to apply Virginia law, could be said to have intended that the cause of action which merges in the Virginia judgment would not include claims under the laws of other States which arise out of precisely the same operative facts.
57
As a matter of logic, the plurality's analysis would seemingly apply to many everyday tort actions. I see no difference for full faith and credit purposes between a statute which lays down a forum-favoring choice-of-law rule and a common-law doctrine stating the same principle. Hence when a court, having power in the abstract to apply the law of another State, determines by application of the forum's choice-of-law rules to apply the substantive law of the forum, I would think that under the plurality's analysis the judgment would not determine rights arising under the law of some other State. Suppose, for example, that in a wrongful-death action the court enters judgment on liability against the defendant, and determines to apply the law of the forum which sets a limit on the recovery allowed. The plurality's analysis would seem to permit the plaintiff to obtain a subsequent judgment in a second forum for damages exceeding the first forum's liability limit.
58
The plurality does say that factual determinations by a workmen's compensation board will be entitled to collateral-estoppel effect in a second forum. Ante, at 280-281. While this rule does, to an extent, circumscribe the broadest possible implications of the plurality's reasoning, there would remain many cases, such as the wrongful-death example discussed above, in which the second forum could provide additional recovery as a matter of substantive law while remaining true to the first forum's factual determinations. Moreover, the dispositive issues in tort actions are frequently mixed questions of law and fact as to which the second forum might apply its own rule of decision without obvious violation of the principles articulated by four Members of the Court. Actions by the defendant which satisfy the relevant standard of care in the first forum might nevertheless be considered "negligent" under the law of the second forum.
59
Hence the plurality's rationale would portend a wide-ranging reassessment of the principles of full faith and credit in many areas. Such a reassessment is not necessarily undesirable if the results are likely to be healthy for the judicial system and consistent with the underlying purposes of the Full Faith and Credit Clause. But at least without the benefit of briefs and arguments directed to the issue, I cannot conclude that the rule advocated by the plurality would have such a beneficial impact.
60
One purpose of the Full Faith and Credit Clause is to bring an end to litigation. As the Court noted in Riley v. New York Trust Co., 315 U.S. 343, 348-349, 62 S.Ct. 608, 86 L.Ed. 885 (1942):
61
"Were it not for this full faith and credit provision, so far as the Constitution controls the matter, adversaries could wage again their legal battles whenever they met in other jurisdictions. Each state could control its own courts but itself could not project the effect of its decisions beyond its own boundaries."
62
The plurality's opinion is at odds with this principle of finality. Plaintiffs dissatisfied with a judgment would have every incentive to seek additional recovery elsewhere, so long as the first forum applied its own law and there was a colorable argument that as a matter of law the second forum would permit a greater recovery. It seems to me grossly unfair that the plaintiff, having the initial choice of the forum, should be given the additional advantage of a second adjudication should his choice prove disappointing. Defendants, on the other hand, would no longer be assured that the judgment of the first forum is conclusive as to their obligations, and would face the prospect of burdensome and multiple litigation based on the same operative facts. Such litigation would also impose added strain on an already overworked judicial system.
63
Perhaps the major purpose of the Full Faith and Credit Clause is to act as a nationally unifying force. Sherrer v. Sherrer, 334 U.S. 343, 355, 68 S.Ct. 1087, 1092, 92 L.Ed. 1429 (1948). The plurality's rationale would substantially undercut that function. When a former judgment is set up as a defense under the Full Faith and Credit Clause, the court would be obliged to balance the various state interests involved. But the State of the second forum is not a neutral party to this balance. There seems to be a substantial danger—not presented by the firmer rule of res judicata—that the court in evaluating a full faith and credit defense would give controlling weight to its own parochial interests in concluding that the judgment of the first forum is not res judicata in the subsequent suit.
64
I would not overrule either Magnolia or McCartin. To my mind, Mr. Chief Justice Stone's opinion in Magnolia states the sounder doctrine; as noted, I do not see any overriding differences between workmen's compensation awards and court judgments that justify different treatment for the two. However, McCartin has been on the books for over 30 years and has been widely interpreted by state and federal courts as substantially limiting Magnolia. Unlike the plurality's opinion, McCartin is not subject to the objection that its principles are applicable outside the workmen's compensation area. Although I find McCartin to rest on questionable foundations, I am not now prepared to overrule it. And I agree with the plurality that McCartin, rather than Magnolia, is controlling as between the two precedents since the Virginia Workmen's Compensation Act lacks the "unmistakable language" which McCartin requires if a workmen's compensation award is to preclude a subsequent award in another State. I therefore concur in the judgment.
65
Mr. Justice REHNQUIST, with whom Mr. Justice MARSHALL joins, dissenting.
66
This is clearly a case where the whole is less than the sum of its parts. In choosing between two admittedly inconsistent precedents, Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 64 S.Ct. 208, 88 L.Ed. 149 (1943), and Industrial Comm'n of Wisconsin v. McCartin, 330 U.S. 622, 67 S.Ct. 886, 91 L.Ed. 1140 (1947), six of us agree that the latter decision, McCartin, is analytically indefensible. See ante, at 269-272 (plurality opinion); infra, at 291. The remaining three Members of the Court concede that it "rest[s] on questionable foundations." Ante, at 289 (opinion of WHITE, J., joined by BURGER, C. J., and POWELL, J.). Nevertheless, when the smoke clears, it is Magnolia rather than McCartin that the plurality suggests should be overruled. See ante, at 285-286. Because I believe that Magnolia was correctly decided, and because I fear that the rule proposed by the plurality is both ill-considered and ill-defined, I dissent.
67
In his opinion for the Court in Magnolia, Mr. Chief Justice Stone identified the issue as "whether, under the full faith and credit clause, Art. IV, § 1 of the Constitution of the United States, an award of compensation for personal injury under the Texas Workmen's Compensation Law . . . bars a further recovery of compensation for the same injury under the Louisiana Workmen's Compensation Law . . . ." 320 U.S., at 432, 64 S.Ct., at 210. A majority of this Court answered that inquiry in the affirmative,1 holding that the injured employee "was free to pursue his remedy in either state but, having chosen to seek it in Texas, where the award was res judicata, the full faith and credit clause precludes him from again seeking a remedy in Louisiana upon the same grounds." Id. at 444, 64 S.Ct. at 216. With the substitution of Virginia and the District of Columbia for Texas and Louisiana, this case presents precisely the same question as Magnolia, and, I believe, demands precisely the same answer.
68
As the plurality today properly notes, Magnolia received rather rough treatment at the hands of a unanimous Court in McCartin, I need not dwell upon the inadequacies of that latter opinion, however, since the plurality itself spotlights those inadequacies quite convincingly. As it observes, McCartin is difficult, if not impossible, to reconcile with "normally accepted full faith and credit principles." Ante, at 270. I also agree completely with the plurality's ultimate conclusion that the rule announced in McCartin "represents an unwarranted delegation to the States of this Court's responsibility for the final arbitration of full faith and credit questions." Ante, at 271.
69
One might suppose that, having destroyed McCartin's ratio decidendi, the plurality would return to the eminently defensible position adopted in Magnolia. But such is not the case. The plurality instead raises the banner of "stare decisis" and sets out in search of a new rationale to support the result reached in McCartin, significantly failing to even attempt to do the same thing for Magnolia.
70
If such post hoc rationalization seems a bit odd, the theory ultimately chosen by the plurality is even odder. It would seem that, contrary to the assumption of this Court for at least the past 40 years, a judgment awarding workmen's compensation benefits is no longer entitled to full faith and credit unless, and only to the extent that, such a judgment resolves a disputed issue of fact. I believe that the plurality's justification for such a theory, which apparently first surfaced in a cluster of articles written in the wake of Magnolia,2 does not withstand close scrutiny.
71
The plurality identifies three different "state interests" at stake in the present case: Virginia's interest in placing a limit on the potential liability of companies doing business in that State, Virginia's interest in the "integrity of its formal determinations of contested issues," and a shared interest of Virginia and the District of Columbia in the welfare of the injured employee. See ante, at 277. The plurality then undertakes to balance these interests and concludes that none of Virginia's concerns outweighs the concern of the District of Columbia for the welfare of petitioner.
72
Whenever this Court, or any court, attempts to balance competing interests it risks undervaluing or even overlooking important concerns. I believe that the plurality's analysis incorporates both errors. First, it asserts that Virginia's interest in limiting the liability of businesses operating within its borders can never outweigh the District of Columbia's interest in protecting its residents. In support of this proposition it cites Alaska Packers Assn. v. Industrial Accident Comm'n, 294 U.S. 532, 55 S.Ct. 518, 79 L.Ed. 1044 (1935), and Pacific Employers Ins. Co. v. Industrial Accident Comm'n, 306 U.S. 493, 59 S.Ct. 629, 83 L.Ed. 940 (1939). Both of those cases, however, involved the degree of faith and credit to be afforded statutes of one State by the courts of another State. The present case involves an enforceablejudgment entered by Virginia after adjudicatory proceedings. In Magnolia Mr. Chief Justice Stone, who authored both Alaska Packers and Pacific Employers, distinguished those two decisions for precisely this reason, chastising the lower court in that case for overlooking "the distinction, long recognized and applied by this Court, . . . between the faith and credit required to be given to judgments and that to which local common and statutory law is entitled under the Constitution and laws of the United States." 320 U.S., at 436, 64 S.Ct., at 212. This distinction, which has also been overlooked by the plurality here, makes perfect sense, since Virginia surely has a stronger interest in limiting an employer's liability to a fixed amount when that employer has already been haled before a Virginia tribunal and adjudged liable than when the employer simply claims the benefit of a Virginia statute in a proceeding brought in another State.
73
In a similar vein, the plurality completely ignores any interest that Virginia might assert in the finality of its adjudications. While workmen's compensation awards may be "non-final" in the sense that they are subject to continuing supervision and modification, Virginia nevertheless has a cognizable interest in requiring persons who avail themselves of its statutory remedy to eschew other alternative remedies that might be available to them. Otherwise, as apparently is the result here, Virginia's efforts and expense on an applicant's behalf are wasted when that applicant obtains a duplicative remedy in another State.
74
At base, the plurality's balancing analysis is incorrect because it recognizes no significant difference between the events that transpired in this case and those that would have transpired had petitioner initially sought his remedy in the District of Columbia. But there are differences. The Commonwealth of Virginia had expended its resources, at petitioner's behest to provide petitioner with a remedy for his injury and a resolution of his "dispute" with his employer. That employer similarly has expended its resources, again at petitioner's behest, in complying with the judgment entered by Virginia. These efforts, and the corresponding interests in seeing that those efforts are not wasted, lie at the very heart of the divergent constitutional treatment of judgments and statutes. Compare Magnolia Petroleum Co. v. Hunt, with Alaska Packers Assn. v. Industrial Accident Comm'n, and Pacific Employers Ins. Co. v. Industrial Accident Comm'n. In this case, of course, Virginia and respondent employer expended very few resources in the administrative process. But that observation lends no assistance to the plurality, which would flatly hold that Virginia has absolutely no power to guarantee that a workmen's compensation award will be treated as a final judgment by other States.
75
In further support of its novel rule, the plurality attempts to distinguish the judgment entered in this case from one entered by a "court of general jurisdiction." See ante, at 282-283. Specifically, the plurality points out that the Industrial Commission of Virginia, unlike a state court of general jurisdiction, was limited by statute to consideration of Virginia law. According to the plurality, because the Commission "was not requested, and had no authority, to pass on petitioner's rights under District of Columbia law, there can be no constitutional objection to a fresh adjudication of those rights." Ante, at 283. See also ante, at 285.
76
This argument might have some force if petitioner had somehow had Virginia law thrust upon him against his will. In this case, however, petitioner was free to choose the applicable law simply by choosing the forum in which he filed his initial claim. Unless the District of Columbia has an interest in forcing its residents to accept its law regardless of their wishes, I fail to see how the Virginia Commission's inability to look to district of Columbia law impinged upon that latter jurisdiction's interests. I thus fail to see why petitioner's election, as consummated in his Virginia award, should not be given the same full faith and credit as would be afforded a judgment entered by a court of general jurisdiction.
77
I suspect that my Brethren's insistence on ratifying McCartin's result despite condemnation of its rationale is grounded in no small part upon their concern that injured workers are often coerced or maneuvered into filing their claims in jurisdictions amenable to their employers. There is, however, absolutely no evidence of such overreaching in the present case. Indeed, had there been "fraud, imposition, [or] mistake" in the filing of petitioner's claim, he would have been permitted, upon timely motion, to vacate the award. See Harris v. Diamond Construction Co., 184 Va. 711, 720, 36 S.E.2d 573, 577 (1946). In this regard, the award received by petitioner is treated no differently than any other judicial award, nor should it be.
78
There are, of course, exceptional judgments that this Court has indicated are not entitled to full faith and credit. See, e. g., Huntington v. Attrile, 146 U.S. 657, 13 S.Ct. 224, 36 L.Ed. 1123 (1892) (penal judgments); Fall v. Eastin, 215 U.S. 1, 30 S.Ct. 3, 54 L.Ed. 65 (1909) (judgment purporting to convey property in another State). Such exceptions, however, have been "few and far between. . . ." Williams v. North Carolina, 317 U.S. 287, 295, 63 S.Ct. 207, 211, 87 L.Ed. 279 (1942). Furthermore, as this Court noted in Magnolia, there would appear to be no precedent for an exception in the case of a money judgment rendered in a civil suit. See 320 U.S., at 438, 64 S.Ct., at 213. In this regard, there is no dispute that the award authorized by the Industrial Commission of Virginia here is, at least as a matter of Virginia law, equivalent to such a money judgment. See Va.Code §§ 65.1-40, 65.1-100.1 (1980).
79
I fear that the plurality, in its zeal to remedy a perceived imbalance in bargaining power, would badly distort an important constitutional tenet. Its "interest analysis," once removed from the statutory choice-of-law context considered by the Court in Alaska Packers and Pacific Employers, knows no metes or bounds. Given the modern proliferation of quasi-judicial methods for resolving disputes and of various tribunals of limited jurisdiction, such a rule could only lead to confusion.3 I find such uncertainty unacceptable, and prefer the rule originally announced in Magnolia Petroleum Co. v. Hunt, a rule whose analytical validity is, even yet, unchallenged.
80
The Full Faith and Credit Clause did not allot to this Court the task of "balancing" interests where the "public Acts, Records, and judicial Proceedings" of a State were involved. It simply directed that they be given the "Full Faith and Credit" that the Court today denies to those of Virginia. I would affirm the judgment of the court below.
1
United States Constitution, Art. IV, § 1:
"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."
Title 28 U.S.C. § 1738 provides, in part:
"The Acts of the legislature of any State, Territory, or Possession of the United States, or copies thereof, shall be authenticated by affixing the seal of such State, Territory or Possession thereto.
* * * * *
"Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken."
2
The District of Columbia Workmen's Compensation Act, D.C.Code §§ 501-502 (1968), adopts the terms of the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 901 et seq. The program is administered by the United States Department of Labor.
3
Respondent also contended that the claim was barred by limitations. The Administrative Law Judge ruled, however, that respondent's failure to file the report of injury required by the District of Columbia Act had tolled the statute and made respondent automatically liable for a 10% penalty. Respondent also argues in this Court that the LHWCA forbade the granting of an award where compensation could have been obtained under a state workmen's compensation program. Since the Court of Appeals passed on neither of these statutory arguments, they remain open on remand.
4
Virginia Code § 65.1-40 (1980) provides:
"Employee's rights under Act exclude all others.—The rights and remedies herein granted to an employee when he and his employer have accepted the provisions of this Act respectively to pay and accept compensation on account of personal injury or death by accident shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents or next of kin, at common law or otherwise, on account of such injury, loss of service or death."
5
"Accordingly, it is concluded that, in the instant matter, Claimant's award under the Virginia compensation law must be given such faith and credit in the District as it is given in Virginia; that, to the extent that the Virginia award is res judicata in Virginia, it is res judicata in the District." App. 42.
6
"The award did not effect a final settlement of the rights and liabilities of the parties. Rather, by its terms, it contemplated further awards.
* * * * *
"In view of the foregoing, it is determined that, because the Virginia award was not a bar to further recovery of compensation in Virginia, it was not, under the full faith and credit concept, res judicata as a bar to further recovery of compensation under District law." Id., at 46-47.
7
Id., at 48. He added that the exclusive-remedy provisions "were not designed for extraterritorial extension to other sovereign jurisdictions. They do not preclude jurisdiction under District law." Ibid.
8
See 33 U.S.C. § 921(c), which provides for review of decisions of the Benefits Review Board "in the United States court of appeals for the circuit in which the injury occurred . . . ."
9
The quoted language is from the Fourth Circuit's opinion in the similar case of Pettus v. American Airlines, Inc., 587 F.2d 627, 630 (1978), cert. denied, 444 U.S. 883, 100 S.Ct. 172, 62 L.Ed.2d 112. In this case the Court of Appeals merely issued a brief unpublished order citing Pettus. App. 2a.
10
The statute places on courts in the District of Columbia the same obligation to respect state judgments as is imposed on the courts of the several States. See n. 1, supra.
11
Four Members of the Court—Justices Black, Douglas, Murphy, and Rutledge—dissented, expressing the opinion that the holding was not supported by precedent and did not accord proper respect to the States' interests in implementing their policies of compensating injured workmen.
Mr. Justice Jackson concurred in Mr. Chief Justice Stone's opinion for the Court, but only because he felt bound by Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, a decision from which he vigorously dissented. Id., at 311, 63 S.Ct., at 219. In that case, the Court held that North Carolina had to respect an ex parte divorce decree obtained in Nevada in a bigamy prosecution of a North Carolina resident. (It was assumed for purposes of decision that the petitioner was a bona fide domiciliary of Nevada at the time of the divorce, id., at 302, 63 S.Ct., at 215.) In his concurring opinion in Magnolia, Mr. Justice Jackson explained that he was "unable to see how Louisiana can be constitutionally free to apply its own workmen's compensation law to its citizens despite a previous adjudication in another state if North Carolina was not free to apply its own matrimonial policy to its own citizens after judgment on the subject in Nevada." 320 U.S., at 446, 64 S.Ct., at 217.
Mr. Justice Douglas, author of the opinion for the Court in Williams, pointed out, in one of the two dissents filed in the Magnolia case, that as compared with the dual workmen's compensation award problem then before the Court, "questions of status, i. e., marital capacity, involve conflicts between the policies of two States which are quite irreconcilable," 320 U.S., at 447, 64 S.Ct., at 218.
12
Mr. Justice Rutledge concurred only in the result.
13
Magnolia had not been well received. See Cheatham, Res Judicata and the Full Faith and Credit Clause: Magnolia Petroleum Co. v. Hunt, 44 Colum.L.Rev. 330, 344-346 (1944) (hereinafter Cheatham); Freund, Chief Justice Stone and the Conflict of Laws, 59 Harv.L.Rev. 1210, 1227-1230 (1946) (hereinafter Freund); Wolkin, Workmen's Compensation Award—Commonplace or Anomaly in Full Faith and Credit Pattern?, 92 U.Pa.L.Rev. 401, 405-411 (1944) (hereinafter Wolkin); Note, 23 Ind.L.J. 214 (1948); Note, 18 Tulane L.Rev. 509 (1944); Recent Cases, 12 Geo.Wash.L.Rev. 487 (1944).
14
That statute, insofar as it is relevant here, reads exactly as it did when the first Congress passed it in 1790. See 1 Stat. 122.
15
See Magnolia, 320 U.S., at 438, 64 S.Ct., at 213; Williams v. North Carolina, supra, 317 U.S., at 302, 63 S.Ct., at 215; Alaska Packers Assn. v. Industrial Accident Comm'n, 294 U.S. 532, 547, 55 S.Ct. 518, 523, 79 L.Ed. 1044; Reese & Johnson. The Scope of Full Faith and Credit to Judgments, 49 Colum.L.Rev. 153, 161-162 (1949) (hereinafter Reese & Johnson):
"Full faith and credit is a national policy, not a state policy. Its purpose is not merely to demand respect from one state for another, but rather to give us the benefits of a unified nation by altering the status of otherwise 'independent, sovereign states.' Hence it is for federal law, not state law, to prescribe the measure of credit which one state shall give to another's judgment. In this regard, it is interesting to note that in dealing with full faith and credit to statutes the Supreme Court in recent years has accorded no weight to language which purported to give a particular statute extraterritorial effect.49 There is every reason why a similar attitude should be taken with respect to judgments.
* * * * *
"49Pacific Employers Insurance Co. v. Industrial Accident Commission, 306 U.S. 493 [59 S.Ct. 629, 83 L.Ed. 940] (1939); Alaska Packers Assn. v. Industrial Accident Commission, 294 U.S. 532 [55 S.Ct. 518, 79 L.Ed. 1044] (1935); Tennessee Coal Iron & R.R. Co. v. George, 233 U.S. 354 [34 S.Ct. 587, 58 L.Ed. 997] (1914); Atchison, T. & S. F. Ry. v. Sowers, 213 U.S. 55 [29 S.Ct. 397, 53 L.Ed. 695] (1909) . . . ." (Some footnotes omitted.)
In Tennessee Coal, Iron & R. Co. v. George, cited in the authors' footnote, the Court held that a Georgia court, consistent with its full faith and credit obligations, could ignore a provision in the Alabama statute creating the cause of action there sued upon, which required that any suit to enforce the right of action "must be brought in a court of competent jurisdiction within the State of Alabama and not elsewhere." 233 U.S., at 358, 34 S.Ct., at 588. The Sowers case is much like the George case. Pacific Employers and Alaska Packers are discussed in Part IV, infra.
16
Cf. Note, Unconstitutional Discrimination in Choice of Law, 77 Colum.L.Rev. 272 (1977) (Privileges and Immunities Clause).
17
"[I]mitation of the past, until we have a clear reason for a change, no more needs justification than appetite. It is a form of the inevitable to be accepted until we have a clear vision of what different things we want." O. Holmes, Collected Legal Papers 290 (1920).
18
The doctrine of stare decisis has a more limited application when the precedent rests on constitutional grounds, because "correction through
legislative action is practically impossible." Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 407-408, 52 S.Ct. 443, 447, 76 L.Ed. 815 (Brandeis, J., dissenting). See Mitchell v. W. T. Grant Co., 416 U.S. 600, 627, 94 S.Ct. 1895, 1909, 40 L.Ed.2d 406 (POWELL, J., concurring).
The full faith and credit area presents special problems, because the Constitution expressly delegates to Congress the authority "by general Laws [to] prescribed the Manner in which [the States'] Acts, Records and Proceedings shall be proved, and the Effect thereof." (Emphasis added.) See n. 1, supra. Yet it is quite clear that Congress' power in this area is not exclusive, for this Court has given effect to the Clause beyond that required by implementing legislation. See Bradford Electric Co. v. Clapper, 286 U.S. 145, 52 S.Ct. 571, 76 L.Ed. 1026, in which the Court required the New Hampshire courts to respect a Vermont statute which precluded a worker from bringing a common-law action against his employer for job-related injuries where the employment relation was formed in Vermont, even though the injury occurred in New Hampshire. At the time the Clapper case was decided, the predecessor of 28 U.S.C. § 1738 included no reference to "Acts" in the sentence that required the forum State to accord the same full faith and credit to records and judicial proceedings as they have in the State from which they are taken. The reference to Acts was added for the first time in 1948. See Carroll v. Lanza, 349 U.S. 408, 422, n. 4, 75 S.Ct. 804, 812, n. 4, 99 L.Ed. 1183 (Frankfurter, J., dissenting). Thus, the Clapper case rested on the constitutional Clause alone. Carroll, which for all intents and purposes buried whatever was left of Clapper after Pacific Employers Ins. Co. v. Industrial Accident Comm'n, 306 U.S. 493, 59 S.Ct. 639, 83 L.Ed. 940; see 349 U.S., at 412, 75 S.Ct., at 806; n. 24, infra, cast no doubt on Clapper's reliance on the Full Faith and Credit Clause itself.
Thus, while Congress clearly has the power to increase the measure of faith and credit that a State must accord to the laws or judgments of another State, there is at least some question whether Congress may cut back on the measure of faith and credit required by a decision of this Court. See Freund 1229-1230.
19
Professor Larson has pointed out that prior to Magnolia and McCartin, "state courts, with virtual unanimity, had held or assumed that a prior award under the laws of another state was no bar to an award under local law made in accordance with the local law's own standards of applicability, always of course, with the understanding that the claimant could not have a complete double recovery but must deduct from its present recovery the amount of the prior award." 4 A. Larson, Workmen's Compensation Law § 85.10, at pp. 16-15—16-16 (1980) (footnote omitted) (hereinafter A. Larson). See also Wolkin 403, n. 6.
As the majority opinion in Magnolia recognized, 320 U.S., at 441, n. 5, 64 S.Ct., at 215, n. 5, the American Law Institute's Restatement of Conflict of Laws § 403 (1934) was flatly contrary to the Magnolia result: "Award already had under the Workmen's Compensation Act of another state will not bar a proceeding under an applicable Act, but the amount paid on a prior award in another state will be credited on the second award." As we note below, see n. 21, infra, Texas' rule was otherwise.
20
Virtually every commentator agrees that McCartin all but overruled Magnolia. See R. Leflar, American Conflicts Law § 162, p. 334 (3d ed. 1977); G. Stumberg, Principles of Conflict of Laws 221 (3d ed. 1963); 4 A. Larson §§ 85.10, 85.20, at pp. 15-16, 16-17; Reese & Johnson 159 ("The dissenters in Magnolia saw their day of triumph in . . . McCartin. . . . [T]he facts were essentially identical with those of the Magnolia case; similarly, the workmen's compensation statutes involved in the two cases were not in any significant manner distinguishable"). See also Recent Cases, 60 Harv.L.Rev. 993, 993-994 (1947) ("By this decision the practical effect of the Magnolia case in preventing more than one state applying its workmen's compensation law to the same injury is almost completely nullified . . . , and may foreshadow a modification of 'full faith and credit' as to workmen's compensation judgments similar to that which occurred in regard to legislation"); Comment, 33 Cornell L.Q. 310, 315 (1947).
21
Apparently only Nevada's Workmen's Compensation Act contains the unmistakable language required under the McCartin rule. Nevada Rev.Stat. § 616.525 (1979) provides in part:
"[I]f an employee who has been hired or is regularly employed in this state receives personal injury by accident arising out of and in the course of such employment outside this state, and he . . . accepts any compensation or benefits under the provisions of this chapter, the acceptance of such compensation shall constitute a waiver by such employee . . . of all rights and remedies against the employer at common law or given under the laws of any other state, and shall further constitute a full and complete release of such employer from any and all liability arising from such injury . . . ." (Emphasis added.)
In Magnolia, the Court noted the existence of a Texas statute precluding a supplemental award in Texas when an injured worker had obtained an award under the workmen's compensation law of another State. 320 U.S., at 435, 64 S.Ct., at 211. But that provision, of course, was directed not at the effect Texas desired a Texas award to be given in a second State, but rather at the converse situation. That is, it governed the effect that the Texas Industrial Accident Board had to give to an award previously rendered in another State. See id., at 454, 64 S.Ct., at 220 (Black, J., dissenting). While the Texas statute so understood may be obliquely probative of the Texas Legislature's intent as regards the effect to be given a Texas award in another State, that intent is surely not indicated with the unmistakable language required by McCartin.
It is worth noting that the Virginia statute involved in this case expressly allows a second recovery in Virginia in certain cases in which a prior recovery has been obtained in another State. Va.Code § 65.1-61 (1980).
22
See, e. g., City Products Corp. v. Industrial Comm'n, 19 Ariz.App. 286, 506 P.2d 1071 (1973) (prior California award); Jordan v. Industrial
Comm'n, 117 Ariz. 215, 571 P.2d 712 (App.1977) (prior Texas award); McGehee Hatchery Co. v. Gunter, 234 Ark. 113, 350 S.W.2d 608 (1961) (prior Mississippi award); Reynolds Electrical & Engineering Co., Inc. v. Workmen's Compensation Appeals Bd., 65 Cal.2d 429, 55 Cal.Rptr. 248, 421 P.2d 96 (1966) (prior Nevada award); Industrial Track Builders of America v. Lemaster, 429 S.W.2d 403 (Ky.1968) (prior Indiana award); Ryder v. Insurance Co. of North America, 282 So.2d 771 (La.App.1973) (prior Georgia award); Griffin v. Universal Underwriters Ins. Co., 283 So.2d 748 (La.1973) (prior Texas award under statute involved in Magnolia held not to preclude second award in Louisiana in light of McCartin), cert. denied, 416 U.S. 904, 94 S.Ct. 1607, 40 L.Ed.2d 108; Lavoie's Case, 334 Mass. 403, 135 N.E.2d 750 (1956) (prior Rhode Island award), cert. denied, 352 U.S. 927, 77 S.Ct. 224, 1 L.Ed.2d 162; Stanley v. Hinchliffe & Kenner, 395 Mich. 645, 652-653, 238 N.W.2d 13, 16 (1976) (prior California award) ("It is now widely accepted that McCartin severely limited, if not overruled, Magnolia, . . ."); Cook v. Minneapolis Bridge Construction Co., 231 Minn. 433, 43 N.W.2d 792 (1950) (prior North Dakota award); Hubbard v. Midland Constructors, Inc., 269 Minn. 425, 426, n. 1, 131 N.W.2d 209, 211, n. 1 (1964) (prior South Dakota award); Harrison Co. v. Norton, 244 Miss. 752, 146 So.2d 327 (1962) (prior Georgia award); Bowers v. American Bridge Co., 43 N.J.Super. 48, 127 A.2d 580 (1956), aff'd, 24 N.J. 390, 132 A.2d 28 (1957) (prior Pennsylvania award); Hudson v. Kingston Contracting Co., 58 N.J.Super. 455, 156 A.2d 491 (1959) (prior Maryland award); Cramer v. State Concrete Corp., 39 N.J. 507, 189 A.2d 213 (1963) (prior New York award); Bekkedahl v. North Dakota Workmen's Compensation Bureau, 222 N.W.2d 841 (N.D.1974) (prior Montana award); Spietz v. Industrial Comm'n, 251 Wis. 168, 28 N.W.2d 354 (1947) (prior Montana award).
But see Gasch v. Britton, 92 U.S.App.D.C. 64, 202 F.2d 356 (1953) (2-to-1 decision, Fahy, J., dissenting) (prior Maryland award held preclusive of supplemental award in District of Columbia as construction of Maryland law, which construction was specifically rejected by Hudson, supra, and, significantly, by the Maryland Court of Appeals in a declaratory judgment action, see Wood v. Aetna Casualty & Surety Co., 260 Md. 651, 273 A.2d 125 (1971)); Cofer v. Industrial Comm'n, 24 Ariz.App. 357, 359, n. 2, 538 P.2d 1158, 1160, n. 2 (1975) (refusing to permit second award in Arizona after claimant obtained first award in Texas, under compulsion of Magnolia, but questioning that case's interpretation of the Texas statute, see n. 21, supra, specifically repudiated by Jordan, supra ; and see Griffin, supra ).
23
The Court reasoned:
"The Supreme Court of California has recognized the conflict and resolved it by holding that the full faith and credit clause does not deny to the courts of California the right to apply its own statute awarding compensation for an injury suffered by an employee within the state.
"To the extent that California is required to give full faith and credit to the conflicting Massachusetts statute it must be denied the right to apply in its own courts its own statute, constitutionally enacted in pursuance of its policy to provide compensation for employees injured in their employment within the state. It must withhold the remedy given by its own statute to its residents by way of compensation for medical, hospital and nursing services rendered to the injured employee, and it must remit him to Massachusetts to secure the administrative remedy which that state has provided. We cannot say that the full faith and credit clause goes so far.
"While the purpose of that provision was to preserve rights acquired or confirmed under the public acts and judicial proceedings of one state by requiring recognition of their validity in other states, the very nature of the federal union of states, to which are reserved some of the attributes of sovereignty, precludes resort to the full faith and credit clause as the means for compelling a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate." 306 U.S., at 501, 59 S.Ct., at 632.
24
In Carroll, the Court observed that "Pacific Employers Insurance Co. v. Commission, 306 U.S. 493, 59 S.Ct. 629, 83 L.Ed. 940, departed . . . from the [Bradford Electric Co. v.] Clapper decision." 349 U.S., at 412, 75 S.Ct., at 806. See n. 18, supra. The Court's retreat from the rigid Clapper rule, which at the time appeared constitutionally to require application of the workmen's compensation law of the State in which the employment relation was centered, to the more flexible balancing of the respective States' interests in Pacific Employers parallels the Court's movement from Magnolia to McCartin.
25
Whether the latter was true as a matter of Texas law is open to question. See nn. 21, 22, supra.
26
See also Wolkin 410.
27
"The Iowa proceeding was brought and determined upon the theory that Hope [the deceased worker] was engaged in intrastate commerce; the Minnesota action was brought and determined upon the opposite theory that he was engaged in interstate commerce. The point at issue was the same." 270 U.S., at 616, 46 S.Ct., at 422.
28
See 4 A. Larson, § 86.40, at 16-44; Cheatham 344. The reason for this is the special nature of a workmen's compensation remedy. It is not merely a grant of a lump-sum award at the end of an extended adversary proceeding. See 4 A. Larson § 84.20, at 16-9:
"[A] highly developed compensation system does far more than that. It stays with the claimant from the moment of the accident to the time he is fully restored to normal earning capacity. This may involve supervising an ongoing rehabilitation program, perhaps changing or extending it, perhaps providing, repairing, and replacing prosthetic devices, and supplying vocational rehabilitation. Apart from rehabilitation, optimum compensation administration may require reopening of the award from time to time for change of condition or for other reasons. . . . "
Thus, a workmen's compensation remedy is potentially quite different from the application of a particular State's law to a transitory cause of action based on fault. See generally New York Central R. Co. v. White, 243 U.S. 188, 190, 37 S.Ct. 247, 61 L.Ed. 667.
29
Cf. Restatement (Second) of Judgments § 61.2(c) (Tent.Draft No. 5, 1978):
"(1) When any of the following circumstances exists, the general rule of § 61 [under which a valid judgment extinguishes a claim by its merger in the judgment] does not apply to extinguish a claim, and part or all of the claim subsists as a possible basis for a second action by the plaintiff against the defendant:
* * * * *
"(c) The plaintiff was unable to rely on a certain theory of the case or to seek a certain remedy or form of relief in the first action because of the limitations on the subject matter jurisdiction of the courts or restrictions on their authority to entertain multiple theories or demands for multiple remedies or forms of relief in a single action, and the plaintiff desires in the second action to rely on that theory or to seek that remedy or form of relief. . . . "
30
While Professor Larson points out that there are some isolated examples of workmen's compensation tribunals technically having the power to go beyond the confines of their own States' statutes, see 4 A. Larson § 84.30, at 16-13, he also notes that there is "no decisional law . . . showing how this can be done if the filing of a claim with a specified tribunal in the other State is a condition precedent to recovery. Indeed, Vermont [whose statute grants its commission the authority to permit the assertion of rights created under the Acts of other States] refused to use this express statutory power when asked to apply the compensation law of Massachusetts, saying that 'the remedy is an integral part of the right given and the latter has no existence separate and apart from the former.' " Ibid. See Grenier v. Alta Crest Farms, Inc., 115 Vt. 324, 330, 58 A.2d 884, 888 (1948). Accordingly, it would seem to follow that unless the tribunal actually passes on the injured worker's rights under another State's law, the worker would not be precluded from seeking a second award in that other State.
31
See also Cheatham 345, and Wolkin 410, pointing out the potential for overreaching by an employer more knowledgeable than the injured employee about the relative benefits available under the applicable workmen's compensation schemes. See Magnolia, 320 U.S., at 450, 64 S.Ct., at 219 (Black, J., dissenting):
"Confined to a hospital [the injured worker] was told that he could not recover compensation unless he signed two forms presented to him. As found by the Louisiana trial judge there was printed on each of the forms 'in small type' the designation 'Industrial Accident Board, Austin, Texas.' "
32
Cf. Yarborough v. Yarborough, 290 U.S. 202, 227, 54 S.Ct. 181, 191, 78 L.Ed. 269 (Stone, J., dissenting).
1
The plurality characterizes the majority in Magnolia as "tenuous" because Mr. Justice Jackson joined four other Members of the Court in the belief that the result was dictated by Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279 (1942), a decision from which he had dissented. See ante, at 267, n. 11. I do not read Mr. Justice Jackson's concurrence as casting any doubt upon the logical underpinning of Magnolia. Instead, he seemed to direct his concurrence at what he perceived to be an inconsistency in the position adopted by Mr. Justice Black and Mr. Justice Douglas, both of whom had joined Williams, but were dissenting in Magnolia. For a similar exchange, see Dennis v. United States, 339 U.S. 162, 173-175, 70 S.Ct. 519, 524-525, 94 L.Ed. 734 (1950) (Jackson, J., concurring in result), and id., at 175-181, 70 S.Ct. at 525, 527-530 (Black, J., dissenting).
2
See Cheatham, Res Judicata and the Full Faith and Credit Clause: Magnolia Petroleum Co. v. Hunt, 44 Colum.L.Rev. 330, 341-346 (1944); Freund, Chief Justice Stone and the Conflict of Laws, 59 Harv.L.Rev. 1210, 1229-1230 (1946); Reese & Johnson, The Scope of Full Faith and Credit to Judgments, 49 Colum.L.Rev. 153, 176-177 (1949).
3
Arbitration awards, for example, have traditionally been afforded full faith and credit. See, e. g., Pan American Food Co. v. Lester Lawrence & Son, Inc., 147 F.Supp. 113 (N.D.Ill.1956); United States Plywood Corp. v. Hudson Lumber Co., 127 F.Supp. 489 (S.D.N.Y.1954); Port Realty Development Corp. v. Aim Consolidated Distribution, Inc., 90 Misc.2d 757, 395 N.Y.S.2d 905 (1977). Yet such proceedings incorporate many of the same features found important by this Court in excepting workmen's compensation awards from that requirement. See also ante, at 288-289 (opinion of WHITE, J.).
| 78
|
448 U.S. 242
100 S.Ct. 2636
65 L.Ed.2d 742
UNITED STATES, Petitioner,v.L. O. WARD dba L. O. Ward Oil and Gas Operations.
No. 79-394.
Argued Feb. 26, 1980.
Decided June 27, 1980.
Rehearing Denied Aug. 22, 1980.
See 448 U.S. 916, 101 S.Ct. 37.
Syllabus
Section 311(b)(3) of the Federal Water Pollution Control Act prohibits the discharge of oil into navigable waters. Section 311(b)(5) requires any person in charge of an onshore facility to report any such discharge to the appropriate Government agency, and a failure to report subjects the person to a fine or imprisonment. Section 311(b)(5) also provides for a form of "use immunity," by specifying that notification of the discharge or information obtained by the exploitation of such notification is not to be used against the reporting person in any criminal case, except for prosecution for perjury or for giving a false statement. Section 311(b)(6) provides for the imposition of a "civil penalty" against any owner or operator of an onshore facility from which oil was discharged in violation of the Act. When oil escaped from a drilling facility leased by respondent and spilled into a tributary of the Arkansas River system, respondent notified the Environmental Protection Agency of the discharge, and this was reported to the Coast Guard who assessed a $500 penalty against respondent under § 311(b)(6). After his administrative appeal was denied, respondent filed suit in Federal District Court, seeking injunctive relief against enforcement of §§ 311(b)(5) and (6) and collection of the penalty. The Government filed a separate suit to collect the penalty, and the suits were consolidated for trial. Prior to trial, the District Court rejected respondent's contention that the reporting requirements of § 311(b)(5), as used to support a civil penalty under § 311(b)(6), violated his right against compulsory self-incrimination, and ultimately the jury found that respondent's facility did, in fact, spill oil into the creek in question. The Court of Appeals reversed, holding that § 311(b)(6) was sufficiently punitive to intrude upon the Fifth Amendment's protections against compulsory self-incrimination.
Held :
1. The penalty imposed by § 311(b)(6) is civil and hence does not trigger the protections afforded by the Constitution to a criminal defendant. Pp. 248-251.
(a) It is clear that Congress intended in § 311(b)(6) to impose a civil penalty upon persons in respondent's position, and to allow imposition of the penalty without regard to the procedural protections and restrictions available in criminal prosecutions. This intent is indicated by the fact that the authorized sanction is labeled a "civil penalty," and by the juxtaposition of such label with the criminal penalties set forth in § 311(b)(5). P. 249.
(b) The fact that § 13 of the Rivers and Harbors Appropriation Act of 1899 makes criminal the conduct penalized in this case does not render the penalty under § 311(b)(6) criminal in nature. The placement of criminal penalties in one statute and of civil penalties in another statute enacted 70 years later tends to dilute the force of the factor—the behavior to which the penalty applies is already a crime—considered, inter alia in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644, as indicating that a penalty is criminal in nature. Neither that factor nor any of the other factors set forth in Mendoza-Martinez are sufficient to render unconstitutional the congressional classification of the penalty established in § 311(b)(6). Pp. 249-251.
2. The proceeding in which the penalty was imposed was not "quasi-criminal" so as to implicate the Fifth Amendment's protection against self-incrimination. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, distinguished. In light of overwhelming evidence that Congress intended to create a penalty civil in all respects and weak evidence of any countervailing punitive purpose or effect, it would be anomalous to hold that § 311(b)(6) created a criminal penalty for the purposes of the Self-Incrimination Clause but a civil penalty for all other purposes. Pp. 251-254.
10 Cir., 598 F.2d 1187, reversed.
Edwin S. Kneedler for petitioner.
Stephen Jones, Enid, Okl., for respondent.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
The United States seeks review of a decision of the United States Court of Appeals for the Tenth Circuit that a proceeding for the assessment of a "civil penalty" under § 311(b)(6) of the Federal Water Pollution Control Act (FWPCA) is a "criminal case" within the meaning of the Fifth Amendment's guarantee against compulsory self-incrimination. We granted certiorari, 444 U.S. 939, 100 S.Ct. 291, 62 L.Ed.2d 305, and now reverse.
2
* At the time this case arose,1 § 311(b)(3) of the FWPCA prohibited the discharge into navigable waters or onto adjoining shorelines of oil or hazardous substances in quantities determined by the President to be "harmful."2 Section 311(b)(5) of the Act imposed a duty upon "any person in charge of a vessel or of an onshore facility or an offshore facility" to report any discharge of oil or a hazardous substance into navigable waters to the "appropriate agency" of the United States Government. Should that person fail to supply such notification, he or she was liable to a fine of not more than $10,000 or imprisonment of not more than one year. Section 311(b)(5) also provided for a form of "use immunity," specifying that "[n]otification received pursuant to this paragraph or information obtained by the exploitation of such notification shall not be used against any such person in any criminal case, except a prosecution for perjury or for giving a false statement." 33 U.S.C. § 1321(b)(5).3
3
Section 311(b)(6) provided for the imposition of a "civil penalty" against "[a]ny owner or operator of any vessel, onshore facility, or offshore facility from which oil or a hazardous substance is discharged in violation" of the Act. In 1975, that subsection called for a penalty of up to $5,000 for each violation of the Act.4 In assessing penalties, the Secretary of the appropriate agency was to take into account "the appropriateness of such penalty to the size of the business or of the owner or operator charged, the effect on the owner or operator's ability to continue in business, and the gravity of the violation . . . ." 33 U.S.C. § 1321(b)(6).5
4
According to § 311(k) of the Act, funds collected from the assessment of penalties under § 311(b)(6) were to be paid into a "revolving fund" together with "other funds received . . . under this section" and any money appropriated to the revolving fund by Congress. See 33 U.S.C. § 1321(k). Money contained in this fund was to be used to finance the removal, containment, or dispersal of oil and hazardous substances discharged into navigable waters and to defray the costs of administering the Act. 33 U.S.C. § 1321(l ). another section of the Act allowed the United States Government to collect the costs of removal, containment, or dispersal of a discharge from the person or corporation responsible for that discharge in cases where that person or corporation had been identified. 33 U.S.C. § 1321(f).
5
On or about March 23, 1975, oil escaped from an oil retention pit at a drilling facility located near Enid, Okla., and eventually found its way into Boggie Creek, a tributary of the Arkansas River system.6 At the time of the discharge, the premises were being leased by respondent L. O. Ward, who was doing business as L. O. Ward Oil & Gas Operations. On April 2, 1975, respondent Ward notified the regional office of the Environmental Protection Agency (EPA) that a discharge of oil had taken place. Ward later submitted a more complete written report of the discharge, which was in turn forwarded to the Coast Guard, the agency responsible for assessing civil penalties under § 311(b)(6).
6
After notice and opportunity for hearing, the Coast Guard assessed a civil penalty against respondent in the amount of $500. Respondent filed an administrative appeal from this ruling, contending, inter alia, that the reporting requirements of § 311(b)(5) of the Act violated his privilege against compulsory self-incrimination. The administrative appeal was denied.
7
On April 13, 1976, Ward filed suit in the United States District Court for the Western District of Oklahoma, seeking to enjoin the Secretary of Transportation, the Commandant of the Coast Guard, and the Administrator of EPA from enforcing §§ 311(b)(5) and (6) and from collecting the penalty of $500. On June 4, 1976, the United States filed a separate suit in the same court to collect the unpaid penalty. The District Court eventually ordered the two suits consolidated for trial.
8
Prior to trial, the District Court rejected Ward's contention that the reporting requirements of § 311(b)(5), as used to support a civil penalty under § 311(b)(6), violated his right against compulsory self-incrimination. The case was tried to a jury, which found that Ward's facility did, in fact, spill oil into Boggie Creek. The District Court, however, reduced Ward's penalty to $250 because of the amount of oil that had spilled and because of its belief that Ward had been diligent in his attempts to clean up the discharge after it had been discovered.
9
The United States Court of Appeals for the Tenth Circuit reversed. Ward v. Coleman, 598 F.2d 1187 (1979). Although admitting that Congress had labeled the penalty provided for in § 311(b)(6) as civil and that the use of funds collected under that section to finance the administration of the Act indicated a "remedial" purpose for the provision, the Court of Appeals tested the statutory scheme against the standards set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554, 567-568, 9 L.Ed.2d 644 (1963),7 and held that § 311(b)(6) was sufficiently punitive to intrude upon the Fifth Amendment's protections against compulsory self-incrimination. It therefore reversed and remanded for further proceedings in the collection suit.
II
10
The distinction between a civil penalty and a criminal penalty is of some constitutional import. The Self-Incrimination Clause of the Fifth Amendment, for example, is expressly limited to "any criminal case." Similarly, the protections provided by the Sixth Amendment are available only in "criminal prosecutions." Other constitutional protections, while not explicitly limited to one context or the other, have been so limited by decision of this Court. See, e. g., Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 633, 82 L.Ed. 917 (1938) (Double Jeopardy Clause protects only against two criminal punishments); United States v. Regan 232 U.S. 37, 47-48, 34 S.Ct. 213, 216-217, 58 L.Ed. 494 (1914) (proof beyond a reasonable doubt required only in criminal cases).
11
This Court has often stated that the question whether a particular statutorily defined penalty is civil or criminal is a matter of statutory construction. See e. g., One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 237, 93 S.Ct. 489, 493, 34 L.Ed.2d 438 (1972); Helvering v. Mitchell, supra, 303 U.S., at 399, 58 S.Ct., at 633. Our inquiry in this regard has traditionally proceeded on two levels. First, we have set out to determine whether Congress, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other. See One Lot Emerald Cut Stones v. United States, supra, at 236-237, 93 S.Ct., at 492-493. Second, where Congress has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect as to negate that intention. See Flemming v. Nestor, 363 U.S. 603, 617-621, 80 S.Ct., 1367, 1376-1378, 4 L.Ed.2d 1435 (1960). In regard to this latter inquiry, we have noted that "only the clearest proof could suffice to establish the unconstitutionality of a statute on such a ground." Id., at 617, 80 S.Ct., at 1376. See also One Lot Emerald Cut Stones v. United States, supra, 409 U.S., at 237, 93 S.Ct., at 493; Rex Trailer Co. v. United States, 350 U.S. 148, 154, 76 S.Ct. 219, 222, 100 L.Ed. 149 (1956).
12
As for our first inquiry in the present case, we believe it quite clear that Congress intended to impose a civil penalty upon persons in Ward's position. Initially, and importantly, Congress labeled the sanction authorized in § 311(b)(6) a "civil penalty," a label that takes on added significance given its juxtaposition with the criminal penalties set forth in the immediately preceding subparagraph, § 311(b)(5). Thus, we have no doubt that Congress intended to allow imposition of penalties under § 311(b)(6) without regard to the procedural protections and restrictions available in criminal prosecutions.
13
We turn then to consider whether Congress, despite its manifest intention to establish a civil, remedial mechanism, nevertheless provided for sanctions so punitive as to "transfor[m] what was clearly intended as a civil remedy into a criminal penalty." Rex Trailer Co. v. United States, supra, 350 U.S. at 154, 76 S.Ct., at 222. In making this determination, both the District Court and the Court of Appeals found it useful to refer to the seven considerations listed in Kennedy v. Mendoza-Martinez, supra, 372 U.S., at 168-169, 83 S.Ct., at 567-568. This list of considerations, while certainly neither exhaustive nor dispositive, has proved helpful in our own consideration of similar questions, see, e. g., Bell v. Wolfish, 441 U.S. 520, 537-538, 99 S.Ct. 1861, 1873-1874, 60 L.Ed.2d 447 (1979), and provides some guidance in the present case.
14
Without setting forth here our assessment of each of the seven Mendoza-Martinez factors, we think only one, the fifth, aids respondent. That is a consideration of whether "the behavior to which [the penalty] applies is already a crime." 372 U.S., at 168-169, 83 S.Ct., at 567. In this regard, respondent contends that § 13 of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. § 407, makes criminal the precise conduct penalized in the present case. Moreover, respondent points out that at least one federal court has held that § 13 of the Rivers and Harbors Appropriation Act defines a "strict liability crime," for which the Government need prove no scienter. See United States v. White Fuel Corp., 498 F.2d 619 (CA1 1974). According to respondent, this confirms the lower court's conclusion that this fifth factor "falls clearly in favor of a finding that [§ 311(b)(6)] is criminal in nature." 598 F.2d, at 1193.
15
While we agree that this consideration seems to point toward a finding that § 311(b)(6) is criminal in nature, that indication is not as strong as it seems at first blush. We have noted on a number of occasions that "Congress may impose both a criminal and a civil sanction in respect to the same act or omission." Helvering v. Mitchell, supra, 303 U.S., at 399, 58 S.Ct., at 633; One Lot Emerald Cut Stones v. United States, supra, 409 U.S., at 235, 93 S.Ct., at 492. Moreover, in Helvering, where we held a 50% penalty for tax fraud to be civil, we found it quite significant that "the Revenue Act of 1928 contains two separate and distinct provisions imposing sanctions," and that "these appear in different parts of the statute . . . ." 303 U.S., at 404, 58 S.Ct., at 636. See also One Lot Emerald Cut Stones v. United States, supra, at 236-237, 93 S.Ct., at 492-493. To the extent that we found significant the separation of civil and criminal penalties within the same statute, we believe that the placement of criminal penalties in one statute and the placement of civil penalties in another statute enacted 70 years later tends to dilute the force of the fifth Mendoza-Martinez criterion in this case.
16
In sum, we believe that the factors set forth in Mendoza-Martinez, while neither exhaustive nor conclusive on the issue, are in no way sufficient to render unconstitutional the congressional classification of the penalty established in § 311(b)(6) as civil. Nor are we persuaded by any of respondent's other arguments that he has offered the "clearest proof" that the penalty here in question is punitive in either purpose or effect.
III
17
Our conclusion that § 311(b)(6) does not trigger all the protections afforded by the Constitution to a criminal defendant does not completely dispose of this case. Respondent asserts that, even if the penalty imposed upon him was not sufficiently criminal in nature to trigger other guarantees, it was "quasi-criminal," and therefore sufficient to implicate the Fifth Amendment's protection against compulsory self-incrimination. He relies primarily in this regard upon Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), and later cases quoting its language.
18
In Boyd, appellants had been indicted under § 12 of an "Act to amend the customs revenue laws and to repeal moieties," for fraudulently attempting to deprive the United States of lawful customs duties payable on certain imported merchandise. According to the statute in question, a person found in violation of its provisions was to be "fined in any sum not exceeding $5,000 nor less than $50, or be imprisoned for any time not exceeding two years, or both; and, in addition to such fine, such merchandise shall be forfeited." 116 U.S., at 617, 6 S.Ct., at 525. Despite the pending indictment, appellants filed a claim for the goods held by the United States. In response, the prosecutor obtained an order of the District Court requiring appellants to produce the invoice covering the goods at issue. Appellants objected that such an order violated the Fourth and Fifth Amendments by subjecting them to an unreasonable search and seizure and by requiring them to act as witnesses against themselves.
19
This Court found the Fifth Amendment applicable, even though the action in question was one contesting the forfeiture of certain goods. According to the Court: "We are . . . clearly of opinion that proceedings instituted for the purpose of declaring the forfeiture of a man's property by reason of offences committed by him, though they may be civil in form, are in their nature criminal." Id., at 633-634, 6 S.Ct., at 534. While at this point in its opinion, the Court seemed to limit its holding to proceedings involving the forfeiture of property, shortly after the quoted passage it broadened its reasoning in a manner that might seem to apply to the present case: "As, therefore, suits for penalties and forfeitures, incurred by the commission of offences against the law, are of this quasi-criminal nature, we think that they are within the reason of criminal proceedings for all the purposes of the fourth amendment of the constitution, and of that portion of the fifth amendment which declares that no person shall be compelled in any criminal case to be a witness against himself . . . ." Id., at 634, 6 S.Ct., at 534 (emphasis added).
20
Seven years later, this Court relied primarily upon Boyd in holding that a proceeding resulting in a "forfeit and penalty" of $1,000 for violation of an Act prohibiting the employment of aliens was sufficiently criminal to trigger the protections of the Self-Incrimination Clause of the Fifth Amendment. Lees v. United States, 150 U.S. 476, 14 S.Ct. 163, 37 L.Ed. 1150 (1893). More recently, in One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965), and United States v. United States Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971), this Court applied Boyd to proceedings involving the forfeiture of property for alleged criminal activity. Plymouth Sedan dealt with the applicability of the so-called exclusionary rule to a proceeding brought by the State of Pennsylvania to secure the forfeiture of a car allegedly involved in the illegal transportation of liquor. Coin & Currency involved the applicability of the Fifth Amendment privilege against compulsory self-incrimination in a proceeding brought by the United States to secure forfeiture of $8,674 found in the possession of a gambler at the time of his arrest.
21
Read broadly, Boyd might control the present case. This Court has declined, however, to give full scope to the reasoning and dicta in Boyd, noting on at least one occasion that "[s]everal of Boyd § express or implicit declarations have not stood the test of time." Fisher v. United States, 425 U.S. 391, 407, 96 S.Ct. 1569, 1579, 48 L.Ed.2d 39 (1976). In United States v. Regan, 232 U.S. 37, 34 S.Ct. 213, 58 L.Ed. 494 (1914), for example, we declined to apply Boyd § classification of penalties and forfeitures as criminal in a case where a defendant assessed with a $1,000 penalty for violation of the Alien Immigration Act claimed that he was entitled to have the Government prove its case beyond a reasonable doubt. Boyd and Lees, according to Regan, were limited in scope to the Fifth Amendment's guarantee against compulsory self-incrimination, which "is of broader scope than are the guarantees in Art. [III] and the [Sixth] Amendment governing trials and criminal prosecutions." 232 U.S., at 50, 34 S.Ct., at 218. See also Helvering v. Mitchell, 303 U.S., at 400, n. 3, 58 S.Ct., at 633 n. 3. Similarly, in Hepner v. United States, 213 U.S. 103, 29 S.Ct. 474, 53 L.Ed. 720 (1909), this Court upheld the entry of a directed verdict against the appellant under a statute similar to that examined in Lees. According to Hepner, "the Lees and Boyd cases do not modify or disturb but recognize the general rule that penalties may be recovered by civil actions, although such actions may be so far criminal in their nature that the defendant cannot be compelled to testify against himself in such actions in respect to any matters involving, or that may involve, his being guilty of a criminal offense." Id., at 112, 29 S.Ct., at 478.
22
The question before us, then, is whether the penalty imposed in this case, although clearly not "criminal" enough to trigger the protections of the Sixth Amendment, the Double Jeopardy Clause of the Fifth Amendment, or the other procedural guarantees normally associated with criminal prosecutions, is nevertheless "so far criminal in [its] nature" as to trigger the Self-Incrimination Clause of the Fifth Amendment. Initially, we note that the penalty and proceeding considered in Boyd were quite different from those considered in this case. Boyd dealt with forfeiture of property, a penalty that had absolutely no correlation to any damages sustained by society or to the cost of enforcing the law. See also Lees v. United States, supra (fixed monetary penalty); One 1958 Plymouth Sedan v. Pennsylvania, supra (forfeiture); United States v. United States Coin & Currency, supra (forfeiture). Here the penalty is much more analogous to traditional civil damages. Moreover, the statute under scrutiny in Boyd listed forfeiture along with fine and imprisonment as one possible punishment for customs fraud, a fact of some significance to the Boyd Court. See 116 U.S., at 634, 6 S.Ct., at 534. Here, as previously stated, the civil remedy and the criminal remedy are contained in separate statutes enacted 70 years apart. The proceedings in Boyd also posed a danger that the appellants would prejudice themselves in respect to later criminal proceedings. See Hepner v. United States, supra, 213 U.S., at 112, 29 S.Ct., at 478. Here, respondent is protected by § 311(b)(5), which expressly provides that "[n]otification received pursuant to this paragraph or information obtained by the exploitation of such notification shall not be used against any such person in any criminal case, except [for] prosecution for perjury or for giving a false statement." 33 U.S.C. § 1321(b)(5).
23
More importantly, however, we believe that in the light of what we have found to be overwhelming evidence that Congress intended to create a penalty civil in all respects and quite weak evidence of any countervailing punitive purpose or effect it would be quite anomalous to hold that § 311(b)(6) created a criminal penalty for the purposes of the Self-Incrimination Clause but a civil penalty for all other purposes. We do not read Boyd as requiring a contrary conclusion.
IV
24
We conclude that the penalty imposed by Congress was civil, and that the proceeding in which it was imposed was not "quasi-criminal" as that term is used in Boyd v. United States, supra. The judgment of the Court of Appeals is therefore
25
Reversed.
26
Mr. Justice BLACKMUN, with whom Mr. Justice MARSHALL joins, concurring in the judgment.
27
I agree with the Court that a proceeding for assessment of a monetary penalty under § 311(b)(6) of the Federal Water Pollution Control Act, 33 U.S.C. § 1321(b)(6), is not a "criminal case" within the meaning of the Fifth Amendment. I reach this conclusion, however, for a number of reasons in addition to those discussed in the Court's opinion.
28
The Court of Appeals engaged in a careful analysis of the standards set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554, 567-568, 9 L.Ed.2d 644 (1963), for distinguishing civil from criminal proceedings. These standards are cataloged in a footnote of the Court's opinion. Ante, at 247-248, n. 7. The Court of Appeals concluded that some of the seven stated factors offered little guidance in this case, while others supported a "criminal" designation. In particular, it found that scienter played a part in determining the amount of penalty assessments; that the penalties promote traditional retributive aims of punishment; that behavior giving rise to the assessment is subject to criminal punishment under § 13 of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. § 407; and that the criteria employed by the Coast Guard to set the amount of assessments permit penalties that may be excessive in relation to alternative remedial or nonpunitive purposes. Ward v. Coleman, 598 F.2d 1187, 1192-1194 (CA10 1979). The Court is content to discuss only one of these findings. See ante, at 249-250. Because of the consideration given the others by the Court of Appeals, I think they deserve brief discussion, too.
29
My analysis of these other factors differs from that of the Court of Appeals in two principal respects. First, I do not agree with that court's apparent conclusion that none of the Mendoza-Martinez factors strongly supports a "civil" designation for a penalty proceeding under § 311(b)(6). I conclude that imposition of a monetary penalty under this statute does not result in the imposition of an "affirmative disability or restraint" within the meaning of Mendoza-Martinez, supra, 372 U.S., at 168, 83 S.Ct., at 567; that monetary assessments are traditionally a form of civil remedy; and that, as the Court of Appeals conceded, 598 F.2d, at 1193, § 311(b)(6) serves remedial purposes dissociated from punishment. Although any one of these considerations by itself might not weigh heavily in favor of a "civil" designation, I think that cumulatively they point significantly in that direction.
30
Second, I would assign less weight to the role of scienter, the promotion of penal objectives, and the potential excessiveness of fines than did the Court of Appeals. Mendoza-Martinez suggested that a sanction that "comes into play only on a finding of scienter " might be indicative of a criminal proceeding. 372 U.S., at 168, 83 S.Ct., at 567 (first emphasis added). Plainly, that is not the case here. Scienter is not mentioned on the face of the statute, and it is only one of many factors relevant to determination of an assessment under Coast Guard Commandant Instruction 5922.11B (Oct. 10, 1974). Furthermore, although the fines conceivably could be used to promote primarily deterrent or retributive ends, the fact that collected assessments are deposited in a revolving fund used to defray the expense of cleanup operations is a strong indicator of the pervasively civil and compensatory thrust of the statutory scheme. See § 311(k), 33 U.S.C. § 1321(k). Finally, while some of the factors employed by the Coast Guard to set the amount of assessments undoubtedly could be used to exact excessive penalties, others are expressly related to the cost of cleanup and other remedial considerations. In the absence of evidence that excessive penalties actually have been assessed, I would be inclined to regard their likelihood as remote.
31
For these reasons, I agree with the Court that only the fifth Mendoza-Martinez factor, "whether the behavior to which [the sanction] applies is already a crime," 372 U.S., at 168, 83 S.Ct., at 168, supports the respondent. Since I feel that this factor alone does not mandate characterization of the proceeding as "criminal" for purposes of the Fifth Amendment, particularly when other factors weigh in the opposite direction, I concur in the judgment.
32
Mr. Justice STEVENS, dissenting.
33
There are a host of situations in which the Government requires the citizen to provide it with information that may later be useful in proving that the citizen has some liability to the Government. In determining whether the combination of compulsion and liability is consistent with the Fifth Amendment, I would look to two factors: first, whether the liability actually imposed on the citizen is properly characterized as "criminal" and second, if so, whether the compulsion of information was designed to assist the Government in imposing such a penalty rather than furthering some other valid regulatory purpose.
34
Although this case is admittedly a close one, I am persuaded that the monetary penalty imposed on respondent pursuant to § 311(b)(6) of the Federal Water Pollution Control Act, 33 U.S.C. § 1321(b)(6), was a "criminal" sanction for purposes of the Fifth Amendment protection against compelled self-incrimination. As the Court of Appeals pointed out, penalties under § 311(b)(6) are not calculated to reimburse the Government for the cost of cleaning up an oil spill.1 Rather, this part of the statute is clearly aimed at exacting retribution for causing the spill:
35
"The penalties are based on such factors as the gravity of the violation, the degree of culpability and the prior record of the party. The fact that a party acted in good faith, could not have avoided the discharge and, once it occurred, undertook clean-up measures immediately is to be given no consideration in relation to the 'imposition or amount of a civil penalty.' " Ward v. Coleman, 598 F.2d 1187, 1193 (CA10 1979).
36
I agree with the Court of Appeals that, under these circumstances, application of the factors set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644, leads to the conclusion that the penalty is a criminal sanction rather than a purely regulatory measure.
37
That is not the end of the inquiry, however. A reporting requirement is not necessarily invalid simply because it may incriminate a few of the many people to whom it applies. Two examples from the tax field will illustrate my point. As this Court held in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 and Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906, statutes that are plainly designed to obtain information from a limited class of persons engaged in criminal activity in order to facilitate their prosecution and conviction are invalid under the Fifth Amendment. On the other hand, when the general income tax laws require a full reporting of each taxpayer's income in order to fulfill the Government's regulatory objectives, the fact that a particular answer may incriminate a particular taxpayer is not a sufficient excuse for refusing to supply the relevant information required from every taxpayer. See United States v. Oliver, 505 F.2d 301, 307-308 (CA7 1974).2
38
Thus, given that the statutory penalty in this case is a criminal sanction, the issue becomes what the primary purpose of requiring the citizen to report oil spills is. If it is to simplify the assessment and collection of penalties from those responsible, it should fall within the reasoning of Marchetti and Grosso. On the other hand, if the requirement is merely to assist the Government in its cleanup responsibilities and in its efforts to monitor the conditions of the Nation's waterways, it should be permissible. Although the question is again a close one, the automatic nature of the statutory penalty, which must be assessed in each and every case, convinces me that the reporting requirement is a form of compelled self-incrimination.3 I therefore respectfully dissent.
1
Section 311 was amended by the Clean Water Act of 1977, Pub.L. 95-217, 91 Stat. 1566, and the Federal Water Pollution Control Act Amendments of 1978, Pub.L. 95-576, 92 Stat. 2468. Except as noted, those amendments have no bearing on the present case. See nn. 2 and 4, infra.
2
Section 311(b)(3) was amended by the Federal Water Pollution Control Act Amendments of 1978, Pub.L. 95-576, 92 Stat. 2468, to prohibit the discharge of oil and hazardous substances "in such quantities as may be harmful" (emphasis added), as determined by the President.
3
At the time in question, § 311(b)(5) read in full:
"Any person in charge of a vessel or of an onshore facility or an offshore facility shall, as soon as he has knowledge of any discharge of oil or a hazardous substance from such vessel or facility in violation of paragraph (3) of this subsection, immediately notify the appropriate agency of the United States Government of such discharge. Any such person who fails to notify immediately such agency of such discharge shall, upon conviction, be fined not more than $10,000, or imprisoned for not more than one year, or both. Notification received pursuant to this paragraph or information obtained by the exploitation of such notification shall not be used against any such person in any criminal case, except a prosecution for perjury or for giving a false statement."
4
Section 311(b)(6) was amended by the Federal Water Pollution Control Act Amendments of 1978, Pub.L. 95-576, 92 Stat. 2168, to authorize civil penalties of up to $50,000 per offense, or up to $250,000 per offense in cases where the discharge was the result of willful negligence or misconduct.
5
At the time of the discharge in this case, § 311(b)(6), as set forth in 33 U.S.C. § 1321(b)(6), read:
"Any owner or operator of any vessel, onshore facility, or offshore facility from which oil or a hazardous substance is discharged in violation of paragraph (3) of this subsection shall be assessed a civil penalty by the Secretary of the department in which the Coast Guard is operating of not more than $5,000 for each offense. No penalty shall be assessed unless the owner or operator charged shall have been given notice and opportunity for a hearing of such charge. Each violation is a separate offense. Any such civil penalty may be compromised by such Secretary. In determining the amount of the penalty, or the amount agreed upon in compromise, the appropriateness of such penalty to the size of the business of the owner or operator charged, the effect on the owner or operator's ability to continue in business, and the gravity of the violation, shall be considered by such Secretary. The Secretary of the Treasury shall withhold at the request of such Secretary the clearance required by section 91 of Title 46 of any vessel the owner or operator of which is subject to the foregoing penalty. Clearance may be granted in such cases upon the filing of a bond or other surety satisfactory to such Secretary."
6
All parties concede that Boggie Creek is a "navigable water" within the meaning of 33 U.S.C. § 1362(7).
7
The standards set forth were "[w]hether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment—retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned. . . ." 372 U.S., at 168-169, 83 S.Ct., at 567-568 (footnotes omitted).
1
An owner or operator is liable for cleanup costs or, in the event that the discharge is "nonremovable," for liquidated damages under 33 U.S.C. § 1321(b)(2)(B)(i) and § 1321(f). As the Court of Appeals noted, payment of these damages does not relieve the owner or operator of liability for civil penalties under § 311(b)(6). Ward v. Coleman, 598 F.2d 1187, 1191 (CA10 1978).
2
As I suggested in Oliver :
"The enactment of special legislation designed to procure incriminating disclosures from a select group of persons engaged in criminal conduct was tantamount to an accusation commencing criminal proceedings against them. The statutory demand to register as a gambler was comparable to the inquisitor's demand that a suspect in custody admit his guilt. The admission, once made, would almost inevitably become a part of the record of a criminal proceeding against a person who had already been accused when he confessed. Just as the Miranda decision may be read as having enlarged the adversary proceeding to commence when the accused is first taken into custody, Marchetti and comparable cases have, for Fifth Amendment purposes, treated special statutes designed to secure incriminating information from inherently suspect classes of persons as the commencement of criminal proceedings against those from whom incriminating information is demanded. Under this analysis, we must test the applicability of the Fifth Amendment to a self-reporting statute at the time that disclosure is compelled.
"The statute which defendant Oliver is accused of violating is applicable to the public at large, and its demands for information are neutral in the sense that they apply evenly to the few who have illegal earnings and the many who do not. The self-reporting requirements of the Internal Revenue Code are justified by acceptable reasons of policy, entirely unrelated to any purpose to obtain incriminating evidence against an accused person othough the disclosure of defendant's illegal income was compelled by statute, and even though we assume that such disclosure might well have been incriminating, the Marchetti holding does not justify the conclusion that the Fifth Amendment excuses defendant's obligation to report his entire income." (Footnotes omitted.) 505 F.2d, at 307-308.
3
As a result, I would hold that the Government could not use a report filed by an individual owner or operator in assessing a civil penalty under § 311(b)(6). However, I believe the Government could still use such a report in assessing damages under either § 311(b)(2)(B)(i) or § 311(f), see n. 1, supra, since penalties assessed under those subsections are regulatory rather than punitive in character.
| 01
|
448 U.S. 136
100 S.Ct. 2578
65 L.Ed.2d 665
WHITE MOUNTAIN APACHE TRIBE et al., Petitioners,v.Robert M. BRACKER et al.
No. 78-1177.
Argued Jan. 14, 1980.
Decided June 27, 1980.
Syllabus
Pursuant to a contract with an organization of petitioner White Mountain Apache Tribe, petitioner Pinetop Logging Co. (Pinetop), a non-Indian enterprise authorized to do business in Arizona, felled tribal timber on the Fort Apache Reservation and transported it to the tribal organization's sawmill. Pinetop's activities were performed solely on the reservation. Respondents, state agencies and members thereof, sought to impose on Pinetop Arizona's motor carrier license tax, which is assessed on the basis of the carrier's gross receipts, and its use fuel tax, which is assessed on the basis of diesel fuel used to propel a motor vehicle on any highway within the State. Pinetop paid the taxes under protest and then brought suit in state court, asserting that under federal law the taxes could not lawfully be imposed on logging activities conducted exclusively within the reservation or on hauling activities on Bureau of Indian Affairs (BIA) and tribal roads. The trial court awarded summary judgment to respondents, and the Arizona Court of Appeals affirmed in pertinent part, rejecting petitioners' pre-emption claim.
Held : The Arizona taxes are pre-empted by federal law. Cf. Warren Trading Post Co. v. Arizona Tax Comm'n, 380 U.S. 685, 85 S.Ct. 1242, 14 L.Ed.2d 165. Pp. 141-153.
(a) The tradition of Indian sovereignty over the reservation and tribal members must inform the determination whether the exercise of state authority has been pre-empted by operation of federal law. Where, as here, a State asserts authority over the conduct of non-Indians engaging in activity on the reservation, a particularized inquiry must be made into the nature of the state, federal, and tribal interests at stake, an inquiry designed to determine whether, in the specific context, the exercise of state authority would violate federal law. Pp. 141-145.
(b) The Federal Government's regulation of the harvesting, sale, and management of tribal timber, and of the BIA and tribal roads, is so pervasive as to preclude the additional burdens sought to be imposed here by assessing the taxes in question against Pinetop for operations that are conducted solely on BIA and tribal roads within the reservation. Pp. 145-149.
(c) Imposition of the taxes in question would undermine the federal policy of assuring that the profits from timber sales would inure to the Tribe's benefit; would also undermine the Secretary of the Interior's ability to make the wide range of determinations committed to his authority concerning the setting of fees and rates with respect to the harvesting and sale of tribal timber; and would adversely affect the Tribe's ability to comply with the sustained-yield management policies imposed by federal law. Pp. 149-150.
(d) Respondents' generalized interest in raising revenue is insufficient, in the context of this case, to permit its proposed intrusion into the federal regulatory scheme with respect to the harvesting and sale of tribal timber. P. 150.
120 Ariz. 282, 585 P.2d 891, reversed.
Neil Vincent Wake, Phoenix, Ariz., and Michael J. Brown, Tucson, Ariz., for petitioners.
Elinor H. Stillman, Washington, D.C., for the U.S., as amicus curiae, by special leave of the Court.
Ian A. Macpherson, Asst. Atty. Gen., Phoenix, Ariz., for respondents.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
In this case we are once again called upon to consider the extent of state authority over the activities of non-Indians engaged in commerce on an Indian reservation. The State of Arizona seeks to apply its motor carrier license and use fuel taxes to petitioner Pinetop Logging Co. (Pinetop), an enterprise consisting of two non-Indian corporations authorized to do business in Arizona and operating solely on the Fort Apache Reservation. Pinetop and petitioner White Mountain Apache Tribe contend that the taxes are pre-empted by federal law or alternatively, that they represent an unlawful infringement on tribal self-government. The Arizona Court of appeals rejected petitioners' claims. We hold that the taxes are pre-empted by federal law, and we therefore reverse.
2
* The 6,500 members of petitioner White Mountain Apache Tribe reside on the Fort Apache Reservation in a mountainous and forested region of northeastern Arizona.1 The Tribe is organized under a constitution approved by the Secretary of the Interior under the Indian Reorganization Act, 25 U.S.C. § 476. The revenue used to fund the Tribe's governmental programs is derived almost exclusively from tribal enterprises. Of these enterprises, timber operations have proved by far the most important, accounting for over 90% of the Tribe's total annual profits.2
3
The Fort Apache Reservation occupies over 1,650,000 acres, including 720,000 acres of commercial forest. Approximately 300,000 acres are used for the harvesting of timber on a "sustained yield" basis, permitting each area to be cut every 20 years without endangering the forest's continuing productivity. Under federal law, timber on reservation land is owned by the United States for the benefit of the Tribe and cannot be harvested for sale without the consent of Congress. Acting under the authority of 25 CFR § 141.6 (1979) and the tribal constitution, and with the specific approval of the Secretary of the Interior, the Tribe in 1964 organized the Fort Apache Timber Co. (FATCO), a tribal enterprise that manages, harvests, processes, and sells timber. FATCO, which conducts all of its activities on the reservation, was created with the aid of federal funds. It employs about 300 tribal members.
4
The United States has entered into contracts with FATCO, authorizing it to harvest timber pursuant to regulations of the Bureau of Indian Affairs. FATCO has itself contracted with six logging companies, including Pinetop, which perform certain operations that FATCO could not carry out as economically on its own.3 Since it first entered into agreements with FATCO in 1969, Pinetop has been required to fell trees, cut them to the correct size, and transport them to FATCO's sawmill in return for a contractually specified fee. Pinetop employs approximately 50 tribal members. Its activities, performed solely on the Fort Apache Reservation, are subject to extensive federal control.
5
In 1971 respondents4 sought to impose on Pinetop the two state taxes at issue here. The first, a motor carrier license tax, is assessed on "[e]very common motor carrier of property and every contract motor carrier of property." Ariz.Rev.Stat.Ann. § 40-641(A)(1) (Supp.1979). Pinetop is a "contract motor carrier of property" since it is engaged in "the transportation by motor vehicle of property, for compensation, on any public highway." § 40-601(A)(7) (1974). The motor carrier license tax amounts to 2.5% of the carrier's gross receipts. § 40-641(A)(1) (Supp.1979). The second tax at issue is an excise or use fuel tax designed "[f]or the purpose of partially compensating the state for the use of its highways." Ariz.Rev.Stat.Ann. § 28-1552 (Supp.1979). The tax amounts to eight cents per gallon of fuel used "in the propulsion of a motor vehicle on any highway within this state." Ibid. The used fuel tax was assessed on Pinetop because it uses diesel fuel to propel its vehicles on the state highways within the Fort Apache Reservation.
6
Pinetop paid the taxes under protest,5 and then brought suit in state court, asserting that under federal law the taxes could not lawfully be imposed on logging activities conducted exclusively within the reservation or on hauling activities on Bureau of Indian Affairs and tribal roads.6 The Tribe agreed to reimburse Pinetop for any tax liability incurred as a result of its on-reservation business activities, and the Tribe intervened in the action as a plaintiff.7
7
Both petitioners and respondents moved for summary judgment on the issue of the applicability of the two taxes to Pinetop. Petitioners submitted supporting affidavits from the manager of FATCO, the head forester of the Bureau of Indian Affairs, and the Chairman of the White Mountain Apache Tribal Council; respondents offered no affidavits disputing the factual assertions by petitioners' affiants. The trial court awarded summary judgment to respondents,8 and the petitioners appealed to the Arizona Court of Appeals. The Court of Appeals rejected petitioners' pre-emption claim. 120 Ariz. 282, 585 P.2d 891 (1978). Purporting to apply the test set for in Pennsylvania v. Nelson, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640 (1956), the court held that the taxes did not conflict with federal regulation of tribal timber, that the federal interest was not so dominant as to preclude assessment of the challenged state taxes, and that the federal regulatory scheme did not "occupy the field." The court also concluded that the state taxes would not unlawfully infringe on tribal self-government. The Arizona Supreme Court declined to review the decision of the Court of Appeals. We granted certiorari. 444 U.S. 823, 100 S.Ct. 43, 62 L.Ed.2d 30 (1980).
II
8
Although "[g]eneralizations on this subject have become . . . treacherous," Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148, 93 S.Ct. 1267, 1270, 36 L.Ed.2d 114 (1973), our decisions establish several basic principles with respect to the boundaries between state regulatory authority and tribal self-government. Long ago the Court departed from Mr. Chief Justice Marshall's view that "the laws of [a State] can have no force" within reservation boundaries, Worcester v. Georgia, 6 Pet. 515, 561, 8 L.Ed. 483 (1832).9 See Moe v. Salish & Kootenai Tribes, 425 U.S. 463, 481-483, 96 S.Ct. 1634, 1645-1646, 48 L.Ed.2d 96 (1976); New York ex rel. Ray v. Martin, 326 U.S. 496, 66 S.Ct. 307, 90 L.Ed. 261 (1946); Utah & Northern R. Co. v. Fisher, 116 U.S. 28, 6 S.Ct. 246, 29 L.Ed. 542 (1885). At the same time we have recognized that the Indian tribes retain "attributes of sovereignty over both their members and their territory." United States v. Mazurie, 419 U.S. 544, 557, 95 S.Ct. 710, 717, 42 L.Ed.2d 706 (1975). See also United States v. Wheeler, 435 U.S. 313, 323, 98 S.Ct. 1079, 1086, 55 L.Ed.2d 303 (1978); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55-56, 98 S.Ct. 1670, 1675-1676, 56 L.Ed.2d 106 (1978). As a result, there is no rigid rule by which to resolve the question whether a particular state law may be applied to an Indian reservation or to tribal members. The status of the tribes has been described as " 'an anomalous one and of complex character,' " for despite their partial assimilation into American culture, the tribes have retained " 'a semi-independent position . . . not as States, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people, with the power of regulating their internal and social relations, and thus far not brought under the laws of the Union or of the State within whose limits they resided.' " McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 173, 93 S.Ct. 1257, 1263, 36 L.Ed.2d 129 (1973), quoting United States v. Kagama, 118 U.S. 375, 381-382, 6 S.Ct. 1109, 1112-1113, 30 L.Ed. 228 (1886).
9
Congress has broad power to regulate tribal affairs under the Indian Commerce Clause, Art. 1, § 8, cl. 3. See United States v. Wheeler, supra, at 322-323, 98 S.Ct., at 1085-1086. This congressional authority and the "semi-independent position" of Indian tribes have given rise to two independent but related barriers to the assertion of state regulatory authority over tribal reservations and members. First, the exercise of such authority may be pre-empted by federal law. See, e. g., Warren Trading Post Co. v. Arizona Tax Comm'n, 380 U.S. 685, 85 S.Ct. 1242, 14 L.Ed.2d 165 (1965); McClanahan v. Arizona State Tax Comm'n, supra. Second, it may unlawfully infringe "on the right of reservation Indians to make their own laws and be ruled by them." Williams v. Lee, 358 U.S. 217, 220, 79 S.Ct. 269, 271, 3 L.Ed.2d 251 (1959). See also Washington v. Yakima Indian Nation, 439 U.S. 463, 502, 99 S.Ct. 740, 762, 58 L.Ed.2d 740 (1979); Fisher v. District Court, 424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 106 (1976) (per curiam ); Kennerly v. District Court of Montana, 400 U.S. 423, 91 S.Ct. 480, 27 L.Ed.2d 507 (1971). The two barriers are independent because either, standing alone, can be a sufficient basis for holding state law inapplicable to activity undertaken on the reservation or by tribal members. They are related, however, in two important ways. The right of tribal self-government is ultimately dependent on and subject to the broad power of Congress. Even so, traditional notions of Indian self-government are so deeply engrained in our jurisprudence that they have provided an important "backdrop," McClanahan v. Arizona State Tax Comm'n, supra, at 172, 93 S.Ct., at 1262, against which vague or ambiguous federal enactments must always be measured.
10
The unique historical origins of tribal sovereignty make it generally unhelpful to apply to federal enactments regulating Indian tribes those standards of pre-emption that have emerged in other areas of the law. Tribal reservations are not States, and the differences in the form and nature of their sovereignty make it treacherous to import to one notions of pre-emption that are properly applied to the other. The tradition of Indian sovereignty over the reservation and tribal members must inform the determination whether the exercise of state authority has been pre-empted by operation of federal law. Moe v. Salish & Kootenai Tribes, supra, at 475, 96 S.Ct., at 1642. As we have repeatedly recognized, this tradition is reflected and encouraged in a number of congressional enactments demonstrating a firm federal policy of promoting tribal self-sufficiency and economic development.10 Ambiguities in federal law have been construed generously in order to comport with these traditional notions of sovereignty and with the federal policy of encouraging tribal independence. See McClanahan v. Arizona State Tax Comm'n, supra, at 174-175, and n. 13, 93 S.Ct. 1263-1264, and n. 13. We have thus rejected the proposition that in order to find a particular state law to have been preempted by operation of federal law, an express congressional statement to that effect is required.11 Warren Trading Post Co. v. Arizona Tax Comm'n, supra. At the same time any applicable regulatory interest of the State must be given weight, McClanahan v. Arizona State Tax Comm'n, supra, at 171, 93 S.Ct., at 1261, and "automatic exemptions 'as a matter of constitutional law' " are unusual. Moe v. Salish & Kootenai Tribes, 425 U.S., at 481, n. 17, 96 S.Ct., at 1645, n. 17.
11
When on-reservation conduct involving only Indians is at issue, state law is generally inapplicable, for the State's regulatory interest is likely to be minimal and the federal interest in encouraging tribal self-government is at its strongest. See Moe v. Salish & Kootenai Tribes, supra, at 480-481, 96 S.Ct., at 1644-1645; McClanahan v. Arizona State Tax Comm'n. More difficult questions arise where, as here, a State asserts authority over the conduct of non-Indians engaging in activity on the reservation. In such cases we have examined the language of the relevant federal treaties and statutes in terms of both the broad policies that underlie them and the notions of sovereignty that have developed from historical traditions of tribal independence. This inquiry is not dependent on mechanical or absolute conceptions of state or tribal sovereignty, but has called for a particularized inquiry into the nature of the state, federal, and tribal interests at stake, an inquiry designed to determine whether, in the specific context, the exercise of state authority would violate federal law. Compare Warren Trading Post Co. v. Arizona Tax Comm'n, supra, and Williams v. Lee, supra, with Moe v. Salish & Kootenai Tribes, supra, and Thomas v. Gay, 169 U.S. 264 (1898). Cf. McClanahan v. Arizona State Tax Comm'n, 411 U.S., at 171, 93 S.Ct., at 1261; Mescalero Apache Tribe v. Jones, 411 U.S., at 148, 93 S.Ct., at 1270.
III
12
With these principles in mind, we turn to the respondents' claim that they may, consistent with federal law, impose the contested motor vehicle license and use fuel taxes on the logging and hauling operations of petitioner Pinetop. At the outset we observe that the Federal Government's regulation of the harvesting of Indian timber is comprehensive. That regulation takes the form of Acts of Congress, detailed regulations promulgated by the Secretary of the Interior, and day-to-day supervision by the Bureau of Indian Affairs. Under 25 U.S.C. §§ 405-407, the Secretary of the Interior is granted broad authority over the sale of timber on the reservation.12 Timber on Indian land may be sold only with the consent of the Secretary, and the proceeds from any such sales, less administrative expenses incurred by the Federal Government, are to be used for the benefit of the Indians or transferred to the Indian owner. Sales of timber must "be based upon a consideration of the needs and best interests of the Indian owner and his heirs." 25 U.S.C. § 406(a). The statute specifies the factors which the Secretary must consider in making that determination.13 In order to assure the continued productivity of timber-producing land on tribal reservations, timber on unallotted lands "may be sold in accordance with the principles of sustained yield." 25 U.S.C. § 407. The Secretary is granted power to determine the disposition of the proceeds from timber sales. He is authorized to promulgate regulations for the operation and management of Indian forestry units. 25 U.S.C. § 466.
13
Acting pursuant to this authority, the Secretary has promulgated a detailed set of regulations to govern the harvesting and sale of tribal timber. Among the stated objectives of the regulations is the "development of Indian forests by the Indian people for the purpose of promoting self-sustaining communities, to the end that the Indians may receive from their own property not only the stumpage value, but also the benefit of whatever profit it is capable of yielding and whatever labor the Indians are qualified to perform." 25 CFR § 141.3(a)(3) (1979). The regulations cover a wide variety of matters: for example, they restrict clear-cutting, § 141.5; establish comprehensive guidelines for the sale of timber, § 141.7; regulate the advertising of timber sales, §§ 141.8, 141.9; specify the manner in which bids may be accepted and rejected, § 141.11; describe the circumstances in which contracts may be entered into, §§ 141.12, 141.13; require the approval of all contracts by the Secretary, § 141.13; call for timber-cutting permits to be approved by the Secretary, § 141.19; specify fire protective measures, § 141.21; and provide a board of administrative appeals, § 141.23. Tribes are expressly authorized to establish commercial enterprises for the harvesting and logging of tribal timber. § 141.6.
14
Under these regulations, the Bureau of Indian Affairs exercises literally daily supervision over the harvesting and management of tribal timber. In the present case, contracts between FATCO and Pinetop must be approved by the Bureau; indeed, the record shows that some of those contracts were drafted by employees of the Federal Government. Bureau employees regulate the cutting, hauling, and marking of timber by FATCO and Pinetop. The Bureau decides such matters as how much timber will be cut, which trees will be felled, which roads are to be used, which hauling equipment Pinetop should employ, the speeds at which logging equipment may travel, and the width, length, height, and weight of loads.
15
The Secretary has also promulgated detailed regulations governing the roads developed by the Bureau of Indian Affairs. 25 CFR Part 162 (1979). Bureau roads are open to "[f]ree public use." § 162.8. Their administration and maintenance are funded by the Federal Government, with contributions from the Indian tribes. §§ 162.6-162.6a. On the Fort Apache Reservation the Forestry Department of the Bureau has required FATCO and its contractors, including Pinetop, to repair and maintain existing Bureau and tribal roads and in some cases to construct new logging roads. Substantial sums have been spent for these purposes. In its federally approved contract with FATCO, Pinetop has agreed to construct new roads and to repair existing ones. A high percentage of Pinetop's receipts are expended for those purposes, and it has maintained separate personnel and equipment to carry out a variety of tasks relating to road maintenance.
16
In these circumstances we agree with petitioners that the federal regulatory scheme is so pervasive as to preclude the additional burdens sought to be imposed in this case. Respondents seek to apply their motor vehicle license and use fuel taxes on Pinetop for operations that are conducted solely on Bureau and tribal roads within the reservation.14 There is no room for these taxes in the comprehensive federal regulatory scheme. In a variety of ways, the assessment of state taxes would obstruct federal policies. And equally important, respondents have been unable to identify any regulatory function or service performed by the State that would justify the assessment of taxes for activities on Bureau and tribal roads within the reservation.
17
At the most general level, the taxes would threaten the overriding federal objective of guaranteeing Indians that they will "receive . . . the benefit of whatever profit [the forest] is capable of yielding. . . . " 25 CFR § 141.3(a)(3) (1979). Underlying the federal regulatory program rests a policy of assuring that the profits derived from timber sales will inure to the benefit of the Tribe, subject only to administrative expenses incurred by the Federal Government. That objective is part of the general federal policy of encouraging tribes "to revitalize their self-government" and to assume control over their "business and economic affairs." Mescalero Apache Tribe v. Jones, 411 U.S., at 151, 93 S.Ct., at 1272. The imposition of the taxes at issue would undermine that policy in a context in which the Federal Government has undertaken to regulate the most minute details of timber production and expressed a firm desire that the Tribe should retain the benefits derived from the harvesting and sale of reservation timber.
18
In addition, the taxes would undermine the Secretary's ability to make the wide range of determinations committed to his authority concerning the setting of fees and rates with respect to the harvesting and sale of tribal timber. The Secretary reviews and approves the terms of the Tribe's agreements with its contractors, sets fees for services rendered to the Tribe by the Federal Government, and determines stumpage rates for timber to be paid to the Tribe. Most notably in reviewing or writing the terms of the contracts between FATCO and its contractors, federal agents must predict the amount and determine the proper allocation of all business expenses, including fuel costs. The assessment of state taxes would throw additional factors into the federal calculus, reducing tribal revenues and diminishing the profitability of the enterprise for potential contractors.
19
Finally, the imposition of state taxes would adversely affect the Tribe's ability to comply with the sustainedyield management policies imposed by federal law. Substantial expenditures are paid out by the Federal Government, the Tribe, and its contractors in order to undertake a wide variety of measures to ensure the continued productivity of the forest. These measures include reforestation, fire control, wildlife promotion, road improvement, safety inspections, and general policing of the forest. The expenditures are largely paid for out of tribal revenues, which are in turn derived almost exclusively from the sale of timber. The imposition of state taxes on FATCO's contractors would effectively diminish the amount of those revenues and thus leave the Tribe and its contractors with reduced sums with which to pay out federally required expenses.
20
As noted above, this is not a case in which the State seeks to assess taxes in return for governmental functions it performs for those on whom the taxes fall. Nor have respondents been able to identify a legitimate regulatory interest served by the taxes they seek to impose. They refer to a general desire to raise revenue, but we are unable to discern a responsibility or service that justifies the assertion of taxes imposed for on-reservation operations conducted solely on tribal and Bureau of Indian Affairs roads. Pinetop's business in Arizona is conducted solely on the Fort Apache Reservation. Though at least the use fuel tax purports to "compensat[e] the state for the use of its highways," Ariz.Rev.Stat.Ann. § 28-1552 (Supp.1979), no such compensatory purpose is present here. The roads at issue have been built, maintained, and policed exclusively by the Federal Government, the Tribe, and its contractors. We do not believe that respondents' generalized interest in raising revenue is in this context sufficient to permit its proposed intrusion into the federal regulatory scheme with respect to the harvesting and sale of tribal timber.
21
Respondents' argument is reduced to a claim that they may assess taxes on non-Indians engaged in commerce on the reservation whenever there is no express congressional statement to the contrary. That is simply not the law. In a number of cases we have held that state authority over non-Indians acting on tribal reservations is pre-empted even though Congress has offered no explicit statement on the subject. See Warren Trading Post Co. v. Arizona Tax Comm'n, 380 U.S. 685, 85 S.Ct. 1242, 14 L.Ed.2d 165 (1965); Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959); Kennerly v. District Court of Montana, 400 U.S. 423, 91 S.Ct. 480, 27 L.Ed.2d 507 (1971). The Court has repeatedly emphasized that there is a significant geographical component to tribal sovereignty, a component which remains highly relevant to the pre-emption inquiry; though the reservation boundary is not absolute, it remains an important factor to weigh in determining whether state authority has exceeded the permissible limits. " 'The cases in this Court have consistently guarded the authority of Indian governments over their reservations.' " United States v. Mazurie, supra, 419 U.S., at 558, 95 S.Ct., at 718, quoting Williams v. Lee, supra, at 223, 79 S.Ct., at 272. Moreover, it is undisputed that the economic burden of the asserted taxes will ultimately fall on the Tribe.15 Where, as here, the Federal Government has undertaken comprehensive regulation of the harvesting and sale of tribal timber, where a number of the policies underlying the federal regulatory scheme are threatened by the taxes respondents seek to impose, and where respondents are unable to justify the taxes except in terms of a generalized interest in raising revenue, we believe that the proposed exercise of state authority is impermissible.16
22
Both the reasoning and result in this case follow naturally from our unanimous decision in Warren Trading Post Co. v. Arizona Tax Comm'n, supra. There the State of Arizona sought to impose a "gross proceeds" tax on a non-Indian company which conducted a retail trading business on the Navajo Indian Reservation. Referring to the tradition of sovereign power over the reservation, the Court held that the "comprehensive federal regulation of Indian traders" prohibited the assessment of the attempted taxes. Id., 380 U.S., at 688, 85 S.Ct., at 1244. No federal statute by its terms precluded the assessment of state tax. Nonetheless, the "detailed regulations," specifying "in the most minute fashion," id., at 689, 85 S.Ct., at 1244, the licensing and regulation of Indian traders, were held "to show that Congress has taken the business of Indian trading on reservations so fully in hand that no room remains for state laws imposing additional burdens upon traders." Id., at 690, 85 S.Ct., at 1245. The imposition of those burdens, we held, "could . . . disturb and disarrange the statutory plan" because the economic burden of the state taxes would eventually be passed on to the Indians themselves. Id., at 691, 85 S.Ct., at 1246. We referred to the fact that the Tribe had been "largely free to run the reservation and its affairs without state control, a policy which has automatically relieved Arizona of all burdens for carrying on those same responsibilities." Id., at 690, 85 S.Ct., at 1245. And we emphasized that "since federal legislation has left the State with no duties or responsibilities respecting the reservation Indians, we cannot believe that Congress intended to leave to the State the privilege of levying this tax." Id., at 691, 85 S.Ct., at 1246. The present case, we conclude, is in all relevant respects indistinguishable from Warren Trading Post.
23
The decision of the Arizona Court of Appeals is
24
Reversed.
25
Mr. Justice STEVENS, with whom Mr. Justice STEWART and Mr. Justice REHNQUIST join, dissenting.
26
The State of Arizona imposes use fuel and motor carrier license taxes on certain businesses in order to compensate it for their greater than normal use of public roads. See 448 U.S. 160, 170, n. 3, 100 S.Ct. 2599, at 2601, n. 3, 65 L.Ed.2d 684 (POWELL, J., concurring). The issue originally presented to this Court was whether the State was prohibited from imposing such taxes on a non-Indian joint venture (Pinetop Logging Co.) hired by the petitioner Tribe to perform logging operations on the Fort Apache Reservation, when the taxes were based on Pinetop's use of roads located solely within the reservation. In light of the concessions made by both sides at various stages of the litigation, however, I doubt that we should reach that issue in this case. Moreover, even if the merits were properly before us, I could not agree with the Court's determination that the state taxes are pre-empted by federal law.
27
Between November 1971 and May 1976, Pinetop paid under protest use fuel taxes of $19,114.59 and motor carrier license taxes of $14,701.42. The Arizona Court of Appeals determined that the latter assessment improperly denied Pinetop a 60% credit to which it was entitled under state law.1 After allowance for that credit, the total amount of the disputed taxes for the 41/2-year period is reduced to about $25,000 or $5,000-$6,000 per year.
28
The taxes actually in dispute, however, are considerably less. Pinetop concedes that some of its operations are subject to tax and the State concedes that Pinetop is entitled to additional credits. To understand these concessions it is necessary to note that Pinetop's vehicles operate on four different kinds of roads within the Fort Apache Reservation: (1) state highways; (2) federally funded (Bureau of Indian Affairs) roads serving recreational public needs; (3) tribal roads exclusively financed and maintained by the Indians; and (4) private logging roads built and maintained by loggers such as Pinetop.2
29
Although Pinetop represents that its use of the Arizona state highways within the reservation is extremely limited, it does not dispute its tax liability for such use. On the other hand, in this Court the State expressly conceded that its assessments were improper under state law to the extent that they applied to operations on either private logging roads3 or tribal roads.4 If it is conceded that the State may tax Pinetop's use of public roads maintained by the State and may not tax the use of tribal or private roads, the question that arises is whether the public roads maintained by the Bureau of Indian Affairs are more akin to the former or to the latter. It appears that the BIA roads are like the state highways insofar as they are open to use by the general public.5 On the other hand, it also appears that they were constructed and maintained by the Federal Government and are policed by federal and tribal officers.6
30
Under these circumstances I think the most appropriate disposition would be to vacate the judgment of the Arizona Court of Appeals and remand for further consideration in light of the concessions made on behalf of the State in this Court. As the Court and Mr. Justice POWELL point out, it is difficult to see why those concessions are not an acknowledgement that the State has no authority to tax the use of roads in which it has no interest. See ante, at 148, n. 14 (opinion of the Court); 448 U.S., at 174, 100 S.Ct., at 2601 (POWELL, J., concurring). If the state court were given an opportunity to focus on this point, we might well find that there is no remaining federal issue to be decided.
31
Even assuming, however, that the state courts would uphold the imposition of taxes based on the use of BIA roads, despite their similarities to private and tribal roads, I would not find those taxes to be pre-empted by federal law. InWarren Trading Post v. Arizona Tax Comm'n, 380 U.S. 685, 85 S.Ct. 1242, 14 L.Ed.2d 165, the Court held that state taxation of a non-Indian doing business with a tribe on the reservation was pre-empted because the taxes threatened to "disturb and disarrange" a pervasive scheme of federal regulation and because there was no governmental interest on the State's part in imposing such a burden. See Central Machinery Co. v. Arizona State Tax Comm'n, 448 U.S. 160, 168, 100 S.Ct. 2592, 2596, 65 L.Ed.2d 684 (STEWART, J., dissenting). In this case we may assume, arguendo, that the second factor relied upon inWarren Trading Post is present. As a result, Pinetop may well have a right to be free from taxation as a matter of due process or equal protection.7 But I cannot agree that it has a right to be free from taxation because of its business relationship with the petitioner Tribe.
32
As the Court points out, the Federal Government has imposed a detailed scheme of regulation on the tribal logging business. Thus, among other things, the BIA approves and sometimes drafts contracts between the Tribe and non-Indian logging companies such as Pinetop and requires the Tribe and its contractors to follow BIA's dictates as to where to cut, haul and mark timber, and as to which roads to construct and repair. Ante, at 148, n. 14. The Court reasons that, because the imposition of state taxes on non-Indian contractors is likely to increase the price of their services to the tribe and thus decrease the profitability of the tribal enterprise, the taxes would substantially interfere with this scheme. Thus, the Court states that the taxes threaten the "overriding federal objective" of guaranteeing Indians all the profits the forest is capable of yielding, "undermine" the Federal Government's ability to set fees and rates with respect to non-Indian contractors, and "adversely affect the Tribe's ability to comply with the sustained-yield management policies imposed by federal law." Ante, at 149-150.
33
From a practical standpoint, the Court's prediction of massive interference with federal forest-management programs seems overdrawn, to say the least. The logging operations involved in this case produced a profit of $1,508,713 for the Indian tribal enterprise in 1973. As noted above, the maximum annual taxes Pinetop would be required to pay would be $5,000-$6,000 or less than 1% of the total annual profits. Given the State's concession in this Court that the use of certain roads should not have been taxed as a matter of state law, the actual taxes Pinetop would be required to pay would probably be considerably less.8 It is difficult to believe that these relatively trivial taxes could impose an economic burden that would threaten to "obstruct federal policies."
34
Under these circumstances I find the Court's reliance on the indirect financial burden imposed on the Indian Tribe by state taxation of its contractors disturbing. As a general rule, a tax is not invalid simply because a nonexempt taxpayer may be expected to pass all or part of the cost of the tax through to a person who is exempt from tax. See United States v. Detroit, 355 U.S. 466, 469, 78 S.Ct. 474, 476, 2 L.Ed.2d 424, cf. Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 100 S.Ct. 2069, 65 L.Ed.2d 10. In Warren Trading Post the Court found an exception to this rule where Congress had chosen to regulate the relationship between an Indian tribe and a non-Indian trader to such an extent that there was no room for the additional burden of state taxation. In this case, since the state tax is unlikely to have a serious adverse impact on the tribal business, I would not infer the same congressional intent to confer a tax immunity. Although this may be an appropriate way in which to subsidize Indian industry and encourage Indian self-government, I would require more explicit evidence of congressional intent than that relied on by the Court today.
35
I respectfully dissent.
1
The Fort Apache Reservation was originally established as the White Mountain Reservation by an Executive Order signed by President Grant on November 9, 1871. By the Act of Congress of June 7, 1897, 30 Stat. 64, the White Mountain Reservation was divided into the Fort Apache and San Carlos Reservations.
2
In 1973, for example, tribal enterprises showed a net profit of $1,667,091, $1,508,713 of which was attributable to timber operations.
3
FATCO initially attempted to perform some of its own logging and hauling operations but found itself unable to do these tasks economically.
4
Respondents are the Arizona Highway Department, the Arizona Highway Commission, and individual members of each entity.
5
Between November 1971 and May 1976 Pinetop paid under protest $19,114.59 in use fuel taxes and $14,701.42 in motor carrier license taxes. Since that time it has continued to pay taxes pending the outcome of this case. Refund litigation is pending in state court with respect to the five other non-Indian contractors employed by the Tribe, and that litigation has been stayed pending the outcome of this suit.
6
For purposes of this action petitioners have conceded Pinetop's liability for both motor carrier license and use fuel taxes attributable to travel on state highways within the reservation. Pinetop has maintained records of fuel attributable to travel on those highways, and computations would evidently be made in order to allocate a portion of the gross receipts taxable under the motor carrier license tax to state highways.
7
When Pinetop contracted to undertake timber operations for FATCO in 1969, both Pinetop and FATCO believed that it would not be required to pay state taxes. After respondents assessed the taxes at issue, FATCO agreed to pay them to avoid the loss of Pinetop's services.
8
After the trial court entered summary judgment on the issue of the applicability of the state taxes, the case proceeded to trial on the state-law issue of the manner of calculating the motor vehicle license tax. Final judgment was entered for respondents on all issues after trial. The Arizona Court of Appeals reversed the decision of the Superior Court on the calculation of the motor vehicle license tax. 120 Ariz. 282, 291, 585 P.2d 819, 900 (1978).
9
The shift in approach is discussed in Williams v. Lee, 358 U.S. 217, 219, 79 S.Ct. 269, 270, 3 L.Ed.2d 251 (1959); Organized Village of Kake v. Egan, 369 U.S. 60, 71-75, 82 S.Ct. 562, 568-570, 7 L.Ed.2d 573 (1962); and McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 172, 93 S.Ct. 1257, 1262, 36 L.Ed.2d 129 (1973).
10
For example, the Indian Financing Act of 1974, 25 U.S.C. § 1451 et seq., states: "It is hereby declared to be the policy of Congress . . . to help develop and utilize Indian resources, both physical and human, to a point where the Indians will fully exercise responsibility for the utilization and management of their own resources and where they will enjoy a standard of living from their own productive efforts comparable to that enjoyed by non-Indians in neighboring communities." Similar policies underlie the Indian Self-Determination and Education Assistance Act of 1975, 25 U.S.C. § 450 et seq., as well as the Indian Reorganization Act of 1934, 25 U.S.C. § 461 et seq., whose "intent and purpose . . . was 'to rehabilitate the Indian's economic life and to give him a chance to develop the initiative destroyed by a century of oppression and paternalism.' " Mescalero Apache Tribe v. Jones, 411 U.S. 145, 152, 93 S.Ct. 1267, 1272, 36 L.Ed.2d 114 (1973), quoting H.R.Rep. No. 1804, 73d Cong., 2d Sess., 6 (1934). See also Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). Cf. Gross, Indian Self-Determination and Tribal Sovereignty: An Analysis of Recent Federal Policy, 56 Texas L.Rev. 1195 (1978).
11
In the case of "Indians going beyond reservation boundaries," however, "a nondiscriminatory state law" is generally applicable in the absence of "express federal law to the contrary." Mescalero Apache Tribe v. Jones, supra, at 148-149, 93 S.Ct., at 1270.
12
Federal policies with respect to tribal timber have a long history. In United States v. Cook, 19 Wall. 591, 22 L.Ed. 210 (1874), and Pine River Logging Co. v. United States, 186 U.S. 279, 22 S.Ct. 920, 46 L.Ed. 1164 (1902), the Court held that tribal members had no right to sell timber on reservation land unless the sale was related to the improvement of the land. At the same time the Court interpreted the governing statute as designed "to permit deserving Indians, who had no other sufficient means of support, to cut . . . a limited quantity of . . . timber . . . and to use the proceeds for their support . . . , provided that 10 percent of the gross proceeds should go to the stumpage or poor fund of the tribe, from which the old, sick and otherwise helpless might be supported." Id., at 285-286, 22 S.Ct., at 922.
The Attorney General interpreted the holding in Cook to mean that Indians had no right to reservation timber. See 19 Op.Atty.Gen. 194 (1888). This interpretation was overturned by Congress by Act of June 25, 1910, ch. 431, 36 Stat. 855, as amended, 25 U.S.C. § 407, and also repudiated in United States v. Shoshone Tribe, 304 U.S. 111, 58 S.Ct. 794, 82 L.Ed. 1213 (1938). Thus, as the Court summarized in United States v. Algoma Lumber Co., 305 U.S. 415, 420, 59 S.Ct. 267, 270, 83 L.Ed. 260 (1939), "[u]nder . . . established principles applicable to land reservations created for the benefit of the Indian tribes, the Indians are beneficial owners of the land and the timber standing upon it and of the proceeds of their sale, subject to the plenary power of control by the United States, to be exercised for the benefit and protection of the Indians." See 25 U.S.C. § 196; United States v. Mitchell, 445 U.S. 535, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980).
13
Those factors include "(1) the state of growth of the timber and the need for maintaining the productive capacity of the land for the benefit of the owner and his heirs, (2) the highest and the best use of the land, including the advisability and practicality of devoting it to other uses for the benefit of the owner and his heirs, and (3) the present and future financial needs of the owner and his heirs." 25 U.S.C. § 406(a).
14
In oral argument counsel for respondents appeared to concede that the asserted state taxes could not lawfully be applied to tribal roads and was unwilling to defend the contrary conclusion of the court below, which made no distinction between Bureau and tribal roads under state and federal law. Tr. of Oral Arg. 34-37. Contrary to respondents' position throughout the litigation and in their brief in this Court, counsel limited his argument to a contention that the taxes could be asserted on the roads of the Bureau of Indian Affairs. Ibid. For purposes of federal pre-emption, however, we see no basis, and respondents point to none, for distinguishing between roads maintained by the Tribe and roads maintained by the Bureau of Indian Affairs.
15
Of course, the fact that the economic burden of the tax falls on the Tribe does not by itself mean that the tax is pre-empted, as Moe v. Salish & Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976), makes clear. Our decision today is based on the pre-emptive effect of the comprehensive federal regulatory scheme, which, like that in Warren Trading Post Co. v. Arizona Tax Comm'n, 380 U.S. 685, 85 S.Ct. 1242, 14 L.Ed.2d 165 (1965), leaves no room for the additional burdens sought to be imposed by state law.
16
Respondents also contend that the taxes are authorized by the Buck Act, 4 U.S.C. § 105 et seq., and the Hayden-Cartwright Act, 4 U.S.C. § 104. In Warren Trading Post Co. v. Arizona Tax Comm'n, supra, 380 U.S., at 691, n. 18, 85 S.Ct., at 1246, n. 18, we squarely held that the Buck Act did not apply to Indian reservations, and respondents present no sufficient reason for us to depart from that holding. We agree with petitioners that the Hayden-Cartwright Act, which authorizes state taxes "on United States military or other reservations," was not designed to overcome the otherwise pre-emptive effect of federal regulation of tribal timber. We need not reach the more general question whether the Hayden-Cartwright Act applies to Indian reservations at all.
1
Under Arizona law, logging operations are exempt from the motor carrier license tax if the wood they haul is used for pulpwood. In this case 60% of the logs hauled by Pinetop were to be used for pulpwood.
2
In paragraph XIII of their complaint, petitioners alleged:
"There are four categories of roads in the Ft. Apache Indian Reservation which are used by the Plaintiffs in their logging operations: (1) tribal roads financed and maintained by the Indians exclusively; (2) federally funded (Bureau of Indian Affairs) roads serving recreational public needs; (3) state highways; and (4) logging roads built and maintained by loggers. In transporting timber from the woods to the sawmill, plaintiffs' vehicles travel substantially over tribal and BIA roads, although short portions of many of the trips are on state highways.
"The only category of roads on the Fort Apache Indian Reservation which are built or maintained by the State of Arizona, is category (3), state highways. Categories (1), (2), and (4) are financed and maintained by sources other than monies from the State of Arizona. Tribal, BIA and logging roads are not public highways within the meaning of Arizona Revised Statutes Sec. 40-601.9, and thus any use fuel and license motor carrier taxes on these roads are inappropriate."
3
At oral argument, the Assistant Attorney General of the State of Arizona stated:
"But so long as the road remained a private thoroughfare they would not be so traveled and use of those road [sic ] would not be subject to the State tax." Tr. of Oral Arg. 32.
Later in the argument he was asked the following question and gave the following answer:
"Mr. Macpherson, quite apart from the question in this case which involves Indian tribes, what about a private owner of land whether it is the Weyerhauseur Company or a rancher who owns many square miles of ranch land, does Arizona impose a tax upon his fuel if the vehicle that he owns is used exclusively on his own private property 365 days a year, or this year 366, and never on the public roads of Arizona?
"MR. MACPHERSON: It does not, Your Honor." Id., at 39.
4
With respect to tribal roads, the Assistant Attorney General advised the Court at oral argument:
"However, the fact of the matter is that under current State law, under the legislative scheme that exists in Arizona right now, Arizona has no intention of going forward on some purported theory that because the Court of Appeals decision says we can, that we can go ahead and tax use on these tribal roads. I have been assured of that by my client by telephone last night. And other than that we would put that before the Court to apprise the court of what the true facts are." Id., at 35. In rebuttal, counsel for petitioners expressed surprise at, but nevertheless accepted, the concession made by the State. Counsel stated:
"My good friend, Mr. Macpherson, has just said some remarkable things.
"I think I hear him saying that the State is no longer interested in collecting taxes from tribal roads on the reservation which are not Bureau of Indian Affairs roads. If that is what he said, then I am delighted to accept him accept his concession. But I must also correct some of the suggestions he has made.
"His predecessor, the Attorney for the State of Arizona, argued in the State appellate courts that the State was claiming the right to tax tribal roads. The judgment of the lower court gives the State the right to tax tribal roads. And that is the judgment we are burdened with and that is the judgment which we bring to this Court.
"Our opening briefs state that is the issue. Their briefs acknowledge that is the issue . . . and that was the issue before the Court.
* * * * *
"Trial counsel, Mr. Beus who is here, informs me over the lunch period that his understanding was that administrative agreement included the payment of certain taxes allocable to tribal roads.
"QUESTION: Well, as I say, that is of some importance, at least to me, whether there is an issue to taxes, either fuel or gross receipts taxes imposed on vehicles insofar as their use was confined to tribal roads.
"Is there, or is there not a dispute?
"MR. WAKE: I submit there was until Mr. Macpherson spoke.
"QUESTION: Well, now you submit there isn't. And I—
"MR. WAKE: I submit there isn't because [counsel] has conceded the issue or [is] withdrawing the issue. And perhaps he can clarify his remarks.
"QUESTION: You say you accept it gladly.
"MR. WAKE: I accept it gladly but—
"QUESTION: You have won your case on the—
"MR. WAKE: Your Honor, I would point out that that being the concession as I understand it, it would be appropriate in any event the judgment of the lower court to be correct in that regard since—" Id., at 54-56.
5
The following colloquy occurred at oral argument:
"QUESTION: What I meant to say is your real fight is over the right to tax on BIA roads.
"Does the record tell us much about those roads, for example does it tell us whether the State police are on those roads or whether they have speed limits or things like that?
"MR. MACPHERSON: Your Honor, the record does not specifically go into that much detail.
"QUESTION: However, it presents us with a hypothetical case quite different from the one you asked us to decide.
"MR. MACPHERSON: Well, Mr. Justice Stevens, the case is—we felt it necessary as an ethical consideration to apprise the Court of what the actual situation is.
"But, having said that, the issue, the legal issue, if it please the Court, may still be decided with respect to the BIA road use. The fact of the matter is that BIA roads pursuant to Federal—the Code of Federal Regulations are required to be open to free public use, as a matter of Federal law." Id., at 36-37.
6
"QUESTION: Did I understand you to say that Arizona has no responsibility for maintaining the BIA roads?
"MR. MACPHERSON: This is correct, Your Honor.
"QUESTION: And did it contribute to the construction of those roads?
"MR. MACPHERSON: So far as the record shows, it did not, Your Honor.
"QUESTION: And no police responsibility, either?
"MR. MACPHERSON: That is correct, Your Honor. . . . " Id., at 41-42.
7
The Due Process Clause may prohibit a State from imposing a tax on the use of completely private roads if the tax is designed to reimburse it for use of state-owned roads. Or it may be that once the State has decided to exempt private roads from its taxing system, it is also required, as a matter of equal protection, to exempt other types of roads that are identical to private roads in all relevant respects.
8
The parties have not told us what portion of the taxes is attributable to the use of each of the various types of roads. Thus, we cannot determine how much tax Pinetop would be required to pay for its use of BIA roads.
| 12
|
448 U.S. 444
100 S.Ct. 2755
65 L.Ed.2d 897
James MABRY, Commissioner, Arkansas Department of Correctionv.Francis Edward KLIMAS.
No. 79-622.
June 30, 1980.
PER CURIAM.
1
The respondent was convicted by a jury in an Arkansas court of burglary and grand larceny. In accordance with the recidivist statute then in effect in Arkansas, the members of the jury were instructed that if they found that the respondent had been convicted of three prior felony offenses, they could fix his sentence at not less than 21 and not more than 311/2 years for both burglary and grand larceny. Evidence was admitted of seven prior felony convictions from Missouri and of six from Arkansas. The jury found that the petitioner had been convicted of three prior felonies, and set his punishment at 311/2 years for each of the two offenses of which they had found him guilty. The trial judge ordered that the terms were to be served consecutively.
2
On appeal, the Arkansas Supreme Court reversed, concluding that the evidence of the Missouri convictions was inadmissible for the purpose of enhancing the respondent's sentence because it did not appear that he had had the assistance of counsel at the trial of those cases. Klimas v. State, 259 Ark. 301, 303-304, 534 S.W.2d 202, 203-204 citing Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). The court directed that the respondent be retried unless the State agreed to a reduction of his sentence to three years, the minimum sentence that he could have received for the burglary and larceny offenses. 259 Ark., at 309, 534 S.W.2d, at 207. On rehearing, the court revised the sentence to 42 years, comprised of the two minimum terms of 21 years authorized for the offenses in the case of a defendant having three past convictions. The court reasoned that since the jury had been required to consider the six Arkansas convictions whose validity the respondent had not disputed at trial, it could not have fixed the punishment at less than 21 years for each offense.1
3
The respondent then sought a writ of habeas corpus in a Federal District Court, alleging that his sentencing after trial had been unconstitutional and was not remedied by the Arkansas Supreme Court's revision of it to 42 years. The District Court dismissed the suit for want of jurisdiction, but the Court of Appeals reversed concluding that the respondent had been denied due process of law by the State's failure to permit him to be resentenced by a jury, in accord with what it understood to be state statutory law. 599 F.2d 842 (CA8 1979). The Court of Appeals acknowledged that the omission of discretionary resentencing by a jury would not have prejudiced the respondent if, as the Arkansas Supreme Court had concluded, he had received the most lenient sentence authorized by law for the offenses of which he had been convicted. Cf. Hicks v. Oklahoma, 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980).2 But the Court of Appeals believed that resentencing was required in this case because the habitual offender statute had been amended since the respondent's trial, and, if applied to him, the amended statute would provide a lower minimum sentence.3 Accordingly, while the court expressed uncertainty whether the amendment applied to the respondent, it nonetheless ordered that the District Court issue the writ unless he was resentenced by a jury.
4
The claim that the respondent is entitled to be resentenced by reason of the amended recidivist statute apparently has not been presented to the state courts. In these circumstances, in the absence of any reason to believe that state judicial remedies would now be unavailable, a federal court is required to stay its hand "to give the State the initial 'opportunity to pass upon and correct' alleged violations of . . . federal rights." Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 409, 30 L.Ed.2d 418 (1971), quoting Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 848, 9 L.Ed.2d 837 (1963). See Picard v. Connor, 404 U.S. 270, 277-278, 92 S.Ct. 509, 513-514, 30 L.Ed.2d 438 (1971). The requirement that state remedies first be pursued, codified in the federal habeas corpus statute, 28 U.S.C. §§ 2254(b) and (c), is particularly appropriate where, as here, the federal constitutional claim arises from the alleged deprivation by state courts of rights created under state law. The Court of Appeals acknowledged that the construction of the statute, plainly a matter for the state courts to decide was at best uncertain. Obviously, therefore, the state courts can in no sense be said to have arbitrarily denied any right they were asked to accord. The petition for certiorari and the respondent's motion for leave to proceed in forma pauperis are granted, the judgment of the Court of Appeals is reversed, and the case is remanded to that court for proceedings consistent with this opinion.
5
It is so ordered.
6
Mr. Justice MARSHALL concurs in the judgment.
1
The respondent contends that the minimum sentence he could have received was 21, not 42 years, since the trial judge was allegedly authorized to direct that the burglary and larceny sentences run concurrently. This was also the view of Judge Henley, dissenting from the Court of Appeals' denial of en banc consideration of the case. 603 F.2d 158, 159 (CA8 1979). Because the question was not decided either by the Arkansas Supreme Court or by the federal courts in this case, we do not now consider it.
2
In Hicks v. Oklahoma, this Court held that the right of a criminal defendant under state law to have his punishment fixed in the discretion of the trial jury gave him "a substantial and legitimate expectation that he will be deprived of his liberty only to the extent determined by the jury in the exercise of its statutory discretion, cf. Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 [99 S.Ct. 2100, 60 L.Ed.2d 668], and that liberty interest is one that the Fourteenth Amendment preserves against arbitrary deprivation by the State. See Vitek v. Jones, 445 U.S. 480, 488-489 [100 S.Ct. 1254, 63 L.Ed.2d 552], citing Wolff v. McDonnell, 418 U.S. 539 [94 S.Ct. 2963, 41 L.Ed.2d 935]; Greenholtz v. Nebraska Penal Inmates ; Morrissey v. Brewer, 408 U.S. 471 92 S.Ct. 2593, 33 L.Ed.2d 484]." 447 U.S., at 346, 100 S.Ct., at 2229. The jury in Hicks had fixed the petitioner's punishment at 40 years, in accord with the mandatory terms of the State's habitual offender statute then in effect. On appeal, the mandatory provision was determined to be invalid, but the appellate court nonetheless affirmed the 40-year sentence because it was within the range of punishments that a correctly instructed jury could have imposed in any event. This Court concluded that the deprivation of a discretionary jury sentence that could well have been less than 40 years had denied the petitioner due process of law. Ibid.
3
The revised statute by its terms applies only to offenses committed after January 1, 1976. See Ark.Stat.Ann. §§ 41-102(1) and (3) (1977). The respondent was convicted and sentenced in the trial court in 1975, and the case was reheard by the Arkansas Supreme Court in March 1976, when the court modified his sentence, presumably in accord with the state law then governing the case.
| 01
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448 U.S. 358
100 S.Ct. 2694
65 L.Ed.2d 831
Jasper F. WILLIAMS and Eugene F. Diamond, Appellants,v.David ZBARAZ et al. Jeffrey C. MILLER, Acting Director, Illinois Department of Public Aid, et al., Appellants, v. David ZBARAZ et al. UNITED STATES, Appellant, v. David ZBARAZ et al.
Nos. 79-4, 79-5 and 79-491.
Argued April 21, 1980.
Decided June 30, 1980.
Rehearing Denied Sept. 17, 1980.
See 448 U.S. 917, 101 S.Ct. 38, 39.
Syllabus
Appellees brought a class action in Federal District Court under 42 U.S.C. § 1983 to enjoin, on both federal statutory and constitutional grounds, enforcement of an Illinois statute prohibiting state medical assistance payments for all abortions except those necessary to save the life of the woman seeking the abortion. The District Court, granting injunctive relief, held that Title XIX of the Social Security Act, which established the Medicaid program, and the regulations promulgated thereunder require a participating State under such program to provide funding for all medically necessary abortions, and that the so-called Hyde Amendment prohibiting the use of federal funds to reimburse the costs of certain medically necessary abortions does not relieve a State of its independent obligation under Title XIX to provide Medicaid funding for all medically necessary abortions. The Court of Appeals reversed, holding that the Hyde Amendment altered Title XIX in such a way as to allow States to limit funding to the categories of abortions specified in that Amendment, but that a participating State may not, consistent with Title XIX, withhold funding of those medically necessary abortions for which federal reimbursement is available under the Hyde Amendment, and the case was remanded to the District Court for modification of its injunction and with directions to consider the constitutionality of the Hyde Amendment. The District Court then held that both the Illinois statute and the Hyde Amendment violate the equal protection guarantee of the Constitution insofar as they deny funding for "medically necessary abortions prior to the point of fetal viability."
Held:
1. The District Court lacked jurisdiction to consider the constitutionality of the Hyde Amendment, for the court acted in the absence of a case or controversy sufficient to permit an exercise of judicial power under Art. III of the Constitution. None of the parties ever challenged the validity of the Hyde Amendment, and appellees could have been awarded all the relief sought entirely on the basis of the District Court's ruling as to the Illinois statute. The constitutionality of the Hyde Amendment was interjected as an issue only by the Court of Appeals' erroneous mandate, which could not create a case or controversy where none otherwise existed. P. 367.
2. Notwithstanding that the District Court had no jurisdiction to declare the Hyde Amendment unconstitutional, this Court has jurisdiction under 28 U.S.C. § 1252 over the "whole case," and thus may review the other issues preserved by these appeals. McLucas v. DeChamplain, 421 U.S. 21, 95 S.Ct. 1365, 43 L.Ed.2d 699. P. 367-368.
3. A participating State is not obligated under Title XIX to pay for those medically necessary abortions for which federal reimbursement is unavailable under the Hyde Amendment. Harris v. McRae, 448 U.S. 297, 306-311, 100 S.Ct. 2671, 2682-2685, 65 L.Ed.2d 784. P. 369.
4. The funding restrictions in the Illinois statute, comparable to those in the Hyde Amendment, do not violate the Equal Protection Clause of the Fourteenth Amendment. Harris v. McRae, at 324-326, 100 S.Ct., at 2691-2693. P. 369.
469 F.Supp. 1212, vacated and remanded.
1
William A. Wenzel, III, Sp. Asst. Atty. Gen., Chicago, Ill., for appellants in No. 79-5.
2
Victor G. Rosenblum, Chicago, Ill., for appellants in No. 79-4.
3
Sol. Gen. Wade H. McCree, Jr., Washington, D. C., for appellant in No. 79-491.
4
Robert W. Bennett, Chicago, Ill., for appellees in each case.
5
Mr. Justice STEWART delivered the opinion of the Court.
6
This suit was brought as a class action under 42 U.S.C. § 1983 in the District Court for the Northern District of Illinois to enjoin the enforcement of an Illinois statute that prohibits state medical assistance payments for all abortions except those "necessary for the preservation of the life of the woman seeking such treatment."1 The plaintiffs were two physicians who perform medically necessary abortions for indigent women, a welfare rights organization, and Jane Doe, an indigent pregnant woman who alleged that she desired an abortion that was medically necessary, but not necessary to save her life. The defendant was the Director of the Illinois Department of Public Aid, the agency charged with administering the State's medical assistance programs.2 Two other physicians intervened as defendants.
7
The plaintiffs challenged the Illinois statute on both federal statutory and constitutional grounds. They asserted, first, that Title XIX of the Social Security Act, commonly known as the "Medicaid" Act, 42 U.S.C. § 1396 et seq. (1976 ed. and Supp. II), requires Illinois to provide coverage in its Medicaid plan for all medically necessary abortions, whether or not the life of the pregnant woman is endangered. Second, the plaintiffs argued that the public funding by the State of medically necessary services generally, but not of certain medically necessary abortions, violates the Equal Protection Clause of the Fourteenth Amendment.
8
The District Court initially held that it would abstain from considering the complaint until the state courts had construed the challenged statute.3 The plaintiffs appealed, and the Court of Appeals for the Seventh Circuit reversed. Zbaraz v. Quern, 572 F.2d 582. The appellate court held that abstention was inappropriate under the circumstances, and remanded the case for further proceedings, including consideration of the plaintiffs' motion for a preliminary injunction. On remand, the District Court certified two plaintiff classes: (1) a class of all pregnant women eligible for the Illinois medical assistance programs who desire medically necessary, but not life-preserving, abortions, and (2) a class of all Illinois physicians who perform medically necessary abortions for indigent women and who are certified to obtain reimbursement under the Illinois medical assistance programs.
9
Addressing the merits of the complaint, the District Court concluded that Title XIX and the regulations promulgated thereunder require a participating State under the Medicaid program to provide funding for all medically necessary abortions. According to the District Court, the so-called "Hyde Amendment" under which Congress has prohibited the use of federal funds to reimburse the costs of certain medically necessary abortions4 does not relieve a State of its independent obligation under Title XIX to provide Medicaid funding for all medically necessary abortions. Thus, the District Court permanently enjoined the enforcement of the Illinois statute insofar as it denied payments for abortions that are "medically necessary or medically indicated according to the professional medical judgment of a licensed physician in Illinois, exercised in light of all factors affecting a woman's health."
10
The Court of Appeals again reversed. Zbaraz v. Quern, 7 Cir., 596 F.2d 196. Reaching the same conclusion as had the Court of Appeals for the First Circuit in Preterm, Inc. v. Dukakis, 591 F.2d 121, the court held that the Hyde Amendment "alters Title XIX in such a way as to allow states to limit funding to the categories of abortions specified in that amendment." 596 F.2d, at 199. It further held, however, that a participating State may not, consistent with Title XIX, withhold funding for those medically necessary abortions for which federal reimbursement is available under the Hyde Amendment.5 Accordingly, the case was remanded to the District Court with instructions that the permanent injunction be modified so as to require continued state funding only "for those abortions fundable under the Hyde Amendment."6 Id., at 202. The Court of Appeals also directed the District Court to proceed expeditiously to resolve the constitutional questions it had not reached. The District Court was specifically directed to consider "whether the Hyde Amendment, by limiting funding for abortions to certain circumstances even if such abortions are medically necessary, violates the Fifth Amendment." Ibid. (footnote omitted).
11
On the second remand, the District Court notified the Attorney General of the United States that the constitutionality of an Act of Congress had been drawn into question, and the United States intervened, pursuant to 28 U.S.C. § 2403(a), to defend the constitutionality of the Hyde Amendment.7 iZbaraz v. Quern, 469 F.Supp. 1212, 1215, n. 3. In view of the fact that the plaintiffs had not challenged the Hyde Amendment, but rather only the Illinois statute, the District Court expressed misgivings about the propriety of passing on the constitutionality of the federal law. But noting that the same reasoning would apply in determining the constitutional validity of both the Illinois statute and the Hyde Amendment, the District Court observed: "Although we are not persuaded that the federal and state enactments are inseparable and would hesitate to inject into the proceeding the issue of the constitutionality of a law not directly under attack by plaintiffs, we are obviously constrained to obey the Seventh Circuit's mandate. Therefore, while our discussion of the constitutional questions will address only the Illinois statute, the same analysis applies to the Hyde Amendment and the relief granted will encompass both laws." Ibid.
12
The District Court then concluded that both the Illinois statute and the Hyde Amendment are unconstitutional insofar as they deny funding for "medically necessary abortions prior to the point of fetal viability." Id., at 1221. If the public funding of abortions were restricted to those covered by the Hyde Amendment, the District Court thought that the effect would "be to increase substantially maternal morbidity and mortality among indigent pregnant women." Id., at 1220. The District Court held that the state and federal funding restrictions violate the constitutional standard of equal protection because
13
"a pregnant woman's interest in her health so outweighs any possible state interest in the life of a non-viable fetus that, for a woman medically in need of an abortion, the state's interest is not legitimate. At the point of viability, however, 'the relative weights of the respective interests involved' shift, thereby legitimizing the state's interests. After that point, therefore, . . . a state may withhold funding for medically necessary abortions that are not life-preserving, even though it funds all other medically necessary operations." Id., at 1221.
14
Accordingly, the District Court enjoined the Director of the Illinois Department of Public Aid from enforcing the Illinois statute to deny payment under the state medical assistance programs for medically necessary abortions prior to fetal viability.8 The District Court did not, however, enjoin any action by the United States.
15
The intervening-defendant physicians, the Director of the Illinois Department of Public Aid, and the United States each appealed directly to this Court, averring jurisdiction under 28 U.S.C. § 1252. This Court consolidated the appeals and postponed further consideration of the question of jurisdiction until the hearing on the merits. 444 U.S. 962, 100 S.Ct. 447, 62 L.Ed.2d 374.
16
* The asserted basis for this Court's jurisdiction over these appeals is 28 U.S.C. § 1252, which provides in relevant part:
17
"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."
18
It is quite obvious that the literal requirements of § 1252 are satisfied in the present cases, for these appeals were taken from the final judgment of a federal court declaring unconstitutional an Act of Congress—the Hyde Amendment—in a civil action to which the United States was a party by reason of its intervention pursuant to 28 U.S.C. § 2403(a).
19
It is equally clear, however, that the appellees and the United States are correct in asserting that the District Court in fact lacked jurisdiction to consider the constitutionality of the Hyde Amendment, for the court acted in the absence of a case or controversy sufficient to permit an exercise of judicial power under Art. III of the Constitution. None of the parties to these cases ever challenged the validity of the Hyde Amendment, and the appellees could have been awarded all the relief they sought entirely on the basis of the District Court's ruling with regard to the Illinois statute.9 The constitutional validity of the Hyde Amendment was interjected as an issue in these cases only by the erroneous mandate of the Court of Appeals. But, even though the District Court was simply following that mandate, the directive of the Court of Appeals could not create a case or controversy where none otherwise existed. It is clear, therefore, that the District Court exceeded its jurisdiction under Art. III in declaring the Hyde Amendment unconstitutional.
20
The question thus arises whether the District Court's lack of jurisdiction in declaring the Hyde Amendment unconstitutional divests this Court of jurisdiction over these appeals. We think not. As the Court in McLucas v. DeChamplain, 421 U.S. 21, 31-32, 95 S.Ct. 1365, 1372, 43 L.Ed.2d 699, observed:
21
"Our previous cases have recognized that this Court's jurisdiction under § 1252 in no way depends on whether the district court had jurisdiction. On the contrary, an appeal under § 1252 brings before us, not only the constitutional question, but the whole case, including threshsold issues of subject-matter jurisdiction, and whether a three-judge court was required." (Citations omitted.)
22
Thus, in the McLucas case, which involved an appeal under § 1252 from a single-judge District Court, this Court pretermitted the question whether the single-judge District Court had had jurisdiction to enter the challenged preliminary injunction, and instead resolved the appeal on the merits. It follows from McLucas that, notwithstanding the fact that the District Court was without jurisdiction to declare the Hyde Amendment unconstitutional, this Court has jurisdiction over these appeals and thus may review the "whole case."10
II
23
Disposition of the merits of these appeals does not require extended discussion. Insofar as we have already concluded that the District Court lacked jurisdiction to declare the Hyde Amendment unconstitutional, that portion of its judgment must be vacated. See, e. g., United States v. Johnson, 319 U.S. 302, 63 S.Ct. 1075, 87 L.Ed. 1413; Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed.2d 246. The remaining questions concern the Illinois statute. The appellees argue that (1) Title XIX requires Illinois to provide coverage in its state Medicaid plan for all medically necessary abortions, whether or not the life of the pregnant woman is endangered, and (2) the funding by Illinois of medically necessary services generally, but not of certain medically necessary abortions, violates the Equal Protection Clause of the Fourteenth Amendment.11 Both arguments are foreclosed by our decision today in Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784. As to the appellees' statutory argument, we have concluded in McRae that a participating State is not obligated under Title XIX to pay for those medically necessary abortions for which federal reimbursement is unavailable under the Hyde Amendment. As to their constitutional argument, we have concluded in McRae that the Hyde Amendment does not violate the equal protection component of the Fifth Amendment by withholding public funding for certain medically necessary abortions, while providing funding for other medically necessary health services. It follows, for the same reasons, that the comparable funding restrictions in the Illinois statute do not violate the Equal Protection Clause of the Fourteenth Amendment.
24
Accordingly, the judgment of the District Court is vacated, and the cases are remanded to that court for further proceedings consistent with this opinion.
25
It is so ordered.
1
The statute is codified as Ill.Rev.Stat., ch. 23 (1979). It provides in relevant part:
"§ 5-5. [Medical services.] The Illinois Department, by rule, shall determine the quantity and quality of the medical assistance for which payment will be authorized, and the medical services to be provided, which may include all or part of the following: [listing 16 categories of medical services], but not including abortions, or induced miscarriages or premature births, unless, in the opinion of a physician, such procedures are necessary for the preservation of the life of the woman seeking such treatment . . . ."
"§ 6-1. Eligibility requirements. . . . Nothing in this Article shall be construed to permit the granting of financial aid where the purpose of such aid is to obtain an abortion, induced miscarriage or induced premature birth unless, in the opinion of a physician, such procedures are necessary for the preservation of the life of the woman seeking such treatment. . . ."
"§ 7-1. Eligibility requirements. Aid in meeting the costs of necessary medical, dental, hospital, boarding or nursing care, or burial shall be given under this Article [to eligible persons], except where such aid is for the purpose of obtaining an abortion, induced miscarriage or induced premature birth unless, in the opinion of a physician, such procedures are necessary for the preservation of the life of the woman seeking such treatment. . . ."
2
The medical assistance programs at issue here are the Illinois Medicaid plan, which is jointly funded by the Federal Government and the State of Illinois, and two fully state-funded programs, the Illinois General Assistance and Local Aid to Medically Indigent Programs.
3
All opinions of the District Court other than that now under review are unreported.
4
Since September 1976, Congress has prohibited—by means of the "Hyde Amendment" to the annual appropriations for the Department of Health, Education, and Welfare (now divided into the Department of Health and Human Services and the Department of Education)—the use of any federal funds to reimburse the cost of abortions under the Medicaid program except under certain specified circumstances. The current version of the Hyde Amendment, applicable for fiscal year 1980 provides:
"[N]one of the funds provided by this joint resolution shall be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term; or except for such medical procedures necessary for the victims of rape or incest when such rape or incest has been reported promptly to a law enforcement agency or public health service." Pub.L. 96-123, § 109, 93 Stat. 926. See also Pub.L. 96-86, § 118, 93 Stat. 662. This version of the Hyde Amendment is broader than that applicable for fiscal year 1977, which did not include the "rape or incest" exception, Pub.L. 94-439, § 209, 90 Stat. 1434, but narrower than that applicable for most of fiscal year 1978 and all of fiscal year 1979, which had an additional exception for "instances where severe and long-lasting physical health damage to the mother would result if the pregnancy were carried to term when so determined by two physicians," Pub.L. 95-205, § 101, 91 Stat. 1460; Pub.L. 95-480, § 210, 92 Stat. 1586. In this opinion, the term "Hyde Amendment" is used generically to refer to all three versions, except where indicated otherwise.
5
Neither the Director of the Illinois Department of Public Aid nor the intervening-physicians sought review of the judgment of the Court of Appeals. The District Court in the proceedings now on appeal proceeded on the premise that Title XIX obligates Illinois to fund all abortions reimbursable under the Hyde Amendment. That issue, therefore, is not before us on these appeals.
6
Although the medical assistance programs funded exclusively by the State are not governed directly by either Title XIX or the Hyde Amendment, the Court of Appeals concluded that the modified injunction requiring state payments for abortions fundable under the Hyde Amendment should apply to all three Illinois medical assistance programs, see n. 2, supra. 596 F.2d, at 202-203. Relying on a statement in the State's brief, the Court of Appeals held that the challenged Illinois statute was intended to represent the State's understanding of the congressional purpose reflected in the original Hyde Amendment. Id., at 203. The Court of Appeals thus declined to sever the various funding restrictions in the Illinois statute.
7
Section 2403(a) provides:
"In any action, suit or proceeding in a court of the United States to which the United States or any agency, officer or employee thereof is not a party, wherein the constitutionality of any Act of Congress affecting the public interest is drawn in question, the court shall certify such fact to the Attorney General, and shall permit the United States to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality. The United States shall, subject to the applicable provisions of law, have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality."
8
The District Court refused to stay its order, and the Director of the Illinois Department of Public Aid and the intervening-defendant physicians moved in this Court for a stay pending appeal. That motion was denied. 442 U.S. 1309, 99 S.Ct. 2095, 60 L.Ed.2d 1033. (STEVENS, J., in chambers). A reapplication by the intervening-defendant physicians also was denied. 442 U.S. 915, 99 S.Ct. 2833, 61 L.Ed.2d 282.
9
Title XIX does not prohibit "[a] participating State . . . [from] includ[ing] in its Medicaid plan those medically necessary abortions for which federal reimbursement is unavailable [under the Hyde Amendment]." Harris v. McRae, 448 U.S., at 311, n. 16, 100 S.Ct., at 2685, n. 16.
10
Although this Court need not pass on the remainder of the judgment in a case in which an appeal under § 1252 is taken from a court that lacked jurisdiction to declare a federal statute unconstitutional, see FHA v. The Darlington, Inc., 352 U.S. 977, 77 S.Ct. 381, 1 L.Ed.2d 363, we are empowered to do so because "an appeal under § 1252 brings before us, not only the constitutional question, but the whole case." McLucas v. DeChamplain, 421 U.S., at 31, 95 S.Ct., at 1372. Here, there is no reason not to resolve the "whole case" on the merits. The remainder of the case that is properly before this Court, and which clearly involves a justiciable controversy, includes both the appellees' federal statutory and constitutional challenges to the Illinois statute.
11
This case was decided by the District Court under the version of the Hyde Amendment applicable during fiscal year 1979, and Congress has since narrowed the ambit of the Hyde Amendment for fiscal year 1980, see n. 4, supra. The recent statutory revision does not, however, affect the outcome of either issue now before the Court. The statutory issue is not affected, because we today conclude in Harris v. McRae, 448 U.S., at 306-311, 100 S.Ct., at 2683-2685, that Title XIX does not require a participating State to fund those medically necessary abortions for which federal reimbursement is unavailable under the Hyde Amendment, including the version of the Hyde Amendment applicable for fiscal year 1980. The constitutional issue is not affected, because, regardless of whether the State of Illinois is obligated to fund all abortions for which federal reimbursement is available under the Hyde Amendment, we conclude in Harris v. McRae that even the most restrictive version of the Hyde Amendment—which is similar to the Illinois statute at issue here—does not violate the equal protection standard of the Constitution. Since the outcome of these issues is not affected by the recent changes in the Hyde Amendment, we need not defer review in order to provide the District Court with an opportunity to evaluate the effects of these changes in the federal law.
| 45
|
448 U.S. 297
100 S.Ct. 2671
65 L.Ed.2d 784
Patricia R. HARRIS, Secretary of Health and Human Services, Appellant,v.Cora McRAE et al.
No. 79-1268.
Argued April 21, 1980.
Decided June 30, 1980.
Rehearing Denied Sept. 17, 1980.
See 448 U.S. 917, 101 S.Ct. 39.
Syllabus
Title XIX of the Social Security Act established the Medicaid program in 1965 to provide federal financial assistance to States that choose to reimburse certain costs of medical treatment for needy persons. Since 1976, versions of the so-called Hyde Amendment have severely limited the use of any federal funds to reimburse the cost of abortions under the Medicaid program. Actions were brought in Federal District Court by appellees (including indigent pregnant women, who sued on behalf of all women similarly situated, the New York City Health and Hospitals Corp., which operates hospitals providing abortion services, officers of the Women's Division of the Board of Global Ministries of the United Methodist Church (Women's Division), and the Women's Division itself), seeking to enjoin enforcement of the Hyde Amendment on grounds that it violates, inter alia, the Due Process Clause of the Fifth Amendment and the Religion Clauses of the First Amendment, and that, despite the Hyde Amendment, a participating State remains obligated under Title XIX to fund all medically necessary abortions. Ultimately, the District Court, granting injunctive relief, held that the Hyde Amendment had substantively amended Title XIX to relieve a State of any obligation to fund those medically necessary abortions for which federal reimbursement is unavailable, but that the Amendment violates the equal protection component of the Fifth Amendment's Due Process Clause and the Free Exercise Clause of the First Amendment.
Held :
1. Title XIX does not require a participating State to pay for those medically necessary abortions for which federal reimbursement is unavailable under the Hyde Amendment. Pp. 306-311.
(a) The cornerstone of Medicaid is financial contribution by both the Federal Government and the participating State. Nothing in Title XIX as originally enacted or in its legislative history suggests that Congress intended to require a participating State to assume the full costs of providing any health services in its Medicaid plan. To the contrary, Congress' purpose in enacting Title XIX was to provide federal financial assistance for all legitimate state expenditures under an approved Medicaid plan. Pp. 308-309.
(b) Nor does the Hyde Amendment's legislative history contain any indication that Congress intended to shift the entire cost of some medically necessary abortions to the participating States, but rather suggests that Congress has always assumed that a participating State would not be required to fund such abortions once federal funding was withdrawn pursuant to the Hyde Amendment. Pp. 310-311.
2. The funding restrictions of the Hyde Amendment do not impinge on the "liberty" protected by the Due Process Clause of the Fifth Amendment held in Roe v. Wade, 410 U.S. 113, 168, 93 S.Ct. 705, 734, 35 L.Ed.2d 147, to include the freedom of a woman to decide whether to terminate a pregnancy. Pp. 312-318.
(a) The Hyde Amendment places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy, but rather, by means of unequal subsidization of abortion and other medical services, encourages alternative activity deemed in the public interest. Cf. Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484. P. 315.
(b) Regardless of whether the freedom of a woman to choose to terminate her pregnancy for health reasons lies at the core or the periphery of the due process liberty recognized in Wade, supra, it does not follow that a woman's freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices. Although government may not place obstacles in the path of a woman's exercise of her freedom of choice, it need not remove those not of its own creation, and indigency falls within the latter category. Although Congress has opted to subsidize medically necessary services generally, but not certain medically necessary abortions, the fact remains that the Hyde Amendment leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all. P. 316-317.
(c) To translate the limitation on governmental power implicit in the Due Process Clause into an affirmative funding obligation would require Congress to subsidize the medically necessary abortion of an indigent woman even if Congress had not enacted a Medicaid program to subsidize other medically necessary services. Nothing in the Due Process Clause supports such an extraordinary result. Pp. 317-318.
3. Nor does the Hyde Amendment violate the Establishment Clause of the First Amendment. The fact that the funding restrictions in the Hyde Amendment may coincide with the religious tenets of the Roman Catholic Church does not, without more, contravene that Clause. Pp. 319-320.
4. Appellees lack standing to raise a challenge to the Hyde Amendment under the Free Exercise Clause of the First Amendment. The named appellees consisting of indigent pregnant women suing on behalf of other women similarly situated lack such standing because none alleged, much less proved, that she sought an abortion under compulsion of religious belief. The named appellees consisting of officers of the Women's Division, although they provided a detailed description of their religious beliefs, failed to allege either that they are or expect to be pregnant or that they are eligible to receive Medicaid, and they therefore lacked the personal stake in the controversy needed to confer standing to raise such a challenge to the Hyde Amendment. And the Women's Division does not satisfy the standing requirements for an organization to assert the rights of its membership, since the asserted claim is one that required participation of the individual members for a proper understanding and resolution of their free exercise claims. Pp. 320-321.
5. The Hyde Amendment does not violate the equal protection component of the Due Process Clause of the Fifth Amendment. Pp. 321-326.
(a) While the presumption of constitutional validity of a statutory classification that does not itself impinge on a right or liberty protected by the Constitution disappears if the classification is predicated on criteria that are "suspect," the Hyde Amendment is not predicated on a constitutionally suspect classification. Maher v. Roe, supra. Although the impact of the Amendment falls on the indigent, that fact does not itself render the funding restrictions constitutionally invalid, for poverty, standing alone, is not a suspect classification. P. 322-323.
(b) Where, as here, Congress has neither invaded a substantive constitutional right or freedom, nor enacted legislation that purposefully operates to the detriment of a suspect class, the only requirement of equal protection is that congressional action be rationally related to a legitimate governmental interest. The Hyde Amendment satisfies that standard, since, by encouraging childbirth except in the most urgent circumstances, it is rationally related to the legitimate governmental objective of protecting potential life. Pp. 324-326.
491 F.Supp. 630, reversed and remanded.
Sol. Gen. Wade H. McCree, Jr., Washington, D. C., for appellant.
Rhonda Copelon, New York City, for appellees.
Mr. Justice STEWART delivered the opinion of the Court.
1
This case presents statutory and constitutional questions concerning the public funding of abortions under Title XIX of the Social Security Act, commonly known as the "Medicaid" Act, and recent annual Appropriations Acts containing
2
[Amicus Curiae Information from page 300 intentionally omitted] the so-called "Hyde Amendment." The statutory question is whether Title XIX requires a State that participates in the Medicaid program to fund the cost of medically necessary abortions for which federal reimbursement is unavailable under the Hyde Amendment. The constitutional question, which arises only if Title XIX imposes no such requirement, is whether the Hyde Amendment, by denying public funding for certain medically necessary abortions, contravenes the liberty or equal protection guarantees of the Due Process Clause of the Fifth Amendment, or either of the Religion Clauses of the First Amendment.
3
* The Medicaid program was created in 1965, when Congress added Title XIX to the Social Security Act, 79 Stat. 343, as amended, 42 U.S.C. § 1396 et seq. (1976 ed. and Supp. II), for the purpose of providing federal financial assistance to States that choose to reimburse certain costs of medical treatment for needy persons. Although participation in the Medicaid program is entirely optional, once a State elects to participate, it must comply with the requirements of Title XIX.
4
One such requirement is that a participating State agree to provide financial assistance to the "categorically needy"1 with respect to five general areas of medical treatment: (1) inpatient hospital services, (2) outpatient hospital services, (3) other laboratory and X-ray services, (4) skilled nursing facilities services, periodic screening and diagnosis of children, and family planning services, and (5) services of physicians. 42 U.S.C. §§ 1396a(a)(13)(B), 1396d(a)(1)-(5). Although a participating State need not "provide funding for all medical treatment falling within the five general categories, [Title XIX] does require that [a] state Medicaid pla[n] establish 'reasonable standards . . . for determining . . . the extent of medical assistance under the plan which . . . are consistent with the objectives of [Title XIX].' 42 U.S.C. § 1396a(a)(17)." Beal v. Doe, 432 U.S. 438, 441, 97 S.Ct. 2366, 2369, 53 L.Ed.2d 464.
5
Since September 1976, Congress has prohibited—either by an amendment to the annual appropriations bill for the Department of Health, Education, and Welfare2 or by a joint resolution—the use of any federal funds to reimburse the cost of abortions under the Medicaid program except under certain specified circumstances. This funding restriction is commonly known as the "Hyde Amendment," after its original congressional sponsor, Representative Hyde. The current version of the Hyde Amendment, applicable for fiscal year 1980, provides:
6
"[N]one of the funds provided by this joint resolution shall be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term; or except for such medical procedures necessary for the victims of rape or incest when such rape or incest has been reported promptly to a law enforcement agency or public health service." Pub.L. 96-123, § 109, 93 Stat. 926.
7
See also Pub.L. 96-86, § 118, 93 Stat. 662. This version of the Hyde Amendment is broader than that applicable for fiscal year 1977, which did not include the "rape or incest" exception, Pub.L. 94-439, § 209, 90 Stat. 1434, but narrower than that applicable for most of fiscal year 1978,3 and all of fiscal year 1979, which had an additional exception for "instances where severe and long-lasting physical health damage to the mother would result if the pregnancy were carried to term when so determined by two physicians," Pub.L. 95-205, § 101, 91 Stat. 1460; Pub.L. 95-480, § 210, 92 Stat. 1586.4
8
On September 30, 1976, the day on which Congress enacted the initial version of the Hyde Amendment, these consolidated cases were filed in the District Court for the Eastern District of New York. The plaintiffs—Cora McRae, a New York Medicaid recipient then in the first trimester of a pregnancy that she wished to terminate, the New York City Health and Hospitals Corp., a public benefit corporation that operates 16 hospitals, 12 of which provide abortion services, and others—sought to enjoin the enforcement of the funding restriction on abortions. They alleged that the Hyde Amendment violated the First, Fourth, Fifth, and Ninth Amendments of the Constitution insofar as it limited the funding of abortions to those necessary to save the life of the mother, while permitting the funding of costs associated with childbirth. Although the sole named defendant was the Secretary of Health, Education, and Welfare, the District Court permitted Senators James L. Buckley and Jesse A. Helms and Representative Henry J. Hyde to intervene as defendants.5
9
After a hearing, the District Court entered a preliminary injunction prohibiting the Secretary from enforcing the Hyde Amendment and requiring him to continue to provide federal reimbursement for abortions under the standards applicable before the funding restriction had been enacted. McRae v. Mathews, 421 F.Supp. 533. Although stating that it had not expressly held that the funding restriction was unconstitutional, since the preliminary injunction was not its final judgment, the District Court noted that such a holding was "implicit" in its decision granting the injunction. The District Court also certified the McRae case as a class action on behalf of all pregnant or potentially pregnant women in the State of New York eligible for Medicaid and who decide to have an abortion within the first 24 weeks of pregnancy, and of all authorized providers of abortion services to such women. Id., at 543.
10
The Secretary then brought an appeal to this Court. After deciding Beal v. Doe, 432 U.S. 438, 97 S.Ct. 2366, 53 L.Ed.2d 464, and Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2474, 53 L.Ed.2d 534, we vacated the injunction of the District Court and remanded the case for reconsideration in light of those decisions. Califano v. McRae, 433 U.S. 916, 97 S.Ct. 2993, 53 L.Ed.2d 1103.
11
On remand, the District Court permitted the intervention of several additional plaintiffs, including (1) four individual Medicaid recipients who wished to have abortions that allegedly were medically necessary but did not qualify for federal funds under the versions of the Hyde Amendment applicable in fiscal years 1977 and 1978, (2) several physicians who perform abortions for Medicaid recipients, (3) the Women's Division of the Board of Global Ministries of the United Methodist Church (Women's Division), and (4) two individual officers of the Women's Division.
12
An amended complaint was then filed, challenging the various versions of the Hyde Amendment on several grounds. At the outset, the plaintiffs asserted that the District Court need not address the constitutionality of the HydeAmendment because, in their view, a participating State remains obligated under Title XIX to fund all medically necessary abortions, even if federal reimbursement is unavailable. With regard to the constitutionality of the Hyde Amendment, the plaintiffs asserted, among other things, that the funding restrictions violate the Religion Clauses of the First Amendment and the Due Process Clause of the Fifth Amendment.
13
After a lengthy trial, which inquired into the medical reasons for abortions and the diverse religious views on the subject,6 the District Court filed an opinion and entered a judgment invalidating all versions of the Hyde Amendment on constitutional grounds.7 The District Court rejected the plaintiffs' statutory argument, concluding that even though Title XIX would otherwise have required a participating State to fund medically necessary abortions, the Hyde Amendment had substantively amended Title XIX to relieve a State of that funding obligation. Turning then to the constitutional issues, the District Court concluded that the Hyde Amendment, though valid under the Establishment Clause,8 violates the equal protection component of the Fifth Amendment's Due Process Clause and the Free Exercise Clause of the First Amendment. With regard to the Fifth Amendment, the District Court noted that when an abortion is "medically necessary to safeguard the pregnant woman's health, . . . the disentitlement to [M]edicaid assistance impinges directly on the woman's right to decide, in consultation with her physician and in reliance on his judgment, to terminate her pregnancy in order to preserve her health."9 McRae v. Califano, 491 F.Supp. 630, 737. The court concluded that the Hyde Amendment violates the equal protection guarantee because, in its view, the decision of Congress to fund medically necessary services generally but only certain medically necessary abortions serves no legitimate governmental interest. As to the Free Exercise Clause of the First Amendment, the court held that insofar as a woman's decision to seek a medically necessary abortion may be a product of her religious beliefs under certain Protestant and Jewish tenets, the funding restrictions of the Hyde Amendment violate that constitutional guarantee as well.
14
Accordingly, the District Court ordered the Secretary to "[c]ease to give effect" to the various versions of the Hyde Amendment insofar as they forbid payments for medically necessary abortions. It further directed the Secretary to "[c]ontinue to authorize the expenditure of federal matching funds [for such abortions]." App. 87. In addition, the court recertified the McRae case as a nationwide class action on behalf of all pregnant and potentially pregnant women eligible for Medicaid who wish to have medically necessary abortions, and of all authorized providers of abortions for such women.10
15
The Secretary then applied to this Court for a stay of the judgment pending direct appeal of the District Court's decision. We denied the stay, but noted probable jurisdiction of this appeal. 444 U.S. 1069, 100 S.Ct. 1010, 62 L.Ed.2d 750.
II
16
It is well settled that if a case may be decided on either statutory or constitutional grounds, this Court, for sound jurisprudential reasons, will inquire first into the statutory question. This practice reflects the deeply rooted doctrine "that we ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable." Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 154, 89 L.Ed. 101. Accordingly, we turn first to the question whether Title XIX requires a State that participates in the Medicaid program to continue to fund those medically necessary abortions for which federal reimbursement is unavailable under the Hyde Amendment. If a participating State is under such an obligation, the constitutionality of the Hyde Amendment need not be drawn into question in the present case, for the availability of medically necessary abortions under Medicaid would continue, with the participating State shouldering the total cost of funding such abortions.
17
The appellees assert that a participating State has an independent funding obligation under Title XIX because (1) the Hyde Amendment is, by its own terms, only a limitation on federal reimbursement for certain medically necessary abortions, and (2) Title XIX does not permit a participating State to exclude from its Medicaid plan any medically necessary service solely on the basis of diagnosis or condition, even if federal reimbursement is unavailable for that service.11 It is thus the appellees' view that the effect of the Hyde Amendment is to withhold federal reimbursement for certain medically necessary abortions, but not to relieve a participating State of its duty under Title XIX to provide for such abortions in its Medicaid plan.
18
The District Court rejected this argument. It concluded that, although Title XIX would otherwise have required a participating State to include medically necessary abortions in its Medicaid program, the Hyde Amendment substantively amended Title XIX so as to relieve a State of that obligation. This construction of the Hyde Amendment was said to find support in the decisions of two Courts of Appeals, Preterm, Inc. v. Dukakis, 591 F.2d 121 (CA1 1979), and Zbaraz v. Quern, 596 F.2d 196 (CA7 1979), and to be consistent with the understanding of the effect of the Hyde Amendment by the Department of Health, Education, and Welfare in the administration of the Medicaid program.
19
We agree with the District Court, but for somewhat different reasons. The Medicaid program created by Title XIX is a cooperative endeavor in which the Federal Government provides financial assistance to participating States to aid them in furnishing health care to needy persons. Under this system of "cooperative federalism," King v. Smith, 392 U.S. 309, 316, 88 S.Ct. 2128, 2132, 20 L.Ed.2d 1118, if a State agrees to establish a Medicaid plan that satisfies the requirements of Title XIX, which include several mandatory categories of health services, the Federal Government agrees to pay a specified percentage of "the total amount expended . . . as medical assistance under the State plan . . . ." 42 U.S.C. § 1396b(a)(1). The cornerstone of Medicaid is financial contribution by both the Federal Government and the participating State. Nothing in Title XIX as originally enacted, or in its legislative history, suggests that Congress intended to require a participating State to assume the full costs of providing any health services in its Medicaid plan. Quite the contrary, the purpose of Congress in enacting Title XIX was to provide federal financial assistance for all legitimate state expenditures under an approved Medicaid plan. See S.Rep.No.404, 89th Cong., 1st Sess., pt. 1, pp. 83-85 (1965); H.R.Rep.No.213, 89th Cong., 1st Sess., 72-74 (1965), U.S.Code Cong. & Admin.News 1965, p. 1943.
20
Since the Congress that enacted Title XIX did not intend a participating State to assume a unilateral funding obligation for any health service in an approved Medicaid plan, it follows that Title XIX does not require a participating State to include in its plan any services for which a subsequent Congress has withheld federal funding.12 Title XIX was designed as a cooperative program of shared financial responsibility, not as a device for the Federal Government to compel a State to provide services that Congress itself is unwilling to fund. Thus, if Congress chooses to withdraw federal funding for a particular service, a State is not obliged to continue to pay for that service as a condition of continued federal financial support of other services. This is not to say that Congress may not now depart from the original design of Title XIX under which the Federal Government shares the financial responsibility for expenses incurred under an approved Medicaid plan. It is only to say that, absent an indication of contrary legislative intent by a subsequent Congress, Title XIX does not obligate a participating State to pay for those medical services for which federal reimbursement is unavailable.13
21
Thus, by the normal operation of Title XIX, even if a State were otherwise required to include medically necessary abortions in its Medicaid plan, the withdrawal of federal funding under the Hyde Amendment would operate to relieve the State of that obligation for those abortions for which federal reimbursement is unavailable.14 The legislative history of the Hyde Amendment contains no indication whatsoever that Congress intended to shift the entire cost of such services to the participating States. See Zbaraz v. Quern, supra, at 200 ("no one, whether supporting or opposing the Hyde Amendment, ever suggested that state funding would be required"). Rather, the legislative history suggests that Congress has always assumed that a participating State would not be required to fund medically necessary abortions once federal funding was withdrawn pursuant to the Hyde Amendment.15 SeePreterm, Inc. v. Dukakis, supra, 591 F.2d, at 130 ("[t]he universal assumption in debate was that if the Amendment passed there would be no requirement that states carry on the service"). Accord, Zbaraz v. Quern, supra, 596 F.2d, at 200; Hodgson v. Board of County Comm'rs, 614 F.2d 601, 612-613 (CA8 1980); Roe v. Casey, 623 F.2d 829, 834-837 (CA3 1980). Accordingly, we conclude that Title XIX does not require a participating State to pay for those medically necessary abortions for which federal reimbursement is unavailable under the Hyde Amendment.16
III
22
Having determined that Title XIX does not obligate a participating State to pay for those medically necessary abortions for which Congress has withheld federal funding, we must consider the constitutional validity of the Hyde Amendment. The appellees assert that the funding restrictions of the Hyde Amendment violate several rights secured by the Constitution—(1) the right of a woman, implicit in the Due Process Clause of the Fifth Amendment, to decide whether to terminate a pregnancy, (2) the prohibition under the Establishment Clause of the First Amendment against any "law respecting an establishment of religion," and (3) the right to freedom of religion protected by the Free Exercise Clause of the First Amendment. The appellees also contend that, quite apart from substantive constitutional rights, the Hyde Amendment violates the equal protection component of the Fifth Amendment.17
23
It is well settled that, quite apart from the guarantee of equal protection, if a law "impinges upon a fundamental right explicitly or implicitly secured by the Constitution [it] is presumptively unconstitutional." Mobile v. Bolden, 446 U.S. 55, 76, 100 S.Ct. 1490, 1504, 64 L.Ed.2d 47 (plurality opinion). Accordingly, before turning to the equal protection issue in this case, we examine whether the Hyde Amendment violates any substantive rights secured by the Constitution.
A.
24
We address first the appellees' argument that the Hyde Amendment, by restricting the availability of certain medically necessary abortions under Medicaid, impinges on the "liberty" protected by the Due Process Clause as recognized in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, and its progeny.
25
In the Wade case, this Court held unconstitutional a Texas statute making it a crime to procure or attempt an abortion except on medical advice for the purpose of saving the mother's life. The constitutional underpinning of Wade was a recognition that the "liberty" protected by the Due Process Clause of the Fourteenth Amendment includes not only the freedoms explicitly mentioned in the Bill of Rights, but also a freedom of personal choice in certain matters of marriage and family life.18 This implicit constitutional liberty, the Court in Wade held, includes the freedom of a woman to decide whether to terminate a pregnancy.
26
But the Court in Wade also recognized that a State has legitimate interests during a pregnancy in both ensuring the health of the mother and protecting potential human life. These state interests, which were found to be "separate and distinct" and to "gro[w] in substantiality as the woman approaches term," id., at 162-163, 93 S.Ct., at 731, pose a conflict with a woman's untrammeled freedom of choice. In resolving this conflict, the Court held that before the end of the first trimester of pregnancy, neither state interest is sufficiently substantial to justify any intrusion on the woman's freedom of choice. In the second trimester, the state interest in maternal health was found to be sufficiently substantial to justify regulation reasonably related to that concern. And at viability, usually in the third trimester, the state interest in protecting the potential life of the fetus was found to justify a criminal prohibition against abortions, except where necessary for the preservation of the life or health of the mother. Thus, inasmuch as the Texas criminal statute allowed abortions only where necessary to save the life of the mother and without regard to the stage of the pregnancy, the Court held in Wade that the statute violated the Due Process Clause of the Fourteenth Amendment.
27
In Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484, the Court was presented with the question whether the scope of personal constitutional freedom recognized in Roe v. Wade included an entitlement to Medicaid payments for abortions that are not medically necessary. At issue in Maher was a Connecticut welfare regulation under which Medicaid recipients received payments for medical services incident to childbirth, but not for medical services incident to nontherapeutic abortions. The District Court held that the regulation violated the Equal Protection Clause of the Fourteenth Amendment because the unequal subsidization of childbirth and abortion impinged on the "fundamental right to abortion" recognized in Wade and its progeny.
28
It was the view of this Court that "the District Court misconceived the nature and scope of the fundamental right recognized in Roe." 432 U.S., at 471, 97 S.Ct., at 2381. The doctrine of Roe v. Wade, the Court held in Maher, "protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy," id., at 473-474, 97 S.Ct., at 2382, such as the severe criminal sanctions at issue in Roe v. Wade, supra, or the absolute requirement of spousal consent for an abortion challenged in Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788.
29
But the constitutional freedom recognized in Wade and its progeny, the Maher Court explained, did not prevent Connecticut from making "a value judgment favoring childbirth over abortion, and . . . implement[ing] that judgment by the allocation of public funds." 432 U.S., at 474, 97 S.Ct., at 2382. As the Court elaborated:
30
"The Connecticut regulation before us is different in kind from the laws invalidated in our previous abortion decisions. The Connecticut regulation places no obstacles absolute or otherwise—in the pregnant woman's path to an abortion. An indigent woman who desires an abortion suffers no disadvantage as a consequence of Connecticut's decision to fund childbirth; she continues as before to be dependent on private sources for the service she desires. The State may have made childbirth a more attractive alternative, thereby influencing the woman's decision, but it has imposed no restriction on access to abortions that was not already there. The indigency that may make it difficult—and in some cases, perhaps, impossible—for some women to have abortions is neither created nor in any way affected by the Connecticut regulation." Ibid.
31
The Court in Maher noted that its description of the doctrine recognized in Wade and its progeny signaled "no retreat" from those decisions. In explaining why the constitutional principle recognized in Wade and later cases protecting a woman's freedom of choice—did not translate into a constitutional obligation of Connecticut to subsidize abortions, the Court cited the "basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy. Constitutional concerns are greatest when the State attempts to impose its will by force of law; the State's power to encourage actions deemed to be in the public interest is necessarily far broader." 432 U.S., at 475-476, 97 S.Ct., at 2383 (footnote omitted). Thus, even though the Connecticut regulation favored childbirth over abortion by means of subsidization of one and not the other, the Court in Maher concluded that the regulation did not impinge on the constitutional freedom recognized in Wade because it imposed no governmental restriction on access to abortions.
32
The Hyde Amendment, like the Connecticut welfare regulation at issue in Maher, places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy, but rather, by means of unequal subsidization of abortion and other medical services, encourages alternative activity deemed in the public interest. The present case does differ factually from Maher insofar as that case involved a failure to fund nontherapeutic abortions, whereas the Hyde Amendment withholds funding of certain medically necessary abortions. Accordingly, the appellees argue that because the Hyde Amendment affects a significant interest not present or asserted in Maher —the interest of a woman in protecting her health during pregnancy—and because that interest lies at the core of the personal constitutional freedom recognized in Wade, the present case is constitutionally different from Maher. It is the appellees' view that to the extent that the Hyde Amendment withholds funding for certain medically necessary abortions, it clearly impinges on the constitutional principle recognized in Wade.
33
It is evident that a woman's interest in protecting her health was an important theme in Wade. In concluding that the freedom of a woman to decide whether to terminate her pregnancy falls within the personal liberty protected by the Due Process Clause, the Court in Wade emphasized the fact that the woman's decision carries with it significant personal health implications both physical and psychological. 410 U.S., at 153, 93 S.Ct., at 726. In fact, although the Court in Wade recognized that the state interest in protecting potential life becomes sufficiently compelling in the period after fetal viability to justify an absolute criminal prohibition of nontherapeutic abortions, the Court held that even after fetal viability a State may not prohibit abortions "necessary to preserve the life or health of the mother." Id., at 164, 93 S.Ct., at 732. Because even the compelling interest of the State in protecting potential life after fetal viability was held to be insufficient to outweigh a woman's decision to protect her life or health, it could be argued that the freedom of a woman to decide whether to terminate her pregnancy for health reasons does in fact lie at the core of the constitutional liberty identified in Wade.
34
But, regardless of whether the freedom of a woman to choose to terminate her pregnancy for health reasons lies at the core or the periphery of the due process liberty recognized in Wade, it simply does not follow that a woman's freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices. The reason why was explained in Maher : although government may not place obstacles in the path of a woman's exercise of her freedom of choice, it need not remove those not of its own creation. Indigency falls in the latter category. The financial constraints that restrict an indigent woman's ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortions, but rather of her indigency. Although Congress has opted to subsidize medically necessary services generally, but not certain medically necessary abortions, the fact remains that the Hyde Amendment leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all. We are thus not persuaded that the Hyde Amendment impinges on the constitutionally protected freedom of choice recognized in Wade.19
35
Although the liberty protected by the Due Process Clause affords protection against unwarranted government interference with freedom of choice in the context of certain personal decisions, it does not confer an entitlement to such funds as may be necessary to realize all the advantages of that freedom. To hold otherwise would mark a drastic change in our understanding of the Constitution. It cannot be that because government may not prohibit the use of contraceptives, Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, or prevent parents from sending their child to a private school, Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, government, therefore, has an affirmative constitutional obligation to ensure that all persons have the financial resources to obtain contraceptives or send their children to private schools. To translate the limitation on governmental power implicit in the Due Process Clause into an affirmative funding obligation would require Congress to subsidize the medically necessary abortion of an indigent woman even if Congress had not enacted a Medicaid program to subsidize other medically necessary services. Nothing in the Due Process Clause supports such an extraordinary result.20 Whether freedom of choice that is constitutionally protected warrants federal subsidization is a question for Congress to answer, not a matter of constitutional entitlement. Accordingly, we conclude that the Hyde Amendment does not impinge on the due process liberty recognized in Wade.21
B
36
The appellees also argue that the Hyde Amendment contravenes rights secured by the Religion Clauses of the First Amendment. It is the appellees' view that the Hyde Amendment violates the Establishment Clause because it incorporates into law the doctrines of the Roman Catholic Church concerning the sinfulness of abortion and the time at which life commences. Moreover, insofar as a woman's decision to seek a medically necessary abortion may be a product of her religious beliefs under certain Protestant and Jewish tenets, the appellees assert that the funding limitations of the Hyde Amendment impinge on the freedom of religion guaranteed by the Free Exercise Clause.
37
* It is well settled that "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 governmental entanglement with religion." Committee for Public Education v. Regan, 444 U.S. 646, 653, 100 S.Ct. 840, 846, 63 L.Ed.2d 94. Applying this standard, the District Court properly concluded that the Hyde Amendment does not run afoul of the Establishment Clause. Although neither a State nor the Federal Government can constitutionally "pass laws which aid one religion, aid all religions, or prefer one religion over another," Everson v. Board of Education, 330 U.S. 1, 15, 67 S.Ct. 504, 511, 91 L.Ed. 711, it does not follow that a statute violates the Establishment Clause because it "happens to coincide or harmonize with the tenets of some or all religions." McGowan v. Maryland, 366 U.S. 420, 442, 81 S.Ct. 1101, 1113, 6 L.Ed.2d 393. That the Judaeo-Christian religions oppose stealing does not mean that a State or the Federal Government may not, consistent with the Establishment Clause, enact laws prohibiting larceny. Ibid. The Hyde Amendment, as the District Court noted, is as much a reflection of "traditionalist" values towards abortion, as it is an embodiment of the views of any particular religion. 491 F.Supp., at 741. See also Roe v. Wade, 410 U.S., at 138-141, 93 S.Ct., at 719-721. In sum, we are convinced that the fact that the funding restrictions in the Hyde Amendment may coincide with the religious tenets of the Roman Catholic Church does not, without more, contravene the Establishment Clause.
2
38
We need not address the merits of the appellees' arguments concerning the Free Exercise Clause, because the appellees lack standing to raise a free exercise challenge to the Hyde Amendment. The named appellees fall into three categories: (1) the indigent pregnant women who sued on behalf of other women similarly situated, (2) the two officers of the Women's Division, and (3) the Women's Division itself.22 The named appellees in the first category lack standing to challenge the Hyde Amendment on free exercise grounds because none alleged, much less proved, that she sought an abortion under compulsion of religious belief.23 See McGowan v. Maryland, supra, at 429, 81 S.Ct., at 1106. Although the named appellees in the second category did provide a detailed description of their religious beliefs, they failed to allege either that they are or expect to be pregnant or that they are eligible to receive Medicaid. These named appellees, therefore, lack the personal stake in the controversy needed to confer standing to raise such a challenge to the Hyde Amendment. See Warth v. Seldin, 422 U.S. 490, 498-499, 95 S.Ct. 2197, 2204-2205, 45 L.Ed.2d 343.
39
Finally, although the Women's Division alleged that its membership includes "pregnant Medicaid eligible women who, as a matter of religious practice and in accordance with their conscientious beliefs, would choose but are precluded or discouraged from obtaining abortions reimbursed by Medicaid because of the Hyde Amendment," the Women's Division does not satisfy the standing requirements for an organization to assert the rights of its membership. One of those requirements is that "neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Washington Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383. Since "it is necessary in a free exercise case for one to show the coercive effect of the enactment as it operates against him in the practice of his religion," Abington School Dist. v. Schempp, 374 U.S. 203, 223, 83 S.Ct. 1560, 1572, 10 L.Ed.2d 844, the claim asserted here is one that ordinarily requires individual participation.24 In the present case, the Women's Division concedes that "the permissibility, advisability and/or necessity of abortion according to circumstance is a matter about which there is diversity of view within . . . our membership, and is a determination which must be ultimately and absolutely entrusted to the conscience of the individual before God." It is thus clear that the participation of individual members of the Women's Division is essential to a proper understanding and resolution of their free exercise claims. Accordingly, we conclude that the Women's Division, along with the other named appellees, lack standing to challenge the Hyde Amendment under the Free Exercise Clause.
C
40
It remains to be determined whether the Hyde Amendment violates the equal protection component of the Fifth Amendment. This challenge is premised on the fact that, although federal reimbursement is available under Medicaid for medically necessary services generally, the Hyde Amendment does not permit federal reimbursement of all medically necessary abortions. The District Court held, and the appellees argue here, that this selective subsidization violates the constitutional guarantee of equal protection.
41
The guarantee of equal protection under the Fifth Amendment is not a source of substantive rights or liberties,25 but rather a right to be free from invidious discrimination in statutory classifications and other governmental activity. It is well settled that where a statutory classification does not itself impinge on a right or liberty protected by the Constitution, the validity of classification must be sustained unless "the classification rests on grounds wholly irrelevant to the achievement of [any legitimate governmental] objective." McGowan v. Maryland, 366 U.S., at 425, 81 S.Ct., at 1105. This presumption of constitutional validity, however, disappears if a statutory classification is predicated on criteria that are, in a constitutional sense, "suspect," the principal example of which is a classification based on race, e. g., Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873.
42
* For the reasons stated above, we have already concluded that the Hyde Amendment violates no constitutionally protected substantive rights. We now conclude as well that it is not predicated on a constitutionally suspect classification. In reaching this conclusion, we again draw guidance from the Court's decision in Maher v. Roe. As to whether the Connecticut welfare regulation providing funds for childbirth but not for nontherapeutic abortions discriminated against a suspect class, the Court in Maher observed:
43
"An indigent woman desiring an abortion does not come within the limited category of disadvantaged classes so recognized by our cases. Nor does the fact that the impact of the regulation falls upon those who cannot pay lead to a different conclusion. In a sense, every denial of welfare to an indigent creates a wealth classification as compared to nonindigents who are able to pay for the desired goods or services. But this Court has never held that financial need alone identifies a suspect class for purposes of equal protection analysis." 432 U.S., at 470-471, 97 S.Ct., at 2381, citing San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 29, 93 S.Ct. 1278, 1294, 36 L.Ed.2d 16; Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491.
44
Thus, the Court in Maher found no basis for concluding that the Connecticut regulation was predicated on a suspect classification.
45
It is our view that the present case is indistinguishable from Maher in this respect. Here, as in Maher, the principal impact of the Hyde Amendment falls on the indigent. But that fact does not itself render the funding restriction constitutionally invalid, for this Court has held repeatedly that poverty, standing alone is not a suspect classification. See, e. g. James v. Valtierra, 402 U.S. 137, 91 S.Ct. 1331, 28 L.Ed.2d 678. That Maher involved the refusal to fund nontherapeutic abortions, whereas the present case involves the refusal to fund medically necessary abortions, has no bearing on the factors that render a classification "suspect" within the meaning of the constitutional guarantee of equal protection.26 2
46
The remaining question then is whether the Hyde Amendment is rationally related to a legitimate governmental objective. It is the Government's position that the Hyde Amendment bears a rational relationship to its legitimate interest in protecting the potential life of the fetus. We agree.
47
In Wade, the Court recognized that the State has an "important and legitimate interest in protecting the potentiality of human life." 410 U.S., at 162, 93 S.Ct., at 731. That interest was found to exist throughout a pregnancy, "grow[ing] in substantiality as the woman approaches term." Id., at 162-163, 93 S.Ct., at 731. See also Beal v. Doe, 432 U.S., at 445-446, 97 S.Ct., at 2371. Moreover, in Maher, the Court held that Connecticut's decision to fund the costs associated with childbirth but not those associated with nontherapeutic abortions was a rational means of advancing the legitimate state interest in protecting potential life by encouraging childbirth. 432 U.S., at 478-479, 97 S.Ct., at 2385. See also Poelker v. Doe, 432 U.S. 519, 520-521, 97 S.Ct. 2391, 2392, 53 L.Ed.2d 528.
48
It follows that the Hyde Amendment, by encouraging childbirth except in the most urgent circumstances, is rationally related to the legitimate governmental objective of protecting potential life. By subsidizing the medical expenses of indigent women who carry their pregnancies to term while not subsidizing the comparable expenses of women who undergo abortions (except those whose lives are threatened),27 Congress has established incentives that make childbirth a more attractive alternative than abortion for persons eligible for Medicaid. These incentives bear a direct relationship to the legitimate congressional interest in protecting potential life. Nor is it irrational that Congress has authorized federal reimbursement for medically necessary services generally, but not for certain medically necessary abortions.28 Abortion is inherently different from other medical procedures, because no other procedure involves the purposeful termination of a potential life.
49
After conducting an extensive evidentiary hearing into issues surrounding the public funding of abortions, the District Court concluded that "[t]he interests of . . . the federal government . . . in the fetus and in preserving it are not sufficient, weighed in the balance with the woman's threatened health, to justify withdrawing medical assistance unless the woman consents . . . to carry the fetus to term." 491 F.Supp., at 737. In making an independent appraisal of the competing interests involved here, the District Court went beyond the judicial function. Such decisions are entrusted under the Constitution to Congress, not the courts. It is the role of the courts only to ensure that congressional decisions comport with the Constitution.
50
Where, as here, the Congress has neither invaded a substantive constitutional right or freedom, nor enacted legislation that purposefully operates to the detriment of a suspect class, the only requirement of equal protection is that congressional action be rationally related to a legitimate governmental interest. The Hyde Amendment satisfies that standard. It is not the mission of this Court or any other to decide whether the balance of competing interests reflected in the Hyde Amendment is wise social policy. If that were our mission, not every Justice who has subscribed to the judgment of the Court today could have done so. But we cannot, in the name of the Constitution, overturn duly enacted statutes simply "because they may be unwise, improvident, or out of harmony with a particular school of thought." Williamson v. Lee Optical Co., 348 U.S. 483, 488, 75 S.Ct. 461, 464, 99 L.Ed. 563, quoted in Dandridge v. Williams, 397 U.S., at 484, 90 S.Ct., at 1161. Rather, "when an issue involves policy choices as sensitive as those implicated [here] . . . , the appropriate forum for their resolution in a democracy is the legislature." Maher v. Roe, supra, 432 U.S., at 479, 97 S.Ct., at 2385.
IV
51
For the reasons stated in this opinion, we hold that a State that participates in the Medicaid program is not obligated under Title XIX to continue to fund those medically necessary abortions for which federal reimbursement is unavailable under the Hyde Amendment. We further hold that the funding restrictions of the Hyde Amendment violate neither the Fifth Amendment nor the Establishment Clause of the First Amendment. It is also our view that the appellees lack standing to raise a challenge to the Hyde Amendment under the Free Exercise Clause of the First Amendment. Accordingly, the judgment of the District Court is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.
52
It is so ordered.
53
Mr. Justice WHITE, concurring.
54
I join the Court's opinion and judgment with these additional remarks.
55
Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), held that prior to viability of the fetus, the governmental interest in potential life was insufficient to justify overriding the due process right of a pregnant woman to terminate her pregnancy by abortion. In the last trimester, however, the State's interest in fetal life was deemed sufficiently strong to warrant a ban on abortions, but only if continuing the pregnancy did not threaten the life or health of the mother. In the latter event, the State was required to respect the choice of the mother to terminate the pregnancy and protect her health.
56
Drawing upon Roe v. Wade and the cases that followed it, Mr. Justice STEVENS' dissent extrapolates the general proposition that the governmental interest in potential life may in no event be pursued at the expense of the mother's health. It then notes that under the Hyde Amendment, Medicaid refuses to fund abortions where carrying to term threatens maternal health but finances other medically indicated procedures, including childbirth. The dissent submits that the Hyde Amendment therefore fails the first requirement imposed by the Fifth Amendment and recognized by the Court's opinion today—that the challenged official action must serve a legitimate governmental goal, ante, at 324.
57
The argument has a certain internal logic, but it is not legally sound. The constitutional right recognized in Roe v. Wade was the right to choose to undergo an abortion without coercive interference by the government. As the Court points out, Roe v. Wade did not purport to adjudicate a right to have abortions funded by the government, but only to be free from unreasonable official interference with private choice. At an appropriate stage in a pregnancy, for example, abortions could be prohibited to implement the governmental interest in potential life, but in no case to the damage of the health of the mother, whose choice to suffer an abortion rather than risk her health the government was forced to respect.
58
Roe v. Wade thus dealt with the circumstances in which the governmental interest in potential life would justify official interference with the abortion choices of pregnant women. There is no such calculus involved here. The Government does not seek to interfere with or to impose any coercive restraint on the choice of any woman to have an abortion. The woman's choice remains unfettered, the Government is not attempting to use its interest in life to justify a coercive restraint, and hence in disbursing its Medicaid funds it is free to implement rationally what Roe v. Wade recognized to be its legitimate interest in a potential life by covering the medical costs of childbirth but denying funds for abortions. Neither Roe v. Wade nor any of the cases decided in its wake invalidates this legislative preference. We decided as much in Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977), when we rejected the claims that refusing funds for nontherapeutic abortions while defraying the medical costs of childbirth, although not an outright prohibition, nevertheless infringed the fundamental right to choose to terminate a pregnancy by abortion and also violated the equal protection component of the Fifth Amendment. I would not abandon Maher and extend Roe v. Wade to forbid the legislative policy expressed in the Hyde Amendment.
59
Nor can Maher be successfully distinguished on the ground that it involved only nontherapeutic abortions that the Government was free to place outside the ambit of its Medicaid program. That is not the ground on which Maher proceeded. Maher held that the government need not fund elective abortions because withholding funds rationally furthered the State's legitimate interest in normal childbirth. We sustained this policy even though under Roe v. Wade, the government's interest in fetal life is an inadequate justification for coercive interference with the pregnant woman's right to choose an abortion, whether or not such a procedure is medically indicated. We have already held, therefore, that the interest balancing involved in Roe v. Wade is not controlling in resolving the present constitutional issue. Accordingly, I am satisfied that the straightforward analysis followed in Mr. Justice STEWART's opinion for the Court is sound.
60
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL and Mr. Justice BLACKMUN join, dissenting.
61
I agree entirely with my Brother STEVENS that the State's interest in protecting the potential life of the fetus cannot justify the exclusion of financially and medically needy women from the benefits to which they would otherwise be entitled solely because the treatment that a doctor has concluded is medically necessary involves an abortion. See post, at 352-352. I write separately to express my continuing disagreement1 with the Court's mischaracterization of the nature of the fundamental right recognized in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and its misconception of the manner in which that right is infringed by federal and state legislation withdrawing all funding for medically necessary abortions.
62
Roe v. Wade held that the constitutional right to personal privacy encompasses a woman's decision whether or not to terminate her pregnancy. Roe and its progeny2 established that the pregnant woman has a right to be free from state interference with her choice to have an abortion—a right which, at least prior to the end of the first trimester, absolutely prohibits any governmental regulation of that highly personal decision.3 The proposition for which these cases stand thus is not that the State is under an affirmative obligation to ensure access to abortions for all who may desire them; it is that the State must refrain from wielding its enormous power and influence in a manner that might burden the pregnant woman's freedom to choose whether to have an abortion. The Hyde Amendment's denial of public funds for medically necessary abortions plainly intrudes upon this constitutionally protected decision, for both by design and in effect it serves to coerce indigent pregnant women to bear children that they would otherwise elect not to have.4
63
When viewed in the context of the Medicaid program to which it is appended, it is obvious that the Hyde Amendment is nothing less than an attempt by Congress to circumvent the dictates of the Constitution and achieve indirectly what Roe v. Wade said it could not do directly.5 Under Title XIX of the Social Security Act, the Federal Government reimburses participating States for virtually all medically necessary services it provides to the categorically needy. The sole limitation of any significance is the Hyde Amendment's prohibition against the use of any federal funds to pay for the costs of abortions (except where the life of the mother would be endangered if the fetus were carried to term). As my Brother STEVENS persuasively demonstrates, exclusion of medically necessary abortions from Medicaid coverage cannot be justified as a cost-saving device. Rather, the Hyde Amendment is a transparent attempt by the Legislative Branch to impose the political majority's judgment of the morally acceptable and socially desirable preference on a sensitive and intimate decision that the Constitution entrusts to the individual. Worse yet, the Hyde Amendment does not foist that majoritarian viewpoint with equal measure upon everyone in our Nation, rich and poor alike; rather, it imposes that viewpoint only upon that segment of our society which, because of its position of political powerlessness, is least able to defend its privacy rights from the encroachments of state-mandated morality. The instant legislation thus calls for more exacting judicial review than in most other cases. "When elected leaders cower before public pressure, this Court, more than ever, must not shirk its duty to enforce the Constitution for the benefit of the poor and powerless." Beal v. Doe, 432 U.S. 438, 462, 97 S.Ct. 2366, 2398, 53 L.Ed.2d 464 (1977) (MARSHALL, J., dissenting). Though it may not be this Court's mission "to decide whether the balance of competing interests reflected in the Hyde Amendment is wise social policy," 448 U.S. 297, at 326, 100 S.Ct. 2671, at 2693, 65 L.Ed.2d 784, it most assuredly is our responsibility to vindicate the pregnant woman's constitutional right to decide whether to bear children free from governmental intrusion.
64
Moreover, it is clear that the Hyde Amendment not only was designed to inhibit, but does in fact inhibit the woman's freedom to choose abortion over childbirth. "Pregnancy is unquestionably a condition requiring medical services. . . . Treatment for the condition may involve medical procedures for its termination, or medical procedures to bring the pregnancy to term, resulting in a live birth. '[A]bortion and childbirth, when stripped of the sensitive moral arguments surrounding the abortion controversy, are simply two alternative medical methods of dealing with pregnancy . . . .' " Beal v. doe, supra, at 449, 97 S.Ct., at 2373 (BRENNAN, J., dissenting) (quoting Roe v. Norton, 408 F.Supp. 660, 663, n. 3 (Conn.1975)). In every pregnancy, one of these two courses of treatment is medically necessary, and the poverty-stricken woman depends on the Medicaid Act to pay for the expenses associated with that procedure. But under the Hyde Amendment, the Government will fund only those procedures incidental to childbirth. By thus injecting coercive financial incentives favoring childbirth into a decision that is constitutionally guaranteed to be free from governmental intrusion, the Hyde Amendment deprives the indigent woman of her freedom to choose abortion over maternity, thereby impinging on the due process liberty right recognized in Roe v. Wade.
65
The Court's contrary conclusion is premised on its belief that "[t]he financial constraints that restrict an indigent woman's ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortions, but rather of her indigency." 448 U.S., at 316, 100 S.Ct., at 2688. Accurate as this statement may be, it reveals only half the picture. For what the Court fails to appreciate is that it is not simply the woman's indigency that interferes with her freedom of choice, but the combination of her own poverty and the Government's unequal subsidization of abortion and childbirth.
66
A poor woman in the early stages of pregnancy confronts two alternatives: she may elect either to carry the fetus to term or to have an abortion. In the abstract, of course, this choice is hers alone, and the Court rightly observes that the Hyde Amendment "places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy." 448 U.S., at 315, 100 S.Ct., at 2687, 2688. But the reality of the situation is that the Hyde Amendment has effectively removed this choice from the indigent woman's hands. By funding all of the expenses associated with childbirth and none of the expenses incurred in terminating pregnancy, the Government literally makes an offer that the indigent woman cannot afford to refuse. It matters not that in this instance the Government has used the carrot rather than the stick. What is critical is the realization that as a practical matter, many poverty-stricken women will choose to carry their pregnancy to term simply because the Government provides funds for the associated medical services, even though these same women would have chosen to have an abortion if the Government had also paid for that option, or indeed if the Government had stayed out of the picture altogether and had defrayed the costs of neither procedure.
67
The fundamental flaw in the Court's due process analysis, then, is its failure to acknowledge that the discriminatory distribution of the benefits of governmental largesse can discourage the exercise of fundamental liberties just as effectively as can an outright denial of those rights through criminal and regulatory sanctions. Implicit in the Court's reasoning is the notion that as long as the Government is not obligated to provide its citizens with certain benefits or privileges, it may condition the grant of such benefits on the recipient's relinquishment of his constitutional rights.
68
It would belabor the obvious to expound at any great length on the illegitimacy of a state policy that interferes with the exercise of fundamental rights through the selective bestowal of governmental favors. It suffices to note that we have heretofore never hesitated to invalidate any scheme of granting or withholding financial benefits that incidentally or intentionally burdens one manner of exercising a constitutionally protected choice. To take but one example of many, Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), involved a South Carolina unemployment insurance statute that required recipients to accept suitable employment when offered, even if the grounds for refusal stemmed from religious convictions. Even though the recipients possessed no entitlement to compensation, the Court held that the State could not cancel the benefits of a Seventh-Day Adventist who had refused a job requiring her to work on Saturdays. The Court's explanation is particularly instructive for the present case:
69
"Here not only is it apparent that appellant's declared ineligibility for benefits derives solely from the practice of her religion, but the pressure upon her to forego that practice is unmistakable. The ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship.
70
"Nor may the South Carolina court's construction of the statute be saved from constitutional infirmity on the ground that unemployment compensation benefits are not appellant's 'right' but merely a 'privilege.' It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege. . . . [T]o condition the availability of benefits upon this appellant's willingness to violate a cardinal principle of her religious faith effectively penalizes the free exercise of her constitutional liberties." Id., at 404-406, 83 S.Ct., at 1794-95.
71
See also Frost & Frost Trucking Co. v. Railroad Comm'n, 271 U.S. 583, 46 S.Ct. 605, 70 L.Ed. 1101 (1926); Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958); Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321 (1966); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); U. S. Dept. of Agriculture v. Moreno, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975). Cf. Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974).
72
The Medicaid program cannot be distinguished from these other statutory schemes that unconstitutionally burdened fundamental rights.6 Here, as in Sherbert, the government withholds financial benefits in a manner that discourages the exercise of a due process liberty: The indigent woman who chooses to assert her constitutional right to have an abortion can do so only on pain of sacrificing health-care benefits to which she would otherwise be entitled. Over 50 years ago, Mr. Justice Sutherland, writing for the Court in Frost & Frost Trucking Co. v. Railroad Comm'n, supra, 271 U.S., at 593-594, 46 S.Ct., at 607, made the following observation, which is as true now as it was then:
73
"It would be a palpable incongruity to strike down an act of state legislation which, by words of express divestment, seeks to strip the citizen of rights guaranteed by the federal Constitution, but to uphold an act by which the same result is accomplished under the guise of a surrender of a right in exchange for a valuable privilege which the state threatens otherwise to withhold. It is not necessary to challenge the proposition that, as a general rule, the state, having power to deny a privilege altogether, may grant it upon such conditions as it sees fit to impose. But the power of the state in that respect is not unlimited; and one of the limitations is that it may not impose conditions which require the relinquishment of constitutional rights. If the state may compel the surrender of one constitutional right as a condition of its favor, it may, in like manner, compel a surrender of all. It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence."
74
I respectfully dissent.
75
Mr. Justice MARSHALL, dissenting.
76
Three yeas ago, in Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977), the Court upheld a state program that excluded nontherapeutic abortions from a welfare program that generally subsidized the medical expenses incidental to pregnancy and childbirth. At that time, I expressed my fear "that the Court's decisions will be an invitation to public officials, already under extraordinary pressure from well-financed and carefully orchestrated lobbying campaigns, to approve more such restrictions" on governmental funding for abortion. Id., at 462, 97 S.Ct., at 2398 (dissenting both in Maher v. Roe, supra, and in Beal v. Doe, 432 U.S. 438, 97 S.Ct. 2366, 53 L.Ed.2d 464 (1977), and Poelker v. Doe, 432 U.S. 519, 97 S.Ct. 2391, 53 L.Ed.2d 528 (1977)).
77
That fear has proved justified. Under the Hyde Amendment, federal funding is denied for abortions that are medically necessary and that are necessary to avert severe and permanent damage to the health of the mother. The Court's opinion studiously avoids recognizing the undeniable fact that for women eligible for Medicaid—poor women—denial of a Medicaid-funded abortion is equivalent to denial of legal abortion altogether. By definition, these women do not have the money to pay for an abortion themselves. If abortion is medically necessary and a funded abortion is unavailable, they must resort to back-alley butchers, attempt to induce an abortion themselves by crude and dangerous methods, or suffer the serious medical consequences of attempting to carry the fetus to term. Because legal abortion is not a realistic option for such women, the predictable result of the Hyde Amendment will be a significant increase in the number of poor women who will die or suffer significant health damage because of an inability to procure necessary medical services.
78
The legislation before us is the product of an effort to deny to the poor the constitutional right recognized in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), even though the cost may be serious and long-lasting health damage. As my Brother STEVENS has demonstrated, see post, p. 349 (dissenting opinion), the premise underlying the Hyde Amendment was repudiated in Roe v. Wade, where the Court made clear that the state interest in protecting fetal life cannot justify jeopardizing the life or health of the mother. The denial of Medicaid benefits to individuals who meet all the statutory criteria for eligibility, solely because the treatment that is medically necessary involves the exercise of the fundamental right to choose abortion, is a form of discrimination repugnant to the equal protection of the laws guaranteed by the Constitution. The Court's decision today marks a retreat from Roe v. Wade and represents a cruel blow to the most powerless members of our society. I dissent.
79
* In its present form, the Hyde Amendment restricts federal funding for abortion to cases in which "the life of the mother would be endangered if the fetus were carried to term" and "for such medical procedures necessary for the victims of rape or incest when such rape or incest has been reported promptly to a law enforcement agency or public health service." See 448 U.S. 297, 302, 100 S.Ct. 2671, 2680, 65 L.Ed.2d 784. Federal funding is thus unavailable even when severe and long-lasting health damage to the mother is a virtual certainty. Nor are federal funds available when severe health damage, or even death, will result to the fetus if it is carried to term.
80
The record developed below reveals that the standards set forth in the Hyde Amendment exclude the majority of cases in which the medical profession would recommend abortion as medically necessary. Indeed, in States that have adopted a standard more restrictive than the "medically necessary" test of the Medicaid Act, the number of funded abortions has decreased by over 98%. App. 289.
81
The impact of the Hyde Amendment on indigent women falls into four major categories. First, the Hyde Amendment prohibits federal funding for abortions that are necessary in order to protect the health and sometimes the life of the mother. Numerous conditions—such as cancer, rheumatic fever, diabetes, malnutrition, phlebitis, sickle cell anemia, and heart disease substantially increase the risks associated with pregnancy or are themselves aggravated by pregnancy. Such conditions may make an abortion medically necessary in the judgment of a physician, but cannot be funded under the Hyde Amendment. Further, the health risks of undergoing an abortion increase dramatically as pregnancy becomes more advanced. By the time a pregnancy has progressed to the point where a physician is able to certify that it endangers the life of the mother, it is in many cases too late to prevent her death because abortion is no longer safe. There are also instances in which a woman's life will not be immediately threatened by carrying the pregnancy to term, but aggravation of another medical condition will significantly shorten her life expectancy. These cases as well are not fundable under the Hyde Amendment.
82
Second, federal funding is denied in cases in which severe mental disturbances will be created by unwanted pregnancies. The result of such psychological disturbances may be suicide, attempts at self-abortion, or child abuse. The Hyde Amendment makes no provision for funding in such cases.
83
Third, the Hyde Amendment denies funding for the majority of women whose pregnancies have been caused by rape or incest. The prerequisite of a report within 60 days serves to exclude those who are afraid of recounting what has happened or are in fear of unsympathetic treatment by the authorities. Such a requirement is, of course, especially burdensome for the indigent, who may be least likely to be aware that a rapid report to the authorities is indispensable in order for them to be able to obtain an abortion.
84
Finally, federal funding is unavailable in cases in which it is known that the fetus itself will be unable to survive. In a number of situations it is possible to determine in advance that the fetus will suffer an early death if carried to term. The Hyde Amendment, purportedly designed to safeguard "the legitimate governmental objective of protecting potential life," 448 U.S., at 325, 100 S.Ct., at 2692, excludes federal funding in such cases.
85
An optimistic estimate indicates that as many as 100 excess deaths may occur each year as a result of the Hyde Amendment.1 The record contains no estimate of the health damage that may occur to poor women, but it shows that it will be considerable.2
II
86
The Court resolves the equal protection issue in this case through a relentlessly formalistic catechism. Adhering to its "two-tiered" approach to equal protection, the Court first decides that so-called strict scrutiny is not required because the Hyde Amendment does not violate the Due Process Clause and is not predicated on a constitutionally suspect classification. Therefore, "the validity of classification must be sustained unless 'the classification rests on grounds wholly irrelevant to the achievement of [any legitimate governmental] objective.' " 448 U.S., at 322, 100 S.Ct., at 2690-2691 (bracketed material in original), quoting McGowan v. Maryland, 366 U.S. 420, 425, 81 S.Ct. 1101, 1104, 6 L.Ed.2d 393 (1961). Observing that previous cases have recognized "the legitimate governmental objective of protecting potential life," 448 U.S., at 325, 100 S.Ct., at 2692, the Court concludes that the Hyde Amendment "establishe[s] incentives that make childbirth a more attractive alternative than abortion for persons eligible for Medicaid," ibid., and is therefore rationally related to that governmental interest.
87
I continue to believe that the rigid "two-tiered" approach is inappropriate and that the Constitution requires a more exacting standard of review than mere rationality in cases such as this one. Further, in my judgment the Hyde Amendment cannot pass constitutional muster even under the rational-basis standard of review.
A.
88
This case is perhaps the most dramatic illustration to date of the deficiencies in the Court's obsolete "two-tiered" approach to the Equal Protection Clause. See San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 98-110, 93 S.Ct. 1278, 1330-1336, 36 L.Ed.2d 16 (1973) (MARSHALL, J., dissenting); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 318-321, 96 S.Ct. 2562, 2569-2570, 49 L.Ed.2d 520 (1976) (MARSHALL, J., dissenting); Maher v. Roe, 432 U.S., at 457-458, 97 S.Ct., at 2396 (MARSHALL, J., dissenting); Vance v. Bradley, 440 U.S. 93, 113-115, 99 S.Ct. 939, 951-952, 59 L.Ed.2d 171 (1979)(MARSHALL, J., dissenting).3 With all deference, I am unable to understand how the Court can afford the same level of scrutiny to the legislation involved here—whose cruel impact falls exclusively on indigent pregnant women—that it has given to legislation distinguishing opticians from ophthalmologists, or to other legislation that makes distinctions between economic interests more than able to protect themselves in the political process. See, 448 U.S., at 326, 100 S.Ct., at 2692-2693, citing Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955). Heightened scrutiny of legislative classifications has always been designed to protect groups "saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process." San Antonio Independent School Dist. v. Rodriguez, supra, 411 U.S., at 28, 93 S.Ct., at 1294.4 And while it is now clear that traditional "strict scrutiny" is unavailable to protect the poor against classifications that disfavor them, Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), I do not believe that legislation that imposes a crushing burden on indigent women can be treated with the same deference given to legislation distinguishing among business interests.
B
89
The Hyde Amendment, of course, distinguishes between medically necessary abortions and other medically necessary expenses.5 As I explained in Maher v. Roe, supra, such classifications must be assessed by weighing " 'the importance of the governmental benefits denied, the character of the class, and the asserted state interests,' " 432 U.S., at 458, 97 S.Ct., at 2396, quoting Massachusetts Bd. of Retirement v. Murgia, supra, 427 U.S., at 322, 96 S.Ct., at 2571. Under that approach, the Hyde Amendment is clearly invalid.6
90
As in Maher, the governmental benefits at issue here are "of absolutely vital importance in the lives of the recipients." Maher v. Roe, supra, at 458, 97 S.Ct., at 2396 (MARSHALL, J., dissenting). An indigent woman denied governmental funding for a medically necessary abortion is confronted with two grotesque choices. First, she may seek to obtain "an illegal abortion that poses a serious threat to her health and even her life." Ibid. Alternatively, she may attempt to bear the child, a course that may both significantly threaten her health and eliminate any chance she might have had "to control the direction of her own life," id., at 459, 97 S.Ct., at 2397.
91
The class burdened by the Hyde Amendment consists of indigent women, a substantial proportion of whom are members of minority races. As I observed in Maher, nonwhite women obtain abortions at nearly double the rate of whites, ibid.. In my view, the fact that the burden of the Hyde Amendment falls exclusively on financially destitute women suggests "a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry." United States v. Carolene Products Co., 304 U.S. 144, 153, n. 4, 58 S.Ct. 778, 784, n. 4, 82 L.Ed. 1234 (1938). For this reason, I continue to believe that "a showing that state action has a devastating impact on the lives of minority racial groups must be relevant" for purposes of equal protection analysis. Jefferson v. Hackney, 406 U.S. 535, 575-576, 92 S.Ct. 1724, 1745, 32 L.Ed.2d 285 (1972) (MARSHALL, J., dissenting).
92
As I explained in Maher, the asserted state interest in protecting potential life is insufficient to "outweigh the deprivation or serious discouragement of a vital constitutional right of especial importance to poor and minority women." 432 U.S., at 461, 97 S.Ct., at 2398. In Maher, the Court found a permissible state interest in encouraging normal childbirth. Id., at 477-479, 97 S.Ct., at 2384, 2385. The governmental interest in the present case is substantially weaker than in Maher, for under the Hyde Amendment funding is refused even in cases in which normal childbirth will not result: one can scarcely speak of "normal childbirth" in cases where the fetus will die shortly after birth, or in which the mother's life will be shortened or her health otherwise gravely impaired by the birth. Nevertheless, the Hyde Amendment denies funding even in such cases. In these circumstances, I am unable to see how even a minimally rational legislature could conclude that the interest in fetal life outweighs the brutal effect of the Hyde Amendment on indigent women. Moreover, both the legislation in Maher and the Hyde Amendment were designed to deprive poor and minority women of the constitutional right to choose abortion. That purpose is not constitutionally permitted under Roe v. Wade.
C
93
Although I would abandon the strict-scrutiny/rational-basis dichotomy in equal protection analysis, it is by no means necessary to reject that traditional approach to conclude, as I do, that the Hyde Amendment is a denial of equal protection. My Brother BRENNAN has demonstrated that the Amendment is unconstitutional because it impermissibly infringes upon the individual's constitutional right to decide whether to terminate a pregnancy. See ante, at 332-334 (dissenting opinion). And as my Brother STEVENS demonstrates, see post, at 350-352 (dissenting opinion), the Government's interest in protecting fetal life is not a legitimate one when it is in conflict with "the preservation of the life or health of the mother," Roe v. Wade, 410 U.S., at 165, 93 S.Ct., at 732, and when the Government's effort to make serious health damage to the mother "a more attractive alternative than abortion," 448 U.S., at 325, 100 S.Ct., at 2692, does not rationally promote the governmental interest in encouraging normal childbirth.
94
The Court treats this case as though it were controlled by Maher. To the contrary, this case is the mirror image of Maher. The result in Maher turned on the fact that the legislation there under consideration discouraged only nontherapeutic, or medically unnecessary, abortions. In the Court's view, denial of Medicaid funding for nontherapeutic abortions was not a denial of equal protection because Medicaid funds were available only for medically necessary procedures. Thus the plaintiffs were seeking benefits which were not available to others similarly situated. I continue to believe that Maher was wrongly decided. But it is apparent that while the plaintiffs in Maher were seeking a benefit not available to others similarly situated, appellees are protesting their exclusion from a benefit that is available to all others similarly situated. This, it need hardly be said, is a crucial difference for equal protection purposes.
95
Under Title XIX and the Hyde Amendment, funding is available for essentially all necessary medical treatment for the poor. Appellees have met the statutory requirements for eligibility, but they are excluded because the treatment that is medically necessary involves the exercise of a fundamental right, the right to choose an abortion. In short, these have been deprived appellees a governmental benefit for which they are otherwise eligible, solely because they have attempted to exercise a constitutional right. The interest asserted by the Government, the protection of fetal life, has been declared constitutionally subordinate to appellees' interest in preserving their lives and health by obtaining medically necessary treatment. Roe v. Wade, supra. And finally, the purpose of the legislation was to discourage the exercise of the fundamental right. In such circumstances the Hyde Amendment must be invalidated because it does not meet even the rational-basis standard of review.
III
96
The consequences of today's opinion—consequences to which the Court seems oblivious—are not difficult to predict. Pregnant women denied the funding necessary to procure abortions will be restricted to two alternatives. First, they can carry the fetus to term—even though that route may result in severe injury or death to the mother, the fetus, or both. If that course appears intolerable, they can resort to self-induced abortions or attempt to obtain illegal abortions—not because bearing a child would be inconvenient, but because it is necessary in order to protect their health.7 The result will not be to protect what the Court describes as "the legitimate governmental objective of protecting potential life," 448 U.S., at 325, 100 S.Ct., at 2692, but to ensure the destruction of both fetal and maternal life. "There is another world 'out there,' the existence of which the Court . . . either chooses to ignore or fears to recognize." Beal v. Doe, 432 U.S., at 463, 97 S.Ct., at 2399 (BLACKMUN, J., dissenting). In my view, it is only by blinding itself to that other world that the Court can reach the result it announces today.
97
Ultimately, the result reached today may be traced to the Court's unwillingness to apply the constraints of the Constitution to decisions involving the expenditure of governmental funds. In today's decision, as in Maher v. Roe, the Court suggests that a withholding of funding imposes no real obstacle to a woman deciding whether to exercise her constitutionally protected procreative choice, even though the Government is prepared to fund all other medically necessary expenses, including the expenses of childbirth. The Court perceives this result as simply a distinction between an "limitation on governmental power" and "an affirmative funding obligation." 448 U.S., at 318, 100 S.Ct., at 2688-2689. For a poor person attempting to exercise her "right" to freedom of choice, the difference is imperceptible. As my Brother BRENNAN has shown, see ante, at 332-334 (dissenting opinion), the differential distribution of incentives—which the Court concedes is present here, see 448 U.S., at 325, 100 S.Ct., at 2692—can have precisely the same effect as an outright prohibition. It is no more sufficient an answer here than it was in Roe v. Wade to say that "the appropriate forum' " for the resolution of sensitive policy choices is the legislature. See 448 U.S., at 326, 100 S.Ct., at 2693 quoting Maher v. Roe, 432 U.S., at 479, 97 S.Ct., at 2385.
98
More than 35 years ago, Mr. Justice Jackson observed that the "task of translating the majestic generalities of the Bill of Rights . . . into concrete restraints on officials dealing with the problems of the twentieth century, is one to disturb self-confidence." West Virginia State Bd. of Education v. Barnette, 319 U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628 (1943). These constitutional principles, he observed for the Court, "grew in soil which also produced a philosophy that the individual['s] . . . liberty was attainable through mere absence of governmental restraints." Ibid. Those principles must be "transplant[ed] . . . to a soil in which the laissez-faire concept or principle of has withered at least as to economic affairs, and social advancements are increasingly sought through closer integration of society and through expanded and strengthened governmental controls." Id., at 640, 63 S.Ct., at 1186.
99
In this case, the Federal Government has taken upon itself the burden of financing practically all medically necessary expenditures. One category of medically necessary expenditure has been singled out for exclusion, and the sole basis for the exclusion is a premise repudiated for purposes of constitutional law in Roe v. Wade. The consequence is a devastating impact on the lives and health of poor women. I do not believe that a Constitution committed to the equal protection of the laws can tolerate this result. I dissent.
100
Mr. Justice BLACKMUN, dissenting.
101
I join the dissent of Mr. Justice BRENNAN and agree wholeheartedly with his and Mr. Justice STEVENS' respective observations and descriptions of what the Court is doing in this latest round of "abortion cases." I need add only that I find what I said in dissent in Beal v. Doe, 432 U.S. 438, 462, 97 S.Ct. 2366, 2394, 2398, 53 L.Ed.2d 464 (1977), and its two companion cases, Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977), and Poelker v. Doe, 432 U.S. 519, 97 S.Ct. 2391, 53 L.Ed.2d 528 (1977), continues for me to be equally pertinent and equally applicable in these Hyde Amendment cases. There is "condescension" in the Court's holding that "she may go elsewhere for her abortion"; this is "disingenuous and alarming"; the Government "punitively impresses upon a needy minority its own concepts of the socially desirable, the publicly acceptable, and the morally sound"; the "financial argument, of course, is specious"; there truly is "another world 'out there,' the existence of which the Court, I suspect, either chooses to ignore or fears to recognize"; the "cancer of poverty will continue to grow"; and "the lot of the poorest among us," once again, and still, is not to be bettered.
102
Mr. Justice STEVENS, dissenting.
103
"The federal sovereign, like the States, must govern impartially. The concept of equal justice under law is served by the Fifth Amendment's guarantee of due process, as well as by the Equal Protection Clause of the Fourteenth Amendment." Hampton v. Mow Sun Wong, 426 U.S. 88, 100, 96 S.Ct. 1895, 1903, 48 L.Ed.2d 495. When the sovereign provides a special benefit or a special protection for a class of persons, it must define the membership in the class by neutral criteria; it may not make special exceptions for reasons that are constitutionally insufficient.
104
These cases involve the pool of benefits that Congress created by enacting Title XIX of the Social Security Act in 1965. Individuals who satisfy two neutral statutory criteria—financial need and medical need—are entitled to equal access to that pool. The question is whether certain persons who satisfy those criteria may be denied access to benefits solely because they must exercise the constitutional right to have an abortion in order to obtain the medical care they need. Our prior cases plainly dictate the answer to that question.
105
A fundamentally different question was decided in Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484. Unlike these plaintiffs, the plaintiffs in Maher did not satisfy the neutral criterion of medical need; they sought a subsidy for nontherapeutic abortions—medical procedures which by definition they did not need. In rejecting that claim, the Court held that their constitutional right to choose that procedure did not impose a duty on the State to subsidize the exercise of that right. Nor did the fact that the State had undertaken to pay for the necessary medical care associated with childbirth require the State also to pay for abortions that were not necessary; for only necessary medical procedures satisfied the neutral statutory criteria. Nontherapeutic abortions were simply outside the ambit of the medical benefits program. Thus, in Maher, the plaintiffs' desire to exercise a constitutional right gave rise to neither special access nor special exclusion from the pool of benefits created by Title XIX.
106
These cases involve a special exclusion of women who, by definition, are confronted with a choice between two serious harms: serious health damage to themselves on the one hand and abortion on the other. The competing interests are the interest in maternal health and the interest in protecting potential human life. It is now part of our law that the pregnant woman's decision as to which of these conflicting interests shall prevail is entitled to constitutional protection.1
107
In Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201, the Court recognized that the States have a legitimate and protectible interest in potential human life. 410 U.S., at 162, 93 S.Ct., at 731. But the Court explicitly held that prior to fetal viability that interest may not justify any governmental burden on the woman's choice to have an abortion2 nor even any regulation of abortion except in furtherance of the State's interest in the woman's health. In effect, the Court held that a woman's freedom to elect to have an abortion prior to viability has absolute constitutional protection, subject only to valid health regulations. Indeed, in Roe v. Wade the Court held that even after fetal viability, a State may "regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." Id., at 165, 93 S.Ct., at 732 (emphasis added). We have a duty to respect that holding. The Court simply shirks that duty in this case.
108
If a woman has a constitutional right to place a higher value on avoiding either serious harm to her own health or perhaps an abnormal childbirth3 than on protecting potential life, the exercise of that right cannot provide the basis for the denial of a benefit to which she would otherwise be entitled. The Court's sterile equal protection analysis evades this critical though simple point. The Court focuses exclusively on the "legitimate interest in protecting the potential life of the fetus." 448 U.S., at 324, 100 S.Ct., at 2692. It concludes that since the Hyde Amendments further that interest, the exclusion they create is rational and therefore constitutional. But it is misleading to speak of the Government's legitimate interest in the fetus without reference to the context in which that interest was held to be legitimate. For Roe v. Wade squarely held that the States may not protect that interest when a conflict with the interest in a pregnant woman's health exists. It is thus perfectly clear that neither the Federal Government nor the States may exclude a woman from medical benefits to which she would otherwise be entitled solely to further an interest in potential life when a physician, "in appropriate medical judgment," certifies that an abortion is necessary "for the preservation of the life or health of the mother." Roe v. Wade, supra, at 165, 93 S.Ct., at 732. The Court totally fails to explain why this reasoning is not dispositive here.4
109
It cannot be denied that the harm inflicted upon women in the excluded class is grievous.5 As the Court's comparison of the differing forms of the Hyde Amendment that have been enacted since 1976 demonstrates, the Court expressly approves the exclusion of benefits in "instances where severe and long-lasting physical health damage to the mother" is the predictable consequence of carrying the pregnancy to term. Indeed, as the Solicitor General acknowledged with commendable candor, the logic of the Court's position would justify a holding that it would be constitutional to deny funding to a medically and financially needy person even if abortion were the only lifesaving medical procedure available.6 Because a denial of benefits for medically necessary abortions inevitably causes serious harm to the excluded woman, it is tantamount to severe punishment.7 In my judgment, that denial cannot be justified unless government may, in effect, punish women who want abortions. But as the Court unequivocally held in Roe v. Wade, this the government may not do.
110
Nor can it be argued that the exclusion of this type of medically necessary treatment of the indigent can be justified on fiscal grounds. There are some especially costly forms of treatment that may reasonably be excluded from the program in order to preserve the assets in the pool and extend its benefits to the maximum number of needy persons. Fiscal considerations may compel certain difficult choices in order to improve the protection afforded to the entire benefited class.8 But, ironically, the exclusion of medically necessary abortions harms the entire class as well as its specific victims. For the records in both McRae and Zbaraz demonstrate that the cost of an abortion is only a small fraction of the costs associated with childbirth.9 Thus, the decision to tolerate harm to indigent persons who need an abortion in order to avoid "serious and long-lasting health damage" is one that is financed by draining money out of the pool that is used to fund all other necessary medical procedures. Unlike most invidious classifications, this discrimination harms not only its direct victims but also the remainder of the class of needy persons that the pool was designed to benefit.
In Maher the Court stated:
111
"The Constitution imposes no obligation on the States to pay the pregnancy-related medical expenses of indigent women, or indeed to pay any of the medical expenses of indigents. But when a State decides to alleviate some of the hardships of poverty by providing medical care, the manner in which it dispenses benefits is subject to constitutional limitations." 432 U.S., at 469-470, 97 S.Ct., at 2380 (footnote omitted).
112
Having decided to alleviate some of the hardships of poverty by providing necessary medical care, the government must use neutral criteria in distributing benefits. It may not deny benefits to a financially and medically needy person simply because he is a Republican, a Catholic, or an Oriental—or because he has spoken against a program the government has a legitimate interest in furthering. In sum, it may not create exceptions for the sole purpose of furthering a governmental interest that is constitutionally subordinate to the individual interest that the entire program was designed to protect. The Hyde Amendments not only exclude financially and medically needy persons from the pool of benefits for a constitutionally insufficient reason; they also require the expenditure of millions and millions of dollars in order to thwart the exercise of a constitutional right, thereby effectively inflicting serious and long-lasting harm on impoverished women who want and need abortions for valid medical reasons. In my judgment, these Amendments constitute an unjustifiable, and indeed blatant, violation of the sovereign's duty to govern impartially.10
113
I respectfully dissent.
1
The "categorically needy" include families with dependent children eligible for public assistance under the Aid to Families with Dependent Children program, 42 U.S.C. § 601 et seq., and the aged, blind, and disabled eligible for benefits under the Supplemental Security Income program, 42 U.S.C. § 1381 et seq. See 42 U.S.C. § 1396a(a)(10)(A). Title XIX also permits a State to extend Medicaid benefits to other needy persons, termed "medically needy." See 42 U.S.C. § 1396a(a)(10)(C). If a State elects to include the medically needy in its Medicaid plan, it has the option of providing somewhat different coverage from that required for the categorically needy. See 42 U.S.C. § 1396a(a)(13)(C).
2
The Department of Health, Education, and Welfare was recently reorganized and divided into the Department of Health and Human Services and the Department of Education. The original designation is retained for purposes of this opinion.
3
The appropriations for HEW during October and November 1977, the first two months of fiscal year 1978, were provided by joint resolutions that continued in effect the version of the Hyde Amendment applicable during fiscal year 1977. Pub.L. 95-130, 91 Stat. 1153; Pub.L. 95-165, 91 Stat. 1323.
4
In this opinion, the term "Hyde Amendment" is used generically to refer to all three versions of the Hyde Amendment, except where indicated otherwise.
5
Although the intervenor-defendants are appellees in the Secretary's direct appeal to this Court, see this Court's Rule 10(4), the term "appellees" is used in this opinion to refer only to the parties who were the plaintiffs in the District Court.
6
The trial, which was conducted between August 1977 and September 1978, produced a record containing more than 400 documentary and film exhibits and a transcript exceeding 5,000 pages.
7
McRae v. Califano, 491 F.Supp. 630.
8
The District Court found no Establishment Clause infirmity because, in its view, the Hyde Amendment has a secular legislative purpose, its principal effect neither advances nor inhibits religion, and it does not foster an excessive governmental entanglement with religion.
9
The District Court also apparently concluded that the Hyde Amendment operates to the disadvantage of a "suspect class," namely, teenage women desiring medically necessary abortions. See n. 26, infra.
10
Although the original class included only those pregnant women in the first two trimesters of their pregnancy, the recertified class included all pregnant women regardless of the stage of their pregnancy.
11
The appellees argue that their interpretation of Title XIX finds support in Beal v. Doe, 432 U.S. 438, 97 S.Ct. 2366, 53 L.Ed.2d 464. There the Court considered the question whether Title XIX permits a participating State to exclude non -therapeutic abortions from its Medicaid plan. Although concluding that Title XIX does not preclude a State's refusal "to fund unnecessary —though perhaps desirable—medical services," the Court observed that "serious statutory questions might be presented if a state Medicaid plan excluded necessary medical treatment from its coverage." Id., at 444-445, 97 S.Ct., at 2371 (emphasis in original). The Court in Beal, however, did not address the possible effect of the Hyde Amendment upon the operation of Title XIX.
12
In Preterm, Inc. v. Dukakis, 591 F.2d 121, 132 (CA1 1979), the opinion of the court by Judge Coffin noted:
"The Medicaid program is one of federal and state cooperation in funding medical assistance; a complete withdrawal of the federal prop in the system with the intent to drop the total cost of providing the service upon the states, runs directly counter to the basic structure of the program and could seriously cripple a state's attempts to provide other necessary medical services embraced by its plan." (Footnote omitted.)
13
When subsequent Congresses have deviated from the original structure of Title XIX by obligating a participating State to assume the full costs of a service as a prerequisite for continued federal funding of other services, they have always expressed their intent to do so in unambiguous terms. See Zbaraz v. Quern, 596 F.2d 196, 200, n. 12 (CA7 1979).
14
Since Title XIX itself provides for variations in the required coverage of state Medicaid plans depending on changes in the availability of federal reimbursement, we need not inquire, as the District Court did, whether the Hyde Amendment is a substantive amendment to Title XIX. The present case is thus different from TVA v. Hill, 437 U.S. 153, 189-193, 98 S.Ct. 2279, 2299-2301, 57 L.Ed.2d 117, where the issue was whether continued appropriations for the Tellico Dam impliedly repealed the substantive requirements of the Endangered Species Act prohibiting the continued construction of the Dam because it threatened the natural habitat of an endangered species.
15
Our conclusion that the Congress that enacted Title XIX did not intend a participating State to assume a unilateral funding obligation for any health service in an approved Medicaid plan is corroborated by the fact that subsequent Congresses simply assumed that the withdrawal of federal funding under the Hyde Amendment for certain medically necessary abortions would relieve a participating State of any obligation to provide for such services in its Medicaid plan. See the cases cited in the text, supra.
16
A participating State is free, if it so chooses, to include in its Medicaid plan those medically necessary abortions for which federal reimbursement is unavailable. See Beal v. Doe, 432 U.S., at 447, 97 S.Ct., at 2372; Preterm, Inc. v. Dukakis, supra, at 134. We hold only that a State need not include such abortions in its Medicaid plan.
17
The appellees also argue that the Hyde Amendment is unconstitutionally vague insofar as physicians are unable to understand or implement the exceptions in the Hyde Amendment under which abortions are reimbursable. It is our conclusion, however, that the Hyde Amendment is not void for vagueness because (1) the sanction provision in the Medicaid Act contains a clear scienter requirement under which good-faith errors are not penalized, see Colautti v. Franklin, 439 U.S. 379, 395, 99 S.Ct. 675, 685, 58 L.Ed.2d 596; and, (2), in any event, the exceptions in the Hyde Amendment "are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest." Broadrick v. Oklahoma, 413 U.S. 601, 608, 93 S.Ct. 2908, 2914, 37 L.Ed.2d 830.
18
The Court in Wade observed that previous decisions of this Court had recognized that the liberty protected by the Due Process Clause "has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 [87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010] (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542 [62 S.Ct. 1110, 1113-1114, 86 L.Ed. 1655] (1942); contraception, Eisenstadt v. Baird, 405 U.S., [438,] at 453-454 [92 S.Ct. 1029, at 1038, 1039, 31 L.Ed.2d 349]; id., at 460, 463-465 [92 S.Ct., at 1042, 1043-1044] (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 [64 S.Ct. 438, 442, 88 L.Ed. 645] (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 [45 S.Ct. 571, 573, 69 L.Ed. 1070] (1925); Meyer v. Nebraska [262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923)]." 410 U.S., at 152-153, 93 S.Ct., at 726-727.
19
The appellees argue that the Hyde Amendment is unconstitutional because it "penalizes" the exercise of a woman's choice to terminate a pregnancy by abortion. See Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306; Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600. This argument falls short of the mark. In Maher, the Court found only a "semantic difference" between the argument that Connecticut's refusal to subsidize nontherapeutic abortions "unduly interfere[d]" with the exercise of the constitutional liberty recognized in Wade and the argument that it "penalized" the exercise of that liberty. 432 U.S., at 474 n. 8, 97 S.Ct., at 2382 n. 8. And, regardless of how the claim was characterized, the Maher Court rejected the argument that Connecticut's refusal to subsidize protected conduct, without more, impinged on the constitutional freedom of choice. This reasoning is equally applicable in the present case. A substantial constitutional question would arise if Congress had attempted to withhold all Medicaid benefits from an otherwise eligible candidate simply because that candidate had exercised her constitutionally protected freedom to terminate her pregnancy by abortion. This would be analogous to Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965, where this Court held that a State may not, consistent with the First and Fourteenth Amendments, withhold all unemployment compensation benefits from a claimant who would otherwise be eligible for such benefits but for the fact that she is unwilling to work one day per week on her Sabbath. But the Hyde Amendment, unlike the statute at issue in Sherbert, does not provide for such a broad disqualification from receipt of public benefits. Rather, the Hyde Amendment, like the Connecticut welfare provision at issue in Maher, represents simply a refusal to subsidize certain protected conduct. A refusal to fund protected activity, without more, cannot be equated with the imposition of a "penalty" on that activity.
20
As this Court in Maher observed: "The Constitution imposes no obligation on the [government] to pay the pregnancy-related medical expenses of indigent women, or indeed to pay any of the medical expenses of indigents." 432 U.S., at 469, 97 S.Ct., at 2380.
21
Since the constitutional entitlement of a physician who administers medical care to an indigent woman is no broader than that of his patient, see Whalen v. Roe, 429 U.S. 589, 604, and n. 33, 97 S.Ct. 869, 878, and n. 33, 51 L.Ed.2d 64, we also reject the appellees' claim that the funding restrictions of the Hyde Amendment violate the due process rights of the physician who advises a Medicaid recipient to obtain a medically necessary abortion.
22
The remaining named appellees, including the individual physicians and the New York City Health and Hospitals Corp., did not attack the Hyde Amendment on the basis of the Free Exercise Clause of the First Amendment.
23
These named appellees sued on behalf of the class of "women of all religious and nonreligious persuasions and beliefs who have, in accordance with the teaching of their religion and/or the dictates of their conscience determined that an abortion is necessary." But since we conclude below that the named appellees have not established their own standing to sue, "[t]hey cannot represent a class of whom they are not a part." Bailey v. Patterson, 369 U.S. 31, 32-33, 82 S.Ct. 549, 550, 7 L.Ed.2d 512. See also O'Shea v. Littleton, 414 U.S. 488, 494-495, 94 S.Ct. 669, 675, 38 L.Ed.2d 674.
24
For example, in Board of Education v. Allen, 392 U.S. 236, 249, 88 S.Ct. 1923, 1929, 20 L.Ed.2d 1060, the Court found no free exercise violation since the plaintiffs had "not contended that the [statute in question] in any way coerce[d] them as individuals in the practice of their religion." (Emphasis added.)
25
An exception to this statement is to be found in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, and its progeny. Although the Constitution of the United States does not confer the right to vote in state elections, see Minor v. Happersett, 21 Wall. 162, 178, 22 L.Ed. 627, Reynolds held that if a State adopts an electoral system, the Equal Protection Clause of the Fourteenth Amendment confers upon a qualified voter a substantive right to participate in the electoral process equally with other qualified voters. See, e. g., Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 999, 31 L.Ed.2d 274.
26
Although the matter is not free from doubt, the District Court seems to have concluded that teenage women desiring medically necessary abortions constitute a "suspect class" for purposes of triggering a heightened level of equal protection scrutiny. In this regard, the District Court observed that the Hyde Amendment "clearly operate[s] to the disadvantage of one suspect class, that is to the disadvantage of the statutory class of adolescents at a high risk of pregnancy . . . , and particularly those seventeen and under." 491 F.Supp., at 738. The "statutory" class to which the District Court was referring is derived from the Adolescent Health Services and Pregnancy Prevention and Care Act, 42 U.S.C. § 300a-21 et seq. (1976 ed., Supp. II). It was apparently the view of the District Court that since statistics indicate that women under 21 years of age are disproportionately represented among those for whom an abortion is medically necessary, the Hyde Amendment invidiously discriminates against teenage women.
But the Hyde Amendment is facially neutral as to age, restricting funding for abortions for women of all ages. The District Court erred, therefore, in relying solely on the disparate impact of the Hyde Amendment in concluding that it discriminated on the basis of age. The equal protection component of the Fifth Amendment prohibits only purposeful discrimination, Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597, and when a facially neutral federal statute is challenged on equal protection grounds, it is incumbent upon the challenger to prove that Congress "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. 256, 279, 99 S.Ct. 2282, 2296, 60 L.Ed.2d 870. There is no evidence to support such a finding of intent in the present case.
27
We address here the constitutionality of the most restrictive version of the Hyde Amendment, namely, that applicable in fiscal year 1976 under which federal funds were unavailable for abortions, "except where the life of the mother would be endangered if the fetus were carried to term." Three versions of the Hyde Amendment are at issue in this case. If the most restrictive version is constitutionally valid, so too are the others.
28
In fact, abortion is not the only "medically necessary" service for which federal funds under Medicaid are sometimes unavailable to otherwise eligible claimants. See 42 U.S.C. § 1396d(a)(17)(B) (inpatient hospital care of patients between 21 and 65 in institutions for tuberculosis or mental disease not covered by Title XIX).
1
See Maher v. Roe, 432 U.S. 464, 482-490, 97 S.Ct. 2376, 2386-91, 53 L.Ed.2d 484 (1977) (BRENNAN, J., dissenting).
2
E. g., Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976); Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); Bellotti v. Baird, 433 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979); cf. Carey v. Population Services International, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977).
3
After the first trimester, the State, in promoting its interest in the mother's health, may regulate the abortion procedure in ways that are reasonably related to that end. And even after the point of viability is reached, state regulation in furtherance of its interest in the potentiality of human life may not go so far as to proscribe abortions that are necessary to preserve the life or health of the mother. See Roe v. Wade, 410 U.S. 113, 164-165, 93 S.Ct. 705, 732-733, 35 L.Ed.2d 147 (1973).
4
My focus throughout this opinion is upon the coercive impact of the congressional decision to fund one outcome of pregnancy—childbirth—while not funding the other—abortion. Because I believe this alone renders the Hyde Amendment unconstitutional, I do not dwell upon the other disparities that the Amendment produces in the treatment of rich and poor, pregnant and nonpregnant. I concur completely, however, in my Brother STEVENS' discussion of those disparities. Specifically, I agree that the congressional decision to fund all medically necessary procedures except for those that require an abortion is entirely irrational either as a means of allocating health-care resources or otherwise serving legitimate social welfare goals. And that irrationality in turn exposes the Amendment for what it really is a deliberate effort to discourage the exercise of a constitutionally protected right.
It is important to put this congressional decision in human terms. Nonpregnant women may be reimbursed for all medically necessary treatments. Pregnant women with analogous ailments, however, will be reimbursed only if the treatment involved does not happen to include an abortion. Since the refusal to fund will in some significant number of cases force the patient to forgo medical assistance, the result is to refuse treatment for some genuine maladies not because they need not be treated, cannot be treated, or are too expensive to treat, and not because they relate to a deliberate choice to abort a pregnancy, but merely because treating them would as a practical matter require termination of that pregnancy. Even were one of the view that legislative hostility to abortions could justify a decision to fund obstetrics and child delivery services while refusing to fund nontherapeutic abortions, the present statutory scheme could not be saved. For here, that hostility has
gone a good deal farther. Its consequence is to leave indigent sick women without treatment simply because of the medical fortuity that their illness cannot be treated unless their pregnancy is terminated. Antipathy to abortion, in short, has been permitted not only to ride roughshod over a woman's constitutional right to terminate her pregnancy in the fashion she chooses, but also to distort our Nation's health-care programs. As a means of delivering health services, then, the Hyde Amendment is completely irrational. As a means of preventing abortions, it is concededly rational—brutally so. But this latter goal is constitutionally forbidden.
5
Cf. Singleton v. Wulff, supra, 428 U.S., at 118-119, n. 7, 96 S.Ct., at 2877, n. 7.
"For a doctor who cannot afford to work for nothing, and a woman who cannot afford to pay him, the State's refusal to fund an abortion is as effective an 'interdiction' of it as would ever be necessary."
6
The Court rather summarily rejects the argument that the Hyde Amendment unconstitutionally penalizes the woman's exercise of her right to choose an abortion with the comment that "[a] refusal to fund protected activity, without more, cannot be equated with the imposition of a 'penalty' on that activity." 448 U.S., at 317, n.19, 100 S.Ct., at 2688, n.19. To begin with, the Court overlooks the fact that there is "more" than a simple refusal to fund a protected activity, in this case; instead, there is a program that selectively funds but one of two choices of a constitutionally protected decision, thereby penalizing the election of the disfavored option.
Moreover, it is no answer to assert that no "penalty" is being imposed because the State is only refusing to pay for the specific costs of the protected activity rather than withholding other Medicaid benefits to which the recipient would be entitled or taking some other action more readily characterized as "punitive." Surely the Government could not provide free transportation to the polling booths only for those citizens who vote for Democratic candidates, even though the failure to provide the same benefit to Republicans "represents simply a refusal to subsidize certain protected conduct," ibid., and does not involve the denial of any other governmental benefits. Whether the State withholds only the special costs of a disfavored option or penalizes the individual more broadly for the manner in which she exercises her choice, it cannot interfere with a constitutionally protected decision through the coercive use of governmental largesse.
1
See App. 294-296.
2
For example, the number of serious complications deriving from abortions was estimated to be about 100 times the number of deaths from abortions. See id., at 200.
3
A number of individual Justices have expressed discomfort with the two-tiered approach, and I am pleased to observe that its hold on the law may be waning. See Craig v. Boren, 429 U.S. 190, 210-211, 97 S.Ct. 451, 463-464, 50 L.Ed.2d 397 and n. * (1976) (POWELL, J., concurring); id., at 211-212, 97 S.Ct., at 464 (STEVENS, J., concurring); post, at 352, n. 4 (STEVENS, J., dissenting). Further, the Court has adopted an "intermediate" level of scrutiny for a variety of classifications. See Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977) (illegitimacy); Craig v. Boren, supra (sex discrimination); Foley v. Connelie, 435 U.S. 291, 98 S.Ct. 1067, 55 L.Ed.2d 287 (1978) (alienage). Cf. University of California Regents v. Bakke, 438 U.S. 265, 324, 98 S.Ct. 2733, 2766, 57 L.Ed.2d 750 (1978) (opinion of BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ.) (affirmative action).
4
For this reason the Court has on occasion suggested that classifications discriminating against the poor are subject to special scrutiny under the Fifth and Fourteenth Amendments. See McDonald v. Board of Election, 394 U.S. 802, 807, 89 S.Ct. 1404, 1407, 22 L.Ed.2d 739 (1969); Harper v. Virginia Bd. of Elections, 383 U.S. 663, 668, 86 S.Ct. 1079, 1082, 16 L.Ed.2d 169 (1966).
5
As my Brother STEVENS suggests, see post, at 355, n. 8 (dissenting opinion), the denial of funding for those few medically necessary services that are excluded from the Medicaid program is based on a desire to conserve federal funds, not on a desire to penalize those who suffer the excluded disabilities.
6
In practical effect, my approach is not in this context dissimilar to that taken in Craig v. Boren, supra, 429 U.S., at 197, 97 S.Ct., at 457, where the Court referred to an intermediate standard of review requiring that classifications "must serve important governmental objectives and must be substantially related to achievement of those objectives."
7
Of course, some poor women will attempt to raise the funds necessary to obtain a lawful abortion. A court recently found that those who were fortunate enough to do so had to resort to "not paying rent or utility bills, pawning household goods, diverting food and clothing money, or journeying to another state to obtain lower rates or fraudulently use a relative's insurance policy. . . . [S]ome patients were driven to theft." Women's Health Services, Inc. v. Maher, 482 F.Supp. 725, 731, n. 9 (Conn.1980).
1
"In Roe v. Wade, 410 U.S. 113 [, 93 S.Ct. 705, 35 L.Ed.2d 147], the Court held that a woman's right to decide whether to abort a pregnancy is entitled to constitutional protection. That decision . . . is now part of our law . . .." Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 101, 96 S.Ct. 2831, 2856, 49 L.Ed.2d 788 (STEVENS, J., concurring in part and dissenting in part).
2
Roe v. Wade involved Texas statutes making it a crime to "procure an abortion," except when attempted to save the pregnant woman's life. 410 U.S., at 117-118, 93 S.Ct., at 709-10. Doe v. Bolton involved the somewhat less onerous Georgia statutes making abortion a crime in most circumstances, the exceptions being abortions to save the pregnant woman from life or permanent health endangerment, cases in which there was a very likely irremediable birth defect in the child, and cases in which the pregnancy was the result of rape. Those exceptions were subject to burdensome prior medical approvals, which were held to be unconstitutional. Subsequent cases have invalidated other burdens on the pregnant woman's free choice to abort. See Planned Parenthood of Central Missouri v. Danforth, supra (consent required of husband or, for an unmarried woman under 18, of a parent); Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (consent required of either parent or superior court judge for an unmarried woman under 18).
3
The Court rests heavily on the premise—recognized in both Roe and Maher —that the State's legitimate interest in preserving potential life provides a sufficient justification for funding medical services that are necessarily associated with normal childbirth without also funding abortions that are not medically necessary. The Maher opinion repeatedly referred to the policy of favoring "normal childbirth." See 432 U.S., at 477, 478, 479, 97 S.Ct., at 2384-85. But this case involves a refusal to fund abortions which are medically necessary to avoid abnormal childbirth.
4
These cases thus illustrate the flaw in the method of equal protection analysis by which one chooses among alternative "levels of scrutiny" and then determines whether the extent to which a particular legislative measure furthers a given governmental objective transcends the predetermined threshold. See Craig v. Boren, 429 U.S. 190, 211-212, 97 S.Ct. 451, 464, 50 L.Ed.2d 397 (STEVENS, J., concurring). That method may simply bypass the real issue. The relevant question in these cases is whether the Court must attach greater weight to the individual's interest in being included in the class than to the governmental interest in keeping the individual out. Since Roe v. Wade, squarely held that the individual interest in the freedom to elect an abortion and the state interest in protecting maternal health both outweigh the State's interest in protecting potential life prior to viability, the Court's "equal protection analysis" is doubly erroneous.
In responding to my analysis of this case, Mr. Justice WHITE has described the constitutional right recognized in Roe v. Wade as "the right to choose to undergo an abortion without coercive interference by the government" or a right "only to be free from unreasonable official interference with private choice." 448 U.S., at 327, 328, 100 S.Ct., at 2694. No such language is found in the Roe opinion itself. Rather, that case squarely held that state interference is unreasonable if it attaches a greater importance to the interest in potential life than to the interest in protecting the mother's health. One could with equal justification describe the right protected by the First Amendment as the right to make speeches without coercive interference by the government and then sustain a government subsidy for all medically needy persons except those who publicly advocate a change of administration.
5
The record is replete with examples of serious physical harm. See, e. g., Judge Dooling's opinion in McRae v. Califano, 491 F.Supp. 630, 670:
"Women, particularly young women, suffering from diabetes are likely to experience high risks of health damage to themselves and their fetuses; the woman may become blind through the worsening during pregnancy of a diabetic retinopathy; in the case, particularly, of the juvenile diabetic, Dr. Eliot testified there is evidence that a series of pregnancies advances the diabetes faster; given an aggravated diabetic condition, other risks increased through pregnancy are kidney problems, and vascular problems of the extremities."
See also the affidavit of Jane Doe in No. 79-1268:
"3. I am 25 years old. I am married with four living children. Following the birth of my third child in November of 1976, I developed a serious case of phlebitis from which I have not completely recovered. Carrying another pregnancy to term would greatly aggravate this condition and increase the risk of blood clots to the lung.
"4. On July 29, 1977, I went to the Fertility Control Clinic at St. Paul-Ramsey Hospital, St. Paul, Minnesota to request an abortion. They informed me that a new law prohibits any federal reimbursement for abortions except those necessary to save the life of the mother and that they cannot afford to do this operation free for me.
"5. I cannot afford to pay for an abortion myself, and without Medicaid reimbursement, I cannot obtain a safe, legal abortion. According to the doctor, Dr. Jane E. Hodgson, without an abortion I might suffer serious and permanent health problems." App. in No. 79-1268, pp. 109-110.
And see the case of the Jane Doe in Nos. 79-4, 79-5, and 79-491, as recounted in Dr. Zbaraz' affidavit:
"Jane Doe is 38 years old and has had nine previous pregnancies. She has a history of varicose veins and thrombophlebitis (blood clots) of the left leg. The varicose veins can be, and in her case were, caused by multiple pregnancies: the weight of the uterus on her pelvic veins increased the blood pressure in the veins of her lower extremities; those veins dilated and her circulation was impaired, resulting in thrombophlebitis of her left leg. The varicosities of her lower extremities became so severe that they required partial surgical removal in 1973.
"2. Given this medical history, Jane Doe's varicose veins are almost certain to recur if she continues her pregnancy. Such a recurrence would require a second operative procedure for their removal. Given her medical history, there is also about a 30% risk that her thrombophlebitis will recur during the pregnancy in the form of 'deep vein' thrombophlebitis (the surface veins of her left leg having previously been partially removed). This condition would impair circulation and might require prolonged hospitalization with bed rest.
"3. Considering Jane Doe's medical history of varicose veins and thrombophlebitis, particularly against the background of her age and multiple pregnancies, it is my view that an abortion is medically necessary for her, though not necessary to preserve her life." App. in Nos. 79-4, 79-5, and 79-491, p. 92.
6
"QUESTION: Mr. Solicitor General, would you make the same rational basis argument if the Hyde amendment did not contain the exception for endangering the life of the mother, if it was her death rather than adverse impact on her health that was involved?
"Mr. McCREE: I think I would." Tr. of Oral Arg. in 79-1268, p. 10.
7
In this respect, these cases are entirely different from Maher, in which the Court repeatedly noted that the refusal to subsidize nontherapeutic abortions would merely result in normal childbirth. Surely the government may properly presume that no harm will ensue from normal childbirth.
8
This rationale may satisfactorily explain the exclusions from the Medicaid program noted by the Court. 448 U.S., at 325, n. 28, 100 S.Ct., at 2692, n. 28. In all events, it is safe to assume that those exclusions would conserve the assets of the pool.
9
In the Zbaraz case, Judge Grady found that the average cost to the State of Illinois of an abortion was less than $150 as compared with the cost of a childbirth which exceeded $1,350. App. to Juris. Statement in No. 79-491, p. 14a, n. 8.
Indeed, based on an estimated cost of providing support to children of indigent parents together with their estimate of the number of medically necessary abortions that would be funded but for the Hyde Amendment, appellees in the Zbaraz case contend that in the State of Illinois alone the effect of the Hyde Amendment is to impose a cost of about $20,000,000 per year on the public fisc. Brief for Appellees in Nos. 79-4, 79-5, and 79-491, p. 60, n.
See also Judge Dooling's conclusion:
"While the debate [on the Hyde Amendment] in both years was on a rider to the departmental appropriations bill, it was quickly established that the restriction on abortion funding was not an economy measure; it was recognized that if an abortion was not performed for a medicaid eligible woman, the medicaid and other costs of childbearing and nurture would greatly exceed the cost of abortion. Opponents of funding restriction were equally at pains, however, to make clear that they did not favor funding abortion as a means of reducing the Government's social welfare costs." 491 F.Supp., at 644.
10
My conclusion that the Hyde Amendments violate the Federal Government's duty of impartiality applies equally to the Illinois statute at issue in Zbaraz.
| 45
|
448 U.S. 371
100 S.Ct. 2716
65 L.Ed.2d 844
UNITED STATES, Petitioner,v.SIOUX NATION OF INDIANS et al.
No. 79-639.
Argued March 24, 1980.
Decided June 30, 1980.
Syllabus
Under the Fort Laramie Treaty of 1868, the United States pledged that the Great Sioux Reservation, including the Black Hills, would be "set apart for the absolute and undisturbed use and occupation" of the Sioux Nation (Sioux), and that no treaty for the cession of any part of the reservation would be valid as against the Sioux unless executed and signed by at least three-fourths of the adult male Sioux population. The treaty also reserved the Sioux' right to hunt in certain unceded territories. Subsequently, in 1876, an "agreement" presented to the Sioux by a special Commission but signed by only 10% of the adult male Sioux population, provided that the Sioux would relinquish their rights to the Black Hills and to hunt in the unceded territories, in exchange for subsistence rations for as long as they would be needed. In 1877, Congress passed an Act (1877 Act) implementing this "agreement" and thus, in effect, abrogated the Fort Laramie Treaty. Throughout the ensuing years, the Sioux regarded the 1877 Act as a breach of that treaty, but Congress did not enact any mechanism by which they could litigate their claims against the United States until 1920, when a special jurisdictional Act was passed. Pursuant to this Act, the Sioux brought suit in the Court of Claims, alleging that the Government had taken the Black Hills without just compensation, in violation of the Fifth Amendment. In 1942, this claim was dismissed by the Court of Claims, which held that it was not authorized by the 1920 Act to question whether the compensation afforded the Sioux in the 1877 Act was an adequate price for the Black Hills and that the Sioux' claim was a moral one not protected by the Just Compensation Clause. Thereafter, upon enactment of the Indian Claims Commission Act in 1946, the Sioux resubmitted their claim to the Indian Claims Commission, which held that the 1877 Act effected a taking for which the Sioux were entitled to just compensation and that the 1942 Court of Claims decision did not bar the taking claim under res judicata. On appeal, the Court of Claims, affirming the Commission's holding that a want of fair and honorable dealings on the Government's part was evidenced, ultimately held that the Sioux were entitled to an award of at least $17.5 million, without interest, as damages under the Indian Claims Commission Act, for the lands surrendered and for gold taken by trespassing prospectors prior to passage of the 1877 Act. But the court further held that the merits of the Sioux' taking claim had been reached in its 1942 decision and that therefore such claim was barred by res judicata. The court noted that only if the acquisition of the Black Hills amounted to an unconstitutional taking would the Sioux be entitled to interest. Thereafter, in 1978, Congress passed an Act (1978 Act) providing for de novo review by the Court of Claims of the merits of the Indian Claims Commission's holding that the 1877 Act effected a taking of the Black Hills, without regard to res judicata, and authorizing the Court of Claims to take new evidence in the case. Pursuant to this Act, the Court of Claims affirmed the Commission's holding. In so affirming, the court, in order to decide whether the 1877 Act had effected a taking or whether it had been a noncompensable act of congressional guardianship over tribal property, applied the test of whether Congress had made a good-faith effort to give the Sioux the full value of their land. Under this test, the court characterized the 1877 Act as a taking in exercise of Congress' power of eminent domain over Indian property. Accordingly, the court held that the Sioux were entitled to an award of interest on the principal sum of $17.1 million (the fair market value of the Black Hills as of 1877), dating from 1877.
Held :
1. Congress' enactment of the 1978 Act, as constituting a mere waiver of the res judicata effect of a prior judicial decision rejecting the validity of a legal claim against the United States, did not violate the doctrine of the separation of powers either on the ground that Congress impermissibly disturbed the finality of a judicial decree by rendering the Court of Claims' earlier judgments in the case mere advisory opinions, or on the ground that Congress overstepped its bounds by granting the Court of Claims jurisdiction to decide the merits of the Black Hills claim, while prescribing a rule for decision that left that court no adjudicatory function to perform. Cherokee Nation v. United States, 270 U.S. 476, 46 S.Ct. 428, 70 L.Ed. 694. Congress, under its broad constitutional power to define and "to pay the Debts . . . of the United States," may recognize its obligation to pay a moral debt not only by direct appropriation, but also by waiving an otherwise valid defense to a legal claim against the United States. When the Sioux returned to the Court of Claims following passage of the 1978 Act, they were in pursuit of judicial enforcement of a new legal right. Congress in no way attempted to prescribe the outcome of the Court of Claims' new review of the merits. United States v. Klein, 13 Wall. 128, 20 L.Ed. 519, distinguished. Pp. 390-407.
2. The Court of Claims' legal analysis and factual findings fully support its conclusion that the 1877 Act did not effect a "mere change in the form of investment of Indian tribal property," but, rather, effected a taking of tribal property which had been set aside by the Fort Laramie Treaty for the Sioux' exclusive occupation, which taking implied an obligation on the Government's part to make just compensation to the Sioux. That obligation, including an award of interest, must now be paid. The principles that it "must [be] presume[d] that Congress acted in perfect good faith in the dealings with the Indians of which complaint is made, and that [it] exercised its best judgment in the premises," Lone Wolf v. Hitchcock, 187 U.S. 553, 568, 23 S.Ct. 216, 222, 47 L.Ed. 299, are inapplicable in this case. The question whether a particular congressional measure was appropriate for protecting and advancing a tribe's interests, and therefore not subject to the Just Compensation Clause, is factual in nature, and the answer must be based on a consideration of all the evidence presented. While a reviewing court is not to second-guess a legislative judgment that a particular measure would serve the tribe's best interests, the court is required, in considering whether the measure was taken in pursuance of Congress' power to manage and control tribal lands for the Indians' welfare, to engage in a thorough and impartial examination of the historical record. A presumption of congressional good faith cannot serve to advance such an inquiry. Pp. 407-423.
220 Ct.Cl. 442, 601 F.2d 1157, affirmed.
Louis F. Claiborne, Washington, D. C., for petitioner.
Arthur Lazarus, Jr., Washington, D. C., for respondents.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
This case concerns the Black Hills of South Dakota, the Great Sioux Reservation, and a colorful, and in many respects tragic, chapter in the history of the Nation's West. Although the litigation comes down to a claim of interest since 1877 on an award of over $17 million, it is necessary, in order to understand the controversy, to review at some length the chronology of the case and its factual setting.
2
* For over a century now the Sioux Nation has claimed that the United States unlawfully abrogated the Fort Laramie Treaty of April 29, 1868, 15 Stat. 635, in Art. II of which the United States pledged that the Great Sioux Reservation, including the Black Hills, would be "set apart for the absolute and undisturbed use and occupation of the Indians herein named." Id., at 636. The Fort Laramie Treaty was concluded at the culmination of the Powder River War of 1866-1867, a series of military engagements in which the Sioux tribes, led by their great chief, Red Cloud, fought to protect the integrity of earlier-recognized treaty lands from the incursion of white settlers.1
3
The Fort Laramie Treaty included several agreements central to the issues presented in this case. First, it established the Great Sioux Reservation, a tract of land bounded on the east by the Missouri River, on the south by the northern border of the State of Nebraska, on the north by the forty-sixth parallel of north latitude, and on the west by the one hundred and fourth meridian of west longitude,2 in addition to certain reservations already existing east of the Missouri. The United States "solemnly agree[d]" that no unauthorized persons "shall ever be permitted to pass over, settle upon, or reside in [this] territory." Ibid.
4
Second, the United States permitted members of the Sioux tribes to select lands within the reservation for cultivation. Id., at 637. In order to assist the Sioux in becoming civilized farmers, the Government promised to provide them with the necessary services and materials, and with subsistence rations for four years. Id., at 639.3
5
Third, in exchange for the benefits conferred by the treaty, the Sioux agreed to relinquish their rights under the Treaty of September 17, 1851, to occupy territories outside the reservation, while reserving their "right to hunt on any lands north of North Platte, and on the Republican Fork of the Smoky Hill river, so long as the buffalo may range thereon in such numbers as to justify the chase." Ibid. The Indians also expressly agreed to withdraw all opposition to the building of railroads that did not pass over their reservation lands, not to engage in attacks on settlers, and to withdraw their opposition to the military posts and roads that had been established south of the North Platte River. Ibid.
Fourth, Art. XII of the treaty provided:
6
"No treaty for the cession of any portion or part of the reservation herein described which may be held in common shall be of any validity or force as against the said Indians, unless executed and signed by at least three fourths of all the adult male Indians, occupying or interested in the same." Ibid.4
7
The years following the treaty brought relative peace to the Dakotas, an era of tranquility that was disturbed, however, by renewed speculation that the Black Hills, which were included in the Great Sioux Reservation, contained vast quantities of gold and silver.5 In 1874 the Army planned and undertook an exploratory expedition into the Hills, both for the purpose of establishing a military outpost from which to control those Sioux who had not accepted the terms of the Fort Laramie Treaty, and for the purpose of investigating "the country about which dreamy stories have been told." D. Jackson, Custer's Gold 14 (1966) (quoting the 1874 annual report of Lieutenant General Philip H. Sheridan, as Commander of the Military Division of the Missouri, to the Secretary of War). Lieutenant Colonel George Armstrong Custer led the expedition of close to 1,000 soldiers and teamsters, and a substantial number of military and civilian aides. Custer's journey began at Fort Abraham Lincoln on the Missouri River on July 2, 1874. By the end of that month they had reached the Black Hills, and by mid-August had confirmed the presence of gold fields in that region. The discovery of gold was widely reported in newspapers across the country.6 Custer's florid descriptions of the mineral and timber resources of the Black Hills, and the land's suitability for grazing and cultivation, also received wide circulation, and had the effect of creating an intense popular demand for the "opening" of the Hills for settlement.7 The only obstacle to "progress" was the Fort Laramie Treaty that reserved occupancy of the Hills to the Sioux.
8
Having promised the Sioux that the Black Hills were reserved to them, the United States Army was placed in the position of having to threaten military force, and occasionally to use it, to prevent prospectors and settlers from trespassing on lands reserved to the Indians. For example, in September 1874, General Sheridan sent instructions to Brigadier General Alfred H. Terry, Commander of the Department of Dakota, at Saint Paul, directing him to use force to prevent companies of prospectors from trespassing on the Sioux Reservation. At the same time, Sheridan let it be known that he would "give a cordial support to the settlement of the Black Hills," should Congress decide to "open up the country for settlement, by extinguishing the treaty rights of the Indians." App. 62-63. Sheridan's instructions were published in local newspapers. See id., at 63.8
9
Eventually, however, the Executive Branch of the Government decided to abandon the Nation's treaty obligation to preserve the integrity of the Sioux territory. In a letter dated November 9, 1875, to Terry, Sheridan reported that he had met with President Grant, the Secretary of the Interior, and the Secretary of War, and that the President had decided that the military should make no further resistance to the occupation of the Black Hills by miners, "it being his belief that such resistance only increased their desire and complicated the troubles." Id., at 59. These orders were to be enforced "quietly," ibid., and the President's decision was to remain "confidential." Id., at 59-60 (letter from Sheridan to Sherman).
10
With the Army's withdrawal from its role as enforcer of the Fort Laramie Treaty, the influx of settlers into the Black Hills increased. The Government concluded that the only practical course was to secure to the citizens of the United States the right to mine the Black Hills for gold. Toward that end, the Secretary of the Interior, in the spring of 1875, appointed a commission to negotiate with the Sioux. The commission was headed by William B. Allison. The tribal leaders of the Sioux were aware of the mineral value of the Black Hills and refused to sell the land for a price less than $70 million. The commission offered the Indians an annual rental of $400,000, or payment of $6 million for absolute relinquishment of the Black Hills. The negotiations broke down.9
11
In the winter of 1875-1876, many of the Sioux were hunting in the unceded territory north of the North Platte River, reserved to them for that purpose in the Fort Laramie Teaty. On December 6, 1875, for reasons that are not entirely clear, the Commissioner of Indian Affairs sent instructions to the Indian agents on the reservation to notify those hunters that if they did not return to the reservation agencies by January 31, 1876, they would be treated as "hostiles." Given the severity of the winter, compliance with these instructions was impossible. On February 1, the Secretary of the Interior nonetheless relinquished jurisdiction over all hostile Sioux, including those Indians exercising their treaty-protected hunting rights, to the War Department. The Army's campaign against the "hostiles" led to Sitting Bull's notable victory over Custer's forces at the battle of the Little Big Horn on June 25. That victory, of course, was short-lived, and those Indians who surrendered to the Army were returned to the reservation, and deprived of their weapons and horses, leaving them completely dependent for survival on rations provided them by the Government.10
12
In the meantime, Congress was becoming increasingly dissatisfied with the failure of the Sioux living on the reservation to become self-sufficient.11 The Sioux' entitlement to subsistence rations under the terms of the Fort Laramie Treaty had expired in 1872. Nonetheless, in each of the two following years, over $1 million was appropriated for feeding the Sioux. In August 1876, Congress enacted an appropriations bill providing that "hereafter there shall be no appropriation made for the subsistence" of the Sioux, unless they first relinquished their rights to the hunting grounds outside the reservation, ceded the Black Hills to the United States, and reached some accommodation with the Government that would be calculated to enable them to become self-supporting. Act of Aug. 15, 1876, 19 Stat. 176, 192.12 Toward this end, Congress requested the President to appoint another commission to negotiate with the Sioux for the cession of the Black Hills.
13
This commission, headed by George Manypenny, arrived in the Sioux country in early September and commenced meetings with the head men of the various tribes. The members of the commission impressed upon the Indians that the United States no longer had any obligation to provide them with subsistence rations. The commissioners brought with them the text of a treaty that had been prepared in advance. The principal provisions of this treaty were that the Sioux would relinquish their rights to the Black Hills and other lands west of the one hundred and third meridian, and their rights to hunt in the unceded territories to the north, in exchange for subsistence rations for as long as they would be needed to ensure the Sioux' survival. In setting out to obtain the tribes' agreement to this treaty, the commission ignored the stipulation of the Fort Laramie Treaty that any cession of the lands contained within the Great Sioux Reservation would have to be joined in by three-fourths of the adult males. Instead, the treaty was presented just to Sioux chiefs and their leading men. It was signed by only 10% of the adult male Sioux population.13
14
Congress resolved the impasse by enacting the 1876 "agreement" into law as the Act of Feb. 28, 1877 (1877 Act), 19 Stat. 254. The Act had the effect of abrogating the earlier Fort Laramie Treaty, and of implementing the terms of the Manypenny Commission's "agreement" with the Sioux leaders.14
15
The passage of the 1877 Act legitimized the settlers' invasion of the Black Hills, but throughout the years it has been regarded by the Sioux as a breach of this Nation's solemn obligation to reserve the Hills in perpetuity for occupation by the Indians. One historian of the Sioux Nation commented on Indian reaction to the Act in the following words:
16
"The Sioux thus affected have not gotten over talking about that treaty yet, and during the last few years they have maintained an organization called the Black Hills Treaty Association, which holds meetings each year at the various agencies for the purpose of studying the treaty with the intention of presenting a claim against the government for additional reimbursements for the territory ceded under it. Some think that Uncle Sam owes them about $9,000,000 on the deal, but it will probably be a hard matter to prove it." F. Fiske, The Taming of the Sioux 132 (1917).
17
Fiske's words were to prove prophetic.
II
18
Prior to 1946, Congress had not enacted any mechanism of general applicability by which Indian tribes could litigate treaty claims against the United States.15 The Sioux, however, after years of lobbying, succeeded in obtaining from Congress the passage of a special jurisdictional Act which provided them a forum for adjudication of all claims against the United States "under any treaties, agreements, or laws of Congress, or for the misappropriation of any of the funds or lands of said tribe or band or bands thereof." Act of June 3, 1920, ch. 222, 41 Stat. 738. Pursuant to this statute, the Sioux, in 1923, filed a petition with the Court of Claims alleging that the Government had taken the Black Hills without just compensation, in violation of the Fifth Amendment. This claim was dismissed by that court in 1942. In a lengthy and unanimous opinion, the court concluded that it was not authorized by the Act of June 3, 1920, to question whether the compensation afforded the Sioux by Congress in 1877 was an adequate price for the Black Hills, and that the Sioux' claim in this regard was a moral claim not protected by the Just Compensation Clause. Sioux Tribe v. United States, 97 Ct.Cl. 613 (1942), cert. denied, 318 U.S. 789, 63 S.Ct. 992, 87 L.Ed. 1155 (1943).
19
In 1946, Congress passed the Indian Claims Commission Act, 60 Stat. 1049, 25 U.S.C. § 70 et seq., creating a new forum to hear and determine all tribal grievances that had arisen previously. In 1950, counsel for the Sioux resubmitted the Black Hills claim to the Indian Claims Commission. The Commission initially ruled that the Sioux had failed to prove their case. Sioux Tribe v. United States, 2 Ind.Cl.Comm'n 646 (1954), aff'd, 146 F.Supp. 229 (Ct.Cl.1956). The Sioux filed a motion with the Court of Claims to vacate its judgment of affirmance alleging that the Commission's decision had been based on a record that was inadequate, due to the failings of the Sioux' former counsel. This motion was granted and the Court of Claims directed the Commission to consider whether the case should be reopened for the presentation of additional evidence. On November 19, 1958, the Commission entered an order reopening the case and announcing that it would reconsider its prior judgment on the merits of the Sioux claim. App. 265-266; see Sioux Tribe v. United States, 182 Ct.Cl. 912 (1968) (summary of proceedings).
20
Following the Sioux' filing of an amended petition, claiming again that the 1877 Act constituted a taking of the Black Hills for which just compensation had not been paid, there ensued a lengthy period of procedural sparring between the Indians and the Government. Finally, in October 1968, the Commission set down three questions for briefing and determination: (1) What land and rights did the United States acquire from the Sioux by the 1877 Act? (2) What, if any, consideration was given for that land and those rights? And (3) if there was no consideration for the Government's acquisition of the land and rights under the 1877 Act, was there any payment for such acquisition? App. 266.
21
Six years later, by a 4-to-1 vote, the Commission reached a preliminary decision on these questions. Sioux Nation v. United States, 33 Ind.Cl.Comm'n 151 (1974). The Commission first held that the 1942 Court of Claims decision did not bar the Sioux' Fifth Amendment taking claim through application of the doctrine of res judicata. The Commission concluded that the Court of Claims had dismissed the earlier suit for lack of jurisdiction, and that it had not determined the merits of the Black Hills claim. The Commission then went on to find that Congress, in 1877, had made no effort to give the Sioux full value for the ceded reservation lands. The only new obligation assumed by the Government in exchange for the Black Hills was its promise to provide the Sioux with subsistence rations, an obligation that was subject to several limiting conditions. See n. 14, supra. Under these circumstances, the Commission concluded that the consideration given the Indians in the 1877 Act had no relationship to the value of the property acquired. Moreover, there was no indication in the record that Congress ever attempted to relate the value of the rations to the value of the Black Hills. Applying the principles announced by the Court of Claims in Three Tribes of Fort Berthold Reservation v. United States, 182 Ct.Cl. 543, 390 F.2d 686 (1968), the Commission concluded that Congress had acted pursuant to its power of eminent domain when it passed the 1877 Act, rather than as a trustee for the Sioux, and that the Government must pay the Indians just compensation for the taking of the Black Hills.16
22
The Government filed an appeal with the Court of Claims from the Commission's interlocutory order, arguing alternatively that the Sioux' Fifth Amendment claim should have been barred by principles of res judicata and collateral estoppel, or that the 1877 Act did not effect a taking of the Black Hills for which just compensation was due. Without reaching the merits, the Court of Claims held that the Black Hills claim was barred by the res judicata effect of its 1942 decision. United States v. Sioux Nation, 207 Ct.Cl. 234, 518 F.2d 1298 (1975). The court's majority recognized that the practical impact of the question presented was limited to a determination of whether or not an award of interest would be available to the Indians. This followed from the Government's failure to appeal the Commission's holding that it had acquired the Black Hills through a course of unfair and dishonorable dealing for which the Sioux were entitled to damages, without interest, under § 2 of the Indian Claims Commission Act, 60 Stat. 1050, 25 U.S.C. § 70a(5). Only if the acquisition of the Black Hills amounted to an unconstitutional taking would the Sioux be entitled to interest. 207 Ct.Cl., at 237, 518 F.2d, at 1299.17
23
The court affirmed the Commission's holding that a want of fair and honorable dealings in this case was evidenced, and held that the Sioux thus would be entitled to an award of at least $17.5 million for the lands surrendered and for the gold taken by trespassing prospectors prior to passage of the 1877 Act. See n. 16, supra. The court also remarked upon President Grant's duplicity in breaching the Government's treaty obligation to keep trespassers out of the Black Hills, and the pattern of duress practiced by the Government on the starving Sioux to get them to agree to the sale of the Black Hills. The court concluded: "A more ripe and rank case of dishonorable dealings will never, in all probability, be found in our history, which is not, taken as a whole, the disgrace it now pleases some persons to believe." 207 Ct.Cl., at 241, 518 F.2d, at 1302.
24
Nonetheless, the court held that the merits of the Sioux' taking claim had been reached in 1942, and whether resolved "rightly or wrongly", id., at 249, 518 F.2d, at 1306, the claim was now barred by res judicata. The court observed that interest could not be awarded the Sioux on judgments obtained pursuant to the Indian Claims Commission Act, and that while Congress could correct this situation, the court could not. Ibid.18 The Sioux petitioned this Court for a writ of certiorari, but that petition was denied. 423 U.S. 1016, 96 S.Ct. 449, 46 L.Ed.2d 387 (1975).
25
The case returned to the Indian Claims Commission, where the value of the rights-of-way obtained by the Government through the 1877 Act was determined to be $3,484, and where it was decided that the Government had made no payments to the Sioux that could be considered as offsets. App. 316. The Government then moved the Commission to enter a final award in favor of the Sioux in the amount of $17.5 million, see n. 16, supra, but the Commission deferred entry of final judgment in view of legislation then pending in Congress that dealt with the case.
26
On March 13, 1978, Congress passed a statute providing for Court of Claims review of the merits of the Indian Claims Commission's judgment that the 1877 Act effected a taking of the Black Hills, without regard to the defenses of res judicata and collateral estoppel. The statute authorized the Court of Claims to take new evidence in the case and to conduct its review of the merits de novo. Pub.L. 95-243, 92 Stat. 153, amending § 20(b) of the Indian Claims Commission Act. See 25 U.S.C. § 70s(b) (1976 ed., Supp. II).
27
Acting pursuant to that statute, a majority of the Court of Claims, sitting en banc, in an opinion by Chief Judge Friedman, affirmed the Commission's holding that the 1877 Act effected a taking of the Black Hills and of rights-of-way across the reservation. 220 Ct.Cl. 442, 601 F.2d 1157 (1979).19 In doing so, the court applied the test it had earlier articulated in Fort Berthold, 182 Ct.Cl., at 553, 390 F.2d, at 691, asking whether Congress had made "a good faith effort to give the Indians the full value of the land," 220 Ct.Cl., at 452, 601 F.2d, at 1162, in order to decide whether the 1877 Act had effected a taking or whether it had been a noncompensable act of congressional guardianship over tribal property. The court characterized the Act as a taking, an exercise of Congress' power of eminent domain over Indian property. It distinguished broad statements seemingly leading to a contrary result in Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299 (1903), as inapplicable to a case involving a claim for just compensation. 220 Ct.Cl., at 465, 601 F.2d, at 1170.20
28
The court thus held that the Sioux were entitled to an award of interest, at the annual rate of 5%, on the principal sum of $17.1 million, dating from 1877.21
29
We granted the Government's petition for a writ of certiorari, 444 U.S. 989, 100 S.Ct. 519, 62 L.Ed.2d 418 (1979), in order to review the important constitutional questions presented by this case, questions not only of long-standing concern to the Sioux, but also of significant economic import to the Government.
III
30
Having twice denied petitions for certiorari in this litigation, see 318 U.S. 789, 63 S.Ct. 992, 87 L.Ed. 1155 (1943); 423 U.S. 1016, 96 S.Ct. 449, 46 L.Ed.2d 387 (1975), we are confronted with it for a third time as a result of the amendment, above noted, to the Indian Claims Commission Act of 1946, 25 U.S.C. § 70s(b)(1976 ed., Supp. II), which directed the Court of Claims to review the merits of the Black Hills takings claim without regard to the defense of res judicata. The amendment, approved March 13, 1978, provides:
31
"Notwithstanding any other provision of law, upon application by the claimants within thirty days from the date of the enactment of this sentence, the Court of Claims shall review on the merits, without regard to the defense of res judicata or collateral estoppel, that portion of the determination of the Indian Claims Commission entered February 15, 1974, adjudging that the Act of February 28, 1877 (19 Stat. 254), effected a taking of the Black Hills portion of the Great Sioux Reservation in violation of the fifth amendment, and shall enter judgment accordingly. In conducting such review, the Court shall receive and consider any additional evidence, including oral testimony, that either party may wish to provide on the issue of a fifth amendment taking and shall determine that issue de novo." 92 Stat. 153.
32
Before turning to the merits of the Court of Claims' conclusion that the 1877 Act effected a taking of the Black Hills, we must consider the question whether Congress, in enacting this 1978 amendment, "has inadvertently passed the limit which separates the legislative from the judicial power." United States v. Klein, 13 Wall. 128, 147, 20 L.Ed. 519 (1872).
A.
33
There are two objections that might be raised to the constitutionality of this amendment, each framed in terms of the doctrine of separation of powers. The first would be that Congress impermissibly has disturbed the finality of a judicial decree by rendering the Court of Claims' earlier judgments in this case mere advisory opinions. See Hayburn's Case, 2 Dall. 408, 409, 410-414, 1 L.Ed. 436 (1792) (setting forth the views of three Circuit Courts, including among their complements Mr. Chief Justice Jay, and Justices Cushing, Wilson, Blair, and Iredell, that the Act of Mar. 23, 1792, 1 Stat. 243, was unconstitutional because it subjected the decisions of the Circuit Courts concerning eligibility for pension benefits to review by the Secretary of War and the Congress). The objection would take the form that Congress, in directing the Court of Claims to reach the merits of the Black Hills claim, effectively reviewed and reversed that court's 1975 judgment that the claim was barred by res judicata, or its 1942 judgment that the claim was not cognizable under the Fifth Amendment. Such legislative review of a judicial decision would interfere with the independent functions of the Judiciary.
34
The second objection would be that Congress overstepped its bounds by granting the Court of Claims jurisdiction to decide the merits of the Black Hills claim, while prescribing a rule for decision that left the court no adjudicatory function to perform. See United States v. Klein, 13 Wall., at 146; Yakus v. United States, 321 U.S. 414, 467-468, 64 S.Ct. 660, 687-686, 88 L.Ed. 834 (1944) (Rutledge, J., dissenting). Of course, in the context of this amendment, that objection would have to be framed in terms of Congress' removal of a single issue from the Court of Claims' purview, the question whether res judicata or collateral estoppel barred the Sioux' claim. For in passing the amendment, Congress left no doubt that the Court of Claims was free to decide the merits of the takings claim in accordance with the evidence it found and applicable rules of law. See n. 23, infra.
35
These objections to the constitutionality of the amendment were not raised by the Government before the Court of Claims. At oral argument in this Court, counsel for the United States, upon explicit questioning, advanced the position that the amendment was not beyond the limits of legislative power.22 The question whether the amendment impermissibly interfered with judicial power was debated, however, in the House of Representatives, and that body concluded that the Government's waiver of a "technical legal defense" in order to permit the Court of Claims to reconsider the merits of the Black Hills claim was within Congress' power to enact.23
36
The question debated on the floor of the House is one the answer to which is not immediately apparent. It requires us to examine the proper role of Congress and the courts in recognizing and determining claims against the United States, in light of more general principles concerning the legislative and judicial roles in our tripartite system of government. Our examination of the amendment's effect, and of this Court's precedents, leads us to conclude that neither of the two separation-of-powers objections described above is presented by this legislation.
B
37
Our starting point is Cherokee Nation v. United States, 270 U.S. 476, 46 S.Ct. 428, 70 L.Ed. 694 (1926). That decision concerned the Special Act of Congress, dated March 3, 1919, 40 Stat. 1316, conferring jurisdiction upon the Court of Claims "to hear, consider, and determine the claim of the Cherokee Nation against the United States for interest, in addition to all other interest heretofore allowed and paid, alleged to be owing from the United States to the Cherokee Nation on the funds arising from the judgment of the Court of Claims of May eighteenth, nineteen hundred and five." In the judgment referred to by the Act, the Court of Claims had allowed 5% simple interest on four Cherokee claims, to accrue from the date of liability. Cherokee Nation v. United States, 40 Ct.Cl. 252 (1905). This Court had affirmed that judgment, including the interest award. United States v. Cherokee Nation, 202 U.S. 101, 123-126, 26 S.Ct. 588, 598-599, 50 L.Ed. 949 (1906). Thereafter, and following payment of the judgment, the Cherokee presented to Congress a new claim that they were entitled to compound interest on the lump sum of principal and interest that had accrued up to 1895. It was this claim that prompted Congress, in 1919, to reconfer jurisdiction on the Court of Claims to consider the Cherokee's entitlement to that additional interest.
38
Ultimately, this Court held that the Cherokee were not entitled to the payment of compound interest on the original judgment awarded by the Court of Claims. 270 U.S., at 487-496, 46 S.Ct., at 432-435. Before turning to the merits of the interest claim, however, the Court considered "the effect of the act of 1919 in referring the issue in this case to the Court of Claims." Id., at 485-486, 46 S.Ct., at 432. The Court's conclusion concerning that question bears close examination:
39
"The judgment of this court in the suit by the Cherokee Nation against the United States, in April, 1906 (202 U.S. 101 [, 26 S.Ct. 588, 50 L.Ed. 949]), already referred to, awarded a large amount of interest. The question of interest was considered and decided, and it is quite clear that but for the special act of 1919, above quoted, the question here mooted would have been foreclosed as res judicata. In passing the act, Congress must have been well advised of this, and the only possible construction therefore to be put upon it is that Congress has therein expressed its desire, so far as the question of interest is concerned, to waive the effect of the judgment as res judicata, and to direct the Court of Claims to re-examine it and determine whether the interest therein allowed was all that should have been allowed, or whether it should be found to be as now claimed by the Cherokee Nation. The Solicitor General, representing the government, properly concedes this to be the correct view. The power of Congress to waive such an adjudication of course is clear." Id., at 486, 46 S.Ct., at 432 (last emphasis supplied).
40
The holding in Cherokee Nation that Congress has the power to waive the res judicata effect of a prior judgment entered in the Government's favor on a claim against the United States is dispositive of the question considered here. Moreover, that holding is consistent with a substantial body of precedent affirming the broad constitutional power of Congress to define and "to pay the Debts . . . of the United States." U.S.Const., Art. I, § 8, cl. 1. That precedent speaks directly to the separation-of-powers objections discussed above.
41
The scope of Congress' power to pay the Nation's debts seems first to have been construed by this Court in United States v. Realty Co., 163 U.S. 427, 16 S.Ct. 1120, 41 L.Ed. 215 (1896). There, the Court stated:
42
"The term 'debts' includes those debts or claims which rest upon a merely equitable or honorary obligation, and which would not be recoverable in a court of law if existing against an individual. The nation, speaking broadly, owes a 'debt' to an individual when his claim grows out of general principles of right and justice; when, in other words, it is based upon considerations of a moral or merely honorary nature, such as are binding on the conscience or the honor of an individual, although the debt could obtain no recognition in a court of law. The power of Congress extends at least as far as the recognition and payment of claims against the government which are thus founded." Id., at 440, 16 S.Ct., at 1125-26.
43
Other decisions clearly establish that Congress may recognize its obligation to pay a moral debt not only by direct appropriation, but also by waiving an otherwise valid defense to a legal claim against the United States, as Congress did in this case and in Cherokee Nation. Although the Court in Cherokee Nation did not expressly tie its conclusion that Congress had the power to waive the res judicata effect of a judgment in favor of the United States to Congress' constitutional power to pay the Nation's debts, the Cherokee Nation opinion did rely on the decision in Nock v. United States, 2 Ct.Cl. 451 (1867). See 270 U.S., at 486, 46 S.Ct., at 432.
44
In Nock, the Court of Claims was confronted with the precise question whether Congress invaded judicial power when it enacted a joint resolution, 14 Stat. 608, directing that court to decide a damages claim against the United States "in accordance with the principles of equity and justice," even though the merits of the claim previously had been resolved in the Government's favor. The court rejected the Government's argument that the joint resolution was unconstitutional as an exercise of "judicial powers" because it had the effect of setting aside the court's prior judgment. Rather, the court concluded:
45
"It is unquestionable, that the Constitution has invested Congress with no judicial powers; it cannot be doubted that a legislative direction to a court to find a judgment in a certain way would be little less than a judgment rendered directly by Congress. But here Congress do not attempt to award judgment, nor to grant a new trial judicially ; neither have they reversed a decree of this court; nor attempted in any way to interfere with the administration of justice. Congress are here to all intents and purposes the defendants, and as such they come into court through this resolution and say that they will not plead the former trial in bar, nor interpose the legal objection which defeated a recovery before." 2 Ct.Cl., at 457-458 (emphasis in original).
46
The Nock court thus expressly rejected the applicability of separation-of-powers objections to a congressional decision to waive the res judicata effect of a judgment in the Government's favor.24
47
The principles set forth in Cherokee Nation and Nock were substantially reaffirmed by this Court in Pope v. United States, 323 U.S. 1, 65 S.Ct. 16, 89 L.Ed. 3 (1944). There Congress had enacted special legislation conferring jurisdiction upon the Court of Claims, "notwithstanding any prior determination, any statute of limitations, release, or prior acceptance of partial allowance, to hear, determine, and render judgment upon" certain claims against the United States arising out of a construction contract. Special Act of Feb. 27, 1942, § 1, 56 Stat. 1122. The court was also directed to determine Pope's claims and render judgment upon them according to a particular formula for measuring the value of the work that he had performed. The Court of Claims construed the Special Act as deciding the questions of law presented by the case, and leaving it the role merely of computing the amount of the judgment for the claimant according to a mathematical formula. Pope v. United States, 100 Ct.Cl. 375, 379-380, 53 F.Supp. 570, 571-572 (1944). Based upon that reading of the Act, and this Court's decision in United States v. Klein, 13 Wall. 128, 20 L.Ed. 519 (1872) (see discussion infra, at 402-405), the Court of Claims held that the Act unconstitutionally interfered with judicial independence. 100 Ct.Cl., at 380-382, 53 F.Supp., at 572-573. It distinguished Cherokee Nation as a case in which Congress granted a claimant a new trial, without directing the courts how to decide the case. 100 Ct.Cl., at 387, and n. 5, 53 F.Supp., at 575, and n. 5.
48
This Court reversed the Court of Claims' judgment. In doing so, the Court differed with the Court of Claims' interpretation of the effect of the Special Act. First, the Court held that the Act did not disturb the earlier judgment denying Pope's claim for damages. "While inartistically drawn the Act's purpose and effect seem rather to have been to create a new obligation of the Government to pay petitioner's claims where no obligation existed before." 323 U.S., at 9, 65 S.Ct., at 21. Second, the Court held that Congress' recognition of Pope's claim was within its power to pay the Nation's debts, and that its use of the Court of Claims as an instrument for exercising that power did not impermissibly invade the judicial function:
49
"We perceive no constitutional obstacle to Congress's imposing on the Government a new obligation where there had been none before, for work performed by petitioner which was beneficial to the Government and for which Congress thought he had not been adequately compensated. The power of Congress to provide for the payment of debts, conferred by § 8 of Article I of the Constitution, is not restricted to payment of those obligations which are legally binding on the Government. It extends to the creation of such obligations in recognition of claims which are merely moral or honorary. . . . United States v. Realty Co., 163 U.S. 427, [, 16 S.Ct. 1120, 41 L.Ed. 215]. . . . Congress, by the creation of a legal, in recognition of a moral, obligation to pay petitioner's claims plainly did not encroach upon the judicial function which the Court of Claims had previously exercised in adjudicating that the obligation was not legal. [Footnote citing Nock and other cases omitted.] Nor do we think it did so by directing that court to pass upon petitioner's claims in conformity to the particular rule of liability prescribed by the Special Act and to give judgment accordingly. . . . See Cherokee Nation v. United States, 270 U.S. 476, 486 [, 46 S.Ct. 428, 432, 70 L.Ed. 694]." Id., at 9-10, 65 S.Ct., at 21.
50
In explaining its holding that the Special Act did not invade the judicial province of the Court of Claims by directing it to reach its judgment with reference to a specified formula, the Court stressed that Pope was required to pursue his claim in the usual manner, that the earlier factual findings made by the Court of Claims were not necessarily rendered conclusive by the Act, and that, even if Congress had stipulated to the facts, it was still a judicial function for the Court of Claims to render judgment on consent. Id., at 10-12, 65 S.Ct., at 21-22.
51
To be sure, the Court in Pope specifically declined to consider "just what application the principles announced in the Klein case could rightly be given to a case in which Congress sought, pendente lite, to set aside the judgment of the Court of Claims in favor of the Government and to require relitigation of the suit." Id., at 8-9, 65 S.Ct., at 21. The case before us might be viewed as presenting that question. We conclude, however, that the separation-of-powers question presented in this case has already been answered in Cherokee Nation, and that that answer is completely consistent with the principles articulated in Klein.
52
The decision in United States v. Klein, 13 Wall. 128, 20 L.Ed. 519 (1872), arose from the following facts: Klein was the administrator of the estate of V. F. Wilson, the deceased owner of property that had been sold by agents of the Government during the War Between the States. Klein sued the United States in the Court of Claims for the proceeds of that sale. His lawsuit was based on the Abandoned and Captured Property Act of March 3, 1863, 12 Stat. 820, which afforded such a cause of action to noncombatant property owners upon proof that they had "never given any aid or comfort to the present rebellion." Following the enactment of this legislation, President Lincoln had issued a proclamation granting "a full pardon" to certain persons engaged "in the existing rebellion" who desired to resume their allegiance to the Government, upon the condition that they take and maintain a prescribed oath. This pardon was to have the effect of restoring those persons' property rights. See 13 Stat. 737. The Court of Claims held that Wilson's taking of the amnesty oath had cured his participation in "the . . . rebellion," and that his administrator, Klein, was thus entitled to the proceeds of the sale. Wilson v. United States, 4 Ct.Cl. 559 (1869).
53
The Court of Claims' decision in Klein's case was consistent with this Court's later decision in a similar case, United States v. Padelford, 9 Wall. 531, 19 L.Ed. 788 (1870), holding that the Presidential pardon purged a participant "of whatever offence against the laws of the United States he had committed . . . and relieved [him] from any penalty which he might have incurred." Id., at 543. Following the Court's announcement of the judgment in Padelford, however, Congress enacted a proviso to the appropriations bill for the Court of Claims. The proviso had three effects: First, no Presidential pardon or amnesty was to be admissible in evidence on behalf of a claimant in the Court of Claims as the proof of loyalty required by the Abandoned and Captured Property Act. Second, the Supreme Court was to dismiss, for want of jurisdiction, any appeal from a judgment of the Court of Claims in favor of a claimant who had established his loyalty through a pardon. Third, the Court of Claims henceforth was to treat a claimant's receipt of a Presidential pardon, without protest, as conclusive evidence that he had given aid and comfort to the rebellion, and to dismiss any lawsuit on his behalf for want of jurisdiction. Act of July 12, 1870, ch. 251, 16 Stat. 230, 235.
54
The Government's appeal from the judgment in Klein's case was decided by this Court following the enactment of the appropriations proviso. This Court held the proviso unconstitutional notwithstanding Congress' recognized power "to make 'such exceptions from the appellate jurisdiction' [of the Supreme Court] as should seem to it expedient." 13 Wall., at 145. See U.S.Const., Art. III, § 2, cl. 2. This holding followed from the Court's interpretation of the proviso's effect:
55
"[T]he language of the proviso shows plainly that it does not intend to withhold appellate jurisdiction except as a means to an end. Its great and controlling purpose is to deny to pardons granted by the President the effect which this court had adjudged them to have." 13 Wall., at 145.
56
Thus construed, the proviso was unconstitutional in two respects: First, it prescribed a rule of decision in a case pending before the courts, and did so in a manner that required the courts to decide a controversy in the Government's favor.
57
"The court is required to ascertain the existence of certain facts and thereupon to declare that its jurisdiction on appeal has ceased, by dismissing the bill. What is this but to prescribe a rule for the decision of a cause in a particular way? In the case before us, the Court of Claims has rendered judgment for the claimant and an appeal has been taken to this court. We are directed to dismiss the appeal, if we find that the judgment must be affirmed, because of a pardon granted to the intestate of the claimants. Can we do so without allowing one party to the controversy to decide it in its own favor? Can we do so without allowing that the legislature may prescribe rules of decision to the Judicial Department of the government in cases pending before it?
58
* * * * *
59
". . . Can [Congress] prescribe a rule in conformity with which the court must deny to itself the jurisdiction thus conferred, because and only because its decision, in accordance with settled law, must be adverse to the government and favorable to the suitor? This question seems to us to answer itself." Id., at 146-147.
60
Second, the rule prescribed by the proviso "is also liable to just exception as impairing the effect of a pardon, and thus infringing the constitutional power of the Executive." Id., at 147. The Court held that it would not serve as an instrument toward the legislative end of changing the effect of a Presidential pardon. Id., at 148.
61
It was, of course, the former constitutional objection held applicable to the legislative proviso in Klein that the Court was concerned about in Pope. But that objection is not applicable to the case before us for two reasons. First, of obvious importance to the Klein holding was the fact that Congress was attempting to decide the controversy at issue in the Government's own favor. Thus, Congress' action could not be grounded upon its broad power to recognize and pay the Nation's debts. Second, and even more important, the proviso at issue in Klein had attempted "to prescribe a rule for the decision of a cause in a particular way." 13 Wall., at 146. The amendment at issue in the present case, however, like the Special Act at issue in Cherokee Nation, waived the defense of res judicata so that a legal claim could be resolved on the merits. Congress made no effort in either instance to control the Court of Claims' ultimate decision of that claim. See n. 23, supra.25
C
62
When Congress enacted the amendment directing the Court of Claims to review the merits of the Black Hills claim, it neither brought into question the finality of that court's earlier judgments, nor interfered with that court's judicial function in deciding the merits of the claim. When the Sioux returned to the Court of Claims following passage of the amendment, they were there in pursuit of judicial enforcement of a new legal right. Congress had not "reversed" the Court of Claims' holding that the claim was barred by res judicata, nor, for that matter, had it reviewed the 1942 decision rejecting the Sioux' claim on the merits. As Congress explicitly recognized, it only was providing a forum so that a new judicial review of the Black Hills claim could take place. This review was to be based on the facts found by the Court of Claims after reviewing all the evidence, and an application of generally controlling legal principles to those facts. For these reasons, Congress was not reviewing the merits of the Court of Claims' decisions, and did not interfere with the finality of its judgments.
63
Moreover, Congress in no way attempted to prescribe the outcome of the Court of Claims' new review of the merits. That court was left completely free to reaffirm its 1942 judgment that the Black Hills claim was not cognizable under the Fifth Amendment, if upon its review of the facts and law, such a decision was warranted. In this respect, the amendment before us is a far cry from the legislatively enacted "consent judgment" called into question in Pope, yet found constitutional as a valid exercise of Congress' broad power to pay the Nation's debts. And, for the same reasons, this amendment clearly is distinguishable from the proviso to this Court's appellate jurisdiction held unconstitutional in Klein.
64
In sum, as this Court implicitly held in Cherokee Nation, Congress' mere waiver of the res judicata effect of a prior judicial decision rejecting the validity of a legal claim against the United States does not violate the doctrine of separation of powers.
IV
A.
65
In reaching its conclusion that the 1877 Act effected a taking of the Black Hills for which just compensation was due the Sioux under the Fifth Amendment, the Court of Claims relied upon the "good faith effort" test developed in its earlier decision in Three Tribes of Fort Berthold Reservation v. United States, 182 Ct.Cl. 543, 390 F.2d 686 (1968). The Fort Berthold test had been designed to reconcile two lines of cases decided by this Court that seemingly were in conflict. The first line, exemplified by Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299 (1903), recognizes "that Congress possesse[s] a paramount power over the property of the Indians, by reason of its exercise of guardianship over their interests, and that such authority might be implied, even though opposed to the strict letter of a treaty with the Indians." Id., at 565, 23 S.Ct., at 221. The second line, exemplified by the more recent decision in Shoshone Tribe v. United States, 299 U.S. 476, 57 S.Ct. 244, 81 L.Ed. 360 (1937), concedes Congress' paramount power over Indian property, but holds, nonetheless, that "[t]he power does not extend so far as to enable the Government 'to give the tribal lands to others, or to appropriate them to its own purposes, without rendering, or assuming an obligation to render, just compensation.' " Id., at 497, 57 S.Ct., at 252 (quoting United States v. Creek Nation, 295 U.S. 103, 110, 55 S.Ct. 681, 684, 79 L.Ed. 1331 (1935)). In Shoshone Tribe, Mr. Justice Cardozo, in speaking for the Court, expressed the distinction between the conflicting principles in a characteristically pithy phrase: "Spoliation is not management." 299 U.S., at 498, 57 S.Ct., at 253.
66
The Fort Berthold test distinguishes between cases in which one or the other principle is applicable:
67
"It is obvious that Congress cannot simultaneously (1) act as trustee for the benefit of the Indians, exercising its plenary powers over the Indians and their property, as it thinks is in their best interests, and (2) exercise its sovereign power of eminent domain, taking the Indians' property within the meaning of the Fifth Amendment to the Constitution. In any given situation in which Congress has acted with regard to Indian people, it must have acted either in one capacity or the other. Congress can own two hats, but it cannot wear them both at the same time.
68
"Some guideline must be established so that a court can identify in which capacity Congress is acting. The following guideline would best give recognition to the basic distinction between the two types of congressional action: Where Congress makes a good faith effort to give the Indians the full value of the land and thus merely transmutes the property from land to money, there is no taking. This is a mere substitution of assets or change of form and is a traditional function of a trustee." 182 Ct.Cl., at 553, 390 F.2d, at 691.
69
Applying the Fort Berthold test to the facts of this case, the Court of Claims concluded that, in passing the 1877 Act, Congress had not made a good-faith effort to give the Sioux the full value of the Black Hills. The principal issue presented by this case is whether the legal standard applied by the Court of Claims was erroneous.26
B
70
The Government contends that the Court of Claims erred insofar as its holding that the 1877 Act effected a taking of the Black Hills was based on Congress' failure to indicate affirmatively that the consideration given the Sioux was of equivalent value to the property rights ceded to the Government. It argues that "the true rule is that Congress must be assumed to be acting within its plenary power to manage tribal assets if it reasonably can be concluded that the legislation was intended to promote the welfare of the tribe." Brief for United States 52. The Government derives support for this rule principally from this Court's decision in Lone Wolf v. Hitchcock.
71
In Lone Wolf, representatives of the Kiowa, Comanche, and Apache Tribes brought an equitable action against the Secretary of the Interior and other governmental officials to enjoin them from enforcing the terms of an Act of Congress that called for the sale of lands held by the Indians pursuant to the Medicine Lodge Treaty of 1867, 15 Stat. 581. That treaty, like the Fort Laramie Treaty of 1868, included a provision that any future cession of reservation lands would be without validity or force "unless executed and signed by at least three fourths of all the adult male Indians occupying the same." Id., at 585. The legislation at issue, Act of June 6, 1900, 31 Stat. 672, was based on an agreement with the Indians that had not been signed by the requisite number of adult males residing on the reservation.
72
This Court's principal holding in Lone Wolf was that "the legislative power might pass laws in conflict with treaties made with the Indians." 187 U.S., at 566, 23 S.Ct., at 221. The Court stated:
73
"The power exists to abrogate the provisions of an Indian treaty, though presumably such power will be exercised only when circumstances arise which will not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should do so. When, therefore, treaties were entered into between the United States and a tribe of Indians it was never doubted that the power to abrogate existed in Congress, and that in a contingency such power might be availed of from considerations of governmental policy, particularly if consistent with perfect good faith towards the Indians." Ibid. (Emphasis in original.)27
74
The Court, therefore, was not required to consider the contentions of the Indians that the agreement ceding their lands had been obtained by fraud, and had not been signed by the requisite number of adult males. "[A]ll these matters, in any event, were solely within the domain of the legislative authority, and its action is conclusive upon the courts." Id., at 568, 23 S.Ct., at 222.
75
In the penultimate paragraph of the opinion, however, the Court in Lone Wolf went on to make some observations seemingly directed to the question whether the Act at issue might constitute a taking of Indian property without just compensation. The Court there stated:
76
"The act of June 6, 1900, which is complained of in the
77
bill, was enacted at a time when the tribal relations between the confederated tribes of Kiowas, Comanches, and Apaches still existed, and that statute and the statutes supplementary thereto dealt with the disposition of tribal property and purported to give an adequate consideration for the surplus lands not allotted among the Indians or reserved for their benefit. Indeed, the controversy which this case presents is concluded by the decision in Cherokee Nation v. Hitchcock, 187 U.S. 294, [23 S.Ct. 115, 47 L.Ed. 183,] decided at this term, where it was held that full administrative power was possessed by Congress over Indian tribal property. In effect, the action of Congress now complained of was but an exercise of such power, a mere change in the form of investment of Indian tribal property, the property of those who, as we have held, were in substantial effect the wards of the government. We must presume that Congress acted in perfect good faith in the dealings with the Indians of which complaint is made, and that the legislative branch of the government exercised its best judgment in the premises. In any event, as Congress possessed full power in the matter, the judiciary cannot question or inquire into the motives which prompted the enactment of this legislation. If injury was occasioned, which we do not wish to be understood as implying, by the use made by Congress of its power, relief must be sought by an appeal to that body for redress and not to the courts. The legislation in question was constitutional." Ibid. (Emphasis supplied.)
78
The Government relies on the italicized sentence in the quotation above to support its view "that Congress must be assumed to be acting within its plenary power to manage tribal assets if it reasonably can be concluded that the legislation was intended to promote the welfare of the tribe." Brief for United States 52. Several adjoining passages in the paragraph, however, lead us to doubt whether the Lone Wolf Court meant to state a general rule applicable to cases such as the one before us.
79
First, Lone Wolf presented a situation in which Congress "purported to give an adequate consideration" for the treaty lands taken from the Indians. In fact, the Act at issue set aside for the Indians a sum certain of $2 million for surplus reservation lands surrendered to the United States. 31 Stat. 678; see 187 U.S., at 555. In contrast, the background of the 1877 Act "reveals a situation where Congress did not 'purport' to provide 'adequate consideration,' nor was there any meaningful negotiation or arm's-length bargaining, nor did Congress consider it was paying a fair price." 220 Ct.Cl., at 475, 601 F.2d, at 1176 (concurring opinion).
80
Second, given the provisions of the Act at issue in Lone Wolf, the Court reasonably was able to conclude that "the action of Congress now complained of was but . . . a mere change in the form of investment of Indian tribal property." Under the Act of June 6, 1900, each head of a family was to be allotted a tract of land within the reservation of not less than 320 acres, an additional 480,000 acres of grazing land were set aside for the use of the tribes in common, and $2 million was paid to the Indians for the remaining surplus. 31 Stat. 677-678. In contrast, the historical background to the opening of the Black Hills for settlement, and the terms of the 1877 Act itself, see Part I, supra, would not lead one to conclude that the Act effected "a mere change in the form of investment of Indian tribal property."
81
Third, it seems significant that the views of the Court in Lone Wolf were based, in part, on a holding that "Congress possessed full power in the matter." Earlier in the opinion the Court stated: "Plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one, not subject to be controlled by the judicial department of the government." 187 U.S., at 565, 23 S.Ct., at 221. Thus, it seems that the Court's conclusive presumption of congressional good faith was based in large measure on the idea that relations between this Nation and the Indian tribes are a political matter, not amenable to judicial review. That view, of course, has long since been discredited in taking cases, and was expressly laid to rest in Delaware Tribal Business Comm. v. Weeks, 430 U.S. 73, 84, 97 S.Ct. 911, 918, 51 L.Ed.2d 173 (1977).28
82
Fourth, and following up on the political question holding, the Lone Wolf opinion suggests that where the exercise of congressional power results in injury to Indian rights, "relief must be sought by an appeal to that body for redress and not to the courts." Unlike Lone Wolf, this case is one in which the Sioux have sought redress from Congress, and the Legislative Branch has responded by referring the matter to the courts for resolution. See Parts II and III, supra. Where Congress waives the Government's sovereign immunity, and expressly directs the courts to resolve a taking claim on the merits, there would appear to be far less reason to apply Lone Wolf's principles of deference. See United States v. Tillamooks, 329 U.S. 40, 46, 71 S.Ct. 552, 555, 95 L.Ed. 738 (1946) (plurality opinion).
83
The foregoing considerations support our conclusion that the passage from Lone Wolf here relied upon by the Government has limited relevance to this case. More significantly, Lone Wolf 's presumption of congressional good faith has little to commend it as an enduring principle for deciding questions of the kind presented here. In every case where a taking of treaty-protected property is alleged,29 a reviewing court must recognize that tribal lands are subject to Congress' power to control and manage the tribe's affairs. But the court must also be cognizant that "this power to control and manage [is] not absolute. While extending to all appropriate measures for protecting and advancing the tribe, it [is] subject to limitations inhering in . . . a guardianship and to pertinent constitutional restrictions." United States v. Creek Nation, 295 U.S., at 109-110, 55 S.Ct., at 684. Accord: Menominee Tribe v. United States, 391 U.S. 404, 413, 88 S.Ct. 1705, 1711, 20 L.Ed.2d 697 (1968); FPC v. Tuscarora Indian Nation, 362 U.S. 99, 122, 80 S.Ct. 543, 557, 4 L.Ed.2d 584 (1960); United States v. Klamath Indians, 304 U.S. 119, 123, 58 S.Ct. 799, 801, 82 L.Ed. 1219 (1938); United States v. Shoshone Tribe, 304 U.S. 111, 115-116, 58 S.Ct. 794, 797, 82 L.Ed. 1213 (1938); Shoshone Tribe v. United States, 299 U.S. 476, 497-498, 57 S.Ct. 244, 251-252, 81 L.Ed. 360 (1937).
84
As the Court of Claims recognized in its decision below, the question whether a particular measure was appropriate for protecting and advancing the tribe's interests, and therefore not subject to the constitutional command of the Just Compensation Clause, is factual in nature. The answer must be based on a consideration of all the evidence presented. We do not mean to imply that a reviewing court is to second-guess, from the perspective of hindsight, a legislative judgment that a particular measure would serve the best interests of the tribe. We do mean to require courts, in considering whether a particular congressional action was taken in pursuance of Congress' power to manage and control tribal lands for the Indians' welfare, to engage in a thoroughgoing and impartial examination of the historical record. A presumption of congressional good faith cannot serve to advance such an inquiry.
C
85
We turn to the question whether the Court of Claims' inquiry in this case was guided by an appropriate legal standard. We conclude that it was. In fact, we approve that court's formulation of the inquiry as setting a standard that ought to be emulated by courts faced with resolving future cases presenting the question at issue here:
86
"In determining whether Congress has made a good faith effort to give the Indians the full value of their lands when the government acquired [them], we therefore look to the objective facts as revealed by Acts of Congress, congressional committee reports, statements submitted to Congress by government officials, reports of special commissions appointed by Congress to treat with the Indians, and similar evidence relating to the acquisition. . . .
87
"The 'good faith effort' and 'transmutation of property' concepts referred to in Fort Berthold are opposite sides of the same coin. They reflect the traditional rule that a trustee may change the form of trust assets as long as he fairly (or in good faith) attempts to provide his ward with property of equivalent value. If he does that, he cannot be faulted if hindsight should demonstrate a lack of precise equivalence. On the other hand, if a trustee (or the government in its dealings with the Indians) does not attempt to give the ward the fair equivalent of what he acquires from him, the trustee to that extent has taken rather than transmuted the property of the ward. In other words, an essential element of the inquiry under the Fort Berthold guideline is determining the adequacy of the consideration the government gave for the Indian lands it acquired. That inquiry cannot be avoided by the government's simple assertion that it acted in good faith in its dealings with the Indians." 220 Ct.Cl., at 451, 601 F.2d, at 1162.30
D
88
We next examine the factual findings made by the Court of Claims, which led it to the conclusion that the 1877 Act effected a taking. First, the Court found that "[t]he only item of 'consideration' that possibly could be viewed as showing an attempt by Congress to give the Sioux the 'full value' of the land the government took from them was the requirement to furnish them with rations until they became self-sufficient." 220 Ct.Cl., at 458, 601 F.2d, at 1166. This finding is fully supported by the record, and the Government does not seriously contend otherwise.31
89
Second, the court found, after engaging in an exhaustive review of the historical record, that neither the Manypenny Commission, nor the congressional Committees that approved the 1877 Act, nor the individual legislators who spoke on its behalf on the floor of Congress, ever indicated a belief that the Government's obligation to provide the Sioux with rations constituted a fair equivalent for the value of the Black Hills and the additional property rights the Indians were forced to surrender. See id., at 458-462, 601 F.2d, at 1166-1168. This finding is unchallenged by the Government.
90
A third finding lending some weight to the Court's legal conclusion was that the conditions placed by the Government on the Sioux' entitlement to rations, see n. 14, supra, "further show that the government's undertaking to furnish rations to the Indians until they could support themselves did not reflect a congressional decision that the value of the rations was the equivalent of the land the Indians were giving up, but instead was an attempt to coerce the Sioux into capitulating to congressional demands." 220 Ct.Cl., at 461, 601 F.2d, at 1168. We might add only that this finding is fully consistent with similar observations made by this Court nearly a century ago in an analogous case.
91
In Choctaw Nation v. United States, 119 U.S. 1, 35, 7 S.Ct. 75, 94, 30 L.Ed. 306 (1886), the Court held, over objections by the Government, that an earlier award made by the Senate on an Indian tribe's treaty claim "was fair, just, and equitable." The treaty at issue had called for the removal of the Choctaw Nation from treaty-protected lands in exchange for payments for the tribe's subsistence for one year, payments for cattle and improvements on the new reservation, an annuity of $20,000 for 20 years commencing upon removal, and the provision of educational and agricultural services. Id., at 38, 7 S.Ct., at 96. Some years thereafter the Senate had awarded the Indians a substantial recovery based on the latter treaty's failure to compensate the Choctaw for the lands they had ceded. Congress later enacted a jurisdictional statute which permitted the United States to contest the fairness of the Senate's award as a settlement of the Indian's treaty claim. In rejecting the Government's arguments, and accepting the Senate's award as "furnish[ing] the nearest approximation to the justice and right of the case," id., at 35, 7 S.Ct., at 95, this Court observed:
92
"It is notorious as a historical fact, as it abundantly appears from the record in this case, that great pressure had to be brought to bear upon the Indians to effect their removal, and the whole treaty was evidently and purposely executed, not so much to secure to the Indians the rights for which they had stipulated, as to effectuate the policy of the United States in regard to their removal. The most noticeable thing, upon a careful consideration of the terms of this treaty, is that no money consideration is promised or paid for a cession of lands, the beneficial ownership of which is assumed to reside in the Choctaw Nation, and computed to amount to over ten millions of acres." Id., at 37-38, 7 S.Ct., at 96.
93
As for the payments that had been made to the Indians in order to induce them to remove themselves from their treaty lands, the Court, in words we find applicable to the 1877 Act, concluded:
94
"It is nowhere expressed in the treaty that these payments are to be made as the price of the lands ceded; and they are all only such expenditures as the government of the United States could well afford to incur for the mere purpose of executing its policy in reference to the removal of the Indians to their new homes. As a consideration for the value of the lands ceded by the treaty, they must be regarded as a meager pittance." Id., at 38, 7 S.Ct., at 96 (emphasis supplied).
95
These conclusions, in light of the historical background to the opening of the Black Hills for settlement, see Part I, supra, seem fully applicable to Congress' decision to remove the Sioux from the valuable tract of land, and to extinguish their off-reservation hunting rights.
96
Finally, the Court of Claims rejected the Government's contention that the fact that it subsequently had spent at least $43 million on rations for the Sioux (over the course of three-quarters of a century) established that the 1877 Act was an act of guardianship taken in the Sioux' best interest. The court concluded: "The critical inquiry is what Congress did—and how it viewed the obligation it was assuming—at the time it acquired the land, and not how much it ultimately cost the United States to fulfill the obligation." 220 Ct.Cl., at 462, 601 F.2d, at 1168. It found no basis for believing that Congress, in 1877, anticipated that it would take the Sioux such a lengthy period of time to become self-sufficient, or that the fulfillment of the Government's obligation to feed the Sioux would entail the large expenditures ultimately made on their behalf. Ibid. We find no basis on which to question the legal standard applied by the Court of Claims, or the findings it reached, concerning Congress' decision to provide the Sioux with rations.
E
97
The aforementioned findings fully support the Court of Claims' conclusion that the 1877 Act appropriated the Black Hills "in circumstances which involved an implied undertaking by [the United States] to make just compensation to the tribe."32 United States v. Creek Nation, 295 U.S., at 111, 55 S.Ct., at 684. We make only two additional observations about this case. First, dating at least from the decision in Cherokee Nation v. Southern Kansas R. Co., 135 U.S. 641, 657, 10 S.Ct. 965, 971, 34 L.Ed. 295 (1890), this Court has recognized that Indian lands, to which a tribe holds recognized title, "are held subject to the authority of the general government to take them for such objects as are germane to the execution of the powers granted to it; provided only, that they are not taken without just compensation being made to the owner." In the same decision the Court emphasized that the owner of such lands "is entitled to reasonable, certain and adequate provision for obtaining compensation before his occupancy is disturbed." Id., at 659, 10 S.Ct., at 971. The Court of Claims gave effect to this principle when it held that the Government's uncertain and indefinite obligation to provide the Sioux with rations until they became self-sufficient did not constitute adequate consideration for the Black Hills.
98
Second, it seems readily apparent to us that the obligation to provide rations to the Sioux was undertaken in order to ensure them a means of surviving their transition from the nomadic life of the hunt to the agrarian lifestyle Congress had chosen for them. Those who have studied the Government's reservation policy during this period of our Nation's history agree. See n. 11, supra. It is important to recognize that the 1877 Act, in addition to removing the Black Hills from the Great Sioux Reservation, also ceded the Sioux' hunting rights in a vast tract of land extending beyond the boundaries of that reservation. See n. 14, supra. Under such circumstances, it is reasonable to conclude that Congress' undertaking of an obligation to provide rations for the Sioux was a quid pro quo for depriving them of their chosen way of life, and was not intended to compensate them for the taking of the Black Hills.33
V
99
In sum, we conclude that the legal analysis and factual findings of the Court of Claims fully support its conclusion that the terms of the 1877 Act did not effect "a mere change in the form of investment of Indian tribal property." Lone Wolf v. Hitchcock, 187 U.S., at 568, 23 S.Ct., at 222. Rather, the 1877 Act effected a taking of tribal property, property which had been set aside for the exclusive occupation of the Sioux by the Fort Laramie Treaty of 1868. That taking implied an obligation on the part of the Government to make just compensation to the Sioux Nation, and that obligation, including an award of interest, must now, at last, be paid.
100
The judgment of the Court of Claims is affirmed.
101
It is so ordered.
102
Mr. Justice WHITE, concurring in part and concurring in the judgment.
103
I agree that there is no constitutional infirmity in the direction by Congress that the Court of Claims consider this case without regard to the defense of res judicata. I also agree that the Court of Claims correctly decided this case. Accordingly, I concur in Parts III and V of the Court's opinion and in the judgment.
104
Mr. Justice REHNQUIST, dissenting.
105
In 1942, the Sioux Tribe filed a petition for certiorari requesting this Court to review the Court of Claims' ruling that Congress had not unconstitutionally taken the Black Hills in 1877, but had merely exchanged the Black Hills for rations and grazing lands—an exchange Congress believed to be in the best interests of the Sioux and the Nation. This Court declined to review that judgment. Sioux Tribe v. United States, 97 Ct.Cl. 613 (1942), cert. denied, 318 U.S. 789, 63 S.Ct. 992, 87 L.Ed. 1155 (1943). Yet today the Court permits Congress to reopen that judgment which this Court rendered final upon denying certiorari in 1943, and proceeds to reject the 1942 Court of Claims' factual interpretation of the events in 1877. I am convinced that Congress may not constitutionally require the Court of Claims to reopen this proceeding, that there is no judicial principle justifying the decision to afford the respondents an additional opportunity to litigate the same claim, and that the Court of Claims' first interpretation of the events in 1877 was by all accounts the more realistic one. I therefore dissent.
106
* In 1920, Congress enacted a special jurisdictional Act, ch. 222, 41 Stat. 738, authorizing the Sioux Tribe to submit any legal or equitable claim against the United States to the Court of Claims. The Sioux filed suit claiming that the 1877 Act removing the Black Hills from the Sioux territory was an unconstitutional taking. In Sioux Tribe v. United States, supra, the Court of Claims considered the question fully and found that the United States had not taken the Black Hills from the Sioux within the meaning of the Fifth Amendment. It is important to highlight what that court found. It did not decide, as the Court today suggests, that it merely lacked jurisdiction over the claim presented by the Sioux. See ante, at 384. It found that under the circumstances presented in 1877, Congress attempted to improve the situation of the Sioux and the Nation by exchanging the Black Hills for 900,000 acres of grazing lands and rations for as long as they should be needed. The court found that although the Government attempted to keep white settlers and gold prospectors out of the Black Hills territory, these efforts were unsuccessful. The court concluded that this situation was such that the Government "believed serious conflicts would develop between the settlers and the Government, and between the settlers and the Indians." 97 Ct.Cl., at 659. It was also apparent to Congress that the Indians were still "incapable of supporting themselves." Ibid.
107
The court found that the Government therefore embarked upon a course designed to obtain the Indians' agreement to sell the Black Hills and "endeavored in every way possible during 1875 and 1876 to arrive at a mutual agreement with the Indians for the sale. . . . " Id., at 681. Negotiation having failed, Congress then turned to design terms for the acquisition of the Black Hills which it found to be in the best interest of both the United States and the Sioux. The court found that pursuant to the 1877 agreement, Congress provided the Indians with more than $43 million in rations as well as providing them with 900,000 acres of needed grazing lands. Thus the court concluded that "the record shows that the action taken was pursuant to a policy which the Congress deemed to be for the interest of the Indians and just to both parties." Id., at 668. The court emphasized:
108
"[T]he Congress, in an act enacted because of the situation encountered and pursuant to a policy which in its wisdom it deemed to be in the interest and for the benefit and welfare of the . . . Sioux Tribe, as well as for the necessities of the Government, required the Indians to sell or surrender to the Government a portion of their land and hunting rights on other land in return for that which the Congress, in its judgment, deemed to be adequate consideration for what the Indians were required to give up, which consideration the Government was not otherwise under any legal obligation to pay." Id., at 667.
109
This Court denied certiorari. 318 U.S. 789, 63 S.Ct. 992, 87 L.Ed. 1155 (1943).
110
During the course of further litigation commencing in 1950, the Sioux again resubmitted their claim that the Black Hills were taken unconstitutionally. The Government pleaded res judicata as a defense. The Court of Claims held that res judicata barred relitigation of the question since the original Court of Claims decision had clearly held that the appropriation of the Black Hills was not a taking because Congress in "exercising its plenary power over Indian tribes, took their land without their consent and substituted for it something conceived by Congress to be an equivalent." United States v. Sioux Nation, 207 Ct.Cl. 234, 243, 518 F.2d 1298, 1303 (1975). The court found no basis for relieving the Sioux from the bar of res judicata finding that the disability "is not lifted if a later court disagrees with a prior one." Id., at 244, 518 F.2d, at 1303. The court thus considered the equities entailed by the application of res judicata in this case and held that relitigation was unwarranted. Again, this Court denied certiorari. 423 U.S. 1016, 96 S.Ct. 449, 46 L.Ed.2d 387 (1975).
111
Congress then passed another statute authorizing the Sioux to relitigate their taking claim in the Court of Claims. 92 Stat. 153. The statute provided that the Court of Claims "shall review on the merits" the Sioux claim that there was a taking and that the Court "shall determine that issue de novo." (Emphasis added.) Neither party submitted additional evidence and the Court of Claims decided the case on the basis of the record generated in the 1942 case and before the Commission. On the basis of that same record, the Court of Claims has now determined that the facts establish that Congress did not act in the best interest of the Sioux, as the 1942 court found, but arbitrarily appropriated the Black Hills without affording just compensation. This Court now embraces this second, latter-day interpretation of the facts in 1877.
II
112
Although the Court refrains from so boldly characterizing its action, it is obvious from these facts that Congress has reviewed the decisions of the Court of Claims, set aside the judgment that no taking of the Black Hills occurred, set aside the judgment that there is no cognizable reason for relitigating this claim, and ordered a new trial. I am convinced that this is nothing other than an exercise of judicial power reserved to Art. III courts that may not be performed by the Legislative Branch under its Art. I authority.
113
Article III vests "the judicial Power . . . of the United States" in federal courts. Congress is vested by Art. I with legislative powers, and may not itself exercise an appellate-type review of judicial judgments in order to alter their terms, or to order new trials of cases already decided. The judges in Hayburn's Case, 2 Dall. 408, 409, 413, n. 4, 1 L.Ed. 436 (1792), stated that, "no decision of any court of the United States can, under any circumstances, in our opinion, agreeable to the Constitution, be liable to a reversion, or even suspension, by the Legislature itself, in whom no judicial power of any kind appears to be vested." We have interpreted the decision in United States v. Klein, 13 Wall. 128, 20 L.Ed. 519 (1872), as having "rested upon the ground that . . . Congress was without constitutional authority to CONTROL THE EXERCISE OF . . . JUDICIAL POWER . . . By requiring this court to set aside the judgment of the Court of Claims" and as holding that Congress may not "require a new trial of the issues . . . which the Court had resolved against [a party]." Pope v. United States, 323 U.S. 1, 8, 9, 65 S.Ct. 16, 20, 21, 89 L.Ed. 3 (1944).
114
This principle was again applied in United States v. O'Grady, 22 Wall. 641, 647, 22 L.Ed. 772 (1875), where the Court refused to legitimize a congressional attempt to revise a final judgment rendered by the Court of Claims finding that such judgments "are beyond all doubt the final determination of the matter in controversy; and it is equally certain that the judgments of the Court of Claims, where no appeal is taken to this court, are, under existing laws, absolutely conclusive of the rights of the parties, unless a new trial is granted by that court. . . . " (Emphasis added.) The Court further found that there is only one Supreme Court and "[i]t is quite clear that Congress cannot subject the judgments of the Supreme Court to the re-examination and revision of any other tribunal or any other department of the government." Id., at 648. See also Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568 (1948). Congress has exceeded the legislative boundaries drawn by these cases and the Constitution and exercised judicial power in a case already decided by effectively ordering a new trial.
115
The determination of whether this action is an exercise of legislative or judicial power is of course one of characterization. The fact that the judicial process is affected by an Act of Congress is not dispositive since many actions which this Court has clearly held to be legitimate exercises of legislative authority do have an effect on the judiciary and its processes. Congress may legitimately exercise legislative powers in the regulation of judicial jurisdiction; and it may, like other litigants, change the import of a final judgment by establishing new legal rights after the date of judgment, and have an effect on the grounds available for a court's decision by waiving available defenses. But as the Court apparently concedes, Congress may not in the name of those legitimate actions, review and set aside a final judgment of an Art. III court, and order the courts to rehear an issue previously decided in a particular case.
116
The Court relies heavily on the fact that Congress was acting pursuant to its power to pay the Nation's debts. No doubt, Congress has broad power to do just that, but it may do so only through the exercise of legislative, not judicial powers. Thus the question must be, not whether Congress was attempting to pay its debts through this Act, but whether it attempted to do so by means of judicial power. The Court suggests that the congressional action in issue is justified as either a permissible regulation of jurisdiction, the creation of a new obligation, or the mere waiver of a litigant's right. These alternative nonjudicial characterizations of the congressional action, however, are simply unpersuasive.
A.
117
The Court first attempts to categorize this action as a permissible regulation of jurisdiction stating that all Congress has done is to "provid[e] a forum so that a new judicial review of the Black Hills claim could take place." But that is the essence of an appellate or trial court decision ordering a new trial. While Congress may regulate judicial functions it may not itself exercise them. Admittedly, it is not always readily apparent whether a particular action constitutes the assignment or the exercise of a judicial function since the assignment of some functions is inherently judicial—such as assigning the trial court the task of rehearing a case because of error. The guidelines identified in our opinions, however, indicate that while Congress enjoys broad authority to regulate judicial proceedings in the context of a class of cases, Johannessen v. United States, 225 U.S. 227, 32 S.Ct. 613, 56 L.Ed. 1066 (1912), when Congress regulates functions of the judiciary in a pending case it walks the line between judicial and legislative authority, and exceeds that line if it sets aside a judgment or orders retrial of a previously adjudicated issue. United States v. Klein, supra, at 145; Pope v. United States, supra.
118
By ordering a re hearing in a pending case, Congress does not merely assign a judicial function, it necessarily reviews and sets aside an otherwise final adjudication; actions which this Court concedes Congress cannot permissibly take under the decisions of this Court. Ante, at 391-392. The Court concludes that no "review" of the Court of Claims decisions (and our denials of certiorari) has occurred, and that the finality of the judgments has not been disturbed, principally because Congress has not dictated a rule of decision that must govern the ultimate outcome of the adjudication. The fact that Congress did not dictate to the Court of Claims that a particular result be reached does not in any way negate the fact it has sought to exercise judicial power. This Court and other appellate courts often reverse a trial court for error without indicating what the result should be when the claim is heard again.
119
It is also apparent that Congress must have "reviewed" the merits of the litigation and concluded that for some reason, the Sioux should have a second opportunity to air their claims. The order of a new trial inevitably reflects some measure of dissatisfaction with at least the manner in which the original claim was heard. It certainly seems doubtful that Congress would grant a litigant a new trial if convinced that the litigant had been fairly heard in the first instance. Unless Congress is assuming that there were deficiencies in the prior judicial proceeding, why would it see fit to appropriate public money to have the claim heard once again? It would seem that Congress did not find the opinions of the Court of Claims fully persuasive. But it is not the province of Congress to judge the persuasiveness of the opinions of federal courts—that is the judiciary's province alone. It is equally apparent that Congress has set aside the judgments of the Court of Claims. Previously those judgments were dispositive of the issues litigated in them; Congress now says that they are not. The action of Congress cannot be justified as the regulation of the jurisdiction of the federal courts because it seeks to provide a forum for the purposes of reviewing a previously final judgment in a pending case.
B
120
The action also cannot be characterized and upheld as merely an exercise of a litigant's power to change the effect of a judgment by agreeing to obligations beyond those required by a particular judgment. This Court has clearly never found that the judicial power is encroached upon because Congress seeks to change the law after a question has been adjudicated. See, e. g., Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421, 15 L.Ed. 435 (1856); Hodges v. Snyder, 261 U.S. 600, 43 S.Ct. 435, 67 L.Ed. 819 (1923). This is a recognition of the right of every litigant to pay his adversary more than the court says is required if he so chooses. Congress, acting under its spending powers, is, like an individual, entitled to enlarge its obligations after the court has adjudicated a question. The decision in Pope v. United States, 323 U.S. 1, 65 S.Ct. 16, 89 L.Ed. 3 (1944), clearly rests upon this distinction.
121
But here Congress has made no change in the applicable law. It has not provided, as our opinions make clear it could have, that the Sioux should recover for all interest on the value of the Black Hills. Counsel for respondents in fact stated at oral argument that he could not persuade Congress "to go that far." Congress has not changed the rule of law, it simply directed the judiciary to try again. Congress may not attempt to shift its legislative responsibilities and satisfy its constituents by discarding final judgments and ordering new trials.
C
122
The Court also suggests that the congressional action is but a "mere waiver" of a defense within a litigant's prerogative. Ante, at 407. Congress certainly is no different from other litigants in this regard, and if the congressional action in this case could convincingly be construed as having an effect no greater than an ordinary litigant's waiver, I certainly would not object that Congress was exercising judicial power. But it is apparent that the congressional action in issue accomplished far more than a litigant's waiver. Congress clearly required the Court of Claims to hear the case in full, and only if a waiver of res judicata by a litigant would always impose an obligation on a federal court to rehear such a claim, could it be said that Congress has exercised the power of a litigant rather than the power of a legislature.
123
While res judicata is a defense which can be waived, see Fed.Rule Civ.Proc. 8(c), if a court is on notice that it has previously decided the issue presented, the court may dismiss the action sua sponte, even though the defense has not been raised. See Hedger Transportation Corp. v. Ira S. Bushey & Sons, 186 F.2d 236 (CA2 1951); Evarts v. Western Metal Finishing Co., 253 F.2d 637, 639, n. 1 (CA9), cert. denied, 358 U.S. 815, 79 S.Ct. 23, 3 L.Ed.2d 58 (1958); Scholla v. Scholla, 92 U.S.App.D.C. 9, 201 F.2d 211 (1953); Hicks v. Holland, 235 F.2d 183 (CA6), cert. denied, 352 U.S. 855, 77 S.Ct. 83, 1 L.Ed.2d 66 (1956). This result is fully consistent with the policies underlying res judicata: it is not based solely on the defendant's interest in avoiding the burdens of twice defending a suit, but is also based on the avoidance of unnecessary judicial waste. Commissioner v. Sunnen, 333 U.S. 591, 597, 68 S.Ct. 715, 719, 92 L.Ed. 898 (1948); Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 328, 91 S.Ct. 1434, 1442, 28 L.Ed.2d 788 (1971); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). The Court of Claims itself has indicated that it would not engage in reconsideration of an issue previously decided by the Court of Claims without substantial justification:
124
"It is well to remember that res judicata and its offspring, collateral estoppel, are not statutory defenses; they are defenses adopted by the courts in furtherance of prompt and efficient administration of the business that comes before them. They are grounded on the theory that one litigant cannot unduly consume the time of the court at the expense of other litigants, and that, once the court has finally decided an issue, a litigant cannot demand that it be decided again." Warthen v. United States, 157 Ct.Cl. 798, 800 (1962).
125
It matters not that the defendant has consented to the relitigation of the claim since the judiciary retains an independent interest in preventing the misallocation of judicial resources and second-guessing prior panels of Art. III judges when the issue has been fully and fairly litigated in a prior proceeding. Since the Court of Claims found in this case that there was no adequate reason for denying res judicata effect after the issue was raised and the respondents were given an opportunity to demonstrate why res judicata should not apply, it is clear that the issue has been heard again only because Congress used its legislative authority to mandate a rehearing. The Court of Claims apparently acknowledged that this in fact was the effect of the legislation, for it did not state that readjudication was the product of a waiver, but rather that through its decision the court "carried out the obligation imposed upon us in the 1978 jurisdictional statute." (Emphasis added.)
126
Nor do I find this Court's decision in Cherokee Nation v. United States, 270 U.S. 476, 46 S.Ct. 428, 70 L.Ed. 694 (1926), dispositive. Again, in Cherokee Nation, the Court was asked to consider and decide a question not previously adjudicated by the Court of Claims. The Court stated that the theory of interest presented in the second adjudication was not "presented either to the Court of Claims or to this Court. It is a new argument not before considered." Id., at 486, 46 S.Ct., at 432. Thus even Cherokee Nation did not involve congressionally mandated judicial re-examination of a question previously decided by an Art. III court.
127
Here, in contrast, the issue decided is identical to that decided in 1942. It is quite clear from a comparison of the 1942 decision of the Court of Claims and the opinion of the Court today that the only thing that has changed is an interpretation of the events which occurred in 1877. The Court today concludes that the facts in this case "would not lead one to conclude that the Act effected 'a mere change in the form of investment of Indian tribal property.' " Ante, at 413. But that is precisely what the Court of Claims found in 1942. See supra, at 425-426. There has not even been a change in the law, for the Court today relies on decisions rendered long before the Court of Claims decision in 1942. It is the view of history, and not the law, which has evolved. See infra, at 434-437. The decision is thus clearly nothing more than a second interpretation of the precise factual question decided in 1942. As the dissenting judges in the Court of Claims aptly stated: "The facts have not changed. We have been offered no new evidence." 220 Ct.Cl. 442, 489, 601 F.2d 1157, 1184.
128
It is therefore apparent that Congress has accomplished more than a private litigant's attempted waiver, more than legislative control over the general jurisdiction of the federal courts, and more than the establishment of a new rule of law for a previously decided case. What Congress has done is uniquely judicial. It has reviewed a prior decision of an Art. III court, eviscerated the finality of that judgment, and ordered a new trial in a pending case.
III
129
Even if I could countenance the Court's decision to reach the merits of this case, I also think it has erred in rejecting the 1942 court's interpretation of the facts. That court rendered a very persuasive account of the congressional enactment. See supra, at 425-426. As the dissenting judges in the Court of Claims opinion under review pointedly stated: "The majority's view that the rations were not consideration for the Black Hills is untenable. What else was the money for?" 220 Ct.Cl., at 487, 601 F.2d, at 1183.
130
I think the Court today rejects that conclusion largely on the basis of a view of the settlement of the American West which is not universally shared. There were undoubtedly greed, cupidity, and other less-than-admirable tactics employed by the Government during the Black Hills episode in the settlement of the West, but the Indians did not lack their share of villainy either. It seems to me quite unfair to judge by the light of "revisionist" historians or the mores of another era actions that were taken under pressure of time more than a century ago.
131
Different historians, not writing for the purpose of having their conclusions or observations inserted in the reports of congressional committees, have taken different positions than those expressed in some of the materials referred to in the Court's opinion. This is not unnatural, since history, no more than law, is not an exact (or for that matter an inexact) science.
132
But the inferences which the Court itself draws from the letter from General Sheridan to General Sherman reporting on a meeting between the former with President Grant, the Secretary of the Interior, and the Secretary of War, as well as other passages in the Court's opinion, leave a stereotyped and one-sided impression both of the settlement regarding the Black Hills portion of the Great Sioux Reservation and of the gradual expansion of the National Government from the Proclamation Line of King George III in 1763 to the Pacific Ocean.
133
Ray Billington, a senior research associate at the Huntington Library in San Marino, Cal., since 1963, and a respected student of the settlement of the American West, emphasized in his introduction to the book Soldier and Brave (National Park Service, U.S. Dept. of the Interior, 1963) that the confrontations in the West were the product of a long history, not a conniving Presidential administration:
134
"Three centuries of bitter Indian warfare reached a tragic climax on the plains and mountains of America's Far West. Since the early seventeenth century, when Chief Opechancanough rallied his Powhatan tribesmen against the Virginia intruders on their lands, each advance of the frontier had been met with stubborn resistance. At times this conflict flamed into open warfare: in King Phillips' rebellion against the Massachusetts Puritans, during the French and Indian Wars of the eighteenth century, in Chief Pontiac's assault on his new British overlords in 1763, in Chief Tecumseh's vain efforts to hold back the advancing pioneers of 1812, and in the Black Hawk War. . . .
135
". . . In three tragic decades, between 1860 and 1890, the Indians suffered the humiliating defeats that forced them to walk the white man's road toward civilization. Few conquered people in the history of mankind have paid so dearly for their defense of a way of life that the march of progress had outmoded.
136
"This epic struggle left its landmarks behind, as monuments to the brave men, Indian and white, who fought and died that their manner of living might endure." Id., at xiii-xiv.
137
Another history highlights the cultural differences which made conflict and brutal warfare inevitable:
138
"The Plains Indians seldom practiced agriculture or other primitive arts, but they were fine physical specimens; and in warfare, once they had learned the use of the rifle, [were] much more formidable than the Eastern tribes who had slowly yielded to the white man. Tribe warred with tribe, and a highly developed sign language was the only means of inter-tribal communication. The effective unit was the band or village of a few hundred souls, which might be seen in the course of its wanderings encamped by a water-course with tipis erected; or pouring over the plain, women and children leading dogs and packhorses with their trailing travois, while gaily dressed braves loped ahead on horseback. They lived only for the day, recognized no rights of property, robbed or killed anyone if they thought they could get away with it, inflicted cruelty without a qualm, and endured torture without flinching." S. Morison, The Oxford History of the American People 539-540 (1965).
139
That there was tragedy, deception, barbarity, and virtually every other vice known to man in the 300-year history of the expansion of the original 13 Colonies into a Nation which now embraces more than three million square miles and 50 States cannot be denied. But in a court opinion, as a historical and not a legal matter, both settler and Indian are entitled to the benefit of the Biblical adjuration: "Judge not, that ye be not judged."
1
The Sioux territory recognized under the Treaty of September 17, 1851, see 11 Stat. 749, included all of the present State of South Dakota, and parts of what is now Nebraska, Wyoming, North Dakota, and Montana. The Powder River War is described in some detail in D. Robinson, A History of the Dakota or Sioux Indians 356-381 (1904), reprinted in 2 South Dakota Historical Collections (1904). Red Cloud's career as a warrior and statesman of the Sioux is recounted in 2 G. Hebard & E. Brininstool, The Bozeman Trail 175-204 (1922).
2
The boundaries of the reservation included approximately half the area of what is now the State of South Dakota, including all of that State west of the Missouri River save for a narrow strip in the far western portion. The reservation also included a narrow strip of land west of the Missouri and north of the border between North and South Dakota.
3
The treaty called for the construction of schools and the provision of teachers for the education of Indian children, the provision of seeds and agricultural instruments to be used in the first four years of planting, and the provision of blacksmiths, carpenters, millers, and engineers to perform work on the reservation. See 15 Stat. 637-638, 640. In addition, the United States agreed to deliver certain articles of clothing to each Indian residing on the reservation, "on or before the first day of August of each year, for thirty years." Id., at 638. An annual stipend of $10 per person was to be appropriated for all those members of the Sioux Nation who continued to engage in hunting; those who settled on the reservation to engage in farming would receive $20. Ibid. Subsistence rations of meat and flour (one pound of each per day) were to be provided for a period of four years to those Indians upon the reservation who could not provide for their own needs. Id., at 639.
4
The Fort Laramie Treaty was considered by some commentators to have been a complete victory for Red Cloud and the Sioux. In 1904 it was described as "the only instance in the history of the United States where the government has gone to war and afterwards negotiated a peace conceding everything demanded by the enemy and exacting nothing in return." Robinson, supra n. 1, at 387.
5
The history of speculation concerning the presence of gold in the Black Hills, which dated from early explorations by prospectors in the 1830's, is capsulized in D. Jackson, Custer's Gold 3-7 (1966).
6
In 1974, the Center for Western Studies completed a project compiling contemporary newspaper accounts of Custer's expedition. See H. Krause & G. Olson, Prelude to Glory (1974). Several correspondents traveled with Custer on the expedition and their dispatches were published by newspapers both in the Midwest and the East. Id., at 6.
7
See Robinson, supra n. 1, at 408-410; A. Tallent, The Black Hills 130 (1975 reprint of 1899 ed.); J. Vaughn, The Reynolds Campaign on Powder River 3-4 (1961).
The Sioux regarded Custer's expedition in itself to be a violation of the Fort Laramie Treaty. In later negotiations for cession of the Black Hills, Custer's trail through the Hills was referred to by a chief known as Fast Bear as "that thieves' road." Jackson, supra n. 5, at 24. Chroniclers of the expedition, at least to an extent, have agreed. See id., at 120; G. Manypenny, Our Indian Wards xxix, 296-297 (1972 reprint of 1880 ed.).
8
General William Tecumseh Sherman, Commanding General of the Army, as quoted in the Saint Louis Globe in 1875, described the military's task in keeping prospectors out of the Black Hills as "the same old story, the story of Adam and Eve and the forbidden fruit." Jackson, supra n. 5, at 112. In an interview with a correspondent from the Bismarck Tribune, published September 2, 1874, Custer recognized the military's obligation to keep all trespassers off the reservation lands, but stated that he would recommend to Congress "the extinguishment of the Indian title at the earliest moment practicable for military reasons." Krause & Olson, supra n. 6, at 233. Given the ambivalence of feeling among the commanding officers of the Army about the practicality and desirability of its treaty obligations, it is perhaps not surprising that one chronicler of Sioux history would describe the Government's efforts to dislodge invading settlers from the Black Hills as "feeble." F. Hans, The Great Sioux Nation 522 (1964 reprint).
9
The Report of the Allison Commission to the Secretary of the Interior is contained in the Annual Report of the Commissioner of Indian Affairs (1875), App. 146, 158-195. The unsuccessful negotiations are described in some detail in Jackson, supra n. 5, at 116-118, and in Robinson, supra n. 1, at 416-421.
10
These events are described by Manypenny, supra n. 7, at 294-321, and Robinson, supra n. 1, at 422-438.
11
In Dakota Twilight (1976), a history of the Standing Rock Sioux, Edward A. Milligan states:
"Nearly seven years had elapsed since the signing of the Fort Laramie Treaty and still the Sioux were no closer to a condition of self-support than when the treaty was signed. In the meantime the government had expended nearly thirteen million dollars for their support. The future treatment of the Sioux became a matter of serious moment, even if viewed from no higher standard than that of economics." Id., at 52.
One historian has described the ration provisions of the Fort Laramie Treaty as part of a broader reservation system designed by Congress to convert nomadic tribesmen into farmers. Hagan, The Reservation Policy: Too Little and Too Late, in Indian-White Relations: A Persistent Paradox 157-169 (J. Smith & R. Kvasnicka, eds., 1976). In words applicable to conditions on the Sioux Reservation during the years in question, Professor Hagan stated:
"The idea had been to supplement the food the Indians obtained by hunting until they could subsist completely by farming. Clauses in the treaties permitted hunting outside the strict boundaries of the reservations, but the inevitable clashes between off-reservation hunting parties and whites led this privilege to be first restricted and then eliminated. The Indians became dependent upon government rations more quickly than had been anticipated, while their conversion to agriculture lagged behind schedule.
"The quantity of food supplied by the government was never sufficient for a full ration, and the quality was frequently poor. But in view of the fact that most treaties carried no provision for rations at all, and for others they were limited to four years, the members of Congress tended to look upon rations as a gratuity that should be terminated as quickly as possible. The Indian Service and military personnel generally agreed that it was better to feed than to fight, but to the typical late nineteenth-century member of Congress, not yet exposed to doctrines of social welfare, there was something obscene about grown men and women drawing free rations. Appropriations for subsistence consequently fell below the levels requested by the secretary of the interior.
"That starvation and near-starvation conditions were present on some of the sixty-odd reservations every year for the quarter century after the Civil War is manifest." Id., at 161 (footnotes omitted).
12
The chronology of the enactment of this bill does not necessarily support the view that it was passed in reaction to Custer's defeat at the Battle of the Little Big Horn on June 25, 1876, although some historians have taken a contrary view. See Jackson, supra n. 5, at 119.
13
The commission's negotiations with the chiefs and head men is described by Robinson, supra n. 1, at 439-442. He states:
"As will be readily understood, the making of a treaty was a forced put, so far as the Indians were concerned. Defeated, disarmed, dismounted, they were at the mercy of a superior power and there was no alternative but to accept the conditions imposed upon them. This they did with as good grace as possible under all of the conditions existing." Id., at 442.
Another early chronicler of the Black Hills region wrote of the treaty's provisions in the following chauvinistic terms:
"It will be seen by studying the provisions of this treaty, that by its terms the Indians from a material standpoint lost much, and gained but little. By the first article they lose all rights to the unceded Indian territory in Wyoming from which white settlers had then before been altogether excluded; by the second they relinquish all right to the Black Hills, and the fertile valley of the Belle Fourche in Dakota, without additional material compensation; by the third conceding the right of way over the unceded portions of their reservation; by the fourth they receive such supplies only, as were provided by the treaty of 1868, restricted as to the points for receiving them. The only real gain to the Indians seems to be embodied in the fifth article of the treaty [Government's obligation to provide subsistence rations]. The Indians, doubtless, realized that the Black Hills was destined soon to slip out of their grasp, regardless of their claims, and therefore thought it best to yield to the inevitable, and accept whatever was offered them.
"They were assured of a continuance of their regular daily rations, and certain annuities in clothing each year, guaranteed by the treaty of 1868, and what more could they ask or desire, than that a living be provided for themselves, their wives, their children, and all their relations, including squaw men, indirectly, thus leaving them free to live their wild, careless, unrestrained life, exempt from all the burdens and responsibilities of civilized existence? In view of the fact that there are thousands who are obliged to earn their bread and butter by the sweat of their brows, and that have hard work to keep the wolf from the door, they should be satisfied." Tallent, supra n. 7, at 133-134.
14
The 1877 Act "ratified and confirmed" the agreement reached by the Manypenny Commission with the Sioux tribes. 19 Stat. 254. It altered the boundaries of the Great Sioux Reservation by adding some 900,000 acres of land to the north, while carving out virtually all that portion of the reservation between the one hundred and third and one hundred and fourth meridians, including the Black Hills, an area of well over 7 million acres. The Indians also relinquished their rights to hunt in the unceded lands recognized by the Fort Laramie Treaty, and agreed that three wagon roads could be cut through their reservation. Id., at 255.
In exchange, the Government reaffirmed its obligation to provide all annuities called for by the Fort Laramie Treaty, and "to provide all necessary aid to assist the said Indians in the work of civilization; to furnish to them schools and instruction in mechanical and agricultural arts, as provided for by the treaty of 1868." Id., at 256. In addition, every individual was to receive fixed quantities of beef or bacon and flour, and other foodstuffs, in the discretion of the Commissioner of Indian Affairs, which "shall be continued until the Indians are able to support themselves." Ibid. The provision of rations was to be conditioned, however, on the attendance at school by Indian children, and on the labor of those who resided on lands suitable for farming. The Government also promised to assist the Sioux in finding markets for their crops and in obtaining employment in the performance of Government work on the reservation. Ibid.
Later congressional actions having the effect of further reducing the domain of the Great Sioux Reservation are described in Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 589, 97 S.Ct. 1361, 1364, 51 L.Ed. 660 (1977).
15
See § 9 of the Act of Mar. 3, 1863, 12 Stat. 767; § 1 of the Tucker Act of Mar. 3, 1887, 24 Stat. 505.
16
The Commission determined that the fair market value of the Black Hills as of February 28, 1877, was $17.1 million. In addition, the United States was held liable for gold removed by trespassing prospectors prior to that date, with a fair market value in the ground of $450,000. The Commission determined that the Government should receive a credit for all amounts it had paid to the Indians over the years in compliance with its obligations under the 1877 Act. These amounts were to be credited against the fair market value of the lands and gold taken and interest as it accrued. The Commission decided that further proceedings would be necessary to compute the amounts to be credited and the value of the rights-of-way across the reservation that the Government also had acquired through the 1877 Act.
Chairman Kuykendall dissented in part from the Commission's judgment, arguing that the Sioux' taking claim was barred by the res judicata effect of the 1942 Court of Claims decision.
17
See United States v. Tillamooks, 341 U.S. 48, 49, 71 S.Ct. 552, 95 L.Ed. 738 (1951) (recognizing that the "traditional rule" is that interest is not to be awarded on claims against the United States absent an express statutory provision to the contrary and that the "only exception arises when the taking entitles the claimant to just compensation under the Fifth Amendment"). In United States v. Klamath Indians, 304 U.S. 119, 123, 58 S.Ct. 799, 801, 82 L.Ed. 1219 (1938), the Court stated: "The established rule is that the taking of property by the United States in the exertion of it power of eminent domain implies a promise to pay just compensation, i.e., value at the time of the taking plus an amount sufficient to produce the full equivalent of that value paid contemporaneously with the taking."
The Court of Claims also noted that subsequent to the Indian Claims Commission's judgment, Congress had enacted an amendment to 25 U.S.C. § 70a, providing generally that expenditures made by the Government "for food, rations, or provisions shall not be deemed payments on the claim." Act of Oct. 27, 1974, § 2, 88 Stat. 1499. Thus, the Government would no longer be entitled to an offset from any judgment eventually awarded the Sioux based on its appropriations for subsistence rations in the years following the passage of the 1877 Act. 207 Ct.Cl., at 240, 518 F.2d, at 1301. See n. 16, supra.
18
Judge Davis dissented with respect to the court's holding on res judicata, arguing that the Sioux had not had the opportunity to present their claim fully in 1942. 207 Ct.Cl., at 249, 518 F.2d, at 1306.
19
While affirming the Indian Claims Commission's determination that the acquisition of the Black Hills and the rights-of-way across the reservation constituted takings, the court reversed the Commission's determination that the mining of gold from the Black Hills by prospectors prior to 1877 also constituted a taking. The value of the gold, therefore, could not be considered as part of the principal on which interest would be paid to the Sioux. 220 Ct.Cl., at 466-467, 601 F.2d, at 1171-1172.
20
The Lone Wolf decision itself involved an action by tribal leaders to enjoin the enforcement of a statute that had the effect of abrogating the provisions of an earlier-enacted treaty with an Indian tribe. See Part IV-B, infra.
21
Judge Nichols concurred in the result, and all of the court's opinion except that portion distinguishing Lone Wolf. He would have held Lone Wolf § principles inapplicable to this case because Congress had not created a record showing that it had considered the compensation afforded the Sioux under the 1877 Act to be adequate consideration for the Black Hills. He did not believe that Lone Wolf could be distinguished on the ground that it involved an action for injunctive relief rather than a claim for just compensation. 220 Ct.Cl., at 474-475, 601 F.2d, at 1175-1176.
Judge Bennett, joined by Judge Kunzig, dissented. The dissenters would have read Lone Wolf broadly to hold that it was within Congress' constitutional power to dispose of tribal property without regard to good faith or the amount of compensation given. "The law we should apply is that once Congress has, through negotiation or statute, recognized the Indian tribes' rights in the property, has disposed of it, and has given value to the Indians for it, that is the end of the matter." 220 Ct.Cl., at 486, 601 F.2d, at 1182.
22
In response to a question from the bench, Government counsel stated:
"I think Congress is entitled to say, 'You may have another opportunity to litigate your lawsuit.' " Tr. of Oral Arg. 20.
23
Representative Gudger of North Carolina persistently argued the view that the amendment unconstitutionally interfered with the powers of the Judiciary. He dissented from the Committee Report in support of the amendment's enactment, stating:
"I do not feel that when the Federal Judiciary has adjudicated a matter through appellate review and no error has been found by the Supreme Court of the United States in the application by the lower court (in this instance the Court of Claims) of the doctrine of res judicata or collateral estoppel that the Congress of the United States should enact legislation which has the effect of reversing the decision of the Judiciary." H.R.Rep.No.95-529, p. 17 (1977), U.S.Code Cong. & Admin.News 1978, pp. 433, 447.
Representative Gudger stated that he could support a bill to grant a special appropriation to the Sioux Nation, acknowledging that it was for the purpose of extinguishing Congress' moral obligation arising from the Black Hills claim, "but I cannot justify in my own mind this exercise of congressional review of a judicial decision which I consider contravenes our exclusively legislative responsibility under the separation of powers doctrine." Id., at 18, U.S.Code Cong. & Admin.News 1978 at 448.
The Congressman, in the House debates, elaborated upon his views on the constitutionality of the amendment. He stated that the amendment would create "a real and serious departure from the separation-of-powers doctrine, which I think should continue to govern us and has governed us in the past." 124 Cong.Rec. 2953 (1978). He continued:
"I submit that this bill has the precise and exact effect of reversing a decision of the Court of Claims which has heretofore been sustained by the Supreme Court of the United States. Thus, it places the Congress of the United States in the position of reviewing and reversing a judicial decision in direct violation of the separation-of-powers doctrine so basic to our tripartite form of government.
"I call to your attention that, in this instance, we are not asked to change the law, applicable uniformly to all cases of like nature throughout the land, but that this bill proposes to change the application of the law with respect to one case only. In doing this, we are not legislating, we are adjudicating. Moreover, we are performing the adjudicatory func-
tion with respect to a case on which the Supreme Court of the United States has acted. Thus, in this instance, we propose to reverse the decision of the Supreme Court of our land." Ibid.
Representative Gudger's views on the effect of the amendment vis-a-vis the independent powers of the Judiciary were not shared by his colleagues. Representative Roncalio stated:
"I want to emphasize that the bill does not make a congressional determination of whether or not the United States violated the fifth amendment. It does not say that the Sioux are entitled to the interest on the $17,500,000 award. It says that the court will review the facts and law in the case and determine that question." Id., at 2954.
Representative Roncalio also informed the House that Congress in the past had enacted legislation waiving the defense of res judicata in private claims cases, and had done so twice with respect to Indian claims. Ibid. He mentioned the Act of Mar. 3, 1881, 21 Stat. 504 (which actually waived the effect of a prior award made to the Choctaw Nation by the Senate), and the Act of Feb. 7, 1925, 43 Stat. 812 (authorizing the Court of Claims and the Supreme Court to consider claims of the Delaware Tribe "de novo, upon a legal and equitable basis, and without regard to any decision, finding, or settlement heretofore had in respect of any such claims"). Both those enactments were also brought to the attention of a Senate Subcommittee in hearings on this amendment conducted during the previous legislative session. See Hearing on S.2780 before the Subcommittee on Indian Affairs of the Senate Committee on Interior and Insular Affairs, 94th Cong., 2d Sess., 16-17 (1976) (letter from Morris Thompson, Commissioner of Indian Affairs). The enactments referred to by Representative Roncalio were construed, respectively, in Choctaw Nation v. United States, 119 U.S. 1, 29-32, 7 S.Ct. 75, 91-92, 30 L.Ed. 306 (1886), and Delaware Tribe v. United States, 74 Ct.Cl. 368 (1932).
Representative Pressler also responded to Representative Gudger's interpretation of the proposed amendment, arguing that "[w]e are, indeed, here asking for a review and providing the groundwork for a review. I do not believe that we would be reviewing a decision; indeed, the same decision might be reached." 124 Cong.Rec. 2955 (1978). Earlier, Representative Meeds clearly had articulated the prevailing congressional view on the effect of the proposed amendment. After summarizing the history of the Black Hills litigation, he stated:
"I go through that rather complicated history for the purpose of point-
ing out to the Members that the purpose of this legislation is not to decide the matter on the merits. That is still for the court to do. The purpose of this legislation is only to waive the defense of res judicata and to waive this technical defense, as we have done in a number of other instances in this body, so this most important claim can get before the courts again and can be decided without a technical defense and on the merits." Id., at 2388.
See also S.Rep.No.95-112, p. 6 (1977) ("The enactment of [the amendment] is needed to waive certain legal prohibitions so that the Sioux tribal claim may be considered on its merits before an appropriate judicial forum"); H.R.Rep.No.95-529, p. 6 (1977), U.S.Code Cong. & Admin.News 1978, p. 438. ("The enactment of [the amendment] is needed to waive certain technical legal defenses so that the Sioux tribal claim may be considered on its merits before an appropriate judicial forum").
24
The joint resolution at issue in Nock also limited the amount of the judgment that the Court of Claims could award Nock to a sum that had
been established in a report of the Solicitor of the Treasury to the Senate. See 14 Stat. 608. The court rejected the Government's argument that the Constitution had not vested in Congress "such discretion to fetter or circumscribe the course of justice." See 2 Ct.Cl., at 455. The court reasoned that this limitation on the amount of the claimant's recovery was a valid exercise of Congress' power to condition waivers of the sovereign immunity of the United States. "[I]t would be enough to say that the defendants cannot be sued except with their own consent; and Congress have the same power to give this consent to a second action as they had to give it a first." Id., at 458.
Just because we have addressed our attention to the ancient Court of Claims' decision in Nock, it should not be inferred that legislative action of the type at issue here is a remnant of the far-distant past. Special jurisdictional Acts waiving affirmative defenses of the United States to legal claims, and directing the Court of Claims to resolve the merits of those claims, are legion. See Mizokami v. United States, 188 Ct.Cl. 736, 740-741, and nn. 1 and 2, 414 F.2d 1375, 1377, and nn. 1 and 2 (1969) (collecting cases). A list of cases, in addition to those discussed in the text, that have recognized or acted upon Congress' power to waive the defense of res judicata to claims against the United States follows (the list is not intended to be exhaustive): United States v. Grant, 110 U.S. 225, 3 S.Ct. 585, 28 L.Ed. 127 (1884); Lamborn & Co. v. United States, 106 Ct.Cl. 703, 724-728, 65 F.Supp. 569, 576-578 (1946); Menominee Tribe v. United States, 101 Ct.Cl. 10, 19 (1944); Richardson v. United States, 81 Ct.Cl. 948, 956-957 (1935); Delaware Tribe v. United States, 74 Ct.Cl. 368 (1932); Garrett v. United States, 70 Ct.Cl. 304, 310-312 (1930).
In Richardson, the Court of Claims observed:
"The power of Congress by special act to waive any defense, either legal or equitable, which the Government may have to a suit in this court, as it did in the Nock and Cherokee Nation cases, has never been questioned. The reports of the court are replete with cases where Congress, impressed with the equitable justice of claims which have been rejected by the court on legal grounds, has, by special act, waived defenses of the Government which prevented recovery and conferred jurisdiction on the court to again adjudicate the case. In such instances the court proceeded in conformity with the provisions of the act of reference and in cases, too numerous for
citation here, awarded judgments to claimants whose claims had previously been rejected." 81 Ct.Cl., at 957.
Two similar decisions by the United States Court of Appeals for the Eighth Circuit are of interest. Both involved the constitutionality of a joint resolution that set aside dismissals of actions brought under the World War Veterans' Act, 1924, 38 U.S.C. § 445 (1952 ed.), and authorized the reinstatement of those war-risk insurance disability claims. The Court of Appeals found no constitutional prohibition against a congressional waiver of an adjudication in the Government's favor, or against conferring upon claimants against the United States the right to have their cases heard again on the merits. See James v. United States, 8th Cir., 87 F.2d 897, 898 (1937); United States v. Hossmann, 8th Cir., 84 F.2d 808, 810 (1936). The court relied, in part, on the holding in Cherokee Nation, and the sovereign immunity rationale applied in Nock.
25
Before completing our analysis of this Court's precedents in this area, we turn to the question whether the holdings in Cherokee Nation, Nock, and Pope, might have been based on views, once held by this Court, that the Court of Claims was not, in all respects, an Art. III court, and that claims against the United States were not within Art. III's extension of "judicial Power" "to Controversies to which the United States shall be a Party." U.S.Const., Art. III, § 2, cl. 1. See Williams v. United States, 289 U.S. 553, 53 S.Ct. 751, 77 L.Ed. 1372 (1933).
Pope itself would seem to dispel any such conclusion. See 323 U.S., at 12-14, 65 S.Ct., at 22-23. Moreover, Mr. Justice Harlan's plurality opinion announcing the judgment of the Court in Glidden Co. v. Zdanok, 370 U.S. 530, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962), lays that question to rest. In Glidden, the plurality observed that "it is probably true that Congress devotes a more lively attention to the work performed by the Court of Claims, and that it has been more prone to modify the jurisdiction assigned to that court." Id., at 566, 82 S.Ct., at 1481. But they concluded that that circumstance did not render the decisions of
the Court of Claims legislative in character, nor, impliedly, did those instances of "lively attention" constitute impermissible interferences with the Court of Claims' judicial functions.
"Throughout its history the Court of Claims has frequently been given jurisdiction by special act to award recovery for breach of what would have been, on the part of an individual, at most a moral obligation. . . . Congress has waived the benefit of res judicata, Cherokee Nation v. United States, 270 U.S. 476, 486 [46 S.Ct. 428, 432, 70 L.Ed. 694], and of defenses based on the passage of time . . . .
"In doing so, as this Court has uniformly held, Congress has enlisted the aid of judicial power whose exercise is amenable to appellate review here. . . . Indeed the Court has held that Congress may for reasons adequate to itself confer bounties upon persons and, by consenting to suit, convert their moral claim into a legal one enforceable by litigation in an undoubted constitutional court. United States v. Realty Co., 163 U.S. 427 [16 S.Ct. 1120, 41 L.Ed. 215].
"The issue was settled beyond peradventure in Pope v. United States, 323 U.S. 1 [65 S.Ct. 16, 89 L.Ed. 3]. There the Court held that for Congress to direct the Court of Claims to entertain a claim theretofore barred for any legal reason from recovery—as, for instance, by the statute of limitations, or because the contract had been drafted to exclude such claims—was to invoke the use of judicial power, notwithstanding that the task might involve no more than computation of the sum due. . . . After this decision it cannot be doubted that when Congress transmutes a moral obligation into a legal one by specially consenting to suit, it authorizes the tribunal that hears the case to perform a judicial function." Id., at 566-567, 82 S.Ct., at 1481.
The Court in Glidden held that, at least since 1953, the Court of Claims has been an Art. III court. See id., at 585-589, 82 S.Ct., at 1491-1493 (opinion concurring in result). In his opinion concurring in the result, Mr. Justice Clark did not take issue with the plurality's view that suits against the United States are "Controversies to which the United States shall be a Party," within the meaning of Art. III. Compare 370 U.S., at 562-565, 82 S.Ct., at 1479-1480 (plurality opinion), with id., at 586-587, 82 S.Ct., at 1491-1492 (opinion concurring in result).
26
It should be recognized at the outset that the inquiry presented by this case is different from that confronted in the more typical of our recent "taking" decisions. E. g., Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979); Penn Central Transp. Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). In those cases the Court has sought to "determin[e] 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." Penn Central, 438 U.S., at 124, 98 S.Ct., at 2659. Here, there is no doubt that the Black Hills were "taken" from the Sioux in a way that wholly deprived them of their property rights to that land. The question presented is whether Congress was acting under circumstances in which that "taking" implied an obligation to pay just compensation, or whether it was acting pursuant to its unique powers to manage and control tribal property as the guardian of Indian welfare, in which event the Just Compensation Clause would not apply.
27
This aspect of the Lone Wolf holding, often reaffirmed, see, e. g., Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 594, 97 S.Ct. 1361, 1367, 51 L.Ed.2d 660 (1977), is not at issue in this case. The Sioux do not claim that Congress was without power to take the Black Hills from them in contravention of the Fort Laramie Treaty of 1868. They claim only that Congress could not do so inconsistently with the command of the Fifth Amendment: "nor shall private property be taken for public use, without just compensation."
28
For this reason, the Government does not here press Lone Wolf to its logical limits, arguing instead that its "strict rule" that the management and disposal of tribal lands is a political question, "has been relaxed in recent years to allow review under the Fifth Amendment rational-basis test." Brief for United States 55, n. 46. The Government relies on Delaware Tribal Business Comm. v. Weeks, 430 U.S., at 84-85, 97 S.Ct., at 918-919, (1977), and Morton v. Mancari, 417 U.S. 535, 555, 94 S.Ct. 2474, 2485, 41 L.Ed.2d 290 (1974), as establishing a rational-basis test for determining whether Congress, in a given instance, confiscated Indian property or engaged merely in its power to manage and dispose of tribal lands in the Indians' best interests. But those cases, which establish a standard of review for judging the constitutionality of Indian legislation under the Due Process Clause of the Fifth Amendment, do not provide an apt analogy for resolution of the issue presented here—whether Congress' disposition of tribal property was an exercise of its power of eminent domain or its power of guardianship. As noted earlier, n. 27, supra, the Sioux concede the constitutionality of Congress' unilateral abrogation of the Fort Laramie Treaty. They seek only a holding that the Black Hills "were appropriated by the United States in
circumstances which involved an implied undertaking by it to make just compensation to the tribe." United States v. Creek Nation, 295 U.S. 103, 111, 55 S.Ct. 681, 684, 79 L.Ed. 1331 (1935). The rational-basis test proffered by the Government would be ill-suited for use in determining whether such circumstances were presented by the events culminating in the passage of the 1877 Act.
29
Of course, it has long been held that the taking by the United States of "unrecognized" or "aboriginal" Indian title is not compensable under the Fifth Amendment. Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 285, 75 S.Ct. 313, 319, 99 L.Ed. 314 (1955). The principles we set forth today are applicable only to instances in which "Congress by treaty or other agreement has declared that thereafter Indians were to hold the lands permanently." Id., at 277, 75 S.Ct., at 316. In such instances, "compensation must be paid for subsequent taking." Id., at 277-278, 75 S.Ct., at 316.
30
An examination of this standard reveals that, contrary to the Government's assertion, the Court of Claims in this case did not base its finding of a taking solely on Congress' failure in 1877 to state affirmatively that the "assets" given the Sioux in exchange for the Black Hills were equivalent in value to the land surrendered. Rather, the court left open the possibility that, in an appropriate case, a mere assertion of congressional good faith in setting the terms of a forced surrender of treaty-protected lands could be overcome by objective indicia to the contrary. And, in like fashion, there may be instances in which the consideration provided the Indians for surrendered treaty lands was so patently adequate and fair that Congress' failure to state the obvious would not result in the finding of a compensable taking.
To the extent that the Court of Claims' standard, in this respect, departed from the original formulation of the Fort Berthold test, see 220 Ct.Cl., at 486-487, 601 F.2d, at 1182-1183 (dissenting opinion), such a departure was warranted. The Court of Claims' present formulation of the test, which takes into account the adequacy of the consideration given, does little more than reaffirm the ancient principle that the determination of the measure of just compensation for a taking of private property "is a judicial, and not a legislative, question." Monongahela Navigation Co. v. United States, 148 U.S. 312, 327, 13 S.Ct. 622, 626, 37 L.Ed. 463 (1893).
31
The 1877 Act, see supra, at 382-383, and n. 14, purported to provide the Sioux with "all necessary aid to assist the said Indians in the work of civilization," and "to furnish to them schools and instruction in mechani-
cal and agricultural arts, as provided for by the treaty of 1868." 19 Stat. 256. The Court of Claims correctly concluded that the first item "was so vague that it cannot be considered as constituting a meaningful or significant element of payment by the United States." 220 Ct.Cl., at 458, 601 F.2d, at 1166. As for the second, it "gave the Sioux nothing to which they were not already entitled [under the 1868 treaty]." Ibid.
The Government has placed some reliance in this Court on the fact that the 1877 Act extended the northern boundaries of the reservation by adding some 900,000 acres of grazing lands. See n. 14, supra. In the Court of Claims, however, the Government did "not contend . . . that the transfer of this additional land was a significant element of the consideration the United States gave for the Black Hills." 220 Ct.Cl., at 453, n. 3, 601 F.2d, at 1163, n. 3. And Congress obviously did not intend the extension of the reservation's northern border to constitute consideration for the property rights surrendered by the Sioux. The extension was effected in that article of the Act redefining the reservation's borders; it was not mentioned in the article which stated the consideration given for the Sioux' "cession of territory and rights." See 19 Stat. 255-256. Moreover, our characterizing the 900,000 acres as assets given the Sioux in consideration for the property rights they ceded would not lead us to conclude that the terms of the exchange were "so patently adequate and fair" that a compensable taking should not have been found. See n. 30, supra.
Finally, we note that the Government does not claim that the Indian Claims Commission and the Court of Claims incorrectly valued the property rights taken by the 1877 Act by failing to consider the extension of the northern border. Rather, the Government argues only that the 900,000 acres should be considered, along with the obligation to provide rations, in determining whether the Act, viewed in its entirety, constituted a good-faith effort on the part of Congress to promote the Sioux' welfare. See Brief for United States 73, and n. 58.
32
The dissenting opinion suggests, post, at 434-437, that the factual findings of the Indian Claims Commission, the Court of Claims, and now this Court, are based upon a "revisionist" view of history. The dissent fails to identify which materials quoted herein or relied upon by the Commission and the Court of Claims fit that description. The dissent's allusion to historians "writing for the purpose of having their conclusions or observations inserted in the reports of congressional committees," post, at 435, is also puzzling because, with respect to this case, we are unaware that any such historian exists.
The primary sources for the story told in this opinion are the factual findings of the Indian Claims Commission and the Court of Claims. A reviewing court generally will not discard such findings because they raise the specter of creeping revisionism, as the dissent would have it, but will do so only when they are clearly erroneous and unsupported by the record. No one, including the Government, has ever suggested that the factual findings of the Indian Claims Commission and the Court of Claims fail to meet that standard of review.
A further word seems to be in order. The dissenting opinion does not identify a single author, nonrevisionist, neorevisionist, or otherwise, who takes the view of the history of the cession of the Black Hills that the dissent prefers to adopt, largely, one assumes, as an article of faith. Rather, the dissent relies on the historical findings contained in the decision rendered by the Court of Claims in 1942. That decision, and those findings, are not before this Court today. Moreover, the holding of the Court of Claims in 1942, to the extent the decision can be read as reaching the merits of the Sioux' taking claim, was based largely on the conclusive presumption of good faith toward the Indians which that court afforded to Congress' actions of 1877. See 97 Ct.Cl., at 669-673, 685. The divergence of results between that decision and the judgment of the Court of Claims affirmed today, which the dissent would attribute to historical revisionism, see post, at 434-435, is more logically explained by the fact that the former decision was based on an erroneous legal interpretation of this Court's opinion in Lone Wolf. See Part IV-B, supra.
33
We find further support for this conclusion in Congress' 1974 amendment to § 2 of the Indian Claims Commission Act, 25 U.S.C. § 70a. See n. 17, supra. That amendment provided that in determining offsets, "expenditures for food, rations, or provisions shall not be deemed payments on the claim." The Report of the Senate Committee on Interior and Insular Affairs, which accompanied this amendment, made two points that are pertinent here. First, it noted that "[a]lthough couched in general terms, this amendment is directed to one basic objective—expediting the Indian Claims Commission's disposition of the famous Black Hills case." S.Rep.No.93-863, p. 2 (1974) U.S.Code Cong. & Admin.News 1974, pp. 6111, 6112 (incorporating memorandum prepared by the Sioux Tribes). Second, the Committee observed:
"The facts are, as the Commission found, that the United States disarmed the Sioux and denied them their traditional hunting areas in an effort to force the sale of the Black Hills. Having violated the 1868 Treaty and having reduced the Indians to starvation, the United States should not now be in the position of saying that the rations it furnished constituted payment for the land which it took. In short, the Government committed two wrongs: first, it deprived the Sioux of their livelihood; secondly, it deprived the Sioux of their land. What the United States gave back in rations should not be stretched to cover both wrongs." Id., at 4-5, U.S.Code Cong. & Admin.News 1974, p. 6115.
See also R. Billington, Introduction, in National Park Service, Soldier and Brave xiv (1963) ("The Indians suffered the humiliating defeats that forced them to walk the white man's road toward civilization. Few conquered people in the history of mankind have paid so dearly for their defense of a way of life that the march of progress had outmoded").
| 12
|
448 U.S. 438
100 S.Ct. 2752
65 L.Ed.2d 890
Tommy REID, Jr.v.State of GEORGIA.
No. 79-448.
June 30, 1980.
PER CURIAM.
1
The petitioner was indicted in the Superior Court of Fulton County, Ga., for possessing cocaine. At a hearing before trial, he moved to suppress the introduction of the cocaine as evidence against him on the ground that it had been seized from him by an agent of the federal Drug Enforcement Administration (DEA) in violation of his rights under the Fourth and Fourteenth Amendments.
2
The relevant facts were determined at the pretrial hearing and may be recounted briefly. The petitioner arrived at the Atlanta Airport on a commercial airline flight from Fort Lauderdale, Fla., in the early morning hours of August 14, 1978. The passengers left the plane in a single file and proceeded through the concourse. The petitioner was observed by an agent of the DEA, who was in the airport for the purpose of uncovering illicit commerce in narcotics. Separated from the petitioner by several persons was another man, who carried a shoulder bag like the one the petitioner carried. As they proceeded through the concourse past the baggage claim area, the petitioner occasionally looked backward in the direction of the second man. When they reached the main lobby of the terminal, the second man caught up with the petitioner and spoke briefly with him. They then left the terminal building together.
3
The DEA agent approached them outside of the building, identified himself as a federal narcotics agent, and asked them to show him their airline ticket stubs and identification, which they did. The airline tickets had been purchased with the petitioner's credit card and indicated that the men had stayed in Fort Lauderdale only one day. According to the agent's testimony, the men appeared nervous during the encounter. The agent then asked them if they would agree to return to the terminal and to consent to a search of their persons and their shoulder bags. The agent testified that the petitioner nodded his head affirmatively, and that the other responded, "Yeah, okay." As the three of them entered the terminal, however, the petitioner began to run and before he was apprehended, abandoned his shoulder bag. The bag, when recovered, was found to contain cocaine.
4
The Superior Court granted the petitioner's motion to suppress the cocaine, concluding that it had been obtained as a result of a seizure of him by the DEA agent without an articulable suspicion that he was unlawfully carrying narcotics. The Georgia Court of Appeals reversed. 149 Ga.App. 685, 255 S.E.2d 71. It held that the stop of the petitioner was permissible, citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), since the petitioner, "in a number of respects, fit a 'profile' of drug couriers compiled by the [DEA]." 149 Ga.App., at 686, 255 S.E.2d, at 72. The appellate court also concluded that the petitioner had consented to return to the terminal for a search of his person, and that after he had attempted to flee and had discarded his shoulder bag, there existed probable cause for the search of the bag.
5
The Fourth and Fourteenth Amendments' prohibition of searches and seizures that are not supported by some 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, 1877-1878, 20 L.Ed.2d 889 (1968)." United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975).* While the Court has recognized that in some circumstances a person may be detained briefly, without probable cause to arrest him, any curtailment of a person's liberty by the police must be supported at least by a reasonable and articulable suspicion that the person seized is engaged in criminal activity. See Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979); Delaware v. Prouse, 440 U.S. 648, 661, 99 S.Ct. 1391, 1400, 59 L.Ed.2d 660 (1979); United States v. Brignoni-Ponce, supra ; Adams v. Williams, 407 U.S. 143, 146-149, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972); Terry v. Ohio, supra.
6
The appellate court's conclusion in this case that the DEA agent reasonably suspected the petitioner of wrongdoing rested on the fact that the petitioner appeared to the agent to fit the so-called "drug courier profile," a somewhat informal compilation of characteristics believed to be typical of persons unlawfully carrying narcotics. Specifically, the court thought it relevant that (1) the petitioner had arrived from Fort Lauderdale, which the agent testified is a principal place of origin of cocaine sold elsewhere in the country, (2) the petitioner arrived in the early morning, when law enforcement activity is diminished, (3) he and his companion appeared to the agent to be trying to conceal the fact that they were traveling together, and (4) they apparently had no luggage other than their shoulder bags.
7
We conclude that the agent could not as a matter of law, have reasonably suspected the petitioner of criminal activity on the basis of these observed circumstances. Of the evidence relied on, only the fact that the petitioner preceded another person and occasionally looked backward at him as they proceeded through the concourse relates to their particular conduct. The other circumstances describe a very large category of presumably innocent travelers, who would be subject to virtually random seizures were the Court to conclude that as little foundation as there was in this case could justify a seizure. Nor can we agree, on this record, that the manner in which the petitioner and his companion walked through the airport reasonably could have led the agent to suspect them of wrongdoing. Although there could, of course, be circumstances in which wholly lawful conduct might justify the suspicion that criminal activity was afoot, see Terry v. Ohio, supra, 392 U.S., at 27-28, 88 S.Ct., at 1883, this is not such a case. The agent's belief that the petitioner and his companion were attempting to conceal the fact that they were traveling together, a belief that was more an "inchoate and unparticularized suspicion or 'hunch,' " 392 U.S., at 27, 88 S.Ct., at 1883, than a fair inference in the light of his experience, is simply too slender a reed to support the seizure in this case.
8
For these reasons, the judgment of the appellate court cannot be sustained insofar as it rests on the determination that the DEA agent lawfully seized the petitioner when he approached him outside the airline terminal. Accordingly, the petition for certiorari is granted, the judgment of the Georgia Court of Appeals is vacated, and the case is remanded to that court for further proceedings not inconsistent with this opinion.
9
It is so ordered.
10
Mr. Justice REHNQUIST dissents for the reasons stated by Mr. Justice STEWART in his opinion in United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). He believes that the police conduct involved did not implicate the Fourteenth or Fourth Amendment rights of the petitioners.
11
Mr. Justice POWELL, with whom THE CHIEF JUSTICE and Mr. Justice BLACKMUN join, concurring.1
12
This case is similar in many respects to United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), in which a defendant observed walking through an airport was stopped by DEA agents and asked for identification. The threshold question in Mendenhall, as here, was whether the agent's initial stop of the suspect constituted a seizure within the meaning of the Fourth Amendment. Mr. Justice STEWART, joined by Mr. Justice REHNQUIST, was of the opinion that the mere stopping of a person for identification purposes is not a seizure:
13
"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." Id., at 554, 100 S.Ct., at 1877.2
14
Thus, on the basis of facts remarkably similar to those in the present case, Mr. Justice STEWART and Mr. Justice REHNQUIST decided that no seizure had occurred.
15
My concurring opinion in Mendenhall, in which THE CHIEF JUSTICE and Mr. Justice BLACKMUN, joined, did not consider the seizure issue because it had not been raised in the courts below. Even if the stop constituted a seizure, it was my view that the DEA agents had articulable and reasonable grounds for believing that the individual was engaged in criminal activity. Therefore, they did not violate the Fourth Amendment by stopping that person for routine questioning. I expressly stated, however, that my decision not to reach the seizure issue did not necessarily indicate disagreement with the views of Mr. Justice STEWART and Mr. Justice REHNQUIST. Id., at 560, n. 1, 100 S.Ct., at 1873.3
16
The state courts, which decided this case before our decision in Mendenhall, did not consider whether the petitioner had been seized. Rather, those courts apparently assumed that the stop for routine identification questioning constituted a seizure, and addressed only the question whether the agent's actions were justified by articulable and reasonable grounds of suspicion. Because we similarly do not consider the initial seizure question in our decision today, that issue remains open for consideration by the state courts in light of the opinions in Mendenhall.
*
"Obviously, 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. 1, 19, n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See also id., at 34, 88 S.Ct., at 1879, 1886 (WHITE, J., concurring); id., at 31, 32-33, 88 S.Ct., at 1885, 1886 (HARLAN, J., concurring).
1
I agree on the basis of the fragmentary facts apparently relied upon by the DEA agents in this case, that there was no justification for a "seizure."
2
Mr. Justice STEWART also noted that " '[t]here is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets.' " 446 U.S., at 553, 100 S.Ct., at 1876, quoting Terry v. Ohio, 392 U.S. 1, 34, 88 S.Ct.1868, 1886, 20 L.Ed.2d 889 (1968) (WHITE, J., concurring). See also ante, at 440, n.
3
Mr. Justice WHITE, joined by Mr. Justice BRENNAN, Mr. Justice MARSHALL, and Mr. Justice STEVENS, filed a dissenting opinion in Mendenhall in which they concluded that the respondent had been detained in violation of the Fourth Amendment.
| 01
|
448 U.S. 607
100 S.Ct. 2844
65 L.Ed.2d 1010
INDUSTRIAL UNION DEPARTMENT, AFL-CIO, Petitioner,v.AMERICAN PETROLEUM INSTITUTE et al. Ray MARSHALL, Secretary of Labor, Petitioner, v. AMERICAN PETROLEUM INSTITUTE et al.
Nos. 78-911, 78-1036.
Argued Oct. 10, 1979.
Decided July 2, 1980.
Syllabus
The Occupational Safety and Health Act of 1970 (Act) delegates broad authority to the Secretary of Labor (Secretary) to promulgate standards to ensure safe and healthful working conditions for the Nation's workers (the Occupational Safety and Health Administration (OSHA) being the agency responsible for carrying out this authority). Section 3(8) of the Act defines an "occupational safety and health standard" as a standard that is "reasonably necessary or appropriate to provide safe or healthful employment." Where toxic materials or harmful physical agents are concerned, a standard must also comply with § 6(b)(5), which directs the Secretary to "set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity." When the toxic material or harmful physical agent to be regulated is a carcinogen, the Secretary has taken the position that no safe exposure level can be determined and that § 6(b)(5) requires him to set an exposure limit at the lowest technologically feasible level that will not impair the viability of the industries regulated. In this case, after having determined that there is a causal connection between benzene (a toxic substance used in manufacturing such products as motor fuels, solvents, detergents, and pesticides) and leukemia (a cancer of the white blood cells), the Secretary promulgated a standard reducing the permissible exposure limit on airborne concentrations of benzene from the consensus standard of 10 parts benzene per million parts of air (10 ppm) to 1 ppm, and prohibiting dermal contact with solutions containing benzene. On pre-enforcement review, the Court of Appeals held the standard invalid because it was based on findings unsupported by the administrative record. The court concluded that OSHA had exceeded its standard-setting authority because it had not been shown that the 1 ppm exposure limit was "reasonably necessary or appropriate to provide safe and healthful employment" as required by § 3(8), and that § 6(b)(5) did not give OSHA the unbridled discretion to adopt standards designed to create absolutely risk-free workplaces regardless of cost.
Held : The judgment is affirmed. Pp. 630-662; 667-671; 672-688.
581 F.2d 493, 5th Cir., affirmed.
Mr. Justice STEVENS, joined by Mr. Chief Justice BURGER, Mr. Justice STEWART, and Mr. Justice POWELL, concluded that the standard in question is invalid. Pp. 630-652, 658-659.
1
(a) The Court of Appeals was correct in refusing to enforce the 1 ppm exposure limit on the ground that it was not supported by appropriate findings. OSHA's rationale for lowering the permissible exposure limit from 10 ppm to 1 ppm was based, not on any finding that leukemia has ever been caused by exposure to 10 ppm of benzene and that it will not be caused by exposure to 1 ppm, but rather on a series of assumptions indicating that some leukemia might result from exposure to 10 ppm and that the number of cases might be reduced by lowering the exposure level to 1 ppm. Pp. 630-638.
2
(b) By empowering the Secretary to promulgate standards that are "reasonably necessary or appropriate to provide safe or healthful employment and places of employment" as required by § 3(8), the Act implies that, before promulgating any standard, the Secretary must make a finding that the workplaces in question are not safe. But "safe" is not the equivalent of "risk-free." A workplace can hardly be considered "unsafe" unless it threatens the workers with a significant risk of harm. Therefore, before the Secretary can promulgate any permanent health or safety standard, he must make a threshold finding that the place of employment is unsafe in the sense that significant risks are present and can be eliminated or lessened by a change in practices. This requirement applies to permanent standards promulgated pursuant to § 6(b)(5), as well as to other types of permanent standards, there being no reason why § 3(8)'s definition of a standard should not be deemed incorporated by reference into § 6(b)(5). Moreover, requiring the Secretary to make a threshold finding of significant risk is consistent with the scope of his regulatory power under § 6(b)(5) to promulgate standards for "toxic materials" and "harmful physical agents." This interpretation is supported by other provisions of the Act, such as § 6(g), which requires the Secretary, in determining the priority for establishing standards, to give due regard to the urgency of the need for mandatory safety and health standards for particular industries or workplaces, and § 6(b)(8), which requires the Secretary, when he substantially alters an existing consensus standard, to explain how the new rule will "better effectuate" the Act's purposes. Pp. 639-646.
3
(c) The Act's legislative history also supports the conclusion that Congress was concerned not with absolute safety, but with the elimination of significant harm. Pp. 646-652.
4
(d) Where the Secretary relied on a special policy for carcinogens that imposed the burden on industry of proving the existence of a safe level of exposure, thereby avoiding his threshold responsibility of establishing the need for more stringent standards, he exceeded his power. Pp. 658-659.
5
Mr. Justice STEVENS, joined by Mr. Chief Justice BURGER and Mr. Justice STEWART, also concluded that:
6
1. The burden was on OSHA to show, on the basis of substantial evidence, that it is at least more likely than not that long-term exposure to 10 ppm of benzene presents a significant risk of material health impairment. Here, OSHA did not even attempt to carry such burden of proof. Imposing such a burden on OSHA will not strip it of its ability to regulate carcinogens, nor will it require it to wait for deaths to occur before taking any action. The requirement that a "significant" risk be identified is not a mathematical straitjacket; OSHA is not required to support its finding that a significant risk exists with anything approaching scientific certainty; and the record in this case and OSHA's own rulings on other carcinogens indicate that there are a number of ways in which OSHA can make a rational judgment about the relative significance of the risks associated with exposure to a particular carcinogen. Pp. 652-658.
7
2. OSHA did not make the required finding with respect to the dermal contact ban that the ban was "reasonably necessary and appropriate" to remove a significant risk of harm from such contact, but rather acted on the basis of the absolute, no-risk policy that it applies to carcinogens under the assumptions not only benzene in small doses is a carcinogen but also that it can be absorbed through the skin in sufficient amounts to present a carcinogenic risk. These assumptions are not a proper substitute for the findings of significant risk of harm required by the Act. Pp. 659-662.
8
Mr. Justice POWELL, agreeing that neither the airborne concentration standard nor the dermal contact standard satisfied the Act's requirements, would not hold that OSHA did not even attempt to carry its burden of proof on the threshold question whether exposure to benzene at 10 ppm presents a significant risk to human health. He concluded that, even assuming OSHA had met such burden, the Act also requires OSHA to determine that the economic effects of its standard bear a reasonable relationship to the expected benefits. A standard is neither "reasonably necessary" nor "feasible," as required by the Act, if it calls for expenditures wholly disproportionate to the expected health and safety benefits. Here, although OSHA did find that the "substantial costs" of the benzene regulations were justified, the record contains neither adequate documentation of this conclusion nor any evidence that OSHA weighed the relevant considerations. The agency simply announced its finding of cost-justification without explaining the method by which it determined that the benefits justified the costs and their economic effects. Pp. 667-671.
9
Mr. Justice REHNQUIST would invalidate, as constituting an invalid delegation of legislative authority to the Secretary, the relevant portion of § 6(b)(5) of the Act as it applies to any toxic substance or harmful physical agent for which a safe level is, according to the Secretary, unknown or otherwise "infeasible." In the case of such substances, the language of § 6(b)(5) gives the Secretary absolutely no indication where on the continuum of relative safety he should set the standard. Nor is there anything in the legislative history, the statutory context, or any other source traditionally examined by this Court that provides specificity to the feasibility criterion in § 6(b)(5). Pp. 672-688.
10
William H. Alsup, Washington, D. C., for petitioner in No. 78-1036.
11
George H. Cohen, Washington, D. C., for petitioner in No. 78-911.
12
Edward W. Warren and Charles F. Lettow, Washington, D. C., for respondents.
13
Mr. Justice STEVENS announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE and Mr. Justice STEWART joined and in Parts I, II, III-A, III-B, III-C and III-E of which Mr. Justice POWELL joined.
14
The Occupational Safety and Health Act of 1970 (Act), 84 Stat. 1590, 29 U.S.C. § 651 et seq., was enacted for the purpose of ensuring safe and healthful working conditions for every working man and woman in the Nation. This litigation concerns a standard promulgated by the Secretary of Labor to regulate occupational exposure to benzene, a substance which has been shown to cause cancer at high exposure levels. The principal question is whether such a showing is a sufficient basis for a standard that places the most stringent limitation on exposure to benzene that is technologically and economically possible.
15
The Act delegates broad authority to the Secretary to promulgate different kinds of standards. The basic definition of an "occupational safety and health standard" is found in § 3(8), which provides:
16
"The term 'occupational safety and health standard' means a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment." 84 Stat. 1591, 29 U.S.C. § 652(8).
17
Where toxic materials or harmful physical agents are concerned, a standard must also comply with § 6(b)(5), which provides:
18
"The Secretary, in promulgating standards dealing with toxic materials or harmful physical agents under this subsection, shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life. Development of standards under this subsection shall be based upon research, demonstrations, experiments, and such other information as may be appropriate. In addition to the attainment of the highest degree of health and safety protection for the employee, other considerations shall be the latest available scientific data in the field, the feasibility of the standards, and experience gained under this and other health and safety laws." 84 Stat. 1594, 29 U.S.C. § 655(b)(5).1
19
Wherever the toxic material to be regulated is a carcinogen, the Secretary has taken the position that no safe exposure level can be determined and that § 6(b)(5) requires him to set an exposure limit at the lowest technologically feasible level that will not impair the viability of the industries regulated. In this case, after having determined that there is a causal connection between benzene and leukemia (a cancer of the white blood cells), the Secretary set an exposure limit on airborne concentrations of benzene of one part benzene per million parts of air (1 ppm), regulated dermal and eye contact with solutions containing benzene, and imposed complex monitoring and medical testing requirements on employers whose workplaces contain 0.5 ppm or more of benzene. 29 CFR §§ 1910.1028(c), (e) (1979).
20
On pre-enforcement review pursuant to 29 U.S.C. § 655(f), the United States Court of Appeals for the Fifth Circuit held the regulation invalid. American Petroleum Institute v. OSHA, 581 F.2d 493 (1978). The court concluded that the Occupational Safety and Health Administration (OSHA)2 had exceeded its standard-setting authority because it had not shown that the new benzene exposure limit was "reasonably necessary or appropriate to provide safe or healthful employment" as required by § 3(8),3 and because § 6(b)(5) does "not give OSHA the unbridled discretion to adopt standards designed to create absolutely risk-free workplaces regardless of costs."4 Reaching the two provisions together, the Fifth Circuit held that the Secretary was under a duty to determine whether the benefits expected from the new standard bore a reasonable relationship to the costs that it imposed. Id., at 503. The court noted that OSHA had made an estimate of the costs of compliance, but that the record lacked substantial evidence of any discernible benefits.5
21
We agree with the Fifth Circuit's holding that § 3(8) requires the Secretary to find, as a threshold matter, that the toxic substance in question poses a significant health risk in the workplace and that a new, lower standard is therefore "reasonably necessary or appropriate to provide safe or healthful employment and places of employment." Unless and until such a finding is made, it is not necessary to address the further question whether the Court of Appeals correctly held that there must be a reasonable correlation between costs and benefits, or whether, as the federal parties argue, the Secretary is then required by § 6(b)(5) to promulgate a standard that goes as far as technologically and economically possible to eliminate the risk.
22
Because these are unusually important cases of first impression, we have reviewed the record with special care. In this opinion, we (1) describe the benzene standard, (2) analyze the Agency's rationale for imposing a 1 ppm exposure limit, (3) discuss the controlling legal issues, and (4) comment briefly on the dermal contact limitation.
23
* Benzene is a familiar and important commodity. It is a colorless, aromatic liquid that evaporates rapidly under ordinary atmospheric conditions. Approximately 11 billion pounds of benzene were produced in the United States in 1976. Ninety-four percent of that total was produced by the petroleum and petrochemical industries, with the remainder produced by the steel industry as a byproduct of coking operations. Benzene is used in manufacturing a variety of products including motor fuels (which may contain as much as 2% benzene), solvents, detergents, pesticides, and other organic chemicals. 43 Fed.Reg. 5918 (1978).
24
The entire population of the United States is exposed to small quantities of benzene, ranging from a few parts per billion to 0.5 ppm, in the ambient air. Tr. 1029-1032. Over one million workers are subject to additional low-level exposures as a consequence of their employment. The majority of these employees work in gasoline service stations, benzene production (petroleum refineries and coking operations), chemical processing, benzene transportation, rubber manufacturing, and laboratory operations.6
25
Benzene is a toxic substance. Although it could conceivably cause harm to a person who swallowed or touched it, the principal risk of harm comes from inhalation of benzene vapors. When these vapors are inhaled, the benzene diffuses through the lungs and is quickly absorbed into the blood. Exposure to high concentrations produces an almost immediate effect on the central nervous system. Inhalation of concentrations of 20,000 ppm can be fatal within minutes; exposures in the range of 250 to 500 ppm can cause vertigo, nausea, and other symptoms of mild poisoning. 43 Fed.Reg. 5921 (1978). Persistent exposures at levels above 25-40 ppm may lead to blood deficiencies and diseases of the blood-forming organs, including aplastic anemia, which is generally fatal.
26
Industrial health experts have long been aware that exposure to benzene may lead to various types of nonmalignant diseases. By 1948 the evidence connecting high levels of benzene to serious blood disorders had become so strong that the Commonwealth of Massachusetts imposed a 35 ppm limitation on workplaces within its jurisdiction. In 1969 the American National Standards Institute (ANSI) adopted a national consensus standard of 10 ppm averaged over an 8-hour period with a ceiling concentration of 25 ppm for 10-minute periods or a maximum peak concentration of 50 ppm. Id., at 5919. In 1971, after the Occupational Safety and Health Act was passed, the Secretary adopted this consensus standard as the federal standard, pursuant to 29 U.S.C. § 655(a).7
27
As early as 1928, some health experts theorized that there might also be a connection between benzene in the workplace and leukemia.8 In the late 1960's and early 1970's a number of epidemiological studies were published indicating that workers exposed to high concentrations of benzene were subject to significantly increased risk of leukemia.9 In a 1974 report recommending a permanent standard for benzene, the National Institute for Occupational Safety and Health (NIOSH), OSHA's research arm,10 noted that these studies raised the "distinct possibility" that benzene caused leukemia. But, in light of the fact that all known cases had occurred at very high exposure levels, NIOSH declined to recommend a change in the 10 ppm standard, which it considered sufficient to protect against nonmalignant diseases. NIOSH suggested that further studies were necessary to determine conclusively whether there was a link between benzene and leukemia and, if so, what exposure levels were dangerous.11
28
Between 1974 and 1976 additional studies were published which tended to confirm the view that benzene can cause leukemia, at least when exposure levels are high.12 In an August 1976 revision of its earlier recommendation, NIOSH stated that these studies provided "conclusive" proof of a causal connection between benzene and leukemia. 1 Record, Ex. 2-5, p. 10. Although it acknowledged that none of the intervening studies had provided the dose-response data it had found lacking two years earlier, id., at 9, NIOSH nevertheless recommended that the exposure limit be set low as possible. As a result of this recommendation, OSHA contracted with a consulting firm to do a study on the costs to industry of complying with the 10 ppm standard then in effect or, alternatively, with whatever standard would be the lowest feasible. Tr. 505-506.
29
In October 1976, NIOSH sent another memorandum to OSHA, seeking acceleration of the rulemaking process and "strongly" recommending the issuance of an emergency temporary standard pursuant to § 6(c) of the Act, 29 U.S.C. § 655(c),13 for benzene and two other chemicals believed to be carcinogens. NIOSH recommended that a 1 ppm exposure limit be imposed for benzene.14 1 Record, Ex. 2-6. Apparently because of the NIOSH recommendation, OSHA asked its consultant to determine the cost of complying with a 1 ppm standard instead of with the "minimum feasible" standard. Tr. 506-507. It also issued voluntary guidelines for benzene, recommending that exposure levels be limited to 1 ppm on an 8-hour time-weighted average basis wherever possible. 2 Record, Ex. 2-44.
30
In the spring of 1976, NIOSH had selected two Pliofilm plants in St. Marys and Akron, Ohio, for an epidemiological study of the link between leukemia and benzene exposure. In April 1977, NIOSH forwarded an interim report to OSHA indicating at least a fivefold increase in the expected incidence of leukemia for workers who had been exposed to benzene at the two plants from 1940 to 1949.15 The report submitted to OSHA erroneously suggested that exposures in the two plants had generally been between zero and 15 ppm during the period in question.16 As a result of this new evidence and the continued prodding of NIOSH, 1 Record, Ex. 2-7, OSHA did issue an emergency standard effective May 21, 1977, reducing the benzene exposure limit from 10 ppm to 1 ppm, the ceiling for exposures of up to 10 minutes from 25 ppm to 5 ppm, and eliminating the authority for peak concentrations of 50 ppm. 42 Fed.Reg. 22516 (1977). In its explanation accompanying the emergency standard, OSHA stated that benzene had been shown to cause leukemia at exposures below 25 ppm and that, in light of its consultant's report, it was feasible to reduce the exposure limit to 1 ppm. Id., at 22517, 22521.
31
On May 19, 1977, the Court of Appeals for the Fifth Circuit entered a temporary restraining order preventing the emergency standard from taking effect. Thereafter, OSHA abandoned its efforts to make the emergency standard effective and instead issued a proposal for a permanent standard patterned almost entirely after the aborted emergency standard. Id., at 27452.
32
In its published statement giving notice of the proposed permanent standard, OSHA did not ask for comments as to whether or not benzene presented a significant health risk at exposures of 10 ppm or less. Rather, it asked for comments as to whether 1 ppm was the minimum feasible exposure limit.17 Ibid.. As OSHA's Deputy Director of Health Standards, Grover Wrenn, testified at the hearing, this formulation of the issue to be considered by the Agency was consistent with OSHA's general policy with respect to carcinogens.18 Whenever a carcinogen is involved, OSHA will presume that no safe level of exposure exists in the absence of clear proof establishing such a level and will accordingly set the exposure limit at the lowest level feasible.19 The proposed 1 ppm exposure limit in this case thus was established not on the basis of a proven hazard at 10 ppm, but rather on the basis of "OSHA's best judgement at the time of the proposal of the feasibility of compliance with the proposed standard by the [a]ffected industries." Tr. 30. Given OSHA's cancer policy, it was in fact irrelevant whether there was any evidence at all of a leukemia risk at 10 ppm. The important point was that there was no evidence that there was not some risk, however small, at that level. The fact that OSHA did not ask for comments on whether there was a safe level of exposure for benzene was indicative of its further view that a demonstration of such absolute safety simply could not be made.20
33
Public hearings were held on the proposed standard, commencing on July 19, 1977. The final standard was issued on February 10, 1978. 29 CFR § 1910.1028 (1979).21 In its final form, the benzene standard is designed to protect workers from whatever hazards are associated with low-level benzene exposures by requiring employers to monitor workplaces to determine the level of exposure, to provide medical examinations when the level rises above 0.5 ppm, and to institute whatever engineering or other controls are necessary to keep exposures at or below 1 ppm.
34
In the standard as originally proposed by OSHA, the employer's duty to monitor, keep records, and provide medical examinations arose whenever any benzene was present in a workplace covered by the rule.22 Because benzene is omnipresent in small quantities, NIOSH and the President's Council on Wage and Price Stability recommended the use of an "action level" to trigger monitoring and medical examination requirements. Tr. 1030-1032; App. 121-133. OSHA accepted this recommendation, providing under the final standard that, if initial monitoring discloses benzene concentrations below 0.5 ppm averaged over an 8-hour work day, no further action is required unless there is a change in the company's practices.23 If exposures are above the action level, but below the 1 ppm exposure limit, employers are required to monitor exposure levels on a quarterly basis and to provide semiannual medical examinations for their exposed employees. Neither the concept of an action level, nor the specific level selected by OSHA, is challenged in this proceeding.
35
Whenever initial monitoring indicates that employees are subject to airborne concentrations of benzene above 1 ppm averaged over an 8-hour workday, with a ceiling of 5 ppm for any 15-minute period, employers are required to modify their plants or institute work practice controls to reduce exposures within permissible limits. Consistent with OSHA's general policy, the regulation does not allow respirators to be used if engineering modifications are technologically feasible.24 Employers in this category are also required to perform monthly monitoring so long as their workplaces remain above 1 ppm, provide semiannual medical examinations to exposed workers, post signs in and restrict access to "regulated areas" where the permissible exposure limit is exceeded, and conduct employee training programs where necessary.
36
The standard also places strict limits on exposure to liquid benzene. As originally framed, the standard totally prohibited any skin or eye contact with any liquid containing any benzene. Ultimately, after the standard was challenged, OSHA modified this prohibition by excluding liquids containing less than 0.5% benzene. After three years, that exclusion will be narrowed to liquids containing less than 0.1% benzene.
37
The permanent standard is expressly inapplicable to the storage, transportation, distribution, sale, or use of gasoline or other fuels subsequent to discharge from bulk terminals.25 This exception is particularly significant in light of the fact that over 795,000 gas station employees, who are exposed to an average of 102,700 gallons of gasoline (containing up to 2% benzene) annually, are thus excluded from the protection of the standard.26
38
As presently formulated, the benzene standard is an expensive way of providing some additional protection for a relatively small number of employees. According to OSHA's figures, the standard will require capital investments in engineering controls of approximately $266 million, first-year operating costs (for monitoring, medical testing, employee training, and respirators) of $187 million to $205 million and recurring annual costs of approximately $34 million.27 43 Fed.Reg. 5934 (1978). The figures outlined in OSHA's explanation of the costs of compliance to various industries indicate that only 35,000 employees would gain any benefit from the regulation in terms of a reduction in their exposure to benzene.28 Over two-thirds of these workers (24,450) are employed in the rubber-manufacturing industry. Compliance costs in that industry are estimated to be rather low, with no capital costs and initial operating expenses estimated at only $34 million ($1,390 per employee); recurring annual costs would also be rather low, totalling less than $1 million. By contrast, the segment of the petroleum refining industry that produces benzene would be required to incur $24 million in capital costs and $600,000 in first-year operating expenses to provide additional protection for 300 workers ($82,000 per employee), while the petrochemical industry would be required to incur $20.9 million in capital costs and $1 million in initial operating expenses for the benefit of 552 employees ($39,675 per employee).29 Id., at 5936-5938.
39
Although OSHA did not quantify the benefits to each category of worker in terms of decreased exposure to benzene, it appears from the economic impact study done at OSHA's direction that those benefits may be relatively small. Thus, although the current exposure limit is 10 ppm, the actual exposures outlined in that study are often considerably lower. For example, for the period 1970-1975 the petrochemical industry reported that, out of a total of 496 employees exposed to benzene, only 53 were exposed to levels between 1 and 5 ppm and only 7 (all at the same plant) were exposed to between 5 and 10 ppm. 1 Economic Impact Statement, p. 4-6, Table 4-2, 11 Record, Ex 5A, p. 4-6, Table 4-2. See also id., Tables 4.3-4.8 (indicating sample exposure levels in various industries).
II
40
The critical issue at this point in the litigation is whether the Court of Appeals was correct in refusing to enforce the 1 ppm exposure limit on the ground that it was not supported by appropriate findings.30
41
Any discussion of the 1 ppm exposure limit must, of course, begin with the Agency's rationale for imposing that limit.31 The written explanation of the standard fills 184 pages of the printed appendix. Much of it is devoted to a discussion of the voluminous evidence of the adverse effects of exposure to benzene at levels of concentration well above 10 ppm. This discussion demonstrates that there is ample justification for regulating occupational exposure to benzene and that the prior limit of 10 ppm, with a ceiling of 25 ppm (or a peak of 50 ppm) was reasonable. It does not, however, provide direct support for the Agency's conclusion that the limit should be reduced from 10 ppm to 1 ppm.
42
The evidence in the administrative record of adverse effects of benzene exposure at 10 ppm is sketchy at best. OSHA noted that there was "no dispute" that certain nonmalignant blood disorders, evidenced by a reduction in the level of red or white cells or platelets in the blood, could result from exposures of 25-40 ppm. It then stated that several studies had indicated that relatively slight changes in normal blood values could result from exposures below 25 ppm and perhaps below 10 ppm. OSHA did not attempt to make any estimate based on these studies of how significant the risk of nonmalignant disease would be at exposures of 10 ppm or less.32 Rather, it stated that because of the lack of data concerning the linkage between low-level exposures and blood abnormalities, it was impossible to construct a dose-response curve at this time.33 OSHA did conclude, however, that the studies demonstrated that the current 10 ppm exposure limit was inadequate to ensure that no single worker would suffer a nonmalignant blood disorder as a result of benzene exposure. Noting that it is "customary" to set a permissible exposure limit by applying a safety factor of 10-100 to the lowest level at which adverse effects had been observed, the Agency stated that the evidence supported the conclusion that the limit should be set at a point "substantially less than 10 ppm" even if benzene's leukemic effects were not considered. 43 Fed.Reg. 5924-5925 (1978). OSHA did not state, however, that the nonmalignant effects of benzene exposure justified a reduction in the permissible exposure limit to 1 ppm.34
43
OSHA also noted some studies indicating an increase in chromosomal aberrations in workers chronically exposed to concentrations of benzene "probably less than 25 ppm."35 However, the Agency took no definitive position as to what these aberrations meant in terms of demonstrable health effects and stated that no quantitative dose-response relationship had yet been established. Under these circumstances, chromosomal effects were categorized by OSHA as an "adverse biological event of serious concern which may pose or reflect a potential health risk and as such, must be considered in the larger purview of adverse health effects associated with benzene." Id., at 5932-5934.
44
With respect to leukemia, evidence of an increased risk (i. e., a risk greater than that borne by the general population) due to benzene exposures at or below 10 ppm was even sketchier. Once OSHA acknowledged that the NIOSH study it had relied upon in promulgating the emergency standard did not support its earlier view that benzene had been shown to cause leukemia at concentrations below 25 ppm, see 2853, supra, there was only one study that provided any evidence of such an increased risk. That study, conducted by the Dow Chemical Co., uncovered three leukemia deaths, versus 0.2 expected deaths, out of a population of 594 workers; it appeared that the three workers had never been exposed to more than 2 to 9 ppm of benzene. The authors of the study, however, concluded that it could not be viewed as proof of a relationship between low-level benzene exposure and leukemia because all three workers had probably been occupationally exposed to a number of other potentially carcinogenic chemicals at other points in their careers and because no leukemia deaths had been uncovered among workers who had been exposed to much higher levels of benzene. In its explanation of the permanent standard, OSHA stated that the possibility that these three leukemias had been caused by benzene exposure could not be ruled out and that the study, although not evidence of an increased risk of leukemia at 10 ppm, was therefore "consistent with the findings of many studies that there is an excess leukemia risk among benzene exposed employees." 43 Fed.Reg. 5928 (1978). The Agency made no finding that the Dow study, any other empirical evidence, or any opinion testimony demonstrated that exposure to benzene at or below the 10 ppm level had ever in fact caused leukemia. See 581 F.2d, at 503, where the Court of Appeals noted that OSHA was "unable to point to any empirical evidence documenting a leukemia risk at 10 ppm . . . ."
45
In the end OSHA's rationale for lowering the permissible exposure limit to 1 ppm was based, not on any finding that leukemia has ever been caused by exposure to 10 ppm of benzene and that it will not be caused by exposure to 1 ppm, but rather on a series of assumptions indicating that some leukemias might result from exposure to 10 ppm and that the number of cases might be reduced by reducing the exposure level to 1 ppm. In reaching that result, the Agency first unequivocally concluded that benzene is a human carcinogen.36 Second, it concluded that industry had failed to prove that there is a safe threshold level of exposure to benzene below which no excess leukemia cases would occur. In reaching this conclusion OSHA rejected industry contentions that certain epidemiological studies indicating no excess risk of leukemia among workers exposed at levels below 10 ppm were sufficient to establish that the threshold level of safe exposure was at or above 10 ppm.37 It also rejected an industry witness' testimony that a dose-response curve could be constructed on the basis of the reported epidemiological studies and that this curve indicated that reducing the permissible exposure limit from 10 to 1 ppm would prevent at most one leukemia and one other cancer death every six years.38
46
Third, the Agency applied its standard policy with respect to carcinogens,39 concluding that, in the absence of definitive proof of a safe level, it must be assumed that any level above zero presents some increased risk of cancer.40 As the federal parties point out in their brief, there are a number of scientists and public health specialists who subscribe to this view, theorizing that a susceptible person may contract cancer from the absorption of even one molecule of a carcinogen like benzene. Brief for Federal Parties 18-19.41
47
Fourth, the Agency reiterated its view of the Act, stating that it was required by § 6(b)(5) to set the standard either at the level that has been demonstrated to be safe or at the lowest level feasible, whichever is higher. If no safe level is established, as in this case, the Secretary's interpretation of the statute automatically leads to the selection of an exposure limit that is the lowest feasible.42 Because of benzene's importance to the economy, no one has ever suggested that it would be feasible to eliminate its use entirely, or to try to limit exposures to the small amounts that are omnipresent. Rather, the Agency selected 1 ppm as a workable exposure level, see n. 14, supra, and then determined that compliance with that level was technologically feasible and that "the economic impact of . . . [compliance] will not be such as to threaten the financial welfare of the affected firms or the general economy." 43 Fed.Reg. 5939 (1978). It therefore held that 1 ppm was the minimum feasible exposure level within the meaning of § 6(b)(5) of the Act.
48
Finally, although the Agency did not refer in its discussion of the pertinent legal authority to any duty to identify the anticipated benefits of the new standard, it did conclude that some benefits were likely to result from reducing the exposure limit from 10 ppm to 1 ppm. This conclusion was based, again, not on evidence, but rather on the assumption that the risk of leukemia will decrease as exposure levels decrease. Although the Agency had found it impossible to construct a dose-response curve that would predict with any accuracy the number of leukemias that could be expected to result from exposures at 10 ppm, at 1 ppm, or at any intermediate level, it nevertheless "determined that the benefits of the proposed standard are likely to be appreciable."43 43 Fed.Reg. 5941 (1978). In light of the Agency's disavowal of any ability to determine the numbers of employees likely to be adversely affected by exposures of 10 ppm, the Court of Appeals held this finding to be unsupported by the record. 581 F.2d, at 503.44
49
It is noteworthy that at no point in its lengthy explanation did the Agency quote or even cite § 3(8) of the Act. It made no finding that any of the provisions of the new standard were "reasonably necessary or appropriate to provide safe or healthful employment and places of employment." Nor did it allude to the possibility that any such finding might have been appropriate.
III
50
Our resolution of the issues in these cases turns, to a large extent, on the meaning of and the relationship between § 3(8), which defines a health and safety standard as a standard that is "reasonably necessary and appropriate to provide safe or healthful employment," and § 6(b)(5), which directs the Secretary in promulgating a health and safety standard for toxic materials to "set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity . . . ."
51
In the Government's view, § 3(8)'s definition of the term "standard" has no legal significance or at best merely requires that a standard not be totally irrational. It takes the position that § 6(b)(5) is controlling and that it requires OSHA to promulgate a standard that either gives an absolute assurance of safety for each and every worker or reduces exposures to the lowest level feasible. The Government interprets "feasible" as meaning technologically achievable at a cost that would not impair the viability of the industries subject to the regulation. The respondent industry representatives, on the other hand, argue that the Court of Appeals was correct in holding that the "reasonably necessary and appropriate" language of § 3(8), along with the feasibility requirement of § 6(b)(5), requires the Agency to quantify both the costs and the benefits of a proposed rule and to conclude that they are roughly commensurate.
52
In our view, it is not necessary to decide whether either the Government or industry is entirely correct. For we think it is clear that § 3(8) does apply to all permanent standards promulgated under the Act and that it requires the Secretary, before issuing any standard, to determine that it is reasonably necessary and appropriate to remedy a significant risk of material health impairment. Only after the Secretary has made the threshold determination that such a risk exists with respect to a toxic substance, would it be necessary to decide whether § 6(b)(5) requires him to select the most protective standard he can consistent with economic and technological feasibility, or whether, as respondents argue, the benefits of the regulation must be commensurate with the costs of its implementation. Because the Secretary did not make the required threshold finding in these cases, we have no occasion to determine whether costs must be weighed against benefits in an appropriate case.
A.
53
Under the Government's view, § 3(8), if it has any substantive content at all,45 merely requires OSHA to issue standards that are reasonably calculated to produce a safer or more healthy work environment. Tr. of Oral Arg. 18, 20. Apart from this minimal requirement of rationality, the Government argues that § 3(8) imposes no limits on the Agency's power, and thus would not prevent it from requiring employers to do whatever would be "reasonably necessary" to eliminate all risks of any harm from their workplaces.46 With respect to toxic substances and harmful physical agents, the Government takes an even more extreme position. Relying on § 6(b)(5)'s direction to set a standard "which most adequately assures . . . that no employee will suffer material impairment of health or functional capacity," the Government contends that the Secretary is required to impose standards that either guarantee workplaces that are free from any risk of material health impairment, however small, or that come as close as possible to doing so without ruining entire industries.
54
If the purpose of the statute were to eliminate completely and with absolute certainty any risk of serious harm, we would agree that it would be proper for the Secretary to interpret §§ 3(8) and 6(b)(5) in this fashion. But we think it is clear that the statute was not designed to require employers to provide absolutely risk-free workplaces whenever it is technologically feasible to do so, so long as the cost is not great enough to destroy an entire industry. Rather, both the language and structure of the Act, as well as its legislative history, indicate that it was intended to require the elimination, as far as feasible, of significant risks of harm.
B
55
By empowering the Secretary to promulgate standards that are "reasonably necessary or appropriate to provide safe or healthful employment and places of employment," the Act implies that, before promulgating any standard, the Secretary must make a finding that the workplaces in question are not safe. But "safe" is not the equivalent of "risk-free." There are many activities that we engage in every day—such as driving a car or even breathing city air—that entail some risk of accident or material health impairment; nevertheless, few people would consider these activities "unsafe." Similarly, a workplace can hardly be considered "unsafe" unless it threatens the workers with a significant risk of harm.
56
Therefore, before he can promulgate any permanent health or safety standard, the Secretary is required to make a threshold finding that a place of employment is unsafe—in the sense that significant risks are present and can be eliminated or lessened by a change in practices. This requirement applies to permanent standards promulgated pursuant to § 6(b)(5), as well as to other types of permanent standards. For there is no reason why § 3(8)'s definition of a standard should not be deemed incorporated by reference into § 6(b)(5). The standards promulgated pursuant to § 6(b)(5) are just one species of the genus of standards governed by the basic requirement. That section repeatedly uses the term "standard" without suggesting any exception from, or qualification of, the general definition; on the contrary, its directs the Secretary to select "the standard"—that is to say, one of various possible alternatives that satisfy the basic definition in § 3(8) that is most protective.47 Moreover, requiring the Secretary to make a threshold finding of significant risk is consistent with the scope of the regulatory power granted to him by § 6(b)(5), which empowers the Secretary to promulgate standards, not for chemicals and physical agents generally, but for "toxic materials" and "harmful physical agents."48
57
This interpretation of §§ 3(8) and 6(b)(5) is supported by the other provisions of the Act. Thus, for example, § 6(g) provides in part that
58
"[i]n determining the priority for establishing standards under this section, the Secretary shall give due regard to the urgency of the need for mandatory safety and health standards for particular industries, trades, crafts, occupations, businesses, workplaces or work environments."
59
The Government has expressly acknowledged that this section requires the Secretary to undertake some cost-benefit analysis before he promulgates any standard, requiring the elimination of the most serious hazards first.49 If such an analysis must precede the promulgation of any standard, it seems manifest that Congress intended, at a bare minimum, that the Secretary find a significant risk of harm and therefore a probability of significant benefits before establishing a new standard.
60
Section 6(b)(8) lends additional support to this analysis. That subsection requires that, when the Secretary substantially alters an existing consensus standard, he must explain how the new rule will "better effectuate" the purposes of the Act.50 If this requirement was intended to be more than a meaningless formality, it must be read to impose upon the Secretary the duty to find that an existing national consensus standard is not adequate to protect workers from a continuing and significant risk of harm. Thus, in this case, the Secretary was required to find that exposures at the current permissible exposure level of 10 ppm present a significant risk of harm in the workplace.
61
In the absence of a clear mandate in the Act, it is unreasonable to assume that Congress intended to give the Secretary the unprecedented power over American industry that would result from the Government's view of §§ 3(8) and 6(b)(5), coupled with OSHA's cancer policy. Expert testimony that a substance is probably a human carcinogen—either because it has caused cancer in animals or because individuals have contracted cancer following extremely high exposures—would justify the conclusion that the substance poses some risk of serious harm no matter how minute the exposure and no matter how many experts testified that they regarded the risk as insignificant. That conclusion would in turn justify pervasive regulation limited only by the constraint of feasibility. In light of the fact that there are literally thousands of substances used in the workplace that have been identified as carcinogens or suspect carcinogens, the Government's theory would give OSHA power to impose enormous costs that might produce little, if any, discernible benefit.51
62
If the Government was correct in arguing that neither § 3(8) nor § 6(b)(5) requires that the risk from a toxic substance be quantified sufficiently to enable the Secretary to characterize it as significant in an understandable way, the statute would make such a "sweeping delegation of legislative power" that it might be unconstitutional under the Court's reasoning in A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 539, 55 S.Ct. 837, 847, 79 L.Ed. 1570, and Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446. A construction of the statute that avoids this kind of open-ended grant should certainly be favored.
C
63
The legislative history also supports the conclusion that Congress was concerned, not with absolute safety, but with the elimination of significant harm. The examples of industrial hazards referred to in the Committee hearings and debates all involved situations in which the risk was unquestionably significant. For example, the Senate Committee on Labor and Public Welfare noted that byssinosis, a disabling lung disease caused by breathing cotton dust, affected as many as 30% of the workers in carding or spinning rooms in some American cotton mills and that as many as 100,000 active or retired workers were then suffering from the disease. It also noted that statistics indicated that 20,000 out of 50,000 workers who had performed insulation work were likely to die of asbestosis, lung cancer, or mesothelyioma as a result of breathing asbestos fibers. Another example given of an occupational health hazard that would be controlled by the Act was betanaphthylamine, a "chemical so toxic that any exposure at all is likely to cause the development of bladder cancer over a period of years." S.Rep.No.91-1282, pp. 3-4 (1970); Legislative History of the Occupational Safety and Health Act of 1970 (Committee Print compiled for the Senate Committee on Labor and Public Welfare), pp. 143-144 (1971) (hereafter Leg.Hist.); U.S.Code Cong. & Admin.News 1970, pp. 5177, 5180.
64
Moreover, Congress specifically amended § 6(b)(5) to make it perfectly clear that it does not require the Secretary to promulgate standards that would assure an absolutely risk-free workplace. Section 6(b)(5) of the initial Committee bill provided that
65
"[t]he Secretary, in promulgating standards under this subsection, shall set the standard which most adequately and feasibly assures, on the basis of the best available evidence, that no employee will suffer any impairment of health or functional capacity, or diminished life expectancy even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life." (Emphasis supplied.) S. 2193, 91st Cong., 2d Sess., p. 39 (1970), Leg.Hist. 242.
66
On the floor of the Senate, Senator Dominick questioned the wisdom of this provision, stating:
67
"How in the world are we ever going to live up to that? What are we going to do about a place in Florida where mosquitoes are getting at the employee—perish the thought that there may be mosquitoes in Florida? But there are black flies in Minnesota and Wisconsin. Are we going to say that if employees get bitten by those for the rest of their lives they will not have been done any harm at all? Probably they will not be, but do we know?" 116 Cong.Rec. 36522 (1970), Leg.Hist. 345.
68
He then offered an amendment deleting the entire subsection.52 After discussions with the sponsors of the Committee bill, Senator Dominick revised his amendment. Instead of deleting the first sentence of § 6(b)(5) entirely, his new amendment limited the application of that subsection to toxic materials and harmful physical agents and changed "any" impairment of health to "material" impairment.53 In discussing this change, Senator Dominick noted that the Committee's bill read as if a standard had to "assure that, no matter what anybody was doing, the standard would protect him for the rest of his life against any foreseeable hazard." Such an "unrealistic standard," he stated, had not been intended by the sponsors of the bill. Rather, he explained that the intention of the bill, as implemented by the amendment, was to require the Secretary
69
"to use his best efforts to promulgate the best available standards, and in so doing, . . . he should take into account that anyone working in toxic agents and physical agents which might be harmful may be subjected to such conditions for the rest of his working life, so that we can get at something which might not be toxic now, if he works in it a short time, but if he works in it the rest of his life might be very dangerous; and we want to make sure that such things are taken into consideration in establishing standards." 116 Cong.Rec., at 37622-37623, Leg.Hist. 502-503.54
70
Senator Williams, one of the sponsors of the Committee bill, agreed with the interpretation, and the amendment was adopted.
71
In their reply brief the federal parties argue that the Dominick amendment simply means that the Secretary is not required to eliminate threats of insignificant harm; they argue that § 6(b)(5) still requires the Secretary to set standards that ensure that not even one employee will be subject to any risk of serious harm—no matter how small that risk may be.55 This interpretation is at odds with Congress' express recognition of the futility of trying to make all workplaces totally risk-free. Moreover, not even OSHA follows this interpretation of § 6(b)(5) to its logical conclusion. Thus, if OSHA is correct that the only no-risk level for leukemia due to benzene exposure is zero and if its interpretation of § 6(b)(5) is correct, OSHA should have set the exposure limit as close to zero as feasible. But OSHA did not go about its task in that way. Rather, it began with a 1 ppm level, selected at least in part to ensure that employers would not be required to eliminate benzene concentrations that were little greater than the so-called "background" exposures experienced by the population at large. See n. 14, supra. Then, despite suggestions by some labor unions that it was feasible for at least some industries to reduce exposures to well below 1 ppm,56 OSHA decided to apply the same limit to all, largely as a matter of administrative convenience. 43 Fed.Reg. 5947 (1978).
72
OSHA also deviated from its own interpretation of § 6(b)(5) in adopting an action level of 0.5 ppm below which monitoring and medical examinations are not required. In light of OSHA's cancer policy, it must have assumed that some employees would be at risk because of exposures below 0.5 ppm. These employees would thus presumably benefit from medical examinations, which might uncover any benzene-related problems. OSHA's consultant advised the Agency that it was technologically and economically feasible to require that such examinations be provided. Nevertheless, OSHA adopted an action level, largely because the insignificant benefits of giving such examinations and performing the necessary monitoring did not justify the substantial cost.57
73
OSHA's concessions to practicality in beginning with a 1 ppm exposure limit and using an action level concept implicitly adopt an interpretation of the statute as not requiring regulation of insignificant risks.58 It is entirely consistent with this interpretation to hold that the Act also requires the Agency to limit its endeavors in the standard-setting area to eliminating significant risks of harm.
74
Finally, with respect to the legislative history, it is important to note that Congress repeatedly expressed its concern about allowing the Secretary to have too much power over American industry. Thus, Congress refused to give the Secretary the power to shut down plants unilaterally because of an imminent danger, see Whirlpool Corp. v. Marshall, 445 U.S. 1, 100 S.Ct. 883, 63 L.Ed.2d 154, and narrowly circumscribed the Secretary's power to issue temporary emergency standards.59 This effort by Congress to limit the Secretary's power is not consistent with a view that the mere possibility that some employee somewhere in the country may confront some risk of cancer is a sufficient basis for the exercise of the Secretary's power to require the expenditure of hundreds of millions of dollars to minimize that risk.
D
75
Given the conclusion that the Act empowers the Secretary to promulgate health and safety standards only where a significant risk of harm exists, the critical issue becomes how to define and allocate the burden of proving the significance of the risk in a case such as this, where scientific knowledge is imperfect and the precise quantification of risks is therefore impossible. The Agency's position is that there is substantial evidence in the record to support its conclusion that there is no absolutely safe level for a carcinogen and that, therefore, the burden is properly on industry to prove, apparently beyond a shadow of a doubt, that there is a safe level for benzene exposure. The Agency argues that, because of the uncertainties in this area, any other approach would render it helpless, forcing it to wait for the leukemia deaths that it believes are likely to occur60 before taking any regulatory action.
76
We disagree. As we read the statute, the burden was on the Agency to show, on the basis of substantial evidence, that it is at least more likely than not that long-term exposure to 10 ppm of benzene presents a significant risk of material health impairment. Ordinarily, it is the proponent of a rule or order who has the burden of proof in administrative proceedings. See 5 U.S.C. § 556(d). In some cases involving toxic substances, Congress has shifted the burden of proving that a particular substance is safe onto the party opposing the proposed rule.61 The fact that Congress did not follow this course in enacting the Occupational Safety and Health Act indicates that it intended the Agency to bear the normal burden of establishing the need for a proposed standard.
77
In this case OSHA did not even attempt to carry its burden of proof. The closest it came to making a finding that benzene presented a significant risk of harm in the workplace was its statement that the benefits to be derived from lowering the permissible exposure level from 10 to 1 ppm were "likely" to be "appreciable." The Court of Appeals held that this finding was not supported by substantial evidence. Of greater importance, even if it were supported by substantial evidence, such a finding would not be sufficient to satisfy the Agency's obligations under the Act.
78
The inadequacy of the Agency's findings can perhaps be illustrated best by its rejection of industry testimony that a dose-response curve can be formulated on the basis of current epidemiological evidence and that, even under the most conservative extrapolation theory, current exposure levels would cause at most two deaths out of a population of about 30,000 workers every six years. See n. 38, supra. In rejecting this testimony, OSHA made the following statement:
79
"In the face of the record evidence of numerous actual deaths attributable to benzene-induced leukemia and other fatal blood diseases, OSHA is unwilling to rely on the hypothesis that at most two cancers every six years would be prevented by the proposed standard. By way of example, the Infante study disclosed seven excess leukemia deaths in a population of about 600 people over a 25-year period. While the Infante study involved higher exposures then those currently encountered, the incidence rates found by Infante, together with the numerous other cases reported in the literature of benzene leukemia and other fatal blood diseases, make it difficult for OSHA to rely on the [witness'] hypothesis to assure the statutorily mandated protection of employees. In any event, due to the fact that there is no safe level of exposure to benzene and that it is impossible to precisely quantify the anticipated benefits, OSHA must select the level of exposure which is most protective of exposed employees." 43 Fed.Reg. 5941 (1978).
80
There are three possible interpretations of OSHA's stated reason for rejecting the witness' testimony: (1) OSHA considered it probable that a greater number of lives would be saved by lowering the standard from 10 ppm; (2) OSHA thought that saving two lives every six years in a work force of 30,000 persons is a significant savings that makes it reasonable and appropriate to adopt a new standard; or (3) even if the small number is not significant and even if the savings may be even smaller, the Agency nevertheless believed it had a statutory duty to select the level of exposure that is most protective of the exposed employees if it is economically and technologically feasible to do so. Even if the Secretary did not intend to rely entirely on this third theory, his construction of the statute would make it proper for him to do so. Moreover, he made no express findings of fact that would support his 1 ppm standard on any less drastic theory. Under these circumstances, we can hardly agree with the Government that OSHA discharged its duty under the Act.
81
Contrary to the Government's contentions, imposing a burden on the Agency of demonstrating a significant risk of harm will not strip it of its ability to regulate carcinogens, nor will it require the Agency to wait for deaths to occur before taking any action. First, the requirement that a "significant" risk be identified is not a mathematical straitjacket. It is the Agency's responsibility to determine, in the first instance, what it considers to be a "significant" risk. Some risks are plainly acceptable and others are plainly unacceptable. If, for example, the odds are one in a billion that a person will die from cancer by taking a drink of chlorinated water, the risk clearly could not be considered significant. On the other hand, if the odds are one in a thousand that regular inhalation of gasoline vapors that are 2% benzene will be fatal, a reasonable person might well consider the risk significant and take appropriate steps to decrease or eliminate it. Although the Agency has no duty to calculate the exact probability of harm, it does have an obligation to find that a significant risk is present before it can characterize a place of employment as "unsafe."62
82
Second, OSHA is not required to support its finding that a significant risk exists with anything approaching scientific certainty. Although the Agency's findings must be supported by substantial evidence, 29 U.S.C. § 655(f), § 6(b)(5) specifically allows the Secretary to regulate on the basis of the "best available evidence." As several Courts of Appeals have held, this provision requires a reviewing court to give OSHA some leeway where its findings must be made on the frontiers of scientific knowledge. See Industrial Union Dept., AFL-CIO v. Hodgson, 162 U.S.App.D.C. 331, 340, 499 F.2d 467, 476 (1974); Society of the Plastics Industry, Inc. v. OSHA, 509 F.2d 1301, 1308 (CA2 1975), cert. denied, 421 U.S. 992, 95 S.Ct. 1998, 44 L.Ed.2d 482. Thus, so long as they are supported by a body of reputable scientific thought, the Agency is free to use conservative assumptions in interpreting the data with respect to carcinogens, risking error on the side of overprotection rather than underprotection.63
83
Finally, the record in this case and OSHA's own rulings on other carcinogens indicate that there are a number of ways in which the Agency can make a rational judgment about the relative significance of the risks associated with exposure to a particular carcinogen.64
84
It should also be noted that, in setting a permissible exposure level in reliance on less-than-perfect methods, OSHA would have the benefit of a backstop in the form of monitoring and medical testing. Thus, if OSHA properly determined that the permissible exposure limit should be set at 5 ppm, it could still require monitoring and medical testing for employees exposed to lower levels.65 By doing so, it could keep a constant check on the validity of the assumptions made in developing the permissible exposure limit, giving it a sound evidentiary basis for decreasing the limit if it was initially set too high.66 Moreover, in this way it could ensure that workers who were unusually susceptible to benzene could be removed from exposure before they had suffered any permanent damage.67
E
85
Because our review of these cases has involved a more detailed examination of the record than is customary, it must be emphasized that we have neither made any factual determinations of our own, nor have we rejected any factual findings made by the Secretary. We express no opinion on what factual findings this record might support, either on the basis of empirical evidence or on the basis of expert testimony; nor do we express any opinion on the more difficult question of what factual determinations would warrant a conclusion that significant risks are present which make promulgation of a new standard reasonably necessary or appropriate. The standard must, of course, be supported by the findings actually made by the Secretary, not merely by findings that we believe he might have made.
86
In this case the record makes it perfectly clear that the Secretary relied squarely on a special policy for carcinogens that imposed the burden on industry of proving the existence of a safe level of exposure, thereby avoiding the Secretary's threshold responsibility of establishing the need for more stringent standards. In so interpreting his statutory authority, the Secretary exceeded his power.
IV
87
Throughout the administrative proceedings, the dermal contact issue received relatively little attention. In its proposed rule OSHA recommended a total ban on skin and eye contact with liquid benzene on the basis of its policy that "in dealing with a carcinogen, all potential routes of exposure (i. e., inhalation, ingestion, and skin absorption) [should] be limited to the extent feasible." 43 Fed.Reg. 5948 (1978). There was little opposition to this requirement at the hearing on the proposed rule, apparently because the proposed rule also excluded from both the permissible exposure level and the dermal contact ban work operations involving liquid mixtures containing 1% (and after one year, 0.1%) or less benzene.
88
In its final standard, however, OSHA eliminated the percentage exclusion for liquid benzene, on the ground that there was no predictable correlation between the percentage of benzene in a liquid and the airborne exposure arising from it. See n. 22, supra. Although the extent to which liquid benzene is absorbed through the skin is concededly unknown, OSHA also refused to exempt any liquids, no matter how little benzene they contained, from the ban on dermal contact. In support of this position it stated that there was no evidence to "suggest that the absorption rate depends on the amount of benzene present in the liquid." 43 Fed.Reg. 5948-5949 (1978).
89
After the permanent standard was promulgated, OSHA received a number of requests from various industries that the percentage exclusion for liquids containing small amounts of benzene be reinstated. Those concerned with airborne exposures argued that they should not be required to monitor workplaces simply because they handled petroleum-based products in which benzene is an unavoidable contaminant. Others concerned with the dermal contact ban made similar arguments. In particular, tire manufacturers argued that it was impossible for them to comply with the ban because gloves cannot be worn during certain tire-building operations in which solvents are used and solvents containing absolutely no benzene are not commercially available.
90
Because of these requests, OSHA held a new series of hearings and promulgated an amendment to the rule, reinstating the percentage exclusion, but lowering it from the proposed 1% to 0.5%. The Agency did, however, provide for a 3-year grace period before the exclusion dropped to 0.1%, rather than the one year that had originally been proposed. In explaining its amendment, OSHA reiterated its policy with respect to carcinogens, stating that, because there is no absolutely safe level for any type of exposure, exposures by whatever route must be limited to the extent feasible. For airborne exposures, a zero permissible exposure limit had not been feasible. However, in most industries a ban on any dermal contact was feasible since compliance could be achieved simply by the use of protective clothing, such as impermeable gloves. The Agency recognized that the dermal contact ban could present a problem for tire manufacturers, but stated that the percentage exclusion would alleviate the problem, because solvents containing 0.5% or less benzene were available in sufficient quantities. Although it noted that solvents containing 0.1% or less benzene were not then available in quantity, the Agency stated that a 3-year grace period would be sufficient to "allow time for increased production of solvents containing lower amounts of benzene and for development and evaluation of alternative methods of compliance with the standard's dermal provision." Id., at 27968-27969.
91
The Court of Appeals struck down the dermal contact prohibition on two grounds. First, it held that the record did not support a finding that the ban would result in quantifiable benefits in terms of a reduced leukemia risk; therefore, it was not "reasonably necessary" within the meaning of § 3(8) of the Act. Second, the court held that the Agency's conclusion that benzene may be absorbed through the skin was not based on the best available evidence as required by § 6(b)(5). 581 F.2d, at 505-506. On the second ground, the court noted that the evidence on the issue of absorption of benzene through the skin was equivocal, with some studies indicating that it could be absorbed and some indicating that it could not. All of these studies were relatively old and the only expert who had testified on the issue stated that a simple test was now available to determine, with a great deal of accuracy, whether and to what extent absorption will result. In light of § 6(b)(5), which requires the Agency to promulgate standards on the basis of the "best available evidence" and "the latest available scientific data in the field," the court held that where there is uncontradicted testimony that a simple test will resolve the issue, the Agency is required to acquire that information before "promulgating regulations which would require an established industry to change long-followed work processes that are not demonstrably unsafe." 581 F.2d, at 508.
92
While the court below may have been correct in holding that, under the peculiar circumstances of this case, OSHA was required to obtain more information, there is no need for us to reach that issue. For, in order to justify a ban on dermal contact, the Agency must find that such a ban is "reasonably necessary and appropriate" to remove a significant risk of harm from such contact. The Agency did not make such a finding, but rather acted on the basis of the absolute, no-risk policy that it applies to carcinogens. Indeed, on this issue the Agency's position is even more untenable, inasmuch as it was required to assume not only that benzene in small doses is a carcinogen, but also that it can be absorbed through the skin in sufficient amounts to present a carcinogenic risk. These assumptions are not a proper substitute for the findings of a significant risk of harm required by the Act.
93
The judgment of the Court of Appeals remanding the petition for review to the Secretary for further proceedings is affirmed.
94
It is so ordered.
95
Mr. Chief Justice BURGER, concurring.
96
These cases press upon the Court difficult unanswered questions on the frontiers of science and medicine. The statute and the legislative history give ambiguous signals as to how the Secretary is directed to operate in this area. The opinion by Mr. Justice STEVENS takes on a difficult task to decode the message of the statute as to guidelines for administrative action.
97
To comply with statutory requirements, the Secretary must bear the burden of "finding" that a proposed health and safety standard is "reasonably necessary or appropriate to provide safe or healthful employment and places of employment." This policy judgment entails the subsidiary finding that the pre-existing standard presents a "significant risk" of material health impairment for a worker who spends his entire employment life in a working environment where exposure remains at maximum permissible levels. The Secretary's factual finding of "risk" must be "quantified sufficiently to enable the Secretary to characterize it as significant in an understandable way." Ante, at 646. Precisely what this means is difficult to say. But because these mandated findings were not made by the Secretary, I agree that the 1 ppm benzene standard must be invalidated. However, I would stress the differing functions of the courts and the administrative agency with respect to such health and safety regulation.
98
The Congress is the ultimate regulator, and the narrow function of the courts is to discern the meaning of the statute and the implementing regulations with the objective of ensuring that in promulgating health and safety standards the Secretary "has given reasoned consideration to each of the pertinent factors" and has complied with statutory commands. Permian Basin Area Rate Cases, 390 U.S. 747, 792, 88 S.Ct. 1344, 1373, 20 L.Ed.2d 312 (1968). Our holding that the Secretary must retrace his steps with greater care and consideration is not to be taken in derogation of the scope of legitimate agency discretion. When the facts and arguments have been presented and duly considered, the Secretary must make a policy judgment as to whether a specific risk of health impairment is significant in terms of the policy objectives of the statute. When he acts in this capacity, pursuant to the legislative authority delegated by Congress, he exercises the prerogatives of the legislature—to focus on only one aspect of a larger problem, or to promulgate regulations that, to some, may appear as imprudent policy or inefficient allocation of resources. The judicial function does not extend to substantive revision of regulatory policy. That function lies elsewhere—in Congressional and Executive oversight or amendatory legislation although to be sure the boundaries are often ill-defined and indistinct.
99
Nevertheless, when discharging his duties under the statute, the Secretary is well admonished to remember that a heavy responsibility burdens his authority. Inherent in this statutory scheme is authority to refrain from regulation of insignificant or de minimis risks. See Alabama Power Co. v. Costle, 204 U.S.App.D.C. 51, 81-89, 636 F.2d 323, 360-361 (1979) (opinion of Leventhal, J.). When the administrative record reveals only scant or minimal risk of material health impairment, responsible administration calls for avoidance of extravagant, comprehensive regulation. Perfect safety is a chimera; regulation must not strangle human activity in the search for the impossible.
100
Mr. Justice POWELL, concurring in part and concurring in the judgment.
101
I join Parts I, II, III-A III-B, III-C, and III-E of the plurality opinion.1 The Occupational Safety and Health Administration relied in large part on its "carcinogen policy" which had not been adopted formally—in promulgating the benzene exposure and dermal contact regulation at issue of these cases.2 For the reasons stated by the plurality, I agree that §§ 6(b)(5) and 3(8) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 655(b)(5) and 652(8), must be read together. They require OSHA to make a threshold finding that proposed occupational health standards are reasonably necessary to provide safe workplaces. When OSHA acts to reduce existing national consensus standards, therefore, it must find that (i) currently permissible exposure levels create a significant risk of material health impairment; and (ii) a reduction of those levels would significantly reduce the hazard.
102
Although I would not rule out the possibility that the necessary findings could rest in part on generic policies properly adopted by OSHA, see McGarity, Substantive and Procedural Discretion in Administrative Resolution of Science Policy Questions: Regulating Carcinogens in EPA and OSHA, 67 Geo.L.J. 729, 754-759 (1979), no properly supported agency policies are before us in this case.3 I therefore agree with the plurality that the regulation is invalid to the extent it rests upon the assumption that exposure to known carcinogens always should be reduced to a level proved to be safe or, if no such level is found, to the lowest level that the affected industry can achieve with available technology.
103
* If the disputed regulation were based exclusively on this "carcinogen policy," I also would agree that we need not consider whether the Act requires OSHA to determine that the benefits of a proposed standard are reasonably related to the costs of compliance. Ante, at 615. As the Court of Appeals for the Fifth Circuit recognized, however, OSHA takes the "fall-back position" that its regulation is justified by specific findings based upon the voluminous evidentiary record compiled in this case. American Petroleum Institute v. OSHA, 581 F.2d 493, 503. OSHA found, for example, that the number of cancers prevented by reducing permissible exposure levels from 10 ppm to 1 ppm "may be appreciable," that "the benefits of the proposed standard are likely to be appreciable," and that the "substantial costs [of the new standard] are justified in light of the hazards." 43 Fed.Reg. 5940-5941 (1978). Thus, OSHA found—at least generally—that the hazards of benzene exposure at currently permissible levels are serious enough to justify an expenditure of hundreds of millions of dollars. For me, that finding necessarily subsumes the conclusion that the health risk is "significant." If OSHA's conclusion is supported by substantial evidence, the threshold requirement discussed in the plurality opinion would be satisfied.
104
As I read its opinion, the plurality does not consider whether the agency's findings are supported by substantial evidence. The Court of Appeals found them insufficient because OSHA failed "to estimate the extent of expected benefits . . . ." 581 F.2d, at 504. That court apparently would have required OSHA to supply a specific numerical estimate of benefits derived through mathematical techniques for "risk quantification" or "cost-effectiveness analysis." Id., at 504, n. 23; see id., at 504-505. I do not agree with the Court of Appeals' conclusion that the statute requires quantification of risk in every case.
105
The statutory preference for the "best available evidence," 29 U.S.C. § 655(b)(5), implies that OSHA must use the best known techniques for the accurate estimation of risks and benefits when such techniques are available. But neither the statute nor the legislative history suggests that OSHA's hands are tied when reasonable quantification cannot be accomplished by any known methods. See post, at 693 (MARSHALL, J., dissenting). In this litigation, OSHA found that "it is impossible to precisely quantify the anticipated benefits. . . ." 43 Fed.Reg. 5941 (1978). If this finding is supported by substantial evidence, the statute does not prevent the Secretary from finding a significant health hazard on the basis of the weight of expert testimony and opinion. I do not understand the plurality to hold otherwise. See ante, at 662.
106
For the foregoing reasons, I would not hold that "OSHA did not even attempt to carry its burden of proof" on the threshold question whether exposure to benzene at 10 ppm presents a significant risk to human health. Ante, at 653. In my view, the question is whether OSHA successfully carried its burden on the basis of record evidence. That question in turn reduces to two principal issues. First, is there substantial evidence supporting OSHA's determination that available quantification techniques are too imprecise to permit a reasonable numerical estimate of risks? If not, then OSHA has failed to show that its regulation rests on the "best available evidence." Second, is OSHA's finding of significant risks at current exposure levels supported by substantial evidence? If not, then OSHA has failed to show that the new regulation is reasonably necessary to provide safe and healthful workplaces.
II
107
Although I regard the question as close, I do not disagree with the plurality's view that OSHA has failed, on this record, to carry its burden of proof on the threshold issues summarized above. But even if one assumes that OSHA properly met this burden, see post, at 697-701, 713-714 (MARSHALL, J., dissenting), I conclude that the statute also requires the agency to determine that the economic effects of its standard bear a reasonable relationship to the expected benefits. An occupational health standard is neither "reasonably necessary" nor "feasible," as required by statute, if it calls for expenditures wholly disproportionate to the expected health and safety benefits.
108
OSHA contends that § 6(b)(5) not only permits but actually requires it to promulgate standards that reduce health risks without regard to economic effects, unless those effects would cause widespread dislocation throughout an entire industry.4 Under the threshold test adopted by the plurality today, this authority will exist only with respect to "significant" risks. But the plurality does not reject OSHA's claim that it must reduce such risks without considering economic consequences less serious than massive dislocation. In my view, that claim is untenable.
109
Although one might wish that Congress had spoken with greater clarity, the legislative history and purposes of the statute do not support OSHA's interpretation of the Act.5 It is simply unreasonable to believe that Congress intended OSHA to pursue the desirable goal of risk-free workplaces to the extent that the economic viability of particular industries—or significant segments thereof—is threatened. As the plurality observes, OSHA itself has not chosen to carry out such a self-defeating policy in all instances. Ante, at 650. If it did, OSHA regulations would impair the ability of American industries to compete effectively with foreign businesses and to provide employment for American workers.6
110
I therefore would not lightly assume that Congress intended OSHA to require reduction of health risks found to be significant whenever it also finds that the affected industry can bear the costs. See n. 4, supra. Perhaps more significantly, however, OSHA's interpretation of § 6(b)(5) would force it to regulate in a manner inconsistent with the important health and safety purposes of the legislation we construe today. Thousands of toxic substances present risks that fairly could be characterized as "significant." Cf. ante, at 645, n. 51. Even if OSHA succeeded in selecting the gravest risks for earliest regulation, a standard-setting process that ignored economic considerations would result in a serious misallocation of resources and a lower effective level of safety than could be achieved under standards set with reference to the comparative benefits available at a lower cost.7 I would not attribute such an irrational intention to Congress.
111
In these cases, OSHA did find that the "substantial costs" of the benzene regulations are justified. See supra, at 665-666. But the record before us contains neither adequate documentation of this conclusion, nor any evidence that OSHA weighed the relevant considerations. The agency simply announced its finding of cost-justification without explaining the method by which it determines that the benefits justify the costs and their economic effects. No rational system of regulation can permit its administrators to make policy judgments without explaining how their decisions effectuate the purposes of the governing law, and nothing in the statute authorizes such laxity in these cases.8 Since neither the airborne concentration standard nor the dermal contact standard for exposure to benzene satisfies the requirements of the governing statute, I join the Court's judgment affirming the judgment of the Court of Appeals.
112
Mr. Justice REHNQUIST, concurring in the judgment.
113
The statutory provision at the center of the present controversy, § 6(b)(5) of the Occupational Safety and Health Act of 1970, states, in relevant part, that the Secretary of Labor
114
". . . in promulgating standards dealing with toxic materials or harmful physical agents . . . shall set the standard which most adequately assures,to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life." 84 Stat. 1594, 29 U.S.C. § 655(b)(5) (emphasis added).
115
According to the Secretary, who is one of the petitioners herein, § 6(b)(5) imposes upon him an absolute duty, in regulating harmful substances like benzene for which no safe level is known, to set the standard for permissible exposure at the lowest level that "can be achieved at bearable cost with available technology." Brief for Federal Parties 57. While the Secretary does not attempt to refine the concept of "bearable cost," he apparently believes that a proposed standard is economically feasible so long as its impact "will not be such as to threaten the financial welfare of the affected firms or the general economy." 43 Fed.Reg. 5939 (1978).
116
Respondents reply, and the lower court agreed, that § 6(b)(5) must be read in light of another provision in the same Act, § 3(8), which defines an "occupational health and safety standard" as
117
". . . a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment." 84 Stat. 1591, 29 U.S.C. § 652(8).
118
According to respondents, § 6(b)(5), as tempered by § 3(8), requires the Secretary to demonstrate that any particular health standard is justifiable on the basis of a rough balancing of costs and benefits.
119
In considering these alternative interpretations, my colleagues manifest a good deal of uncertainty, and ultimately divide over whether the Secretary produced sufficient evidence that the proposed standard for benzene will result in any appreciable benefits at all. This uncertainty, I would suggest, is eminently justified, since I believe that this litigation presents the Court with what has to be one of the most difficult issues that could confront a decisionmaker: whether the statistical possibility of future deaths should ever be disregarded in light of the economic costs of preventing those deaths. I would also suggest that the widely varying positions advanced in the briefs of the parties and in the opinions of Mr. Justice STEVENS, THE CHIEF JUSTICE, Mr. Justice POWELL, and Mr. Justice MARSHALL demonstrate, perhaps better than any other fact, that Congress, the governmental body best suited and most obligated to make the choice confronting us in this litigation, has improperly delegated that choice to the Secretary of Labor and, derivatively, to this Court.
120
* In his Second Treatise of Civil Government, published in 1690, John Locke wrote that "[t]he power of the legislative, being derived from the people by a positive voluntary grant and institution, can be no other than what that positive grant conveyed, which being only to make laws, and not to make legislators, the legislative can have no power to transfer their authority of making laws and place it in other hands."1 Two hundred years later, this Court expressly recognized the existence of and the necessity for limits on Congress' ability to delegate its authority to representatives of the Executive Branch: "That Congress cannot delegate legislative power to the president is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution." Field v. Clark, 143 U.S. 649, 692, 12 S.Ct. 495, 504, 36 L.Ed. 294 (1892).2
121
The rule against delegation of legislative power is not, however, so cardinal of principle as to allow for no exception. The Framers of the Constitution were practical statesmen, who saw that the doctrine of separation of powers was a two-sided coin. James Madison, in Federalist Paper No. 48, for example, recognized that while the division of authority among the various branches of government was a useful principle, "the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained." The Federalist No. 48, p. 308 (H. Lodge ed. 1888).
122
This Court also has recognized that a hermetic sealing-off of the three branches of government from one another could easily frustrate the establishment of a National Government capable of effectively exercising the substantive powers granted to the various branches by the Constitution. Mr. Chief Justice Taft, writing for the Court in J. W. Hampton & Co. v. United States, 276 U.S. 394, 48 S.Ct. 348, 72 L.Ed. 624 (1928), noted the practicalities of the balance that has to be struck:
123
"[T]he rule is that in the actual administration of the government Congress or the Legislature should exercise the legislative power, the President or the state executive, the Governor, the executive power, and the courts or the judiciary the judicial power, and in carrying out that constitutional division into three branches it is a breach of the national fundamental law if Congress gives up its legislative power and transfers it to the President, or to the Judicial branch, or if by law it attempts to invest itself or its members with either executive power or judicial power. This is not to say that the three branches are not coordinate parts of one government and that each in the field of its duties may not invoke the action of the two other branches in so far as the action invoked shall not be an assumption of the constitutional field of action of another branch. In determining what it may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the governmental co-ordination." Id., at 406, 48 S.Ct., at 351.
124
During the third and fourth decades of this century, this Court within a relatively short period of time struck down several Acts of Congress on the grounds that they exceeded the authority of Congress under the Commerce Clause or under the nondelegation principle of separation of powers, and at the same time struck down state statutes because they violated "substantive" due process or interfered with interstate commerce. See generally R. Jackson, The Struggle for Judicial Supremacy 48-123 (1949). When many of these decisions were later overruled, the principle that Congress could not simply transfer its legislative authority to the Executive fell under a cloud. Yet in my opinion decisions such as Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935), suffer from none of the excesses of judicial policymaking that plagued some of the other decisions of that era. The many later decisions that have upheld congressional delegations of authority to the Executive Branch have done so largely on the theory that Congress may wish to exercise its authority in a particular field, but because the field is sufficiently technical, the ground to be covered sufficiently large, and the Members of Congress themselves not necessarily expert in the area in which they choose to legislate, the most that may be asked under the separation-of-powers doctrine is that Congress lay down the general policy and standards that animate the law, leaving the agency to refine those standards, "fill in the blanks," or apply the standards to particular cases. These decisions, to my mind, simply illustrate the above-quoted principle stated more than 50 years ago by Mr. Chief Justice Taft that delegations of legislative authority must be judged "according to common sense and the inherent necessities of the governmental co-ordination."
125
Viewing the legislation at issue here in light of these principles, I believe that it fails to pass muster. Read literally, the relevant portion of § 6(b)(5) is completely precatory, admonishing the Secretary to adopt the most protective standard if he can, but excusing him from that duty if he cannot. In the case of a hazardous substance for which a "safe" level is either unknown or impractical, the language of § 6(b)(5) gives the Secretary absolutely no indication where on the continuum of relative safety he should draw his line. Especially in light of the importance of the interests at stake, I have no doubt that the provision at issue, standing alone, would violate the doctrine against uncanalized delegations of legislative power. For me the remaining question, then, is whether additional standards are ascertainable from the legislative history or statutory context of § 6(b)(5) or, if not, whether such a standardless delegation was justifiable in light of the "inherent necessities" of the situation.
II
126
One of the primary sources looked to by this Court in adding gloss to an otherwise broad grant of legislative authority is the legislative history of the statute in question. The opinions of Mr. Justice STEVENS and Mr. Justice MARSHALL, however, give little more than a tip of the hat to the legislative origins of § 6(b)(5). Such treatment is perhaps understandable, since the legislative history of that section, far from shedding light on what important policy choices Congress was making in the statute, gives one the feeling of viewing the congressional purpose "by the dawn's early light."
127
The precursor of § 6(b)(5) was placed in the Occupational Safety and Health Act of 1970 while that bill was pending in the House Committee on Education and Labor. At that time, the section read:
128
"The Secretary, in promulgating standards under this subsection, shall set the standard which most adequately assures, on the basis of the best available professional evidence, that no employee will suffer any impairment of health, or functional capacity, or diminished life expectancy even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life." § 7(a)(4), H.R. 16785, 91st Cong., 2d Sess. 49 (1970), Legislative History of the Occupational Safety and Health Act of 1970 (Committee Print compiled for the Senate Committee on Labor and Public Welfare), p. 943 (1971) (hereinafter Leg.Hist.).
129
Three aspects of this original proposal are particularly significant. First, and perhaps most importantly, as originally introduced the provision contained no feasibility limitation, providing instead that the Secretary "shall set the standard which most adequately assures" that no employee will suffer harm. Second, it would have required the Secretary to protect employees from "any" impairment of health or functional capacity. Third, on its face, although perhaps not in its intent, the provision applied to both health and safety standards promulgated under the Act.3
130
There can be little doubt that, at this point in its journey through Congress, § 6(b)(5) would have required the Secretary, in regulating toxic substances, to set the permissible level of exposure at a safe level or, if no safe level was known, at zero. When the Senate Committee on Labor and Public Welfare considered a provision identical in almost all respects to the House version, however, Senator Javits objected that the provision in question "might be interpreted to require absolute health and safety in all cases, regardless of feasibility. . . ." S.Rep. No. 91-1282, p. 58 (1970), Leg.Hist. 197. See also 116 Cong.Rec. 37327 (1970), Leg.Hist. 418. The Committee therefore amended the bill to provide that the Secretary "shall set the standard which most adequately and feasibly " assured that no employee would suffer any impairment of health. S. 2193, 91st Cong., 2d Sess., p. 39 (1970), Leg.Hist. 242 (emphasis added). The only additional explanation for this change appeared in the Senate Report accompanying the bill to the Senate floor. There, the Committee explained:
131
"[S]tandards promulgated under section 6(b) shall represent feasible requirements, which, where appropriate, shall be based on research, experiments, demonstrations, past experience, and the latest available scientific data. Such standards should be directed at assuring, so far as possible, that no employee will suffer impaired health of functional capacity or diminished life expectancy, by reason of the exposure to the hazard involved, even though such exposure may be over the period of his entire working life." S.Rep. No. 91-1282, p. 7 (1970), Leg.Hist. 147 (emphasis added).
132
Despite Senator Javits' inclusion of the words "and feasibly" in the provision, participants in the floor debate immediately characterized § 6(b)(5) as requiring the Secretary "to establish a utopia free from any hazards" and to "assure that there will not be any risk at all." 116 Cong.Rec. 37614 (1970), Leg.Hist. 480-481 (remarks of Sen. Dominick). Senator Saxbe stated:
133
"When we come to saying that an employer must guarantee that such an employee is protected from any possible harm, I think it will be one of the most difficult areas we are going to have to ascertain. . . .
134
"I believe the terms that we are passing back and forth are going to have to be identified." 116 Cong.Rec., at 26522, Leg.Hist. 345.
135
In response to these concerns, Senator Dominick introduced a substitute for the proposed provision, deleting the sentence at issue here entirely. He explained that his amendment would delete
136
"the requirement in section 6(b)(5) that the Secretary will establish occupational safety and health standards which most adequately and feasibly assure to the extent possible that no employee will suffer any impairment of health or functional capacity, or diminished life expectancy even if the employee has regular exposure to the hazard dealt with by the standard for the period of his working life.
137
"This requirement is inherently confusing and unrealistic. It could be read to require the Secretary to ban all occupations in which there remains some risk of injury, impaired health, or life expectancy. In the case of all occupations, it will be impossible to eliminate all risks to safety and health. Thus, the present criteria could, if literally applied, close every business in this nation. In addition, in many cases, the standard which might most 'adequately' and 'feasibly' assure the elimination of the danger would be the prohibition of the occupation itself.
138
"If the provision is intended as no more than an admonition to the Secretary to do his duty, it seems unnecessary and could, if deemed advisable be included in the legislative history." (Emphasis in original.) 116 Cong.Rec., at 36530, Leg.Hist. 367.
139
Eventually, Senator Dominick and his supporters settled for the present language of § 6(b)(5). This agreement resulted in three changes from the original version of the provision as amended by Senator Javits. First, the provision was altered to state explicitly that it applied only to standards for "toxic materials or harmful physical agents," in apparent contrast with safety standards. Second, the Secretary was no longer admonished to protect employees from "any" impairment of their health, but rather only from "material" impairments. Third, and most importantly for our purposes, the phrase "most adequately and feasibly assures" was revamped to read "most adequately assures, to the extent feasible."
140
We have been presented with a number of different interpretations of this shift. According to the Secretary, Senator Dominick recognized that he could not delete the seemingly absolute requirements of § 6(b)(5) entirely, and instead agreed to limit its application to toxic materials or harmful physical agents and to specify that the Secretary was only to protect employees from material impairment of their health. Significantly, the Secretary asserts that his mandate to set such standards at the safest level technologically and economically achievable remained unchanged by the Dominick amendment. According to the Secretary, the change in language from "most adequately and feasibly assures" to "most adequately assures, to the extent feasible," represented only a slight shift in emphasis, perhaps suggesting "a preference for health protection over cost." App. to Brief for Federal Parties 7a, n. 2. See also Brief for Federal Parties 59.
141
Mr. Justice MARSHALL reads this history quite differently. In his view, the version of § 6(b)(5) that reached the Senate floor did not "clearly embod[y] the feasibility requirement" and thus was soundly criticized as being unrealistic. See post, at 693. It was only as a result of the floor amendments, which replaced "most adequately and feasibly assures" with "most adequately assures, to the extent feasible," that the Secretary clearly was authorized to reject a standard if it proved technologically or economically infeasible. See also post, at 710, and 720-721, n. 34.
142
Respondents cast yet a third light on these events, focusing upon a few places in the legislative history where the words "feasible" and "reasonable" were used more or less interchangeably. See S.Rep. No. 91-2193, pp. 8-10 (1969), Leg.Hist. 38-40; 115 Cong.Rec. 22517 (1969) (Sen. Javits). It is their contention that, when Congress said "feasible," it meant cost-justified. According to respondents, who agree in this regard with the Secretary, the meaning of the feasibility requirement did not change substantially between the version that left the Senate Committee on Labor and Public Welfare and the version that was ultimately adopted as part of the Act.
143
To my mind, there are several lessons to be gleaned from this somewhat cryptic legislative history. First, as pointed out by Mr. Justice MARSHALL, to the extent that Senator Javits, Senator Dominick, and other Members were worried about imposing upon the Secretary the impossible burden of assuring absolute safety, they did not view § 3(8) of the Act as a limitation on that duty. I therefore find it difficult to accept the conclusion of the lower court, as embellished by respondents, that § 3(8) acts as a general check upon the Secretary's duty under § 6(b)(5) to adopt the most protective standard feasible.
144
Second, and more importantly, I believe that the legislative history demonstrates that the feasibility requirement, as employed in § 6(b)(5), is a legislative mirage, appearing to some Members but not to others, and assuming any form desired by the beholder. I am unable to accept Mr. Justice MARSHALL's argument that, by changing the phrasing of § 6(b)(5) from "most adequately and feasibly assures" to "most adequately assures, to the extent feasible," the Senate injected into that section something that was not already there.4 If I am correct in this regard, then the amendment introduced by Senator Javits to relieve the Secretary of the duty to create a risk-free workplace left Senator Dominick free to object to the amended provision on the same grounds. Perhaps Senator Dominick himself offered the aptest description of the feasibility requirement as "no more than an admonition to the Secretary to do his duty. . . ." 116 Cong.Rec. 36530 (1970); Leg.Hist. 367.
145
In sum, the legislative history contains nothing to indicate that the language "to the extent feasible" does anything other than render what had been a clear, if somewhat unrealistic, standard largely, if not entirely, precatory. There is certainly nothing to indicate that these words, as used in § 6(b)(5), are limited to technological and economic feasibility. When Congress has wanted to limit the concept of feasibility in this fashion, it has said so, as is evidenced in a statute enacted the same week as the provision at issue here.5 I also question whether the Secretary wants to assume the duties such an interpretation would impose upon him. In these cases, for example, the Secretary actually declined to adopt a standard lower than 1 ppm for some industries, not because it was economically or technologically infeasible, but rather because "different levels for different industries would result in serious administrative difficulties." 43 Fed.Reg. 5947 (1978). See also ante, at 650 (plurality opinion). If § 6(b)(5) authorizes the Secretary to reject a more protective standard in the interest of administrative feasibility, I have little doubt that he could reject such standards for any reason whatsoever, including even political feasibility.
III
146
In prior cases this Court has looked to sources other than the legislative history to breathe life into otherwise vague delegations of legislative power. In American Power & Light Co. v. SEC, 329 U.S. 90, 104, 67 S.Ct. 133, 141, 91 L.Ed. 103 (1946), for example, this Court concluded that certain seemingly vague delegations "derive[d] much meaningful content from the purpose of the Act, its factual background and the statutory context in which they appear." Here, however, there is little or nothing in the remaining provisions of the Occupational Safety and Health Act to provide specificity to the feasibility criterion in § 6(b)(5). It may be true, as suggested by Mr. Justice MARSHALL, that the Act as a whole expresses a distinct preference for safety over dollars. But that expression of preference, as I read it, falls far short of the proposition that the Secretary must eliminate marginal or insignificant risks of material harm right down to an industry's breaking point.
147
Nor are these cases like Lichter v. United States, 334 U.S. 742, 783, 68 S.Ct. 1294, 1315, 92 L.Ed. 1694 (1948), where this Court upheld delegation of authority to recapture "excessive profits" in light of a pre-existing administrative practice. Here, the Secretary's approach to toxic substances like benzene could not have predated the enactment of § 6(b)(5) itself. Moreover, there are indications that the postenactment administrative practice has been less than uniform. For example, the Occupational Safety and Health Review Commission (OSHRC), the body charged with adjudicating citations issued by the Secretary under the Act, apparently does not agree with the definition of "feasibility," advanced in these cases by the Secretary. In Continental Can Co., 4 OSHC 1541, 1976-1977 OSHD ¶ 21,009 (1976), the Commission reasoned:
148
"Clearly, employers have finite resources available for use to abate health hazards. And just as clearly if they are to be made to spend without limit for abatement of this hazard their financial ability to abate other hazards, including life threatening hazards, is reduced." Id., at 1547, 1976-1977 OSHD, p. 25,256.
149
Furthermore, the record in these cases contains at least one indication that the Secretary himself was, at one time, quite uncertain what limits § 6(b)(5) placed upon him. In announcing the proposed 1 ppm standard and discussing its economic ramifications, the Secretary explained that "[w]hile the precise meaning of feasibility is not clear from the Act, it is OSHA's view that the term may include the economic ramifications of requirements imposed by standards." 43 Fed.Reg. 5934 (1978). This candid and tentative statement falls far short of the Secretary's present position that economic and technological considerations set the only limits on his duty to adopt the most protective standard. Finally, as noted earlier, the Secretary has failed to apply his present stringent view uniformly, rejecting in these cases a lower standard for some industries on the grounds of administrative convenience.
150
In some cases where broad delegations of power have been examined, this Court has upheld those delegations because of the delegatee's residual authority over particular subjects of regulation. In United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 307, 57 S.Ct. 216, 81 L.Ed. 255 (1936), this Court upheld a statute authorizing the President to prohibit the sale of arms to certain countries if he found that such a prohibition would "contribute to the reestablishment of peace." This Court reasoned that, in the area of foreign affairs, Congress "must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved." Id., at 320, 57 S.Ct., at 221. Similarly, United States v. Mazurie, 419 U.S. 544, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975), upheld a broad delegation of authority to various Indian tribes to regulate the introduction of liquor into Indian country. According to Mazurie, limitations on Congress' authority to delegate legislative power are "less stringent in cases where the entity exercising the delegated authority itself possesses independent authority over the subject matter." Id., at 556-557, 95 S.Ct., at 717. In the present cases, however, neither the Executive Branch in general nor the Secretary in particular enjoys any independent authority over the subject matter at issue.
151
Finally, as indicated earlier, in some cases this Court has abided by a rule of necessity, upholding broad delegations of authority where it would be "unreasonable and impracticable to compel Congress to prescribe detailed rules" regarding a particular policy or situation. American Power & Light Co. v. SEC, 329 U.S., at 105, 67 S.Ct., at 142. See also Buttfield v. Stranahan, 192 U.S. 470, 496, 24 S.Ct. 349, 355, 48 L.Ed. 525 (1904). But no need for such an evasive standard as "feasibility" is apparent in the present cases. In drafting § 6(b)(5), Congress was faced with a clear, if difficult, choice between balancing statistical lives and industrial resources or authorizing the Secretary to elevate human life above all concerns save massive dislocation in an affected industry. That Congress recognized the difficulty of this choice is clear from the previously noted remark of Senator Saxbe, who stated that "[w]hen we come to saying that an employer must guarantee that such an employee is protected from any possible harm, I think it will be one of the most difficult areas we are going to have to ascertain." 116 Cong.Rec. 36522 (1970); Leg.Hist. 345. That Congress chose, intentionally or unintentionally, to pass this difficult choice on to the Secretary is evident from the spectral quality of the standard it selected and is capsulized in Senator Saxbe's unfulfilled promise that "the terms that we are passing back and forth are going to have to be identified." Ibid.
IV
152
As formulated and enforced by this Court, the nondelegation doctrine serves three important functions. First, and most abstractly, it ensures to the extent consistent with orderly governmental administration that important choices of social policy are made by Congress, the branch of our Government most responsive to the popular will. See Arizona v. California, 373 U.S. 546, 626, 83 S.Ct. 1468, 1511, 10 L.Ed.2d 542 (1963) (Harlan, J., dissenting in part); United States v. Robel, 389 U.S. 258, 276, 88 S.Ct. 419, 430, 19 L.Ed.2d 508 (1967) (BRENNAN, J., concurring in result). Second, the doctrine guarantees that, to the extent Congress finds it necessary to delegate authority, it provides the recipient of that authority with an "intelligible principle" to guide the exercise of the delegated discretion. See J. W. Hampton & Co. v. United States, 276 U.S., at 409, 48 S.Ct., at 352; 72 L.Ed. 624 (1928); Panama Refining Co. v. Ryan, 293 U.S., at 430, 55 S.Ct., at 252. Third, and derivative of the second, the doctrine ensures that courts charged with reviewing the exercise of delegated legislative discretion will be able to test that exercise against ascertainable standards. See Arizona v. California, supra, 373 U.S., at 626, 83 S.Ct., at 1511 (Harlan, J., dissenting in part); American Power & Light Co. v. SEC, supra, at 106, 67 S.Ct., at 142.
153
I believe the legislation at issue here fails on all three counts. The decision whether the law of diminishing returns should have any place in the regulation of toxic substances is quintessentially one of legislative policy. For Congress to pass that decision on to the Secretary in the manner it did violates, in my mind, John Locke's caveat—reflected in the cases cited earlier in this opinion—that legislatures are to make laws, not legislators. Nor, as I think the prior discussion amply demonstrates, do the provisions at issue or their legislative history provide the Secretary with any guidance that might lead him to his somewhat tentative conclusion that he must eliminate exposure to benzene as far as technologically and economically possible. Finally, I would suggest that the standard of "feasibility" renders meaningful judicial review impossible.
154
We ought not to shy away from our judicial duty to invalidate unconstitutional delegations of legislative authority solely out of concern that we should thereby reinvigorate discredited constitutional doctrines of the pre-New Deal era. If the nondelegation doctrine has fallen into the same desuetude as have substantive due process and restrictive interpretations of the Commerce Clause, it is, as one writer has phrased it, "a case of death by association." J. Ely, Democracy and Distrust, A Theory of Judicial Review 133 (1980). Indeed, a number of observers have suggested that this Court should once more take up its burden of ensuring that Congress does not unnecessarily delegate important choices of social policy to politically unresponsive administrators.6 Other observers, as might be imagined, have disagreed.7
155
If we are ever to reshoulder the burden of ensuring that Congress itself make the critical policy decisions, these are surely the cases in which to do it. It is difficult to imagine a more obvious example of Congress simply avoiding a choice which was both fundamental for purposes of the statute and yet politically so divisive that the necessary decision or compromise was difficult, if not impossible, to hammer out in the legislative forge. Far from detracting from the substantive authority of Congress, a declaration that the first sentence of § 6(b)(5) of the Occupational Safety and Health Act constitutes an invalid delegation to the Secretary of Labor would preserve the authority of Congress. If Congress wishes to legislate in an area which it has not previously sought to enter, it will in today's political world undoubtedly run into opposition no matter how the legislation is formulated. But that is the very essence of legislative authority under our system. It is the hard choices, and not the filling in of the blanks, which must be made by the elected representatives of the people. When fundamental policy decisions underlying important legislation about to be enacted are to be made, the buck stops with Congress and the President insofar as he exercises his constitutional role in the legislative process.
156
I would invalidate the first sentence of § 6(b)(5) of the Occupational Safety and Health Act of 1970 as it applies to any toxic substance or harmful physical agent for which a safe level, that is, a level at which "no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to [that hazard] for the period of his working life," is, according to the Secretary, unknown or otherwise "infeasible." Absent further congressional action, the Secretary would then have to choose, when acting pursuant to § 6(b)(5), between setting a safe standard or setting no standard at all.8 Accordingly, for the reasons stated above, I concur in the judgment of the Court affirming the judgment of the Court of Appeals.
157
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN, Mr. Justice WHITE, and Mr. Justice BLACKMUN join, dissenting.
158
In cases of statutory construction, this Court's authority is limited. If the statutory language and legislative intent are plain, the judicial inquiry is at an end. Under our jurisprudence, it is presumed that ill-considered or unwise legislation will be corrected through the democratic process; a court is not permitted to distort a statute's meaning in order to make it conform with the Justices' own views of sound social policy. See TVA v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978).
159
Today's decision flagrantly disregards these restrictions on judicial authority. The plurality ignores the plain meaning of the Occupational Safety and Health Act of 1970 in order to bring the authority of the Secretary of Labor in line with the plurality's own views of proper regulatory policy. The unfortunate consequence is that the Federal Government's efforts to protect American workers from cancer and other crippling diseases may be substantially impaired.
160
The first sentence of § 6(b)(5) of the Act provides:
161
"The Secretary, in promulgating standards dealing with toxic materials or harmful physical agents under this subsection, shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life." 29 U.S.C. § 655(b)(5).
162
In this case the Secretary of Labor found, on the basis of substantial evidence, that (1) exposure to benzene creates a risk of cancer, chromosomal damage, and a variety of nonmalignant but potentially fatal blood disorders, even at the level of 1 ppm; (2) no safe level of exposure has been shown; (3) benefits in the form of saved lives would be derived from the permanent standard; (4) the number of lives that would be saved could turn out to be either substantial or relatively small; (5) under the present state of scientific knowledge, it is impossible to calculate even in a rough way the number of lives that would be saved, at least without making assumptions that would appear absurd to much of the medical community; and (6) the standard would not materially harm the financial condition of the covered industries. The Court does not set aside any of these findings. Thus, it could not be plainer that the Secretary's decision was fully in accord with his statutory mandate "most adequately [to] assur[e] . . . that no employee will suffer material impairment of health or functional capacity . . . ."
163
The plurality's conclusion to the contrary is based on its interpretation of 29 U.S.C. § 652(8), which defines an occupational safety and health standard as one "which requires conditions . . . reasonably necessary or appropriate to provide safe or healthful employment. . . ." According to the plurality, a standard is not "reasonably necessary or appropriate" unless the Secretary is able to show that it is "at least more likely than not," ante, at 653, that the risk he seeks to regulate is a "significant" one. Ibid. Nothing in the statute's language or legislative history, however, indicates that the "reasonably necessary or appropriate" language should be given this meaning. Indeed, both demonstrate that the plurality's standard bears no connection with the acts or intentions of Congress and is based only on the plurality's solicitude for the welfare of regulated industries. And the plurality uses this standard to evaluate not the agency's decision in this case, but a strawman of its own creation.
164
Unlike the plurality, I do not purport to know whether the actions taken by Congress and its delegates to ensure occupational safety represent sound or unsound regulatory policy. The critical problem in cases like the ones at bar is scientific uncertainty. While science has determined that exposure to benzene at levels above 1 ppm creates a definite risk of health impairment, the magnitude of the risk cannot be quantified at the present time. The risk at issue has hardly been shown to be insignificant; indeed, future research may reveal that the risk is in fact considerable. But the existing evidence may frequently be inadequate to enable the Secretary to make the threshold finding of "significance" that the Court requires today. If so, the consequence of the plurality's approach would be to subject American workers to a continuing risk of cancer and other fatal diseases, and to render the Federal Government powerless to take protective action on their behalf. Such an approach would place the burden of medical uncertainty squarely on the shoulders of the American worker, the intended beneficiary of the Occupational Safety and Health Act. It is fortunate indeed that at least a majority of the Justices reject the view that the Secretary is prevented from taking regulatory action when the magnitude of a health risk cannot be quantified on the basis of current techniques. See ante, at 666 (POWELL, J., concurring in part and concurring in judgment); see also ante, at 656, and n. 63 (plurality opinion).
165
Because today's holding has no basis in the Act, and because the Court has no authority to impose its own regulatory policies on the Nation, I dissent.
166
* Congress enacted the Occupational Safety and Health Act as a response to what was characterized as "the grim history of our failure to heed the occupational health needs of our workers."1 The failure of voluntary action and legislation at the state level, see S.Rep. No. 91-1282, p. 4 (1970), Leg.Hist. 144, had resulted in a "bleak" and "worsening"2 situation in which 14,500 persons had died annually as a result of conditions in the workplace. In the four years preceding the Act's passage, more Americans were killed in the workplace than in the contemporaneous Vietnam War. S.Rep.No. 91-1283, at 2, Leg.Hist. 142; U.S.Code Cong. & Admin.News, p. 5177. The Act was designed as "a safety bill of rights for close to 60 million workers."3 Its stated purpose 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). See Atlas Roofing Co. v. Occupational Safety and Health Review Comm'n, 430 U.S. 442, 444-445, 97 S.Ct. 1261, 1263-64, 51 L.Ed.2d 464 (1977).
167
The Act is enforced primarily through two provisions. First, a "general duty" is imposed upon employers to furnish employment and places of employment "free from recognized hazards that are causing or are likely to cause death or serious physical harm . . . ." 29 U.S.C. § 654(a)(1). Second, the Secretary of Labor is authorized to set "occupational safety and health standards," defined as standards requiring "conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment." 29 U.S.C. § 652(8).
168
The legislative history of the Act reveals Congress' particular concern for health hazards of "unprecedented complexity" that had resulted from chemicals whose toxic effects "are only now being discovered." S.Rep.No. 91-1282, supra, at 2, Leg.Hist. 142. "Recent scientific knowledge points to hitherto unsuspected cause-and-effect relationships between occupational exposures and many of the so-called chronic diseases—cancer, respiratory ailments, allergies, heart disease, and others." Ibid., U.S.Code Cong. & Admin.News, p. 5178. Members of Congress made repeated references to the dangers posed by carcinogens and to the defects in our knowledge of their operation and effect.4 One of the primary purposes of the Act was to ensure regulation of these "insidious 'silent' killers."5
169
This special concern led to the enactment of the first sentence of 29 U.S.C. § 655(b)(5), which, as noted above, provides:
170
"The Secretary, in promulgating standards dealing with toxic materials or harmful physical agents under this subsection, shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life."
171
This directive is designed to implement three legislative purposes First, Congress recognized that there may be substances that become dangerous only upon repeated or frequent exposure.6 The Secretary was therefore required to provide protection even from substances that would cause material impairment only upon exposure occurring throughout an employee's working life. Second, the requirement that the Secretary act on the basis of "the bestavailable evidence" was intended to ensure that the standard-setting process would not be destroyed by the uncertainty of scientific views. Recognizing that existing knowledge may be inadequate, Congress did not require the Secretary to wait until definitive information could be obtained. Thus "it is not intended that the Secretary be paralyzed by debate surrounding diverse medical opinions." H.R.Rep.No. 91-1291, p. 18 (1970), Leg.Hist. 848. Third, Congress' special concern for the "silent killers" was felt to justify an especially strong directive to the Secretary in the standard-setting process. 116 Cong.Rec. 37622 (1970), Leg.Hist. 502 (Sen. Dominick).
172
The authority conferred by § 655(b)(5), however, is not absolute. The subsection itself contains two primary limitations. The requirement of "material" impairment was designed to prohibit the Secretary from regulating substances that create a trivial hazard to affected employees.7 Moreover, all standards promulgated under the subsection must be "feasible." During the floor debates Congress expressed concern that a prior version of the bill, not clearly embodying the feasibility requirement, would require the Secretary to close down whole industries in order to eliminate risks of impairment. This standard was criticized as unrealistic.8 The feasibility requirement was imposed as an affirmative limit on the standard-setting power.
173
The remainder of § 655(b)(5), applicable to all safety and health standards, requires the Secretary to base his standards "upon research, demonstrations, experiments, and such other information as may be appropriate." In setting standards, the Secretary is directed to consider "the attainment of the highest degree of health and safety protection for the employee" and also "the latest available scientific data in the field, the feasibility of the standards, and experience gained under this and other health and safety laws."
174
The Act makes provision for judicial review of occupational safety and health standards promulgated pursuant to § 655(b)(5). The reviewing court must uphold the Secretary's determinations if they are supported by "substantial evidence in the record considered as a whole." 29 U.S.C. § 655(f). It is to that evidence that I now turn.
II
175
The plurality's discussion of the record in this case is both extraordinarily arrogant and extraordinarily unfair. It is arrogant because the plurality presumes to make its own factual findings with respect to a variety of disputed issues relating to carcinogen regulation. See, e. g., ante, at 656-657, and n. 64. It should not be necessary to remind the Members of this Court that they were not appointed to undertake independent review of adequately supported scientific findings made by a technically expert agency.9 And the plurality's discussion is unfair because its characterization of the Secretary's report bears practically no resemblance to what the Secretary actually did in this case. Contrary to the plurality's suggestion, the Secretary did not rely blindly on some Draconian carcinogen "policy." See ante, at 624-625, 635-636. If he had, it would have been sufficient for him to have observed that benzene is a carcinogen, a proposition that respondents do not dispute. Instead, the Secretary gathered over 50 volumes of exhibits and testimony and offered a detailed and evenhanded discussion of the relationship between exposure to benzene at all recorded exposure levels and chromosomal damage, aplastic anemia, and leukemia. In that discussion he evaluated, and took seriously, respondents' evidence of a safe exposure level. See also ante, at 666 (POWELL, J., concurring in part and in judgment).
176
The hearings on the proposed standard were extensive, encompassing 17 days from July 19 through August 10, 1977. The 95 witnesses included epidemiologists, toxicologists, physicians, political economists, industry representatives, and members of the affected work force. Witnesses were subjected to exhaustive questioning by representatives from a variety of interested groups and organizations.
177
Three basic positions were presented at the hearings. The first position was that the proposed 1 ppm standard was necessary because exposure to benzene would cause material impairment of the health of workers no matter how low the exposure level. Some direct evidence indicated that exposure to benzene had caused chromosomal damage, blood disorders, and leukemia at or below the 10 ppm level itself. More important, it was suggested that the recorded effects of benzene at higher levels required an inference that leukemia and other disorders would result at levels of 1 ppm and lower, especially after the prolonged exposure typical in industrial settings. Therefore, the standard should be set at the lowest feasible level, which was 1 ppm.
178
The second position was at a 1 ppm exposure level would itself pose an unwarranted threat to employee health and safety and that the available evidence necessitated a significantly lower level. An exposure limit below 1 ppm, it was argued, would be feasible. There were suggestions that benzene was gradually being replaced in many of the affected industries and that most companies were already operating at or below the 1 ppm level.
179
The third position was that the 1971 standard should be retained. Proponents of this position suggested that evidence linking low levels of benzene exposure to leukemia was uncertain, that the current exposure limit was sufficiently safe, and that the benefits of the proposed standard would be insufficient to justify the standard's costs. In addition, there was testimony that the expenses required by the proposed standard would be prohibitive.
180
The regulations announcing the permanent standard for benzene are accompanied by an extensive statement of reasons summarizing and evaluating the results of the hearings. The Secretary found that the evidence showed that exposure to benzene causes chromosomal damage, a variety of nonmalignant blood disorders, and leukemia. 43 Fed.Reg. 5921 (1978). He concluded that low concentrations imposed a hazard that was sufficiently grave to call for regulatory action under the Act.
181
Evidence of deleterious effects. The Secretary referred to studies which conclusively demonstrated that benzene could damage chromosomes in blood-forming cells. Id., at 5932. There was testimony suggesting a causal relationship between chromosomal damage and leukemia, although it could not be determined whether and to what extent such damage would impair health. Id., at 5933.10 Some studies had suggested chromosomal damage at exposure levels of 10-25 ppm and lower.11 No quantitative dose-response curve, showing the relationship between exposure levels and incidence of chromosomal damage could yet be established. Id., at 5933-5934. The evidence of chromosomal damage was, in the Secretary's view, a cause for "serious concern." Id., at 5933.
182
The most common effect of benzene exposure was a decrease in the levels of blood platelets and red and white blood cells. If sufficiently severe, the result could be pancytopenia or aplastic anemia, noncancerous but potentially fatal diseases. There was testimony that some of the nonmalignant blood disorders caused by benzene exposure could progress to, or represented, a preleukemic stage which might eventually evolve into a frank leukemia. Id., at 5922.12
183
Considerable evidence showed an association between benzene and nonmalignant blood disorders at low exposure levels. Such an association had been established in one study in which the levels frequently ranged from zero to 25 ppm with some concentrations above 100 ppm, ibid.; in another they ranged from 5 to 30 ppm, id., at 5923. Because of the absence of adequate data, a dose-response curve showing the relationship between benzene exposure and blood disorders could not be constructed. There was considerable testimony, however, that such disorders had resulted from exposure to benzene at or near the current level of 10 ppm and lower.13 The Secretary concluded that the current standard did not provide adequate protection. He observed that a "safety factor" of 10 to 100 was generally used to discount the level at which a causal connection had been found in existing studies.14 Under this approach, he concluded that, quite apart from any leukemia risk, the permissible exposure limit should be set at a level considerably lower than 10 ppm.
184
Finally, there was substantial evidence that exposure to benzene caused leukemia. The Secretary concluded that the evidence established that benzene was a carcinogen. A causal relationship between benzene and leukemia was first reported in France in 1897, and since that time similar results had been found in a number of countries, including Italy, Turkey, Japan, Switzerland, the Soviet Union, and the United States. The latest study, undertaken by the National Institute for Occupational Safety and Health (NIOSH) in the 1970's, reported a fivefold excess over the normal incidence of leukemia among workers exposed to benzene at industrial plants in Ohio. There was testimony that this study seriously understated the risk.15
185
The Secretary reviewed certain studies suggesting that low exposure levels of 10 ppm and more did not cause any excess incidence of leukemia. Those studies, he suggested, suffered from severe methodological defects, as their authors frankly acknowledged.16 Finally, the Secretary discussed a study suggesting a statistically significant excess in leukemia at levels of 2 to 9 ppm. Ibid.17 He found that, despite certain deficiencies in the study, it should be considered as consistent with other studies demonstrating an excess leukemia risk among employees exposed to benzene. Id., at 5928.
186
Areas of uncertainty. The Secretary examined three areas of uncertainty that had particular relevance to his decision. First, he pointed to evidence that the latency period for benzene-induced leukemia could range from 2 to over 20 years. Id., at 5930. Since lower exposure levels lead to an increase in the latency period, it would be extremely difficult to obtain evidence showing the dose-response relationship between leukemia and exposure to low levels of benzene. Because there has been no adequate monitoring in the past, it would be practically impossible to determine what the exposure levels were at a time sufficiently distant so that the latency period would have elapsed. The problem was compounded by the difficulty of conducting a suitable study. Because exposure levels approaching 10 ppm had been required only recently, direct evidence showing the relationship between leukemia and exposure levels between 1 and 10 ppm would be unavailable in the foreseeable future.
187
Second, the Secretary observed that individuals had differences in their susceptibility to leukemia. Ibid.. Among those exposed to benzene was a group of unknown but possibly substantial size having various "predisposing factors" whose members were especially vulnerable to the disease. Id., at 5930, 5946. The permanent standard was designed to minimize the effects of exposure for these susceptible individuals as well as for the relatively insensitive, id., at 5946, and also to facilitate early diagnosis and treatment. Id., at 5930.
188
The Secretary discussed the contention that a safe level of exposure to benzene had been demonstrated. From the testimony of numerous scientists, he concluded that it had not. Id., at 5932.18 He also found that although no dose-response curve could be plotted, id., at 5946,19 the extent of the risk would decline with the exposure level. Ibid.20 Exposure at a level of 1 ppm would therefore be less dangerous than exposure at one of 10 ppm. The Secretary found that the existing evidence justified the conclusion that he should not "wait for answers" while employees continued to be exposed to benzene at hazardous levels.
189
Finally, the Secretary responded to the argument that the permissible exposure level should be zero or lower than 1 ppm. Id., at 5947.21 Even though many industries had already achieved the 1 ppm level, he found that a lower level would not be feasible. Ibid.
190
Costs and benefits. The Secretary offered a detailed discussion of the role that economic considerations should play in his determination. He observed that standards must be "feasible," both economically and technologically. In his view the permanent standard for benzene was feasible under both tests. The economic impact would fall primarily on the more stable industries, such as petroleum refining and petrochemical production. Id., at 5934. These industries would be able readily to absorb the costs or to pass them on to consumers. None of the 20 affected industries, involving 157,000 facilities and 629,000 exposed employees, id., at 5935, would be unable to bear the required expenditures, id., at 5934. He concluded that the compliance costs were "well within the financial capability of the covered industries." Id., at 5941. An extensive survey of the national economic impact of the standard, undertaken by a private contractor, found first-year operating costs of between $187 and $205 million, recurring annual costs of $34 million, and investment in engineering controls of about $266 million.22 Since respondents have not attacked the Secretary's basic conclusions as to cost, the Secretary's extensive discussion need not be summarized here.
191
Finally, the Secretary discussed the benefits to be derived from the permanent standard. During the hearings, it had been argued that the Secretary should estimate the health benefits of the proposed regulation. To do this he would be required to construct a dose-response curve showing, at least in a rough way, the number of lives that would be saved at each possible exposure level. Without some estimate of benefits, it was argued, the Secretary's decisionmaking would be defective. During the hearings an industry witness attempted to construct such a dose-response curve. Restricting himself to carcinogenic effects, he estimated that the proposed standard would save two lives every six years and suggested that this relatively minor benefit would not justify the regulation's costs.
192
The Secretary rejected the hypothesis that the standard would save only two lives in six years. This estimate, he concluded, was impossible to reconcile with the evidence in the record. Ibid.23 He determined that, because of numerous uncertainties in the existing data, it was impossible to construct a dose-response curve by extrapolating from those data to lower exposure levels.24 More generally, the Secretary observed that it had not been established that there was a safe level of exposure for benzene. Since there was considerable testimony that the risk would decline with the exposure level, id., at 5940, the new standard would save lives. The number of lives saved "may be appreciable," but there was no way to make a more precise determination.25 The question was "on the frontiers of scientific knowledge." Ibid.
193
The Secretary concluded that, in light of the scientific uncertainty, he was not required to calculate benefits more precisely. Id., at 5941. In any event he gave "careful consideration" to the question of whether the admittedly substantial costs were justified in light of the hazards of benzene exposure. He concluded that those costs were "necessary" in order to promote the purposes of the Act.
III
A.
194
This is not a case in which the Secretary found, or respondents established, that no benefits would be derived from a permanent standard, or that the likelihood of benefits was insignificant. Nor was it shown that a quantitative estimate of benefits could be made on the basis of "the best available evidence." Instead, the Secretary concluded that benefits will result, that those benefits "may" be appreciable, but that the dose-response relationship of low levels of benzene exposure and leukemia, nonmalignant blood disorders, and chromosomal damage was impossible to determine. The question presented is whether, in these circumstances, the Act permits the Secretary to take regulatory action, or whether he must allow continued exposure until more definitive information becomes available.
195
As noted above, the Secretary's determinations must be upheld if supported by "substantial evidence in the record considered as a whole." 29 U.S.C. § 655(f). This standard represents a legislative judgment that regulatory action should be subject to review more stringent than the traditional "arbitrary and capricious" standard for informal rulemaking. We have observed that the arbitrary and capricious standard itself contemplates a searching "inquiry into the facts" in order to determine "whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971). Careful performance of this task is especially important when Congress has imposed the comparatively more rigorous "substantial evidence" requirement. As we have emphasized, however, judicial review under the substantial evidence test is ultimately deferential. See, e. g., Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 618-621, 86 S.Ct. 1018, 1025-27, 16 L.Ed.2d 131 (1966). The agency's decision is entitled to the traditional presumption of validity, and the court is not authorized to substitute its judgment for that of the Secretary. If the Secretary has considered the decisional factors and acted in conformance with the statute, his ultimate decision must be given a large measure of respect. Id., at 621, 86 S.Ct., at 1027.
196
The plurality is insensitive to three factors which, in my view, make judicial review of occupational safety and health standards under the substantial evidence test particularly difficult. First, the issues often reach a high level of technical complexity. In such circumstances the courts are required to immerse themselves in matters to which they are unaccustomed by training or experience. Second, the factual issues with which the Secretary must deal are frequently not subject to any definitive resolution. Often "the factual finger points, it does not conclude." Society of Plastics Industry, Inc. v. OSHA, 509 F.2d 1301, 1308 (CA2) (Clark, J.), cert. denied, 421 U.S. 992, 95 S.Ct. 1998, 44 L.Ed.2d 482 (1975). Causal connections and theoretical extrapolations may be uncertain. Third, when the question involves determination of the acceptable level of risk, the ultimate decision must necessarily be based on considerations of policy as well as empirically verifiable facts. Factual determinations can at most define the risk in some statistical way; the judgment whether that risk is tolerable cannot be based solely on a resolution of the facts.
197
The decision to take action in conditions of uncertainty bears little resemblance to the sort of empirically verifiable factual conclusions to which the substantial evidence test is normally applied. Such decisions were not intended to be unreviewable; they too must be scrutinized to ensure that the Secretary has acted reasonably and within the boundaries set by Congress. But a reviewing court must be mindful of the limited nature of its role. See Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). It must recognize that the ultimate decision cannot be based solely on determinations of fact, and that those factual conclusions that have been reached are ones which the courts are ill-equipped to resolve on their own.
198
Under this standard of review, the decision to reduce the permissible exposure level to 1 ppm was well within the Secretary's authority. The Court of Appeals upheld the Secretary's conclusions that benzene causes leukemia, blood disorders, and chromosomal damage even at low levels, that an exposure level of 10 ppm is more dangerous than one of 1 ppm, and that benefits will result from the proposed standard. It did not set aside his finding that the number of lives that would be saved was not subject to quantification. Nor did it question his conclusion that the reduction was "feasible."
199
In these circumstances, the Secretary's decision was reasonable and in full conformance with the statutory language requiring that he "set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life." 29 U.S.C. § 655(b)(5). On this record, the Secretary could conclude that regular exposure above the 1 ppm level would pose a definite risk resulting in material impairment to some indeterminate but possibly substantial number of employees. Studies revealed hundreds of deaths attributable to benzene exposure. Expert after expert testified that no safe level of exposure had been shown and that the extent of the risk declined with the exposure level. There was some direct evidence of incidence of leukemia, nonmalignant blood disorders, and chromosomal damage at exposure levels of 10 ppm and below. Moreover, numerous experts testified that existing evidence required an inference that an exposure level above 1 ppm was hazardous. We have stated that "well-reasoned expert testimony based on what is known and uncontradicted by empirical evidence may in and of itself be 'substantial evidence' when first-hand evidence on the question . . . is unavailable." FPC v. Florida Power & Light Co., 404 U.S. 453, 464-465, 92 S.Ct. 637, 644, 30 L.Ed.2d 600 (1972). Nothing in the Act purports to prevent the Secretary from acting when definitive information as to the quantity of a standard's benefits is unavailable.26 Where, as here, the deficiency in knowledge relates to the extent of the benefits rather than their existence, I see no reason to hold that the Secretary has exceeded his statutory authority.
B
200
The plurality avoids this conclusion through reasoning that may charitably be described as obscure. According to the plurality, the definition of occupational safety and health standards as those "reasonably necessary or appropriate to provide safe or healthful . . . working conditions" requires the Secretary to show that it is "more likely than not" that the risk he seeks to regulate is a "significant" one. Ante, at 653. The plurality does not show how this requirement can be plausibly derived from the "reasonably necessary or appropriate" clause. Indeed, the plurality's reasoning is refuted by the Act's language, structure, and legislative history, and it is foreclosed by every applicable guide to statutory construction. In short, the plurality's standard is a fabrication bearing no connection with the acts or intentions of Congress.
201
At the outset, it is important to observe that "reasonably necessary or appropriate" clauses are routinely inserted in regulatory legislation, and in the past such clauses have uniformly been interpreted as general provisos that regulatory actions must bear a reasonable relation to those statutory purposes set forth in the statute's substantive provisions. See, e. g., FCC v. National citizens Committee for Broadcasting, 436 U.S. 775, 796-797, 98 S.Ct. 2096, 2112-13, 56 L.Ed.2d 697 (1978); Mourning v. Family Publications Service, Inc., 411 U.S. 356, 369, 93 S.Ct. 1652, 1660, 36 L.Ed.2d 318 (1973); Thorpe v. Housing Authority of City of Durham, 393 U.S. 268, 280-281, 89 S.Ct. 518, 525-26, 21 L.Ed.2d 474 (1969). The Court has never until today—interpreted a "reasonably necessary or appropriate" clause as having a substantive content that supersedes a specific congressional directive embodied in a provision that is focused more particularly on an agency's authority. This principle, of course, reflects the common understanding that the determination of whether regulations are "reasonably necessary" may be made only by reference to the legislative judgment reflected in the statute; it must not be based on a court's own, inevitably subjective view of what steps should be taken to promote perceived statutory goals.
202
The plurality suggests that under the "reasonably necessary" clause, a workplace is not "unsafe" unless the Secretary is able to convince a reviewing court that a "significant" risk is at issue. Ante, at 642. That approach is particularly embarrassing in this case, for it is contradicted by the plain language of the Act. The plurality's interpretation renders utterly superfluous the first sentence of § 655(b)(5), which, as noted above, requires the Secretary to set the standard "which most adequately assures . . . that no employee will suffer material impairment of health." Indeed, the plurality's interpretation reads that sentence out of the Act. By so doing, the plurality makes the test for standards regulating toxic substances and harmful physical agents substantially identical to the test for standards generally—plainly the opposite of what Congress intended. And it is an odd canon of construction that would insert in a vague and general definitional clause a threshold requirement that overcomes the specific language placed in a standard-setting provision. The most elementary principles of statutory construction demonstrate that precisely the opposite interpretation is appropriate. See e. g., FPC v. Texaco Inc., 417 U.S. 380, 394-395, 94 S.Ct. 2315, 2324-25, 41 L.Ed.2d 141 (1974); Clark v. Uebersee Finanz-Korp., 332 U.S. 480, 488-489, 68 S.Ct. 174, 177-78, 92 L.Ed. 88 (1947). In short, Congress could have provided that the Secretary may not take regulatory action until the existing scientific evidence proves the risk as issue to be "significant,"27 but it chose not to do so.
203
The plurality's interpretation of the "reasonably necessary or appropriate" clause is also conclusively refuted by the legislative history. While the standard-setting provision that the plurality ignores received extensive legislative attention, the definitional clause received none at all. An earlier version of the Act, see n. 8, supra, did not embody a clear feasibility constraint and was not restricted to toxic substances or to "material" impairments. The "reasonably necessary or appropriate" clause was contained in this prior version of the bill, as it was at all relevant times. In debating this version, Members of Congress repeatedly expressed concern that it would require a risk-free universe. See, e. g., ante, at 646-649. The definitional clause was not mentioned at all, an omission that would be incomprehensible if Congress intended by that clause to require the Secretary to quantify the risk he sought to regulate in order to demonstrate that it was "significant."
204
The only portions of the legislative history on which the plurality relies, see ibid., have nothing to do with the "reasonably necessary or appropriate" clause from which the "threshold finding" requirement is derived. Those portions consisted of criticisms directed toward the earlier version of the statute, which already contained the definitional clause. These criticisms, in turn, were met by subsequent amendments that limited application of the strict "no employee will suffer" clause to toxic substances, inserted an explicit feasibility constraint, and modified the word "impairment" by the adjective "material." It is disingenuous at best for the plurality to suggest that isolated statements in the legislative history, expressing concerns that were met by subsequent amendments not requiring any "threshold" finding, can justify reading such a requirement into a "reasonably necessary" clause that was in the Act all along.28
205
The plurality's various structural arguments are also unconvincing. The fact that a finding of "grave danger" is required for temporary standards, see ante, at 640, n. 45, hardly implies that the Secretary must show for permanent standards that it is more probable than not that the substance to be regulated poses a "significant" risk. Nor is the reference to "toxic materials," ante, at 643, in any way informative. And the priority-setting provision, ante, 643-644, cannot plausibly be read to condition the Secretary's standard-setting authority on an ability to meet the Court's "threshold" requirement.
206
The plurality ignores applicable canons of construction, apparently because it finds their existence inconvenient. But as we stated quite recently, the inquiry into statutory purposes should be "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." Whirlpool Corp. v. Marshall, 445 U.S. 1, 11, 100 S.Ct. 883, 890, 63 L.Ed.2d 154 (1980). Can it honestly be said that the Secretary's interpretation of the Act is "unreasoned" or "unsupportable"? And as we stated in the same case, "safety legislation is to be liberally construed to effectuate the congressional purpose." Id., at 13, 100 S.Ct., at 891. The plurality's disregard of these principles gives credence to the frequently voiced criticism that they are honored only when the Court finds itself in substantive agreement with the agency action at issue.
207
In short, today's decision represents a usurpation of decisionmaking authority that has been exercised by and properly belongs with Congress and its authorized representatives. The plurality's construction has no support in the statute's language, structure, or legislative history. The threshold finding that the plurality requires is the plurality's own invention. It bears no relationship to the acts or intentions of Congress, and it can be understood only as reflecting the personal views of the plurality as to the proper allocation of resources for safety in the American workplace.
C
208
The plurality is obviously more interested in the consequences of its decision than in discerning the intention of Congress. But since the language and legislative history of the Act are plain, there is no need for conjecture about the effects of today's decision. "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., at 185, 98 S.Ct., at 2297. I do not pretend to know whether the test the plurality erects today is, as a matter of policy, preferable to that created by Congress and its delegates: the area is too fraught with scientific uncertainty, and too dependent on considerations of policy, for a court to be able to determine whether it is desirable to require identification of a "significant" risk before allowing an administrative agency to take regulatory action. But in light of the tenor of the plurality opinion, it is necessary to point out that the question is not one-sided, and that Congress' decision to authorize the Secretary to promulgate the regulation at issue here was a reasonable one.
209
In this case the Secretary found that exposure to benzene at levels above 1 ppm posed a definite albeit unquantifiable risk of chromosomal damage, nonmalignant blood disorders, and leukemia. The existing evidence was sufficient to justify the conclusion that such a risk was presented, but it did not permit even rough quantification of that risk. Discounting for the various scientific uncertainties, the Secretary gave "careful consideration to the question of whether the[ ] substantial costs" of the standard "are justified in light of the hazards of exposure to benzene," and concluded that "these costs are necessary in order to effectuate the statutory purpose . . . and to adequately protect employees from the hazards of exposure to benzene." 43 Fed.Reg. 5941 (1978).
210
In these circumstances it seems clear that the Secretary found a risk that is "significant" in the sense that the word is normally used. There was some direct evidence of chromosomal damage, nonmalignant blood disorders, and leukemia at exposures at or near 10 ppm and below. In addition, expert after expert testified that the recorded effects of benzene exposure at higher levels justified an inference that an exposure level above 1 ppm was dangerous. The plurality's extraordinarily searching scrutiny of this factual record reveals no basis for a conclusion that quantification is, on the basis of "the best available evidence," possible at the present time. If the Secretary decided to wait until definitive information was available, American workers would be subjected for the indefinite future to a possibly substantial risk of benzene-induced leukemia and other illnesses. It is unsurprising, at least to me, that he concluded that the statute authorized him to take regulatory action now.
211
Under these circumstances, the plurality's requirement of identification of a "significant" risk will have one of two consequences. If the plurality means to require the Secretary realistically to "quantify" the risk in order to satisfy a court that it is "significant," the record shows that the plurality means to require him to do the impossible. But the regulatory inaction has very significant costs of its own. The adoption of such a test would subject American workers to a continuing risk of cancer and other serious diseases; it would disable the Secretary from regulating a wide variety of carcinogens for which quantification simply cannot be undertaken at the present time.
212
There are encouraging signs that today's decision does not extend that far.29 My Brother POWELL concludes that the Secretary is not prevented from taking regulatory action "when reasonable quantification cannot be accomplished by any known methods." See ante, at 666. The plurality also indicates that it would not prohibit the Secretary from promulgating safety standards when quantification of the benefits is impossible. See ante, at 656-657, and n. 63. The Court might thus allow the Secretary to attempt to make a very rough quantification of the risk imposed by a carcinogenic substance, and give considerable deference to his finding that the risk was significant. If so, the Court would permit the Secretary to promulgate precisely the same regulation involved in these cases if he had not relied on a carcinogen "policy," but undertaken a review of the evidence and the expert testimony and concluded, on the basis of conservative assumptions, that the risk addressed is a significant one. Any other interpretation of the plurality's approach would allow a court to displace the agency's judgment with its own subjective conception of "significance," a duty to be performed without statutory guidance.
213
The consequences of this second approach would hardly be disastrous; indeed, it differs from my own principally in its assessment of the basis for the Secretary's decision in these cases. It is objectionable, however, for three reasons. First, the requirement of identification of a "significant" risk simply has no relationship to the statute that the Court today purports to construe. Second, if the "threshold finding" requirement means only that the Secretary must find "that there is a need for such a standard," ante, at 643, n. 48, the requirement was plainly satisfied by the Secretary's express statement that the standard's costs "are necessary in order to effectuate the statutory purpose . . . and to adequately protect employees from the hazards of exposure to benzene." 43 Fed.Reg. 5941 (1978). Third, the record amply demonstrates that in light of existing scientific knowledge, no purpose would be served by requiring the Secretary to take steps to quantify the risk of exposure to benzene at low levels. Any such quantification would be based not on scientific "knowledge" as that term is normally understood, but on considerations of policy. For carcinogens like benzene, the assumptions on which a dose-response curve must be based are necessarily arbitrary. To require a quantitative showing of a "significant" risk, therefore, would either paralyze the Secretary into inaction or force him to deceive the public by acting on the basis of assumptions that must be considered too speculative to support any realistic assessment of the relevant risk. See McGarity, Substantive and Procedural Discretion in Administrative Resolution of Science Policy Questions: Regulating Carcinogens in EPA and OSHA, 67 Geo.L.J. 729, 806 (1979). It is encouraging that the Court appears willing not to require quantification when it is not fairly possible. See ante, at 656-657, and n. 63.
214
Though it is difficult to see how a future Congress could be any more explicit on the matter than was the Congress that passed the Act in 1970, it is important to remember that today's decision is subject to legislative reversal. Congress may continue to believe that the Secretary should not be prevented from protecting American workers from cancer and other fatal diseases until scientific evidence has progressed to a point where he can convince a federal court that the risk is "significant." Today's decision is objectionable not because it is final, but because it places the burden of legislative inertia on the beneficiaries of the safety and health legislation in question in these cases. By allocating the burden in this fashion, the Court requires the American worker to return to the political arena and to win a victory that he won once before in 1970. I am unable to discern any justification for that result.
D
215
Since the plurality's construction of the "reasonably necessary or appropriate" clause is unsupportable, I turn to a brief discussion of the other arguments that respondents offer in support of the judgment below.
216
First, respondents characterize the Act as a pragmatic statute designed to balance the benefits of a safety and health regulation against its costs. Respondents observe that the statute speaks in terms of relative protection by providing that safety must be assured "so far as possible," 29 U.S.C. § 651(b), and by stating that the "no material impairment" requirement is to be imposed only "to the extent feasible."30 Respondents contend that the term feasible should be read to require consideration of the economic burden of a standard, not merely its technological achievability. I do not understand the Secretary to disagree. But respondents present no argument that the expenditure required by the benzene standard is not feasible in that respect. The Secretary concluded on the basis of substantial evidence that the costs of the standard would be readily absorbed by the 20 affected industries. One need not define the feasibility requirement with precision in order to conclude that the benzene standard is "feasible" in the sense that it will not materially harm the financial condition of the regulated industries.
217
Respondents suggest that the feasibility requirement should be understood not merely to refer to a standard's expense, but also to mandate a finding that the benefits of an occupational safety and health standard bear a reasonable relation to its costs. I believe that the statute's language, structure, and legislative history foreclose respondents' position. In its ordinary meaning an activity is "feasible" if it is capable of achievement, not if its benefits outweigh its costs. See Webster's Third New International Dictionary 831 (1976). Moreover, respondents' interpretation would render § 655(b)(5) internally inconsistent by reading into the term "feasible" a requirement irreconcilable with the express language authorizing the Secretary to set standards assuring that "no employee will suffer material impairment . . . ." Respondents' position would render that language merely hortatory. As noted above, no cost-benefit analysis is referred to at any point in the statute or its legislative history, an omission which cannot be deemed inadvertent in light of the explicit cost-benefit requirements inserted into other regulatory legislation.31 Finally, the legislative history of the feasibility requirement, see n. 8, supra, demonstrates that Congress' sole concern was that standards be economically and technologically achievable. The legislative intent was to prevent the Secretary from materially harming the financial condition of regulated industries in order to eliminate risks of impairment. Congress did not intend to preclude the Secretary from taking regulatory action where, as here, no such threat to industry is posed.32
218
In order to decide these cases, however, it is not necessary to resolve the question whether the term "feasible" may contemplate some balancing of the costs and benefits of regulatory action.33 Taking into account the uncertainties in existing knowledge, the Secretary made an express finding that the hazards of benzene exposure were sufficient to justify the regulation's costs. 43 Fed.Reg. 5941 (1978). Any requirement to balance costs and benefits cannot be read to invalidate this wholly rational conclusion. A contrary result, forcing the Secretary to wait for quantitative data that may not be available in the foreseeable future, would run directly counter to the protective purposes of the Act.34
219
Finally, respondents suggest broadly that the Secretary did not fulfill his statutory responsibility to act on the basis of "research, demonstrations, experiments," and to consider "the latest available scientific data in the field, the feasibility of the standards, and experience gained under this and other health and safety laws." 29 U.S.C. § 655(b)(5). Here, they contend, the Secretary based his decision solely on "views and arguments." Brief for Respondents American Petroleum Institute et al. 52. I disagree. The Secretary compiled an extensive record composed of over 50 volumes of exhibits. Most of those exhibits are the reported results of research and demonstrations representing "the latest available scientific data." The Secretary offered a careful discussion of these data in the statement accompanying the permanent standard. His ultimate conclusions were grounded in extensive findings of fact. Where, as here, there are gaps in existing knowledge, the Secretary's decision must necessarily be based on considerations of policy as well as on empirically verifiable facts.
220
In passing the Occupational Safety and Health Act of 1970, Congress was aware that it was authorizing the Secretary to regulate in areas of scientific uncertainty. But it intended to require stringent regulation even when definitive information was unavailable. In reducing the permissible level of exposure to benzene, the Secretary applied proper legal standards. His determinations are supported by substantial evidence The Secretary's decision was one, then, which the governing legislation authorized him to make.35
IV
221
In recent years there has been increasing recognition that the products of technological development may have harmful effects whose incidence and severity cannot be predicted with certainty. The responsibility to regulate such products has fallen to administrative agencies. Their task is not an enviable one. Frequently no clear causal link can be established between the regulated substance and the harm to be averted. Risks of harm are often uncertain, but inaction has considerable costs of its own. The agency must decide whether to take regulatory action against possibly substantial risks or to wait until more definitive information becomes available—a judgment which by its very nature cannot be based solely on determinations of fact.36
222
Those delegations, in turn, have been made on the understanding that judicial review would be available to ensure that the agency's determinations are supported by substantial evidence and that its actions do not exceed the limits set by Congress. In the Occupational Safety and Health Act, Congress expressed confidence that the courts would carry out this important responsibility. But in these cases the plurality has far exceeded its authority. The plurality's "threshold finding" requirement is nowhere to be found in the Act and is antithetical to its basic purposes. "The fundamental policy questions appropriately resolved in Congress . . . are not subject to re-examination in the federal courts under the guise of judicial review of agency action." Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S., at 558, 98 S.Ct., at 1219 (emphasis in original). Surely this is no less true of the decision to ensure safety for the American worker than the decision to proceed with nuclear power. See ibid.
223
Because the approach taken by the plurality is so plainly irreconcilable with the Court's proper institutional role, I am certain that it will not stand the test of time. In all likelihood, today's decision will come to be regarded as an extreme reaction to a regulatory scheme that, as the Members of the plurality perceived it, imposed an unduly harsh burden on regulated industries. But as the Constitution "does not enact Mr. Herbert Spencer's Social Statics," Lochner v. New York, 198 U.S. 45, 75, 25 S.Ct. 539, 546, 49 L.Ed. 937 (1905) (Holmes, J., dissenting), so the responsibility to scrutinize federal administrative action does not authorize this Court to strike its own balance between the costs and benefits of occupational safety standards. I am confident that the approach taken by the plurality today, like that in Lochner itself, will eventually be abandoned, and that the representative branches of government will once again be allowed to determine the level of safety and health protection to be accorded to the American worker.
1
The second and third sentences of this section, which impose feasibility limits on the Secretary and allow him to take into account the best available evidence in developing standards, may apply to all health and safety standards. This conclusion follows if the term "subsection" used in the second sentence refers to the entire subsection 6(b) (which sets out procedures for the adoption of all types of health and safety standards), rather than simply to the toxic materials subsection, § 6(b)(5). While Mr. Justice MARSHALL, post, at 694, and respondents agree with this position, see Brief for Respondents American Petroleum Institute et al. 39; see also Currie, OSHA, 1976 Am.Bar Found. Research J. 1107, 1137, n. 151, the Government does not, see Brief for Federal Parties 58; see also Berger & Riskin, Economic and Technological Feasibility in Regulating Toxic Substances Under the Occupational Safety and Health Act, 7 Ecology L.Q. 285, 294 (1978). There is no need for us to decide this issue in these cases.
2
The OSHA is the administrative agency within the Department of Labor that is responsible for promulgating and enforcing standards under the Act. In this opinion, we refer to the "Secretary," "OSHA" and the "Agency" interchangeably.
3
"The Act imposes on OSHA the obligation to enact only standards that are reasonably necessary or appropriate to provide safe or healthful workplaces. If a standard does not fit in this definition, it is not one that OSHA is authorized to enact." 581 F.2d, at 502.
4
"Although 29 U.S.C.A. § 655(b)(5) requires the goal of attaining the highest degree of health and safety protection for the employee, it does not give OSHA the unbridled discretion to adopt standards designed to create absolutely risk-free workplaces regardless of cost. To the contrary, that section requires standards to be feasible, and it contains a number of pragmatic limitations in the form of specific kinds of information OSHA must consider in enacting standards dealing with toxic materials. Those include 'the best available evidence,' 'research, demonstrations, experiments, and such other information as may be appropriate,' 'the latest available scientific data in the field,' and 'experience gained under this and other health and safety laws.' Moreover, in standards dealing with toxic materials, just as with all other occupational safety and health standards, the conditions and other requirements imposed by the standard must be 'reasonably necessary or appropriate to provide safe or healthful employment and places of employment.' 29 U.S.C.A. § 652(8)." Ibid.
5
"The lack of substantial evidence of discernable benefits is highlighted when one considers that OSHA is unable to point to any empirical evidence documenting a leukemia risk at 10 ppm even though that has been the permissible exposure limit since 1971. OSHA's assertion that benefits from reducing the permissible exposure limit from 10 ppm to 1 ppm are likely to be appreciable, an assumption based only on inferences drawn from studies involving much higher exposure levels rather than on studies involving these levels or sound statistical projections from the high-level studies, does not satisfy the reasonably necessary requirement limiting OSHA's action. Aqua Slide requires OSHA to estimate the extent of expected benefits in order to determine whether those benefits bear a reasonable relationship to the standard's demonstrably high costs." Id., at 503-504.
6
OSHA's figures indicate that 795,000 service station employees have some heightened exposure to benzene as a result of their employment. See 2 U.S. Dept. of Labor, OSHA, Technology Assessment and Economic Impact Study of an OSHA Regulation for Benzene, p. D-7 (May 1977) (hereinafter Economic Impact Statement), 11 Record, Ex. 5B, p. D-7. These employees are specifically excluded from the regulation at issue in this case. See infra, at 628. OSHA states that another 629,000 employees, who are covered by the regulation, work in the other industries described. 43 Fed.Reg. 5935 (1978).
It is not clear from the record or its explanation of the permanent standard how OSHA arrived at the estimate of 629,000 exposed employees. OSHA's consultant, Arthur D. Little, Inc., estimated that there were 191,000 exposed employees, 30,000 of whom were exposed to 1 ppm or more of benzene. 1 Economic Impact Statement, p. 3-5, 11 Record, Ex. 5A, p. 3-5. In its explanation of the permanent standard OSHA stated that there were 1,440 exposed employees who worked in benzene plants, 98,000 in other petroleum refineries, 24,000 in coke ovens, 4,000 in light oil plants, 2,760 in the petrochemical industry, 52,345 who worked in bulk terminals, 23,471 drivers who loaded benzene from those terminals, 74,000 in oil and gas production, 17,000 in pipeline work, 100 at tank-car facilities, 200 at tank-truck facilities, 480 on barges, 11,400 in tire-manufacturing plants, and 13,050 in other types of rubber production. 43 Fed.Reg. 5936-5938 (1978). Although OSHA gave no estimate for laboratory workers, the A. D. Little study indicated that there were 25,000 exposed workers in that industry. These figures add up to 347,246 exposed employees approximately 282,000 less than the overall estimate of 629,000. It is possible that some of all of these employees work in the "other industries" briefly described in OSHA's explanation; these are primarily small firms that manufacture adhesives, paint and ink or that use benzene solvents. Id., at 5939. No estimate of the number of exposed employees in those industries or the aggregate cost of compliance by those industries is given either by OSHA or by A. D. Little in its consulting report.
7
Section 6(a) of the Act, as set forth in 29 U.S.C. § 655(a), provides:
"Without regard to chapter 5 of Title 5 or to the other subsections of this section, the Secretary shall, as soon as practicable during the period beginning with the effective date of this chapter and ending two years after such date, by rule promulgate as an occupational safety or health standard any national consensus standard, and any established Federal standard, unless he determines that the promulgation of such a standard would not result in improved safety or health for specifically designated employees. In the event of conflict among any such standards, the Secretary shall promulgate the standard which assures the greatest protection of the safety or health of the affected employees."
In this case the Secretary complied with the directive to choose the most protective standard by selecting the ANSI standard of 10 ppm, rather than the 25 ppm standard adopted by the American Conference of Government Industrial Hygienists. 43 Fed.Reg. 5919 (1978).
8
See Delore & Borgomano, Leucemie aigue au cours de l'intoxication benzenique. Sur l'origine toxique de certaines leucemies aigues et leurs relations avec les anemies graves, 9 Journal de Medecine de Lyon 227 (1928). A translation of that document appears in the benzene administrative record. 2 Record, Ex. 2-60. See also Hunter, Chronic Exposure to Benzene (Benzol). II. The Clinical Effects, 21 J.Ind.Hyg. & Toxicol. 331 (1939), 3 Record, Ex. 2-74, which refers to "leucemia" as a side effect of chronic exposure to benzene.
9
Dr. Muzaffer Aksoy, a Turkish physician who testified at the hearing on the proposed benzene standard, did a number of studies concerning the effects of benzene exposure on Turkish shoemakers. The workers in Dr. Aksoy's studies used solvents containing large percentages of benzene and were constantly exposed to high concentrations of benzene vapors (between 150 and 650 ppm) under poorly ventilated and generally unhygienic conditions. See Aksoy, Acute Leukemia Due to Chronic Exposure to Benzene, 52 Am.J. of Medicine 160 (1972), 1 Record, Ex. 2-29; Aksoy, Benzene (Benzol): Its Toxicity and Effects on the Hematopoietic System, Istanbul Faculty of Medicine Monograph Series No. 51 (1970), 2 Record, Ex. 2-55; Aksoy, Erdem, & DinCol, Leukemia in Shoe-Workers Exposed Chronically to Benzene, 44 Blood 837 (1974), 2 Record, Ex. 2-53 (reporting on 26 shoeworkers who had contracted leukemia from 1967 to 1973; this represented an incidence of 13 per 100,000 rather than the 6 cases per 100,000 that would normally be expected).
Dr. Enrico Vigliani also reported an excess number of leukemia cases among Italian shoemakers exposed to glues containing a high percentage of benzene and workers in rotogravure plants who had been exposed over long periods of time to inks and solvents containing as much as 60% benzene. See Vigliani & Saita, Benzene & Leukemia, 271 New Eng.J. of Medicine 872-876 (1964), 1 Record, Ex. 2-27; Forni & Vigliani, Chemical Leukemogenesis in Man, 7 Ser.Haemat. 211 (1974), 2 Record, Ex. 2-50.
10
Title 29 U.S.C. § 669(a)(3) requires the Department of Health, Education, and Welfare (HEW) (now in part the Department of Health and Human Services) to develop "criteria" dealing with toxic materials and harmful physical agents that describe "exposure levels that are safe for various periods of employment." HEW's obligations under this section have been delegated to NIOSH, 29 U.S.C. § 671.
11
See Dept. of HEW, NIOSH, Criteria for a Recommended Standard—Occupational Exposure to Benzene 74-75 (Pub.No. 74-137, 1974), 1 Record, Ex. 2-3. In response to a letter from the Director of the Office of Standards Division, NIOSH stated that its 10 ppm standard was designed to protect against leukemia, as well as other health risks, NIOSH noted, however, that further research was necessary in order to establish adequate dose-response data for benzene and leukemia. 12 Record, Ex. 32A, 32B.
12
Aksoy published another study in 1976 reporting on an additional eight leukemia cases uncovered after 1973. In that article, he also noted that a 1969 ban on the use of benzene as a solvent had led to a decline in the number of reported leukemia cases beginning in 1974. Aksoy, Types of Leukemia in Chronic Benzene Poisoning, 55 Acta Haematologica 65 (1976), 1 Record, Ex. 2-30. Vigliani also noted a decline in leukemia cases in Italy after benzene was no longer used in glues and inks. See Vigliani & Forni, Benzene and Leukemia, 11 Environmental Res. 122 (1976), 1 Record, Ex. 2-15; Vigliani, Leukemia Associated with Benzene Exposure, 271 Annals N. Y. Acad. of Sciences 143 (1976), 2 Record, Ex. 2-49. In the latter study Vigliani noted that in the past 100% pure benzene solvents had been used and workers had been exposed on a prolonged basis to concentrations of 200-500 ppm, with peaks of up to 1500 ppm.
A number of epidemiological studies were also done among American rubber workers during this period. Dr. A. J. McMichael's studies indicated a ninefold increase in the risk of contracting leukemia among workers who were heavily exposed in the 1940's and 1950's to pure benzene used as a solvent. McMichael, Spirtas, Kupper, & Gamble, Solvent Exposure and Leukemia Among Rubber Workers: An Epidemiologic Study, 17 J. of Occup.Med. 234, 238 (1975), 2 Record, Ex. 2-37. See also Andjelkovic, Taulbee, & Symons, Mortality Experience of a Cohort of Rubber Workers, 1964-1973, 18 J. of Occup.Med. 387 (1976), 2 Record, Ex. 2-54 (also indicating an excess mortality rate from leukemia among rubber workers).
13
Section 655(c) provides:
"(1) The Secretary shall provide, without regard to the requirements of chapter 5 of title 5, for an emergency temporary standard to take immediate effect upon publication in the Federal Register if he determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.
"(2) Such standard shall be effective until superseded by a standard promulgated in accordance with the procedures prescribed in paragraph (3) of this subsection.
"(3) Upon publication of such standard in the Federal Register the Secretary shall commence a proceeding in accordance with subsection (b) of this section, and the standard as published shall also serve as a proposed rule for the proceeding. The Secretary shall promulgate a standard under this paragraph no later than six months after publication of the emergency standard as provided in paragraph (2) of this subsection."
14
At the hearing on the permanent standard NIOSH representatives testified that they had selected 1 ppm initially in connection with the issuance of a proposed standard for vinyl chloride. In that proceeding they had discovered that 1 ppm was approximately the lowest level detectable through the use of relatively unsophisticated monitoring instruments. With respect to benzene, they also thought that 1 ppm was an appropriate standard because any lower standard might require the elimination of the small amounts of benzene (in some places up to 0.5 ppm) that are normally present in the atmosphere. Tr. 1142-1143. NIOSH's recommendation was not based on any evaluation of the feasibility, either technological or economic, of eliminating all exposures above 1 ppm. Id., at 1156.
15
Seven fatalities from leukemia were discovered out of the 748 workers surveyed. However, Dr. Infante, who conducted the study, stated that his statistical techniques had probably underestimated the number of leukemia cases that had actually occurred. Id., at 747. The normal expected incidence of leukemia in such a population would be 1.4. 2 Record, Ex. 2-51, p. 6.
16
The authors' statement with respect to exposure levels was based on a 1946 report by the Ohio Industrial Commission indicating that, after some new ventilation equipment had been installed, exposures at the St. Marys plant had been brought within "safe" limits, in most instances ranging from zero to 10 to 15 ppm. Id., at 3. As the authors later admitted, the level considered "safe" in 1946 was 100 ppm. Tr. 814-815. Moreover, only one of the seven workers who died of leukemia had begun working at St. Marys after 1946. Five of the others had worked at the Akron plant, which employed 310 of the 748 workers surveyed. Id., at 2537-2538. A 1948 report by the Ohio Department of Health indicated exposure levels at the Akron plant of well over 100 ppm, with excursions in some areas up to 1,000 ppm. 17 Record, Ex. 84A, App. A, pp. 61-62. Surveys taken in the intervening years, as well as testimony by St. Marys employees at the hearing on the proposed standard, Tr. 3432-3437, indicated that both of the plants may have had relatively high exposures through the 1970's.
Industry representatives argued at the hearing that this evidence indicated that the exposure levels had been very high, as they had been in the other epidemiological studies conducted in the past. See Post-Hearing Brief for American Petroleum Institute in No. H-059 (OSHRC), pp. 23-37, 31 Record, Ex. 217-33, pp. 23-37. NIOSH witnesses, however, simply stated that actual exposure levels for the years in question could not be determined; they did agree, however, that their study should not be taken as proof of a fivefold increase in leukemia risk at 10-15 ppm. Tr. 814-815. In its explanation of the permanent standard, OSHA agreed with the NIOSH witnesses that no dose-response relationship could be inferred from the study:
"Comments at the hearing demonstrated that there were area exposures during this study period exceeding these levels [10-15 ppm], at times reaching values of hundreds of parts per million. Since no personal monitoring data are available, any conclusion regarding the actual individual time-weighted average exposure is speculative. Because of the lack of definitive exposure data, OSHA cannot derive any conclusions linking the excess leukemia risk observed with any specific exposure level." 43 Fed.Reg. 5927 (1978).
17
OSHA also sought public comment as to whether certain industries should be exempt from compliance, whether the proposed compliance procedures and labeling techniques were adequate, what the environmental and economic consequences of the regulation would be, and whether it was feasible to replace benzene in solvents and other products of which it constituted more than 1%.
18
It became clear at the hearing that OSHA had not promulgated the proposed standard in response to any new concern about the nonmalignant effects of low-level benzene exposure. See Tr. 126-127:
"Is it accurate to say that the reason why the—why OSHA has proposed to reduce the exposure limits in the standard below the current levels is because of a perceived risk of leukemia, and not because of any new evidence it has received that the current standards are inadequate to protect against acute or chronic benzene toxicity, other than leukemia?
"MR. WRENN: I think I will simply refer the part of my statement you were referring to, in which it says, it is however benzene's leukemogenicity which is of greatest concern to OSHA. That is certainly the central issue within the ETS [emergency temporary standard] and the proposed standard."
19
Mr. Wrenn testified:
"The proposed standard requires that employee exposure to benzene in air be reduced to one part per million, with a five part per million ceiling allowable over any fifteen minute period during an eight hour work shift, and prohibits eye or prolonged skin contact with liquid benzene.
"This airborne exposure limit is based on OSHA's established regulatory policy, that in the absence of a demonstrated safe level, or a no effect level for a carcinogen, it will be assumed that none exist, and that the agency will attempt to limit employee exposure to the lowest level feasible." Id., at 29-30.
See also:
"MR. WARREN: Mr. Wrenn, in promulgating the emergency temporary, and proposed permanent, benzene standards, OSHA relies heavily, and I am quoting from your testimony now, on the regulatory policy that there is no safe level for carcinogens at any—for any exposed population, and the fact that leukemia, and a leukemogen is a carcinogen, is that correct?
"MR. WRENN: I believe that I stated that slightly differently in my oral summary of the statement than it is stated in the statement itself. I said that in the absence of a known or demonstrated safe level or no effect level, our policy is to assume that none exists, and to regulate accordingly." Id., at 48-49.
"MR. WRENN: I would prefer to state it as I have on a couple of occasions already this morning, and that in the absence of a demonstrated safe level of exposure, we will assume that none exists for the purpose of regulatory policy." Id., at 50.
20
In answer to the question of what demonstration would suffice to establish a "safe level," Mr. Wrenn stated:
"I would like to draw a distinction, however, between what I have referred to as the demonstration that a safe level exists, and speculation or elaborate theories that one may make, and I think that the agency in its history and very likely its future regulatory policy, would, in the face of evidence demonstrating that a carcinogenic hazard does exist or did exist, in this particular set of circumstances, would be very reluctant to accept as the basis for its regulatory decisions, a theoretical argument that a safe level may, in fact, exist for a particular substance." Id., at 51-52.
A NIOSH representative who testified later put it more succinctly, stating that ". . . if benzene causes leukemia, and if leukemia is a cancer, then exposure really is almost moot." Id., at 1007.
21
An amendment to the standard was promulgated on June 27, 1978. 43 Fed.Reg. 27962. See n. 22, infra.
22
Apart from its exclusion of gasoline storage and distribution facilities (an exclusion retained in the final rule, see text, at n. 25, infra), the proposed rule also excluded from coverage work operations in which liquid mixtures containing 1% or less benzene were used. After a year this exclusion was to be narrowed to operations where 0.1% benzene solutions were used. The rationale for the exclusion was that airborne exposures from such liquids would generally be within the 1 ppm limit. However, testimony at the hearing on the proposed rule indicated that there was no "consistent predictable relationship" between benzene content in a liquid and the resulting airborne exposure. Therefore, OSHA abandoned the idea of a percentage exclusion for liquid benzene in its final standard. 43 Fed.Reg.5942 (1978).
OSHA later reconsidered its position and, in an amendment to the permanent standard, reinstated an exclusion for liquids, setting the level at 0.5%, to be reduced to 0.1% after three years, id., at 27962.
23
The exemption from the monitoring and medical testing portions of the standard for workplaces with benzene exposure levels below 0.5 ppm was not predicated on any finding that regulation of such workplaces was not feasible. OSHA's consultant, Arthur D. Little, Inc., concluded that 1 ppm was a feasible exposure limit even assuming that there was no action level (or, to put it another way, assuming that the action level was zero). Rather, it was, as NIOSH witnesses stated, a practical decision based on a determination that, where benzene exposures are below 0.5 ppm, they will be unlikely ever to rise above the permissible exposure level of 1 ppm. NIOSH was also concerned that, in the absence of an action level, employers who used sophisticated analytical equipment might be required to monitor and provide medical examinations simply because of the presence of benzene in the ambient air. Tr. 1030-1032, 1133-1134.
24
Indeed, in its explanation of the standard OSHA states that an employer is required to institute engineering controls (for example, installing new ventilation hoods) even if those controls are insufficient, by themselves, to achieve compliance and respirators must therefore be used as well. 43 Fed.Reg. 5952 (1978). OSHA's preference for engineering modifications is based on its opinion that respirators are rarely used properly (because they are uncomfortable, are often not properly fitted, etc.) and therefore cannot be considered adequate protective measures.
25
It is also inapplicable to work operations involving 0.5% liquid benzene (0.1% after three years), see n. 22, supra, and to the handling of benzene in sealed containers or systems, except insofar as employers are required to provide cautionary notices and appropriate employee training.
26
Prior to the introduction of the action-level concept, A. D. Little estimated that compliance costs for the service station industry might be as high as $4 billion. Tr. 508-509. Moreover, A. D. Little's Economic Impact Statement indicated that service station employees were generally exposed to very low levels of benzene. 1 Economic Impact Statement, p. 4-21; 11 Record, Ex. 5A, p. 4-21. Still, in its explanation accompanying the permanent standard OSHA did not rule out regulation of this industry entirely, stating that it was in the process of studying whether and to what extent it should regulate exposures to gasoline in general. 43 Fed.Reg. 5943 (1978).
27
OSHA's estimate of recurring annual costs was based on the assumption that the exposure levels it had projected would be confirmed by initial monitoring and that, after the first year, engineering controls would be successful in bringing most exposures within the 1 ppm limit. Under these circumstances, the need for monitoring, medical examinations, and respirators would, of course, be drastically reduced.
28
Three hundred of these employees work in benzene plants, 5,000 in other petroleum refineries, 4,000 in light oil plants, 552 in the petrochemical industry, 156 in benzene transportation, 1,250 in laboratories, 11,400 in tire-manufacturing plants, and 13,050 in other rubber-manufacturing plants. OSHA also estimated that another 16,216 workers (5,000 in petroleum refineries, 1,104 in the petrochemical industry, 7,300 in bulk terminals, 312 in benzene transportation, and 2,500 in laboratories) would be exposed to 0.5 to 1 ppm of benzene and thus would receive a benefit in terms of more comprehensive medical examinations. Id., at 5936-5938.
29
The high cost per employee in the latter two industries is attributable to OSHA's policy of requiring engineering controls rather than allowing respirators to be used to reduce exposures to the permissible limit. The relatively low estimated cost per employee in the rubber industry is based on OSHA's assumption that other solvents and adhesives can be substituted for those that contain benzene and that capital costs will therefore not be required.
30
The other issue before us is whether the Court of Appeals correctly refused to enforce the dermal contact ban. That issue is discussed in Part IV, infra.
In the court below respondents also challenged the monitoring and medical testing requirements, arguing that certain industries should have been totally exempt from them and that, as to other industries, the Agency had not demonstrated that all the requirements were reasonably necessary to ensure worker health and safety. They also argued that OSHA's requirement that the permissible exposure limit be met through engineering controls rather than through respirators was not reasonably necessary under the Act. Because it invalidated the 1 ppm exposure limit, the Fifth Circuit had no occasion to deal with these issues, and they are not now before this Court.
31
As we have often held, the validity of an agency's determination must be judged on the basis of the agency's stated reasons for making that determination. See SEC v. Chenery Corp., 318 U.S. 80, 95, 63 S.Ct. 454, 462, 87 L.Ed. 626 ("[A]n administrative order cannot be upheld unless the grounds upon which the agency acted in exercising its powers were those upon which its action can be sustained"); FPC v. Texaco Inc., 417 U.S. 380, 397, 94 S.Ct. 2315, 2326, 41 L.Ed.2d 141; FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 249, 92 S.Ct. 898, 907, 31 L.Ed.2d 170.
32
As OSHA itself noted, some blood abnormalities caused by benzene exposure may not have any discernible health effects, while others may lead to significant impairment and even death. 43 Fed.Reg. 5921 (1978).
33
"A dose-response curve shows the relationship between different exposure levels and the risk of cancer [or any other disease] associated with those exposure levels. Generally, exposure to higher levels carries with it a higher risk, and exposure to lower levels is accompanied by a reduced risk." 581 F.2d, at 504, n. 24.
OSHA's comments with respect to the insufficiency of the data were addressed primarily to the lack of data at low exposure levels. OSHA did not discuss whether it was possible to make a rough estimate, based on the more complete epidemiological and animal studies done at higher exposure levels, of the significance of the risks attributable to those levels, nor did it discuss whether it was possible to extrapolate from such estimates to derive a risk estimate for low-level exposures.
34
OSHA did not invoke the automatic rule of reducing exposures to the lowest limit feasible that it applies to cancer risks. Instead, the Secretary reasoned that prudent health policy merely required that the permissible exposure limit be set "sufficiently below the levels at which adverse effects have been observed to assure adequate protection for all exposed employees." 43 Fed.Reg. 5925 (1978). While OSHA concluded that application of this rule would lead to an exposure limit "substantially less than 10 ppm," it did not state either what exposure level it considered to present a significant risk of harm or what safety factor should be applied to that level to establish a permissible exposure limit.
35
While citing these studies, OSHA also noted that other studies of similarly exposed workers had not indicated any increased level of chromosome damage.
36
"The evidence in the record conclusively establishes that benzene is a human carcinogen. The determination of benzene's leukemogenicity is derived from the evaluation of all the evidence in totality and is not based on any one particular study. OSHA recognizes, as indicated above that individual reports vary considerably in quality, and that some investigations have significant methodological deficiencies. While recognizing the strengths and weaknesses in individual studies, OSHA nevertheless concludes that the benzene record as a whole clearly establishes a causal relationship between benzene and leukemia." Id., at 5931.
37
In rejecting these studies, OSHA stated that: "Although the epidemiological method can provide strong evidence of a causal relationship between exposure and disease in the case of positive findings, it is by its very nature relatively crude and an insensitive measure." After noting a number of specific ways in which such studies are often defective, the Agency stated that it is "OSHA's policy when evaluating negative studies, to hold them to higher standards of methodological accuracy." Id., at 5931-5932. Viewing the industry studies in this light, OSHA concluded that each of them had sufficient methodological defects to make them unreliable indicators of the safety of low-level exposures to benzene.
38
OSHA rejected this testimony in part because it believed the exposure data in the epidemiological studies to be inadequate to formulate a dose-response curve. It also indicated that even if the testimony was accepted—indeed as long as there was any increase in the risk of cancer—the Agency was under an obligation to "select the level of exposure which is most protective of exposed employees." Id., at 5941.
39
In his dissenting opinion, Mr. Justice MARSHALL states that the Agency did not rely "blindly on some Draconian carcinogen 'policy' " in setting a permissible exposure limit for benzene. He points to the large number of witnesses the Agency heard and the voluminous record it compiled as evidence that it relied instead on the particular facts concerning benzene. With all due respect, we disagree with Mr. Justice MARSHALL's interpretation of the Agency's rationale for its decision. After hearing the evidence, the Agency relied on the same policy view it had stated at the outset, see supra, at 623-625, namely, that, in the absence of clear evidence to the contrary, it must be assumed that no safe level exists for exposure to a carcinogen. The Agency also reached the entirely predictable conclusion that industry had not carried its concededly impossible burden, see n. 41, infra, of proving that a safe level of exposure exists for benzene. As the Agency made clear later in its proposed generic cancer policy, see n. 51, infra, it felt compelled to allow industry witnesses to go over the same ground in each regulation dealing with a carcinogen, despite its policy view. The generic policy, which has not yet gone into effect, was specifically designed to eliminate this duplication of effort in each case by foreclosing industry from arguing that there is a safe level for the particular carcinogen being regulated. 42 Fed.Reg. 54154-54155 (1977).
40
"As stated above, the positive studies on benzene demonstrate the causal relationship of benzene to the induction of leukemia. Although these studies, for the most part involve high exposure levels, it is OSHA's view that once the carcinogenicity of a substance has been established qualitatively, any exposure must be considered to be attended by risk when considering any given population. OSHA therefore believes that occupational exposure to benzene at low levels poses a carcinogenic risk to workers." 43 Fed.Reg. 5932 (1978).
41
The so-called "one hit" theory is based on laboratory studies indicating that one molecule of a carcinogen may react in the test tube with one molecule of DNA to produce a mutation. The theory is that, if this occurred in the human body, the mutated molecule could replicate over a period of years and eventually develop into a cancerous tumor. See OSHA's Proposed Rule on the Identification, Classification and Regulation of Toxic Substances Posing a Potential Carcinogenic Risk, 42 Fed.Reg. 54148, 54165-54167 (1977). Industry witnesses challenged this theory, arguing that the presence of several different defense mechanisms in the human body make it unlikely that a person would actually contract cancer as a result of absorbing one carcinogenic molecule. Thus, the molecule might be detoxified before reaching a critical site, damage to a DNA molecule might be repaired, or a mutated DNA molecule might be destroyed by the body's immunological defenses before it could develop into a cancer. Tr. 2836.
In light of the improbability of a person's contracting cancer as a result of a single hit, a number of the scientists testifying on both sides of the issue agreed that every individual probably does have a threshold exposure limit below which he or she will not contract cancer. See, e. g., id., at 1179-1181. The problem, however, is that individual susceptibility appears to vary greatly and there is at present no way to calculate each and every person's threshold. Thus, even industry witnesses agreed that if the standard must ensure with absolute certainty that every single worker is protected from any risk of leukemia, only a zero exposure limit would suffice. Id., at 2492, 2830.
42
"There is no doubt that benzene is a carcinogen and must, for the protection and safety of workers, be regulated as such. Given the inability to demonstrate a threshold or establish a safe level, it is appropriate that OSHA prescribe that the permissible exposure to benzene be reduced to the lowest level feasible." 43 Fed.Reg. 5932 (1978).
43
At an earlier point in its explanation, OSHA stated:
"There is general agreement that benzene exposure causes leukemia as well as other fatal diseases of the bloodforming organs. In spite of the certainty of this conclusion, there does not exist an adequate scientific basis for establishing the quantitative dose response relationship between exposure to benzene and the induction of leukemia and other blood diseases. The uncertainty in both the actual magnitude of expected deaths and in the theory of extrapolation from existing data to the OSHA exposure levels places the estimation of benefits on 'the frontiers of scientific knowledge.' While the actual estimation of the number of cancers to be prevented is highly uncertain, the evidence indicates that the number may be appreciable. There is general agreement that even in the absence of the ability to establish a 'threshold' or 'safe' level for benzene and other carcinogens, a dose response relationship is likely to exist; that is, exposure to higher doses carries with it a higher risk of cancer, and conversely, exposure to lower levels is accompanied by a reduced risk, even though a precise quantitative relationship cannot be established." Id., at 5940.
44
The court did, however, hold that the Agency's other conclusions—that there is some risk of leukemia at 10 ppm and that the risk would decrease by decreasing the exposure limit to 1 ppm were supported by substantial evidence. 581 F.2d, at 503.
45
We cannot accept the argument that § 3(8) is totally meaningless. The Act authorized the Secretary to promulgate three different kinds of standards—national consensus standards, permanent standards, and temporary emergency standards. The only substantive criteria given for two of these—national consensus standards and permanent standards for safety hazards not covered by § 6(b)(5)—are set forth in § 3. While it is true that § 3 is entitled "definitions," that fact does not drain each definition of substantive content. For otherwise there would be no purpose in defining the critical terms of the statute. Moreover, if the definitions were ignored, there would be no statutory criteria at all to guide the Secretary in promulgating either national consensus standards or permanent standards other than those dealing with toxic materials and harmful physical agents. We may not expect Congress to display perfect craftsmanship, but it is unrealistic to assume that it intended to give no direction whatsoever to the Secretary in promulgating most of his standards.
The structure of the separate subsection describing emergency temporary standards, 29 U.S.C. § 655(c), quoted in n. 13, supra, supports this conclusion. It authorizes the Secretary to bypass the normal procedures for setting permanent standards if he makes two findings: (A) that employees are exposed to "grave danger" from exposure to toxic substances and (B) that an emergency standard is "necessary" to protect the employees from that danger. Those findings are to be compared with those that are implicitly required by the definition of the permanent standard—(A) that there be a significant—as opposed to a "grave"—risk, and (B) that additional regulation is "reasonably necessary or appropriate"—as opposed to "necessary." It would be anomalous for Congress to require specific findings for temporary standards but to give the Secretary a carte blanche for permanent standards.
46
The Government does not concede that the feasibility requirement in the second sentence of § 6(b)(5) applies to health and safety standards other than toxic substances standards. See n. 1, supra. However, even if it did the Government's interpretation of the term "feasible," when coupled with its view of § 3(8), would still allow the Agency to require the elimination of even insignificant risks at great cost, so long as an entire industry's viability would not be jeopardized.
47
Section 6(b)(5) parallels § 6(a) in this respect. Section 6(a) requires the Secretary, when faced with a choice between two national consensus standards, to choose the more protective standard, see n. 7, supra. Just as § 6(a) does not suggest that this more protective standard need not meet the definition of a national consensus standard set forth in § 3(9), so § 6(b)(5) does not suggest that the most protective toxic material standard need not conform to the definition of a "standard" in § 3(8).
48
The rest of § 6(b)(5), while requiring the Secretary to promulgate the standard that "most adequately assures . . . that no employee will suffer material impairment of health or functional capacity," also contains phrases implying that the Secretary should consider differences in degrees of significance rather than simply a total elimination of all risks. Thus, the standard to be selected is one that "most adequately assures, to the extent feasible, on the basis of the best available evidence," that no such harm will result. The Secretary is also directed to take into account "research, demonstrations, experiments, and such other information as may be appropriate" and to consider "[i]n addition to the attainment of the highest degree of health and safety protection for the employee . . . the latest available scientific data in the field, the feasibility of the standards, and experience gained under this and other health and safety laws."
Mr. Justice MARSHALL states that our view of § 3(8) would make the first sentence in § 6(b)(5) superfluous. We disagree. The first sentence of § 6(b)(5) requires the Secretary to select a highly protective standard once he has determined that a standard should be promulgated. The threshold finding that there is a need for such a standard in the sense that there is a significant risk in the workplace is not unlike the threshold finding that a chemical is toxic or a physical agent is harmful. Once the Secretary has made the requisite threshold finding, § 6(b)(5) directs him to choose the most protective standard that still meets the definition of a standard under § 3(8), consistent with feasibility.
49
"First, 29 U.S.C. § 655(g) requires the Secretary to establish priorities in setting occupational health and safety standards so that the more serious hazards are addressed first. In setting such priorities the Secretary must, of course, consider the relative costs, benefits and risks." Reply Brief for Federal Parties 13. The Government argues that the Secretary's setting of priorities under this section is not subject to judicial review. Tr. of Oral Arg. 23. While we agree that a court cannot tell the Secretary which of two admittedly significant risks he should act to regulate first, this section, along with §§ 3(8) and 6(b)(5), indicates that the Act does limit the Secretary's power to requiring the elimination of significant risks.
50
Section 6(b)(8), as set forth in 29 U.S.C. § 655(b)(8), provides:
"Whenever a rule promulgated by the Secretary differs substantially from an existing national consensus standard, the Secretary shall, at the same time, publish in the Federal Register a statement of the reasons why the rule as adopted will better effectuate the purposes of this chapter than the national consensus standard."
51
OSHA's proposed generic cancer policy, 42 Fed.Reg. 54148 (1977), indicates that this possibility is not merely hypothetical. Under its proposal, whenever there is a certain quantum of proof—either from animal experiments, or, less frequently, from epidemiological studies—that a substance causes cancer at any exposure level, an emergency temporary standard would be promulgated immediately, requiring employers to provide monitoring and medical examinations and to reduce exposures to the lowest feasible level. A proposed rule would then be issued along the same lines, with objecting employers effectively foreclosed from presenting evidence that there is little or no risk associated with current exposure levels. Id., at 54154-54155; 29 CFR, Part 1990 (1977).
The scope of the proposed regulation is indicated by the fact that NIOSH has published a list of 2,415 potential occupational carcinogens, NIOSH, Suspected Carcinogens: A Subfile of the Registry of Toxic Effects of Chemical Substances (HEW Pub. No. 77-149, 2d ed. 1976). OSHA has tentatively concluded that 269 of these substances have been proved to be carcinogens and therefore should be subject to full regulation. See OSHA Press Release, USDL 78-625 (July 14, 1978).
52
In criticizing the Committee bill, Senator Dominick also made the following observations:
"It is unrealistic to attempt, as this section apparently does, to establish a utopia free from any hazards. Absolute safety is an impossibility and it will only create confusion in the administration of this act for the Congress to set clearly unattainable goals." 116 Cong.Rec. 37614 (1970), Leg.Hist. 480.
"But I ask, Mr. President, just thinking about that language, let us take a fellow who is a streetcar conductor or a bus conductor at the present time. How in the world, in the process of the pollution we have in the streets or in the process of the automobile accidents that we have all during a working day of any one driving a bus or trolley car, or whatever it may be, can we set standards that will make sure he will not have any risk to his life for the rest of his life? It is totally impossible for this to be put in a bill; and yet it is in the committee bill." 116 Cong.Rec., at 37337, Leg.Hist. 423.
As an opponent of the legislation, Senator Dominick may have exaggerated the significance of the problem since the language in § 3(8) already was sufficient to prevent the Secretary from trying "to establish a utopia free from any hazards." Nevertheless, the fact that Congress amended the bill to allay Senator Dominick's concern demonstrates that it did not intend the statute to achieve "clearly unattainable goals."
53
Senator Dominick had also been concerned that the placement of the word "feasibly" could be read to require the Secretary to "ban all occupations in which there remains some risk of injury, impaired health, or life expectancy," since the way to most "adequately" and "feasibly" assure absolute protection might well be to prohibit the occupation entirely. 116 Cong.Rec., at 36530, Leg.Hist. 366-367. In his final amendment, he attempted to cure this problem by relocating the feasibility requirement, changing "the standard which most adequately and feasibly assures" to "the standard which most adequately assures, to the extent feasible."
54
Mr. Justice MARSHALL argues that Congress could not have thought § 3(8) had any substantive meaning inasmuch as § 6(b)(5), as originally drafted, applied to all standards and not simply to standards for toxic materials and harmful physical substances. However, as this legislative history indicates, it appears that the omission of the words "toxic substances" and "harmful physical agents" from the original draft of § 6(b)(5) was entirely inadvertent. As Senator Dominick noted, the Committee had always intended that subsection to apply only to that limited category of substances. The reason that Congress drafted a special section for these substances was not, as Mr. Justice MARSHALL suggests, because it thought that there was a need for special protection in these areas. Rather, it was because Congress recognized that there were special problems in regulating health risks as opposed to safety risks. In the latter case, the risks are generally immediate and obvious, while in the former, the risks may not be evident until a worker has been exposed for long periods of time to particular substances. It was to ensure that the Secretary took account of these long-term risks that Congress enacted § 6(b)(5).
55
Reply Brief for Federal Parties 24-26. While it is true that some of Senator Dominick's comments were concerned with the relative unimportance of minor injuries (see his "fly" example quoted supra, at 647), it is clear that he was also concerned with the remote possibility of major injuries, see n. 52, supra.
56
One union suggested a 0.5 ppm permissible exposure limit for oil refineries and a 1 ppm ceiling (rather than a time-weighted average) exposure for all other industries, with no use of an action level, Tr. 1250, 1257. Another wanted a 1 ppm ceiling limit for all industries, id., at 3375-3376.
57
"A need for an action level is also suggested by the record evidence that some minimal exposure to benzene occurs naturally from animal and plant matter (Tr. 749-750; 759-760). Naturally occurring benzene concentrations, it appears, may range from 0.02 to 15 parts per billion (Ex. 117, p. 1). Additionally, it was suggested by certain employers that their operations be exempted from the requirements of the standard because those operations involve only intermittent and low level exposures to benzene. The use of the action level concept should accommodate these concerns in all cases where exposures are indeed extremely low since it substantially reduces the monitoring of employees who are below the action level and removes for these employees the requirements for medical surveillance. At the same time, employees with significant overexposure are afforded the full protection of the standard." (Emphasis added.) 43 Fed.Reg. 5942 (1978).
58
The Government also states that it is OSHA's policy to attempt to quantify benefits wherever possible. While this is certainly a reasonable position, it is not consistent with OSHA's own view of its duty under § 6(b)(5). In light of the inconsistencies in OSHA's position and the legislative history of the Act, we decline to defer to the Agency's interpretation.
59
In Florida Peach Growers Assn., Inc. v. U. S. Dept. of Labor, 489 F.2d 120, 130, and n. 16 (CA5 1974), the court noted that Congress intended to restrict the use of emergency standards, which are promulgated without any notice or hearing. It held that, in promulgating an emergency standard, OSHA must find not only a danger of exposure or even some danger from exposure, but also a grave danger from exposure necessitating emergency action. Accord, Dry Color Mfrs. Assn., Inc. v. U. S. Dept. of Labor, 486 F.2d 98, 100 (CA3 1973) (an emergency standard must be supported by something more than a possibility that a substance may cause cancer in man).
Congress also carefully circumscribed the Secretary's enforcement powers by creating a new, independent board to handle appeals from citations issued by the Secretary for noncompliance with health and safety standards. See 29 U.S.C. §§ 659-661.
60
As noted above, OSHA acknowledged that there was no empirical evidence to support the conclusion that there was any risk whatsoever of deaths due to exposures at 10 ppm. What OSHA relied upon was a theory that, because leukemia deaths had occurred at much higher exposures, some (although fewer) were also likely to occur at relatively low exposures. The Court of Appeals specifically held that its conclusion that the number was "likely" to be appreciable was unsupported by the record. See supra, at 638.
61
See Environmental Defense Fund, Inc. v. EPA, 179 U.S.App.D.C. 43, 49, 57-63, 548 F.2d 998, 1004, 1012-1018 (1977), cert. denied, 431 U.S. 925, 97 S.Ct. 2199, 53 L.Ed.2d 239, where the court rejected the argument that the EPA has the burden of proving that a pesticide is unsafe in order to suspend its registration under the Federal Insecticide, Fungicide, and Rodenticide Act. The court noted that Congress had deliberately shifted the ordinary burden of proof under the Administrative Procedure Act, requiring manufacturers to establish the continued safety of their products.
62
In his dissenting opinion, post, at 706, Mr. Justice MARSHALL states: "[W]hen the question involves determination of the acceptable level of risk, the ultimate decision must necessarily be based on considerations of policy as well as empirically verifiable facts. Factual determinations can at most define the risk in some statistical way; the judgment whether that risk is tolerable cannot be based solely on a resolution of the facts." We agree. Thus, while the Agency must support its finding that a certain level of risk exists by substantial evidence, we recognize that its determination that a particular level of risk is "significant" will be based largely on policy considerations. At this point we have no need to reach the issue of what level of scrutiny a reviewing court should apply to the latter type of determination.
63
Mr. Justice MARSHALL states that, under our approach, the Agency must either wait for deaths to occur or must "deceive the public" by making a basically meaningless determination of significance based on totally inadequate evidence. Mr. Justice MARSHALL's view, however, rests on the erroneous premise that the only reason OSHA did not attempt to quantify benefits in this case was because it could not do so in any reasonable manner. As the discussion of the Agency's rejection of an industry attempt at formulating a dose-response curve demonstrates, however, see supra, at 653-655, the Agency's rejection of methods such as dose-response curves was based at least in part on its view that nothing less than absolute safety would suffice.
64
For example, in the coke-oven emissions standard, OSHA had calculated that 21,000 exposed coke-oven workers had an annual excess mortality of over 200 and that the proposed standard might well eliminate the risk entirely. 41 Fed.Reg. 46742, 46750 (1976), upheld in American Iron & Steel Inst. v. OSHA, 577 F.2d 825 (CA3 1978), cert. granted 448 U.S. 909, 100 S.Ct. 3054, 65 L.Ed.2d 1139. In hearings on the coke-oven emissions standard the Council on Wage and Price Stability estimated that 8 to 35 lives would be saved each year, out of an estimated population of 14,000 workers, as a result of the proposed standard. Although noting that the range of benefits would vary depending on the assumptions used, OSHA did not make a finding as to whether its own staff estimate or CWPS's was correct, on the ground that it was not required to quantify the expected benefits of the standard or to weigh those benefits against the projected costs.
In other proceedings, the Agency has had a good deal of data from animal experiments on which it could base a conclusion on the significance of the risk. For example, the record on the vinyl chloride standard indicated that a significant number of animals had developed tumors of the liver, lung, and skin when they were exposed to 50 ppm of vinyl chloride over a period of 11 months. One hundred out of 200 animals died during that period. 39 Fed.Reg. 35890, 35891 (1974). Similarly, in a 1974 standard regulating 14 carcinogens, OSHA found that one of the substances had caused lung cancer in mice or rats at 1 ppm and even 0.1 ppm, while another had caused tumors in 80% of the animals subjected to high doses. Id., at 3756, 3757, upheld in Synthetic Organic Chemical Mfrs. Assn. v. Brennan, 503 F.2d 1155 (CA3 1974), cert. denied, 420 U.S. 973, 95 S.Ct. 1396, 43 L.Ed.2d 653, Synthetic Organic Chemical Mfrs. Assn. v. Brennan, 506 F.2d 385 (CA3 1974), cert. denied, 423 U.S. 830, 96 S.Ct. 50, 46 L.Ed.2d 48.
In this case the Agency did not have the benefit of animal studies, because scientists have been unable as yet to induce leukemia in experimental animals as a result of benzene exposure. It did, however, have a fair amount of epidemiological evidence, including both positive and negative studies. Although the Agency stated that this evidence was insufficient to construct a precise correlation between exposure levels and cancer risks, it would at least be helpful in determining whether it is more likely than not that there is a significant risk at 10 ppm.
65
See GAF Corp. v. Occupational Safety and Health Review Comm'n, 183 U.S.App.D.C. 20, 561 F.2d 913 (1977), where the court upheld the asbestos standard insofar as it required employers to provide medical examinations for employees exposed to any asbestos fibers, even if they were exposed to concentrations below the permissible exposure limit.
The respondent industry representatives have never disputed OSHA's power to require monitoring and medical examinations in general, although they did object to some of the specific requirements imposed in this case. See n. 30, supra. Because of our disposition of the case, we have no occasion to pass on these specific objections or to determine what cost-benefit considerations, if any, should govern the Agency's imposition of such requirements.
66
This is precisely the type of information-gathering function that Congress had in mind when it enacted § 6(b)(7), which empowers the Secretary to require medical examinations to be furnished to employees exposed to certain hazards and potential hazards "in order to most effectively determine whether the health of such employees is adversely affected by such exposure." See S.Rep. No. 91-1282, p. 7 (1970), Leg.Hist. 147.
67
In its explanation of the final standard OSHA noted that there was some testimony that blood abnormalities would disappear after exposure had ceased. 43 Fed.Reg. 5946 (1978). Again, however, OSHA refused to rely on the hypothesis that this would always occur. Yet, in requiring medical examinations of employees exposed to between 0.5 ppm and 1 ppm, OSHA was essentially providing itself with the same kind of backstop.
1
These portions of the plurality opinion primarily address OSHA's special carcinogen policy, rather than OSHA's argument that it also made evidentiary findings. I do not necessarily agree with every observation in the plurality opinion concerning the presence or absence of such findings. I also express no view on the question whether a different interpretation of the statute would violate the nondelegation doctrine of A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935), and Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935). See post, at 672-687 (REHNQUIST, J., concurring in judgment).
2
The Secretary of Labor promulgated the relevant standard pursuant to his statutory authority. Since OSHA is the agency responsible for developing such regulations under the Secretary's direction, this opinion refers to "OSHA" or "the agency" as the decisionmaker most directly concerned.
3
OSHA has adopted a formal policy for regulating carcinogens effective April 21, 1980. 45 Fed.Reg. 5282 (1980) (to be codified at 29 CFR, Part 1990). But no such policy was in effect when the agency promulgated its benzene regulation. Moreover, neither the factual determinations nor the administrative judgments upon which the policy rests are supported adequately on this record alone. Accordingly, we have no occasion to consider the extent to which valid agency policies may supply a basis for a finding that health risks exist in particular cases.
4
OSHA argues that § 6(b)(5) requires it to promulgate standards that are "feasible" only in the sense that they are "capable of achievement"; that is, achievable "at bearable cost with available technology." Brief for Federal Parties 57. The lower courts have indicated that a standard is not "infeasible" under OSHA's test unless it would precipitate "massive economic dislocation" in the affected industry. See, e. g., American Federation of Labor v. Brennan, 530 F.2d 109, 123 (CA3 1975). In this case, OSHA simply asked a consulting firm to ascertain the costs of complying with a 1 ppm standard. See ante, at 621. OSHA then concluded that "the economic impact of [compliance] will not . . . threaten the financial welfare of the affected firms or the general economy." 43 Fed.Reg. 5939 (1978). The cost of complying with a standard may be "bearable" and still not reasonably related to the benefits expected. A manufacturing company, for example, may have financial resources that enable it to pay the OSHA-ordered costs. But expenditures for unproductive purposes may limit seriously its financial ability to remain competitive and provide jobs.
5
I will not repeat the detailed summary of the legislative history contained in the plurality opinion. Ante, at 646-652. Many of the considerations that the plurality relies upon to show Congress' concern with significant harms persuade me that Congress did not intend OSHA to reduce each significant hazard without regard to economic consequences. Senator Williams, a sponsor of the legislation, stated: "Our bill is fair and reasonable. It is a good-faith effort to balance the need of workers to have a sa[f]e and healthy work environment against the requirement of industry to function without undue interference." 116 Cong.Rec. 37342 (1970), Legislative History of the Occupational Safety and Health Act of 1970 (Committee Print compiled for the Senate Committee on Labor and Public Welfare), p. 435 (1971). There could no such "balance" if OSHA were authorized to impose standards without regard to economic consequences short of serious dislocation.
Senator Dominick described a preliminary version of § 6(b)(5) as follows:
"What we were trying to do in the bill . . . was to say that when we are dealing with toxic agents or physical agents, we ought to take such steps as are feasible and practical to provide an atmosphere within which a person's health or safety would not be affected. Unfortunately, we had language providing that anyone [sic ] would be assured that no one would have a hazard. . . .
"It was an unrealistic standard. . . ." 116 Cong.Rec. 37622 (1970), Legislative History, supra, at 502 (emphasis added).
Senator Dominick's objection to the "unrealistic" standard of the forerunner of § 6(b)(5) does not imply that he thought § 3(8) of the Act lacked substantive content. See post, at 710-711 (MARSHALL, J., dissenting). The Senator hardly would have proposed that § 6(b)(5) be deleted entirely, see ante, at 647, if he had not thought that other sections of the Act required health regulations that were reasonable and practical.
6
Congress has assigned OSHA an extremely difficult and complex task, and the guidance afforded OSHA is considerably less than clear. The agency's primary responsibility, reflected in its title, is to minimize health and safety risks in the workplace. Yet the economic health of our highly industrialized society requires a high rate of employment and an adequate response to increasingly vigorous foreign competition. There can be little doubt that Congress intended OSHA to balance reasonably the societal interest in health and safety with the often conflicting goal of maintaining a strong national economy.
7
For example, OSHA's reading of § 6(b)(5) could force the depletion of an industry's resources in an effort to reduce a single risk by some speculative amount, even though other significant risks remain unregulated.
8
The decision that costs justify benefits is largely a policy judgment delegated to OSHA by Congress. When a court reviews such judgments under the "substantial evidence" standard mandated by 29 U.S.C. § 655(f), the court must determine whether the responsible agency has "careful[ly] identifi[ed] . . . the reasons why [it] chooses to follow one course rather than another" as the most reasonable method of effectuating the purposes of the applicable law. Industrial Union Dept. v. Hodgson, 162 U.S.App.D.C. 331, 339-340, 499 F.2d 467, 475-476 (1974). Since OSHA failed to identify its reasons in these cases, I express no opinion as to the standard of review that may be appropriate in other situations.
1
J. Locke, Second Treatise of Civil Government, in the Tradition of Freedom, ¶ 141, p. 244 (M. Mayer ed. 1957). In the same treatise, Locke also wrote that "[t]he legislative cannot transfer the power of making laws to any other hands; for it being but a delegated power from the people, they who have it cannot pass it over to others." Ibid.
2
As early as 1812, this Court had considered and rejected an argument that a statute authorizing the President to terminate a trade embargo on Britain and France if those two nations ceased violating "the neutral commerce of the United States" delegated too much discretion to the Executive Branch. See The Brig Aurora v. United States, 7 Cranch 382, 383, 386, 388, 11 U.S. 382, 3 L.Ed. 378.
3
Respondents argue that, despite its seemingly general application, the original version of § 6(b)(5) actually referred only to health hazards as opposed to safety hazards. See Addendum B to Brief for Respondents American Petroleum Institute et al. 5b-6b. In support of this proposition, they cite a portion of the legislative history where the House Committee on Education and Labor stated that the proposed version of § 6(b)(5) would apply when the Secretary set an "occupational health standard." H.R.Rep. No. 91-1291, p. 18 (1970), Leg.Hist. 848.
4
The legislative history indicates strongly that Senator Dominick himself saw little, if any, difference between the phrases "most adequately and feasibly assures" and "most adequately assures, to the extent feasible." In the course of his earlier attempt to delete the first sentence of § 6(b)(5) entirely, he paraphrased the unamended version of that section as requiring the Secretary to promulgate standards that "most adequately and feasibly assure to the extent possible " that no employee would suffer harm. 116 Cong.Rec. 36530 (1970), Leg.Hist. 367 (emphasis added). Unless Senator Dominick found a significant difference between the words "possible" and "feasible," it is clear that there is little difference between Senator Dominick's perception of what the unamended section required in the way of feasibility and what that section required after his amendment.
5
Sections 211(c)(2)(A) and (B) of the Clean Air Act, as amended on Dec. 31, 1970, 84 Stat. 1698, authorize the Environmental Protection Agency to regulate, control, or prohibit automotive fuel additives after "consideration of other technologically or economically feasible means of achieving emission standards . . .." 42 U.S.C. § 7545(c)(2)(A) (1976 ed., Supp.II) (emphasis added).
6
See J. Ely, Democracy and Distrust, A Theory of Judicial Review 131-134 (1980); J. Freedman, Crisis and Legitimacy, The Administrative Process and American Government 78-94 (1978); T. Lowi, The End of Liberalism: Ideology, Policy, and the Crisis of Public Authority 129-146, 297-299 (1969); Wright, Beyond Discretionary Justice, 81 Yale L.J. 575, 582-587 (1972); Waist-Deep in Regulation, Washington Post, Nov. 3, 1979, p. A10, col. 1. Cf. W. Douglas, Go East, Young Man 217 (1974).
7
See K. Davis, Discretionary Justice: A Preliminary Inquiry 49-51 (1969); Stewart, The Reformation of American Administrative Law, 88 Harv.L.Rev. 1669, 1693-1697 (1975). Cf. Jaffe, The Illusion of the Ideal Administration, 86 Harv.L.Rev. 1183, 1190, n. 37 (1973).
8
This ruling would not have any effect upon standards governing toxic substances or harmful physical agents for which safe levels are feasible, upon extant standards promulgated as "national consensus standards" under § 6(a), nor upon the Secretary's authority to promulgate "emergency temporary standards" under § 6(c).
1
Legislative History of the Occupational Safety and Health Act of 1970 (Committee Print compiled for the Senate Committee on Labor and Public Welfare), p. iii (1971) (Foreword by Sen. Williams) (hereinafter Leg.Hist.).
2
S.Rep.No. 91-1282, p. 2 (1970), Leg.Hist. 142.
3
Leg.Hist. iii.
4
S.Rep.No. 91-1282, p. 2 (1970), Leg.Hist. 142; 116 Cong.Rec. 37326 (1970), Leg.Hist. 415 (Sen. Williams); H.R.Rep.No. 91-1291, p. 19 (1970), Leg.Hist. 849; 116 Cong.Rec. 38392-38393 (1970), Leg.Hist. 1049 (Rep. Karth).
5
116 Cong.Rec. 38375 (1970), Leg.Hist. 1003 (Sen. Daniels).
6
116 Cong.Rec., at 37623, Leg.Hist. 503 (Sen. Dominick); H.R.No. 91-1291, p. 28 (1970), Leg.Hist. 858.
7
See n. 34, infra.
8
An earlier version of the bill had provided:
"The Secretary, in promulgating standards under this subsection, shall set the standard which most adequately and feasibly assures, on the basis of the best available evidence, that no employee will suffer any impairment of health or functional capacity, or diminished life expectancy even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life." S. 2193, 91st Cong., 2d Sess., 39 (1970), Leg.Hist. 242.
This standard, it was feared, "could be read to require the Secretary to ban all occupations in which there remains some risk of injury, impaired health, or life expectancy. In the case of all occupations, it will be impossible to eliminate all risks to safety and health. Thus, the present criteria could, if literally applied, close every business in this nation. In addition, in many cases, the standard which might most 'adequately' and 'feasibly' assure the elimination of the danger would be the prohibition of the occupation itself." 116 Cong.Rec. 36530 (1970), Leg.Hist. 367 (Statement
on Amendment of Sen. Dominick). In explaining the present language, Senator Dominick stated:
"What we were trying to do in the bill—unfortunately, we did not have the proper wording or the proper drafting—was to say that when we are dealing with toxic agents or physical agents, we ought to take such steps as are feasible and practical to provide an atmosphere within which a person's health or safety would not be affected. Unfortunately, we had language providing that anyone would be assured that no one would have a hazard . . . so that no one would have any problem for the rest of his working life.
"It was an unrealistic standard. As modified, we would be approaching the problem by looking at the problem and setting a standard or criterion which would not result in harm." 116 Cong.Rec., at 37622; Leg.Hist. 502.
9
I do not, of course, suggest that it is appropriate for a federal court reviewing agency action blindly to defer to the agency's findings of fact and determinations of policy. Under Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971), courts must undertake a "searching and careful" judicial inquiry into those factors. Such an inquiry is designed to require the agency to take a "hard look," Kleppe v. Sierra Club, 427 U.S. 390, 410, n. 21, 96 S.Ct. 2718, 2730, n. 21, 49 L.Ed.2d 576 (1976) (citation omitted), by considering the proper factors and weighing them in a reasonable manner. There is also room for especially rigorous judicial scrutiny of agency decisions under a rationale akin to that offered in United States v. Carolene Products Co., 304 U.S. 144, 152, n. 4, 58 S.Ct. 778, 783, 82 L.Ed. 1234 (1938). See Environmental Defense Fund v. Ruckelshaus, 142 U.S.App.D.C. 74, 439 F.2d 584 (1971).
I see no basis, however, for the approach taken by the plurality today, which amounts to nearly de novo review of questions of fact and of regulatory policy on behalf of institutions that are by no means unable to protect themselves in the political process. Such review is especially inappropriate when the factual questions at issue are ones about which the Court cannot reasonably be expected to have expertise.
10
Tr. 258-259, 1039.
11
Id., at 148, 200-201, 258.
12
Id., at 145, 173-174, 352, 1227, 1928, 3206; 15 Record, Ex. 43B, p. 166.
13
Id., at 149, 360-361, 997, 1023, 2543, 2689, 3203; 11 Record, Ex. 3.
14
Tr. 149, 1218, 2692, 2847.
15
Id., at 308, 314, 747, 768, 769-770, 874, 2445. As the Secretary observed, the issue of the exposure level in the NIOSH study was extensively debated during the hearings. A report from the Industrial Commission of Ohio suggested that concentrations generally ranged from zero to 10 or 15 ppm. But the Secretary concluded that evidence at the hearings showed that area exposures during the study period had sometimes substantially exceeded that level. Because of the conflicting evidence and the absence of monitoring data, he found that the excess leukemia risk observed in the NIOSH study could not be linked to any particular exposure level.
16
As to the study on which industry relied most heavily, for example, the Secretary, largely repeating the author's own admissions, observed that (1) a number of employees included in the sample may not have been exposed to benzene at any time; (2) there was inadequate followup of numerous employees, so that persons who may have contracted leukemia were not included in the data; (3) the diagnoses were subject to serious question, and cases of leukemia may have gone unnoticed; (4) no determination of exposure levels had been made; and (5) the occupational histories of the workers were admittedly incomplete. 43 Fed.Reg. 5928 (1978).
17
Tr. 1023-1024, 1227; 22A Record, Ex. 154.
18
The testimony of Dr. Aksoy, one of the world's leading experts, was typical: "[E]ven one ppm . . . causes leukemia." Tr. 204. See also id., at 30, 150, 262, 328, 351-352, 363-364, 394, 745-746, 1057, 1210, 2420; 9 Record, Ex. 2.8-272, p. 1.
19
Tr. 130, 360, 414-415, 416-417, 760-761, 781-782, 925, 1055-1056; 17 Record, Ex. 75, p. 2; 1 Record, Ex. 2-4, p. 11.
20
Tr. 382, 401, 405, 1372, 2846, 2842-2843.
21
Id., at 148-149 ("the permissible exposure limit for benzene should be zero") (testimony of Dr. Aksoy). See also id., at 1251 et seq., 3506 et seq.
22
The plurality's estimate of the amount of expenditure per employee, see ante, at 629, is highly misleading. Most of the costs of the benzene standard would be incurred only once and would thus protect an unascertainable number of employees in the future; that number will be much higher than the number of employees currently employed.
23
The projection, designed as an extrapolation from an amalgamation of existing studies, was dependent on a number of assumptions which the Secretary could reasonably view as questionable. Indeed, the witness himself stated that his estimate was based on "a lousy set of data," was "slightly better than a guess," Tr. 2772, and that there was "no real basis," id., at 2719, for a dose-response curve on which the estimate was wholly dependent.
The witness' assumptions were severely tested during the hearings, see id., at 2795 et seq., and the Secretary could reasonably reject them on the basis of the evidence in the record. For example: (1) The witness appeared to assume that in previous tests leukemia had been contracted after a lifetime of exposure; the evidence afforded no basis for that assumption, and the duration of exposure may have been quite short for particular employees. If the duration period was short, the witness' estimate would have been much too low. (2) The witness assumed that exposure levels in the NIOSH study were around 100 ppm. The Secretary found, however, that no such assumption could be made, and there was evidence that exposure levels had generally been between zero and 10-15 ppm. (3) The witness assumed that the dose-response curve was linear at all levels, but there was no basis for that assumption. In the case of vinyl chloride (another carcinogen for which the Secretary has promulgated exposure standards), recent evidence suggested that the dose-response curve rises steeply at low doses and becomes less steep as the levels are increased. (4) Twenty-five percent of the workers in the NIOSH study had not been found, and the witness assumed that they were still alive and would not contract leukemia. Six hundred additional workers exposed in that study were still alive; the witness assumed they too would not contract leukemia. There was considerable testimony that, for these and other reasons, the NIOSH study significantly underestimated the risk. The witness assumes that it had not. (5) The NIOSH study found a fivefold excess risk from benzene exposure; the witness assumed that the excess was much lower, despite the NIOSH finding and the testimony that that finding was a significant understatement of the risk. In light of these uncertainties, the Secretary could conclude that the witness' estimate was unsupportable.
24
Witnesses testifying to the inability to construct a dose-response curve referred primarily to the impossibility of correlating the incidence of leukemia, blood disorders, and chromosomal damage with the levels and duration of exposure in past studies. Thus Dr. Herman Kraybill of the National Cancer Institute testified:
"[W]e like to estimate risk factors. This has been done, as many of you recall, with vinyl chloride several years ago.
". . . [T]o estimate the risk factors on [the basis of] experimental data, this presupposes if you have good toxicity data. When I say toxicity data, I mean good dose-response data on vinyl chloride, which indeed we did have that.
"But with benzene, it appeared that we didn't have this situation, so therefore, most of us gave up. . . .
* * * * *
". . . With benzene, we sort of struck out." Id., at 760-761.
Because of the enormous uncertainties in levels and duration of exposure in prior studies, any assumptions would necessarily be arbitrary. The possible range of assumptions was so great that the ultimate conclusion would be entirely uninformative. See id., at 360, 415, 1055-1056.
25
At one point the Secretary did indicate that appreciable benefits were "likely" to result. The Court of Appeals held that this conclusion was unsupported by substantial evidence. The Secretary's suggestion, however, was made in the context of a lengthy discussion intended to show that appreciable benefits "may" be predicted but that their likelihood could not be quantified. The suggestion should not be taken as a definitive statement that appreciable benefits were more probable than not.
For reasons stated infra, there is nothing in the Act to prohibit the Secretary from acting when he is unable to conclude that appreciable benefits are more probable than not.
26
This is not to say that the Secretary is prohibited from examining relative costs and benefits in the process of setting priorities among hazardous substances, or that systematic consideration of costs and benefits is not to be attempted in the standard-setting process. Efforts to quantify costs and benefits, like statements of reasons generally, may help to promote informed consideration of decisional factors and facilitate judicial review. See Dunlop v. Bachowski, 421 U.S. 560, 571-574, 95 S.Ct. 1851, 1859-61, 44 L.Ed.2d 377 (1975). The Secretary indicates that he has attempted to quantify costs and benefits in the past. See 43 Fed.Reg. 54354, 54427-54431 (1978) (lead); id., at 27350, 27378-27379 (cotton dust).
It is not necessary in the present litigation to say whether the Secretary must show a reasonable relation between costs and benefits. Discounting for the scientific uncertainty, the Secretary expressly—and reasonably—found such a relation here.
27
It is useful to compare the Act with other regulatory statutes in which Congress has required a showing of a relationship between costs and benefits or of an "unreasonable risk." In some statutes Congress has expressly required cost-benefit analysis or a demonstration of some reasonable relation between costs and benefits. See 33 U.S.C. § 701a (Flood Control Act of 1936); 42 U.S.C. § 7545(c)(2)(B) (1976 ed., Supp.II) (Clean Air Act); 33 U.S.C. § 1314(b)(4)(B) (1976 ed., Supp.II) (Clean Water Act). In others Congress has imposed two independent requirements: that administrative action be "feasible" and justified by a balancing of costs and benefits, e. g., 43 U.S.C. § 1347(b) (1976 ed., Supp.II) (Outer Continental Shelf Lands Act); 42 U.S.C. § 6295(a)(2)(D) (1976 ed., Supp.II) (Energy Policy and Conservation Act). This approach demonstrates a legislative awareness of the difference between a feasibility constraint and a constraint based on weighing costs and benefits. See infra, at 719-720. In still others Congress has authorized regulation of "unreasonable risk," a term which has been read by some courts to require a balancing of costs and benefits. See, e. g., Aqua Slide 'N' Dive Corp. v. Consumer Product Safety Comm'n, 569 F.2d 831 (CA5 1978) (construing 15 U.S.C. § 2058(c)(2)(A) (Consumer Product Safety Act)); Forester v. Consumer Product Safety Comm'n, 182 U.S.App.D.C. 153, 559 F.2d 774 (1977) (construing 15 U.S.C. § 1261(s) (Child Protection and Toy Safety Act)).
28
The plurality also relies on its perception that if the "reasonably necessary" clause were not given the meaning it ascribes to it, there would be no guidance for "standards other than those dealing with toxic materials and harmful physical agents." Ante, at 649, n. 45. For two reasons this argument is without force. First, even if the "reasonably necessary" clause does have independent content, and even if that content is as the plurality describes it, it cannot under any fairminded reading supersede the express language of § 655(b)(5) for toxic substances and harmful physical agents.
Second, as noted above, an earlier version of the bill applied the "no employee will suffer" language to all substances. At that time, there was no "gap," and accordingly it could not be argued that the "reasonably necessary or appropriate" clause had the content the plurality ascribes to it. In this light, the plurality's reasoning must be that when Congress amended the bill to apply the strict § 655(b)(5) requirements only to toxic substances, the definitional clause gained an independent meaning that in turn comprehended all standards. But surely this argument turns congressional purposes on their head. It reasons that when Congress singled out toxic substances for special regulation, it simultaneously created a more lenient ("reasonably necessary") test for standards generally, and that once that more lenient test was applicable, it somehow superseded the strict requirements for toxic substances. That reasoning is both illogical and circular. Nor is there any basis for the plurality's suggestion, see ante, at 649, n. 54, that the original bill's application to all standards was "entirely inadvertent."
29
The plurality suggests that it is for the agency "to determine, in the first instance, what it considers to be a 'significant' risk," and that the agency "is free to use conservative assumptions in interpreting the data. . . ." Ante, at 655, 656. Moreover, my Brother POWELL would not require "quantification of risk in every case." Ante, at 666 (opinion concurring in part and concurring in judgment). As I read his opinion, Mr. Justice POWELL would have permitted the Secretary to promulgate the standard at issue here if the Secretary had provided a more carefully reasoned explanation of his conclusion that the risk at issue justified the admittedly significant costs of the benzene standard. Mr. Justice POWELL also suggests that such a conclusion would be subject to relatively deferential review. Ante, at 670-671, n. 8.
In this respect, the differences between my approach and that of Mr. Justice POWELL may be comparatively narrow. We are agreed on two propositions that I regard as critical to a fairminded interpretation of the Act: (1) the Secretary may regulate risks that are not subject to quantification on the basis of the "best available evidence"; and (2) the Secretary's judgment that a particular health risk merits regulatory action is subject to limited judicial scrutiny. It is encouraging that at least five Members of the Court accept these basic propositions.
For reasons stated in the text, however, I disagree with my Brother POWELL's conclusion that it is appropriate to hold in these cases that the Act requires the Secretary to show a reasonable relationship between costs and benefits.
30
Finding obscurity in the word "feasible," my Brother REHNQUIST invokes the nondelegation doctrine, which was last used to invalidate an Act of Congress in 1935. A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935). While my Brother REHNQUIST eloquently argues that there remains a place for such a doctrine in our jurisprudence, I am frankly puzzled as to why the issue is thought to be of any relevance here. The nondelegation doctrine is designed to assure that the most fundamental decisions will be made by Congress, the elected representatives of the people, rather than by administrators. Some minimal definiteness is therefore required in order for Congress to delegate its authority to administrative agencies.
Congress has been sufficiently definite here. The word "feasible" has a reasonably plain meaning, and its interpretation can be informed by other contexts in which Congress has used it. See n. 27, supra. Since the term is placed in the same sentence with the "no employee will suffer" language, it is clear that "feasible" means technologically and economically achievable. Under the Act, the Secretary is afforded considerably more guidance than are other administrators acting under different regulatory statutes. In short, Congress has made "the critical policy decisions" in these cases, see ante, at 687 (REHNQUIST, J., concurring in the judgment).
The plurality's apparent suggestion, see ante, at 646, that the nondelegation doctrine might be violated if the Secretary were permitted to regulate definite but nonquantifiable risks is plainly wrong. Such a statute would be quite definite and would thus raise no constitutional question under Schechter Poultry. Moreover, Congress could rationally decide that it would be better to require industry to bear "feasible" costs than to subject American workers to an indeterminate risk of cancer and other fatal diseases.
31
See n. 27, supra.
32
Congress' antipathy toward cost-benefit balancing is evident throughout the legislative history of the Act. For example:
"The costs that will be incurred by employers in meeting the standards of health and safety to be established under this bill are, in my view, reasonable and necessary costs of doing business. Whether we, as individuals, are motivated by simple humanity or by simple economics, we can no longer permit profits to be dependent upon an unsafe or unhealthy worksite." 116 Cong.Rec. 41766 (1970), Leg.Hist. 1150-1151 (Sen. Eagleton).
Similarly, Senator Yarborough stated:
"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. We are talking about assuring our American workers who wo[r]k with deadly chemicals that when they have accumulated a few year's seniority they will not have accumulated lung congestion and poison in their bodies, or something that will strike them down before they reach retirement age." 116 Cong.Rec., at 37625; Leg.Hist. 510.
33
Nor need I discuss the possibility, raised by counsel for the federal parties in oral argument, that a decision to regulate a substance posing a negligible threat to health and safety could itself be challenged as arbitrary and capricious under the Administrative Procedure Act. See Tr. of Oral Arg. 23.
34
Respondents also rely on the statutory requirement that the Secretary may act only to prevent "material" impairment. They contend that the standard promulgated here does not fall within that category because the risk is so low. This interpretation derives no support from the statute or its legislative history. The statute itself states that standards should ensure that no employee will suffer "material impairment," not material risk of impairment.
The language is consistent with the legislative history. In an early version of the Act, the word "impairment" was modified by "any" rather than "material." See n. 8, supra. The feasibility and materiality requirements were added simultaneously as part of an effort to qualify the original language authorizing the Secretary to ensure that "no employee will suffer any impairment of health or functional capacity, or diminished life expectancy." Senator Dominick was concerned that the phrase "any" impairment would require the Secretary to prevent insect bites. 116 Cong.Rec. 36522 (1970), Leg.Hist. 345.
The respondents' construction would pose an enormous obstacle to efforts to regulate toxic substances under § 655(b)(5). The probability of contracting cancer will in most contexts be quite small with respect to any particular employee. If the statute were read to authorize the Secretary to act only to assure that "no employee will suffer material risk of impairment," the Secretary would be disabled from regulating substances which poses a small risk with respect to any particular employee but which will nonetheless result in the death of numerous members of the employee pool.
35
Although the Court of Appeals accepted the Secretary's finding that dermal contact with benzene could cause leukemia, it set aside the dermal contact standard because of the Secretary's failure to perform an experiment recommended by an industry witness. The failure to conduct this test, according to the court, violated the statutory requirement that the Secretary act on the basis of "the best available evidence" and "the latest available scientific data in the field."
In the hearings before the agency, respondents presented no substantial challenge to the position that benzene could be absorbed through the skin, and there was evidence in the record to support that position. Both animal and human studies had found such absorption. In these circumstances, the Secretary was not obligated to undertake additional studies simply because a witness testified that such studies would be informative. The imposition of such a requirement would paralyze the standard-setting process. The Secretary's mandate is to act on the basis of "available" evidence, not evidence which may become available in the future.
In setting aside the dermal contact standard, the Court of Appeals also relied on its conclusion that the Secretary had not shown that quantifiable benefits would result from the standard. As the discussion above indicates, the court applied incorrect legal standards in so holding.
36
See W. Lowrance, Of Acceptable Risk: Science and the Determination of Safety (1976); Stewart, Paradoxes of Liberty, Integrity and Fraternity: The Collective Nature of Environmental Quality and Judicial Review of Administrative Action, 7 Environ.L. 463, 469-472 (1977).
| 67
|
448 U.S. 555
100 S.Ct. 2814
65 L.Ed.2d 973
RICHMOND NEWSPAPERS, INC., et al., Appellants,v.Commonwealth of VIRGINIA et al.
No. 79-243.
Argued Feb. 19, 1980.
Decided July 2, 1980.
Syllabus
At the commencement of a fourth trial on a murder charge (the defendant's conviction after the first trial having been reversed on appeal, and two subsequent retrials having ended in mistrials), the Virginia trial court granted defense counsel's motion that the trial be closed to the public without any objections having been made by the prosecutor or by appellants, a newspaper and two of its reporters who were present in the courtroom, defense counsel having stated that he did not "want any information being shuffled back and forth when we have a recess as to . . . who testified to what." Later that same day, however, the trial judge granted appellant's request for a hearing on a motion to vacate the closure order, and appellants' counsel contended that constitutional considerations mandated that before ordering closure the court should first decide that the defendant's rights could be protected in no other way. But the trial judge denied the motion, saying that if he felt that the defendant's rights were infringed in any way and others' rights were not overriden he was inclined to order closure, and ordered the trial to continue "with the press and public excluded." The next day, the court granted defendant's motion to strike the prosecution's evidence, excused the jury, and found the defendant not guilty. Thereafter, the court granted appellants' motion to intervene nunc pro tunc in the case, and the Virginia Supreme Court dismissed their mandamus and prohibition petitions and, finding no reversible error, denied their petition for appeal from the closure order.
Held: The judgment is reversed. Pp. 563-581; 584-598; 598-601; 601-604.
Reversed.
Mr. Chief Justice BURGER, joined by Mr. Justice WHITE and Mr. Justice STEVENS, concluded that the right of the public and press to attend criminal trials is guaranteed under the First and Fourteenth Amendments. Absent an overriding interest articulated in findings, the trial of a criminal case must be open to the public. Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608, distinguished. Pp. 563-581.
(a) The historical evidence of the evolution of the criminal trial in Anglo-American justice demonstrates conclusively that at the time this Nation's organic laws were adopted, criminal trials both here and in England had long been presumptively open, thus giving assurance that the proceedings were conducted fairly to all concerned and discouraging perjury, the misconduct of participants, or decisions based on secret bias or partiality. In addition, the significant community therapeutic value of public trials was recognized: when a shocking crime occurs, a community reaction of outrage and public protest often follows, and thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion. To work effectively, it is important that society's criminal process "satisfy the appearance of justice," Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13, 99 L.Ed. 11 which can best be provided by allowing people to observe such process. From this unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, it must be concluded that a presumption of openness inheres in the very nature of a criminal trial under this Nation's system of justice. Cf., e. g., Levine v. United States, 362 U.S. 610, 80 S.Ct. 1038, 4 L.Ed.2d 989. Pp. 563-575.
(b) The freedoms of speech, press, and assembly, expressly guaranteed by the First Amendment, share a common core purpose of assuring freedom of communication on matters relating to the functioning of government. In guaranteeing freedoms such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as to give meaning to those explicit guarantees; the First Amendment right to receive information and ideas means, in the context of trials, that the guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time the First Amendment was adopted. Moreover, the right of assembly is also relevant, having been regarded not only as an independent right but also as a catalyst to augment the free exercise of the other First Amendment rights with which it was deliberately linked by the draftsmen. A trial courtroom is a public place where the people generally—and representatives of the media—have a right to be present, and where their presence historically has been thought to enhance the integrity and quality of what takes place. Pp. 575-578.
(c) Even though the Constitution contains no provision which by its terms guarantees to the public the right to attend criminal trials, various fundamental rights, not expressly guaranteed, have been recognized as indispensable to the enjoyment of enumerated rights. The right to attend criminal trials is implicit in the guarantees of the First Amendments without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press could be eviscerated. Pp. 579-580.
(d) With respect to the closure order in this case, despite the fact that this was the accused's fourth trial, the trial judge made no findings to support closure; no inquiry was made as to whether alternative solutions would have met the need to ensure fairness; there was no recognition of any right under the Constitution for the public or press to attend the trial; and there was no suggestion that any problems with witnesses could not have been dealt with by exclusion from the courtroom or sequestration during the trial, or that sequestration of the jurors would not have guarded against their being subjected to any improper information. Pp. 580-581.
Mr. Justice BRENNAN, joined by Mr. Justice MARSHALL, concluded that the First Amendment—of itself and as applied to the States through the Fourteenth Amendment—secures the public a right of access to trial proceedings, and that, without more, agreement of the trial judge and the parties cannot constitutionally close a trial to the public. Historically and functionally, open trials have been closely associated with the development of the fundamental procedure of trial by jury, and trial access assumes structural importance in this Nation's government of laws by assuring the public that procedural rights are respected and that justice is afforded equally, by serving as an effective restraint on possible abuse of judicial power, and by aiding the accuracy of the trial factfinding process. It was further concluded that it was not necessary to consider in this case what countervailing interests might be sufficiently compelling to reverse the presumption of openness of trials, since the Virginia statute involved—authorizing trial closures at the unfettered discretion of the judge and parties—violated the First and Fourteenth Amendments. Pp. 584-598.
Mr. Justice STEWART concluded that the First and Fourteenth Amendments clearly give the press and the public a right of access to trials, civil as well as criminal; that such right is not absolute, since various considerations may sometimes justify limitations upon the unrestricted presence of spectators in the courtroom; but that in the present case the trial judge apparently gave no recognition to the right of representatives of the press and members of the public to be present at the trial. Pp. 598-601.
Mr. Justice BLACKMUN, while being of the view that Gannett Co. v. DePasquale, supra, was in error, both in its interpretation of the Sixth Amendment generally, and in its application to the suppression hearing involved there, and that the right to a public trial is to be found in the Sixth Amendment, concluded, as a secondary position, that the First Amendment must provide some measure of protection for public access to the trial, and that here, by closing the trial, the trial judge abridged these First Amendment interests of the public. Pp. 601-604.
Laurence H. Tribe, Cambridge, Mass., for appellants.
Marshall Coleman, Atty. Gen., Richmond, Va., for appellees.
Mr. Chief Justice BURGER announced the judgment of the Court and delivered an opinion, in which Mr. Justice WHITE and Mr. Justice STEVENS joined.
1
The narrow question presented in this case is whether the right of the public and press to attend criminal trials is guaranteed under the United States Constitution.
2
* In March 1976, one Stevenson was indicted for the murder of a hotel manager who had been found stabbed to death on December 2, 1975. Tried promptly in July 1976, Stevenson was convicted of second-degree murder in the Circuit Court of Hanover County, Va. The Virginia Supreme Court reversed the conviction in October 1977, holding that a bloodstained shirt purportedly belonging to Stevenson had been improperly admitted into evidence. Stevenson v. Commonwealth, 218 Va. 462, 237 S.E.2d 779.
3
Stevenson was retried in the same court. This second trial ended in a mistrial on May 30, 1978, when a juror asked to be excused after trial had begun and no alternate was available.1
4
A third trial, which began in the same court on June 6, 1978, also ended in a mistrial. It appears that the mistrial may have been declared because a prospective juror had read about Stevenson's previous trials in a newspaper and had told other prospective jurors about the case before the retrial began. See App. 35a-36a.
5
Stevenson was tried in the same court for a fourth time beginning on September 11, 1978. Present in the courtroom when the case was called were appellants Wheeler and McCarthy, reporters for appellant Richmond Newspapers, Inc. Before the trial began, counsel for the defendant moved that it be closed to the public:
6
"[T]here was this woman that was with the family of the deceased when we were here before. She had sat in the Courtroom. I would like to ask that everybody be excluded from the Courtroom because I don't want any information being shuffled back and forth when we have a recess as to what—who testified to what." Tr. of Sept. 11, 1978 Hearing on Defendant's Motion to Close Trial to the Public 2-3.
7
The trial judge, who had presided over two of the three previous trials, asked if the prosecution had any objection to clearing the courtroom. The prosecutor stated he had no objection and would leave it to the discretion of the court. Id., at 4. Presumably referring to Va.Code § 19.2-266 (Supp.1980), the trial judge then announced: "[T]he statute gives me that power specifically and the defendant has made the motion." He then ordered "that the Courtroom be kept clear of all parties except the witnesses when they testify." Tr., supra, at 4-5.2 The record does not show that any objections to the closure order were made by anyone present at the time, including appellants Wheeler and McCarthy.
8
Later that same day, however, appellants sought a hearing on a motion to vacate the closure order. The trial judge granted the request and scheduled a hearing to follow the close of the day's proceedings. When the hearing began, the court ruled that the hearing was to be treated as part of the trial; accordingly, he again ordered the reporters to leave the courtroom, and they complied.
9
At the closed hearing, counsel for appellants observed that no evidentiary findings had been made by the court prior to the entry of its closure order and pointed out that the court had failed to consider any other, less drastic measures within its power to ensure a fair trial. Tr. of Sept. 11, 1978 Hearing on Motion to Vacate 11-12. Counsel for appellants argued that constitutional considerations mandated that before ordering closure, the court should first decide that the rights of the defendant could be protected in no other way.
10
Counsel for defendant Stevenson pointed out that this was the fourth time he was standing trial. He also referred to "difficulty with information between the jurors," and stated that he "didn't want information to leak out," be published by the media, perhaps inaccurately, and then be seen by the jurors. Defense counsel argued that these things, plus the fact that "this is a small community," made this a proper case for closure. Id., at 16-18.
11
The trial judge noted that counsel for the defendant had made similar statements at the morning hearing. The court also stated:
12
"[O]ne of the other points that we take into consideration in this particular Courtroom is layout of the Courtroom. I think that having people in the Courtroom is distracting to the jury. Now, we have to have certain people in here and maybe that's not a very good reason. When we get into our new Court Building, people can sit in the audience so the jury can't see them. The rule of the Court may be different under those circumstances. . . ." Id., at 19.
13
The prosecutor again declined comment, and the court summed up by saying:
14
"I'm inclined to agree with [defense counsel] that, if I feel that the rights of the defendant are infringed in any way, [when] he makes the motion to do something and it doesn't completely override all rights of everyone else, then I'm inclined to go along with the defendant's motion." Id., at 20.
15
The court denied the motion to vacate and ordered the trial to continue the following morning "with the press and public excluded." Id., at 27; App. 21a.
16
What transpired when the closed trial resumed the next day was disclosed in the following manner by an order of the court entered September 12, 1978:
17
"[I]n the absence of the jury, the defendant by counsel made a Motion that a mis-trial be declared, which motion was taken under advisement.
18
"At the conclusion of the Commonwealth's evidence, the attorney for the defendant moved the Court to strike the Commonwealth's evidence on grounds stated to the record, which Motion was sustained by the Court.
19
"And the jury having been excused, the Court doth find the accused NOT GUILTY of Murder, as charged in the Indictment, and he was allowed to depart." Id., at 22a.3
20
On September 27, 1978, the trial court granted appellants' motion to intervenenunc pro tunc in the Stevenson case. Appellants then petitioned the Virginia Supreme Court for writs of mandamus and prohibition and filed an appeal from the trial court's closure order. On July 9, 1979, the Virginia Supreme court dismissed the mandamus and prohibition petitions and, finding no reversible error, denied the petition for appeal. Id., at 23a-28a.
21
Appellants then sought review in this Court, invoking both our appellate, 28 U.S.C. § 1257(2), and certiorari jurisdiction, § 1257(3). We postponed further consideration of the question of our jurisdiction to the hearing of the case on the merits. 444 U.S. 896, 100 S.Ct. 204, 62 L.Ed.2d 132 (1979). We conclude that jurisdiction by appeal does not lie;4 however, treating the filed papers as a petition for a writ of certiorari pursuant to 28 U.S.C. § 2103, we grant the petition.
22
The criminal trial which appellants sought to attend has long since ended, and there is thus some suggestion that the case is moot. This Court has frequently recognized, however, that its jurisdiction is not necessarily defeated by the practical termination of a contest which is short-lived by nature. See, e. g., Gannett Co. v. DePasquale, 443 U.S. 368, 377-378, 99 S.Ct. 2898, 2904, 61 L.Ed.2d 608 (1979); Nebraska Press Assn. v. Stuart, 427 U.S. 539, 546-547, 96 S.Ct. 2791, 2797, 49 L.Ed.2d 683 (1976). If the underlying dispute is "capable of repetition, yet evading review," Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911), it is not moot.
23
Since the Virginia Supreme Court declined plenary review, it is reasonably foreseeable that other trials may be closed by other judges without any more showing of need than is presented on this record. More often than not, criminal trials will be of sufficiently short duration that a closure order "will evade review, or at least considered plenary review in this Court." Nebraska Press, supra, 427 U.S., at 547, 96 S.Ct., at 2797. Accordingly, we turn to the merits.
II
24
We begin consideration of this case by noting that the precise issue presented here has not previously been before this Court for decision. In Gannett Co. v. DePasquale, supra, the Court was not required to decide whether a right of access to trials, as distinguished from hearings on pre trial motions, was constitutionally guaranteed. The Court held that the Sixth Amendment's guarantee to the accused of a public trial gave neither the public nor the press an enforceable right of access to a pre trial suppression hearing. One concurring opinion specifically emphasized that "a hearing on a motion before trial to suppress evidence is not a trial . . . ." 443 U.S., at 394, 99 S.Ct., at 2913 (BURGER, C. J., concurring). Moreover, the Court did not decide whether the First and Fourteenth Amendments guarantee a right of the public to attend trials, id., at 392 and n. 24, 99 S.Ct., at 2912, and n. 24; nor did the dissenting opinion reach this issue. Id., at 447, 99 S.Ct., at 2940 (opinion of BLACKMUN, J.).
25
In prior cases the Court has treated questions involving conflicts between publicity and a defendant's right to a fair trial; as we observed in Nebraska Press Assn. v. Stuart, supra, at 547, 97 S.Ct., at 2797, "[t]he problems presented by this [conflict] are almost as old as the Republic." See also, e. g., Gannett, supra; Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). But here for the first time the Court is asked to decide whether a criminal trial itself may be closed to the public upon the unopposed request of a defendant, without any demonstration that closure is required to protect the defendant's superior right to a fair trial, or that some other overriding consideration requires closure.
A.
26
The origins of the proceeding which has become the modern criminal trial in Anglo-American justice can be traced back beyond reliable historical records. We need not here review all details of its development, but a summary of that history is instructive. What is significant for present purposes is that throughout its evolution, the trial has been open to all who care to observe.
27
In the days before the Norman Conquest, cases in England were generally brought before moots, such as the local court of the hundred or the county court, which were attended by the freemen of the community. Pollock, English Law Before the Norman Conquest, in 1 Select Essays in Anglo-American Legal History 88, 89 (1907). Somewhat like modern jury duty, attendance at these early meetings was compulsory on the part of the freemen, who were called upon to render judgment. Id., at 89-90; see also 1 W. Holdsworth, A History of English Law 10, 12 (1927).5
28
With the gradual evolution of the jury system in the years after the Norman Conquest, see, e. g., id., at 316, the duty of all freemen to attend trials to render judgment was relaxed, but there is no indication that criminal trials did not remain public. When certain groups were excused from compelled attendance, see the Statute of Marlborough, 52 Hen. 3, ch. 10 (1267); 1 Holdsworth, supra, at 79, and n. 4, the statutory exemption did not prevent them from attending; Lord Coke observed that those excused "are not compellable to come, but left to their own liberty." 2 E. Coke, Institutes of the Laws of England 121 (6th ed. 1681).6
29
Although there appear to be a few contemporary statements on the subject, reports of the Eyre of Kent, a general court held in 1313-1314, evince a recognition of the importance of public attendance apart from the "jury duty" aspect. It was explained that
30
"the King's will was that all evil doers should be punished after their deserts, and that justice should be ministered indifferently to rich as to poor; and for the better accomplishing of this, he prayed the community of the county by their attendance there to lend him their aid in the establishing of a happy and certain peace that should be both for the honour of the realm and for their own welfare." 1 Holdsworth, supra, at 268, quoting from the S. S. edition of the Eyre of Kent, vol. i., p. 2 (emphasis added).
31
From these early times, although great changes in courts and procedures took place, one thing remained constant: the public character of the trial at which guilt or innocence was decided. Sir Thomas Smith, writing in 1565 about "the definitive proceedings in causes criminall," explained that, while the indictment was put in writing as in civil law countries:
32
"All the rest is doone openlie in the presence of the Judges, the Justices, the enquest, the prisoner, and so manie as will or can come so neare as to heare it, and all depositions and witnesses given aloude, that all men may heare from the mouth of the depositors and witnesses what is saide." T. Smith, De Republica Anglorum 101 (Alston ed. 1972) (emphasis added).
33
Three centuries later, Sir Frederick Pollock was able to state of the "rule of publicity" that, "[h]ere we have one tradition, at any rate, which has persisted through all changes." F. Pollock, the Expansion of the Common Law 31-32 (1904). See also E. Jenks, The Book of English Law 73-74 (6th ed. 1967): "[O]ne of the most conspicuous features of English justice, that all judicial trials are held in open court, to which the public have free access, . . . appears to have been the rule in England from time immemorial."
34
We have found nothing to suggest that the presumptive openness of the trial, which English courts were later to call "one of the essential qualities of a court of justice," Daubney v. Cooper, 10 B. & C. 237, 240, 109 Eng.Rep. 438, 440 (K. B. 1829), was not also an attribute of the judicial systems of colonial America. In Virginia, for example, such records as there are of early criminal trials indicate that they were open, and nothing to the contrary has been cited. See A. Scott, Criminal Law in Colonial Virginia 128-129 (1930); Reinsch, The English Common Law in the Early American Colonies, in 1 Select Essays in Anglo-American Legal History 367, 405 (1907). Indeed, when in the mid-1600's the Virginia Assembly felt that the respect due the courts was "by the clamorous unmannerlynes of the people lost, and order, gravity and decoram which should manifest the authority of a court in the court it selfe neglected," the response was not to restrict the openness of the trials to the public, but instead to prescribe rules for the conduct of those attending them. See Scott, supra, at 132.
35
In some instances, the openness of trials was explicitly recognized as part of the fundamental law of the Colony. The 1677 Concessions and Agreements of West New Jersey, for example, provided:
36
"That in all publick courts of justice for tryals of causes, civil or criminal, any person or persons, inhabitants of the said Province may freely come into, and attend the said courts, and hear and be present, at all or any such tryals as shall be there had or passed, that justice may not be done in a corner nor in any covert manner." Reprinted in Sources of Our Liberties 188 (R. Perry ed. 1959). See also 1 B. Schwartz, The Bill of Rights: A Documentary History 129 (1971).
37
The Pennsylvania Frame of Government of 1682 also provided "[t]hat all courts shall be open . . . ," Sources of Our Liberties, supra, at 217; 1 Schwartz, supra, at 140, and this declaration was reaffirmed in § 26 of the Constitution adopted by Pennsylvania in 1776. See 1 Schwartz, supra, at 271. See also §§ 12 and 76 of the Massachusetts Body of Liberties, 1641, reprinted in 1 Schwartz, supra, at 73, 80.
38
Other contemporary writings confirm the recognition that part of the very nature of a criminal trial was its openness to those who wished to attend. Perhaps the best indication of this is found in an address to the inhabitants of Quebec which was drafted by a committee consisting of Thomas Cushing, Richard Henry Lee, and John Dickinson and approved by the First Continental Congress on October 26, 1774. 1 Journals of the Continental Congress, 1774-1789, pp. 101, 105 (1904) (Journals). This address, written to explain the position of the Colonies and to gain the support of the people of Quebec, is an "exposition of the fundamental rights of the colonists, as they were understood by a representative assembly chosen from all the colonies." 1 Schwartz, supra, at 221. Because it was intended for the inhabitants of Quebec, who had been "educated under another form of government" and had only recently become English subjects, it was thought desirable for the Continental Congress to explain "the inestimable advantages of a free English constitution of government, which it is the privilege of all English subjects to enjoy." 1 Journals 106.
39
"[One] great right is that of trial by jury. This provides, that neither life, liberty nor property, can be taken from the possessor, until twelve of his unexceptionable countrymen and peers of his vicinage, who from that neighbourhood may reasonably be supposed to be acquainted with his character, and the characters of the witnesses, upon a fair trial, and full enquiry, face to face, in open Court, before as many of the people as chuse to attend, shall pass their sentence upon oath against him. . . ." Id., at 107 (emphasis added).
B
40
As we have shown, and as was shown in both the Court's opinion and the dissent in Gannett, 443 U.S., at 384, 386, n. 15, 418-425, 99 S.Ct., at 2908, 2909, n. 15, 2925-2929, the historical evidence demonstrates conclusively that at the time when our organic laws were adopted, criminal trials both here and in England had long been presumptively open. This is no quirk of history; rather, it has long been recognized as an indispensible attribute of an Anglo-American trial. Both Hale in the 17th century and Blackstone in the 18th saw the importance of openness to the proper functioning of a trial; it gave assurance that the proceedings were conducted fairly to all concerned, and it discouraged perjury, the misconduct of participants, and decisions based on secret bias or partiality. See, e. g., M. Hale, The History of the Common Law of England 343-345 (6th ed. 1820); 3 W. Blackstone, Commentaries *372-*373. Jeremy Bentham not only recognized the therapeutic value of open justice but regarded it as the keystone:
41
"Without publicity, all other checks are insufficient: in comparison of publicity, all other checks are of small account. Recordation, appeal, whatever other institutions might present themselves in the character of checks, would be found to operate rather as cloaks than checks; as cloaks in reality, as checks only in appearance." 1 J. Bentham, Rationale of Judicial Evidence 524 (1827).7
42
Panegyrics on the values of openness were by no means confined to self-praise by the English. Foreign observers of English criminal procedure in the 18th and early 19th centuries came away impressed by the very fact that they had been freely admitted to the courts, as many were not in their own homelands. See L. Radzinowicz, A History of English Criminal Law 715, and n. 96 (1948). They marveled that "the whole juridical procedure passes in public," 2 P. Grosley, A Tour to London; or New Observations on England 142 (Nugent trans. 1772), quoted in Radzinowicz, supra, at 717, and one commentator declared:
43
"The main excellence of the English judicature consists in publicity, in the free trial by jury, and in the extraordinary despatch with which business is transacted. The publicity of their proceedings is indeed astonishing. Free access to the courts is universally granted." C. Goede, A Foreigner's Opinion of England 214 (Horne trans. 1822). (Emphasis added.)
44
The nexus between openness, fairness, and the perception of fairness was not lost on them:
45
"[T]he judge, the counsel, and the jury, are constantly exposed to public animadversion; and this greatly tends to augment the extraordinary confidence, which the English repose in the administration of justice." Id., at 215.
46
This observation raises the important point that "[t]he publicity of a judicial proceeding is a requirement of much broader bearing than its mere effect upon the quality of testimony." 6 J. Wigmore, Evidence § 1834, p. 435 (J. Chadbourn rev. 1976).8 The early history of open trials in part reflects the widespread acknowledgment, long before there were behavioral scientists, that public trials had significant community therapeutic value. Even without such experts to frame the concept in words, people sensed from experience and observation that, especially in the administration of criminal justice, the means used to achieve justice must have the support derived from public acceptance of both the process and its results.
47
When a shocking crime occurs, a community reaction of outrage and public protest often follows. See H. Weihofen, The Urge to Punish 130-131 (1956). Thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion. Without an awareness that society's responses to criminal conduct are underway, natural human reactions of outrage and protest are frustrated and may manifest themselves in some form of vengeful "self-help," as indeed they did regularly in the activities of vigilante "committees" on our frontiers. "The accusation and conviction or acquittal, as much perhaps as the execution of punishment, operat[e] to restore the imbalance which was created by the offense or public charge, to reaffirm the temporarily lost feeling of security and, perhaps, to satisfy that latent 'urge to punish.' " Mueller, Problems Posed by Publicity to Crime and Criminal Proceedings, 110 U.Pa.L.Rev. 1, 6 (1961).
48
Civilized societies withdraw both from the victim and the vigilante the enforcement of criminal laws, but they cannot erase from people's consciousness the fundamental, natural yearning to see justice done—or even the urge for retribution. The crucial prophylactic aspects of the administration of justice cannot function in the dark; no community catharsis can occur if justice is "done in a corner [or] in any covert manner." Supra, at 567. It is not enough to say that results alone will satiate the natural community desire for "satisfaction." A result considered untoward may undermine public confidence, and where the trial has been concealed from public view an unexpected outcome can cause a reaction that the system at best has failed and at worst has been corrupted. To work effectively, it is important that society's criminal process "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 the appearance of justice can best be provided by allowing people to observe it.
49
Looking back, we see that when the ancient "town meeting" form of trial became too cumbersome, 12 members of the community were delegated to act as its surrogates, but the community did not surrender its right to observe the conduct of trials. The people retained a "right of visitation" which enabled them to satisfy themselves that justice was in fact being done.
50
People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing. When a criminal trial is conducted in the open, there is at least an opportunity both for understanding the system in general and its workings in a particular case:
51
"The educative effect of public attendance is a material advantage. Not only is respect for the law increased and intelligent acquaintance acquired with the methods of government, but a strong confidence in judicial remedies is secured which could never be inspired by a system of secrecy." 6 Wigmore, supra, at 438. See also 1 J. Bentham, Rationale of Judicial Evidence, at 525.
52
In earlier times, both in England and America, attendance at court was a common mode of "passing the time." See, e. g., 6 Wigmore, supra, at 436; Mueller, supra, at 6. With the press, cinema, and electronic media now supplying the representations or reality of the real life drama once available only in the courtroom, attendance at court is no longer a widespread pastime. Yet "[i]t is not unrealistic even in this day to believe that public inclusion affords citizens a form of legal education and hopefully promotes confidence in the fair administration of justice." State v. Schmit, 273 Minn. 78, 87-88, 139 N.W.2d 800, 807 (1966). Instead of acquiring information about trials by firsthand observation or by word of mouth from those who attended, people now acquire it chiefly through the print and electronic media. In a sense, this validates the media claim of functioning as surrogates for the public. While media representatives enjoy the same right of access as the public, they often are provided special seating and priority of entry so that they may report what people in attendance have seen and heard. This "contribute[s] to public understanding of the rule of law and to comprehension of the functioning of the entire criminal justice system . . . ." Nebraska Press Assn. v. Stuart, 427 U.S., at 587, 96 S.Ct., at 2816 (BRENNAN, J., concurring in judgment).
C
53
From this unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, we are bound to conclude that a presumption of openness inheres in the very nature of a criminal trial under our system of justice. This conclusion is hardly novel; without a direct holding on the issue, the Court has voiced its recognition of it in a variety of contexts over the years.9 Even while holding, in Levine v. United States, 362 U.S. 610, 80 S.Ct. 1038, 4 L.Ed.2d 989 (1960), that a criminal contempt proceeding was not a "criminal prosecution" within the meaning of the Sixth Amendment, the Court was careful to note that more than the Sixth Amendment was involved:
54
"[W]hile the right to a 'public trial' is explicitly guaranteed by the Sixth Amendment only for 'criminal prosecutions,' that provision is a reflection of the notion, deeply rooted in the common law, that 'justice must satisfy the appearance of justice.' . . . [D]ue process demands appropriate regard for the requirements of a public proceeding in cases of criminal contempt . . . as it does for all adjudications through the exercise of the judicial power, barring narrowly limited categories of exceptions . . . ." Id., at 616, 80 S.Ct., at 1042.10
55
And recently in Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), both the majority, id., at 384, 386, n. 15, 99 S.Ct., at 2908, 2909, n. 15, and dissenting opinion, id., at 423, 99 S.Ct., at 2928, agreed that open trials were part of the common-law tradition.
56
Despite the history of criminal trials being presumptively open since long before the Constitution, the State presses its contention that neither the Constitution nor the Bill of Rights contains any provision which by its terms guarantees to the public the right to attend criminal trials. Standing alone, this is correct, but there remains the question whether, absent an explicit provision, the Constitution affords protection against exclusion of the public from criminal trials.
III
A.
57
The First Amendment, in conjunction with the Fourteenth, prohibits governments from "abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." These expressly guaranteed freedoms share a common core purpose of assuring freedom of communication on matters relating to the functioning of government. Plainly it would be difficult to single out any aspect of government of higher concern and importance to the people than the manner in which criminal trials are conducted; as we have shown, recognition of this pervades the centuries-old history of open trials and the opinions of this Court. Supra, at 564-575, and n. 9.
58
The Bill of Rights was enacted against the backdrop of the long history of trials being presumptively open. Public access to trials was then regarded as an important aspect of the process itself; the conduct of trials "before as many of the people as chuse to attend" was regarded as one of "the inestimable advantages of a free English constitution of government." 1 Journals 106, 107. In guaranteeing freedoms such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as to give meaning to those explicit guarantees. "[T]he First Amendment goes beyond protection of the press and the selfexpression of individuals to prohibit government from limiting the stock of information from which members of the public may draw." First National Bank of Boston v. Bellotti, 435 U.S. 765, 783, 98 S.Ct. 1407, 1419, 55 L.Ed.2d 707 (1978). Free speech carries with it some freedom to listen. "In a variety of contexts this Court has referred to a First Amendment right to 'receive information and ideas.' " Kleindienst v. Mandel, 408 U.S. 753, 762, 92 S.Ct. 2576, 2581, 33 L.Ed.2d 683 (1972). What this means in the context of trials is that the First Amendment guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time that Amendment was adopted. "For the First Amendment does not speak equivocally. . . . It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow." Bridges v. California, 314 U.S. 252, 263, 62 S.Ct. 190, 194, 86 L.Ed. 192 (1941) (footnote omitted).
59
It is not crucial whether we describe this right to attend criminal trials to hear, see, and communicate observations concerning them as a "right of access," cf. Gannett, supra, 443 U.S., at 397, 99 S.Ct., at 2914 (POWELL, J., concurring); Saxbe v. Washington Post Co., 417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514 (1974); Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974),11 or a "right to gather information," for we have recognized that "without some protection for seeking out the news, freedom of the press could be eviscerated." Branzburg v. Hayes, 408 U.S. 665, 681, 92 S.Ct. 2646, 2656, 33 L.Ed.2d 626 (1972). The explicit, guaranteed rights to speak and to publish concerning what takes place at a trial would lose much meaning if access to observe the trial could, as it was here, be foreclosed arbitrarily.12
B
60
The right of access to places traditionally open to the public, as criminal trials have long been, may be seen as assured by the amalgam of the First Amendment guarantees of speech and press; and their affinity to the right of assembly is not without relevance. From the outset, the right of assembly was regarded not only as an independent right but also as a catalyst to augment the free exercise of the other First Amendment rights with which it was deliberately linked by the draftsmen.13 "The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental." De Jonge v. Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 260, 81 L.Ed. 278 (1937). People assemble in public places not only to speak or to take action, but also to listen, observe, and learn; indeed, they may "assembl[e] for any lawful purpose," Hague v. CIO, 307 U.S. 496, 519, 59 S.Ct. 954, 965, 83 L.Ed. 1423 (1939) (opinion of Stone, J.). Subject to the traditional time, place, and manner restrictions, see, e. g., Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941); see also Cox v. Louisiana, 379 U.S. 559, 560-564, 85 S.Ct. 476, 478-480, 13 L.Ed.2d 487 (1965), streets, sidewalks, and parks are places traditionally open, where First Amendment rights may be exercised, see Hague v. CIO, supra, at 515, 59 S.Ct., at 963 (opinion of Roberts, J.); a trial courtroom also is a public place where the people generally—and representatives of the media—have a right to be present, and where their presence historically has been thought to enhance the integrity and quality of what takes place.14
C
61
The State argues that the Constitution nowhere spells out a guarantee for the right of the public to attend trials, and that accordingly no such right is protected. The possibility that such a contention could be made did not escape the notice of the Constitution's draftsmen; they were concerned that some important rights might be thought disparaged because not specifically guaranteed. It was even argued that because of this danger no Bill of Rights should be adopted. See, e. g., The Federalist No. 84 (A. Hamilton). In a letter to Thomas Jefferson in October 1788, James Madison explained why he, although "in favor of a bill of rights," had "not viewed it in an important light" up to that time: "I conceive that in a certain degree . . . the rights in question are reserved by the manner in which the federal powers are granted." He went on to state that "there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude." 5 Writings of James Madison 271 (G. Hunt ed. 1904).15
62
But arguments such as the State makes have not precluded recognition of important rights not enumerated. Notwithstanding the appropriate caution against reading into the Constitution rights not explicitly defined, the Court has acknowledged that certain unarticulated rights are implicit in enumerated guarantees. For example, the rights of association and of privacy, the right to be presumed innocent, and the right to be judged by a standard of proof beyond a reasonable doubt in a criminal trial, as well as the right to travel, appear nowhere in the Constitution or Bill of Rights. Yet these important but unarticulated rights have nonetheless been found to share constitutional protection in common with explicit guarantees.16 The concerns expressed by Madison and others have thus been resolved; fundamental rights, even though not expressly guaranteed, have been recognized by the Court as indispensable to the enjoyment of rights explicitly defined.
63
We hold that the right to attend criminal trials17 is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and "of the press could be eviscerated." Branzburg, 408 U.S., at 681, 92 S.Ct., at 2656.
D
64
Having concluded there was a guaranteed right of the public under the First and Fourteenth Amendments to attend the trial of Stevenson's case, we return to the closure order challenged by appellants. The Court in Gannett made clear that although the Sixth Amendment guarantees the accused a right to a public trial, it does not give a right to a private trial. 443 U.S., at 382, 99 S.Ct., at 2907. Despite the fact that this was the fourth trial of the accused, the trial judge made no findings to support closure; no inquiry was made as to whether alternative solutions would have met the need to ensure fairness; there was no recognition of any right under the Constitution for the public or press to attend the trial. In contrast to the pretrial proceeding dealt with in Gannett, there exist in the context of the trial itself various tested alternatives to satisfy the constitutional demands of fairness. See e. g., Nebraska Press Assn. v. Stuart, 427 U.S., at 563-565, 96 S.Ct., at 2804-2805; Sheppard v. Maxwell, 384 U.S., at 357-362, 86 S.Ct., at 1519-1522. There was no suggestion that any problems with witnesses could not have been dealt with by their exclusion from the courtroom or their sequestration during the trial. See id., at 359, 86 S.Ct., at 1520. Nor is there anything to indicate that sequestration of the jurors would not have guarded against their being subjected to any improper information. All of the alternatives admittedly present difficulties for trial courts, but none of the factors relied on here was beyond the realm of the manageable. Absent an overriding interest articulated in findings, the trial of a criminal case must be open to the public.18 Accordingly, the judgment under review is
65
Reversed.
66
Mr. Justice POWELL took no part in the consideration or decision of this case.
67
Mr. Justice WHITE, concurring.
68
This case would have been unnecessary had Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), construed the Sixth Amendment to forbid excluding the public from criminal proceedings except in narrowly defined circumstances. But the Court there rejected the submission of four of us to this effect, thus requiring that the First Amendment issue involved here be addressed. On this issue, I concur in the opinion of THE CHIEF JUSTICE.
69
Mr. Justice STEVENS, concurring.
70
This is a watershed case. Until today the Court has accorded virtually absolute protection to the dissemination of information or ideas, but never before has it squarely held that the acquisition of newsworthy matter is entitled to any constitutional protection whatsoever. An additional word of emphasis is therefore appropriate.
71
Twice before, the Court has implied that any governmental restriction on access to information, no matter how severe and no matter how unjustified, would be constitutionally acceptable so long as it did not single out the press for special disabilities not applicable to the public at large. In a dissent joined by Mr. Justice BRENNAN and Mr. Justice MARSHALL in Saxbe v. Washington Post Co., 417 U.S. 843, 850, 94 S.Ct. 2811, 2815, 41 L.Ed.2d 514, Mr. Justice POWELL unequivocally rejected the conclusion that "any governmental restriction of press access to information, so long as it is nondiscriminatory, falls outside the purview of First Amendment concern." Id., at 857, 94 S.Ct., at 2818, (emphasis in original). And in Houchins v. KQED, Inc., 438 U.S. 1, 19-40, 98 S.Ct. 2588, 2599-2610, 57 L.Ed.2d 553, I explained at length why Mr. Justice BRENNAN, Mr. Justice POWELL, and I were convinced that "[a]n official prison policy of concealing . . . knowledge from the public by arbitrarily cutting off the flow of information at its source abridges the freedom of speech and of the press protected by the First and Fourteenth Amendments to the Constitution." Id., at 38, 98 S.Ct., at 2609. Since Mr. Justice MARSHALL and Mr. Justice BLACKMUN were unable to participate in that case, a majority of the Court neither accepted nor rejected that conclusion or the contrary conclusion expressed in the prevailing opinions.1 Today, however, for the first time, the Court unequivocally holds that an arbitrary interference with access to important information is an abridgment of the freedoms of speech and of the press protected by the First Amendment.
72
It is somewhat ironic that the Court should find more reason to recognize a right of access today than it did in Houchins. For Houchins involved the plight of a segment of society least able to protect itself, an attack on a longstanding policy of concealment, and an absence of any legitimate justification for abridging public access to information about how government operates. In this case we are protecting the interests of the most powerful voices in the community, we are concerned with an almost unique exception to an established tradition of openness in the conduct of criminal trials, and it is likely that the closure order was motivated by the judge's desire to protect the individual defendant from the burden of a fourth criminal trial.2
73
In any event, for the reasons stated in Part II of my Houchins opinion, 438 U.S., at 30-38, 98 S.Ct., at 2605-2609, as well as those stated by THE CHIEF JUSTICE today, I agree that the First Amendment protects the public and the press from abridgment of their rights of access to information about the operation of their government, including the Judicial Branch; given the total absence of any record justification for the closure order entered in this case, that order violated the First Amendment.
74
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, concurring in the judgment.
75
Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), held that the Sixth Amendment right to a public trial was personal to the accused, conferring no right of access to pretrial proceedings that is separately enforceable by the public or the press. The instant case raises the question whether the First Amendment, of its own force and as applied to the States through the Fourteenth Amendment, secures the public an independent right of access to trial proceedings. Because I believe that the First Amendment—of itself and as applied to the States through the Fourteenth Amendment—secures such a public right of access, I agree with those of my Brethren who hold that, without more, agreement of the trial judge and the parties cannot constitutionally close a trial to the public.1
76
* While freedom of expression is made inviolate by the First Amendment, and, with only rare and stringent exceptions, may not be suppressed, see, e. g., Brown v. Glines, 444 U.S. 348, 364, 100 S.Ct. 594, 600, 609, 611, 62 L.Ed.2d 540 (1980) (BRENNAN, J., dissenting); Nebraska Press Assn. v. Stuart, 427 U.S. 539, 558-559, 96 S.Ct. 2791, 2802, 49 L.Ed.2d 683 (1976); id., at 590, 96 S.Ct., at 2817 (BRENNAN, J., concurring in judgment); 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); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 715-716, 51 S.Ct. 625, 630-631, 75 L.Ed. 1357 (1931), the First Amendment has not been viewed by the Court in all settings as providing an equally categorical assurance of the correlative freedom of access to information, see, e. g., Saxbe v. Washington Post Co., 417 U.S. 843, 849, 94 S.Ct. 2811, 2814, 41 L.Ed.2d 514 (1974); Zemel v. Rusk, 381 U.S. 1, 16-17, 85 S.Ct. 1271, 1281, 14 L.Ed.2d 179 (1965); see also Houchins v. KQED, Inc., 438 U.S. 1, 8-9, 98 S.Ct. 2588, 2593-2594, 57 L.Ed.2d 553 (1978) (opinion of BURGER, C. J.); id., at 16, 98 S.Ct., at 2598 (STEWART, J., concurring in judgment); Gannett Co. v. DePasquale, 443 U.S., at 404-405, 99 S.Ct., at 2918 (REHNQUIST, J., concurring). But cf. id., at 397-398, 99 S.Ct., at 2914-2915, (POWELL, J., concurring); Houchins, supra, 438 U.S., at 27-38, 98 S.Ct., at 2609 (STEVENS, J., dissenting); Saxbe, supra, 417 U.S., at 856-864, 94 S.Ct., at 2818-2822 (POWELL, J., dissenting); Pell v. Procunier, 417 U.S. 817, 839-842, 94 S.Ct. 2800, 2829-2830, 41 L.Ed.2d 495 (1974) (DOUGLAS, J., dissenting).2 Yet the Court has not ruled out a public access component to the First Amendment in every circumstance. Read with care and in context, our decisions must therefore be understood as holding only that any privilege of access to governmental information is subject to a degree of restraint dictated by the nature of the information and countervailing interests in security or confidentiality. See Houchins, supra, 438 U.S., at 8-9, 98 S.Ct., at 2593-2594 (opinion of BURGER, C. J.) (access to prisons); Saxbe, supra, 417 U.S., at 849, 94 S.Ct., at 2814 (same); Pell, supra, 417 U.S., at 831-832, 94 S.Ct., at 2808-2809 (same); Estes v. Texas, 381 U.S. 532, 541-542, 85 S.Ct. 1628, 1632, 14 L.Ed.2d 543 (1965) (television in courtroom); Zemel v. Rusk, supra, 16-17, 85 S.Ct., at 1280-1281 (validation of passport to unfriendly country). These cases neither comprehensively nor absolutely deny that public access to information may at times be implied by the First Amendment and the principles which animate it.
77
The Court's approach in right-of-access cases simply reflects the special nature of a claim of First Amendment right to gather information. Customarily, First Amendment guarantees are interposed to protect communication between speaker and listener. When so employed against prior restraints, free speech protections are almost insurmountable. See Nebraska Press Assn. v. Stuart, supra, at 558-559, 96 S.Ct., at 2802; New York Times Co. v. United States, supra, at 714, 91 S.Ct., at 2141 (per curiam opinion). See generally Brennan, Address, 32 Rutgers L.Rev. 173, 176 (1979). But the First Amendment embodies more than a commitment to free expression and communicative interchange for their own sakes; it has a structural role to play in securing and fostering our republican system of self-government. See United States v. Carolene Products Co., 304 U.S. 144, 152-153, n. 4, 58 S.Ct. 778, 783-784, n. 4, 82 L.Ed. 1234 (1938); Grosjean v. American Press Co., 297 U.S. 233, 249-250, 56 S.Ct. 444, 448-449, 80 L.Ed. 660 (1936); Stromberg v. California, 283 U.S. 359, 369, 51 S.Ct. 532, 535, 75 L.Ed. 1117 (1931); Brennan, supra, at 176-177; J. Ely, Democracy and Distrust 93-94 (1980); T. Emerson, The System of Freedom of Expression 7 (1970); A. Meiklejohn, Free Speech and Its Relation to Self-Government (1948); Bork, Neutral Principles and Some First Amendment Problems, 47 Ind.L.J. 1, 23 (1971). Implicit in this structural role is not only "the principle that debate on public issues should be uninhibited, robust, and wide-open," New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964), but also the antecedent assumption that valuable public debate—as well as other civic behavior—must be informed.3 The structural model links the First Amendment to that process of communication necessary for a democracy to survive, and thus entails solicitude not only for communication itself, but also for the indispensable conditions of meaningful communication.4
78
However, because "the stretch of this protection is theoretically endless," Brennan, supra, at 177, it must be invoked with discrimination and temperance. For so far as the participating citizen's need for information is concerned, "[t]here are few restrictions on action which could not be clothed by ingenious argument in the garb of decreased data flow." Zemel v. Rusk, supra, at 16-17, 85 S.Ct., at 1281. An assertion of the prerogative to gather information must accordingly be assayed by considering the information sought and the opposing interests invaded.5
79
This judicial task is as much a matter of sensitivity to practical necessities as it is of abstract reasoning. But at least two helpful principles may be sketched. First, the case for a right of access has special force when drawn from an enduring and vital tradition of public entree to particular proceedings or information. Cf. In re Winship, 397 U.S. 358, 361-362, 90 S.Ct. 1068, 1070-1071, 25 L.Ed.2d 368 (1970). Such a tradition commands respect in part because the Constitution carries the gloss of history. More importantly, a tradition of accessibility implies the favorable judgment of experience. Second, the value of access must be measured in specifics. Analysis is not advanced by rhetorical statements that all information bears upon public issues; what is crucial in individual cases is whether access to a particular government process is important in terms of that very process.
80
To resolve the case before us, therefore, we must consult historical and current practice with respect to open trials, and weigh the importance of public access to the trial process itself.
II
81
"This nation's accepted practice of guaranteeing a public trial to an accused has its roots in our English common law heritage." In re Oliver, 333 U.S. 257, 266, 68 S.Ct. 499, 504, 92 L.Ed. 682 (1948); see Gannett Co. v. DePasquale, 443 U.S., at 419-420, 99 S.Ct., at 2926 (BLACKMUN, J., concurring and dissenting). Indeed, historically and functionally, open trials have been closely associated with the development of the fundamental procedure of trial by jury. In re Oliver, supra, 333 U.S., at 266, 68 S.Ct., at 504; Radin, The Right to a Public Trial, 6 Temp.L.Q. 381, 388 (1932).6 Pre-eminent English legal observers and commentators have unreservedly acknowledged and applauded the public character of the common-law trial process. See T. Smith, De Republica Anglorum 77, 81-82 (1970);7 2 E. Coke, Institutes of the Laws of England 103 (6th ed. 1681); 3 W. Blackstone, Commentaries *372-*373 (13th ed. 1800);8 M. Hale, The History of the Common Law of England 342-344 (6th ed. 1820);9 1 J. Bentham, Rationale of Judicial Evidence 584-585 (1827). And it appears that "there is little record, if any, of secret proceedings, criminal or civil, having occurred at any time in known English history." Gannett, supra, 443 U.S., at 420, 99 S.Ct., at 2926 (BLACKMUN, J., concurring and dissenting); see also In re Oliver, supra, 333 U.S., at 269, n. 22, 68 S.Ct., at 505, n. 22; Radin, supra, at 386-387.
82
This legacy of open justice was inherited by the English settlers in America. The earliest charters of colonial government expressly perpetuated the accepted practice of public trials. See Concessions and Agreements of West New Jersey, 1677, ch. XXIII;10 Pennsylvania Frame of Government, 1682, Laws Agreed Upon in England, V.11 "There is no evidence that any colonial court conducted criminal trials behind closed doors . . . ." Gannett Co. v. DePasquale, supra, 443 U.S., at 425, 99 S.Ct., at 2929 (BLACKMUN, J., concurring and dissenting). Subsequently framed state constitutions also prescribed open trial proceedings. See, e. g., Pennsylvania Declaration of Rights, 1776, IX;12 North Carolina Declaration of Rights, 1776, IX;13 Vermont Declaration of Rights, X (1777);14 see also In re Oliver, 333 U.S., at 267, 68 S.Ct., at 504. "Following the ratification in 1791 of the Federal Constitution's Sixth Amendment, . . . most of the original states and those subsequently admitted to the Union adopted similar constitutional provisions." Ibid.15 Today, the overwhelming majority of States secure the right to public trials. Gannett, supra, 443 U.S., at 414-415, n. 3, 99 S.Ct., at 2923-2924, n. 3 (BLACKMUN, J., concurring and dissenting); see also In re Oliver, supra, 333 U.S., at 267-268, 271, and nn. 17-20, 68 S.Ct., at 504-505, 506, and nn. 17-20.
83
This Court too has persistently defended the public character of the trial process. In re Oliver established that the Due Process Clause of the Fourteenth Amendment forbids closed criminal trials. Noting the "universal rule against secret trials," 333 U.S., at 266, 68 S.Ct., at 504, the Court held that
84
"[i]n view of this nation's historic distrust of secret proceedings, their inherent dangers to freedom, and the universal requirement of our federal and state governments that criminal trials be public, the Fourteenth Amendment's guarantee that no one shall be deprived of his liberty without due process of law means at least that an accused cannot be thus sentenced to prison." Id., at 273, 68 S.Ct., at 507.16
85
Even more significantly for our present purpose, Oliver recognized that open trials are bulwarks of our free and democratic government: public access to court proceedings is one of the numerous "checks and balances" of our system, because "contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power," id., at 270, 68 S.Ct., at 506. See Sheppard v. Maxwell, 384 U.S. 333, 350, 86 S.Ct. 1507, 1515, 16 L.Ed.2d 600 (1966). Indeed, the Court focused with particularity upon the public trial guarantee "as a safeguard against any attempt to employ our courts as instruments of persecution," or "for the suppression of political and religious heresies." Oliver, supra, 333 U.S., at 270, 68 S.Ct., at 506. Thus, Oliver acknowledged that open trials are indispensable to First Amendment political and religious freedoms.
86
By the same token, a special solicitude for the public character of judicial proceedings is evident in the Court's rulings upholding the right to report about the administration of justice. While these decisions are impelled by the classic protections afforded by the First Amendment to pure communication, they are also bottomed upon a keen appreciation of the structural interest served in opening the judicial system to public inspection.17 So, in upholding a privilege for reporting truthful information about judicial misconduct proceedings, Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978), emphasized that public scrutiny of the operation of a judicial disciplinary body implicates a major purpose of the First Amendment—"discussion of governmental affairs," id., at 839, 98 S.Ct., at 1542. Again, Nebraska Press Assn. v. Stuart, 427 U.S., at 559, 96 S.Ct., at 2803, noted that the traditional guarantee against prior restraint "should have particular force as applied to reporting of criminal proceedings . . . ." And Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 492, 95 S.Ct. 1029, 1044, 43 L.Ed.2d 328 (1975), instructed that "[w]ith respect to judicial proceedings in particular, the function of the press serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice." See Time, Inc. v. Firestone, 424 U.S. 448, 473-474, 476-478, 96 S.Ct. 958, 974, 975-977, 47 L.Ed.2d 154 (1976) (BRENNAN, J., dissenting) (open judicial process is essential to fulfill "the First Amendment guarantees to the people of this Nation that they shall retain the necessary means of control over their institutions . . .").
87
Tradition, contemporaneous state practice, and this Court's own decisions manifest a common understanding that "[a] trial is a public event. What transpires in the court room is public property." Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 1254, 91 L.Ed. 1546 (1947). As a matter of law and virtually immemorial custom, public trials have been the essentially unwavering rule in ancestral England and in our own Nation. See In re Oliver, 333 U.S., at 266-268, 68 S.Ct., at 504-505; Gannett Co. v. DePasquale, 443 U.S., at 386, n. 15, 99 S.Ct., at 2908, n. 15, id., at 418-432, and n. 11, 99 S.Ct., at 2925-2932, and n. 11 (BLACKMUN, J., concurring and dissenting).18 Such abiding adherence to the principle of open trials "reflect[s] a profound judgment about the way in which law should be enforced and justice administered." Duncan v. Louisiana, 391 U.S. 145, 155, 88 S.Ct. 1444, 1451, 20 L.Ed.2d 491 (1968).
III
88
Publicity serves to advance several of the particular purposes of the trial (and, indeed, the judicial) process. Open trials play a fundamental role in furthering the efforts of our judicial system to assure the criminal defendant a fair and accurate adjudication of guilt or innocence. See, e. g., Estes v. Texas, 381 U.S., at 538-539, 85 S.Ct., at 1630-1631. But, as a feature of our governing system of justice, the trial process serves other, broadly political, interests, and public access advances these objectives as well. To that extent, trial access possesses specific structural significance.19
89
The trial is a means of meeting "the notion, deeply rooted in the common law, that 'justice must satisfy the appearance of justice.' " Levine v. United States, 362 U.S. 610, 616, 80 S.Ct. 1038, 1042, 4 L.Ed.2d 989 (1960), quotingOffutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13, 99 L.Ed. 11 (1954); accord, Gannett Co. v. DePasquale, supra, at 429, 99 S.Ct., at 2931 (BLACKMUN, J., concurring and dissenting); see Cowley v. Pulsifer, 137 Mass. 392, 394 (1884) (HOLMES, J.). For a civilization founded upon principles of ordered liberty to survive and flourish, its members must share the conviction that they are governed equitably. That necessity underlies constitutional provisions as diverse as the rule against takings without just compensation, see PruneYard Shopping Center v. Robins, 447 U.S. 74, 82-83, and n. 7, 100 S.Ct. 2035, 2041, and n. 7, 64 L.Ed.2d 741 (1980), and the Equal Protection Clause. It also mandates a system of justice that demonstrates the fairness of the law to our citizens. One major function of the trial, hedged with procedural protections and conducted with conspicuous respect for the rule of law, is to make that demonstration. See In re Oliver, supra, at 270, n. 24, 68 S.Ct., at 506, n. 24.
90
Secrecy is profoundly inimical to this demonstrative purpose of the trial process. Open trials assure the public that procedural rights are respected, and that justice is afforded equally. Closed trials breed suspicion of prejudice and arbitrariness, which in turn spawns disrespect for law. Public access is essential, therefore, if trial adjudication is to achieve the objective of maintaining public confidence in the administration of justice. See Gannett, supra, 443 U.S. at 428-429, 99 S.Ct., at 2930-2931 (BLACKMUN, J., concurring and dissenting).
91
But the trial is more than a demonstrably just method of adjudicating disputes and protecting rights. It plays a pivotal role in the entire judicial process, and, by extension, in our form of government. Under our system, judges are not mere umpires, but, in their own sphere, lawmakers—a coordinate branch of government.20 While individual cases turn upon the controversies between parties, or involve particular prosecutions, court rulings impose official and practical consequences upon members of society at large. Moreover, judges bear responsibility for the vitally important task of construing and securing constitutional rights. Thus, so far as the trial is the mechanism for judicial factfinding, as well as the initial forum for legal decisionmaking, it is a genuine governmental proceeding.
92
It follows that the conduct of the trial is pre-eminently a matter of public interest. See Cox Broadcasting Corp. v. Cohn, 420 U.S., at 491-492, 95 S.Ct., at 1044; Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912, 920, 70 S.Ct. 252, 255, 94 L.Ed. 562 (1950) (opinion of FRANKFURTER, J., respecting denial of certiorari). More importantly, public access to trials acts as an important check, akin in purpose to the other checks and balances that infuse our system of government. "The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power," In re Oliver, 333 U.S., at 270, 68 S.Ct., at 506 an abuse that, in many cases, would have ramifications beyond the impact upon the parties before the court. Indeed, " '[w]ithout publicity, all other checks are insufficient: in comparison of publicity, all other checks are of small account.' " Id., at 271, 68 S.Ct., at 506, quoting 1 J. Bentham, Rationale of Judicial Evidence 524 (1827); see 3 W. Blackstone, Commentaries *372; M. Hale, History of the Common Law of England 344 (6th ed. 1820); 1 J. Bryce, The American Commonwealth 514 (rev. 1931).
93
Finally, with some limitations, a trial aims at true and accurate factfinding. Of course, proper factfinding is to the benefit of criminal defendants and of the parties in civil proceedings. But other, comparably urgent, interests are also often at stake. A miscarriage of justice that imprisons an innocent accused also leaves a guilty party at large, a continuing threat to society. Also, mistakes of fact in civil litigation may inflict costs upon others than the plaintiff and defendant. Facilitation of the trial factfinding process, therefore, is of concern to the public as well as to the parties.21
94
Publicizing trial proceedings aids accurate factfinding. "Public trials come to the attention of key witnesses unknown to the parties." In re Oliver, supra, at 270, n. 24, 68 S.Ct., at 506, n. 24; see Tanksley v. United States, 145 F.2d 58, 59, 10 Alaska 443 (CA9 1944); 6 J. Wigmore, Evidence § 1834 (J. Chadbourn rev. 1976). Shrewd legal observers have averred that
95
"open examination of witnesses viva voce, in the presence of all mankind, is much more conducive to the clearing up of truth, than the private and secret examination . . . where a witness may frequently depose that in private, which he will be ashamed to testify in a public and solemn tribunal." 3 Blackstone, supra, at *373.
96
See Tanksley v. United States, supra, 145 F.2d at 59-60; Hale, supra, at 345; 1 Bentham, supra, at 522-523. And experience has borne out these assertions about the truthfinding role of publicity. See Hearings on S. 290 before the Subcommittee on Constitutional Rights and the Subcommittee on Improvements in Judicial Machinery of the Senate Judiciary Committee, 89th Cong., 1st Sess., pt. 2, pp. 433-434, 437-438 (1966).
97
Popular attendance at trials, in sum, substantially furthers the particular public purposes of that critical judicial proceeding.22 In that sense, public access is an indispensable element of the trial process itself. Trial access, therefore, assumes structural importance in our "government of laws,"Marbury v. Madison, 1 Cranch 137, 163, 2 L.Ed. 60 (1803).
IV
98
As previously noted, resolution of First Amendment public access claims in individual cases must be strongly influenced by the weight of historical practice and by an assessment of the specific structural value of public access in the circumstances. With regard to the case at hand, our ingrained tradition of public trials and the importance of public access to the broader purposes of the trial process, tip the balance strongly toward the rule that trials be open.23 What countervailing interests might be sufficiently compelling to reverse this presumption of openness need not concern us now,24 for the statute at stake here authorizes trial closures at the unfettered discretion of the judge and parties.25 Accordingly, Va.Code § 19.2-266 (Supp.1980) violates the First and Fourteenth Amendments, and the decision of the Virginia Supreme Court to the contrary should be reversed.
99
Mr. Justice STEWART, concurring in the judgment.
100
In Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608, the Court held that the Sixth Amendment, which guarantees "the accused" the right to a public trial, does not confer upon representatives of the press or members of the general public any right of access to a trial.1 But the Court explicitly left open the question whether such a right of access may be guaranteed by other provisions of the Constitution, id., at 391-393, 99 S.Ct., at 2911-2912. Mr. Justice POWELL expressed the view that the First and Fourteenth Amendments do extend at least a limited right of access even to pretrial suppression hearings in criminal cases, id., at 397-403, 99 S.Ct., at 2914 (concurring opinion). Mr. Justice REHNQUIST expressed a contrary view, id., at 403-406, 99 S.Ct., at 2917-2919 (concurring opinion). The remaining Members of the Court were silent on the question.
101
Whatever the ultimate answer to that question may be with respect to pretrial suppression hearings in criminal cases, the First and Fourteenth Amendments clearly give the press and the public a right of access to trials themselves, civil as well as criminal.2 As has been abundantly demonstrated in Part II of the opinion of THE CHIEF JUSTICE, in Mr. Justice BRENNAN's opinion concurring in the judgment, and in Mr. Justice BLACKMUN's opinion dissenting in part last Term in the Gannett case, supra, at 406, 99 S.Ct., at 2919, it has for centuries been a basic presupposition of the Anglo-American legal system that trials shall be public trials. The opinions referred to also convincingly explain the many good reasons why this is so. With us, a trial is by every definition a proceeding open to the press and to the public.
102
In conspicuous contrast to a military base, Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505; a jail, Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149; or a prison, Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495, a trial courtroom is a public place. Even more than city streets, sidewalks, and parks as areas of traditional First Amendment activity, e. g., Shuttlesworth v. Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162, a trial courtroom is a place where representatives of the press and of the public are not only free to be, but where their presence serves to assure the integrity of what goes on.
103
But this does not mean that the First Amendment right of members of the public and representatives of the press to attend civil and criminal trials is absolute. Just as a legislature may impose reasonable time, place, and manner restrictions upon the exercise of First Amendment freedoms, so may a trial judge impose reasonable limitations upon the unrestricted occupation of a courtroom by representatives of the press and members of the public. Cf. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600. Much more than a city street, a trial courtroom must be a quiet and orderly place. Compare Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513, with Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353, and Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543. Moreover, every courtroom has a finite physical capacity, and there may be occasions when not all who wish to attend a trial may do so.3 And while there exist many alternative ways to satisfy the constitutional demands of a fair trial,4 those demands may also sometimes justify limitations upon the unrestricted presence of spectators in the courtroom.5
104
Since in the present case the trial judge appears to have given no recognition to the right of representatives of the press and members of the public to be present at the Virginia murder trial over which he was presiding, the judgment under review must be reversed.
105
It is upon the basis of these principles that I concur in the judgment.
106
Mr. Justice BLACKMUN, concurring in the judgment.
107
My opinion and vote in partial dissent last Term in Gannett Co. v. DePasquale, 443 U.S. 368, 406, 99 S.Ct. 2898, 2919, 61 L.Ed.2d 608 (1979), compels my vote to reverse the judgment of the Supreme Court of Virginia.
108
* The decision in this case is gratifying for me for two reasons:
109
It is gratifying, first, to see the Court now looking to and relying upon legal history in determining the fundamental public character of the criminal trial. Ante, at 564-569, 572-574, and n.9. The partial dissent in Gannett, 443 U.S., at 419-433, 99 S.Ct., at 2926-2933, took great pains in assembling—I believe adequately—the historical material and in stressing its importance to this area of the law. See also Mr. Justice BRENNAN's helpful review set forth as Part II of his opinion in the present case. Ante, at 589-593. Although the Court in Gannett gave a modicum of lip service to legal history, 443 U.S., at 386, n.15, 99 S.Ct., at 2908, n.15, it denied its obvious application when the defense and the prosecution, with no resistance by the trial judge, agreed that the proceeding should be closed.
110
The court's return to history is a welcome change in direction.
111
It is gratifying, second, to see the Court wash away at least some of the graffiti that marred the prevailing opinions in Gannett. No less than 12 times in the primary opinion in that case, the Court (albeit in what seems now to have become clear dicta) observed that its Sixth Amendment closure ruling applied to the trial itself. The author of the first concurring opinion was fully aware of this and would have restricted the Court's observations and ruling to the suppression hearing. Id., at 394, 99 S.Ct., at 2913. Nonetheless, he joined the Court's opinion, ibid., with its multiple references to the trial itself; the opinion was not a mere concurrence in the Court's judgment. And Mr. Justice REHNQUIST, in his separate concurring opinion, quite understandably observed, as a consequence, that the Court was holding "without qualification," that " 'members of the public have no constitutional right under the Sixth and Fourteenth Amendments to attend criminal trials,' " id., at 403, 99 S.Ct., at 2917, quoting from the primary opinion, id., at 391, 99 S.Ct., at 2911. The resulting confusion among commentators1 and journalists2 was not surprising.
II
112
The Court's ultimate ruling in Gannett, with such clarification as is provided by the opinions in this case today, apparently is now to the effect that there is no Sixth Amendment right on the part of the public—or the press—to an open hearing on a motion to suppress. I, of course, continue to believe that Gannett was in error, both in its interpretation of the Sixth Amendment generally, and in its application to the suppression hearing, for I remain convinced that the right to a public trial is to be found where the Constitution explicitly placed it—in the Sixth Amendment.3
113
The Court, however, has eschewed the Sixth Amendment route. The plurality turns to other possible constitutional sources and invokes a veritable potpourri of them—the Speech Clause of the First Amendment, the Press Clause, the Assembly Clause, the Ninth Amendment, and a cluster of penumbral guarantees recognized in past decisions. This course is troublesome, but it is the route that has been selected and, at least for now, we must live with it. No purpose would be served by my spelling out at length here the reasons for my saying that the course is troublesome. I need do no more than observe that uncertainty marks the nature—and strictness—of the standard of closure the Court adopts. The plurality opinion speaks of "an overriding interest articulated in findings," ante, at 581; Mr. Justice STEWART reserves, perhaps not inappropriately, "reasonable limitations," ante, at 600; Mr. Justice BRENNAN presents his separate analytical framework; Mr. Justice POWELL in Gannett was critical of those Justices who, relying on the Sixth Amendment, concluded that closure is authorized only when "strictly and inescapably necessary," 443 U.S., at 399-400, 99 S.Ct., at 2915, and Mr. Justice REHNQUIST continues his flat rejection of, among others, the First Amendment avenue.
114
Having said all this, and with the Sixth Amendment set to one side in this case, I am driven to conclude, as a secondary position, that the First Amendment must provide some measure of protection for public access to the trial. The opinion in partial dissent in Gannett explained that the public has an intense need and a deserved right to know about the administration of justice in general; about the prosecution of local crimes in particular; about the conduct of the judge, the prosecutor, defense counsel, police officers, other public servants, and all the actors in the judicial arena; and about the trial itself. See 443 U.S., at 413, and n.2, 414, 428-429, 448, 99 S.Ct., at 2922, and n.2, 2923, 2930-2931, 2940. See also Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 492, 95 S.Ct. 1029, 1044, 43 L.Ed.2d 328 (1975). It is clear and obvious to me, on the approach the Court has chosen to take, that, by closing this criminal trial, the trial judge abridged these First Amendment interests of the public.
115
I also would reverse, and I join the judgment of the Court.
116
Mr. Justice REHNQUIST, dissenting.
117
In the Gilbert and Sullivan operetta "Iolanthe," the Lord Chancellor recites:
118
"The Law is the true embodiment
119
of everything that's excellent,
120
It has no kind of fault or flaw,
121
And I, my Lords, embody the Law."
122
It is difficult not to derive more than a little of this flavor from the various opinions supporting the judgment in this case. The opinion of THE CHIEF JUSTICE states:
123
"[H]ere for the first time the Court is asked to decide whether a criminal trial itself may be closed to the public upon the unopposed request of a defendant, without any demonstration that closure is required to protect the defendant's superior right to a fair trial, or that some other overriding consideration requires closure." Ante, at 564.
The opinion of Mr. Justice BRENNAN states:
124
"Read with care and in context, our decisions must therefore be understood as holding only that any privilege of access to governmental information is subject to a degree of restraint dictated by the nature of the information and countervailing interests in security or confidentiality." Ante, at 586.
125
For the reasons stated in my separate concurrence in Gannett Co. v. DePasquale, 443 U.S. 368, 403, 99 S.Ct. 2898, 2917, 61 L.Ed.2d 608 (1979), I do not believe that either the First or Sixth Amendment, as made applicable to the States by the Fourteenth, requires that a State's reasons for denying public access to a trial, where both the prosecuting attorney and the defendant have consented to an order of closure approved by the judge, are subject to any additional constitutional review at our hands. And I most certainly do not believe that the Ninth Amendment confers upon us any such power to review orders of state trial judges closing trials in such situations. See ante, at 579, n.15.
126
We have at present 50 state judicial systems and one federal judicial system in the United States, and our authority to reverse a decision by the highest court of the State is limited to only those occasions when the state decision violates some provision of the United States Constitution. And that authority should be exercised with a full sense that the judges whose decisions we review are making the same effort as we to uphold the Constitution. As said by Mr. Justice Jackson, concurring in the result in Brown v. Allen, 344 U.S. 443, 540, 73 S.Ct. 397, 427, 97 L.Ed. 469 (1953), "We are not final because we are infallible, but we are infallible only because we are final."
127
The proper administration of justice in any nation is bound to be a matter of the highest concern to all thinking citizens. But to gradually rein in, as this Court has done over the past generation, all of the ultimate decisionmaking power over how justice shall be administered, not merely in the federal system but in each of the 50 States, is a task that no Court consisting of nine persons, however gifted, is equal to. Nor is it desirable that such authority be exercised by such a tiny numerical fragment of the 220 million people who compose the population of this country. In the same concurrence just quoted, Mr. Justice Jackson accurately observed that "[t]he generalities of the Fourteenth Amendment are so indeterminate as to what state actions are forbidden that this Court has found it a ready instrument, in one field or another, to magnify federal, and incidentally its own, authority over the states." Id., at 534, 73 S.Ct., at 423.
128
However high-minded the impulses which originally spawned this trend may have been, and which impulses have been accentuated since the time Mr. Justice Jackson wrote, it is basically unhealthy to have so much authority concentrated in a small group of lawyers who have been appointed to the Supreme Court and enjoy virtual life tenure. Nothing in the reasoning of Mr. Chief Justice Marshall in Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803), requires that this Court through ever-broadening use of the Supremacy Clause smother a healthy pluralism which would ordinarily exist in a national government embracing 50 States.
129
The issue here is not whether the "right" to freedom of the press conferred by the First Amendment to the Constitution overrides the defendant's "right" to a fair trial conferred by other Amendments to the Constitution; it is instead whether any provision in the Constitution may fairly be read to prohibit what the trial judge in the Virginia state-court system did in this case. Being unable to find any such prohibition in the First, Sixth, Ninth, or any other Amendment to the United States Constitution, or in the Constitution itself, I dissent.
1
A newspaper account published the next day reported the mistrial and went on to note that "[a] key piece of evidence in Stevenson's original conviction was a bloodstained shirt obtained from Stevenson's wife soon after the killing. The Virginia Supreme Court, however, ruled that the shirt was entered into evidence improperly." App. 34a.
2
Virginia Code § 19.2-266 (Supp.1980) provides in part:
"In the trial of all criminal cases, whether the same be felony or misdemeanor cases, the court may, in its discretion, exclude from the trial any persons whose presence would impair the conduct of a fair trial, provided that the right of the accused to a public trial shall not be violated."
3
At oral argument, it was represented to the Court that tapes of the trial were available to the public as soon as the trial terminated. Tr. of Oral Arg. 36.
4
In our view, the validity of Va.Code § 19.2-266 (Supp.1980) was not sufficiently drawn in question by appellants before the Virginia courts to invoke our appellate jurisdiction. "It is essential to our jurisdiction on appeal . . . that there be an explicit and timely insistence in the state courts that a state statute, as applied, is repugnant to the federal Constitution, treaties or laws." Charleston Federal Savings & Loan Assn. v. Alderson, 324 U.S. 182, 185, 65 S.Ct. 624, 627, 89 L.Ed. 857 (1945). Appellants never explicitly challenged the statute's validity. In both the trial court and the State Supreme Court, appellants argued that constitutional rights of the public and the press prevented the court from closing a trial without first giving notice and an opportunity for a hearing to the public and the press and exhausting every alternative means of protecting the defendant's right to a fair trial. Given appellants' failure explicitly to challenge the statute, we view these arguments as constituting claims of rights under the Constitution, which rights are said to limit the exercise of the discretion conferred by the statute on the trial court. Cf. Phillips v. United States, 312 U.S. 246, 252, 61 S.Ct. 480, 484, 85 L.Ed. 800 (1941) ("[A]n attack on lawless exercise of authority in a particular case is not an attack upon the constitutionality of a statute conferring the authority . . ."). Such claims are properly brought before this Court by way of our certiorari, rather than appellate, jurisdiction. See, e. g., Kulko v. California Superior Court, 436 U.S. 84, 90, n. 4, 98 S.Ct. 1690, 1696, n. 4, 56 L.Ed.2d 132 (1978); Hanson v. Denckla, 357 U.S. 235, 244, and n. 4, 78 S.Ct. 1228, 1234, n. 4, 2 L.Ed.2d 1283 (1958). We shall, however, continue to refer to the parties as appellants and appellee. See Kulko, supra.
5
That there is little in the way of a contemporary record from this period is not surprising. It has been noted by historians, see E. Jenks, A Short History of English Law 3-4 (2d ed. 1922), that the early Anglo-Saxon laws "deal rather with the novel and uncertain, than with the normal and undoubted rules of law. . . . Why trouble to record that which every village elder knows? Only when a disputed point has long caused bloodshed and disturbance, or when a successful invader . . . insists on a change, is it necessary to draw up a code." Ibid.
6
Coke interpreted certain language of an earlier chapter of the same statute as specifically indicating that court proceedings were to be public in nature: "These words [In curia Domini Regis] are of great importance, for all Causes ought to be heard, ordered, and determined before the Judges of the King's Courts openly in the King's Courts, wither all persons may resort. . . ." 2 E. Coke, Institutes of the Laws of England 103 (6th ed. 1681) (emphasis added).
7
Bentham also emphasized that open proceedings enhanced the performance of all involved, protected the judge from imputations of dishonesty, and served to educate the public. Rationale of Judicial Evidence, at 522-525.
8
A collateral aspect seen by Wigmore was the possibility that someone in attendance at the trial or who learns of the proceedings through publicity may be able to furnish evidence in chief or contradict "falsifiers." 6 Wigmore, at 436. Wigmore gives examples of such occurrences. Id., at 436, and n. 2.
9
"Of course trials must be public and the public have a deep interest in trials." Pennekamp v. Florida, 328 U.S. 331, 361, 66 S.Ct. 1029, 1044, 90 L.Ed. 1295 (1946) (Frankfurter, J, concurring).
"A trial is a public event. What transpires in the court room is public property." Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 1254, 91 L.Ed. 1546 (1947) (Douglas, J.).
"[W]e have been unable to find a single instance of a criminal trial conducted in camera in any federal, state, or municipal court during the history of this country. Nor have we found any record of even one such secret criminal trial in England since abolition of the Court of Star Chamber in 1641, and whether that court ever convicted people secretly is in dispute. . . .
"This nation's accepted practice of guaranteeing a public trial to an accused has its roots in our English common law heritage. The exact date of its origin is obscure, but it likely evolved long before the settlement of our land as an accompaniment of the ancient institution of jury trial." In re Oliver, 333 U.S. 257, 266, 68 S.Ct. 499, 504, 92 L.Ed. 682 (1948) (Black, J.) (footnotes omitted).
"One of the demands of a democratic society is that the public should know what goes on in courts by being told by the press what happens there, to the end that the public may judge whether our system of criminal justice is fair and right." Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912, 920, 70 S.Ct. 252, 255-256, 94 L.Ed. 562 (1950) (Frankfurter, J., dissenting from denial of certiorari).
"It is true that the public has the right to be informed as to what occurs in its courts, . . . reporters of all media, including television, are always present if they wish to be and are plainly free to report whatever occurs in open court . . . ." Estes v. Texas, 381 U.S. 532, 541-542, 85 S.Ct. 1628, 1632, 14 L.Ed.2d 543 (1965) (Clark, J.); see also id., at
583-584, 85 S.Ct., at 1653 (Warren, C. J., concurring). (The Court ruled, however, that the televising of the criminal trial over the defendant's objections violated his due process right to a fair trial.)
"The principle that justice cannot survive behind walls of silence has long been reflected in the 'Anglo-American distrust for secret trials.' " Sheppard v. Maxwell, 384 U.S. 333, 349, 86 S.Ct. 1507, 1515, 16 L.Ed.2d 600 (1966) (Clark, J.).
10
The Court went on to hold that, "on the particular circumstances of the case," 362 U.S., at 616, 80 S.Ct., at 1043, the accused could not complain on appeal of the "so-called 'secrecy' of the proceedings," id., at 617, 80 S.Ct., at 1043, because, with counsel present, he had failed to object or to request the judge to open the courtroom at the time.
11
Procunier and Saxbe are distinguishable in the sense that they were concerned with penal institutions which, by definition, are not "open" or public places. Penal institutions do not share the long tradition of openness, although traditionally there have been visiting committees of citizens, and there is no doubt that legislative committees could exercise plenary oversight and "visitation rights." Saxbe, 417 U.S., at 849, 94 S.Ct., at 2814, noted that "limitation on visitations is justified by what the Court of Appeals acknowledged as 'the truism that prisons are institutions where public access is generally limited.' [Washington Post Co. v. Kleindienst] 161 U.S.App.D.C. [75], at 80, 494 F.2d [994], at 999. See Adderley v. Florida, 385 U.S. 39, 41 [87 S.Ct. 242, 243, 17 L.Ed.2d 149] (1966) [jails]." See also Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976) (military bases.)
12
That the right to attend may be exercised by people less frequently today when information as to trials generally reaches them by way of print and electronic media in no way alters the basic right. Instead of relying on personal observation or reports from neighbors as in the past, most people receive information concerning trials through the media whose representatives "are entitled to the same rights [to attend trials] as the general public." Estes v. Texas, 381 U.S., at 540, 85 S.Ct., at 1631.
13
When the First Congress was debating the Bill of Rights, it was contended that there was no need separately to assert the right of assembly because it was subsumed in freedom of speech. Mr. Sedgwick of Massachusetts argued the inclusion of "assembly" among the enumerated rights would tend to make the Congress "appear trifling in the eyes of their constituents. . . . If people freely converse together, they must assemble for that purpose; it is a self-evident, unalienable right which the people possess; it is certainly a thing that never would be called in question. . . ." 1 Annals of Cong. 731 (1789). Since the right existed independent of any written guarantee, Sedgwick went on to argue that if it were the drafting committee's purpose to protect all inherent rights of the people by listing them, "they might have gone into a very lengthy enumeration of rights," but this was unnecessary, he said, "in a Government where none of them were intended to be infringed." Id., at 732.
Mr. Page of Virginia responded, however, that at times "such rights have been opposed," and that "people have . . . been prevented from assembling together on their lawful occasions":
"[T]herefore it is well to guard against such stretches of authority, by inserting the privilege in the declaration of rights. If the people could be deprived of the power of assembling under any pretext whatsoever, they might be deprived of every other privilege contained in the clause." Ibid. The motion to strike "assembly" was defeated. Id., at 733.
14
It is of course true that the right of assembly in our Bill of Rights was in large part drafted in reaction to restrictions on such rights in England. See, e. g., 1 Geo. 1, stat. 2, ch. 5 (1714); cf. 36 Geo. 3, ch. 8 (1795). As we have shown, the right of Englishmen to attend trials was not similarly limited; but it would be ironic indeed if the very historic openness of the trial could militate against protection of the right to attend it. The Constitution guarantees more than simply freedom from those abuses which led the Framers to single out particular rights. The very purpose of the First Amendment is to guarantee all facets of each right described; its draftsmen sought both to protect the "rights of Englishmen" and to enlarge their scope. See Bridges v. California, 314 U.S. 252, 263-265, 62 S.Ct. 190, 194-195, 86 L.Ed. 192 (1941).
"There are no contrary implications in any part of the history of the period in which the First Amendment was framed and adopted. No purpose in ratifying the Bill of Rights was clearer than that of securing for the people of the United States much greater freedom of religion, expression, assembly, and petition than the people of Great Britain had ever enjoyed." Id., at 265, 62 S.Ct., at 194.
15
Madison's comments in Congress also reveal the perceived need for some sort of constitutional "saving clause," which, among other things, would serve to foreclose application to the Bill of Rights of the maxim that the affirmation of particular rights implies a negation of those not expressly defined. See 1 Annals of Cong. 438-440 (1789). See also, e. g., 2 J. Story, Commentaries on the Constitution of the United States 651 (5th ed. 1891). Madison's efforts, culminating in the Ninth Amendment, served to allay the fears of those who were concerned that expressing certain guarantees could be read as excluding others.
16
See, e. g., NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958) (right of association); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), and Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969) (right to privacy); Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 1692, 48 L.Ed.2d 126 (1976), and Taylor v. Kentucky, 436 U.S. 478, 483-486, 98 S.Ct. 1930, 1934-1935, 56 L.Ed.2d 468 (1978) (presumption of innocence); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (standard of proof beyond a reasonable doubt); United States v. Guest, 383 U.S. 745, 757-759, 86 S.Ct. 1170, 1177-1178, 16 L.Ed.2d 239 (1966), and Shapiro v. Thompson, 394 U.S. 618, 630, 89 S.Ct. 1322, 1329, 22 L.Ed.2d 600 (1969) (right to interstate travel).
17
Whether the public has a right to attend trials of civil cases is a question not raised by this case, but we note that historically both civil and criminal trials have been presumptively open.
18
We have no occasion here to define the circumstances in which all or parts of a criminal trial may be closed to the public, cf., e. g., 6 J. Wigmore, Evidence § 1835 (J. Chadbourn rev. 1976), but our holding today does not mean that the First Amendment rights of the public and representatives of the press are absolute. Just as a government may impose reasonable time, place, and manner restrictions upon the use of its streets in the interest of such objectives as the free flow of traffic, see, e. g., Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941), so may a trial judge, in the interest of the fair administration of justice, impose reasonable limitations on access to a trial. "[T]he question in a particular case is whether that control is exerted so as not to deny or unwarrantedly abridge . . . the opportunities for the communication of thought and the discussion of public questions immemorially associated with resort to public places." Id., at 574, 61 S.Ct., at 765. It is far more important that trials be conducted in a quiet and orderly setting than it is to preserve that atmosphere on city streets. Compare, e. g., Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949), with Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), and Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). Moreover, since courtrooms have limited capacity, there may be occasions when not every person who wishes to attend can be accommodated. In such situations, reasonable restrictions on general access
are traditionally imposed, including preferential seating for media representatives. Cf. Gannett, 443 U.S., at 397-398, 99 S.Ct., at 2914-2915 (POWELL, J., concurring); Houchins v. KQED, Inc., 438 U.S. 1, 17, 98 S.Ct. 2588, 2598, 57 L.Ed.2d 553 (1978) (STEWART, J., concurring in judgment); id., at 32, 98 S.Ct., at 2606 (STEVENS, J., dissenting).
1
"Neither the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information within the government's control." 438 U.S., at 15, 98 S.Ct., at 2597 (opinion of BURGER, C. J.).
"The First and Fourteenth Amendments do not guarantee the public a right of access to information generated or controlled by government . . . . The Constitution does no more than assure the public and the press equal access once government has opened its doors." Id., at 16, 98 S.Ct., at 2598 (STEWART, J., concurring in judgment).
2
Neither that likely motivation nor facts showing the risk that a fifth trial would have been necessary without closure of the fourth are disclosed in this record, however. The absence of any articulated reason for the closure order is a sufficient basis for distinguishing this case from Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608. The decision today is in no way inconsistent with the perfectly unambiguous holding in Gannett that the rights guaranteed by the Sixth Amendment are rights that may be asserted by the accused rather than members of the general public. In my opinion the Framers quite properly identified the party who has the greatest interest in the right to a public trial. The language of the Sixth Amendment is worth emphasizing:
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence." (Emphasis added.)
1
Of course, the Sixth Amendment remains the source of the accused's own right to insist upon public judicial proceedings. Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979).
That the Sixth Amendment explicitly establishes a public trial right does not impliedly foreclose the derivation of such a right from other provisions of the Constitution. The Constitution was not framed as a work of carpentry, in which all joints must fit snugly without overlapping. Of necessity, a document that designs a form of government will address central political concerns from a variety of perspectives. Significantly, this Court has recognized the open trial right both as a matter of the Sixth Amendment and as an ingredient in Fifth Amendment due process. See Levine v. United States, 362 U.S. 610, 614, 616, 80 S.Ct. 1038, 1041, 1042, 4 L.Ed.2d 989 (1960); cf. In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948) (Fourteenth Amendment due process). Analogously, racial segregation has been found independently offensive to the Equal Protection and Fifth Amendment Due Process Clauses. Compare Brown v. Board of Education, 347 U.S. 483, 495, 74 S.Ct. 686, 692, 98 L.Ed. 873 (1954), with Bolling v. Sharpe, 347 U.S. 497, 499-500, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954).
2
A conceptually separate, yet related, question is whether the media should enjoy greater access rights than the general public. See, e. g., Saxbe v. Washington Post Co., 417 U.S., at 850, 94 S.Ct., at 2815; Pell v. Procunier, 417 U.S., at 834-835, 94 S.Ct., at 2810. But no such contention is at stake here. Since the media's right of access is at least equal to that of the general public, see ibid., this case is resolved by a decision that the state statute unconstitutionally restricts public access to trials. As a practical matter, however, the institutional press is the likely, and fitting, chief beneficiary of a right of access because it serves as the "agent" of interested citizens, and funnels information about trials to a large number of individuals.
3
This idea has been foreshadowed in Mr. Justice POWELL'S dissent in Saxbe v. Washington Post Co., supra, at 862-863, 94 S.Ct., at 2821:
"What is at stake here is the societal function of the First Amendment in preserving free public discussion of governmental affairs. No aspect of that constitutional guarantee is more rightly treasured than its protection of the ability of our people through free and open debate to consider and resolve their own destiny. . . . '[The] First Amendment is one of the vital bulwarks of our national commitment to intelligent self-government.' . . . It embodies our Nation's commitment to popular self-determination and our abiding faith that the surest course for developing sound national policy lies in a free exchange of views on public issues. And public debate must not only be unfettered; it must also be informed. For that reason this Court has repeatedly stated that First Amendment concerns encompass the receipt of information and ideas as well as the right of free expression." (Footnote omitted.)
4
The technique of deriving specific rights from the structure of our constitutional government, or from other explicit rights, is not novel. The right of suffrage has been inferred from the nature of "a free and democratic society" and from its importance as a "preservative of other basic civil and political rights. . . ." Reynolds v. Sims, 377 U.S. 533, 561-562, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506 (1964); San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 34, n. 74, 93 S.Ct. 1278, 1297, n. 74, 36 L.Ed.2d 16 (1973). So, too, the explicit freedoms of speech, petition, and assembly have yielded a correlative guarantee of certain associational activities. NAACP v. Button, 371 U.S. 415, 430, 83 S.Ct. 328, 336, 9 L.Ed.2d 405 (1963). See also Rodriguez, supra, 411 U.S., at 33-34, 93 S.Ct., at 1297 (indicating that rights may be implicitly embedded in the Constitution); 411 U.S., at 62-63, 93 S.Ct., at 1311-1312 (BRENNAN, J., dissenting); id., at 112-115, 93 S.Ct., at 1337-1338 (MARSHALL, J., dissenting); Lamont v. Postmaster General, 381 U.S. 301, 308, 85 S.Ct. 1493, 1497, 14 L.Ed.2d 398 (1965) (BRENNAN, J., concurring).
5
Analogously, we have been somewhat cautious in applying First Amendment protections to communication by way of nonverbal and nonpictorial conduct. Some behavior is so intimately connected with expression that for practical purposes it partakes of the same transcendental constitutional value as pure speech. See, e. g., Tinker v. Des Moines School District, 393 U.S. 503, 505-506, 89 S.Ct. 733, 735-736, 21 L.Ed.2d 731 (1969). Yet where the connection between expression and action is perceived as more tenuous, communicative interests may be overridden by competing social values. See, e. g., Hughes v. Superior Court, 339 U.S. 460, 464-465, 70 S.Ct. 718, 721, 94 L.Ed. 985 (1950).
6
"[The public trial] seems almost a necessary incident of jury trials, since the presence of a jury . . . already insured the presence of a large part of the public. We need scarcely be reminded that the jury was the patria, the 'country' and that it was in that capacity and not as judges, that it was summoned." Radin, The Right to a Public Trial, 6 Temp.L.Q. 381, 388 (1932); see 3 W. Blackstone, Commentaries *349 ("trial BY JURY ; CALLED ALSO THE TRIAL PER PAIS, OR BY THE COUNTRY "); t. smith, De Republica Anglorum 79 (1970).
7
First published in 1583.
8
First published in 1765.
9
First edition published in 1713.
10
Quoted in 1 B, Schwartz, The Bill of Rights: A Documentary History 129 (1971).
11
Id., at 140.
12
Id., at 265.
13
Id., at 287.
14
Id., at 323.
15
To be sure, some of these constitutions, such as the Pennsylvania Declaration of Rights, couched their public trial guarantees in the language of the accused's rights. But although the Court has read the Federal Constitution's explicit public trial provision, U.S.Const., Amdt. 6, as benefiting the defendant alone, it does not follow that comparably worded state guarantees must be so construed. See Gannett Co. v. DePasquale, 443 U.S., at 425, and n. 9, 99 S.Ct., at 2929, and n. 9 (BLACKMUN, J., concurring and dissenting); cf. also Mallott v. State, 608 P.2d 737, 745, n. 12 (Alaska 1980). And even if the specific state public trial protections must be invoked by defendants, those state constitutional clauses still provide evidence of the importance attached to open trials by the founders of our state governments. Indeed, it may have been thought that linking public trials to the accused's privileges was the most effective way of assuring a vigorous representative for the popular interest.
16
Notably, Oliver did not rest upon the simple incorporation of the Sixth Amendment into the Fourteenth, but upon notions intrinsic to due process, because the criminal contempt proceedings at issue in the case were "not within 'all criminal prosecutions' to which [the Sixth] . . . Amendment applies." Levine v. United States, 362 U.S. 610, 616, 80 S.Ct. 1038, 1042, 4 L.Ed.2d 989 (1960); see also n. 1, supra.
17
As Mr. Justice Holmes pointed out in his opinion for the Massachusetts Supreme Judicial Court in Cowley v. Pulsifer, 137 Mass. 392, 394 (1884), "the privilege [to publish reports of judicial proceedings] and the access of the public to the courts stand in reason upon common ground." See Lewis v. Levy, El., Bl., & El. 537, 120 Eng.Rep. 610 (K.B.1858).
18
The dictum in Branzburg v. Hayes, 408 U.S. 665, 684-685, 92 S.Ct. 2646, 2658, 33 L.Ed.2d 626 (1972), that "[n]ewsmen . . . may be prohibited from attending or publishing information about trials if such restrictions are necessary to assure a defendant a fair trial . . .," is not to the contrary; it simply notes that rights of access may be curtailed where there are sufficiently powerful countervailing considerations. See supra, at 588.
19
By way of analogy, we have fashioned rules of criminal procedure to serve interests implicated in the trial process beside those of the defendant. For example, the exclusionary rule is prompted not only by the accused's interest in vindicating his own rights, but also in part by the independent " 'imperative of judicial integrity.' " See, e. g., Terry v. Ohio, 392 U.S. 1, 12-13, 88 S.Ct. 1868, 1875, 20 L.Ed.2d 889 (1968), quoting Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1446, 4 L.Ed.2d 1669 (1960); United States v. Calandra, 414 U.S. 338, 357-359, 94 S.Ct. 613, 624-625, 38 L.Ed.2d 561 (1974) (BRENNAN, J., dissenting); Olmstead v. United States, 277 U.S. 438, 484-485, 48 S.Ct. 564, 574-575, 72 L.Ed. 944 (1928) (BRANDEIS, J., dissenting); id., at 470, 48 S.Ct., at 575 (HOLMES, J., dissenting). And several Members of this Court have insisted that criminal entrapment cannot be "countenanced" because the "obligation" to avoid "enforcement of the law by lawless means . . . goes beyond the conviction of the particular defendant before the court. Public confidence in the fair and honorable administration of justice . . . is the transcending value at stake." Sherman v. United States, 356 U.S. 369, 380, 78 S.Ct. 819, 824, 2 L.Ed.2d 848 (1958) (FRANKFURTER, J., concurring in result); see United States v. Russell, 411 U.S. 423, 436-439, 93 S.Ct. 1637, 1645-1646, 36 L.Ed.2d 366 (1973) (DOUGLAS, J., dissenting); id., at 442-443, 93 S.Ct., at 1647-1648 (STEWART, J., dissenting); Sorrells v. United States, 287 U.S. 435, 455, 53 S.Ct. 210, 217, 77 L.Ed. 413 (1932) (opinion of ROBERTS, J.); Casey v. United States, 276 U.S. 413, 423, 425, 48 S.Ct. 373, 375, 376, 72 L.Ed. 632 (1928) (BRANDEIS, J., dissenting).
20
The interpretation and application of constitutional and statutory law, while not legislation, is lawmaking, albeit of a kind that is subject to special constraints and informed by unique considerations. Guided and confined by the Constitution and pertinent statutes, judges are obliged to be discerning, to exercise judgment, and to prescribe rules. Indeed, at times judges wield considerable authority to formulate legal policy in designated areas. See, e. g., Moragne v. States Marine Lines, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964); Textile Workers v. Lincoln Mills, 353 U.S. 448, 456-457, 77 S.Ct. 912, 918, 1 L.Ed.2d 972 (1957); P. Areeda, Antitrust Analysis 45-46 (2d ed. 1974) ("Sherman Act [is] . . . a general authority to do what common law courts usually do: to use certain customary techniques of judicial reasoning . . . and to develop, refine, and innovate in the dynamic common law tradition").
21
Further, the interest in insuring that the innocent are not punished may be shared by the general public, in addition to the accused himself.
22
In advancing these purposes, the availability of a trial transcript is no substitute for a public presence at the trial itself. As any experienced appellate judge can attest, the "cold" record is a very imperfect reproduction of events that transpire in the courtroom. Indeed, to the extent that publicity serves as a check upon trial officials, "[r]ecordation . . . would be found to operate rather as a cloa[k] than chec[k]; as cloa[k] in reality, as chec[k] only in appearance." In re Oliver, 333 U.S., at 271, 68 S.Ct., at 506, quoting 1 J. Bentham, Rationale of Judicial Evidence 524 (1827); see id., at 577-578.
23
The presumption of public trials is, of course, not at all incompatible with reasonable restrictions imposed upon courtroom behavior in the interests of decorum. Cf. Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). Thus, when engaging in interchanges at the bench, the trial judge is not required to allow public or press intrusion upon the huddle. Nor does this opinion intimate that judges are restricted in their ability to conduct conferences in chambers, inasmuch as such conferences are distinct from trial proceedings.
24
For example, national security concerns about confidentiality may sometimes warrant closures during sensitive portions of trial proceedings, such as testimony about state secrets. Cf. United States v. Nixon, 418 U.S. 683, 714-716, 94 S.Ct. 3090, 3110-3111, 41 L.Ed.2d 1039 (1974).
25
Significantly, closing a trial lacks even the justification for barring the door to pretrial hearings: the necessity of preventing dissemination of suppressible prejudicial evidence to the public before the jury pool has become, in a practical sense, finite and subject to sequestration.
1
The Court also made clear that the Sixth Amendment does not give the accused the right to a private trial. 443 U.S., at 382, 99 S.Ct., at 2907. Cf. Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (Sixth Amendment right of trial by jury does not include right to be tried without a jury).
2
It has long been established that the protections of the First Amendment are guaranteed by the Fourteenth Amendment against invasion by the States. E. g., Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138. The First Amendment provisions relevant to this case are those protecting free speech and a free press. The right to speak implies a freedom to listen, Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683. The right to publish implies a freedom to gather information, Branzburg v. Hayes, 408 U.S. 665, 681, 92 S.Ct. 2646, 2656, 33 L.Ed.2d 626. See opinion of Mr. Justice BRENNAN concurring in the judgment, ante, p. 584, passim.
3
In such situations, representatives of the press must be assured access, Houchins v. KQED, Inc., 438 U.S. 1, 16, 98 S.Ct. 2588, 2598, 57 L.Ed.2d 553 (opinion concurring in judgment).
4
Such alternatives include sequestration of juries, continuances, and changes of venue.
5
This is not to say that only constitutional considerations can justify such restrictions. The preservation of trade secrets, for example, might justify the exclusion of the public from at least some segments of a civil trial. And the sensibilities of a youthful prosecution witness, for example, might justify similar exclusion in a criminal trial for rape, so long as the defendant's Sixth Amendment right to a public trial were not impaired. See, e. g., Stamicarbon, N. V. v. American Cyanamid Co., 506 F.2d 532, 539-542 (CA2 1974).
1
See, e. g., Stephenson, Fair Trial-Free Press: Rights in Continuing Conflict, 46 Brooklyn L.Rev. 39, 63 (1979) ("intended reach of the majority opinion is unclear" (footnote omitted)); The Supreme Court, 1978 Term, 93 Harv.L.Rev. 60, 65 (1979) ("widespread uncertainty over what the Court held"); Note, 51 U.Colo.L.Rev. 425, 432-433 (1980) ("Gannett can be interpreted to sanction the closing of trials"; citing "the uncertainty of the language in Gannett," and its "ambiguous sixth amendment holding"); Note, 11 Tex.Tech.L.Rev. 159, 170-171 (1979) ("perhaps much of the present and imminent confusion lies in the Court's own statement of its holding"); Borow & Kruth, Closed Preliminary Hearings, 55 Calif.State Bar.J. 18, 23 (1980) ("Despite the public disclaimers . . . , the majority holding appears to embrace the right of access to trials as well as pretrial hearings"); Goodale, Gannett Means What it Says; But Who Knows What it Says?, Nat. L J., Oct. 15, 1979, p. 20; see also Keeffe, The Boner Called Gannett, 66 A.B.A.J. 227 (1980).
2
The press—perhaps the segment of society most profoundly affected by Gannett —has called the Court's decision "cloudy," Birmingham Post-Herald, Aug. 21, 1979, p. A4; "confused," Chicago Sun-Times, Sept. 20, 1979, p. 56 (cartoon); "incoherent," Baltimore Sun, Sept. 22, 1979, p. A14; "mushy," Washington Post, Aug. 10, 1979, p. A15; and a "muddle," Time, Sept. 17, 1979, p. 82, and Newsweek, Aug. 27, 1979, p. 69.
3
I shall not again seek to demonstrate the errors of analysis in the Court's opinion in Gannett. I note, however, that the very existence of the present case illustrates the utter fallacy of thinking, in this context, that "the public interest is fully protected by the participants in the litigation." Gannett Co. v. DePasquale, 443 U.S., at 384, 99 S.Ct., at 2908. Cf. id., at 438-439, 99 S.Ct., at 2935-2936 (opinion in partial dissent).
| 23
|
448 U.S. 448
100 S.Ct. 2758
65 L.Ed.2d 902
H. Earl FULLILOVE et al., Petitioners,v.Philip M. KLUTZNICK, Secretary of Commerce of the United States, et al.
No. 78-1007.
Argued Nov. 27, 1979.
Decided July 2, 1980.
Syllabus
The "minority business enterprise" (MBE) provision of the Public Works Employment Act of 1977 (1977 Act) requires that, absent an administrative waiver, at least 10% of federal funds granted for local public works projects must be used by the state or local grantee to procure services or supplies from businesses owned by minority group members, defined as United States citizens "who are Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts." Under implementing regulations and guidelines, grantees and their private prime contractors are required, to the extent feasible, in fulfilling the 10% MBE requirement, to seek out all available, qualified, bona fide MBE's, to provide technical assistance as needed, to lower or waive bonding requirements where feasible, to solicit the aid of the Office of Minority Business Enterprise, the Small Business Administration, or other sources for assisting MBE's in obtaining required working capital, and to give guidance through the intricacies of the bidding process. The administrative program, which recognizes that contracts will be awarded to bona fide MBE's even though they are not the lowest bidders if their bids reflect merely attempts to cover costs inflated by the present effects of prior disadvantage and discrimination, provides for handling grantee applications for administrative waiver of the 10% MBE requirement on a case-by-case basis if infeasibility is demonstrated by a showing that, despite affirmative efforts, such level of participation cannot be achieved without departing from the program's objectives. The program also provides an administrative mechanism to ensure that only bona fide MBE's are encompassed by the program, and to prevent unjust participation by minority firms whose access to public contracting opportunities is not impaired by the effects of prior discrimination.
Petitioners, several associations of construction contractors and subcontractors and a firm engaged in heating, ventilation, and air conditioning work, filed suit for declaratory and injunctive relief in Federal District Court, alleging that they had sustained economic injury due to enforcement of the MBE requirement and that the MBE provision on its face violated, inter alia, the Equal Protection Clause of the Fourteenth Amendment and the equal protection component of the Due Process Clause of the Fifth Amendment. The District Court upheld the validity of the MBE program, and the Court of Appeals affirmed.
Held: The judgment is affirmed. Pp. 456-492; 517-522.
584 F.2d 600, affirmed.
Mr. CHIEF JUSTICE BURGER, joined by Mr. Justice WHITE and Mr. Justice POWELL, concluded that the MBE provision of the 1977 Act, on its face, does not violate the Constitution. Pp. 456-492.
1
(a) Viewed against the legislative and administrative background of the 1977 Act, the legislative objectives of the MBE provision and of the administrative program thereunder were to ensure—without mandating the allocation of federal funds according to inflexible percentages solely based on race or ethnicity—that, to the extent federal funds were granted under the 1977 Act, grantees who elected to participate would not employ procurement practices that Congress had decided might result in perpetuation of the effects of prior discrimination which had impaired or foreclosed access by minority businesses to public contracting opportunities. Pp. 456-472.
2
(b) In considering the constitutionality of the MBE provision, it first must be determined whether the objectives of the legislation are within Congress' power. Pp. 472-480.
3
(i) The 1977 Act as primarily an exercise of Congress' Spending Power under Art. I, § 8, cl. 1, "to provide for the . . . general Welfare," conditions receipt of federal moneys upon the recipient's compliance with federal statutory and administrative directives. Since the reach of the Spending Power is at least as broad as Congress' regulatory powers, if Congress, pursuant to its regulatory powers, could have achieved the objectives of the MBE program, then it may do so under the Spending Power. Pp. 473-475.
4
(ii) Insofar as the MBE program pertains to the actions of private prime contractors, including those not responsible for any violation of antidiscrimination laws, Congress could have achieved its objectives under the Commerce Clause. The legislative history shows that there was a rational basis for Congress to conclude that the subcontracting practices of prime contractors could perpetuate the prevailing impaired access by minority businesses to public contracting opportunities, and that this inequity has an effect on interstate commerce. Pp. 475-476.
5
(iii) Insofar as the MBE program pertains to the actions of state and local grantees, Congress could have achieved its objectives by use of its power under § 5 of the Fourteenth Amendment "to enforce, by appropriate legislation" the equal protection guarantee of that Amendment. Congress had abundant historical basis from which it could conclude that traditional procurement practices, when applied to minority businesses, could perpetuate the effects of prior discrimination, and that the prospective elimination of such barriers to minority-firm access to public contracting opportunities was appropriate to ensure that those businesses were not denied equal opportunity to participate in federal grants to state and local governments, which is one aspect of the equal protection of the laws. Cf., e. g., Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828; Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272. Pp. 476-478.
6
(iv) Thus, the objectives of the MBE provision are within the scope of Congress' Spending Power. Cf., Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1. Pp. 479-480.
7
(c) Congress' use here of racial and ethnic criteria as a condition attached to a federal grant is a valid means to accomplish its constitutional objectives, and the MBE provision on its face does not violate the equal protection component of the Due Process Clause of the Fifth Amendment. Pp. 480-492.
8
(i) In the MBE program's remedial context, there is no requirement that Congress act in a wholly "color-blind" fashion. Cf., e. g., Swann v. Charlotte-Mecklenberg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554; McDaniel v. Barresi, 402 U.S. 39, 91 S.Ct. 1287, 28 L.Ed.2d 582; North Carolina Board of Education v. Swann, 402 U.S. 43, 91 S.Ct. 1284, 28 L.Ed.2d 586. Pp. 482-484.
9
(ii) The MBE program is not constitutionally defective because it may disappoint the expectations of access to a portion of government contracting opportunities of nonminority firms who may themselves be innocent of any prior discriminatory actions. When effectuating a limited and properly tailored remedy to cure the effects of prior discrimination, such "a sharing of the burden" by innocent parties is not impermissible. Franks v. Bowman Transportation Co., 424 U.S. 747, 777, 96 S.Ct. 1251, 1270, 47 L.Ed.2d 444. Pp. 484-485.
10
(iii) Nor is the MBE program invalid as being underinclusive in that it limits its benefit to specified minority groups rather than extending its remedial objectives to all businesses whose access to government contracting is impaired by the effects of disadvantage or discrimination. Congress has not sought to give select minority groups a preferred standing in the construction industry, but has embarked on a remedial program to place them on a more equitable footing with respect to public contracting opportunities, and there has been no showing that Congress inadvertently effected an invidious discrimination by excluding from coverage an identifiable minority group that has been the victim of a degree of disadvantage and discrimination equal to or greater than that suffered by the groups encompassed by the MBE program. Pp. 485-486.
11
(iv) The contention that the MBE program, on its face, is overinclusive in that it bestows a benefit on businesses identified by racial or ethnic criteria which cannot be justified on the basis of competitive criteria or as a remedy for the present effects of identified prior discrimination, is also without merit. The MBE provision, with due account for its administrative program, provides a reasonable assurance that application of racial or ethnic criteria will be narrowly limited to accomplishing Congress' remedial objectives and that misapplications of the program will be promptly and adequately remedied administratively. In particular, the administrative program provides waiver and exemption procedures to identify and eliminate from participation MBE's who are not "bona fide," or who attempt to exploit the remedial aspects of the program by charging an unreasonable price not attributable to the present effects of past discrimination. Moreover, grantees may obtain a waiver if they demonstrate that their best efforts will not achieve or have not achieved the 10% target for minority firm participation within the limitations of the program's remedial objectives. The MBE provision may be viewed as a pilot project, appropriately limited in extent and duration and subject to reassessment and re-evaluation by the Congress prior to any extension or re-enactment. Pp. 486-489.
12
(d) In the continuing effort to achieve the goal of equality of economic opportunity, Congress has latitude to try new techniques such as the limited use of racial and ethnic criteria to accomplish remedial objectives, especially in programs where voluntary cooperation is induced by placing conditions on federal expenditures. When a program narrowly tailored by Congress to achieve its objectives comes under judicial review, it should be upheld if the courts are satisfied that the legislative objectives and projected administration of the program give reasonable assurance that the program will function within constitutional limitations. Pp. 490-492.
13
Mr. Justice MARSHALL, joined by Mr. Justice BRENNAN and Mr. Justice BLACKMUN, concurring in the judgment, concluded that the proper inquiry for determining the constitutionality of racial classifications that provide benefits to minorities for the purpose of remedying the present effects of past racial discrimination is whether the classifications serve important governmental objectives and are substantially related to achievement of those objectives, University of California Regents v. Bakke, 438 U.S. 265, 359, 98 S.Ct. 2733, 2783, 57 L.Ed.2d 750 (opinion of BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ., concurring in judgment in part and dissenting in part), and that, judged under this standard, the 10% minority set-aside provision of the 1977 Act is plainly constitutional, the racial classifications being substantially related to the achievement of the important and congressionally articulated goal of remedying the present effects of past racial discrimination. Pp. 517-521.
14
Robert G. Benisch, New York City, for petitioners Fullilove et al.
15
Robert J. Hickey, Washington, D. C., for petitioner General Building Contractors of New York State, Inc.
16
Drew S. Days III, Washington, D. C., for respondents.
17
[Amicus Curiae Information from pages 452-453 intentionally omitted]
18
Mr. CHIEF JUSTICE BURGER announced the judgment of the Court and delivered an opinion, in which Mr. Justice WHITE and Mr. Justice POWELL joined.
19
We granted certiorari to consider a facial constitutional challenge to a requirement in a congressional spending program that, absent an administrative waiver, 10% of the federal funds granted for local public works projects must be used by the state or local grantee to procure services or supplies from businesses owned and controlled by members of statutorily identified minority groups. 441 U.S. 960, 99 S.Ct. 2403, 60 L.Ed.2d 1064 (1979).
20
* In May 1977, Congress enacted the Public Works Employment Act of 1977, Pub.L. 95-28, 91 Stat. 116, which amended the Local Public Works Capital Development and Investment Act of 1976, Pub.L. 94-369, 90 Stat. 999, 42 U.S.C. § 6701 et seq. The 1977 amendments authorized an additional $4 billion appropriation for federal grants to be made by the Secretary of Commerce, acting through the Economic Development Administration (EDA), to state and local governmental entities for use in local public works projects. Among the changes made was the addition of the provision that has become the focus of this litigation. Section 103(f)(2) of the 1977 Act, referred to as the "minority business enterprise" or "MBE" provision, requires that:1
21
"Except to the extent that the Secretary determines otherwise, no grant shall be made under this Act for any local public works project unless the applicant gives satisfactory assurance to the Secretary that at least 10 per centum of the amount of each grant shall be expended for minority business enterprises. For purposes of this paragraph, the term 'minority business enterprise' means a business at least 50 per centum of which is owned by minority group members or, in case of a publicly owned business, at least 51 per centum of the stock of which is owned by minority group members. For the purposes of the preceding sentence minority group members are citizens of the United States who are Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts."
22
In late May 1977, the Secretary promulgated regulations governing administration of the grant program which were amended two months later.2 In August 1977, the EDA issued guidelines supplementing the statute and regulations with respect to minority business participation in local public works grants,3 and in October 1977, the EDA issued a technical bulletin promulgating detailed instructions and information to assist grantees and their contractors in meeting the 10% MBE requirement.4
23
On November 30, 1977, petitioners filed a complaint in the United States District Court for the Southern District of New York seeking declaratory and injunctive relief to enjoin enforcement of the MBE provision. Named as defendants were the Secretary of Commerce, as the program administrator, and the State and City of New York, as actual and potential project grantees. Petitioners are several associations of construction contractors and subcontractors, and a firm engaged in heating, ventilation, and air conditioning work. Their complaint alleged that they had sustained economic injury due to enforcement of the 10% MBE requirement and that the MBE provision on its face violated the Equal Protection Clause of the Fourteenth Amendment, the equal protection component of the Due Process Clause of the Fifth Amendment, and various statutory antidiscrimination provisions.5
24
After a hearing held the day the complaint was filed, the District Court denied a requested temporary restraining order and scheduled the matter for an expedited hearing on the merits. On December 19, 1977, the District Court issued a memorandum opinion upholding the validity of the MBE program and denying the injunctive relief sought. Fullilove v. Kreps, 443 F.Supp. 253 (1977).
25
The United States Court of Appeals for the Second Circuit affirmed, 584 F.2d 600 (1978), holding that "even under the most exacting standard of review the MBE provision passes constitutional muster." Id., at 603. Considered in the context of many years of governmental efforts to remedy past racial and ethnic discrimination, the court found it"difficult to imagine" any purpose for the program other than to remedy such discrimination. Id., at 605. In its view, a number of factors contributed to the legitimacy of the MBE provision, most significant of which was the narrowed focus and limited extent of the statutory and administrative program, in size, impact, and duration, id., at 607-608; the court looked also to the holdings of other Courts of Appeals and District Courts that the MBE program was constitutional, id., at 608-609.6 It expressly rejected petitioners' contention that the 10% MBE requirement violated the equal protection guarantees of the Constitution.7 Id., at 609.
II
A.
26
The MBE provision was enacted as part of the Public Works Employment Act of 1977, which made various amendments to Title I of the Local Public Works Capital Development and Investment Act of 1976. The 1976 Act was intended hort-term measure to alleviate the problem of national unemployment and to stimulate the national economy by assisting state and local governments to build needed public facilities.8 To accomplish these objectives, the Congress authorized the Secretary of Commerce, acting through the EDA, to make grants to state and local governments for construction, renovation, repair, or other improvement of local public works projects.9 The 1976 Act placed a number of restrictions on project eligibility designed to assure that federal moneys were targeted to accomplish the legislative purposes.10 It established criteria to determine grant priorities and to apportion federal funds among political jurisdictions.11 Those criteria directed grant funds toward areas of high unemployment.12 The statute authorized the appropriation of up to $2 billion for a period ending in September 1977;13 this appropriation was soon consumed by grants made under the program.
27
Early in 1977, Congress began consideration of expanded appropriations and amendments to the grant program. Under administration of the 1976 appropriation, referred to as "Round I" of the local public works program, applicants seeking some $25 billion in grants had competed for the $2 billion in available funds; of nearly 25,000 applications, only some 2,000 were granted.14 The results provoked widespread concern for the fairness of the allocation process.15 Because the 1977 Act would authorize the appropriation of an additional $4 billion to fund "Round II" of the grant program,16 the congressional hearings and debates concerning the amendments focused primarily on the politically sensitive problems of priority and geographic distribution of grants under the supplemental appropriation.17 The result of this attention was inclusion in the 1977 Act of provisions revising the allocation criteria of the 1976 legislation. Those provisions, however, retained the underlying objective to direct funds into areas of high unemployment.18 The 1977 Act also added new restrictions on applicants seeking to qualify for federal grants;19 among these was the MBE provision.
28
The origin of the provision was an amendment to the House version of the 1977 Act, H.R. 11, offered on the floor of the House on February 23, 1977, by Representative Mitchell of Maryland.20 As offered, the amendment provided:21
29
"Notwithstanding any other provision of law, no grant shall be made under this Act for any local public works project unless at least 10 per centum of the articles, materials, and supplies which will be used in such project are procured from minority business enterprises. For purposes of this paragraph, the term 'minority business enterprise' means a business at least 50 percent of which is owned by minority group members or, in case of publicly owned businesses, at least 51 percent of the stock of which is owned by minority group members. For the purposes of the preceding sentence, minority group members are citizens of the United States who are Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts."
30
The sponsor stated that the objective of the amendment was to direct funds into the minority business community, a sector of the economy sorely in need of economic stimulus but which, on the basis of past experience with Government procurement programs, could not be expected to benefit significantly from the public works program as then formulated.22 He cited the marked statistical disparity that in fiscal year 1976 less than 1% of all federal procurement was concluded with minority business enterprises, although minorities comprised 15-18% of the population.23 When the amendment was put forward during debate on H.R. 11,24 Representative Mitchell reiterated the need to ensure that minority firms would obtain a fair opportunity to share in the benefits of this Government program.25
31
The amendment was put forward not as a new concept, but rather one building upon prior administrative practice. In his introductory remarks, the sponsor rested his proposal squarely on the ongoing program under § 8(a) of the Small Business Act, Pub.L. 85-536, § 2, 72 Stat. 389, which, as will become evident, served as a model for the administrative program developed to enforce the MBE provision:26
32
"The first point in opposition will be that you cannot have a set-aside. Well, Madam Chairman, we have been doing this for the last 10 years in Government. The 8-A set-aside under SBA has been tested in the courts more than 30 times and has been found to be legitimate and bona fide. We are doing it in this bill."
33
Although the proposed MBE provision on its face appeared mandatory, requiring compliance with the 10% minority participation requirement "[n]otwithstanding any other provision of law," its sponsor gave assurances that existing administrative practice would ensure flexibility in administration if, with respect to a particular project, compliance with the 10% requirement proved infeasible.27
34
Representative Roe of New Jersey then suggested a change of language expressing the twin intentions (1) that the federal administrator would have discretion to waive the 10% requirement where its application was not feasible, and (2) that the grantee would be mandated to achieve at least 10% participation by minority businesses unless infeasibility was demonstrated.28 He proposed as a substitute for the first sentence of the amendment the language that eventually was enacted:29
35
"Except to the extent that the Secretary determines otherwise, no grant shall be made under this Act for any local public works project unless the applicant gives satisfactory assurance to the Secretary that at least 10 percent of the amount of each grant shall be expended for minority business enterprises."
36
The sponsor fully accepted the suggested clarification because it retained the directive that the initial burden of compliance would fall on the grantee. That allocation of burden was necessary because, as he put it, "every agency of the Government has tried to figure out a way to avoid doing this very thing. Believe me, these bureaucracies can come up with 10,000 ways to avoid doing it."30
37
Other supporters of the MBE amendment echoed the sponsor's concern that a number of factors, difficult to isolate or quantify, seemed to impair access by minority businesses to public contracting opportunities. Representative Conyers of Michigan spoke of the frustration of the existing situation, in which, due to the intricacies of the bidding process and through no fault of their own, minority contractors and businessmen were unable to gain access to government contracting opportunities.31
38
Representative Biaggi of New York then spoke to the need for the amendment to "promote a sense of economic equality in this Nation." He expressed the view that without the amendment, "this legislation may be potentially inequitable to minority businesses and workers" in that it would perpetuate the historic practices that have precluded minority businesses from effective participation in public contracting opportunities.32 The amendment was accepted by the House.33
39
Two weeks later, the senate considered S. 427, its package of amendments to the Local Public Works Capital Development and Investment Act of 1976. At that time Senator Brooke of Massachusetts introduced an MBE amendment, worded somewhat differently than the House version, but aimed at achieving the same objectives.34 His statement in support of the 10% requirement reiterated and summarized the various expressions on the House side that the amendment was necessary to ensure that minority businesses were not deprived of access to the government contracting opportunities generated by the public works program.35
40
The Senate adopted the amendment without debate.36 The Conference Committee, called to resolve differences between the House and Senate versions of the Public Works Employment Act of 1977, adopted the language approved by the House for the MBE provision.37 The Conference Reports added only the comment: "This provision shall be dependent on the availability of minority business enterprises located in the project area."38
41
The device of a 10% MBE participation requirement, subject to administrative waiver, was thought to be required to assure minority business participation; otherwise it was thought that repetition of the prior experience could be ex pected, with participation by minority business accounting for an inordinately small percentage of government contracting. The causes of this disparity were perceived as involving the longstanding existence and maintenance of barriers impairing access by minority enterprises to public contracting opportunities, or sometimes as involving more direct discrimination, but not as relating to lack—as Senator Brooke put it—"of capable and qualified minority enterprises who are ready and willing to work."39 In the words of its sponsor, the MBE provision was "designed to begin to redress this grievance that has been extant for so long."40
B
42
The legislative objectives of the MBE provision must be considered against the background of ongoing efforts directed toward deliverance of the century-old promise of equality of economic opportunity. The sponsors of the MBE provision in the House and the Senate expressly linked the provision to the existing administrative programs promoting minority opportunity in government procurement, particularly those related to § 8(a) of the Small Business Act of 1953.41 Section 8(a) delegates to the Small Business Administration (SBA) an authority and an obligation "whenever it determines such action is necessary" to enter into contracts with any procurement agency of the Federal Government to furnish required goods or services, and, in turn, to enter into subcontracts with small businesses for the performance of such contracts. This authority lay dormant for a decade. Commencing in 1968, however, the SBA was directed by the President42 to develop a program pursuant to its § 8(a) authority to assist small business concerns owned and controlled by "socially or economically disadvantaged" persons to achieve a competitive position in the economy.
43
At the time the MBE provision was enacted, the regulations governing the § 8(a) program defined "social or economic disadvantage" as follows:43
44
"An applicant concern must be owned and controlled by one or more persons who have been deprived of the opportunity to develop and maintain a competitive position in the economy because of social or economic disadvantage. Such disadvantage may arise from cultural, social, chronic economic circumstances or background, or other similar cause. Such persons include, but are not limited to, black Americans, American Indians, Spanish-Americans, oriental Americans, Eskimos, and Aleuts. . . ."
45
The guidelines accompanying these regulations provided that a minority business could not be maintained in the program, even when owned and controlled by members of the identified minority groups, if it appeared that the business had not been deprived of the opportunity to develop and maintain a competitive position in the economy because of social or economic disadvantage.44
46
As the Congress began consideration of the Public Works Employment Act of 1977, the House Committee on Small Business issued a lengthy Report summarizing its activities, including its evaluation of the ongoing § 8(a) program.45 One chapter of the Report, entitled "Minority Enterprises and Allied Problems of Small Business," summarized a 1975 Committee Report of the same title dealing with this subject matter.46 The original Report, prepared by the House Subcommittee on SBA Oversight and Minority Enterprise, observed:47
47
"The subcommittee is acutely aware that the economic policies of this Nation must function within and be guided by our constitutional system which guarantees 'equal protection of the laws.' The effects of past inequities stemming from racial prejudice have not remained in the past. The Congress has recognized the reality that past discriminatory practices have, to some degree, adversely affected our present economic system.
48
"While minority persons comprise about 16 percent of the Nation's population, of the 13 million businesses in the United States, only 382,000, or approximately 3.0 percent, are owned by minority individuals. The most recent data from the Department of Commerce also indicates that the gross receipts of all businesses in this country totals about $2,540.8 billion, and of this amount only $16.6 billion, or about 0.65 percent was realized by minority business concerns.
49
"These statistics are not the result of random chance. The presumption must be made that past discriminatory systems have resulted in present economic inequities. In order to right this situation the Congress has formulated certain remedial programs designed to uplift those socially or economically disadvantaged persons to a level where they may effectively participate in the business mainstream of our economy.*
50
"* For the purposes of this report the term 'minority' shall include only such minority individuals as are considered to be economically or socially disadvantaged."48
51
The 1975 Report gave particular attention to the § 8(a) program, expressing disappointment with its limited effectiveness.49 With specific reference to Government construction contracting, the Report concluded, "there are substantial § 8(a) opportunities in the area of Federal construction, but . . . the practices of some agencies preclude the realization of this potential."50 The Subcommittee took "full notice . . . as evidence for its consideration" of reports submitted to the Congress by the General Accounting Office and by the U. S. Commission on Civil Rights, which reflected a similar dissatisfaction with the effectiveness of the § 8(a) program.51 The Civil Rights Commission report discussed at some length the barriers encountered by minority businesses in gaining access to government contracting opportunities at the federal, state, and local levels.52 Among the major difficulties confronting minority businesses were deficiencies in working capital, inability to meet bonding requirements, disabilities caused by an inadequate "track record," lack of awareness of bidding opportunities, unfamiliarity with bidding procedures, preselection before the formal advertising process, and the exercise of discretion by government procurement officers to disfavor minority businesses.53
52
The Subcommittee Report also gave consideration to the operations of the Office of Minority Business Enterprise, an agency of the Department of Commerce organized pursuant to Executive Orders54 to formulate and coordinate federal efforts to assist the development of minority businesses. The Report concluded that OMBE efforts were "totally inadequate" to achieve its policy of increasing opportunities for subcontracting by minority businesses on public contracts. OMBE efforts were hampered by a "glaring lack of specific objectives which each prime contractor should be required to achieve," by a "lack of enforcement provisions," and by a "lack of any meaningful monitoring system."55
53
Against this backdrop of legislative and administrative programs, it is inconceivable that Members of both Houses were not fully aware of the objectives of the MBE provision and of the reasons prompting its enactment.
C
54
Although the statutory MBE provision itself outlines only the bare bones of the federal program, it makes a number of critical determinations: the decision to initiate a limited racial and ethnic preference; the specification of a minimum level for minority business participation; the identification of the minority groups that are to be encompassed by the program; and the provision for an administrative waiver where application of the program is not feasible. Congress relied on the administrative agency to flesh out this skeleton, pursuant to delegated rulemaking authority, and to develop an administrative operation consistent with legislative intentions and objectives.
55
As required by the Public Works Employment Act of 1977, the Secretary of Commerce promulgated regulations to set into motion "Round II" of the federal grant program.56 The regulations require that construction projects funded under the legislation must be performed under contracts awarded by competitive bidding, unless the federal administrator has made a determination that in the circumstances relating to a particular project some other method is in the public interest. Where competitive bidding is employed, the regulations echo the statute's requirement that contracts are to be awarded on the basis of the "lowest responsive bid submitted by a bidder meeting established criteria of responsibility," and they also restate the MBE requirement.57
56
EDA also has published guidelines devoted entirely to the administration of the MBE provision. The guidelines outline the obligations of the grantee to seek out all available, qualified, bona fide MBE's to provide technical assistance as needed, to lower or waive bonding requirements where feasible, to solicit the aid of the Office of Minority Business Enterprise, the SBA, or other sources for assisting MBE's in obtaining required working capital, and to give guidance through the intricacies of the bidding process.58
57
EDA regulations contemplate that, as anticipated by Congress, most local public works projects will entail the award of a predominant prime contract, with the prime contractor assuming the above grantee obligations for fulfilling the 10% MBE requirement.59 The EDA guidelines specify that when prime contractors are selected through competitive bidding, bids for the prime contract "shall be considered by the Grantee to be responsive only if at least 10 percent of the contract funds are to be expended for MBE's."60 The administrative program envisions that competitive incentive will motivate aspirant prime contractors to perform their obligations under the MBE provision so as to qualify as "responsive" bidders. And, since the contract is to be awarded to the lowest responsive bidder, the same incentive is expected to motivate prime contractors to seek out the most competitive of the available, qualified, bona fide minority firms. This too is consistent with the legislative intention.61
58
The EDA guidelines also outline the projected administration of applications for waiver of the 10% MBE requirement, which may be sought by the grantee either before or during the bidding process.62 The Technical Bulletin issued by EDA discusses in greater detail the processing of waiver requests, clarifying certain issues left open by the guidelines. It specifies that waivers may be total or partial, depending on the circumstances,63 and it illustrates the projected operation of the waiver procedure by posing hypothetical questions with projected administrative responses. One such hypothetical is of particular interest, for it indicates the limitations on the scope of the racial or ethnic preference contemplated by the federal program when a grantee or its prime contractor is confronted with an available, qualified, bona fide minority business enterprise who is not the lowest competitive bidder. The hypothetical provides:64
59
"Question : Should a request for waiver of the 10% requirement based on an unreasonable price asked by an MBE ever be granted?
60
"Answer : It is possible to imagine situations where an MBE might ask a price for its product or services that is unreasonable and where, therefore, a waiver is justified. However, before a waiver request will be honored, the following determinations will be made:
61
"a) The MBE's quote is unreasonably priced. This determination should be based on the nature of the product or service of the subcontractor, the geographic location of the site and of the subcontractor, prices of similar products or services in the relevant market area, and general business conditions in the market area. Furthermore, a subcontractor's price should not be considered unreasonable if he is merely trying to cover his costs because the price results from disadvantage which affects the MBE's cost of doing business or results from discrimination.
62
"b) The contractor has contacted under the MBEs and has no meaningful choice but to accept an unreasonably high price."
63
This announced policy makes clear the administrative understanding that a waiver or partial waiver is justified (and will be granted) to avoid subcontracting with a minority business enterprise at an "unreasonable" price, i. e., a price above competitive levels which cannot be attributed to the minority firm's attempt to cover costs inflated by the present effects of disadvantage or discrimination.
64
This administrative approach is consistent with the legislative intention. It will be recalled that in the Report of the House Subcommittee on SBA Oversight and Minority Enterprise the Subcommittee took special care to note that when using the term "minority" it intended to include "only such minority individuals as are considered to be economically or socially disadvantaged."65 The Subcommittee also was cognizant of existing administrative regulations designed to ensure that firms maintained on the lists of bona fide minority business enterprises be those whose competitive position is impaired by the effects of disadvantage and discrimination. In its Report, the Subcommittee expressed its intention that these criteria continue to govern administration of the SBA's § 8(a) program.66 The sponsors of the MBE provision, in their reliance on prior administrative practice, intended that the term "minority business enterprise" would be given that same limited application; this even found expression in the legislative debates, where Representative Roe made the point:67
65
"[W]hen we are talking bout companies held by minority groups . . . [c]ertainly people of a variety of backgrounds are included in that. That is not really a measurement. They are talking about people in the minority and deprived."
66
The EDA Technical Bulletin provides other elaboration of the MBE provision. It clarifies the definition of "minority group members."68 It also indicates EDA's intention "to allow credit for utilization of MBEs only for those contracts in which involvement constitutes a basis for strengthening the long-term and continuing participation of the MBE in the construction and related industries."69 Finally, the Bulletin outlines a procedure for the processing of complaints of "unjust participation by an enterprise or individuals in the MBE program," or of improper administration of the MBE requirement.70
III
67
When we are required to pass on the constitutionality of an Act of Congress, we assume "the gravest and most delicate duty that this Court is called on to perform." Blodgett v. Holden, 275 U.S. 142, 148, 48 S.Ct. 105, 107, 72 L.Ed. 206 (1927) (opinion of Holmes, J.). A program that employs racial or ethnic criteria, even in a remedial context, calls for close examination; yet we are bound to approach our task with appropriate deference to the Congress, a co-equal branch charged by the Constitution with the power to "provide for the . . . general Welfare of the United States" and "to enforce, by appropriate legislation," the equal protection guarantees of the Fourteenth Amendment. Art. I, § 8, cl. 1; Amdt. 14, § 5. In Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 102, 93 S.Ct. 2080, 2086, 36 L.Ed.2d 772 (1973), we accorded "great weight to the decisions of Congress" even though the legislation implicated fundamental constitutional rights guaranteed by the First Amendment. The rule is not different when a congressional program raises equal protection concerns. See,e. g., Cleland v. National College of Business, 435 U.S. 213, 98 S.Ct. 1024, 55 L.Ed.2d 225 (1978); Mathews v. De Castro, 429 U.S. 181, 97 S.Ct. 431, 50 L.Ed.2d 389 (1976).
68
Here we pass, not on a choice made by a single judge or a school board, but on a considered decision of the Congress and the President. However, in no sense does that render it immune from judicial scrutiny, and it "is not to say we 'defer' to the judgment of the Congress . . . on a constitutional question," or that we would hesitate to invoke the Constitution should we determine that Congress has overstepped the bounds of its constitutional power. Columbia Broadcasting, supra, at 103, 93 S.Ct., at 2087.
69
The clear objective of the MBE provision is disclosed by our necessarily extended review of its legislative and administrative background. The program was designed to ensure that, to the extent federal funds were granted under the Public Works Employment Act of 1977, grantees who elect to participate would not employ procurement practices that Congress had decided might result in perpetuation of the effects of prior discrimination which had impaired or foreclosed access by minority businesses to public contracting opportunities. The MBE program does not mandate the allocation of federal funds according to inflexible percentages solely based on race or ethnicity.
70
Our analysis proceeds in two steps. At the outset, we must inquire whether the objectives of this legislation are within the power of Congress. If so, we must go on to decide whether the limited use of racial and ethnic criteria, in the context presented, is a constitutionally permissible means for achieving the congressional objectives and does not violate the equal protection component of the Due Process Clause of the Fifth Amendment.
A.
71
(1)
72
In enacting the MBE provision, it is clear that Congress employed an amalgam of its specifically delegated powers. The Public Works Employment Act of 1977, by its very nature, is primarily an exercise of the Spending Power. U.S. Const., Art. I, § 8, cl. 1. This Court has recognized that the power to "provide for the . . . general Welfare" is an independent grant of legislative authority, distinct from other broad congressional powers. Buckley v. Valeo, 424 U.S. 1, 90-91, 96 S.Ct. 612, 668-669, 46 L.Ed.2d 659 (1976); United States v. Butler, 297 U.S. 1, 65-66, 56 S.Ct. 312, 319, 80 L.Ed. 477 (1936). Congress has frequently employed the Spending Power to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives. This Court has repeatedly upheld against constitutional challenge the use of this technique to induce governments and private parties to cooperate voluntarily with federal policy. E. g., California Bankers Assn. v. Shultz, 416 U.S. 21, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974); Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974); Oklahoma v. CSC, 330 U.S. 127, 67 S.Ct. 544, 91 L.Ed. 794 (1947); Helvering v. Davis, 301 U.S. 619, 57 S.Ct. 904, 81 L.Ed. 1307 (1937); Steward Machine Co. v. Davis, 301 U.S. 548, 57 S.Ct. 883, 81 L.Ed. 1279 (1937).
73
The MBE program is structured within this familiar legislative pattern. The program conditions receipt of public works grants upon agreement by the state or local governmental grantee that at least 10% of the federal funds will be devoted to contracts with minority businesses, to the extent this can be accomplished by overcoming barriers to access and by awarding contracts to bona fide MBE's. It is further conditioned to require that MBE bids on these contracts are competitively priced, or might have been competitively priced but for the present effects of prior discrimination. Admittedly, the problems of administering this program with respect to these conditions may be formidable. Although the primary responsibility for ensuring minority participation falls upon the grantee, when the procurement practices of the grantee involve the award of a prime contract to a general or prime contractor, the obligations to assure minority participation devolve upon the private contracting party; this is a contractual condition of eligibility for award of the prime contract.
74
Here we need not explore the outermost limitations on the objectives attainable through such an application of the Spending Power. The reach of the Spending Power, within its sphere, is at least as broad as the regulatory powers of Congress. If, pursuant to its regulatory powers, Congress could have achieved the objectives of the MBE program, then it may do so under the Spending Power. And we have no difficulty perceiving a basis for accomplishing the objectives of the MBE program through the Commerce Power insofar as the program objectives pertain to the action of private contracting parties, and through the power to enforce the equal protection guarantees of the Fourteenth Amendment insofar as the program objectives pertain to the action of state and local grantees.
75
(2)
76
We turn first to the Commerce Power. U.S.Const., Art. I, § 8, cl. 3. Had Congress chosen to do so, it could have drawn on the Commerce Clause to regulate the practices of prime contractors on federally funded public works projects. Katzenbach v. McClung, 379 U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964). The legislative history of the MBE provision shows that there was a rational basis for Congress to conclude that the subcontracting practices of prime contractors could perpetuate the prevailing impaired access by minority businesses to public contracting opportunities, and that this inequity has an effect on interstate commerce. Thus Congress could take necessary and proper action to remedy the situation. Ibid.
77
It is not necessary that these prime contractors be shown responsible for any violation of antidiscrimination laws. Our cases dealing with application of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, express no doubt of the congressional authority to prohibit practices "challenged as perpetuating the effects of [not unlawful] discrimination occurring prior to the effective date of the Act." Franks v. Bowman Transportation Co., 424 U.S. 747, 761, 96 S.Ct. 1251, 1263, 47 L.Ed.2d 444 (1976); see California Brewers Assn. v. Bryant, 444 U.S. 598, 100 S.Ct. 814, 63 L.Ed.2d 55 (1980); Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975); Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). Insofar as the MBE program pertains to the actions of private prime contractors, the Congress could have achieved its objectives under the Commerce Clause. We conclude that in this respect the objectives of the MBE provision are within the scope of the Spending Power.
78
(3)
79
In certain contexts, there are limitations on the reach of the Commerce Power to regulate the actions of state and local governments. National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976). To avoid such complications, we look to § 5 of the Fourteenth Amendment for the power to regulate the procurement practices of state and local grantees of federal funds. Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). A review of our cases persuades us that the objectives of the MBE program are within the power of Congress under § 5 "to enforce, by appropriate legislation," the equal protection guarantees of the Fourteenth Amendment.
80
In Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966), we equated the scope of this authority with the broad powers expressed in the Necessary and Proper Clause, U.S.Const., Art. I, § 8, cl. 18. "Correctly 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 S.Ct., at 1723-24. In Katzenbach, the Court upheld § 4(e) of the Voting Rights Act of 1965, 79 Stat. 439, 42 U.S.C. § 1973b(e), which prohibited application of state English-language literacy requirements to otherwise qualified voters who had completed the sixth grade in an accredited American school in which a language other than English was the predominant medium of instruction. To uphold this exercise of congressional authority, the Court found no prerequisite that application of a literacy requirement violate the Equal Protection Clause. 384 U.S., at 648-649, 86 S.Ct., at 1722. It was enough that the Court could perceive a basis upon which Congress could reasonably predicate a judgment that application of literacy qualifications within the compass of § 4(e) would discriminate in terms of access to the ballot and consequently in terms of access to the provision or administration of governmental programs. Id., at 652-653, 86 S.Ct., at 1724.
81
Four years later, in Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970), we upheld § 201 of the Voting Rights Act Amendments of 1970, 84 Stat. 315, which imposed a 5-year nationwide prohibition on the use of various voter-qualification tests and devices in federal, state, and local elections. The Court was unanimous, albeit in separate opinions, in concluding that Congress was within its authority to prohibit the use of such voter qualifications; Congress could reasonably determine that its legislation was an appropriate method of attacking the perpetuation of prior purposeful discrimination, even though the use of these tests or devices might have discriminatory effects only. See City of Rome v. United States, 446 U.S. 156, 176-177, 100 S.Ct. 1548, 1561-1562, 64 L.Ed.2d 119 (1980). Our cases reviewing the parallel power of Congress to enforce the provisions of the Fifteenth Amendment, U.S.Const., Amdt. 15, § 2, confirm that congressional authority extends beyond the prohibition of purposeful discrimination to encompass state action that has discriminatory impact perpetuating the effects of past discrimination. South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966); cf. City of Rome, supra.
82
With respect to the MBE provision, Congress had abundant evidence from which it could conclude that minority businesses have been denied effective participation in public contracting opportunities by procurement practices that perpetuated the effects of prior discrimination. Congress, of course, may legislate without compiling the kind of "record" appropriate with respect to judicial or administrative proceedings. Congress had before it, among other data, evidence of a long history of marked disparity in the percentage of public contracts awarded to minority business enterprises. This disparity was considered to result not from any lack of capable and qualified minority businesses, but from the existence and maintenance of barriers to competitive access which had their roots in racial and ethnic discrimination, and which continue today, even absent any intentional discrimination or other unlawful conduct. Although much of this history related to the experience of minority businesses in the area of federal procurement, there was direct evidence before the Congress that this pattern of disadvantage and discrimination existed with respect to state and local construction contracting as well. In relation to the MBE provision, Congress acted within its competence to determine that the problem was national in scope.
83
Although the Act recites no preambulary "findings" on the subject, we are satisfied that Congress had abundant historical basis from which it could conclude that traditional procurement practices, when applied to minority businesses, could perpetuate the effects of prior discrimination. Accordingly, Congress reasonably determined that the prospective elimination of these barriers to minority firm access to public contracting opportunities generated by the 1977 Act was appropriate to ensure that those businesses were not denied equal opportunity to participate in federal grants to state and local governments, which is one aspect of the equal protection of the laws. Insofar as the MBE program pertains to the actions of state and local grantees, Congress could have achieved its objectives by use of its power under § 5 of the Fourteenth Amendment. We conclude that in this respect the objectives of the MBE provision are within the scope of the Spending Power.
(4)
84
There are relevant similarities between the MBE program and the federal spending program reviewed in Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974). In Lau, a language barrier "effectively foreclosed" non-English-speaking Chinese pupils from access to the educational opportunities offered by the San Francisco public school system. Id., at 564-566, 94 S.Ct., at 787-788. It had not been shown that this had resulted from any discrimination, purposeful or otherwise, or from other unlawful acts. Nevertheless, we upheld the constitutionality of a federal regulation applicable to public school systems receiving federal funds that prohibited the utilization of "criteria or methods of administration which have the effect . . . of defeating or substantially impairing accomplishment of the objectives of the [educational] program as respect individuals of a particular race, color, or national origin." Id., at 568, 94 S.Ct., at 789 (emphasis added). Moreover, we upheld application to the San Francisco school system, as a recipient of federal funds, of a requirement that "[w]here inability to speak and understand the English language excludes national origin-minority group children from effective participation in the educational program offered by a school district, the district must take affirmative steps to rectify the language deficiency in order to open its instructional program to these students." Ibid.
85
It is true that the MBE provision differs from the program approved in Lau in that the MBE program directly employs racial and ethnic criteria as a means to accomplish congressional objectives; however, these objectives are essentially the same as those approved in Lau. Our holding in Lau is instructive on the exercise of congressional authority by way of the MBE provision. The MBE program, like the federal regulations reviewed in Lau, primarily regulates state action in the use of federal funds voluntarily sought and accepted by the grantees subject to statutory and administrative conditions. The MBE participation requirement is directed at the utilization of criteria, methods, or practices thought by Congress to have the effect of defeating, or substantially impairing, access by the minority business community to public funds made available by congressional appropriations.
B
86
We now turn to the question whether, as a means to accomplish these plainly constitutional objectives, Congress may use racial and ethnic criteria, in this limited way, as a condition attached to a federal grant. We are mindful that "[i]n no matter should we pay more deference to the opinion of Congress than in its choice of instrumentalities to perform a function that is within its power," National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582, 603, 69 S.Ct. 1173, 1183, 93 L.Ed. 1556 (1949) (opinion of Jackson, J.). However, Congress may employ racial or ethnic classifications in exercising its Spending or other legislative powers only if those classifications do not violate the equal protection component of the Due Process Clause of the Fifth Amendment. We recognize the need for careful judicial evaluation to assure that any congressional program that employs racial or ethnic criteria to accomplish the objective of remedying the present effects of past discrimination is narrowly tailored to the achievement of that goal.
87
Again, we stress the limited scope of our inquiry. Here we are not dealing with a remedial decree of a court but with the legislative authority of Congress. Furthermore, petitioners have challenged the constitutionality of the MBE provision on its face; they have not sought damages or other specific relief for injury allegedly flowing from specific applications of the program; nor have they attempted to show that as applied in identified situations the MBE provision violated the constitutional or statutory rights of any party to this case.71 In these circumstances, given a reasonable construction and in light of its projected administration, if we find the MBE program on its face to be free of constitutional defects, it must be upheld as within congressional power. Parker v. Levy, 417 U.S. 733, 760, 94 S.Ct. 2547, 2563, 41 L.Ed.2d 439 (1974); Fortson v. Dorsey, 379 U.S. 433, 438-439, 85 S.Ct. 498, 501, 13 L.Ed.2d 401 (1965); Aptheker v. Secretary of State, 378 U.S. 500, 515, 84 S.Ct. 1659, 1668, 12 L.Ed.2d 992 (1964); see United States v. Raines, 362 U.S. 17, 20-24, 80 S.Ct. 519, 522-524, 4 L.Ed.2d 524 (1960).
88
Our review of the regulations and guidelines governing administration of the MBE provision reveals that Congress enacted the program as a strictly remedial measure; moreover, it is a remedy that functions prospectively, in the manner of an injunctive decree. Pursuant to the administrative program, grantees and their prime contractors are required to seek out all available, qualified, bona fide MBE's; they are required to provide technical assistance as needed, to lower or waive bonding requirements where feasible, to solicit the aid of the Office of Minority Business Enterprise, the SBA, or other sources for assisting MBE's to obtain required working capital, and to give guidance through the intricacies of the bidding process. Supra, at 468-469. The program assumes that grantees who undertake these efforts in good faith will obtain at least 10% participation by minority business enterprises. It is recognized that, to achieve this target, contracts will be awarded to available, qualified, bona fide MBE's even though they are not the lowest competitive bidders, so long as their higher bids, when challenged, are found to reflect merely attempts to cover costs inflated by the present effects of prior disadvantage and discrimination. Supra, at 470-471. There is available to the grantee a provision authorized by Congress for administrative waiver on a case-by-case basis should there be a demonstration that, despite affirmative efforts, this level of participation cannot be achieved without departing from the objectives of the program. Supra, at 469-470. There is also an administrative mechanism, including a complaint procedure, to ensure that only bona fide MBE's are encompassed by the remedial program, and to prevent unjust participation in the program by those minority firms whose access to public contracting opportunities is not impaired by the effects of prior discrimination. Supra, at 471-472.
89
(1)
90
As a threshold matter, we reject the contention that in the remedial context the Congress must act in a wholly "color-blind" fashion. In Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 18-21, 91 S.Ct. 1267, 1277-1278, 28 L.Ed.2d 554 (1971), we rejected this argument in considering a court-formulated school desegregation remedy on the basis that examination of the racial composition of student bodies was an unavoidable starting point and that racially based attendance assignments were permissible so long as no absolute racial balance of each school was required. In McDaniel v. Barresi, 402 U.S. 39, 41, 91 S.Ct. 1287, 1289, 28 L.Ed.2d 582 (1971), citing Swann, we observed: "In this remedial process, steps will almost invariably require that students be assigned 'differently because of their race.' Any other approach would freeze the status quo that is the very target of all desegregation processes." (Citations omitted.) And in North Carolina Board of Education v. Swann, 402 U.S. 43, 91 S.Ct. 1284, 28 L.Ed.2d 586 (1971), we invalidated a state law that absolutely forbade assignment of any student on account of race because it foreclosed implementation of desegregation plans that were designed to remedy constitutional violations. We held that "[j]ust as the race of students must be considered in determining whether a constitutional violation has occurred, so also must race be considered in formulating a remedy." Id., at 46, 91 S.Ct., at 1286.
91
In these school desegregation cases we dealt with the authority of a federal court to formulate a remedy for unconstitutional racial discrimination. However, the authority of a court to incorporate racial criteria into a remedial decree also extends to statutory violations. Where federal antidiscrimination laws have been violated, an equitable remedy may in the appropriate case include a racial or ethnic factor. Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976); see Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). In another setting, we have held that a state may employ racial criteria that are reasonably necessary to assure compliance with federal voting rights legislation, even though the state action does not entail the remedy of a constitutional violation. United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U.S. 144, 147-165, 97 S.Ct. 996, 1000-1009, 51 L.Ed.2d 229 (1977) (opinion of WHITE, J., joined by BRENNAN, BLACKMUN, and STEVENS, JJ.); id., at 180-187, 97 S.Ct., at 1017-1020 (BURGER, C. J., dissenting on other grounds).
92
When we have discussed the remedial powers of a federal court, we have been alert to the limitation that "[t]he power of the federal courts to restructure the operation of local and state governmental entities 'is not plenary. . . .' [A] federal court is required to tailor 'the scope of the remedy' to fit the nature and extent of the . . . violation." Dayton Board of Education v. Brinkman, 433 U.S. 406, 419-420, 97 S.Ct. 2766, 2775, 53 L.Ed.2d 851 (1977) (quoting Milliken v. Bradley, 418 U.S. 717, 738, 94 S.Ct. 3112, 3124, 41 L.Ed.2d 1069 (1974), and Swann v. Charlotte-Mecklenburg Board of Education, supra, at 16, 91 S.Ct., at 1276).
93
Here we deal, as we noted earlier, not with the limited remedial powers of a federal court, for example, but with the broad remedial powers of Congress. It is fundamental that in no organ of government, state or federal, does there repose a more comprehensive remedial power than in the Congress, expressly charged by the Constitution with competence and authority to enforce equal protection guarantees. Congress not only may induce voluntary action to assure compliance with existing federal statutory or constitutional antidiscrimination provisions, but also, where Congress has authority to declare certain conduct unlawful, it may, as here, authorize and induce state action to avoid such conduct. Supra, at 473-480.
94
(2)
95
A more specific challenge to the MBE program is the charge that it impermissibly deprives nonminority businesses of access to at least some portion of the government contracting opportunities generated by the Act. It must be conceded that by its objective of remedying the historical impairment of access, the MBE provision can have the effect of awarding some contracts to MBE's which otherwise might be awarded to other businesses, who may themselves be innocent of any prior discriminatory actions. Failure of nonminority firms to receive certain contracts is, of course, an incidental consequence of the program, not part of its objective; similarly, past impairment of minority-firm access to public contracting opportunities may have been an incidental consequence of "business as usual" by public contracting agencies and among prime contractors.
96
It is not a constitutional defect in this program that it may disappoint the expectations of nonminority firms. When effectuating a limited and properly tailored remedy to cure the effects of prior discrimination, such "a sharing of the burden" by innocent parties is not impermissible. Franks, supra, 424 U.S., at 777, 96 S.Ct., at 1270; see Albermarle Paper Co., supra; United Jewish Organizations, supra. The actual "burden" shouldered by nonminority firms is relatively light in this connection when we consider the scope of this public works program as compared with overall construction contracting opportunities.72 Moreover, although we may assume that the complaining parties are innocent of any discriminatory conduct, it was within congressional power to act on the assumption that in the past some nonminority businesses may have reaped competitive benefit over the years from the virtual exclusion of minority firms from these contracting opportunities.
97
(3)
98
Another challenge to the validity of the MBE program is the assertion that it is underinclusive—that it limits its benefit to specified minority groups rather than extending its remedial objectives to all businesses whose access to government contracting is impaired by the effects of disadvantage or discrimination. Such an extension would, of course, be appropriate for Congress to provide; it is not a function for the courts.
99
Even in this context, the well-established concept that a legislature may take one step at a time to remedy only part of a broader problem is not without relevance. See Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955). We are not reviewing a federal program that seeks to confer a preferred status upon a nondisadvantaged minority or to give special assistance to only one of several groups established to be similarly disadvantaged minorities. Even in such a setting, the Congress is not without a certain authority. See, e. g., Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979); Califano v. Webster, 430 U.S. 313, 97 S.Ct. 1192, 51 L.Ed.2d 360 (1977); Morton v. Mancari, 417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974).
100
The Congress has not sought to give select minority groups a preferred standing in the construction industry, but has embarked on a remedial program to place them on a more equitable footing with respect to public contracting opportunities. There has been no showing in this case that Congress has inadvertently effected an invidious discrimination by excluding from coverage an identifiable minority group that has been the victim of a degree of disadvantage and discrimination equal to or greater than that suffered by the groups encompassed by the MBE program. It is not inconceivable that on very special facts a case might be made to challenge the congressional decision to limit MBE eligibility to the particular minority groups identified in the Act. See Vance v. Bradley, 440 U.S. 93, 109-112, 99 S.Ct. 939, 949-950, 59 L.Ed.2d 171 (1979); Oregon v. Mitchell, 400 U.S., at 240, 91 S.Ct., at 322 (opinion of BRENNAN, WHITE, and MARSHALL, JJ.). But on this record we find no basis to hold that Congress is without authority to undertake the kind of limited remedial effort represented by the MBE program. Congress, not the courts, has the heavy burden of dealing with a host of intractable economic and social problems.
101
(4)
102
It is also contended that the MBE program is overinclusive that it bestows a benefit on businesses identified by racial or ethnic criteria which cannot be justified on the basis of competitive criteria or as a remedy for the present effects of identified prior discrimination. It is conceivable that a particular application of the program may have this effect; however, the peculiarities of specific applications are not before us in this case. We are not presented here with a challenge involving a specific award of a construction contract or the denial of a waiver request; such questions of specific application must await future cases.
103
This does not mean that the claim of overinclusiveness is entitled to no consideration in the present case. The history of governmental tolerance of practices using racial or ethnic criteria for the purpose or with the effect of imposing an invidious discrimination must alert us to the deleterious effects of even benign racial or ethnic classifications when they stray from narrow remedial justifications. Even in the context of a facial challenge such as is presented in this case, the MBE provision cannot pass muster unless, with due account for its administrative program, it provides a reasonable assurance that application of racial or ethnic criteria will be limited to accomplishing the remedial objectives of Congress and that misapplications of the program will be promptly and adequately remedied administratively.
104
It is significant that the administrative scheme provides for waiver and exemption. Two fundamental congressional assumptions underlie the MBE program: (1) that the present effects of past discrimination have impaired the competitive position of businesses owned and controlled by members of minority groups; and (2) that affirmative efforts to eliminate barriers to minority-firm access, and to evaluate bids with adjustment for the present effects of past discrimination, would assure that at least 10% of the federal funds granted under the Public Works Employment Act of 1977 would be accounted for by contracts with available, qualified, bona fide minority business enterprises. Each of these assumptions may be rebutted in the administrative process.
105
The administrative program contains measures to effectuate the congressional objective of assuring legitimate participation by disadvantaged MBE's. Administrative definition has tightened some less definite aspects of the statutory identification of the minority groups encompassed by the program.73 There is administrative scrutiny to identify and eliminate from participation in the program MBE's who are not "bona fide" within the regulations and guidelines; for example, spurious minority-front entities can be exposed. A significant aspect of this surveillance is the complaint procedure available for reporting "unjust participation by an enterprise or individuals in the MBE program." Supra, at 472. And even as to specific contract awards, waiver is available to avoid dealing with an MBE who is attempting to exploit the remedial aspects of the program by charging an unreasonable price, i. e., a price not attributable to the present effects of past discrimination. Supra, at 469-471. We must assume that Congress intended close scrutiny of false claims and prompt action on them.
106
Grantees are given the opportunity to demonstrate that their best efforts will not succeed or have not succeeded in achieving the statutory 10% target for minority firm participation within the limitations of the program's remedial objectives. In these circumstances a waiver or partial waiver is available once compliance has been demonstrated. A waiver may be sought and granted at any time during the contracting process, or even prior to letting contracts if the facts warrant.
107
Nor is the program defective because a waiver may be sought only by the grantee and not by prime contractors who may experience difficulty in fulfilling contract obligations to assure minority participation. It may be administratively cumbersome, but the wisdom of concentrating responsibility at the grantee level is not for us to evaluate; the purpose is to allow the EDA to maintain close supervision of the operation of the MBE provision. The administrative complaint mechanism allows for grievances of prime contractors who assert that a grantee has failed to seek a waiver in an appropriate case. Finally, we note that where private parties, as opposed to governmental entities, transgress the limitations inherent in the MBE program, the possibility of constitutional violation is more removed. See Steelworkers v. Weber, 443 U.S. 193, 200, 99 S.Ct. 2721, 2726, 61 L.Ed.2d 480 (1979).
108
That the use of racial and ethnic criteria is premised on assumptions rebuttable in the administrative process gives reasonable assurance that application of the MBE program will be limited to accomplishing the remedial objectives contemplated by Congress and that misapplications of the racial and ethnic criteria can be remedied. In dealing with this facial challenge to the statute, doubts must be resolved in support of the congressional judgment that this limited program is a necessary step to effectuate the constitutional mandate for equality of economic opportunity. The MBE provision may be viewed as a pilot project, appropriately limited in extent and duration, and subject to reassessment and reevaluation by the Congress prior to any extension or re-enactment.74 Miscarriages of administration could have only a transitory economic impact on businesses not encompassed by the program, and would not be irremediable.
IV
109
Congress, after due consideration, perceived a pressing need to move forward with new approaches in the continuing effort to achieve the goal of equality of economic opportunity. In this effort, Congress has necessary latitude to try new techniques such as the limited use of racial and ethnic criteria to accomplish remedial objectives; this is especially so in programs where voluntary cooperation with remedial measures is induced by placing conditions on federal expenditures. That the program may press the outer limits of congressional authority affords no basis for striking it down.
110
Petitioners have mounted a facial challenge to a program developed by the politically responsive branches of Government. For its part, the Congress must proceed only with programs narrowly tailored to achieve its objectives, subject to continuing evaluation and reassessment; administration of the programs must be vigilant and flexible; and, when such a program comes under judicial review, courts must be satisfied that the legislative objectives and projected administration give reasonable assurance that the program will function within constitutional limitations. But as Mr. Justice Jackson admonished in a different context in 1941:75
111
"The Supreme Court can maintain itself and succeed in its tasks only if the counsels of self-restraint urged most earnestly by members of the Court itself are humbly and faithfully heeded. After the forces of conservatism and liberalism, of radicalism and reaction, of emotion and of self-interest are all caught up in the legislative process and averaged and come to rest in some compromise measure such as the Missouri Compromise, the N.R.A., the A.A.A., a minimum-wage law, or some other legislative policy, a decision striking it down closes an area of compromise in which conflicts have actually, if only temporarily, been composed. Each such decision takes away from our democratic federalism another of its defenses against domestic disorder and violence. The vice of judicial supremacy, as exerted for ninety years in the field of policy, has been its progressive closing of the avenues to peaceful and democratic conciliation of our social and economic conflicts."
112
Mr. Justice Jackson reiterated these thoughts shortly before his death in what was to be the last of his Godkin Lectures:76
113
"I have said that in these matters the Court must respect the limitations on its own powers because judicial usurpation is to me no more justifiable and no more promising of permanent good to the country than any other kind. So I presuppose a Court that will not depart from the judicial process, will not go beyond resolving cases and controversies brought to it in conventional form, and will not consciously encroach upon the functions of its coordinate branches."
114
In a different context to be sure, that is, in discussing the latitude which should be allowed to states in trying to meet social and economic problems, Mr. Justice Brandeis had this to say:
115
"To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation." New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S.Ct. 371, 386, 76 L.Ed. 747 (1932) (dissenting opinion).
116
Any preference based on racial or ethnic criteria must necessarily receive a most searching examination to make sure that it does not conflict with constitutional guarantees. This case is one which requires, and which has received, that kind of examination. This opinion does not adopt, either expressly or implicitly, the formulas of analysis articulated in such cases as University of California Regents v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978). However, our analysis demonstrates that the MBE provision would survive judicial review under either "test" articulated in the several Bakke opinions. The MBE provision of the Public Works Employment Act of 1977 does not violate the Constitution.77
117
Affirmed.
APPENDIX TO OPINION OF BURGER, C. J.
118
¶ 1. The EDA Guidelines, at 2-7, provide in relevant part:
119
"The primary obligation for carrying out the 10% MBE participation requirement rests with EDA Grantees. . . . The Grantee and those of its contractors which will make subcontracts or purchase substantial supplies from other firms (hereinafter referred to as 'prime contractors') must seek out all available bona fide MBE's and make every effort to use as many of them as possible on the project.
120
"An MBE is bona fide if the minority group ownership interests are real and continuing and not created solely to meet 10% MBE requirements. For example, the minority group owners or stockholders should possess control over management, interest in capital and interest in earnings commensurate with the percentage of ownership on which the claim of minority ownership status is based. . . .
121
"An MBE is available if the project is located in the market area of the MBE and the MBE can perform project services or supply project materials at the time they are needed. The relevant market area depends on the kind of services or supplies which are needed. . . . EDA will require that Grantees and prime contractors engage MBE's from as wide a market area as is economically feasible.
122
"An MBE is qualified if it can perform the services or supply the materials that are needed. Grantees and prime contractors will be expected to use MBE's with less experience than available nonminority enterprises and should expect to provide technical assistance to MBE's as needed. Inability to obtain bonding will ordinarily not disqualify an MBE. Grantees and prime contractors are expected to help MBE's obtain bonding, to include MBE's in any overall bond or to waive bonding where feasible. The Small Business Administration (SBA) is prepared to provide a 90% guarantee for the bond of any MBE participating in an LPW [local public works] project. Lack of working capital will not ordinarily disqualify an MBE. SBA is prepared to provide working capital assistance to any MBE participating in an LPW project. Grantees and prime contractors are expected to assist MBE's in obtaining working capital through SBA or otherwise.
123
" . . . [E]very Grantee should make sure that it knows the names, addresses and qualifications of all relevant MBE's which would include the project location in their market areas. . . . Grantees should also hold prebid conferences to which they invite interested contractors and representatives of . . . MBE support organizations.
124
"Arrangements have been made through the Office of Minority Business Enterprise . . . to provide assistance to Grantees and prime contractors in fulfilling the 10% MBE requirement. . . .
125
"Grantees and prime contractors should also be aware of other support which is available from the Small Business Administration. . . .
126
" . . . [T]he Grantee must monitor the performance of its prime contractors to make sure that their commitments to expend funds for MBE's are being fulfilled. . . . Grantees should administer every project tightly. . . . "
127
¶ 2. The EDA guidelines, at 13-15, provide in relevant part:
128
"Although a provision for waiver is included under this section of the Act, EDA will only approve a waiver under exceptional circumstances. The Grantee must demonstrate that there are not sufficient, relevant, qualified minority business enterprises whose market areas include the project location to justify a waiver. The Grantee must detail in its waiver request the efforts the Grantee and potential contractors have exerted to locate and enlist MBE's. The request must indicate the specific MBE's which were contacted and the reason each MBE was not used. . . .
129
* * * * *
130
"Only the Grantee can request a waiver. . . . Such a waiver request would ordinarily be made after the initial bidding or negotiation procedures proved unsuccessful. . . .
131
* * * * *
132
"[A] Grantee situated in an area where the minority population is very small may apply for a waiver before requesting bids on its project or projects. . . . "
133
¶ 3. The EDA Technical Bulletin, at 1, provides the following definitions:
134
"a) Negro—An individual of the black race of African origin.
135
"b) Spanish-speaking—An individual of a Spanish-speaking culture and origin or parentage.
136
"c) Oriental—An individual of a culture, origin or parentage traceable to the areas south of the Soviet Union, East of Iran, inclusive of islands adjacent thereto, and out to the Pacific including but not limited to Indonesia, Indochina, Malaysia, Hawaii and the Philippines.
137
"d) Indian—An individual having origins in any of the original people of North America and who is recognized as an Indian by either a tribe, tribal organization or a suitable authority in the community. (A suitable authority in the community may be: educational institutions, religious organizations, or state agencies.)
138
"e) Eskimo—An individual having origins in any of the original peoples of Alaska.
139
"f) Aleut—An individual having origins in any of the original peoples of the Aleutian Islands."
140
¶ 4. The EDA Technical Bulletin, at 19, provides in relevant part:
141
"Any person or organization with information indicating unjust participation by an enterprise or individuals in the MBE program or who believes that the MBE participation requirement is being improperly applied should contact the appropriate EDA grantee and provide a detailed statement of the basis for the complaint.
142
"Upon receipt of a complaint, the grantee should attempt to resolve the issues in dispute. In the event the grantee requires assistance in reaching a determination, the grantee should contact the Civil Rights Specialist in the appropriate Regional Office.
143
"If the complainant believes that the grantee has not satisfactorily resolved the issues raised in his complaint, he may personally contact the EDA Regional Office."
144
Mr. Justice POWELL, concurring.
145
Although I would place greater emphasis than THE CHIEF JUSTICE on the need to articulate judicial standards of review in conventional terms, I view his opinion announcing the judgment as substantially in accord with my own views. Accordingly, I join that opinion and write separately to apply the analysis set forth by my opinion in University of California Regents v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (hereinafter Bakke ).
146
The question in this case is whether Congress may enact the requirement in § 103(f)(2) of the Public Works Employment Act of 1977 (PWEA), that 10% of federal grants for local public work projects funded by the Act be set aside for minority business enterprises. Section 103(f)(2) employs a racial classification that is constitutionally prohibited unless it is a necessary means of advancing a compelling governmental interest. Bakke, supra, at 299, 305, 98 S.Ct., at 2756; see In re Griffiths, 413 U.S. 717, 721-722, 93 S.Ct. 2851, 2854-2855, 37 L.Ed.2d 910 (1973); Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967); McLaughlin v. Florida, 379 U.S. 184, 196, 85 S.Ct. 283, 290, 13 L.Ed.2d 222 (1964). For the reasons stated in myBakke opinion, I consider adherence to this standard as important and consistent with precedent.
147
The Equal Protection Clause, and the equal protection component of the Due Process Clause of the Fifth Amendment, demand that any governmental distinction among groups must be justifiable. Different standards of review applied to different sorts of classifications simply illustrate the principle that some classifications are less likely to be legitimate than others. Racial classifications must be assessed under the most stringent level of review because immutable characteristics, which bear no relation to individual merit or need, are irrelevant to almost every governmental decision. See, e. g., Anderson v. Martin, 375 U.S. 399, 402-404, 84 S.Ct. 454, 455-456, 11 L.Ed.2d 430 (1964). In this case, however, I believe that § 103(f)(2) is justified as a remedy that serves the compelling governmental interest in eradicating the continuing effects of past discrimination identified by Congress.1
148
* Racial preference never can constitute a compelling state interest. " 'Distinctions between citizens solely because of their ancestry' [are] 'odious to a free people whose institutions are founded upon the doctrine of equality.' " Loving v. Virginia, supra, 388 U.S., at 11, 87 S.Ct., at 1823, quoting Hirabayashi v. United States, 320 U.S. 81, 100, 63 S.Ct. 1375, 1385, 87 L.Ed. 1774 (1943). Thus, if the set-aside merely expresses a congressional desire to prefer one racial or ethnic group over another, § 103(f)(2) violates the equal protection component in the Due Process Clause of the Fifth Amendment. See Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954).
149
The Government does have a legitimate interest in ameliorating the disabling effects of identified discrimination. Bakke, supra, at 307, 98 S.Ct., at 2757; see, e. g., Keyes v. School District No. 1, Denver, Colo., 413 U.S. 189, 236, 93 S.Ct. 2686, 2711, 37 L.Ed.2d 548 (1973) (POWELL, J., concurring in part and dissenting in part); McDaniel v. Barresi, 402 U.S. 39, 41, 91 S.Ct. 1287, 1288, 28 L.Ed.2d 582 (1971); North Carolina Board of Education v. Swann, 402 U.S. 43, 45-46, 91 S.Ct. 1284, 1285-1286, 28 L.Ed.2d 586 (1971); Green v. County School Board, 391 U.S. 430, 437-438, 88 S.Ct. 1689, 1693-1694, 20 L.Ed.2d 716 (1968). The existence of illegal discrimination justifies the imposition of a remedy that will "make persons whole for injuries suffered on account of unlawful . . . discrimination." Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 280 (1975). A critical inquiry, therefore, is whether § 103(f)(2) was enacted as a means of redressing such discrimination. But this Court has never approved race-conscious remedies absent judicial, administrative, or legislative findings of constitutional or statutory violations. Bakke, supra, at 307, 98 S.Ct., at 2757; see e. g., Teamsters v. United States, 431 U.S. 324, 367-376, 97 S.Ct. 1843, 1870-1875, 52 L.Ed.2d 396 (1977); United Jewish Organizations v. Carey, 430 U.S. 144, 155-159, 97 S.Ct. 996, 1004-1006, 51 L.Ed.2d 229 (1977) (opinion of WHITE, J.); South Carolina v. Katzenbach, 383 U.S. 301, 308-315, 86 S.Ct. 803, 808-811, 15 L.Ed.2d 769 (1966).
150
Because the distinction between permissible remedial action and impermissible racial preference rests on the existence of a constitutional or statutory violation, the legitimate interest in creating a race-conscious remedy is not compelling unless an appropriate governmental authority has found that such a violation has occurred. In other words, two requirements must be met. First, the governmental body that attempts to impose a race-conscious remedy must have the authority to act in response to identified discrimination. Cf. Hampton v. Mow Sun Wong, 426 U.S. 88, 103, 96 S.Ct. 1895, 1905, 48 L.Ed.2d 495 (1976). Second, the governmental body must make findings that demonstrate the existence of illegal discrimination. In Bakke, the Regents failed both requirements. They were entrusted only with educational functions, and they made no findings of past discrimination. Thus, no compelling governmental interest was present to justify the use of a racial quota in medical school admissions. Bakke, supra, at 309-310, 98 S.Ct., at 2758-2759.
151
Our past cases also establish that even if the government proffers a compelling interest to support reliance upon a suspect classification, the means selected must be narrowly drawn to fulfill the governmental purpose. In re Griffiths, supra, at 721-722, 93 S.Ct., at 2854-2855. In Bakke, for example, the state university did have a compelling interest in the attainment of a diverse student body. But the method selected to achieve that end, the use of a fixed admissions quota, was not appropriate. The Regents' quota system eliminated some nonminority applicants from all consideration for a specified number of seats in the entering class, although it allowed minority applicants to compete for all available seats. 438 U.S., at 275-276, 98 S.Ct., at 2740-2741. In contrast, an admissions program that recognizes race as a factor, but not the sole factor, in assessing an applicant's qualifications serves the university's interest in diversity while ensuring that each applicant receives fair and competitive consideration. Id., at 317-318, 98 S.Ct., at 2762-2763.
152
In reviewing the constitutionality of § 103(f)(2), we must decide: (i) whether Congress is competent to make findings of unlawful discrimination; (ii) if so, whether sufficient findings have been made to establish that unlawful discrimination has affected adversely minority business enterprises, and (iii) whether the 10% set-aside is a permissible means for redressing identifiable past discrimination. None of these questions may be answered without explicit recognition that we are reviewing an Act of Congress.
II
153
The history of this Court's review of congressional action demonstrates beyond question that the National Legislature is competent to find constitutional and statutory violations. Unlike the Regents of the University of California, Congress properly may and indeed must—address directly the problems of discrimination in our society. See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 257, 85 S.Ct. 348, 357, 13 L.Ed.2d 258 (1964). In Katzenbach v. McClung, 379 U.S. 294, 304, 85 S.Ct. 377, 384, 13 L.Ed.2d 290 (1964), for example, this Court held that Congress had the power under the Commerce Clause to prohibit racial discrimination in public restaurants on the basis of its "finding[s] that [such discrimination] had a direct and adverse effect on the free flow of interstate commerce."
154
Similarly, after hearing "overwhelming" evidence of private employment discrimination, see H.R.Rep.No.914, 88th Cong., 1st Sess., pt. 2, p. 26 (1963), Congress enacted Title VII of the Civil Rights Act of 1964 in order "to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800, 93 S.Ct. 1817, 1823, 36 L.Ed.2d 668 (1973). Acting to further the purposes of Title VII, Congress vested in the federal courts broad equitable discretion to ensure that " 'persons aggrieved by the consequences and effects of the unlawful employment practice be, so far as possible, restored to a position where they would have been were it not for the unlawful discrimination.' " Franks v. Bowman Transportation Co., 424 U.S. 747, 764, 96 S.Ct. 1251, 1264, 47 L.Ed.2d 444 (1976), quoting Section-by-Section Analysis of H.R. 1746, accompanying the Equal Employment Opportunity Act of 1972 Conference Report, 118 Cong.Rec. 7166, 7168 (1972).
155
In addition, Congress has been given the unique constitutional power of legislating to enforce the provisions of the Thirteenth, Fourteenth, and Fifteenth Amendments.2 At an early date, the Court stated that "[i]t is the power of Congress which has been enlarged" by the enforcement provisions of the post-Civil War Amendments. Ex parte Virginia, 100 U.S. 339, 345, 25 L.Ed. 676 (1880). In Jones v. Alfred H. Mayer & Co., 392 U.S. 409, 441-443, 88 S.Ct. 2186, 2204-2205, 20 L.Ed.2d 1189 (1968), the Court recognized Congress' competence to determine that private action inhibiting the right to acquire and convey real property was racial discrimination forbidden by the Thirteenth Amendment. Subsequently, we held that Congress' enactment of 42 U.S.C. § 1981 pursuant to its powers under the Thirteenth Amendment, see Runyon v. McCrary, 427 U.S. 160, 168-170, 179, 96 S.Ct. 2586, 2593-2594, 2598, 49 L.Ed.2d 415 (1976), provides to all persons a federal remedy for racial discrimination in private employment. See McDonald v. Sante Fe Transportation Co., 427 U.S. 273, 295-296, 96 S.Ct. 2574, 2585-2586, 49 L.Ed.2d 493 (1976); Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 459-460, 95 S.Ct. 1716, 1719-1720, 44 L.Ed.2d 295 (1975).
156
In Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966), the Court considered whether § 5 of the Fourteenth Amendment gave Congress the power to enact § 4(e) of the Voting Rights Act of 1965, 42 U.S.C. § 1973b(e). Section 4(e) provides that no person educated in Puerto Rico may be denied the right to vote in any election for failure to read or write the English language. The Court held that Congress was empowered to enact § 4(e) as a remedy for discrimination against the Puerto Rican community. 384 U.S., at 652-653, 86 S.Ct., at 1724. Implicit in its holding was the Court's belief that Congress had the authority to find, and had found, that members of this minority group had suffered governmental discrimination.
157
Congress' authority to find and provide for the redress of constitutional violations also has been confirmed in cases construing the Enforcement Clause of the Fifteenth Amendment. In South Carolina v. Katzenbach, 383 U.S., at 308, 86 S.Ct., at 808, for example, the Court upheld the Voting Rights Act of 1965, 42 U.S.C. § 1973 et seq., as an appropriate remedy for violations of the Fifteenth Amendment. It noted that Congress had found "insidious and pervasive" discrimination demanding "ster[n] and . . . elaborate" measures. 383 U.S., at 309, 86 S.Ct., at 808. Most relevant to our present inquiry was the Court's express approval of Congress' decision to "prescrib[e] remedies for voting discrimination which go into effect without the need for prior adjudication." Id., at 327-328, 86 S.Ct., at 818.3
158
It is beyond question, therefore, that Congress has the authority to identify unlawful discriminatory practices, to prohibit those practices, and to prescribe remedies to eradicate their continuing effects. The next inquiry is whether Congress has made findings adequate to support its determination that minority contractors have suffered extensive discrimination.
III
A.
159
The petitioners contend that the legislative history of § 103(f)(2) reflects no congressional finding of statutory or constitutional violations. Crucial to that contention is the assertion that a reviewing court may not look beyond the legislative history of the PWEA itself for evidence that Congress believed it was combating invidious discrimination. But petitioners' theory would erect an artificial barrier to full understanding of the legislative process.
160
Congress is not an adjudicatory body called upon to resolve specific disputes between competing adversaries. Its constitutional role is to be representative rather than impartial, to make policy rather than to apply settled principles of law. The petitioners' contention that this Court should treat the debates on § 103(f)(2) as the complete "record" of congressional decisionmaking underlying that statute is essentially a plea that we treat Congress as it it were a lower federal court. But Congress is not expected to act as though it were duty bound to find facts and make conclusions of law. The creation of national rules for the governance of our society simply does not entail the same concept of recordmaking that is appropriate to a judicial or administrative proceeding. Congress has no responsibility to confine its vision to the facts and evidence adduced by particular parties. Instead, its special attribute as a legislative body lies in its broader mission to investigate and consider all facts and opinions that may be relevant to the resolution of an issue. One appropriate source is the information and expertise that Congress acquires in the consideration and enactment of earlier legislation. After Congress has legislated repeatedly in an area of national concern, its Members gain experience that may reduce the need for fresh hearings or prolonged debate when Congress again considers action in that area.
161
Acceptance of petitioners' argument would force Congress to make specific factual findings with respect to each legislative action. Such a requirement would mark an unprecedented imposition of adjudicatory procedures upon a coordinate branch of Government. Neither the Constitution nor our democratic tradition warrants such a constraint on the legislative process. I therefore conclude that we are not confined in this case to an examination of the legislative history of § 103(f)(2) alone. Rather, we properly may examine the total contemporary record of congressional action dealing with the problems of racial discrimination against minority business enterprises.
B
162
In my view, the legislative history of § 103(f)(2) demonstrates that Congress reasonably concluded that private and governmental discrimination had contributed to the negligible percentage of public contracts awarded minority contractors.4 The opinion of THE CHIEF JUSTICE provides a careful overview of the relevant legislative history, see ante, at 456-457, to which only a few words need be added.
163
Section 103(f)(2) originated in an amendment introduced on the floor of the House of Representatives by Representative Mitchell. Congressman Mitchell noted that the Federal Government was already operating a set-aside program under § 8(a) of the Small Business Act, 15 U.S.C. § 637(a). He described his proposal as "the only sensible way for us to begin to develop a viable economic system for minorities in this country, with the ultimate result being that we are going to eventually be able to . . . end certain programs which are merely support survival programs for people which do not contribute to the economy." 123 Cong.Rec. 5327 (1977).5 Senator Brooke, who introduced a similar measure in the Senate, reminded the Senate of the special provisions previously enacted into § 8(a) of the Small Business Act and the Railroad Revitalization and Regulatory Reform Act of 1976, 90 Stat. 149, 49 U.S.C. § 1657a, which, he stated, demonstrated the validity of his amendment. 123 Cong.Rec. 7155-7156 (1977).
164
Section 8(a) of the Small Business Act provides that the Small Business Administration may enter into contracts with the Federal Government and subcontract them out to small businesses. The Small Business Administration has been directed by Executive Order to employ § 8(a) to aid socially and economically disadvantaged persons. Ante, at 463-464.6 The operation of the § 8(a) program was reviewed by congressional Committees between 1972 and 1977. In 1972, the House Subcommittee on Minority Small Business Enterprise found that minority businessmen face economic difficulties that "are the result of past social standards which linger as characteristics of minorities as a group." H.R.Rep.No.92-1615, p. 3 (1972). In 1975, the House Subcommittee on SBA Oversight and Minority Enterprise concluded that "[t]he effect of past inequities stemming from racial prejudice have not remained in the past," and that low participation by minorities in the economy was the result of "past discriminatory practices." H.R.Rep.No.94-468, pp. 1-2 (1975). In 1977, the House Committee on Small Business found that
165
"over the years, there has developed a business system which has traditionally excluded measurable minority participation. In the past more than the present, this system of conducting business transactions overtly precluded minority input. Currently, we more often encounter a business system which is racially neutral on its face, but because of past overt social and economic discrimination is presently operating, in effect, to perpetuate these past inequities." H.R.Rep.No.94-1791, p. 182 (1977).
166
The Committee's Report, was issued on January 3, 1977, less than two months before Representative Mitchell introduced § 103(f)(2) into the House of Representatives.7
167
In light of these legislative materials and the discussion of legislative history contained in THE CHIEF JUSTICE's opinion, I believe that a court must accept as established the conclusion that purposeful discrimination contributed significantly to the small percentage of federal contracting funds that minority business enterprises have received. Refusals to sub-contract work to minority contractors may, depending upon the identity of the discriminating party, violate Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., or 42 U.S.C. § 1981, or the Fourteenth Amendment. Although the discriminatory activities were not identified with the exactitude expected in judicial or administrative adjudication, it must be remembered that "Congress may paint with a much broader brush than may this Court . . . ." Oregon v. Mitchell, 400 U.S. 112, 284, 91 S.Ct. 260, 344, 27 L.Ed.2d 272 (1970) (STEWART, J., concurring in part and dissenting in part).8
IV
168
Under this Court's established doctrine, a racial classification is suspect and subject to strict judicial scrutiny. As noted in Part I, the government may employ such a classification only when necessary to accomplish a compelling governmental purpose. See Bakke, 438 U.S., at 305, 98 S.Ct., at 2756. The conclusion that Congress found a compelling governmental interest in redressing identified discrimination against minority contractors therefore leads to the inquiry whether use of a 10% set-aside is a constitutionally appropriate means of serving that interest. In the past, this "means" test has been virtually impossible to satisfy. Only two of this Court's modern cases have held the use of racial classifications to be constitutional. See Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944); Hirabayshi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943). Indeed, the failure of legislative action to survive strict scrutiny has led some to wonder whether our review of racial classifications has been strict in theory, but fatal in fact. See Gunther, The Supreme Court, 1971 Term—Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1, 8 (1972).
A.
169
Application of the "means" test necessarily demands an understanding of the type of congressional action at issue. This is not a case in which Congress has employed a racial classification solely as a means to confer a racial preference. Such a purpose plainly would be unconstitutional. Supra, at 497. Nor has Congress sought to employ a racially conscious means to further a nonracial goal. In such instances, a non-racial means should be available to further the legitimate governmental purpose. See Bakke, supra, at 310-311, 98 S.Ct., at 2759.
170
Enactment of the set-aside is designed to serve the compelling governmental interest in redressing racial discrimination. As this Court has recognized, the implementation of any affirmative remedy for redress of racial discrimination is likely to affect persons differently depending upon their race. See, e. g., North Carolina Board of Education v. Swann, 402 U.S., at 45-46, 91 S.Ct., at 1285-1286. Although federal courts may not order or approve remedies that exceed the scope of a constitutional violation, see Milliken v. Bradley, 433 U.S. 267, 280-281, 97 S.Ct. 2749, 2757, 53 L.Ed.2d 745 (1977); Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977); Austin Independent School District v. United States, 429 U.S. 990, 991, 97 S.Ct. 517, 50 L.Ed.2d 603 (1976) (POWELL, J., concurring), this Court has not required remedial plans to be limited to the least restrictive means of implementation. We have recognized that the choice of remedies to redress racial discrimination is "a balancing process left, within appropriate constitutional or statutory limits, to the sound discretion of the trial court." Franks v. Bowman Transportation Co., 424 U.S., at 794, 96 S.Ct., at 1278 (POWELL, J., concurring in part and dissenting in part).
171
I believe that the Enforcement Clauses of the Thirteenth and Fourteenth Amendments give Congress a similar measure of discretion to choose a suitable remedy for the redress of racial discrimination. The legislative history of § 5 of the Fourteenth Amendment is particularly instructive. Senator Howard, the member of the Joint Committee on Reconstruction who introduced the Amendment into the Senate, described § 5 as "a direct affirmative delegation of power to Congress to carry out all the principles of all [the] guarantees" of § 1 of the Amendment. Cong.Globe, 39th Cong., 1st Sess., 2766 (1866). Furthermore, he stated that § 5
172
"casts upon the Congress the responsibility of seeing to it, for the future, that all the sections of the amendment are carried out in good faith, and that no State infringes the rights of persons or property. I look upon this clause as indispensable for the reason that it thus imposes upon the Congress this power and this duty." Id., at 2768.
173
Senator Howard's emphasis on the importance of congressional action to effectuate the goals of the Fourteenth Amendment was echoed by other Members of Congress. Representative Stevens, also a member of the Reconstruction Committee, said that the Fourteenth Amendment "allows Congress to correct the unjust legislation of the States," id., at 2459, and Senator Poland wished to leave no doubt "as to the power of Congress to enforce principles lying at the very foundation of all republican government. . . . " Id., at 2961. See id., at 2512-2513 (remarks of Rep. Raymond); id., at 2511 (Rep. Eliot); Ex parte Virginia, 100 U.S., at 345, 25 L.Ed. 676.9
174
Although the Framers of the Fourteenth Amendment may have contemplated that Congress, rather than the federal courts, would be the prime force behind enforcement of the Fourteenth Amendment, see 6 C. Fairman, History of the Supreme Court of the United States: Reconstruction and Reunion, Part 1, pp. 1295, 1296 (1971), they did not believe that congressional action would be unreviewable by this Court. Several Members of Congress emphasized that a primary purpose of the Fourteenth Amendment was to place the provisions of the Civil Rights Act of 1866 "in the eternal firmament of the Constitution." Cong.Globe, 39th Cong., 1st Sess., 2462 (1866) (remarks of Rep. Garfield). See id., at 2459 (remarks of Rep. Stevens); id., at 2465 (remarks of Rep. Thayer); id., at 2498 (remarks of Rep. Broomall). By 1866, Members of Congress fully understood that judicial review was the means by which action of the Legislative and Executive Branches would be required to conform to the Constitution. See, e. g., Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803).
175
I conclude, therefore, that the Enforcement Clauses of the Thirteenth and Fourteenth Amendments confer upon Congress the authority to select reasonable remedies to advance the compelling state interest in repairing the effects of discrimination. But that authority must be exercised in a manner that does not erode the guarantees of these Amendments. The Judicial Branch has the special responsibility to make a searching inquiry into the justification for employing a race-conscious remedy. Courts must be sensitive to the possibility that less intrusive means might serve the compelling state interest equally as well. I believe that Congress' choice of a remedy should be upheld, however, if the means selected are equitable and reasonably necessary to the redress of identified discrimination. Such a test allows the Congress to exercise necessary discretion but preserves the essential safeguard of judicial review of racial classifications.
B
176
When reviewing the selection by Congress of a race-conscious remedy, it is instructive to note the factors upon which the Courts of Appeals have relied in a closely analogous area. Courts reviewing the proper scope of race-conscious hiring remedies have considered (i) the efficacy of alternative remedies, NAACP v. Allen, 493 F.2d 614, 619 (CA5 1974); Vulcan Society Inc. v. Civil Service Comm'n, 490 F.2d 387, 398 (CA2 1973), (ii) the planned duration of the remedy, id., at 399; United States v. Wood, Wire & Metal Lathers Local 46, 471 F.2d 408, 414, n. 12 (CA2), cert. denied, 412 U.S. 939, 93 S.Ct. 2773, 37 L.Ed.2d 398 (1973), (iii) the relationship between the percentage of minority workers to be employed and the percentage of minority group members in the relevant population or work force, Association Against Discrimination v. Bridgeport, 594 F.2d 306, 311 (CA2 1979); Boston Chapter NAACP v. Beecher, 504 F.2d 1017, 1026-1027 (CA1 1974), cert. denied, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975); Bridgeport Guardians, Inc. v. Bridgeport Civil Service Comm'n, 482 F.2d 1333, 1341 (CA2 1973), cert. denied, 421 U.S. 991, 95 S.Ct. 1997, 44 L.Ed.2d 481 (1975); Carter v. Gallagher, 452 F.2d 315, 331 (CA8) (en banc), cert. denied, 406 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d 338 (1972), and (iv) the availability of waiver provisions if the hiring plan could not be met, Associated General Contractors, Inc. v. Altshuler, 490 F.2d 9, 18-19 (CA1 1973), cert. denied, 416 U.S. 957, 94 S.Ct. 1971, 40 L.Ed.2d 307 (1974).
177
By the time Congress enacted § 103(f)(2) in 1977, it knew that other remedies had failed to ameliorate the effects of racial discrimination in the construction industry. Although the problem had been addressed by antidiscrimination legislation, executive action to remedy employment discrimination in the construction industry, and federal aid to minority businesses, the fact remained that minority contractors were receiving less than 1% of federal contracts. See 123 Cong.Rec. 7156 (1977) (remarks of Sen. Brooke). Congress also knew that economic recession threatened the construction industry as a whole. Section 103(f)(2) was enacted as part of a bill designed to stimulate the economy by appropriating $4 billion in federal funds for new public construction. Since the emergency public construction funds were to be distributed quickly,10 any remedial provision designed to prevent those funds from perpetuating past discrimination also had to be effective promptly. Moreover, Congress understood that any effective remedial program had to provide minority contractors the experience necessary for continued success without federal assistance.11 And Congress knew that the ability of minority group members to gain experience had been frustrated by the difficulty of entering the construction trades.12 The set-aside program adopted as part of this emergency legislation serves each of these concerns because it takes effect as soon as funds are expended under PWEA and because it provides minority contractors with experience that could enable them to compete without governmental assistance.
178
The § 103(f)(2) set-aside is not a permanent part of federal contracting requirements. As soon as the PWEA program concludes, this set-aside program ends. The temporary nature of this remedy ensures that a race-conscious program will not last longer than the discriminatory effects it is designed to eliminate. It will be necessary for Congress to re-examine the need for a race-conscious remedy before it extends or re-enacts § 103(f)(2).
179
The percentage chosen for the set-aside is within the scope of congressional discretion. The Courts of Appeals have approved temporary hiring remedies insuring that the percentage of minority group workers in a business or governmental agency will be reasonably related to the percentage of minority group members in the relevant population. Boston Chapter NAACP v. Beecher, 504 F.2d, at 1027; Bridgeport Guardians, Inc. v. Bridgeport, 482 F.2d, at 1341; Carter v. Gallagher, 452 F.2d, at 331. Only 4% of contractors are members of minority groups, see Fullilove v. Kreps, 584 F.2d 600, 608 (CA2 1978), although minority group members constitute about 17% of the national population, see Constructors Association of Western Pennsylvania v. Kreps, 441 F.Supp. 936, 951 (WD Pa.1977), aff'd, 573 F.2d 811 (CA3 1978). The choice of a 10% set-aside thus falls roughly halfway between the present percentage of minority contractors and the percentage of minority group members in the Nation.
180
Although the set-aside is pegged at a reasonable figure, its effect might be unfair if it were applied rigidly in areas of the country where minority group members constitute a small percentage of the population. To meet this concern, Congress enacted a waiver provision into § 103(f)(2). The factors governing issuance of a waiver include the availability of qualified minority contractors in a particular geographic area, the size of the locale's minority population, and the efforts made to find minority contractors. U.S. Dept. of Commerce, Local Public Works Program, Round II, Guidelines for 10% Minority Business Participation LPW Grants (1977); App. 165a-167a. We have been told that 1,261 waivers had been granted by September 9, 1979. Brief for Secretary of Commerce 62, n. 37.
C
181
A race-conscious remedy should not be approved without consideration of an additional crucial factor—the effect of the set-aside upon innocent third parties. See Teamsters v. United States, 431 U.S., at 374-375, 97 S.Ct., at 1874. In this case, the petitioners contend with some force that they have been asked to bear the burden of the set-aside even though they are innocent of wrongdoing. I do not believe, however, that their burden is so great that the set-aside must be disapproved. As noted above, Congress knew that minority contractors were receiving only 1% of federal contracts at the time the set-aside was enacted. The PWEA appropriated $4 billion for public work projects, of which it could be expected that approximately $400 million would go to minority contractors. The Court of Appeals calculated that the set-aside would reserve about 0.25% of all the funds expended yearly on construction work in the United States for approximately 4% of the Nation's contractors who are members of a minority group. 584 F.2d., at 607-608. The set-aside would have no effect on the ability of the remaining 96% of contractors to compete for 99.75% of construction funds. In my view, the effect of the set-aside is limited and so widely dispersed that its use is consistent with fundamental fairness.13
182
Consideration of these factors persuades me that the set-aside is a reasonably necessary means of furthering the compelling governmental interest in redressing the discrimination that affects minority contractors. Any marginal unfairness to innocent nonminority contractors is not sufficiently significant or sufficiently identifiable—to outweigh the governmental interest served by § 103(f)(2). When Congress acts to remedy identified discrimination, it may exercise discretion in choosing a remedy that is reasonably necessary to accomplish its purpose. Whatever the exact breadth of that discretion, I believe that it encompasses the selection of the set-aside in this case.14
V
183
In the history of this Court and this country, few questions have been more divisive than those arising from governmental action taken on the basis of race. Indeed, our own decisions played no small part in the tragic legacy of government-sanctioned discrimination. See Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896); Dred Scott v. Sandford, 19 How. 393, 15 L.Ed. 691 (1857). At least since the decision in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), the Court has been resolute in its dedication to the principle that the Constitution envisions a Nation where race is irrelevant. The time cannot come too soon when no governmental decision will be based upon immutable characteristics of pigmentation or origin. But in our quest to achieve a society free from racial classification, we cannot ignore the claims of those who still suffer from the effects of identifiable discrimination.
184
Distinguishing the rights of all citizens to be free from racial classifications from the rights of some citizens to be made whole is a perplexing, but necessary, judicial task. When we first confronted such an issue in Bakke, I concluded that the Regents of the University of California were not competent to make, and had not made, findings sufficient to uphold the use of the race-conscious remedy they adopted. As my opinion made clear, I believe that the use of racial classifications, which are fundamentally at odds with the ideals of a democratic society implicit in the Due Process and Equal Protection Clauses, cannot be imposed simply to serve transient social or political goals, however worthy they may be. But the issue here turns on the scope of congressional power, and Congress has been given a unique constitutional role in the enforcement of the post-Civil War Amendments. In this case, where Congress determined that minority contractors were victims of purposeful discrimination and where Congress chose a reasonably necessary means to effectuate its purpose, I find no constitutional reason to invalidate § 103(f)(2).15
185
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN and Mr. Justice BLACKMUN join, concurring in the judgment.
186
My resolution of the constitutional issue in this case is governed by the separate opinion I coauthored in University of California Regents v. Bakke, 438 U.S. 265, 324-379, 98 S.Ct. 2733, 2766-2794, 57 L.Ed.2d 750 (1978). In my view, the 10% minority set-aside provision of the Public Works Employment Act of 1977 passes constitutional muster under the standard announced in that opinion.1
187
* In Bakke, I joined my Brothers BRENNAN, WHITE, and BLACKMUN in articulating the view that "racial classifications are not per se invalid under [the Equal Protection Clause of] the Fourteenth Amendment." Id., at 356, 98 S.Ct., at 2782 (opinion concurring in judgment in part and dissenting in part) (hereinafter cited as joint separate opinion).2 We acknowledged that "a government practice or statute which . . . contains 'suspect classifications' is to be subjected to 'strict scrutiny' and can be justified only if it furthers a compelling government purpose and, even then, only if no less restrictive alternative is available." Id., at 357, 98 S.Ct., at 2782. Thus, we reiterated the traditional view that racial classifications are prohibited if they are irrelevant. Ibid. In addition, we firmly adhered to "the cardinal principle that racial classifications that stigmatize—because they are drawn on the presumption that one race is inferior to another or because they put the weight of government behind racial hatred and separatism—are invalid without more." Id., at 357-358, 98 S.Ct., at 2783.
188
We recognized, however, that these principles outlawing the irrelevant or pernicious use of race were inapposite to racial classifications that provide benefits to minorities for the purpose of remedying the present effects of past racial discrimination.3 Such classifications may disadvantage some whites, but whites as a class lack the " 'traditional indicia of suspectness: the class is not saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.' " Id., at 357, 98 S.Ct., at 2783 (quoting San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 1293, 36 L.Ed.2d 16 (1973)). See also United States v. Carolene Products Co., 304 U.S. 144, 152, n. 4, 58 S.Ct. 778, 783, 82 L.Ed. 1234 (1938). Because the consideration of race is relevant to remedying the continuing effects of past racial discrimination, and because governmental programs employing racial classifications for remedial purposes can be crafted to avoid stigmatization, we concluded that such programs should not be subjected to conventional "strict scrutiny" scrutiny that is strict in theory, but fatal in fact. Bakke, supra, 438 U.S., at 362, 98 S.Ct., at 2785 (joint separate opinion).
189
Nor did we determine that such programs should be analyzed under the minimally rigorous rational-basis standard of review. 438 U.S., at 358, 98 S.Ct., at 2783. We recognized that race has often been used to stigmatize politically powerless segments of society, and that efforts to ameliorate the effects of past discrimination could be based on paternalistic stereotyping, not on a careful consideration of modern social conditions. In addition, we acknowledged that governmental classification on the immutable characteristic of race runs counter to the deep national belief that state-sanctioned benefits and burdens should bear some relationship to individual merit and responsibility. Id., at 360-361, 98 S.Ct., at 2784.
190
We concluded, therefore, that because a racial classification ostensibly designed for remedial purposes is susceptible to misuse, it may be justified only by showing "an important and articulated purpose for its use." Id., at 361, 98 S.Ct., at 2785. "In addition any statute must be stricken that stigmatizes any group or that singles out those least well represented in the political process to bear the brunt of a benign program." Ibid. In our view, then, the proper inquiry is whether racial classifications designed to further remedial purposes serve important governmental objectives and are substantially related to achievement of those objectives. Id., at 359, 98 S.Ct., at 2784.
II
191
Judged under this standard, the 10% minority set-aside provision at issue in this case is plainly constitutional. Indeed, the question is not even a close one.
192
As Mr. Chief Justice BURGER demonstrates, see ante, at 456-467, it is indisputable that Congress' articulated purpose for enacting the set-aside provision was to remedy the present effects of past racial discrimination. See also the concurring opinion of my Brother POWELL, ante, at 503-506. Congress had a sound basis for concluding that minority-owned construction enterprises, though capable, qualified, and ready and willing to work, have received a disproportionately small amount of public contracting business because of the continuing effects of past discrimination. Here, as in Bakke, 438 U.S., at 362, 98 S.Ct., at 2785 (joint separate opinion), "minority underrepresentation is substantial and chronic, and . . . the handicap of past discrimination is impeding access of minorities to" the benefits of the governmental program. In these circumstances remedying these present effects of past racial discrimination is a sufficiently important governmental interest to justify the use of racial classifications. Ibid. See generally id., at 362-373, 98 S.Ct., at 2785-2790.4
193
Because the means chosen by Congress to implement the set-aside provision are substantially related to the achievement of its remedial purpose, the provision also meets the second prong of our Bakke test. Congress reasonably determined that race-conscious means were necessary to break down the barriers confronting participation by minority enterprises in federally funded public works projects. That the set-aside creates a quota in favor of qualified and available minority business enterprises does not necessarily indicate that it stigmatizes. As our opinion stated in Bakke "[f]or purposes of constitutional adjudication, there is no difference between" setting aside "a predetermined number of places for qualified minority applicants rather than using minority status as a positive factor to be considered in evaluating the applications of disadvantaged minority applicants." Id., at 378, 98 S.Ct., at 2793. The set-aside, as enacted by Congress and implemented by the Secretary of Commerce, is carefully tailored to remedy racial discrimination while at the same time avoiding stigmatization and penalizing those least able to protect themselves in the political process. See ante, at 480-489. Cf. the concurring opinion of my Brother POWELL, ante, at 508-515. Since under the set-aside provision a contract may be awarded to a minority enterprise only if it is qualified to do the work, the provision stigmatizes as inferior neither a minority firm that benefits from it nor a nonminority firm that is burdened by it. Nor does the set-aside "establish a quota in the invidious sense of a ceiling," Bakke, supra, at 375, 98 S.Ct., at 2792 (joint separate opinion), on the number of minority firms that can be awarded public works contracts. In addition, the set-aside affects only a miniscule amount of the funds annually expended in the United States for construction work. See ante, at 484-485, n. 72.
194
In sum, it is clear to me that the racial classifications employed in the set-aside provision are substantially related to the achievement of the important and congressionally articulated goal of remedying the present effects of past racial discrimination. The provision, therefore, passes muster under the equal protection standard I adopted in Bakke.
III
195
In my separate opinion in Bakke, 438 U.S., at 387-396, 98 S.Ct., at 2798, I recounted the "ingenious and pervasive forms of discrimination against the Negro" long condoned under the Constitution and concluded that "[t]he position of the Negro today in America is the tragic but inevitable consequence of centuries of unequal treatment." Id., at 387, 395, 98 S.Ct., at 2802. I there stated:
196
"It is because of a legacy of unequal treatment that we now must permit the institutions of this society to give consideration to race in making decisions about who will hold the positions of influence, affluence, and prestige in America. For far too long, the doors to those positions have been shut to Negroes. If we are ever to become a fully integrated society, one in which the color of a person's skin will not determine the opportunities available to him or her, we must be willing to take steps to open those doors." Id., at 401, 98 S.Ct., at 2805.
197
Those doors cannot be fully opened without the acceptance of race-conscious remedies. As my Brother BLACKMUN observed in Bakke : "In order to get beyond racism, we must first take account of race. There is no other way." Id., at 407, 98 S.Ct., at 2808 (separate opinion).
198
Congress recognized these realities when it enacted the minority set-aside provision at issue in this case. Today, by upholding this race-conscious remedy, the Court accords Congress the authority necessary to undertake the task of moving our society toward a state of meaningful equality of opportunity, not an abstract version of equality in which the effects of past discrimination would be forever frozen into our social fabric. I applaud this result. Accordingly, I concur in the judgment of the Court.
199
Mr. Justice STEWART, with whom Mr. Justice REHNQUIST joins, dissenting.
200
"Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. . . . The law regards man as man, and takes no account of his surroundings or of his color . . . ." Those words were written by a Member of this Court 84 years ago. Plessy v. Ferguson, 163 U.S. 537, 559, 16 S.Ct. 1138, 1146, 41 L.Ed. 256 (Harlan, J., dissenting). His colleagues disagreed with him, and held that a statute that required the separation of people on the basis of their race was constitutionally valid because it was a "reasonable" exercise of legislative power and had been "enacted in good faith for the promotion [of] the public good . . . ." Id., at 550, 16 S.Ct., at 1143. Today, the Court upholds a statute that accords a preference to citizens who are "Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts," for much the same reasons. I think today's decision is wrong for the same reason that Plessy v. Ferguson was wrong, and I respectfully dissent.
A.
201
The equal protection standard of the Constitution has one clear and central meaning—it absolutely prohibits invidious discrimination by government. That standard must be met by every State under the Equal Protection Clause of the Fourteenth Amendment. Loving v. Virginia, 388 U.S. 1, 10, 87 S.Ct. 1817, 1822, 18 L.Ed.2d 1010; Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559; Strauder v. West Virginia, 100 U.S. 303, 307-308, 25 L.Ed. 664; Slaughter-House Cases, 16 Wall. 36, 71-72, 21 L.Ed. 394. And that standard must be met by the United States itself under the Due Process Clause of the Fifth Amendment. Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597; Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884.1 Under our Constitution, any official action that treats a person differently on account of his race or ethnic origin is inherently suspect and presumptively invalid. McLaughlin v. Florida, 379 U.S. 184, 192, 85 S.Ct. 283, 288, 13 L.Ed.2d 222; Bolling v. Sharpe, supra, 347 U.S., at 499, 74 S.Ct., at 694; Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 194, 89 L.Ed. 194.2
202
The hostility of the Constitution to racial classifications by government has been manifested in many cases decided by this Court. See, e. g., Loving v. Virginia, supra; McLaughlin v. Florida, supra; Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208. And our cases have made clear that the Constitution is wholly neutral in forbidding such racial discrimination, whatever the race may be of those who are its victims. In Anderson v. Martin, 375 U.S. 399, 84 S.Ct. 454, 11 L.Ed.2d 430, for instance, the Court dealt with a state law that required that the race of each candidate for election to public office be designated on the nomination papers and ballots. Although the law applied equally to candidates of whatever race, the Court held that it nonetheless violated the constitutional standard of equal protection. "We see no relevance," the Court said, "in the State's pointing up the race of the candidate as bearing upon his qualifications for office." Id., at 403, 84 S.Ct., at 456 (emphasis added). Similarly, in Loving v. Virginia, supra, and McLaughlin v. Florida, supra, the Court held that statutes outlawing miscegenation and interracial cohabitation were constitutionally invalid, even though the laws penalized all violators equally. The laws were unconstitutional for the simple reason that they penalized individuals solely because of their race, whatever their race might be. See also Goss v. Board of Education, 373 U.S. 683, 83 S.Ct. 1405, 10 L.Ed.2d 632; Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149.3
203
This history contains one clear lesson. Under our Constitution, the government may never act to the detriment of a person solely because of that person's race.4 The color of a person's skin and the country of his origin are immutable facts that bear no relation to ability, disadvantage, moral culpability, or any other characteristics of constitutionally permissible interest to government. "Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality." Hirabayashi v. United States, 320 U.S. 81, 100, 63 S.Ct. 1375, 1385, 87 L.Ed. 1774, quoted in Loving v. Virginia, supra, at 11, 87 S.Ct., at 1823.5 In short, racial discrimination is by definition invidious discrimination.
204
The rule cannot be any different when the persons injured by a racially biased law are not members of a racial minority. The guarantee of equal protection is "universal in [its] application, to all persons . . . without regard to any differences of race, of color, or of nationality." Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 1070, 30 L.Ed. 220. See In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910; Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866; Truax v. Raich, 239 U.S. 33, 39-43, 36 S.Ct. 7, 9-11, 60 L.Ed. 131; Strauder v. West Virginia, 100 U.S., at 308. The command of the equal protection guarantee is simple but unequivocal: In the words of the Fourteenth Amendment: "No State shall . . . deny to any person . . . the equal protection of the laws." Nothing in this language singles out some "persons" for more "equal" treatment than others. Rather, as the Court made clear in Shelley v. Kraemer, 334 U.S. 1, 22, 68 S.Ct. 836, 846, 92 L.Ed. 1161 the benefits afforded by the Equal Protection Clause "are, by its terms, guaranteed to the individual. [They] are personal rights." From the perspective of a person detrimentally affected by a racially discriminatory law, the arbitrariness and unfairness is entirely the same, whatever his skin color and whatever the law's purpose, be it purportedly "for the promotion of the public good" or otherwise.
205
No one disputes the self-evident proposition that Congress has broad discretion under its spending power to disburse the revenues of the United States as it deems best and to set conditions on the receipt of the funds disbursed. No one disputes that Congress has the authority under the Commerce Clause to regulate contracting practices on federally funded public works projects, or that it enjoys broad powers under § 5 of the Fourteenth Amendment "to enforce by appropriate legislation" the provisions of that Amendment. But these self-evident truisms do not begin to answer the question before us in this case. For in the exercise of its powers, Congress must obey the Constitution just as the legislatures of all the States must obey the Constitution in the exercise of their powers. If a law is unconstitutional, it is no less unconstitutional just because it is a product of the Congress of the United States.
B
206
On its face, the minority business enterprise (MBE) provision at issue in this case denies the equal protection of the law. The Public Works Employment Act of 1977 directs that all project construction shall be performed by those private contractors who submit the lowest competitive bids and who meet established criteria of responsibility. 42 U.S.C. § 6705(e)(1) (1976 ed., Supp. II). One class of contracting firms—defined solely according to the racial and ethnic attributes of their owners—is, however, excepted from the full rigor of these requirements with respect to a percentage of each federal grant. The statute, on its face and in effect, thus bars a class to which the petitioners belong from having the opportunity to receive a government benefit, and bars the members of that class solely on the basis of their race or ethnic background. This is precisely the kind of law that the guarantee of equal protection forbids.
207
The Court's attempt to characterize the law as a proper remedial measure to counteract the effects of past or present racial discrimination is remarkably unconvincing. The Legislative Branch of government is not a court of equity. It has neither the dispassionate objectivity nor the flexibility that are needed to mold a race-conscious remedy around the single objective of eliminating the effects of past or present discrimination.6
208
But even assuming that Congress has the power, under § 5 of the Fourteenth Amendment or some other constitutional provision, to remedy previous illegal racial discrimination, there is no evidence that Congress has in the past engaged in racial discrimination in its disbursement of federal contracting funds. The MBE provision thus pushes the limits of any such justification far beyond the equal protection standard of the Constitution. Certainly, nothing in the Constitution gives Congress any greater authority to impose detriments on the basis of race than is afforded the Judicial Branch.7 And a judicial decree that imposes burdens on the basis of race can be upheld only where its sole purpose is to eradicate the actual effects of illegal race discrimination. See Pasadena City Board of Education v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599.
209
The provision at issue here does not satisfy this condition. Its legislative history suggests that it had at least two other objectives in addition to that of counteracting the effects of past or present racial discrimination in the public works construction industry.8 One such purpose appears to have been to assure to minority contractors a certain percentage of federally funded public works contracts.9 But, since the guarantee of equal protection immunizes from capricious governmental treatment "persons"—not "races"—it can never countenance laws that seek racial balance as a goal in and of itself. "Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids." University of California Regents v. Bakke, 438 U.S. 265, 307, 98 S.Ct. 2733, 2757, 57 L.Ed.2d 750 (opinion of POWELL, J.). Second, there are indications that the MBE provision may have been enacted to compensate for the effects of social, educational, and economic "disadvantage."10 No race, however, has a monopoly on social, educational, or economic disadvantage,11 and any law that indulges in such a presumption clearly violates the constitutional guarantee of equal protection. Since the MBE provision was in whole or in part designed to effectuate objectives other than the elimination of the effects of racial discrimination, it cannot stand as a remedy that comports with the strictures of equal protection, even if it otherwise could.12
C
210
The Fourteenth Amendment was adopted to ensure that every person must be treated equally by each State regardless of the color of his skin. The Amendment promised to carry to its necessary conclusion a fundamental principle upon which this Nation had been founded—that the law would honor no preference based on lineage.13 Tragically, the promise of 1868 was not immediately fulfilled, and decades passed before the States and the Federal Government were finally directed to eliminate detrimental classifications based on race. Today, the Court derails this achievement and places its imprimatur on the creation once again by government of privileges based on birth.
211
The Court, moreover, takes this drastic step without, in my opinion, seriously considering the ramifications of its decision. Laws that operate on the basis of race require definitions of race. Because of the Court's decision today, our statute books will once again have to contain laws that reflect the odious practice of delineating the qualities that make one person a Negro and make another white.14 Moreover, racial discrimination, even "good faith" racial discrimination, is inevitably a two-edged sword. "[P]referential programs may only reinforce common stereotypes holding that certain groups are unable to achieve success without special protection based on a factor having no relationship to individual worth." University of California Regents v. Bakke, supra, at 298, 98 S.Ct., at 2753 (opinion of POWELL, J.). Most importantly, by making race a relevant criterion once again in its own affairs, the Government implicitly teaches the public that the apportionment of rewards and penalties can legitimately be made according to race—rather than according to merit or ability—and that people can, and perhaps should, view themselves and others in terms of their racial characteristics. Notions of "racial entitlement" will be fostered, and private discrimination will necessarily be encouraged.15 See Hughes v. Superior Court, 339 U.S. 460, 463-464, 70 S.Ct. 718, 720, 94 L.Ed. 985; T. Eastland & W. Bennett, Counting by Race 139-170 (1979); Van Alstyne, Rites of Passage: Race, the Supreme Court, and the Constitution, 46 U.Chi.L.Rev. 775 (1979).
212
There are those who think that we need a new Constitution, and their views may someday prevail. But under the Constitution we have, one practice in which government may never engage is the practice of racism—not even "temporarily" and not even as an "experiment."
213
For these reasons, I would reverse the judgment of the Court of Appeals.
214
Mr. Justice STEVENS, dissenting.
215
The 10% set-aside contained in the Public Works Employment Act of 1977 (Act), 91 Stat. 116, creates monopoly privileges in a $400 million market for a class of investors defined solely by racial characteristics. The direct beneficiaries of these monopoly privileges are the relatively small number of persons within the racial classification who represent the entrepreneurial subclass—those who have, or can borrow, working capital.
216
History teaches us that the costs associated with a sovereign's grant of exclusive privileges often encompass more than the high prices and shoddy workmanship that are familiar handmaidens of monopoly; they engender animosity and discontent as well. The economic consequences of using noble birth as a basis for classification in 18th-century France, though disastrous, were nothing as compared with the terror that was engendered in the name of "egalite" and "fraternite." Grants of privilege on the basis of characteristics acquired at birth are far from an unmixed blessing.
217
Our historic aversion to titles of nobility1 is only one aspect of our commitment to the proposition that the sovereign has a fundamental duty to govern impartially.2 When government accords different treatment to different persons, there must be a reason for the difference.3 Because racial characteristics so seldom provide a relevant basis for disparate treatment,4 and because classifications based on race are potentially so harmful to the entire body politic,5 it is especially important that the reasons for any such classification be clearly identified and unquestionably legitimate.
218
The statutory definition of the preferred class includes "citizens of the United States who are Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts." All aliens and all nonmembers of the racial class are excluded. No economic, social, geographical, or historical criteria are relevant for exclusion or inclusion. There is not one word in the remainder of the Act or in the legislative history that explains why any Congressman or Senator favored this particular definition over any other or that identifies the common characteristics that every member of the preferred class was believed to share.6 Nor does the Act or its history explain why 10% of the total appropriation was the proper amount to set aside for investors in each of the six racial subclasses.7
219
Four different, though somewhat interrelated, justifications for the racial classification in this Act have been advanced: first, that the 10% set-aside is a form of reparation for past injuries to the entire membership of the class; second, that it is an appropriate remedy for past discrimination against minority business enterprises that have been denied access to public contracts; third, that the members of the favored class have a special entitlement to "a piece of the action" when government is distributing benefits; and, fourth, that the program is an appropriate method of fostering greater minority participation in a competitive economy. Each of these asserted justifications merits separate scrutiny.
220
* Racial characteristics may serve to define a group of persons who have suffered a special wrong and who, therefore, are entitled to special reparations. Congress has recognized, for example, that the United States has treated some Indian tribes unjustly and has created procedures for allowing members of the injured classes to obtain classwide relief. See, e. g., Delaware Tribal Business Committee v. Weeks, 430 U.S. 73, 97 S.Ct. 911, 51 L.Ed.2d 173. But as I have formerly suggested, if Congress is to authorize a recovery for a class of similarly situated victims of a past wrong, it has an obligation to distribute that recovery among the members of the injured class in an evenhanded way. See id., at 97-98, 97 S.Ct., at 925 (STEVENS, J., dissenting). Moreover, in such a case the amount of the award should bear some rational relationship to the extent of the harm it is intended to cure.
221
In his eloquent separate opinion in University of California Regents v. Bakke, 438 U.S. 265, 387, 98 S.Ct. 2733, 2798, 57 L.Ed.2d 750, Mr. Justice MARSHALL recounted the tragic class-based discrimination against Negroes that is an indelible part of America's history. I assume that the wrong committed against the Negro class is both so serious and so pervasive that it would constitutionally justify an appropriate classwide recovery measured by a sum certain for every member of the injured class. Whether our resources are adequate to support a fair remedy of that character is a policy question I have neither the authority nor the wisdom to address. But that serious classwide wrong cannot in itself justify the particular classification Congress has made in this Act. Racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification. Quite obviously, the history of discrimination against black citizens in America cannot justify a grant of privileges to Eskimos or Indians.
222
Even if we assume that each of the six racial subclasses has suffered its own special injury at some time in our history, surely it does not necessarily follow that each of those subclasses suffered harm of identical magnitude. Although "the Negro was dragged to this country in chains to be sold in slavery," Bakke, supra, at 387, 98 S.Ct. at 2798 (opinion of MARSHALL, J.), the "Spanish-speaking" subclass came voluntarily, frequently without invitation, and the Indians, the Eskimos and the Aleuts had an opportunity to exploit America's resources before the ancestors of most American citizens arrived. There is no reason to assume, and nothing in the legislative history suggests, much less demonstrates, that each of these subclasses is equally entitled to reparations from the United States Government.8
223
At best, the statutory preference is a somewhat perverse form of reparation for the members of the injured classes. For those who are the most disadvantaged within each class are the least likely to receive any benefit from the special privilege even though they are the persons most likely still to be suffering the consequences of the past wrong.9 A random distribution to a favored few is a poor form of compensation for an injury shared by many.
224
My principal objection to the reparation justification for this legislation, however, cuts more deeply than my concern about its inequitable character. We can never either erase or ignore the history that Mr. Justice MARSHALL has recounted. But if that history can justify such a random distribution of benefits on racial lines as that embodied in this statutory scheme it will serve not merely as a basis for remedial legislation, but rather as a permanent source of justification for grants of special privileges. For if there is no duty to attempt either to measure the recovery by the wrong or to distribute that recovery within the injured class in an evenhanded way, our history will adequately support a legislative preference for almost any ethnic, religious, or racial group with the political strength to negotiate "a piece of the action" for its members.
225
Although I do not dispute the validity of the assumption that each of the subclasses identified in the Act has suffered a severe wrong at some time in the past, I cannot accept this slapdash statute as a legitimate method of providing classwide relief.
II
226
The Act may also be viewed as a much narrower remedial measure—one designed to grant relief to the specific minority business enterprises that have been denied access to public contracts by discriminatory practices.
227
The legislative history of the Act does not tell us when, or how often, any minority business enterprise was denied such access. Nevertheless, it is reasonable to infer that the number of such incidents has been relatively small in recent years. For, as noted by the Solicitor General, in the last 20 years Congress has enacted numerous statutes designed to eliminate discrimination and its effects from federally funded programs.10 Title VI of the Civil Rights Act of 1964 unequivocally and comprehensively prohibits discrimination on the basis of race in any program or activity receiving federal financial assistance. In view of the scarcity of litigated claims on behalf of minority business enterprises during this period, and the lack of any contrary evidence in the legislative record, it is appropriate to presume that the law has generally been obeyed.
228
Assuming, however, that some firms have been denied public business for racial reasons, the instant statutory remedy is nevertheless demonstrably much broader than is necessary to right any such past wrong. For the statute grants the special preference to a class that includes (1) those minority-owned firms that have successfully obtained business in the past on a free competitive basis and undoubtedly are capable of doing so in the future as well; (2) firms that have never attempted to obtain any public business in the past; (3) firms that were initially formed after the Act was passed, including those that may have been organized simply to take advantage of its provisions;11 (4) firms that have tried to obtain public business but were unsuccessful for reasons that are unrelated to the racial characteristics of their stockholders; and (5) those firms that have been victimized by racial discrimination.
229
Since there is no reason to believe that any of the firms in the first four categories had been wrongfully excluded from the market for public contracts, the statutory preference for those firms cannot be justified as a remedial measure. And since a judicial remedy was already available for the firms in the fifth category,12 it seems inappropriate to regard the preference as a remedy designed to redress any specific wrongs.13 In any event, since it is highly unlikely that the composition of the fifth category is at all representative of the entire class of firms to which the statute grants a valuable preference, it is ill-fitting to characterize this as a "narrowly tailored" remedial measure.14
III
230
The legislative history of the Act discloses that there is a group of legislators in Congress identified as the "Black Caucus" and that members of that group argued that if the Federal Government was going to provide $4 billion of new public contract business, their constituents were entitled to "a piece of the action."
231
It is neither unusual nor reprehensible for Congressmen to promote the authorization of public construction in their districts. The flow of capital and employment into a district inevitably has both direct and indirect consequences that are beneficial. As Mr. Justice BRENNAN noted in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547, however, the award of such contracts may become a form of political patronage that is dispensed by the party in power.15 Although the practice of awarding such contracts to political allies may be as much a part of our history as the employment practices condemned in Elrod, it would surely be unconstitutional for the legislature to specify that all, or a certain portion, of the contracts authorized by a specific statute must be given to businesses controlled by members of one political party or another. That would be true even if the legislative majority was convinced that a grossly disproportionate share had been awarded to members of the opposite party in previous years.
232
In the short run our political processes might benefit from legislation that enhanced the ability of representatives of minority groups to disseminate patronage to their political backers. But in the long run any rule that authorized the award of public business on a racial basis would be just as objectionable as one that awarded such business on a purely partisan basis.
233
The legislators' interest in providing their constituents with favored access to benefits distributed by the Federal Government is, in my opinion, a plainly impermissible justification for this racial classification.
IV
234
The interest in facilitating and encouraging the participation by minority business enterprises in the economy is unquestionably legitimate. Any barrier to such entry and growth whether grounded in the law or in irrational prejudice—should be vigorously and thoroughly removed. Equality of economic and investment opportunity is a goal of no less importance than equality of employment opportunity. This statute, however, is not designed to remove any barriers to entry. Nor does its sparse legislative history detail any insuperable or even significant obstacles to entry into the competitive market.
235
Three difficulties encountered by minority business enterprises in seeking governmental business on a competitive basis are identified in the legislative history. There were references to (1) unfamiliarity with bidding procedures followed by procurement officers, (2) difficulties in obtaining financing, and (3) past discrimination in the construction industry.
236
The first concern is no doubt a real problem for all businesses seeking access to the public contract market for the first time. It justifies a thorough review of bidding practices to make sure that they are intelligible and accessible to all. It by no means justifies an assumption that minority business enterprises are any less able to prepare and submit bids in proper form than are any other businessmen. Consequently, that concern does not justify a statutory classification on racial grounds.
237
The second concern would justify legislation prohibiting private discrimination in lending practices or authorizing special public financing for firms that have been or are unable to borrow money for reasons unrelated to their credit rating. It would not be an adequate justification for a requirement that a fixed percentage of all loans made by national banks be made to Eskimos or Orientals regardless of their ability to repay the loans. Nor, it seems to me, does it provide a sufficient justification for granting a preference to a broad class that includes, at one extreme, firms that have no credit problem16 and at the other extreme, firms whose unsatisfactory credit rating will prevent them from taking advantage of the statutory preference even though they are otherwise qualified to do the work. At best, the preference for minority business enterprises is a crude and inadequate response to the evils that flow from discriminatory lending practices.
238
The question whether the history of past discrimination has created barriers that can only be overcome by an unusual measure of this kind is more difficult to evaluate. In analyzing this question, I think it is essential to draw a distinction between obstacles placed in the path of minority business enterprises by others and characteristics of those firms that may impair their ability to compete.
239
It is unfortunately but unquestionably true that irrational racial prejudice persists today and continues to obstruct minority participation in a variety of economic pursuits, presumably including the construction industry. But there are two reasons why this legislation will not eliminate, or even tend to eliminate, such prejudice. First, prejudice is less likely to be a significant factor in the public sector of the economy than in the private sector because both federal and state laws have prohibited discrimination in the award of public contracts for many years. Second, and of greater importance, an absolute preference that is unrelated to a minority firm's ability to perform a contract inevitably will engender resentment on the part of competitors excluded from the market for a purely racial reason and skepticism on the part of customers and suppliers aware of the statutory classification. It thus seems clear to me that this Act cannot be defended as an appropriate method of reducing racial prejudice.
240
The argument that our history of discrimination has left the entire membership of each of the six racial classes identified in the Act less able to compete in a free market than others is more easily stated than proved. The reduction in prejudice that has occurred during the last generation has accomplished much less than was anticipated; it nevertheless remains true that increased opportunities have produced an ever-increasing number of demonstrations that members of disadvantaged races are entirely capable not merely of competing on an equal basis, but also of excelling in the most demanding professions. But, even though it is not the actual predicate for this legislation, a statute of this kind inevitably is perceived by many as resting on an assumption that those who are granted this special preference are less qualified in some respect that is identified purely by their race.17 Because that perception—especially when fostered by the Congress of the United States—can only exacerbate rather than reduce racial prejudice, it will delay the time when race will become a truly irrelevant, or at least insignificant, factor. Unless Congress clearly articulates the need and basis for a racial classification, and also tailors the classification to its justification, the Court should not uphold this kind of statute.
241
This Act has a character that is fundamentally different from a carefully drafted remedial measure like the Voting Rights Act of 1965. A consideration of some of the dramatic differences between these two legislative responses to racial injustice reveals not merely a difference in legislative craftsmanship but a difference of constitutional significance. Whereas the enactment of the Voting Rights Act was preceded by exhaustive hearings and debates concerning discriminatory denial of access to the electoral process, and became effective in specific States only after specific findings were made, this statute authorizes an automatic nationwide preference for all members of a diverse racial class regardless of their possible interest in the particular geographic areas where the public contracts are to be performed. Just why a wealthy Negro or Spanish-speaking investor should have a preferred status in bidding on a construction contract in Alaska—or a citizen of Eskimo ancestry should have a preference in Miami or Detroit—is difficult to understand in light of either the asserted remedial character of the set-aside or the more basic purposes of the public works legislation.
242
The Voting Rights Act addressed the problem of denial of access to the electoral process. By outlawing specific practices, such as poll taxes and special tests, the statute removed old barriers to equal access; by requiring preclearance of changes in voting practices in covered States, it precluded the erection of new barriers. The Act before us today does not outlaw any existing barriers to access to the economic market and does nothing to prevent the erection of new barriers. On the contrary, it adopts the fundamentally different approach of creating a new set of barriers of its own.
243
A comparable approach in the electoral context would support a rule requiring that at least 10% of the candidates elected to the legislature be members of specified racial minorities. Surely that would be an effective way of ensuring black citizens the representation that has long been their due. Quite obviously, however, such a measure would merely create the kind of inequality that an impartial sovereign cannot tolerate. Yet that is precisely the kind of "remedy" that this Act authorizes. In both political and economic contexts, we have a legitimate interest in seeing that those who were disadvantaged in the past may succeed in the future. But neither an election nor a market can be equally accessible to all if race provides a basis for placing a special value on votes or dollars.
244
The ultimate goal must be to eliminate entirely from governmental decisionmaking such irrelevant factors as a human being's race. The removal of barriers to access to political and economic processes serves that goal.18 But the creation of new barriers can only frustrate true progress. For as Mr. Justice POWELL19 and Mr. Justice Douglas20 have perceptively observed, such protective barriers reinforce habitual ways of thinking in terms of classes instead of individuals. Preferences based on characteristics acquired at birth foster intolerance and antagonism against the entire membership of the favored classes.21 For this reason, I am firmly convinced that this "temporary measure" will disserve the goal of equal opportunity.
V
245
A judge's opinion that a statute reflects a profoundly unwise policy determination is an insufficient reason for concluding that it is unconstitutional. Congress has broad power to spend money to provide for the "general Welfare of the United States," to "regulate Commerce . . . among the several States," to enforce the Civil War Amendments, and to discriminate between aliens and citizens. See Hampton v. Mow Sun Wong, 426 U.S. 88, 101-102, n. 21, 96 S.Ct. 1895, 1904, n. 21, 48 L.Ed.2d 495.22 But the exercise of these broad powers is subject to the constraints imposed by the Due Process Clause of the Fifth Amendment. That Clause has both substantive and procedural components; it performs the office of both the Due Process and Equal Protection Clauses of the Fourteenth Amendment in requiring that the federal sovereign act impartially.
246
Unlike Mr. Justice STEWART and Mr. Justice REHNQUIST, however, I am not convinced that the Clause contains an absolute prohibition against any statutory classification based on race. I am nonetheless persuaded that it does impose a special obligation to scrutinize any governmental decisionmaking process that draws nationwide distinctions between citizens on the basis of their race and incidentally also discriminates against noncitizens in the preferred racial classes.23 For just as procedural safeguards are necessary to guarantee impartial decisionmaking in the judicial process, so can they play a vital part in preserving the impartial character of the legislative process.24
247
In both its substantive and procedural aspects this Act is markedly different from the normal product of the legislative decisionmaking process. The very fact that Congress for the first time in the Nation's history has created a broad legislative classification for entitlement to benefits based solely on racial characteristics identifies a dramatic difference between this Act and the thousands of statutes that preceded it. This dramatic point of departure is not even mentioned in the statement of purpose of the Act or in the Reports of either the House or the Senate Committee that processed the legislation,25 and was not the subject of any testimony or inquiry in any legislative hearing on the bill that was enacted. It is true that there was a brief discussion on the floor of the House as well as in the Senate on two different days, but only a handful of legislators spoke and there was virtually no debate. This kind of perfunctory consideration of an unprecedented policy decision of profound constitutional importance to the Nation is comparable to the accidental malfunction of the legislative process that led to what I regarded as a totally unjustified discrimination in Delaware Tribal Business Committee v. Weeks, 430 U.S., at 97, 97 S.Ct., at 925.
248
Although it is traditional for judges to accord the same presumption of regularity to the legislative process no matter how obvious it may be that a busy Congress has acted precipitately, I see no reason why the character of their procedures may not be considered relevant to the decision whether the legislative product has caused a deprivation of liberty or property without due process of law.26 Whenever Congress creates a classification that would be subject to strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment if it had been fashioned by a state legislature, it seems to me that judicial review should include a consideration of the procedural character of the decisionmaking process.27 A holding that the classification was not adequately preceded by a consideration of less drastic alternatives or adequately explained by a statement of legislative purpose would be far less intrusive than a final determination that the substance of the decision is not "narrowly tailored to the achievement of that goal."28 Cf. THE CHIEF JUSTICE's opinion, ante, at 480; Mr. Justice MARSHALL's opinion concurring in the judgment, ante, at 521. If the general language of the Due Process Clause of the Fifth Amendment authorizes this Court to review Acts of Congress under the standards of the Equal Protection Clause of the Fourteenth Amendment—a clause that cannot be found in the Fifth Amendment there can be no separation-of-powers objection to a more tentative holding of unconstitutionality based on a failure to follow procedures that guarantee the kind of deliberation that a fundamental constitutional issue of this kind obviously merits.29
249
In all events, rather than take the substantive position expressed in Mr. Justice STEWART's dissenting opinion, I would hold this statute unconstitutional on a narrower ground. It cannot fairly be characterized as a "narrowly tailored" racial classification because it simply raises too many serious questions that Congress failed to answer or even to address in a responsible way.30 The risk that habitual attitudes toward classes of persons, rather than analysis of the relevant characteristics of the class, will serve as a basis for a legislative classification is present when benefits are distributed as well as when burdens are imposed. In the past, traditional attitudes too often provided the only explanation for discrimination against women, aliens, illegitimates, and black citizens. Today there is a danger that awareness of past injustice will lead to automatic acceptance of new classifications that are not in fact justified by attributes characteristic of the class as a whole.
250
When Congress creates a special preference, or a special disability, for a class of persons, it should identify the characteristic that justifies the special treatment.31 When the classification is defined in racial terms, I believe that such particular identification is imperative.
251
In this case, only two conceivable bases for differentiating the preferred classes from society as a whole have occurred to me: (1) that they were the victims of unfair treatment in the past and (2) that they are less able to compete in the future. Although the first of these factors would justify an appropriate remedy for past wrongs, for reasons that I have already stated, this statute is not such a remedial measure. The second factor is simply not true. Nothing in the record of this case, the legislative history of the Act, or experience that we may notice judicially provides any support for such a proposition. It is up to Congress to demonstrate that its unique statutory preference is justified by a relevant characteristic that is shared by the members of the preferred class. In my opinion, because it has failed to make that demonstration, it has also failed to discharge its duty to govern impartially embodied in the Fifth Amendment to the United States Constitution.
252
I respectfully dissent.
1
91 Stat. 116, 42 U.S.C. § 6705(f)(2) (1976 ed., Supp. II).
2
42 Fed.Reg. 27432 (1977), as amended by 42 Fed.Reg. 35822 (1977); 13 CFR Part 317 (1978).
3
U. S. Dept. of Commerce, Economic Development Administration, Local Public Works Program, Round II, Guidelines For 10% Minority Business Participation In LPW Grants (1977) (hereinafter Guidelines); App. 156a-167a.
4
U. S. Dept. of Commerce, Economic Development Administration, EDA Minority Business Enterprise (MBE) Technical Bulletin (Additional Assistance and Information Available to Grantees and Their Contractors In Meeting The 10% MBE Requirement) (1977) (hereinafter Technical Bulletin); App. 129a-155a.
5
42 U.S.C. §§ 1981, 1983, 1985; Title VI, § 601 of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. § 2000d; Title VII, § 701 et seq. of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq.
6
Ohio Contractors Assn. v. Economic Development Administration, 580 F.2d 213 (CA6 1978); Constructors Assn. v. Kreps, 573 F.2d 811 (CA3 1978); Rhode Island Chapter, Associated General Contractors v. Kreps, 450 F.Supp. 338 (R.I. 1978); Associated General Contractors v. Secretary of Commerce, No. 77-4218 (Kan. Feb. 9, 1978); Carolinas Branch, Associated General Contractors v. Kreps, 442 F.Supp. 392 (S.C. 1977); Ohio Contractors Assn. v. Economic Development Administration, 452 F.Supp. 1013 (SD Ohio 1977); Montana Contractors' Assn. v. Secretary of Commerce, 439 F.Supp. 1331 (Mont. 1977); Florida East Coast Chapter v. Secretary of Commerce, No. 77-8351 (SD Fla. Nov. 3, 1977); but see Associated General Contractors v. Secretary of Commerce, 441 F.Supp. 955 (CD Cal. 1977), vacated and remanded for consideration of mootness, 438 U.S. 909, 98 S.Ct. 3132, 57 L.Ed.2d 1153 (1978), on remand, 459 F.Supp. 766 (CD Cal.), vacated and remanded sub nom. Armistead v. Associated General Contractors of California, 448 U.S. 908, 100 S.Ct. 3052, 65 L.Ed.2d 1138.
7
Both the Court of Appeals and the District Court rejected petitioners' various statutory arguments without extended discussion. 584 F.2d, at 608, n. 15; 443 F.Supp., at 262.
8
H.R.Rep.No.94-1077, p. 2 (1976), U.S.Code Cong. & Admin.News 1976, p. 1746. The bill discussed in this Report was accepted by the Conference Committee in preference to the Senate version. S.Conf.Rep.No.94-939, p. 1 (1976); H.R.Conf.Rep.No.94-1260, p. 1 (1976), U.S.Code Cong. & Admin.News 1976, p. 1746.
9
90 Stat. 999, 42 U.S.C. § 6702.
10
90 Stat. 1000, 42 U.S.C. § 6705.
11
90 Stat. 1000, 42 U.S.C. § 6707.
12
90 Stat. 1001, 42 U.S.C. § 6707(c).
13
90 Stat. 1002, 42 U.S.C. § 6710. The actual appropriation of the full amount authorized was made several weeks later. Pub.L. 94-447, 90 Stat. 1497.
14
123 Cong.Rec. 2136 (1977) (remarks of Sen. Randolph).
15
See, e. g., Hearings on H.R. 11 and Related Bills before the Subcommittee on Economic Development of the House Committee on Public Works and Transportation, 95th Cong., 1st Sess. (1977); H.R.Rep.No.95-20 (1977); S.Rep.No.95-38 (1977), U.S.Code Cong. & Admin.News 1977, p. 150.
16
91 Stat. 119, 42 U.S.C. § 6710 (1976 ed., Supp. II). The actual appropriation of the full authorized amount was made the same day. Pub.L. 95-29, 91 Stat. 123.
17
E. g., Hearings, supra, n. 15; 123 Cong.Rec. 5290-5353 (1977); id., at 7097-7176.
18
91 Stat. 117, 42 U.S.C. § 6707 (1976 ed., Supp. II).
19
91 Stat. 116, 42 U.S.C. § 6705 (1976 ed., Supp. II).
20
123 Cong.Rec. 5097 (1977) (remarks of Rep. Mitchell).
21
Id., at 5098.
22
Id., at 5097-5098.
23
Id., at 5098.
24
Id., at 5327. As reintroduced, the first sentence of the amendment was modified to provide:
"Notwithstanding any other provision of law, no grant shall be made under this Act for any local public works project unless at least 10 per centum of the dollar volume of each contract shall be set aside for minority business enterprise and, or, unless at least 10 per centum of the articles, materials, and supplies which will be used in such project are procured from minority business enterprises."
25
Id., at 5327-5328.
26
Id., at 5327.
27
Id., at 5327-5328.
28
Id., at 5328 (remarks of Rep. Roe).
29
Ibid.
30
Id., at 5329 (remarks of Rep. Mitchell).
31
Id., at 5330 (remarks of Rep. Conyers).
32
Id., at 5331 (remarks of Rep. Biaggi).
33
Id., at 5332.
34
Id., at 7155-7156 (remarks of Sen. Brooke). The first paragraph of Senator Brooke's formulation was identical to the version originally offered by Representative Mitchell, quoted in the text, supra, at 458-459. A second paragraph of Senator Brooke's amendment provided:
"This section shall not be interpreted to defund projects with less than 10 percent minority participation in areas with minority population of less than 5 percent. In that event, the correct level of minority participation will be predetermined by the Secretary in consultation with EDA and based upon its lists of qualified minority contractors and its solicitation of competitive bids from all minority firms on those lists." 123 Cong.Rec. 7156 (1977).
35
Ibid.
36
Ibid.
37
S.Conf.Rep.No.95-110, p. 11 (1977); H.R.Conf.Rep.No.95-230, p. 11 (1977).
38
Ibid. The Conference Committee bill was agreed to by the Senate, 123 Cong.Rec.12941-12942 (1977), and by the House, id., at 13242-13257, and was signed into law on May 13, 1977.
39
Id., at 7156 (remarks of Sen. Brooke).
40
Id., at 5330 (remarks of Rep. Mitchell).
41
Id., at 5327; id., at 7156 (remarks of Sen. Brooke).
42
Exec.Order No. 11375, 3 CFR 684 (1966-1970 Comp.); Exec.Order No. 11518, 3 CFR 907 (1966-1970 Comp.).
43
13 CFR § 124.8-1(c)(1) (1977).
44
U.S. Small Business Administration, Office of Business Development, Section 8(a) Program, Standard Operating Procedure 15-16 (1976); see H.R.Rep.No.94-468, p. 30 (1975) ("[T]he relevant rules and regulations require such applicant to identify with the disadvantages of his or her racial group generally, and that such disadvantages must have personally affected the applicant's ability to enter into the mainstream of the business system"); U. S. Small Business Administration, Office of Minority Small Business and Capital Ownership Development, MSB & COD Programs, Standard Operating Procedure 20 (1979) ("The social disadvantage of individuals, including those within the above-named [racial and ethnic] groups, shall be determined by SBA on a case-by-case basis. Membership alone in any group is not conclusive that an individual is socially disadvantaged").
45
H.R.Rep.No.94-1791 (1977).
46
Id., at 124-149.
47
H.R.Rep.No.94-468, pp. 1-2 (1975) (emphasis added).
48
Another chapter of the 1977 Report of the House Committee on Small Business summarized a review of the SBA's Security Bond Guarantee Program, making specific reference to minority business participation in the construction industry:
"The very basic problem disclosed by the testimony is that, over the years, there has developed a business system which has traditionally excluded measurable minority participation. In the past more than the present, this system of conducting business transactions overtly precluded minority input. Currently, we more often encounter a business system which is racially neutral on its face, but because of past overt social and economic discrimination is presently operating, in effect, to perpetuate these past inequities. Minorities, until recently, have not participated to any measurable extent, in our total business system generally, or in the construction industry, in particular." H.R.Rep.No.94-1791, p. 182 (1977), summarizing H.R.Rep.No.840, p. 17 (1976).
49
H.R.Rep.No.94-468, pp. 28-30 (1975).
50
Id., at 29.
51
Id., at 11; U. S. General Accounting Office, Questionable Effectiveness of the § 8(a) Procurement Program, GGD-75-57 (1975); U. S. Comm'n on Civil Rights, Minorities and Women as Government Contractors (May 1975).
52
U. S. Commission on Civil Rights, "Minorities and Women as Government Contractors" 16-28, 86-88 (1975).
53
Ibid.
54
Exec.Order No. 11458, 3 CFR 779 (1966-1970 Comp.); Exec.Order No. 11625, 3 CFR 616 (1971-1975 Comp.).
55
H.R.Rep.No.94-468, p. 32 (1975). For other congressional observations with respect to the effect of past discrimination on current business opportunities for minorities, see, e. g., H.R.Rep.No.92-1615, p. 3 (1972); H.R.Rep.No.95-949, p. 8 (1978); S.Rep.No.95-1070, pp. 14-15 (1978); S.Rep.No.96-31, pp. 107, 123-124 (1979); see also, e. g., H.R.Doc.No.92-169, p. 4 (1971); H.R.Doc.No.92-194, p. 1 (1972).
56
91 Stat. 117, 42 U.S.C. § 6706 (1976 ed., Supp. II); 13 CFR Part 317 (1978).
57
91 Stat. 116, 42 U.S.C. (1976 ed., Supp. II) § 6705(e)(1); 13 CFR § 317.19 (1978).
58
Guidelines 2-7; App. 157a-160a. The relevant portions of the Guidelines are set out in the Appendix to this opinion, ¶ 1.
59
Guidelines 2; App. 157a; see 123 Cong.Rec. 5327-5328 (1977) (remarks of Rep. Mitchell and Rep. Roe).
60
Guidelines 8; App. 161a.
61
See 123 Cong.Rec. 5327-5328 (1977) (remarks of Rep. Mitchell and Rep. Roe).
62
Guidelines 13-16; App. 165a-167a. The relevant portions of the Guidelines are set out in the Appendix to this opinion, ¶ 2.
63
Technical Bulletin 5; App. 136a.
64
Technical Bulletin 9-10; App. 143a.
65
Text accompanying n. 48, supra.
66
H.R.Rep.No.94-468, p. 30 (1975).
67
123 Cong.Rec. 5330 (1977) (remarks of Rep. Roe).
68
Technical Bulletin 1; App. 131a-132a. These definitions are set out in the Appendix to this opinion, ¶ 3.
69
Technical Bulletin 3; App. 135a.
70
Technical Bulletin 19; App. 155a. The relevant portions of the Technical Bulletin are set out in the Appendix to this opinion, ¶ 4.
71
In their complaint, in order to establish standing to challenge the validity of the program, petitioners alleged as "[s]pecific examples" of economic injury three instances where one of their number assertedly would have been awarded a public works contract but for enforcement of the MBE provision. Petitioners requested only declaratory and injunctive relief against continued enforcement of the MBE provision; they did not seek any remedy for these specific instances of assertedly unlawful discrimination. App. 12a-13a, 17a-19a.
72
The Court of Appeals relied upon Department of Commerce statistics to calculate that the $4.2 billion in federal grants conditioned upon compliance with the MBE provision amounted to about 2.5% of the total of nearly $170 billion spent on construction in the United States during 1977. Thus, the 10% minimum minority business participation contemplated by this program would account for only 0.25% of the annual expenditure for construction work in the United States. Fullilove v. Kreps, 584 F.2d, at 607.
73
The MBE provision, 42 U.S.C. § 6705(f)(2) (1976 ed., Supp. II), classifies as a minority business enterprise any "business at least 50 per centum of which is owned by minority group members or, in the case of a publicly owned business, at least 51 per centum of the stock of which is owned by minority group numbers." Minority group members are defined as "citizens of the United States who are Negroes, Spanish-speaking, Orientals, Indians, Eskimos and Aleuts." The administrative definitions are set out in the Appendix to this opinion, ¶ 3. These categories also are classified as minorities in the regulations implementing the nondiscrimination requirements of the Railroad Revitalization and Regulatory Reform Act of 1976, 45 U.S.C. § 803, see 49 CFR § 265.5(i) (1978), on which Congress relied as precedent for the MBE provision. See 123 Cong.Rec. 7156 (1977) (remarks of Sen. Brooke). The House Subcommittee on SBA Oversight and Minority Enterprise, whose activities played a significant part in the legislative history of the MBE provision, also recognized that these categories were included within the Federal Government's definition of "minority business enterprise." H.R.Rep.No.94-468, pp. 20-21 (1975). The specific inclusion of these groups in the MBE provision demonstrates that Congress concluded they were victims of discrimination. Petitioners did not press any challenge to Congress' classification categories in the Court of Appeals; there is no reason for this Court to pass upon the issue at this time.
74
Cf. GAO, Report to the Congress, Minority Firms on Local Public Works Projects—Mixed Results, CED-79-9 (Jan. 16, 1979); U. S. Dept. of Commerce, Economic Development Administration, Local Public Works Program Interim Report on 10 Percent Minority Business Enterprise Requirement (Sept. 1978).
75
R. Jackson, The Struggle for Judicial Supremacy 321 (1941).
76
R. Jackson, The Supreme Court in the American System of Government 61-62 (1955).
77
Although the complaint alleged that the MBE program violated several federal statutes, n. 5, supra, the only statutory argument urged upon us is that the MBE provision is inconsistent with Title VI of the Civil Rights Act of 1964. We perceive no inconsistency between the requirements of Title VI and those of the MBE provision. To the extent any statutory inconsistencies might be asserted, the MBE provision—the later, more specific enactment—must be deemed to control. See, e. g., Morton v. Mancari, 417 U.S. 535, 550-551, 94 S.Ct. 2474, 2482-2483, 41 L.Ed.2d 290 (1974); Preiser v. Rodriguez, 411 U.S. 475, 489-490, 93 S.Ct. 1827, 1836, 36 L.Ed.2d 439 (1973); Bulova Watch Co. v. United States, 365 U.S. 753, 758, 81 S.Ct. 864, 867, 6 L.Ed.2d 72 (1961); United States v. Borden Co., 308 U.S. 188, 198-202, 60 S.Ct. 182, 188-190, 84 L.Ed. 181 (1939).
1
Although racial classifications require strict judicial scrutiny, I do not agree that the Constitution prohibits all racial classification. Mr. Justice STEWART recognizes the principle that I believe is applicable:
"Under our Constitution, any official action that treats a person differently on account of his race or ethnic origin is inherently suspect and presumptively invalid." Post, at 523. But, in narrowly defined circumstances, that presumption may be rebutted. Cf. Lee v. Washington, 390 U.S. 333, 334, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968) (BLACK, HARLAN, and STEWART, JJ., concurring).
2
Section 2 of the Thirteenth Amendment, which abolished slavery, provides that "Congress shall have power to enforce this article by appropriate legislation." In virtually identical language, § 5 of the Fourteenth Amendment and § 2 of the Fifteenth Amendment give Congress the power to enforce the provisions of those Amendments.
3
Among the remedies approved in South Carolina v. Katzenbach was the temporary suspension of literacy tests in some jurisdictions. The Voting Rights Act Amendments of 1970, 42 U.S.C. § 1973aa et seq., temporarily banned the use of literacy tests in all jurisdictions. In Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970), this Court, speaking through five separate opinions, unanimously upheld the action as a proper exercise of Congress' authority under the post-Civil War Amendments. See id., at 117, 91 S.Ct., at 261 (Black, J.); id., at 135, 91 S.Ct., at 270 (Douglas, J.); id., at 152, 91 S.Ct., at 279 (Harlan, J.); id., at 229, 91 S.Ct., at 317 (BRENNAN, WHITE, and MARSHALL, JJ.); id., at 281, 91 S.Ct., at 343 (STEWART, J., with whom BURGER, C. J., and BLACKMUN, J., concurred). Mr. Justice STEWART said:
"Congress was not required to make state-by-state findings concerning . . . actual impact of literacy requirements on the Negro citizen's access to the ballot box. In the interests of uniformity, Congress may paint with a much broader brush than may this Court, which must confine itself to the judicial function of deciding individual cases and controversies upon individual records. The findings that Congress made when it enacted the Voting Rights Act of 1965 would have supported a nationwide ban on literacy tests." Id., at 284, 91 S.Ct., at 344 (citation omitted).
4
I cannot accept the suggestion of the Court of Appeals that § 103(f)(2) must be viewed as serving a compelling state interest if the reviewing court can "perceive a basis" for legislative action. Fullilove v. Kreps, 584 F.2d 600, 604-605 (1978), quoting Katzenbach v. Morgan, 384 U.S. 641, 656, 86 S.Ct. 1717, 1726, 16 L.Ed.2d 828 (1966). The "perceive a basis" standard refers to congressional authority to act, not to the distinct question whether that action violates the Due Process Clause of the Fifth Amendment.
In my view, a court should uphold a reasonable congressional finding of discrimination. A more stringent standard of review would impinge upon Congress' ability to address problems of discrimination, see supra, at 500-503; a standard requiring a court to "perceive a basis" is essentially meaningless in this context. Such a test might allow a court to justify legislative action even in the absence of affirmative evidence of congressional findings.
5
During subsequent debate in the House, Representative Conyers emphasized that minority businesses "through no fault of their own simply have not been able to get their foot in the door." 123 Cong.Rec. 5330 (1977); see id., at 5331 (remarks of Rep. Biaggi).
6
In 1969, 1970, and 1971, the President issued Executive Orders directing federal aid for minority business enterprises. See Exec.Order No. 11458, 3 CFR 779 (1966-1970 Comp.); Exec.Order No. 11518, 3 CFR 907 (1966-1970 Comp.); Exec.Order No. 11625, 3 CFR 616 (1971-1975 Comp.). The President noted that "members of certain minority groups through no fault of their own have been denied the full opportunity to [participate in the free enterprise system]," Exec.Order No. 11518, 3 CFR 908 (1966-1970 Comp.), and that the "opportunity for full participation in our free enterprise system by socially and economically disadvantaged persons is essential if we are to obtain social and economic justice." Exec.Order No. 11625, 3 CFR 616 (1971-1975 Comp.). Assistance to minority business enterprises through the § 8(a) program has been designed to promote the goals of these Executive Orders. Ray Baillie Trash Hauling, Inc. v. Kleppe, 477 F.2d 696, 706 (CA5 1973), cert. denied, 415 U.S. 914, 94 S.Ct. 1410, 39 L.Ed.2d 468 (1974).
7
Two sections of the Railroad Revitalization and Regulatory Reform Act also reflect Congress' recognition of the need for remedial steps on behalf of minority businesses. Section 905, 45 U.S.C. § 803, prohibits discrimination in any activity funded by the Act, and § 906, 49 U.S.C. § 1657a, establishes a Minority Resource Center to assist minority businessmen to obtain contracts and business opportunities related to the maintenance and rehabilitation of railroads. The provisions were enacted by a Congress that recognized the "established national policy, since at least the passage of the Civil Rights Act of 1964, to encourage and assist in the development of minority business enterprise." S.Rep.No.94-499, p. 44 (1975) (Commerce Committee). In January 1977, the Department of Transportation issued regulations pursuant to 45 U.S.C. § 803(d) that require contractors to formulate affirmative-action programs to ensure that minority businesses receive a fair proportion of contract opportunities. See 49 CFR §§ 265.9-265.17 (1978). See also nn. 11 and 12, infra.
8
Although this record suffices to support the congressional judgment that minority contractors suffered identifiable discrimination, Congress need not be content with findings that merely meet constitutional standards. Race-conscious remedies, popularly referred to as affirmative-action programs, almost invariably affect some innocent persons. See infra, at 514. Respect and support for the law, especially in an area as sensitive as this, depend in large measure upon the public's perception of fairness. See Bakke, 438 U.S. 265, 319, n. 53, 98 S.Ct. 2733, 2763, n. 53, 57 L.Ed.2d 750 (1978); J. Wilkinson, From Brown to Bakke 264-266 (1979); Perry, Modern Equal Protection: A Conceptualization and Appraisal, 79 Colum.L.Rev. 1023, 1048-1049 (1979). It therefore is important that the legislative record supporting race-conscious remedies contain evidence that satisfies fairminded people that the congressional action is just.
9
See also Jones v. Alfred H. Mayer & Co., 392 U.S. 409, 88 S.Ct. 2186, 2203-2204, 20 L.Ed.2d 1189 (1968), quoting Cong.Globe, 39th Cong., 1st Sess., 322 (1866) (remarks of Sen. Trumbull on Congress' authority under the Thirteenth Amendment).
10
The PWEA provides that federal moneys be committed to state and local grantees by September 30, 1977. 42 U.S.C. § 6707(h)(1) (1976 ed., Supp. II). Action on applications for funds was to be taken within 60 days after receipt of the application, § 6706, and on-site work was to begin within 90 days of project approval, § 6705(d).
11
In 1972, a congressional oversight Committee addressed the "complex problem—how to achieve economic prosperity despite a long history of racial bias." See H.R.Rep.No.92-1615, p. 3 (Select Committee on Small Business). The Committee explained how the effects of discrimination translate into economic barriers:
"In attempting to increase their participation as entrepreneurs in our economy, the minority businessman usually encounters several major problems. These problems, which are economic in nature, are the result of past social standards which linger as characteristics of minorities as a group.
"The minority entrepreneur is faced initially with the lack of capital, the most serious problem of all beginning minorities or other entrepreneurs. Because minorities as a group are not traditionally holders of large amounts of capital, the entrepreneur must go outside his community in order to obtain the needed capital. Lending firms require substantial security and a track record in order to lend funds, security which the minority businessmen usually
cannot provide. Because he cannot produce either, he is often turned down.
* * * * *
"Functional expertise is a necessity for the successful operation of any enterprise. Minorities have traditionally assumed the role of the labor force in business with few gaining access to positions whereby they could learn not only the physical operation of the enterprise, but also the internal functions of management." Id., at 3-4.
12
When Senator Brooke introduced the PWEA set-aside in the Senate, he stated that aid to minority businesses also would help to alleviate problems of minority unemployment. 123 Cong.Rec. 7156 (1977). Congress had considered the need to remedy employment discrimination in the construction industry when it refused to override the "Philadelphia Plan." The "Philadelphia Plan," promulgated by the Department of Labor in 1969, required all federal contractors to use hiring goals in order to redress past discrimination. See Contractors Association of Eastern Pennsylvania v. Secretary of Labor, 442 F.2d 159, 163 (CA3), cert. denied, 404 U.S. 854, 92 S.Ct. 98, 30 L.Ed.2d 95 (1971). Later that year, the House of Representatives refused to adopt an amendment to an appropriations bill that would have had the effect of overruling the Labor Department's order. 115 Cong.Rec. 40921 (1969). The Senate, which had approved such an amendment, then voted to recede from its position. Id., at 40749.
During the Senate debate, several legislators argued that implementation of the Philadelphia Plan was necessary to ensure equal opportunity. See id., at 40740 (remarks of Sen. Scott); id., at 40741 (remarks of Sen. Griffith); id., at 40744 (remarks of Sen. Bayh). Senator Percy argued that the Plan was needed to redress discrimination against blacks in the construction industry. Id., at 40742-40743. The day following the Senate vote to recede from its earlier position, Senator Kennedy noted "exceptionally blatant" racial discrimination in the construction trades. He commended the Senate's decision that "the Philadelphia Plan should be a useful and necessary tool for insuring equitable employment of minorities." Id., at 41072.
13
Although I believe that the burden placed upon nonminority contractors is not unconstitutional, I reject the suggestion that it is legally irrelevant. Apparently on the theory that Congress could have enacted no set-aside and provided $400 million less in funding, the Secretary of Commerce argues that "[n]onminorities have lost no right or legitimate expectation by the addition of Section 103(f)(2) to the 1976 Act." Brief for Secretary of Commerce 61. But the United States may not employ unconstitutional classifications, or base a decision upon unconstitutional considerations, when it provides a benefit to which a recipient is not legally entitled. Cf. Califano v. Goldfarb, 430 U.S. 199, 210-212, 97 S.Ct. 1021, 1028-1029, 51 L.Ed.2d 270 (1977) (opinion of BRENNAN, J.); Richardson v. Belcher, 404 U.S. 78, 81, 92 S.Ct. 254, 257, 30 L.Ed.2d 231 (1971) ("To characterize an Act of Congress as conferring a 'public benefit' does not, of course, immunize it from scrutiny under the Fifth Amendment").
14
Petitioners have suggested a variety of alternative programs that could be used in order to aid minority business enterprises in the construction industry. My view that this set-aside is within the discretion of Congress does not imply that other methods are unavailable to Congress. Nor do I conclude that use of a set-aside always will be an appropriate remedy or that the selection of a set-aside by any other governmental body would be constitutional. See Bakke, 438 U.S., at 309-310, 98 S.Ct., at 2758-2759. The degree of specificity required in the findings of discrimination and the breadth of discretion in the choice of remedies may vary with the nature and authority of a governmental body.
15
Petitioners also contend that § 103(f)(2) violates Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. Because I believe that the set-aside is constitutional, I also conclude that the program does not violate Title VI. See Bakke, 438 U.S., at 287 (opinion of POWELL, J.); id., at 348-350, 98 S.Ct., at 2778-2779 (opinion of BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ.).
1
On the authority of Bakke, it is also clear to me that the set-aside provision does not violate Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. In Bakke five Members of the Court were of the view that the prohibitions of Title VI—which outlaws racial discrimination in any program or activity receiving federal financial assistance—are coextensive with the equal protection guarantee of the Fourteenth Amendment. See 438 U.S., at 328, 98 S.Ct., at 2768 (opinion of BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ.); id., at 287, 98 S.Ct., at 2746 (opinion of POWELL, J.).
2
In Bakke, the issue was whether a special minority admissions program of a state medical school violated the Equal Protection Clause of the Fourteenth Amendment. In the present case, the issue is whether the minority set-aside provision violates the equal protection component of the Due Process Clause of the Fifth Amendment. As noted in Bakke, " '[e]qual protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment.' " Id., at 367, n. 43, 98 S.Ct., at 2788 (joint separate opinion) (quoting Buckley v. Valeo, 424 U.S. 1, 93, 96 S.Ct. 612, 670, 46 L.Ed.2d 659 (1976) (per curiam )).
3
In Bakke, the Medical School of the University of California at Davis had adopted a special admissions program in which 16 out of the 100 places in each entering class were reserved for disadvantaged minorities. A major purpose of this program was to ameliorate the present effects of past racial discrimination. See 438 U.S., at 362, 98 S.Ct., at 2785 (joint separate opinion); id., at 305-306, 98 S.Ct. at 2756-2757 (opinion of POWELL, J.).
4
Petitioners argue that the set-aside is invalid because Congress did not create a sufficient legislative record to support its conclusion that racial classifications were required to ameliorate the present effects of past racial discrimination. In petitioners' view, Congress must make particularized findings that past violations of the Equal Protection Clause and antidiscrimination statutes have a current effect on the construction industry.
This approach is fundamentally misguided. Unlike the courts, Congress is engaged in the broad mission of framing general social rules, not adjudicating individual disputes. Our prior decisions recognize Congress' authority to "require or authorize preferential treatment for those likely disadvantaged by societal racial discrimination. Such legislation has been sustained even without a requirement of findings of intentional racial discrimination by those required or authorized to accord preferential treatment, or a case-by-case determination that those to be benefited suffered from racial discrimination." Bakke, 438 U.S., at 366, 98 S.Ct., at 2787 (joint separate opinion).
See also ante, at 478; the concurring opinion of my Brother POWELL, ante, at 502-503.
1
"Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment." Buckley v. Valeo, 424 U.S. 1, 93, 96 S.Ct. 612, 670, 46 L.Ed.2d 659.
2
By contrast, nothing in the Constitution prohibits a private person from discriminating on the basis of race in his personal or business affairs. See Steelworkers v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480. The Fourteenth Amendment limits only the actions of the States; the Fifth Amendment limits only the actions of the National Government.
3
University of California Regents v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750, and United Jewish Organizations v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229, do not suggest a different rule. The Court in Bakke invalidated the racially preferential admissions program that had deprived Bakke of equal access to a place in the medical school of a state university. In United Jewish Organizations v. Carey, a state legislature had apportioned certain voting districts with an awareness of their racial composition. Since the plaintiffs there had "failed to show that the legislative reapportionment plan had either the purpose or the effect of discriminating against them on the basis of their race," no constitutional violation had occurred. 430 U.S., at 179-180, 97 S.Ct., at 1017 (concurring opinion). No person in that case was deprived of his electoral franchise.
More than 35 years ago, during the Second World War, this Court did find constitutional a governmental program imposing injury on the basis of race. See Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194; Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774. Significantly, those cases were decided not only in time of war, but also in an era before the Court had held that the Due Process Clause of the Fifth Amendment imposes the same equal protection standard upon the Federal Government that the Fourteenth Amendment imposes upon the States. See Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884.
4
A court of equity may, of course, take race into account in devising a remedial decree to undo a violation of a law prohibiting discrimination on the basis of race. See 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; Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 18-32, 91 S.Ct. 1267, 1277-1284, 28 L.Ed.2d 554. But such a judicial decree, following litigation in which a violation of law has been determined, is wholly different from generalized legislation that awards benefits and imposes detriments dependent upon the race of the recipients. See text in Part B, infra.
5
As Mr. Justice Murphy wrote in dissenting from the Court's opinion and judgment in Korematsu v. United States, supra, at 242, 65 S.Ct., at 206:
"Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States."
See also DeFunis v. Odegaard, 416 U.S. 312, 331-344, 94 S.Ct. 1704, 1713-1719, 40 L.Ed.2d 164 (Douglas, J., dissenting); A. Bickel, The Morality of Consent 132-133 (1975).
6
See n. 4, supra. In McDaniel v. Barresi, 402 U.S. 39, 91 S.Ct. 1287, 28 L.Ed.2d 582, the Court approved a county's voluntary race-conscious redrafting of its public school pupil assignment system in order to eliminate the effects of past unconstitutional racial segregation of the pupils. But no pupil was deprived of a public school education as a result.
7
Section 2 of the Thirteenth Amendment gives Congress the authority to "enforce" the provisions of § 1 of the same Amendment, and § 5 of the Fourteenth Amendment provides that "[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Neither section grants to Congress the authority to require the States to flout their obligation under § 1 of the Fourteenth Amendment to afford "the equal protection of the laws" or the power to enact legislation that itself violates the equal protection component of the Fifth Amendment.
8
The legislative history of the MBE provision itself contains not one mention of racial discrimination or the need to provide a mechanism to correct the effects of such discrimination. From the context of the Act, however, it is reasonable to infer that the program was enacted, at least in part, to remedy perceived past and present racial discrimination. In 1977, Congress knew that many minority business enterprises had historically suffered racial discrimination in the economy as a whole and in the construction industry in particular. See H.R.Rep.No.94-1791, pp. 182-183 (1977); H.R.Rep.No.94-468, pp. 1-2 (1975); To Amend and Extend the Local Public Works Capital Development and Investment Act: Hearings on H.R. 11 and Related Bills before the Subcommittee on Economic Development of the House Committee on Public Works and Transportation, 95th Cong., 1st Sess., 939 (1977) (statement of Rep. Conyers). Some of this discrimination may well, in fact, have violated one or more of the state and federal antidiscrimination laws.
9
See 123 Cong.Rec. 5327 (1977) (Rep. Mitchell) ("all [the MBE provision] attempts to do is to provide that those who are in minority businesses get a fair share of the action from this public works legislation") (emphasis supplied). Moreover, sponsors of the legislation repeatedly referred to the low participation rate of minority businesses in federal procurement programs. See id., at 5331 (Rep. Biaggi); id., at 5327-5328 (Rep. Mitchell); id., at 5097-5098 (Rep. Mitchell); id., at 7156 (Sen. Brooke).
10
See id., at 5330 (Rep. Conyers) ("minority contractors and businessmen who are trying to enter in on the bidding process . . . get the 'works' almost every time. The bidding process is one whose intricacies defy the imaginations of most of us here"). That the elimination of "disadvantage" is one of the program's objectives is an inference that finds support in the agency's own interpretation of the statute. See U. S. Dept. of Commerce, Economic Development Administration, EDA Minority Business Enterprise Technical Bulletin (Additional Assistance and Information Available to Grantees and Their Contractors In Meeting The 10% MBE Requirement) 9-10 (1977) (Technical Bulletin) ("a [minority] subcontractor's price should not be considered unreasonable if he is merely trying to cover his costs because the price results from disadvantage which affects the MBE's costs of doing business or results from discrimination " (emphasis added)).
11
For instance, in 1978, 83.4% of persons over the age of 25 who had not completed high school were "white," see U. S. Dept. of Commerce Bureau of the Census, Statistical Abstract of the United States 145 (1979), and in 1977, 79.0% of households with annual incomes of less than $5,000 were "white," see id., at 458.
12
Moreover, even a properly based judicial decree will be struck down if the scope of the remedy it provides is not carefully tailored to fit the nature and extent of the violation. See Dayton Board of Education v. Brinkman, 433 U.S. 406, 419-420, 97 S.Ct. 2766, 2775, 53 L.Ed.2d 851; Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069. Here, assuming that the MBE provision was intended solely as a remedy for past and present racial discrimination, it sweeps far too broadly. It directs every state and local government covered by the program to set aside 10% of its grant for minority business enterprises. Waivers from that requirement are permitted, but only where insufficient numbers of minority businesses capable of doing the work at nonexorbitant prices are located in the relevant contracting area. No waiver is provided for any governmental entity that can prove a history free of racial discrimination. Nor is any exemption permitted for nonminority contractors that are able to demonstrate that they have not engaged in racially discriminatory behavior. Finally, the statute makes no attempt to direct the aid it provides solely toward those minority contracting firms that arguably still suffer from the effects of past or present discrimination.
These are not the characteristics of a racially conscious remedial decree that is closely tailored to the evil to be corrected. In today's society, it constitutes far too gross an oversimplification to assume that every single Negro, Spanish-speaking citizen, Oriental, Indian, Eskimo, and Aleut potentially interested in construction contracting currently suffers from the effects of past or present racial discrimination. Since the MBE set-aside must be viewed as resting upon such an assumption, it necessarily paints with too broad a brush. Except to make whole the identified victims of racial discrimination, the guarantee of equal protection prohibits the government from taking detrimental action against innocent people on the basis of the sins of others of their own race.
13
The Framers of our Constitution lived at a time when the Old World still operated in the shadow of ancient feudal traditions. As products of the Age of Enlightenment, they set out to establish a society that recognized no distinctions among white men on account of their birth. See U.S. Const., Art. I, § 9, cl. 8 ("No Title of Nobility shall be granted by the United States"). The words Thomas Jefferson wrote in 1776 in the Declaration of Independence, however, contained the seeds of a far broader principle: "We hold these truths to be self-evident: that all men are created equal. . . ."
14
See Technical Bulletin, supra n. 10, at 1. Cf.: Ga.Code § 53-312 (1937); Tex.Penal Code, Art. 493 (Vernon 1938).
15
"Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example." Olmstead v. United States, 277 U.S. 438, 485, 48 S.Ct. 564, 575, 72 L.Ed. 944 (Brandeis, J., dissenting).
1
"Such pure discrimination is most certainly not a 'legitimate purpose' for our Federal Government, which should be especially sensitive to discrimination on grounds of birth. 'Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.' Hirabayashi v. United States, 320 U.S. 81, 100 [, 63 S.Ct. 1375, 1385, 87 L.Ed. 1774]. From its inception, the Federal Government has been directed to treat all its citizens as having been 'created equal' in the eyes of the law. The Declaration of Independence states:
" 'We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.'
"And the rationale behind the prohibition against the grant of any title of nobility by the United States, see U.S. Const., Art. I, § 9, cl. 8, equally would prohibit the United States from attaching any badge of ignobility to a citizen at birth." Mathews v. Lucas, 427 U.S. 495, 520-521, n. 3, 96 S.Ct. 2755, 2769, 49 L.Ed.2d 651 (STEVENS, J., dissenting).
2
"The federal sovereign, like the States, must govern impartially. The concept of equal justice under law is served by the Fifth Amendment's guarantee of due process, as well as by the Equal Protection Clause of the Fourteenth Amendment." Hampton v. Mow Sun Wong, 426 U.S. 88, 100, 96 S.Ct. 1895, 1903, 48 L.Ed.2d 495.
See also Harris v. McRae, 448 U.S. 297, 349, 356-357, 100 S.Ct. 2671, 2701, 2712, 2715-2716, 65 L.Ed.2d 784 (STEVENS, J., dissenting); Craig v. Boren, 429 U.S. 190, 211, 97 S.Ct. 451, 464, 50 L.Ed.2d 397 (STEVENS, J., concurring).
3
"As a matter of principle and in view of my attitude toward the equal protection clause, I do not think differences of treatment under law should be approved on classification because of differences unrelated to the legislative purposes. The equal protection clause ceases to assure either equality or protection if is avoided by any conceivable difference that can be pointed out between those bound and those left free. This Court has often announced the principle that the differentiation must have an appropriate relation to the object of the legislation or ordinance." Railroad Express Agency, Inc., v. New York, 336 U.S. 106, 115, 69 S.Ct. 463, 468, 93 L.Ed. 533 (Jackson, J., concurring).
4
"Habit, rather than analysis, makes it seem acceptable and natural to distinguish between male and female, alien and citizens, legitimate and illegitimate; for too much of our history there was the same inertia in distinguishing between black and white. But that sort of stereotyped reaction may have no rational relationship—other than pure prejudicial discrimination to the stated purpose for which the classification is being made." Mathews v. Lucas, supra, at 520-521, 96 S.Ct., at 2769 (STEVENS, J., dissenting) (footnote omitted).
5
Indeed, the very attempt to define with precision a beneficiary's qualifying racial characteristics is repugnant to our constitutional ideals. The so-called guidelines developed by the Economic Development Administration, see the appendix to the opinion of THE CHIEF JUSTICE, ¶ 3, ante, at 494-495, are so general as to be fairly innocuous; as a consequence they are too vague to be useful. For example, it is unclear whether the firm described in n. 16, infra, would be eligible for the 10% set-aside. If the National Government is to make a serious effort to define racial classes by criteria that can be administered objectively, it must study precedents such as the First Regulation to the Reichs Citizenship Law of November 14, 1935, translated in 4 Nazi Conspiracy and Aggression, Document No. 1417-PS, pp. 8-9 (1946):
"On the basis of Article 3, Reichs Citizenship Law, of 15 Sept. 1935 (RGB1. I, page 146) the following is ordered:
* * * * *
"Article 5
"1. A Jew is anyone who descended from at least three grandparents who were racially full Jews. Article 2, par. 2, second sentence will apply.
"2. A Jew is also one who descended from two full Jewish parents, if: (a) he belonged to the Jewish religious community at the time this law was issued, or who joined the community later; (b) he was married to a Jewish person, at the time the law was issued, or married one subsequently; (c) he is the offspring from a marriage with a Jew, in the sense of Section 1, which was contracted after the Law for the protection of German blood and German honor became effective (RGB1. I, page 1146 of 15 Sept. 1935); (d) he is the offspring of an extramarital relationship, with a Jew, according to Section 1, and will be born out of wedlock after July 31, 1936."
6
In 1968, almost 10 years before the Act was passed, the Small Business Administration had developed a program to assist small business concerns owned or controlled by "socially or economically disadvantaged persons." The agency's description of persons eligible for such assistance stated that such "persons include, but are not limited to, black Americans, American Indians, Spanish-Americans, Oriental Americans, Eskimos and Aleuts . . . ." See opinion of THE CHIEF JUSTICE, ante, at 463-464. This may be the source of the definition of the class at issue in this case. See also ante, at 487-488, n. 73. But the SBA's class of socially or economically disadvantaged persons neither included all persons in the racial class nor excluded all nonmembers of the racial class. Race was used as no more than a factor in identifying the class of the disadvantaged. The difference between the statutory quota involved in this case and the SBA's 1968 description of those whose businesses were to be assisted under § 8(a) of the Small Business Act is thus at least as great as the difference between the University of California's racial quota and the Harvard admissions system that Mr. Justice POWELL regarded as critical in University of California Regents v. Bakke, 438 U.S. 265, 315-318, 98 S.Ct. 2733, 2761-2763, 57 L.Ed.2d 750.
7
It was noted that the value of the federal contracts awarded to minority business firms in prior years had amounted to less than 1% of the total; since the statutory set-aside of 10% may be satisfied by subcontracts to minority business enterprises, it is possible that compliance with the statute would not change the 1% figure.
The legislative history also revealed that minority business enterprises represented about 3 or 4% of all eligible firms; the history does not indicate, however, whether the 10% figure was intended to provide the existing firms with three times as much business as they could expect to receive on a random basis or to encourage members of the class to acquire or form new firms. An Economic Development Administration guideline arguably implies that new investments made in order to take advantage of the 10% set-aside would not be considered "bona fide." See appendix to the opinion of THE CHIEF JUSTICE, ante, at 492.
The 10% figure bears no special relationship to the relative size of the entire racial class, to any of the six subclasses, or to the population of the subclasses in the areas where they primarily reside. The Aleuts and the Eskimos, for example, respectively represent less than 1% and 7% of the population of Alaska, see The New Columbia Encyclopedia 47, 59, 891 (4th ed. 1975), while Spanish-speaking or Negro citizens represent a majority or almost a majority in a large number of urban areas.
8
Ironically, the Aleuts appear to have been ruthlessly exploited at some point in their history by Russian fur traders. See The New Columbia Encyclopedia, supra, at 59.
9
For a similar reason, the discrimination against males condemned in Califano v. Goldfarb, 430 U.S. 199, 97 S.Ct. 1021, 51 L.Ed.2d 270, could not be justified as a remedy for past discrimination against females. That case involved a statutory provision which relieved widows from the obligation of proving dependency on their deceased spouses in order to obtain benefits, but did not similarly relieve widowers.
"The widows who benefit from the disparate treatment are those who were sufficiently successful in the job market to become nondependent on their husbands. Such a widow is the least likely to need special benefits. The widow most in need is the one who is 'suddenly forced into a job market with which she is unfamiliar, and in which, because of her former economic dependency, she will have fewer skills to offer.' [Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189] 416 U.S., at 354, 94 S.Ct., at 1737. To accept the Kahn justification we must presume that Congress deliberately gave a special benefit to those females least likely to have been victims of the historic discrimination discussed in Kahn." Id., at 221, 97 S.Ct., at 1034 (STEVENS, J., concurring in judgment).
10
"The statute with the most comprehensive coverage is Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq., which broadly prohibits discrimination on the basis of race, color, or national origin in any program or activity receiving federal financial assistance. Since the passage of Title VI, many other specific federal grant statutes have contained similar prohibitions against discrimination in particular funded activities. See, e. g., State and Local Fiscal Assistance Amendments of 1976, 31 U.S.C. 1242; Energy Conservation and Production Act, 42 U.S.C. 6870; Housing and Community Development Act of 1974, 42 U.S.C. 5309; Comprehensive Employment and Training Act of 1973, 29 U.S.C. 991." Brief for Secretary of Commerce 21, n. 7.
11
Although the plain language of the statute appears to include such firms, as I have already noted, n. 7, supra, the EDA guidelines may consider such newly formed firms ineligible for the statutory set-aside.
12
See University of California Regents v. Bakke, 438 U.S., at 418-421, 98 S.Ct., at 2813-2815 (opinion of STEVENS, J.). See also § 207(d) of the Public Works Employment Act of 1976, 90 Stat. 1008, 42 U.S.C. § 6727(d).
13
I recognize that the EDA has issued a Technical Bulletin, relied on heavily by THE CHIEF JUSTICE, ante, at 469-472, which distinguishes between higher bids quoted by minority subcontractors which are attributable to the effects of disadvantage or discrimination and those which are not. That is, according to the Bulletin, if it is determined that a subcontractor's uncompetitive high price is not attributable to the effects of discrimination, a contractor may be entitled to relief from the 10% set-aside requirement. But even assuming that the Technical Bulletin accurately reflects Congress' intent in enacting the set-aside, it is not easy to envision how one could realistically demonstrate with any degree of precision, if at all, the extent to which a bid has been inflated by the effects of disadvantage or past discrimination. Consequently, while THE CHIEF JUSTICE describes the set-aside as a remedial measure, it plainly operates as a flat quota.
14
See THE CHIEF JUSTICE's opinion, ante, at 480.
15
"Nonofficeholders may be the beneficiaries of lucrative government contracts for highway construction, buildings, and supplies." 427 U.S., at 353, 96 S.Ct., at 2680.
16
An example of such a firm was disclosed in the record of a recent case involving a claimed preference for a firm controlled by Indian shareholders:
"Based on the facts that were developed in the District Court, . . . the Indian community in general does not benefit from the [Bureau of Indian Affairs'] interpretation of [the Buy Indian Act].
"The facts that were developed in the District Court show that the beneficiaries of this interpretation were the owners of Indian Nations Construction Company. The president of that company is a one-fourth degree Indian who is an administrative law judge for the Department of Health, Education, and Welfare by occupation. The vice president of that company was a one-quarter blood Choctaw who is a self-employed rancher and who states his net worth at just under a half million dollars. The treasurer and general manager of that corporation is a non-Indian and he states his net worth at $1.3 million." Tr. of Oral Arg. in Andrus v. Glover Construction Co., O.T. 1979, No. 79-48, pp. 26-27 [446 U.S. 608, 100 S.Ct. 1905, 64 L.Ed.2d 548].
17
See United Jewish Organizations v. Carey, 430 U.S. 144, 173-174, 97 S.Ct. 996, 1014, 51 L.Ed.2d 229 (BRENNAN, J., concurring in part): "[E]ven preferential treatment may act to stigmatize its recipient groups, for although intended to correct systemic or institutional inequities, such a policy may imply to some the recipients' inferiority and especial need for protection."
18
"The Equal Protection Clause commands the elimination of racial barriers, not their creation in order to satisfy our theory as to how society ought to be organized." DeFunis v. Odegaard, 416 U.S. 312, 342, 94 S.Ct. 1704, 1718, 40 L.Ed.2d 164 (Douglas, J., dissenting).
19
See University of California Regents v. Bakke, 438 U.S., at 298, 98 S.Ct., at 2753.
20
DeFunis v. Odegaard, supra, at 343, 94 S.Ct., at 1719 (dissenting opinion).
21
In his Bakke opinion supra, Mr. Justice POWELL stated:
"It is far too late to argue that the guarantee of equal protection to all persons permits the recognition of special wards entitled to a degree of protection greater than that accorded others." 438 U.S., at 295, 98 S.Ct. at 2751.
In support of that proposition he quoted Professor Bickel's comment on the self-contradiction of that argument:
" 'The lesson of the great decisions of the Supreme Court and the lesson of contemporary history have been the same for at least a generation: discrimination on the basis of race is illegal, immoral, unconstitutional, inherently wrong, and destructive of democratic society.' " Id., at 295, n. 35, 98 S.Ct., at 2751, n. 35.
22
This preferential set-aside specifically discriminates in favor of citizens of the United States. See supra, at 535.
23
"When the Federal Government asserts an overriding national interest as justification for a discriminatory rule which would violate the Equal Protection Clause if adopted by a State, due process requires that there be a legitimate basis for presuming that the rule was actually intended to serve that interest." Hampton v. Mow Sun Wong, 426 U.S. 88, 103, 96 S.Ct. 1895, 1905, 48 L.Ed.2d 495.
"It is perfectly clear that neither the Congress nor the President has ever required the Civil Service Commission to adopt the citizenship requirement as a condition of eligibility for employment in the federal civil service. On the other hand, in view of the fact that the policy has been in effect since the Commission was created in 1883, it is fair to infer that both the Legislature and the Executive have been aware of the policy and have acquiesced in it. In order to decide whether such acquiescence should give the Commission rule the same support as an express statutory or Presidential command, it is appropriate to review the extent to which the policy has been given consideration by Congress or the President, and the nature of the authority specifically delegated to the Commission." Id., at 105, 96 S.Ct., at 1906.
24
See Linde, Due Process of Lawmaking, 55 Neb.L.Rev. 197, 255 (1976):
"For the last few years have reawakened our appreciation of the primacy of process over product in a free society, the knowledge that no ends can be better than the means of their achievement. 'The highest morality is almost always the morality of process,' Professor Bickel wrote about Watergate a few months before his untimely death. If this republic is remembered in the distant history of law, it is likely to be for its enduring adherence to legitimate institutions and processes, not for its perfection of unique principles of justice and certainly not for the rationality of its laws. This recognition now may well take our attention beyond the processes of adjudication and of executive government to a new concern with the due process of lawmaking." (Footnote omitted.)
25
The only reference to any minority business enterprises in the Senate Report was a suggestion that Indians had been receiving too great a share of the public contracts. The Report stated:
"Some concern was expressed that Indians—with exceptionally high structural unemployment levels—were awarded projects at a per capita value far in excess of non-Indian communities." S.Rep.No.95-38, p. 3 (1977).
The Court quotes three paragraphs from a lengthy Report issued by the House Committee on Small Business in 1977, ante, at 465-466, implying that the contents of that Report were considered by Congress when it enacted the 10% minority set-aside. But that Report was not mentioned by anyone during the very brief discussion of the set-aside amendment. When one considers the vast quantity of written material turned out by the dozens of congressional committees and subcommittees these days, it is unrealistic to assume that a significant number of legislators read, or even were aware of, that Report. Even if they did, the Report does not contain an explanation of this 10% set-aside for six racial subclasses.
Indeed, the broad racial classification in this Act is totally unexplained. Although the legislative history discussed by THE CHIEF JUSTICE and by Mr. Justice POWELL explains why Negro citizens are included within the preferred class, there is absolutely no discussion of why Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts were also included. See n. 6, supra.
26
"It is not a new thought that 'to guarantee the democratic legitimacy of political decisions by establishing essential rules for the political process' is the central function of judicial review, as Dean Rostow and Professor Strong, among others, have argued." Linde, supra, 55 Neb.L.Rev., at 251.
27
See Sandalow, Judicial Protection of Minorities, 75 Mich.L.Rev. 1162, 1188 (1977):
"[I]f governmental action trenches upon values that may reasonably be regarded as fundamental, that action should be the product of a deliberate and broadly based political judgment. The stronger the argument that governmental action does encroach upon such values, the greater the need to assure that it is the product of a process that is entitled to speak for the society. Legislation that has failed to engage the attention of Congress, like the decisions of subordinate governmental institutions, does not meet that test, for it is likely to be the product of partial political pressures that are not broadly reflective of the society as a whole."
28
"Fear of legislative resentment at judicial interference is not borne out by experience where procedural review exists, any more than it was after the Supreme Court told Congress that it had used faulty procedure in unseating Representative Adam Clayton Powell. It is far more cause for resentment to invalidate the substance of a policy that the politically accountable branches and their constituents support than to invalidate a lawmaking procedure that can be repeated correctly, yet we take substantive judicial review for granted. Strikingly, the reverse view of propriety prevails in a number of nations where courts have never been empowered to set aside policies legitimately enacted into law but do have power to test the process of legitimate enactment." Linde, supra, 55 Neb.L.Rev., at 243 (footnotes omitted).
29
The conclusion to THE CHIEF JUSTICE's opinion states:
"Any preference based on racial or ethnic criteria must necessarily receive a most searching examination to make sure that it does not conflict with constitutional guarantees." Ante, at 491 (emphasis added).
I agree with this statement but it seems to me that due process requires that the "most searching examination" be conducted in the first instance by Congress rather than by a federal court.
30
For example, why were these six racial classifications, and no others, included in the preferred class? Why are aliens excluded from the preference although they are not otherwise ineligible for public contracts? What percentage of Oriental blood or what degree of Spanish-speaking skill is required for membership in the preferred class? How does the legacy of slavery and the history of discrimination against the descendants of its victims support a preference for Spanish-speaking citizens who may be directly competing with black citizens in some overpopulated communities? Why is a preference given only to owners of business enterprises and why is that preference unaccompanied by any requirement concerning the employment of disadvantaged persons? Is the preference limited to a subclass of persons who can prove that they are subject to a special disability caused by past discrimination, as the Court's opinion indicates? Or is every member of the racial class entitled to a preference as the statutory language seems plainly to indicate? Are businesses formed just to take advantage of the preference eligible?
31
"Of course, a general rule may not define the benefited class by reference to a distinction which irrationally differentiates between identically situated persons. Differences in race, religion, or political affiliation could not rationally justify a difference in eligibility for social security benefits, for such differences are totally irrelevant to the question whether one person is economically dependent on another. But a distinction between married persons and unmarried persons is of a different character." Califano v. Jobst, 434 U.S. 47, 53, 98 S.Ct. 95, 99, 54 L.Ed.2d 228.
"If there is no group characteristic that explains the discrimination, one can only conclude that it is without any justification that has not already been rejected by the Court." Foley v. Connelie, 435 U.S. 291, 312, 98 S.Ct. 1067, 1079, 55 L.Ed.2d 287 (STEVENS, J., dissenting).
| 12
|
448 U.S. 725
100 S.Ct. 2905
65 L.Ed.2d 1086
William Jack HAMMETTv.State of TEXAS.
No. 79-5050.
July 2, 1980.
PER CURIAM.
1
William Jack Hammett, the petitioner in this case, has been convicted of murder and sentenced to death. The conviction and sentence were affirmed by the Texas Court of Criminal Appeals, 578 S.W.2d 699 (1979). The petitioner states, and his attorney does not deny, that he informed his counsel that he did not wish to pursue any further appeals in his case. Nevertheless, counsel filed a petition requesting review by this Court.
2
Petitioner now moves for dismissal of the petition, stating under oath that he "made this decision voluntarily and with full knowledge of the consequences, only after due consideration of all facts and circumstances regarding the case." Affidavit of June 3, 1980. Under Rule 60 of the Rules of the Supreme Court (1970), a petitioner or appellant may withdraw a petition or appeal. In response to this motion, petitioner's counsel does not question petitioner's competence. The State of Texas does not oppose petitioner's motion. In the absence of any issue as to petitioner's competence to withdraw the petition filed against his will, there is no basis under Rule 60 for denying this motion. See Gilmore v. Utah, 429 U.S. 1012, 1014, 97 S.Ct. 436, 437, 50 L.Ed.2d 632 (1976) (BURGER, C. J., concurring). Moreover, withdrawal of the petition will not foreclose an appropriate application for collateral relief. Accordingly, the motion to withdraw the petition is granted.
3
It is so ordered.
4
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.
5
The Court today permits petitioner, a prisoner acting pro se, to take the first step towards enforcement of his death sentence by withdrawing the petition for writ of certiorari filed on his behalf by his appointed counsel. I continue to adhere to my view that the death penalty is unconstitutional under all circumstances, and accordingly I dissent. In addition, however, the present decision is indefensible even under the more restrictive view of the Eighth Amendment taken by a majority of my Brethren.
6
The Court takes its action today despite the fact that we have already granted certiorari in a similar case to determine whether the Constitution is violated by the manner in which the State of Texas acquires psychiatric testimony introduced at the punishment phase of the trial to obtain a jury verdict setting the punishment at death. Estelle v. Smith, 445 U.S. 926, 100 S.Ct. 1311, 63 L.Ed.2d 758 (1980). The United States Court of Appeals for the Fifth Circuit has already held that the established pattern of conduct by which the State of Texas obtains the testimony necessary to send a defendant to his death violates the Fifth, Sixth, and Fourteenth Amendments. Smith v. Estelle, 602 F.2d 694 (1979). Thus the Court today acquiesces in the petitioner's apparent decision to be executed despite the fact that we may hold next Term that the death penalty cannot be enforced in cases such as this one. I do not believe that a defendant may by his consent permit a State to impose a punishment forbidden by the Constitution; "the procedure the Court approves today amounts to nothing less than state-administered suicide." Lenhard v. Wolff, 444 U.S. 807, 815, 100 S.Ct. 29, 62 L.Ed.2d 20 (1979) (MARSHALL, J., dissenting).
7
* A few facts about this case must be briefly stated in order to place the present motion in its proper context. Petitioner was originally tried for capital murder in the spring of 1977. Although the jury found the defendant guilty of capital murder, a mistrial was declared after the jury was unable to agree on the punishment during the sentencing phase of the trial. See 578 S.W.2d 699, 706 (Tex.Cr.App.1979). The second trial was held in the fall of 1977, and petitioner was again found guilty of capital murder. The jury answered the requisite questions in the affirmative, and the punishment was therefore assessed at death.1
8
The Texas Court of Criminal Appeals initially reversed the judgment of the trial court. See App. to Pet. for Cert., Exhibit A. The Court of Criminal Appeals concluded that it was error to deny petitioner's motion for appointment of a psychologist to examine petitioner for the purpose of testifying on his behalf concerning the probability that petitioner would commit future criminal acts of violence.2 On the State's motion for rehearing, however, that opinion was withdrawn and the court affirmed the conviction and sentence. 578 S.W.2d 699 (1979). The court concluded that petitioner's motion for appointment of a defense psychologist had been made too late.
9
The central issue raised by the petition for certiorari in this case concerns the use of psychiatric testimony during the punishment stage of a Texas capital case.3 Prior to the first trial, the court appointed Dr. Bill W. Henry, a psychiatrist, to examine petitioner to determine his mental competency to stand trial. Dr. Henry filed two written reports with the court, based on two interviews with petitioner, concluding that the defendant was competent to stand trial. Counsel apparently was not present at either interview. Cf. id., at 705. No issue of competency was raised during the guilt phase of either of petitioner's trials.
10
At the punishment stage of each trial, however, the State was permitted to call Dr. Henry as an expert witness. The State examined Dr. Henry on whether there was a probability that the petitioner would commit criminal acts of violence in the future that would constitute a continuing threat to society. That issue is, of course, one of the statutorily required questions which must be presented to the jury in the sentencing phase of a Texas capital case; if the jury finds beyond a reasonable doubt that such a probability of future violent crime exists, in addition to the other statutorily mandated findings, then the death penalty must be imposed.4 Based on the pretrial psychiatric examinations which were supposedly limited to the question whether the petitioner was legally competent to stand trial, Dr. Henry testified that the defendant was a "person suffering of an antisocial personality," id., at 706, and that petitioner would probably commit criminal acts of violence in the future.
II
11
It has become clear that the scenario just described constitutes a customary pattern of conduct by the authorities in Texas capital cases. This is by no means the first time that a pretrial examination allegedly sought only to ascertain the defendant's competence to stand trial has been used as the basis for punishment-stage testimony by the court-appointed psychiatrist that the defendant has an antisocial personality and is likely to commit future violent crimes. The cases in the Texas Court of Criminal Appeals reflecting this pattern of official conduct are legion. See, e. g., Wilder v. State, 583 S.W.2d 349 (1979), cert. pending, No. 79-5002; Armour v. State, 583 S.W.2d 349 (1979), cert. pending, No. 79-5007; Bell v. State, 582 S.W.2d 800 (1979), cert. pending No. 79-5199; Garcia v. State, 581 S.W.2d 168 (1979), cert. pending, No. 79-5464; Woods v. State, 569 S.W.2d 901 (1978), cert. pending, No. 79-721; Livingston v. State, 542 S.W.2d 655 (1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2642, 53 L.Ed.2d 250 (1979); Gholson v. State, 542 S.W.2d 395 (1976), cert. denied, 432 U.S. 911, 97 S.Ct. 2960, 53 L.Ed.2d 1084 (1977); Smith v. State, 540 S.W.2d 693 (1976), cert. denied, 430 U.S. 922, 97 S.Ct. 1341, 51 L.Ed.2d 601 (1977), death penalty vacated, Smith v. Estelle, 445 F.Supp. 647 (N.D.Tex.1977), aff'd, 602 F.2d 694 (CA5 1979), cert. granted, 445 U.S. 926, 100 S.Ct. 1311, 63 L.Ed.2d 758 (1980); Hurd v. State, 513 S.W.2d 936 (1974); Armstrong v. State, 502 S.W.2d 731 (1973). The use at the punishment stage of testimony by the psychiatrist appointed by the court to establish the defendant's competency to stand trial has the official sanction of the Texas Court of Criminal Appeals. See Armour v. State, supra; Livingston v. State, supra; Gholson v. State, supra.
12
The United States Court of Appeals for the Fifth Circuit has concluded that this practice violates the Fifth and Sixth Amendments as made applicable to the States through the Due Process Clause of the Fourteenth Amendment. See Smith v. Estelle, 602 F.2d 694 (1979), aff'g 445 F.Supp. 647 (N.D.Tex.1977). The Court of Appeals held that "a defendant may not be compelled to speak to a psychiatrist who can use his statements against him at the sentencing phase of a capital trial," 602 F.2d, at 708, that the defendant must be warned that he has the right to remain silent, and that if a defendant indicates that he wishes to remain silent he may not be questioned by the psychiatrist to determine future dangerousness, ibid.5 That court also found that whether to submit to a pretrial psychiatric examination in a Texas capital case "is a vitally important decision, literally a life or death matter," ibid. The examination is therefore a critical stage in the prosecution, and the defendant is entitled to the assistance of counsel under the Sixth Amendment. Id., at 708-709.
13
Because of the seriousness of the issues raised and the conflict between the Texas Court of Criminal Appeals and the United States Court of Appeals for the Fifth Circuit, we have already granted certiorari in Estelle v. Smith, 445 U.S. 926, 100 S.Ct. 1311, 63 L.Ed.2d 758 (1980). Should this Court agree with the federal court, the death penalty imposed on petitioner in the instant case would have to be reconsidered because of the manner in which the crucial psychiatric testimony against him was obtained.
14
Nevertheless, the Court today permits petitioner, acting pro se, to withdraw his petition for certiorari, thereby setting in motion the steps by which the defendant may be put to death by the State of Texas.6 It appears that petitioner does not intend to prosecute any challenge to his conviction and sentence;7 petitioner asks this Court to permit him to withdraw his petition for certiorari "so that the [death] sentence may be carried out." Motion to Dismiss 2. Petitioner in effect seeks to waive a challenge to his execution,8 despite the fact that the issue of the constitutionality of the practice by which he was sentenced to die is presently pending before this Court. In my judgment, there can be no such waiver. See Lenhard v. Wolff, 444 U.S., at 810, 100 S.Ct., at 30 (MARSHALL, J., dissenting); Gilmore v. Utah, 429 U.S. 1012, 1019, 97 S.Ct. 436, 440, 50 L.Ed.2d 632 (1976) (MARSHALL, J., dissenting).
15
In Gilmore, Mr. Justice WHITE, joined by Mr. Justice BRENNAN and myself, asserted that "the consent of a convicted defendant in a criminal case does not privilege a State to impose a punishment otherwise forbidden by the Eighth Amendment." Id., at 1018, 97 S.Ct., at 439 (dissenting opinion). In a separate dissenting opinion, I expressed the view that "the Eighth Amendment not only protects the rights of individuals not to be victims of cruel and unusual punishment, but that it also expresses a fundamental interest of society in ensuring that state authority is not used to administer barbaric punishments." Id., at 1019, 97 S.Ct., at 440 (MARSHALL, J., dissenting). "Society is not powerless . . . to resist a defendant's effort to prompt the exercise of capital force," Lenhard v. Wolff, supra, 444 U.S., at 812, 100 S.Ct., at 31 (MARSHALL, J., dissenting). The defendant has no right to "state-administered suicide." 444 U.S., at 815, 100 S.Ct., at 33.
16
These observations have no less force because here the imposition of the death penalty under these circumstances may be held by a majority of my Brethren to violate the Fifth and Sixth Amendments rather than the Eighth Amendment. Indeed, these views have added force in this case because the procedure employed by the State has been successfully challenged on constitutional grounds in federal court, and the issue of the constitutionality of the manner in which the State obtains the psychiatric testimony necessary to convince the jury that the defendant will probably commit acts of criminal violence in the future is presently pending before this Court. Cf. Gilmore v. Utah, 429 U.S., at 1018, 97 S.Ct., at 439 (WHITE, J., dissenting); id., at 1019, 97 S.Ct., at 440 (MARSHALL, J., dissenting); Lenhard v. Wolff, supra, 807 U.S., at 811-812, n.3, 100 S.Ct., at 31 (MARSHALL, J., dissenting).
17
If this Court agrees with the Court of Appeals in Estelle v. Smith, then the death penalty imposed on petitioner in the present case must be reconsidered. Under these circumstances I cannot accept the Court's decision to permit the petitioner to withdraw his petition for certiorari and thereby run the risk that the State of Texas will take a life which it is constitutionally prohibited from taking. I dissent.
18
Mr. Justice BLACKMUN, dissenting.
19
I would not grant this pro se application summarily, but would set it for plenary consideration upon briefs and arguments submitted by petitioner's appointed counsel and the State. See Gilmore v. Utah, 429 U.S. 1012, 1020, 97 S.Ct. 436, 440, 50 L.Ed.2d 632 (1976) (dissenting opinion).
1
By state statute the jury in a capital case in Texas must decide three questions:
"(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;
"(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and
"(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased." Tex.Code Crim.Proc.Ann., Art. 37.071(b) (Vernon Supp. 1979). An affirmative answer to each question must be unanimous, and if all three questions are answered affirmatively then the death penalty "shall" be imposed. Tex.Code Crim.Proc.Ann., Arts. 37.071(d)(1) and (e) (Vernon Supp. 1979).
2
The Texas Court of Criminal Appeals reasoned:
"Those who face an accusation of being likely to commit criminal acts of violence that will constitute a continuing threat to society face a peculiarly unique charge with ominous consequences. In this jurisdiction the use of the expert opinion testimony of those in the behavioral sciences has frequently been resorted to by the prosecution, and this Court has consistently approved such use, often basing the sufficiency of the evidence to support a death-producing verdict on that evidence. . . . Given the role such evidence has come to play, the unique character of the issue, the extreme consequences that rest on resolution of the issue, and the tremendous diversity of opinions on such matters within the field of experts that may qualify to give such evidence on the issue, it cannot be denied that for accused persons facing the possibility of death, expert behavioral witnesses for the defense are necessities, not luxuries." App. to Pet. for Cert., Exhibit A, pp. 3-4.
See also 578 S.W.2d 699, 720-721 (Tex.Cr.App.1979) (Odom, J., concurring).
3
In the Texas Court of Criminal Appeals petitioner argued, inter alia, that "the trial court erred in allowing a psychiatrist who was appointed to examine the [defendant] with respect to his competency to stand trial to testify at the punishment phase of the trial." Id., at 705. A similar argument is made in the petition for certiorari. See, e. g., Pet. for Cert. 6-7: "[T]he circumstances surrounding the State's presentation of Dr. Henry's testimony at the punishment stage of trial was grossly unfair and the defendant was thus denied due process of law," citing Smith v. Estelle, 445 F.Supp. 647 (N.D.Tex.1977). See also Pet. for Cert. 14-16, 17-18.
4
See n. 1, supra.
5
In the instant case there is evidence that in fact petitioner did not want to cooperate with Dr. Henry during the interview. See 578 S.W.2d, at 705; Brief in Opposition 4.
The State's response to the petition for certiorari alleges that Dr. Henry informed petitioner of his right not to participate and that the psychiatrist terminated the first interview after petitioner chose not to continue. Ibid. Even if that was the case, it does not necessarily mean that the procedure used in this case complies with the constitutional requirements discussed by the Court of Appeals in Smith v. Estelle and, of course, when this Court reviews that decision we may conclude that the Court of Appeals took an overly narrow view of the constitutional requirements. If this Court affirms the judgment of the Court of Appeals in Estelle v. Smith, cert. granted, 445 U.S. 926, 100 S.Ct. 1311, 63 L.Ed.2d 758 (1980), at the very least the procedure by which Dr. Henry obtained the information from petitioner from which the psychiatrist derived his testimony would have to be closely scrutinized to see if it satisfied constitutional demands.
6
According to the State of Texas, if the petition for writ of certiorari is dismissed by this Court, the mandate would then issue from the Texas Court of Criminal Appeals to the trial court. Petitioner would then be formally sentenced to be executed on a date 30 days or more from the date of sentencing. Response to Motion to Dismiss 3. See also Tex.Code Crim.Proc.Ann., Art. 43.14 (Vernon 1979).
7
Petitioner states that "I no longer wish to appeal (or challenge) my conviction in this case." Motion to Dismiss 1. He also asks this Court "to set aside this writ and issue an order so stating to the state court so that the sentence may be carried out." Id., at 2.
8
It is questionable whether petitioner fully understands what he is seeking to waive. In his papers petitioner "moves the Court to dismiss the Appal [sic] or Habeas Corpus Application," id., at 1. He does not appear to know whether his appointed attorney filed a petition for certiorari, an appeal, or a habeas corpus application. Ibid. It is certainly possible that petitioner has reached his present decision without full knowledge or understanding of the Court of Appeals decision in Smith v. Estelle, our grant of certiorari to review that decision, or the effect that Estelle v. Smith may have on his sentence of death. Cf. Gilmore v. Utah, 429 U.S. 1012, 1019, 97 S.Ct. 436, 440, 50 L.Ed.2d 632 (1976) (MARSHALL, J., dissenting).
| 01
|
449 U.S. 1
101 S.Ct. 42
66 L.Ed.2d 1
State of COLORADOv.Peter Rodney BANNISTER.
No. 79-1901.
Oct. 20, 1980.
PER CURIAM.
1
In the early morning of October 15, 1979, an officer of the Colorado Springs Police Department observed a blue 1967 Pontiac GTO automobile moving along a road at a speed above the legal limit. Before the officer could pursue the vehicle, it disappeared from his sight. Shortly thereafter, the officer heard a police radio dispatch reporting that a theft of motor vehicle parts had occurred in the area he was patrolling in his car. The radio dispatch announced that a number of chrome lug nuts were among the items stolen, and provided a description of two suspects. A few minutes after hearing the report, the officer spotted the same automobile he had seen earlier, still speeding. He saw the car enter a service station, and followed it there for the purpose of issuing a traffic citation to its driver.
2
As the officer approached the car, both of its occupants, including the respondent, stepped out of it. A conversation between the officer and the respondent ensued, just outside the closed front door of the automobile. At this time, the officer observed chrome lug nuts in an open glove compartment located between the vehicle's front bucket seats, as well as two lug wrenches on the floorboard of the back seat. These items were in plain view, illuminated by the lights of the service station. Recognizing that the respondent and his companion met the description of those suspected of stealing motor vehicle parts, the officer immediately arrested both of them. He then seized the lug nuts and wrenches.
3
Before the date scheduled for his trial on charges of stealing motor vehicle parts, the respondent moved to suppress the items that the arresting officer had seized. The trial court granted the motion, and its decision was affirmed by the Supreme Court of Colorado.1 The State subsequently filed a petition for certiorari in this Court.
4
The provisions of the Fourth Amendment are enforceable against the States through the Fourteenth, and it is axiomatic that "searches 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." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). One of these exceptions, recognized at least since Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), exists when an automobile or other vehicle is stopped and the police have probable cause to believe it contains evidence of a crime. See Arkansas v. Sanders, 442 U.S. 753, 760, 99 S.Ct. 2586, 2591, 61 L.Ed.2d 235 (1979). Carroll upheld the legality of a search that was conducted immediately after a vehicle was stopped. Since Carroll, warrantless searches have been found permissible even when a car was searched after being seized and moved to a police station. Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). In each of these latter cases, the search was constitutionally permissible because an immediate, on-the-scene search would have been permissible. Texas v. White, supra, 423 U.S., at 67, 96 S.Ct., at 305; Chambers v. Maroney, supra, 399 U.S., at 52, 90 S.Ct., at 1981.
5
At issue in the present case is a seizure that occurred on the scene shortly after a speeding car was stopped. Thus, if there was probable cause "that the contents of the automobile offend against the law," Carroll, supra, 267 U.S., at 159, 45 S.Ct., at 287 the warrantless seizure was permissible.2
6
Probable cause in this case is self-evident. Indeed, the Supreme Court of Colorado acknowledged that there was probable cause, but mistakenly concluded that a warrant was required to open the car door and seize the items within.
7
The officer could not stop the vehicle the first time he detected it speeding, but he accosted it at his next opportunity, when it entered the service station. His subsequent approach to the side of the automobile in order to issue a traffic citation to its driver was entirely legitimate.3 Standing by the front door of the car, the officer happened to see items matching the description of some of those recently stolen in the vicinity, and observed that the occupants of the car met the description of those suspected of the crime. These circumstances provided not only probable cause to arrest, but also under Carroll and Chambers, probable cause to seize the incriminating items without a warrant.4
8
The petition for certiorari and the respondent's motion for leave to proceed in forma pauperis are granted, the judgment of the Supreme Court of Colorado is set aside, and the case is remanded to that court for proceedings not inconsistent with this opinion.
9
It is so ordered.
1
(Colo.) 607 P.2d 987.
2
Another factor that contributes to the justification for the absence of a warrant in such a situation is that "the circumstances that furnish probable cause to search a particular auto for particular articles are most often unforeseeable." Chambers, supra, 399 U.S., at 50-51, 90 S.Ct., at 1981. See also Cardwell v. Lewis, 417 U.S. 583, 595, 94 S.Ct. 2464, 2471, 41 L.Ed.2d 325 (1974). This factor applies with particular force in this case. As the reason for the stop was wholly unconnected with the reason for the subsequent seizure, it would be especially unreasonable to require a detour to a magistrate before the unanticipated evidence could be lawfully seized.
3
There can be no question that the stopping of a vehicle and the detention of its occupants constitute a "seizure" within the meaning of the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 653 (1979); United States v. Martinez-Fuerte, 428 U.S. 543, 556-558, 96 S.Ct. 3074, 3082-3083, 49 L.Ed.2d 1116 (1976); United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975).
4
The respondent does not dispute that the items seized were illuminated by the lights of the service station, nor that they were in the plain view of the officer as he spoke to him beside the front door of the car. There was no evidence whatsoever that the officer's presence to issue a traffic citation was a pretext to confirm any other previous suspicion about the occupants.
| 01
|
449 U.S. 5
101 S.Ct. 173
66 L.Ed.2d 163
Russell B. HUGHES, Jr.v.Charles J. ROWE et al.
No. 79-6000.
Nov. 10, 1980.
[Syllabus from pages 5-6 intentionally omitted]
PER CURIAM.
1
Petitioner, an inmate of the Illinois State Penitentiary, asks us to review an order dismissing his civil rights action against the respondent corrections officers and directing him to pay counsel fees of $400 for services rendered by the Attorney General of Illinois in representing the respondents in that action.
2
After granting a motion to dismiss the complaint for failure to state a constitutional violation, the District Court ordered petitioner to show cause why fees of $400 should not be taxed against him under 42 U.S.C. § 1988. Because he did not respond to that order, the fee award was entered.1 A motion to reconsider was later denied on the ground that petitioner's suit was "meritless."2 The Court of Appeals disposed of the novel question presented by petitioner by affirming the fee award in an unpublished order. 7 Cir., 605 F.2d 559.3 We now grant the motion for leave to proceed in forma pauperis and the petition for certiorari and reverse the judgment of the Court of Appeals.
3
* On September 20, 1977, petitioner was charged with a violation of prison regulations and placed in segregation. At a disciplinary hearing two days later, petitioner admitted that he and two other inmates had consumed a homemade alcoholic beverage; his punishment was confinement to segregation for 10 days,4 demotion to C-grade, and loss of 30 days' statutory good time.
4
Petitioner exhausted his administrative remedies and then filed a complaint under 42 U.S.C. § 1983 in the United States District Court for the Northern District of Illinois on the form used by prisoners who are not represented by counsel. The facts stated on the form raised two federal questions of arguable merit: (1) the decision to place petitioner in a segregation cell on September 20, 1977, was not preceded by a hearing and was not justified by any emergency or other necessity; (2) two of the officers who conducted the disciplinary hearing after petitioner had been in segregation for two days were biased against him.5 Respondents, represented by the State Attorney General's Office, moved to dismiss the complaint, but filed no affidavits denying or explaining the facts alleged by petitioner. After allowing petitioner to file various amendments and additional papers, the District Court dismissed the complaint without taking any evidence. Thereafter the fee award was made.
5
In its order affirming the action of the District Court, the Court of Appeals correctly noted that the Due Process Clause of the Fourteenth Amendment affords a prisoner certain minimum procedural safeguards before disciplinary action may be taken against him.6 Because the record did not reveal a violation of those safeguards at the hearing on September 22, the Court of Appeals concluded that the complaint had been properly dismissed. However, the Court of Appeals seems to have overlooked the fact, clearly stated in petitioner's brief on appeal, that the disciplinary hearing did not take place until two days after petitioner was placed in segregation on September 20. Nothing in the papers filed on behalf of the respondents purports to justify or explain the segregation of petitioner for two days in advance of the disciplinary hearing.
II
6
Petitioner's complaint, like most prisoner complaints filed in the Northern District of Illinois, was not prepared by counsel. It is settled law that the allegations of such a complaint, "however inartfully pleaded" are held "to less stringent standards than formal pleadings drafted by lawyers. . .." Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972). See also Maclin v. Paulson, 627 F.2d 83, 86 (CA7 1980); French v. Heyne, 547 F.2d 994, 996 (CA7 1976). Such a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Haines, supra, at 520-521, 92 S.Ct., at 595, 596.7 And, of course, the allegations of the complaint are generally taken as true for purposes of a motion to dismiss. Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972).
7
Applying these principles to petitioner's amended complaint, we conclude that all but one of its allegations were properly dismissed for failure to state a claim. Petitioner's allegations of bias and procedural irregularities in the September 22 hearing, unequal treatment, and cruel and unusual punishment, even when liberally construed, were insufficient to require any further proceedings in the District Court. We therefore affirm the dismissal of these claims.
8
Petitioner's allegation that he had been confined unnecessarily to segregation is of a different character. It can be construed as a contention that his confinement to segregation violated due process because it took place without a prior hearing. It is clear from the facts alleged in the amended complaint that petitioner was confined in segregation for two days before a hearing was held. Indeed, petitioner expressly stated this claim in procedural due process terms in his response to the defendants' motion to dismiss the amended complaint.8
9
Segregation of a prisoner without a prior hearing may violate due process if the postponement of procedural protections is not justified by apprehended emergency conditions. See Hayes v. Walker, 555 F.2d 625, 633 (CA7), cert. denied, 434 U.S. 959, 98 S.Ct. 491, 54 L.Ed.2d 320 (1977). The amended complaint alleged that segregation was unnecessary in petitioner's case because his offense did not involve violence and he did not present a "clear and present danger." There is no suggestion in the record that immediate segregation was necessitated by emergency conditions. Respondents did make the unsworn assertion that petitioner was placed in segregation on "temporary investigative status,"9 but the significance of this designation is unclear and it does not, without more, dispose of petitioner's procedural due process claim. The District Court, in dismissing the amended complaint, merely concluded that temporary segregation pending investigation was not actionable.10 The court cited an Illinois Department of Corrections Administrative Regulation which authorized segregation of prisoners pending investigation of disciplinary matters, where required "in the interest of institutional security and safety."11 In the absence of any showing that concern for institutional security and safety was the basis for immediate segregation of petitioner without a prior hearing, this regulation does not justify dismissal of petitioner's suit for failure to state a claim.
10
Our discussion of this claim is not intended to express any view on its merits. We conclude merely that the amended complaint was adequate at least to require some response from respondents, by way of affidavit or otherwise, to petitioner's claim that he was unjustifiably placed in segregation without a prior hearing. Although petitioner's pleadings are prolix and lacking in stylistic precision, this is not a case like Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), in which a pro se litigant's detailed recitation of the facts reveals on its face the insufficiency of the complaint. We cannot say with assurance that petitioner can prove no set of facts in support of his claim entitling him to relief. Haines v. Kerner, 404 U.S., at 521, 92 S.Ct., at 596. Accordingly, the Court of Appeals should have reversed the dismissal of this claim and remanded for further proceedings.12
III
11
The award of attorney's fees entered against petitioner must be vacated.
12
In Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978), we held that the defendant in an action brought under Title VII of the Civil Rights Act of 1964 may recover attorney's fees from the plaintiff only if the District Court finds "that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." Id., at 421, 98 S.Ct., at 700. Although arguably a different standard might be applied in a civil rights action under 42 U.S.C. § 1983, we can perceive no reason for applying a less stringent standard. The plaintiff's action must be meritless in the sense that it is groundless or without foundation. The fact that a plaintiff may ultimately lose his case is not in itself a sufficient justification for the assessment of fees. As we stated in Christiansburg:
13
"To take the further step of assessing attorney's fees against plaintiffs simply because they do not finally prevail would substantially add to the risks inhering in most litigation and would undercut the efforts of Congress to promote the vigorous enforcement of the provisions of Title VII. Hence, a plaintiff should not be assessed his opponent's attorney's fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so." 434 U.S., at 422, 98 S.Ct., at 701.
14
No such finding supported the fee award in this case.
15
These limitations apply with special force in actions initiated by uncounseled prisoners. Faithful adherence to the principles of Haines v. Kerner dictates that attorney's fees should rarely be awarded against such plaintiffs. The fact that a prisoner's complaint, even when liberally construed, cannot survive a motion to dismiss does not, without more, entitle the defendant to attorney's fees. An unrepresented litigant should not be punished for his failure to recognize subtle factual or legal deficiencies in his claims. As the Court noted in Christiansburg, even if the law or the facts are somewhat questionable or unfavorable at the outset of litigation, a party may have an entirely reasonable ground for bringing suit. 434 U.S., at 422, 98 S.Ct., at 700.
16
Despite the lower court's conclusion to the contrary, the allegations of petitioner's amended complaint are definitely not meritless in the Christiansburg sense. Even those allegations that were properly dismissed for failure to state a claim deserved and received the careful consideration of both the District Court and the Court of Appeals.13 Allegations that, upon careful examination, prove legally insufficient to require a trial are not, for that reason alone, "groundless" or "without foundation" as required by Christiansburg.
17
The judgment of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.
18
It is so ordered.
19
THE CHIEF JUSTICE would grant the petition and set the case for oral argument.
20
Justice STEWART would affirm the judgment of the Court of Appeals insofar as it affirmed the District Court's dismissal of the petitioner's complaint. He substantially agrees, however, with what is said in Part III of the Court's per curiam opinion, and for those reasons would reverse the judgment insofar as it affirmed the award of attorney's fees entered against the petitioner.
21
Justice WHITE concurring in part and concurring in the result.
22
I agree with the result reached in Part II of the per curiam opinion. Under Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), a prior hearing was required for the particular disciplinary action involved here-segregation and loss of good time. But as Wolff makes clear, Fourteenth Amendment procedural protections were triggered only because under state law-here prison regulations-segregation and good-time reductions could be imposed only for serious disciplinary lapses and only after a prior hearing.1 Under these regulations, segregation prior to a hearing could occur only for reasons of prison security and safety.2 I agree that there have been no findings that warranted dispensing with the prior hearing.
23
It is well to point out, however, that although petitioner sought compensatory and punitive damages, as well as declaratory relief, he had a full hearing within 48 hours of his confinement, his guilt was properly established (indeed, he admitted his conduct as he had before), and the discipline imposed on him was found to be justified. Even if petitioner is successful in proving a due process deprivation, his damages would be limited to those flowing from postponement of a hearing for two days. Under Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978), it is likely that only nominal damages would be awardable.
24
I am in accord with Part III of the Court's opinion.
25
Justice REHNQUIST, dissenting.
26
In its effort to distill some vaguely tenable claim from petitioner's complaint, the Court ignores crucial admissions in the complaint itself which fatally undermine any claim of constitutional deprivation. As I read the Court opinion, it holds that the District Court erred in dismissing petitioner's complaint solely because the complaint can be construed to allege that petitioner was placed in segregation without a prior hearing, although he was given an adequate hearing before a review board 40 hours later. The Court recognizes that petitioner admitted before the review board that he violated prison regulations by consuming homemade alcohol, ante, at 7-8, but fails to recognize that he had also admitted his guilt at the time of the incident. In his amended complaint petitioner alleged:
27
"[I] was placed in segregation unnecessarily on September 20, 1977, because there was no violence involved, and I was not a 'clear and present' danger. Additionally, I had admitted to Captain C. D. Tuttle that I had been drinking." Amended Complaint 13.1
28
The complaint also reveals that petitioner has "a problem with alcohol." Id., at 14.2 In light of these admissions it is difficult to see what purpose the hearing which the Court rules may have been constitutionally required would have served. The hearing would not be held to determine if petitioner violated prison regulations; he admitted that he had when apprehended. Nor would the hearing be held to determine appropriate punishment. That hearing, before the review board, was held 40 hours later, and the Court concedes that no matter how liberally petitioner's complaint is construed it does not state any claim concerning the conduct of that hearing or the punishment. Ante, at 10. The sole purpose the hearing could have served would be to determine if petitioner should have been removed from the general prison population for the short period between the occurrence of the incident at 7:30 the night of September 20 and the review board hearing held before noon on September 22.
29
In light of the facts admitted by petitioner, however, it is clear that he cannot state a claim against the prison officials for not holding such a hearing. The reports of the conduct of which petitioner admitted being guilty described his condition as "tipsy, speech slurred" and stated that petitioner "had all the appearance of being drunk" and "appeared to be intoxicated." In his grievance filed on September 24 petitioner again admitted that he had gotten "drunk" the night of the 20th.3 Intoxicated inmates surely pose a serious threat to prison security and safety, and the placing of petitioner in temporary investigative status was authorized by a prison regulation providing for such action "in the interest of institutional security and safety." This Court has on several occasions stressed that " 'central to all other corrections goals is the institutional consideration of internal security within corrections facilities themselves.' " Bell v. Wolfish, 441 U.S. 520, 546-547, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979) (quoting Pell v. Procunier, 417 U.S. 817, 823, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974)). See Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119, 129, 97 S.Ct. 2532, 2539, 53 L.Ed.2d 629 (1977); Procunier v. Martinez, 416 U.S. 396, 412, 94 S.Ct. 1800, 1810, 40 L.Ed.2d 224 (1974). "Prison officials must be free to take appropriate action to ensure the safety of inmates and corrections personnel. . . ." Bell v. Wolfish, supra, 441 U.S., at 547, 99 S.Ct., at 1878. This Court has also repeatedly recognized that the judiciary, "ill-equipped" to deal with "complex and difficult" problems of running a prison, must accord the decisions of prison officials great deference. See, e. g., Jones v. North Carolina Prisoners' Labor Union, supra, 433 U.S., at 126, 97 S.Ct., at 2538; Procunier v. Martinez, supra, 416 U.S., at 405, 94 S.Ct., at 1807. This rule applies with its greatest force when prison officials act to preserve the central goal of institutional discipline. "Prison administrators . . . should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." Bell v. Wolfish, supra, 441 U.S., at 547, 99 S.Ct., at 1878. Against this well-established background, and with petitioner's admitted violation of prison regulations by consuming homemade alcohol, it is clear that the prison officials acted within their discretion in removing petitioner from the general prison population. Even the Court of Appeals authority relied upon by the Court recognized that claims such as the present one must be based on allegations of "bad faith" or "mere pretext." Hayes v. Walker, 555 F.2d 625, 633 (CA7 1977) (quoting La Batt v. Twomey, 513 F.2d 641, 647 (CA7 1975)). Because petitioner has admitted to being intoxicated, however, it is clear that he cannot claim the prison officials acted out of bad faith or on mere pretext. Their decision to remove him from the general prison population was "rationally related to the reasonable, indeed to the central, objectives of prison administration," Jones v. North Carolina Prisoners' Labor Union supra, 433 U.S., at 129, 97 S.Ct., at 2539.
30
Indeed, it is difficult to envision exactly how an intoxicated inmate would participate in any meaningful way in a hearing held immediately after the drinking incident. A strong argument could certainly be advanced that it would have been a violation of petitioner's rights to hold a hearing when he was, as he admitted, drunk.
31
This case is thus like Codd v. Velger, 429 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977), where we held that no constitutional violation occurred when an untenured employee was discharged without a hearing. No hearing was required to permit the employee to clear his name, since he did not dispute the truth of the allegedly stigmatizing reason for the discharge. Here the case is even stronger, since petitioner not only does not contend he was innocent of any violation but also admitted his guilt at the time of the incident. In Codd no hearing was required on whether the discharge was justified in light of the employee's conduct because the employee had no property interest in continued employment. So, too, here no hearing was required on whether removal from the general prison population pending convening of the review board was justified, since this decision is within the discretion of prison officials and, in view of petitioner's admissions, no abuse of discretion can be shown.4
32
Even if petitioner had not represented a threat to prison security himself, his removal from the general prison population for a brief period5 was fully justified in order to protect the integrity of the later hearing before the review board. Permitting inmates to return to the general prison population following a serious breach of prison discipline or violation of prison rules poses difficulties in terms of alibi construction and witness intimidation. The problems were certainly present in this case, where one of three inmates involved in a single incident admitted the charges but the other two denied them. The argument that such investigative justifications cannot outweigh the burden imposed on an innocent or possibly innocent inmate, whatever its merit in other cases, is of course not applicable in this case where petitioner has admitted and continues to admit his guilt.
33
Nothing in the foregoing detracts from the rule of Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), concerning the liberality with which pro se inmate complaints are to be read, since the complaint itself contains the admission of guilt which undermines any colorable claim. I would also note that petitioner filed his original and amended complaints on forms designed to make it easier for pro se inmates to articulate their claims. Such forms should make the problem of Haines v. Kerner recur less frequently by isolating the relevant information for the district court judge. The Court notes that the District Court gave petitioner's complaint "careful consideration," and Judge Swygert below argued that "it is quite evident from the detailed treatment given by the [D]istrict [C]ourt to the issues . . . that the suit was not groundless or meritless." It is odd, however, to reverse a District Court for spending considerable time and effort before concluding that a complaint was meritless. The fact that the District Court carefully examined petitioner's complaint for any possible claim before dismissing it is hardly evidence that a colorable claim must exist. Quite the contrary, it is a strong indication that no claim could be found no matter how deeply the District Court probed.
34
The award of attorney's fees was entirely proper in this case. The District Court expressly found that petitioner's suit was meritless in response to respondent's motion, which was based on Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978), and cited that case extensively. It is clear, therefore, that the District Court was using "meritless" as that term was understood in Christiansburg, supra, at 421, 98 S.Ct., at 700 ("the term 'meritless' is to be understood as meaning groundless or without foundation, rather than simply that the plaintiff has ultimately lost his case").
35
The decision whether to award attorney's fees under 42 U.S.C. § 1988 is committed to the discretion of the district courts, who are intimately familiar with the course of the litigation. Like the Court of Appeals for the Seventh Circuit, I cannot say that the District Court abused its discretion in awarding attorney's fees in this case. In light of petitioner's own admissions it was clear from the outset that he could state no cognizable claim. This is not a case, such as was suggested in Christiansburg, supra, at 422, 98 S.Ct., at 700, where the claim appeared meritorious at the outset and only later was refuted by facts which emerged on discovery or at trial. The decisive facts were stated in the complaint and they were not merely "questionable" or "unfavorable," as the Court suggests, ante, at 15; they were dispositive.
1
The order entered by District Judge McMillen on October 18, 1978, reads as follows:
"On August 7, 1978, we ordered plaintiff to show cause within twenty (20) days thereof why defendants' attorneys' fees in the amount of $400 should not be taxed against plaintiff under 42 U.S.C. § 1988. Because plaintiff has not complied with or otherwise responded to that order, we hereby tax defendants' fees in the amount of $400 against him pursuant to 42 U.S.C. § 1988."
2
On December 5, 1978, Judge McMillen entered the following order denying petitioner's motion for reconsideration:
"On October 18, 1978, we ordered that the defendants' attorneys' fees in the amount of $400 should be taxed against the plaintiff pursuant to 42 U.S.C. § 1988. Plaintiff has filed a motion to reconsider said action. Plaintiff's motion to reconsider is denied and attorneys' fees in the amount of $400 will be taxed against the plaintiff, as the suit was meritless."
3
Rule 35(c)(1) of the Circuit Rules of the United States Court of Appeals for the Seventh Circuit identifies those decisions warranting publication:
"A published opinion will be filed when the decision
"(i) establishes a new, or changes an existing, rule of law;
"(ii) involves an issue of continuing public interest;
"(iii) criticizes or questions existing law;
"(iv) constitutes a significant and nonduplicative contribution to legal literature
"(A) by a historical review of law,
"(B) by describing legislative history, or
"(C) by resolving or creating a conflict in the law;
"(v) reverses a judgment or denies enforcement of an order when the lower court or agency has published an opinion supporting the judgment or order; or
"(vi) is pursuant to an order of remand from the Supreme Court and is not rendered merely in ministerial obedience to specific directions of that Court."
When a decision does not satisfy these criteria, it is to be filed as an unpublished order. Circuit Rule 35(c)(2). Unpublished orders may not be cited as precedent in any federal court within the Seventh Circuit. Circuit Rule 35(b)(2)(iv).
Although petitioner's appeal was decided in an unpublished order purportedly having no precedential significance, three members of the Court of Appeals, Chief Judge Fairchild and Judges Swygert and Bauer, nonetheless voted to rehear the case en banc. Judge Swygert filed a written dissent from the order denying the petition for rehearing en banc.
4
It is unclear from the record whether this sentence included the two days petitioner spent in segregation prior to the disciplinary hearing, or whether he was sentenced to 10 days' segregation in addition to the time already served. There apparently is also some confusion with respect to the exact sentence imposed on petitioner at the hearing. The District Court's order dismissing the complaint indicates that petitioner was sentenced to 30 days in segregation. The Court of Appeals' order, on the other hand, states that he was sentenced to 10 days in segregation. The petition for writ of certiorari and respondents' brief in opposition filed in this Court are similarly inconsistent on this point. The record seems to indicate that petitioner was sentenced to 10 days in segregation. The uncertainty with respect to petitioner's posthearing segregation is not, however, material to our decision in this case.
5
Petitioner also alleged that respondents violated their own procedural regulations, and that it was a denial of equal protection of the laws and cruel and unusual punishment to impose a more severe sentence on him than on the other two inmates involved in the incident, since he had confessed to drinking and they had not.
6
As the Court of Appeals noted:
"The Supreme Court has delineated the standard to be applied in determining whether a prisoner has been afforded his minimum due process rights. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). The prisoner is entitled to (1) advance written notice of the charges against him or her; (2) an opportunity to call witnesses and present documentary evidence, provided that to do so will not jeopardize institutional safety or correctional goals, before a sufficiently impartial hearing board; (3) a written statement by the fact finder of 'the evidence relied upon and reasons for the disciplinary action taken.' "
7
The Court reaffirmed the principles of Haines in Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976):
"As the Court unanimously held in Haines v. Kerner, 404 U.S. 519 [92 S.Ct. 594, 30 L.Ed.2d 652] (1972), a pro se complaint, 'however inartfully pleaded,' must be held to 'less stringent standards than formal pleadings drafted by lawyers' and can only be dismissed for failure to state a claim if it appears 'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' Id., at 520-521 [92 S.Ct., at 595-596] quoting Conley v. Gibson, 355 U.S. 41, 45-46 [78 S.Ct. 99, 101-102, 2 L.Ed.2d 80] (1957)."
8
In a document entitled, "Response to: Motion to Dismiss or For Summary Judgment/& Memorandum in Support of Motion to Dismiss or For Summary Judgment," petitioner alleged:
"Placement in Segregation: Plaintiff was placed in Segregation on September 20, 1977, with no hearing what-so-ever. No reasons provided him as to why it was necessary to place him in segregation. No Resident Information Report issued him, stating he was being placed in segregation, under investigation status." Response, at 2 (emphasis in original).
Petitioner thereafter asserted that "[c]lassification to segregation must comply with procedural due process." Id., at 4, 7. Petitioner went on to assert that his placement in segregation on September 20 was "completely unnecessary, because plaintiff posed no immediate threat to the safety and security of the institution. . . ." Id., at 8. Later in the response, petitioner discussed his due process claim in detail. Id., at 15-16.
9
In their Memorandum in Support of Motion to Dismiss or for Summary Judgment, respondents asserted:
"Plaintiff's placement in segregation cellhouse on September 20, 1977 on temporary investigative status pending hearing of the resident information reports on September 22, 1977 does not rise to the level of a constitutional deprivation. No disciplinary sanctions constituting a grievous loss were imposed prior to a disciplinary hearing. The transfer of a resident from one cell to another does not trigger due process protections. Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532 [49 L.Ed.2d 451] (1976)."
10
The District Court's order dismissing petitioner's complaint stated:
"Plaintiff complains that his placement in segregation between the evening of September 20 and his hearing on September 22 was 'unnecessary' because no violence was involved in the incident. We find that his temporary placement in segregation pending the hearing, which was brought within the required 72 hour period, is not actionable. See A.R. 804(G), effective December 1, 1976."
11
This regulation, Administrative Regulation § 804(II)(G), provides, in pertinent part:
"It is recognized that incidents occur which, in the interest of institutional security and safety, require that a resident be removed from the general population and placed in a holding unit pending the completion of an investigation. As the holding unit functions in the same manner as a segregation unit (except that single celling is not required in the holding unit), a resident must be provided with the same procedural safeguards and services as are required by this regulation relative to placements, conditions and services in a segregation unit."
12
The dissenting opinion rests on the alternative and somewhat inconsistent grounds that prehearing solitary confinement was (a) proper punishment for an offense that was already adequately proved, (b) necessary in order to forestall the development of a contrived defense, and (c) harmless because petitioner subsequently received a fair hearing. The record reveals that these grounds are not sufficient to justify the dismissal of petitioner's complaint.
On the basis of petitioner's admission that he had been drinking, plus unsworn allegations in the reports of the corrections officers, the dissent concludes that petitioner was intoxicated on September 20 and that he posed a threat to prison security and safety sufficiently serious to warrant immediate segregation.
There is little doubt that some intoxicated prisoners may pose a threat to prison security justifying segregation without a hearing. The problem in this case is that the record does not establish, and the District Court did not find, that petitioner was in fact intoxicated or that his condition presented a threat to institutional security. Indeed, at no point in this litigation have the respondents asserted, by affidavit or otherwise, that petitioner was placed in segregation on September 20 because of such security concerns.
The dissent also speculates that inmates suspected of violations of prison regulations, if allowed to remain in the general prison population pending disciplinary proceedings, will fabricate alibi defenses and intimidate potential witnesses. Post, at 22. This danger would apparently justify automatic investigative segregation of all inmate suspects. Ironically, however, even the Administrative Regulation cited by the District Court, see n. 11, supra, does not purport to justify such blanket segregation. Moreover, automatic investigative segregation is particularly inappropriate for an inmate, like petitioner, who has already admitted guilt; fabrication of alibis or intimidation of witnesses seems unlikely in such a case. While investigative concerns might, in particular cases, justify prehearing segregation, nothing in the present record suggests that these concerns were at work in this case.
Either the institutional security or the investigative justification postulated by the dissent might well be dispositive had the District Court made appropriate findings. The respondents did not, however, present these justifications to the District Court and the District Court accordingly made no such findings. The record is entirely consistent with the possibility that an inmate who admittedly had been drinking posed no threat at all to prison security and had no intent to deny the facts, but did want an opportunity to establish mitigating circumstances before being placed in solitary confinement. The dissent's emphasis upon petitioner's admission confuses the distinction, previously recognized by this Court, between the question of guilt and the question of appropriate punishment. Cf. Morrissey v. Brewer, 408 U.S. 471, 483-484, 92 S.Ct. 2593, 2601, 33 L.Ed.2d 484 (1972).
Finally, even if the subsequent hearing accorded petitioner minimized or eliminated any compensable harm resulting from the initial denial of procedural safeguards, his constitutional claim is nonetheless actionable. Carey v. Piphus, 435 U.S. 247, 266-267, 98 S.Ct. 1042, 1053-1054, 55 L.Ed.2d 252 (1978). "Because the right to procedural due process is 'absolute' in the sense that it does not depend upon the merits of a claimant's substantive assertions, and because of the importance to organized society that procedural due process be observed . . . the denial of procedural due process should be actionable for nominal damages without proof of actual injury." Id., at 266, 98 S.Ct., at 1053 (footnote omitted).
13
As Judge Swygert noted in his dissent from the order denying rehearing en banc, see n. 3, supra, the District Court dismissed petitioner's claims only after detailed consideration resulting in a seven-page opinion. According to Judge Swygert:
"It is quite evident from the detailed treatment given by the district court to the issues raised by plaintiff's complaint that the suit was not groundless or meritless. That fact is corroborated by this court's treatment of the same issues on appeal."
1
Illinois Department of Corrections Administrative Regulations in effect at the time of this incident provided that a Program Team could act on charges of minor rule violations, but that an Adjustment Committee hearing was required on all other charges of rule violations, "including those which may result in programmatic removal from the population, demotion in grade, or loss of good time." Administrative Regulation § 804(II)(A)(4). The regulations also provided that a resident must be informed, inter alia, that "if found guilty of a serious rule violation [by the Adjustment Committee] and found to be a danger to the institutional community, he may be placed in segregation and/or deprived of his current grade and statutory good time credit." § 804(II)(B)(4).
2
Illinois Department of Corrections Administrative Regulations authorized confinement of a resident in a holding unit pending the completion of an investigation "in the interest of institutional security and safety." See § 804(II)(G)(1), quoted in full in the majority opinion, ante, at 12, n. 11. The regulations also authorized confinement of a resident in a holding unit in two other situations, again for security reasons. Section 804(II)(E)(1) provided:
"Whenever it is necessary to remove a resident from the general population on an emergency basis due to serious aggressive behavior and/or for safekeeping, the shift captain and/or unit manager must authorize the placement of a resident in a holding unit until the next meeting of the Adjustment Committee, which in no case may exceed 72 hours."
Section 804(II)(F)(1) provided:
"Whenever it is deemed necessary by the Chief Administrative Officer to transfer a resident to another correctional facility for security reasons, the resident may be confined in a holding unit for not more than 72 hours. See ARs 819 and 822 on transfers."
1
The resident information report filled out by Captain Tuttle and served on petitioner the night the incident occurred confirms that petitioner admitted to drinking at that time.
2
The nature of this problem was elaborated in a grievance filed by petitioner two days after the review board hearing. There he stated he has "had a problem with [a]lcohol ever since I was fifteen years old, and nowhere in my past record will you find any sort of arrest that didn't involve [a]lcohol or drugs."
3
The Court, ante, at 13, n. 12, states that our conclusion that petitioner was intoxicated rests on reports by the officers and petitioner's admission that he had been drinking. This statement overlooks the September 24 grievance filed by petitioner, wherein he reviewed what he considered the highlights of his prison career and asked "why, with all the things I had going for myself, and being so close to appearing before the Parole Board, did I get drunk and louse up the good record I had?" (emphasis supplied). It also overlooks that petitioner admitted being guilty of the conduct set forth in the reports which described his condition as noted in the text. Petitioner did not argue before the review board, as one of his drinking companions did, that although he had been drinking he was not intoxicated. But even more importantly, the Court's effort to distinguish between an inmate who has been drinking in violation of prison regulations and an intoxicated inmate, or an intoxicated inmate who poses a threat to prison security and safety and one who does not, places an intolerable burden on prison officials, who apparently must, at the risk of money damages, decide precisely when a drinking inmate is drunk or even how a particular inmate will react when drunk. This is completely at odds with the established rule that prison officials are accorded great deference in the discharge of their central responsibility for prison security and discipline, see infra, at 20.
4
The Court's citation of Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978), begs the question whether a hearing prior to the review board hearing was required in this case. In both of these cases the Court held that a hearing was generally required prior to the deprivations involved, so that even if the deprivations were later found to have been justified, a constitutional violation occurred if no prior hearing had been held. Here, however, the Court recognizes that "appropriate findings" by the District Court concerning petitioner's intoxication or investigative concerns would be dispositive, presumably because they would indicate no hearing was required. Thus so far as is discernible the Court's reasoning is not the lack of hearing before confinement, but the fact of possible wrongful confinement without a prior hearing. Findings are not necessary when petitioner's own admissions conclusively undermine any possible claim that the prison officials acted in bad faith or on mere pretext.
5
Prison regulations permit segregation on temporary investigative status for no more than 72 hours; petitioner had his review board hearing within 40 hours of the incident.
| 56
|
449 U.S. 39
101 S.Ct. 192
66 L.Ed.2d 199
Sydell STONE et al.v.James B. GRAHAM, Superintendent of Public Instruction of Kentucky.
No. 80-321.
Nov. 17, 1980.
Rehearing Denied Jan. 12, 1981.
See 449 U.S. 1104, 101 S.Ct. 904.
PER CURIAM.
1
A Kentucky statute requires the posting of a copy of the Ten Commandments, purchased with private contributions, on the wall of each public classroom in the State.1 Petitioners, claiming that this statute violates the Establishment and Free Exercise Clauses of the First Amendment,2 sought an injunction against its enforcement. The state trial court upheld the statute, finding that its "avowed purpose" was "secular and not religious," and that the statute would "neither advance nor inhibit any religion or religious group" nor involve the State excessively in religious matters. App. to Pet. for Cert. 38-39. The Supreme Court of the Commonwealth of Kentucky affirmed by an equally divided court. 599 S.W.2d 157 (1980). We reverse.
2
This Court has announced a three-part test for determining whether a challenged state statute is permissible under the Establishment Clause of the United States Constitution:
3
"First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion . . .; finally the statute must not foster 'an excessive government entanglement with religion.' " Lemon v. Kurtzman, 403 U.S. 602, 612-613, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971) (citations omitted).
4
If a statute violates any of these three principles, it must be struck down under the Establishment Clause. We conclude that Kentucky's statute requiring the posting of the Ten Commandments in public schoolrooms had no secular legislative purpose, and is therefore unconstitutional.
5
The Commonwealth insists that the statute in question serves a secular legislative purpose, observing that the legislature required the following notation in small print at the bottom of each display of the Ten Commandments: "The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States." 1978 Ky. Acts, ch. 436, § 1 (effective June 17, 1978), Ky.Rev.Stat. § 158.178 (1980).
6
The trial court found the "avowed" purpose of the statute to be secular, even as it labeled the statutory declaration "self-serving." App. to Pet. for Cert. 37. Under this Court's rulings, however, such an "avowed" secular purpose is not sufficient to avoid conflict with the First Amendment. In Abington School District v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), this Court held unconstitutional the daily reading of Bible verses and the Lord's Prayer in the public schools, despite the school district's assertion of such secular purposes as "the promotion of moral values, the contradiction to the materialistic trends of our times, the perpetuation of our institutions and the teaching of literature." Id., at 223, 83 S.Ct., at 1572.
7
The pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature. The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths,3 and no legislative recitation of a supposed secular purpose can blind us to that fact. The Commandments do not confine themselves to arguably secular matters, such as honoring one's parents, killing or murder, adultery, stealing, false witness, and covetousness. See Exodus 20: 12-17; Deuteronomy 5: 16-21. Rather, the first part of the Commandments concerns the religious duties of believers: worshipping the Lord God alone, avoiding idolatry, not using the Lord's name in vain, and observing the Sabbath Day. See Exodus 20: 1-11; Deuteronomy 5: 6-15.
8
This is not a case in which the Ten Commandments are integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like. Abington School District v. Schempp, supra, at 225, 83 S.Ct., at 1573. Posting of religious texts on the wall serves no such educational function. If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the Establishment Clause.
9
It does not matter that the posted copies of the Ten Commandments are financed by voluntary private contributions, for the mere posting of the copies under the auspices of the legislature provides the "official support of the State . . . Government" that the Establishment Clause prohibits. 374 U.S., at 222, 83 S.Ct., at 1571; see Engel v. Vitale, 370 U.S. 421, 431, 82 S.Ct. 1261, 1267, 8 L.Ed.2d 601 (1962).4 Nor is it significant that the Bible verses involved in this case are merely posted on the wall, rather than read aloud as in Schempp and Engel, for "it is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment." Abington School District v. Schempp, supra, at 225, 83 S.Ct., at 1573. We conclude that§ 158.178 (1980) violates the first part of the Lemon v. Kurtzman, test, and thus the Establishment Clause of the Constitution.5
10
The petition for a writ of certiorari is granted, and the judgment below is reversed.
11
It is so ordered.
12
THE CHIEF JUSTICE and Justice BLACKMUN dissent. They would grant certiorari and give this case plenary consideration.
13
Justice STEWART dissents from this summary reversal of the courts of Kentucky, which, so far as appears, applied wholly correct constitutional criteria in reaching their decisions.
14
Justice REHNQUIST, dissenting.
15
With no support beyond its own ipse dixit, the Court concludes that the Kentucky statute involved in this case "has no secular legislative purpose," ante, at 41 (emphasis supplied), and that "[t]he pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature," ibid. This even though, as the trial court found, "[t]he General Assembly thought the statute had a secular legislative purpose and specifically said so." App. to Pet. for Cert. 37. The Court's summary rejection of a secular purpose articulated by the legislature and confirmed by the state court is without precedent in Establishment Clause jurisprudence. This Court regularly looks to legislative articulations of a statute's purpose in Establishment Clause cases and accords such pronouncements the deference they are due. See, e. g., Committee for Public Education v. Nyquist, 413 U.S. 756, 773, 93 S.Ct. 2955, 2965, 37 L.Ed.2d 948 (1973) ("we need touch only briefly on the requirement of a 'secular legislative purpose.' As the recitation of legislative purposes appended to New York's law indicates, each measure is adequately supported by legitimate, nonsectarian state interests"); Lemon v. Kurtzman, 403 U.S. 602, 613, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971) ("the statutes themselves clearly state they are intended to enhance the quality of the secular education"); Sloan v. Lemon, 413 U.S. 825, 829-830, 93 S.Ct. 2982, 2985, 37 L.Ed.2d 939 (1973); Board of Education v. Allen, 392 U.S. 236, 243, 88 S.Ct. 1923, 1926, 20 L.Ed.2d 1060 (1968). See also Florey v. Sioux Falls School District, 619 F.2d 1311, 1314 (CA8) (upholding rules permitting public school Christmas observances with religious elements as promoting the articulated secular purpose of "advanc[ing] the student's knowledge and appreciation of the role that our religious heritage has played in the social, cultural and historical development of civilization"), cert. denied. 449 U.S. 987, 101 S.Ct. 409, 66 L.Ed.2d 251. The fact that the asserted secular purpose may overlap with what some may see as a religious objective does not render it unconstitutional. As this Court stated in McGowan v. Maryland, 366 U.S. 420, 445, 81 S.Ct. 1101, 1115, 6 L.Ed.2d 393 (1961), in upholding the validity of Sunday closing laws, "the present purpose and effect of most of [these laws] is to provide a uniform day of rest for all citizens; the fact that this day is Sunday, a day of particular significance for the dominant Christian sects, does not bar the state from achieving its secular goals."
16
Abington School District v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), repeatedly cited by the Court, is not to the contrary. No statutory findings of secular purpose supported the challenged enactments in that case. In one of the two cases considered in Abington School District the trial court had determined that the challenged exercises were intended by the State to be religious exercises. Id., at 223, 83 S.Ct., at 1572. A contrary finding is presented here. In the other case no specific finding had been made, and "the religious character of the exercise was admitted by the State," id., at 224,1 83 S.Ct., at 1572.
17
The Court rejects the secular purpose articulated by the State because the Decalogue is "undeniably a sacred text," ante, at 41. It is equally undeniable, however, as the elected representatives of Kentucky determined, that the Ten Commandments have had a significant impact on the development of secular legal codes of the Western World. The trial court concluded that evidence submitted substantiated this determination. App. to Pet. for Cert. 38. See also Anderson v. Salt Lake City Corp., 475 F.2d 29, 33 (CA10 1973) (upholding construction on public land of monument inscribed with Ten Commandments because they have "substantial secular attributes"). Certainly the State was permitted to conclude that a document with such secular significance should be placed before its students, with an appropriate statement of the document's secular import. See id., at 34 ("It does not seem reasonable to require removal of a passive monument, involving no compulsion, because its accepted precepts, as a foundation for law, reflect the religious nature of an ancient era").2 See also Opinion of the Justices, 108 N.H. 97, 228 A.2d 161 (1967) (upholding placement of plaques with the motto "In God We Trust" in public schools).
18
The Establishment Clause does not require that the public sector be insulated from all things which may have a religious significance or origin. This Court has recognized that "religion has been closely identified with our history and government," Abington School District, supra, at 212, 83 S.Ct., at 1565 and that "[t]he history of man is inseparable from the history of religion," Engel v. Vitale, 370 U.S. 421, 434, 82 S.Ct. 1261, 1268, 8 L.Ed.2d 601 (1962). Kentucky has decided to make students aware of this fact by demonstrating the secular impact of the Ten Commandments. The words of Justice Jackson, concurring in McCollum v. Board of Education, 333 U.S. 203, 235-236, 68 S.Ct. 461, 477, 92 L.Ed. 649 (1948), merit quotation at length:
19
"I think it remains to be demonstrated whether it is possible, even if desirable, to comply with such demands as plaintiff's completely to isolate and cast out of secular education all that some people may reasonably regard as religious instruction. Perhaps subjects such as mathematics, physics or chemistry are, or can be, completely secularized. But it would not seem practical to teach either practice or appreciation of the arts if we are to forbid exposure of youth to any religious influences. Music without sacred music, architecture minus the cathedral, or painting without the scriptural themes would be eccentric and incomplete, even from a secular point of view. . . . I should suppose it is a proper, if not an indispensable, part of preparation for a worldly life to know the roles that religion and religions have played in the tragic story of mankind. The fact is that, for good or for ill, nearly everything in our culture worth transmitting, everything which gives meaning to life, is saturated with religious influences, derived from paganism, Judaism, Christianity-both Catholic and Protestant-and other faiths accepted by a large part of the world's peoples. One can hardly respect the system of education that would leave the student wholly ignorant of the currents of religious thought that move the world society for a part in which he is being prepared." I therefore dissent from what I cannot refrain from describing as a cavalier summary reversal, without benefit of oral argument or briefs on the merits, of the highest court of Kentucky.
1
The statute provides in its entirety:
"(1) It shall be the duty of the superintendent of public instruction, provided sufficient funds are available as provided in subsection (3) of this Section, to ensure that a durable, permanent copy of the Ten Commandments shall be displayed on a wall in each public elementary and secondary school classroom in the Commonwealth. The copy shall be sixteen (16) inches wide by twenty (20) inches high.
"(2) In small print below the last commandment shall appear a notation concerning the purpose of the display, as follows: 'The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.'
"(3) The copies required by this Act shall be purchased with funds made available through voluntary contributions made to the state treasurer for the purposes of this Act." 1978 Ky. Acts, ch. 436, § 1 (effective June 17, 1978), Ky.Rev.Stat. § 158.178 (1980).
2
The First Amendment provides in relevant part: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .." This prohibition is applicable to the States through the Fourteenth Amendment. Abington School District v. Schempp, 374 U.S. 203, 215-216, 83 S.Ct. 1560, 1567-1568, 10 L.Ed.2d 844 (1963).
3
As this Court commented in Abington School District v. Schempp, supra, at 224, 83 S.Ct., at 1572: "Surely the place of the Bible as an instrument of religion cannot be gainsaid. . . ."
4
Moreover, while the actual copies of the Ten Commandments were purchased through private contributions, the state nevertheless expended public money in administering the statute. For example, the statute requires that the state treasurer serve as a collecting agent for the contributions. Ky.Rev.Stat. § 158.178(3) (1980).
5
The Supreme Court cases cited by the dissenting opinion as contrary, Committee for Public Education v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973); Sloan v. Lemon, 413 U.S. 825, 93 S.Ct. 2982, 37 L.Ed.2d 939 (1973); Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971); Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968), are easily distinguishable: all are cases involving state assistance to private schools. Such assistance has the obvious legitimate secular purpose of promoting educational opportunity. The posting of the Ten Commandments on classroom walls has no such secular purpose.
1
The Court noted that even if the State's purpose were not strictly religious, "it is sought to be accomplished through readings, without comment, from the Bible." 374 U.S., at 224, 83 S.Ct., at 1572. Here of course there was no compelled reading, and there was comment accompanying the text of the Commandments mandated by statute and focusing on their secular significance.
2
The Court's emphasis on the religious nature of the first part of the Ten Commandments is beside the point. The document as a whole has had significant secular impact, and the Constitution does not require that Kentucky students see only an expurgated or redacted version containing only the elements with directly traceable secular effects.
| 23
|
66 L.Ed.2d 193
101 S.Ct. 188
449 U.S. 33
ALLIED CHEMICAL CORPORATION et al.,v.DAIFLON, INC.
No. 79-1895.
Nov. 17, 1980.
PER CURIAM.
1
Respondent, Daiflon, Inc., is a small importer of refrigerant gas that brought an antitrust suit against all domestic manufacturers of the gas. Petitioner E. I. du Pont de Nemours & Co. was accused of monopolizing the industry in violation of § 2 of the Sherman Act, 15 U.S.C. § 2. All petitioners were accused of conspiring to drive respondent out of business in violation of § 1 of the Sherman Act, 15 U.S.C. § 1.
2
After a 4-week trial, the jury returned a verdict for the respondent and awarded $2.5 million in damages. In a subsequent oral order, the trial court denied petitioners' motion for a judgment notwithstanding the verdict, but granted a motion for new trial. The trial court acknowledged in its oral order that it had erred during trial in certain of its evidentiary rulings and that the evidence did not support the amount of the jury award.
3
Respondent then filed a petition for a writ of mandamus with the Court of Appeals for the Tenth Circuit, 612 F.2d 1249, requesting that it instruct the trial court to reinstate the jury verdict. The Court of Appeals, without a transcript of the trial proceedings before it,1 issued a writ of mandamus directing the trial court to restore the jury verdict as to liability but permitting the trial court to proceed with a new trial on damages. Daiflon, Inc. v. Bohanon, 612 F.d 1249. Petitioners seek review of this action of the Court of Appeals by their petition for certiorari with this Court.
4
An order granting a new trial is interlocutory in nature and therefore not immediately appealable. The question presented by this petition is therefore whether a litigant may obtain a review of an order concededly not appealable by way of mandamus. If such review were permissible then the additional question would be presented as to whether the facts in this particular case warrant the issuance of the writ.
5
It is not disputed that the remedy of mandamus is a drastic one, to be invoked only in extraordinary situations. Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305, (1967); Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 382-385, 74 S.Ct. 142, 149, 98 L.Ed. 106, (1953); Ex parte Fahey, 332 U.S. 258, 259, 67 S.Ct. 1558, 1559, 91 L.Ed. 2041, (1947). On direct appeal from a final decision, a court of appeals has broad authority to "modify, vacate, set aside or reverse" an order of a district court, and it may direct such further action on remand "as may be just under the circumstances." 28 U.S.C. § 2106. By contrast, under the All Writs Act, 28 U.S.C. § 1651(a), courts of appeals may issue a writ of mandamus only when "necessary or appropriate in aid of their respective jurisdictions." Although a simple showing of error may suffice to obtain a reversal on direct appeal, to issue a writ of mandamus under such circumstances "would undermine the settled limitations upon the power of an appellate court to review interlocutory orders." Will v. United States, supra, at 98, n.6, 88 S.Ct., at 275, n.6.
6
This Court has recognized that the writ of mandamus "has traditionally been used in the federal courts only 'to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.' " Will v. United States, supra, 389 U.S., at 95, 88 S.Ct., at 273, quoting Roche v. Evaporated Milk Assn., 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943). Only exceptional circumstances, amounting to a judicial usurpation of power, will justify the invocation of this extraordinary remedy. Will v. United States, supra, at 95, 88 S.Ct., at 273.
7
The reasons for this Court's chary authorization of mandamus as an extraordinary remedy have often been explained. See Kerr v. United States District Court, 426 U.S. 394, 402-403, 96 S.Ct. 2119, 2123-2124, 48 L.Ed.2d 725 (1976). Its use has the unfortunate consequence of making a district court judge a litigant, and it indisputably contributes to piecemeal appellate litigation. It has been Congress' determination since the Judiciary Act of 1789 that as a general rule appellate review should be postponed until after final judgment has been rendered by the trial court. A judicial readiness to issue the writ of mandamus in anything less than an extraordinary situation would "run the real risk of defeating the very policies sought to be furthered by that judgment of Congress." Id., at 403, 96 S.Ct., at 2124. In order to insure that the writ will issue only in extraordinary circumstances this Court has required that a party seeking issuance have no other adequate means to attain the relief he desires, ibid.; Roche v. Evaporated Milk Assn., supra, 319 U.S., at 26, 63 S.Ct., at 941, and that he satisfy the "burden of showing that [his] right to issuance of the writ is 'clear and indisputable.' " Bankers Life & Cas. Co. v. Holland, supra, 346 U.S., at 384, 74 S.Ct., at 148, quoting United States v. Duell, 172 U.S. 576, 582, 19 S.Ct. 286, 287, 43 L.Ed. 559 (1899). In short, our cases have answered the question as to the availability of mandamus in situations such as this with the refrain: "What never? Well, hardly ever!"
8
A trial court's ordering of a new trial rarely, if ever, will justify the issuance of a writ of mandamus. On the contrary, such an order is not an uncommon feature of any trial which goes to verdict. A litigant is free to seek review of the propriety of such an order on direct appeal after a final judgment has been entered. Consequently, it cannot be said that the litigant "has no other adequate means to seek the relief he desires." The authority to grant a new trial, moreover, is confided almost entirely to the exercise of discretion on the part of the trial court. Where a matter is committed to discretion, it cannot be said that a litigant's right to a particular result is "clear and indisputable." Will v. Calvert Fire Ins. Co., 437 U.S. 655, 666, 98 S.Ct. 2552, 2559, 57 L.Ed.2d 504 (1978) (plurality opinion).
9
To overturn an order granting a new trial by way of mandamus indisputably undermines the policy against piecemeal appellate review. Under the rationale employed by the Court of Appeals, any discretionary order, regardless of its interlocutory nature, may be subject to immediate judicial review.2 Such a rationale obviously encroaches on the conflicting policy against piecemeal review, and would leave that policy at the mercy of any court of appeals which chose to disregard it.3
10
The petition for a writ of certiorari is therefore granted, and the order of the Court of Appeals granting the writ of mandamus is
11
Reversed.
12
Justice STEWART and Justice STEVENS took no part in the consideration or decision of this case.
13
Justice BLACKMUN, with whom Justice WHITE joins, dissenting.
14
I have no quarrel with the general principles enunciated by the Court in its per curiam opinion. Of course, only exceptional circumstances justify the extraordinary remedy of mandamus. I sense, however, from the rather voluminous material that is before us (as contrasted with the average petition for certiorari), and from the Court of Appeals' careful review of the law and the decided cases concerning the use of the mandamus power, that this is an unusual case and that there well may be more here than appears at first glance. I therefore would not decide, peremptorily and summarily, what circumstances, if any, justify a federal appellate court's issuance of a writ of mandamus to overturn a trial court's order granting a new trial.* Instead, I would grant the petition for certiorari and give the case plenary consideration so that we may examine carefully the factors and considerations that prompted the Court of Appeals to issue the writ. I feel that the case deserves at least that much.
1
The Court of Appeals did request that each party prepare a summary of the evidence presented in the trial court. The petitioners objected to this procedure which substituted a summary prepared by each party in lieu of the trial transcript. The court acknowledged in its opinion that the summary eventually filed by the petitioners only summarized the testimony of one witness and that the court was unaware of the identity of, or the testimony given by, the petitioners' other witness.
2
It is worth noting that this case does not present the first instance in which the Court of Appeals felt it appropriate to overturn a new-trial order by the use of a common-law writ. In Kanatser v. Chrysler Corp., 199 F.2d 610 (CA10 1952), the court reached the same result by granting a writ of certiorari.
3
Even if it be appropriate in certain circumstances to use mandamus to review a discretionary order by a trial court, the new-trial order entered in this case would not appear to be a likely candidate. A trial judge is not required to enter supporting findings of facts and conclusions of law when granting a new-trial motion. See Fed.Rule Civ.Proc. 52(a). It cannot be contended with any certainty that the trial court in this case, when entering its oral order granting a new trial, intended to set forth each and every reason for its order. The trial court did note, however, that it had made errors in the admission of certain documentary evidence and that it felt the petitioners had not received a fair trial. Given that the Court of Appeals did not have a complete transcript of the proceedings before it, see n.1, supra, and that there could be other unarticulated bases for the new-trial order, it would seem all but impossible for the Court of Appeals to hold as a matter of law that the trial court clearly abused its discretion in entering the new-trial order.
*
To the extent that the Court's decision in this case is based upon the inadequacy of the record before the Court of Appeals, the proper remedy is to remand for further proceedings based upon a complete record.
| 89
|
449 U.S. 24
101 S.Ct. 183
66 L.Ed.2d 185
Orville E. DENNIS, Petitioner,v.Sidney SPARKS and R. L. Lynd, d/b/a Sidney A. Sparks, Trustee.
No. 79-1186.
Argued Oct. 8, 1980.
Decided Nov. 17, 1980.
Syllabus
After a Texas state court's injunction against respondents' production of minerals from certain oil leases was dissolved by an appellate court as having been illegally issued, respondents filed suit in Federal District Court alleging a cause of action for damages under 42 U.S.C. § 1983 against the judge who issued the injunction, the corporation that had obtained the injunction, its owner, and the sureties on the injunction bond (one of whom is the petitioner). Respondents claimed that the injunction had been corruptly issued as the result of a conspiracy between the judge and the other defendants, thus causing a deprivation of property without due process of law. The District Court dismissed the action, holding that the judge was immune from liability in a § 1983 suit because the injunction was a judicial act within the jurisdiction of the state court, and that with the dismissal of the judge the remaining defendants could not be said to have conspired "under color" of state law within the meaning of § 1983. The Court of Appeals agreed that the judge was immune from suit, but ultimately reversed as to the dismissal of the claims against the other defendants.
Held: The action against the private parties accused of conspiring with the judge is not subject to dismissal. Private persons, jointly engaged with state officials in a challenged action, are acting "under color" of law for purposes of § 1983 actions. And the judge's immunity from damages liability for an official act that was allegedly the product of a corrupt conspiracy involving bribery of the judge does not change the character of his action or that of his co-conspirators. Historically at common law, judicial immunity does not insulate from damages liability those private persons who corruptly conspire with a judge. Nor has the doctrine of judicial immunity been considered historically as excusing a judge from responding as a witness when his co-conspirators are sued, even though a charge of conspiracy and judicial corruption will be aired and decided. Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583 distinguished. The potential harm to the public from denying immunity to co-conspirators if the factfinder mistakenly upholds a charge of a corrupt conspiracy is outweighed by the benefits of providing a remedy against those private persons who participate in subverting the judicial process and in so doing inflict injury on other persons. Pp. 27-32.
5th Cir., 604 F.2d 976, affirmed.
Finley L. Edmonds, Corpus Christi, Tex., for petitioner.
Garland F. Smith, Weslaco, Tex., for respondents.
Justice WHITE delivered the opinion of the Court.
1
In January 1973, a judge of the 229th District Court of Duval County, Tex., enjoined the production of minerals from certain oil leases owned by respondents. In June 1975, the injunction was dissolved by an appellate court as having been illegally issued. Respondents then filed a complaint in the United States District Court purporting to state a cause of action for damages under 42 U.S.C. § 1983.1 Defendants were the Duval County Ranch Co., Inc., which had obtained the injunction, the sole owner of the corporation, the judge who entered the injunction, and the two individual sureties on the injunction bond, one of whom is now petitioner in this Court. Essentially, the claim was that the injunction had been corruptly issued as the result of a conspiracy between the judge and the other defendants, thus causing a deprivation of property, i. e., two years of oil production, without due process of law.
2
All defendants moved to dismiss, the judge asserting judicial immunity and the other defendants urging dismissal for failure to allege action "under color" of state law, a necessary component of a § 1983 cause of action. The District Court concluded that because the injunction was a judicial act within the jurisdiction of the state court, the judge was immune from liability in a § 1983 suit, whether or not the injunction had issued as the result of a corrupt conspiracy. Relying on Haldane v. Chagnon, 345 F.2d 601 (CA9 1965), the District Court also ruled that with the dismissal of the judge the remaining defendants could not be said to have conspired under color of state law within the meaning of § 1983. The action against them was accordingly dismissed "for failure to state a claim upon which relief can be granted."
3
In a per curiam opinion, a panel of the Court of Appeals for the Fifth Circuit affirmed, agreeing that the judge was immune from suit and that because "the remaining defendants, who are all private citizens, did not conspire with any person against whom a valid § 1983 suit can be stated," Sparks v. Duval County Ranch Co., 588 F.2d 124, 126 (1979), existing authorities in the Circuit required dismissal of the claims against these defendants as well.2 The case was reconsidered en banc, prior Circuit authority was overruled and the District Court judgment was reversed insofar as it had dismissed claims against the defendants other than the judge. Sparks v. Duval County Ranch Co., 604 F.2d 976 (1979). The court ruled that there was no good reason in law, logic, or policy for conferring immunity on private persons who persuaded the immune judge to exercise his jurisdiction corruptly. Because the judgment below was inconsistent with the rulings of other Courts of Appeals3 and involves an important issue, we granted the petition for certiorari. 445 U.S. 942, 100 S.Ct. 1336, 63 L.Ed.2d 775. We now affirm.
4
Based on the doctrine expressed in Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872), this Court has consistently adhered to the rule that "judges defending against § 1983 actions enjoy absolute immunity from damages liability for acts performed in their judicial capacities. Pierson v. Ray, 386 U.S. 547 [87 S.Ct. 1213, 18 L.Ed.2d 288] (1967); Stump v. Sparkman, 435 U.S. 349 [98 S.Ct. 1099, 55 L.Ed.2d 331] (1978)." Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 734-735, 100 S.Ct. 1967, 1976, 64 L.Ed.2d 641 (1980). The courts below concluded that the judicial immunity doctrine required dismissal of the § 1983 action against the judge who issued the challenged injunction, and as the case comes to us, the judge has been properly dismissed from the suit on the immunity grounds. It does not follow, however, that the action against the private parties accused of conspiring with the judge must also be dismissed.
5
As the Court of Appeals correctly understood our cases to hold, to act "under color of" state law for § 1983 purposes does not require that the defendant be an officer of the State. It is enough that he is a willful participant in joint action with the State or its agents. Private persons, jointly engaged with state officials in the challenged action, are acting see "under color" of law for purposes of § 1983 actions. Adickes v. S. H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1605, 26 L.Ed.2d 142 (1970); United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 1156, 16 L.Ed.2d 267 (1966).4 Of course, merely resorting to the courts and being on the winning side of a lawsuit does not make a party a co-conspirator or a joint actor with the judge. But here the allegations were that an official act of the defendant judge was the product of a corrupt conspiracy involving bribery of the judge. Under these allegations, the private parties conspiring with the judge were acting under color of state law; and it is of no consequence in this respect that the judge himself is immune from damages liability. Immunity does not change the character of the judge's action or that of his co-conspirators.5 Indeed, his immunity is dependent on the challenged conduct being an official judicial act within his statutory jurisdiction, broadly construed. Stump v. Sparkman, 435 U.S. 349, 356, 98 S.Ct. 1099, 1104, 55 L.Ed.2d 331 (1978); Bradley v. Fisher, supra, at 352, 357. Private parties who corruptly conspire with a judge in connection with such conduct are thus acting under color of state law within the meaning of § 1983 as it has been construed in our prior cases. The complaint in this case was not defective for failure to allege that the private defendants were acting under color of state law, and the Court of Appeals was correct in rejecting its prior case authority to the contrary.
6
Petitioner nevertheless insists that unless he is held to have an immunity derived from that of the judge, the latter's official immunity will be seriously eroded. We are unpersuaded. The immunities of state officials that we have recognized for purposes of § 1983 are the equivalents of those that were recognized at common law. Owen v. City of Independence, 445 U.S. 622, 637-638, 100 S.Ct. 1398, 1408-1409, 63 L.Ed.2d 673 (1980); Imbler v. Pachtman, 424 U.S. 409, 417, 96 S.Ct. 984, 988, 47 L.Ed.2d 128 (1976); Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), and the burden is on the official claiming immunity to demonstrate his entitlement. Cf. Butz v. Economou, 438 U.S. 478, 506, 98 S.Ct. 2894, 2911, 57 L.Ed.2d 895 (1978). Thus, in Owen v. City of Independence, supra, a municipality's claim that it could assert the immunity of its officers and agents in a § 1983 damages action was rejected since there was no basis for such a right at common law. Here, petitioner has pointed to nothing indicating that, historically, judicial immunity insulated from damages liability those private persons who corruptly conspire with the judge.6
7
In Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972), we recognized that the Speech or Debate Clause conferred immunity upon a Senator's aide as well as the Senator, but only in those situations where the conduct of the aide would be a protected legislative act if performed by the Senator himself. Id., at 618, 92 S.Ct., at 2623. Here, there could be no claim that petitioner or any of the other private parties was actually performing a judicial act or was in any sense an official aide of the judge. Not surprisingly, petitioner does not argue that judges must conspire with private parties in order that judicial duties may be properly accomplished.
8
It is urged that if petitioner and other private co-conspirators of the judge are to be subject to § 1983 damages actions and if a case such as this is to go to trial, the charge of conspiracy and judicial corruption will necessarily be aired and decided, the consequence being that the judge, though not a party and immune from liability, will be heavily involved, very likely as a witness forced to testify about and defend his judicial conduct. It is true that, based on the Speech or Debate Clause, we have held that Members of Congress need not respond to questions about their legislative acts, Gravel v. United States, supra, at 616-617, 92 S.Ct., at 2622-2623; and, in general, the scope of state legislative immunity for purposes of § 1983 has been patterned after immunity under the Speech or Debate Clause. Supreme Court of Virginia v. Consumers Union, 446 U.S., at 732-734, 100 S.Ct., at 1974-1976. But there is no similar constitutionally based privilege immunizing judges from being required to testify about their judicial conduct in third-party litigation. Nor has any demonstration been made that historically the doctrine of judicial immunity not only protected the judge from liability but also excused him from responding as a witness when his co-conspirators are sued. Even if the judge were excused from testifying, it would not follow that actions against private parties must be dismissed.
9
Of course, testifying takes time and energy that otherwise might be devoted to judicial duties; and, if cases such as this survive initial challenge and go to trial, the judge's integrity and that of the judicial process may be at stake in such cases. But judicial immunity was not designed to insulate the judiciary from all aspects of public accountability. Judges are immune from § 1983 damages actions, but they are subject to criminal prosecutions as are other citizens. O'Shea v. Littleton, 414 U.S. 488, 503, 94 S.Ct. 669, 679, 38 L.Ed.2d 674 (1974). Neither are we aware of any rule generally exempting a judge from the normal obligation to respond as a witness when he has information material to a criminal or civil proceeding.7 Cf. United States v. Nixon, 418 U.S. 683, 705-707, 94 S.Ct. 3090, 3106-07, 41 L.Ed.2d 1039 (1974).
10
Judicial immunity arose because it was in the public interest to have judges who were at liberty to exercise their independent judgment about the merits of a case without fear of being mulcted for damages should an unsatisfied litigant be able to convince another tribunal that the judge acted not only mistakenly but with malice and corruption. Pierson v. Ray, supra, at 554, 87 S.Ct., at 1217-1218; Bradley v. Fisher, 13 Wall., at 349, 350 n. In terms of undermining a judge's independence and his judicial performance, the concern that his conduct will be examined in a collateral proceeding against those with whom he allegedly conspired, a proceeding in which he cannot be held liable for damages and which he need not defend, is not of the same order of magnitude as the prospects of being a defendant in a damages action from complaint to verdict with the attendant possibility of being held liable for damages if the factfinder mistakenly upholds the charge of malice or of a corrupt conspiracy with others. These concerns are not insubstantial, either for the judge or for the public, but we agree with the Court of Appeals that the potential harm to the public from denying immunity to private co-conspirators is outweighed by the benefits of providing a remedy against those private persons who participate in subverting the judicial process and in so doing inflict injury on other persons.
The judgment of the Court of Appeals is
11
Affirmed.
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
Slavin v. Curry, 574 F.2d 1256 (1978); Perez v. Borchers, 567 F.2d 285 (1978); Humble v. Foreman, 563 F.2d 780 (1977); Hill v. McClellan, 490 F.2d 859 (1974); Guedry v. Ford, 431 F.2d 660 (1970).
3
Kurz v. Michigan, 548 F.2d 172 (CA6 1977); Hazo v. Geltz, 537 F.2d 747 (CA3 1976); Hansen v. Ahlgrimm, 520 F.2d 768 (CA7 1975); Sykes v. California, 497 F.2d 197 (CA9 1974). See also Haldane v. Chagnon, 345 F.2d 601, 604-605 (CA9 1965); but see Briley v. California, 564 F.2d 849, 858, n.10 (CA9 1977). The Court of Appeals for the First Circuit has for some time held the present views of the Fifth Circuit. Slotnick v. Staviskey, 560 F.2d 31 (1977); Kermit Construction Corp. v. Banco Credito y Ahorro Ponceno, 547 F.2d 1 (1976). The Court of Appeals of the Eighth Circuit has recently agreed. White v. Bloom, 621 F.2d 276 (1980).
4
In this respect, our holding in Adickes v. S. H. Kress & Co. was as follows:
"The involvement of a state official in such a conspiracy plainly provides the state action essential to show a direct violation of petitioner's Fourteenth Amendment equal protection rights, whether or not the actions of the police were officially authorized, or unlawful; Monroe v. Pape, 365 U.S. 167 [81 S.Ct. 473, 5 L.Ed.2d 492] (1961); see United States v. Classic, 313 U.S. 299, 326 [61 S.Ct. 1031, 1043, 85 L.Ed. 1368] (1941); Screws v. United States, 325 U.S. 91, 107-111 [65 S.Ct. 1031, 1038-1040, 89 L.Ed.2d 1495] (1945); Williams v. United States, 341 U.S. 97, 99-100 [71 S.Ct. 576, 578, 95 L.Ed. 774] (1951). Moreover, a private party involved in such a conspiracy, even though not an official of the State, can be liable under § 1983. 'Private persons, jointly engaged with state officials in the prohibited action, are acting "under color" of law for purposes of the statute. To act "under color" of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents,' United States v. Price, 383 U.S. 787, 794 [86 S.Ct. 1152, 1156, 16 L.Ed.2d 267] (1966)." 398 U.S., at 152, 90 S.Ct., at 1605 (Footnote omitted.)
5
Title 18 U.S.C. § 242, the criminal analog of § 1983, also contains a color-of-state-law requirement and we have interpreted the color-of-state-law requirement in these sections coextensively. Adickes v. S. H. Kress & Co., supra, at 152, n.7, 90 S.Ct., at 1605 n.7. A state judge can be found criminally liable under § 242 although that judge may be immune from damages under § 1983. See Imbler v. Pachtman, 424 U.S. 409, 429, 96 S.Ct. 984, 994, 47 L.Ed.2d 128 (1976); O'Shea v. Littleton, 414 U.S. 488, 503, 94 S.Ct. 669, 679, 38 L.Ed.2d 674 (1974). In either case, the judge has acted under color of state law.
6
Insofar as the immunity issue is concerned, it is interesting to note that petitioner observes that he would not be immune in the Texas courts, even if the judge is. Brief for Petitioner 28.
7
Whether the federal courts should be especially alert to avoid undue interference with the state judicial system flowing from demands upon state judges to appear as witnesses need not be addressed at this time.
| 12
|
449 U.S. 48
101 S.Ct. 557
66 L.Ed.2d 253
State of WISCONSIN et al., Complainants,v.State of ILLINOIS and the Metropolitan Sanitary District of Greater Chicago et al., Defendant, United States, Intervenor. State of MICHIGAN, Complainant, v. State of ILLINOIS and the Metropolitan Sanitary District of Greater Chicago et al., Defendant, United States, Intervenor. State of NEW YORK, Complainant, v. State of ILLINOIS and the Metropolitan Sanitary District of Greater Chicago et al., Defendant, United States, Intervenor
No. 1 Orig
Supreme Court of the United States
December 1, 1980
ORDER
Ordered:
A. Paragraph 3 of the Decree entered by the Court herein on June 12, 1967, 388 U.S. 426, 87 S.Ct. 1774, 18 L.Ed.2d 1290, is amended to read as follows:
3. For the purpose of determining whether the total amount of water diverted from Lake Michigan by the State of Illinois and its municipalities, political sub-divisions, agencies and instrumentalities is not in excess of the maximum amount permitted by this decree, the amounts of domestic pumpage from the lake by the State and its municipalities, political sub-divisions, agencies and instrumentalities the sewage and sewage effluent derived from which reaches the Illinois waterway, either above or below Lockport, shall be added to the amount of direct diversion into the canal from the lake and storm runoff reaching the canal from the Lake Michigan watershed computed as provided in Paragraph 2 of this decree. The annual accounting period shall consist of twelve months terminating on the last day of September. A period of forty (40) years, consisting of the current annual accounting period and the previous thirty-nine (39) such periods (all after the effective date of this decree), shall be permitted, when necessary, for achieving an average diversion which is not in excess of the maximum permitted amount; provided, however, that the average diversion in any annual accounting period shall not exceed 3680 cubic feet per second, except that in any two (2) annual accounting periods within a forty (40) year period, the average annual diversion may not exceed 3840 cubic feet per second as a result of extreme hydrologic conditions; and, that for the first thirty-nine (39) years the cumulative algebraic sum of each annual accounting period's average diversion minus 3200 cubic feet per second shall not exceed 2000 cubic feet per second-years. All measurements and computations required by this decree shall be made by the appropriate officers, agencies or instrumentalities of the State of Illinois, or the Corps of Engineers of the United States Army subject to agreement with and cost-sharing by the State of Illinois for all reasonable costs including equipment, using the best current engineering practice and scientific knowledge. If made by the State of Illinois, the measurements and computations shall be conducted under the continuous supervision and direction of the Corps of Engineers of the United States Army in cooperation and consultation with the United States Geological Survey, including but not limited to periodic field investigation of measuring device calibration and data gathering. All measurements and computations made by the State of Illinois shall be subject to periodic audit by the Corps of Engineers. An annual report on the measurements and computations required by this decree shall be issued by the Corps of Engineers. Best current engineering practice and scientific knowledge shall be determined within six (6) months after implementation of the decree based upon a recommendation from a majority of the members of a three-member committee. The members of this committee shall be appointed by the Chief of Engineers of the United States Army Corps of Engineers. The members shall be selected on the basis of recognized experience and technical expertise in flow measurement or hydrology. None of the committee members shall be employees of the Corps of Engineers or employees or paid consultants of any of the parties to these proceedings other than the United States. The Corps of Engineers shall convene such a committee upon implementation of this decree and at least each five (5) years after implementation of this decree to review and report to the Corps of Engineers and the parties on the method of accounting and the operation of the accounting procedure. Reasonable notice of these meetings must be given to each of the parties. Each party to these proceedings shall have the right to attend committee meetings, inspect any and all measurement facilities and structures, have access to any data and reports and be permitted to take its own measurements.
B. Paragraph 5 of the said Decree entered by the Court herein is amended by adding thereto an additional sentence to read as follows:
The amendment to Paragraph 3 of this decree shall take effect on the first day of October following the passage into law by the General Assembly of the State of Illinois of an amendment to the Level of Lake Michigan Act providing that the amount used for dilution in the Sanitary and Ship Canal for water quality purposes shall not be increased above three hundred twenty (320) cubic feet per second, and that in allocations to new users of Lake Michigan water, allocations for domestic purposes be given priority and to the extent practicable allocations to new users of Lake Michigan water shall be made with the goal of reducing withdrawals from the Cambrian-Ordovician aquifer.
C. A certified copy of the above legislation shall be served upon the parties and filed with the Clerk of the Supreme Court by the State of Illinois. If no party raises an objection to the adequacy of the legislation within 30 days of service, Illinois will have complied with the requirements of the amendment made by this Order to paragraph 5 of the Decree entered by the Court herein on June 12, 1967. Any such objection shall be raised in the manner set forth in Paragraph 7 of said Decree.
It is Further Ordered that:
Each of the parties to this proceeding shall bear its own costs. The expenses of the Special Master shall be borne by the State of Illinois and the Metropolitan Sanitary District of Greater Chicago, three-fifths thereof by the State of Illinois and two-fifths thereof by the Metropolitan Sanitary District of Greater Chicago.
Justice MARSHALL took no part in the consideration or decision of this order.
1
STATEMENT OF INTENT AND TECHNICAL BASIS FOR PROPOSED AMENDMENTS TO 1967 DECREE
2
This statement sets forth the intent of the parties and the technical basis for the revisions to certain of the provisions of paragraphs 3 and 5 of the 1967 Decree.
3
The proposed change in the 1967 Decree has been designed to alter in part the provisions of the existing Decree that prevent Illinois from effectively utilizing and managing the 3200 cubic feet per second (cfs) of Lake Michigan water which Illinois was allocated.
4
Under the existing system, increasing amounts of impervious areas and increasing demand by domestic users elevate the risk that the language of the decree will be violated in any one or five year period if additional allocations are made by the State to domestic users for a period of years consistent with good management practice.
5
The proposed change accomplishes the following:
6
1. Increases the period for determining compliance with the 3200 cfs limit from a five year running average to a forty year running average;
7
2. During the first thirty-nine years of the decree, allows Illinois to exceed the 3200 cfs limit by 2000 cfs-years in the aggregate (one cfs-year is the volume of water resulting from an average flow of one cfs for a period of one year); 3. Limits the average diversion in any one accounting period to 115% of 3200 cfs, but in two years of any forty year period permits the average diversion to reach 120% of 3200 cfs, to allow for extreme hydrologic conditions.
8
The lengthening of the averaging period from five to forty years reduces the variability of the averaged figure, thus decreasing the amount of water that needs to be held in reserve for storm water runoff and increasing the amount of water that may be allocated for domestic purposes to reduce in part the pumpage from the Cambrian-Ordovician aquifer.
9
The lengthening of the averaging period also allows an increase in the planning period to a period of time that is more compatible with the life of certain types of water supply facilities, thus permitting more efficient use of the available diversion without increasing the total allowable diversion, and permitting better management of all the water resources of the region.
10
In establishing the limits of paragraph three of the amended decree, the available data and uncertainties as to the behavior of and interactions between the various elements of the hydrologic regime under current and future conditions were limiting factors.
11
To estimate maximum hydrologic variations that must be considered in the allocation accounting process, the forty-four year precipitation and runoff data contained in "Water Yield, Urbanization, and the North Branch of the Chicago River," a report by the Northeastern Illinois Planning Commission and Hydrocomp, Inc., dated October 14, 1976, were used. These data assumed a 30% imperviousness factor and were used by the parties to approximate the conditions of the entire Lake Michigan diversion watershed at the present time.
12
These data indicate that the maximum departure above the mean annual stormwater flow is 59%. Assuming, therefore, that the mean annual stormwater flow is 683 cfs, the maximum departure is 405 cfs. This could result in a diversion of 13% above the allowable 3200 cfs maximum. Given the relatively short period of record and the likelihood of increased runoff resulting from urbanization, it was agreed that a 15% exceedance, to a maximum of 3680 cfs, would be allowed in any year to accommodate high stormflows and that in any two years of the 40 year accounting period the diversion may be increased by 20%, to a maximum of 3840 cfs, to accommodate extraordinary hydrologic conditions.
13
Because of year-to-year variations in storm runoff there will be series of years when the average annual diversion will need to exceed 3200 cfs for best management, and some years when the diversion will be less than the 3200 cfs average. Calculations of the cumulative sum of the annual departures show that the maximum cumulative exceedance of 3200 cfs would be slightly below 1500 cfs-years as indicated by the forty-four years of data that were used. The possibility exists that in the initial forty year period the cumulative exceedance may be greater than 1500 cfs-years. Since the record used is relatively short and urbanization is likely to increase runoff, the maximum cumulative exceedance has been established at 2000 cfs-years.
14
The goal of this amended Decree is to maintain the long-term average annual diversion of water from Lake Michigan at or below 3200 cfs.
| 1011
|
449 U.S. 64
101 S.Ct. 295
66 L.Ed.2d 268
ENVIRONMENTAL PROTECTION AGENCY, Petitioner,v.NATIONAL CRUSHED STONE ASSOCIATION et al. Douglas COSTLE, Administrator, Environmental Protection Agency, Petitioner, v. CONSOLIDATION COAL CO. et al.
No. 79-770.
Argued Oct. 7, 1980.
Decided Dec. 2, 1980.
Syllabus
Under § 301(b) of the Federal Water Pollution Control Act, the Environmental Protection Agency (EPA) is to set 1977 effluent limitations for categories of point sources, requiring such sources to meet standards based on application of the "best practicable control technology currently available" (BPT), and 1987 limitations, requiring all point sources to meet standards based on application of the "best available technology economically achievable" (BAT). Section 301(c) of the Act provides for variances from 1987 BAT effluent limitations for individual point sources upon a showing "that such modified requirements (1) will represent the maximum use of technology within the economic capability of the owner or operators; and (2) will result in reasonable further progress toward the elimination of the discharge of pollutants." However, the Act contains no similar variance provision authorizing consideration of the economic ability of the individual operator to meet the cost of complying with 1977 BPT standards. In 1977, the EPA promulgated BPT pollution discharge limitations for the coal mining industry and for certain portions of the mineral mining and processing industry. Under the regulations, a greater than normal cost of implementation will be considered in acting on a request for a variance, but a variance will not be granted on the basis of the applicant's economic inability to meet the cost of implementing the uniform standard. Respondents sought review of the regulations in various Courts of Appeals, challenging both the substantive standards and the variance clause. All of the petitions were transferred to the Court of Appeals for the Fourth Circuit, which set aside the variance provision as unduly restrictive and required the EPA to consider, inter alia, the factors set out in § 301(c), including the applicant's economic capability.
Held : The Court of Appeals erred in not accepting the EPA's interpretation of the Act. The EPA is not required by the Act to consider economic capability in granting variances from its uniform BPT standards. Pp. 73-85.
(a) The statute's plain language does not support the Court of Appeals' position. Section 301(c)'s requirement for a BAT variance of "reasonable further progress" toward the elimination of pollutant discharges refers to the prior BPT standard, but there is no comparable prior standard with respect to BPT limitations. And since BPT limitations do not require an industrial category to commit the maximum resources economically possible to pollution control, even if affordable, the § 301(c) BAT variance factor as to the maximum use of technology within the applicant's economic capability is inapposite in the BPT context. More importantly, under the Act, the Administrator of the EPA, in determining BPT limitations, is directed to consider the benefits of effluent reductions as compared to the cost of pollution control in defining the best practicable technology at a level that would effect the 1977 goal of substantially reducing total pollution produced by each industrial category. Thus, the statute contemplated regulations that would require a substantial number of point sources with the poorest performances either to conform to BPT standards or to cease production. To allow a BPT variance based on economic capability and not to require adherence to the prescribed minimum technology would permit the employment of the very practices that the Administrator had rejected in establishing the best practicable technology currently available in the industry. Pp. 73-78.
(b) The EPA's interpretation of the statutory language is also supported by the legislative history, which shows that Congress understood that the economic capability provision of § 301(c) was limited to BAT variances; foresaw and accepted the economic hardship, including the closing of some plants, that BPT effluent limitations would cause; and took certain steps to alleviate this hardship, steps which did not include allowing a BPT variance based on economic capability. Pp. 79-83.
(c) In the face of § 301(c)'s explicit limitation to BAT variances and in the absence of any other specific direction in the statute to provide for BPT variances in connection with permits for individual point sources, the Administrator adopted a reasonable construction of the statutory mandate, and the Court of Appeals erred in concluding that, since BAT limitations are to be more stringent than BPT limitations, the variance provision for the latter must be at least as flexible as that for the former with respect to affordability. Pp. 83-84.
CA 4, 601 F.2d 111 (first case) and CA 4, 604 F.2d 239 (second case), reversed.
Andrew J. Levander, Washington, D. C., for petitioner, pro hac vice, by special leave of the Court.
George C. Freeman, Jr., Richmond, Va., for the respondents Consolidation Coal Company, et al.
Theodore L. Garrett, Washington, D. C., for respondents National Crushed Stone Association, et al.
Justice WHITE delivered the opinion of the Court.
1
In April and July 1977, the Environmental Protection Agency (EPA), acting under the Federal Water Pollution Control Act (Act), as amended, 86 Stat. 816, 33 U.S.C. § 1251 et seq., promulgated pollution discharge limitations for the coal mining industry and for that portion of the mineral mining and processing industry comprising the crushed-stone, construction-sand, and gravel categories.1 Although the Act does not expressly authorize or require variances from the 1977 limitation, each set of regulations contained a variance provision.2 Respondents sought review of the regulations in various Courts of Appeals, challenging both the substantive standards and the variance clause.3 All of the petitions for review were transferred to the Court of Appeals for the Fourth Circuit. In National Crushed Stone Assn. v. EPA, 601 F.2d 111 (1979), and in Consolidation Coal Co. v. Costle, 604 F.2d 239 (1979), the Court of Appeals set aside the variance provision as "unduly restrictive" and remanded the provision to EPA for reconsideration.4
2
To obtain a variance from the 1977 uniform discharge limitations a discharger must demonstrate that the "factors relating to the equipment or facilities involved, the process applied, or other such factors relating to such discharger are fundamentally different from the factors considered in the establishment of the guidelines." Although a greater than normal cost of implementation will be considered in acting on a request for a variance, economic ability to meet the costs will not be considered.5 A variance, therefore, will not be granted on the basis of the applicant's economic inability to meet the costs of implementing the uniform standard.
3
The Court of Appeals for the Fourth Circuit rejected this position. It required EPA to "take into consideration, among other things, the statutory factors set out in § 301(c)," which authorizes variances from the more restrictive pollution limitations to become effective in 1987 and which specifies economic capability as a major factor to be taken into account.6 The court held that
4
" 'if [a plant] is doing all that the maximum use of technology within its economic capability will permit and if such use will result in reasonable further progress toward the elimination of the discharge of pollutants . . . no reason appears why [it] should not be able to secure such a variance should it comply with any other requirements of the variance.' " 601 F.2d, at 124, quoting from Appalachian Power Co. v. Train, 545 F.2d 1351, 1378 (CA4 1976).
5
We granted certiorari to resolve the conflict between the decisions below and Weyerhaeuser Co. v. Costle, 191 U.S.App.D.C. 309, 590 F.2d 1011 (1978), in which the variance provision was upheld. 444 U.S. 1069, 100 S.Ct. 1011, 62 L.Ed.2d 750.
6
* We shall first briefly outline the basic structure of the Act, which translates Congress' broad goal of eliminating "the discharge of pollutants into the navigable waters," 33 U.S.C. § 1251(a)(1), into specific requirements that must be met by individual point sources.7
7
Section 301(b) of the Act, 33 U.S.C. § 1311(b) (1976 ed. and Supp. III), authorizes the Administrator to set effluent limitations for categories of point sources.8 With respect to existing point sources, the section provides for implementation of increasingly stringent effluent limitations in two steps. The first step, to be accomplished by July 1, 1977, requires all point sources to meet standards based on "the application of the best practicable control technology currently available [BPT] as defined by the Administrator. . . ." § 301(b)(1)(A). The second step, to be accomplished by July 1, 1987, requires all point sources to meet standards based on application of the "best available technology economically achievable [BAT] for such category or class. . . ."9 § 301(b)(2)(A). Both sets of limitations-BPT's followed within 10 years by BAT's-are to be based upon regulatory guidelines established under § 304(b).
8
Section 304(b) of the Act, 33 U.S.C. § 1314(b), is again divided into two sections corresponding to the two levels of technology, BPT and BAT. Under § 304(b)(1) the Administrator is to quantify "the degree of effluent reduction attainable through the application of the best practicable control technology currently available [BPT] for classes and categories of point sources. . . ." In assessing the BPT the Administrator is to consider
9
"the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application, . . . the age of equipment and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques, process changes, non-water quality environmental impact (including energy requirements), and such other factors as the Administrator deems appropriate." 33 U.S.C. § 1314(b)(1)(B).
10
Similar directions are given the Administrator for determining effluent reductions attainable from the BAT except that in assessing BAT total cost is no longer to be considered in comparison to effluent reduction benefits.10
11
Section 402 authorizes the establishment of the National Pollutant Discharge Elimination System (NPDES), under which every discharger of pollutants is required to obtain a permit. The permit requires the discharger to meet all the applicable requirements specified in the regulations issued under § 301. Permits are issued by either the Administrator or state agencies that have been approved by the Administrator.11 The permit "transform[s] generally applicable effluent limitations . . . into the obligations (including a timetable for compliance) of the individual discharger. . . ." EPA v. California ex rel. State Water Resources Control Board, 426 U.S. 200, 205, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976).
12
Section 301(c) of the Act explicitly provides for modifying the 1987 (BAT) effluent limitations with respect to individual point sources. A variance under § 301(c) may be obtained upon a showing "that such modified requirements (1) will represent the maximum use of technology within the economic capability of the owner or operator; and (2) will result in reasonable further progress toward the elimination of the discharge of pollutants." Thus, the economic ability of the individual operator to meet the costs of effluent reductions may in some circumstances justify granting a variance from the 1987 limitations.
13
No such explicit variance provision exists with respect to BPT standards, but in E. I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977), we indicated that a variance provision was a necessary aspect of BPT limitations applicable by regulations to classes and categories of point sources. Id., at 128, 97 S.Ct., at 975. The issue in this case is whether the BPT variance provision must allow consideration of the economic capability of an individual discharger to afford the costs of the BPT limitation. For the reasons that follow, our answer is in the negative.12
II
14
The plain language of the statute does not support the position taken by the Court of Appeals. Section 301(c) is limited on its face to modifications of the 1987 BAT limitations. It says nothing about relief from the 1977 BPT requirements. Nor does the language of the Act support the position that although § 301(c) is not itself applicable to BPT standards, it requires that the affordability of the prescribed 1977 technology be considered in BPT variance decisions.13 This would be a logical reading of the statute only if the factors listed in § 301(c) bore a substantial relationship to the considerations underlying the 1977 limitations as they do to those controlling the 1987 regulations. This is not the case.
15
The two factors listed in § 301(c)-"maximum use of technology within the economic capability of the owner or operator" and "reasonable further progress toward the elimination of the discharge of pollutants"-parallel the general definition of BAT standards as limitations that "require application of the best available technology economically achievable for such category or class, which will result in reasonable further progress toward . . . eliminating the discharge of all pollutants. . . ." § 301(b)(2). A § 301(c) variance, thus, creates for a particular point source a BAT standard that represents for it the same sort of economic and technological commitment as the general BAT standard creates for the class. As with the general BAT standard, the variance assumes that the 1977 BPT standard has been met by the point source and that the modification represents a commitment of the maximum resources economically possible to the ultimate goal of eliminating all polluting discharges. No one who can afford the best available technology can secure a variance.
16
There is no similar connection between § 301(c) and the considerations underlying the establishment of the 1977 BPT limitations. First, § 301(c)'s requirement of "reasonable further progress" must have reference to some prior standard. BPT serves as the prior standard with respect to BAT. There is, however, no comparable, prior standard with respect to BPT limitations.14 Second, BPT limitations do not require an industrial category to commit the maximum economic resources possible to pollution control, even if affordable. Those point sources already using a satisfactory pollution control technology need take no additional steps at all. The § 301(c) variance factor, the "maximum use of technology within the economic capability of the owner or operator," would therefore be inapposite in the BPT context. It would not have the same effect there that it has with respect to BAT's, i. e., it would not apply the general requirements to an individual point source.
17
More importantly, to allow a variance based on the maximum technology affordable by the point source, even if that technology fails to meet BPT effluent limitations, would undercut the purpose and function of BPT limitations. Rather than the 1987 requirement of the best measures economically and technologically feasible, the statutory provisions for 1977 contemplate regulations prohibiting discharges from any point source in excess of the effluent produced by the best practicable technology currently available in the industry. The Administrator was referred to the industry and to existing practices to determine BPT. He was to categorize point sources, examine control practices in exemplary plants in each category, and, after weighing benefits and costs and considering other factors specified by § 304, determine and define the best practicable technology at a level that would effect the obvious statutory goal for 1977 of substantially reducing the total pollution produced by each category of the industry.15 Necessarily, if pollution is to be diminished, limitations based on BPT must forbid the level of effluent produced by the most pollution-prone segment of the industry, that segment not measuring up to "the average of the best existing performance." So understood, the statute contemplated regulations that would require a substantial number of point sources with the poorest performances either to conform to BPT standards or to cease production. To allow a variance based on economic capability and not to require adherence to the prescribed minimum technology would permit the employment of the very practices that the Administrator had rejected in establishing the best practicable technology currently in use in the industry.
18
To put the matter another way, under § 304, the Administrator is directed to consider the benefits of effluent reductions as compared to the costs of pollution control in determining BPT limitations. Thus, every BPT limitation represents a conclusion by the Administrator that the costs imposed on the industry are worth the benefits in pollution reduction that will be gained by meeting those limits. To grant a variance because a particular owner or operator cannot meet the normal costs of the technological requirements imposed on him, and not because there has been a recalculation of the benefits compared to the costs, would be inconsistent with this legislative scheme and would allow a level of pollution inconsistent with the judgment of the Administrator.16
19
In terms of the scheme implemented by BPT limitations, the factors that the Administrator considers in granting variances do not suggest that economic capability must also be a determinant. The regulations permit a variance where "factors relating to the equipment or facilities involved, the process applied, or such other factors relating to such discharger are fundamentally different from the factors considered in the establishment of the guidelines." If a point source can show that its situation, including its costs of compliance, is not within the range of circumstances considered by the Administrator, then it may receive a variance, whether or not the source could afford to comply with the minimum standard.17 In such situations, the variance is an acknowledgment that the uniform BPT limitation was set without reference to the full range of current practices, to which the Administrator was to refer. Insofar as a BPT limitation was determined without consideration of a current practice fundamentally different from those that were considered by the Administrator, that limitation is incomplete. A variance based on economic capability, however, would not have this character: it would allow a variance simply because the point source could not afford a compliance cost that is not fundamentally different from those the Administrator has already considered in determining BPT. It would force a displacement of calculations already performed, not because those calculations were incomplete or had unexpected effects, but only because the costs happened to fall on one particular operator, rather than on another who might be economically better off.
20
Because the 1977 limitations were intended to reduce the total pollution produced by an industry, requiring compliance with BPT standards necessarily imposed additional costs on the segment of the industry with the least effective technology. If the statutory goal is to be achieved, these costs must be borne or the point source eliminated. In our view, requiring variances from otherwise valid regulations where dischargers cannot afford normal costs of compliance would undermine the purpose and the intended operative effect of the 1977 regulations.
III
21
The Administrator's present interpretation of the language of the statute is amply supported by the legislative history, which persuades us that Congress understood that the economic capability provision of § 301(c) was limited to BAT variances; that Congress foresaw and accepted the economic hardship, including the closing of some plants, that effluent limitations would cause; and that Congress took certain steps to alleviate this hardship, steps which did not include allowing a BPT variance based on economic capability.18
22
There is no indication that Congress intended § 301(c) to reach further than the limitations of its plain language. The statement of the House managers of the Act described § 301(c) as "not intended to justify modifications which would not represent an upgrading over the July 1, 1977, requirements of 'best practicable control technology.' " Leg.Hist. 232. The Conference Report noted that a § 301(c) variance could only be granted after the effective date of BPT limitations and could only be applied to BAT limitations. Similarly, the Senate Report on the Conference action emphasized that one of the purposes of the BPT limitation was to avoid imposing on the "Administrator any requirement . . . to determine the economic impact of controls on any individual plant in a single community." Leg.Hist. 170.
23
Nor did Congress restrict the reach of § 301(c) without understanding the economic hardships that uniform standards would impose. Prior to passage of the Act, Congress had before it a report jointly prepared by EPA, the Commerce Department, and the Council on Environmental Quality on the impact of the pollution control measures on industry.19 That report estimated that there would be 200 to 300 plant closings caused by the first set of pollution limitations. Comments in the Senate debate were explicit: "There is no doubt that we will suffer some disruptions in our economy because of our efforts; many marginal plants may be forced to close." Leg.Hist. 1282 (Sen. Bentsen).20 The House managers explained the Conference position as follows:
24
"If the owner or operator of a given point source determines that he would rather go out of business than meet the 1977 requirements, the managers clearly expect that any discharge issued in the interim would reflect the fact that all discharges not in compliance with such 'best practicable technology currently available' would cease by June 30, 1977." Id., at 231.
25
Congress did not respond to this foreseen economic impact by making room for variances based on economic impact. In fact, this possibility was specifically considered and rejected:
26
"The alternative [to a loan program] would be waiving strict environmental standards where economic hardship could be shown. But the approach of giving variances to pollution controls based on economic grounds has long ago shown itself to be a risky course: All too often, the variances become a tool used by powerful political interests to obtain so many exemptions for pollution control standards and timetables on the filmsiest [sic] of pretenses that they become meaningless. In short, with variances, exceptions to pollution cleanup can become the rule, meaning further tragic delay in stopping the destruction of our environment." Id., at 1355 (Sen. Nelson).
27
Instead of economic variances, Congress specifically added two other provisions to address the problem of economic hardship.
28
First, provision was made for low-cost loans to small businesses to help them meet the cost of technological improvements. 86 Stat. 898, amending § 7 of the Small Business Act, 15 U.S.C. § 636. The Conference Report described the provision as authorizing the Small Business Administration "to make loans to assist small business concerns . . . if the Administrator determines that the concern is likely to suffer substantial economic injury without such assistance." Leg.Hist. 153. Senator Nelson, who offered the amendment providing for these loans, saw the loans as an alternative to the dangers of an economic variance provision that he felt might otherwise be necessary.21 Several Congressmen understood the loan program as an alternative to forced closings: "It is the smaller business that is hit hardest by these laws and their enforcement. And it is that same class of business that has the least resources to meet the demands of this enforcement. . . . Without assistance, many of these businesses may face extinction." Id., at 1359 (Sen. McIntyre).22
29
Second, an employee protection provision was added, giving EPA authority to investigate any plant's claim that it must cut back production or close down because of pollution control regulations. § 507(e), 86 Stat. 890, 33 U.S.C. § 1367(e).23 This provision had two purposes: to allow EPA constantly to monitor the economic effect on industry of pollution control rules and to undercut economic threats by industry that would create pressure to relax effluent limitation rules.24 Representative Fraser explained this second purpose as follows:
30
"[T]he purpose of the amendment is to provide for a public hearing in the case of an industry claim that enforcement of these water-control standards will force it to relocate or otherwise shut down operations. . . . I think too many companies use the excuse of compliance, or the need for compliance, to change operations that are going to change anyway. It is this kind of action that gives the whole antipollution effort a bad name and causes a great deal of stress and strain in the community." Leg.Hist. 659.
31
The only protection offered by the provision, however, is the assurance that there will be a public inquiry into the facts behind such an economic threat. The section specifically concludes that "[n]othing in this subsection shall be construed to require or authorize the Administrator to modify or withdraw any effluent limitation or order issued under this chapter." § 507(e), 33 U.S.C. § 1367(e).
32
As we see it, Congress anticipated that the 1977 regulations would cause economic hardship and plant closings: "[T]he question . . . is not what a court thinks is generally appropriate to the regulatory process; it is what Congress intended for these regulations." Du Pont, 430 U.S., at 138, 97 S.Ct., at 980.
IV
33
It is by now a commonplace that "when faced with a problem of statutory construction, this Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration." Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965).25 The statute itself does not provide for BPT variances in connection with permits for individual point sources, and we had no occasion in Du Pont to address the adequacy of the Administrator's 1977 variance provision. In the face of § 301(c)'s explicit limitation and in the absence of any other specific direction to provide for variances in connection with permits for individual point sources, we believe that the Administrator has adopted a reasonable construction of the statutory mandate.
34
In rejecting EPA's interpretation of the BPT variance provision, the Court of Appeals relied on a mistaken conception of the relation between BPT and BAT standards. The court erroneously believed that since BAT limitations are to be more stringent than BPT limitations, the variance provision for the latter must be at least as flexible as that for the former with respect to affordability.26 The variances permitted by § 301(c) from the 1987 limitations, however, can reasonably be understood to represent a cost in decreased effluent reductions that can only be afforded once the minimal standard expressed in the BPT limitation has been reached.27
35
We conclude, therefore, that the Court of Appeals erred in not accepting EPA's interpretation of the Act. EPA is not required by the Act to consider economic capability in granting variances from its uniform BPT regulations.
The judgments of the Court of Appeals are
36
Reversed.
37
Justice POWELL took no part in the consideration or decision of these cases.
1
The coal mining standards were published at 42 Fed.Reg. 21380 et seq. (1977), adopting 40 CFR Part 434. The mineral mining and processing standards were published at 42 Fed.Reg. 35843 et seq. (1977), adopting 40 CFR Part 436.
2
The variance provision reads as follows:
"In establishing the limitations set forth in this section, EPA took into account all information it was able to collect, develop and solicit with
respect to factors (such as age and size of plant, raw materials, manufacturing processes, products produced, treatment technology available, energy requirements and costs) which can affect the industry subcategorization and effluent levels established. It is, however, possible that data which would affect these limitations have not been available and, as a result, these limitations should be adjusted for certain plants in this industry. An individual discharger or other interested person may submit evidence to the Regional Administrator (or to the State, if the State has the authority to issue NPDES permits) that factors relating to the equipment or facilities involved, the process applied, or other such factors related to such discharger are fundamentally different from the factors considered in the establishment of the guidelines. On the basis of such evidence or other available information, the Regional Administrator (or the State) will make a written finding that such factors are or are not fundamentally different for that facility compared to those specified in the Development Document. If such fundamentally different factors are found to exist, the Regional Administrator or the State shall establish for the discharger effluent limitations in the NPDES permit either more or less stringent than the limitations established herein, to the extent dictated by such fundamentally different factors. Such limitation must be approved by the Administrator of the Environmental Protection Agency. The Administrator may approve or disapprove such limitations, specify other limitations, or initiate proceedings to revise these regulations."
See 40 CFR § 434.22 (1980) (coal preparation plants); § 434.32 (acid mine drainage); § 434.42 (alkaline mine drainage); § 436.22 (crushed stone) and § 436.32 (construction sand and gravel).
3
The actions were brought under § 509(b)(1)(E), which, as set forth in 33 U.S.C. § 1369(b)(1)(E), gives the courts of appeals jurisdiction to review "the Administrator's action . . . in approving or promulgating any effluent limitation or other limitation under section 1311 . . . of this title. . . ." Plaintiffs in National Crushed Stone were three producers and their trade association. Plaintiffs in Consolidation Coal were 17 coal producers, their trade association, 5 citizens' environmental associations, and the Commonwealth of Pennsylvania.
4
In National Crushed Stone, the Court of Appeals also vacated and remanded the substantive regulations. That action is not before the Court. In Consolidation Coal, the substantive regulations were upheld.
5
EPA has explained its position as follows:
"Thus a plant may be able to secure a BPT variance by showing that the plant's own compliance costs with the national guideline limitation would be x times greater than the compliance costs of the plants EPA considered in setting the national BPT limitation. A plant may not, however, secure a BPT variance by alleging that the plant's own financial status is such that it cannot afford to comply with the national BPT limitation." 43 Fed.Reg. 50042 (1978).
6
Section 301(c), 86 Stat. 844, 33 U.S.C. § 1311(c), allows the Administrator to grant a variance "upon a showing by the owner or operator . . . that such modified requirements (1) will represent the maximum use of technology within the economic capability of the owner or operator; and (2) will result in reasonable further progress toward the elimination of the discharge of pollutants."
7
A "point source" is defined as "any discernible, confined and discrete conveyance, . . . from which pollutants are or may be discharged." § 502(14), 33 U.S.C. § 1362(14) (1976 ed., Supp. III).
8
Throughout this opinion "Administrator" refers to the Administrator of EPA. In E. I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977), we sustained the Administrator's authority to issue the 1977 effluent limitations.
9
The Federal Water Pollution Control Act Amendments of 1972, 86 Stat. 816, required that the second-stage standards be met by 1983. This deadline was extended in the Clean Water Act of 1977, 91 Stat. 1567. Depending on the nature of the pollutant, the deadline for the more stringent limitations now falls between July 1, 1984, and July 1, 1987. The 1977 Act also replaced the BAT standard with a new standard, "best conventional pollutant control technology [BCT]," for certain so-called "conventional pollutants." 33 U.S.C. § 1311(b)(2)(E) (1976 ed., Supp. III). The distinction between BCT and BAT is not relevant to the issue presented here.
10
Senator Muskie, the principal Senate sponsor of the Act, described the "limited cost-benefit analysis" employed in setting BPT standards as being intended to "limit the application of technology only where the additional degree of effluent reduction is wholly out of proportion to the costs of achieving such marginal level of reduction. . . ." Remarks of Senator Muskie reprinted in Legislative History of the Water Pollution Control Act Amendments of 1972 (Committee Print compiled for the Senate Committee on Public Works by the Library of Congress) Ser. No. 93-1, p. 170 (1973) (hereafter Leg.Hist.). Section 304(b)(2)(B) lists "cost" as a factor to consider in assessing BAT, although it does not state that costs shall be considered in relation to effluent reduction.
11
Establishment of state permit programs is authorized by § 402(b), 33 U.S.C. § 1342(b) (1976 ed., Supp. III). At present, over 30 States and covered territories operate their own NPDES programs.
12
In Du Pont, we held that pre-enforcement review of the BPT variance provision would be "premature," 430 U.S., at 128, n.19, 97 S.Ct., at 975, n.19. In its petition for certiorari in this case, EPA argued that the Court of Appeals erred in reviewing the variance clause prior to application of the regulation to a particular discharger's request for a variance. EPA has now abandoned this position. We agree with the Court of Appeals that whatever may have been true at the time of Du Pont, pre-enforcement review of the variance provision is no longer premature since EPA has now taken the definitive position that the factors specified in § 301(c) apply only to BAT limitations, and not to BPT limitations. See 43 Fed.Reg. 44847-44848, 50042 (1978); 44 Fed.Reg. 32893-32894 (1979). But cf. n.25, infra. The Court of Appeals for the District of Columbia Circuit reached the same conclusion in considering the identical variance clause in the context of BPT standards for paper mills:
"In the three years that have now elapsed since du Pont was briefed and argued in the Fourth Circuit, however, enough indicia of the Agency's attitude toward the 1977 variance provision under the Act has [sic] accumulated so that its administration is anything but 'a matter of speculation.' " Weyerhaeuser Co. v. Costle, 191 U.S.App.D.C. 309, 330, 590 F.2d 1011, 1032 (1978) (citation omitted).
This is the proper result under the twofold test articulated in Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967), for evaluating the ripeness of administrative action. First, the issue is "fit" for judicial decision, because it involves only a question of law: whether the Court of Appeals properly construed the Act to require EPA to consider § 301(c) factors in granting BPT variances. Second, failure to review the variance issue now would cause "hardship" to the parties. The regulations in question affect thousands of point sources throughout the country-about 4,800 crushed-stone facilities and 6,000 coal facilities, many of them involved in this case through their trade associations. The resolution of this conflict will determine for some of these plants whether they will continue to exist or not, and for many others it will determine the level of funding they must budget for pollution controls. They should not be left to speculate on what the regulations require of them. Similarly, the EPA represents to the Court that a failure to resolve the issue will cause some hardship to EPA: "a present ruling . . . would advance rather than impede the administrative enforcement of the Act." Brief for Petitioners 21, n.17.
Moreover, in Du Pont, supra, we held that a uniform BPT effluent regulation must contain a variance provision, if it is to be valid. EPA has definitively stated that economic capability will not be a ground for a variance. Section 509(b)(1)(E) provides for judicial review of effluent
limitations promulgated pursuant to § 301, and these actions were brought under that section. Since the variance clause is an integral part of the regulation, review of the regulation must reach the question of whether this limitation on the scope of the variance provision renders the regulation invalid under Du Pont.
Finally, the fact that the Court of Appeals for the Fourth Circuit held the variance provision to be invalid, while the Court of Appeals for the District of Columbia Circuit in Weyerhaeuser, supra, upheld the same provision provides yet another reason for this Court to settle this controversy at this time. For all of these reasons, the issue is ripe for judicial review.
13
It is true that in Du Pont we said there "[was no] radical difference in the mechanism used to impose limitations for the 1977 and the 198[7] deadlines" and that "there is no indication in either § 301 or § 304 that the § 304 guidelines play a different role in setting 1977 limitations." 430 U.S., at 127, 97 S.Ct., at 974. But our decision in Du Pont was that the 1977 limitations, like the 1987 limitations, could be set by regulation and for classes of point sources. It dealt with the power of the Administrator and the procedures he was to employ. There was no suggestion, nor could there have been, that the 1977 BPT and the 1987 BAT limitations were to have identical purposes or content. It follows that no proper inference could be drawn from Du Pont that the grounds for issuing variances from the 1987 limitations should also be the grounds for permitting individual point sources to depart from 1977 standards. Indeed, our opinion recognized that § 301(c) was designed for BAT limitations, 430 U.S., at 121, 127, 97 S.Ct., at 971, 974, n.17. Had we thought that § 301(c) governed variances from both the BAT and BPT standards, there would have been no need to postpone to another day, as we did in 430 U.S., at 128, n.19, 97 S.Ct., at 975, n.19, the question whether the variance clause contained in the 1977 regulations had the proper scope. That scope would have been defined by § 301(c).
14
Also, the ultimate goal expressed in § 301(c), "the elimination of the discharge of pollutants," reflects the "national goal" specified in § 301(b)(2)(A) of "eliminating the discharge of all pollutants." This is not the aim of a BPT limitation; its more modest purpose is to effect a first step toward this goal. Thus, while BAT limitations may be regarded as falling between a level of effluent reduction already achieved and the ultimate goal, the frame of reference within which BPT limitations are established contains neither the prior nor the subsequent measure.
15
EPA defines BPT as "the average of the best existing performance by plants of various sizes, ages and unit processes within each industrial category or subcategory. This average is not based upon a broad range of plants within an industrial category or subcategory, but is based upon performance levels achieved by exemplary plants." 39 Fed.Reg. 6580 (1974). See also EPA, Effluent Guidelines Div., Development Document for Mineral Mining and Processing Point Source Category 409 (1979) and Development Document for Coal Mining 225 (1976). Support for this definition is found in the legislative history, Leg.Hist. 169-170 (remarks of Sen. Muskie); id., at 231 (remarks of Rep. Jones).
16
Respondents fail to consider this tension between a general calculation of costs and benefits and a particularized consideration of costs when they argue that because EPA only has authority to promulgate industrywide BPT regulations by analogy to its authority to promulgate industrywide BAT regulations, the same kind of economic capability/effluent reduction balancing relevant to a BAT variance must apply as well to a BPT variance.
17
Respondents argue that precluding consideration of economic capability in determining whether to grant a variance effectively precludes consideration of the "total costs" for the individual point source. Respondents rely upon a statement by Representative Jones as to the meaning of "total cost" in § 304(b)(1)(B): "internal, or plant, costs sustained by the owner or operator and those external costs such as potential unemployment, dislocation and rural area economic development sustained by the community, area, or region." Leg.Hist. 231. Unless economic capability is considered, it is argued, it will be impossible to consider the potential external costs of meeting a BPT limitation, caused by a plant closing. Although there is some merit to respondents' contention, we do not believe it supports the decision of the Court of Appeals. The court did not hold that economic capability is relevant only if it discloses "fundamentally different" external costs from those considered by EPA in establishing the BPT limitation; rather, the court held that the factors included in § 301(c) must be taken into consideration. Section 301(c) makes economic capability, regardless of its effect on external costs, a ground for a variance. It is this position that we reject.
18
Since any variance provision will permit nonuniformity with the general BPT standard for a given category, we cannot attribute much weight to those passages in the legislative history, to which EPA points, that express a desire and expectation that "each polluter within a category or class of industrial sources . . . achieve nationally uniform effluent limitations based on 'best practicable' technology no later than July 1, 1977." See Leg.Hist. 162 (statement of Sen. Muskie). See also, e. g., id., at 170; id., at 302, 309 (Conference Report); id., at 787 (Report of House Committee on Public Works). Moreover, EPA has itself stated that a variance does not represent an exception to BPT or BAT limitations, but rather sets an individualized BPT or BAT limitation for that point source: "No discharger . . . may be excused from the Act's requirement to meet BPT [and] BAT . . . through this variance clause. A discharger may instead receive an individualized definition of such a limitation or standard where the nationally prescribed limit is shown to be more or less stringent than appropriate for the discharger under the Act." 44 Fed.Reg. 32893 (1979). Therefore, expressions of an intent that "all" point sources meet BPT standards by 1977 do not necessarily support EPA's argument.
19
U.S. Council on Environmental Quality, Dept. of Commerce, & EPA, The Economic Impact of Pollution Control (Mar. 1972). See Leg.Hist. 156, 523.
20
See also remarks quoted in n.22, infra.
21
See quotation above.
22
Similar remarks were made by Representative Harrington ("No one in Congress wishes to legislate so irresponsibly that we drive out of business those who sincerely wish to abide by the new pollution laws but who, because of a bad state of the economy, will be forced to close. The $800 million authorized by this section may not be completely adequate. But it is a start," Leg.Hist. 450).
23
Section 507(e) provides in pertinent part: "The Administrator shall conduct continuing evaluations of potential loss or shifts of employment which may result from the issuance of any effluent limitation or order under this chapter, including, where appropriate, investigating threatened plant closures or reductions in employment allegedly resulting from such limitation or order. Any employee who is discharged or laid-off, threatened with discharge or lay-off . . . because of the alleged results of any effluent limitation or order issued under this chapter . . . may request the Administrator to conduct a full investigation of the matter. . . . [T]he Administrator shall make findings of fact as to the effect of such effluent limitation or order on employment and on the alleged discharge, lay-off, or discrimination and shall make such recommendations as he deems appropriate. Such report, findings, and recommendations shall be available to the public." 33 U.S.C. § 1367(e).
24
See Leg.Hist. 654-659. Representative Abzug emphasized the first purpose of the provision: "This amendment will allow the Congress to get a close look at the effects on employment of legislation such as this, and will thus place us in a position to consider such remedial legislation as may be necessary to ameliorate those effects." Id., at 658. Representative Miller noted that "some economic hardship, especially in smaller communities who rely on single, older plants, may result from the requirements of the pending bill," but opposed this provision because he thought that economic hardships caused by the Act should be addressed systematically by modifying the Economic Development Act. Ibid.
25
Respondents contend that deference to agency interpretation is not appropriate in this case because EPA has not consistently interpreted the BPT variance requirements. However, in only one instance has EPA stated that it would consider economic capability in relation to BPT variance applications. 43 Fed.Reg. 44846-44848 (1978). This was in response to the Court of Appeals decision in Appalachian Power Co. v. Train, 545 F.2d 1351 (CA4 1976), and EPA specifically limited this change to steam electric power generating plants, which were the subject of the court's order.
26
This argument appears in Appalachian Power, supra, at 1359, which the Court of Appeals relies upon in Crushed Stone. 601 F.2d, at 123.
The Court of Appeals also believed that because there will be situations in which the BPT and the BAT standards are identical, see Development Document for Mineral Mining, supra n.15, at 438, it would be illogical to allow a variance based on economic capability for the latter but not for the former. The result would be to "close a plant in 1979 which would be allowed to operate under a variance in 1983." 601 F.2d, at 124. This assumes, however, that a variance would be available even though BPT standards had not been met, an assumption which EPA rejects, Brief for Petitioners 27, and which is questionable in light of the legislative history. Leg.Hist. 232. ("This provision [§ 301(c)] is not intended to justify modifications which would not represent an upgrading over the July 1, 1977, requirements of 'best practicable control technology.' " (Rep. Jones, chairman of the House Conferees)). The suggested contradiction is accordingly unlikely to appear. In any event, it is of minor significance in considering the facial validity of the 1977 variance provisions.
27
We find no support for respondents' contention that Congress implicitly approved the Court of Appeals' reading of the variance provision, when it considered and passed the 1977 amendments to the Act. Respondents rely primarily on the discussion of Appalachian Power in a document prepared by the Library of Congress for the House Committee on Public Works and Transportation, Case Law Under the FWPCA Amendments of 1972 (Comm. Print 1977). However, that document notes that there was at that time a conflict in the United States Courts of Appeals over the validity of the variance provision and in no way indicates that the Appalachian Power decision was the correct interpretation. Id., at 28.
| 78
|
449 U.S. 54
101 S.Ct. 289
66 L.Ed.2d 258
COUNTY OF IMPERIAL, CALIFORNIA, et al., Petitioners,v.Guillermo Gallego MUNOZ et al.
No. 79-1003.
Argued Oct. 15, 1980.
Decided Dec. 2, 1980.
Syllabus
Petitioner county obtained an injunction in a California state court prohibiting the owner of a tract of land from selling water from a well on the premises for use outside the county in violation of a conditional use permit required by a county zoning ordinance and allowing the sale of water only for use within the county. The California Supreme Court affirmed, and this Court dismissed the tract owner's appeal. Meanwhile, respondents, merchants involved in the tract owner's sale of water to Mexico, brought suit in Federal District Court in California, challenging the conditional permit on the ground that it violated the Commerce Clause, and secured a preliminary injunction restraining petitioner county from enforcing the permit. The court rejected the county's argument that the Anti-Injunction Act---which prohibits a federal court from granting an injunction "to stay proceedings in a State court" except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments---operated to prohibit the court from so enjoining the county. The United States Court of Appeals affirmed, holding that the state trial court proceedings had terminated, that the federal injunction, therefore, did not violate the rule that the Anti-Injunction Act cannot be evaded by addressing a federal injunction to the parties rather than the state court, and that, moreover, under Hale v. Bimco Trading, Inc., 306 U.S. 375, 59 S.Ct. 526, 83 L.Ed. 771, third parties were not barred under that Act from challenging a statute on federal constitutional grounds when the statute was also under litigation in the state courts.
Held : The Court of Appeals erred in finding the Anti-Injunction Act inapplicable to prohibit the District Court from enjoining petitioner county from enforcing the tract owner's permit. Pp. 58-60.
(a) The Court of Appeals' view that after a state court has entered an injunction, its proceedings are concluded for Anti-Injunction Act purposes is contrary to the holding of Atlantic Coast Line R. Co. v. Locomotive Engineers, 398 U.S. 281, 90 S.Ct. 1739, 26 L.Ed.2d 234, that although a federal injunction against a certain party's giving effect to a state-court injunction was directed only at that party the injunction was nevertheless one "to stay proceedings in a State court" within the meaning of the Anti-Injunction Act. Pp. 58-59.
(b) Hale v. Bimco Trading, Inc., supra, does not govern this case, where neither the District Court nor the Court of Appeals addressed the question whether respondents were "strangers to the state court proceeding" who were not bound as though they were parties to such proceeding. Unless respondents were such "strangers," the federal injunction was barred by the Anti-Injunction Act. Pp. 59-60.
9 Cir., 604 F.2d 1174, vacated and remanded.
James H. Harmon, El Centro, Cal., for petitioners.
William H. Kronberger, Jr., San Diego, Cal., for respondents.
Justice STEWART delivered the opinion of the Court.
1
The Anti-Injunction Act, 28 U.S.C. § 2283, provides:
2
"A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments."
3
This case presents issues respecting the scope of that Act.
4
* In 1972, Donald C. McDougal bought from W. Erle Simpson a tract of land in Imperial County, Cal. Although the tract was in a residential subdivision, the county's zoning ordinance allowed the tract's owner to develop its natural resources if he could obtain a conditional-use permit. With the land, McDougal acquired such a permit, which allowed him to sell well water on the condition that it be sold only for use within the county. Simpson had never challenged that condition, nor had he ever sold much water from his well. Like Simpson, McDougal did not challenge the condition, but he did sell a good deal of water, and he sold some of it for use outside the county. McDougal's neighbors grew irritated by the many trucks carrying water from McDougal's premises, and they complained to the county. The county sought to vindicate its zoning ordinance and permit by asking a California Superior Court for injunctive and declaratory relief that would prohibit McDougal from selling water for consumption outside the county.
5
The state trial court enjoined McDougal from "conducting a trucking operation on the premises similar to that which occurred commencing on or about June 30, 1972."1 On appeal to the California Supreme Court, McDougal argued that the permit's geographic restriction was invalid. The state appellate court declined to reach that argument, since "a landowner or his successor in title is barred from challenging a condition imposed upon the granting of a special permit if he has acquiesced therein by either specifically agreeing to the condition or failing to challenge its validity, and accepted the benefits afforded by the permit." County of Imperial v. McDougal, 19 Cal.3d 505, 510-511, 138 Cal.Rptr. 472, 476, 564 P.2d 14, 18. The California Supreme Court thus affirmed the Superior Court's decision that the sale of water outside the county violated the ordinance, although it reversed the Superior Court's finding that the frequent truck traffic at McDougal's premises violated the zoning ordinance. McDougal appealed that judgment to this Court, which dismissed his appeal for want of a substantial federal question. 434 U.S. 944, 98 S.Ct. 469, 54 L.Ed.2d 306.
6
The respondents in this case are Mexican merchants: Respondent Munoz has a contract with McDougal to be his broker in arranging sales of water to Mexico; respondents Martinez and De Leon have agreed to purchase McDougal's water for consumption in Mexico. Although none of the respondents was a named party to the suit against McDougal in the state courts, all of them were interested and---to an undetermined degree---involved in it, and Munoz participated as amicus curiae before the California Supreme Court. Twelve days after that court had denied McDougal's petition for rehearing, and even before this Court had dismissed his appeal the respondents initiated the present litigation by filing in the United States District Court for the Southern District of California a complaint seeking declaratory and injunctive relief to prevent the County of Imperial from enforcing the terms of McDougal's conditional permit. They argued in the District Court that those terms violated the Commerce Clause of the Constitution. Art. I, § 8, cl. 3. The District Court concluded that respondents would suffer irreparable harm were there no injunction, and that they would probably succeed on the merits. Accordingly, the court issued a preliminary injunction restraining the county "from enforcing the restriction in the use permit which prohibits sale of water for use outside Imperial County."2
7
Some months later, the California Superior Court ordered McDougal to show cause why he should not be held guilty of contempt for violating the court's injunction by selling water for use outside the county. After proceedings in which the county participated, he was found guilty of contempt and again ordered to cease selling water for use outside of Imperial County. That order was stayed, however, pending the outcome of the county's appeal of the federal trial court's order to the United States Court of Appeals for the Ninth Circuit. Subsequently, the Court of Appeals affirmed the District Court's order of preliminary injunction, 604 F.2d 1174, and this Court granted the county's petition for a writ of certiorari. 445 U.S. 903, 100 S.Ct. 1077, 63 L.Ed.2d 318.
II
8
The county has maintained throughout the present litigation that the Anti-Injunction Act operates to prohibit the District Court from enjoining it from enforcing the terms of McDougal's permit. In rejecting that argument, the District Court cited Hale v. Bimco Trading, Inc., 306 U.S. 375, 59 S.Ct. 526, 83 L.Ed. 771, and said that "this court may, if otherwise appropriate, restrain the operation of an unconstitutional statute; surely it does not lose the right to do so merely because the statute has been tested in the state courts." In reaching the same conclusion, the Court of Appeals reasoned that the state trial court proceedings had terminated, and that the injunction, therefore, did not violate the rule that the Act cannot be evaded by addressing a federal injunction to the parties rather than to the state court. It also agreed with the District Court that, under the Hale case, "third parties are not barred under the Anti-Injunction Act from challenging a statute on federal constitutional grounds when the statute is also under litigation in the state courts." 604 F.2d, at 1176.
9
In our view the threshold reasoning of the Court of Appeals disregarded the teaching of this Court's opinion in Atlantic Coast Line R. Co. v. Locomotive Engineers, 398 U.S. 281, 90 S.Ct. 1739, 26 L.Ed.2d 234. In that case, the railroad had secured a state-court injunction prohibiting the union from picketing a railroad facility. Two years later, the union tried but failed to convince the state court to dissolve the injunction in light of an intervening decision of this Court. The union did not appeal that decision, but instead persuaded a federal court to enjoin the railroad "from giving effect to or availing [itself] of the benefits of" the state-court injunction. Id., at 287, 90 S.Ct., at 1743. This Court held that "although this federal injunction is in terms directed only at the railroad it is an injunction 'to stay proceedings in a State court.' " Ibid. The view of the Court of Appeals in the present case that after a state court has entered an injunction, its proceedings are concluded for the purposes of the Anti-Injunction Act was thus contrary to the square holding of the Atlantic Coast Line case.
10
The Court of Appeals' final reason (and the District Court's only reason) for finding the Act inapplicable was this Court's decision in Hale v. Bimco Trading, Inc., supra. There, a cement company had secured from a state court a writ of mandamus ordering the state road department to enforce a statute requiring the inspection of cement imported into the State. Bimco Trading, Inc., subsequently obtained a federal-court injunction restraining the road department from enforcing the statute. This Court held that 28 U.S.C. § 379 (1934 ed.)-the predecessor of the current Anti-Injunction Act-did not bar the federal injunction, since to hold otherwise would have been to
11
"assert that a successful mandamus proceeding in a state court against state officials to enforce a challenged statute, bars injunctive relief in a United States district court against enforcement of the statute by state officials at the suit of strangers to the state court proceedings. This assumes that the mandamus proceeding bound the independent suitor in the federal court as though he were a party to the litigation in the state court. This, of course, is not so." 306 U.S., at 377-378, 59 S.Ct., at 526-527.
12
Neither the District Court nor the Court of Appeals addressed the question whether respondents in this case were "strangers to the state court proceeding" who were not bound "as though [they were parties] to the litigation in the state court."3 Unless respondents were such "strangers," the injunction they sought was barred by the Act.4
13
Accordingly, the judgment is vacated, and the case is remanded to the Court of Appeals.
14
It is so ordered.
15
Justice POWELL, concurring.
16
Although I join the opinion of the Court on the basis of its reading of Hale v. Bimco Trading, Inc., 306 U.S. 375, 59 S.Ct. 526, 83 L.Ed. 771 (1939), I record my willingness to reconsider Hale. It has rarely been cited and-as the Court reads it today-it creates an exception to the coverage of the Anti-Injunction Act that I think is contrary to the policy of that Act.
17
Justice BLACKMUN, concurring in the result.
18
For me, the Court's opinion is somewhat opaque. Perhaps it is intentionally so.
19
I agree with Justice BRENNAN that respondents were-and were necessarily determined by the Court of Appeals to be-"strangers to the state court proceeding," post, at 62, who were not bound by the state-court litigation. No principle of res judicata evoked by the California litigation applies to them.
20
I join the Court in vacating the Court of Appeals' judgment and remanding the case, however, for I am troubled by that court's apparent misreading of Atlantic Coast Line R. Co. v. Locomotive Engineers, 398 U.S. 281, 90 S.Ct. 1739, 26 L.Ed.2d 234 (1970), and by its analysis of the effect of the Anit-Injunction Act, 28 U.S.C. § 2283, upon the particular facts of this case.
21
At the same time, I am disturbed by what seems to me to be the implication of this Court's opinion, namely, that the Anti-Injunction Act does not apply when the state litigation involves different parties. If I am correct that this is the premise, I believe that the Court is indulging in a new exposition of the meaning of Hale v. Bimco Trading, Inc., 306 U.S. 375, 59 S.Ct. 526, 83 L.Ed. 771 (1939). The Anti-Injunction Act imposes a flat and positive prohibition. It then allows three exceptions. None of those exceptions is applicable to the situation before us, which involves a single-use restriction on a single parcel of land. The precedent of Hill v. Martin, 296 U.S. 393, 403, 56 S.Ct. 278, 282, 80 L.Ed. 293 (1935), Atlantic Coast Line R. Co., supra, and Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 630, 97 S.Ct. 2881, 2887, 53 L.Ed.2d 1009 (1977), supports a conclusion that the Anti-Injunction Act bars the federal court from issuing an injunction against enforcement of this use restriction. Yet, a holding to that effect would not oust the federal court of jurisdiction to order other forms of relief, such as a declaratory judgment. It is worth noting, or so it appears to me, that the state court has made clear, by its stay of the contempt order, that it will abide by the federal resolution of the constitutional issue.*
22
The situation presented by this case is an inevitable result of our having two independent judicial systems. The Anti-Injunction Act cannot eliminate all conflicts, and was not so intended. It precludes federal injunctions that interfere with state proceedings. Heretofore, this Court has applied the Act's restrictions strictly. I would expect that approach to be continued.
23
Justice BRENNAN, with whom Justice STEVENS joins, dissenting.
24
To vacate and remand to the Court of Appeals to determine whether respondents were "strangers to the state court proceeding" within the meaning of Hale v. Bimco Trading, Inc., 306 U.S. 375, 377-378, 59 S.Ct. 526, 526-527, 83 L.Ed. 771 (1939), is to require the Court of Appeals to perform a task it undoubtedly has already performed. The Court of Appeals concluded that respondents' lawsuit did not contravene the Anti-Injunction Act, 28 U.S.C. § 2283, and relied on Hale as a basis for its conclusion. Necessarily implicit in that conclusion was the court's judgment that the Hale test had in all pertinent respects been satisfied and that, accordingly, respondents were "strangers to the state court proceeding."1
25
The Court identifies nothing in the record to support a conclusion that respondents were not "strangers to the state court proceeding," apart, perhaps, from respondent Munoz' participation as amicus curiae before the California Supreme Court. Even if amicus status were sufficient to require Munoz' withdrawal as a party,2 it is undisputed that neither respondent Martinez nor respondent De Leon played any role in the state-court litigation. The Court's statement that "all of [the respondents] were interested and---to an undetermined degree---involved in it," ante, at 57. is, therefore, unfounded.3
26
Under these circumstances, to require the Court of Appeals to find---yet again---that respondents were "strangers to the state court proceeding" is an unnecessary waste of judicial resources. Accordingly, I dissent from the remand and would affirm.
27
Justice MARSHALL also dissents but would dismiss the writ as improvidently granted.
1
The state trial court opinion is unreported.
2
The District Court opinion is unreported.
3
The dissenting opinion today rests entirely on the supposition that the Court of Appeals has already decided this question. That supposition is demonstrably untenable:
The Court of Appeals found that the Anti-Injunction Act was inapplicable, and proceeded to consider the merits of the petitioners' res judicata defense, a defense based upon the judgment in the state litigation. The court held that the doctrine of res judicata did not in any event apply in the circumstances here presented, and accordingly explicitly declined to consider whether the respondents had been "in privity" with McDougal in the state litigation. Since the court did not even decide that the respondents had not been in privity with McDougal in the state litigation, it most assuredly could not have decided and did not decide that the respondents were "strangers to the state court proceeding."
4
The respondents contend that their suit comes within one of the statutory exceptions to the Act. First, they urge that the "in aid of jurisdiction" exception applies. They apparently reason that the District Court was not barred from entering a declaratory judgment, that a declaratory judgment unsupported by an injunction would be a nullity, and that therefore an injunction was necessary "in aid of" the District Court's subject-matter jurisdiction over Commerce Clause questions. This argument proves too much, since by its reasoning the exception, and not the rule, would always apply. Second, respondents assert that this case falls within the exception to the Act for injunctions "expressly authorized by Act of Congress." They cite Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705, for the undoubted proposition that suits under 42 U.S.C. § 1983 are within that exception. This argument cannot prevail, however, for the simple reason that the respondents' complaint did not rely on or even so much as mention § 1983.
*
Hale v. Bimco Trading, Inc., 306 U.S. 375, 59 S.Ct. 526, 83 L.Ed. 771 (1939), is distinguishable, for that case involved an attack on a state statute and a complete legislative scheme that was being applied to many parties in many different circumstances. That situation differs significantly from the particularized use restriction with which the present litigation is concerned.
1
The District Court similarly concluded that Hale v. Bimco Trading, Inc., did not bar the instant lawsuit and thus necessarily also found that respondents were "strangers to the state court proceeding."
2
The language of Hale quoted by the Court, ante, at 59, suggests that amicus status does not impair one's standing as a "stranger," since the Court contrasted an "independent suitor in the federal court" with "a party to the litigation in the state court." 306 U.S., at 378, 59 S.Ct., at 527. Munoz clearly was not such a party.
3
The District Court stated:
"But the plaintiffs herein have no common property interest with McDougal. At issue in the state proceeding was McDougal's use permit; the use permit is a part of the land and runs with the land, as the California Supreme Court expressly held. The plaintiffs have no property interest in McDougal's land or in his use permit. Their interest is in the steps taken by the County to enforce what they perceive as an unconstitutional ordinance. Therefore, since the property interest which was litigated in the state courts was exclusively McDougal's and not the plaintiffs', it must follow that the plaintiffs were not in privity with McDougal and his state court judgment does not bar them from proceeding with this lawsuit." App. to Pet. for Cert. B-5.
While it is true, as the Court notes, ante, at 60, n.3, that the Court of Appeals, unlike the District Court, "declined to consider whether the respondents had been 'in privity' with McDougal in the state litigation," that refusal has no bearing on the disposition of petitioners' Anti-Injunction Act claim. With respect to that claim, the court necessarily found that respondents were "strangers to the state court proceeding," and its disposition of the res judicata claim on a ground other than privity is irrelevant.
| 89
|
449 U.S. 86
101 S.Ct. 308
66 L.Ed.2d 304
Richard F. PACILEO, Sheriffv.James Dean WALKER.
No. 79-2040.
Dec. 8, 1980.
Rehearing Denied Feb. 23, 1981.
See 450 U.S. 960, 101 S.Ct. 1421.
PER CURIAM.
1
The United States Constitution provides that "[a] person charged in any State with Treason, Felony or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime." Art. IV, § 2, cl. 2.
2
In this case, there is no dispute as to the facts necessary to resolve the legal question presented. In 1975, respondent James Dean Walker escaped from the Arkansas Department of Corrections and remained at large until he was apprehended in California in 1979. In December 1979, the Governor of Arkansas requested the arrest and rendition of respondent, alleging that respondent was a fugitive from justice. In February 1980, the Governor of California honored the request of the Governor of Arkansas and duly issued a warrant of arrest and rendition. This warrant was then served upon respondent by the Sheriff of El Dorado County, Cal. Respondent thereafter challenged the Governor's issuance of the warrant in both state and federal courts. He was unsuccessful until he reached the Supreme Court of California, which, on April 9, 1980, issued a writ of habeas corpus directing the Superior Court of El Dorado County to "conduct hearings to determine if the penitentiary in which Arkansas seeks to confine petitioner is presently operated in conformance with the Eighth Amendment of the United States Constitution and thereafter to decide the petition on its merits."
3
Petitioner Sheriff contends that Art. IV, § 2, cl. 2, and its implementing statute, 18 U.S.C. § 3182, do not give the courts of the "asylum" or "sending" State authority to inquire into the prison conditions of the "demanding" State. We agree. In Michigan v. Doran, 439 U.S. 282, 99 S.Ct. 530, 58 L.Ed.2d 521 (1978), our most recent pronouncement on the subject, we stated that "[i]nterstate extradition was intended to be a summary and mandatory executive proceeding derived from the language of Art. IV, § 2, cl. 2, of the Constitution." Id., at 288, 99 S.Ct. at 535. We further stated:
4
"A governor's grant of extradition is prima facie evidence that the constitutional and statutory requirements have been met. . . . Once the governor has granted extradition, a court considering release on habeas corpus can do no more than decide (a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive. These are historic facts readily verifiable." Id., at 289, 99 S.Ct., at 535.
5
In Sweeney v. Woodall, 344 U.S. 86, 73 S.Ct. 139, 97 L.Ed. 114 (1952), this Court held that a fugitive from Alabama could not raise in the federal courts of Ohio, the asylum State, the constitutionality of his confinement in Alabama. We stated:
6
"Considerations fundamental to our federal system require that the prisoner test the claimed unconstitutionality of his treatment by Alabama in the courts of that State. Respondent should be required to initiate his suit in the courts of Alabama, where all parties may be heard, where all pertinent testimony will be readily available, and where suitable relief, if any is necessary, may be fashioned." Id., at 90, 73 S.Ct., at 140.
7
We think that the Supreme Court of California ignored the teachings of these cases when it directed one of its own trial courts of general jurisdiction to conduct an inquiry into the present conditions of the Arkansas penal system. Once the Governor of California issued the warrant for arrest and rendition in response to the request of the Governor of Arkansas, claims as to constitutional defects in the Arkansas penal system should be heard in the courts of Arkansas, not those of California. "To allow plenary review in the asylum state of issues that can be fully litigated in the charging state would defeat the plain purposes of the summary and mandatory procedures authorized by Art. IV, § 2." Michigan v. Doran, supra, at 290, 99 S.Ct., at 536.
8
The petition for certiorari is granted, the judgment of the Supreme Court of California is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
9
Reversed and remanded.
10
Justice MARSHALL, dissenting.
11
Because Michigan v. Doran, 439 U.S. 282, 99 S.Ct. 530, 58 L.Ed.2d 521 (1978), did not involve a claimed violation of the Eighth Amendment, and because Sweeney v. Woodall, 344 U.S. 86, 73 S.Ct. 139, 97 L.Ed. 114 (1952), did not involve a state court's decision to grant state habeas corpus relief, I do not believe that they control the question raised here, and I would set the case for plenary review.
| 89
|
449 U.S. 117
101 S.Ct. 426
66 L.Ed.2d 328
UNITED STATES, Petitioner,v.Eugene DiFRANCESCO.
No. 79-567.
Argued Oct. 6, 1980.
Decided Dec. 9, 1980.
Syllabus
The Organized Crime Control Act of 1970, 18 U.S.C. § 3576, grants the United States the right, under specified conditions, to appeal the sentence imposed upon a "dangerous special offender." Respondent was convicted of federal racketeering offenses at a trial in Federal District Court. He was sentenced as a dangerous special offender under 18 U.S.C. § 3575 to two 10-year prison terms, to be served concurrently with each other and with a 9-year sentence previously imposed on convictions at an unrelated federal trial. The United States sought review of the dangerous special offender sentences under § 3576, claiming that the District Court abused its discretion in imposing sentences that amounted to additional imprisonment of respondent for only one year, in the face of the findings the court made after the dangerous special offender hearing. The Court of Appeals dismissed the appeal on double jeopardy grounds.
Held : Section 3576 does not violate the Double Jeopardy Clause of the Fifth Amendment. Pp. 126-143.
(a) Section 3576 does not violate the Double Jeopardy Clause's guarantee against multiple trials. "[W]here a Government appeal presents no threat of successive prosecutions, the Double Jeopardy Clause is not offended." United States v. Martin Linen Supply Co., 430 U.S. 564, 569-570, 97 S.Ct. 1349, 1353-54, 51 L.Ed.2d 642. Accordingly, the Government's taking of a review of respondent's sentence does not in itself offend double jeopardy principles just because its success might deprive respondent of the benefit of a more lenient sentence. Neither the history of sentencing practices, nor the pertinent rulings of this Court, nor even considerations of double jeopardy policy support the proposition that a criminal sentence, once pronounced, is to be accorded constitutional finality similar to that which attaches to a jury's verdict of acquittal. The Double Jeopardy Clause does not provide the defendant with a right to know at any specific moment in time what the exact limit of his punishment will turn out to be. Pp. 132-138.
(b) The increase of a sentence on review under § 3576 does not constitute multiple punishment in violation of the Double Jeopardy Clause. The argument that the defendant perceives the length of his sentence as finally determined when he begins to serve it, and that the trial judge should be prohibited from thereafter increasing the sentence, has no force where, as in the dangerous special offender statute, Congress has specifically provided that the sentence is subject to appeal. Under such circumstances, there can be no expectation of finality in the original sentence. Pp. 138-139.
(c) The conclusion that § 3576 violates neither the guarantee against multiple punishment nor the guarantee against multiple trials is consistent with those opinions in which this Court has upheld the constitutionality of two-stage criminal proceedings. Cf. Swisher v. Brady, 438 U.S. 204, 98 S.Ct. 2699, 57 L.Ed.2d 705. Pp. 139-141.
2 Cir., 604 F.2d 769, reversed and remanded.
Andrew L. Frey, Washington, D. C., for petitioner.
Edgar C. NeMoyer, Buffalo, N. Y., for respondent.
Justice BLACKMUN delivered the opinion of the Court.
1
The Organized Crime Control Act of 1970, Pub.L. 91-452, 84 Stat. 922, contains, among other things, a definition of "dangerous special offender," 18 U.S.C. §§ 3575(e) and (f);1 authorizes the imposition of an increased sentence upon a convicted dangerous special offender, § 3575(b); and grants the United States the right, under specified conditions, to take that sentence to the Court of Appeals for review, § 3576.2 The issue presented by this case is whether § 3576, authorizing the United States so to appeal, violates the Double Jeopardy Clause3 of the Fifth Amendment of the Constitution.4
2
* At a 1977 jury trial in the United States District Court for the Western District of New York, respondent Eugene DiFrancesco was convicted of conducting the affairs of an enterprise through a pattern of racketeering activity, and of conspiring to commit that offense, in violation of 18 U.S.C. §§ 1962(c) and (d).5 At another jury trial in 1978—before a different judge in the same District—based on an indictment returned prior to the racketeering indictment, respondent was convicted of damaging federal property, in violation of 18 U.S.C. § 1361, of unlawfully storing explosive materials, in violation of 18 U.S.C. § 842(j), and of conspiring to commit those offenses, in violation of 18 U.S.C. § 371.6
3
Respondent was first sentenced, in March 1978, on his convictions at the later trial. He received eight years on the charge for damaging federal property and five years on the conspiracy charge, these sentences to be served concurrently, and one year on the unlawful storage charge, to be served consecutively to the other sentences. This made a total of nine years' imprisonment. In April, respondent was sentenced as a dangerous special offender under § 3575 to two 10-year terms on the racketeering counts upon which he was convicted at the earlier trial; the court specified that these sentences were to be served concurrently with each other and with the sentences imposed in March. The dangerous special offender charge and sentences thus resulted in additional punishment of only about a year.
4
Respondent appealed the respective judgments of conviction to the Court of Appeals for the Second Circuit, and the United States sought review, under § 3576, of the sentences imposed upon respondent as a dangerous special offender. The Court of Appeals unanimously affirmed the judgments of conviction. By a divided vote, however, that court dismissed the Government's appeal on double jeopardy grounds. 604 F.2d 769 (1979). The two judges in the majority thus did not address the merits of the special offender issue. The third judge, while agreeing that the Government's appeal was to be dismissed, based that conclusion not on constitutional grounds, as did the majority, but on the grounds that §§ 3575 and 3576 were inapplicable to the facts of the case. 604 F.2d, at 787.7 Because of the importance of the constitutional question, we granted the Government's petition for certiorari, which confined itself to that single issue. 444 U.S. 1070, 100 S.Ct. 1010, 62 L.Ed.2d 751 (1980). Respondent has not filed a cross-petition.
II
5
At the earlier racketeering trial, the evidence showed that respondent was involved in an arson-for-hire scheme in the Rochester, N. Y., area that was responsible for at least eight fires between 1970 and 1973; that the ring collaborated with property owners to set fire to buildings in return for shares of the insurance proceeds; and that insurers were defrauded of approximately $480,000 as a result of these fires. At the second trial, the evidence showed that respondent participated in the 1970 "Columbus Day bombings," including the bombing of the federal building at Rochester.
6
Prior to the first trial, the Government, in accordance with § 3575(a), filed with the trial court a notice alleging that respondent was a dangerous special offender. This notice recited the Government's intention to seek enhanced sentences on the racketeering counts in the event respondent was convicted at that trial. After respondent was found guilty, a dangerous special offender hearing, pursuant to § 3575(b), was held. At the hearing, the Government relied upon the testimony adduced at the trial and upon public documents that attested to other convictions of respondent for the Columbus Day bombings, for loansharking, and for murder. App. 27-28, 30. The defense offered no evidence. It conceded the validity of the public records, id., at 31-32, but objected to any consideration of the murder offense because that conviction had been vacated on appeal. Id., at 28-29.
7
The District Court made findings of fact and ruled that respondent was a dangerous special offender within the meaning of the statute. The findings set forth respondent's criminal record and stated that that record revealed "virtually continuous criminal conduct over the past eight years, interrupted only by relatively brief periods of imprisonment in 1975, 1976 and 1977." Id., at 41. The court found, in addition, that respondent's "criminal history, based upon proven facts, reveals a pattern of habitual and knowing criminal conduct of the most violent and dangerous nature against the lives and property of the citizens of this community. It further shows the defendant's complete and utter disregard for the public safety. The defendant, by virtue of his own criminal record, has shown himself to be a hardened habitual criminal from whom the public must be protected for as long a period as possible. Only in that way can the public be protected from further violent and dangerous criminal conduct by the defendant." Id., at 43.8 The court thereupon sentenced respondent under § 3575(b) to the concurrent 10-year terms hereinabove described. App. 45-46.
8
The United States then took its appeal under § 3576, claiming that the District Court abused its discretion in imposing sentences that amounted to additional imprisonment of respondent for only one year, in the face of the findings the court made after the dangerous special offender hearing.9 The dismissal of the Government's appeal by the Court of Appeals rested specifically upon its conclusion, which it described as "inescapable," that "to subject a defendant to the risk of substitution of a greater sentence, upon an appeal by the government is to place him a second time 'in jeopardy of life or limb.' " 604 F.2d, at 783.
III
9
While this Court, so far as we are able to ascertain, has never invalidated an Act of Congress on double jeopardy grounds, it has had frequent occasion recently to consider and pass upon double jeopardy claims raised in various contexts. See United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972); Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973); United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975); United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975); Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975); Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975); United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); Ludwig v. Massachusetts, 427 U.S. 618, 96 S.Ct. 2781, 49 L.Ed.2d 732 (1976); United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977); Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977); Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978); Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978); Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978); United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978); Swisher v. Brady, 438 U.S. 204, 98 S.Ct. 2699, 57 L.Ed.2d 705 (1978); Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980); Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980).
10
These cited cases are the additions of just the past decade to the less numerous list of well-known double jeopardy decisions of past years. Among those earlier cases are United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165 (1824); Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872 (1874); United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896); Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114 (1904); Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962); Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963); United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964).
11
That the Clause is important and vital in this day is demonstrated by the host of recent cases. That its application has not proved to be facile or routine is demonstrated by acknowledged changes in direction or in emphasis. See, e. g., United States v. Scott, supra, overruling United States v. Jenkins, supra; and Burks v. United States, 437 U.S., at 18, 98 S.Ct., at 2150, overruling at least in part, certain prior cases in the area. See also Note, 24 Minn.L.Rev. 522 (1940); Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978 S.Ct.Rev. 81, 82. Nonetheless, the following general principles emerge from the Court's double jeopardy decisions and may be regarded as essentially settled:
12
-The general design of the Double Jeopardy Clause of the Fifth Amendment is that described in Green v. United States:
13
"The constitutional prohibition against 'double jeopardy' was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. . . . The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." 355 U.S., at 187-188, 78 S.Ct., at 223.
14
See also Serfass v. United States, 420 U.S., at 387-388, 95 S.Ct., at 1061-62; Crist v. Bretz, 437 U.S., at 35, 98 S.Ct., at 2160. This concept has ancient roots centering in the common-law pleas of autre fois acquit, autre fois convict, and pardon, 4 W. Blackstone, Commentaries 329-330 (1st ed. 1769), and found expression in the legal tradition of colonial America. See Green v. United States, 355 U.S., at 187, 78 S.Ct., at 223; id., at 200, 78 S.Ct., at 230 (dissenting opinion); United States v. Wilson, 420 U.S., at 339-342, 95 S.Ct., at 1019-1021; United States v. Scott, 437 U.S., at 87, 98 S.Ct., at 2191.
15
-The stated design, in terms of specific purpose, has been expressed in various ways. It has been said that "a" or "the" "primary purpose" of the Clause was "to preserve the finality of judgments," Crist v. Bretz, 437 U.S., at 33, 98 S.Ct., at 2159, or the "integrity" of judgments, United States v. Scott, 437 U.S., at 92, 98 S.Ct., at 2194. But it has also been said that "central to the objective of the prohibition against successive trials" is the barrier to "affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding." Burks v. United States, 437 U.S., at 11, 98 S.Ct., at 2147; Swisher v. Brady, 438 U.S., at 215-216, 98 S.Ct., at 2706. Implicit in this is the thought that if the Government may reprosecute, it gains an advantage from what it learns at the first trial about the strengths of the defense case and the weaknesses of its own. See United States v. Scott, 437 U.S., at 105, n.4, 98 S.Ct., at 2201, n.4 (dissenting opinion); United States v. Wilson, 420 U.S., at 352, 95 S.Ct., at 1026.
16
Still another consideration has been noted:
17
"Because jeopardy attaches before the judgment becomes final, the constitutional protection also embraces the defendant's 'valued right to have his trial completed by a particular tribunal.' " Arizona v. Washington, 434 U.S., at 503 [98 S.Ct., at 829], quoting from Wade v. Hunter, 336 U.S. 684, 689 [69 S.Ct. 834, 93 L.Ed. 974] (1949).
18
See Swisher v. Brady, 438 U.S., at 214-215, 98 S.Ct., at 2706; Crist v. Bretz, 437 U.S., at 36, 98 S.Ct., at 2161.
19
On occasion, stress has been placed upon punishment:
20
"It is the punishment that would legally follow the second conviction which is the real danger guarded against by the Constitution." Ex parte Lange, 18 Wall., at 173.
21
-The Court has summarized:
22
"That guarantee [against double jeopardy] has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." (Footnotes omitted.) North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969).10
23
See Illinois v. Vitale, 447 U.S., at 415, 100 S.Ct., at 2264.
24
-An acquittal is accorded special weight. "The constitutional protection against double jeopardy unequivocally prohibits a second trial following an acquittal," for the "public interest in the finality of criminal judgments is so strong that an acquitted defendant may not be retried even though 'the acquittal was based upon an egregiously erroneous foundation.' See Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 671, 672, 7 L.Ed.2d 629. If the innocence of the accused has been confirmed by a final judgment, the Constitution conclusively presumes that a second trial would be unfair." Arizona v. Washington, 434 U.S., at 503, 98 S.Ct., at 829. The law "attaches particular significance to an acquittal." United States v. Scott, 437 U.S., at 91, 98 S.Ct., at 2193.
25
This is justified on the ground that, however mistaken the acquittal may have been, there would be an unacceptably high risk that the Government, with its superior resources, would wear down a defendant, thereby "enhancing the possibility that even though innocent he may be found guilty." Green v. United States, 355 U.S., at 188, 78 S.Ct., at 223. See also United States v. Martin Linen Supply Co., 430 U.S., at 571, 573, n.12, 97 S.Ct., at 1354, 1355, n.12. "[W]e necessarily afford absolute finality to a jury's verdict of acquittal-no matter how erroneous its decision" (emphasis in original). Burks v. United States, 437 U.S., at 16, 98 S.Ct., at 2149.11
26
-The result is definitely otherwise in cases where the trial has not ended in an acquittal. This Court has long recognized that the Government may bring a second prosecution where a mistrial has been occasioned by "manifest necessity." United States v. Perez, 9 Wheat., at 580. See Arizona v. Washington, 434 U.S., at 514-516, 98 S.Ct., at 834-835; Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). Furthermore, reprosecution of a defendant who has successfully moved for a mistrial is not barred, so long as the Government did not deliberately seek to provoke the mistrial request. United States v. Dinitz, 424 U.S., at 606-611, 96 S.Ct., at 1078-1079.
27
Similarly, where the trial has been terminated prior to a jury verdict at the defendant's request on grounds unrelated to guilt or innocence, the Government may seek appellate review of that decision even though a second trial would be necessitated by a reversal. See United States v. Scott, 437 U.S., at 98-99, 98 S.Ct., at 2197-98. A fortiori, the Double Jeopardy Clause does not bar a Government appeal from a ruling in favor of the defendant after a guilty verdict has been entered by the trier of fact. See United States v. Wilson, supra; United States v. Rojas, 554 F.2d 938, 941 (CA9 1977); United States v. De Garces, 518 F.2d 1156, 1159 (CA2 1975).
28
Finally, if the first trial has ended in a conviction, the double jeopardy guarantee "imposes no limitations whatever upon the power to retry a defendant who has succeeded in getting his first conviction set aside" (emphasis in original). North Carolina v. Pearce, 395 U.S., at 720, 89 S.Ct., at 2078. "It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction." United States v. Tateo, 377 U.S., at 466, 84 S.Ct., at 1589. "[T]o require a criminal defendant to stand trial again after he has successfully invoked a statutory right of appeal to upset his first conviction is not an act of governmental oppression of the sort against which the Double Jeopardy Clause was intended to protect." United States v. Scott, 437 U.S., at 91, 98 S.Ct., at 2193. There is, however, one exception to this rule: the Double Jeopardy Clause prohibits retrial after a conviction has been reversed because of insufficiency of the evidence. Burks v. United States, supra; Greene v. Massey, 437 U.S., at 24, 98 S.Ct., at 2154.
29
-Where the Clause does apply, "its sweep is absolute." Burks v. United States, 437 U.S., at 11, n.6, 98 S.Ct., at 2147, n.6.
30
-The United States "has no right of appeal in a criminal case, absent explicit statutory authority." United States v. Scott, 437 U.S., at 84-85, 98 S.Ct., at 2190. But with the enactment of the first paragraph of what is now 18 U.S.C. § 3731 by Pub.L. 91-644 in 1971, 84 Stat. 1890, permitting a Government appeal in a criminal case except "where the double jeopardy clause of the United States Constitution prohibits further prosecution," the Court necessarily concluded that "Congress intended to remove all statutory barriers to Government appeals and to allow appeals whenever the Constitution would permit." United States v. Wilson, 420 U.S., at 337, 95 S.Ct., at 1018. See also United States v. Scott, 437 U.S., at 85, 98 S.Ct., at 2190.12
IV
31
From these principles, certain propositions pertinent to the present controversy emerge:
32
A. The Double Jeopardy Clause is not a complete barrier to an appeal by the prosecution in a criminal case. "[W]here a Government appeal presents no threat of successive prosecutions, the Double Jeopardy Clause is not offended." United States v. Martin Linen Supply Co., 430 U.S., at 569-570, 97 S.Ct., at 1353-1354. See also United States v. Wilson, 420 U.S., at 342, 95 ,S.Ct., at 1021; United States v. Scott, supra. From this it follows that the Government's taking a review of respondent's sentence does not in itself offend double jeopardy principles just because its success might deprive respondent of the benefit of a more lenient sentence. Indeed, in Wilson and again in Scott the defendant had won a total victory in the trial court, for that tribunal had terminated the case in a manner that would have allowed him to go free. The Government, nevertheless, over the constitutional challenge, was allowed to appeal.
33
B. The double jeopardy focus, thus, is not on the appeal but on the relief that is requested, and our task is to determine whether a criminal sentence, once pronounced, is to be accorded constitutional finality and conclusiveness similar to that which attaches to a jury's verdict of acquittal. We conclude that neither the history of sentencing practices, nor the pertinent rulings of this Court, nor even considerations of double jeopardy policy support such an equation.
34
As has been noted above, the Court has said that the prohibition against multiple trials is the "controlling constitutional principle." United States v. Wilson, 420 U.S., at 346, 95 S.Ct., at 1023; United States v. Martin Linen Supply Co., 430 U.S., at 569, 97 S.Ct., at 1353. But, of course, the Court's cases show that even the protection against retrial is not absolute. It is acquittal that prevents retrial even if legal error was committed at the trial. United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). This is why the "law attaches particular significance to an acquittal." United States v. Scott, 437 U.S., at 91, 98 S.Ct., at 2193. Appeal of a sentence, therefore, would seem to be a violation of double jeopardy only if the original sentence, as pronounced, is to be treated in the same way as an acquittal is treated, and the appeal is to be treated in the same way as a retrial. Put another way, the argument would be that, for double jeopardy finality purposes, the imposition of the sentence is an "implied acquittal" of any greater sentence. See Van Alstyne, In Gideon's Wake: Harsher Penalties and the "Successful" Criminal Appellant, 74 Yale L.J. 606, 634-635 (1965).
35
We agree with the Government that this approach does not withstand analysis. Any reliance the Court of Appeals may have placed on Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114 (1904),13 is misplaced, for the focus of Kepner was on the undesirability of a second trial. There are, furthermore, fundamental distinctions between a sentence and an acquittal, and to fail to recognize them is to ignore the particular significance of an acquittal.
36
Historically, the pronouncement of sentence has never carried the finality that attaches to an acquittal. The common-law writs of autre fois acquit and autre fois convict were protections against retrial. See United States v. Wilson, 420 U.S., at 340, 95 S.Ct., at 1020. Although the distinction was not of great importance early in the English common law because nearly all felonies, to which double jeopardy principles originally were limited, were punishable by the critical sentences of death or deportation, see Comment, Statutory Implementation of Double Jeopardy Clauses: New Life for a Moribund Constitutional Guarantee, 65 Yale L.J. 339, 342-343 (1956), it gained importance when sentences of imprisonment became common. The trial court's increase of a sentence, so long as it took place during the same term of court, was permitted. This practice was not thought to violate any double jeopardy principle. See Ex parte Lange, 18 Wall., at 167; id., at 192-194 (dissenting opinion); 3 E. Coke, Institutes § 438 (13th ed. 1789). See also Commonwealth v. Weymouth, 2 Allen (84 Mass.) 144 (1861). The common law is important in the present context, for our Double Jeopardy Clause was drafted with the common-law protections in mind. See United States v. Wilson, 420 U.S., at 340-342, 95 S.Ct., at 1020-1021; Green v. United States, 355 U.S., at 200-201, 78 S.Ct., at 230-231 (dissenting opinion). This accounts for the established practice in the federal courts that the sentencing judge may recall the defendant and increase his sentence, at least (and we venture no comment as to this limitation) so long as he has not yet begun to serve that sentence. See, e. g., United States v. DiLorenzo, 429 F.2d 216, 221 (CA2 1970), cert. denied, 402 U.S. 950, 91 S.Ct. 1609, 29 L.Ed.2d 120 (1971); Vincent v. United States, 337 F.2d 891, 894 (CA8 1964), cert. denied, 380 U.S. 988, 85 S.Ct. 1363, 14 L.Ed.2d 281 (1965). Thus it may be said with certainty that history demonstrates that the common law never ascribed such finality to a sentence as would prevent a legislative body from authorizing its appeal by the prosecution. Indeed, countries that trace their legal systems to the English common law permit such appeals. See Can.Rev.Stat. §§ 605(1)(b) and 748(b)(ii) (1970), Martin's Annual Criminal Code 523, 636 E. Greenspan ed. 1979); New Zealand Crimes Act 1961, as amended by the Crimes Amendment Act of 1966, 1 Repr.Stat.N.Z. § 383(2) (1979). See M. Friedland, Double Jeopardy 290 (1969).
37
C. This Court's decisions in the sentencing area clearly establish that a sentence does not have the qualities of constitutional finality that attend an acquittal. In Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947), the defendant was convicted of a crime carrying a mandatory minimum sentence of fine and imprisonment. The trial court, however, sentenced the defendant only to imprisonment. Later on the same day, the judge recalled the defendant and imposed both fine and imprisonment. This Court held that there was no double jeopardy. "The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner." Id., at 166-167, 67 S.Ct., at 648-649. What the judge had done "did not twice put petitioner in jeopardy for the same offense." Id., at 167, 67 S.Ct., at 649. And in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the Court held that there was no absolute constitutional bar to the imposition of a more severe sentence on reconviction after the defendant's successful appeal of the original judgment of conviction. The rule of Pearce, permitting an increase of sentence on retrial, is a "well established part of our constitutional jurisprudence." Id., at 720, 89 S.Ct., at 2078. See Chaffin v. Stynchcombe, 412 U.S., at 24, 93 S.Ct., at, 1981. See also Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919). If any rule of finality had applied to the pronouncement of a sentence, the original sentence in Pearce would have served as a ceiling on the one imposed at retrial.14 While Pearce dealt with the imposition of a new sentence after retrial rather than, as here, after appeal, that difference is no more than a "conceptual nicety." North Carolina v. Pearce, 395 U.S., at 722, 89 S.Ct., at 2079.
38
D. The double jeopardy considerations that bar reprosecution after an acquittal do not prohibit review of a sentence. We have noted above the basic design of the double jeopardy provision, that is, as a bar against repeated attempts to convict, with consequent subjection of the defendant to embarrassment, expense, anxiety, and insecurity, and the possibility that he may be found guilty even though innocent. These considerations, however, have no significant application to the prosecution's statutorily granted right to review a sentence. This limited appeal does not involve a retrial or approximate the ordeal of a trial on the basic issue of guilt or innocence. Under § 3576, the appeal is to be taken promptly and is essentially on the record of the sentencing court. The defendant, of course, is charged with knowledge of the statute and its appeal provisions, and has no expectation of finality in his sentence until the appeal is concluded or the time to appeal has expired. To be sure, the appeal may prolong the period of any anxiety that may exist, but it does so only for the finite period provided by the statute. The appeal is no more of an ordeal than any Government appeal under 18 U.S.C. § 3731 from the dismissal of an indictment or information. The defendant's primary concern and anxiety obviously relate to the determination of innocence or guilt, and that already is behind him. The defendant is subject to no risk of being harassed and then convicted, although innocent. Furthermore, a sentence is characteristically determined in large part on the basis of information, such as the presentence report, developed outside the courtroom. It is purely a judicial determination, and much that goes into it is the result of inquiry that is nonadversary in nature.
39
E. The Double Jeopardy Clause does not provide the defendant with the right to know at any specific moment in time what the exact limit of his punishment will turn out to be. Congress has established many types of criminal sanctions under which the defendant is unaware of the precise extent of his punishment for significant periods of time, or even for life, yet these sanctions have not been considered to be violative of the Clause. Thus, there is no double jeopardy protection against revocation of probation and the imposition of imprisonment. See, e. g., Thomas v. United States, 327 F.2d 795 (CA10), cert. denied, 377 U.S. 1000, 84 S.Ct. 1936, 12 L.Ed.2d 1051 (1964). There are other situations where probation or parole may be revoked and sentence of imprisonment imposed. See, e. g., United States v. Kuck, 573 F.2d 25 (CA10 1978); United States v. Walden, 578 F.2d 966, 972 (CA3 1978), cert. denied, 444 U.S. 849, 100 S.Ct. 99, 62 L.Ed.2d 64 (1979); United States v. Jones, 540 F.2d 465 (CA10 1976), cert. denied, 429 U.S. 1101, 97 S.Ct. 1125, 51 L.Ed.2d 551 (1977); Dunn v. United States, 182 U.S.App.D.C. 261, 561 F.2d 259 (1977). While these criminal sanctions do not involve the increase of a final sentence, and while the defendant is aware at the original sentencing that a term of imprisonment later may be imposed, the situation before us is different in no critical respect. Respondent was similarly aware that a dangerous special offender sentence is subject to increase on appeal. His legitimate expectations are not defeated if his sentence is increased on appeal any more than are the expectations of the defendant who is placed on parole or probation that is later revoked.
40
All this highlights the distinction between acquittals and sentences. North Carolina v. Pearce and Bozza v. United States demonstrate that the Double Jeopardy Clause does not require that a sentence be given a degree of finality that prevents its later increase. Because of the critical difference between an acquittal and a sentence, the acquittal cases, such asKepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114 (1904), andFong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962), do not require a contrary result.
V
41
We turn to the question whether the increase of a sentence on review under § 3576 constitutes multiple punishment in violation of the Double Jeopardy Clause. The Court of Appeals found that it did. 604 F.2d, at 784-787. This conclusion appears to be attributable primarily to that court's extending to an appeal this Court's dictum in United States v. Benz, 282 U.S. 304, 307, 51 S.Ct. 113, 114, 75 L.Ed. 354 (1931), to the effect that the federal practice of barring an increase in sentence by the trial court after service of the sentence has begun is constitutionally based.15 The real and only issue in Benz, however, was whether the trial judge had the power to reduce a defendant's sentence after service had begun. The Court held that the trial court had such power. It went on to say gratuitously, however, id., at 307-308, 51 S.Ct., at 114, and with quotations from a textbook and from Ex parte Lange, 18 Wall., at 167, 173, that the trial court may not increase a sentence, even though the increase is effectuated during the same court session, if the defendant has begun service of his sentence. But the dictum's source, Ex parte Lange, states no such principle. In Lange the trial court erroneously imposed both imprisonment and fine, even though it was authorized by statute to impose only one or the other of these two punishments. Lange had paid the fine and served five days in prison. The trial court then resentenced him to a year's imprisonment. The fine having been paid and the defendant having suffered one of the alternative punishments, "the power of the court to punish further was gone." Id., at 176. The Court also observed that to impose a year's imprisonment (the maximum) after five days had been served was to punish twice for the same offense. Id., at 175. The holding in Lange, and thus the dictum in Benz, are not susceptible of general application. We confine the dictum in Benz to Lange's specific context. Although it might be argued that the defendant perceives the length of his sentence as finally determined when he begins to serve it, and that the trial judge should be prohibited from thereafter increasing the sentence, that argument has no force where, as in the dangerous special offender statute, Congress has specifically provided that the sentence is subject to appeal. Under such circumstances there can be no expectation of finality in the original sentence. See S.Rep.No.91-617, p. 97 (1969); Dunsky, The Constitutionality of Increasing Sentences on Appellate Review, 69 J.Crim.L. & Criminology 19, 32 (1978).
42
The guarantee against multiple punishment that has evolved in the holdings of this Court plainly is not involved in this case. As Ex parte Lange demonstrates, a defendant may not receive a greater sentence than the legislature has authorized. No double jeopardy problem would have been presented in Ex parte Lange if Congress had provided that the offense there was punishable by both fine and imprisonment, even though that is multiple punishment. See Whalen v. United States, 445 U.S., at 688-689, 100 S.Ct., at 1436-1437; id., at 697-698, 100 S.Ct., at 1440-1441 (concurring opinion). The punishment authorized by Congress under §§ 3575 and 3576 is clear and specific and, accordingly, does not violate the guarantee against multiple punishment expounded by Ex parte Lange.
VI
43
The conclusion that § 3576 violates neither the guarantee against multiple punishment nor the guarantee against multiple trials is consistent with those opinions in which the Court has upheld the constitutionality of two-stage criminal proceedings. See Ludwig v. Massachusetts, 427 U.S., at 630-632, 96 S.Ct., at 2788. See also Colten v. Kentucky, 407 U.S., at 118-120, 92 S.Ct., at 1961-1962.16
44
Swisher v. Brady, 438 U.S. 204, 98 S.Ct. 2699, 57 L.Ed.2d 705 (1978), affords particular support and, indeed, precedent for the decision we reach. That case concerned a Maryland scheme for the use of a master in a Juvenile Court proceeding. The master, after receiving evidence, concluded that the State had failed to show beyond a reasonable doubt that the minor had committed an assault and robbery. The master's recommendation to the Juvenile Court set forth that conclusion. The State filed exceptions, as it was authorized to do under a procedural rule, and the minor responded with a motion to dismiss the notice of exceptions on the ground that the procedural rule, with its provision for a de novo hearing, violated the Double Jeopardy Clause. The state courts denied relief. On federal habeas, this Court held that the Maryland system did not violate the Clause. Important in the decision was the fact that the system did not provide the prosecution a "second crack." Id., at 216, 98 S.Ct., at 2706. The record before the master was closed "and additional evidence can be received by the Juvenile Court judge only with the consent of the minor." Ibid. The Court also held that there was nothing in the procedure that "unfairly subjects the defendant to the embarrassment, expense, and ordeal of a second trial. . . ." Ibid. The "burdens are more akin to those resulting from a judge's permissible request for posttrial briefing or argument following a bench trial than to the 'expense' of a full-blown second trial. . . ." Id., at 217, 98 S.Ct., at 2707. And "[t]o the extent the Juvenile Court judge makes supplemental findings . . .-either sua sponte, in response to the State's exceptions, or in response to the juvenile's exceptions, and either on the record or on a record supplemented by evidence to which the parties raise no objection-he does so without violating the constraints of the Double Jeopardy Clause." Id., at 219, 98 S.Ct., at 2708.
45
The Court in Swisher characterized the proceedings before the master and those before the Juvenile Court judge as a continuing single process and distinguished the situation in Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), where it had been held that a juvenile was placed twice in jeopardy when, after an adjudicatory finding in Juvenile Court, he was transferred to an adult criminal court and tried and convicted for the same conduct.
46
Like the Maryland system at issue in Swisher, § 3576 does not subject a defendant to a second trial. The Maryland system, of course, concerns a master, whereas § 3576 concerns a federal trial court. This difference, however, is of no constitutional consequence, for the federal trial court has no power to impose a final dangerous special offender sentence that is not subject to appeal. Section 3576, indeed, is more limited in scope than the Maryland procedure in Swisher. The federal statute specifies that the Court of Appeals may increase the sentence only if the trial court has abused its discretion or employed unlawful procedures or made clearly erroneous findings. The appellate court thus is empowered to correct only a legal error. Under the Maryland procedure involved in Swisher, the judge need not find legal error on the part of the master; he is free to make a de novo determination of the facts relating to guilt or innocence. If that is consistent with the guarantee against double jeopardy, as the Court held it was, the limited appellate review of a sentence authorized by § 3576 is necessarily constitutional.
47
The exaltation of form over substance is to be avoided. The Court has said that in the double jeopardy context it is the substance of the action that is controlling, and not the label given that action. See United States v. Martin Linen Supply Co., 430 U.S., at 571, 97 S.Ct., at 1354; United States v. Wilson, 420 U.S., at 336, 95 S.Ct., at 1018. Congress could have achieved the purpose of § 3576 by a slightly different statute whose constitutionality would be unquestionable. Congress might have provided that a defendant found to be a dangerous special offender was to receive a specified mandatory term, but that the trial court then could recommend a lesser sentence to the court of appeals, which would be free to accept the recommendation or to reject it. That scheme would offer no conceivable base for a double jeopardy objection. Yet the impact on the defendant would be exactly the same as, and possibly worse than, the impact under § 3576 as written. No double jeopardy policy is advanced by approving one of these procedures and declaring the other unconstitutional.
48
It is perhaps worth noting in passing that § 3576 represents a considered legislative attempt to attack a specific problem in our criminal justice system, that is, the tendency on the part of some trial judges "to mete out light sentences in cases involving organized crime management personnel." The Challenge of Crime in a Free Society, Report by the President's Commission on Law Enforcement and Administration of Justice 203 (1967). Section 3576 was Congress' response to that plea. See S.Rep.No.91-617, pp. 85-87 (1969). The statute is limited in scope and is narrowly focused on the so identified. It is not an example of "Government oppression" against which the Double Jeopardy Clause stands guard. See United States v. Scott, 437 U.S., at 99, 98 S.Ct., at 2198. It has been observed elsewhere that sentencing is one of the areas of the criminal justice system most in need of reform. See M. Frankel, Criminal Sentences: Law Without Order (1973); P. O'Donnell, M. Churgin & D. Curtis, Toward a Just and Effective Sentencing System (1977). Judge Frankel himself has observed that the "basic problem" in the present system is "the unbridled power of the sentencers to be arbitrary and discriminatory." Frankel, supra, at 49. Appellate review creates a check upon this unlimited power, and should lead to a greater degree of consistency in sentencing.
49
We conclude that § 3576 withstands the constitutional challenge raised in the case before us. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
50
It is so ordered.
51
Justice BRENNAN, with whom Justice WHITE, Justice MARSHALL, and Justice STEVENS join, dissenting.
52
Title 18 U.S.C. § 35761 authorizes the United States to appeal2 from a sentence imposed by a federal district judge on the ground that the sentence is too lenient and further permits the appellate court to increase the severity of the initial sentence. The Court holds that § 3576 violates neither the prohibition against multiple punishments nor the prohibition against multiple trials embodied in the Double Jeopardy Clause of the Fifth Amendment.3 Because the Court fundamentally misperceives the appropriate degree of finality to be accorded the imposition of sentence by the trial judge, it reaches the erroneous conclusion that enhancement of a sentence pursuant to § 3576 is not an unconstitutional multiple punishment. I respectfully dissent.
53
* The Court acknowledges, as it must, that the Double Jeopardy Clause has two principal purposes: to "protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense," Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957), and to prevent imposition of multiple punishments for the same offense, North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). An overriding function of the Double Jeopardy Clause's prohibition against multiple trials is to protect against multiple punishments: "It is the punishment that would legally follow the second conviction which is the real danger guarded against by the Constitution." Ex parte Lange, 18 Wall. 163, 173, 21 L.Ed. 872 (1874).
54
An unconstitutional punishment need not derive exclusively from a second prosecution, but may stem from the imposition of more than one sentence following a single prosecution. Ex parte Lange, supra and In re Bradley, 318 U.S. 50, 63 S.Ct. 470, 87 L.Ed. 608 (1943), provide examples of unconstitutional multiple punishments flowing from a single trial-imprisonment and fine for an offense punishable by either imprisonment or fine-but neither case purports to exhaust the reach of the Double Jeopardy Clause's prohibition against multiple punishments. Indeed, this Court has consistently assumed that an increase in the severity of a sentence subsequent to its imposition-the issue presented in this case-also constitutes multiple punishment in violation of the Double Jeopardy Clause.4 For example, in United States v. Benz, 282 U.S. 304, 307, 51 S.Ct. 113, 114, 75 L.Ed. 354 (1931), the Court stated that "[t]he distinction that the court during the same term may amend a sentence so as to mitigate the punishment, but not so as to increase it [is based] upon the ground that to increase the penalty is to subject the defendant to double punishment for the same offense. . . ."5 Similarly, in Reid v. Covert, 354 U.S. 1, 37-38, n.68, 77 S.Ct. 1222, 1241, n.68, 1 L.Ed.2d 1148 (1957), the Court stated: "In Swain v. United States, 165 U.S. 553, 17 S.Ct. 448, 41 L.Ed. 823, this Court held that the President or commanding officer had power to return a case to a court-martial for an increase in sentence. If the double jeopardy provisions of the Fifth Amendment were applicable such a practice would be unconstitutional." Although the Benz and Reid statements may be dicta, nevertheless, the Court of Appeals correctly stated that "[a]lthough such dicta . . . are not legally binding, their number and the high authority of their sources offer impressive evidence of the strength and prevalence of the view that the double jeopardy clause bars an increase in the sentence imposed by the district court." 604 F.2d 769, 785 (CA2 1979). My Brother REHNQUIST only recently noted that "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." Whalen v. United States, 445 U.S. 684, 703, 100 S.Ct. 1432, 1444, 63 L.Ed.2d 715 (1980) (dissenting opinion).
II
55
Not only has the Court repeatedly said that sentences may not be increased after imposition without violating the double jeopardy prohibition against multiple punishments, but the analytic similarity of a verdict of acquittal and the imposition of sentence requires this conclusion. A verdict of acquittal represents the factfinder's conclusion that the evidence does not warrant a finding of guilty. United States v. Martin Linen Supply Co., 430 U.S. 564, 572, 97 S.Ct. 1349, 1355, 51 L.Ed.2d 642 (1977). Similarly, a guilty verdict of second-degree murder where the charge to the jury permitted it to find the defendant guilty of first-degree murder represents the factfinder's implicit finding that the facts do not warrant a first-degree murder conviction. Thus, a retrial on first-degree murder is constitutionally impermissible. Green v. United States, supra ; see Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970). The sentencing of a convicted criminal is sufficiently analogous to a determination of guilt or innocence that the Double Jeopardy Clause should preclude government appeals from sentencing decisions very much as it prevents appeals from judgments of acquittal. The sentencing proceeding involves the examination and evaluation of facts about the defendant, which may entail the taking of evidence, and the pronouncement of a sentence. Thus, imposition of a 10-year sentence where a 25-year sentence is permissible under the sentencing statute constitutes a finding that the facts justify only a 10-year sentence and that a higher sentence is unwarranted. In both acquittals and sentences, the trier of fact makes a factual adjudication that removes from the defendant's burden of risk the charges of which he was acquitted and the potential sentence which he did not receive. Unless there is a basis for according greater finality6 to acquittals, whether explicit or implicit, than to sentences, the Court's result is untenable.7
56
The Court proffers several reasons why acquittals and sentences should be treated differently. None of them is persuasive. First, the Court suggests that common-law historical evidence supports its distinction between the finality accorded to verdicts and to sentences. Ante, at 133-134. The Court's observation that the "common-law writs of autre fois acquit and autre fois convict were protections against retrial," ante, at 133, is true, but that fact does not dispose of the additional purpose of the Double Jeopardy Clause to prevent multiple punishments of the sort authorized by § 3576. Moreover, the practice of increasing a sentence "so long as it took place during the same term of court," ante, at 133-134, or "so long as [the defendant] has not yet begun to serve that sentence," ante, at 134, has never been sanctioned by this Court.
57
Second, the Court posits that the Government's right to appeal a final sentence imposed by a trial judge "is different in no critical respect," ante, at 137, from parole and probation revocation, an extraordinary statement that overlooks obvious differences between the proceedings. A defendant knows after sentencing the maximum length of time he may serve, a maximum which can only be shortened by parole or probation. On the other hand, since parole and probation by definition are conditional, a defendant is on notice from the outset that a breach of those conditions may result in revocation of beneficial treatment. At the very worst from the defendant's point of view, the original sentence may be reinstated. Furthermore, revocation of parole or probation only results from a change in circumstance subsequent to the grant of parole or probation. Here the Government's appeal of sentence is not predicated on a defendant's activity since imposition of the original sentence, and the Government would be unlikely to present evidence of such activity.
58
Third, the Court argues that Congress could have provided that dangerous special offenders be sentenced to a specified mandatory term that could then be reduced on appeal by the court of appeals. Ante, at 142. The Court thus concludes that striking down § 3576 would elevate "form over substance" since Congress could have obtained the same result sought by § 3576 "by a slightly different statute whose constitutionality would be unquestionable." Ante, at 142. This is a strange conclusion, for we must review statutes as they are written, not as they might have been written. In any event, the Court's hypothetical legislation is not "slightly different," but substantially different from § 3576: it would create a wholly unprecedented change in the relationship between trial and appellate courts. As long as Congress retains the present court structure in which the sentences of trial courts are final judgments, the "form" as well as the "substance" of the law militate against Government appeals in this situation.
59
Fourth, and apparently central to the Court's refusal to accord finality to sentences is its faulty characterization of the sentencing phase of a criminal prosecution. Although the Court acknowledges that the double jeopardy guarantee is at least in part directed at protecting the individual from government oppression and undue embarrassment, expense, anxiety, and insecurity, Green v. United States, 355 U.S., at 187, 78 S.Ct., at 222,8 it reaches the startling conclusion that "[t]his limited appeal," ante, at 136, exposes the defendant to minimal incremental embarrassment and anxiety because "the determination of innocence or guilt . . . is already behind him." Ibid. I believe that the Court fundamentally misunderstands the import to the defendant of the sentencing proceeding.
60
I suggest that most defendants are more concerned with how much time they must spend in prison than with whether their record shows a conviction. This is not to say that the ordeal of trial is not important. And obviously it is the conviction itself which is the predicate for time in prison. But clearly, the defendant does not breathe a sigh of relief once he has been found guilty. Indeed, an overwhelming number of criminal defendants are willing to enter plea bargains in order to keep their time in prison as brief as possible.9 Surely, the Court cannot believe then that the sentencing phase is merely incidental and that defendants do not suffer acute anxiety. To the convicted defendant, the sentencing phase is certainly as critical as the guilt-innocence phase. To pretend otherwise as a reason for holding 18 U.S.C. § 3576 valid is to ignore reality.
61
The Court's contrary view rests on the circular notion that the defendant "has no expectation of finality in his sentence until the [Government] appeal [pursuant to § 3576] is concluded or the time to appeal has expired." Ante, at 136. That is, the very statute which increases and prolongs the defendant's anxiety alleviates it by conditioning his expectations. Logically extended, the Court's reasoning could lead to the conclusion that the Double Jeopardy Clause permits Government appeals from verdicts of acquittal.10 If the purpose of insulating the verdict of acquittal from further proceedings is, at least in part,11 out of concern that defendants not be subjected to Government oppression, the Congress could dispose of this objection by a statute authorizing the Government to appeal from verdicts of acquittal. Under the Court's view, such a statute would "charge" the defendant "with knowledge" of its provisions and thus eradicate any expectation of finality in his acquittal.
62
Finally, the Court attempts to differentiate the finality of acquittals from the finality of sentences through reliance on North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and Swisher v. Brady, 438 U.S. 204, 98 S.Ct. 2699, 57 L.Ed.2d 705 (1978). Neither decision supports the Court's result. In Pearce, the Court allowed the imposition of a longer sentence upon retrial following appellate reversal of the defendant's conviction. Our holding rested "ultimately upon the premise that the original conviction has, at the defendant's behest, been wholly nullified and the slate wiped clean." 395 U.S., at 721, 89 S.Ct., at 2078. But Pearce allowed imposition of a longer sentence because sentencing followed a retrial rather than an appeal.12 It is the fact of the retrial itself that gives the trial court power to impose a new sentence up to the statutory maximum. As Pearce observed, there is a difference between "increases in existing sentences" and "the imposition of wholly new sentences after wholly new trials." Id., at 722, 89 S.Ct., at 2079. Since the Government does not argue that it is entitled to a new trial, Pearce provides no support for enhancement of an already existing sentence on appeal.
63
The Court's reliance on Swisher v. Brady, supra, is similarly misplaced. There, the Court upheld a Maryland rule allowing juvenile court judges to set aside proposed findings and recommendations of masters and to hold de novo proceedings that could ultimately lead to a harsher result for the juveniles. But Swisher is critically different from this case because the master under Maryland law had no authority to adjudicate facts or to impose a sentence, but could merely transmit the results of his investigation to the trial judge for the latter's review.13 Here, by contrast, the federal district judge had full power to conduct a trial to a conclusion of guilt or innocence and then to impose a final sentence upon the defendant if convicted. Merely because of § 3576 provides the Government with appellate rights does not convert the judge's imposition of sentence into a mere recommendation.
III
64
Because the Court has demonstrated no basis for differentiating between the finality of acquittals and the finality of sentences, I submit that a punishment enhanced by an appellate court is an unconstitutional multiple punishment.14 To conclude otherwise, as the Court does, is to create an exception to basic double jeopardy protection which, if carried to its logical conclusion,15 might not prevent Congress, on double jeopardy grounds, from authorizing the Government to appeal verdicts of acquittal. Such a result is plainly impermissible under the Double Jeopardy Clause.
65
I, therefore, dissent.
66
Justice STEVENS, dissenting.
67
While I join Justice BRENNAN's dissent, I also note that neither today nor in its opinion in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), has the Court adequately responded to Justice Harlan's powerful analysis of the double jeopardy issue in that case. Id., at 744-751, 89 S.Ct., at 2085-2088 (concurring in part and dissenting in part). Its purported response in Pearce-that although the rationale for allowing a more severe punishment after a retrial "has been variously verbalized, it rests ultimately upon the premise that the original conviction has, at the defendant's behest, been wholly nullified," id., at 720-721, 89 S.Ct., at 2078-clearly has no application to the question whether a more severe sentence may be imposed at the prosecutor's behest when the original conviction has not been nullified.
68
The straightforward analysis by Justice Harlan is worthy of emphasis:
69
"Every consideration enunciated by the Court in support of the decision in Green [v. United States, 355 U.S. 184 [78 S.Ct. 221, 2 L.Ed.2d 199] (1957)] applies with equal force to the situation at bar. In each instance, the defendant was once subjected to the risk of receiving a maximum punishment, but it was determined by legal process that he should receive only a specified punishment less than the maximum. See id., at 190 [78 S.Ct. at 225]. And the concept or fiction of an 'implicit acquittal' of the greater offense, ibid., applies equally to the greater sentence: in each case it was determined at the former trial that the defendant or his offense was of a certain limited degree of 'badness' or gravity only, and therefore merited only a certain limited punishment.. . .
70
"If, as a matter of policy and practicality, the imposition of an increased sentence on retrial has the same consequences whether effected in the guise of an increase in the degree of offense or an augmentation of punishment, what other factors render one route forbidden and the other permissible under the Double Jeopardy Clause? It cannot be that the provision does not comprehend 'sentences'-as distinguished from 'offenses'-for it has long been established that once a prisoner commences service of sentence, the Clause prevents a court from vacating the sentence and then imposing a greater one. See United States v. Benz, 282 U.S. 304, 306-307 [51 S.Ct. 113, 114, 75 L.Ed. 354] (1931); Ex parte Lange, 18 Wall. 163, 168, 173 [21 L.Ed. 872] (1874)." Id., at 746-747, 89 S.Ct., at 2086.
71
The Court's response to this analysis is nothing more than a rather wooden extrapolation from a rationale that, however it may be "variously verbalized," id., at 720-721, 89 S.Ct., at 2078, is wholly irrelevant to the important question presented by this case.
72
Because I agree with what Justice BRENNAN has written today as well as with what Justice Harlan wrote in 1969, I respectfully dissent.
1
Section 3575 provides, so far as pertinent for this case:
"(a) Whenever an attorney charged with the prosecution of a defendant in a court of the United States for an alleged felony committed when the defendant was over the age of twenty-one years has reason to believe that the defendant is a dangerous special offender such attorney, a reasonable time before trial or acceptance by the court of a plea of guilty or nolo con-
tendere, may sign and file with the court, and may amend, a notice (1) specifying that the defendant is a dangerous special offender who upon conviction for such felony is subject to the imposition of a sentence under subsection (b) of this section, and (2) setting out with particularity the reasons why such attorney believes the defendant to be a dangerous special offender. In no case shall the fact that the defendant is alleged to be a dangerous special offender be an issue upon the trial of such felony, [or] be disclosed to the jury. . . .
"(b) Upon any plea of guilty or nolo contendere or verdict or finding of guilty of the defendant of such felony, a hearing shall be held before sentence is imposed, by the court sitting without a jury. The court shall fix a time for the hearing, and notice thereof shall be given to the defendant and the United States at least ten days prior thereto. The court shall permit the United States and counsel for the defendant, or the defendant if he is not represented by counsel, to inspect the presentence report sufficiently prior to the hearing as to afford a reasonable opportunity for verification. . . . In connection with the hearing, the defendant and the United States shall be entitled to assistance of counsel, compulsory process, and cross-examination of such witnesses as appear at the hearing. A duly authenticated copy of a former judgment or commitment shall be prima facie evidence of such former judgment or commitment. If it appears by a preponderance of the information, including information submitted during the trial of such felony and the sentencing hearing and so much of the presentence report as the court relies upon, that the defendant is a dangerous special offender, the court shall sentence the defendant 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. Otherwise it shall sentence the defendant in accordance with the law prescribing penalties for such felony. The court shall place in the record its findings, including an identification of the information relied upon in making such findings, and its reasons for the sentence imposed.
* * * * *
"(e) A defendant is a special offender for purposes of this section if-
* * * * *
"(3) such felony was, or the defendant committed such felony in furtherance of, a conspiracy with three or more other persons to engage in a pattern of conduct criminal under applicable laws of any jurisdiction, and the defendant did, or agreed that he would, initiate, organize, plan, finance,
direct, manage, or supervise all or part of such conspiracy or conduct, or give or receive a bribe or use force as all or part of such conduct.
". . . For purposes of paragraphs (2) and (3) of this subsection, criminal conduct forms a pattern if it embraces criminal acts that have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristic[s] and are not isolated events.
"(f) A defendant is dangerous for purposes of this section if a period of confinement longer than that provided for such felony is required for the protection of the public from further criminal conduct by the defendant."
2
Section 3576 reads in full as follows:
"With respect to the imposition, correction, or reduction of a sentence after proceedings under section 3575 of this chapter, a review of the sentence on the record of the sentencing court may be taken by the defendant or the United States to a court of appeals. Any review of the sentence taken by the United States shall be taken at least five days before expiration of the time for taking a review of the sentence or appeal of the conviction by the defendant and shall be diligently prosecuted. The sentencing court may, with or without motion and notice, extend the time for taking a review of the sentence for a period not to exceed thirty days from the expiration of the time otherwise prescribed by law. The court shall not extend the time for taking a review of the sentence by the United States after the time has expired. A court extending the time for taking a review of the sentence by the United States shall extend the time for taking a review of the sentence or appeal of the conviction by the defendant for the same period. The taking of a review of the sentence by the United States shall be deemed the taking of a review of the sentence and an appeal of the conviction by the defendant. Review of the sentence shall include review of whether the procedure employed was lawful, the findings made were clearly erroneous, or the sentencing court's discretion was abused. The court of appeals on review of the sentence may, after considering the record, including the entire presentence report, information submitted during the trial of such felony and the sentencing hearing, and the findings and reasons of the sentencing court, affirm the sentence, impose or direct the imposition of any sentence which the sentencing court could originally have imposed, or remand for further sentencing proceedings and imposition of sentence, except that a sentence may be made more severe only on review of the sentence taken by the United States and after hearing. Failure of the United States to take a review of the imposition of the sentence shall, upon review taken by the United States of the correction or reduction of the sentence, foreclose imposition of a sentence more severe than that previously imposed. Any withdrawal or dismissal of review of the sentence taken by the United States shall foreclose imposition of a sentence more severe than that reviewed but shall not otherwise foreclose the review of the sentence or the appeal of the conviction. The court of appeals shall state in writing the reasons for its disposition of the review of the sentence. Any review of the sentence taken by the United States may be dismissed on a showing of abuse of the right of the United States to take such review."
Section 3576 has a twin in 21 U.S.C. § 849(h). This was enacted as § 409(h) of the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. 91-513, 84 Stat. 1266.
3
"[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb. . . ." U.S.Const., Amdt. 5.
4
Academic and professional commentary on the general issue is divided. For conclusions that prosecution appeals of sentences do not violate the Double Jeopardy Clause, see Westen, The Three Faces of Double Jeopardy: Reflections on Government Appeals of Criminal Sentences, 78 Mich.L.Rev. 1001 (1980); Stern, Government Appeals of Sentences: A Constitutional Response to Arbitrary and Unreasonable Sentences, 18 Am.Crim.L.Rev. 51 (1980); Dunsky, The Constitutionality of Increasing Sentences on Appellate Review, 69 J.Crim.L. & Criminology 19 (1978). For conclusions that such appeals are unconstitutional, see Spence, The Federal Criminal Code Reform Act of 1977 and Prosecutorial Appeal of Sentences: Justice or Double Jeopardy?, 37 Md.L.Rev. 739 (1978); Freeman & Earley, United States v. DiFrancesco: Government Appeal of Sentences, 18 Am.Crim.L.Rev. 91 (1980); Note, 63 Va.L.Rev. 325 (1977); Report on Government Appeal of Sentences, 35 Bus.Lawyer 617, 624-628 (1980). At least one commentator-witness some time ago regarded the answer to the constitutional issue as "simply unclear." Low, Special Offender Sentencing, 8 Am.Crim.L.Q. 70, 91 (1970) (reprint of statement submitted at Hearings on S. 30 et al. before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, 91st Cong., 1st Sess., 184, 197 (1969)).
See also ABA Standards for Criminal Justice 20-1.1(d), and appended commentary, pp. 20-7 through 20-13 (2d ed. 1980).
5
The maximum punishment for a violation of § 1962 is a fine of not more than $25,000 or imprisonment for not more than 20 years, or both, plus specified forfeitures. § 1963.
6
Section 1361 specifies that the maximum punishment for its violation, if the damage exceeds $100, is a fine of not more than $10,000 or imprisonment for not more than 10 years, or both. The maximum punishment for a violation of § 842(j) is a fine of not more than $1,000 or imprisonment for not more than one year, or both. § 844(b). Section 371 specifies that the maximum punishment for its violation, when the offense that is the object of the conspiracy is not a misdemeanor, is a fine of not more than $10,000 or imprisonment of not more than five years, or both.
7
The applicability of §§ 3575 and 3576 to this respondent, the issue upon which the concurring judge rested his conclusion, is not before us. The majority of the Court of Appeals observed, in passing, that the trial court "properly could find that the statute was applicable." 604 F.2d, at 780-781, n. 13. In any event, the issue may be considered, if there is any reason for so doing, on remand.
8
The court then summarized its findings and set forth its conclusion as follows:
"In sum, this Court, on the basis of the facts above, finds that the defendant was over the age of 21 years when the crimes for which he stands convicted were committed; that the defendant stands convicted of two felonies; that one felony was committed in furtherance of a conspiracy (18 U.S.C. 1962(c)); that the other felony was itself a conspiracy (18 U.S.C. 1962(d)); that the conspiracy and the substantive crime involved at least four persons other than the defendant . . .; that the conspiracy and the substantive crime was to engage in a pattern of conduct which was criminal under the laws of the State of New York (New York Penal Code, Article 150) and of the United States (18 U.S.C. 1341); that the defendant did initiate, organize, plan, direct, manage and supervise at least part of the conspiracy and the substantive criminal acts; [and that confinement of the defendant for a period longer than that provided for violation of 18 U.S.C. 1962(c) or 1962(d) is required for the protection of the public from further criminal conduct by the defendant.]
"WHEREFORE, it is the finding of this Court that the defendant Eugene DiFrancesco, having been convicted of two felony charges before this Court on October 31, 1977, and having been over the age of 21 years at the time of the commission of those felonies is a dangerous special offender within the meaning of sections 3575(e)(3) and 3575(f) of Title 18 of the United States Code, and therefore subject to the sentencing provisions of section 3575(b) of Title 18 of the United States Code." App. 43-44.
The bracketed phrase is in the findings as typed, but a line has been drawn through it in ink by hand. No persuasive explanation for this deletion, if it is one, has been offered this Court.
9
It was indicated at oral argument, Tr. of Oral Arg. 5, 37, 39, and in one of the briefs, Brief for Respondent 12, as well as in the opinion of the Court of Appeals, 604 F.2d, at 781, and n.17, that this is the first case in which the United States specifically has sought review of a sentence under § 3576. Inasmuch as the statute was enacted a decade ago, this fact might be said to indicate either little use of the special offender statute by the United States, or prosecutorial concern about its constitutionality, or that federal trial judges are imposing sufficiently severe sentences on special offenders to make review unnecessary. No definitive explanation, however, has been offered. An attempt on the part of this Court to explain the nonuse of the statute would be speculation, and we shall not indulge in it.
10
This recital is described as this Court's "favorite saying about double jeopardy" and is the subject of comment, not uncritical, in Professor Westen's provocative and thoughtful article, The Three Faces of Double Jeopardy: Reflections on Government Appeals of Criminal Sentences, 78 Mich.L.Rev. 1001, 1062-1063 (1980).
11
Professor Westen describes it succinctly this way:
"The prohibition on retrial following an acquittal is based on a jury's prerogative to acquit against the evidence. . . ." Id., at 1012, 1063.
12
And, of course, it is surely settled that the Double Jeopardy Clause of the Fifth Amendment has application to the States through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228 (1980).
13
While the challenge in Kepner was based not on the Double Jeopardy Clause, but on a statute extending double jeopardy protection to the Philippines, this Court has accepted that decision "as having correctly stated the relevant double jeopardy principles." See United States v. Wilson, 420 U.S. 332, 346, n.15, 95 S.Ct. 1013, n.15, 1023, 43 L.Ed.2d 232 (1975).
14
The principal dissent fails to recognize the import of Pearce. According to that dissent, the "analytic similarity of a verdict of acquittal and the imposition of sentence" requires the conclusion that sentences may not be increased after imposition without violating the Double Jeopardy Clause. Post, at 146. Thus, the imposition of a 10-year sentence where a 25-year sentence is permissible is, in the dissent's view, an implicit acquittal of the greater sentence. Ibid. But precisely this argument was unsuccessfully advanced by Justices Douglas and Harlan in Pearce. See 395 U.S., at 726-728, and n.1, 89 S.Ct., at 2081-2089, and n.1 (Douglas, J., concurring); id., at 744-746, 89 S.Ct., at 2085-2086 (Harlan, J., concurring in part and dissenting in part). The majority in Pearce thus rejected the notion that the imposition of a sentence less than the maximum operates as an implied acquittal of any greater sentence. See id., at 720, and n.16, 89 S.Ct., at 2078, and n.16.
Further, the principal dissent's attempt to distinguish Pearce on the grounds that there the imposition of the sentence followed a retrial, rather than an appeal, is unconvincing. In Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), the Court held that a defendant who had been convicted of the lesser included offense of second-degree murder at his first trial could not be convicted of the greater offense of first-degree murder on retrial; thus, the conviction of the lesser included offense operated as an implicit acquittal of the greater. Since the defendant sought and obtained a retrial in each case, the difference in result reached in Green and Pearce can be explained only on the grounds that the imposition of sentence does not operate as an implied acquittal of any greater sentence.
Justice Stevens' dissent, with its reliance on Justice Harlan's separate opinion in Pearce, concurring in part and dissenting in part, 395 U.S., at 744, 89 S.Ct., at 2085, in effect argues nothing more than that Pearce was wrongly decided. We are not inclined to overrule Pearce.
15
Somewhat similar dicta are present in Murphy v. Massachusetts, 177 U.S. 155, 160, 20 S.Ct. 639, 641, 44 L.Ed. 711 (1900), and in the plurality opinion in Reid v. Covert, 354 U.S. 1, 37-38, n.68, 77 S.Ct. 1222, 1241, n.68, 1 L.Ed.2d 1148 (1957). The latter is not a double jeopardy case.
16
We read § 3576 as establishing at the most a two-stage sentencing procedure. Indeed, the original bill introduced in Congress specifically stated that the sentence was not to be considered final until after disposition of review or until the expiration of the time for appeal. S. 30, 91st Cong., 1st Sess., § 3577 (1969); Measures Relating to Organized Crime: Hearings on S. 30 et al. before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, 91st Cong., 1st Sess., 28-29 (1969). Congress, however, was advised that this language was not needed in order to preserve the constitutionality of the statute, and it was omitted. Id., at 196, and n.18. See 65 Cornell L.Rev. 715, 730 (1980).
1
Section 3576 states in pertinent part:
"[A] review of the sentence on the record of the sentencing court may be taken by the defendant or the United States to a court of appeals. . . . Review of the sentence shall include review of whether the procedure employed was lawful, the findings made were clearly erroneous, or the sentencing court's discretion was abused. The court of appeals on review of the sentence may, after considering the record, including the entire presentence report, information submitted during the trial of such felony and the sentencing hearing, and the findings and reasons of the sentencing court, affirm the sentence, impose or direct the imposition of any sentence which the sentencing court could originally have imposed, or remand for further sentencing proceedings and imposition of sentence, except that a sentence may be made more severe only on review of the sentence taken by the United States and after hearing . . . ."
2
The United States may appeal decisions in a criminal case only if so authorized by statute. United States v. Scott, 437 U.S. 82, 84-85, 98 S.Ct. 2187, 2190, 57 L.Ed.2d 65 (1978); United States v. Sanges, 144 U.S. 310, 12 S.Ct. 609, 36 L.Ed. 445 (1892).
3
"[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb. . . ." U.S.Const., Amdt. 5.
4
Under my view of the double jeopardy protection against multiple punishments, a sentence may not be increased once a technically correct sentence has been imposed. I would distinguish correction of a technically improper sentence which the Court has always allowed. See, e. g., Bozza v. United States, 330 U.S. 160, 165-167, 67 S.Ct. 645, 648-649, 91 L.Ed. 818 (1947).
5
The Court dismisses the significance of Benz because it cited Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872 (1874), which did not present the precise issue on which, according to the Court, Benz "gratuitously," ante, at 138, opined. It is true that Lange raised an issue somewhat different from Benz, but Lange did decide a question of unconstitutional multiple punishment. Benz' citation of Lange, then, was entirely appropriate.
6
The finality accorded sentences has been recognized in other contexts. Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 165, 82 L.Ed. 204 (1937) (Sentence is appealable by defendant notwithstanding suspension of execution. "Final judgment in a criminal case means sentence. The sentence is the judgment"); see Corey v. United States, 375 U.S. 169, 84 S.Ct. 298, 11 L.Ed.2d 229 (1963).
7
The Court suggests that "[t]he law 'attaches particular significance to an acquittal,' " ante, at 129, quoting United States v. Scott, 437 U.S., at 91, 98 S.Ct., at 2193, and that " 'we necessarily afford absolute finality to a jury's verdict of acquittal-no matter how erroneous its decision,' " ante, at 130, quoting Burks v. United States, 437 U.S. 1, 16, 98 S.Ct. 2141, 2149, 57 L.Ed.2d 1 (1978) (emphasis in original). See Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 671, 672, 7 L.Ed.2d 629 (1962) (directed verdict of acquittal by trial judge in middle of jury trial is entitled to finality and is unreviewable by appeal even though "based upon an egregiously erroneous foundation"). That explains in part the result reached in United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975), which allowed an appellate court to reinstate a guilty verdict which was nullified by the trial judge's postverdict dismissal of the indictment. Wilson involved correction of an error of law and reinstatement of an already existing fact adjudication. However, under § 3576, there is no fact adjudication for the court of appeals to reinstate where the purpose of the appeal is to increase the defendant's sentence. The appellate court would have to make its own fact determination and judgment as to the defendant's proper sentence.
8
Another purpose of the Double Jeopardy Clause is to prevent "enhancing the possibility that even though innocent, [a defendant] may be found guilty." Green v. United States, 355 U.S., at 188, 78 S.Ct., at 223. A similar analysis applies with respect to sentencing. Repeated attempts at sentencing are as likely to produce an unjustifiably harsh sentence as repeated trials are likely to result in an unwarranted guilty verdict. In both instances, the Government seeks a second opportunity to present evidence it could have presented in the first instance. Burks v. United States, supra, at 11, 98 S.Ct., at 2147; see 18 U.S.C. § 3576 ("The court of appeals . . . may . . . remand for further sentencing proceedings and imposition of sentence").
9
For the 12 months ending June 30, 1979, of 32,913 convictions in the United States District Courts, 27,295 were by guilty plea and by plea of nolo contendere. Annual Report of the Director of the Administrative Office of the United State Courts 286 (1979).
Under the Court's view, there might be no double jeopardy bar against a Government appeal from the sentence meted out pursuant to a guilty plea. While defendants might bargain with prosecutors over the latter's appellate rights, that possibility is irrelevant for determining the double jeopardy consequences of an appeal from a sentence imposed pursuant to a plea bargain.
10
The Court, of course, acknowledges that verdicts of acquittal are not appealable.
11
Finality is also accorded to acquittals to protect against retrials leading to erroneous guilty verdicts. See n.8, supra.
12
The reason for allowing retrials following reversal of convictions rests on a legitimate concern for the "sound administration of justice. Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction." United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964). Appeals of sentences by the Government pursuant to § 3576 do not implicate the considerations identified in Tateo. Section 3576 authorizes appeals of sentences which, in the Government's view, are simply too low. Indeed, as the court below noted, respondent was sentenced to 10 years' imprisonment and had already begun serving his sentence. There was no possibility here, therefore, that respondent would be "granted immunity from punishment." 377 U.S., at 466, 84 S.Ct., at 1589.
13
Moreover, in Swisher, no evidence could be introduced once the proceeding before the master was terminated, unless the juvenile consented to the introduction of additional evidence. By contrast, § 3576 contemplates additional evidentiary proceedings in connection with appellate review of sentences. See nn.1 and 8, supra.
14
Similarly, subsequent fact adjudication by the court of appeals or by the district court on remand to it for an evidentiary hearing pursuant to 18 U.S.C. § 3576 is akin to an unconstitutional second trial following a verdict of acquittal.
15
Under the Court's view, there is no double jeopardy bar to imposition of additional punishment by an appellant court after the defendant has completed service of the sentence imposed by the trial court, although such an outcome is not contemplated by § 3576 as presently drafted and would presumably violate due process in any event.
| 01
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449 U.S. 166
101 S.Ct. 453
66 L.Ed.2d 368
UNITED STATES RAILROAD RETIREMENT BOARD, Appellant,v.Gerhard H. FRITZ.
No. 79-870.
Argued Oct. 6, 1980.
Decided Dec. 9, 1980.
Rehearing Denied Feb. 23, 1981.
See 450 U.S. 960, 101 S.Ct. 1421.
Syllabus
The Railroad Retirement Act of 1974 (1974 Act) fundamentally restructured the railroad retirement system under the predecessor 1937 Act, which had included provisions whereby a person who worked for both railroad and nonrailroad employers and who qualified for both railroad retirement and social security benefits received benefits under both systems and an accompanying "windfall" benefit. Although providing that employees who lacked the requisite 10 years of railroad employment to qualify for railroad retirement benefits as of the January 1, 1975, changeover date would not receive any windfall benefits, the 1974 Act preserved windfall benefits for individuals who had retired and were receiving dual benefits as of the changeover date. A provision of the 1974 Act, 45 U.S.C. § 231b(h)(1), also preserved windfall benefits for employees who had qualified for dual benefits as of the changeover date, but who had not yet retired, if they had (1) performed some railroad service in 1974 or (2) had a "current connection" with the railroad industry as of December 31, 1974, or their later retirement date, or (3) completed 25 years of railroad service as of December 31, 1974. The 1974 Act further provided, 45 U.S.C. § 231b(h)(2), that employees who had qualified for railroad benefits as of the changeover date, but lacked a current connection with the railroad industry in 1974 and 25 years of railroad employment, could obtain a lesser amount of windfall benefits if they had qualified for social security benefits as of the year (prior to 1975) they left railroad employment. Appellee and others filed a class action in Federal District Court for a declaratory judgment that § 231b(h) is unconstitutional under the Due Process Clause of the Fifth Amendment, contending that it was irrational for Congress to distinguish between employees who had more than 10 years but less than 25 years of railroad employment simply on the basis of whether they had a "current connection" with the railroad industry as of the changeover date or as of the date of retirement. The District Court certified a plaintiff class of all persons eligible to retire between January 1, 1975, and January 31, 1977, who were permanently insured under the Social Security Act as of December 31, 1974, but who were not eligible to receive any windfall benefits because they had left the railroad industry before 1974, had no "current connection" with it at the end of 1974, and had less than 25 years of railroad service. The court held that the differentiation based solely on whether an employee was "active" in the railroad business as of 1974 was not "rationally related" to the congressional purposes of insuring the solvency of the railroad retirement system and protecting vested benefits.
Held : The challenged provisions of the 1974 Act do not deny the plaintiff class equal protection of the laws guaranteed by the Fifth Amendment. Pp. 174-179.
(a) When social and economic legislation enacted by Congress is challenged on equal protection grounds as being violative of the Fifth Amendment, the rational-basis standard is the appropriate standard of judicial review. If the classification has some "reasonable basis," it does not offend the Constitution simply because the classification is not made with mathematical nicety or because in practice it results in some inequality. This Court will not invalidate on equal protection grounds legislation that it simply deems unwise or unartfully drawn. Cf., e. g., Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491; Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285. Pp. 174-176.
(b) Under such principles, § 231b(h) does not violate the Fifth Amendment. Because Congress could have eliminated windfall benefits for all classes of employees, it is not constitutionally impermissible for Congress to have drawn lines between groups of employees for the purpose of phasing out those benefits. Congress did not achieve its purpose in a patently arbitrary or irrational way, since it could properly conclude that persons who had actually acquired statutory entitlement to windfall benefits while still employed in the railroad industry had a greater equitable claim to those benefits than the members of the plaintiff class who were no longer in railroad employment when they became eligible for dual benefits. Furthermore, the "current connection" test is not a patently arbitrary means for determining which employees are "career railroaders," the class for whom the 1974 Act was designed. Pp. 176-178.
(c) Nor is there merit to the District Court's conclusion that Congress was unaware of what it accomplished or that it was misled by the groups that appeared before it. The language of the statute is clear, and it has been historically assumed that Congress intended what it enacted. P. 179.
Reversed.
Edwin S. Kneedler, Washington, D. C., for appellant.
Daniel P. Byron, Indianapolis, Ind., for appellee.
Justice REHNQUIST delivered the opinion of the Court.
1
The United States District Court for the Southern District of Indiana held unconstitutional a section of the Railroad Retirement Act of 1974, 88 Stat. 1305, as amended, 45 U.S.C. § 231 et seq., and the United States Railroad Retirement Board has appealed to this Court pursuant to 28 U.S.C. § 1252. We noted probable jurisdiction. 444 U.S. 1069, 100 S.Ct. 1010, 62 L.Ed.2d 749 (1980).
2
The 1974 Act fundamentally restructured the railroad retirement system. The Act's predecessor statute, adopted in 1937, provided a system of retirement and disability benefits for persons who pursued careers in the railroad industry. Under that statute, a person who worked for both railroad and nonrailroad employers and who qualified for railroad retirement benefits and social security benefits, 42 U.S.C. § 401 et seq., received retirement benefits under both systems and an accompanying "windfall" benefit.1 The legislative history of the 1974 Act shows that the payment of windfall benefits threatened the railroad retirement system with bankruptcy by the year 1981.2 Congress therefore determined to place the system on a "sound financial basis" by eliminating future accruals of those benefits.3 Congress also enacted various transitional provisions, including a grandfather provision, § 231b(h),4 which expressly preserved windfall benefits for some classes of employees.
3
In restructuring the Railroad Retirement Act in 1974, Congress divided employees into various groups. First, those employees who lacked the requisite 10 years of railroad employment to qualify for railroad retirement benefits as of January 1, 1975, the changeover date, would have their retirement benefits computed under the new system and would not receive any windfall benefit. Second, those individuals already retired and already receiving dual benefits as of the changeover date would have their benefits computed under the old system and would continue to receive a windfall benefit.5 Third, those employees who had qualified for both railroad and social security benefits as of the changeover date, but who had not yet retired as of that date (and thus were not yet receiving dual benefits), were entitled to windfall benefits if they had (1) performed some railroad service in 1974 or (2) had a "current connection" with the railroad industry as of December 31, 1974,6 or (3) completed 25 years of railroad service as of December 31, 1974. 45 U.S.C. § 231b(h)(1). Fourth, those employees who had qualified for railroad benefits as of the changeover date, but lacked a current connection with the railroad industry in 1974 and lacked 25 years of railroad employment, could obtain a lesser amount of windfall benefit if they had qualified for social security benefits as of the year (prior to 1975) they left railroad employment. 45 U.S.C. § 231b(h)(2).7
4
Thus, an individual who, as of the changeover date, was unretired and had 10 years of railroad employment and sufficient nonrailroad employment to qualify for social security benefits is eligible for the full windfall amount if he worked for the railroad in 1974 or had a current connection with the railroad as of December 31, 1974, or his later retirement date. But an unretired individual with 24 years of railroad service and sufficient nonrailroad service to qualify for social security benefits is not eligible for a full windfall amount unless he worked for the railroad in 1974, or had a current connection with the railroad as of December 31, 1974, or his later retirement date. And an employee with 10 years of railroad employment who qualified for social security benefits only after leaving the railroad industry will not receive a reduced windfall benefit while an employee who qualified for social security benefits prior to leaving the railroad industry would receive a reduced benefit. It was with these complicated comparisons that Congress wrestled in 1974.
5
Appellee and others filed this class action in the United States District Court for the Southern District of Indiana, seeking a declaratory judgment that 45 U.S.C. § 231b(h) is unconstitutional under the Due Process Clause of the Fifth Amendment because it irrationally distinguishes between classes of annuitants.8 The District Court eventually certified a class of all persons eligible to retire between January 1, 1975, and January 31, 1977, who were permanently insured under the Social Security Act as of December 31, 1974, but who were not eligible to receive any "windfall component" because they had left the railroad industry before 1974, had no "current connection" with it at the end of 1974, and had less than 25 years of railroad service.9 Appellee contended below that it was irrational for Congress to have drawn a distinction between employees who had more than 10 years but less than 25 years of railroad employment simply on the basis of whether they had a "current connection" with the railroad industry as of the changeover date or as of the date of retirement.
6
The District Court agreed with appellee that a differentiation based solely on whether an employee was "active" in the railroad business as of 1974 was not "rationally related" to the congressional purposes of insuring the solvency of the railroad retirement system and protecting vested benefits. We disagree and reverse.
7
The initial issue presented by this case is the appropriate standard of judicial review to be applied when social and economic legislation enacted by Congress is challenged as being violative of the Fifth Amendment to the United States Constitution. There is no claim here that Congress has taken property in violation of the Fifth Amendment, since railroad benefits, like social security benefits, are not contractual and may be altered or even eliminated at any time. Hisquierdo v. Hisquierdo, 439 U.S. 572, 575, 99 S.Ct. 802, 805, 59 L.Ed.2d 1 (1979); Flemming v. Nestor, 363 U.S. 603, 608-611, 80 S.Ct. 1367, 1371-1372, 4 L.Ed.2d 1435 (1960). And because the distinctions drawn in § 231b(h) do not burden fundamental constitutional rights or create "suspect" classifications, such as race or national origin, we may put cases involving judicial review of such claims to one side. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); Vance v. Bradley, 440 U.S. 93, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979).
8
Despite the narrowness of the issue, this Court in earlier cases has not been altogether consistent in its pronouncements in this area. In Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78-79, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1911), the Court said that "[w]hen the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time that the law was enacted must be assumed." On the other hand, only nine years later in F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920), the Court said that for a classification to be valid under the Equal Protection Clause of the Fourteenth Amendment it "must rest upon some ground of difference having a fair and substantial relation to the object of the legislation. . . ."
9
In more recent years, however, the Court in cases involving social and economic benefits has consistently refused to invalidate on equal protection grounds legislation which it simply deemed unwise or unartfully drawn.
10
Thus in Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), the Court rejected a claim that Maryland welfare legislation violated the Equal Protection Clause of the Fourteenth Amendment. It said:
11
"In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some 'reasonable basis,' it does not offend the Constitution simply because the classification 'is not made with mathematical nicety or because in practice it results in some inequality.' Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369. 'The problems of government are practical ones and may justify, if they do not require, rough accommodations-illogical, it may be, and unscientific.' Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 68-70, 33 S.Ct. 441, 443, 57 L.Ed. 730. . . .
12
". . . [The rational-basis standard] is true to the principle that the Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what constitutes wise economic or social policy." Id., at 485-486, 90 S.Ct., at 1161-1162.
13
Of like tenor are Vance v. Bradley, supra, at 97, 99 S.Ct., at 943, and New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516, 49 L.Ed.2d 511 (1976). Earlier, in Flemming v. Nestor, supra, at 611, 80 S.Ct., at 1373, the Court upheld the constitutionality of a social security eligibility provision, saying:
14
"[I]t is not within our authority to determine whether the Congressional judgment expressed in that Section is sound or equitable, or whether it comports well or ill with purposes of the Act. . . . The answer to such inquiries must come from Congress, not the courts. Our concern here, as often, is with power, not with wisdom."
15
And in a case not dissimilar from the present one, in that the State was forced to make a choice which would undoubtedly seem inequitable to some members of a class, we said:
16
"Applying the traditional standard of review under [the Equal Protection Clause], we cannot say that Texas' decision to provide somewhat lower welfare benefits for [Aid to Families with Dependent Children] recipients is invidious or irrational. Since budgetary constraints do not allow the payment of the full standard of need for all welfare recipients, the State may have concluded that the aged and infirm are the least able of the categorical grant recipients to bear the hardships of an inadequate standard of living. While different policy judgments are of course possible, it is not irrational for the State to believe that the young are more adaptable than the sick and elderly, especially because the latter have less hope of improving their situation in the years remaining to them. Whether or not one agrees with this state determination, there is nothing in the Constitution that forbids it." Jefferson v. Hackney, 406 U.S. 535, 549, 92 S.Ct. 1724, 1732, 32 L.Ed.2d 285 (1972).
17
Applying those principles to this case, the plain language of § 231b(h) marks the beginning and end of our inquiry.10 There Congress determined that some of those who in the past received full windfall benefits would not continue to do so. Because Congress could have eliminated windfall benefits for all classes of employees, it is not constitutionally impermissible for Congress to have drawn lines between groups of employees for the purpose of phasing out those benefits. New Orleans v. Dukes, supra, at 305, 96 S.Ct., at 2517.
18
The only remaining question is whether Congress achieved its purpose in a patently arbitrary or irrational way. The classification here is not arbitrary, says appellant, because it is an attempt to protect the relative equities of employees and to provide benefits to career railroad employees. Congress fully protected, for example, the expectations of those employees who had already retired and those unretired employees who had 25 years of railroad employment. Conversely, Congress denied all windfall benefits to those employees who lacked 10 years of railroad employment. Congress additionally provided windfall benefits, in lesser amount, to those employees with 10 years' railroad employment who had qualified for social security benefits at the time they had left railroad employment, regardless of a current connection with the industry in 1974 or on their retirement date.
19
Thus, the only eligible former railroad employees denied full windfall benefits are those, like appellee, who had no statutory entitlement to dual benefits at the time they left the railroad industry, but thereafter became eligible for dual benefits when they subsequently qualified for social security benefits. Congress could properly conclude that persons who had actually acquired statutory entitlement to windfall benefits while still employed in the railroad industry had a greater equitable claim to those benefits than the members of appellee's class who were no longer in railroad employment when they became eligible for dual benefits. Furthermore, the "current connection" test is not a patently arbitrary means for determining which employees are "career railroaders," particularly since the test has been used by Congress elsewhere as an eligibility requirement for retirement benefits.11 Congress could assume that those who had a current connection with the railroad industry when the Act was passed in 1974, or who returned to the industry before their retirement, were more likely than those who had left the industry prior to 1974 and who never returned, to be among the class of persons who pursue careers in the railroad industry, the class for whom the Railroad Retirement Act was designed. Hisquierdo v. Hisquierdo, 439 U.S., at 573, 99 S.Ct., at 804. Where, as here, there are plausible reasons for Congress' action, our inquiry is at an end. It is, of course, "constitutionally irrelevant whether this reasoning in fact underlay the legislative decision," Flemming v. Nestor, 363 U.S., at 612, 80 S.Ct., at 1373, because this Court has never insisted that a legislative body articulate its reasons for enacting a statute. This is particularly true where the legislature must necessarily engage in a process of line-drawing. The "task of classifying persons for . . . benefits . . . inevitably requires that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line," Mathews v. Diaz, 426 U.S. 67, 83-84, 96 S.Ct. 1883, 1893, 48 L.Ed.2d 478 (1976), and the fact the line might have been drawn differently at some points is a matter for legislative, rather than judicial, consideration.
20
Finally, we disagree with the District Court's conclusion that Congress was unaware of what it accomplished or that it was misled by the groups that appeared before it. If this test were applied literally to every member of any legislature that ever voted on a law, there would be very few laws which would survive it. The language of the statute is clear, and we have historically assumed that Congress intended what it enacted. To be sure, appellee lost a political battle in which he had a strong interest, but this is neither the first nor the last time that such a result will occur in the legislative forum. What we have said is enough to dispose of the claims that Congress not only failed to accept appellee's argument as to restructuring in toto, but that such failure denied him equal protection of the laws guaranteed by the Fifth Amendment.12
21
For the foregoing reasons, the judgment of the District Court is
22
Reversed.
23
Justice STEVENS, concurring in the judgment.
24
In my opinion Justice BRENNAN's criticism of the Court's approach to this case merits a more thoughtful response than that contained in footnote 10, ante, at 176-177. Justice BRENNAN correctly points out that if the analysis of legislative purpose requires only a reading of the statutory language in a disputed provision, and if any "conceivable basis" for a discriminatory classification will repel a constitutional attack on the statute, judicial review will constitute a mere tautological recognition of the fact that Congress did what it intended to do. Justice BRENNAN is also correct in reminding us that even though the statute is an example of "social and economic legislation," the challenge here is mounted by individuals whose legitimate expectations of receiving a fixed retirement income are being frustrated by, in effect, a breach of a solemn commitment by their Government. When Congress deprives a small class of persons of vested rights that are protected—and, indeed, even enhanced1—for others who are in a similar though not identical position, I believe the Constitution requires something more than merely a "conceivable" or a "plausible" explanation for the unequal treatment.
25
I do not, however, share Justice BRENNAN's conclusion that every statutory classification must further an objective that can be confidently identified as the "actual purpose" of the legislature. Actual purpose is sometimes unknown. Moreover, undue emphasis on actual motivation may result in identically worded statutes being held valid in one State and invalid in a neighboring State.2 I therefore believe that we must discover a correlation between the classification and either the actual purpose of the statute or a legitimate purpose that we may reasonably presume to have motivated an impartial legislature. If the adverse impact on the disfavored class is an apparent aim of the legislature, its impartiality would be suspect. If, however, the adverse impact may reasonably be viewed as an acceptable cost of achieving a larger goal, an impartial lawmaker could rationally decide that that cost should be incurred.
26
In this case we need not look beyond the actual purpose of the legislature. As is often true, this legislation is the product of multiple and somewhat inconsistent purposes that led to certain compromises. One purpose was to eliminate in the future the benefit that is described by the Court as a "windfall benefit" and by Justice BRENNAN as an "earned dual benefit." That aim was incident to the broader objective of protecting the solvency of the entire railroad retirement program. Two purposes that conflicted somewhat with this broad objective were the purposes of preserving those benefits that had already vested and of increasing the level of payments to beneficiaries whose rights were not otherwise to be changed. As Justice BRENNAN emphasizes, Congress originally intended to protect all vested benefits, but it ultimately sacrificed some benefits in the interest of achieving other objectives.
27
Given these conflicting purposes, I believe the decisive questions are (1) whether Congress can rationally reduce the vested benefits of some employees to improve the solvency of the entire program while simultaneously increasing the benefits of others; and (2) whether, in deciding which vested benefits to reduce, Congress may favor annuitants whose railroad service was more recent than that of disfavored annuitants who had an equal or greater quantum of employment.
28
My answer to both questions is in the affirmative. The congressional purpose to eliminate dual benefits is unquestionably legitimate; that legitimacy is not undermined by the adjustment in the level of remaining benefits in response to inflation in the economy. As for the second question, some hardship—in the form of frustrated long-term expectations—must inevitably result from any reduction in vested benefits. Arguably, therefore, Congress had a duty—and surely it had the right to decide—to eliminate no more vested benefits than necessary to achieve its fiscal purpose. Having made that decision, any distinction it chose within the class of vested beneficiaries would involve a difference of degree rather than a difference in entitlement. I am satisfied that a distinction based upon currency of railroad employment represents an impartial method of identifying that sort of difference. Because retirement plans frequently provide greater benefits for recent retirees than for those who retired years ago—and thus give a greater reward for recent service than for past service of equal duration—the basis for the statutory discrimination is supported by relevant precedent. It follows, in my judgment, that the timing of the employees' railroad service is a "reasonable basis" for the classification as that term is used in Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369, ante, at 174, and Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491, ante, at 175, as well as a "ground of difference having a fair and substantial relation to the object of the legislation," as those words are used in F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 40 S.Ct. 560, 64 L.Ed. 989, ante, at 174-175.
29
Accordingly, I concur in the judgment.
30
Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.
31
Appellee Gerhard Fritz represents a class of retired former railroad employees who were statutorily entitled to Railroad Retirement and Social Security benefits, including an overlap herein called the "earned dual benefit," until enactment of the Railroad Retirement Act of 1974, which divested them of their entitlement to the earned dual benefit. The Act did not affect the entitlements of other railroad employees with equal service in railroad and nonrailroad jobs, who can be distinguished from appellee class only because they worked at least one day for, or retained a "current connection" with, a railroad in 1974.
32
The only question in this case is whether the equal protection component of the Fifth Amendment1 bars Congress from allocating pension benefits in this manner. The answer to this question turns in large part on the way in which the strictures of equal protection are conceived by this Court. See Morey v. Doud, 354 U.S. 457, 472, 77 S.Ct. 1344, 1353, 1 L.Ed.2d 1485 (1957) (Frankfurter, J., dissenting). The parties agree that the legal standard applicable to this case is the "rational basis" test. The District Court applied this standard below, see Conclusion of Law No. 7, reprinted at App. to Juris. Statement 28a. The Court today purports to apply this standard, but in actuality fails to scrutinize the challenged classification in the manner established by our governing precedents. I suggest that the mode of analysis employed by the Court in this case virtually immunizes social and economic legislative classifications from judicial review.
33
* A legislative classification may be upheld only if it bears a rational relationship to a legitimate state purpose. Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 943, 59 L.Ed.2d 171 (1979); Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1976) (per curiam ); New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516, 49 L.Ed.2d 511 (1976) (per curiam). Perhaps the clearest statement of this Court's present approach to "rational basis" scrutiny may be found in Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974). In considering the constitutionality of limitations on the availability of educational benefits under the Veterans' Readjustment Benefits Act of 1966, eight Members of this Court agreed that
34
"our analysis of the classification proceeds on the basis that, although an individual's right to equal protection of the laws 'does not deny . . . the power to treat different classes of persons in different ways[;] . . . [it denies] the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification "must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike." ' " Id., at 374-375, 94 S.Ct., at 1169 (quoting Reed v. Reed, 404 U.S. 71, 75-76, 92 S.Ct. 251, 253, 30 L.Ed.2d 225 (1970), which in turn was quoting F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920)) (ellipses and brackets in original) (emphasis supplied).
35
The enactments of Congress are entitled to a presumption of constitutionality, and the burden rests on those challenging a legislative classification to demonstrate that it does not bear the "fair and substantial relation to the object of the legislation," ibid., required under the Constitution. Mathews v. Lucas, 427 U.S. 495, 510, 96 S.Ct. 2755, 2764, 49 L.Ed.2d 651 (1976).
36
Nonetheless, the rational-basis standard "is not a toothless one," ibid., and will not be satisfied by flimsy or implausible justifications for the legislative classification, proffered after the fact by Government attorneys. See, e. g., Jimenez v. Weinberger, 417 U.S. 628, 94 S.Ct. 2496, 41 L.Ed.2d 363 (1974); U. S. Dept. of Agriculture v. Moreno, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973); U. S. Dept. of Agriculture v. Murry, 413 U.S. 508, 93 S.Ct. 2832, 37 L.Ed.2d 767 (1973); James v. Strange, 407 U.S. 128, 92 S.Ct. 2027, 32 L.Ed.2d 600 (1972). When faced with a challenge to a legislative classification under the rational-basis test, the court should ask, first, what the purposes of the statute are, and, second, whether the classification is rationally related to achievement of those purposes.
II
37
The purposes of the Railroad Retirement Act of 1974 are clear, because Congress has commendably stated them in the House and Senate Reports accompanying the Act. A section of the Reports is entitled "Principal Purpose of the Bill." It notes generally that "[t]he bill provides for a complete restructuring of the Railroad Retirement Act of 1937, and will place it on a sound financial basis,"2 and then states:
38
"Persons who already have vested rights under both the Railroad Retirement and the Social Security systems will in the future be permitted to receive benefits computed under both systems just as is true under existing law." H.R.Rep.No.93-1345, pp. 1, 2 (1974); S.Rep.No.93-1163, pp. 1, 2 (1974); U.S.Code Cong. & Admin.News 1974, p. 5702.3
39
Moreover, Congress explained that this purpose was based on considerations of fairness and the legitimate expectations of the retirees:
40
"[A]ny plan to eliminate these dual benefits should include protection of the equities of existing beneficiaries and employees with claims upon such benefits. Dual beneficiaries cannot fairly be criticized, since they have merely secured the benefits to which they are entitled under existing law. That is why their equities should be preserved." H.R.Rep.No. 93-1345, at 11; S.Rep.No. 93-1163, at 11; U.S.Code Cong. & Admin.News 1974 at 5710.
41
Thus, a "principal purpose" of the Railroad Retirement Act of 1974, as explicitly stated by Congress, was to preserve the vested earned benefits of retirees who had already qualified for them. The classification at issue here, which deprives some retirees of vested dual benefits that they had earned prior to 1974, directly conflicts with Congress' stated purpose. As such, the classification is not only rationally unrelated to the congressional purpose; it is inimical to it.
III
42
The Court today avoids the conclusion that § 231b(h) must be invalidated by deviating in three ways from traditional rational-basis analysis. First, the Court adopts a tautological approach to statutory purpose, thereby avoiding the necessity for evaluating the relationship between the challenged classification and the legislative purpose. Second, it disregards the actual stated purpose of Congress in favor of a justification which was never suggested by any Representative or Senator, and which in fact conflicts with the stated congressional purpose. Third, it upholds the classification without any analysis of its rational relationship to the identified purpose.
A.
43
The Court states that "the plain language of [45 U.S.C.] § 231b(h) marks the beginning and end of our inquiry." Ante, at 176. This statement is strange indeed, for the "plain language" of the statute can tell us only what the classification is; it can tell us nothing about the purpose of the classification, let alone the relationship between the classification and that purpose. Since § 231b(h) deprives the members of appellee class of their vested earned dual benefits, the Court apparently assumes that Congress must have intended that result. But by presuming purpose from result, the Court reduces analysis to tautology. It may always be said that Congress intended to do what it in fact did. If that were the extent of our analysis, we would find every statute, no matter how arbitrary or irrational, perfectly tailored to achieve its purpose. But equal protection scrutiny under the rational-basis test requires the courts first to deduce the independent objectives of the statute, usually from statements of purpose and other evidence in the statute and legislative history, and second to analyze whether the challenged classification rationally furthers achievement of those objectives. The Court's tautological approach will not suffice.
B
44
The Court analyzes the rationality of § 231b(h) in terms of a justification suggested by Government attorneys, but never adopted by Congress. The Court states that it is " 'constitutionally irrelevant whether this reasoning in fact underlay the legislative decision.' " Ante, at 179 (quoting Flemming v. Nestor, 363 U.S. 603, 612, 80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435 (1960)). In fact, however, equal protection analysis has evolved substantially on this question since Flemming was decided. Over the past 10 years, this Court has frequently recognized that the actual purposes of Congress, rather than the post hoc justifications offered by Government attorneys, must be the primary basis for analysis under the rational-basis test. In Weinberger v. Wiesenfeld, 420 U.S. 636, 648, n. 16, 95 S.Ct. 1225, 1233 n. 16, 43 L.Ed.2d 514 (1975), we said:
45
"This Court need not in equal protection cases accept at face value assertions of legislative purposes, when an examination of the legislative scheme and its history demonstrates that the asserted purpose could not have been a goal of the legislation." (Citing cases.) Thus, in San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 17, 93 S.Ct. 1278, 1288, 36 L.Ed.2d 16 (1973), this Court stated that a challenged classification will pass muster under "rational basis" scrutiny only if it "rationally furthers some legitimate, articulated state purpose" (emphasis added), and in Massachusetts Board of Retirement v. Murgia, 427 U.S., at 314, 96 S.Ct., at 2567, we stated that such a classification will be sustained only if it "rationally furthers the purpose identified by the State." (Emphasis added.) Moreover, in Johnson v. Robison, 415 U.S., at 381-382, 94 S.Ct., at 1172-1173, we upheld a classification on the finding that "[t]hese quantitative and qualitative distinctions, expressly recognized by Congress, form a rational basis for Congress' classification. . . ." (Emphasis added.) See also Califano v. Goldfarb, 430 U.S. 199, 212-213, 97 S.Ct. 1021, 1029-1030, 51 L.Ed.2d 270 (1977).
46
From these cases and others it is clear that this Court will no longer sustain a challenged classification under the rational-basis test merely because Government attorneys can suggest a "conceivable basis" upon which it might be thought rational. The standard we have applied is properly deferential to the Legislative Branch: where Congress has articulated a legitimate governmental objective, and the challenged classification rationally furthers that objective, we must sustain the provision. In other cases, however, the courts must probe more deeply. Where Congress has expressly stated the purpose of a piece of legislation, but where the challenged classification is either irrelevant to or counter to that purpose, we must view any post hoc justifications proffered by Government attorneys with skepticism. A challenged classification may be sustained only if it is rationally related to achievement of an actual legitimate governmental purpose.
47
The Court argues that Congress chose to discriminate against appellee for reasons of equity, stating that "Congress could properly conclude that persons who had actually acquired statutory entitlement to windfall benefits while still employed in the railroad industry had a greater equitable claim to those benefits than the members of appellee's class who were no longer in railroad employment when they became eligible for dual benefits."4 Ante, at 178. This statement turns Congress' assessment of the equities on its head. As I have shown,5 Congress expressed the view that it would be inequitable to deprive any retirees of any portion of the benefits they had been promised and that they had earned under prior law. See also H.R.No.93-1345, pp. 4, 11 (1974); S.Rep.No.93-1163, pp. 4, 11 (1974); 120 Cong.Rec. 35613 (1974) (statement of Rep. Hudnut); id., at 35614 (statement of Rep. Shuster); id., at 35615 (statement of Rep. Morgan). The Court is unable to cite even one statement in the legislative history by a Representative or Senator that makes the equitable judgment it imputes to Congress. In the entire legislative history of the Act, the only persons to state that the equities justified eliminating appellee's earned dual benefits were representatives of railroad management and labor, whose self-serving interest in bringing about this result destroys any basis for attaching weight to their statements.6
48
The factual findings of the District Court concerning the development of § 231b(h), amply supported by the legislative history, are revealing on this point.7 In 1970, Congress established a Commission to investigate the actuarial soundness of the Railroad Retirement system and to make recommendations for its reform. See Pub.L. 91-377, 84 Stat. 791. The Commission was composed of one railroad management representative, one railroad labor representative, and three public representatives. The Commission submitted a report in 1972, recommending, inter alia, that railroad retirees in the future no longer be permitted to earn full Railroad Retirement and Social Security benefits without offset. The Commission insisted, however, that
49
"[i]ndividuals who have vested rights to social security benefits by virtue of permanently or fully insured status, but cannot exercise them because they are not at retirement age under railroad retirement, should be guaranteed an equivalent right in dollar terms to the staff tier portion of their benefits, including vested dual benefits. . . ." Commission on Railroad Retirement, The Railroad Retirement System: Its Coming Crisis, H.R.Doc.No.92-350, p. 368 (1972).
50
After receiving the Commission report, Congress asked railroad management and labor representatives to negotiate and submit a bill to restructure the Railroad Retirement system, which should "take into account the specific recommendations of the Commission on Railroad Retirement." Pub.L. 93-69, § 107, 87 Stat. 165. The members of this Joint Labor-Management Negotiating Committee were not appointed by public officials, nor did they represent the interests of the appellee class, who were no longer active railroaders or union members.8
51
In an initial proposed restructuring of the system, the Joint Committee devised a means whereby the system's deficit could be completely eliminated without depriving retirees of vested earned benefits. See Finding of Fact No. 43, reprinted at App. to Juris. Statement 12a. However, labor representatives demanded that benefits be increased for their current members, the cost to be offset by divesting the appellee class of a portion of the benefits they had earned under prior law. See Findings of Fact Nos. 39, 40, 44, reprinted id., at 11a-12a. As the District Court found:
52
"Essentially, the railroad labor negotiators traded off the plaintiff class of beneficiaries to achieve added benefits for their current employees, even though doing so violated the basic Congressional purposes of the negotiations. Furthermore, by sacrificing the plaintiff class, the railroad labor unions breached the duty of fair representation they owed to the plaintiff class, which duty resulted from the labor unions' purported representation of the plaintiff class' interests in the [Joint Committee] negotiations." Finding of Fact No. 44, reprinted id., at 12a-13a.
53
Congress conducted hearings to consider the Joint Committee's recommendations, but never directed its attention to their effect on persons in appellee class' situation. In fact, the Joint Committee negotiators and Railroad Retirement Board members who testified at congressional hearings perpetuated the inaccurate impression that all retirees with earned vested dual benefits under prior law would retain their benefits unchanged. For example, Mr. William H. Dempsey, chairman of the management negotiators on the Joint Committee and principal witness at the hearings, told the committee:
54
"[P]rotection [will] be accorded to people who are on the rolls now receiving dual benefits and those who are vested under both systems as of January 1, 1975, the idea of the Commission being, and we agree with this, that these individuals had a right to rely upon the law as it existed when they were working. They had made their contributions. They have relied upon the law. They . . . should be protected." Restructuring of the Railroad Retirement System: Hearings on H.R. 15301 before the House Committee on Interstate and Foreign Commerce, 93d Cong., 2d Sess., 214 (1974).
55
Accord, id., at 190 (statement of Mr. Dempsey); id., at 194 (statement of Mr. Dempsey); id., at 204 (statement of Rep. Dingell); id., at 213-214 (statement of Mr. Dempsey); id., at 242 (statement of Mr. Dempsey); id., at 248 (statement of Mr. James L. Cowen, Chairman of the Railroad Retirement Board); id., at 249 (statement of Mr. Cowen); id., at 335 (statements of Messrs. Neil P. Speirs and Wythe D. Quarles, Jr., members of the Railroad Retirement Board); id., at 351 (statement of Mr. Speirs).
56
Most striking is the following colloquy between Representative Dingell and Mr. Dempsey:
57
"Mr. DINGELL. Who is going to be adversely affected? Somebody has to get it in the neck on this. Who is going to be that lucky fellow?
58
"Mr. DEMPSEY. Well, I don't think so really. I think this is the situation in which every one wins. Let me explain.
59
* * * * *
60
"Mr. DINGELL. Mr. Dempsey, I see some sleight of hand here but I don't see how it is happening. I applaud it but I would like to understand it. My problem is that you are going to go to a realistic system that is going to cost less but pay more in benefits. Now if you have accomplished this, I suggest we should put you in charge of the social security system." Id., at 199, 201.
61
The Act was passed in the form drafted by the Joint Committee without any amendment relevant to this case.9
62
Of course, a misstatement or several misstatements by witnesses before Congress would not ordinarily lead us to conclude that Congress misapprehended what it was doing. In this instance, however, where complex legislation was drafted by outside parties and Congress relied on them to explain it, where the misstatements are frequent and unrebutted, and where no Member of Congress can be found to have stated the effect of the classification correctly, we are entitled to suspect that Congress may have been misled. As the District Court found: "At no time during the hearings did Congress even give a hint that it understood that the bill by its language eliminated an earned benefit of plaintiff's class." Finding of Fact No. 63, reprinted at App. to Juris. Statement 22a.
63
Therefore, I do not think that this classification was rationally related to an actual governmental purpose.
C
64
The third way in which the Court has deviated from the principles of rational-basis scrutiny is its failure to analyze whether the challenged classification is genuinely related to the purpose identified by the Court. Having suggested that "equitable considerations" underlay the challenged classification-in direct contradiction to Congress' evaluation of those considerations, and in the face of evidence that the classification was the product of private negotiation by interested parties, inadequately examined and understood by Congress-the Court proceeds to accept that suggestion without further analysis.
65
An unadorned claim of "equitable" considerations is, of course, difficult to assess. It seems to me that before a court may accept a litigant's assertion of "equity," it must inquire what principles of equity or fairness might genuinely support such a judgment. But apparently the Court does not demand such inquiry, for it has failed to address any equitable considerations that might be relevant to the challenged classification.
66
In my view, the following considerations are of greatest relevance to the equities of this case: (1) contribution to the system; (2) reasonable expectation and reliance; (3) need; and (4) character of service to the railroad industry. With respect to each of these considerations, I would conclude that the members of appellee class have as great an equitable claim to their earned dual benefits as do their more favored co-workers, who remain entitled to their earned dual benefits under § 231b(h).
67
Contribution to the system. The members of the appellee class worked in the railroad industry for more than 10 but fewer than 25 years, and also worked in nonrailroad jobs for the required number of years for vesting under Social Security-usually 40 quarters. During that time, they contributed to both the Railroad Retirement and Social Security systems, and met all requirements of the law for the vesting of benefits under those systems. In this respect, they are identical to their more favored co-workers, who contributed no more of their earnings to the systems than did appellee class. On the basis of contributions to the systems, therefore, there is no reason for this discrimination.
68
Reasonable expectation and reliance. Throughout their working lives, the members of appellee class were assured that they would receive retirement benefits in accordance with the terms of the law as it then stood. See Finding of Fact No. 70, reprinted at App. to Juris. Statement 25a. No less than their more favored co-workers, they chose career paths and made calculations for their retirement based on these assurances. For Congress to change its rules and strip them of these benefits at the time of their retirement seems decidedly inequitable. As the District Court found:
69
"The class' reliance on the earned railroad retirement benefit and on the anticipated receipt of full dual benefits is clear from the evidence adduced herein.
70
* * * * *
71
"Equally clear from the evidence is the fact that the class' reliance has been to the class' detriment. Class members have been forced to alter substantially their mode of retirement living due to the drastic reduction of Railroad Retirement benefits worked by the 1974 Act. This point was confirmed in the [Joint Committee] negotiations shortly prior to the sending of its report to Congress in April, 1974: 'Mr. Dempsey: . . . The benefit [dual benefit] is one that if we were starting out we would not have at all. So theoretically we would urge that it be out completely as of January 1, 1975. But we cannot do that-we have people who are relying on benefits, not responsible for them but merely working for them under the rules as they stood.' " Findings of Fact Nos. 70, 71, reprinted id., at 25a-26a.
72
In fact, this reliance was one of the principal reasons Congress resolved not to disturb the vested earned dual benefits of retirees.10
73
Need. The appellee class is composed of fixed-income elderly people, no longer capable of re-entering the work force to reacquire benefits once earned but now lost. The average loss to the class members is about $88 per month, no small element in the monthly budget. The record provides no reason to suppose that members of the appellee class are any less likely to be in need than are their co-workers.
74
Character of service to the railroad industry. Members of the appellee class worked at least 10 years for the railroad industry by 1974, and many of them worked as long as 24 years. Their duration of railroad employment-surely the best measure of their service to the industry-was equal to that of their co-workers. In fact, some members of the class worked over twice as long in the railroad industry as did some of those who retained their rights to a dual benefit. Finding of Fact No. 60, reprinted at 21a-22a. Admittedly, the members of the appellate class retired from railroad work prior to 1974, but the record shows that many left railroad work involuntarily, not because of lack of commitment to the industry. Finding of Fact No. 72, reprinted id., at 26a. Moreover, since one purpose of the Railroad Retirement system was to encourage railroad workers to retire early, so as to create positions for younger workers, Hisquierdo v. Hisquierdo, 439 U.S. 572, 573-574, 99 S.Ct. 802, 804-805, 59 L.Ed.2d 1 (1979), it is hardly fair to fault the appellee class now for having done so.
75
Even if I were able to accept the notation that Congress considered it equitable to deprive a class of railroad retirees of a portion of their vested earned benefits because they no longer worked for the railroad, I would still consider the means adopted in § 231b(h) irrational.11 Under this provision, a retiree is favored by retention of his full vested earned benefits if he had worked so much as one day for a railroad in 1974. This is a plainly capricious basis for distinguishing among retirees, every one of whom had worked in the industry for at least 10 years: the fortuity of one day of employment in a particular year should not govern entitlement to benefits earned over a lifetime.12
76
I therefore conclude that the Government's proffered justification of "equitable considerations," accepted without question by the Court, cannot be defended. Rather, as the legislative history repeatedly states, equity and fairness demand that the members of appellee class, like their co-workers, retain the vested dual benefits they earned prior to 1974. A conscientious application of rational-basis scrutiny demands, therefore, that § 231b(h) be invalidated.
IV
77
Equal protection rationality analysis does not empower the courts to second-guess the wisdom of legislative classifications. On this we are agreed, and have been for over 40 years. On the other hand, we are not powerless to probe beneath claims by Government attorneys concerning the means and ends of Congress. Otherwise, we would defer not to the considered judgment of Congress, but to the arguments of litigators. The instant case serves as an example of the unfortunate consequence of such misplaced deference. Because the Court is willing to accept a tautological analysis of congressional purpose, an assertion of "equitable" considerations contrary to the expressed judgment of Congress, and a classification patently unrelated to achievement of the identified purpose, it succeeds in effectuating neither equity nor congressional intent.
78
I respectfully dissent.
1
Under the old Act, as under the new, an employee who worked 10 years in the railroad business qualified for railroad retirement benefits. If the employee also worked outside the railroad industry for a sufficient enough time to qualify for social security benefits, he qualified for dual benefits. Due to the formula under which those benefits were computed, however, persons who split their employment between railroad and nonrailroad employment received dual benefits in excess of the amount they would have received had they not split their employment. For example, if 10 years of either railroad or nonrailroad employment would produce a monthly benefit of $300, an additional 10 years of the same employment at the same level of creditable compensation would not double that benefit, but would increase it by some lesser amount to say $500. If that 20 years of service had been divided equally between railroad and nonrailroad employment, however, the social security benefit would be $300 and the railroad retirement benefit would also be $300, for a total benefit of $600. The $100 difference in the example constitutes the "windfall" benefit. See generally, S.Rep.No.93-1163, pp. 2-3 (1974), U.S.Code Cong. & Admin.News 1974, p. 5702; H.R.Rep.No.93-1345, pp. 2-3 (1974).
2
The relevant Committee Reports stated: "Resolution of the so called 'dual benefit' problem is central both to insuring the fiscal soundness of the railroad retirement system and to establishing equitable retirement benefits for all railroad employees." S.Rep.No.93-1163, supra, at 11, U.S.Code Cong. & Admin.News 1974 at 5710; H.R.Rep.No.93-1345, supra, at 11. The reason for the problem was that a financial interchange agreement entered into in 1951 between the social security and railroad systems caused the entire cost of the windfall benefits to be borne by the railroad system, not the social security system. The annual drain on the railroad system amounted to approximately $450 million per year, and if it were not for "the problem of dual beneficiaries, the railroad retirement system would be almost completely solvent." S.Rep.No.93-1163, supra, at 8, U.S.Code Cong. & Admin.News 1974 at 5709; H.R.Rep.No.93-1345, supra, at 7.
3
S.Rep.No.93-1163, supra, at 1 U.S.Code Cong. & Admin.News 1974 at 5702; H.R.Rep.No.93-1345, supra, at 1. Congress eliminated future accruals of windfall benefits by establishing a two-tier system for benefits. The first tier is measured by what the social security system would pay on the basis of combined railroad and nonrailroad service, while the second tier is based on railroad service alone. However, both tiers are part of the railroad retirement system, rather than the first tier being placed directly under social security, and the benefits actually paid by social security on the basis of nonrailroad employment are deducted so as to eliminate the windfall benefit.
The Railroad Retirement Act of 1974 had its origins in 1970 when Congress created the Commission on Railroad Retirement to study the actuarial soundness of the railroad retirement system. The Commission submitted its report in 1972 and identified "dual benefits and their attendant windfalls" as a principal cause of the system's financial difficulties. It also found that windfall benefits were inequitable, favoring those employees who split their employment over those employees who spent their entire career in the railroad industry. Report of the Commission on Railroad Retirement, the Railroad Retirement System: Its Coming Crisis, H.R.Doc.No.92-350 (1972). It therefore recommended that future accruals of windfall benefits be eliminated by the establishment of a two-tier system, somewhat similar to the type of system eventually adopted by Congress. It also recommended that "legally vested rights of railroad workers" be preserved. An employee who was fully insured under both the railroad and social security systems as of the changeover date (i. e., by having at least 10 years of railroad employment and the requisite length of social security employment) was deemed to have "legally vested rights."
Following receipt of the Commission's report, Congress requested members of management, labor, and retirees to form a Joint Labor Management Railroad Retirement Negotiating Committee (hereinafter referred to as the Joint Committee) and submit a report, "tak[ing] into account" the recommendations of the Commission. The Joint Committee outlined its proposals in the form of a letter to Congress, dated April 10, 1974. 120 Cong.Rec. 18391-18392 (1974). Although it agreed with the Commission that future accruals of windfall benefits be eliminated, it differed as to the protection to be afforded those already statutorily entitled to benefits and recommended the transitional provisions that were eventually adopted by Congress. A bill embodying those principles was drafted and submitted to Congress, where the relevant committees held lengthy hearings and submitted detailed Reports. See S.Rep.No.93-1163, supra ; H.R.Rep.No.93-1345, supra.
4
Section 3(h) of the Railroad Retirement Act of 1974, 88 Stat. 1323, 45 U.S.C. § 231b(h), provides in pertinent part:
"(1) The amount of the annuity . . . of an individual who (A) will have (i) rendered service as an employee to an employer, or as an employee representative, during the calendar year 1974, or (ii) had a current connection with the railroad industry on December 31, 1974, or at the time his annuity under section 2(a)(1) of this Act began to accrue, or (iii) completed twenty-five years of service prior to January 1, 1975, and (B) will have (i) completed ten years of service prior to January 1, 1975, and (ii) been permanently insured under the Society Security Act on December 31, 1974, shall be increased by an amount equal to [the amount of windfall dual benefit he would have received prior to January 1, 1975] . . . .
"(2) The amount of the annuity . . . to an individual who (A) will not have met the conditions set forth in subclause (i), (ii), or (iii) of clause (A) of subdivision (1) of this subsection, but (B) will have (i) completed ten years of service prior to January 1, 1975, and (ii) been permanently insured under the Social Security Act as of December 31 of the calendar year prior to 1975 in which he last rendered service as an employee to an employer, or as an employee representative, shall be increased by an amount equal to the amount . . . [of windfall benefit calculated at time he left the railroad service]. . . .
The relevant Committee Reports stated that the most "difficult problem" was the "manner in which dual benefits should be phased out on an equitable basis." S.Rep.No.93-1163, supra, at 11, U.S.Code Cong. & Admin.News 1974 at 5710; H.R.Rep.No.93-1345, supra, at 11, U.S.Code Cong. & Admin.News 1974 at 5710.
5
88 Stat. 1353, see note following 45 U.S.C. § 231. The transition provisions in Title II of the bill are not included in the United States Code. The windfall amount for retired employees is preserved by §§ 204(a)(3) and (4) of the Act.
6
The term "current connection" is defined in 45 U.S.C. § 231(o ) to mean, in general, employment in the railroad industry in 12 of the preceding 30 calendar months.
7
The amount of the "windfall component" is greater under subsection (1) than under subsection (2) of 45 U.S.C. § 231b(h). The former consists of benefits computed on the basis of social security service through December 31, 1974, while the latter is computed on the basis of social security service only through the year in which the individual left the railroad industry. The difference corresponds to the different dates by which the retired employee must have been permanently insured under the Social Security Act in order to be eligible for any windfall benefit.
8
Although "the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is 'so unjustifiable as to be violative of due process.' " Schneider v. Rusk, 377 U.S. 163, 168, 84 S.Ct. 1187, 1190, 12 L.Ed.2d 218 (1964). Thus, if a federal statute is valid under the equal protection component of the Fifth Amendment, it is perforce valid under the Due Process Clause of that Amendment. Richardson v. Belcher, 404 U.S. 78, 81, 92 S.Ct. 254, 257, 30 L.Ed.2d 231 (1971).
9
It is somewhat unclear precisely who is and is not within the class certified by the District Court. By its terms, the class certified by the District Court would appear to include those employees who qualified for reduced windfall benefits under § 231b(h)(2) by reason of their qualifying for social security benefits as of the year they left the railroad industry. It appears, however, that the District Court intended to include in the class only those, like appellee Fritz, who subsequently qualified for social security benefits and who are therefore ineligible for even the reduced windfall benefit.
10
This opinion and Justice BRENNAN's dissent cite a number of equal protection cases including Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369 (1911); F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 40 S.Ct. 560, 64 L.Ed. 989 (1920); Morey v. Doud, 354 U.S. 457, 77 S.Ct. 1344, 1 L.Ed.2d 1485 (1957); Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960); Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976); New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976); Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974); U. S. Dept. of Agriculture v. Moreno, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973); U.S. Dept. of Agriculture v. Murry, 413 U.S. 508, 93 S.Ct. 2832, 37 L.Ed.2d 767 (1973); Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975); and James v. Strange, 407 U.S. 128, 92 S.Ct. 2027, 32 L.Ed.2d 600 (1972). The most arrogant legal scholar would not claim that all of these cases applied a uniform or consistent test under equal protection principles. And realistically speaking, we can be no more certain that this opinion will remain undisturbed than were those who joined the opinion in Lindsley, supra, Royster Guano Co., supra, or any of the other cases referred to in this opinion and in the dissenting opinion. But like our predecessors and our successors, we are obliged to apply the equal protection component of the Fifth Amendment as we believe the Constitution requires and in so doing we have no hesitation in asserting, contrary to the dissent, that where social or economic regulations are involved Dandridge v. Williams, 397 U.S. 471, 90
S.Ct. 1153, 25 L.Ed.2d 491 (1970), and Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972), together with this case, state the proper application of the test. The comments in the dissenting opinion about the proper cases for which to look for the correct statement of the equal protection rational-basis standard, and about which cases limit earlier cases, are just that: comments in a dissenting opinion.
11
The "current connection" test has been used since 1946 as an eligibility requirement for both occupational disability and survivor annuities, 45 U.S.C. §§ 231a(a) (1)(iv), 231a(d)(1) (ch. 709, §§ 203, 205, 213, 60 Stat. 726-735), and it has been used since 1966 in determining eligibility for a supplemental annuity. 45 U.S.C. § 231a(b)(1). (Pub.L. 89-699, § 1, 80 Stat. 1073.)
Appellee contends that the "current connection" test is impermissible because it draws a distinction not on the duration of employment but rather on the time of employment. But this Court has clearly held that Congress may condition eligibility for benefits such as these on the character as well as the duration of an employee's ties to an industry. Mathews v. Diaz, 426 U.S. 67, 83, 96 S.Ct. 1883, 1893, 48 L.Ed.2d 478 (1976).
12
As we have recently stated: "The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted." Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 943, 59 L.Ed.2d 171 (1979) (footnote omitted).
1
The 1974 Act provided increased benefits for spouses, widows, survivors, and early retirees. See 45 U.S.C. § 231c(g).
2
Compare Rundlett v. Oliver, 607 F.2d 495 (CA1 1979) (upholding Maine's statutory rape law), with Meloon v. Helgemoe, 564 F.2d 602 (CA1 1977), cert. denied, 436 U.S. 950, 98 S.Ct. 2858, 56 L.Ed.2d 793 (1978) (striking down New Hampshire's statutory rape law).
1
See Weinberger v. Wiesenfeld, 420 U.S. 636, 638, n.2, 95 S.Ct. 1228 n.2, 43 L.Ed.2d 514 (1975).
2
Of course, the legitimate governmental interest in restoring the Railroad Retirement system to fiscal soundness does not, in itself, serve to support the challenged classification in this case. At issue is why Congress discriminated among two classes of railroad retirees. The overall interest in saving money is irrelevant to this discrimination.
3
Several pages later, the Reports again make clear that persons with vested rights to earned dual benefits would retain them:
"It must be recognized that the bill actually takes benefits away from certain railroad employees—those who have not already qualified for Social Security benefits." H.R.Rep.No.93-1345, at 6; S.Rep.No.93-1163, at 7; U.S.Code Cong. & Admin.News at 5707.
Only in technical discussions and in the section-by-section analyses do the Reports reflect the actual consequences of the Act on the appellee class. See H.R.Rep.No.93-1345, at 12, 39-40; S.Rep.No.93-1163, at 12, 38-39.
The administration also understood the Act to preserve rights to vested earned dual benefits. See H.R.Rep.No.93-1345, at 81-82 (supplemental report from the Office of Management and Budget).
4
The Court's quoted justification fails on its face to support the challenged classification. Despite the Court's apparent belief to the contrary, some members of the appellee class did "actually acquir[e] statutory entitlement" to dual benefits while still employed in the railroad industry, see ante, at 178, but nevertheless were deprived of a portion of those benefits. See § 231b(h)(2). Under the Court's own reasoning, therefore, these persons were arbitrarily and impermissibly treated.
5
See supra, at 185-186.
6
See discussion following, infra.
7
The Court does not claim that the District Court's factual findings were clearly erroneous, though it does state its disagreement with one lower court conclusion. See ante, at 179. Therefore, the factual findings of the District Court govern the litigation in this Court, and in any event, are amply supported by the record.
8
The use of a Joint Labor-Management Negotiating Committee to draft legislation concerning the Railroad Retirement system was not novel. In fact, such a committee drafted the original Railroad Retirement Act of 1937 and several amending Acts since then. See Hisquierdo v. Hisquierdo, 439 U.S. 572, 574, n. 3, 99 S.Ct. 802, 804, n. 3, 59 L.Ed.2d 1 (1979); Railroad Retirement Act-Supplemental Benefits, Hearings on H.R. 17285 before the Subcommittee on Commerce and Finance of the House Committee of Interstate and Foreign Commerce, 89th Cong., 2d Sess., 2-3 (1966); Railroad Retirement, Hearings on H.R. 1362 before the House Committee on Interstate and Foreign Commerce, 79th Cong., 1st Sess., 448 (1945); Commission on Railroad Retirement, The Railroad Retirement System: Its Coming Crisis, H.R.Doc.No.92-350, p. 147 (1972).
9
Congress' unfortunate tendency to pass Railroad Retirement legislation drafted by labor and management representatives without adequate scrutiny was criticized by the Commission on Railroad Retirement in its 1972 report:
"The historical record shows that past policy formulation has not always abided by the key criteria of equity and sound financing. Generally the major provisions of the system have been the product of negotiations between railway labor and the carriers in a bargaining process often reflecting conflicts or the exercise of power in an industry which directly affects the public welfare. The results of this bargaining process have, at times, been less than fully screened by the Federal Government before they were ratified by Congressional action and given Presidential approval." H.R.Doc.No.92-350, supra, at 147.
10
Cf. Nachman Corp. v. Pension Benefit Guaranty Corp., 446 U.S. 359, 374, 100 S.Ct. 1723, 1732, 64 L.Ed.2d 354 (1980) (one of Congress' central purposes in passing the Employee Retirement Income Security Act was "to prevent the 'great personal tragedy' suffered by employees whose vested benefits are not paid when pension plans are terminated" (footnote omitted)).
11
Contrary to the Court's suggestion, this is not a "line-drawing" case, where the Congress must make a division at some point along an admittedly rationally conceived continuum. See ante, at 179. Here, Congress has isolated a particular class of retirees on the basis of a distinction that is utterly irrelevant to any actual or legitimate governmental purpose.
12
The wholly arbitrary nature of this classification is highlighted by an analysis of the exception in § 231b(h)(2). Under this subsection, some members of the appellee class are entitled to retain a portion of their earned dual benefit, albeit at a reduced level, while the others are divested of the dual benefit altogether. The basis for this added twist is the timing of their qualification for Railroad Retirement and Social Security. Those who qualified for Social Security first retain a portion of their dual benefit; those who qualified for Railroad Retirement first do not. Needless to say, the retirees had no notice at the time that the timing of qualification would make any difference to their entitlement to benefits. This kind of after-the-fact shifting of the rules for retirement benefits has not been justified and cannot be justified.
| 12
|
449 U.S. 90
101 S.Ct. 411
66 L.Ed.2d 308
Marvin ALLEN et al., Petitioners,v.Willie McCURRY.
No. 79-935.
Argued Oct. 8, 1980.
Decided Dec. 9, 1980.
Syllabus
At a hearing before respondent's criminal trial, a Missouri court denied, in part, respondent's motion to suppress, on Fourth and Fourteenth Amendment grounds, certain evidence that had been seized by the police. Respondent was subsequently convicted, and the conviction was affirmed on appeal. Because he did not assert that the state courts had denied him a "full and fair opportunity" to litigate his search-and-seizure claim, respondent was barred by Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067, from seeking a writ of habeas corpus in a federal district court. Nevertheless, he sought federal-court redress for the alleged constitutional violation by bringing a suit for damages under 42 U.S.C. § 1983 against the officers who had seized the evidence in question. The Federal District Court granted summary judgment for the defendants, holding that collateral estoppel prevented respondent from relitigating the search-and-seizure question already decided against him in the state courts. The Court of Appeals reversed and remanded, noting that Stone v. Powell, supra, barred respondent from federal habeas corpus relief and that the § 1983 suit was, therefore, respondent's only route to a federal forum for his constitutional claim, and directed the trial court to allow him to proceed to trial unencumbered by collateral estoppel.
Held: The Court of Appeals erred in holding that respondent's inability to obtain federal habeas corpus relief upon his Fourth Amendment claim renders the doctrine of collateral estoppel inapplicable to his § 1983 suit. Nothing in the language or legislative history of § 1983 discloses any congressional intent to deny binding effect to a state-court judgment or decision when the state court, acting within its proper jurisdiction, has given the parties a full and fair opportunity to litigate federal claims, and thereby has shown itself willing and able to protect federal rights. Nor does anything in § 1983's legislative history reveal any purpose to afford less deference to judgments in state criminal proceedings than to those in state civil proceedings. Pp. 94-105.
8th Cir., 606 F.2d 795, reversed and remanded.
John J. Fitzgibbon, St. Louis, Mo., for petitioners.
Jeffrey J. Shank, St. Louis, Mo., for respondent.
Justice STEWART, delivered the opinion of the Court.
1
At a hearing before his criminal trial in a Missouri court, the respondent, Willie McCurry, invoked the Fourth and Fourteenth Amendments to suppress evidence that had been seized by the police. The trial court denied the suppression motion in part, and McCurry was subsequently convicted after a jury trial. The conviction was later affirmed on appeal. State v. McCurry, 587 S.W.2d 337 (Mo.App.1979). Because he did not assert that the state courts had denied him a "full and fair opportunity" to litigate his search and seizure claim, McCurry was barred by this Court's decision in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067, from seeking a writ of habeas corpus in a federal district court. Nevertheless, he sought federal-court redress for the alleged constitutional violation by bringing a damages suit under 42 U.S.C. § 1983 against the officers who had entered his home and seized the evidence in question. We granted certiorari to consider whether the unavailability of federal habeas corpus prevented the police officers from raising the state courts' partial rejection of McCurry's constitutional claim as a collateral estoppel defense to the § 1983 suit against them for damages. 444 U.S. 1070, 100 S.Ct. 1012, 62 L.Ed.2d 751.
2
* In April 1977, several undercover police officers, following an informant's tip that McCurry was dealing in heroin, went to his house in St. Louis, Mo., to attempt a purchase.1 Two officers, petitioners Allen and Jacobsmeyer, knocked on the front door, while the other officers hid nearby. When McCurry opened the door, the two officers asked to buy some heroin "caps." McCurry went back into the house and returned soon thereafter, firing a pistol at and seriously wounding Allen and Jacobsmeyer. After a gun battle with the other officers and their reinforcements, McCurry retreated into the house; he emerged again when the police demanded that he surrender. Several officers then entered the house without a warrant, purportedly to search for other persons inside. One of the officers seized drugs and other contraband that lay in plain view, as well as additional contraband he found in dresser drawers and in auto tires on the porch.
3
McCurry was charged with possession of heroin and assault with intent to kill. At the pretrial suppression hearing, the trial judge excluded the evidence seized from the dresser drawers and tires, but denied suppression of the evidence found in plain view. McCurry was convicted of both the heroin and assault offenses.
4
McCurry subsequently filed the present § 1983 action for $1 million in damages against petitioners Allen and Jacobsmeyer, other unnamed individual police officers, and the city of St. Louis and its police department. The complaint alleged a conspiracy to violate McCurry's Fourth Amendment rights, an unconstitutional search and seizure of his house, and an assault on him by unknown police officers after he had been arrested and handcuffed. The petitioners moved for summary judgment. The District Court apparently under stood the gist of the complaint to be the allegedly unconstitutional search and seizure and granted summary judgment, holding that collateral estoppel prevented McCurry from relitigating the search-and-seizure question already decided against him in the state courts. 466 F.Supp. 514 (ED Mo.1978).2
5
The Court of Appeals reversed the judgment and remanded the case for trial. 606 F.2d 795 (CA8 1979).3 The appellate court said it was not holding that collateral estoppel was generally inapplicable in a § 1983 suit raising issues determined against the federal plaintiff in a state criminal trial. Id. at 798. But noting that Stone v. Powell, supra, barred McCurry from federal habeas corpus relief, and invoking "the special role of the federal courts in protecting civil rights," 606 F.2d, at 799, the court concluded that the § 1983 suit was McCurry's only route to a federal forum for his constitutional claim and directed the trial court to allow him to proceed to trial unencumbered by collateral estoppel.4
II
6
The federal courts have traditionally adhered to the related doctrines of res judicata and collateral estoppel. Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action. Cromwell v. County of Sac, 94 U.S. 351, 352, 24 L.Ed. 195. Under collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case. Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210.5 As this Court and other courts have often recognized, res judicata and collateral estoppel relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication. Id., at 153-154, 99 S.Ct., at 973-974.
7
In recent years, this Court has reaffirmed the benefits of collateral estoppel in particular, finding the policies underlying it to apply in contexts not formerly recognized at common law. Thus, the Court has eliminated the requirement of mutuality in applying collateral estoppel to bar relitigation of issues decided earlier in federal-court suits, Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788, and has allowed a litigant who was not a party to a federal case to use collateral estoppel "offensively" in a new federal suit against the party who lost on the decided issue in the first case, Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552.6 But one general limitation the Court has repeatedly recognized is that the concept of collateral estoppel cannot apply when the party against whom the earlier decision is asserted did not have a "full and fair opportunity" to litigate that issue in the earlier case. Montana v. United States, supra, at 153, 99 S.Ct., at 973; Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, supra, 402 U.S., at 328-329, 91 S.Ct., at 1443.7
8
The federal courts generally have also consistently accorded preclusive effect to issues decided by state courts. E. g., Montana v. United States, supra; Angel v. Bullington, 330 U.S. 183, 67 S.Ct. 657, 91 L.Ed. 832. Thus, res judicata and collateral estoppel not only reduce unnecessary litigation and foster reliance on adjudication, but also promote the comity between state and federal courts that has been recognized as a bulwark of the federal system. See Younger v. Harris, 401 U.S. 37, 43-45, 91 S.Ct. 746, 750-51, 27 L.Ed.2d 669.
9
Indeed, though the federal courts may look to the common law or to the policies supporting res judicata and collateral estoppel in assessing the preclusive effect of decisions of other federal courts, Congress has specifically required all federal courts to give preclusive effect to state-court judgments whenever the courts of the State from which the judgments emerged would do so:
10
"[J]udicial proceedings [of any court of any State] shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State. . . ." 28 U.S.C. § 1738 (1976).8
11
Huron Holding Corp. v. Lincoln Mine Operating Co., 312 U.S. 183, 193, 61 S.Ct. 513, 517, 85 L.Ed. 725; Davis v. Davis, 305 U.S. 32, 40, 59 S.Ct. 3, 6, 85 L.Ed. 26. It is against this background that we examine the relationship of § 1983 and collateral estoppel, and the decision of the Court of Appeals in this case.
III
12
This Court has never directly decided whether the rules of res judicata and collateral estoppel are generally applicable to § 1983 actions. But in Preiser v. Rodriguez, 411 U.S. 475, 497, 93 S.Ct. 1827, 1840, 36 L.Ed.2d 439, the Court noted with implicit approval the view of other federal courts that res judicata principles fully apply to civil rights suits brought under that statute. See also Huffman v. Pursue, Ltd., 420 U.S. 592, 606, n. 18, 95 S.Ct. 1200, 1209, n. 18, 43 L.Ed.2d 482; Wolff v. McDonnell, 418 U.S. 539, 554, n. 12, 94 S.Ct. 2963, 2974, n. 12, 41 L.Ed.2d 935.9 And the virtually unanimous view of the Courts of Appeals since Preiser has been that § 1983 presents no categorical bar to the application of res judicata and collateral estoppel concepts.10 These federal appellate court decisions have spoken with little explanation or citation in assuming the compatibility of § 1983 and rules of preclusion, but the statute and its legislative history clearly support the courts' decisions.
13
Because the requirement of mutuality of estoppel was still alive in the federal courts until well into this century, see Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, supra, at 322-323, 91 S.Ct., at 1439-1440, the drafters of the 1871 Civil Rights Act, of which § 1983 is a part, may have had less reason to concern themselves with rules of preclusion than a modern Congress would. Nevertheless, in 1871 res judicata and collateral estoppel could certainly have applied in federal suits following state-court litigation between the same parties or their privies, and nothing in the language of § 1983 remotely expresses any congressional intent to contravene the common-law rules of preclusion or to repeal the express statutory requirements of the predecessor of 28 U.S.C. § 1738, see n. 8, supra. Section 1983 creates a new federal cause of action.11 It says nothing about the preclusive effect of state-court judgments.12
14
Moreover, the legislative history of § 1983 does not in any clear way suggest that Congress intended to repeal or restrict the traditional doctrines of preclusion. The main goal of the Act was to override the corrupting influence of the Ku Klux Klan and its sympathizers on the governments and law enforcement agencies of the Southern States, see Monroe v. Pape, 365 U.S. 167, 174, 81 S.Ct. 473, 477, 5 L.Ed.2d 492, and of course the debates show that one strong motive behind its enactment was grave congressional concern that the state courts had been deficient in protecting federal rights, Mitchum v. Foster, 407 U.S. 225, 241-242, 92 S.Ct. 2151, 2161-2162, 32 L.Ed.2d 705; Monroe v. Pape, supra, at 180, 81 S.Ct., at 480.13 But in the context of the legislative history as a whole, this congressional concern lends only the most equivocal support to any argument that, in cases where the state courts have recognized the constitutional claims asserted and provided fair procedures for determining them, Congress intended to override § 1738 or the common-law rules of collateral estoppel and res judicata. Since repeals by implication are disfavored, Radzanower v. Touche Ross & Co., 426 U.S. 148, 154, 96 S.Ct. 1989, 1993, 48 L.Ed.2d 540, much clearer support than this would be required to hold that § 1738 and the traditional rules of preclusion are not applicable to § 1983 suits.
15
As the Court has understood the history of the legislation, Congress realized that in enacting § 1983 it was altering the balance of judicial power between the state and federal courts. See Mitchum v. Foster, supra, at 241, 92 S.Ct., at 2161. But in doing so, Congress was adding to the jurisdiction of the federal courts, not subtracting from that of the state courts. See Monroe v. Pape, supra, at 183, 81 S.Ct., at 481 ("The federal remedy is supplementary to the state remedy . . .").14 The debates contain several references to the concurrent jurisdiction of the state courts over federal questions,15 and numerous suggestions that the state courts would retain their established jurisdiction so that they could, when the then current political passions abated, demonstrate a new sensitivity to federal rights.16
16
To the extent that it did intend to change the balance of power over federal questions between the state and federal courts, the 42d Congress was acting in a way thoroughly consistent with the doctrines of preclusion. In reviewing the legislative history of § 1983 in Monroe v. Pape, supra, the Court inferred that Congress had intended a federal remedy in three circumstances: where state substantive law was facially unconstitutional, where state procedural law was inadequate to allow full litigation of a constitutional claim, and where state procedural law, though adequate in theory, was inadequate in practice. 365 U.S., at 173-174, 81 S.Ct., at 476-477. In short, the federal courts could step in where the state courts were unable or unwilling to protect federal rights. Id., at 176, 81 S.Ct., at 478. This understanding of § 1983 might well support an exception to res judicata and collateral estoppel where state law did not provide fair procedures for the litigation of constitutional claims, or where a state court failed to even acknowledge the existence of the constitutional principle on which a litigant based his claim. Such an exception, however, would be essentially the same as the important general limit on rules of preclusion that already exists: Collateral estoppel does not apply where the party against whom an earlier court decision is asserted did not have a full and fair opportunity to litigate the claim or issue decided by the first court. See supra, at 95. But the Court's view of § 1983 in Monroe lends no strength to any argument that Congress intended to allow relitigation of federal issues decided after a full and fair hearing in a state court simply because the state court's decision may have been erroneous.17
17
The Court of Appeals in this case acknowledged that every Court of Appeals that has squarely decided the question has held that collateral estoppel applies when § 1983 plaintiffs attempt to relitigate in federal court issues decided against them in state criminal proceedings.18 But the court noted that the only two federal appellate decisions invoking collateral estoppel to bar relitigation of Fourth Amendment claims decided adversely to the § 1983 plaintiffs in state courts came before this Court's decision inStone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067.19 It also noted that some of the decisions holding collateral estoppel applicable to § 1983 actions were based at least in part on the estopped party's access to another federal forum through habeas corpus.20 The Court of Appeals thus concluded that since Stone v. Powell had removed McCurry's right to a hearing of his Fourth Amendment claim in federal habeas corpus, collateral estoppel should not deprive him of a federal judicial hearing of that claim in a § 1983 suit.
18
Stone v. Powell does not provide a logical doctrinal source for the court's ruling. This Court in Stone assessed the costs and benefits of the judge-made exclusionary rule within the boundaries of the federal courts' statutory power to issue writs of habeas corpus, and decided that the incremental deterrent effect that the issuance of the writ in Fourth Amendment cases might have on police conduct did not justify the cost the writ imposed upon the fair administration of criminal justice. 428 U.S., at 489-496, 96 S.Ct., at 3050-3053. The Stone decision concerns only the prudent exercise of federal-court jurisdiction under 28 U.S.C. § 2254. It has no bearing on § 1983 suits or on the question of the preclusive effect of state-court judgments.
19
The actual basis of the Court of Appeals' holding appears to be a generally framed principle that every person asserting a federal right is entitled to one unencumbered opportunity to litigate that right in a federal district court, regardless of the legal posture in which the federal claim arises. But the authority for this principle is difficult to discern. It cannot lie in the Constitution, which makes no such guarantee, but leaves the scope of the jurisdiction of the federal district courts to the wisdom of Congress.21 And no such authority is to be found in § 1983 itself. For reasons already discussed at length, nothing in the language or legislative history of § 1983 proves any congressional intent to deny binding effect to a state-court judgment or decision when the state court, acting within its proper jurisdiction, has given the parties a full and fair opportunity to litigate federal claims, and thereby has shown itself willing and able to protect federal rights. And nothing in the legislative history of § 1983 reveals any purpose to afford less deference to judgments in state criminal proceedings than to those in state civil proceedings.22 There is, in short, no reason to believe that Congress intended to provide a person claiming a federal right an unrestricted opportunity to relitigate an issue already decided in state court simply because the issue arose in a state proceeding in which he would rather not have been engaged at all.23
20
Through § 1983, the 42d Congress intended to afford an opportunity for legal and equitable relief in a federal court for certain types of injuries. It is difficult to believe that the drafters of that Act considered it a substitute for a federal writ of habeas corpus, the purpose of which is not to redress civil injury, but to release the applicant from unlawful physical confinement, Preiser v. Rodriguez, 411 U.S., at 484, 93 S.Ct., at 1833; Fay v. Noia, 372 U.S. 391, 399, n. 5, 83 S.Ct. 822, 827, n. 5, 9 L.Ed.2d 837,24 particularly in light of the extremely narrow scope of federal habeas relief for state prisoners in 1871.
21
The only other conceivable basis for finding a universal right to litigate a federal claim in a federal district court is hardly a legal basis at all, but rather a general distrust of the capacity of the state courts to render correct decisions on constitutional issues. It is ironic that Stone v. Powell provided the occasion for the expression of such an attitude in the present litigation, in view of this Court's emphatic reaffirmation in that case of the constitutional obligation of the state courts to uphold federal law, and its expression of confidence in their ability to do so. 428 U.S., at 493-494, n. 35, 96 S.Ct., at 3051-52, n. 35; see Robb v. Connolly, 111 U.S. 624, 637, 4 S.Ct. 544, 551, 28 L.Ed. 542 (Harlan, J.).
22
The Court of Appeals erred in holding that McCurry's inability to obtain federal habeas corpus relief upon his Fourth Amendment claim renders the doctrine of collateral estoppel inapplicable to his § 1983 suit.25 Accordingly, the judgment is reversed, and the case is remanded to the Court of Appeals for proceedings consistent with this opinion.
23
It is so ordered.
24
Justice BLACKMUN, with whom Justice BRENNAN and Justice MARSHALL join, dissenting.
25
The legal principles with which the Court is concerned in this civil case obviously far transcend the ugly facts of respondent's criminal convictions in the courts of Missouri for heroin possession and assault.
26
The Court today holds that notions of collateral estoppel apply with full force to this suit brought under 42 U.S.C. § 1983. In my view, the Court, in so ruling, ignores the clear import of the legislative history of that statute and disregards the important federal policies that underlie its enforcement. It also shows itself insensitive both to the significant differences between the § 1983 remedy and the exclusionary rule, and to the pressures upon a criminal defendant that make a free choice of forum illusory. I do not doubt that principles of preclusion are to be given such effect as is appropriate in a § 1983 action. In many cases, the denial of res judicata or collateral estoppel effect would serve no purpose and would harm relations between federal and state tribunals. Nonetheless, the Court's analysis in this particular case is unacceptable to me. It works injustice on this § 1983 plaintiff, and it makes more difficult the consistent protection of constitutional rights, a consideration that was at the core of the enacters' intent. Accordingly, I dissent.
27
In deciding whether a common-law doctrine is to apply to § 1983 when the statute itself is silent, prior cases uniformly have accorded the intent of the legislators great weight.1 For example, in reference to the judicially created immunity doctrine, the Court has observed that when the "immunity claimed . . . 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." Owen v. City of Independence, 445 U.S. 622, 638, 100 S.Ct. 1398, 1409, 63 L.Ed.2d 673 (1980).2 This very proper inquiry must be made in order to ensure that § 1983 will continue to serve the important goals intended for it by the 42d Congress. In the present case, however, the Court minimizes the significance of the legislative history and discounts its own prior explicit interpretations of the statute. Its discussion is limited to articulating what it terms the single fundamental principle of res judicata and collateral estoppel.
28
Respondent's position merits a quite different analysis. Although the legislators of the 42d Congress did not expressly state whether the then existing common-law doctrine of preclusion would survive enactment of § 1983, they plainly anticipated more than the creation of a federal statutory remedy to be administered indifferently by either a state or a federal court.3 The legislative intent, as expressed by supporters4 and understood by opponents,5 was to restructure relations between the state and federal courts.6 Congress deliberately opened the federal courts to individual citizens in response to the States' failure to provide justice in their own courts. Contrary to the view presently expressed by the Court, the 42d Congress was not concerned solely with procedural regularity. Even where there was procedural regularity, which the Court today so stresses, Congress believed that substantive justice was unobtainable.7 The availability of the federal forum was not meant to turn on whether, in an individual case, the state procedures were adequate. Assessing the state of affairs as a whole, Congress specifically made a determination that federal oversight of constitutional determinations through the federal courts was necessary to ensure the effective enforcement of constitutional rights.
29
That the new federal jurisdiction was conceived of as concurrent with state jurisdiction does not alter the significance of Congress' opening the federal courts to these claims. Congress consciously acted in the broadest possible manner.8 The legislators perceived that justice was not being done in the States then dominated by the Klan, and it seems senseless to suppose that they would have intended the federal courts to give full preclusive effect to prior state adjudications. That supposition would contradict their obvious aim to right the wrongs perpetuated in those same courts.
30
I appreciate that the legislative history is capable of alternative interpretations. See the Court's opinion, ante, at 98-101. I would have thought, however, that our prior decisions made very clear which reading is required. The Court repeatedly has recognized that § 1983 embodies a strong congressional policy in favor of federal courts' acting as the primary and final arbiters of constitutional rights.9 In Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 51 L.Ed.2d 492 (1961), the Court held that Congress passed the legislation in order to substitute a federal forum for the ineffective, although plainly available, state remedies:
31
"It is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies." Id., at 180, 81 S.Ct., at 480.10
32
The Court appears to me to misconstrue the plain meaning of Monroe. It states that in that case, "the Court inferred that Congress had intended a federal remedy in three circumstances: where state substantive law was facially unconstitutional, where state procedural law was inadequate to allow full litigation of a constitutional claim, and where state procedural law, though adequate in theory, was inadequate in practice." Ante, at 100-101. It is true that the Court in Monroe described those three circumstances as the "three main aims" of the legislation. 365 U.S., at 173, 81 S.Ct., at 476. Yet in that case, the Court's recounting of the legislative history and its articulation of these three purposes were intended only as illustrative of why the 42d Congress chose to establish a federal remedy in federal court, not as a delineation of when the remedy would be available. The Court's conclusion was that this remedy was to be available no matter what the circumstances of state law:
33
"It 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. Hence the fact that Illinois by its constitution and laws outlaws unreasonable searches and seizures is no barrier to the present suit in the federal court." Id., at 183, 81 S.Ct., at 481.
34
In Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972), the Court reiterated its understanding of the effect of § 1983 upon state and federal relations:
35
"Section 1983 was thus a product of a vast transformation from the concepts of federalism that had prevailed in the late 18th century. . . . The very purpose of § 1983 was to interpose the federal courts between the States and the people, as guardians of the people's federal rights-to protect the people from unconstitutional action under color of state law, 'whether that action be executive, legislative, or judicial.' Ex parte Virginia, 100 U.S. [339], at 346 [25 L.Ed. 676]." Id., at 242, 92 S.Ct., at 2162.11
36
At the very least, it is inconsistent now to narrow, if not repudiate, the meaning of Monroe and Mitchum and to alter our prior understanding of the distribution of power between the state and federal courts.
37
One should note also that in England v. Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964), the Court had affirmed the federal courts' special role in protecting constitutional rights under § 1983. In that case it held that a plaintiff required by the abstention doctrine to submit his constitutional claim first to a state court could not be precluded entirely from having the federal court, in which he initially had sought relief, pass on his constitutional claim. The Court relied on "the unqualified terms in which Congress, pursuant to constitutional authorization, has conferred specific categories of jurisdiction upon the federal courts," and on its "fundamental objections to any conclusion that a litigant who has properly invoked the jurisdiction of a Federal District Court to consider federal constitutional claims can be compelled, without his consent and through no fault of his own, to accept instead a state court's determination of those claims." Id., at 415, 84 S.Ct., at 464. The Court set out its understanding as to when a litigant in a § 1983 case might be precluded by prior litigation, holding that "if a party freely and without reservation submits his federal claims for decision by the state courts, litigates them there, and has them decided there, then-whether or not he seeks direct review of the state decision in this Court-he has elected to forgo his right to return to the District Court." Id., at 419, 84 S.Ct., at 466. I do not understand why the Court today should abandon this approach.
38
The Court now fashions a new doctrine of preclusion, applicable only to actions brought under § 1983, that is more strict and more confining than the federal rules of preclusion applied in other cases. In Montana v. United States, 440 U.S. 147, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979), the Court pronounced three major factors to be considered in determining whether collateral estoppel serves as a barrier in the federal court:
39
"[W]hether the issues presented . . . are in substance the same . . .; whether controlling facts or legal principles have changed significantly since the state-court judgment; and finally, whether other special circumstances warrant an exception to the normal rules of preclusion." Id., at 155, 99 S.Ct., at 975.
40
But now the Court states that the collateral-estoppel effect of prior state adjudication should turn on only one factor, namely, what it considers the "one general limitation" inherent in the doctrine of preclusion: "that the concept of collateral estoppel cannot apply when the party against whom the earlier decision is asserted did not have a 'full and fair opportunity' to litigate that issue in the earlier case." Ante, at 95, 101. If that one factor is present, the Court asserts, the litigant properly should be barred from relitigating the issue in federal court.12 One cannot deny that this factor is an important one. I do not believe, however, that the doctrine of preclusion requires the inquiry to be so narrow,13 and my understanding of the policies underlying § 1983 would lead me to consider all relevant factors in each case before concluding that preclusion was warranted.
41
In this case, the police officers seek to prevent a criminal defendant from relitigating the constitutionality of their conduct in searching his house, after the state trial court had found that conduct in part violative of the defendant's Fourth Amendment rights and in part justified by the circumstances. I doubt that the police officers, now defendants in this § 1983 action, can be considered to have been in privity with the State in its role as prosecutor. Therefore, only "issue preclusion"14 is at stake.
42
The following factors persuade me to conclude that this respondent should not be precluded from asserting his claim in federal court. First, at the time § 1983 was passed, a nonparty's ability, as a practical matter, to invoke collateral estoppel was nonexistent. One could not preclude an opponent from relitigating an issue in a new cause of action, though that issue had been determined conclusively in a prior proceeding, unless there was "mutuality."15 Additionally, the definitions of "cause of action" and "issue" were narrow.16 As a result, and obviously, no preclusive effect could arise out of a criminal proceeding that would affect subsequent civil litigation. Thus, the 42d Congress could not have anticipated or approved that a criminal defendant, tried and convicted in state court, would be precluded from raising against police officers a constitutional claim arising out of his arrest.
43
Also, the process of deciding in a state criminal trial whether to exclude or admit evidence is not at all the equivalent of a § 1983 proceeding. The remedy sought in the latter is utterly different. In bringing the civil suit the criminal defendant does not seek to challenge his conviction collaterally. At most, he wins damages. In contrast, the exclusion of evidence may prevent a criminal conviction. A trial court, faced with the decision whether to exclude relevant evidence, confronts institutional pressures that may cause it to give a different shape to the Fourth Amendment right from what would result in civil litigation of a damages claim. Also, the issue whether to exclude evidence is subsidiary to the purpose of a criminal trial, which is to determine the guilt or innocence of the defendant, and a trial court, at least subconsciously, must weigh the potential damage to the truth-seeking process caused by excluding relevant evidence. See Stone v. Powell, 428 U.S. 465, 489-495, 96 S.Ct. 3037, 3050-3052, 49 L.Ed.2d 1067 (1976). Cf. Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 411-424, 91 S.Ct. 1999, 2012-2018, 29 L.Ed.2d 619 (1971) (dissenting opinion).
44
A state criminal defendant cannot be held to have chosen "voluntarily" to litigate his Fourth Amendment claim in the state court. The risk of conviction puts pressure upon him to raise all possible defenses.17 He also faces uncertainty about the wisdom of forgoing litigation on any issue, for there is the possibility that he will be held to have waived his right to appeal on that issue. The "deliberate bypass" of state procedures, which the imposition of collateral estoppel under these circumstances encourages, surely is not a preferred goal. To hold that a criminal defendant who raises a Fourth Amendment claim at his criminal trial "freely and without reservation submits his federal claims for decision by the state courts," see England v. Medical Examiners, 375 U.S., at 419, 84 S.Ct., at 466, is to deny reality. The criminal defendant is an involuntary litigant in the state tribunal, and against him all the forces of the State are arrayed. To force him to a choice between forgoing either a potential defense or a federal forum for hearing his constitutional civil claim is fundamentally unfair.
45
I would affirm the judgment of the Court of Appeals.
1
The facts are drawn from the Court of Appeals' opinion. 606 F.2d 795 (CA8 1979).
2
The merits of the Fourth Amendment claim are discussed in the opinion of the Missouri Court of Appeals. State v. McCurry, 587 S.W.2d 337 (1979). The state courts upheld the entry of the house as a reasonable response to emergency circumstances, but held illegal the seizure of any evidence discovered as a result of that entry except what was in plain view. Id., at 340. McCurry therefore argues here that even if the doctrine of collateral estoppel generally applies to this case, he should be able to proceed to trial to obtain damages for the part of the seizure declared illegal by the state courts. The petitioners contend, on the other hand, that the complaint alleged essentially an illegal entry, adding that only the entry could possibly justify the $1 million prayer. Since the state courts upheld the entry, the petitioners argue that if collateral estoppel applies here at all, it removes from trial all issues except the alleged assault. The United States Court of Appeals, however, addressed only the broad question of the applicability of collateral estoppel to § 1983 suits brought by plaintiffs in McCurry's circumstances, and questions as to the scope of collateral estoppel with respect to the particular issues in this case are not now before us.
3
Beyond holding that collateral estoppel does not apply in this case, the Court of Appeals noted that the District Court had overlooked the conspiracy and assault charges. 606 F.2d, at 797, and n. 1.
4
Nevertheless, relying on the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, the Court of Appeals directed the District Court to abstain from conducting the trial until McCurry had exhausted his opportunities for review of his claim in the state appellate courts. 606 F.2d, at 799.
5
The Restatement of Judgments now speaks of res judicata as "claim preclusion" and collateral estoppel as "issue preclusion." Restatement (Second) of Judgments § 74 (Tent. Draft No. 3, Apr. 15, 1976). Some courts and commentators use "res judicata" as generally meaning both forms of preclusion.
Contrary to a suggestion in the dissenting opinion, post, at 113, n. 12, this case does not involve the question whether a § 1983 claimant can litigate in federal court an issue he might have raised but did not raise in previous litigation.
6
In Blonder-Tongue the Court noted other trends in the state and federal courts expanding the preclusive effects of judgments, such as the broadened definition of "claim" in the context of res judicata and the greater preclusive effect given criminal judgments in subsequent civil cases. 402 U.S., at 326, 91 S.Ct., at 1441.
7
Other factors, of course, may require an exception to the normal rules of collateral estoppel in particular cases. E. g., Montana v. United States, 440 U.S., at 162, 99 S.Ct., at 978 (unmixed questions of law in successive actions between the same parties on unrelated claims).
Contrary to the suggestion of the dissent, post, at 112-113, our decision today does not "fashion" any new more stringent doctrine of collateral estoppel, nor does it hold that the collateral-estoppel effect of a state-court decision turns on the single factor of whether the State gave the federal claimant a full and fair opportunity to litigate a federal question. Our decision does not "fashion" any doctrine of collateral estoppel at all. Rather, it construes § 1983 to determine whether the conventional doctrine of collateral estoppel applies to the case at hand. It must be emphasized that the question whether any exceptions or qualifications within the bounds of that doctrine might ultimately defeat a collateral-estoppel defense in this case is not before us. See n. 2, supra.
8
This statute has existed in essentially unchanged form since its enactment just after the ratification of the Constitution, Act of May 26, 1790, ch. 11, 1 Stat. 122, and its re-enactment soon thereafter, Act of Mar. 27, 1804, ch. 56, 2 Stat. 298-299. Congress has also provided means for authenticating the records of the state proceedings to which the federal courts are to give full faith and credit. 28 U.S.C. § 1738.
9
The cases noted in Preiser applied res judicata to issues decided both in state civil proceedings, e. g., Coogan v. Cincinnati Bar Assn., 431 F.2d 1209, 1211 (CA6 1970), and state criminal proceedings, e. g., Goss v. Illinois, 312 F.2d 257, 259 (CA7 1963).
10
E. g., Robbins v. District Court, 592 F.2d 1015 (CA8 1979); Jennings v. Caddo Parish School Bd., 531 F.2d 1331 (CA5 1976); Lovely v. Laliberte, 498 F.2d 1261 (CA1 1974); Brown v. Georgia Power Co., 491 F.2d 117 (CA5 1974); Tang v. Appellate Division, 487 F.2d 138 (CA2 1973).
A very few courts have suggested that the normal rules of claim preclusion should not apply in § 1983 suits in one peculiar circumstance: Where a § 1983 plaintiff seeks to litigate in federal court a federal issue which he could have raised but did not raise in an earlier state-court suit against the same adverse party. Graves v. Olgiati, 550 F.2d 1327 (CA2 1977); Lombard v. Board of Ed. of New York City, 502 F.2d 631 (CA2 1974); Mack v. Florida Bd. of Dentistry, 430 F.2d 862 (CA5 1970). These cases present a narrow question not now before us, and we intimate no view as to whether they were correctly decided.
11
"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." 42 U.S.C. § 1983.
It has been argued that, since there remains little federal common law after Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, to hold that the creation of a federal cause of action by itself does away with the rules of preclusion would take away almost all meaning from § 1738. Currie, Res Judicata: The Neglected Defense, 45 U.Chi.L.Rev. 317, 328 (1978).
12
By contrast, the roughly contemporaneous statute extending the federal writ of habeas corpus to state prisoners expressly rendered "null and void" any state-court proceeding inconsistent with the decision of a federal habeas court, Act of Feb. 5, 1867, ch. 28, § 1, 14 Stat. 385, 386 (current version at 28 U.S.C. § 2254), and the modern habeas statute also expressly adverts to the effect of state-court criminal judgments by requiring the applicant for the writ to exhaust his state-court remedies, 28 U.S.C. § 2254(b), and by presuming a state-court resolution of a factual issue to be correct except in eight specific circumstances, § 2254(d). In any event, the traditional exception to res judicata for habeas corpus review, see Preiser v. Rodriguez, 411 U.S. 475, 497, 93 S.Ct. 1827, 1840, 36 L.Ed.2d 439, provides no analogy to § 1983 cases, since that exception finds its source in the unique purpose of habeas corpus-to release the applicant for the writ from unlawful confinement. Sanders v. United States, 373 U.S. 1, 8, 83 S.Ct. 1068, 1073, 10 L.Ed.2d 148.
13
See, e. g., Cong. Globe, 42d Cong., 1st Sess., 374-376 (1871) (Rep. Lowe); id., at 394 (Rep. Rainey); id., at 653 (Sen. Osborn).
14
To the extent that Congress in the post-Civil War period did intend to deny full faith and credit to state-court decisions on constitutional issues, it expressly chose the very different means of postjudgment removal for state court defendants whose civil rights were threatened by biased state courts and who therefore "are denied or cannot enforce [their civil rights] in the courts or judicial tribunals of the State." Act of Apr. 9, 1866, ch. 31, § 3, 14 Stat. 27.
15
E. g., Cong. Globe, 42d Cong., 1st Sess., 514 (1871) (Rep. Poland); id., at 695 (Sen. Edmunds); see Martinez v. California, 444 U.S. 277, 283-284, n.7, 100 S.Ct. 553, 558, n.7, 62 L.Ed.2d 481 (noting that the state courts may entertain § 1983 claims, while reserving the question whether the state courts must do so).
16
Senator Edmunds, the floor manager of the bill in the Senate, observed at the end of the debates:
"The bill, like all bills of this character, in its first and second sections, is a declaration of rights and a provision for the punishment of conspiracies against constitutional rights, and a redress for wrongs. It does not undertake to overthrow any court. . . . It does not undertake to interpose itself out of the regular order of the administration of law. It does not attempt to deprive any State of the honor which is due the punishment of crime. It is a law acting upon the citizen like every other law, and it is a law to be enforced by the courts through the regular and ordinary processes of judicial administration, and in no other way, until forcible resistance shall be offered to the quiet and ordinary course of justice." Cong. Globe, 42d Cong., 1st Sess., 697-698 (1871).
Representative Coburn expressed his belief that after passage of the Act "the tumbling and tottering States will spring up and resume the long-neglected administration of law in their own courts, giving, as they ought, themselves, equal protection to all." Id., at 460. Representative Sheldon noted:
"Convenience and courtesy to the States suggest a sparing use [of national authority] and never so far as to supplant the State authority except in cases of extreme necessity, and when the State governments criminally refuse or neglect those duties which are imposed on them. . . . It seems to me to be sufficient, and at the same time to be proper, to make a permanent law affording to every citizen a remedy in the United States courts for injuries to him in those rights declared and guaranteed by the Constitution. . . ." Id., at 368.
17
The dissent suggests, post, at 112, that the Court's decision in England v. Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440, demonstrates the impropriety of affording preclusive effect to the state-court decision in this case. The England decision is inapposite to the question before us. In the England case, a party first submitted to a federal court his claim that a state statute violated his constitutional rights. The federal court abstained and remitted the plaintiff to the state courts, holding that a state-court decision that the statute did not apply to the plaintiff would moot the federal question. Id., at 413, 84 S.Ct., at 463. The plaintiff submitted both the state- and federal-law questions to the state courts, which decided both questions adversely to him. Id., at 414, 84 S.Ct., at 464. This Court held that in such a circumstance, a plaintiff who properly reserved the federal issue by informing the state courts of his intention to return to federal court, if necessary, was not precluded from litigating the federal question in federal court. The holding in England depended entirely on this Court's view of the purpose of abstention in such a case: Where a plaintiff properly invokes federal-court jurisdiction in the first instance on a federal claim, the federal court has a duty to accept that jurisdiction. Id., at 415, 84 S.Ct., at 464. Abstention may serve only to postpone rather than to abdicate, jurisdiction, since its purpose is to determine whether resolution of the federal question is even necessary, or to obviate the risk of a federal court's erroneous construction of state law. Id., at 416, and n. 7, 84 S.Ct., at 465, and n. 7. These concerns have no bearing whatsoever on the present case.
18
E. g., Fernandez v. Trias Monge, 586 F.2d 848, 854 (CA1 1978); Wiggins v. Murphy, 576 F.2d 572, 573 (CA4 1978); Martin v. Delcambre, 578 F.2d 1164, 1165 (CA5 1978); Winters v. Lavine, 574 F.2d 46, 58 (CA2 1978); Metros v. United States District Court, 441 F.2d 313 (CA10 1971); Kauffman v. Moss, 420 F.2d 1270, 1274 (CA3 1970); Mulligan v. Schlachter, 389 F.2d 231, 233 (CA6 1968).
Dictum in Ney v. California, 439 F.2d 1285, 1288 (CA9 1971), suggested that applying collateral estoppel in § 1983 actions might make the Civil Rights Act "a dead letter," but in that case, because the state prosecutor had agreed to withdraw the evidence allegedly seized in violation of the Fourth Amendment, the state court had never decided the constitutional claim. In Brubaker v. King, 505 F.2d 534, 537-538 (1974), the Court of Appeals for the Seventh Circuit held that since the issues in the state and federal cases were different-the legality of police conduct in the former and the good faith of the police in the latter-the state-decision could not have preclusive effect in the federal court. This solution, however, fails to recognize that a state court decision that the police acted legally cannot but foreclose a claim that they acted in bad faith. At least one Federal District Court has relied on the Brubaker case. Clark v. Lutcher, 436 F.Supp. 1266 (MD Pa.1977).
19
Metros v. United States District Court, supra; Mulligan v. Schlachter, supra.
20
E. g., Rimmer v. Fayetteville Police Department, 567 F.2d 273, 276 (CA4 1977); Thistlewaite v. City of New York, 497 F.2d 339, 343 (CA2 1973); Alexander v. Emerson, 489 F.2d 285, 286 (CA5 1973).
21
U.S.Const., Art. III.
22
The remarks of the proponents of § 1983 quoted in n. 16, supra, suggest the contrary. The Court of Appeals did not in any degree rest its holding on disagreement with the common view that judgments in criminal proceedings as well as in civil proceedings are entitled to preclusive effect. See, e. g., Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 71 S.Ct. 408, 95 L.Ed. 534.
23
The Court of Appeals did not suggest that the prospect of collateral estoppel in a § 1983 suit would deter a defendant in a state criminal case from raising Fourth Amendment claims, and it is difficult to imagine a defendant risking conviction and imprisonment because he hoped to win a later civil judgment based upon an allegedly illegal search and seizure.
24
Under the modern statute, federal habeas corpus is bounded by a requirement of exhaustion of state remedies and by special procedural rules, 28 U.S.C. § 2254, which have no counterparts in § 1983, and which therefore demonstrate the continuing illogic of treating federal habeas and § 1983 suits as fungible remedies for constitutional violations.
25
We do not decide how the body of collateral estoppel-doctrine or 28 U.S.C. § 1738 should apply in this case. See n. 2, supra.
1
See, e. g., Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980); Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976).
2
See also Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978) (survival of action); Carey v. Piphus, 435 U.S. 247, 97 S.Ct. 1642, 55 L.Ed.2d 252 (1978) (nature of damages award).
3
Senator Osborn's remarks of April 13, 1871, illustrate the contemporary understanding:
"That the State courts in the several States have been unable to enforce the criminal laws of their respective States or to suppress the disorders existing, and in fact that the preservation of life and property in many sections of the country is beyond the power of the State government, is a sufficient reason why Congress should [enact protective legislation]. . . .
"The question now is, what and where is the remedy? I believe the true remedy lies chiefly in the United States district and circuit courts. If the State courts had proven themselves competent to suppress the local disorders, or to maintain law and order, we should not have been called upon to legislate upon this subject at all. But they have not done so. We are driven by existing facts to provide for the several States in the South what they have been unable fully to provide for themselves; i. e., the full and complete administration of justice in the courts. And the courts with reference to which we legislate must be the United States courts." Cong. Globe, 42d Cong., 1st Sess., 653.
4
See, e. g., id., at 460 (remarks of Rep. Coburn, whom the Court by its reference to the Congressman's "spring up and resume" observation, ante, at 100. n. 16, would interpret the other way) ("The United States courts are further above mere local influence than the county courts; their judges can act with more independence, cannot be put under terror, as local judges can; their sympathies are not so nearly identified with those of the vicinage; the jurors are taken from the State, and not the neighborhood; they will be able to rise above prejudices or bad passions or terror more easily. . . . We believe that we can trust our United States courts, and we propose to do so"); Cong.Globe, 42d Cong., 1st Sess., App., at 79 (comments of Rep. Perry) ("The first section provides redress by civil action in the Federal courts for a deprivation of any rights, privileges, and immunities secured by the Constitution . . .") (emphasis added).
5
Id., at 396 (comments of Rep. Rice) ("[The bill] is but a bold and dangerous assertion of both the power and the duty of the Federal Government to intervene in the internal affairs and police regulations of the States and to suspend the exercise of their rightful authority. . . . It is at war with the spirit of a republican Government"); id., at 416 (comments of Rep. Biggs) ("[If this bill should pass] we have by law done what has never before been done in our history, whatever the provocation, namely: authorized the punishment of crimes and offenses of a personal character among us under the Federal tribunals, which shall be of equal authority in criminal cases with our own State courts, and in many cases shall be of superior authority, and of an altogether extraordinary character[.] First, for the violation of the rights, privileges, and immunities of the citizen a civil remedy is to be had by proceedings in the Federal courts, State authorization in the premises to the contrary notwithstanding"); id., App., at 86 (comments of Rep. Storm) ("Now these questions could all be tried, I take it, in the State courts, and by a writ of error, as provided by the twenty-fifth section of the act of 1789, could be brought before the Supreme Court for review. . . . But the first section of this bill does not allow that right. It takes the whole question away at once and forever; and I say that on the ground of delay it is objectionable"). See also id., at 686-687 (comments of Sen. Schurz); id., App., at 216 (comments of Sen. Thurman).
6
See id., App., at 149 (comments of Rep. Garfield) (stating that Congress, in considering this legislation, must seek equipoise between opposing poles of government, on the one hand, "that despotism which shallows and absorbs all power in a single-central, government," and, on the other, the "extreme doctrine of local sovereignty which makes nationality impossible").
7
See id., App., at 78 (comments of Rep. Perry) ("Sheriffs, having eyes to see, see not; judges, having ears to hear, hear not; witnesses conceal the truth or falsify it; grand and petit juries act as if they might be accomplices. In the presence of these gangs all the apparatus and machinery of civil government, all the processes of justice, skulk away as if government and justice were crimes and feared detection. Among the most dangerous things an injured party can do is to appeal to justice. Of the uncounted scores and hundreds of atrocious mutilations and murders it is credibly stated that not one has been punished"); id., at 653 (comments of Sen. Osborn) ("The State courts, mainly under the influence of this [Klan] oath, are utterly powerless"); id., at 394 (remarks of Rep. Rainey) ("The question is sometimes asked, Why do not the courts of law afford redress? Why the necessity of appealing to Congress? We answer that the courts are in many instances under the control of those who are wholly inimical to the impartial administration of law and equity. What benefit would result from appeal to tribunals whose officers are secretly in sympathy with the very evil against which we are striving?"); id., App., at 153 (comments of Rep. Garfield) ("But the chief complaint is not that the laws of the State are unequal, but that even where the laws are just and equal on their face, yet, by a systematic maladministration of them, or a neglect or refusal to enforce their provisions, a portion of the people are denied equal protection under them"); id., App., at 166-167 (comments of Rep. Williams regarding Klan methods of securing perjured testimony).
8
Representative Shellabarger, the bill's sponsor, stated:
"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." Id., App., at 68.
9
E. g., Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 51 L.Ed.2d 492 (1961); McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963); Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967).
10
To the extent that Monroe v. Pape held that a municipality was not a "person" within the meaning of § 1983, it was overruled by the Court in Monell v. New York City Dept. of Social Services, 436 U.S., at 664-689, 98 S.Ct., at 2022-2035. That ruling, of course, does not affect Monroe's authoritative pronouncement of the legislative purposes of § 1983.
11
The Court also stated:
"This legislative history makes evident that Congress clearly conceived that it was altering the relationship between the States and the Nation with respect to the protection of federally created rights; it was concerned that state instrumentalities could not protect those rights; it realized that state officers might, in fact, be antipathetic to the vindication of those rights; and it believed that these failings extended to the state courts." 407 U.S., at 242, 92 S.Ct., at 2162.
12
This articulation of the preclusion doctrine of course would bar a § 1983 litigant from relitigating any issue he might have raised, as well as any issue he actually litigated in his criminal trial.
13
See Restatement (Second) of Judgments § 68.1 (Tent. Draft No. 4, Apr. 15, 1977); F. James & G. Hazard, Civil Procedure §§ 11.16-11.22 (2d ed. 1977).
14
See Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed. 195 (1877); F. James & G. Hazard, Civil Procedure §§ 11.3, 11.16 (2d ed. 1977).
15
Triplett v. Lowell, 297 U.S. 638, 56 S.Ct. 645, 80 L.Ed. 949 (1936), overruled by the Court in Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971); Bigelow v. Old Dominion Copper Mining & Smelting Co., 225 U.S. 111, 32 S.Ct. 641, 56 L.Ed. 1009 (1912); F. James & G. Hazard, Civil Procedure § 11.2 (2d ed. 1977); Restatement of Judgments § 93 (1942); 1B J. Moore, Federal Practice &Par; 0.412[1], 0.441[3] (2d ed. 1974).
16
Compare McCaskill, Actions and Causes of Action, 34 Yale L.J. 614, 638 (1925) (defining "cause of action" as "that group of operative facts which, standing alone, would show a single right in the plaintiff and a single delict to that right giving cause for the state, through its courts, to afford relief to the party or parties whose right was invaded"), with C. Clark, Handbook on the Law of Code Pleading 84 (1928) (adopting "modern" rule expanding "cause of action" to include more than one "right"). See also 1 H. Herman, Law of Estoppel and Res Judicata §§ 92, 96 ("cause of action"), 98, 103, 111 ("issue") (1886); Developments in the Law-Res Judicata, 65 Harv.L.Rev. 818, 826, 841-843 (1952).
17
See Moran v. Mitchell, 354 F.Supp. 86, 88-89 (ED Va.1973) (noting the defendant's dilemma).
| 12
|
449 U.S. 155
101 S.Ct. 446
66 L.Ed.2d 358
WEBB'S FABULOUS PHARMACIES, INC. et al., Appellants,v.Arthur H. BECKWITH, Jr., Clerk of the Circuit Court, etc.
No. 79-1033.
Argued Oct. 13, 14, 1980.
Decided Dec. 9, 1980.
Syllabus
1
Held: Appellee county's taking as its own, under the authority of a Florida statute, the interest accruing on an interpleader fund deposited in the registry of a county court was a taking violative of the Fifth and Fourteenth Amendments, where a fee, based on the amount of the principal deposited as prescribed by another Florida statute, was also charged for the court clerk's services in receiving the fund into the registry, and where the deposited fund was concededly private and was required by statute in order for the depositor to avail itself of statutory protection from the claims of creditors and others. Neither the Florida Legislature by statute nor the Florida courts by judicial decree may accomplish the result the county sought simply by recharacterizing the principal of the deposited fund as "public money" because it was held temporarily by the court. The earnings of the fund are incidents of ownership of the fund itself and are property just as the fund itself is property. Pp. 159-165.
2
374 So.2d 951, reversed.
3
Harry A. Stewart, Sanford, Fla., for appellees.
4
Harvey M. Alper, Altamonte Springs, Fla., for appellants.
5
BLACKMUN, Justice.
6
This case presents the issue whether it is constitutional for a county to take as its own, under the authority of a state statute, the interest accruing on an interpleader fund deposited in the registry of the county court, when a fee, prescribed by another statute, is also charged for the clerk's services in receiving the fund into the registry. The statute which is the object of the constitutional challenge here is Fla.Stat. § 28.33 (1977).1
7
* On February 12, 1976, appellant Eckerd's of College Park, Inc., entered into an agreement to purchase for $1,812,145.77 substantially all the assets of Webb's Fabulous Pharmacies, Inc. Both Eckerd's and Webb's are Florida corporations. At the closing, Webb's debts appeared to be greater than the purchase price. Accordingly, in order to protect itself and as permitted by the Florida Bulk Transfers Act, Fla.Stat. § 676.106(4) (1977),2 Eckerd's filed a complaint of interpleader in the Circuit Court of Seminole County, Fla., interpleading as defendants both Webb's and Webb's creditors (almost 200 in number) and tendering the purchase price to the court.
8
Pursuant to § 676.106(4), the Circuit Court thereupon ordered that the amount tendered be paid to the court's clerk and that the clerk deposit it "in an assignable interest-bearing account at the highest interest." App. 4a. The court specifically reserved decision on the issue of entitlement, as between the clerk and Webb's creditors, to the interest earned on the fund while so deposited, stating that the transfer to the clerk was without prejudice to the creditors' claims to that interest. Id., at 4a-5a. Eckerd's tendered the sum to the clerk on July 13, 1976, id., at 6a, and that official proceeded to make the required investment.
9
The clerk deducted from the interpleader fund so deposited the sum of $9,228.74 as his fee, prescribed by Fla.Stat. § 28.24(14) (1977),3 "for services rendered" for "receiving money into the registry of court." The fee, as the statute directed, was calculated upon the amount placed in the registry, that is, 1% of the first $500, and 1/2% of the remainder.
10
On July 5, 1977, almost a year after the tender and payment, the Circuit Court upon its own motion4 appointed a receiver for Webb's. Among the receiver's stated duties were the determination of the number and amount of claims filed against the interpleader fund and the preparation and filing with the court of a list of those claims. App. 9a. The receiver filed a motion for an order directing the clerk to deliver the fund to him. Id., at 12a. The motion was granted, id., at 14a, and the principal of the fund, reduced by the $9,228.74 statutory fee and by $40,200 that had been paid out pursuant to court order, was paid to the receiver on July 21. The interest earned on the interpleader fund while it was held by the clerk, but which was not turned over to the receiver, then exceeded $90,000. Interest earned thereafter on the amount so retained brought the total to more than $100,000. Tr. of Oral Arg. 34. It is this aggregate interest that is the subject matter of the present litigation. Appellants make no objection to the clerk's statutory fee of $9,228.74 taken pursuant to § 28.24(14). Tr. of Oral Arg. 6; Brief for Appellants 6, 9.
11
The receiver then moved that the court direct the clerk to pay the accumulated interest to the receiver. App. 22a, 26a, 33a. The Circuit Court ruled favorably to the receiver, holding that the clerk "is not entitled to any interest earned, accrued or received on monies deposited in the registry of this Court pursuant to the Court's order. . .; the creditors herein are the rightful parties entitled to all such interest earned on the interpleader fund while it is held by the Clerk of this Court." Id., at 35a.
12
Seminole County and the clerk appealed to the Florida District Court of Appeal. That court transferred the cause to the Supreme Court of Florida. The Supreme Court, in a per curiam opinion with one justice dissenting in part, ruled that § 28.33 was "constitutional" and reversed the judgment of the Circuit Court. 374 So.2d 951 (1979). The stated rationale was that a fund so deposited is "considered 'public money' " from the date of deposit until it leaves the account; that "the statute takes only what it creates"; and that "[t]here is no unconstitutional taking because interest earned on the clerk of the circuit court's registry account is not private property." Id., at 952-953.5
13
Because it had been held elsewhere that a county's appropriation of the interest earned on private funds deposited in court in an interpleader action is an unconstitutional taking, Sellers v. Harris County, 483 S.W.2d 242 (Tex.1972); see McMillan v. Robeson County, 262 N.C. 413, 137 S.E.2d 105 (1964), we noted probable jurisdiction. 445 U.S. 925, 100 S.Ct. 1310, 63 L.Ed.2d 757 (1980).
II
14
It is at once apparent that Florida's statutes would allow respondent Seminole County to exact two tolls while the interpleader fund was held by the clerk of the court. The first was the statutory fee of $9,228.74 "for services rendered," as § 28.24 recites, by the clerk's office for "receiving money into the registry of court." That fee was determined by the amount of the principal deposited.
15
The second would be the retention of the amount, in excess of $100,000, consisting of "[a]ll interest accruing from moneys deposited." This toll would be exacted because of § 28.33's provision that the interest "shall be deemed income of the office of the clerk of the circuit court."
16
An initial reading of § 28.33 might prompt one to conclude that, so far as it concerns entitlement to interest, the statute applies only to interest on funds clearly owned by the county (such as charges for certifications) and that it does not apply to interest on private funds deposited under the direction of another statute. The Florida Supreme Court, however, has read § 28.33 otherwise and has ruled that it applies to interest earned on deposited private funds. That reading of the State's statute is within the Florida court's competency, and we must take the statute as so read and interpreted.
III
17
The pertinent words of the Fifth Amendment of the Constitution of the United States are the familiar ones: "nor shall private property be taken for public use, without just compensation." That prohibition, of course, applies against the States through the Fourteenth Amendment. Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 239, 17 S.Ct. 581, 585-86, 41 L.Ed. 979 (1897); Penn Central Transportation Co. v. New York City, 438 U.S. 104, 122, 98 S.Ct. 2646, 2658, 57 L.Ed.2d 631 (1978). Our task is to determine whether the second exaction by Seminole County amounted to a "taking"—it was obviously uncompensated within the Amendment's proscription.
18
The principal sum deposited in the registry of the court plainly was private property, and was not the property of Seminole County. This is the rule in Florida, Phipps v. Watson, 108 Fla. 547, 551, 147 So. 234, 235 (1933), as well as elsewhere. See Coudert v. United States, 175 U.S. 178, 20 S.Ct. 56, 44 L.Ed. 122 (1899); Branch v. United States, 100 U.S. 673, 25 L.Ed. 759 (1880); Sellers v. Harris County, 483 S.W.2d, at 243. We do not understand that the appellees contend otherwise so far as the fund's principal is concerned.
19
Appellees submit, Tr. of Oral Arg. 26, 29—and we accept the proposition—that, apart from statute, Florida law does not require that interest be earned on a registry deposit. See 374 So.2d, at 953. We, of course, also accept the further proposition, pressed upon us by the appellees, that "[p]roperty interests . . . are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law. . . ." Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). But a mere unilateral expectation or an abstract need is not a property interest entitled to protection. See, for example, Fox River Paper Co. v. Railroad Comm'n, 274 U.S. 651, 47 S.Ct. 669, 71 L.Ed. 1279 (1927); United States v. Willow River Power Co., 324 U.S. 499, 65 S.Ct. 761, 89 L.Ed. 1101 (1945). See also Penn Central Transportation Co. v. New York City, supra; Andrus v. Allard, 444 U.S. 51, 100 S.Ct. 318, 62 L.Ed.2d 210 (1979).
20
Webb's creditors, however, had more than a unilateral expectation. The deposited fund was the amount received as the purchase price for Webb's assets. It was property held only for the ultimate benefit of Webb's creditors, not for the benefit of the court and not for the benefit of the county. And it was held only for the purpose of making a fair distribution among those creditors. Eventually, and inevitably, that fund, less proper charges authorized by the court, would be distributed among the creditors as their claims were recognized by the court. The creditors thus had a state-created property right to their respective portions of the fund.
21
It is true, of course, that none of the creditor claimants had any right to the deposited fund until their claims were recognized and distribution was ordered. See Aron v. Snyder, 90 U.S.App.D.C. 325, 327, 196 F.2d 38, 40, cert. denied, 344 U.S. 854, 73 S.Ct. 92, 97 L.Ed. 663 (1952). That lack of immediate right, however, does not automatically bar a claimant ultimately determined to be entitled to all or a share of the fund from claiming a proper share of the interest, the fruit of the fund's use, that is realized in the interim. To be sure, § 28.33 establishes as a matter of Florida law that interest is to be earned on deposited funds. But the State's having mandated the accrual of interest does not mean the State or its designate is entitled to assume ownership of the interest.
22
We therefore turn to the interest issue. What would justify the county's retention of that interest? It is obvious that the interest was not a fee for services, for any services obligation to the county was paid for and satisfied by the substantial fee charged pursuant to § 28.24 and described specifically in that statute as a fee "for services" by the clerk's office. Section 28.33, in contrast, in no way relates the interest of which it speaks to "services rendered." Indeed, if the county were entitled to the interest, its officials would feel an inherent pressure and possess a natural inclination to defer distribution, for that interest return would be greater the longer the fund is held; there would be, therefore, a built-in disincentive against distributing the principal to those entitled to it.
23
The usual and general rule is that any interest on an interpleaded and deposited fund follows the principal and is to be allocated to those who are ultimately to be the owners of that principal. See, e. g., James Talcott, Inc. v. Allahabad Bank, Ltd., 444 F.2d 451, 463 (CA5), cert. denied sub nom. City Trade & Industries, Ltd. v. Allahabad Bank, Ltd., 404 U.S. 940, 92 S.Ct. 280, 30 L.Ed.2d 253 (1971); Murphy v. Travelers Ins. Co., 534 F.2d 1155, 1165 (CA5 1976); In re Brooks & Woodington, Inc., 505 F.2d 794, 799 (CA7 1974); McMillan v. Robeson County, 262 N.C., at 417, 137 S.E.2d, at 108; Sellers v. Harris County, 483 S.W.2d, at 243; Southern Oregon Co. v. Gage, 100 Or. 424, 433, 197 P. 276, 279 (1921); Board of Law Library Trustees v. Lowery, 67 Cal.App.2d 480, 154 P.2d 719 (1945); Kiernan v. Cleland, 47 Idaho 200, 273 P. 938 (1929).6
24
The Florida Supreme Court, in ruling contrary to this long established general rule, relied on the words of § 28.33 and then proceeded on the theory that without the statute the clerk would have no authority to invest money held in the registry, that in some way the fund assumes temporarily the status of "public money" from the time it is deposited until it leaves the account, and that the statute "takes only what it creates." Then follows the conclusion that the interest "is not private property." 374 So.2d, at 952-953.
25
This Court has been permissive in upholding governmental action that may deny the property owner of some beneficial use of his property or that may restrict the owner's full exploitation of the property, if such public action is justified as promoting the general welfare. See, e. g., Andrus v. Allard, 444 U.S., at 64-68, 100 S.Ct., at 326-328; Penn Central Transportation Co. v. New York City, 438 U.S., at 125-129, 98 S.Ct., at 2660-2662.
26
Here, however, Seminole County has not merely "adjust[ed] the benefits and burdens of economic life to promote the common good." Id., at 124, 98 S.Ct. at 2659. Rather, the exaction is a forced contribution to general governmental revenues, and it is not reasonably related to the costs of using the courts. Indeed, "[t]he Fifth Amendment's guarantee . . . was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 1569, 4 L.Ed.2d 1554 (1960).
27
No police power justification is offered for the deprivation. Neither the statute nor appellees suggest any reasonable basis to sustain the taking of the interest earned by the interpleader fund. The county's appropriation of the beneficial use of the fund is analogous to the appropriation of the use of private property in United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946). There the Court found a "taking" in the Government's use of air space above the claimant's land as part of the flight pattern for military aircraft, thus destroying the use of the land as a chicken farm. "Causby emphasized that Government had not 'merely destroyed property [but was] using a part of it for the flight of its planes.' " Penn Central, 438 U.S., at 128, 98 S.Ct. at 266, quoting from Causby, 328 U.S., at 262-263, n. 7, 66 S.Ct. at 1066, n. 7.
28
Neither the Florida Legislature by statute, nor the Florida courts by judicial decree, may accomplish the result the county seeks simply by recharacterizing the principal as "public money" because it is held temporarily by the court. The earnings of a fund are incidents of ownership of the fund itself and are property just as the fund itself is property. The state statute has the practical effect of appropriating for the county the value of the use of the fund for the period in which it is held in the registry.
29
To put it another way: a State, by ipse dixit, may not transform private property into public property without compensation, even for the limited duration of the deposit in court. This is the very kind of thing that the Taking Clause of the Fifth Amendment was meant to prevent. That Clause stands as a shield against the arbitrary use of governmental power.
IV
30
We hold that under the narrow circumstances of this case where there is a separate and distinct state statute authorizing a clerk's fee "for services rendered" based upon the amount of principal deposited; where the deposited fund itself concededly is private; and where the deposit in the court's registry is required by state statute in order for the depositor to avail itself of statutory protection from claims of creditors and others Seminole County's taking unto itself, under § 28.33 and 1973 Fla.Laws, ch. 73-282, the interest earned on the interpleader fund while it was in the registry of the court was a taking violative of the Fifth and Fourteenth Amendments. We express no view as to the constitutionality of a statute that prescribes a county's retention of interest earned, where the interest would be the only return to the county for services it renders.
31
The judgment of the Supreme Court of Florida is reversed.
32
It is so ordered.
1
Section 28.33, enacted as 1973 Fla.Laws, ch. 73-282, § 1, reads in pertinent part:
"The clerk of the circuit court in each county shall make an estimate of his projected financial needs for the county and shall invest any funds in designated depository banks in interest-bearing certificates or in any direct obligations of the United States in compliance with federal laws relating to receipt of and withdrawal of deposits. . . . Moneys deposited in the registry of the court shall be deposited in interest-bearing certificates at the discretion of the clerk, subject to the above guidelines. . . . All interest accruing from moneys deposited shall be deemed income of the office of the clerk of the circuit court investing such moneys and shall be deposited in the same accounts as are other fees and commissions of the clerk's office. Each clerk shall, as soon as is practicable after the end of the fiscal year, report to the county governing authority the total interest earned on all investments during the preceding year." (Emphasis supplied.)
2
Section 676.106(4), which derives from the Uniform Commercial Code, reads:
"A transferee may within ten days after taking possession of the goods, discharge his obligations under this section by an action in the circuit court for the county where the transferor had his principal place of business in this state interpleading all creditors in the list of creditors required by [§] 676.104. In such event the court shall require the consideration to be deposited into the registry of the court and thereupon shall decree the goods to be free and clear of the claims of such creditors and that such creditors should file their claims with the court."
3
Section 28.24, as then in force, read in pertinent part:
"The clerk of the circuit court shall make the following charges for services rendered by his office in recording documents and instruments and in performing the duties enumerated:
* * * * *
"(14) For receiving money into the registry of court:
"(a) First $500.00, percent.................................... 1
"(b) Each subsequent $100.00, percent..........................1/2"
The statute has since been amended in ways not relevant to the present litigation.
4
The appellants suggest that the court acted sua sponte because of the continuing insistence of the clerk and Seminole County that the county was entitled to the interest being earned on the fund, and to bring the interest period in controversy to an end. Brief for Appellants 10.
5
Although it is not entirely clear that the federal constitutional issue was presented to the Circuit Court, the propriety of the clerk's claim to the interest was clearly raised there as an issue under the Florida Constitution. See p. 6 of the receiver's memorandum in support of his motion for direction to the clerk to remit (p. 77 of the Original Record on Appeal). That memorandum, however, contains at least one reference to "pertinent provisions of the Florida Constitution and its Federal counterpart" (emphasis in original), ibid., and there are "due process" arguments beginning at p. 4 of the receiver's reply memorandum. Furthermore, the Circuit Court, in granting the receiver's motion for a nunc pro tunc order correcting an omission from the record, specifically stated that § 28.33 and 1973 Fla.Laws, ch. 73-282, "are unconstitutional to the extent that the provisions thereof pertain to private monies held in the registry of the court in pending litigation and specifically to those monies held in the registry of the court in this case." App. 40a-41a.
In any event, the federal constitutional issue appears to have been raised in the Supreme Court of Florida. See Tr. of Oral Arg. 4. While there is no specific reference to the Federal Constitution in the court's per curiam opinion, the court spoke specifically of the receiver's argument that the statute "constitutes either a taking without due process of law or an unlawful tax," 374 So.2d, at 952, and ruled that there was "no unconstitutional taking." Id., at 953. We are satisfied that the Supreme Court of Florida upheld the statute against both federal and state constitutional challenges. This is a sufficient base for this Court's consideration of the federal issue.
6
The appellees at oral argument conceded that if coupon bonds, rather than cash, had been deposited in the registry, the coupons would follow the principal and could not be claimed by the county under § 28.33. Tr. of Oral Arg. 31.
| 34
|
449 U.S. 199
101 S.Ct. 632
66 L.Ed.2d 391
Danny VINCENT, appellant,v.State of TEXAS
No. 79-5962
Supreme Court of the United States
December 9, 1980
PER CURIAM.
1
The appeal is dismissed for want of a properly presented federal question.
2
THE CHIEF JUSTICE and Justice POWELL would dismiss for want of jurisdiction.
| 89
|
449 U.S. 200
101 S.Ct. 471
66 L.Ed.2d 392
UNITED STATES, Appellant,v.Hubert L. WILL et al. UNITED STATES, Appellant, v. Hubert L. WILL et al.
Nos. 79-983, 79-1689.
Argued Oct. 13, 1980.
Decided Dec. 15, 1980.
Syllabus
An interlocking network of federal statutes fixes the compensation of high-level federal officials, including federal judges, and provides for annual cost-of-living adjustments in salary determined in the same way as those for federal employees generally. In four consecutive fiscal years (hereafter Years 1, 2, 3, and 4), Congress, with respect to these high-level officials, enacted statutes to stop or reduce previously authorized cost-of-living increases initially intended to be automatically operative under that statutory scheme. In Years 2 and 3, the statutes became law before the start of the fiscal year, and in Years 1 and 4 became law on or after the first day of the fiscal year. A number of United States District Court Judges (appellees) filed class actions against the United States in District Court, challenging the validity of the statutes under the Compensation Clause of the Constitution, which provides that federal judges shall receive compensation which "shall not be diminished during their Continuance in Office." The District Court granted summary judgments for appellees.
Held :
1. This Court has jurisdiction of the appeals under 28 U.S.C. § 1252, providing for appeals to this Court from judgments holding an Act of Congress unconstitutional in any civil action to which the United States is a party. And the District Court had jurisdiction over the actions under 28 U.S.C. § 1346(a)(2), which confers on district courts and the Court of Claims concurrent jurisdiction over actions against the United States based on the Constitution when the amount in controversy does not exceed $10,000, none of the individual claims here having been alleged to have exceeded that amount. Pp. 210-211.
2. Title 28 U.S.C. § 455-which requires a federal judge to disqualify himself in any proceeding in which his impartiality might reasonably be questioned or where he has a financial interest in the subject matter in controversy or is a party to the proceeding-by reason of the Rule of Necessity does not operate to disqualify all federal judges, including the Justices of this Court, from deciding the issues presented by these cases. Where, under the circumstances of these cases, all Article III judges have an interest in the outcome so that it was not possible to assign a substitute district judge or for the Chief Justice to remit the appeal, as he is authorized to do by statute, to a division of the Court of Appeals with judges who are not subject to the disqualification provisions of § 455, the common-law Rule of Necessity, under which a judge, even though he has an interest in the case, has a duty to hear and decide the case if it cannot otherwise be heard, prevails over the disqualification standards of § 455. Far from promoting § 455's purpose of reaching disqualification of an individual judge when there is another to whom the case may be assigned, failure to apply the Rule of Necessity in these cases would have a contrary effect by denying some litigants their right to a forum. And the public might be denied resolution of the crucial matter involved if first the District Judge and now all the Justices of this Court were to ignore the mandate of the Rule of Necessity and decline to answer the questions presented. Pp. 211-217.
3. The statutes in question in Years 1 and 4, but not in Years 2 and 3, violated the Compensation Clause. Pp. 217-230.
(a) In each of the four years in question, Congress intended in effect to repeal or postpone previously authorized salary increases for federal judges, not simply to consign such increases to the fiscal limbo of an account due but not payable. Pp. 221-224.
(b) Since the statute applying to Year 1 became law on the first day of the fiscal year, by which time the salary increases already had taken effect, it purported to repeal a salary increase already in force and thus "diminished" the compensation of federal judges. That the statute included in the salary "freeze" other federal officials who are not protected by the Compensation Clause did not insulate a direct diminution in judges' salaries from the clear mandate of that Clause. Pp. 224-226.
(c) But the statutes applying to Years 2 and 3 became law before the scheduled salary increases for federal judges had taken effect, i. e., before they had become a part of the compensation due Article III judges, and hence in no sense diminished the compensation such judges were receiving. Pp. 226-229.
(d) Even though the statute applying to Year 4 referred only to "executive employees, which includes Members of Congress," and did not expressly mention judges, it appears that Congress intended to include Article III judges. Accordingly, where such statute, similarly to the statute applying to Year 1, purported to revoke an increase in judges' compensation after the statutes granting the increase had taken effect, it violated the Compensation Clause. Pp. 229-230.
No. 79-983, D.C., 478 F.Supp. 621, and No. 79-1689, affirmed in part, reversed in part, and remanded.
Kenneth S. Geller, Washington, D.C., for appellant.
Kevin M. Forde, Chicago, Ill., for appellees.
Chief Justice BURGER delivered the opinion of the Court.
1
These appeals present the questions whether under the Compensation Clause, Art. III, § 1, Congress may repeal or modify a statutorily defined formula for annual cost-of-living increases in the compensation of federal judges, and, if so, whether it must act before the particular increases take effect.
2
* Congress has enacted an interlocking network of statutes to fix the compensation of high-level officials in the Executive, Legislative, and Judicial Branches, including federal judges. It provides for quadrennial review of overall salary levels and annual cost-of-living adjustments determined in the same fashion as those for federal employees generally. In four consecutive fiscal years, Congress, with respect to these high-level Executive Branch, Legislative, and Judicial salaries, enacted statutes to stop or to reduce previously authorized cost-of-living increases initially intended to be automatically operative under that statutory scheme, once the Executive had determined the amount. In two of these years, the legislation was signed by the President and became law before the start of the fiscal year; in the other two years, on or after the first day of the fiscal year.
A.
3
The salaries of high-level Executive, Legislative, and Judicial officials are set under the Postal Revenue and Federal Salary Act of 1967, 81 Stat. 642, as amended, 2 U.S.C. §§ 351-361 (1976 ed. and Supp. III). The Salary Act provides for a quadrennial review, starting in 1969, of these officials' compensation. A Commission on Executive, Legislative, and Judicial Salaries periodically examines the salary levels for these positions in relation to one another and to the General Schedule (GS), the matrix of grades and steps that determines the salaries of most federal employees. Its recommendations are submitted to the President, who in turn submits that report with his recommendations to Congress in the next budget. Each House of Congress must vote on the President's proposal within 60 days. If both Houses approve, the adjustment takes effect at the start of the first pay period beginning 30 days thereafter.1
4
In 1975, Congress adopted the Executive Salary Cost-of-Living Adjustment Act, Pub.L. 94-82, 89 Stat. 419. The Adjustment Act subjects the salaries covered by the Salary Act to the same annual adjustment made in the General Schedule under the Federal Pay Comparability Act of 1970, 5 U.S.C. §§ 5305-5306. The Comparability Act requires that each year the President designate an agent to compare federal salaries to data on private-sector salaries compiled by the Bureau of Labor Statistics. The agent must undertake certain steps in his investigation and, ultimately, submit a report to the President recommending adjustments as deemed appropriate to bring federal employees' salaries in line with prevailing rates in the private sector. A separate Advisory Committee on Federal Pay then reviews that report and makes its own independent recommendation. Thereafter, the President issues an order adjusting the salaries of federal employees and submits a report to Congress listing the overall percentage of the adjustment and including the reports and recommendations submitted to him on the subject. If the President believes that economic conditions or conditions of national emergency make the planned adjustment inappropriate, he may submit to Congress before September 1 an alternative plan for adjusting federal employees' salaries. This alternative plan controls unless within 30 days of continuous legislative session either House of Congress adopts a resolution disapproving of the President's proposed plan. If one House disapproves, the agent's recommendation governs. The increases take effect with the start of the first pay period starting on or after the beginning of the federal fiscal year on October 1.
5
This complex web of base salaries adjusted annually for civil service employees and again quadrennially for higher-rank positions has led to the following statutory definition of a United States district judge's compensation:
6
"Each judge of a district court of the United States shall receive a salary at an annual rate determined under section 225 of the Federal Salary Act of 1967 (2 U.S.C. 351-361), as adjusted by section 461 of this title." 28 U.S.C. § 135.
7
Similarly phrased statutes apply to all other Article III judges.2 Title 28 U.S.C. § 461 in turn provides that the annual GS adjustment, rounded to the nearest multiple of $100, shall apply to salaries subject to that section, effective at the start of the next pay period. Compensation of judges is set at an annual figure and paid monthly, with each pay period coinciding with the calendar month. See 5 U.S.C. § 5505. Accordingly, any annual change in salary under the Adjustment Act takes effect at the beginning of October, the start of the fiscal year.
B
8
In October 1975 GS salaries were increased by an average of 5% under the terms of the Comparability Act. Federal judges and the other officials covered by the Adjustment Act received similar increases. In each of the following four years, however, Congress adopted a statute that altered the application of the Adjustment Act for the officials of the three branches subject to it. To avoid the confusion generated by a fiscal year's having a number different from the calendar year in which it begins, we refer to these as Years 1, 2, 3, and 4. We turn now to the specific actions taken for each of the four years in question.
Year 1
9
In October 1976, GS salaries were increased by an average of 4.8% under the procedures of the Comparability Act outlined earlier. On October 1, the first day of the new fiscal year and the first day of the relevant pay period, the President signed the Legislative Branch Appropriation Act, 1977, Pub.L. 94-440, 90 Stat. 1439. Title II of that statute provided:
10
"[N]one of the funds contained in this Act shall be used to increase salaries of Members of the House of Representatives . . . . No part of the funds appropriated in this Act or any other Act shall be used to pay the salary of an individual in a position or office referred to in section 225(f) of the Federal Salary Act of 1967, as amended (2 U.S.C. 356), including a Delegate to the House of Representatives, at a rate which exceeds the salary rate in effect on September 30, 1976, for such position or office . . . ."
11
By virtue of the reference to the Salary Act, this statute applied to federal judges; its import, therefore, was to prohibit paying the 4.8% raise on October 1, 1976, under the Adjustment Act to federal judges, as well as Members of Congress and high-level officials in the Executive Branch.
12
In March 1977, Members of Congress, federal judges, and high-ranking employees in the Executive Branch received raises pursuant to the quadrennial review under the Salary Act. The salary of a United States district judge, for example, increased to $54,500; circuit judges and special appellate judges, to $57,500; Associate Justices of the Supreme Court, to $72,000. 42 Fed.Reg. 10297 (1977).3
Year 2
13
In October 1977, GS salaries, which generally are not subject to the quadrennial review under the Salary Act, were increased an average of 7.1% under the Comparability Act. On July 11, 1977, the President signed Pub.L. 95-66, 91 Stat. 270, which provided:
14
"[T]he first adjustment which, but for this Act, would be made after the date of enactment of this Act under the following provisions of law in the salary or rate of pay of positions or individuals to which such provisions apply [the 7.1% in October 1977], shall not take effect:
15
* * * * *
16
"(3) section 461 of title 28, United States Code, relating to comparability adjustments in the salary and rate of pay of justices, judges, commissioners, and referees . . . ."
17
Parallel subdivisions applied to the other officials under the Salary Act. According to the House Report on this measure, an Adjustment Act increase would be inappropriate following the Comparability Act increase earlier in the same calendar year. H.R.Rep.No.95-458, p. 2 (1977), U.S.Code Cong. & Admin.News 1977, p. 464.4 The effect of this statute was to nullify the contemplated 7.1% increase for these high-level executive employees, Members of Congress, and federal judges.
Year 3
18
For the fiscal year beginning October 1, 1978, the President approved the recommendation to increase GS salaries an average of 5.5%. On September 30, 1978, the final day of the preceding fiscal year, however, the President signed the Legislative Branch Appropriation Act, 1979, Pub.L. 95-391, 92 Stat. 763. Section 304(a) of that Act stated:
19
"No part of the funds appropriated for the fiscal year ending September 30, 1979, by this Act or any other Act may be used to pay the salary or pay of any individual in any office or position in the legislative, executive, or judicial branch, or in the government of the District of Columbia, at a rate which exceeds the rate (or maximum rate, if higher) of salary or basic pay payable for such office or position for September 30, 1978 . . . ." The effect of this provision was to prohibit paying the 5.5% increase authorized by the Adjustment Act for the fiscal year beginning October 1, 1978.
Year 4
20
For the fiscal year beginning October 1, 1979, the President's statutory agent transmitted a recommendation for an average increase of 10.41%. However, on August 31, the President invoked his power under the Comparability Act to alter this rate; he reduced the proposed increase to 7% from the 10.41% recommended. These increases, the Government concedes, took effect on October 1, 1979. Moreover, because the September 30, 1978, statute (Year 3) prohibited paying the 5.5% increase only during fiscal year 1979, that increase took effect as well; along with the 7% adjustment this brought the total to 12.9%.5 Nevertheless, the Government now contends that this increase was in effect for only 11 days, since on October 12, the President signed Pub.L. 96-86, 93 Stat. 656. Section 101(c) of this statute stated, in relevant part:
21
"For fiscal year 1980, funds available for payment to executive employees, which includes Members of Congress, who under existing law are entitled to approximately 12.9 percent increase in pay, shall not be used to pay any such employee or elected or appointed official any sum in excess of 5.5 percent increase in existing pay and such sum if accepted shall be in lieu of the 12.9 percent due for such fiscal year."
22
None of the appellees have exercised the statutory option to accept the 5.5% increase pursuant to the final clause of this statute; in terms that statute provides such acceptance of the 5.5% operates as a waiver of all claims to rates higher than the 5.5%. The Government concedes the 5.5% increase has continued in effect.
C
23
On February 7, 1978, 13 United States District Judges filed an action (No. 79-983 in this Court) in the District Court for the Northern District of Illinois. The complaint, which named the United States as defendant, challenged the validity of the statutes in Years 1 and 2 under the Compensation Clause, U.S.Const., Art. III, § 1.6 The plaintiff judges were certified as representatives of two classes of Article III judges the classes defined with reference to Years 1 and 2.7 The Government, while not opposing certification of the classes, defended the validity of both statutes.
24
In an opinion filed August 29, 1979, the District Court granted summary judgment for the plaintiffs, appellees here. 478 F.Supp. 621. A corresponding judgment order was entered September 24. On appeal by the Government, we postponed decision on jurisdiction to the hearing on the merits and directed the parties to address the effect of 28 U.S.C. § 455, if any, on the jurisdiction of the District Court and this Court. 444 U.S. 1068, 100 S.Ct. 1010, 62 L.Ed.2d 749 (1980).
25
No. 79-1689 comes to us from a similar complaint filed in the United States District Court for the Northern District of Illinois on October 19, 1979, after the District Court had entered judgment in No. 79-983. At issue this time were the statutes in Years 3 and 4. The same 13 judges, joined by one other, again sought to represent two classes of Article III judges defined by the years.8 The United States is defendant. The case was referred to the same member of the District Court who had presided over the proceedings in No. 79-983.
26
On January 31, 1980, the District Court entered an order certifying the classes and granting summary judgment for the plaintiffs, appellees in No. 79-1689. Based on its decision in No. 79-983, the court held that the statute in Year 3 violated the Compensation Clause. The court noted with respect to Year 4 that the relevant statute referred only to "executive employees." It then held that while it was doubtful Congress intended the statute to apply the statute to judges, would be unconstitutional if Congress did so intend. In either case, the Adjustment Act increase for Year 4 took effect. Judgment for appellees was formally entered February 12. On the Government's appeal to this Court, we postponed consideration of jurisdiction to the merits and consolidated this case with No. 79-983 for briefing and oral argument. 447 U.S. 919, 100 S.Ct. 3008, 65 L.Ed.2d 1111 (1980).
II
A.
Jurisdiction
27
Although it is clear that the District Judge and all Justices of this Court have an interest in the outcome of these cases, there is no doubt whatever as to this Court's jurisdiction under 28 U.S.C. § 12529 or that of the District Court under 28 U.S.C. § 1346(a)(2) (1976 ed., Supp. III).10 Section 455 of Title 2811 neither expressly nor by implication purports to deal with jurisdiction. On its face § 455 provides for disqualification of individual judges under specified circumstances; it does not affect the jurisdiction of a court. Nothing in the text or the history of § 455 suggests that Congress intended, by that section, to amend the vast array of statutes conferring jurisdiction over certain matters on various federal courts.
B
Disqualification
28
Jurisdiction being clear, our next inquiry is whether 28 U.S.C. § 455 or traditional judicial canons12 operate to disqualify all United States judges, including the Justices of this Court, from deciding these issues. This threshold question reaches us with both the Government and the appellees in full agreement that § 455 did not require the District Judge, and does not now require each Justice of this Court, to disqualify himself. Rather, they agree the ancient Rule of Necessity prevails over the disqualification standards of § 455. Notwithstanding this concurrence of views resulting from the Government's concession, the sensitivity of the issues leads us to address the applicability of § 455 with the same degree of care and attention we would employ if the Government asserted that the District Court lacked jurisdiction or that § 455 mandates disqualification of all judges and Justices without exception.
29
In federal courts generally, when an individual judge is disqualified from a particular case by reason of § 455, the disqualified judge simply steps aside and allows the normal administrative processes of the court to assign the case to another judge not disqualified. In the cases now before us, however, all Article III judges have an interest in the outcome; assignment of a substitute District Judge was not possible. And in this Court, when one or more Justices are recused but a statutory quorum of six Justices eligible to act remains available, see 28 U.S.C. § 1, the Court may continue to hear the case. Even if all Justices are disqualified in a particular case under § 455, 28 U.S.C. § 2109 authorizes the Chief Justice to remit a direct appeal to the Court of Appeals for final decision by judges not so disqualified.13 However, in the highly unusual setting of these cases, even with the authority to assign other federal judges to sit temporarily under 28 U.S.C. §§ 291-296 (1976 ed. and Supp. III), it is not possible to convene a division of the Court of Appeals with judges who are not subject to the disqualification provisions of § 455. It was precisely considerations of this kind that gave rise to the Rule of Necessity, a well-settled principle at common law that, as Pollack put it, "although a judge had better not, if it can be avoided, take part in the decision of a case in which he has any personal interest, yet he not only may but must do so if the case cannot be heard otherwise." F. Pollack, A First Book of Jurisprudence 270 (6th ed. 1929).
C
Rule of Necessity
30
The Rule of Necessity had its genesis at least five and a half centuries ago. Its earliest recorded invocation was in 1430, when it was held that the Chancellor of Oxford could act as judge of a case in which he was a party when there was no provision for appointment of another judge. Y.B.Hil. 8 Hen. VI, f. 19, pl. 6.14 Early cases in this country confirmed the vitality of the Rule.15
31
The Rule of Necessity has been consistently applied in this country in both state and federal courts. In State ex rel. Mitchell v. Sage Stores Co., 157 Kan. 622, 143 P.2d 652 (1943), the Supreme Court of Kansas observed:
32
"[I]t is well established that actual disqualification of a member of a court of last resort will not excuse such member from performing his official duty if failure to do so would result in a denial of a litigant's constitutional right to have a question, properly presented to such court, adjudicated." Id., at 629, 143 P.2d, at 656.
33
Similarly, the Supreme Court of Pennsylvania held:
34
"The true rule unquestionably is that wherever it becomes necessary for a judge to sit even where he has an interest-where no provision is made for calling another in, or where no one else can take his place-it is his duty to hear and decide, however disagreeable it may be." Philadelphia v. Fox, 64 Pa. 169, 185 (1870).
35
Other state16 and federal17 courts also have recognized the Rule.
36
The concept of the absolute duty of judges to hear and decide cases within their jurisdiction revealed in Pollack, supra, and Philadelphia v. Fox, supra, is reflected in decisions of this Court. Our earlier cases dealing with the Compensation Clause did not directly involve the compensation of Justices or name them as parties, and no express reference to the Rule is found. See,e. g., O'Malley v. Woodrough, 307 U.S. 277, 59 S.Ct. 838, 83 L.Ed. 1289 (1939); O'Donoghue v. United States, 289 U.S. 516, 53 S.Ct. 740, 77 L.Ed. 1356 (1933); Evans v. Gore, 253 U.S. 245, 40 S.Ct. 550, 64 L.Ed. 887 (1920). In Evans, however, an action brought by an individual judge in his own behalf, the Court by clear implication dealt with the Rule:
37
"Because of the individual relation of the members of this court to the question . . ., we cannot but regret that its solution falls to us . . . . But jurisdiction of the present case cannot be declined or renounced. The plaintiff was entitled by law to invoke our decision on the question as respects his own compensation, in which no other judge can have any direct personal interest; and there was no other appellate tribunal to which under the law he could go." Id., at 247-248, 40 S.Ct., at 550-551.18
38
It would appear, therefore, that this Court so took for granted the continuing validity of the Rule of Necessity that no express reference to it or extended discussion of it was needed.19
D
Limited Purpose of Section 455
39
The objective of § 455 was to deal with the reality of a positive disqualification by reason of an interest or the appearance or possible bias. The House and Senate Reports on § 455 reflect a constant assumption that upon disqualification of a particular judge, another would be assigned to the case. For example:
40
"[I]f there is [any] reasonable factual basis for doubting the judge's impartiality, he should disqualify himself and let another judge preside over the case." S.Rep.No.93-419, p. 5 (1973) (emphasis added); H.R.Rep.No.93-1453, p. 5 (1973) (emphasis added), U.S.Code Cong. & Admin.News 1974, pp. 6351, 6355.
The Reports of the two Houses continued:
41
"The statutes contain ample authority for chief judges to assign other judges to replace either a circuit or district court judge who become disqualified [under § 455]." S.Rep.No.93-419, supra, at 7 (emphasis added); H.R.Rep.No.93-1453, supra, at 7 (emphasis added), U.S.Code Cong. & Admin.News 1974, p. 6357.
42
The congressional purpose so clearly expressed in the Reports gives no hint of altering the ancient Rule of Necessity, a doctrine that had not been questioned under prior judicial disqualification statutes.20 The declared purpose of § 455 is to guarantee litigants a fair forum in which they can pursue their claims. Far from promoting this purpose, failure to apply the Rule of Necessity would have a contrary effect, for without the Rule, some litigants would be denied their right to a forum. The availability of a forum becomes especially important in these cases. As this Court has observed elsewhere, the Compensation Clause is designed to benefit, not the judges as individuals, but the public interest in a competent and independent judiciary. Evans v. Gore, supra, at 253, 40 S.Ct., at 553. The public might be denied resolution of this crucial matter if first the District Judge, and now all the Justices of this Court, were to ignore the mandate of the Rule of Necessity and decline to answer the questions presented. On balance, the public interest would not be served by requiring disqualification under § 455.
43
We therefore hold that § 455 was not intended by Congress to alter the time-honored Rule of Necessity. And we would not casually infer that the Legislative and Executive Branches sought by the enactment of § 455 to foreclose federal courts from exercising "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).
III
The Compensation Clause
44
The Compensation Clause has its roots in the longstanding Anglo-American tradition of an independent Judiciary. A Judiciary free from control by the Executive and the Legislature is essential if there is a right to have claims decided by judges who are free from potential domination by other branches of government. Our Constitution promotes that independence specifically by providing:
45
"The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office." Art. III, § 1.
46
Hamilton, in The Federalist No. 79, p. 491 (1918) (emphasis deleted), emphasized the importance of protecting judicial compensation:
47
"In the general course of human nature, a power over a man's subsistence amounts to a power over his will."
48
The relationship of judges' compensation to their independence was by no means a new idea initiated by the authors of the Constitution. The Act of Settlement in 1701, designed to correct abuses prevalent under the reign of the Stuart Kings, includes a provision that, upon the accession of the successor to then Princess Anne,
49
"Judges Commissions be made Quamdiu se bene gesserint [during good behavior], and their Salaries ascertained and established . . . ." 12 & 13 Will. III, ch. 2, § III, cl. 7 (1701).
50
This English statute is the earliest legislative acknowledgment that control over the tenure and compensation of judges is incompatible with a truly independent judiciary, free of improper influence from other forces within government. Later, Parliament passed, and the King assented to, a statute implementing the Act of Settlement providing that a judge's salary would not be decreased "so long as the Patents and Commissions of them, or any of them respectively, shall continue and remain in force." 1 Geo. III, ch. 23, § III (1760). These two statutes were designed "to maintain both the dignity and independence of the judges." 1 W. Blackstone, Commentaries *267.
51
Originally, these same protections applied to colonial judges as well. In 1761, however, the King converted the tenure of colonial judges to service at his pleasure.21 The interference this change brought to the administration of justice in the Colonies soon became one of the major objections voiced against the Crown. Indeed, the Declaration of Independence, in listing the grievances against the King, complained:
52
"He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries."
53
Independence won, the colonists did not forget the reasons that caused them to separate from the Mother Country. Thus, when the Framers met in Philadelphia in 1787 to draft our organic law, they made certain that in the judicial articles both the tenure and the compensation of judges would be protected from one of the evils that had brought on the Revolution and separation.
54
Madison's notes of the Constitutional Convention reveal that the draftsmen first reached a tentative arrangement whereby the Congress could neither increase nor decrease the compensation of judges. Later, Gouverneur Morris succeeded in striking the prohibition on increases; with others, he believed the Congress should be at liberty to raise salaries to meet such contingencies as inflation, a phenomenon known in that day as it is in ours. Madison opposed the change on the ground judges might tend to defer unduly to the Congress when that body was considering pay increases.
55
The concern for the ravages of inflation is revealed in Madison's comment:
56
"The variations in the value of money, may be guarded agst. by taking for a standard wheat or some other thing of permanent value." 2 M. Farrand, The Records of the Federal Convention of 1787, p. 45 (1911).
57
Morris criticized the proposal for overlooking changes in the state of the economy; the value of wheat may change, he said, and leave the judges undercompensated. The Convention finally adopted Morris' motion to allow increases by the Congress, thereby accepting a limited risk of external influence in order to accommodate the need to raise judges' salaries when times changed.22 As Hamilton later explained:
58
"It will readily be understood, that the fluctuations in the value of money, and in the state of society, rendered a fixed rate of compensation [of judges] in the Constitution inadmissible. What might be extravagant to-day might in half a century become penurious and inadequate. It was therefore necessary to leave it to the discretion of the legislature to vary its provisions in conformity to the variations in circumstances; yet under such restrictions as to put it out of the power of that body to change the condition of the individual for the worse." The Federalist No. 79, pp. 491-492 (1818).
59
This Court has recognized that the Compensation Clause also serves another, related purpose. As well as promoting judicial independence, it ensures a prospective judge that, in abandoning private practice-more often than not more lucrative than the bench-the compensation of the new post will not diminish. Beyond doubt, such assurance has served to attract able lawyers to the bench and thereby enhances the quality of justice. Evans v. Gore, 253 U.S., at 553; 1 J. Kent, Commentaries on American Law 276 (1826).
IV
60
The four statutes now before us present an issue never before addressed by this Court: when, if ever, does the Compensation Clause prohibit the Congress from repealing salary increases that otherwise take effect automatically pursuant to a formula previously enacted? We must decide when a salary increase authorized by Congress under such a formula "vests"-i. e., becomes irreversible under the Compensation Clause. Is the protection of the Clause first invoked when the formula is enacted or when increases take effect ?
A.
61
Appellees argue that we need not reach this constitutional question. They contend that Congress intended these four statutes do no more than halt funding for the salary increases under the Adjustment Act. If, as appellees contend, the statutes are appropriations measures that do not alter substantive law, the increases in all four years nevertheless are now in effect and the Government is obliged to pay them; it has simply to authorize that payment. Accordingly, appellees submit, these congressional actions violate the Compensation Clause regardless of whether Congress could have rescinded increases previously passed.
62
As a general rule, "repeals by implication are not favored." Posadas v. National City Bank, 296 U.S. 497, 503, 56 S.Ct. 349, 352, 80 L.Ed. 351 (1936). See also TVA v. Hill, 437 U.S. 153, 189, 98 S.Ct. 2279, 2299, 57 L.Ed.2d 117 (1978), and Morton v. Mancari, 417 U.S. 535, 549, 94 S.Ct. 2474, 2482, 41 L.Ed.2d 290 (1974). This rule applies with especial force when the provision advanced as the repealing measure was enacted in an appropriations bill. TVA v. Hill, supra, at 190, 98 S.Ct., at 2299. Indeed, the rules of both Houses limit the ability to change substantive law through appropriations measures. See Senate Standing Rule XVI(4); House of Representatives Rule XXI(2). Nevertheless, when Congress desires to suspend or repeal a statute in force, "[t]here can be no doubt that . . . it could accomplish its purpose by an amendment to an appropriation bill, or otherwise." United States v. Dickerson, 310 U.S. 554, 555, 60 S.Ct. 1034, 1035, 84 L.Ed. 1356 (1940). "The whole question depends on the intention of Congress as expressed in the statutes." United States v. Mitchell, 109 U.S. 146, 150, 3 S.Ct. 151, 153, 27 L.Ed. 887 (1883). See also Belknap v. United States, 150 U.S. 588, 594, 14 S.Ct. 183, 185, 37 L.Ed. 1191 (1893).23
63
In the cases now before us, we conclude that in each of the four years in question Congress intended to repeal or postpone previously authorized increases. In the statute for Year 2, Congress expressly stated that the Adjustment Act increase due the following October "shall not take effect." Pub.L. 95-66, 91 Stat. 270. Thus, the plain words of the statute reveal an intention to repeal the Adjustment Act insofar as it would increase salaries in October 1977. This reading finds support in the House Report on the bill, which repeatedly uses language such as "eliminate the expected October 1977 comparability adjustment." See H.R.Rep.No.95-458, pp. 1, 3 (1977), U.S.Code Cong. & Admin.News 1977, p. 466. The floor remarks of Senators and Representatives confirm that this construction was generally understood.24
64
The statutes in Years 1, 3, and 4, although phrased in terms of limiting funds, see supra, at 205-206, 207, 208, nevertheless were intended by Congress to block the increases the Adjustment Act otherwise would generate. Representative Shipley introduced the rider in relation to Year 1 to "preven[t] the automatic cost-of-living pay increase . . . ." 122 Cong.Rec. 28872 (1976).25 Floor remarks in both Houses reflected this view.26 In Year 3, the House Report characterized the statute as a "change [in] the application of existing law," H.R.Rep.No.95-1254, p. 31 (1978), and described its effect as creating a one-year "pay freeze," id., at 35. The Senate Report stated that the statute would "continu[e] . . . the so called 'cap' " on salaries for the next fiscal year. S.Rep.No.95-1024, p. 50 (1978). Floor debate once again expressed agreement with this construction.27 The House Report on the statute for Year 4 characterized it as "reduc[ing] Federal executive pay increases from the mandatory entitlement of 12.9 per centum to 5.5 per centum." H.R.Rep.No.96-500, p. 7 1979). The Report referred to the bill as a change in existing law. See id., at 3. Later the Conference Report stated that the statute "restricts Cost-of-Living increases to 5.5 percent" for the fiscal year just begun. H.R.Conf.Rep.No.96-513, p. 3 (1979). The floor debates also confirm this understanding.28
65
These passages indicate clearly that Congress intended to rescind these raises entirely, not simply to consign them to the fiscal limbo of an account due but not payable. The clear intent of Congress in each year was to stop for that year the application of the Adjustment Act. The issue thus resolves itself into whether Congress could do so without violating the Compensation Clause.
B
Year 1
66
The statute applying to Year 1 was signed by the President during the business day of October 1, 1976. By that time, the 4.8% increase under the Adjustment Act already had taken effect, since it was operative with the start of the month-and the new fiscal year-at the beginning of the day. The statute became law only upon the President's signing it on October 1; it therefore purported to repeal a salary increase already in force. Thus it "diminished" the compensation of federal judges.29
67
The Government contends that Congress could reduce compensation as long as it did not "discriminate" against judges, as such, during the process. That the "freeze" applied to various officials in the Legislative and the Executive Branches, as well as judges, does not save the statute, however. This is quite different from the situation in O'Malley v. Woodrough, 307 U.S. 277, 59 S.Ct. 838, 83 L.Ed. 1289 (1939). There the Court held that the Compensation Clause was not offended by an income tax levied on Article III judges as well as on all taxpayers; there was no discrimination against the plaintiff judge. Federal judges, like all citizens, must share "the material burden of the government . . . ." Id., at 282, 59 S.Ct., at 840. The inclusion in the freeze of other officials who are not protected by the Compensation Clause does not insulate a direct diminution in judges' salaries from the clear mandate of that Clause; the Constitution makes no exceptions for "nondiscriminatory" reductions.30 Accordingly, we hold that the statute with respect to Year 1, as applied to compensation of members of the certified class, violates the Compensation Clause of Art. III.
Year 2
68
Unlike the statute for Year 1, the statute for Year 2 was signed by the President before October 1, when the 7.1% raise under the Comparability Act was due to take effect. Year 2 thus confronts us squarely with the question of whether Congress may, before the effective date of a salary increase, rescind such an increase scheduled to take effect at a later date. The District Court held that by including an annual cost-of-living adjustment in the statutory definitions of the salaries of Article III judges, see supra, at 204, and n. 2, Congress made the annual adjustment, from that moment on, a part of judges' compensation for constitutional purposes. Subsequent action reducing those adjustments "diminishes" compensation within the meaning of the Compensation Clause. Relying on Evans v. Gore, 253 U.S., at 254, 40 S.Ct., at 553, the District Court held that such action reduces the amount "a judge . . . has been promised," and all amounts thus promised fall within the protection of the Clause.
69
We are unable to agree with the District Court's analysis and result. Our discussion of the Framers' debates over the Compensation Clause, supra, at 219-220, led to a conclusion that the Compensation Clause does not erect an absolute ban on all legislation that conceivably could have an adverse effect on compensation of judges.31 Rather, that provision embodies a clear rule prohibiting decreases but allowing increases, a practical balancing by the Framers of the need to increase compensation to meet economic changes, such as substantial inflation, against the need for judges to be free from undue congressional influence. The Constitution delegated to Congress the discretion to fix salaries and of necessity placed faith in the integrity and sound judgment of the elected representatives to enact increases when changing conditions demand.
70
Congress enacted the Adjustment Act based on this delegated power to fix and, periodically, increase judicial compensation. It did not thereby alter the compensation of judges; it modified only the formula for determining that compensation. Later, Congress decided to abandon the formula as to the particular years in question. For Year 2, as opposed to Year 1, the statute was passed before the Adjustment Act increases had taken effect-before they had become a part of the compensation due Article III judges. Thus, the departure from the Adjustment Act policy in no sense diminished the compensation Article III judges were receiving; it refused only to apply a previously enacted formula.32
71
A paramount-indeed, an indispensable-ingredient of the concept of powers delegated to coequal branches is that each branch must recognize and respect the limits on its own authority and the boundaries of the authority delegated to the other branches. To say that the Congress could not alter a method of calculating salaries before it was executed would mean the Judicial Branch could command Congress to carry out an announced future intent as to a decision the Constitution vests exclusively in the Congress.33 We therefore conclude that a salary increase "vests" for purposes of the Compensation Clause only when it takes effect as part of the compensation due and payable to Article III judges. With regard to Year 2, we hold that the Compensation Clause did not prohibit Congress from repealing the planned but not yet effective cost-of-living adjustment of October 1, 1977, when it did so before October 1, the time it first was scheduled to become part of judges' compensation. The statute in Year 2 thus represents a constitutionally valid exercise of legislative authority.
Year 3
72
For our purposes, the legal issues presented by the statute in Year 3 are indistinguishable from those in Year 2. Each statute eliminated-before October 1-the Adjustment Act salary increases contemplated but not yet implemented. Each statute was passed and signed by the President before the Adjustment Act increases took effect, in the case of Year 3, on September 30. For the reasons set forth in our discussion of the issues for Year 2, we hold that the statute in Year 3 did not violate the Compensation Clause.
Year 4
73
Before reaching the constitutional issues implicated in Year 4, we must resolve a problem of statutory construction. On its face, the statute in year 4 applies in terms to "executive employees, which includes Members of Congress." See supra, at 208. It does not expressly mention judges. Appellees contend that even if Congress constitutionally could freeze the salaries of Article III judges, it did not do so in this statute.
74
We are satisfied that Congress' use of the phrase "executive employees," in context, was intended to include Article III judges. The full title of the Adjustment Act is the Executive Salary Cost-of-Living Adjustment Act, but it is clear that it was intended to apply to officials in the Legislative and the Judicial Branches as well.34 The title does not control over the terms of the statute. The statutes in the three preceding years undeniably applied to judges, and we can discern no indication that the Congress chose to single them out for an exemption when it was including Executive and Legislative officials. Most important, both the Conference Report and the Chairman of the House Appropriations Committee, speaking on the floor, made explicit what already was implicit: the limiting statute would apply to judges as well. See H.R.Conf.Rep.No.96-513, p. 3 (1979); 125 Cong.Rec. 27530, 27532 (1979) (remarks of Rep. Whitten).35
75
Having concluded that the statute in Year 4 was intended to apply to judges as well as other high-level federal officials, we are confronted with a situation similar to that in Year 1. Here again, the statute purported to revoke an increase in judges' compensation after those statutes had taken effect. For the reasons governing the statute as to Year 1, we hold that the statute revoking the increase for Year 4 violated the Compensation Clause insofar as it applied to members of the certified class.
V
76
The District Court has not yet calculated the precise dollar amounts involved in Years 1 and 4, the years in which we hold the statutes violated the Compensation Clause. Further proceedings are required to resolve these questions. Accordingly, the judgment of the District Court in No. 79-983 is affirmed in part and reversed in part, the judgment in No. 79-1689 is affirmed in part and reversed in part, and the cases are remanded for further proceedings consistent with this opinion.
77
It is so ordered.
78
Justice BLACKMUN took no part in the decision of these cases.
1
The Salary Act, as amended, does not expressly prescribe what occurs if either House of Congress disapproves. See 2 U.S.C. § 359 (1976 ed., Supp. III).
2
See 28 U.S.C. § 5 (the Chief Justice and each Associate Justice of the Supreme Court); 28 U.S.C. § 44(d) (circuit judges); 28 U.S.C. § 173 (Court of Claims); 28 U.S.C. § 213 (Court of Customs and Patent Appeals); 28 U.S.C. § 252 (Court of International Trade (formerly Customs Court)).
3
These amounts exceeded the levels these salaries would have achieved had Congress left in effect the 4.8% increase from October 1, 1976. Therefore, appellees' complaint in No. 79-983 challenged the statute in Year 1 only insofar as it affected judicial compensation from October 1, 1976, to March 1, 1977. See n. 6, infra.
4
See also 123 Cong.Rec. 7126 (1977) (remarks of Sen. Scott) ("prevents people . . . from receiving two pay raises in 1 year"); id., at 21121 (remarks of Rep. Solarz) ("individuals who have already received one increase during the course of the current year should not be entitled to receive a second increase as well"); infra, at 222, and n. 24.
5
The 7% increase was computed on the salary levels as they stood after the addition of the 5.5% increase deferred from Year 3. The compounding of the two increases means that the employees affected felt a combined increase of 12.9%. This explains the additional 0.4%.
6
The plaintiffs challenged the statute in Year 1 only insofar as it applied to compensation earned from October 1, 1976, until March 1, 1977, the date the quadrennial increase under the Comparability Act took effect. See n. 3, supra.
7
For Year 1, the class was defined as all Article III judges serving during part or all of the period October 1, 1976, to March 1, 1977, the date the quadrennial increase under the Comparability Act took effect. See n. 6, supra. For Year 2, the class was defined as all Article III judges taking office prior to July 11, 1977, the date the statute was passed, and continuing in office after October 1, 1977, the date the Adjustment Act increase was due to take effect.
The case was referred to a newly appointed member of the District Court who had taken office after October 1, 1977, and thus was not a member of either class.
8
For Year 3, the class was defined as all Article III judges in office on October 1, 1978, the date of the scheduled Adjustment Act increase, and continuing in office thereafter. For Year 4, the class was defined as all Article III judges in office on October 1, 1979, the date the Adjustment Act increase took effect, and continuing in office through October 12, 1979, the date the Year 4 statute was signed.
9
This section provides in part:
"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."
10
This provision confers on the district courts and the Court of Claims concurrent jurisdiction over actions against the United States based on the Constitution when the amount in controversy does not exceed $10,000. The complaints in both No. 79-983 and No. 79-1689 state that the claims of individual members of the classes do not exceed $10,000, an allegation the Government has not disputed. See App. 9a, 62a.
11
This section provides in relevant part:
"(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
"(b) He shall also disqualify himself in the following circumstances:
* * * * *
"(4) He knows that he . . . has a financial interest in the subject matter in controversy . . .;
"(5) He . . .
"(i) Is a party to the proceeding . . . ."
12
See, e. g., ABA, Code of Judicial Conduct, Canon 3(C).
13
Section 2109 provides, in relevant part:
"If a case brought to the Supreme Court by direct appeal from a district court cannot be heard and determined because of the absence of a quorum of qualified justices, the Chief Justice of the United States may order it remitted to the court of appeals for the circuit including the district in which the case arose, to be heard and determined by that court either sitting in banc or specially constituted and composed of the three circuit judges senior in commission who are able to sit, as such order may direct. The decision of such court shall be final and conclusive. In the event of the disqualification or disability of one or more of such circuit judges, such court shall be filled as provided in chapter 15 of this title."
The second paragraph of the section provides that, in all other cases when a quorum of qualified Justices is unable to sit, the Court shall enter an order affirming the judgment extant, which shall have the precedential effect of an affirmance by an equally divided Court.
The original version of this section was designed to ensure that the parties in antitrust and Interstate Commerce Commission cases, which at that time could be appealed directly to this Court, would always have some form of appellate review. See H.R.Rep.No.1317, 78th Cong., 2d Sess., 2 (1944). Congress broadened this right in the 1948 revision of Title 28 to include all cases of direct review. H.R.Rep.No.308, 80th Cong., 1st Sess., A175-A176 (1947).
14
Rolle's Abridgment summarized this holding as follows:
"If an action is sued in the bench against all the Judges there, then by necessity they shall be their own Judges." 2 H. Rolle, An Abridgment of Many Cases and Resolutions at Common Law 93 (1668) (translation).
15
For example, in Mooers v. White, 6 Johns.Ch. 360 (N.Y.1822), Chancellor Kent continued to sit despite his brother-in-law's being a party; New York law made no provision for a substitute chancellor. See In re Leefe, 2 Barb.Ch. 39 (N.Y.1846). See also cases cited in Annot., 39 A.L.R. 1476 (1925).
16
E. g., Moulton v. Byrd, 224 Ala. 403, 140 So. 384 (1932); Olson v. Cory, 26 Cal.3d 672, 164 Cal.Rptr. 217, 609 P.2d 991 (1980); Nellius v. Stiftel, 402 A.2d 359 (Del.1978); Dacey v. Connecticut Bar Assn., 170 Conn. 520, 368 A.2d 125 (1976); Wheeler v. Board of Trustees of Fargo Consol. School Dist., 200 Ga. 323, 37 S.E.2d 322 (1946); Schward v. Ariyoshi, 57 Haw. 348, 555 P.2d 1329 (1976); Higer v. Hansen, 67 Idaho 45, 170 P.2d 411 (1946); Gordy v. Dennis, 176 Md. 106, 5 A.2d 69 (1936); State ex rel. Gardner v. Holm, 241 Minn. 125, 62 N.W.2d 52 (1954); State ex rel. West Jersey Traction Co. v. Board of Public Works, 56 N.J.L. 431, 29 A. 163 (1894); Long v. Watts, 183 N.C. 99, 110 S.E. 765 (1922); First American Bank & Trust Co. v. Ellwein, 221 N.W. 2d 509 (N.D.), cert. denied, 419 U.S. 1026, 95 S.Ct. 798, 42 L.Ed.2d 816 (1974); McCoy v. Handlin, 35 S.D. 487, 153 N.W. 361 (1915); Alamo Title Co. v. San Antonio Bar Assn., 360 S.W.2d 814 (Tex.Civ.App.), writ ref'd, no rev. error (Tex.1962).
17
E. g., Atkins v. United States, 214 Ct.Cl. 186, 556 F.2d 1028 (1977), cert. denied, 434 U.S. 1009, 98 S.Ct. 718, 54 L.Ed.2d 751 (1978); Pilla v. American Bar Assn., 542 F.2d 56 (CA8 1976); Brinkley v. Hassig, 83 F.2d 351 (CA10 1936); United States v. Corrigan, 401 F.Supp. 795 (Wyo.1975).
18
O'Malley cast doubt on the substantive holding of Evans, see n.31, infra, but the fact that the Court reached the issue indicates that it did not question this aspect of the Evans opinion.
19
In another, not unrelated context, Chief Justice Marshall's exposition in Cohens v. Virginia, 6 Wheat. 264, 5 L.Ed. 257 (1821), could well have been the explanation of the Rule of Necessity; he wrote that a court "must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by, because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid; but we cannot avoid them." Id., at 404 (emphasis added).
20
See Act of Mar. 3, 1911, ch. 231, §§ 20, 21, 36 Stat. 1090 (current version at 28 U.S.C. §§ 144, 455 (1976 ed. and Supp. III)). This statute applied only to district judges, but its existence demonstrates that the Rule of Necessity has continued in force side by side with statutory disqualification standards.
21
See, e. g., W. Carpenter, Judicial Tenure in the United States 2-3 (1918).
22
The rejection of Madison's suggestion of tying judicial salaries to the price of some commodity may have arisen from colonial Virginia's unsatisfactory experience with a similar scheme for paying the clergy with a set amount of tobacco. See generally L. Gipson, The Coming of the Revolution, 1763-1775, pp. 46-54 (1954); Scott, The Constitutional Aspects of the "Parson's Cause," 31 Pol.Sci.Q. 558 (1916). Although ultimately the tobacco statutes and the subsequent cases are more important as indications of early dissatisfaction with the Crown, the widespread publicity surrounding them surely made the Framers wary of indexing salaries by reference to some commodity.
23
Indeed, in both Mitchell and Belknap, the Court held that provisions in appropriations statutes funding certain officials' salaries at amounts below those established under previous statutes operated to repeal the relevant provisions of those statutes and set new salary levels.
24
See e. g., 123 Cong.Rec. 7095 (1977) (remarks of Sen. Byrd) ("salaries . . . shall not be increased . . . thus obviat[ing] the effect of the comparability pay provisions"); ibid. (remarks of Sen. Baker) ("forgo and rescind that adjustment"); id., at 21121 (remarks of Rep. Solarz) ("knock[s] out the comparability increase for this year"); id., at 21125 (remarks of Rep. Ammerman) ("deny the October 1 cost-of-living pay increase").
25
Representative Shipley's original amendment applied only to Members of the House of Representatives. The provision was expanded to cover all officials subject to the Salary Act. See 122 Cong.Rec. 28877 (1976). The Senate Committee studying the bill recommended the provision be deleted altogether, see S.Rep.No.94-1201, p. 2 (1976), but the Senate ultimately passed a version applying the freeze to all Members of Congress, see 122 Cong.Rec. 29132-29133 (1976). The Conference Committee recommended that the freeze apply to all Salary Act positions, see H.R.Conf.Rep.No.94-1559, p. 3 (1976). This recommendation prevailed.
26
See, e. g., 122 Cong.Rec. 28865 (1976) (remarks of Rep. Armstrong) (a "freeze of the salaries"); ibid. (remarks of Rep. Yates) ("freeze the salaries"); ibid. (remarks of Rep. McClory) ("effectively eliminate the . . . cost-of-living increases"); id., at 28870 (remarks of Rep. Derwinski) ("freezing . . . pay at its current level"); id., at 28871 (remarks of Rep. Miller) ("stopping the pay raise"); id., at 28879 (remarks of Rep. Anderson) ("block a cost-of-living pay increase"); id., at 29132 (remarks of Sen. Taft) ("effectively freeze those salaries-the employees would not be given a cost-of-living raise on October 1, or a salary increase"); id., at 29164 (remarks of Sen. Allen) ("freezing the compensation"); id., at 29172 (remarks of Sen. Allen) ("denied the upcoming increase"; "salaries frozen at the September 30, 1976, level"); id., at 29372 (remarks of Sen. Bartlett) ("automatic pay raises . . . eliminated"); id., at 31892 (remarks of Rep. Shipley) ("no October cost-of-living increases would be made"; bill "proscribe[s] . . . the October cost-of-living pay increase[s]"); id., at 31896 (remarks of Rep. Riegle) ("elimination of the cost-of-living raise").
27
See, e. g., 124 Cong.Rec. 17603 (1978) (remarks of Rep. Shipley) ("pay freeze"); id., at 17604 (remarks of Rep. Armstrong) ("automatic cost-of-living increases will not be permitted"); id., at 24375 (remarks of Sen. Sasser) ("freeze, during fiscal year 1979, the pay").
28
See e. g., 125 Cong.Rec. 27532 (1979) (remarks of Rep. Whitten) ("sharply decreas[es] such automatic increases"); id., at 27533 (remarks of Rep. Jacobs) ("rollback of the automatic 12.9-percent salary increase"); id., at 28019 (remarks of Sen. Byrd) ("put a cap on that pay increase"); id., at 28020 (remarks of Sen. Magnuson) ("this is in the nature of a cap, a limitation"); id., at 28108 (remarks of Rep. Conte) ("reduces from 12.9 to 5.5 percent the increase in pay").
29
The Government asks us to invoke the rule that the law does not recognize fractions of a day, see, e. g., Lapeyre v. United States, 17 Wall. 191, 21 L.Ed. 606 (1873); it is argued that we should treat the President's assent as having been given at the start of October 1, the same time the Year 1 increase was to take effect. It is correct that "the law generally reject[s] all fractions of a day, in order to avoid disputes." 2 W. Blackstone, Commentaries * 141. Here, however, the Government acknowledges that the statute was signed by the President after the Year 1 increase had taken effect. This Court, almost a century ago, stated:
" '[W]henever it becomes important to the ends of justice, or in order to decide upon conflicting interests, the law will look into fractions of a day, as readily as into the fractions of any other unit of time. The rule is purely one of convenience, which must give way whenever the rights of parties require it. . . . The law is not made of such unreasonable and arbitrary rules.' " Louisville v. Savings Bank, 104 U.S. 469, 474-475, 26 L.Ed. 775 (1881) (quoting Grosvenor v. Magill, 37 Ill. 239, 240-241 (1865); citations omitted).
Accord, Combe v. Pitt, 3 Burr. 1423, 97 Eng.Rep. 907 (K.B.1763); 2 C. Sands, Sutherland on Statutory Construction § 33.10 (4th ed. 1973).
In Burgess v. Salmon, 97 U.S. 381, 24 L.Ed. 1104 (1878), this Court was required to look to the time of day when a statute was enacted as compared to another and related event. This Court held that, notwithstanding the general rule, a person could not be subjected to a civil fine for violating a statute passed on the same day he engaged in the conduct but after that conduct had occurred. To impose a penalty on an act innocent when performed would render the statute an ex post facto law. Id., at 384-385. Thus Burgess dealt not so much with benefits and penalties as it did with constitutional limitations on the legislative authority of Congress and the Executive. In the context of periodic increases, the Compensation Clause, like the Ex Post Facto Clause of Art. I, § 9, places limits on Congress and the President. Because of the constitutional implications, the logic of Burgess applies to the statute for Year 1 and requires us to look to the precise time the statute became law by the President's action.
30
We need not address the question of whether evidence of an intent to influence the Judiciary would invalidate a statute that on its face does not directly reduce judicial compensation. See Evans v. Gore, 253 U.S. 245, 252, 40 S.Ct. 550, 552, 64 L.Ed. 887 (1920).
31
In O'Malley v. Woodrough, 307 U.S. 277, 59 S.Ct. 838, 83 L.Ed. 1289 (1939), this Court held that the immunity in the Compensation Clause would not extend to exempting judges from paying taxes, a duty shared by all citizens. The Court thus recognized that the Compensation Clause does not forbid everything that might adversely affect judges. The opinion concluded by saying that to the extent Miles v. Graham, 268 U.S. 501, 45 S.Ct. 601, 69 L.Ed. 1067 (1925), was inconsistent, it "cannot survive." 307 U.S., at 282-283, 59 S.Ct., at 840. Because Miles relied on Evans v. Gore, O'Malley must also be read to undermine the reasoning of Evans, on which the District Court relied in reaching its decision.
32
United States v. More (CC DC 1803), writ of error dism'd for want of jurisdiction, 3 Cranch 159, 2 L.Ed. 397 (1805), is not to the contrary. Congress had enacted a system of fees for compensating justices of the peace in the District of Columbia but subsequently abolished the fees. The Government brought an indictment against a justice of the peace who had continued to charge the fees, and the defendant demurred. The Circuit Court for the District of Columbia held that the compensation of justices of the peace in the District of Columbia was subject to the Compensation Clause and that a statute diminishing (here, abolishing) the fees violated the Constitution. Id., at 161 n. In More, the fee system was already in place as part of the justices' compensation when Congress repealed it. Here, by contrast, the increase in Year 2 had not yet become part of the compensation of Article III judges when the statute repealing it was passed and signed by the President.
33
Indeed, it would be particularly ironic if we were to bind Congress to an indexing scheme for salaries when the Framers themselves rejected an indexing proposal. See supra, at 220. Of course, indexing techniques have improved since 1787. Nevertheless, Congress' repeated rejections of specific adjustments indicates some dissatisfaction with automatic adjustments according to a predetermined formula, even if not with the formula itself.
34
Most positions covered, of course, are in the Executive Branch, which may explain the limited title.
35
Several Members of Congress acknowledged the potential constitutional problem with rolling back the salary increase already in effect for judges. See 125 Cong.Rec. 27529-27530 (1979) (remarks of Rep. Latta); id., at 27531-27533 (remarks of Rep. Whitten); id., at 27533 (remarks of Rep. Jacobs); id., at 28022 (remarks of Sen. Stevens). Representative Whitten, the Chairman of the House of Appropriations Committee, stated that "the courts will have to make a final determination regarding this issue." Id., at 27532.
| 1213
|
449 U.S. 250
101 S.Ct. 498
66 L.Ed.2d 431
DELAWARE STATE COLLEGE et al., Petitioners,v.Columbus B. RICKS.
No. 79-939.
Argued Oct. 7, 1980.
Decided Dec. 15, 1980.
Syllabus
The Board of Trustees of petitioner Delaware State College formally voted to deny tenure to respondent professor on the basis of recommendations of the College's tenure committee and Faculty Senate. During the pendency of respondent's grievance before the Board's grievance committee, the Trustees on June 26, 1974, told him that pursuant to College policy he would be offered a 1-year "terminal" contract that would expire June 30, 1975. Respondent signed the contract, and on September 12, 1974, the Board notified him that it had denied his grievance. After the appropriate Delaware agency had waived its primary jurisdiction over respondent's employment discrimination charge under Title VII of the Civil Rights Act of 1964, the Equal Employment Opportunity Commission (EEOC), on April 28, 1975, accepted his complaint for filing. More than two years later, the EEOC issued a "right to sue" letter, and respondent filed this action in the District Court on September 9, 1977. The complaint alleged, inter alia, that the College had discriminated against him on the basis of his national origin in violation of both Title VII and 42 U.S.C. § 1981. Title VII requires that a complaint be filed with the EEOC within 180 days (300 days under certain circumstances) "after the alleged unlawful employment practice occurred," 42 U.S.C. § 2000e-5(e). Under the applicable Delaware statute of limitations, cases under 42 U.S.C. § 1981 must be filed within three years of the unfavorable employment decision. The District Court dismissed both the respondent's claims as untimely. It held that the only unlawful employment practice alleged was the College's decision to deny respondent tenure, and that the limitations periods for both claims had commenced to run by June 26, 1974, when the Board officially notified him that he would be offered a 1-year "terminal" contract. The Court of Appeals reversed, holding that the limitations period for both claims did not commence to run until the "terminal" contract expired on June 30, 1975.
Held : Respondent's Title VII and § 1981 claims were untimely. Pp. 256-262.
(a) The allegations of the complaint do not support respondent's "continuing violation" argument that discrimination motivated the College not only in denying him tenure but also in terminating his employment on June 30, 1975. The only discrimination alleged occurred-and the filing limitations periods therefore commenced-at the time the tenure decision was made and communicated to respondent. This is so even though one of the effects of the denial of tenure-the eventual loss of a teaching position-did not occur until later. Pp. 256-258.
(b) Nor can the final date of employment be adopted, for policy reasons and simplicity, as the date when the limitations periods commenced. Where, as here, the only challenged practice occurs before the date of termination of employment, the limitations periods necessarily commenced to run before that date. Pp. 259-260.
(c) The date when respondent was notified that his grievance had been denied, September 12, 1974, cannot be considered to be the date of the unfavorable tenure decision. The Board had made clear well before then that it had formally rejected respondent's tenure bid, and entertaining a grievance complaining of the tenure decision does not suggest that the prior decision was in any respect tentative. Nor does the pendency of a grievance, or some other method of collateral review of an employment decision, toll the running of the limitations periods, Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229, 97 S.Ct. 441, 50 L.Ed.2d 427. Pp. 260-261.
(d) The District Court's conclusion that the limitations periods had commenced to run by June 26, 1974, when the Board notified respondent that he would be offered a "terminal" contract, was not erroneous. In light of the earlier recommendations of the tenure committee and the Faculty Senate that respondent not receive tenure and the Board's formal vote to deny tenure, the conclusion that the College had established its official position-and made that position apparent to respondent-no later than June 26, 1974, was justified. Pp. 261-262.
605 F.2d 710, reversed and remanded.
Nicholas H. Rodriguez, Dover, Del., for petitioners.
Judith E. Harris, Philadelphia, Pa., for respondent.
Justice POWELL delivered the opinion of the Court.
1
The question in this case is whether respondent, a college professor, timely complained under the civil rights laws that he had been denied academic tenure because of his national origin.
2
* Columbus Ricks is a black Liberian. In 1970, Ricks joined the faculty at Delaware State College, a state institution attended predominantly by blacks. In February 1973, the Faculty Committee on Promotions and Tenure (the tenure committee) recommended that Ricks not receive a tenured position in the education department. The tenure committee, however, agreed to reconsider its decision the following year. Upon reconsideration, in February 1974, the committee adhered to its earlier recommendation. The following month, the Faculty Senate voted to support the tenure committee's negative recommendation. On March 13, 1974, the College Board of Trustees formally voted to deny tenure to Ricks.
3
Dissatisfied with the decision, Ricks immediately filed a grievance with the Board's Educational Policy Committee (the grievance committee), which in May 1974 held a hearing and took the matter under submission.1 During the pendency of the grievance, the College administration continued to plan for Ricks' eventual termination. Like many colleges and universities, Delaware State has a policy of not discharging immediately a junior faculty member who does not receive tenure. Rather, such a person is offered a "terminal" contract to teach one additional year. When that contract expires, the employment relationship ends. Adhering to this policy, the Trustees on June 26, 1974, told Ricks that he would be offered a 1-year "terminal" contract that would expire June 30, 1975.2 Ricks signed the contract without objection or reservation on September 4, 1974. Shortly thereafter, on September 12, 1974, the Board of Trustees notified Ricks that it had denied his grievance.
4
Ricks attempted to file an employment discrimination charge with the Equal Employment Opportunity Commission (EEOC) on April 4, 1975. Under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, however, state fair employment practices agencies have primary jurisdiction over employment discrimination complaints. See 42 U.S.C. § 2000e-5(c). The EEOC therefore referred Ricks' charge to the appropriate Delaware agency. On April 28, 1975, the state agency waived its jurisdiction, and the EEOC accepted Ricks' complaint for filing. More than two years later, the EEOC issued a "right to sue" letter.
5
Ricks filed this lawsuit in the District Court on September 9, 1977.3 The complaint alleged, inter alia, that the College had discriminated against him on the basis of his national origin in violation of Title VII and 42 U.S.C. § 1981.4 The District Court sustained the College's motion to dismiss both claims as untimely. It concluded that the only unlawful employment practice alleged was the College's decision to deny Ricks' tenure, and that the limitations periods for both claims had commenced to run by June 26, 1974, when the President of the Board of Trustees officially notified Ricks that he would be offered a 1-year "terminal" contract. See n.2, supra. The Title VII claim was not timely because Ricks had not filed his charge with the EEOC within 180 days after that date. Similarly, the § 1981 claim was not timely because the lawsuit had not been filed in the District Court within the applicable 3-year statute of limitations.5
6
The Court of Appeals for the Third Circuit reversed. 605 F.2d 710 (1979). It agreed with the District Court that Ricks' essential allegation was that he had been denied tenure illegally. Id., at 711. According to the Court of Appeals, however, the Title VII filing requirement, and the statute of limitations for the § 1981 claim, did not commence to run until Ricks' "terminal" contract expired on June 30, 1975. The court reasoned:
7
" '[A] terminated employee who is still working should not be required to consult a lawyer or file charges of discrimination against his employer as long as he is still working, even though he has been told of the employer's present intention to terminate him in the future.' " Id., at 712, quoting Bonham v. Dresser Industries, Inc., 569 F.2d 187, 192 (CA3 1977), cert. denied, 439 U.S. 821, 99 S.Ct. 87, 58 L.Ed.2d 113 (1978).
8
See Egelston v. State University College at Genesco, 535 F.2d 752 (CA2 1976); cf. Noble v. University of Rochester, 535 F.2d 756 (CA2 1976).
9
The Court of Appeals believed that the initial decision to terminate an employee sometimes might be reversed. The aggrieved employee therefore should not be expected to resort to litigation until termination actually has occurred. Prior resort to judicial or administrative remedies would be "likely to have the negative side effect of reducing that employee's effectiveness during the balance of his or her term. Working relationships will be injured, if not sundered, and the litigation process will divert attention from the proper fulfillment of job responsibilities." 605 F.2d, at 712. Finally, the Court of Appeals thought that a rule focusing on the last day of employment would provide a "bright line guide both for the courts and for the victims of discrimination." Id., at 712-713. It therefore reversed and remanded the case to the District Court for trial on the merits of Ricks' discrimination claims. We granted certiorari. 444 U.S. 1070, 100 S.Ct. 1012, 62 L.Ed.2d 751 (1980).
10
For the reasons that follow, we think that the Court of Appeals erred in holding that the filing limitations periods did not commence to run until June 30, 1975. We agree instead with the District Court that both the Title VII and § 1981 claims were untimely.6 Accordingly, we reverse.
II
11
Title VII requires aggrieved persons to file a complaint with the EEOC "within one hundred and eighty days after the alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5(e).7 Similarly, § 1981 plaintiffs in Delaware must file suit within three years of the unfavorable employment decision. See n.5, supra. The limitations periods, while guaranteeing the protection of the civil rights laws to those who promptly assert their rights, also protect employers from the burden of defending claims arising from employment decisions that are long past. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 463-464, 95 S.Ct. 1716, 1722, 44 L.Ed.2d 295 (1975); see United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977).
12
Determining the timeliness of Ricks' EEOC complaint, and this ensuing lawsuit, requires us to identify precisely the "unlawful employment practice" of which he complains. Ricks now insists that discrimination motivated the College not only in denying him tenure, but also in terminating his employment on June 30, 1975. Tr. of Oral Arg. 25, 26, 31-32. In effect, he is claiming a "continuing violation" of the civil rights laws with the result that the limitations periods did not commence to run until his 1-year "terminal" contract expired. This argument cannot be squared with the allegations of the complaint. Mere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination. United Air Lines, Inc. v. Evans, supra, at 558, 97 S.Ct. at 1889. If Ricks intended to complain of a discriminatory discharge, he should have identified the alleged discriminatory acts that continued until, or occurred at the time of, the actual termination of his employment. But the complaint alleges no such facts.8
13
Indeed, the contrary is true. It appears that termination of employment at Delaware State is a delayed, but inevitable, consequence of the denial of tenure. In order for the limitations periods to commence with the date of discharge, Ricks would have had to allege and prove that the manner in which his employment was terminated differed discriminatorily from the manner in which the College terminated other professors who also had been denied tenure. But no suggestion has been made that Ricks was treated differently from other unsuccessful tenure aspirants. Rather, in accord with the College's practice, Ricks was offered a 1-year "terminal" contract, with explicit notice that his employment would end upon its expiration.
14
In sum, the only alleged discrimination occurred-and the filing limitations periods therefore commenced-at the time the tenure decision was made and communicated to Ricks.9 That is so even though one of the effects of the denial of tenure-the eventual loss of a teaching position-did not occur until later. The Court of Appeals for the Ninth Circuit correctly held, in a similar tenure case, that "[t]he proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful." Abramson v. University of Hawaii, 594 F.2d 202, 209 (1979) (emphasis added); see United Air Lines, Inc. v. Evans, 431 U.S., at 558, 97 S.Ct., at 1889. It is simply insufficient for Ricks to allege that his termination "gives present effect to the past illegal act and therefore perpetuates the consequences of forbidden discrimination." Id. at 557, 97 S.Ct. at 1888. The emphasis is not upon the effects of earlier employment decisions; rather, it "is [upon] whether any present violation exists." Id. at 558, 97 S.Ct. at 1889 (emphasis in original).
III
15
We conclude for the foregoing reasons that the limitations periods commenced to run when the tenure decision was made and Ricks was notified. The remaining inquiry is the identification of this date.
A.
16
Three dates have been advanced and argued by the parties. As indicated above, Ricks contended for June 30, 1975, the final date of his "terminal" contract, relying on a continuing-violation theory. This contention fails, as we have shown, because of the absence of any allegations of facts to support it. The Court of Appeals agreed with Ricks that the relevant date was June 30, 1975, but it did so on a different theory. It found that the only alleged discriminatory act was the denial of tenure, 605 F.2d, at 711, but nevertheless adopted the "final date of employment" rule primarily for policy reasons. Supra, at 255-256. Although this view has the virtue of simplicity,10 the discussion in Part II of this opinion demonstrates its fallacy as a rule of general application. Congress has decided that time limitations periods commence with the date of the "alleged unlawful employment practice." See 42 U.S.C. § 2000e-5(e). Where, as here, the only challenged employment practice occurs before the termination date, the limitations periods necessarily commence to run before that date.11 It should not be forgotten that time-limitations provisions themselves promoted important interests; "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." Johnson v. Railway Express Agency, Inc., 421 U.S., at 463-464, 95 S.Ct., at 1721-1722.12 See Mohasco Corp. v. Silver, 447 U.S. 807, 820, 825, 100 S.Ct. 2486, 2494, 2496, 65 L.Ed.2d 532 (1980).
B
17
The EEOC, in its amicus brief, contends in the alternative for a different date. It was not until September 12, 1974, that the Board notified Ricks that his grievance had been denied. The EEOC therefore asserts that, for purposes of computing limitations periods, this was the date of the unfavorable tenure decision.13 Two possible lines of reasoning underlie this argument. First, it could be contended that the Trustees' initial decision was only an expression of intent that did not become final until the grievance was denied. In support of this argument, the EEOC notes that the June 26 letter explicitly held out to Ricks the possibility that he would receive tenure if the Board sustained his grievance. See n.2, supra. Second, even if the Board's first decision expressed its official position, it could be argued that the pendency of the grievance should toll the running of the limitations periods.
18
We do not find either argument to be persuasive. As to the former, we think that the Board of Trustees had made clear well before September 12 that it had formally rejected Ricks' tenure bid. The June 26 letter itself characterized that as the Board's "official position." Ibid. It is apparent, of course, that the Board in the June 26 letter indicated a willingness to change its prior decision if Ricks' grievance were found to be meritorious. But entertaining a grievance complaining of the tenure decision does not suggest that the earlier decision was in any respect tentative. The grievance procedure, by its nature, is a remedy for a prior decision, not an opportunity to influence that decision before it is made.
19
As to the latter argument, we already have held that the pendency of a grievance, or some other method of collateral review of an employment decision, does not toll the running of the limitations periods. Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976).14 The existence of careful procedures to assure fairness in the tenure decision should not obscure the principle that limitations periods normally commence when the employer's decision is made. Cf. id., at 234-235, 97 S.Ct. at 446.15
C
20
The District Court rejected both the June 30, 1975, date and the September 12, 1974, date, and concluded that the limitations periods had commenced to run by June 26, 1974, when the President of the Board notified Ricks that he would be offered a "terminal" contract for the 1974-1975 school year. We cannot say that this decision was erroneous. By June 26, the tenure committee had twice recommended that Ricks not receive tenure; the Faculty Senate had voted to support the tenure committee's recommendation; and the Board of Trustees formally had voted to deny Ricks tenure.16 In light of this unbroken array of negative decisions, the District Court was justified in concluding that the College had established its official position-and made that position apparent to Ricks-no later than June 26, 1974.17
21
We therefore reverse the decision of the Court of Appeals and remand to that court so that it may reinstate the District Court's order dismissing the complaint.
22
Reversed and remanded.
23
Justice STEWART, with whom Justice BRENNAN and Justice MARSHALL join, dissenting.
24
I agree with the Court that the unlawful employment practice alleged in the respondent's complaint was a discriminatory denial of tenure, not a discriminatory termination of employment. See ante, at 257-259, and nn. 8, 9. Nevertheless, I believe that a fair reading of the complaint reveals a plausible allegation that the College actually denied Ricks' tenure on September 12, 1974, the date on which the Board finally confirmed its decision to accept the faculty's recommendation that he not be given tenure.
25
Therefore, unlike the Court, I think Ricks should be allowed to prove to the District Court that the allegedly unlawful denial of tenure occurred on that date.1 As noted by the Court, see ante, at 260, n. 13, if Ricks succeeds in this proof, his § 1981 claim would certainly be timely, and the timeliness of his Title VII claim would then depend on whether his filing of a complaint with the Delaware Department of Labor entitled him to file his EEOC charge within 300 days of the discriminatory act, rather than within the 180 days' limitation that the Court of Appeals and the District Court assumed to be applicable.2
26
A brief examination of the June 26, 1974, letter to Ricks from the Board of Trustees, quoted by the Court, ante, at 253, n. 2, provides a reasonable basis for the allegation that the College did not effectively deny Ricks' tenure until September 12. The letter informed Ricks of the Board's "intent not to renew" his contract at the end of the 1974-1975 academic year. And the letter suggested that the Board was so informing Ricks at that time only to ensure technical compliance with College and American Association of University Professors requirements in case it should later decide to abide by its earlier acceptance of the faculty's recommendation that Ricks be denied tenure. The Board expressly stated in the letter that it had "no way of knowing" what the outcome of the grievance process might be, but that a decision of the Board's Educational's Policy Committee favorable to Ricks would "of course . . . supersede any previous action taken by the Board."
27
Thus, the Board itself may have regarded its earlier actions as tentative or preliminary, pending a thorough review triggered by the respondent's request to the Committee. The Court acknowledges that this letter expresses the Board's willingness to change its earlier view on Ricks' tenure, but considers the grievance procedure under which the decision might have been changed to be a remedy for an earlier tenure decision and not a part of the overall process of making the initial tenure decision. Ricks, however, may be able to prove to the District Court that at his College the original Board response to the faculty's recommendation was not a virtually final action subject to reopening only in the most extreme cases, but a preliminary decision to advance the tenure question to the Board's grievance committee as the next conventional stage in the process.3
28
Whether this is an accurate view of the tenure process at Delaware State College is, of course, a factual question we cannot resolve here. But Ricks lost his case in the trial court on a motion to dismiss. I think that motion was wrongly granted, and that Ricks was entitled to a hearing and a determination of this factual issue. See Abramson v. University of Hawaii, 594 F.2d 202 (CA9).
29
I would, therefore, vacate the judgment of the Court of Appeals and remand the case to the District Court so that it can make this determination and then, if necessary, resolve whether Title VII allowed Ricks 300 days from the denial of tenure to file his charge with the Commission.
30
Justice STEVENS, dissenting.
31
The custom widely followed by colleges and universities of offering a 1-year terminal contract immediately after making an adverse tenure decision is, in my judgment, analogous to the custom in many other personnel relationships of giving an employee two weeks' advance notice of discharge. My evaluation of this case can perhaps best be explained by that analogy.
32
Three different reference points could arguably determine when a cause of action for a discriminatory discharge accrues: (1) when the employer decides to terminate the relationship; (2) when notice of termination is given to the employee; and (3) when the discharge becomes effective. The most sensible rule would provide that the date of discharge establishes the time when a cause of action accrues and the statute of limitations begins to run. Prior to that date, the allegedly wrongful act is subject to change; more importantly, the effective discharge date is the date which can normally be identified with the least difficulty or dispute.1
33
I would apply the same reasoning here in identifying the date on which respondent's allegedly discriminatory discharge became actionable. See Egelston v. State University College at Geneseo, 535 F.2d 752, 755 (CA2 1976). Thus under my analysis the statute of limitations began to run on June 30, 1975, the termination date of respondent's 1-year contract. In reaching that conclusion, I do not characterize the College's discharge decision as a "continuing violation"; nor do I suggest that a teacher who is denied tenure and who remains in a school's employ for an indefinite period could file a timely complaint based on the tenure decision when he or she is ultimately discharged. Rather, I regard a case such as this one, in which a college denies tenure and offers a terminal 1-year contract as part of the adverse tenure decision, as a discharge case. The decision to deny tenure in this situation is in all respects comparable to another employer's decision to discharge an employee and, in due course, to give the employee notice of the effective date of that discharge. Both the interest in harmonious working relations during the terminal period of the employment relationship,2 and the interest in certainty that is so important in litigation of this kind,3 support this result.
34
For these reasons, I would affirm the judgment of the Court of appeals.
1
According to the Court of Appeals, the grievance committee almost immediately recommended to the Board that Ricks' grievance be denied. 605 F.2d 710, 711 (CA3 1979). Nothing in the record, however, reveals the date on which the grievance committee rendered its decision.
2
The June 26 letter stated:
June 26, 1974
Dr. Columbus Ricks
Delaware State College
Dover, Delaware
Dear Dr. Ricks:
On March 13, 1974, the Board of Trustees of Delaware State College officially endorsed the recommendations of the Faculty Senate at its March 11, 1974 meeting, at which time the Faculty Senate recommended that the Board not grant you tenure.
As we are both aware, the Educational Policy Committee of the Board of Trustees has heard your grievance and it is now in the process of coming to a decision. The Chairman of the Educational Policy Committee has indicated to me that a decision may not be forthcoming until sometime in July. In order to comply with the 1971 Trustee Policy Manual and AAUP requirements with regard to the amount of time needed in proper notification of non-reappointment for non-tenured faculty members, the Board has no choice but to follow actions according to its official position prior to the grievance process, and thus, notify you of its intent not to renew your contract at the end of the 1974-75 school year.
Please understand that we have no way of knowing what the outcome of the grievance process may be, and that this action is being taken at this time in order to be consistent with the present formal position of the Board and AAUP time requirements in matters of this kind. Should the Educational Policy Committee decide to recommend that you be granted tenure, and should the Board of Trustees concur with their recommendation, then of course, it will supersede any previous action taken by the Board.
Sincerely yours,
/s/Walton H. Simpson, President
Board of Trustees of Delaware State College
3
In addition to the College itself, other defendants (petitioners in this Court) are Trustees Walton H. Simpson, William H. Davis, William G. Dix, Edward W. Hagemeyer, James C. Hardcastle, Delma Lafferty, James H. Williams, William S. Young, Burt C. Pratt, Luna I. Mishoe, and Pierre S. duPont IV (ex officio); the academic dean, M. Milford Caldwell (now deceased); the education department chairman, George W. McLaughlin; and tenure committee members Romeo C. Henderson, Harriet R. Williams, Arthur E. Bragg, Ora Bunch, Ehsan Helmy, Vera Powell, John R. Price, Herbert Thompson, W. Richard Wynder, Ulysses Washington, and Jane Laskaris.
4
Section 1981 provides:
"All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other."
5
The statute of limitations in § 1981 cases is that applicable to similar claims under state law. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975). The parties in this case agree that the applicable limitations period under Delaware law is three years.
6
Because the claims were not timely filed, we do not decide whether a claim of national origin discrimination is cognizable under § 1981.
7
Under certain circumstances, the filing period is extended to 300 days. 42 U.S.C. § 2000e-5(e); see Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980).
8
Sixteen paragraphs in the complaint describe in detail the sequence of events surrounding the tenure denial. only one paragraph even mentions Ricks' eventual departure from Delaware State, and nothing in that paragraph alleges any fact suggesting discrimination in the termination of Ricks' employment.
The complaint does allege that a variety of unusual incidents occurred during the 1974-1975 school year, including one in which the education department chairman, George W. McLaughlin, physically attacked Ricks. This incident allegedly resulted in McLaughlin's conviction for assault. Counsel for Ricks conceded at oral argument that incidents such as this were not independent acts of discrimination, Tr. of Oral Arg. 29-30, but at most evidence that could be used at a trial.
9
Complaints that employment termination resulted from discrimination can present widely varying circumstances. In this case the only alleged discriminatory act is the denial of tenure sought by a college professor, with the termination of employment not occurring until a later date. The application of the general principles discussed herein necessarily must be made on a case-by-case basis.
10
Brief for EEOC as Amicus Curiae 19-22; 605 F.2d, at 712-713.
11
The Court of Appeals also thought it was significant that a final-date-of-employment rule would permit the teacher to conclude his affairs at a school without the acrimony engendered by the filing of an administrative complaint or lawsuit. Id., at 712. It is true that "the filing of a lawsuit might tend to deter efforts at conciliation." Johnson v. Railway Express Agency, Inc., 421 U.S., at 461, 95 S.Ct., at 1720. But this is the "natural effec[t] of the choice Congress has made," ibid., in explicitly requiring that the limitations period commence with the date of the "alleged unlawful employment practice," 42 U.S.C. § 2000e-5(c).
12
It is conceivable that the Court of Appeals' "final day of employment" rule might discourage colleges even from offering a "grace period," such as Delaware State's practice of 1-year "terminal" contracts, during which the junior faculty member not offered tenure may seek a teaching position elsewhere.
13
If September 12 were the critical date, the § 1981 claim would be timely. Counting from September 12, the Title VII claim also would be timely if Ricks is entitled to 300 days, rather than 180 days, in which to file with the EEOC. In its brief before this Court, the EEOC as amicus curiae noted that Delaware is a State with its own fair employment practices agency. According to the EEOC, therefore, Ricks was entitled to 300 days to file his complaint. See n.7, supra. Because we hold that the time-limitations periods commenced to run no later than June 26, 1974, we need not decide whether Ricks was entitled to 300 days to file under Title VII. Counting from the June 26 date, Ricks' filing with the EEOC was not timely even with the benefit of the 300-day period.
14
See also B. Schlei & P. Grossman, Employment Discrimination Law 235 (1979 Supp.), and cases cited therein.
15
We do not suggest that aspirants for academic tenure should ignore available opportunities to request reconsideration. Mere requests to reconsider, however, cannot extend the limitations periods applicable to the civil rights laws.
16
We recognize, of course, that the limitations periods should not commence to run so soon that it becomes difficult for a layman to invoke the protection of the civil rights statutes. See Oscar Mayer & Co. v. Evans, 441 U.S. 750, 761, 99 S.Ct. 2066, 2073 (1979); Love v. Pullman Co., 404 U.S. 522, 526-527, 92 S.Ct. 616, 618, 30 L.Ed.2d 679 (1972). But, for the reasons we have stated, there can be no claim here that Ricks was not abundantly forewarned. In NLRB v. Yeshiva University, 444 U.S. 672, 677, 100 S.Ct. 856, 859, 63 L.Ed.2d 115 (1980), we noted that university boards of trustees customarily rely on the professional expertise of the tenured faculty, particularly with respect to decisions about hiring, tenure, termination, and promotion. Thus, the action of the Board of Trustees on March 13, 1974, affirming the faculty recommendation, was entirely predictable. The Board's letter of June 26, 1974, simply repeated to Ricks the Board's official position and acknowledged the pendency of the grievance through which Ricks hoped to persuade the Board to change that position.
17
We need not decide whether the District Court correctly focused on the June 26 date, rather than the date the Board communicated to Ricks its unfavorable tenure decision made at the March 13, 1974, meeting. As we have stated, see n. 13, supra, both the Title VII and § 1981 complaints were not timely filed even counting from the June 26 date.
1
The Court treats the District Court's determination of June 26, 1974, as the date of tenure denial as a factual finding which is not clearly erroneous. Ante, at 261-262. But it must be stressed that the District Court dismissed Ricks' claims on the pleadings, and so never made factual determinations on this or any other issue.
2
Title VII would allow Ricks 300 days if he had "initially instituted" proceedings with a local or state agency with authority to grant him relief. 42 U.S.C. § 2000e-5(e); see Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532. To benefit from this provision, however, Ricks would arguably have had to make a timely filing with the state agency. Delaware law requires that a charge of discrimination be filed with the Department of Labor within 90 days after the allegedly discriminatory practice occurred or within 120 days after the practice is discovered, whichever date is later. Del.Code Ann., Tit. 19, § 712(d)(1979). Neither the District Court nor the Court of Appeals considered the timeliness of Ricks' filing with the state agency, nor the significance of the state agency's action in waiving jurisdiction over Ricks' charge, and so these questions would be appropriately addressed on remand.
3
This view is consistent with the policies and model procedures of the American Association of University Professors, AAUP Policy Documents and Reports 15, 29 (1977); see Board of Regents v. Roth, 408 U.S. 564, 578-579, and n. 17, 92 S.Ct. 2701, 2710, and n. 17, 33 L.Ed.2d 548; Brief for AAUP as Amicus Curiae 9-10, on whose requirements the Board of Trustees in this case expressly relied in explaining its action in the June 26 letter.
1
Although few courts have had the occasion to consider the issue in the context of notice of discharge preceding actual termination, some courts have recognized that the date on which the employee actually ceases to perform services for the employer, and not a later date when the payment of benefits or accrued vacation time ceases, should determine the running of the statute of limitations. See Bonham v. Dresser Industries, Inc., 569 F.2d 187, 192 (CA3 1977), cert. denied, 439 U.S. 821, 99 S.Ct. 87, 58 L.Ed.2d 113 (1978); Krzyzewski v. Metropolitan Government of Nashville and Davidson County, 584 F.2d 802, 804-805 (CA6 1978).
2
This interest has special force in the college setting. Because the employee must file a charge with the EEOC within 180 days after the occurrence, the Court's analysis will necessitate the filing of a charge while the teacher is still employed. The filing of such a charge may prejudice any pending reconsideration of the tenure decision and also may impair the teacher's performance of his or her regular duties. Neither of these adverse consequences would be present in a discharge following a relatively short notice such as two weeks.
3
The interest in certainty lies not only in choosing the most easily identifiable date, but also in avoiding the involvement of the EEOC until the school's decision to deny tenure is final. The American Association of University Professors, as amicus curiae here, has indicated that under the "prevailing academic employment practices" of American higher education, which allow for maximum flexibility in tenure decisions, initial tenure determinations are often reconsidered, and the reconsideration process may take the better part of the terminal contract year. Brief for American Association of University Professors as Amicus Curiae 6-11.
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66 L.Ed.2d 416
101 S.Ct. 488
449 U.S. 232
FEDERAL TRADE COMMISSION et al., Petitioners,v.STANDARD OIL COMPANY OF CALIFORNIA.
No. 79-900.
Argued Oct. 15, 1980.
Decided Dec. 15, 1980.
Syllabus
The Federal Trade Commission (FTC) issued a complaint against respondent and several other major oil companies, alleging that the FTC had "reason to believe" that the companies were violating § 5 of the Federal Trade Commission Act (Act), which prohibits unfair methods of competition or unfair or deceptive acts or practices in commerce. While adjudication of the complaint before an Administrative Law Judge was still pending, respondent, having unsuccessfully sought to have the FTC withdraw the complaint, brought an action in Federal District Court, alleging that the FTC had issued its complaint without having "reason to believe" that respondent was violating the Act, and seeking an order declaring the complaint unlawful and requiring that it be withdrawn. The District Court dismissed the action. The Court of Appeals reversed, holding that the District Court could inquire whether the FTC in fact had made the determination that it had reason to believe that respondent was violating the Act, and that the issuance of the complaint was "final agency action" under § 10(c) of the Administrative Procedure Act (APA)
Held : The FTC's issuance of its complaint was not "final agency action" under § 10(c) of the APA and hence was not judicially reviewable before the conclusion of the administrative adjudication. Pp. 238-246.
(a) The issuance of the complaint was not a definitive ruling of regulation and had no legal force or practical effect upon respondent's daily business other than the disruptions that accompany any major litigation. Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681, distinguished. Immediate judicial review would serve neither efficiency nor enforcement of the Act. Pp. 239-243.
(b) Although respondent, by requesting the FTC to withdraw its complaint and awaiting the FTC's refusal to do so, may have exhausted its administrative remedy as to the averment of a "reason to believe," the FTC's refusal to withdraw the complaint does not render the complaint a "definitive" action. Such refusal does not augment the complaint's legal force or practical effect on respondent, nor does it diminish the concern for efficiency and enforcement of the Act. P. 243.
(c) The expense and disruption in defending itself, even if substantial, does not constitute irreparable injury to respondent. P. 244.
(d) Respondent's challenge to the FTC's complaint will not become "insulated" from judicial review if it is not reviewed before the FTC's adjudication concludes, since under the APA a court of appeals reviewing a cease-and-desist order has the power to review alleged unlawfulness in the issuance of an agency complaint, assuming that the issuance of the complaint is not "committed to agency discretion by law." Pp. 244-245.
(e) Since issuance of the complaint averring "reason to believe" is a step toward, and will merge in, the FTC's decision on the merits, the claim of illegality in issuance of the complaint is not subject to judicial review as a "collateral" order. Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528, distinguished. Pp. 246.
9 Cir., 596 F.2d 1381, reversed and remanded.
Sol. Gen. Wade H. McCree, Jr., Washington, D. C., for petitioners.
George A. Sears, San Francisco, Cal., for respondent.
Justice POWELL delivered the opinion of the Court.
1
This case presents the question whether the issuance of a complaint by the Federal Trade Commission is "final agency action" subject to judicial review before administrative adjudication concludes.
2
* On July 18, 1973, the Federal Trade Commission issued and served upon eight major oil companies, including Standard Oil Company of California (Socal),1 a complaint averring that the Commission had "reason to believe" that the companies were violating § 5 of the Federal Trade Commission Act, 38 Stat. 719, as amended, 15 U.S.C. § 45,2 and stating the Commission's charges in that respect.3 The Commission issued the complaint under authority of § 5(b) of the Act, 15 U.S.C. § 45(b), which provides:
3
"Whenever the Commission shall have reason to believe that any . . . person, partnership, or corporation has been or is using any unfair method of competition or unfair or deceptive act or practice in or affecting commerce, and if it shall appear to the Commission that a proceeding by it in respect thereof would be to the interest of the public, it shall issue and serve upon such person, partnership, or corporation a complaint stating its charges in that respect and containing a notice of a hearing. . . ."
4
An adjudication of the complaint's charges began soon thereafter before an Administrative Law Judge, and is still pending.
5
On May 1, 1975, Socal filed a complaint against the Commission in the District Court for the Northern District of California, alleging that the Commission had issued its complaint without having "reason to believe" that Socal was violating the Act.4 Socal sought an order declaring that the issuance of the complaint was unlawful and requiring that the complaint be withdrawn. Socal had sought this relief from the Commission and been denied.5 In support of its allegation and request, Socal recited a series of events that preceded the issuance of the complaint and several events that followed. In Socal's estimation, the only inference to be drawn from these events was that the Commission lacked sufficient evidence when it issued the complaint to warrant a belief that Socal was violating the Act.
6
The gist of Socal's recitation of events preceding the issuance of the complaint is that political pressure for a public explanation of the gasoline shortages of 1973 forced the Commission to issue a complaint against the major oil companies despite insufficient investigation. The series of events began on May 31, 1973. As of that day, the Commission had not examined any employees, documents, or books of Socal's, although the Commission had announced in December 1971, that it intended to investigate possible violations of the Federal Trade Commission Act in the petroleum industry.
7
On May 31, Senator Henry M. Jackson, then Chairman of the Senate Interior and Insular Affairs Committee and of the Permanent Investigation Subcommittee of the Senate Committee of Government Operations, requested the Commission "to prepare a report within thirty days regarding the relationship between the structure of the petroleum industry and related industries and the current and prospective shortages of petroleum products." Immediately the Commission subpoenaed three Socal officers to testify before it, and they did so in late June. This examination was the Commission's only inquiry as to Socal's books and records, and the only interview of a Socal officer, prior to the issuance of the complaint.6 On July 6, the Commission sent to Senator Jackson a "Preliminary Federal Trade Commission Staff Report on Its Investigation of the Petroleum Industry," requesting that the report not be made public because it had not yet "been evaluated or approved by the Commission." On July 9, Senator Jackson informed the Commission by letter that he intended to publish the report as a congressional committee reprint unless the Commission explained by July 13 why public release of the report would be improper. The Commission responded on July 11 that public release of the report, which the Commission characterized as "an internal staff memorandum," would be "inconsistent with [the Commission's] duty to proceed judiciously and responsibly in determining what, if any, action should be taken on the basis of the staff investigation." On July 13, Senator Jackson released the report for publication by the Senate Committee on Interior and Insular Affairs. On July 18, the Commission issued its complaint.
8
The subsequent events recited by Socal in its complaint were intended to confirm that the Commission lacked sufficient evidence before issuing its complaint to determine that it had reason to believe that Socal was violating the Act. One subsequent event was the issuance on August 27 of a report by the Office of Energy Advisor of the Department of the Treasury, concluding that the Commission's staff report was wrong in implying that the major oil companies had contrived the gasoline shortages. The report recommended that the complaint be withdrawn. A second event was Senator Jackson's statement in January 1974, at the conclusion of congressional hearings about the shortages, that he had found no "hard evidence" that the oil companies had created shortages. In addition to these expressions of doubt about the allegations of the Commission's complaint, Socal recounted the several failures of the Commission's complaint counsel in the adjudication to comply with orders of the administrative law judge to identify the witnesses and documents on which the Commission intended to rely. The complaint counsel admitted that most of the evidence and witnesses the Commission hoped to introduce were yet to be secured through discovery, and he moved to relax the Commission's procedural rules for adjudication in order to allow such extensive discovery. In certifying this motion to the Commission, the Administrative Law Judge recommended "withdrawal of this case from adjudication-that is, dismissal without prejudice-so that it may be more fully investigated." The Commission denied the complaint counsel's motion and declined to follow the Administrative Law Judge's recommendations.
9
The District Court dismissed Socal's complaint on the ground that "a review of preliminary decisions made by administrative agencies, except under most unusual circumstances, would be productive of nothing more than chaos." The Court of Appeals for the Ninth Circuit reversed. 596 F.2d 1381 (1979). It held the Commission's determination whether evidence before it provided the requisite reason to believe is "committed to agency discretion" and therefore is unreviewable according to § 10 of the Administrative Procedure Act (APA), 5 U.S.C. § 701(a)(2). The Court of Appeals held, however, that the District Court could inquire whether the Commission in fact had made the determination that it had reason to believe that Socal was violating the Act. If the District Court were to find upon remand that the Commission had issued the complaint "solely because of outside pressure or with complete absence of a 'reason to believe' determination," 596 F.2d, at 1386, then it was to order the Commission to dismiss the complaint. The Court of Appeals further held that the issuance of the complaint was "final agency action" under § 10(c) of the APA, 5 U.S.C. § 704.
10
We granted the Commission's petition for a writ of certiorari because of the importance of the questions raised by Socal's request for judicial review of the complaint before the conclusion of the adjudication. 445 U.S. 903, 100 S.Ct. 1077, 63 L.Ed.2d 318 (1980). We now reverse.
II
11
The Commission averred in its complaint that it had reason to believe that Socal was violating the Act. That averment is subject to judicial review before the conclusion of administrative adjudication only if the issuance of the complaint was "final agency action" or otherwise was "directly reviewable" under § 10(c) of the APA, 5 U.S.C. § 704. We conclude that the issuance of the complaint was neither.7
12
* The Commission's issuance of its complaint was not "final agency action." The Court observed in Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1516, 18 L.Ed.2d 681 (1967), that "[t]he cases dealing with judicial review of administrative actions have interpreted the 'finality' element in a pragmatic way." In Abbott Laboratories, for example, the publication of certain regulations by the Commissioner of Food and Drugs was held to be final agency action subject to judicial review in an action for declaratory judgment brought prior to any Government action for enforcement. The regulations required manufacturers of prescription drugs to print certain information on drug labels and advertisements. The regulations were "definitive" statements of the Commission's position, d., at 151, 87 S.Ct., at 1516, and had a "direct and immediate . . . effect on the day-to-day business" of the complaining parties. Id., at 152, 87 S.Ct., at 1517. They had "the status of law" and "immediate compliance with their terms was expected." Ibid. In addition, the question presented by the challenge to the regulations was a "legal issue . . . fit for judicial resolution." Id., at 153, 87 S.Ct., at 1518. Finally, because the parties seeking the declaratory judgment represented almost all the parties affected by the regulations, "a pre-enforcement challenge . . . [was] calculated to speed enforcement" of the relevant Act. Id., at 154, 87 S.Ct., at 1518. Taking "a similarly flexible view of finality," id., at 150, 87 S.Ct., at 1516, and in view of similar pragmatic considerations, the Court had held the issuance of administrative regulations to be "final agency action" in Columbia Broadcasting System v. United States, 316 U.S. 407, 62 S.Ct. 1194, 86 L.Ed. 1563 (1942), Frozen Food Express v. United States, 351 U.S. 40, 76 S.Ct. 569, 100 L.Ed. 910 (1956), and United States v. Storer Broadcasting Co., 351 U.S. 192, 76 S.Ct. 763, 100 L.Ed. 1081 (1956).8 The issuance of the complaint in this case, however, is materially different.
13
By its terms, the Commission's averment of "reason to believe" that Socal was violating the Act is not a definitive statement of position. It represents a threshold determination that further inquiry is warranted and that a complaint should initiate proceedings. To be sure, the issuance of the complaint is definitive on the question whether the Commission avers reason to believe that the respondent to the complaint is violating the Act.9 But the extent to which the respondent may challenge the complaint and its charges proves that the averment of reason to believe is not "definitive" in a comparable manner to the regulations in Abbott Laboratories and the cases it discussed.
14
Section 5 of the Act, 15 U.S.C. § 45(b), in conjunction with Commission regulations, 16 CFR §§ 3.41-3.46 (1980), and § 5 of the APA, 5 U.S.C. § 554 (1976 ed. and Supp. III), requires that the complaint contain a notice of hearing at which the respondent may present evidence and testimony before an administrative law judge to refute the Commission's charges. Either party to the adjudication may appeal an adverse decision of the administrative law judge to the full Commission, 5 U.S.C. § 557; 16 CFR § 3.52 (1980); see 15 U.S.C. § 45(c), which then may dismiss the complaint. See 15 U.S.C. § 45(c). If instead the Commission enters an order requiring the respondent to cease and desist from engaging in the challenged practice the respondent still is not bound by the Commission's decision until judicial review is complete or the opportunity to seek review has lapsed. 15 U.S.C. § 45(g).10 Thus, the averment of reason to believe is a prerequisite to a definitive agency position on the question whether Socal violated the Act, but itself is a determination only that adjudicatory proceedings will commence. Cf. Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (1950); Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568 (1948).
15
Serving only to initiate the proceedings, the issuance of the complaint averring reason to believe has no legal force comparable to that of the regulation at issue in Abbott Laboratories, nor any comparable effect upon Socal's daily business. The regulations in Abbott Laboratories forced manufacturers to "risk serious criminal and civil penalties" for noncompliance, 387 U.S., at 153, 87 S.Ct., at 1517, or "change all their labels, advertisements, and promotional materials; . . . destroy stocks of printed matter; and . . . invest heavily in new printing type and new supplies." Id., at 152, 87 S.Ct., at 1517. Socal does not contend that the issuance of the complaint had any such legal or practical effect, except to impose upon Socal the burden of responding to the charges made against it. Although this burden certainly is substantial, it is different in kind and legal effect from the burdens attending what heretofore has been considered to be final agency action.
16
In contrast to the complaint's lack of legal or practical effect upon Socal, the effect of the judicial review sought by Socal is likely to be interference with the proper functioning of the agency and a burden for the courts. Judicial intervention into the agency process denies the agency an opportunity to correct its own mistakes and to apply its expertise. Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457, 2466, 45 L.Ed.2d 522 (1975). Intervention also leads to piecemeal review which at the least is inefficient and upon completion of the agency process might prove to have been unnecessary. McGee v. United States, 402 U.S. 479, 484, 91 S.Ct. 1565, 1568, 29 L.Ed.2d 47 (1971); McKart v. United States, 395 U.S. 185, 195, 89 S.Ct. 1657, 1663, 23 L.Ed.2d 194 (1969). Furthermore, unlike the review in Abbott Laboratories, judicial review to determine whether the Commission decided that it had the requisite reason to believe would delay resolution of the ultimate question whether the Act was violated. Finally, every respondent to a Commission complaint could make the claim that Socal had made. Judicial review of the averments in the Commission's complaints should not be a means of turning prosecutor into defendant before adjudication concludes.
17
In sum, the Commission's issuance of a complaint averring reason to believe that Socal was violating the Act is not a definitive ruling or regulation. It had no legal force or practical effect upon Socal's daily business other than the disruptions that accompany any major litigation. And immediate judicial review would serve neither efficiency nor enforcement of the Act. These pragmatic considerations counsel against the conclusion that the issuance of the complaint was "final agency action."
B
18
Socal relies, however, upon different considerations than these in contending that the issuance of the complaint is "final agency action."
19
Socal first contends that it exhausted its administrative remedies by moving in the adjudicatory proceedings for dismissal of the complaint. By thus affording the Commission an opportunity to decide upon the matter, Socal contends that it has satisfied the interests underlying the doctrine of administrative exhaustion. Weinberger v. Salfi, supra, at 765, 95 S.Ct., at 2466. The Court of Appeals agreed. 596 F.2d, at 1387. We think, however, that Socal and the Court of Appeals have mistaken exhaustion for finality. By requesting the Commission to withdraw its complaint and by awaiting the Commission's refusal to do so, Socal may well have exhausted its administrative remedy as to the averment of reason to believe. But the Commission's refusal to reconsider its issuance of the complaint does not render the complaint a "definitive" action. The Commission's refusal does not augment the complaint's legal force or practical effect upon Socal. Nor does the refusal diminish the concerns for efficiency and enforcement of the Act.
20
Socal also contends that it will be irreparably harmed unless the issuance of the complaint is judicially reviewed immediately. Socal argues that the expense and disruption of defending itself in protracted adjudicatory proceedings constitutes irreparable harm. As indicated above, we do not doubt that the burden of defending this proceeding will be substantial. But "the expense and annoyance of litigation is 'part of the social burden of living under government.' " Petroleum Exploration, Inc. v. Public Service Comm'n, 304 U.S. 209, 222, 58 S.Ct. 834, 841, 82 L.Ed. 1294 (1938). As we recently reiterated: "Mere litigation expense, even substantial and unrecoupable cost, does not constitute irreparable injury." Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 24, 94 S.Ct. 1028, 1040, 39 L.Ed.2d 123 (1974).
21
Socal further contends that its challenge to the Commission's averment of reason to believe can never be reviewed unless it is reviewed before the Commission's adjudication concludes. As stated by the Court of Appeals, the alleged unlawfulness in the issuance of the complaint "is likely to become insulated from any review" if deferred until appellate review of a cease-and-desist order. 596 F.2d, at 1387. Socal also suggests that the unlawfulness will be "insulated" because the reviewing court will lack an adequate record and it will address only the question whether substantial evidence supported the cease-and-desist order.11
22
We are not persuaded by this speculation. The Act expressly authorizes a court of appeals to order that the Commission take additional evidence.12 15 U.S.C. § 45(c). Thus, a record which would be inadequate for review of alleged unlawfulness in the issuance of a complaint can be made adequate. We also note that the APA specifically provides that a "preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action," 5 U.S.C. § 704, and that the APA also empowers a court of appeals to "hold unlawful and set aside agency action . . . found to be . . . without observance of procedure required by law." 5 U.S.C. § 706. Thus, assuming that the issuance of the complaint is not "committed to agency discretion by law,"13 a court of appeals reviewing a cease-and-desist order has the power to review alleged unlawfulness in the issuance of a complaint. We need not decide what action a court of appeals should take if it finds a cease-and-desist order to be supported by substantial evidence but the complaint to have been issued without the requisite reason to believe. It suffices to hold that the possibility does not affect the application of the finality rule. Cf. Macauley v. Waterman S.S. Corp., 327 U.S. 540, 545, 66 S.Ct. 712, 714, 90 L.Ed. 839 (1946).
C
23
There remains only Socal's contention that the claim of illegality in the issuance of the complaint is a "collateral" order subject to review under the doctrine of Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). It argues that the Commission's issuance of the complaint averring reason to believe "fall[s] in that small class [of decisions] which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Id., at 546, 69 S.Ct., at 1225. In that diversity case, a District Court refused to apply a state statute requiring shareholders bringing a derivative suit to post a security bond for the defendant's litigation expenses. This Court held that the District Court's order was subject to immediate appellate review under 28 U.S.C. § 1291. Giving that section a "practical rather than a technical construction," the Court concluded that this order "did not make any step toward final disposition of the merits of the case and will not be merged in final judgment." 337 U.S., at 546, 69 S.Ct., at 1225.
24
Cohen does not avail Socal. What we have said above makes clear that the issuance of the complaint averring reason to believe is a step toward, and will merge in, the Commission's decision on the merits. Therefore, review of this preliminary step should abide review of the final order.
III
25
Because the Commission's issuance of a complaint averring reason to believe that Socal has violated the Act is not "final agency action" under § 10(c) of the APA, it is not judicially reviewable before administrative adjudication concludes.14 We therefore reverse the Court of Appeals and remand for the dismissal of the complaint.
26
It is so ordered.
27
Justice STEWART took no part in the consideration or decision of this case.
28
Justice STEVENS, concurring in the judgment.
29
"Agency action" is a statutory term that identifies the conduct of executive and administrative agencies that Congress intended to be reviewable in federal court.1 In general, the term encompasses formal orders, rules, and interpretive decisions that crystallize or modify private legal rights.2 Agency action that is merely "preliminary, procedural, or intermediate" is subject to judicial review at the termination of the proceeding in which the interlocutory ruling is made.3 Today the Court holds that an agency decision to initiate administrative proceedings is in the interlocutory category. In a footnote, ante, at 238-239, n.7, the Court determines whether the decision is ever reviewable and in the body of the opinion the Court determines when it is reviewable.
30
In my opinion, Congress did not intend to authorize any judicial review of decisions to initiate administrative proceedings. The definition of "agency action" found in § 551(13) plainly contemplates action that affects legal rights in some way. As the Court points out, ante, at 242, the mere issuance of a complaint has no legal effect on the respondent's rights. Although an agency's decision to file a complaint may have a serious impact on private parties who must respond to such complaints, that impact is comparable to that caused by a private litigant's decision to file a lawsuit or a prosecutor's decision to present evidence to a grand jury. A decision to initiate proceedings does not have the same kind of effect on legal rights as "an agency rule, order, license [or other sanction]."4 I am aware of nothing in the Administrative Procedure Act, or its history, that indicates that Congress intended to authorize judicial review of this type of decision.
31
The practical consequences of the Court's contrary holding-that the Commission's prelitigation decision, although not reviewable now, will be reviewable later5-confirms my opinion that the Court's decision does not reflect the intent of Congress. If the Commission ultimately prevails on the merits of its complaint, Socal surely will not be granted immunity because the Commission did not uncover the evidence of illegality until after the complaint was filed. On the other hand, if Socal prevails, there will be no occasion to review the contention that it now advances, because the only relief it seeks is a dismissal of the Commission's complaint. Socal is surely correct when it argues that unless review is available now, meaningful review can never be had.
32
The Court's casual reading of the Administrative Procedure Act is unfortunate for another reason. The disposition of a novel and important question of federal jurisdiction in a footnote will lend support to the notion that federal courts have a "carte blanche" authorizing judicial supervision of almost everything that the Executive Branch of Government may do. Because that notion has an inevitable impact on the quantity and quality of judicial service, federal judges should be especially careful to construe their own authority strictly. I therefore respectfully disagree with the Court's perfunctory analysis of the "agency action" issue. I do, however, concur in its judgment because I am persuaded that the Commission's decision to initiate a complaint is not "agency action" within the meaning of § 10(b) of the Administrative Procedure Act, 5 U.S.C. § 702.
1
The other seven respondents to the complaint were Exxon Corp., Texaco, Inc., Gulf Oil Corp., Mobil Oil Corp., Standard Oil Co. (Indiana), Shell Oil Corp., and Atlantic Richfield Co. In re Exxon Corporation, et al., Docket No. 8934.
2
Section 5 of the Act, as set forth in 15 U.S.C. § 45, provides in pertinent part:
"(a) . . . (1) Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful."
3
The Commission charged that the eight companies had "maintained and reinforced a noncompetitive market structure in the refining of crude oil into petroleum products," had "exercised monopoly power in the refining of petroleum products," and had followed "common courses of action in accommodating the needs and goals of each other throughout the petroleum industry."
4
Socal invoked federal-court jurisdiction under 5 U.S.C. § 704 and 28 U.S.C. §§ 1331, 1337, 1346, 1361, and 2201.
5
The Commission had denied Socal's motion to dismiss the complaint on February 12, 1974. The Commission also had denied Socal's motion for reconsideration, stating:
"[I]t has long been settled that the adequacy of the Commission's 'reason to believe' a violation of law has occurred and its belief that a proceeding to stop it would be in the 'public interest' are matters that go to the mental processes of the Commissioners and will not be reviewed by the courts. Once the Commission has resolved these questions and issued a complaint, the issue to be litigated is not the adequacy of the Commission's pre-complaint information or the diligence of its study of the material in question but whether the alleged violation has in fact occurred. That is the posture of the instant matter." In re Exxon Corp., 83 F.T.C. 1759, 1760 (1974).
6
On July 6, 1973, the Commission subpoenaed certain of Socal's books and records, but the complaint was issued before those records were produced. The subpoena was quashed on July 27, 1973, by the commencement of adjudication.
7
In addition to contending that the issuance of the complaint is not "final" agency action, the Commission argues that the issuance is not "agency action" under § 2(g) of the APA, 5 U.S.C. § 551(13) and that, if agency action, it is "committed to agency discretion by law" under § 10. 5 U.S.C. § 701(a)(2).
We agree with Socal and with the Court of Appeals that the issuance of the complaint is "agency action." The language of the APA and its legislative history support this conclusion. According to § 10 of the APA, 5 U.S.C. § 701(b)(2), "agency action" has the meaning given to it by § 2, 5 U.S.C. § 551. That section provides that " 'agency action' includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act," 5 U.S.C. § 551(13), and also that " 'order' means the whole or a part of a final disposition . . . of an agency in a matter other than rule making. . . ." 5 U.S.C. § 551(6). According to the legislative history of the APA:
"The term 'agency action' brings together previously defined terms in order to simplify the language of the judicial-review provisions of section 10 and to assure the complete coverage of every form of agency power, proceeding, action, or inaction. In that respect the term includes the supporting procedures, findings, conclusions, or statements or reasons or basis for the action or inaction." S.Doc. No. 248, 79th Cong., 2d Sess., 255 (1946).
We conclude that the issuance of the complaint by the Commission is "a part of a final disposition" and therefore is "agency action."
In view of our conclusion that the issuance of the complaint was not "final agency action," we do not address the question whether the issuance of a complaint is "committed to agency discretion by law." 5 U.S.C. § 701(a)(2).
8
In Columbia Broadcasting System v. United States, the Court held reviewable a regulation of the Federal Communications Commission proscribing certain contractual arrangements between chain broadcasters and local stations. The Commission did not have authority to regulate such contracts; its regulation asserted only that the Commission would not license stations which maintained such contracts. In a challenge to the regulation before any enforcement action had been brought, the Court noted that the regulations had "the force of law before their sanctions are invoked as well as after," that they were "promulgated by order of the Commission," and that "the expected conformity to them causes injury cognizable by a court of equity." 316 U.S., at 418-419, 62 S.Ct., at 1200.
In Frozen Food Express v. United States, the Court held reviewable an order of the Interstate Commerce Commission specifying commodities that were deemed not to be "agricultural . . . commodities." The carriage of such commodities exempted vehicles from ICC supervision. The order was held to be "final agency action" in a challenge brought by a carrier transporting commodities that the ICC's order had not included in its terms.
In United States v. Storer Broadcasting Co., the Court also held reviewable as "final agency action" a Federal Communications Commission regulation announcing a policy not to issue television licenses to applicants already owning five such licenses. The rulemaking was complete and "operate[d] to control the business affairs of Storer." 351 U.S., at 199, 76 S.Ct., at 768.
9
The Commission held as much in its order denying Socal's motion for reconsideration of the motion to dismiss. See n. 5, supra.
10
Possible judicial review also includes review in this Court upon a writ of certiorari. 15 U.S.C. § 45(g).
11
The Court of Appeals additionally suggested that the complaint would be "insulated" from review because the alleged unlawfulness would be moot if Socal prevailed in the adjudication. These concerns do not support a conclusion that the issuance of a complaint averring reason to believe is "final agency action." To the contrary, one of the principal reasons to await the termination of agency proceedings is "to obviate all occasion for judicial review." Supra, at 242; McGee v. United States, 402 U.S. 479, 484, 91 S.Ct. 1565, 1568, 29 L.Ed.2d 47 (1971); McKart v. United States, 395 U.S. 185, 195, 89 S.Ct. 1657, 1663, 23 L.Ed.2d 194 (1969). Thus, the possibility that Socal's challenge may be mooted in adjudication warrants the requirement that Socal pursue adjudication, not shortcut it.
12
Section 5(c), as set forth in 15 U.S.C. § 45(c), provides in pertinent part:
"If either party shall apply to the court for leave to adduce additional evidence, and shall show to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the proceeding before the Commission, the court may order such additional evidence to be taken before the Commission and to be adduced upon the hearing in such manner and upon such terms and conditions as to the court may see proper."
13
Contrary to the suggestion of Justice STEVENS in his concurring opinion, we do not hold that the issuance of the complaint is reviewable agency action. We leave open the question whether the issuance of the complaint is unreviewable because it is "committed to agency discretion by law." See n. 7, supra.
14
By this holding, we do not encourage the issuance of complaints by the Commission without a conscientious compliance with the "reason to believe" obligation in 15 U.S.C. § 45(b). The adjudicatory proceedings which follow the issuance of a complaint may last for months or years. They result in substantial expense to the respondent and may divert management personnel from their administrative and productive duties to the corporation. Without a well-grounded reason to believe that unlawful conduct has occurred, the Commission does not serve the public interest by subjecting business enterprises to these burdens.
1
Title 5 U.S.C. § 702 provides in part:
"A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof."
2
Section 701(b)(2) provides:
"For the purposes of this chapter—
* * * * *
"(2) 'person', 'rule', 'order', 'license', 'sanction', 'relief', and 'agency action' have the meanings given them by section 551 of this title." Section 551(13) provides:
" 'agency action' includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act."
3
Section 704 provides in part:
"A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action."
4
See n.2, supra. The Court's partial quotation of the definition of the term "order" in 5 U.S.C. § 551(6), see ante, at 239, n.7, implies that the Court regards the initial step in a proceeding as a "part" of the final order terminating the proceeding. In my opinion that is a rather plain misreading of the definition. An ordinary reader would interpret "part" of an order to refer to one of several paragraphs or sections in that document, not to actions that preceded the entry of the order. Under a contrary reading, presumably the Commission's action in filing a brief directed to some preliminary issue in the proceeding would be considered "part" of the agency action terminating the proceedings and therefore subject to judicial review. Section 551(6) reads, in full, as follows:
" 'order' means the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing."
5
Because judicial review of the Commission's decision is not specifically proscribed by statute, the decision to file a compliant will be reviewable later unless the Commission, by a showing of "clear and convincing" evidence, can overcome the strong presumption against a determination that its action was "committed to agency discretion" under 5 U.S.C. § 701(a)(2). See Dunlop v. Bachowski, 421 U.S. 560, 567, 95 S.Ct. 1851, 1857, 44 L.Ed.2d 377 (1975).
| 89
|
449 U.S. 268
101 S.Ct. 509
66 L.Ed.2d 446
POTOMAC ELECTRIC POWER COMPANY, Petitioner,v.DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR et al.
No. 79-816.
Argued Oct. 8, 1980.
Decided Dec. 15, 1980.
Syllabus
Under the Longshoremen's and Harbor Workers' Compensation Act, compensation for a permanent partial disability must be determined in one of two ways. First, if the injury is of a kind specifically identified in the schedule set forth in §§ 8(c)(1)-(20) of the Act, the injured employee is entitled to receive two-thirds of his average weekly wages for a specific number of weeks, regardless of whether his earning capacity has been impaired. Second, in "all other cases," § 8(c)(21) authorizes compensation equal to two-thirds of the difference between the employee's preinjury average weekly wages and his postinjury wage-earning capacity, during the period of his disability. Respondent employee (an employee covered by the Act) in the course of his employment suffered a permanent partial loss of the use of his left leg, an injury specified in the statutory schedule. But the Administrative Law Judge, rather than awarding him compensation under the schedule, allowed him the larger recovery under § 8(c)(21), and the Benefits Review Board affirmed. The Court of Appeals also affirmed, concluding that the "all other cases" language in § 8(c)(21) provided a "remedial ALTERNATIVE" MEASURE OF COMPENSATION for cases in which the scheduled benefits failed adequately to compensate for a diminution in wage-earning capabilities.
Held: Respondent employee's recovery must be limited by the statutory schedule. Pp. 273-284.
(a) There is nothing in the language of the Act itself to support the view that the reference to "all other cases" in § 8(c)(21) was intended to authorize an alternative method for computing disability benefits in certain cases of permanent partial disability already provided for in the statutory schedule. Pp. 273-274.
(b) The Act's legislative history is entirely consistent with the conclusion that it was intended to mean what it says. Pp. 275-276.
(c) The weight of judicial authority also supports a literal reading of the Act. Pp. 276-280.
(d) It is not correct to interpret the Act as guaranteeing a completely adequate remedy for all covered disabilities, but rather, like most workmen's compensation legislation, the Act represents a compromise between the competing interests of disabled laborers and their employers. The use of a schedule of fixed benefits as an exclusive remedy in certain cases is consistent with the employees' interest in receiving a prompt and certain recovery for their industrial injuries as well as with the employers' interest in having their contingent liabilities identified as precisely and as early as possible. Pp. 280-284.
196 U.S.App.D.C. 417, 606 F.2d 1324, reversed.
Richard W. Turner, Washington, D. C., for petitioner.
Elinor H. Stillman, Washington, D. C., for respondent Director, Office of Workers' Compensation Programs.
Leslie Scherr, Washington, D. C., for respondent Terry M. Cross, Jr.
Justice STEVENS delivered the opinion of the Court.
1
Under the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 44 Stat. (part 2) 1424, as amended, 33 U.S.C. §§ 901-950 (1976 ed. and Supp. III), compensation for a permanent partial disability must be determined in one of two ways. First, if the injury is of a kind specifically identified in the schedule set forth in §§ 8(c)(1)-(20) of the Act, 33 U.S.C. §§ 908(c)(1)-(20), the injured employee is entitled to receive two-thirds of his average weekly wages for a specific number of weeks, regardless of whether his earning capacity has actually been impaired. Second, in all other cases, § 8(c)(21), 33 U.S.C. § 908(c)(21), authorizes compensation equal to two-thirds of the difference between the employee's preinjury average weekly wages and his postinjury wage-earning capacity, during the period of his disability.1 The question in this case is whether a permanently partially disabled employee, entitled to compensation under the statutory schedule, may elect to receive a larger recovery under § 8(c)(21) measured by the actual impairment of wage-earning capacity caused by his injury. Although Congress could surely authorize such an election, it has not yet done so. We therefore hold that respondent Cross' recovery must be limited by the statutory schedule.
2
Cross is employed by Potomac Electric Power Co. (Pepco) as a cable splicer-a job that requires strength and agility. In 1974, he earned a total of $21,959.38, including overtime pay of $8,543.30. In December of that year, he injured his left knee in the course of his employment, thereby suffering a permanent partial loss of the use of his leg. The physical impairment is described as a 5 to 20% loss of the use of one leg, but the resulting impairment of his earning capacity is apparently in excess of 40%.2 Although Cross has retained his job, he has not been able to perform all of the strenuous duties required of a cable splicer and therefore he has received no overtime and has not qualified for certain pay increases.
3
Because he worked in the District of Columbia, respondent Cross is entitled to compensation under the LHWCA.3 It is undisputed that the injury to his leg is a "permanent partial disability" within the meaning of § 8(c) of the Act; he therefore has an unquestioned right to a compensation award measured by a fraction of his earnings for 288 weeks.4 His claim, however, is for the larger amount measured by two-thirds of the difference between his average weekly earnings before the injury and his present wage-earning capacity, multiplied by the number of weeks that his disability continues.5
4
The Administrative Law Judge allowed the larger recovery. He held that an injured employee is not required to accept the specific amount authorized by §§ 8(c)(2) and (19) for the partial loss of the use of a leg, but instead may recover an amount based on the formula set forth in § 8(c)(21) for "all other cases." Using that formula, the Administrative Law Judge found that respondent Cross' permanent loss of earning capacity amounted to approximately $130 per week, and ordered Pepco to pay him two-thirds of that amount each week for the remainder of his working life. The Benefits Review Board affirmed. Cross v. Potomac Electric Power Co., 7 BRBS 10 (1977).
5
The United States Court of Appeals for the District of Columbia Circuit also affirmed. 196 U.S.App.D.C. 417, 606 F.2d 1324 (1979). Recognizing that the Act "must be construed in light of its humanitarian objectives," and noting a "recent trend in workmen's compensation law away from the idea of exclusivity of scheduled benefits," the court concluded that the "all other cases" language in § 8(c)(21) provided a "remedial alternative" measure of compensation for cases in which "the scheduled benefits fail adequately to compensate for a diminution in [wage-earning] capabilities."6 While expressing sympathy for the result reached by the majority, one judge dissented.7
6
* The language of the Act plainly supports the view that the character of the disability determines the method of compensation. Section 8 identifies four different categories of disability and separately prescribes the method of compensation for each.8 In the permanent partial disability category, § 8(c) provides a compensation schedule which covers 20 different specific injuries. It then adds an additional subparagraph, § 8(c)(21), that applies to any injury not included within the list of specific injuries. There is no language in that additional subparagraph indicating that it was intended to provide an alternative method of compensation for the cases described in the preceding subparagraphs; quite the contrary, by its terms, subparagraph (21) is applicable "In all other cases."9
7
It is also noteworthy that the statutory direction that precedes the schedule of specifically described partial disabilities mandates that the compensation prescribed by the schedule "shall be paid to the employee, as follows."10 We are not free to read this language as though it granted the employee an election. Nor are we free to read the subsequent words "all other cases" as though they described "all of the foregoing" as well; the use of the word "other" forecloses that reading.
8
In sum, we find nothing in the statute itself to support the view that the reference to "all other cases" in § 8(c)(21) was intended to authorize an alternative method for computation of disability benefits in certain cases of permanent partial disability already provided for in the schedule.
II
9
The legislative history of the Act is entirely consistent with the conclusion that it was intended to mean what it says. Although that history contains no specific consideration of the precise question before us,11 one aspect of the Act's history is somewhat enlightening. The relevant language was enacted in 1927.12 It was patterned after a similar "scheduled benefits" provision in the New York Workmen's Compensation Law enacted in 1922.13 A few years after enactment of the LHWCA, the New York Court of Appeals was confronted with the same question of construction under the New York statute that is now presented to us under the federal statute. The New York Court of Appeals apparently considered the statutory language so clear on its face that little discussion of this issue was necessary:
10
"Obviously, the phrase 'in all other cases' signifies that the provisions of the paragraph shall apply only in cases where the injuries received are not confined to specific member or specific members." Sokolowski v. Bank of America, 261 N.Y. 57, 62, 184 N.E. 492, 494 (1933).
11
Nothing in the original legislative history of the Federal Act or in the legislative history of subsequent amendments14 indicates that Congress did not intend the plain language of the federal statute to receive the same construction as the substantially identical language of its New York ancestor.
III
12
The weight of judicial authority also supports a literal reading of the Act.
13
During the first half century of administration of the LHWCA, federal tribunals consistently construed the schedule benefits provision as exclusive. Although the exclusivity question did not explicitly arise until 1964, prior to that time evidence of loss of wages or wage-earning capacity was considered irrelevant in cases of permanent partial disability falling within the schedule provisions.15 In 1964, in Williams v. Donovan, 234 F.Supp. 135 (ED La.), aff'd, 367 F.2d 825 (CA5 1966), cert. denied, 386 U.S. 977, 87 S.Ct. 1174, 18 L.Ed.2d 139 (1967), the first federal court to address the exclusivity issue found that "the form and language of the Act" indicated that compensation under § 8(c)(21) for loss of wage-earning capacity was not available in cases covered by the schedule. 234 F.Supp., at 139. This construction of the Act went unchallenged for the next decade.16
14
It was not until 1975 that the Benefits Review Board announced its dissatisfaction with the Williams construction of the statute and concluded that claimants suffering from a permanent partial disability may elect to proceed under either the schedule or § 8(c)(21).17 The Board has since applied its construction of the Act in a series of decisions of which the instant case is a member.18 The divided opinion of the Court of Appeals is apparently the first and only federal court decision accepting that construction. The notion that the plain language of the LHWCA might not mean what it says is thus a relatively recent development surfacing for the first time almost 50 years after its enactment. The relevant judicial authority prior to 1975, although not abundant, indicates that the schedule benefits were considered exclusive.
15
While the federal decisional authority on this question is scarce, state-law authority apparently is not. The lower court cited, and the respondents rely upon the "recent trend in workmen's compensation law away from the idea of exclusivity of scheduled benefits." 196 U.S.App.D.C., at 421, 606 F.2d, at 1328.19 Although this "trend" unquestionably exists, it is neither uniform nor based entirely on cases presenting issues comparable to the precise issue before us.20 More importantly, a proper understanding of the judicial role in this case reveals that the recent trend actually supports a literal reading of the federal statute. Our task is to ascertain the congressional intent underlying the schedule benefit provisions enacted in 1927; we are not free to incorporate into those provisions subsequent state-law developments that we may consider sound as a matter of policy. In attempting to ascertain the legislative intent underlying a statute enacted over 50 years ago, the view that once "dominate[d] the field" is more enlightening than a recent state-law trend that has not motivated subsequent Congresses to amend the federal statute.21 The once dominant view is entirely consistent with a literal reading of the Act.
IV
16
Respondents suggest two reasons why this settled construction is erroneous. They submit that it does not fulfill the fundamental remedial purpose of the Act and that it may produce anomalous results that Congress probably did not intend. The first submission is not entirely accurate; the second, though theoretically correct, has insufficient force to overcome the plain language of the statute itself.
17
Respondents correctly observe that prior decisions of this Court require that the LHWCA be liberally construed in order to effectuate its remedial purposes.22 Respondents accordingly argue that the Act should be interpreted in a manner which provides a complete and adequate remedy to an injured employee. Implicit in this argument, however, is the assumption that the sole purpose of the Act was to provide disabled workers with a complete remedy for their industrial injuries. The inaccuracy of this implicit assumption undercuts the validity of respondents' argument.
18
The LHWCA, like other workmen's compensation legislation, is indeed remedial in that it was intended to provide a certain recovery for employees who are injured on the job. It imposes liability without fault and precludes the assertion of various common-law defenses that had frequently resulted in the denial of any recovery for disabled laborers. While providing employees with the benefit of a more certain recovery for work-related harms, statutes of this kind do not purport to provide complete compensation for the wage earner's economic loss.23 On the contrary, they provide employers with definite and lower limits on potential liability than would have been applicable in common-law tort actions for damages. None of the categories of disability covered by the LHWCA authorizes recovery measured by the full loss of an injured employee's earnings; even those in the most favored categories may recover only two-thirds of the actual loss of earnings. It therefore is not correct to interpret the Act as guaranteeing a completely adequate remedy for all covered disabilities. Rather, like most workmen's compensation legislation, the LHWCA represents a compromise between the competing interests of disabled laborers and their employers.24 The use of a schedule of fixed benefits as an exclusive remedy in certain cases is consistent with the employees' interest in receiving a prompt and certain recovery for their industrial injuries as well as with the employers' interest in having their contingent liabilities identified as precisely and as early as possible.
19
It is true, however, that requiring resort to the schedule may produce certain incongruous results. Unless an injury results in a scheduled disability, the employee's compensation is dependent upon proving a loss of wage-earning capacity; in contrast, even though a scheduled injury may have no actual effect on an employee's capacity to perform a particular job or to maintain a prior level of income, compensation in the schedule amount must be paid. Conversely, the schedule may seriously undercompensate some employees like respondent Cross.25 The result seems particularly unfair when his case is compared with an employee who suffers an unscheduled disability resulting in an equivalent impairment of earning capacity. Indeed, it is possible that the award for a serious temporary partial disability could exceed the amount scheduled for a permanent disability of like character.26
20
As this Court has observed in the past, it is not to be lightly assumed that Congress intended that the LHWCA produce incongruous results. Baltimore & Phila. Steamboat Co. v. Norton, 284 U.S. 408, 412-413, 52 S.Ct. 187, 188, 76 L.Ed. 366 (1932). But if "compelling language" produces incongruities, the federal courts may not avoid them by rewriting or ignoring that language. Id., at 413, 52 S.Ct., at 188. Such compelling statutory language is present in this case. See Part I, supra. The fact that it leads to seemingly unjust results in particular cases does not give judges a license to disregard it.27
21
If anomalies actually do occur with any frequency in the day-to-day administration of the Act, they provide a persuasive justification for a legislative review of the statutory compensation schedule. It would obviously be sound policy for Congress to re-examine the schedule of permanent partial disability benefits more frequently than every half century.28 In such a re-examination the extent and importance of hypothetical cases such as those described by respondents could be fairly evaluated. In this judicial proceeding, however, concern with such hypothetical cases is less compelling than sympathy for the actual plight of the individual litigant in the case before us. Nonetheless, that sympathy is an insufficient basis for approving a recovery that Congress has not authorized.
The judgment is
22
Reversed.
23
Justice BLACKMUN, dissenting.
24
The Court in this case and the dissent in the Court of Appeals argue rather persuasively (but, for me, not convincingly) that, although they reach an incongruous result, see ante, at 282-284, the statute is to be construed in favor of that incongruity and of the anomalies that concededly exist. It is said that this is so because Congress just wrote the statute that way. Now that the Court has so ruled, the Congress fortunately can remedy the anomalous situation if only it will go about doing it.
25
That, of course, is of no help or comfort to respondent Cross, the particular litigant here, who suffered the injury and who, as the Court concedes, ante, at 283, might have had a greater award had his injury been less enduring. That does not make much sense to me and, while I realize that statutory inequities occasionally exist in the area of workmen's compensation where seemingly arbitrary lines must be drawn somewhere, I cannot believe that by the language of this statute Congress intended such a result.
26
Soon after the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 44 Stat. (part 2) 1424, 33 U.S.C. §§ 901-950, became law in 1927, this Court unanimously announced the principles to be applied in resolving questions of statutory construction that arise under it:
27
"The measure before us, like recent similar legislation in many States, requires employers to make payments for the relief of employees and their dependents who sustain loss as a result of personal injuries and deaths occurring in the course of their work, whether with or without fault attributable to employers. Such laws operate to relieve persons suffering such misfortunes of a part of the burden and to distribute it to the industries and mediately to those served by them. They are deemed to be in the public interest and should be construed liberally in furtherance of the purpose for which they were enacted and, if possible, so as to avoid incongruous or harsh results." Baltimore & Phila. Steamboat Co. v. Norton, 284 U.S. 408, 414, 52 S.Ct. 187, 189, 76 L.Ed. 366 (1932).
28
See also Voris v. Eikel, 346 U.S. 328, 333, 74 S.Ct. 88, 91, 98 L.Ed. 5 (1953).
29
Today's decision departs from these principles by reaching, rather than avoiding, a harsh and incongruous result.1 It is undisputed that respondent Cross has suffered an injury that will reduce his weekly earnings by $130.13 for the rest of his working life. To compensate him for this injury, the Benefits Review Board awarded him two-thirds of his lost earnings-$86.76 per week or approximately $4,500 per year-for as long as he continues to work. Under the Court's decision, however, the most that Cross will receive is a total of about $12,800,2 less than three years' compensation as awarded by the Board. If the Board now accepts petitioner's argument that Cross has lost only 5% of the use of his leg, he will receive about $3,200, less than one year's compensation.3 Of course, if Congress really intended such a result, the Court would be powerless to change it. I believe, however, that neither the language of the statute nor its legislative history warrants the interpretation that the Court adopts.
30
The starting point, of course, is the statute's definition of "disability." Section 2(10) of the Act, 33 U.S.C. § 902(10), defines "disability" as "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment." As used in the Act, therefore, "disability" is an economic concept, rather than a medical one. An injury is not compensable under the Act unless it results in some diminution in the employee's earning power.
31
Not surprisingly, then, the amount of compensation that the Act provides depends upon the amount of wages lost by the injured employee due to his injury. A worker who suffers permanent total disability, and therefore is unable to earn any wages, receives two-thirds of his average weekly wages. § 908(a). One who suffers temporary total disability receives two-thirds of his average weekly wages as long as he remains disabled. § 908(b). One who suffers temporary partial disability receives two-thirds of the difference between his average weekly wages before the injury and his wage-earning capacity after the injury, payable as long as the disability continues, but not longer than five years. § 908(e).
32
The Act's treatment of permanent partial disability should be read against this background. As the Court notes, § 908(c) contains 20 subsections establishing compensation for permanent partial disability caused by particular injuries. That compensation is two-thirds of the worker's weekly wages for a specified number of weeks for the injury listed. Subsection (21) then provides that "[i]n all other cases in this class of disability" an employee shall receive two-thirds of the difference between his average weekly wages before the injury and his wage-earning capacity thereafter. The Court prefers to construe "other cases" to mean that the compensation specified for the injuries listed in subsections (1) to (20) is the exclusive method of compensating workers who are permanently, but partially, disabled by these injuries. I believe that "other cases" includes any case in which the worker does not wish to accept the compensation offered in subsections (1) to (20), but elects to bear the burden of proving the difference between his wages before the injury andhis wage-earning capacity afterwards.
33
This interpretation is farmore in harmony with the overall purpose of the Act than is the Court's construction. The House Committee that considered the legislation explained that workers' compensation "has come to be universally recognized as a necessity in the interest of social justice between employer and employee," and that this Act would provide an injured worker with "compensation during the period of his illness or inability to pursue his usual employment. . . ." (Emphasis added.) H.R.Rep.No.1767, 69th Cong., 2d Sess., 19-20 (1927).4 The compensation that the Court's decision provides to respondent Cross falls far short of this goal.
34
An additional purpose of the statute was to afford prompt relief to covered workers "without the delay and expense which an action at law entails." Id., at 20. The inclusion of a schedule of benefits in § 908(c) serves this goal by providing an easily ascertainable award to a person who suffers one of the scheduled injuries.5 There is no indication in the legislative history, however, that providing prompt and certain relief is to be regarded as more important than providing adequate relief, especially in a case, such as this one, in which it is undisputed that the schedule of benefits will not compensate respondent Cross for the wages he has lost and will lose because of his injury.
35
Although the Court statesthat the "weight of judicial authority" supports its view, it is able to cite only a single Federal District Court decision in point,6 namely, Williams v. Donovan, 234 F.Supp. 135 (ED La.1964), aff'd, 367 F.2d 825 (CA5 1966), cert. denied, 386 U.S. 977, 87 S.Ct. 1174, 18 L.Ed.2d 139 (1967).7 This contrasts with the consistently held view of the Benefits Review Board,8 the agency established to administer the LHWCA. Sokolowski v. Bank of America, 261 N.Y. 57, 184 N.E. 492 (1933), of course, provides scant support for today's decision. That case was decided after the LHWCA was enacted, and is an uncertain guide, at best, to the intent of the Congress that passed the Act six years earlier.
36
Thus, the anomalous results the Court's decision imposes upon respondent Cross and other claimants under the LHWCA9 are not mandated, in my view, by the statute. It is possible to construe the statute to allow a claimant seeking compensation for permanent partial disability to choose between the schedule and the provisions of § 908(c)(21). I think we should follow Baltimore & Phila. Steamboat Co. v. Norton, 284 U.S. 408, 52 S.Ct. 187, 76 L.Ed. 366 (1932), and adopt a liberal construction of the statute so as to avoid the amazingly incongruous result approved by the Court.
37
I would affirm the judgment of the Court of Appeals.
1
Section 8, as set forth in 33 U.S.C. § 908, provides, in part, as follows:
"Compensation for disability shall be paid to the employee as follows:
* * * * *
"(c) Permanent partial disability: In case of disability partial in character but permanent in quality the compensation shall be 662/3 per centum of the average weekly wages, which shall be in addition to compensation for temporary total disability or temporary partial disability paid in accordance with subdivision (b) or subdivision (e) of this section, respectively, and shall be paid to the employee, as follows:
"(1) Arm lost, three hundred and twelve weeks' compensation.
"(2) Leg lost, two hundred and eighty-eight weeks' compensation.
"(3) Hand lost, two hundred and forty-four weeks' compensation.
"(4) Foot lost, two hundred and five weeks' compensation.
"(5) Eye lost, one hundred and sixty weeks' compensation.
* * * * *
"(18) Total loss of use: Compensation for permanent total loss of use of a member shall be the same as for loss of the member.
"(19) Partial loss or partial loss of use: Compensation for permanent partial loss or loss of use of a member may be for proportionate loss or loss of use of the member.
"(20) Disfigurement: Proper and equitable compensation not to exceed $3,500 shall be awarded for serious disfigurement of the face, head, or neck or of other normally exposed areas likely to handicap the employee in securing or maintaining employment.
"(21) Other cases: In all other cases in this class of disability the compensation shall be 662/3 per centum of the difference between his average weekly wages and his wage-earning capacity thereafter in the same employment or otherwise, payable during the continuance of such partial disability, but subject to reconsideration of the degree of such impairment by the deputy commissioner on his own motion or upon application of any party in interest."
2
Cross' 1975 earnings amounted to $12,086.48, in contrast to 1974 earnings of $21,959.38.
3
The District of Columbia Workmen's Compensation Act, D.C.Code §§ 36-501 to 36-504 (1973 and Supp. V-1978), adopts the LHWCA as the workmen's compensation law for the District of Columbia. See Cardillo v. Liberty Mutual Ins. Co., 330 U.S. 469, 471, 67 S.Ct. 801, 803, 91 L.Ed. 1028 (1947). Section 1 of the Act, D.C.Code § 36-501 (1973), provides:
"The provisions of chapter 18 of title 33, U.S.Code, including all amendments that may hereafter be made thereto, shall apply in respect to the injury or death of an employee of an employer carrying on any employment in the District of Columbia, irrespective of the place where the injury or death occurs; except that in applying such provisions the term 'employer' shall be held to mean every person carrying on any employment in the District of Columbia, and the term 'employee' shall be held to mean every employee of any such person."
4
Under §§ 8(c)(2) and (18), an employee suffering a total loss of the use of one leg is entitled to receive two-thirds of his average weekly wages for a period of 288 weeks. If an injury results in a partial loss of the use of a scheduled member, as in this case, § 8(c)(19) provides that compensation is to be calculated as a proportionate loss of the use of that member. Under the schedule, Cross is therefore entitled to receive two-thirds of his average weekly wages for whatever fraction of 288 weeks represents the proportionate loss of the use of his leg caused by the knee injury. Because this case was decided under § 8(c)(21), rather than the schedule, it was not necessary for the Administrative Law Judge to determine the precise extent of respondent Cross' disability. The medical testimony indicates that he suffered a 5 to 20% loss of the use of his leg.
5
This computation is derived from § 8(c)(21), 33 U.S.C. § 908(c)(21), quoted in n. 1, supra. It should be noted that "wage-earning capacity" under § 8(c)(21) is not necessarily measured by an injured employee's actual postinjury earnings. Section 8(h) of the Act, as set forth in 33 U.S.C. § 908(h), provides:
"The wage-earning capacity of an injured employee in cases of partial disability under subdivision (c)(21) of this section or under subdivision (e) of this section shall be determined by his actual earnings if such actual earnings fairly and reasonably represent his wage-earning capacity: Provided, however, That if the employee has no actual earnings or his actual earnings do not fairly and reasonably represent his wage-earning capacity, the deputy commissioner may, in the interest of justice, fix such wage-earning capacity as shall be reasonable, having due regard to the nature of his injury, the degree of physical impairment, his usual employment, and any other factors or circumstances in the case which may affect his capacity to earn wages in his disabled condition, including the effect of disability as it may naturally extend into the future."
6
196 U.S.App.D.C., at 420-421, 606 F.2d, at 1327-1328.
7
Before analyzing the statute and its history in detail, Judge MacKinnon wrote:
"Nothing in section 8 permits an employee whose injury is unquestionably confined to one of those set out in the schedule to circumvent Congress' conclusive presumptions with a showing of lost earning capacity in excess of the specified benefit. The majority holds otherwise, and does so despite the fact that during the fifty-two year old regime of an essentially unaltered statutory scheme no federal court has ever read section 8 in that manner while a number of federal courts have adopted a contrary approach. I am not unsympathetic to the result the majority's holding achieves, but I submit that it is within the province of the legislative branch to weigh and decide whether this result ought to obtain." Id., at 422-423, 606 F.2d, at 1329-1330.
8
In addition to permanent partial disability, the Act provides for permanent total, temporary total, and temporary partial disability. The remedies for permanent and temporary total disability-essentially two-thirds of the employee's average weekly wages during the period of the disability-are set forth in subsections (a) and (b) of § 8, 33 U.S.C. §§ 908(a) and (b). The remedy for temporary partial disability-two-thirds of the difference between the employee's preinjury average weekly wages and his postinjury wage-earning capacity during the period of disability, up to a maximum of five years-is set forth in § 8(e), 33 U.S.C. § 908(e).
9
Indeed, it should be noted that the words "other cases" appear twice in subparagraph (21). See n. 1, supra.
10
33 U.S.C. § 908(c) (emphasis supplied). See n. 1, supra.
11
Judge MacKinnon's dissenting opinion reviewed the legislative history in detail; although he discovered no clear answer to the exclusivity question, see 196 U.S.App.D.C., at 425, 606 F.2d, at 1332, he found that, to the extent any conclusions could be drawn, the legislative history supported the view that the schedule and "all other cases" categories were intended to be mutually exclusive. Id., at 425-429, 606 F.2d, at 1332-1336.
12
Act of Mar. 4, 1927, 44 Stat. 1424, 33 U.S.C. § 901 et seq.
13
1922 N.Y.Laws, ch. 615, § 15(3). The 1922 Act was an extensive revision of the Workmen's Compensation Law of 1914, 1914 N.Y.Laws, ch. 41. A schedule covering particular cases of permanent partial disability initially appeared in the 1914 Act. See 1914 Laws, ch. 41, § 15(3). This schedule was retained, in a slightly revised form, in the 1922 Act. The schedule adopted by Congress in the LHWCA was substantially identical to the New York schedule of 1922. Congress selected the New York statute as the model for the LHWCA because that statute was considered one of the best workmen's compensation laws of its time. See H.R.Rep.No.1190, 69th Cong., 1st Sess., 2 (1926).
14
In 1972, Congress considered and failed to pass an amendment to § 8(c) that would have permitted an employee suffering from a permanent partial disability caused by a scheduled injury to recover both the schedule benefits and two-thirds of his lost wage-earning capacity after expiration of the schedule period. See S. 2318, § 7, 92d Cong., 2d Sess. (1971), reprinted in Longshoremen's and Harbor Workers' Compensation Act Amendments of 1972: Hearings before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 92d Cong., 2d Sess., 7 (1972); H.R. 12006, § 7, 92d Cong., 1st Sess. (1971), and H.R. 15023, § 7, 92d Cong., 2d Sess. (1972), reprinted in Longshoremen's and Harbor Workers' Compensation Act: Hearings before the Select Subcommittee on Labor of the House Committee on Education and Labor, 92d Cong., 2d Sess., 27, 38 (1972). Although Pepco relies heavily upon Congress' rejection of this proposed amendment as support for its position that schedule benefits are exclusive, this action is of marginal relevance in this case because the amendment would have authorized cumulative, not alternative, remedies. Pepco's reliance upon 1949 and 1966 amendments to the Federal Employees Compensation Act (FECA), 5 U.S.C. § 8101 et seq., is similarly misplaced. These amendments, authorizing cumulative remedies under the FECA, shed little light upon Congress' intention with respect to alternative remedies under the LHWCA. See Act of Oct. 14, 1949, ch. 691, § 104, 63 Stat. 855; Act of Sept. 6, 1966, Pub.L. 89-554, 80 Stat. 536.
15
See, e. g., Travelers Insurance Co. v. Cardillo, 225 F.2d 137, 143-144 (CA2), cert. denied, 350 U.S. 913, 76 S.Ct. 196, 100 L.Ed. 800 (1955). It should be noted, however, that this principle was announced in response to employer attempts to defeat an injured employee's claim for schedule benefits on the ground that the employee had suffered no actual loss of wages or wage-earning capacity. Prior to 1964, the federal courts apparently had not been confronted with an employee, entitled to compensation under the schedule, who attempted to secure a greater recovery by establishing an actual loss of wages or wage-earning capacity in excess of the schedule benefit.
16
Although the question arose in a significantly different context, another 1964 decision, Flamm v. Hughes, 329 F.2d 378, 380, suggests that the Court of Appeals for the Second Circuit considered the schedule and "other cases" provisions mutually exclusive.
17
Mason v. Old Dominion Stevedoring Corp., 1 BRBS 357, 363-365 (1975). In Mason, the Board rejected Williams in favor of American Mutual Insurance Co. v. Jones, 138 U.S.App.D.C. 269, 426 F.2d 1263 (1970), a decision upon which the court below also relied. See 196 U.S.App.D.C., at 421, 606 F.2d, at 1328. The opinion in Jones, however, does not address the exclusivity issue presented in this case. Rather, Jones held merely that a scheduled injury can give rise to an award for permanent total disability under § 8(a) where the facts establish that the injury prevents the employee from engaging in the only employment for which he is qualified. 138 U.S.App.D.C., at 271-272, 426 F.2d, at 1265-1266. This conclusion is entirely consistent with the statute which, in § 8(a), directs that "permanent total disability shall be determined in accordance with the facts." 33 U.S.C. § 908(a). Indeed, since the § 8(c) schedule applies only in cases of permanent partial disability, once it is determined that an employee is totally disabled the schedule becomes irrelevant. The question presented in Mason and in this case is the very different question of whether § 8(c) permits an employee suffering from a disability determined to be partial in character to choose between recovery under the schedule and recovery under § 8(c)(21). The Court of Appeals for the Fifth Circuit recently recognized this distinction when it noted that Williams and Jones are in no way inconsistent, because the former concerns partial disability while the latter concerns total disability. See Jacksonville Shipyards, Inc. v. Dugger, 587 F.2d 197, 198 (1979).
18
See Collins v. Todd Shipyards Corp., 9 BRBS 1015 (1979); Brandt v. Avondale Shipyards, 8 BRBS 698 (1978); Dugger v. Jacksonville Shipyards, Inc., 8 BRBS 552 (1978); Richardson v. Perna & Cantrell, Inc., 6 BRBS 588 (1977); Longo v. Universal Terminal & Stevedoring Corp., 2 BRBS 357 (1975). It should be noted that two of these decisions, Dugger and Longo, involved permanent total, not permanent partial, disability; therefore, comments in those decisions pertaining to the exclusivity issue are dicta. See n. 17, supra. It should also be noted that the Benefits Review Board is not a policymaking agency; its interpretation of the LHWCA thus is not entitled to any special deference from the courts. See Hastings v. Earth Satellite Corp., 202 U.S.App.D.C. 85, 94, 628 F.2d 85, 94 (1980), cert. denied, 449 U.S. 905, 101 S.Ct. 281, 66 L.Ed.2d 137; Tri-State Terminals, Inc. v. Jesse, 596 F.2d 752, 757, n. 5 (CA7 1979).
In the Board's most recent examination of the exclusivity issue, Collins v. Todd Shipyards, supra, Chairman Smith vigorously dissented from the majority's conclusion that § 8(c)(21) benefits are available for scheduled injuries. 9 BRBS, at 1027-1036. Chairman Smith acknowledged that the contrary construction could produce inequitable results, but concluded that the statutory language would support no other construction:
"The statute is not ambiguous or indefinite. It needs no strained interpretation or construction. The statutory language contained in Section 8(c) clearly indicates that the schedule awards and the Section 8(c)(21) awards are mutually exclusive. Sections 8(c)(1) through (20) set forth the provisions and conditions for making schedule awards. Section 8(c)(21) represents a clear line of demarcation from the schedule in that it applies to 'all other cases' in the permanent partial class of disability." Id., at 1027.
19
The majority quoted the following passage from a leading treatise on workmen's compensation law:
" 'Although it is difficult to speak in terms of a majority rule on this point, because of significant differences in statutory background, it can be said that at one time the doctrine of exclusiveness of schedule allowances did dominate the field. But in recent years there has developed such a strong trend in the opposite direction that one might now, with equal justification, say that the field is dominated by the view that schedule allowances should not be deemed exclusive, whether the issue is treatment of a smaller member as a percentage loss of a larger, or treatment of any scheduled loss as a partial or total disability of the body as a whole.' " 196 U.S.App.D.C., at 214-215, 606 F.2d, at 1328-1329, quoting 2 A. Larson, Workmen's Compensation Law § 58.20, pp. 10-212 to 10-214 (1976) (footnotes omitted).
20
The trend away from exclusivity identified by Professor Larson has developed, at least in part, in cases involving scheduled injuries which result in either total disability or permanent partial disability extending in effect to other parts of the body. See id., § 58.20, pp. 10-196 to 10-206, 10-214 to 10-220. We are concerned here solely with a case in which a scheduled injury, limited in effect to the injured part of the body, results in a permanent partial disability.
With respect to the limited question before us, it appears that, despite the recent trend to the contrary, a significant number of jurisdictions continue to view schedule benefits as exclusive in cases of permanent partial disability. See, e. g., E. Blair, Reference Guide to Workmen's Compensation Law § 11:07, p. 11-24 (1974); 11 W. Schneider, Workmen's Compensation § 2322(a), pp. 562-565 (Perm. ed. 1957). Indeed, Professor Larson's treatise indicates that exclusivity, although perhaps no longer the majority view, nonetheless represents the view of "many jurisdictions." See 2 A. Larson, supra, § 58.00, p. 10-164; § 58.20, pp. 10-206 to 10-212; see also id., § 58.13, p. 10-174.
21
As Professor Larson noted in the passage quoted by the court below, "at one time the doctrine of exclusiveness of schedule allowances did dominate the field." Id., § 58.20, p. 10-212, quoted in 196 U.S.App.D.C., at 421, 606 F.2d, at 1328. See n. 19, supra.
22
See, e. g., Reed v. The Yaka, 373 U.S. 410, 415, 83 S.Ct. 1349, 1353, 10 L.Ed.2d 448 (1963); Voris v. Eikel, 346 U.S. 328, 333, 74 S.Ct. 88, 91, 98 L.Ed. 5 (1953); Baltimore & Phila. Steamboat Co. v. Norton, 284 U.S. 408, 414, 52 S.Ct. 187, 189, 76 L.Ed. 366 (1932).
23
The LHWCA clearly does not attempt to compensate injured employees for their entire loss. In all four classes of disability covered by the Act, see n. 8, supra, the maximum compensation available is expressly designated to be less than an employee's actual economic loss. In this respect, the LHWCA is typical of most workmen's compensation statutes. See 1 A. Larson, supra n. 19, § 2.50, p. 11; Small, The General Structure of Law Applicable to Employee Injury and Death, 16 Vand.L.Rev. 1021, 1027-1028 (1963).
24
The compromise nature of workmen's compensation legislation is well recognized:
"Workmen's compensation acts are in the nature of a compromise or quid pro quo between employer and employee. Employers relinquish certain legal rights which the law affords to them and so, in turn, do the employees. Employers give up the common-law defenses of the fellow servant rule and assumption of risk. Employees are assured hospital and medical care and subsistence during the convalescence period. In return for a fixed schedule of payments and a fixed amount in the event of the worker's death, employers are made certain that irrespective of their fault, liability to an injured workman is limited under workmen's compensation. Employees, on the other hand, ordinarily give up the right of suit for damages for personal injuries against employers in return for the certainty of compensation payments as recompense for those injuries." 1 M. Norris, The Law of Maritime Personal Injuries § 55, p. 102 (3d ed. 1975).
See also E. Blair, supra n. 20, § 1:00, pp. 1-1 to 1-2; W. Prosser, Law of Torts 531-532 (4th ed. 1971). This Court has previously recognized that the concept of compromise is central to the LHWCA, as adopted by the District of Columbia Workmen's Compensation Act:
"A prime purpose of the Act is to provide residents of the District of Columbia with a practical and expeditious remedy for their industrial accidents and to place on District of Columbia employers a limited and determinate liability." Cardillo v. Liberty Mutual Ins. Co., 330 U.S., at 476, 67 S.Ct., at 806.
25
Under the schedule, Cross is entitled to an award of approximately $3,200 to $12,800, depending upon the ultimate conclusion with respect to the degree of his disability. See n. 4, supra. Under § 8(c)(21), in contrast, Cross was awarded $86.76 per week for the remainder of his working life, which, according to counsel in this case, could amount to well over $100,000. Brief for Petitioner 9; Tr. of Oral Arg. 10, 31, 34, 36. This dramatic disparity may be partially attributable to the fact that Cross received an exceptional amount of overtime compensation in the year preceding his injury.
26
It is possible that, had Cross' disability been temporary in duration, he might have been entitled to a larger recovery than is available under the schedule for his permanent disability. On the basis of the evidence presented below, the maximum award available to Cross under the schedule is approximately $12,800. Because compensation for temporary partial disability under § 8(e) is based upon lost wage-earning capacity rather than a schedule, Cross could have received approximately $22,400 for a temporary partial disability, assuming that the loss of wage-earning capacity demonstrated in this case was found to continue for the 5-year maximum temporary partial disability period. See 33 U.S.C. § 908(e).
27
As THE CHIEF JUSTICE, writing for the Court, stated in another case in which plain statutory langauge led to a seemingly incongruous result:
"Our individual appraisal of the wisdom or unwisdom of a particular course consciously selected by Congress is to be put aside in the process of interpreting a statute. Once the meaning of an enactment is discerned and its constitutionality determined, the judicial process comes to an end." TVA v. Hill, 437 U.S. 153, 194, 98 S.Ct. 2279, 2302, 57 L.Ed.2d 117 (1978).
28
Compensation for permanent partial disability apparently presents particularly complex and troublesome problems in the workmen's compensation field. See generally Burton, Permanent Partial Disabilities and Workers' Compensation, 53 J.Urb.L. 853 (1976). Such problems are appropriately solved by legislative, not judicial, action. Although § 8(c) has been amended in minor respects since its enactment, the present schedule is substantially identical to the schedule included in the Act in 1927.
1
The Court's decision also rejects the consistent interpretation of the Benefits Review Board, the agency which administers the LHWCA. In four cases, in addition to this one, the Board has ruled that the schedule of benefits set out in §§ 908(c)(1) to (20) is not the exclusive method of compensation for an employee who suffers permanent partial disability from a scheduled injury. Collins v. Todd Shipyards Corp., 9 BRBS 1015 (1979); Brandt v. Avondale Shipyards, Inc., 8 BRBS 698 (1978); Richardson v. Perna & Cantrell, Inc., 6 BRBS 588 (1977); Mason v. Old Dominion Stevedoring Corp., 1 BRBS 357 (1975); Cf. American Mutual Ins. Co. v. Jones, 138 U.S.App.D.C. 269, 426 F.2d 1263 (1970); Dugger v. Jacksonville Shipyards, 8 BRBS 552 (1978), aff'd, 587 F.2d 197 (CA5 1979); Longo v. Universal Terminal & Stevedoring Corp., 2 BRBS 357 (1975) (employee who suffers permanent total disability due to a scheduled injury is not limited tocompensation provided by the schedule).
2
The Administrative LawJudge found that respondent Cross' average weekly wage was $332.48. The schedule of benefits provides that a worker who completely loses the use of a leg shall receive two-thirds of his average weekly wage for 288 weeks. § 908(c)(2). Because Cross lost no more than 20% of the use of his leg, the most he can recover under the schedule is 20% of the compensation awarded for the total loss of the use of a leg. § 908(c)(19). Therefore, the maximum amount available to him under theschedule is $332.48 x 2/3 x 288 x 20% = $12,767.23.
3
$332.48 x 2/3 x 288 x 5% = $3,191.81.
4
It is significant that this language appears in the House Committee's Report, since that Committee amended the bill to provide for the schedule of benefits after it had passed in the Senate without a schedule. See 67 Cong.Rec.10614 (1926).
5
Compare S.Rep.No.836, 81st Cong., 1st Sess., 17 (1949),discussing an amendment that provides a schedule of benefits, similar to that con-
tained in the LHWCA, for the Federal Employees Compensation Act(FECA):
"Under the present act an employee may receive compensation to the extent of 662/3 percent of whatever loss he has sustained in wage-earning capacity as caused by the injury. Unless the injury results in wage loss, no compensation can be paid. The absence of a schedule covering members and functions of the body has presented two principal difficulties, the first of which is the extreme difficulty in determining fairly and objectively the precise extent to which a particular physical impairment diminishes the injured employee'swage-earning capacity."
The Court of Appeals appropriately noted that on occasion the schedule may overcompensate a claimant. For example, a lawyer who loses an arm due to an accident at work may not suffer any diminution in his earning ability, but he would be eligible for compensation under the schedule. 196 U.S.App.D.C. 417, 421, n. 28, 606 F.2d 1324, 1328, n. 28 (1979). To this extent, the schedule is an exception to the principle that disability is an economic concept rather than a medical one, but it is an exception that Congress deliberately chose to make. In addressing the second of the "principal difficulties" presented by the then absence of a schedule in the FECA, the Senate Report concluded:
"A particular physical impairment to a member or function of the body does not always cause a proportional reduction in earning capacity. An employee having a loss of a member or function may be able to return to employment without apparent wage loss. In that event, notwithstanding the severe physical loss to him, he may not under the present act be paid compensation for his physical impairment. It is understandable that employees with such losses expect some form of indemnity for their loss." S.Rep.No.836, at 17.
In relying upon this legislative history of the FECA, I do not mean to suggest that that history is part of the legislative history of the LHWCA. As the Court notes, ante, at 275, the legislative history of the LHWCA is silent concerning the reasons why Congress included a schedule. Although Congress' intent in this matter cannot be discerned with absolute certainty, it is plausible that its reasons for adopting a schedule for the FECA were the same as its reasons for having one for the LHWCA.
6
The other federal cases cited by the Court are clearly distinguishable. In Flamm v. Hughes, 329 F.2d 378 (CA2 1964), the court rejected a claim that it was unconstitutional for Congress to provide a schedule for some injuries, but not for others. The plaintiff, however, was dissatisfied with the award obtained under § 908(c)(21), and hoped to obtain a larger award from a schedule. The Court did not address the question whether the schedule provides an exclusive remedy for a claimant who can prove a wage loss greater than that specified by the schedule. The Court acknowledges that Travelers Ins. Co. v. Cardillo, 225 F.2d 137 (CA2), cert. denied, 350 U.S. 913, 76 S.Ct. 196, 100 L.Ed. 800 (1955), which held that proof of lost wages is irrelevant when an employee seeks to recover under the schedule, did not decide the question before us. Ante, at 277, n.15.
7
The one paragraph per curiam affirming the District Court's decision in Williams does not discuss the exclusivity issue.
8
See n. 1, supra.
9
The inadequate compensation awarded to respondent Cross is only one of a number of peculiarities resulting from today's decision. Under the rule announced by the Court, a person who suffers a temporary partial disability may receive more compensation than one who suffers a like but permanent partial disability, even though the latter injury is obviously more serious and will cause a greater loss of earnings. In this case, if Cross' injury were a temporary partial disability, he would be entitled to receive two-thirds of his lost earning capacity for a maximum of five years. § 908(e). Thus, he could receive a total of about $22,400 ($86 per week for five years), an amount almost twice as large as the maximum compensation that the Court now allows him for his permanent partial disability. "It may not reasonably be assumed that Congress intended to require payment of more compensation for a lesser disability than for a greater one including the lesser. Nothing less than compelling language would justify such a construction of the Act." Baltimore & Phila. Steamboat Co. v. Norton, 284 U.S. 408, 413, 52 S.Ct. 187, 188, 76 L.Ed. 366 (1932).
Today's decision also creates a significant disincentive forthe seriously injured workers who otherwise might wish to return to work. The courts and the Benefits Review Board have held that a worker who is unable to do any work as the result of a scheduled injury may be compensated for permanent total disability, and the Court does not question this rule. See ante, at 277-278, n. 17. A worker who has been permanently and totally disabled receives two-thirds of his average weekly wages. § 908(a). A worker who takes a low-paying job because a scheduled injury makes him unable to work at his old job will be considered permanently partially disabled. His compensation will be limited to the scheduled amount, even though that amount may be insufficient to make up the difference between his former earnings and his earnings at the new job. Such a worker will learn quickly that it is to his advantage not to attempt to do any work. See Mason v. Old Dominion Stevedoring Corp., 1 BRBS, at 365; Brandt v. Avondale Shipyards, Inc., 8 BRBS, at701-702.
| 78
|
66 L.Ed.2d 513
101 S.Ct. 549
449 U.S. 292
UNITED STATESv.DARUSMONT et ux.
No. 80-243.
Jan. 12, 1981.
PER CURIAM.
1
Appellees instituted this federal income tax refund suit, claiming that the 1976 amendments of the minimum tax provisions contained in §§ 56 and 57 of the Internal Revenue Code of 1954, 26 U.S.C. §§ 56 and 57, could not be applied to a transaction that had taken place in 1976, prior to the enactment of the amendments, without violating the Due Process Clause of the Fifth Amendment.
2
Appellees prevailed in the District Court. The United States has taken an appeal to this Court pursuant to 28 U.S.C. § 1252, which authorizes a direct appeal from the final judgment of a court of the United States holding an Act of Congress unconstitutional in any civil action to which the United States is a party. And a direct appeal may be taken when, as here, a federal statute has been held unconstitutional as applied to a particular circumstance. Fleming v. Rhodes, 331 U.S. 100, 67 S.Ct. 1140, 91 L.Ed. 1368 (1947). See United States v. Christian Echoes National Ministry, Inc., 404 U.S. 561, 563, 92 S.Ct. 663, 30 L.Ed.2d 716 (1972).
3
* The appellees, E. M. Darusmont and B. L. Darusmont, are husband and wife. Mrs. Darusmont is a party to this action solely because she and her husband filed a joint federal income tax return for the calendar year 1976. We hereinafter sometimes refer to the appellees in the singular, either as "appellee" or as "taxpayer."
4
In April 1976, Mr. Darusmont was notified by his employer that he was to be transferred from Houston, Tex., to Bakersfield, Cal. Appellee, accordingly, undertook to dispose of his Houston home. That home was a triplex. One of the three units was occupied by the Darusmonts; taxpayer rented the other two. Appellee retained a real estate firm to list the property and to give him advice as to the most advantageous way to sell it. The firm suggested various alternatives (sale as separate condominium units, or as a whole, and either for cash or on the installment basis). The firm and appellee discussed the income tax consequences of each alternative, including the tax on capital gain, the installment method of reporting, and the possibility of deferring a portion of any capital gain by the timely purchase of a replacement home in California.
5
After considering the several possible methods of structuring the sale, and after computing the projected income tax consequences of each method, appellee decided on an outright sale. That sale was effected on July 15, 1976, for cash. This resulted in a long-term capital gain to the taxpayer. Because, however, appellee purchased a replacement residence in California, he was able, under § 1034 of the Code, 26 U.S.C. § 1034, to defer recognition of that portion of the gain attributable to the unit of the Texas house that the Darusmonts had occupied. Appellee's recognized gain on the sale of the other two units was $51,332. After taking into account the deduction of 50% of net capital gain then permitted by § 1202 of the Code, 26 U.S.C. § 1202, appellee included the remainder of the gain in his reported taxable income. The Darusmonts timely filed their joint federal income tax return for the calendar year 1976. That return showed a tax of $25,384, which was paid.
6
The present controversy concerns $2,280, the portion of appellee's 1976 income tax liability attributable to the minimum tax imposed by § 56 of the Code on items of tax preference as defined in § 57. These minimum tax provisions, which impose a tax in addition to the regular income tax, first appeared with the enactment of the Tax Reform Act of 1969, Pub. L. 91-172, § 301, 83 Stat. 580. Originally, the minimum tax equaled 10% of the amount by which the aggregate of enumerated items of tax preference exceeded the sum of a $30,000 exemption plus the taxpayer's regular income tax liability. For an individual, one of the items of tax preference was the deduction under § 1202 for net capital gain. See § 57(a)(9)(A). Thus, appellee's § 1202 deduction for 1976 for 50% of the capital gain recognized on the sale of the two units of the Texas triplex was an item of tax preference. If the statute's original formulation, with its base of $30,000 plus the regular income tax liability, had been retained in the statute for 1976, appellee would not have owed any minimum tax as a result of the sale of the Houston house.
7
On October 4, 1976, however, the President signed the Tax Reform Act of 1976, Pub. L. 94-455, 90 Stat. 1520. Section 301 of that Act, 90 Stat. 1549, amended § 56(a) of the Code so as to increase the rate of the minimum tax and to reduce the amount of the exemption to $10,000 or one-half of the taxpayer's regular income tax liability (with certain adjustments), whichever was the greater. Section 301(g)(1), 90 Stat. 1553, with exceptions not pertinent here, then provided that "the amendments made by this section shall apply to items of tax preference for taxable years beginning after December 31, 1975." It is this stated effective date that creates the issue now in controversy for, in a certain sense, the October 4, 1976, amendment of § 56 operated "retroactively" to cover the portion of 1976 prior to that date. A result of the statutory change of October 4 was that appellee was subjected to the now contested minimum tax of $2,280 on the sale of the Texas house the preceding July 15.
8
A proper claim for refund of the minimum tax so paid was duly filed with the Internal Revenue Service. Upon the denial of that claim, the Darusmonts instituted this refund suit in the United States District Court for the Eastern District of California. Taxpayer argued that the 1976 amendments could not be applied constitutionally to a transaction fully consummated prior to their enactment. He further argued that had he known that the sale of the house would have resulted in liability for the minimum tax, he could have structured the sale so as to avoid the tax. He has conceded, however, that when he was considering the various ways in which he could dispose of the Texas property, he was not aware of the existence of the minimum tax.
9
The District Court entered judgment in favor of appellee. It held that the application of the 1976 amendments to a transaction consummated in 1976 prior to October 4 subjected appellee "to a new, separate and distinct tax," and was "so arbitrary and oppressive as to be a denial of due process" guaranteed by the Fifth Amendment. App. to Juris. Statement 3a; 80-2 USTC ¶ 9671, p. 85,208, 47 AFTR 2d ¶ 81-366, p. 81-519. We note that the District Court's ruling is in conflict with the later decision of the United States Court of Appeals for the Eighth Circuit in Buttke v. Commissioner, 625 F.2d 202 (1980), aff'g 72 T.C. 677 (1979).1
II
10
In enacting general revenue statutes, Congress almost without exception has given each such statute an effective date prior to the date of actual enactment. This was true with respect to the income tax provisions of the Tariff Act of Oct. 3, 1913, and the successive Revenue Acts of 1916 through 1938.2 It was also true with respect to the Internal Revenue Codes of 1939 and 1954.3 Usually the "retroactive" feature has application only to that portion of the current calendar year preceding the date of enactment, but each of the Revenue Acts of 1918 and 1926 was applicable to an entire calendar year that had expired preceding enactment. This "retroactive" application apparently has been confined to short and limited periods required by the practicalities of producing national legislation. We may safely say that it is a customary congressional practice.
11
The Court consistently has held that the application of an income tax statute to the entire calendar year in which enactment took place does not per se violate the Due Process Clause of the Fifth Amendment. See Stockdale v. Insurance Companies, 20 Wall. 323, 331, 332, 22 L.Ed. 348 (1874); id., at 341 (dissenting opinion); Brushaber v. Union Pacific R. Co., 240 U.S. 1, 20, 365 S.Ct. 236, 242, 60 L.Ed. 493 (1916); Cooper v. United States, 280 U.S. 409, 411, 50 S.Ct. 164, 74 L.Ed. 516 (1930); Milliken v. United States, 283 U.S. 15, 21, 51 S.Ct. 324, 326, 75 L.Ed. 809 (1931); Reinecke v. Smith, 289 U.S. 172, 175, 53 S.Ct. 570, 572, 77 L.Ed. 1109 (1933); United States v. Hudson, 299 U.S. 498, 500-501, 57 S.Ct. 309, 310, 81 L.Ed. 370 (1937); Welch v. Henry, 305 U.S. 134, 146, 148-150, 59 S.Ct. 121, 125, 126-127, 83 L.Ed. 87 (1938); Fernandez v. Wiener, 326 U.S. 340, 355, 66 S.Ct. 178, 186, 90 L.Ed. 116 (1945). See also Ballard, Retroactive Federal Taxation, 48 Harv.L.Rev. 592 (1935); Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 Harv.L.Rev. 692, 706-711 (1960).
12
Justice Miller succinctly stated the principle a century ago in writing for the Court in Stockdale, supra:
13
"The right of Congress to have imposed this tax by a new statute, although the measure of it was governed by the income of the past year, cannot be doubted; much less can it be doubted that it could impose such a tax on the income of the current year, though part of that year had elapsed when the statute was passed." 20 Wall., at 331.
14
Justice Van Devanter in writing for the Court in Hudson, supra, similarly approved the congressional practice:
15
"As respects income tax statutes it long has been the practice of Congress to make them retroactive for relatively short periods so as to include profits from transactions consummated while the statute was in process of enactment, or within so much of the calendar year as preceded the enactment; and repeated decisions of this Court have recognized this practice and sustained it as consistent with the due process clause of the Constitution." 299 U.S., at 500, 57 S.Ct., at 309.
16
The Court has stated the underlying rationale for allowing this "retroactivity":
17
"Taxation is neither a penalty imposed on the taxpayer nor a liability which he assumes by contract. It is but a way of apportioning the cost of government among those who in some measure are privileged to enjoy its benefits and must bear its burdens. Since no citizen enjoys immunity from that burden, its retroactive imposition does not necessarily infringe due process, and to challenge the present tax it is not enough to point out that the taxable event, the receipt of income, antedated the statute." Welch v. Henry, 305 U.S., at 146-147, 59 S.Ct., at 125-126.
18
Judge Learned Hand also commented upon the point and set forth the answer to the constitutional argument:
19
"Nobody has a vested right in the rate of taxation, which may be retroactively changed at the will of Congress at least for periods of less than twelve months; Congress has done so from the outset. . . . The injustice is no greater than if a man chance to make a profitable sale in the months before the general rates are retroactively changed. Such a one may indeed complain that, could he have foreseen the increase, he would have kept the transaction unliquidated, but it will not avail him; he must be prepared for such possibilities, the system being already in operation. His is a different case from that of one who, when he takes action, has no reason to suppose that any transactions of the sort will be taxed at all." Cohan v. Commissioner, 39 F.2d 540, 545 (CA2 1930).
20
Appellee concedes that the Court "has held that a retroactive income tax statute does not violate the 'due process' clause of the Constitution per se." Motion to Affirm 6. Appellee asserts, however, that three tests have been developed for determining whether a particular tax is so harsh and oppressive as to be a denial of due process, namely, whether the taxpayer could have altered his behavior to avoid the tax if it could have been anticipated by him at the time the transaction was effected; whether the taxpayer had notice of the tax when he engaged in the transaction; and whether the tax is a new tax and not merely an increase in the rate of an existing income tax. Appellee argues that the altered minimum tax fits within these three tests.
21
In support of the first proposition, appellee cites Blodgett v. Holden, 275 U.S. 142, 48 S.Ct. 105, 72 L.Ed. 206 (1927), modified, 276 U.S. 594 (1928), and Untermyer v. Anderson, 276 U.S. 440, 48 S.Ct. 353, 72 L.Ed. 645 (1928). These, however, are gift tax cases, and the gifts in question were made and completely vested before the enactment of the taxing statute. We do not regard them as controlling authority with respect to any retroactive feature of a federal income tax. See Welch v. Henry, 305 U.S., at 147-148, 59 S.Ct., at 125-126.
22
Regarding his second test, appellee states that he had no notice, either actual or constructive, of the forthcoming October changes in the minimum tax when he sold the triplex in July and that, as a consequence, the retroactive imposition of the tax after the sale was arbitrary, harsh, and oppressive. Assuming, for purposes of argument, that personal notice is relevant, appellee is hardly in a position to claim surprise at the 1976 amendments to the minimum tax. The proposed increase in rate had been under public discussion for almost a year before its enactment. See H.R.Rep.No. 94-658, pp. 130-132 (1975); S.Rep.No. 94-938, pp. 108-114 (1976), U.S.Code Cong. & Admin.News 1976, p. 2897. The Tax Reform Act of 1976 reflected a compromise between the House and Senate proposals. Both bills, however, provided that the changes in the minimum tax were to be effective for taxable years beginning after 1975. Appellee, therefore, had ample advance notice of the increase in the effective minimum rate.
23
Appellee's "new tax" argument is answered completely by the fact that the 1976 amendments to the minimum tax did not create a new tax. To be sure, the minimum tax is described in the statute, § 56(a), as one "[i]n addition to" the regular income tax. But the minimum tax provision was imposed in 1969, and one of the original items of tax preference subjected to the minimum tax was the untaxed portion of any net long-term capital gain. 83 Stat. 582.
24
Appellee's position is far different from that of the individual who, as Judge Hand stated in the language quoted above, "has no reason to suppose that any transactions of the sort will be taxed at all." The 1976 changes affected appellee only by decreasing the allowable exemption and increasing the percentage rate of tax. "Congress intended these changes to raise the effective tax rate on tax preference items. . . ." Staff of the Joint Committee on Taxation, General Explanation of the Tax Reform Act of 1976, 94th Cong., 2d Sess., 105 (Comm.Print 1976). Congress possessed ample authority to make this kind of change effective as of the beginning of the year of enactment. We are not persuaded by appellee's proffered distinction between his case and Buttke v. Commissioner, 625 F.2d 202 (CA8 1980), that the taxpayer in Buttke, unlike appellee, would have incurred a tax anyway under the prior form of the statute. See Estate of Lewis v. Commissioner, 40 TCM 78, ¶ 80,106 P-H Memo TC (1980) (appeal pending CA5).
25
We think Cooper v. United States, 280 U.S. 409, 50 S.Ct. 164, 74 L.Ed. 516 (1930), is particularly close to this case. There the taxpayer, on November 7, 1921, sold stock acquired by gift from her husband a week earlier. On November 23, however, the Revenue Act of 1921 was approved and became law. The new Act provided that the income tax basis of property received by gift after December 31, 1920, was the same as the donor's basis, instead of being the fair market value of the property at the time of the gift, the rule which had theretofore prevailed. The taxpayer sought to avoid the lower carryover basis in computing her gain on the sale, and argued that the new provision should not be applied "to transactions fully completed before enactment of the statute." Id., at 411, 50 S.Ct. at 164. This Court, however, rejected that contention, saying, ibid.:
26
"That the questioned provision can not be declared in conflict with the Federal Constitution merely because it requires gains from prior but recent transactions to be treated as part of the taxpayer's gross income has not been open to serious doubt since Brushaber v. Union Pacific R. Co., 240 U.S. 1 [36 S.Ct. 236, 60 L.Ed. 493] and Lynch v. Hornby, 247 U.S. 339 [38 S.Ct. 543, 62 L.Ed. 1149]."
27
The judgment of the United States District Court for the Eastern District of California is therefore reversed, and the case is remanded to that court with directions to enter judgment for the United States.
28
It is so ordered.
1
The Tax Court consistently has adhered to this position. See Estate of Kearns v. Commissioner, 73 T.C. 1223 (1980); Westwick v. Commissioner, 38 TCM 1269, ¶ 79,329 P-H Memo TC (1979) (appeal pending CA10); Estate of Lewis v. Commissioner, 40 TCM 78, ¶ 80,106 P-H Memo TC (1980) (appeal pending CA5); Schopp v. Commissioner, 40 TCM 275, ¶ 80,148 P-H Memo TC (1980); Witte v. Commissioner, 40 TCM 1259, ¶ 80,393 P-H Memo TC (1980).
Other rulings adverse to the taxpayer on this issue are Appendrodt v. United States, 490 F.Supp. 490 (WD Pa. 1980); Metzger v. United States, No. 78-0346-S (SD Cal. Feb. 16, 1979) (appeal pending CA9).
2
Tariff Act of October 3, 1913, § II, D 38 Stat. 168; Revenue Act of 1916, §§ 8(a) and (b), 13(a) and (b), 39 Stat. 761, 770, 771; War Revenue Act of 1917, §§ 1, 2, 4, 40 Stat. 300-302; Revenue Act of 1918, § 200, 40 Stat. 1058; Revenue Act of 1921, § 200(1), 42 Stat. 227; Revenue Act of 1924, § 200(a), 43 Stat. 254; Revenue Act of 1926, § 200(a), 44 Stat. (part 2) 10; Revenue Act of 1928, §§ 1, 48(a), 45 Stat. 795, 807; Revenue Act of 1932, §§ 1, 48(a), 47 Stat. 173, 187; Revenue Act of 1934, § 1, 48 Stat. 683; Revenue Act of 1935, 49 Stat. 1014; Revenue Act of 1936, § 1, 49 Stat. 1652; Revenue Act of 1937, 50 Stat. 813; Revenue Act of 1938, § 1, 52 Stat. 452.
3
Internal Revenue Code of 1939, § 1, 53 Stat. 4; Internal Revenue Code of 1954, § 7851(a)(1)(A), 68A Stat. 919.
| 1112
|
449 U.S. 302
101 S.Ct. 633
66 L.Ed.2d 521
ALLSTATE INSURANCE COMPANY, Petitioner,v.Lavina HAGUE, Personal Representative of Hague's Estate.
No. 79-938.
Argued Oct. 6, 1980.
Decided Jan. 13, 1981.
Rehearing Denied March 2, 1981.
See 450 U.S. 971, 101 S.Ct. 1494.
Syllabus
Respondent's husband died of injuries suffered when a motorcycle on which he was a passenger was struck by an automobile. The accident occurred in Wisconsin near the Minnesota border. The operators of both vehicles were Wisconsin residents, as was the decedent, who, however, had been employed in Minnesota and had commuted daily to work from Wisconsin. Neither vehicle operator carried valid insurance, but the decedent held a policy issued by petitioner covering three automobiles owned by him and containing an uninsured motorist clause insuring him against loss incurred from accidents with uninsured motorists, but limiting such coverage to $15,000 for each automobile. After the accident, respondent moved to and became a resident of Minnesota, and was subsequently appointed in that State as personal representative of her husband's estate. She then brought an action in a Minnesota court seeking a declaration under Minnesota law that the $15,000 uninsured motorist coverage on each of her late husband's three automobiles could be "stacked" to provide total coverage of $45,000. Petitioner defended on the ground that whether the three uninsured motorist coverages could be stacked should be determined by Wisconsin law, since the insurance policy was delivered in Wisconsin, the accident occurred there, and all persons involved were Wisconsin residents at the time of the accident. The trial court, interpreting Wisconsin law to disallow stacking, concluded that Minnesota's choice-of-law rules required the application of Minnesota law permitting stacking, and granted summary judgment for respondent. The Minnesota Supreme Court affirmed.
Held : The judgment is affirmed. Pp. 307-320; 322-331.
Minn., 289 N.W.2d 43, affirmed.
Justice BRENNAN, joined by Justice WHITE, Justice MARSHALL, and Justice BLACKMUN, concluded that Minnesota has a significant aggregation of contacts with the parties and the occurrence, creating state interests, such that application of its law is neither arbitrary nor fundamentally unfair, and, accordingly, the choice of law by the Minnesota Supreme Court does not violate the Due Process Clause of the Fourteenth Amendment or the Full Faith and Credit Clause. Pp. 307-320.
(a) Respondent's decedent was a member of Minnesota's work force. The State of employment has police power responsibilities towards nonresident employees that are analogous to those it has towards residents, as such employees use state services and amenities and may call upon state facilities in appropriate circumstances. Also, the State's interest in its commuting nonresident employees, such as the respondent's decedent, reflects a state concern for the safety and well-being of its work force and the concomitant effect on Minnesota employers. That the decedent was not killed while commuting to work or while in Minnesota does not dictate a different result, since vindication of the rights of the estate of a Minnesota employee is an important state concern. Nor does the decedent's residence in Wisconsin constitutionally mandate application of Wisconsin law to the exclusion of forum law. Employment status is not a sufficiently less important status than residence, when combined with the decedent's daily commute across state lines and the other Minnesota contacts present, to prohibit the choice-of-law result in this case on constitutional grounds. Pp. 313-317.
(b) Petitioner was at all times present and doing business in Minnesota. By virtue of such presence, petitioner can hardly claim unfamiliarity with the laws of the host jurisdiction and surprise that the state courts might apply forum law to litigation in which the company is involved. Moreover, such presence gave Minnesota an interest in regulating the company's insurance obligations insofar as they affected both a Minnesota resident and court-appointed representative (respondent) and a longstanding member of Minnesota's work force (respondent's decedent). Pp. 317-318.
(c) Respondent became a Minnesota resident prior to institution of the instant litigation. Such residence and subsequent appointment in Minnesota as personal representative of her late husband's estate constitute a Minnesota contact which gives Minnesota an interest in respondent's recovery. Pp. 318-319.
Justice STEVENS concluded:
1. The Full Faith and Credit Clause did not require Minnesota, the forum State, to apply Wisconsin law to the contract-interpretation question presented. Although the Minnesota courts' decision to apply Minnesota law was unsound as a matter of conflicts law, no threat to Wisconsin's sovereignty ensued from allowing the substantive question as to the meaning of the insurance contract to be determined by the law of another State. Pp. 322-326.
2. The Due Process Clause of the Fourteenth Amendment did not prevent Minnesota from applying its own law. Neither the "stacking" rule itself nor Minnesota's application of it to these litigants raised any serious question of fairness. Nor did the Minnesota courts' decision to apply this rule violate due process because that decision frustrated the contracting parties' reasonable expectations. The decision was consistent with due process because it did not result in unfairness to either litigant, nor because Minnesota had an interest in the plaintiff as resident or the decedent as employee. Pp. 326-331.
Mark M. Nolan, St. Paul, Minn., for petitioner.
Andreas F. Lowenfeld, New York City, for respondent.
Justice BRENNAN announced the judgment of the Court and delivered an opinion, in which Justice WHITE, Justice MARSHALL, and Justice BLACKMUN joined.
1
This Court granted certiorari to determine whether the Due Process Clause of the Fourteenth Amendment1 or the Full Faith and Credit Clause of Art. IV, § 1,2 of the United States Constitution bars the Minnesota Supreme Court's choice of substantive Minnesota law to govern the effect of a provision in an insurance policy issued to respondent's decedent. 444 U.S. 1070, 100 S.Ct. 1012, 62 L.Ed.2d 750 (1980).
2
* Respondent's late husband, Ralph Hague, died of injuries suffered when a motorcycle on which he was a passenger was struck from behind by an automobile. The accident occurred in Pierce County, Wis., which is immediately across the Minnesota border from Red Wing, Minn. The operators of both vehicles were Wisconsin residents, as was the decedent, who, at the time of the accident, resided with respondent in Hager City, Wis., which is one and one-half miles from Red Wing. Mr. Hague had been employed in Red Wing for the 15 years immediately preceding his death and had commuted daily from Wisconsin to his place of employment.
3
Neither the operator of the motorcycle nor the operator of the automobile carried valid insurance. However, the decedent held a policy issued by petitioner Allstate Insurance Co. covering three automobiles owned by him and containing an uninsured motorist clause insuring him against loss incurred from accidents with uninsured motorists. The uninsured motorist coverage was limited to $15,000 for each automobile.3
4
After the accident, but prior to the initiation of this lawsuit, respondent moved to Red Wing. Subsequently, she married a Minnesota resident and established residence with her new husband in Savage, Minn. At approximately the same time, a Minnesota Registrar of Probate appointed respondent personal representative of her deceased husband's estate. Following her appointment, she brought this action in Minnesota District Court seeking a declaration under Minnesota law that the $15,000 uninsured motorist coverage on each of her late husband's three automobiles could be "stacked" to provide total coverage of $45,000. Petitioner defended on the ground that whether the three uninsured motorist coverages could be stacked should be determined by Wisconsin law, since the insurance policy was delivered in Wisconsin, the accident occurred in Wisconsin, and all persons involved were Wisconsin residents at the time of the accident.
5
The Minnesota District Court disagreed. Interpreting Wisconsin law to disallow stacking, the court concluded that Minnesota's choice-of-law rules required the application of Minnesota law permitting stacking. The court refused to apply Wisconsin law as "inimical to the public policy of Minnesota" and granted summary judgment for respondent.4
6
The Minnesota Supreme Court, sitting en banc, affirmed the District Court.5 The court, also interpreting Wisconsin law to prohibit stacking,6 applied Minnesota law after analyzing the relevant Minnesota contacts and interests within the analytical framework developed by Professor Leflar.7 See Leflar, Choice-Influencing Considerations in Conflicts Law, 41 N.Y.U.L.Rev. 267 (1966). The state court, therefore, examined the conflict-of-laws issue in terms of (1) predictability of result, (2) maintenance of interstate order, (3) simplification of the judicial task, (4) advancement of the forum's governmental interests, and (5) application of the better rule of law. Although stating that the Minnesota contacts might not be, "in themselves, sufficient to mandate application of [Minnesota] law,"8 289 N.W.2d 43, 49 (1978), under the first four factors, the court concluded that the fifth factor-application of the better rule of law-favored selection of Minnesota law. The court emphasized that a majority of States allow stacking and that legal decisions allowing stacking "are fairly recent and well considered in light of current uses of automobiles." Ibid. In addition, the court found the Minnesota rule superior to Wisconsin's "because it requires the cost of accidents with uninsured motorists to be spread more broadly through insurance premiums than does the Wisconsin rule." Ibid. Finally, after rehearing en banc,9 the court buttressed its initial opinion by indicating "that contracts of insurance on motor vehicles are in a class by themselves" since an insurance company "knows the automobile is a movable item which will be driven from state to state." 289 N.W.2d, at 50 (1979). From this premise the court concluded that application of Minnesota law was "not so arbitrary and unreasonable as to violate due process." Ibid.
II
7
It is not for this Court to say whether the choice-of-law analysis suggested by Professor Leflar is to be preferred or whether we would make the same choice-of-law decision if sitting as the Minnesota Supreme Court. Our sole function is to determine whether the Minnesota Supreme Court's choice of its own substantive law in this case exceeded federal constitutional limitations. Implicit in this inquiry is the recognition, long accepted by this Court, that a set of facts giving rise to a lawsuit, or a particular issue within a lawsuit, may justify, in constitutional terms, application of the law of more than one jurisdiction. See, e. g. Watson v. Employers Liability Assurance Corp., 348 U.S. 66, 72-73, 75 S.Ct. 166, 169-170, 99 L.Ed. 74 (1954); n.11, infra. See generally Clay v. Sun Insurance Office, Ltd., 377 U.S. 179, 181-182, 84 S.Ct. 1197, 1198, 12 L.Ed. 229 (1964) (hereinafter cited as Clay II ). As a result, the forum State may have to select one law from among the laws of several jurisdictions having some contact with the controversy.
8
In deciding constitutional choice-of-law questions, whether under the Due Process Clause or the Full Faith and Credit Clause,10 this Court has traditionally examined the contacts of the State, whose law was applied, with the parties and with the occurrence or transaction giving rise to the litigation. See Clay II, supra, at 183, 84 S.Ct., at 1199. In order to ensure that the choice of law is neither arbitrary nor fundamentally unfair, seeAlaska Packers Assn. v. Industrial Accident Comm'n, 294 U.S. 532, 542, 55 S.Ct. 518, 521, 79 L.Ed. 1044 (1935), the Court has invalidated the choice of law of a State which has had no significant contact or significant aggregation of contacts, creating state interests, with the parties and the occurrence or transaction.11
9
Two instructive examples of such invalidation are Home Ins. Co. v. Dick, 281 U.S. 397, 50 S.Ct. 338, 74 L.Ed. 926 (1930), and John Hancock Mutual Life Ins. Co. v. Yates, 299 U.S. 178, 57 S.Ct. 129, 81 L.Ed. 106 (1936). In both cases, the selection of forum law rested exclusively on the presence of one nonsignificant forum contact.
10
Home Ins. Co. v. Dick involved interpretation of an insurance policy which had been issued in Mexico, by a Mexican insurer, to a Mexican citizen, covering a Mexican risk. The policy was subsequently assigned to Mr. Dick, who was domiciled in Mexico and "physically present and acting in Mexico," 281 U.S., at 408, 50 S.Ct., at 341, although he remained a nominal, permanent resident of Texas. The policy restricted coverage to losses occurring in certain Mexican waters and, indeed the loss occurred in those waters. Dick brought suit in Texas against a New York reinsurer. Neither the Mexican insurer nor the New York reinsurer had any connection to Texas.12 The Court held that application of Texas law to void the insurance contract's limitation-of-actions clause violated due process.13
11
The relationship of the forum State to the parties and the transaction was similarly attenuated in John Hancock Mutual Life Ins. Co. v. Yates. There, the insurer, a Massachusetts corporation, issued a contract of insurance on the life of a New York resident. The contract was applied for, issued, and delivered in New York where the insured and his spouse resided. After the insured died in New York, his spouse moved to Georgia and brought suit on the policy in Georgia. Under Georgia law, the jury was permitted to take into account oral modifications when deciding whether an insurance policy application contained material misrepresentations. Under New York law, however, such misrepresentations were to be evaluated solely on the basis of the written application. The Georgia court applied Georgia law. This Court reversed finding application of Georgia law to be unconstitutional.
12
Dick and Yates stand for the proposition that if a State has only an insignificant contact with the parties and the occurrence or transaction, application of its law is unconstitutional.14 Dick concluded that nominal residence standing alone—was inadequate; Yates held that a postoccurrence change of residence to the forum State—standing alone—was insufficient to justify application of forum law. Although instructive as extreme examples of selection of forum law, neither Dick nor Yates governs this case. For in contrast to those decisions, here the Minnesota contacts with the parties and the occurrence are obviously significant. Thus, this case is like Alaska Packers, Cardillo v. Liberty Mutual Ins. Co., 330 U.S. 469, 67 S.Ct. 801, 91 L.Ed. 1028 (1947), and Clay II—cases where this Court sustained choice-of-law decisions based on the contacts of the State, whose law was applied, with the parties and occurrence.
13
In Alaska Packers, the Court upheld California's application of its Workmen's Compensation Act, where the most significant contact of the worker with California was his execution of an employment contract in California. The worker, a nonresident alien from Mexico, was hired in California for seasonal work in a salmon canning factory in Alaska. As part of the employment contract, the employer, who was doing business in California, agreed to transport the worker to Alaska and to return him to California when the work was completed. Even though the employee contracted to be bound by the Alaska Workmen's Compensation Law and was injured in Alaska, he sought an award under the California Workmen's Compensation Act. The Court held that the choice of California law was not "so arbitrary or unreasonable as to amount to a denial of due process," 294 U.S., at 542, because "[w]ithout a remedy in California, [he] would be remediless," ibid., and because of California's interest that the worker not become a public charge, ibid.15
14
In Cardillo v. Liberty Mutual Ins. Co., supra, a District of Columbia resident, employed by a District of Columbia employer and assigned by the employer for the three years prior to his death to work in Virginia, was killed in an automobile crash in Virginia in the course of his daily commute home from work. The Court found the District's contacts with the parties and the occurrence sufficient to satisfy constitutional requirements, based on the employee's residence in the District, his commute between home and the Virginia workplace, and his status as an employee of a company "engaged in electrical construction work in the District of Columbia and surrounding areas." Id., at 471, 67 S.Ct., at 803.16
15
Similarly, Clay II upheld the constitutionality of the application of forum law. There, a policy of insurance had issued in Illinois to an Illinois resident. Subsequently the insured moved to Florida and suffered a property loss in Florida. Relying explicitly on the nationwide coverage of the policy and the presence of the insurance company in Florida and implicitly on the plaintiff's Florida residence and the occurrence of the property loss in Florida, the Court sustained the Florida court's choice of Florida law.
16
The lesson from Dick and Yates, which found insufficient forum contacts to apply forum law, and from Alaska Packers, Cardillo, and Clay II, which found adequate contacts to sustain the choice of forum law,17 is that for a State's substantive law to be selected in a constitutionally permissible manner, that State must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair. Application of this principle to the facts of this case persuades us that the Minnesota Supreme Court's choice of its own law did not offend the Federal Constitution.
III
17
Minnesota has three contacts with the parties and the occurrence giving rise to the litigation. In the aggregate, these contacts permit selection by the Minnesota Supreme Court of Minnesota law allowing the stacking of Mr. Hague's uninsured motorist coverages.
18
First, and for our purposes a very important contact, Mr. Hague was a member of Minnesota's work force, having been employed by a Red Wing, Minn., enterprise for the 15 years preceding his death. While employment status may implicate a state interest less substantial than does resident status, that interest is nevertheless important. The State of employment has police power responsibilities towards the nonresident employee that are analogous, if somewhat less profound, than towards residents. Thus, such employees use state services and amenities and may call upon state facilities in appropriate circumstances.
19
In addition, Mr. Hague commuted to work in Minnesota, a contact which was important in Cardillo v. Liberty Mutual Ins. Co., 330 U.S., at 475-476, 67 S.Ct., at 805-806 (daily commute between residence in District of Columbia and workplace in Virginia), and was presumably covered by his uninsured motorist coverage during the commute.18 The State's interest in its commuting nonresident employees reflects a state concern for the safety and well-being of its work force and the concomitant effect on Minnesota employers.
20
That Mr. Hague was not killed while commuting to work or while in Minnesota does not dictate a different result. To hold that the Minnesota Supreme Court's choice of Minnesota law violated the Constitution for that reason would require too narrow a view of Minnesota's relationship with the parties and the occurrence giving rise to the litigation. An automobile accident need not occur within a particular jurisdiction for that jurisdiction to be connected to the occurrence.19 Similarly, the occurrence of a crash fatal to a Minnesota employee in another State is a Minnesota contact.20 If Mr. Hague had only been injured and missed work for a few weeks the effect on the Minnesota employer would have been palpable and Minnesota's interest in having its employee made whole would be evident. Mr. Hague's death affects Minnesota's interest still more acutely, even though Mr. Hague will not return to the Minnesota work force. Minnesota's work force is surely affected by the level of protection the State extends to it, either directly or indirectly. Vindication of the rights of the estate of a Minnesota employee, therefore, is an important state concern.
21
Mr. Hague's residence in Wisconsin does not—as Allstate seems to argue—constitutionally mandate application of Wisconsin law to the exclusion of forum law.21 If, in the instant case, the accident had occurred in Minnesota between Mr. Hague and an uninsured Minnesota motorist, if the insurance contract had been executed in Minnesota covering a Minnesota registered company automobile which Mr. Hague was permitted to drive, and if a Wisconsin court sought to apply Wisconsin law, certainly Mr. Hague's residence in Wisconsin, his commute between Wisconsin and Minnesota, and the insurer's presence in Wisconsin should be adequate to apply Wisconsin's law.22 See generally Cardillo v. Liberty Mutual Ins. Co., supra; Alaska Packers Assn. v. Industrial Accident Comm'n, 294 U.S. 532, 55 S.Ct. 518, 79 L.Ed. 1044 (1935); Home Ins. Co. v. Dick, 281 U.S., at 408, n.5, 50 S.Ct., at 341. Employment status is not a sufficiently less important status than residence, see generally Carroll v. Lanza, 349 U.S. 408, 75 S.Ct. 804, 99 L.Ed. 1183 (1955); Alaska Packers Assn. v. Industrial Accident Comm'n, supra, when combined with Mr. Hague's daily commute across state lines and the other Minnesota contacts present, to prohibit the choice-of-law result in this case on constitutional grounds.
22
Second, Allstate was at all times present and doing business in Minnesota.23 By virtue of its presence, Allstate can hardly claim unfamiliarity with the laws of the host jurisdiction and surprise that the state courts might apply forum law to litigation in which the company is involved. "Particularly since the company was licensed to do business in [the forum], it must have known it might be sued there, and that [the forum] courts would feel bound by [forum] law."24 Clay v. Sun Insurance Office Ltd., 363 U.S. 207, 221, 80 S.Ct. 1222, 1230, 4 L.Ed.2d 1170 (1960) (Black, J., dissenting).25 Moreover, Allstate's presence in Minnesota gave Minnesota an interest in regulating the company's insurance obligations insofar as they affected both a Minnesota resident and court-appointed representative—respondent—and a longstanding member of Minnesota's work force—Mr. Hague. See Hoopeston Canning Co. v. Cullen, 318 U.S. 313, 316, 63 S.Ct. 602, 604, 87 L.Ed. 777 (1943).
23
Third, respondent became a Minnesota resident prior to institution of this litigation. The stipulated facts reveal that she first settled in Red Wing, Minn., the town in which her late husband had worked.26 She subsequently moved to Savage, Minn., after marrying a Minnesota resident who operated an automobile service station in Bloomington, Minn. Her move to Savage occurred "almost concurrently," 289 N.W.2d, at 45, with the initiation of the instant case.27 There is no suggestion that Mrs. Hague moved to Minnesota in anticipation of this litigation or for the purpose of finding a legal climate especially hospitable to her claim.28 The stipulated facts, sparse as they are, negate any such inference.
24
While John Hancock Mutual Life Ins. Co. v. Yates, 299 U.S. 178, 57 S.Ct. 129, 81 L.Ed. 106 (1936), held that a postoccurrence change of residence to the forum State was insufficient in and of itself to confer power on the forum State to choose its law, that case did not hold that such a change of residence was irrelevant. Here, of course, respondent's bona fide residence in Minnesota was not the sole contact Minnesota had with this litigation. And in connection with her residence in Minnesota, respondent was appointed personal representative of Mr. Hague's estate by the Registrar of Probate for the County of Goodhue, Minn. Respondent's residence and subsequent appointment in Minnesota as personal representative of her late husband's estate constitute a Minnesota contact which gives Minnesota an interest in respondent's recovery, an interest which the court below identified as full compensation for "resident accident victims" to keep them "off welfare rolls" and able "to meet financial obligations." 289 N.W.2d, at 49.
25
In sum, Minnesota had a significant aggregation29 of contacts with the parties and the occurrence, creating state interests, such that application of its law was neither arbitrary nor fundamentally unfair. Accordingly, the choice of Minnesota law by the Minnesota Supreme Court did not violate the Due Process Clause or the Full Faith and Credit Clause.
26
Affirmed.
27
Justice STEWART took no part in the consideration or decision of this case.
28
Justice STEVENS, concurring in the judgment.
29
As I view this unusual case—in which neither precedent nor constitutional language provides sure guidance—two separate questions must be answered. First, does the Full Faith and Credit Clause1 require Minnesota, the forum State, to apply Wisconsin law? Second, does the Due Process Clause2 of the Fourteenth Amendment prevent Minnesota from applying its own law? The first inquiry implicates the federal interest in ensuring that Minnesota respect the sovereignty of the State of Wisconsin; the second implicates the litigants' interests in a fair adjudication of their rights.3
30
I realize that both this Court's analysis of choice-of-law questions4 and scholarly criticism of those decisions5 have treated these two inquiries as though they were indistinguishable.6 Nevertheless, I am persuaded that the two constitutional provisions protect different interests and that proper analysis requires separate consideration of each.
31
* The Full Faith and Credit Clause is one of several provisions in the Federal Constitution designed to transform the several States from independent sovereignties into a single, unified Nation. See Thomas v. Washington Gas Light Co., 448 U.S. 261, 271-272, 100 S.Ct. 2647, 2655-2656, 65 L.Ed.2d 757 (1980) (plurality opinion); Milwaukee County v. M. E. White Co., 296 U.S. 268, 276-277, 56 S.Ct. 229, 233-234, 80 L.Ed. 220 (1935).7 The Full Faith and Credit Clause implements this design by directing that a State, when acting as the forum for litigation having multistate aspects or implications, respect the legitimate interests of other States and avoid infringement upon their sovereignty. The Clause does not, however, rigidly require the forum State to apply foreign law whenever another State has a valid interest in the litigation. See Nevada v. Hall, 440 U.S. 410, 424, 99 S.Ct. 1182, 1190, 59 L.Ed.2d 416 (1979); Alaska Packers Assn. v. Industrial Accident Comm'n, 294 U.S. 532, 546-548, 55 S.Ct. 518, 523-524, 79 L.Ed. 1044 (1935); Pacific Employers Ins. Co. v. Industrial Accident Comm'n, 306 U.S. 493, 501-502, 59 S.Ct. 629, 632-633, 83 L.Ed. 940 (1939).8 On the contrary, in view of the fact that the forum State is also a sovereign in its own right, in appropriate cases it may attach paramount importance to its own legitimate interests.9 Accordingly, the fact that a choice-of-law decision may be unsound as a matter of conflicts law does not necessarily implicate the federal concerns embodied in the Full Faith and Credit Clause. Rather in my opinion, the Clause should not invalidate a state court's choice of forum law unless that choice threatens the federal interest in national unity by unjustifiably infringing upon the legitimate interests of another State.10
32
In this case, I think the Minnesota courts' decision to apply Minnesota law was plainly unsound as a matter of normal conflicts law. Both the execution of the insurance contract and the accident giving rise to the litigation took place in Wisconsin. Moreover, when both of those events occurred the plaintiff, the decedent, and the operators of both vehicles were all residents of Wisconsin. Nevertheless, I do not believe that any threat to national unity or Wisconsin's sovereignty ensues from allowing the substantive question presented by this case to be determined by the law of another State.
33
The question on the merits is one of interpreting the meaning of the insurance contract. Neither the contract itself, nor anything else in the record, reflects any express understanding of the parties with respect to what law would be applied or with respect to whether the separate uninsured motorist coverage for each of the decedent's three cars could be "stacked." Since the policy provided coverage for accidents that might occur in other States, it was obvious to the parties at the time of contracting that it might give rise to the application of the law of States other than Wisconsin. Therefore, while Wisconsin may have an interest in ensuring that contracts formed in Wisconsin in reliance upon Wisconsin law are interpreted in accordance with that law, that interest is not implicated in this case.11
34
Petitioner has failed to establish that Minnesota's refusal to apply Wisconsin law poses any direct12 or indirect threat to Wisconsin's sovereignty.13 In the absence of any such threat, I find it unnecessary to evaluate the forum State's interest in the litigation in order to reach the conclusion that the Full Faith and Credit Clause does not require the Minnesota courts to apply Wisconsin law to the question of contract interpretation presented in this case.
II
35
It may be assumed that a choice-of-law decision would violate the Due Process Clause if it were totally arbitrary or if it were fundamentally unfair to either litigant. I question whether a judge's decision to apply the law of his own State could ever be described as wholly irrational. For judges are presumably familiar with their own state law and may find it difficult and time consuming to discover and apply correctly the law of another State.14 The forum State's interest in the fair and efficient administration of justice is therefore sufficient, in my judgment, to attach a presumption of validity to a forum State's decision to apply its own law to a dispute over which it has jurisdiction.
36
The forum State's interest in the efficient operation of its judicial system is clearly not sufficient, however, to justify the application of a rule of law that is fundamentally unfair to one of the litigants. Arguably, a litigant could demonstrate such unfairness in a variety of ways. Concern about the fairness of the forum's choice of its own rule might arise if that rule favored residents over nonresidents, if it represented a dramatic departure from the rule that obtains in most American jurisdictions, or if the rule itself was unfair on its face or as applied.15
37
The application of an otherwise acceptable rule of law may result in unfairness to the litigants if, in engaging in the activity which is the subject of the litigation, they could not reasonably have anticipated that their actions would later be judged by this rule of law. A choice-of-law decision that frustrates the justifiable expectations of the parties can be fundamentally unfair. This desire to prevent unfair surprise to a litigant has been the central concern in this Court's review of choice-of-law decisions under the Due Process Clause.16
38
Neither the "stacking" rule itself, nor Minnesota's application of that rule to these litigants, raises any serious question of fairness. As the plurality observes, "[s]tacking was the rule in most States at the time the policy was issued." Ante, at 316, n. 22.17 Moreover, the rule is consistent with the economics of a contractual relationship in which the policyholder paid three separate premiums for insurance coverage for three automobiles, including a separate premium for each uninsured motorist coverage.18 Nor am I persuaded that the decision of the Minnesota courts to apply the "stacking" rule in this case can be said to violate due process because that decision frustrates the reasonable expectations of the contracting parties.
39
Contracting parties can, of course, make their expectations explicit by providing in their contract either that the law of a particular jurisdiction shall govern questions of contract interpretation,19 or that a particular substantive rule, for instance "stacking," shall or shall not apply.20 In the absence of such express provisions, the contract nonetheless may implicitly reveal the expectations of the parties. For example, if a liability insurance policy issued by a resident of a particular State provides coverage only with respect to accidents within that State, it is reasonable to infer that the contracting parties expected that their obligations under the policy would be governed by that State's law.21
40
In this case, no express indication of the parties' expectations is available. The insurance policy provided coverage for accidents throughout the United States; thus, at the time of contracting, the parties certainly could have anticipated that the law of States other than Wisconsin would govern particular claims arising under the policy.22 By virtue of doing business in Minnesota, Allstate was aware that it could be sued in the Minnesota courts; Allstate also presumably was aware that Minnesota law, as well as the law of most States, permitted "stacking." Nothing in the record requires that a different inference be drawn. Therefore, the decision of the Minnesota courts to apply the law of the forum in this case does not frustrate the reasonable expectations of the contracting parties, and I can find no fundamental unfairness in that decision requiring the attention of this Court.23
41
In terms of fundamental fairness, it seems to me that two factors relied upon by the plurality—the plaintiff's postaccident move to Minnesota and the decedent's Minnesota employment—are either irrelevant to or possibly even tend to undermine the plurality's conclusion. When the expectations of the parties at the time of contracting are the central due process concern, as they are in this case, an unanticipated post-accident occurrence is clearly irrelevant for due process purposes. The fact that the plaintiff became a resident of the forum State after the accident surely cannot justify a ruling in her favor that would not be made if the plaintiff were a nonresident. Similarly, while the fact that the decedent regularly drove into Minnesota might be relevant to the expectations of the contracting parties,24 the fact that he did so because he was employed in Minnesota adds nothing to the due process analysis. The choice-of-law decision of the Minnesota courts is consistent with due process because it does not result in unfairness to either litigant, not because Minnesota now has an interest in the plaintiff as resident or formerly had an interest in the decedent as employee.
III
42
Although I regard the Minnesota courts' decision to apply forum law as unsound as a matter of conflicts law, and there is little in this record other than the presumption in favor of the forum's own law to support that decision, I concur in the plurality's judgment. It is not this Court's function to establish and impose upon state courts a federal choice-of-law rule, nor is it our function to ensure that state courts correctly apply whatever choice-of-law rules they have themselves adopted.25 Our authority may be exercised in the choice-of-law area only to prevent a violation of the Full Faith and Credit or the Due Process Clause. For the reasons stated above, I find no such violation in this case.
43
Justice POWELL, with whom THE CHIEF JUSTICE and Justice REHNQUIST join, dissenting.
44
My disagreement with the plurality is narrow. I accept with few reservations Part II of the plurality opinion, which sets forth the basic principles that guide us in reviewing state choice-of-law decisions under the Constitution. The Court should invalidate a forum State's decision to apply its own law only when there are no significant contacts between the State and the litigation. This modest check on state power is mandated by the Due Process Clause of the Fourteenth Amendment and the Full Faith and Credit Clause of Art. IV, § 1. I do not believe, however, that the plurality adequately analyzes the policies such review must serve. In consequence, it has found significant what appear to me to be trivial contacts between the forum State and the litigation.
45
* At least since Carroll v. Lanza, 349 U.S. 408, 75 S.Ct. 804, 99 L.Ed. 1183 (1955), the Court has recognized that both the Due Process and the Full Faith and Credit Clauses are satisfied if the forum has such significant contacts with the litigation that it has a legitimate state interest in applying its own law. The significance of asserted contacts must be evaluated in light of the constitutional policies that oversight by this Court should serve. Two enduring policies emerge from our cases.
46
First, the contacts between the forum State and the litigation should not be so "slight and casual" that it would be fundamentally unfair to a litigant for the forum to apply its own State's law. Clay v. Sun Ins. Office, Ltd., 377 U.S. 179, 182, 84 S.Ct. 1197, 1198, 12 L.Ed.2d 229 (1964). The touchstone here is the reasonable expectation of the parties. See Weintraub, Due Process and Full Faith and Credit Limitations on a State's Choice of Law, 44 Iowa L.Rev. 449, 445-457 (1959) (Weintraub). Thus, in Clay, the insurer sold a policy to Clay " 'with knowledge that he could take his property anywhere in the world he saw fit without losing the protection of his insurance.' " 377 U.S., at 182, 84 S.Ct., at 1198, quoting Clay v. Sun Ins. Office Ltd., 363 U.S. 207, 221, 80 S.Ct. 1222, 1230, 4 L.Ed.2d 1170 (1960) (Black, J., dissenting). When the insured moved to Florida with the knowledge of the insurer, and a loss occurred in that State, this Court found no unfairness in Florida's applying its own rule of decision to permit recovery on the policy. The insurer "must have known it might be sued there." Ibid. See also Watson v. Employers Liability Assurance Corp., 348 U.S. 66, 75 S.Ct. 166, 99 L.Ed. 74 (1954).1
47
Second, the forum State must have a legitimate interest in the outcome of the litigation before it. Pacific Ins. Co. v. Industrial Accident Comm'n, 306 U.S. 493, 59 S.Ct. 629, 83 L.Ed. 940 (1939). The Full Faith and Credit Clause addresses the accommodation of sovereign power among the various States. Under limited circumstances, it requires one State to give effect to the statutory law of another State. Nevada v. Hall, 440 U.S. 410, 423, 99 S.Ct. 1182, 1189, 59 L.Ed.2d 416 (1979). To be sure, a forum State need not give effect to another State's law if that law is in "violation of its own legitimate public policy." Id., at 422, 99 S.Ct., at 1189. Nonetheless, for a forum State to further its legitimate public policy by applying its own law to a controversy, there must be some connection between the facts giving rise to the litigation and the scope of the State's lawmaking jurisdiction.
48
Both the Due Process and Full Faith and Credit Clauses ensure that the States do not "reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 564, 62 L.Ed.2d 490 (1980) (addressing Fourteenth Amendment limitations on state-court jurisdiction). As the Court stated in Pacific Ins. Co., supra: "[T]he full faith and credit clause does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state." Id., 306 U.S., at 502, 59 S.Ct., at 633 (emphasis added). The State has a legitimate interest in applying a rule of decision to the litigation only if the facts to which the rule will be applied have created effects within the State, toward which the State's public policy is directed. To assess the sufficiency of asserted contacts between the forum and the litigation, the court must determine if the contacts form a reasonable link between the litigation and a state policy. In short, examination of contacts addresses whether "the state has an interest in the application of its policy in this instance." Currie, The Constitution and the Choice of Law: Governmental Interests and the Judicial Function, in B. Currie, Selected Essays on the Conflict of Laws 188, 189 (1963) (Currie). If it does, the Constitution is satisfied.
49
John Hancock Mut. Life Ins. Co. v. Yates, 299 U.S. 178, 57 S.Ct. 129, 81 L.Ed. 106 (1936), illustrates this principle. A life insurance policy was executed in New York, on a New York insured with a New York beneficiary. The insured died in New York; his beneficiary moved to Georgia and sued to recover on the policy. The insurance company defended on the ground that the insured, in the application for the policy, had made materially false statements that rendered it void under New York law. This Court reversed the Georgia court's application of its contrary rule that all questions of the policy's validity must be determined by the jury. The Court found a violation of the Full Faith and Credit Clause, because "[i]n respect to the accrual of the right asserted under the contract . . . there was no occurrence, nothing done, to which the law of Georgia could apply." Id., at 182, 57 S.Ct., at 131. In other words, the Court determined that Georgia had no legitimate interest in applying its own law to the legal issue of liability. Georgia's contacts with the contract of insurance were nonexistent.2 See Home Ins. Co. v. Dick, 281 U.S. 397, 408, 50 S.Ct. 338, 341, 74 L.Ed. 926 (1930).
50
In summary, the significance of the contacts between a forum State and the litigation must be assessed in light of these two important constitutional policies.3 A contact, or a pattern of contacts, satisfies the Constitution when it protects the litigants from being unfairly surprised if the forum State applies its own law, and when the application of the forum's law reasonably can be understood to further a legitimate public policy of the forum State.
II
51
Recognition of the complexity of the constitutional inquiry requires that this Court apply these principles with restraint. Applying these principles to the facts of this case, I do not believe, however, that Minnesota had sufficient contacts with the "persons and events" in this litigation to apply its rule permitting stacking. I would agree that no reasonable expectations of the parties were frustrated. The risk insured by petitioner was not geographically limited. See Clay v. Sun Ins. Office, Ltd., supra, 377 U.S., at 182, 84 S.Ct., at 1198. The close proximity of Hager City, Wis., to Minnesota, and the fact that Hague commuted daily to Red Wing, Minn., for many years should have led the insurer to realize that there was a reasonable probability that the risk would materialize in Minnesota. Under our precedents, it is plain that Minnesota could have applied its own law to an accident occurring within its borders. See ante, at 318, n. 24. The fact that the accident did not, in fact, occur in Minnesota is not controlling because the expectations of the litigants before the cause of action accrues provide the pertinent perspective. See Weintraub at 445; n.1, supra.
52
The more doubtful question in this case is whether application of Minnesota's substantive law reasonably furthers a legitimate state interest. The plurality attempts to give substance to the tenuous contacts between Minnesota and this litigation. Upon examination, however, these contacts are either trivial or irrelevant to the furthering of any public policy in Minnesota.
53
First, the postaccident residence of the plaintiff-beneficiary is constitutionally irrelevant to the choice-of-law question. John Hancock Mut. Life Ins. Co. v. Yates, supra. The plurality today insists that Yates only held that a postoccurrence move to the forum State could not "in and of itself" confer power on the forum to apply its own law, but did not establish that such a change of residence was irrelevant. Ante, at 319. What the Yates Court held, however, was that "there was no occurrence, nothing done, to which the law of Georgia could apply." 299 U.S., at 182, 57 S.Ct. at 131, (emphasis added). Any possible ambiguity in the Court's view of the significance of a postoccurrence change of residence is dispelled by Home Ins. Co. v. Dick, supra, cited by the Yates Court, where it was held squarely that Dick's postaccident move to the forum State was "without significance." 281 U.S., at 408, 50 S.Ct., at 341.
54
This rule is sound. If a plaintiff could choose the substantive rules to be applied to an action by moving to a hospitable forum, the invitation to forum shopping would be irresistible. Moreover, it would permit the defendant's reasonable expectations at the time the cause of action accrues to be frustrated, because it would permit the choice-of-law question to turn on a postaccrual circumstance. Finally, postaccrual residence has nothing to do with facts to which the forum State proposes to apply its rule; it is unrelated to the substantive legal issues presented by the litigation.
55
Second, the plurality finds it significant that the insurer does business in the forum State. Ante, at 317-318. The State does have a legitimate interest in regulating the practices of such an insurer. But this argument proves too much. The insurer here does business in all 50 States. The forum State has no interest in regulating that conduct of the insurer unrelated to property, persons, or contracts executed within the forum State.4 See Hoopeston Canning Co. v. Cullen, 318 U.S. 313, 319, 63 S.Ct. 602, 606, 87 L.Ed. 777 (1943). The plurality recognizes this flaw and attempts to bolster the significance of the local presence of the insurer by combining it with the other factors deemed significant: the presence of the plaintiff and the fact that the deceased worked in the forum State. This merely restates the basic question in the case.
56
Third, the plurality emphasizes particularly that the insured worked in the forum State.5 Ante, at 313-317. The fact that the insured was a nonresident employee in the forum State provides a significant contact for the furtherance of some local policies. See, e. g., Pacific Ins. Co. v. Industrial Accident Comm'n, 306 U.S. 493, 59 S.Ct. 629, 83 L.Ed. 940 (1939) (forum State's interest in compensating workers for employment-related injuries occurring within the State); Alaska Packers Assn. v. Industrial Accident Comm'n, 294 U.S. 532, 549, 55 S.Ct. 518, 524, 79 L.Ed. 1044 (1935) (forum State's interest in compensating the employment-related injuries of a worker hired in the State). The insured's place of employment is not, however, significant in this case. Neither the nature of the insurance policy, the events related to the accident, nor the immediate question of stacking coverage is in any way affected or implicated by the insured's employment status. The plurality's opinion is understandably vague in explaining how trebling the benefits to be paid to the estate of a nonresident employee furthers any substantial state interest relating to employment. Minnesota does not wish its workers to die in automobile accidents, but permitting stacking will not further this interest. The substantive issue here is solely one of compensation, and whether the compensation provided by this policy is increased or not will have no relation to the State's employment policies or police power. See n. 5, supra.
57
Neither taken separately nor in the aggregate do the contacts asserted by the plurality today indicate that Minnesota's application of its substantive rule in this case will further any legitimate state interest.6 The plurality focuses only on physical contacts vel non, and in doing so pays scant attention to the more fundamental reasons why our precedents require reasonable policy-related contacts in choice-of-law cases. Therefore, I dissent.
1
The Due Process Clause of the Fourteenth Amendment provides that no State "shall . . . deprive any person of life, liberty, or property, without due process of law.. . ."
2
The Full Faith and Credit Clause, Art. IV, § 1, provides:
"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof."
3
Ralph Hague paid a separate premium for each automobile including an additional separate premium for each uninsured motorist coverage.
4
App. C to Pet. for Cert. A-29.
5
289 N.W.2d 43 (1978).
6
Respondent has suggested that this case presents a "false conflict." The court below rejected this contention and applied Minnesota law. Even though the Minnesota Supreme Court's choice of Minnesota law followed a discussion of whether this case presents a false conflict, the fact is that the court chose to apply Minnesota law. Thus, the only question before this Court is whether that choice was constitutional.
7
Minnesota had previously adopted the conceptual model developed by Professor Leflar in Milkovich v. Saari, 295 Minn. 155, 203 N.W.2d 408 (1973).
8
The court apparently was referring to sufficiency as a matter of choice of law and not as a matter of constitutional limitation on its choice-of-law decision.
9
289 N.W.2d, at 50 (1979).
10
This Court has taken a similar approach in deciding choice-of-law cases under both the Due Process Clause and the Full Faith and Credit Clause. In each instance, the Court has examined the relevant contacts and resulting interests of the State whose law was applied. See, e. g., Nevada v. Hall, 440 U.S. 410, 424, 99 S.Ct. 1182, 1190, 59 L.Ed.2d 416 (1979). Although at one time the Court required a more exacting standard under the Full Faith and Credit Clause than under the Due Process Clause for evaluating the constitutionality of choice-of-law decisions, see Alaska Packers Assn. v. Industrial Accident Comm'n, 294 U.S. 532, 549-550, 55 S.Ct. 518, 524-525, 79 L.Ed. 1044 (1935) (interest of State whose law was applied was no less than interest of State whose law was rejected), the Court has since abandoned the weighing-of-interests requirement. Carroll v. Lanza, 349 U.S. 408, 75 S.Ct. 804, 99 L.Ed. 1183 (1955); see Nevada v. Hall, supra; Weintraub, Due Process and Full Faith and Credit Limitations on a State's Choice of Law, 44 Iowa L.Rev. 449 (1959). Different considerations are of course at issue when full faith and credit is to be accorded to acts, records, and proceedings outside the choice-of-law area, such as in the case of sister state-court judgments.
11
Prior to the advent of interest analysis in the state courts as the "dominant mode of analysis in modern choice of law theory," Silberman, Shaffer v. Heitner : The End of an Era, 53 N.Y.U.L.Rev. 33, 80, n.259 (1978); cf. Richards v. United States, 369 U.S. 1, 11-13, and nn.26-27, 82 S.Ct. 585, 591-593, 7 L.Ed.2d 492 (1962) (discussing trend toward interest analysis in state courts), the prevailing choice-of-law methodology focused on the jurisdiction where a particular event occurred. See, e. g., Restatement of Conflict of Laws (1934). For example, in cases characterized as contract cases, the law of the place of contracting controlled the determination of such issues as capacity, fraud, consideration, duty, performance, and the like. Id., § 332; see Beale, What Law Governs the Validity of a Contract, 23 Harv.L.Rev. 260, 270-271 (1910). In the tort context, the law of the place of the wrong usually governed traditional choice-of-law analysis. Restatement, supra, § 378; see Richards v. United States, supra, at 11-12, 82 S.Ct., at 591-592.
Hartford Accident & Indemnity Co. v. Delta & Pine Land Co., 292 U.S. 143, 54 S.Ct. 634, 78 L.Ed. 1178 (1934), can, perhaps, best be explained as an example of that period. In that case, the Court struck down application by the Mississippi courts of Mississippi law which voided the limitations
provision in a fidelity bond written in Tennessee between a Connecticut insurer and Delta, both of which were doing business in Tennessee and Mississippi. By its terms, the bond covered misapplication of funds "by any employee 'in any position, anywhere. . . .' " Id., at 145, 54 S.Ct., at 634. After Delta discovered defalcations by one of its Mississippi-based employees, a lawsuit was commenced in Mississippi.
That case, however, has scant relevance for today. It implied a choice—of—law analysis which, for all intents and purposes, gave an isolated event—the writing of the bond in Tennessee—controlling constitutional significance, even though there might have been contacts with another State (there Mississippi) which would make application of its law neither unfair nor unexpected. See Martin, Personal Jurisdiction and Choice of Law, 78 Mich.L.Rev. 872, 874, and n.11 (1980).
12
Dick sought to obtain quasi-in-rem jurisdiction by garnishing the reinsurance obligation of the New York reinsurer. The reinsurer had never transacted business in Texas, but it "was cited by publication, in accordance with a Texas statute; attorneys were appointed for it by the trial court; and they filed on its behalf an answer which denied liability." 281 U.S., at 402, 50 S.Ct., at 339. There would be no jurisdiction in the Texas courts to entertain such a lawsuit today. See Rush v. Savchuk, 444 U.S. 320, 100 S.Ct. 571, 62 L.Ed.2d 516 (1980); Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977); Silberman, supra, at 62-65.
13
The Court noted that the result might have been different if there had been some connection to Texas upon "which the State could properly lay hold as the basis of the regulations there imposed." Supra, 281 U.S., at 408, n.5, 50 S.Ct., at 341, n.5; see Watson v. Employers Liability Assurance Corp., 348 U.S. 66, 71, 75 S.Ct. 166, 169, 99 L.Ed. 74 (1954).
14
See generally, Weintraub, supra, n.10, at 455-457.
15
The Court found no violation of the Full Faith and Credit Clause, since California's interest was considered to be no less than Alaska's, 294 U.S., at 547-548, 549-550, 55 S.Ct., at 523-524, 524-525, even though the injury occurred in Alaska while the employee was performing his contract obligations there. While Alaska Packers balanced the interests of California and Alaska to determine the full faith and credit issue, such balancing is no longer required. See Nevada v. Hall, 440 U.S., at 424, 99 S.Ct., at 1190; n.10, supra.
16
The precise question raised was whether the Virginia Compensation Commission "had sole jurisdiction over the claim." 330 U.S., at 472-473, 67 S.Ct., at 804. In finding that application of the District's law did not violate either due process or full faith and credit requirements, the Court in effect treated the question as a constitutional choice-of-law issue.
17
The Court has upheld choice-of-law decisions challenged on constitutional grounds in numerous other decisions. See Nevada v. Hall, supra (upholding California's application of California law to automobile accident in California between two California residents and a Nevada official driving car owned by State of Nevada while engaged in official business in California); Carroll v. Lanza, 394 U.S. 408, 75 S.Ct. 804, 99 L.Ed. 1183 (1955) (upholding Arkansas' choice of Arkansas law where Missouri employee executed employment contract with Missouri employer and was injured on job in Arkansas but was removed immediately to a Missouri hospital); Watson v. Employers Liability Assurance Corp., 384 U.S. 66, 75 S.Ct. 166, 99 L.Ed. 74 (1954) (allowing application of Louisiana direct action statute by Louisiana resident against insurer even though policy was written and delivered in another State, where plaintiff was injured in Louisiana); Pacific Employers Ins. Co. v. Industrial Accident Comm'n, 306 U.S. 493, 59 S.Ct. 629, 83 L.Ed. 940 (1939) (holding Full Faith and Credit Clause not violated where California applied own Workmen's Compensation Act in case of injury suffered by Massachusetts employee temporarily in California in course of employment). Thus, Nevada v. Hall, supra, and Watson v. Employers Liability Assurance Corp., supra, upheld application of forum law where the relevant contacts consisted of plaintiff's residence and the place of the injury. Pacific Employers Ins. Co. v. Industrial Accident Comm'n, supra, and Carroll v. Lanza, infra, relied on the place of the injury arising from the respective employee's temporary presence in the forum State in connection with his employment.
18
The policy issued to Mr. Hague provided that Allstate would pay to the insured, or his legal representative, damages "sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of [an] uninsured automobile. . . ." No suggestion has been made that Mr. Hague's uninsured motorist protection is unavailable because he was not killed while driving one of his insured automobiles.
19
Numerous cases have applied the law of a jurisdiction other than the situs of the injury where there existed some other link between that jurisdiction and the occurrence. See, e. g., Cardillo v. Liberty Mutual Ins. Co., 330 U.S. 469, 67 S.Ct. 801, 91 L.Ed. 1028 (1947); Alaska Packers Assn. v. Industrial Accident Comm'n, 294 U.S. 532, 55 S.Ct. 518, 79 L.Ed. 1044 (1935); Rosenthal v. Warren, 475 F.2d 438 (CA2), cert. denied, 414 U.S. 856, 94 S.Ct. 159, 38 L.Ed.2d 106 (1973); Clark v. Clark, 107 N.H. 351, 222 A.2d 205 (1966); Tooker v. Lopez, 24 N.Y.2d 569, 301 N.Y.S.2d 519, 249 N.E.2d 394 (1969); Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963).
20
The injury or death of a resident of State A in State B is a contact of State A with the occurrence in State B. See cases cited in n.19, supra.
21
Petitioner's statement that the instant dispute involves the interpretation of insurance contracts which were "underwritten, applied for, and paid for by Wisconsin residents and issued covering cars garaged in Wisconsin," Brief for Petitioner 6, is simply another way of stating that Mr. Hague was a Wisconsin resident. Respondent could have replied that the insurance contract was underwritten, applied for and paid for by a Minnesota worker, and issued covering cars that were driven to work in Minnesota and garaged there for a substantial portion of the day. The former statement is hardly more significant than the latter since the accident in any event did not involve any of the automobiles which were covered under Mr. Hague's policy. Recovery is sought pursuant to the uninsured motorist coverage.
In addition, petitioner's statement that the contracts were "underwritten . . . by Wisconsin residents" is not supported by the stipulated facts if petitioner means to include itself within that phrase. Indeed, the policy, which is part of the record, recites that Allstate signed the policy in Northbrook, Ill. Under some versions of the hoary rule of lex loci contractus, and depending on the precise sequence of events, a sequence which is unclear from the record before us, the law of Illinois arguably might apply to govern contract construction, even though Illinois would have less contact with the parties and the occurrence than either Wisconsin or Minnesota. No party sought application of Illinois law on that basis in the court below.
22
Of course Allstate could not be certain that Wisconsin law would necessarily govern any accident which occurred in Wisconsin, whether brought in the Wisconsin courts or elsewhere. Such an expectation would give controlling significance to the wooden lex loci delicti doctrine. While the place of the accident is a factor to be considered in choice-of-law analysis, to apply blindly the traditional, but now largely abandoned, doctrine, Silberman, supra, n.11, at 80, n.259; see n.11, supra, would fail to distinguish between the relative importance of various legal issues involved in a lawsuit as well as the relationship of other jurisdictions to the parties and the occurrence or transaction. If, for example, Mr. Hague had been a Wisconsin resident and employee who was injured in Wisconsin and was then taken by ambulance to a hospital in Red Wing, Minn., where he languished for several weeks before dying, Minnesota's interest in ensuring that its medical creditors were paid would be obvious. Moreover, under such circumstances, the accident itself might be reasonably characterized as a bistate occurrence beginning in Wisconsin and ending in Minnesota. Thus, reliance by the insurer that Wisconsin law would necessarily govern any accident that occurred in Wisconsin, or that the law of another jurisdiction would necessarily govern any accident that did not occur in Wisconsin, would be unwarranted. See n.11, supra; cf. Rosenthal v. Warren, supra (Massachusetts hospital could not have purchased insurance with expectation that Massachusetts law would govern damages recovery as to New York patient who died in hospital and whose widow brought suit in New York).
If the law of a jurisdiction other than Wisconsin did govern, there was a substantial likelihood, with respect to uninsured motorist coverage, that stacking would be allowed. Stacking was the rule in most States at the time the policy was issued. Indeed, the Wisconsin Supreme Court, in Nelson v. Employers Mutual Casualty Co., 63 Wis.2d 558, 563-566, and nn.2, 3, 217 N.W.2d 670, 672, 674, and nn.2, 3 (1974), identified 29 States, including Minnesota, whose law it interpreted to allow stacking, and only 9 States whose law it interpreted to prohibit stacking. Clearly then, Allstate could not have expected that an antistacking rule would govern any particular accident in which the insured might be involved and thus cannot claim unfair surprise from the Minnesota Supreme Court's choice of forum law.
23
The Court has recognized that examination of a State's contacts may result in divergent conclusions for jurisdiction and choice-of-law purposes. See Kulko v. California Superior Court, 436 U.S. 84, 98, 98 S.Ct. 1690, 1700, 56 L.Ed.2d 132 (1978) (no jurisdiction in California but California law "arguably might" apply); Shaffer v. Heitner, 433 U.S., at 215, 97 S.Ct., at 2585 (no jurisdiction in Delaware, although Delaware interest "may support the application of Delaware law"); cf. Hanson v. Denckla, 357 U.S. 235, 254, and n.27, 78 S.Ct. 1228, 1240, n.27, 2 L.Ed.2d 1283 (1958) (no jurisdiction in Florida; the "issue is personal jurisdiction, not choice of law," an issue which the Court found no need to decide). Nevertheless, "both inquiries 'are often closely related and to a substantial degree depend upon similar considerations.' " Shaffer, 433 U.S., at 224-225, 97 S.Ct., at 2590 (BRENNAN, J., concurring in part and dissenting in part). Here, of course, jurisdiction in the Minnesota courts is unquestioned, a factor not without significance in assessing the constitutionality of Minnesota's choice of its own substantive law. Cf. id., at 225, 97 S.Ct., at 2590 ("the decision that it is fair to bind a defendant by a State's laws and rules should prove to be highly relevant to the fairness of permitting that same State to accept jurisdiction for adjudicating the controversy").
24
There is no element of unfair surprise or frustration of legitimate expectations as a result of Minnesota's choice of its law. Because Allstate was doing business in Minnesota and was undoubtedly aware that Mr. Hague was a Minnesota employee, it had to have anticipated that Minnesota law might apply to an accident in which Mr. Hague was involved. See Clay II, 377 U.S. 179, 182, 84 S.Ct. 1197, 1198, 12 L.Ed.2d 229 (1964); Watson v. Employers Liability Assurance Corp., 348 U.S., at 72-73, 75 S.Ct., at 169; Alaska Packers Assn. v. Industrial Accident Comm'n, 294 U.S., at 538-543, 55 S.Ct., at 519-522; cf. Home Ins. Co. v. Dick, 281 U.S., at 404, 50 S.Ct., at 340 (neither insurer nor reinsurer present in forum State). Indeed, Allstate specifically anticipated that Mr. Hague might suffer an accident either in Minnesota or elsewhere in the United States, outside of Wisconsin, since the policy it issued offered continental coverage. Cf. id., at 403, 50 S.Ct., at 339 (coverage limited to losses occurring in certain Mexican waters which were outside of jurisdiction whose law was applied). At the same time, Allstate did not seek to control construction of the contract since the policy contained no choice-of-law clause dictating application of Wisconsin law. See Clay II, supra, at 182, 84 S.Ct., at 1198 (nationwide coverage of policy and lack of choice-of-law clause).
25
Justice Black's dissent in the first Clay decision, a decision which vacated and remanded a lower-court determination to obtain an authoritative construction of state law that might moot the constitutional question, subsequently commanded majority support in the second Clay decision. Clay II, supra, at 180-183, 84 S.Ct., at 1197-1199.
26
The facts do not reveal the date on which Mrs. Hague first moved to Red Wing.
27
These proceedings began on May 28, 1976. Mrs. Hague was remarried on June 19, 1976.
28
The dissent suggests that considering respondent's postoccurrence change of residence as one of the Minnesota contacts will encourage forum shopping. Post, at 337. This overlooks the fact that her change of residence was bona fide and not motivated by litigation considerations.
29
We express no view whether the first two contacts, either together or separately, would have sufficed to sustain the choice of Minnesota law made by the Minnesota Supreme Court.
1
Article IV, § 1, provides:
"Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."
2
Section 1 of the Fourteenth Amendment provides, in part:
"No State shall . . . deprive any person of life, liberty, or property, without due process of law. . . ."
3
The two questions presented by the choice-of-law issue arise only after it is assumed or established that the defendant's contacts with the forum State are sufficient to support personal jurisdiction. Although the choice-of-law concerns—respect for another sovereign and fairness to the litigants—are similar to the two functions performed by the jurisdictional inquiry, they are not identical. In World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291-292, 100 S.Ct. 559, 564, 62 L.Ed.2d 490 (1980), we stated:
"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."
See also Reese, Legislative Jurisdiction, 78 Colum.L.Rev. 1587, 1589-1590 (1978). While it has been suggested that this same minimum-contacts analysis be used to define the constitutional limitations on choice of law, see, e. g., Martin, Personal Jurisdiction and Choice of Law, 78 Mich.L.Rev. 872 (1980), the Court has made it clear over the years that the personal jurisdiction and choice-of-law inquiries are not the same. See Kulko v. California Superior Court, 436 U.S. 84, 98, 98 S.Ct. 1690, 1700, 56 L.Ed.2d 132 (1978); Shaffer v. Heitner, 433 U.S. 186, 215, 97 S.Ct. 2569, 2585, 53 L.Ed.2d 683 (1977); id., at 224-226, 97 S.Ct., at 2590-2591 (BRENNAN, J., dissenting in part); Hanson v. Denckla, 357 U.S. 235, 253-254, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958); id., at 258, 78 S.Ct., at 1241 (Black, J., dissenting).
4
Although the Court has struck down a state court's choice of forum law on both due process, see, e. g., Home Ins. Co. v. Dick, 281 U.S. 397, 50 S.Ct. 338, 74 L.Ed. 926 (1930), and full faith and credit grounds, see, e. g., John Hancock Mutual Life Ins. Co. v. Yates, 299 U.S. 178, 57 S.Ct. 129, 81 L.Ed. 106 (1936), no clear analytical distinction between the two constitutional provisions has emerged. The Full Faith and Credit Clause, of course, was inapplicable in Home Ins. Co. because the law of a foreign nation, rather than of a sister State, was at issue; a similarly clear explanation for the Court's reliance upon the Full Faith and Credit Clause in John Hancock Mutual Life Ins. cannot be found. Indeed, John Hancock Mutual Life Ins. is probably best understood as a due process case. See Reese, supra, at 1589, and n. 17; Weintraub, Due Process and Full Faith and Credit Limitations on a State's Choice of Law, 44 Iowa L.Rev. 449, 457-458 (1959).
5
See R. Leflar, American Conflicts Law § 5, p. 7, § 55, pp. 106-107 (3d ed. 1977). The Court's frequent failure to distinguish between the two Clauses in the choice-of-law context may underlie the suggestions of various commentators that either the Full Faith and Credit Clause or the Due Process Clause be recognized as the single appropriate source for constitutional limitations on choice of law. Compare Martin, Constitutional Limitations on Choice of Law, 61 Cornell L.Rev. 185 (1976) (full faith and credit), with Reese, supra (due process); see also Kirgis, The Roles of Due Process and Full Faith and Credit in Choice of Law, 62 Cornell L.Rev. 94 (1976).
6
Even when the Court has explicitly considered both provisions in a single case, the requirements of the Due Process and Full Faith and Credit Clauses have been measured by essentially the same standard. For example, in Watson v. Employers Liability Assurance Corp., 348 U.S. 66, 75 S.Ct. 166, 99 L.Ed. 74 (1954), the Court separately considered the due process and full faith and credit questions. See id., at 70-73, 75 S.Ct., at 168-170. However, in concluding that the Full Faith and Credit Clause did not bar the Louisiana courts from applying Louisiana law in that case, the Court substantially relied upon its preceding analysis of the requirements of due process. Id., at 73, 75 S.Ct., at 170. By way of contrast, in Alaska Packers Assn. v. Industrial Accident Comm'n, 294 U.S. 532, 544-550, 55 S.Ct. 518, 79 L.Ed. 1044 (1935), the Court's full faith and credit analysis differed significantly from its due process analysis. However, as noted in the plurality opinion, ante, at 308, n. 10, the Court has since abandoned the full faith and credit standard represented by Alaska Packers.
7
See also Sumner, The Full-Faith-and-Credit-Clause—Its History and Purpose, 34 Or.L.Rev. 224, 242 (1955); Weintraub, supra, at 477; R. Leflar, supra, § 73, p. 143.
8
As the Court observed in Alaska Packers, supra, an overly rigid application of the Full Faith and Credit Clause would produce anomalous results:
"A rigid and literal enforcement of the full faith and credit clause, without regard to the statute of the forum, would lead to the absurd result that, wherever the conflict arises, the statute of each state must be enforced in the courts of the other, but cannot be in its own." 294 U.S., at 547, 55 S.Ct., at 523.
9
For example, it is well established that "the Full Faith and Credit Clause does not require a State to apply another State's law in violation of its own legitimate public policy." Nevada v. Hall, 440 U.S. 410, 422, 99 S.Ct. 1182, 1189, 59 L.Ed.2d 416 (1979) (footnote omitted).
10
The kind of state action the Full Faith and Credit Clause was designed to prevent has been described in a variety of ways by this Court. In Carroll v. Lanza, 349 U.S. 408, 413, 75 S.Ct. 804, 807, 99 L.Ed. 1183 (1955), the Court indicated that the Clause would be invoked to restrain "any policy of hostility to the public Acts" of another State. In Nevada v. Hall, supra, at 424, n. 24, 99 S.Ct., at 1190, n. 24, we approved action which "pose[d] no substantial threat to our constitutional system of cooperative federalism." And in Thomas v. Washington Gas Light Co., 448 U.S. 261, 272, 100 S.Ct. 2647, 2656, 65 L.Ed.2d 757 (1980), the plurality opinion described the purpose of the Full Faith and Credit Clause as the prevention of "parochial entrenchment on the interests of other States."
11
While the justifiable expectations of the litigants are a major concern for purposes of due process scrutiny of choice-of-law decisions, see Part II, infra, the decision in John Hancock Mutual Life Ins. Co. v. Yates, 299 U.S. 178, 57 S.Ct. 129, 81 L.Ed. 106 (1936), suggests that this concern may also implicate state interests cognizable under the Full Faith and Credit Clause. In John Hancock Mutual Life Ins., the Court struck down on full faith and credit grounds a Georgia court's choice of Georgia law over a conflicting New York statute in a suit on a New York life insurance contract brought after the insured's death in New York. Central to the decision in that case was the Court's apparent concern that application of Georgia law would result in unfair surprise to one of the contracting parties. The Court found that the New York statute was "a rule of substantive law which became a term of the contract, as much so as the amount of the premium to be paid or the time for its payment." Id., at 182, 57 S.Ct., at 131 (footnote omitted). This statute "determine[d] the substantive rights of the parties as fully as if a provision to that effect had been embodied in writing in the policy." Id., at 182-183, 57 S.Ct., at 131-132. The insurer had no reason to expect that the New York statute would not control all claims arising under the life insurance policy. The parties to a life insurance contract normally would not expect the place of death to have any bearing upon the proper construction of the policy; by way of contrast, in the case of a liability policy, the place of the tort might well be relevant. For that reason, in a life insurance contract relationship, it is likely that neither party would expect the law of any State other than the place of contracting to have any relevance in possible subsequent litigation. See generally C. Carnahan, Conflict of Laws and Life Insurance Contracts § 15, pp. 51-52, § 47, pp. 264-265, 267-268, § 60, pp. 325-327 (2d ed. 1958).
Paul Freund has aptly characterized John Hancock Mutual Life Ins. as perhaps this Court's "most ambitious application of the full faith and credit clause." Freund, Chief Justice Stone and the Conflict of Laws, 59 Harv.L.Rev. 1210, 1233 (1946). Like Bradford Electric Light Co. v. Clapper, 286 U.S. 145, 52 S.Ct. 571, 76 L.Ed. 254 (1932), on which the Court relied, see 299 U.S., at 183, 57 S.Ct., at 132 John Hancock Mutual Life Ins. was one of a series of constitutional decisions in the 1930's that have been limited by subsequent cases. See Carroll v. Lanza, 349 U.S., at 412, 75 S.Ct., at 806; Thomas v. Washington Gas Light Co., supra, at 272-273, n.18, 100 S.Ct., at 2656, n.18 (1980) (plurality opinion). See also Traynor, Is This Conflict Really Necessary?, 37 Texas L.Rev. 657, 675 (1959).
12
Compare Nevada v. Hall, supra, in which the Court permitted a California court to disregard Nevada's statutory limitation on damages available against the State. The Court found this direct intrusion upon Nevada's sovereignty justified because the Nevada statute was "obnoxious" to California's public policy. Id., at 424, 99 S.Ct., at 1190.
13
It is clear that a litigant challenging the forum's application of its own law to a lawsuit properly brought in its courts bears the burden of establishing that this choice of law infringes upon interests protected by the Full Faith and Credit Clause. See Alaska Packers Assn. v. Industrial Accident Comm'n, 294 U.S., at 547-548, 55 S.Ct., at 523-524.
It is equally clear that a state court's decision to apply its own law cannot violate the Full Faith and Credit Clause where the application of forum law does not impinge at all upon the interests of other States. Cf. Reese, supra n.3, at 1601.
14
This task can be particularly difficult for a trial judge who does not have ready access to a law library containing the statutes and decisions of all 50 States. If that judge is able to apply law with which he is thoroughly familiar or can easily discover, substantial savings can accrue to the State's judicial system. Moreover, an erroneous interpretation of the governing rule is less likely when the judge is applying a familiar rule. Cf. Shaffer v. Heitner, 433 U.S., at 225-226, 97 S.Ct., at 2590-2591 (BRENNAN, J., dissenting in part) (such concerns indicate that a State's ability to apply its own law to a transaction should be relevant for purposes of evaluating its power to exercise jurisdiction over the parties to that transaction).
15
Discrimination against nonresidents would be constitutionally suspect even if the Due Process Clause were not a check upon a State's choice-of-law decisions. See Currie & Schreter, Unconstitutional Discrimination in the Conflict of Laws: Equal Protection, 28 U.Chi.L.Rev. 1 (1960); Currie & Schreter, Unconstitutional Discrimination in the Conflict of Laws: Privileges and Immunities, 69 Yale L.J. 1323 (1960); Note, Unconstitutional Discrimination in Choice of Law, 77 Colum.L.Rev. 272 (1977). Moreover, both discriminatory and substantively unfair rules of law may be detected and remedied without any special choice-of-law analysis; familiar constitutional principles are available to deal with both varieties of unfairness. See, e. g., Martin, supra n.5, at 199.
16
Upon careful analysis most of the decisions of this Court that struck down on due process grounds a state court's choice of forum law can be explained as attempts to prevent a State with a minimal contact with the litigation from materially enlarging the contractual obligations of one of the parties where that party had no reason to anticipate the possibility of such enlargement. See, e. g., Home Ins. Co. v. Dick, 281 U.S. 397, 50 S.Ct. 338, 74 L.Ed. 926 (1930); Hartford Accident & Indemnity Co. v. Delta & Pine Land Co., 292 U.S. 143, 54 S.Ct. 634, 78 L.Ed. 1178 (1934); cf. John Hancock Mutual Life Ins. Co. v. Yates, 299 U.S. 178, 57 S.Ct. 129, 81 L.Ed. 106 (1936) (similar concern under Full Faith and Credit Clause, see n. 11, supra ). See generally Weintraub, supra n. 4, at 457-460.
17
See also Nelson v. Employers Mutual Casualty Co., 63 Wis.2d 558, 563-566, and nn. 2-3, 217 N.W.2d 670, 672-674, and nn. 2, 3 (1974), discussed ante, at 316-317, n. 22.
18
The "stacking" rule provides that all of the uninsured motorist coverage purchased by an insured party may be aggregated, or "stacked," to create a fund available to provide a recovery for a single accident.
19
For example, in Home Ins. Co. v. Dick, supra, at 403, and n. 1, 50 S.Ct., at 339, and n. 1, the insurance policy was subject, by its express terms, to Mexican law.
20
Home Ins. Co., supra, again provides a useful example. In that case, the insurance policy expressly provided a 1-year limitations period for claims arising thereunder. Id., at 403, 50 S.Ct., at 339. Similarly, the insurance policy at issue in Hartford Accident & Indemnity Co. v. Delta & Pine Land Co., supra, at 146, 54 S.Ct., at 635, also prescribed a specific limitations period.
While such express provisions are obviously relevant, they are not always dispositive. In Clay v. Sun Insurance Office, Ltd., 377 U.S. 179, 84 S.Ct. 1197, 12 L.Ed.2d 229 (1964), the Court allowed the lower court's choice of forum law to override an express contractual limitations period. The Court emphasized the fact that the insurer had issued the insurance policy with the knowledge that it would cover the insured property wherever it was taken. Id., at 181-182, 84 S.Ct., at 1198. The Court also noted that the insurer had not attempted to provide in the policy that the law of another State would control. Id., at 182, 84 S.Ct., at 1198.
In Watson v. Employers Liability Assurance Corp., 348 U.S., at 68, 75 S.Ct., at 167, the insurance policy expressly provided that an injured party could not maintain a direct action against the insurer until after the insured's liability had been determined. The Court found that neither the Due Process Clause nor the Full Faith and Credit Clause prevented the Louisiana courts from applying forum law to permit a direct action against the insurer prior to determination of the insured's liability. As in Clay, the Court noted that the policy provided coverage for injuries anywhere in the United States. 348 U.S. at 71-72, 75 S.Ct., at 169. An additional, although unarticulated, factor in Watson was the fact that the litigant urging that forum law be applied was not a party to the insurance contract. While contracting parties may be able to provide in advance that a particular rule of law will govern disputes between them, their expectations are clearly entitled to less weight when the rights of third-party litigants are at issue.
21
In Home Ins. Co., supra, the insurance policy was issued in Mexico by a Mexican corporation and covered the insured vessel only in certain Mexican waters. Id., at 403, 50 S.Ct., at 339.
22
In Clay v. Sun Insurance Office, Ltd., supra, at 182, 84 S.Ct., at 1198, and Watson v. Employers Liability Assurance Corp., supra, at 71-72, 75 S.Ct., at 169, the Court considered it significant, in upholding the lower courts' choice of forum law, that the insurance policies provided coverage throughout the United States. See n. 20, supra. Of course, in both Clay and Watson the loss to which the insurance applied actually occurred in the forum State, whereas the accident in this case occurred in Wisconsin, not Minnesota. However, as the dissent recognizes, post, at 336-337, because the question on the merits is one of contract interpretation rather than tort liability, the actual site of the accident is not dispositive with respect to the due process inquiry. More relevant is the fact that the parties, at the time of contracting, anticipated that an accident covered by the policy could occur in a "stacking" State. The fact that this particular accident did not occur in Minnesota does not undercut the expectations formed by the parties at the time of contracting.
In Hartford Accident & Indemnity Co. v. Delta & Pine Land Co., supra, the Court struck down a state court's choice of forum law despite the fact that the insurance contract's coverage was not limited by state boundaries. While Hartford Accident may indeed have "scant relevance for today," ante, at 309, n. 11, it is nonetheless consistent with a due process analysis based upon fundamental fairness to the parties. One of the statutes applied by the Mississippi courts in Hartford Accident was offensively broad, providing that "[a]ll contracts of insurance on property, lives or interests in this state shall be deemed to be made therein." 292 U.S., at 148, 54 S.Ct., at 635. No similar statute is involved in this case. In addition, the Mississippi courts applied the law of the forum to override an express contractual provision, and thus frustrated the expectations of the contracting parties. In the present case, the insurance contract contains no similar declaration of the intent of the parties.
23
Comparison of this case with Home Ins. Co. v. Dick, 281 U.S. 397, 50 S.Ct. 338, 74 L.Ed. 926 (1930), confirms my conclusion that the application of Minnesota law in this case does not offend the Due Process Clause. In Home Ins. Co., the contract expressly provided that a particular limitations period would govern claims arising under the insurance contract and that Mexican law was to be applied in interpreting the contract; in addition, the contract was limited in effect to certain Mexican waters. The parties could hardly have made their expectations with respect to the applicable law more plain. In this case, by way of contrast, nothing in the contract suggests that Wisconsin law should be applied or that Minnesota's "stacking" rule should not be applied. In this case, unlike Home Ins. Co., the court's choice of forum law results in no unfair surprise to the insurer.
24
Even this factor may not be of substantial significance. At the time of contracting, the parties were aware that the insurance policy was effective throughout the United States and that the law of any State, including Minnesota, might be applicable to particular claims. The fact that the decedent regularly drove to Minnesota, for whatever purpose, is relevant only to the extent that it affected the parties' evaluation, at the time of contracting, of the likelihood that Minnesota law would actually be applied at some point in the future. However, because the applicability of Minnesota law was perceived as possible at the time of contracting, it does not seem especially significant for due process purposes that the parties may also have considered it likely that Minnesota law would be applied. This factor merely reinforces the expectation revealed by the policy's national coverage.
25
In Kryger v. Wilson, 242 U.S. 171, 176, 37 S.Ct. 34, 35, 61 L.Ed. 229 (1916), after rejecting a due process challenge to a state court's choice of law, the Court stated:
"The most that the plaintiff in error can say is that the state court made a mistaken application of doctrines of the conflict of laws in deciding that the cancellation of a land contract is governed by the law of the situs instead of the place of making and performance. But that, being purely a question of local common law, is a matter with which this court is not concerned."
1
Home Ins. Co. v. Dick, 281 U.S. 397, 50 S.Ct. 338, 74 L.Ed. 926 (1930), is a case where the reasonable expectations of a litigant were frustrated. The insurance contract confined the risk to Mexico, where the loss occurred and where both the insurer and the insured resided until the claim accrued. This Court found a violation of the Due Process Clause when Texas, the forum State, applied a local rule to allow the insured to gain a recovery unavailable under Mexican law. Because of the geographic limitation on the risk, and because there were no contacts with the forum State until the claim accrued, the insurer could have had no reasonable expectation that Texas law would be applied to interpret its obligations under the contract. See Weintraub 455.
2
"It is manifest that Georgia had no interest in the application to this case of any policy to be found in its laws. When the contract was entered into, and at all times until the insured died, the parties and the transaction were beyond the legitimate reach of whatever policy Georgia may have had. Any interest asserted by Georgia must relate to the circumstance that the action is tried there, and must arise not from any policy directed to the business of life insurance but from some policy having to do with the business of the courts. This was apparently recognized even by the Georgia court; hence the disingenuous characterization of the matter as one of 'procedure' rather than of 'substance.' " Currie 236. See also, id., at 232-233.
3
The plurality today apparently recognizes that the significance of the contacts must be evaluated in light of the policies our review serves. It acknowledges that the sufficiency of the same contacts sometimes will differ in jurisdiction and choice-of-law questions. Ante, at 317, n. 23. The plurality, however, pursues the rationale for the requirement of sufficient contacts in choice-of-law cases no further than to observe that the forum's application of its own law must be "neither arbitrary nor fundamentally unfair." Ante, at 313. But this general prohibition does not distinguish questions of choice of law from those of jurisdiction, or from much of the jurisprudence of the Fourteenth Amendment.
4
The petitioner in John Hancock Mut. Life Ins. Co. v. Yates, 299 U.S. 178, 57 S.Ct. 129, 81 L.Ed. 106 (1936), did business in Georgia, the forum State, at the time of that case. See The Insurance Almanac 715 (1935). Also, Georgia extensively regulated insurance practices within the State at that time. See Ga.Code § 56-101 et seq. (1933). This Court did not hint in Yates that this fact was of the slightest significance to the choice-of-law question, although it would have been crucial for the exercise of in personam jurisdiction.
5
The plurality exacts double service from this fact, by finding a separate contact in that the insured commuted daily to his job. Ante, at 314-315. This is merely a repetition of the facts that the insured lived in Wisconsin and worked in Minnesota. The State does have an interest in the safety of motorists who use its roads. This interest is not limited to employees, but extends to all nonresident motorists on its highways. This safety interest, however, cannot encompass, either in logic or in any practical sense, the determination whether a nonresident's estate can stack benefit coverage in a policy written in another State regarding an accident that occurred on another State's roads.
Cardillo v. Liberty Mutual Ins. Co., 330 U.S. 469, 67 S.Ct. 801, 91 L.Ed. 1028 (1947), hardly establishes commutation as an independent contact; the case merely approved the application of a forum State's law to an industrial accident occurring in a neighboring State when the employer and the employee both resided in the forum State.
6
The opinion of Justice STEVENS concurring in the judgment supports my view that the forum State's application of its own law to this case cannot be justified by the existence of relevant minimum contacts. As Justice STEVENS observes, the principal factors relied on by the plurality are "either irrelevant to or possibly even tend to undermine the [plurality's] conclusion." Ante, at 331. The interesting analysis he proposes to uphold the State's judgment is, however, difficult to reconcile with our prior decisions and may create more problems than it solves. For example, it seems questionable to measure the interest of a State in a controversy by the degree of conscious reliance on that State's law by private parties to a contract. Ante, at 324. Moreover, scrutinizing the strength of the interests of a nonforum State may draw this Court back into the discredited practice of weighing the relative interests of various States in a particular controversy. See ante, at 308, n.10 (plurality opinion).
| 34
|
449 U.S. 383
101 S.Ct. 677
66 L.Ed.2d 584
UPJOHN COMPANY et al., Petitioners,v.UNITED STATES et al.
No. 79-886.
Argued Nov. 5, 1980.
Decided Jan. 13, 1981.
Syllabus
When the General Counsel for petitioner pharmaceutical manufacturing corporation (hereafter petitioner) was informed that one of its foreign subsidiaries had made questionable payments to foreign government officials in order to secure government business, an internal investigation of such payments was initiated. As part of this investigation, petitioner's attorneys sent a questionnaire to all foreign managers seeking detailed information concerning such payments, and the responses were returned to the General Counsel. The General Counsel and outside counsel also interviewed the recipients of the questionnaire and other company officers and employees. Subsequently, based on a report voluntarily submitted by petitioner disclosing the questionable payments, the Internal Revenue Service (IRS) began an investigation to determine the tax consequences of such payments and issued a summons pursuant to 26 U.S.C. § 7602 demanding production of, inter alia, the questionnaires and the memoranda and notes of the interviews. Petitioner refused to produce the documents on the grounds that they were protected from disclosure by the attorney-client privilege and constituted the work product of attorneys prepared in anticipation of litigation. The United States then filed a petition in Federal District Court seeking enforcement of the summons. That court adopted the Magistrate's recommendation that the summons should be enforced, the Magistrate having concluded, inter alia, that the attorney-client privilege had been waived and that the Government had made a sufficient showing of necessity to overcome the protection of the work-product doctrine. The Court of Appeals rejected the Magistrate's finding of a waiver of the attorney-client privilege, but held that under the so-called "control group test" the privilege did not apply "[t]o the extent that the communications were made by officers and agents not responsible for directing [petitioner's] actions in response to legal advice . . . for the simple reason that the communications were not the 'client's.' " The court also held that the work-product doctrine did not apply to IRS summonses.
Held:
1. The communications by petitioner's employees to counsel are covered by the attorney-client privilege insofar as the responses to the questionnaires and any notes reflecting responses to interview questions are concerned. Pp. 389-397.
(a) The control group test overlooks the fact that such privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice. While in the case of the individual client the provider of information and the person who acts on the lawyer's advice are one and the same, in the corporate context it will frequently be employees beyond the control group (as defined by the Court of Appeals) who will possess the information needed by the corporation's lawyers. Middle-level—and indeed lower-level employees can, by actions within the scope of their employment, embroil the corporation in serious legal difficulties, and it is only natural that these employees would have the relevant information needed by corporate counsel if he is adequately to advise the client with respect to such actual or potential difficulties. Pp. 390-392.
(b) The control group test thus frustrates the very purpose of the attorney-client privilege by discouraging the communication of relevant information by employees of the client corporation to attorneys seeking to render legal advice to the client. The attorney's advice will also frequently be more significant to noncontrol employees than to those who officially sanction the advice, and the control group test makes it more difficult to convey full and frank legal advice to the employees who will put into effect the client corporation's policy. P. 392.
(c) The narrow scope given the attorney-client privilege by the Court of Appeals not only makes it difficult for corporate attorneys to formulate sound advice when their client is faced with a specific legal problem but also threatens to limit the valuable efforts of corporate counsel to ensure their client's compliance with the law. P. 392-393.
(d) Here, the communications at issue were made by petitioner's employees to counsel for petitioner acting as such, at the direction of corporate superiors in order to secure legal advice from counsel. Information not available from upper-echelon management was needed to supply a basis for legal advice concerning compliance with securities and tax laws, foreign laws, currency regulations, duties to shareholders, and potential litigation in each of these areas. The communications concerned matters within the scope of the employees' corporate duties, and the employees themselves were sufficiently aware that they were being questioned in order that the corporation could obtain legal advice. Pp. 394-395.
2. The work-product doctrine applies to IRS summonses. Pp. 397-402.
(a) The obligation imposed by a tax summons remains subject to the traditional privileges and limitations, and nothing in the language or legislative history of the IRS summons provisions suggests an intent on the part of Congress to preclude application of the work-product doctrine. P. 398.
(b) The Magistrate applied the wrong standard when he concluded that the Government had made a sufficient showing of necessity to overcome the protections of the work-product doctrine. The notes and memoranda sought by the Government constitute work product based on oral statements. If they reveal communications, they are protected by the attorney-client privilege. To the extent they do not reveal communications they reveal attorneys' mental processes in evaluating the communications. As Federal Rule of Civil Procedure 26, which accords special protection from disclosure to work product revealing an attorney's mental processes, and Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451, make clear, such work product cannot be disclosed simply on a showing of substantial need or inability to obtain the equivalent without undue hardship. P. 401.
600 F.2d 1223, 6 Cir., reversed and remanded.
Daniel M. Gribbon, Washington, D. C., for petitioners.
Lawrence G. Wallace, Washington, D. C., for respondents.
Justice REHNQUIST delivered the opinion of the Court.
1
We granted certiorari in this case to address important questions concerning the scope of the attorney-client privilege in the corporate context and the applicability of the work-product doctrine in proceedings to enforce tax summonses. 445 U.S. 925, 100 S.Ct. 1310, 63 L.Ed.2d 758. With respect to the privilege question the parties and various amici have described our task as one of choosing between two "tests" which have gained adherents in the courts of appeals. We are acutely aware, however, that we sit to decide concrete cases and not abstract propositions of law. We decline to lay down a broad rule or series of rules to govern all conceivable future questions in this area, even were we able to do so. We can and do, however, conclude that the attorney-client privilege protects the communications involved in this case from compelled disclosure and that the work-product doctrine does apply in tax summons enforcement proceedings.
2
* Petitioner Upjohn Co. manufactures and sells pharmaceuticals here and abroad. In January 1976 independent accountants conducting an audit of one of Upjohn's foreign subsidiaries discovered that the subsidiary made payments to or for the benefit of foreign government officials in order to secure government business. The accountants, so informed petitioner, Mr. Gerard Thomas, Upjohn's Vice President, Secretary, and General Counsel. Thomas is a member of the Michigan and New York Bars, and has been Upjohn's General Counsel for 20 years. He consulted with outside counsel and R. T. Parfet, Jr., Upjohn's Chairman of the Board. It was decided that the company would conduct an internal investigation of what were termed "questionable payments." As part of this investigation the attorneys prepared a letter containing a questionnaire which was sent to "All Foreign General and Area Managers" over the Chairman's signature. The letter began by noting recent disclosures that several American companies made "possibly illegal" payments to foreign government officials and emphasized that the management needed full information concerning any such payments made by Upjohn. The letter indicated that the Chairman had asked Thomas, identified as "the company's General Counsel," "to conduct an investigation for the purpose of determining the nature and magnitude of any payments made by the Upjohn Company or any of its subsidiaries to any employee or official of a foreign government." The questionnaire sought detailed information concerning such payments. Managers were instructed to treat the investigation as "highly confidential" and not to discuss it with anyone other than Upjohn employees who might be helpful in providing the requested information. Responses were to be sent directly to Thomas. Thomas and outside counsel also interviewed the recipients of the questionnaire and some 33 other Upjohn officers or employees as part of the investigation.
3
On March 26, 1976, the company voluntarily submitted a preliminary report to the Securities and Exchange Commission on Form 8-K disclosing certain questionable payments.1 A copy of the report was simultaneously submitted to the Internal Revenue Service, which immediately began an investigation to determine the tax consequences of the payments. Special agents conducting the investigation were given lists by Upjohn of all those interviewed and all who had responded to the questionnaire. On November 23, 1976, the Service issued a summons pursuant to 26 U.S.C. § 7602 demanding production of:
4
"All files relative to the investigation conducted under the supervision of Gerard Thomas to identify payments to employees of foreign governments and any political contributions made by the Upjohn Company or any of its affiliates since January 1, 1971 and to determine whether any funds of the Upjohn Company had been improperly accounted for on the corporate books during the same period.
5
"The records should include but not be limited to written questionnaires sent to managers of the Upjohn Company's foreign affiliates, and memorandums or notes of the interviews conducted in the United States and abroad with officers and employees of the Upjohn Company and its subsidiaries." App. 17a-18a.
6
The company declined to produce the documents specified in the second paragraph on the grounds that they were protected from disclosure by the attorney-client privilege and constituted the work product of attorneys prepared in anticipation of litigation. On August 31, 1977, the United States filed a petition seeking enforcement of the summons under 26 U.S.C. §§ 7402(b) and 7604(a) in the United States District Court for the Western District of Michigan. That court adopted the recommendation of a Magistrate who concluded that the summons should be enforced. Petitioners appealed to the Court of Appeals for the Sixth Circuit which rejected the Magistrate's finding of a waiver of the attorney-client privilege, 600 F.2d 1223, 1227, n. 12, but agreed that the privilege did not apply "[t]o the extent that the communications were made by officers and agents not responsible for directing Upjohn's actions in response to legal advice . . . for the simple reason that the communications were not the 'client's.' " Id., at 1225. The court reasoned that accepting petitioners' claim for a broader application of the privilege would encourage upper-echelon management to ignore unpleasant facts and create too broad a "zone of silence." Noting that Upjohn's counsel had interviewed officials such as the Chairman and President, the Court of Appeals remanded to the District Court so that a determination of who was within the "control group" could be made. In a concluding footnote the court stated that the work-product doctrine "is not applicable to administrative summonses issued under 26 U.S.C. § 7602." Id., at 1228, n. 13.
II
7
Federal Rule of Evidence 501 provides 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 light of reason and experience." The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law. 8 J. Wigmore, Evidence § 2290 (McNaughton rev. 1961). Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client. As we stated last Term in Trammel v. United States, 445 U.S. 40, 51, 100 S.Ct. 906, 913, 63 L.Ed.2d 186 (1980): "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." And in Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 1577, 48 L.Ed.2d 39 (1976), we recognized the purpose of the privilege to be "to encourage clients to make full disclosure to their attorneys." This rationale for the privilege has long been recognized by the Court, see Hunt v. Blackburn, 128 U.S. 464, 470, 9 S.Ct. 125, 127, 32 L.Ed. 488 (1888) (privilege "is founded upon the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure"). Admittedly complications in the application of the privilege arise when the client is a corporation, which in theory is an artificial creature of the law, and not an individual; but this Court has assumed that the privilege applies when the client is a corporation. United States v. Louisville & Nashville R. Co., 236 U.S. 318, 336, 35 S.Ct. 363, 369, 59 L.Ed. 598 (1915), and the Government does not contest the general proposition.
8
The Court of Appeals, however, considered the application of the privilege in the corporate context to present a "different problem," since the client was an inanimate entity and "only the senior management, guiding and integrating the several operations, . . . can be said to possess an identity analogous to the corporation as a whole." 600 F.2d at 1226. The first case to articulate the so-called "control group test" adopted by the court below, Philadelphia v. Westinghouse Electric Corp., 210 F.Supp. 483, 485 (ED Pa.), petition for mandamus and prohibition denied sub nom. General Electric Co. v. Kirkpatrick, 312 F.2d 742 (CA3 1962), cert. denied, 372 U.S. 943, 83 S.Ct. 937, 9 L.Ed.2d 969 (1963), reflected a similar conceptual approach:
9
"Keeping in mind that the question is, Is it the corporation which is seeking the lawyer's advice when the asserted privileged communication is made?, the most satisfactory solution, I think, is that if the employee making the communication, of whatever rank he may be, is in a position to control or even to take a substantial part in a decision about any action which the corporation may take upon the advice of the attorney, . . . then, in effect, he is (or personifies) the corporation when he makes his disclosure to the lawyer and the privilege would apply." (Emphasis supplied.)
10
Such a view, we think, overlooks the fact that the privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice. See Trammel, supra, at 51, 100 S.Ct., at 913; Fisher, supra, at 403, 96 S.Ct., at 1577. The first step in the resolution of any legal problem is ascertaining the factual background and sifting through the facts with an eye to the legally relevant. See ABA Code of Professional Responsibility, Ethical Consideration 4-1:
11
"A lawyer should be fully informed of all the facts of the matter he is handling in order for his client to obtain the full advantage of our legal system. It is for the lawyer in the exercise of his independent professional judgment to separate the relevant and important from the irrelevant and unimportant. The observance of the ethical obligation of a lawyer to hold inviolate the confidences and secrets of his client not only facilitates the full development of facts essential to proper representation of the client but also encourages laymen to seek early legal assistance."
12
See also Hickman v. Taylor, 329 U.S. 495, 511, 67 S.Ct. 385, 393-394, 91 L.Ed. 451 (1947).
13
In the case of the individual client the provider of information and the person who acts on the lawyer's advice are one and the same. In the corporate context, however, it will frequently be employees beyond the control group as defined by the court below-"officers and agents . . . responsible for directing [the company's] actions in response to legal advice"-who will possess the information needed by the corporation's lawyers. Middle-level—and indeed lower-level—employees can, by actions within the scope of their employment, embroil the corporation in serious legal difficulties, and it is only natural that these employees would have the relevant information needed by corporate counsel if he is adequately to advise the client with respect to such actual or potential difficulties. This fact was noted in Diversified Industries, Inc. v. Meredith, 572 F.2d 596 (CA8 1978) (en banc):
14
"In a corporation, it may be necessary to glean information relevant to a legal problem from middle management or non-management personnel as well as from top executives. The attorney dealing with a complex legal problem 'is thus faced with a "Hobson's choice". If he interviews employees not having "the very highest authority", their communications to him will not be privileged. If, on the other hand, he interviews only those employees with the "very highest authority", he may find it extremely difficult, if not impossible, to determine what happened.' " Id., at 608-609 (quoting Weinschel Corporate Employee Interviews and the Attorney-Client Privilege, 12 B.C.Ind. & Com. L.Rev. 873, 876 (1971)).
15
The control group test adopted by the court below thus frustrates the very purpose of the privilege by discouraging the communication of relevant information by employees of the client to attorneys seeking to render legal advice to the client corporation. The attorney's advice will also frequently be more significant to noncontrol group members than to those who officially sanction the advice, and the control group test makes it more difficult to convey full and frank legal advice to the employees who will put into effect the client corporation's policy. See, e. g., Duplan Corp. v. Deering Milliken, Inc., 397 F.Supp. 1146, 1164 (DSC 1974) ("After the lawyer forms his or her opinion, it is of no immediate benefit to the Chairman of the Board or the President. It must be given to the corporate personnel who will apply it").
16
The narrow scope given the attorney-client privilege by the court below not only makes it difficult for corporate attorneys to formulate sound advice when their client is faced with a specific legal problem but also threatens to limit the valuable efforts of corporate counsel to ensure their client's compliance with the law. In light of the vast and complicated array of regulatory legislation confronting the modern corporation, corporations, unlike most individuals, "constantly go to lawyers to find out how to obey the law," Burnham, The Attorney-Client Privilege in the Corporate Arena, 24 Bus.Law. 901, 913 (1969), particularly since compliance with the law in this area is hardly an instinctive matter, see, e. g., United States v. United States Gypsum Co., 438 U.S. 422, 440-441, 98 S.Ct. 2864, 2875-2876, 57 L.Ed.2d 854 (1978) ("the behavior proscribed by the [Sherman] Act is often difficult to distinguish from the gray zone of socially acceptable and economically justifiable business conduct").2 The test adopted by the court below is difficult to apply in practice, though no abstractly formulated and unvarying "test" will necessarily enable courts to decide questions such as this with mathematical precision. But if the purpose of the attorney-client privilege is to be served, the attorney and client must be able to predict with some degree of certainty whether particular discussions will be protected. An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all. The very terms of the test adopted by the court below suggest the unpredictability of its application. The test restricts the availability of the privilege to those officers who play a "substantial role" in deciding and directing a corporation's legal response. Disparate decisions in cases applying this test illustrate its unpredictability. Compare, e. g., Hogan v. Zletz, 43 F.R.D. 308, 315-316 (ND Okl.1967), aff'd in part sub nom. Natta v. Hogan, 392 F.2d 686 (CA10 1968) (control group includes managers and assistant managers of patent division and research and development department), with Congoleum Industries, Inc. v. GAF Corp., 49 F.R.D. 82, 83-85 (ED Pa.1969), aff'd, 478 F.2d 1398 (CA3 1973) (control group includes only division and corporate vice presidents, and not two directors of research and vice president for production and research).
17
The communications at issue were made by Upjohn employees3 to counsel for Upjohn acting as such, at the direction of corporate superiors in order to secure legal advice from counsel. As the Magistrate found, "Mr. Thomas consulted with the Chairman of the Board and outside counsel and thereafter conducted a factual investigation to determine the nature and extent of the questionable payments and to be in a position to give legal advice to the company with respect to the payments." (Emphasis supplied.) 78-1 USTC ¶ 9277, pp. 83,598, 83,599. Information, not available from upper-echelon management, was needed to supply a basis for legal advice concerning compliance with securities and tax laws, foreign laws, currency regulations, duties to shareholders, and potential litigation in each of these areas.4 The communications concerned matters within the scope of the employees' corporate duties, and the employees themselves were sufficiently aware that they were being questioned in order that the corporation could obtain legal advice. The questionnaire identified Thomas as "the company's General Counsel" and referred in its opening sentence to the possible illegality of payments such as the ones on which information was sought. App. 40a. A statement of policy accompanying the questionnaire clearly indicated the legal implications of the investigation. The policy statement was issued "in order that there be no uncertainty in the future as to the policy with respect to the practices which are the subject of this investigation." It began "Upjohn will comply with all laws and regulations," and stated that commissions or payments "will not be used as a subterfuge for bribes or illegal payments" and that all payments must be "proper and legal." Any future agreements with foreign distributors or agents were to be approved "by a company attorney" and any questions concerning the policy were to be referred "to the company's General Counsel." Id., at 165a-166a. This statement was issued to Upjohn employees worldwide, so that even those interviewees not receiving a questionnaire were aware of the legal implications of the interviews. Pursuant to explicit instructions from the Chairman of the Board, the communications were considered "highly confidential" when made, id., at 39a, 43a, and have been kept confidential by the company.5 Consistent with the underlying purposes of the attorney-client privilege, these communications must be protected against compelled disclosure.
18
The Court of Appeals declined to extend the attorney-client privilege beyond the limits of the control group test for fear that doing so would entail severe burdens on discovery and create a broad "zone of silence" over corporate affairs. Application of the attorney-client privilege to communications such as those involved here, however, puts the adversary in no worse position than if the communications had never taken place. The privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney:
19
"[T]he protection of the privilege extends only to communications and not to facts. A fact is one thing and a communication concerning that fact is an entirely different thing. The client cannot be compelled to answer the question, 'What did you say or write to the attorney?' but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney." Philadelphia v. Westinghouse Electric Corp., 205 F.Supp. 830, 831 ( q2.7).
20
See also Diversified Industries, 572 F.2d., at 611; State ex rel. Dudek v. Circuit Court, 34 Wis.2d 559, 580, 150 N.W.2d 387, 399 (1967) ("the courts have noted that a party cannot conceal a fact merely by revealing it to his lawyer"). Here the Government was free to question the employees who communicated with Thomas and outside counsel. Upjohn has provided the IRS with a list of such employees, and the IRS has already interviewed some 25 of them. While it would probably be more convenient for the Government to secure the results of petitioner's internal investigation by simply subpoenaing the questionnaires and notes taken by petitioner's attorneys, such considerations of convenience do not overcome the policies served by the attorney-client privilege. As Justice Jackson noted in his concurring opinion in Hickman v. Taylor, 329 U.S., at 516, 67 S.Ct., at 396: "Discovery was hardly intended to enable a learned profession to perform its functions . . . on wits borrowed from the adversary."
21
Needless to say, we decide only the case before us, and do not undertake to draft a set of rules which should govern challenges to investigatory subpoenas. Any such approach would violate the spirit of Federal Rule of Evidence 501. See S.Rep. No. 93-1277, p. 13 (1974) ("the recognition of a privilege based on a confidential relationship . . . should be determined on a case-by-case basis"); Trammel, 445 U.S., at 47, 100 S.Ct., at 910-911; United States v. Gillock, 445 U.S. 360, 367, 100 S.Ct. 1185, 1190, 63 L.Ed.2d 454 (1980). While such a "case-by-case" basis may to some slight extent undermine desirable certainty in the boundaries of the attorney-client privilege, it obeys the spirit of the Rules. At the same time we conclude that the narrow "control group test" sanctioned by the Court of Appeals, in this case cannot, consistent with "the principles of the common law as . . . interpreted . . . in the light of reason and experience," Fed. Rule Evid. 501, govern the development of the law in this area.
III
22
Our decision that the communications by Upjohn employees to counsel are covered by the attorney-client privilege disposes of the case so far as the responses to the questionnaires and any notes reflecting responses to interview questions are concerned. The summons reaches further, however, and Thomas has testified that his notes and memoranda of interviews go beyond recording responses to his questions. App. 27a-28a, 91a-93a. To the extent that the material subject to the summons is not protected by the attorney-client privilege as disclosing communications between an employee and counsel, we must reach the ruling by the Court of Appeals that the work-product doctrine does not apply to summonses issued under 26 U.S.C. § 7602.6
23
The Government concedes, wisely, that the Court of Appeals erred and that the work-product doctrine does apply to IRS summonses. Brief for Respondents 16, 48. This doctrine was announced by the Court over 30 years ago in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). In that case the Court rejected "an attempt, without purported necessity or justification, to secure written statements, private memoranda and personal recollections prepared or formed by an adverse party's counsel in the course of his legal duties." Id., at 510, 67 S.Ct., at 393. The Court noted that "it is essential that a lawyer work with a certain degree of privacy" and reasoned that if discovery of the material sought were permitted
24
"much of what is now put down in writing would remain unwritten. An attorney's thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served." Id., at 511, 67 S.Ct., at 393-394.
25
The "strong public policy" underlying the work-product doctrine was reaffirmed recently in United States v. Nobles, 422 U.S. 225, 236-240, 95 S.Ct. 2160, 2169-2171, 45 L.Ed.2d 141 (1975), and has been substantially incorporated in Federal Rule of Civil Procedure 26(b)(3).7
26
As we stated last Term, the obligation imposed by a tax summons remains "subject to the traditional privileges and limitations." United States v. Euge, 444 U.S. 707, 714, 100 S.Ct. 874, 879-880, 63 L.Ed.2d 741 (1980). Nothing in the language of the IRS summons provisions or their legislative history suggests an intent on the part of Congress to preclude application of the work-product doctrine. Rule 26(b)(3) codifies the work-product doctrine, and the Federal Rules of Civil Procedure are made applicable to summons enforcement proceedings by Rule 81(a)(3). See Donaldson v. United States, 400 U.S. 517, 528, 91 S.Ct. 534, 541, 27 L.Ed.2d 580 (1971). While conceding the applicability of the work-product doctrine, the Government asserts that it has made a sufficient showing of necessity to overcome its protections. The Magistrate apparently so found, 78-1 USTC ¶ 9277, p. 83,605. The Government relies on the following language in Hickman:
27
"We do not mean to say that all written materials obtained or prepared by an adversary's counsel with an eye toward litigation are necessarily free from discovery in all cases. Where relevant and nonprivileged facts remain hidden in an attorney's file and where production of those facts is essential to the preparation of one's case, discovery may properly be had. . . . And production might be justified where the witnesses are no longer available or can be reached only with difficulty." 329 U.S., at 511, 67 S.Ct., at 394.
28
The Government stresses that interviewees are scattered across the globe and that Upjohn has forbidden its employees to answer questions it considers irrelevant. The above-quoted language from Hickman, however, did not apply to "oral statements made by witnesses . . . whether presently in the form of [the attorney's] mental impressions or memoranda." Id., at 512, 67 S.Ct., at 394. As to such material the Court did "not believe that any showing of necessity can be made under the circumstances of this case so as to justify production. . . . If there should be a rare situation justifying production of these matters petitioner's case is not of that type." Id., at 512-513, 67 S.Ct., at 394-395. See also Nobles, supra, 422 U.S., at 252-253, 95 S.Ct., at 2177 (WHITE, J., concurring). Forcing an attorney to disclose notes and memoranda of witnesses' oral statements is particularly disfavored because it tends to reveal the attorney's mental processes, 329 U. S., at 513, 67 S.Ct., at 394-395 ("what he saw fit to write down regarding witnesses' remarks"); id, at 516-517, 67 S.Ct., at 396 ("the statement would be his [the attorney's] language, permeated with his inferences") (Jackson, J., concurring).8
29
Rule 26 accords special protection to work product revealing the attorney's mental processes. The Rule permits disclosure of documents and tangible things constituting attorney work product upon a showing of substantial need and inability to obtain the equivalent without undue hardship. This was the standard applied by the Magistrate, 78-1 USTC ¶ 9277, p. 83,604. Rule 26 goes on, however, to state that "[i]n ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation." Although this language does not specifically refer to memoranda based on oral statements of witnesses, the Hickman court stressed the danger that compelled disclosure of such memoranda would reveal the attorney's mental processes. It is clear that this is the sort of material the draftsmen of the Rule had in mind as deserving special protection. See Notes of Advisory Committee on 1970 Amendment to Rules, 28 U.S.C.App., p. 442 ("The subdivision . . . goes on to protect against disclosure the mental impressions, conclusions, opinions, or legal theories . . . of an attorney or other representative of a party. The Hickman opinion drew special attention to the need for protecting an attorney against discovery of memoranda prepared from recollection of oral interviews. The courts have steadfastly safeguarded against disclosure of lawyers' mental impressions and legal theories . . .").
30
Based on the foregoing, some courts have concluded that no showing of necessity can overcome protection of work product which is based on oral statements from witnesses. See, e. g., In re Grand Jury Proceedings, 473 F.2d 840, 848 (CA8 1973) (personal recollections, notes, and memoranda pertaining to conversation with witnesses); In re Grand Jury Investigation, 412 F.Supp. 943, 949 (ED Pa.1976) (notes of conversation with witness "are so much a product of the lawyer's thinking and so little probative of the witness's actual words that they are absolutely protected from disclosure"). Those courts declining to adopt an absolute rule have nonetheless recognized that such material is entitled to special protection. See, e. g., In re Grand Jury Investigation, 599 F.2d 1224, 1231 (CA3 1979) ("special considerations . . . must shape any ruling on the discoverability of interview memoranda . . .; such documents will be discoverable only in a 'rare situation' "); Cf. In re Grand Jury Subpoena, 599 F.2d 504, 511-512 (CA2 1979).
31
We do not decide the issue at this time. It is clear that the Magistrate applied the wrong standard when he concluded that the Government had made a sufficient showing of necessity to overcome the protections of the work-product doctrine. The Magistrate applied the "substantial need" and "without undue hardship" standard articulated in the first part of Rule 26(b)(3). The notes and memoranda sought by the Government here, however, are work product based on oral statements. If they reveal communications, they are, in this case, protected by the attorney-client privilege. To the extent they do not reveal communications, they reveal the attorneys' mental processes in evaluating the communications. As Rule 26 and Hickman make clear, such work product cannot be disclosed simply on a showing of substantial need and inability to obtain the equivalent without undue hardship.
32
While we are not prepared at this juncture to say that such material is always protected by the work-product rule, we think a far stronger showing of necessity and unavailability by other means than was made by the Government or applied by the Magistrate in this case would be necessary to compel disclosure. Since the Court of Appeals thought that the work-product protection was never applicable in an enforcement proceeding such as this, and since the Magistrate whose recommendations the District Court adopted applied too lenient a standard of protection, we think the best procedure with respect to this aspect of the case would be to reverse the judgment of the Court of Appeals for the Sixth Circuit and remand the case to it for such further proceedings in connection with the work-product claim as are consistent with this opinion.
33
Accordingly, the judgment of the Court of Appeals is reversed, and the case remanded for further proceedings.
34
It is so ordered.
35
Chief Justice BURGER, concurring in part and concurring in the judgment.
36
I join in Parts I and III of the opinion of the Court and in the judgment. As to Part II, I agree fully with the Court's rejection of the so-called "control group" test, its reasons for doing so, and its ultimate holding that the communications at issue are privileged. As the Court states, however, "if the purpose of the attorney-client privilege is to be served, the attorney and client must be able to predict with some degree of certainty whether particular discussions will be protected." Ante, at 393. For this very reason, I believe that we should articulate a standard that will govern similar cases and afford guidance to corporations, counsel advising them, and federal courts.
37
The Court properly relies on a variety of factors in concluding that the communications now before us are privileged. See ante, at 394-395. Because of the great importance of the issue, in my view the Court should make clear now that, as a general rule, a communication is privileged at least when, as here, an employee or former employee speaks at the direction of the management with an attorney regarding conduct or proposed conduct within the scope of employment. The attorney must be one authorized by the management to inquire into the subject and must be seeking information to assist counsel in performing any of the following functions: (a) evaluating whether the employee's conduct has bound or would bind the corporation; (b) assessing the legal consequences, if any, of that conduct; or (c) formulating appropriate legal responses to actions that have been or may be taken by others with regard to that conduct. See, e. g., Diversified Industries, Inc. v. Meredith, 572 F.2d 596, 609 (CA8 1978) (en banc); Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 491-492 (CA7 1970), aff'd by an equally divided Court, 400 U.S. 348, 91 S.Ct. 479, 27 L.Ed.2d 433 (1971); Duplan Corp v. Deering Milliken, Inc., 397 F.Supp. 1146, 1163-1165 (DSC 1974). Other communications between employees and corporate counsel may indeed be privileged—as the petitioners and several amici have suggested in their proposed formulations*—but the need for certainty does not compel us now to prescribe all the details of the privilege in this case.
38
Nevertheless, to say we should not reach all facets of the privilege does not mean that we should neglect our duty to provide guidance in a case that squarely presents the question in a traditional adversary context. Indeed, because Federal Rule of Evidence 501 provides that the law of privileges "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," this Court has a special duty to clarify aspects of the law of privileges properly before us. Simply asserting that this failure "may to some slight extent undermine desirable certainty," ante, at 396, neither minimizes the consequences of continuing uncertainty and confusion nor harmonizes the inherent dissonance of acknowledging that uncertainty while declining to clarify it within the frame of issues presented.
1
On July 28, 1976, the company filed an amendment to this report disclosing further payments.
2
The Government argues that the risk of civil or criminal liability suffices to ensure that corporations will seek legal advice in the absence of the protection of the privilege. This response ignores the fact that the depth and quality of any investigations, to ensure compliance with the law would suffer, even were they undertaken. The response also proves too much, since it applies to all communications covered by the privilege: an individual trying to comply with the law or faced with a legal problem also has strong incentive to disclose information to his lawyer, yet the common law has recognized the value of the privilege in further facilitating communications.
3
Seven of the eighty-six employees interviewed by counsel had terminated their employment with Upjohn at the time of the interview. App. 33a-38a. Petitioners argue that the privilege should nonetheless apply to communications by these former employees concerning activities during their period of employment. Neither the District Court nor the Court of Appeals had occasion to address this issue, and we decline to decide it without the benefit of treatment below.
4
See id., at 26a-27a, 103a, 123a-124a. See also In re Grand Jury Investigation, 599 F.2d 1224, 1229 (CA3 1979); In re Grand Jury Subpoena, 599 F.2d 504, 511 (CA2 1979).
5
See Magistrate's opinion, 78-1 USTC ¶ 9277, p. 83,599: "The responses to the questionnaires and the notes of the interviews have been treated as confidential material and have not been disclosed to anyone except Mr. Thomas and outside counsel."
6
The following discussion will also be relevant to counsel's notes and memoranda of interviews with the seven former employees should it be determined that the attorney-client privilege does not apply to them. See n. 3, supra.
7
This provides, in pertinent part:
"[A] party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation."
8
Thomas described his notes of the interviews as containing "what I considered to be the important questions, the substance of the responses to them, my beliefs as to the importance of these, my beliefs as to how they related to the inquiry, my thoughts as to how they related to other questions. In some instances they might even suggest other questions that I would have to ask or things that I needed to find elsewhere." 78-1 USTC ¶ 9277, p. 83,599.
*
See Brief for Petitioners 21-23, and n. 25; Brief for American Bar Association as Amicus Curiae 5-6, and n. 2; Brief for American College of Trial Lawyers and 33 Law Firms as Amici Curiae 9-10, and n. 5.
| 45
|
449 U.S. 341
101 S.Ct. 654
66 L.Ed.2d 549
John Gregory WATKINS, Petitioner,v.Dewey SOWDERS, Warden. James Willard SUMMITT, Petitioner, v. Dewey SOWDERS, Warden.
Nos. 79-5949, 79-5951.
Argued Nov. 10, 1980.
Decided Jan. 13, 1981.
Syllabus
Held: A state criminal court is not required by the Due Process Clause of the Fourteenth Amendment to conduct a hearing out of the jury's presence whenever a defendant contends that a witness' identification of him was arrived at improperly. Pp. 345-349.
(a) Where identification evidence is at issue, no such special considerations as exist where the issue of the voluntariness of a confession is presented-an involuntary confession being inadmissible both because it is likely to be unreliable and because of society's aversion to forced confessions, even if true, Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908-justify a departure from the presumption that juries will follow the trial court's instructions. It is the reliability of identification evidence that primarily determines its admissibility, and the proper evaluation of evidence under the trial judge's instructions is the very task our system must assume juries can perform. Pp. 346-348.
(b) There is no merit to the contention that vigorous and full cross-examination in the presence of the jury of witnesses as to the possible improprieties of pretrial identifications is inconsistent with due process of law. While a "predicament" is always presented when a lawyer decides on cross-examination to ask a question that may produce an answer unfavorable to his client, the Due Process Clause does not inevitably require the abandonment of the time-honored process of cross-examination as the device best suited to determine the trustworthiness of testimonial evidence. Pp. 348-349.
(c) While a judicial determination outside the jury's presence as to the admissibility of identification evidence may often be advisable and, in some circumstances, not presented in these cases, may be constitutionally necessary, it does not follow that the Constitution requires a per se rule compelling such a procedure in every case. P. 349.
608 F.2d 247, affirmed.
Frank W. Heft, Jr., Louisville, Ky., for petitioners.
Victor Fox, Lexington, Ky., for respondents.
Justice STEWART delivered the opinion of the Court.
1
These cases, consolidated for argument and decision in the Court of Appeals and in this Court, present the question whether a state criminal trial court is constitutionally compelled to conduct a hearing outside the presence of the jury whenever a defendant contends that a witness' identification of him was arrived at improperly.
2
* A.
3
John Watkins, the petitioner in No. 79-5949, was convicted in a Kentucky court of attempting to rob a Louisville liquor store. On the night of January 11, 1975, four men entered the store, one of whom asked for a pack of cigarettes. Walter Smith, an employee of the store, turned around to get the cigarettes, and one of the men said "[t]his is a hold-up." Donald Goeing, a part owner of the store, had been stocking a soft-drink cooler, and when he heard those words, he turned towards the robbers. The man who had spoken thereupon fired two shots at him, one striking him in his arm, the other in the region of his heart. The four men then fled.
4
That night Smith and Goeing described the gunman to the police. Two days later, the police in the presence of Smith conducted a lineup consisting of three men, one of whom was Watkins. Smith identified Watkins as the gunman. That same day, the police took Watkins to Goeing's hospital bed, and Goeing identified Watkins as the man who had shot him. Watkins was then charged with first-degree robbery and first-degree assault.
5
At the subsequent trial of Watkins, the prosecution called Smith and Goeing as witnesses. They both identified Watkins as Goeing's assailant but were not asked by the prosecution about the lineup or the showup. Watkins' counsel, however, cross-examined both men at some length about both the lineup and showup. The prosecution then called a police officer. He testified that he had taken Watkins to be identified at the hospital because "at that time there was some question as to whether or not Mr. Goeing was going to survive the incident." Watkins' counsel cross-examined the officer about both the showup and the lineup and through him introduced pictures of the lineup. For the defense, Watkins' counsel called two witnesses who said that they had been in a pool hall with Watkins at the time of the robbery and another witness who said he had been in the liquor store at the time of the robbery and had not seen Watkins. Finally, Watkins himself testified to his innocence.
6
On appeal, as he had at trial, counsel for Watkins argued that the trial court had a constitutional obligation to conduct a hearing outside the presence of the jury to determine whether the identification evidence was admissible. The Supreme Court of Kentucky rejected that argument. Relying on its decision in Ray v. Commonwealth, 550 S.W.2d 482, 483 (1977), the court said " '[a]lthough we are of the opinion that the holding of such a hearing prior to the introduction of this testimony would have been the preferred course to follow, we are not persuaded the failure to have done so requires reversal of appellant's conviction.' " Watkins v. Commonwealth, 565 S.W.2d 630, 631 (1978). The court found that the identification procedures "fail[ed] to raise any impermissible suggestiveness" and that Watkins "was in no way prejudiced." Ibid.
7
Watkins then unsuccessfully sought a writ of habeas corpus in the United States District Court for the Western District of Kentucky. That court held that, "although pretrial suppression hearings are preferable, the failure to hold them does not require the reversal of a conviction."1 The court also found that admission of neither the lineup nor the showup evidence at the state trial had violated constitutional standards.
8
The Court of Appeals for the Sixth Circuit affirmed the District Court's judgment and, like the District Court, ruled that a hearing on the admissibility of identification evidence need not be held outside the presence of the jury. Turning to the evidence itself, the court cited Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, as authority for holding that "[g]iven the seriousness of the wounds to Donald Goeing, a showup was necessary in this case." Summitt v. Bordenkircher, 608 F.2d 247, 252. The federal appellate court also held that the lineup evidence had been constitutionally admissible at the state trial.
B
9
James Summitt, the petitioner in No. 79-5951, was convicted in a Kentucky court of rape. Late on the night of July 20, 1974, the prosecutrix was forced into a car occupied by two men, driven to an isolated location, raped by one of the men, and then returned to her own car. The next day she reported the crime to the police, described the rapist, and looked through 12 volumes of photographs from police files, without identifying the man who had raped her. Two days later she was taken to another police station, where she examined more pictures. A police officer testified at the subsequent trial of Summitt that "after a short time she pointed to the defendant's picture and said: 'This is the man that raped me. There's no doubt about it, this is Jimbo, the man that raped me.' " In addition to the officer, the prosecutrix and her stepfather as witnesses for the prosecution described the prosecutrix's examination of the police photographs, and the prosecutrix testified that Summitt was the man who had raped her. There was extensive cross-examination.
10
The Supreme Court of Kentucky found "no error in the trial court's refusal to conduct a suppression hearing and no semblance of impermissible suggestiveness in the identification procedure." Summitt v. Commonwealth, 550 S.W.2d 548, 550 (1977). Summitt then sought a writ of habeas corpus in the United States District Court for the Western District of Kentucky, but that court found no constitutional error. The Court of Appeals, as in the consolidated Watkins case, affirmed the judgment of the District Court, 608 F.2d 247.
11
We granted certiorari to consider the constitutional claim asserted by both petitioners throughout their state and federal court proceedings. Sub nom. Watkins v. Bordenkircher and Summitt v. Bordenkircher, 445 U.S. 926, 100 S.Ct. 1312, 63 L.Ed.2d 759.
II
12
The issue before us is not, of course, whether a trial court acts prudently in holding a hearing out of the presence of the jury to determine the admissibility of identification evidence. The prudence of such a hearing has been emphasized by many decisions in the Courts of Appeals, most of which have in various ways admonished trial courts to use that procedure.2 The issue here, rather, is whether such a hearing is required by the Due Process Clause of the Fourteenth Amendment.
13
In urging an affirmative answer, the petitioners first cite cases holding that a defendant has a right to the presence of his counsel at a postindictment lineup, e. g., United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and that an identification procedure, in the absence of a lineup, may be so defective as to deprive a defendant of due process of law, e. g., Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. The petitioners then analogize their cases to Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, in which this Court enunciated a defendant's right "to have a fair hearing and a reliable determination on the issue of voluntariness," id., at 377, 84 S.Ct., at 1781, and in which the Court declared unconstitutional a New York procedure which gave the jury what was in practice unreviewable discretion to decide whether a confession was or was not voluntary.
14
The petitioners contend that Jackson v. Denno established a per se due process right to a hearing outside the presence of the jury whenever a question of the voluntariness of a confession is raised. If such a hearing is required where the voluntariness of a confession is at issue, it follows, the petitioners argue, that a similar hearing must also be required where the propriety of identification procedures has been questioned.
15
Even if it be assumed that Jackson v. Denno did establish the per se rule asserted,3 the petitioners' argument must fail, because Jackson v. Denno is not analogous to the cases now before us. The Court in Jackson did reject the usual presumption that a jury can be relied upon to determine issues according to the trial judge's instructions, but the Court did so because of the peculiar problems the issue of the voluntariness of a confession presents. The Court pointed out that, while an involuntary confession is inadmissible in part because such a confession is likely to be unreliable, it is also inadmissible even if it is true, because of the " 'strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will.' " Id., at 385, 84 S.Ct., at 1785, quoting Blackburn v. Alabama, 361 U.S. 199, 206-207, 80 S.Ct. 274, 279, 4 L.Ed.2d 242. The Court concluded in Jackson that a jury "may find it difficult to understand the policy forbidding reliance upon a coerced, but true confession. . . . Objective consideration of the conflicting evidence concerning the circumstances of the confession becomes difficult and the [jury's] implicit findings become suspect." Id., 378 U.S., at 382, 84 S.Ct., at 1783.
16
Where identification evidence is at issue, however, no such special considerations justify a departure from the presumption that juries will follow instructions. It is the reliability of identification evidence that primarily determines its admissibility, Manson v. Brathwaite, 432 U.S. 98, 113-114, 97 S.Ct. 2243, 2252, 53 L.Ed.2d 140; United States ex rel. Kirby v. Sturges, 510 F.2d 397, 402-404 (CA7 1975) (Stevens, J.). And the proper evaluation of evidence under the instructions of the trial judge is the very task our system must assume juries can perform. Indeed, as the cases before us demonstrate, the only duty of a jury in cases in which identification evidence has been admitted will often be to assess the reliability of that evidence. Thus the Court's opinion in Manson v. Brathwaite approvingly quoted Judge Leventhal's statement that,
17
" '[w]hile identification testimony is significant evidence, such testimony is still only evidence, and, unlike the presence of counsel, is not a factor that goes to the very heart-the 'integrity'-of the adversary process.
18
" 'Counsel can both cross-examine the identification witnesses and argue in summation as to factors causing doubts as to the accuracy of the identification-including reference to both any suggestibility in the identification procedure and any countervailing testimony such as alibi.' " 432 U.S., at 114, n. 14, 97 S.Ct., at 2253, n. 14, quoting Clemons v. United States, 133 U.S.App.D.C. 27, 48, 408 F.2d 1230, 1251 (1968) (concurring opinion) (footnote omitted).
19
The petitioners argue, however, that cross-examination is inadequate in cases such as these. They assert that the presence of the jury deterred their lawyers from cross-examining the witnesses vigorously and fully as to the possible improprieties of the pretrial identifications in these cases. The petitioners point to no specific instances in the trial when their counsel were thus deterred, and the record reveals that the cross-examination on the identity issues was, if not always effective, both active and extended. Nonetheless, the petitioners rely on a passage from United States v. Wade, supra, which referred to
20
"the predicament in which Wade's counsel found himself-realizing that possible unfairness at the lineup may be the sole means of attack upon the unequivocal courtroom identification, and having to probe in the dark in an attempt to discover and reveal unfairness, while bolstering the government witness' courtroom identification by bringing out and dwelling upon his prior identification." 388 U.S., at 240-241, 87 S.Ct., at 1939.
21
The petitioners, however, attribute undue significance to this passage. The "predicament" described in Wade was no more than part of the Court's demonstration that, if identification stemming from an improperly conducted lineup was to be excluded, a courtroom identification based on such a lineup logically had to be excluded as well.
22
A "predicament," if one chooses to call it that, is always presented when a lawyer decides on cross-examination to ask a question that may produce an answer unfavorable to his client. Yet, under our adversary system of justice, cross-examination has always been considered a most effective way to ascertain truth.4 We decline in these cases to hold that the Due Process Clause of the Fourteenth Amendment inevitably requires the abandonment of the time-honored process of cross-examination as the device best suited to determine the trustworthiness of testimonial evidence.
23
A judicial determination outside the presence of the jury of the admissibility of identification evidence may often be advisable. In some circumstances, not presented here, such a determination may be constitutionally necessary. But it does not follow that the Constitution requires a per se rule compelling such a procedure in every case.
Accordingly, the judgments are
24
Affirmed.
25
Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.
26
The Court holds that the Due Process Clause of the Fourteenth Amendment did not require that the trial judge in each of the instant cases hold a "fair hearing," Jackson v. Denno, 378 U.S. 368, 377, 84 S.Ct. 1774, 1780, 12 L.Ed.2d 908 (1964), to decide the admissibility of eyewitness identification evidence, and that a remand is not now required to accord such a hearing. While freely conceding that a "judicial determination outside the presence of the jury of the admissibility of identification evidence may often be advisable [and i]n some circumstances . . . constitutionally necessary," ante, at 349. the Court holds that the Constitution does not require "a per se rule compelling such a procedure in every case," ibid. I dissent. In my view, the Due Process Clause mandates such a hearing whenever a defendant, as both petitioners did at their respective trials below, has proffered some evidence that pretrial police procedures directed at identification were impermissibly suggestive. The flaw in the Court's reasoning lies in its statement that identification evidence does not implicate the "special considerations" on which Jackson v. Denno relied to "justify a departure from the presumption that juries will follow instructions." Ante, at 347. Surely jury instructions can ordinarily no more cure the erroneous admission of powerful identification evidence than they can cure the erroneous admission of a confession. Accordingly, the separate judicial determination of admissibility required byJackson for confessions is equally applicable for eyewitness identification evidence. Because the record before us is inadequate to conclude that in each case the identification evidence was properly admitted, see Jackson v. Denno, supra, at 376-377, 84 S.Ct., at 1780, I would remand these cases for further proceedings.
27
At least since United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the Court has recognized the inherently suspect qualities of eyewitness identification evidence.1 Two particular attributes of such evidence have significance for the instant cases. First, eyewitness identification evidence is notoriously unreliable:
28
"The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification. Mr. Justice Frankfurter once said: 'What is the worth of identification testimony even when uncontradicted? The identification of strangers is proverbially untrustworthy. The hazards of such testimony are established by a formidable number of instances in the records of English and American trials. These instances are recent-not due to the brutalities of ancient criminal procedure.' The Case of Sacco and Vanzetti 30 (1927)." Id., at 228, 87 S.Ct., at 1933 (footnote omitted).
29
Manson v. Brathwaite, 432 U.S. 98, 111-112, 97 S.Ct. 2243, 2251, 53 L.Ed.2d 140 (1977), emphasized this troublesome characteristic of such evidence:
30
"The driving force behind United States v. Wade, 388 U.S. 218 [87 S.Ct. 1926, 18 L.Ed.2d 1149] (1967), Gilbert v. California, 388 U.S. 263 [87 S.Ct. 1951, 18 L.Ed.2d 1178] (1967) (right to counsel at a post-indictment lineup), and Stovall, all decided on the same day, was the Court's concern with the problems of eyewitness identification. Usually the witness must testify about an encounter with a total stranger under circumstances of emergency or emotional stress. The witness' recollection of the stranger can be distorted easily by the circumstances or by later actions of the police."
31
Accordingly, to guard against the "dangers inherent in eyewitness identification," United States v. Wade, supra, at 235, 87 S.Ct., at 1936, the Court has required the presence of counsel at postindictment lineups, 388 U.S., at 236-237, 87 S.Ct., at 1936,2 and has held inadmissible identification evidence tainted by suggestive confrontation procedures and lacking adequate indicia of reliability, Manson v. Brathwaite, supra, 432 U.S., at 114, 97 S.Ct., at 2253. "Thus, Wade and its companion cases reflect the concern that the jury not hear eyewitness testimony unless that evidence has aspects of reliability." 432 U.S., at 112, 97 S.Ct., at 2252. An important thrust of our eyewitness identification evidence cases from Wade to Manson, therefore, has been to prevent impairment of the jury's decisionmaking process by the introduction of unreliable identification evidence.
32
Second, despite its inherent unreliability, much eyewitness identification evidence has a powerful impact on juries. Juries seem most receptive to, and not inclined to discredit, testimony of a witness who states that he saw the defendant commit the crime.3
33
"[E]yewitness testimony is likely to be believed by jurors, especially when it is offered with a high level of confidence, even though the accuracy of an eyewitness and the confidence of that witness may not be related to one another at all. All the evidence points rather strikingly to the conclusion that there is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says 'That's the one!' "4
34
The powerful impact that much eyewitness identification evidence has on juries, regardless of its reliability,5 virtually mandates that, when such evidence is inadmissible, the jury should know nothing about the evidence. See Manson v. Brathwaite, supra, at 112, 97 S.Ct., at 2251. For certainly the resulting prejudice to the defendant cannot be erased by jury instructions. See generally E. Loftus, Eyewitness Testimony 189-190 (1979); P. Devlin, Report to the Secretary of State for the Home Department of the Departmental Committee on Evidence of Identification in Criminal Cases 149-150 (1976). The Court's contrary conclusion cavalierly dismisses the inherent unreliability of identification evidence and its effect on juries-two attributes of confession evidence that led the Court to mandate a "fair hearing" safeguard in Jackson v. Denno.
35
Any purported distinction between the instant cases and Jackson is plainly specious. In Jackson, this Court invalidated a New York State procedure whereby the jury was instructed first to determine the voluntariness of a defendant's confession6 and then to disregard the confession if it concluded that the confession was involuntary. Jackson struck down this practice and required first that the voluntariness of a confession be determined by the judge before its admission in evidence, and second that the jury not be allowed to consider an inadmissible confession. Jackson refused to rely on the curative effect of jury instructions where the trial judge had not applied " 'the exclusionary rules before permitting evidence to be submitted to the jury.' " 378 U.S., at 382, n. 10, 84 S.Ct., at 1783, n. 10, quoting Meltzer, Involuntary Confessions: The Allocation of Responsibility Between Judge and Jury, 21 U.Chi.L.Rev. 317, 327 (1954).7
36
For purposes of the instant cases, three factors central to our decision in Jackson are apposite. First, Jackson stated, as the Court today notes, ante, at 347, "that the Fourteenth Amendment forbids the use of involuntary confessions . . . because of the probable unreliability of confessions that are obtained in a manner deemed coercive." 378 U.S., at 385-386, 84 S.Ct., at 1785. Second, Jackson stated, as the Court today further notes, ante, at 347, that involuntary confessions are inadmissible "because of the 'strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will.' " 378 U.S., at 386, 84 S.Ct., at 1785.8 Third, because of the sensitive nature of confession evidence, Jackson found that instructions were not adequate to assure that the jury would ignore involuntary confession evidence:
37
"Under the New York procedure, the fact of a defendant's confession is solidly implanted in the jury's mind, for it has not only heard the confession, but it has also been instructed to consider and judge its voluntariness and is in position to assess whether it is true or false.[9] If it finds the confession involuntary, does the jury-indeed, can it-then disregard the confession in accordance with its instructions? If there are lingering doubts about the sufficiency of the other evidence, does the jury unconsciously lay them to rest by resort to the confession? Will uncertainty about the sufficiency of the other evidence to prove guilt beyond a reasonable doubt actually result in acquittal when the jury knows the defendant has given a truthful confession." Id., at 388, 84 S.Ct., at 1786 (footnote omitted).
38
Similar considerations plainly require a hearing in the case of identification evidence. First, there can be little doubt that identification evidence is as potentially unreliable as confession evidence. See supra, at 350-352. Second, suggestive confrontation procedures which, in the totality of the circumstances, create " 'a very substantial likelihood of irreparable misidentification,' " Manson v. Brathwaite, 432 U.S., at 116, 97 S.Ct., at 2254, quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968), are as impermissible a police practice as the securing of a custodial confession determined, in the totality of the circumstances, to be involuntary, see United States v. Washington, 431 U.S. 181, 188, 97 S.Ct. 1814, 1819, 52 L.Ed.2d 238 (1977); cf. North Carolina v. Butler, 441 U.S. 369, 374-375, 99 S.Ct. 1755, 1758, 60 L.Ed.2d 286 (1979) (waiver). See also Manson v. Brathwaite, supra, at 112, 97 S.Ct., at 2251; Foster v. California, 394 U.S. 440, 442-443, 89 S.Ct. 1127, 1128, 22 L.Ed.2d 402 (1969); United States v. Wade, 388 U.S., at 228-229, 232-235, 87 S.Ct., at 1932, 1934; Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967). And third, because of the extraordinary impact of much eyewitness identification evidence, juries hearing such evidence will be no more able fully to ignore it upon instruction of the trial judge than will juries hearing confession evidence.10 To expect a jury to engage in the collective mental gymnastic of segregating and ignoring such testimony upon instruction is utterly unrealistic. The Court's bald assertion, therefore, that jury instructions are adequate to protect the accused, is as untrue for identification evidence as it is for involuntary confessions.
39
Nor can it be assumed, as the Court has, that cross-examination will protect the accused in this circumstance. That is no more true here than it was in Jackson, where the defendant was also allowed to cross-examine on the question of voluntariness. Cross-examination, of course, affects the weight and credibility given by the jury to evidence,11 but cross-examination is both an ineffective and a wrong tool for purging inadmissible identification evidence from the jurors' minds. It is an ineffective tool because all of the scientific evidence suggests that much eyewitness identification testimony has an unduly powerful effect on jurors. Thus, the jury is likely to give the erroneously admitted evidence substantial weight, however skillful the cross-examination. See generally E. Loftus, Eyewitness Testimony 9 (1979). Cross-examination is also a wrong tool in the sense that jury instructions are the means normally employed to cure the erroneous introduction of evidence. At best, cross-examination might diminish the weight the jury accords to the inadmissible evidence. The likelihood is, however, that the jury would continue to give the improperly admitted evidence substantial weight, even if properly instructed to disregard it.
40
It is clear beyond peradventure, I submit, that because of the dangers to a just result inherent in identification evidence-its unreliability and its unusual impact on the jury-a "fair hearing and a reliable determination" of admissibility, Jackson v. Denno, 378 U.S., at 377, 84 S.Ct., at 1781, are constitutionally mandated. The Due Process Clause obviously precludes the jury from convicting on unreliable identification evidence. Manson v. Brathwaite, supra.12 But the only way to be sure that the jury will not rest its verdict on improper identification evidence, as a practical matter, is by not permitting the jury to hear it in the first place. A Jackson v. Denno hearing would expediently accomplish that purpose.13 I believe that the Due Process Clause requires no less.
41
A large and distinguished group shares my view. The lower federal courts with virtual unanimity have encouraged the type of hearing sought by petitioners.14 As already noted, the Court too states that "[a] judicial determination outside the presence of the jury of the admissibility of identification evidence may often be advisable [and i]n some circumstances . . . constitutionally necessary." Ante, at 349. I should think it follows from this congruence of opinion on the desirability of such a judicial hearing that evolving standards of justice15 mandate such a hearing whenever a defendant proffers sufficient evidence to raise a colorable claim that police confrontation procedures were impermissibly suggestive. See, e. g., United States ex rel. Fisher v. Driber, 546 F.2d 18, 22 (CA3 1976).
42
In the instant cases, the suggestiveness of the confrontation procedures was clearly shown, and equally clearly cross-examination in front of the jury was inadequate to test the reliability of the evidence because of the undoubted inhibiting effect on cross-examination from fear that rigorous questioning of hostile witnesses would strengthen the eyewitnesses' testimony and impress it upon the jury. See United States v. Wade, 388 U.S., at 240-241, 87 S.Ct., at 1939.16 In any event, the record is inadequate to decide that petitioners could not have succeeded in foreclosing admission of the evidence if they had been afforded a hearing out of the jury's presence in the first place. Accordingly, I would remand for such further proceedings as are necessary to give these petitioners "a fair hearing and a reliable determination," Jackson v. Denno, 378 U.S., at 377, 84 S.Ct., at 1781, that the identification evidence in each trial was not erroneously admitted.
1
The opinion of the District Court is unreported.
2
E. g., United States v. Mitchell, 540 F.2d 1163 (CA3 1976); United States v. Cranson, 453 F.2d 123 (CA4 1971); Haskins v. United States, 433 F.2d 836 (CA10 1970); United States v. Ranciglio, 429 F.2d 228 (CA8 1970); United States v. Allison, 414 F.2d 407 (CA9 1969); United States v. Broadhead, 413 F.2d 1351 (CA7 1969); Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230 (1968) (en banc). The Court of Appeals for the Fifth Circuit has left the matter to the discretion of the district courts. United States v. Smith, 546 F.2d 1275 (1977). At least two Federal Courts of Appeals have commended hearings outside the presence of the jury to state courts, Nassar v. Vinzant, 519 F.2d 798 (CA1 1975); United States ex rel. Phipps v. Follette, 428 F.2d 912 (CA2 1970), and at least one has held that due process may in some circumstances require a hearing outside the presence of a jury to decide the admissibility of identification evidence. United States ex rel. Fisher v. Driber, 546 F.2d 18 (CA3 1976).
3
See Pinto v. Pierce, 389 U.S. 31, 32, 88 S.Ct. 192, 193, 19 L.Ed.2d 31:
"This Court has never ruled that all voluntariness hearings must be held outside the presence of the jury, regardless of the circumstances. . . . [B]ecause a disputed confession may be found involuntary and inadmissible by the judge, it would seem prudent to hold voluntariness hearings outside the presence of the jury. . . . In this case, however, the confession was held voluntary and admitted as evidence suitable for consideration by the jury."
4
As Professor Wigmore put it, "[cross-examination] is beyond any doubt the greatest legal engine ever invented for the discovery of truth." 5 J. Wigmore, Evidence § 1367 (Chadbourn rev. 1974).
1
The special nature of eyewitness identification evidence has produced an enormous reservoir of scholarly writings, many based on solid empirical research. For a bibliography of that literature, see E. Loftus, Eyewitness Testimony 237-247 (1979).
2
"[S]uggestibility inherent in the context of the pretrial identification" is a factor that has led the Court to require the presence of counsel at postindictment lineups. United States v. Wade, 388 U.S, at 235, 87 S.Ct., at 1936. If counsel is not present at such a lineup, the identification may not be introduced into evidence at trial and an in-court identification may be made only if the prosecutor establishes "by clear and convincing evidence that the in-court identification [was] based upon observation . . . of the suspect other than the lineup identificatio[n]." Id., at 240, 87 S.Ct., at 1939.
3
"[J]uries unfortunately are often unduly receptive to [identification] evidence. . . ." Manson v. Brathwaite, 432 U.S. 98, 120, 97 S.Ct. 2243, 2255 (1977) (MARSHALL, J., dissenting) (footnote omitted). See Loftus, supra, at 8-19; P. Wall, Eye-witness Identification in Criminal Cases 19-23 (1965); Hammelmann & Williams, Identification Parades-II, 1963 Crim.L.Rev. 545, 550. See generally A. Yarmey, The Psychology of Eyewitness Testimony (1979).
4
Loftus, supra, at 19 (emphasis supplied). Professor Loftus exhaustively canvasses statistical and psychological evidence which persuasively supports her conclusion that eyewitness identification evidence is "overwhelmingly influential." Id., at 9.
5
Professor Loftus, ibid. (emphasis in original), observes that "[j]urors have been known to accept eyewitness testimony pointing to guilt even when it is far outweighed by evidence of innocence."
Wall, supra, at 19 (footnotes omitted) (emphasis supplied), concludes: "Juries are unduly receptive to identification evidence and are not sufficiently aware of its dangers. It has been said that 'positive recognition by well intended uninterested persons is commonly accepted unless the alibi is convincing,' and that evidence of identification, however untrustworthy, is 'taken by the average juryman as absolute proof.' "
6
Distinguishing Jackson from the instant cases on the basis that the jury there was first instructed to determine voluntariness is not persuasive. That consideration goes to the weight given the evidence by the jury. Jackson itself recognized that the lingering effect of the involuntary confession might be decisive in the jury's deliberations. Such an effect is no less likely to be decisive in the case of powerful eyewitness identification evidence that a jury has been instructed to ignore. In both instances, peculiarly powerful evidence must leave an indelible impact on a juror's mind. See n. 7, infra.
7
The Court in Jackson noted:
" 'Due Process of law requires that a coerced confession be excluded from consideration by the jury. It also requires that the issue of coercion be tried by an unprejudiced trier, and, regardless of the pious fictions indulged by the courts, it is useless to contend that a juror who has heard the confession can be uninfluenced by his opinion as to the truth or falsity of it. . . . And the rule of exclusion ought not to be emasculated by admitting the evidence and giving to the jury an instruction which, as every judge and lawyer knows, cannot be obeyed.' " 378 U.S., at 382-383, n. 10, 84 S.Ct., at 1783, n. 10, quoting E. Morgan, Some Problems of Proof Under the Anglo-American System of Litigation 104-105 (1956).
8
Of course, police misbehavior is not always so lacking in subtlety that involuntary confessions are invariably wrenched from an accused by force. Thus, indirect methods of interrogation which seek to elicit a statement from a custodial suspect may also warrant a conclusion of involuntariness. See Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1690, 64 L.Ed.2d 297 (1980) (interrogation includes actions which "the police should know are reasonably likely to elicit an incriminating response"); cf. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977) (Sixth Amendment violation).
9
See n. 6, supra.
10
In both of these cases, the eyewitnesses were also the victims of the crimes. Not only does that dual status affect the reliability of the identification, but it also is likely to make the testimony more powerful and thus less curable by jury instructions. Clearly, this is not a case where 14 reliable identifications were properly received in evidence, but a 15th by a nonvictim witness was subject to suggestive confrontation procedures and was unreliable, thereby raising the possibility that the error was harmless beyond a reasonable doubt.
11
In Manson v. Brathwaite, 432 U.S., at 116, 97 S.Ct., at 2254, the Court stated:
"We are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature."
12
In Jackson v. Denno, the Court was concerned that the jury not hear a defendant's confession until a trial judge had made a preliminary determination of voluntariness. The Court assumed that were this not done, a deleterious impact on the jury's deliberations would operate: "[I]t is only a reliable determination on the voluntariness issue which satisfies the constitutional rights of the defendant and which would permit the jury to consider the confession in adjudicating guilt or innocence." 378 U.S., at 387, 84 S.Ct., at 1786.
13
The Court errs in any event in deciding these cases on the premise that petitioners request a per se rule requiring a hearing out of the jury's presence in every case. In the first place, petitioners rely substantially on authority which does not go that far. Brief for Petitioners 43-45. Clearly, they have sought reversal of their convictions on the basis that they were entitled to such a hearing. Moreover, there is no question here that they raised a colorable claim that the confrontation procedures were impermissibly suggestive. See, e. g., United States ex rel. Fisher v. Driber, 546 F.2d 18, 22 (CA3 1976); United States v. Cranson, 453 F.2d 123, 127 (CA4 1971), cert. denied, 406 U.S. 909, 92 S.Ct. 1607, 31 L.Ed.2d 821 (1972).
If the Court's result is out of concern for not adding another layer of complexity to criminal litigation, that is understandable, but not sufficient to supplant an accused's constitutional right. Moreover, a rule requiring the defendant to proffer some minimum quantum of evidence showing the suggestiveness of the confrontation procedures would eliminate frivolous requests. See, e. g., United States ex rel. Fisher v. Driber, supra, at 22.
14
United States ex rel.Fisher v. Driber, supra, at 22 (requiring hearing outside presence of jury where motion for such hearing is not frivolous); United States v. Smith, 546 F.2d 1275, 1279 (CA5 1977) (evidentiary hearing not required where no critical facts in dispute); United States v. Mitchell, 540 F.2d 1163, 1166 (CA3 1976) (defendant could have "requested a hearing outside the presence of the jury in accordance with Neil v. Biggers"), cert. denied, 429 U.S. 1099, 97 S.Ct. 1119, 51 L.Ed.2d 547 (1977); Nassar v. Vinzant, 519 F.2d 798, 802, n. 4 (CA1) (commending hearing out of jury's presence), cert. denied, 423 U.S. 898, 96 S.Ct. 202, 46 L.Ed.2d 132 (1975); United States v. Cranson, supra, at 125-126 ("evidentiary hearing outside the jury's presence is required" upon motion to suppress); Haskins v. United States, 433 F.2d 836, 838 (CA10 1970) (requiring hearing outside of jury's presence); United States v. Ranciglio, 429 F.2d 228, 230 (CA8) ("trial court, out of the hearing and presence of the jury, conducted a hearing as required in Wade "), cert. denied, 400 U.S. 959, 91 S.Ct. 358, 27 L.Ed.2d 268 (1970); United States ex rel. Phipps v. Follette, 428 F.2d 912, 913, n. 1 (CA2) ("commend[ing] . . . practice" of hearing out of jury's presence), cert. denied, 400 U.S. 908, 91 S.Ct. 151, 27 L.Ed.2d 146 (1970); United States v. Allison, 414 F.2d 407, 410 (CA9) (requiring hearing outside of jury's presence), cert. denied, 396 U.S. 968, 90 S.Ct. 446, 24 L.Ed.2d 443 (1969); United States v. Broadhead, 413 F.2d 1351, 1359 (CA7 1969) (pretrial hearing approved), cert. denied, 396 U.S. 1017, 90 S.Ct. 581, 24 L.Ed.2d 508 (1970); Clemons v. United States, 133 U.S.App.D.C. 27, 34, 408 F.2d 1230, 1237 (1968) (en banc) (requiring hearing outside of jury's presence or disclosure of prosecutor's evidence), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969). Even the Court of Appeals deciding these cases stated that it had "no doubt that" a hearing out of the jury's presence "is the preferable procedure." Summitt v. Bordenkircher, 608 F.2d 247, 250 (CA6 1979).
In addition, the Commonwealth of Kentucky, where petitioners were tried and convicted, appears to require a hearing out of the presence of the jury, upon defendant's motion, for confession and for search evidence. See Ky.Rule Crim.Proc. 9.78. In addition, Moore v. Commonwealth, 569 S.W.2d 150, 153 (Ky.1978), decided after petitioners were convicted, held that the trial court's refusal to hold a suppression hearing to determine the admissibility of identification evidence constituted error. Previous Kentucky appellate decisions had reached a similar conclusion. E. g., Francis v. Commonwealth, 468 S.W.2d 287 (App.1971).
15
See, e. g., Harper v. Virginia Board of Elections, 383 U.S. 663, 669, 86 S.Ct. 1079, 1082, 16 L.Ed.2d 169 (1966) (equal protection); Trop v. Dulles, 356 U.S. 86, 100-101, 78 S.Ct. 590, 597, 2 L.Ed.2d 596 (1958) (plurality opinion of Warren, C. J.) (Eighth Amendment).
16
It is no answer to say, as the Court does, that the record does not reflect that petitioners' respective counsel were deterred by the presence of the jury, for the simple reason that a cold record cannot reflect questions not asked.
| 01
|
449 U.S. 361
101 S.Ct. 665
66 L.Ed.2d 564
UNITED STATES, Petitioner,v.Hazel MORRISON.
No. 79-395.
Argued Dec. 10, 1980.
Decided Jan. 13, 1981.
Rehearing Denied Feb. 23, 1981.
See 450 U.S. 960, 101 S.Ct. 1420.
Syllabus
Federal agents, aware that respondent had been indicted on federal drug charges and had retained counsel, met with her without her counsel's knowledge or permission, seeking her cooperation in a related investigation. The agents disparaged respondent's counsel and indicated that she would gain various benefits if she cooperated and would face a stiff jail term if she did not, but she declined to cooperate and notified her attorney. The agents visited respondent again in the absence of counsel, but she did not agree to cooperate with them nor did she incriminate herself or supply any information pertinent to her case. Subsequently, respondent moved to dismiss the indictment with prejudice on the ground that the agents' conduct violated her Sixth Amendment right to counsel. The agents' egregious behavior was described as having "interfered" in some unspecified way with respondent's right to counsel, but it was not alleged that the claimed violation had prejudiced the quality or effectiveness of her legal representation or that the agents' conduct had any adverse impact on her legal position. The District Court denied the motion and respondent, pursuant to a prior agreement with the Government, entered a conditional plea of guilty to one count of the indictment. The Court of Appeals reversed, holding that respondent's Sixth Amendment right to counsel had been violated and that whether or not any tangible effect upon her representation had been demonstrated or alleged, the appropriate remedy was dismissal of the indictment with prejudice.
Held: Assuming, arguendo, that the Sixth Amendment was violated in the circumstances of this case, nevertheless the dismissal of the indictment was not appropriate, absent a showing of any adverse consequence to the representation respondent received or to the fairness of the proceedings leading to her conviction. Cases involving Sixth Amendment deprivations are subject to the general rule that remedies should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests. Absent demonstrable prejudice, or substantial threat thereof, from the violation of the Sixth Amendment, there is no basis for imposing a remedy in the criminal proceeding, which can go forward with full recognition of the defendant's right to counsel and to a fair trial, and dismissal of the indictment is plainly inappropriate, even though the violation may have been deliberate. Pp. 364-367.
602 F.2d 529, reversed and remanded.
Peter Buscemi, Washington, D. C., for petitioner.
Salvatore J. Cucinotta, Philadelphia, Pa., for respondent.
Justice WHITE delivered the opinion of the Court.
1
Hazel Morrison, respondent here, was indicted on two counts of distributing heroin in violation of 21 U.S.C. § 841(a)(1). She retained private counsel to represent her in the impending criminal proceedings. Thereafter, two agents of the Drug Enforcement Agency, aware that she had been indicted and had retained counsel, sought to obtain her cooperation in a related investigation. They met and conversed with her without the knowledge or permission of her counsel. Furthermore, in the course of the conversation, the agents disparaged respondent's counsel, stating that respondent should think about the type of representation she could expect for the $200 retainer she had paid him and suggesting that she could be better represented by the public defender. In addition, the agents indicated that respondent would gain various benefits if she cooperated but would face a stiff jail term if she did not. Respondent declined to cooperate and immediately notified her attorney. The agents visited respondent again in the absence of counsel, but at no time did respondent agree to cooperate with them, incriminate herself, or supply any information pertinent to her case. Contrary to the agents' advice, respondent continued to rely upon the services of the attorney whom she had retained.
2
Respondent subsequently moved to dismiss the indictment with prejudice on the ground that the conduct of the agents had violated her Sixth Amendment right to counsel. The motion contained no allegation that the claimed violation had prejudiced the quality or effectiveness of respondent's legal representation; nor did it assert that the behavior of the agents had induced her to plead guilty, had resulted in the prosecution having a stronger case against her, or had any other adverse impact on her legal position. The motion was based solely upon the egregious behavior of the agents, which was described as having "interfered" in some unspecified way with respondent's right to counsel. This interference, unaccompanied by any allegation of adverse effect, was urged as a sufficient basis for the requested disposition.
3
The District Court denied the motion and respondent, pursuant to a prior agreement with the Government, entered a conditional plea of guilty to one count of the indictment.1 On appeal to the Court of Appeals for the Third Circuit, the judgment of the District Court was reversed. The appellate court concluded that respondent's Sixth Amendment right to counsel had been violated and that whether or not any tangible effect upon respondent's representation had been demonstrated or alleged, the appropriate remedy was dismissal of the indictment with prejudice. 602 F.2d 529 (1979). We granted the United States' petition for certiorari to consider whether this extraordinary relief was appropriate in the absence of some adverse consequence to the representation respondent received or to the fairness of the proceedings leading to her conviction. 448 U.S. 906, 100 S.Ct. 3048, 65 L.Ed.2d 1135. We reverse.
4
The United States initially urges that absent some showing of prejudice, there could be no Sixth Amendment violation to be remedied. Because we agree with the United States, however, that the dismissal of the indictment was error in any event, we shall assume, without deciding, that the Sixth Amendment was violated in the circumstances of this case.
5
The Sixth Amendment provides that an accused shall enjoy the right "to have the Assistance of Counsel for his defense." This right, fundamental to our system of justice is meant to assure fairness in the adversary criminal process. Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 796, 9 L.Ed.2d 799 (1963); Glasser v. United States, 315 U.S. 60, 69-70, 75-76, 62 S.Ct. 457, 464, 467, 86 L.Ed. 680 (1942); Johnson v. Zerbst, 304 U.S. 458, 462-463, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461 (1938). Our cases have accordingly been responsive to proved claims that governmental conduct has rendered counsel's assistance to the defendant ineffective. Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977); 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); Gilbert v. California, 388 U.S. 263 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).
6
At the same time and without detracting from the fundamental importance of the right to counsel in criminal cases, we have implicitly recognized the necessity for preserving society's interest in the administration of criminal justice. Cases involving Sixth Amendment deprivations are subject to the general rule that remedies should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests. Our relevant cases reflect this approach. In Gideon v. Wainwright, supra, the defendant was totally denied the assistance of counsel at his criminal trial. In Geders v. United States, supra, Herring v. New York, supra, and Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), judicial action before or during trial prevented counsel from being fully effective. In Black v. United States, 385 U.S. 26, 87 S.Ct. 190, 17 L.Ed.2d 26 (1966), and O'Brien v. United States, 386 U.S. 345, 87 S.Ct. 1158, 18 L.Ed.2d 94 (1967), law enforcement officers improperly overheard pretrial conversations between a defendant and his lawyer. None of these deprivations, however, resulted in the dismissal of the indictment. Rather, the conviction in each case was reversed and the Government was free to proceed with a new trial. Similarly, when before trial but after the institution of adversary proceedings, the prosecution has improperly obtained incriminating information from the defendant in the absence of his counsel, the remedy characteristically imposed is not to dismiss the indictment but to suppress the evidence or to order a new trial if the evidence has been wrongfully admitted and the defendant convicted. Gilbert v. California, supra; United States v. Wade, supra; Massiah v. United States, supra. In addition, certain violations of the right to counsel may be disregarded as harmless error. Compare Moore v. Illinois, supra, 434 U.S. at 232, 98 S.Ct. at 466, with Chapman v. California, 386 U.S. 18, 23, and n. 8, 87 S.Ct. 824, 827, and n. 8, 17 L.Ed. 2d 705 (1967).
7
Our approach has thus been to identify and then neutralize the taint by tailoring relief appropriate in the circumstances to assure the defendant the effective assistance of counsel and a fair trial. The premise of our prior cases is that the constitutional infringement identified has had or threatens some adverse effect upon the effectiveness of counsel's representation or has produced some other prejudice to the defense. Absent such impact on the criminal proceeding, however, there is no basis for imposing a remedy in that proceeding, which can go forward with full recognition of the defendant's right to counsel and to a fair trial.
8
More particularly, absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the violation may have been deliberate.2 This has been the result reached where a Fifth Amendment violation has occurred,3 and we have not suggested that searches and seizures contrary to the Fourth Amendment warrant dismissal of the indictment. The remedy in the criminal proceeding is limited to denying the prosecution the fruits of its transgression.
9
Here, respondent has demonstrated no prejudice of any kind, either transitory or permanent, to the ability of her counsel to provide adequate representation in these criminal proceedings. There is no effect of a constitutional dimension which needs to be purged to make certain that respondent has been effectively represented and not unfairly convicted. The Sixth Amendment violation, if any, accordingly provides no justification for interfering with the criminal proceedings against respondent Morrison, much less the drastic relief granted by the Court of Appeals.4
10
In arriving at this conclusion, we do not condone the egregious behavior of the Government agents. Nor do we suggest that in cases such as this, a Sixth Amendment violation may not be remedied in other proceedings. We simply conclude that the solution provided by the Court of Appeals is inappropriate where the violation, which we assume has occurred, has had no adverse impact upon the criminal proceedings.
11
The judgment of the Court of Appeals is accordingly reversed, and the case is remanded for proceedings consistent with this opinion.
12
So ordered.
1
A second count was dismissed as required by the plea agreement. The plea was conditioned on respondent's right to appeal the District Court's denial of the motion to dismiss. The Third Circuit has approved this procedure. United States v. Moskow, 588 F.2d 882 (1978); United States v. Zudick, 523 F.2d 848 (1975). We express no view on the propriety of such conditional pleas.
2
There is no claim here that there was continuing prejudice which, because it could not be remedied by a new trial or suppression of evidence, called for more drastic treatment. Cf. United States v. Marion, 404 U.S. 307, 325-326, 92 S.Ct. 455, 465-66, 30 L.Ed.2d 468 (1971). Indeed, there being no claim of any discernible taint, even the traditional remedies were beside the point. The Court of Appeals seemed to reason that because there was no injury claimed and because other remedies would not be fruitful, dismissal of the indictment was appropriate. But as the dissent below indicated, it is odd to reserve the most drastic remedy for those situations where there has been no discernible injury or other impact.
The Court of Appeals also thought dismissal was appropriate to deter deliberate infringements of the right to counsel. But this proves too much, for it would warrant dismissal, not just in this case, but in any case where there has been a knowing violation. Furthermore, we note that the record before us does not reveal a pattern of recurring violations by investigative officers that might warrant the imposition of a more extreme remedy in order to deter further lawlessness.
3
This is clear from United States v. Blue, 384 U.S. 251, 255, 86 S.Ct. 1416, 1419, 16 L.Ed.2d 510 (1966):
"Even if we assume that the Government did acquire incriminating evidence in violation of the Fifth Amendment, Blue would at most be entitled to suppress the evidence and its fruits if they were sought to be used against him at trial. . . . 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." (Footnote omitted.)
4
The position we have adopted finds substantial support in the Courts of Appeals. United States v. Jimenez, 626 F.2d 39, 41-42 (CA7 1980); United States v. Artuso, 618 F.2d 192, 196-197 (CA2 1980); United States v. Glover, 596 F.2d 857, 861-864 (CA9 1979); United States v. Crow Dog, 532 F.2d 1182, 1196-1197 (CA8 1976); United States v. Acosta, 526 F.2d 670, 674 (CA5 1976); but see United States v. McCord, 166 U.S.App.D.C. 1, 15-18, 509 F.2d 334, 348-351 (1974) (en banc) (dicta). The Supreme Judicial Court of Massachusetts has adopted a contrary view. See Commonwealth v. Manning, 373 Mass. 438, 367 N.E.2d 635 (1977).
| 01
|
66 L.Ed.2d 571
101 S.Ct. 669
449 U.S. 368
FIRESTONE TIRE & RUBBER COMPANY, Petitioner,v.John C. RISJORD.
No. 79-1420.
Argued Nov. 12, 1980.
Decided Jan. 13, 1981.
Syllabus
Respondent is lead counsel for the plaintiffs in four consolidated product-liability suits in Federal District Court against petitioner and other manufacturers. Petitioner moved to disqualify respondent from further representation of the plaintiffs because of an alleged conflict of interest arising from the fact that petitioner's liability insurer was also an occasional client of respondent's law firm. Petitioner argued that respondent's representation of the insurer would give him an incentive to structure the plaintiffs' claims for relief so as to enable the insurer to avoid any liability, thus increasing petitioner's own potential liability. In accordance with the District Court's order, respondent obtained the consent of both the plaintiffs and the insurer to his continuing representation, and the court then allowed him to continue his representation of the plaintiffs. Petitioner filed a notice of appeal pursuant to 28 U.S.C. § 1291, which vests the courts of appeals with "jurisdiction of appeals from all final decisions of the district courts . . . except where a direct review may be had in the Supreme Court." The Court of Appeals held that district court orders denying disqualification motions were not immediately appealable under § 1291, but because it was overruling prior cases, the court made its decision prospective only and, on the merits, affirmed the District Court's order permitting respondent to continue representing the plaintiffs.
Held:
1. Orders denying motions to disqualify the opposing party's counsel in a civil case are not appealable final decisions under § 1291. Such an order does not fall within the "collateral order" exception of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528, to the requirement that all appeals under § 1291 must await final judgment on the merits in the underlying litigation. Petitioner has made no showing, as required under the Cohen doctrine of immediately appealable "collateral orders," that an order denying disqualification is effectively unreviewable on appeal from a final judgment on the merits. The propriety of a district court's denial of a disqualification motion will often be difficult to assess until its impact on the underlying litigation may be evaluated, which is normally after final judgment, and should the court of appeals conclude after the trial has ended that permitting continuing representation was prejudicial error, it would retain its usual authority to vacate the judgment appealed from and order a new trial. Pp. 373-378.
2. The Court of Appeals, after properly concluding that the District Court's order was not immediately appealable under § 1291, erred in reaching the merits of the District Court's order. The finality requirement of § 1291 is jurisdictional in nature. If an appellate court finds that the order from which a party seeks to appeal does not fall within the statute, its inquiry is over. A court lacks discretion to consider the merits of a case over which it is without jurisdiction, and thus a jurisdictional ruling may never be made prospective only. Pp. 379-380.
8 Cir., 612 F.2d 377, vacated and remanded.
Harvey M. Grossman, Los Angeles, Cal., for petitioner.
John R. Gibson, Kansas City, Mo., for respondent.
Justice MARSHALL delivered the opinion of the Court.
1
This case presents the question whether a party may take an appeal, pursuant to 28 U.S.C. § 1291,1 from a district court order denying a motion to disqualify counsel for the opposing party in a civil case. The United States Court of Appeals for the Eighth Circuit held that such orders are not appealable, but made its decision prospective only and therefore reached the merits of the challenged order. We hold that orders denying motions to disqualify counsel are not appealable final decisions under § 1291, and we therefore vacate the judgment of the Court of Appeals and remand with instructions that the appeal be dismissed for lack of jurisdiction.
2
* Respondent is lead counsel for the plaintiffs in four product-liability suits seeking damages from petitioner and other manufacturers of multipiece truck tire rims for injuries caused by alleged defects in their products.2 The complaints charge petitioner and the other defendants with various negligent, willful, or intentional failures to correct or to warn of the supposed defects in the rims. Plaintiffs seek both compensatory and exemplary damages. App. 6-72.
3
Petitioner was at all relevant times insured by Home Insurance Co. (Home) under a contract providing that Home would be responsible only for some types of liability beyond a minimum "deductible" amount. Home was also an occasional client of respondent's law firm.3 Based on these facts, petitioner in May 1979 filed a motion to disqualify respondent from further representation of the plaintiffs. Petitioner argued that respondent had a clear conflict of interest because his representation of Home would give him an incentive to structure plaintiffs' claims for relief in such a way as to enable the insurer to avoid any liability. This in turn, petitioner argued, could increase its own potential liability. Home had in fact advised petitioner in the course of the litigation that its policy would cover neither an award of compensatory damages for willful or intentional acts nor any award of exemplary or punitive damages.4 The District Court entered a pretrial order requiring that respondent terminate his representation of the plaintiffs5 unless both the plaintiffs and Home consented to his continuing representation.6 Id., at 157, 160.
4
In accordance with the District Court's order, respondent filed an affidavit in which he stated that he had informed both the plaintiffs and Home of the potential conflict and that neither had any objection to his continuing representation of them both. He filed supporting affidavits executed by the plaintiffs and by a representative of Home. Because he had satisfied the requirements of the pretrial order, respondent was able to continue his representation of the plaintiffs. Petitioner objected to the District Court's decision to permit respondent to continue his representation if he met the statedconditions, and therefore filed a notice of appeal pursuant to 28 U.S.C. § 1291.7
5
Although it did not hear oral argument on the appeal, the Eighth Circuit decided the case en banc and affirmed the trial court's order permitting petitioner to continue representing the plaintiffs.8 In re Multi-Piece Rim Products Liability, 612 F.2d 377 (1980). Before considering the merits of the appeal, the court reconsidered and overruled its prior decisions holding that orders denying disqualification motions were immediately appealable under § 1291. The Court of Appeals reasoned that such orders did not fall within the collateral-order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), which allows some appeals prior to final judgment. Because it was overruling prior cases, the court stated that it would reach the merits of the challenged order "[i]n fairness to the appellant in the instant case," but held that in the future, appellate review of such orders would have to await final judgment on the merits of the main proceeding.9 612 F.2d, at 378-379. We granted certiorari, 446 U.S. 934, 100 S.Ct. 2150, 64 L.Ed.2d 786 (1980), to resolve a conflict among the Circuits on the appealability question.10
II
6
Under § 1291, the courts of appeals are vested with "jurisdiction of appeals from all final decisions of the district courts . . . except where a direct review may be had in the Supreme Court." We have consistently interpreted this language as indicating that a party may not take an appeal under this section until there has been "a decision by the District Court that 'ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.' " Coopers s & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978), quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). This rule, that a party must ordinarily raise all claims of error in a single appeal following final judgment on the merits, serves a number of important purposes. It emphasizes the deference that appellate courts owe to the trial judge as the individual initially called upon to decide the many questions of law and fact that occur in the course of a trial. Permitting piecemeal appeals would undermine the independence of the district judge, as well as the special role that individual plays in our judicial system. In addition, the rule is in accordance with the sensible policy of "avoid[ing] the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise, from its initiation to entry of judgment." Cobbledick v. United States, 309 U.S. 323, 325, 60 S.Ct. 540, 541, 84 L.Ed. 783 (1940). See DiBella v. United States, 369 U.S. 121, 124, 82 S.Ct. 654, 656, 7 L.Ed.2d 614 (1962). The rule also serves the important purpose of promoting efficient judicial administration. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 170, 94 S.Ct. 2140, 2149, 40 L.Ed.2d 732 (1974).
7
Our decisions have recognized, however, a narrow exception to the requirement that all appeals under § 1291 await final judgment on the merits. In Cohen v. Beneficial Industrial Loan Corp., supra, we held that a "small class" of orders that did not end the main litigation were nevertheless final and appealable pursuant to § 1291. Cohen was a shareholder's derivative action in which the Federal District Court refused to apply a state statute requiring a plaintiff in such a suit to post security for costs. The defendant appealed the ruling without awaiting final judgment on the merits, and the Court of Appeals ordered the trial court to require that costs be posted. We held that the Court of Appeals properly assumed jurisdiction of the appeal pursuant to § 1291 because the District Court's order constituted a final determination of a claim "separable from, and collateral to," the merits of the main proceeding, because it was "too important to be denied review," and because it was "too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Id., at 546, 69 S.Ct. at 1225. Cohen did not establish new law; rather, it continued a tradition of giving § 1291 a "practical rather than a technical construction." Ibid. See, e. g., United States v. River Rouge Improvement Co., 269 U.S. 411, 413-414, 46 S.Ct. 144, 70 L.Ed. 339 (1926); Bronson v. LaCrosse & Milwaukee R. Co., 67 U.S. 524-531, 2 Black 524, 530-531, 17 L.Ed. 347 (1863); Forgay v. Conrad, 47 U.S. 201, 203, 6 How. 201, 203, 12 L.Ed.2d 404 (1848); Whiting v. Bank of the United States, 38 U.S. 6, 15, 13 Pet. 6, 15, 10 L.Ed. 33 (1839). We have recently defined this limited class of final "collateral orders" in these terms: "[T]he order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, supra, 437 U.S. at 468, 98 S.Ct. at 2457 (footnote omitted). See Abney v. United States, 431 U.S. 651, 658, 97 S.Ct. 2034, 2039, 52 L.Ed.2d 651 (1977).
8
Because the litigation from which the instant petition arises had not reached final judgment at the time the notice of appeal was filed,11 the order denying petitioner's motion to disqualify respondent is appealable under § 1291 only if it falls within the Cohen doctrine. The Court of Appeals held that it does not, and 5 of the other 10 Circuits have also reached the conclusion that denials of disqualification motions are not immediately appealable "collateral orders."12 We agree with these courts that under Cohen such an order is not subject to appeal prior to resolution of the merits.
9
An order denying a disqualification motion meets the first part of the "collateral order" test. It "conclusively determine[s] the disputed question," because the only issue is whether challenged counsel will be permitted to continue his representation. In addition, we will assume, although we do not decide, that the disqualification question "resolve[s] an important issue completely separate from the merits of the action," the second part of the test. Nevertheless, petitioner is unable to demonstrate that an order denying disqualification is "effectively unreviewable on appeal from a final judgment" within the meaning of our cases.
10
In attempting to show why the challenged order will be effectively unreviewable on final appeal, petitioner alleges that denying immediate review will cause it irreparable harm. It is true that the finality requirement should "be construed so as not to cause crucial collateral claims to be lost and potentially irreparable injuries to be suffered," Mathews v. Eldridge, 424 U.S. 319, 331, n. 11, 96 S.Ct. 893, 901, n. 11, 47 L.Ed.2d 18 (1976). In support of its assertion that it will be irreparably harmed, petitioner hints at "the possibility that the course of the proceedings may be indelibly stamped or shaped with the fruits of a breach of confidence or by acts or omissions prompted by a divided loyalty," Brief for Petitioner 15, and at "the effect of such a tainted proceeding in frustrating public policy," id., at 16. But petitioner fails to supply a single concrete example of the indelible stamp or taint of which it warns. The only ground that petitioner urged in the District Court was that respondent might shape the products-liability plaintiffs' claims for relief in such a way as to increase the burden on petitioner. Our cases, however, require much more before a ruling may be considered "effectively unreviewable" absent immediate appeal.
11
To be appealable as a final collateral order, the challenged order must constitute "a complete, formal and, in the trial court, final rejection," Abney v. United States, supra, 431 U.S. at 659, 97 S.Ct. at 2040, of a claimed right "where denial of immediate review would render impossible any review whatsoever," United States v. Ryan, 402 U.S. 530, 533, 91 S.Ct. 1580, 1582, 29 L.Ed.2d 85 (1971). Thus we have permitted appeals prior to criminal trials when a defendant has claimed that he is about to be subjected to forbidden double jeopardy, Abney v. United States, supra, or a violation of his constitutional right to bail, Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951) because those situations, like the posting of security for costs involved in Cohen, "each involved an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial." United States v. MacDonald, 435 U.S. 850, 860, 98 S.Ct. 1547, 1552, 56 L.Ed.2d 18 (1978). By way of contrast, we have generally denied review of pretrial discovery orders, see, e. g., United States v. Ryan, supra; Cobbledick v. United States, supra. Our rationale has been that in the rare case when appeal after final judgment will not cure an erroneous discovery order, a party may defy the order, permit a contempt citation to be entered against him, and challenge the order on direct appeal of the contempt ruling. See Cobbledick v. United States, supra, at 327, 60 S.Ct. at 542. We have also rejected immediate appealability under § 1291 of claims that "may fairly be assessed" only after trial, United States v. MacDonald, supra, at 860, and those involving "considerations that are 'enmeshed in the factual and legal issues comprising the plaintiff's cause of action.' " Coopers & Lybrand v. Livesay, 437 U.S., at 469, 98 S.Ct., at 2458, quoting Mercantile National Bank v. Langdeau, 371 U.S. 555, 558, 83 S.Ct. 520, 522, 9 L.Ed.2d 523 (1963).
12
An order refusing to disqualify counsel plainly falls within the large class of orders that are indeed reviewable on appeal after final judgment, and not within the much smaller class of those that are not. The propriety of the district court's denial of a disqualification motion will often be difficult to assess until its impact on the underlying litigation may be evaluated, which is normally only after final judgment. The decision whether to disqualify an attorney ordinarily turns on the peculiar factual situation of the case then at hand, and the order embodying such a decision will rarely, if ever, represent a final rejection of a claim of fundamental right that cannot effectively be reviewed following judgment on the merits. In the case before us, petitioner has made no showing that its opportunity for meaningful review will perish unless immediate appeal is permitted. On the contrary, should the Court of Appeals conclude after the trial has ended that permitting continuing representation was prejudicial error, it would retain its usual authority to vacate the judgment appealed from and order a new trial. That remedy seems plainly adequate should petitioner's concerns of possible injury ultimately prove well founded. As the Second Circuit has recently observed, the potential harm that might be caused by requiring that a party await final judgment before it may appeal even when the denial of its disqualification motion was erroneous does not "diffe[r] in any significant way from the harm resulting from other interlocutory orders that may be erroneous, such as orders requiring discovery over a work-product objection or orders denying motions for recusal of the trial judge." Armstrong v. McAlpin, 625 F.2d 433, 438 (1980), cert. pending, No. 80-431. But interlocutory orders are not appealable "on the mere ground that they may be erroneous." Will v. United States, 389 U.S. 90, 98, n. 6, 88 S.Ct. 269, 275, n. 6, 19 L.Ed.2d 305 (1967). Permitting wholesale appeals on that ground not only would constitute an unjustified waste of scarce judicial resources, but also would transform the limited exception carved out in Cohen into a license for broad disregard of the finality rule imposed by Congress in § 1291. This we decline to do.13
III
13
We hold that a district court's order denying a motion to disqualify counsel is not appealable under § 1291 prior to final judgment in the underlying litigation.14 Insofar as the Eighth Circuit reached this conclusion, its decision is correct. But because its decision was contrary to precedent in the Circuit, the court went further and reached the merits of the order appealed from. This approach, however, overlooks the fact that the finality requirement embodied in § 1291 is jurisdictional in nature. If the appellate court finds that the order from which a party seeks to appeal does not fall within the statute, its inquiry is over. A court lacks discretion to consider the merits of a case over which it is without jurisdiction, and thus, by definition, a jurisdictional ruling may never be made prospective only. We therefore hold that because the Court of Appeals was without jurisdiction to hear the appeal, it was without authority to decide the merits.15 Con sequently, the judgment of the Eighth Circuit is vacated, and the case is remanded with instructions to dismiss the appeal for want of jurisdiction. See DiBella v. United States, 369 U.S., at 133, 82 S.Ct. at 661.
14
So ordered.
15
Justice REHNQUIST, with whom THE CHIEF JUSTICE joins, concurring in the result.
16
I agree with the result in this case and the analysis of the Court so far as it concerns the question whether an order denying disqualification of counsel is "effectively unreviewable on appeal from the final judgment." The Court's answer to this question is dispositive on the appealability issue. Since it is completely unnecessary to do so, however, I would not state, as the Court does, ante, at 375-376:
17
"An order denying a disqualification motion meets the first part of the 'collateral order' test. It 'conclusively determine[s] the disputed question,' because the only issue is whether challenged counsel will be permitted to continue his representation."
18
In Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), Justice Jackson stressed that the order before the Court was "a final disposition of a claimed right" and specifically distinguished a case in which the matter was "subject to reconsideration from time to time." Id., at 546-547, 69 S.Ct., at 1225. Just recently in Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978), we held that an order denying class certification was not appealable under the collateral-order doctrine, in part because such an order is "subject to revision in the District Court." Id., at 469, 98 S.Ct., at 2458. The possibility that a district judge would reconsider his determination was highly significant in United States v. MacDonald, 435 U.S. 850, 858-859, 98 S.Ct. 1547, 1551-1552, 56 L.Ed.2d 18 (1978), where the Court held that the denial of a pretrial motion to dismiss an indictment on speedy trial grounds was not appealable under the collateral-order doctrine. The Court noted that speedy trial claims necessitated a careful assessment of the particular facts of the case, and that "[t]he denial of a pretrial motion to dismiss an indictment on speedy trial grounds does not indicate that a like motion made after trial—when prejudice can be better gauged—would also be denied."
19
It is not at all clear to me, nor has it been to courts considering the question, that an order denying a motion for disqualification of counsel conclusively determines the disputed question. The District Court remains free to reconsider its decision at any time. See Armstrong v. McAlpin, 625 F.2d 433, 439 (CA2 1980) (en banc), cert. pending, No. 80-431; id., at 451 (Van Graafeiland, J., concurring in part and dissenting in part); Fleischer v. Phillips, 264 F.2d 515, 516-517 (CA2), cert. denied, 359 U.S. 1002, 79 S.Ct. 1139, 3 L.Ed.2d 1030 (1959). The Court itself recognizes this possibility, ante, at 378-379, n. 13. And in doing so the Court is not only being abstractly inconsistent with its conclusion that the first prong of the Cohen test is satisfied. In this very case the possibility of reconsideration by the trial judge cannot be dismissed as merely theoretical. Petitioner's claim is that respondent will advance only those theories of liability which absolve the insurer, or will advance those theories more strenuously than others. Although it is impossible to discern if this is true before trial, the issue may become clearer as trial progresses and respondent actually does present his theories. As in MacDonald, it cannot be assumed that a motion made at a later point in the proceedings—"when prejudice can be better gauged"—will be denied.
20
Because of what seem to me to be totally unnecessary and very probably incorrect statements as to this minor point in the opinion, I concur in the result only.
1
Title 28 U.S.C. § 1291 provides in relevant part: "The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States . . . except where a direct review may be had in the Supreme Court."
2
Pursuant to 28 U.S.C. § 1407, the Judicial Panel on Multidistrict Litigation has ordered these and other suits against multipiece truck tire rim manufacturers consolidated for trial in the United States District Court for the Western District of Missouri. App. 73.
3
The firm included Home in a list of its clients in the Martindale-Hubbell Law Directory and had occasionally represented the insurer on matters unrelated to the multipiece rim litigation. At the time that petitioner filed its disqualification motion, respondent was defending Home and five other carriers against a suit on certain fire insurance policies. Home does not pay respondent or his firm a retainer.
4
In April 1979 Home sent letters containing similar advice to the defendants in some of the other consolidated suits. The plaintiffs in these other actions were not represented by respondent.
5
In the alternative, the District Court stated that respondent could terminate his representation of Home in the unrelated matter. See n. 3, supra.
6
The trial court based its determination that a potential conflict existed on its interpretation of Disciplinary Rule 5-105 of the Code of Professional Responsibility, most of which had been adopted verbatim as a local rule of court. That rule prohibits a lawyer from "continu[ing] multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client" except when "it is obvious that he can adequately represent the interest of each and if each consents to the representation. . . ." The District Court agreed with petitioner that it was likely that the dual representation would adversely affect respondent's " 'exercise of his independent judgment. . . .' " App. 160, quoting International Business Machines Corp. v. Levin, 579 F.2d 271, 280 (CA3 1978). It therefore ordered that he "either comply with the consent requirement . . . or terminate his representation. . . ." App. 160.
7
The District Court certified its pretrial order on disqualification for interlocutory appeal pursuant to 28 U.S.C. § 1292(b), which provides in relevant part:
"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 such order. The Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order. . . ."
Neither party elected to proceed under § 1292(b). Respondent chose to comply with the order rather than appeal. Petitioner chose to appeal the denial of its motion under § 1291 rather than under § 1292(b). After filing its notice of appeal, petitioner moved that respondent be held in contempt for allegedly failing to comply with the pretrial order, but this motion was subsequently withdrawn.
8
The Court of Appeals also stated that orders granting motions to disqualify counsel would be appealable under § 1291. 612 F.2d, at 378. That question is not presented by the instant petition, and we express no opinion on it. Neither do we express any view on whether an order denying a disqualification motion in a criminal case would be appealable under § 1291.
9
During pendency of its appeal to the Eighth Circuit, petitioner filed a federal-court action against Home, charging that by consenting to respondent's continuing representation of the plaintiffs in the multipiece rim products-liability suits, the insurer had breached its fiduciary duty to petitioner. App. 217. At the time of oral argument, counsel for petitioner represented that no resolution had been reached in that litigation. Tr. of Oral Arg. 7-8.
10
In addition to the Eighth Circuit decision currently before us, five other Circuits now follow the rule that denials of disqualification motions are not appealable. See In re Continental Investment Corp., 637 F.2d 1 (CA1 1980); Armstrong v. McAlpin, 625 F.2d 431 (CA2 1980), cert. pending, No. 80-431, overruling Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 496 F.2d 800 (CA2 1974); Melamed v. ITT Continental Baking Co., 592 F.2d 290 (CA6 1979) (Melamed II), overruling Melamed v. ITT Continental Baking Co., 534 F.2d 82 (CA6 1976) (Melamed I); Community Broadcasting of Boston, Inc. v. FCC, 178 U.S.App.D.C. 256, 546 F.2d 1022 (1976); Cord v. Smith, 338 F.2d 516 (CA9 1964). Five Circuits permit such appeals under § 1291. See Westinghouse Electric Corp. v. Kerr-McGee Corp., 580 F.2d 1311 (CA7 1978); MacKethan v. Peat, Marwick, Mitchell & Co., 557 F.2d 395 (CA4 1977); Kroungold v. Triester, 521 F.2d 763 (CA3 1975); Fullmer v. Harper, 517 F.2d 20 (CA10 1975); Uniweld Products, Inc. v. Union Carbide Corp., 385 F.2d 992 (CA5 1967), cert. denied, 390 U.S. 921, 88 S.Ct. 853, 19 L.Ed.2d 980 (1968).
11
Counsel for respondent represented at oral argument in this Court that the case was, at that time, in the discovery stage. Tr. of Oral Arg. 35-36.
12
See n. 10, supra.
13
Although there may be situations in which a party will be irreparably damaged if forced to wait until final resolution of the underlying litigation before securing review of an order denying its motion to disqualify opposing counsel, it is not necessary, in order to resolve those situations, to create a general rule permitting the appeal of all such orders. In the proper circumstances, the moving party may seek sanctions short of disqualification, such as a protective order limiting counsel's ability to disclose or to act on purportedly confidential information. If additional facts in support of the motion develop in the course of the litigation, the moving party might ask the trial court to reconsider its decision. Ultimately, if dissatisfied with the result in the District Court and absolutely determined that it will be harmed irreparably, a party may seek to have the question certified for interlocutory appellate review pursuant to 28 U.S.C. § 1292(b), see n. 7, supra, and, in the exceptional circumstances for which it was designed, a writ of mandamus from the court of appeals might be available. See In re Continental Investment Corp., supra, 637 F.2d, at 7; Community Broadcasting of Boston, Inc. v. FCC, 178 U.S.App.D.C., at 262, 546 F.2d, at 1028. See generally Comment, The Appealability of Orders Denying Motions for Disqualification of Counsel in the Federal Courts, 45 U.Chi.L.Rev. 450, 468-480 (1978). We need not be concerned with the availability of such extraordinary procedures in the case before us, because petitioner has made no colorable claim that the harm it might suffer if forced to await the final outcome of the litigation before appealing the denial of its disqualification motion is any greater than the harm suffered by any litigant forced to wait until the termination of the trial before challenging interlocutory orders it considers erroneous.
14
The United States in its brief amicus curiae, has challenged petitioner's standing to attack the order permitting respondent to continue his representation of the plaintiffs. In light of our conclusion that the Eighth Circuit was without jurisdiction to hear petitioner's appeal, we have no occasion to address the standing issue.
15
Two other Courts of Appeals that have overruled their precedent and held that orders denying disqualification motions are not immediately appealable have similarly made their decisions prospective only and therefore reached the merits of the disputes before them. See Armstrong v. McAlpin, 625 F.2d, at 441-442 (citing need to provide guidance to district courts and to avoid waste of judicial resources); Melamed II, 592 F.2d at 295 (earlier ruling in Melamed I established appealability as law of the case). To the extent that the rationales of those cases would allow a court to agree to decide the merits of a case over which it is without jurisdiction, we respectfully disagree.
| 89
|
449 U.S. 405
101 S.Ct. 909
66 L.Ed.2d 616
George MARISCALv.UNITED STATES
No. 80-5618
Supreme Court of the United States
January 19, 1981
On petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit.
PER CURIAM.
1
This case arises on a petition for certiorari to the United States Court of Appeals for the Ninth Circuit, which affirmed petitioner's conviction on 10 counts of interstate transportation of property obtained by fraud, in violation of 18 U.S.C. § 2314, and on 12 counts of mail fraud, in violation of 18 U.S.C. § 1341. 626 F.2d 868. The court affirmed the interstate transportation convictions on the merits, and declined to address the "rather complex issues" presented by the mail fraud convictions, invoking the discretionary "concurrent sentence" doctrine. App. to Pet. for Cert. 6-7; see Barnes v. United States, 412 U.S. 837, 848, n. 16, 93 S.Ct. 2357, 2364, n. 16, 37 L.Ed.2d 380 (1973); Benton v. Maryland, 395 U.S. 784, 787-793, 89 S.Ct. 2056, 2058-2062, 23 L.Ed.2d 707 (1969). In light of the Solicitor General's concession in this Court that the mail fraud convictions were invalid, Memorandum in Opposition 4-5, we grant the motion of petitioner for leave to proceed in forma pauperis, grant certiorari, vacate the judgment of the Ninth Circuit affirming the mail fraud convictions, and remand for reconsideration of the applicability of the "concurrent sentence" doctrine to a conviction conceded by the United States to be erroneous.
2
It is so ordered.
3
Justice WHITE dissents, essentially for the reasons stated by Justice REHNQUIST in his dissenting opinion.
4
Justice REHNQUIST, dissenting.
5
There is a certain irony in the fact that I authored for the Court the opinion in United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974), which affirmed an opinion written by the present Solicitor General when he was a judge for the Court of Appeals for the Sixth Circuit reversing certain mail fraud convictions. Nonetheless, I think that a more important principle is at stake here than whether or not the mail fraud convictions are proper. That larger issue is whether this Court should mechanically accept any suggestion from the Solicitor General that a decision rendered in favor of the Government by a United States Court of Appeals was in error, and vacate the conviction and request that the Government present its "confession of error" to the Court of Appeals which it had earlier persuaded to affirm the conviction.
6
One may freely concede that with 93 United States Attorneys and 11 Courts of Appeals, there will be differing views as between prosecutors, as well as between prosecutors and courts, as to legal issues presented in criminal cases. But the Executive is one branch of the Government, and the Judiciary another. The Office of the Solicitor General, while having earned over the years a reputation for ability and expertise in presenting the Government's claims to this Court, is nonetheless a part of the Executive Branch of the Federal Government, not of the Judicial Branch. I think it ill behooves this Court to defer to the Solicitor General's suggestion that a Court of Appeals may have been in error after another representative of the Executive Branch and the Justice Department has persuaded the Court of Appeals to reach the result which it did.
7
The Office of the Solicitor General may be quite faithfully performing its obligations under our system by calling our attention to what it perceives to be errors in the decisions of the courts of appeals. But I harbor serious doubt that our adversary system of justice is well served by this Court's practice of routinely vacating judgments which the Solicitor General questions without any independent examination of the merits on our own. With the increasing caseloads of all federal courts, there is a natural temptation to "pass the buck" to some other court if that is possible. Congress has given us discretionary jurisdiction to deny certiorari if we do not wish to grant plenary consideration to a particular case, a benefit that other federal courts do not share, but it has not to my knowledge moved the Office of the Solicitor General from the Executive Branch of the Federal Government to the Judicial Branch. Until it does, I think we are bound by our oaths either to examine independently the merits of a question presented for review on certiorari, or in the exercise of our discretion to deny certiorari. Because the Court exercises neither of these alternatives here, I dissent.
| 01
|
449 U.S. 408
101 S.Ct. 912
66 L.Ed.2d 619
UNITED STATES of America, plaintiff,v.State of CALIFORNIA, defendant
No. 5
Supreme Court of the United States
January 19, 1981
1
On bill in Equity.
FOURTH SUPPLEMENTAL DECREE
2
Jan. 19, 1981. IT IS ORDERED, ADJUDGED, AND DECREED that the Decree of October 27, 1947 (332 U.S. 804, 68 S.Ct. 20, 92 L.Ed. 382), and the Supplemental Decrees heretofore entered in this cause on January 31, 1966 (382 U.S. 448, 86 S.Ct. 607, 15 L.Ed.2d 517), June 13, 1977 (432 U.S. 40, 97 S.Ct. 2915, 53 L.Ed.2d 94), and November 27, 1978 (439 U.S. 30, 99 S.Ct. 556, 58 L.Ed.2d 267), be, and the same hereby are further supplemented as follows:
3
1. The inland waters of the Port of San Pedro include those waters enclosed by a straight line from the eastern end of the Long Beach breakwater (NOS Chart 18749, 33x43'23" N., 118x08'10" W.) to the seaward end of the east jetty of Anaheim Bay (NOS Chart 18749, 33x43'36" N., 118x05'57" W.).
4
2. The inland waters of San Diego Bay are those enclosed by a straight line from the seaward end of Point Loma (NOS Chart 18772, 32x39'46" N., 117x14'29" W.) to the point at which the line of mean lower low water intersects with the southern seaward end of the entire Zuniga jetty (NOS Chart 18772, 32x40'00.5" N., 117x13'19" W.).
5
3. The following artificial structures do not form part of the coastline of california for purposes of establishing the federal-state boundary line under the Submerged Lands Act, 43 U.S.C. § 1301 et seq.:
6
a. The Sharp Beach pier (NOS Chart 18685, 37x38'00" N., 122x29'41" W.);
7
b. The Morro Strand pier (NOS Chart 18703, 35x24'38.4" N., 120x52'31.9" W.);
8
c. The Port Orford pier (NOS Chart 18721, 34x28'09.6" N., 120x13'38.8" W.);
9
d. The Ellwood pier (NOS Chart 18721, 34x25'39" N., 119x55'20" W.);
10
e. The Santa Barbara Biltmore Hotel pier (NOS Chart 18725, 34x24'59.4" N., 119x38'30" W.);
11
f. The Carpinteria pier (NOS Chart 18725, 34x23'06" N., 119x30'4.6" W.);
12
g. The Punta Gorda causeway and Rincon Island (NOS Chart 18725, 34x20'48.1" N., 119x26'39" W.);
13
h. The Venice pier (NOS Chart 18744, 33x59'06" N., 118x28'35" W.);
14
i. The Manhattan Beach pier (NOS Chart 18744, 33x53'00" N., 118x24'48.2" W.);
15
j. The Hermosa Beach pier (NOS Chart 18744, 33x51'40.2" N., 118x24'16.9" W.);
16
k. The Huntington Beach pier (NOS Chart 18740, 33x09'14" N., 118x00'21" W.);
17
l. The Newport Beach pier (NOS Chart 18754, 33x36'22.0" N., 117x55'49.6" W.);
18
m. The Balboa Beach pier (NOS Chart 18754, 33x35'54.4" N., 117x54'01.1" W.);
19
n. The Oceanside pier (NOS Chart 18740, 33x11'29.4" N., 117x23'18" W.);
20
o. The Ocean Beach pier (NOS Chart 18754, 32x44'58.5" N., 117x15'30.5" W.); and
21
p. The Imperial Beach pier (NOS Chart 18772, 32x34'46.6" N., 117x08'08.0" W.).
22
4. The parties having paid their own costs and having contributed equally to a fund for expenses of the Special Master, any amounts remaining in said fund after deduction of all expenses by the Special Master shall be divided equally and returned to each party by the Special Master.
23
5. The Court retains jurisdiction to entertain further proceedings, enter such orders, and issue such writs as may from time to time be deemed necessary or advisable to give proper force and effect to this decree or to effectuate the rights of the parties in the premises.
24
Justice MARSHALL took no part in the consideration or decision of this order.
| 910
|
449 U.S. 424
101 S.Ct. 698
66 L.Ed.2d 633
William RUBIN, Petitioner,v.UNITED STATES.
No. 79-1013.
Argued Nov. 12, 1980.
Decided January 21, 1981.
Syllabus
Section 17(a) of the Securities Act of 1933 prohibits fraud in the "offer or sale" of any securities. Section 2(3) of the Act defines "sale" as including "every . . . disposition of a security or interest in a security, for value," and "offer" as including "every attempt or offer to dispose of . . . a security or interest in a security, for value." Petitioner was convicted of conspiracy to violate § 17(a) by making false representations to a bank concerning shares of stock pledged as collateral for loans. The Court of Appeals affirmed, rejecting petitioner's contention that the stock pledges did not constitute "offers" or "sales" under § 17(a).
Held: The pledge of stock to a bank as collateral for a loan is an "offer or sale" of a security under § 17(a). Pp. 428-431.
(a) Obtaining a loan secured by a pledge of stock unmistakably involves a "disposition of [an] interest in a security, for value" within the statutory definition. Although pledges transfer less than absolute title, the interest thus transferred nonetheless is an "interest in a security," and it is not essential under the terms of the Act that full title pass to a transferee for the transaction to be an "offer" or "sale." Pp. 429-430.
(b) When the terms of a statute are unambiguous, judicial inquiry is complete, except in rare and exceptional circumstances; no such circumstances are present here. Treating pledges as included among "offers" and "sales" comports with the Act's purpose and, specifically, with § 17(a)'s purpose to protect against fraud and promote the free flow of information in the public dissemination of securities. The economic considerations and realities present when a lender parts with value and accepts securities as collateral for a loan are similar in important respects to the risk an investor undertakes when purchasing securities. Both rely on the value of the securities themselves, and both must be able to depend on the transferor's representations, regardless of whether the transferor passes full title or only a conditional and defeasible interest to secure repayment of a loan. Pp. 430-431.
2nd Cir., 609 F.2d 51, affirmed.
Louis Bender, New York City, for petitioner.
Stephen M. Shapiro, Washington, D. C., for respondent.
CHIEF JUSTICE BURGER delivered the opinion of the Court.
1
We granted certiorari in this case to decide whether a pledge of stock to a bank as collateral for a loan is an "offer or sale" of a security under § 17(a) of the Securities Act of 1933, 15 U.S.C. § 77q(a).
2
* Late in 1972, petitioner became vice president of Tri-State Energy, Inc., a corporation holding itself out as involved in energy exploration and production. At the time, Tri-State was experiencing serious financial problems. Petitioner approached Bankers Trust Co., a bank with which he had frequently dealt while he had been affiliated with an accounting firm. Bankers Trust initially refused a $5 million loan to Tri-State for operating a mine. Nevertheless, it lent Tri-State $50,000 on October 20, 1972, for 30 days with the understanding that if Tri-State could produce adequate financial information and sufficient collateral, additional financing might be available.
3
Petitioner assisted other officers of Tri-State in preparing a financial statement for submission to the bank. The balance sheet, which listed a net worth of $7.1 million, was false and misleading in several respects.1 Tri-State also submitted inflated projections of future earnings based in large measure on sham contracts and forged documentation. Subsequently, petitioner personally paid the loan officer $4,000 and another official $1,000 as inducements for further loans. Tri-State borrowed an additional $425,000 over a brief period.2 Ultimately, the loans were consolidated into a single demand note for $475,000, dated February 26, 1973.
4
Bankers Trust required collateral for each new loan; between October 20, 1972, and January 19, 1973, Tri-State pledged stock in six companies. The stocks were represented as being good, marketable, and unrestricted and valued at a total of approximately $1.7 million;3 in fact, they were practically worthless. Many shares were issued by "shell" companies. Most were simply "rented"—i. e., borrowed from the owner for a fee—to show to the bank or were otherwise restricted. In one instance, petitioner arranged for fictitious quotations to appear in a service reporting over-the-counter transactions and used by the bank in evaluating pledged securities; in another, Tri-State planted, through others, a fictitious advertisement in an overseas newspaper and showed it to the bank, representing it to be a quotation. Trading of one issue was suspended shortly after the pledge when the issuing company could not account for 900,000 shares of its stock; Tri-State replaced this collateral before Bankers Trust learned of the difficulty. Petitioner acted as Tri-State's agent for most of these transactions.
5
A Justice Department request for information about Tri-State received February 28, two days after the consolidated note was signed, prompted Bankers Trust on March 5 to demand payment in full within three days. No payment of this demand was made, and in May another officer of Tri-State met with bank officials and tried to forestall foreclosure. After rejecting Tri-State's request for a further loan, the bank sued on the note.
6
Bankers Trust also proceeded against petitioner personally as a guarantor of the loans. Petitioner signed a confession of judgment against himself in the amount of the unpaid loans, plus accrued interest, but thereafter filed a petition for bankruptcy. The bank recovered only about $2,500, plus interest and expenses, on its $475,000 loan.
7
Petitioner was indicted on three counts of violating and conspiring to violate various federal antifraud statutes, including § 17(a) of the Securities Act of 1933, 15 U.S.C. § 77q(a).4 Following a jury trial in the United States District Court for the Southern District of New York, petitioner was convicted on the conspiracy count. On appeal to the Court of Appeals for the Second Circuit, petitioner raised several grounds, including whether a pledge of stock as collateral for a bank loan is an "offer or sale" under § 17(a). The Court of Appeals affirmed. 609 F.2d 51 (1979).5 We granted certiorari limited to the question whether such a pledge is an "offer or sale." 445 U.S. 960, 100 S.Ct. 1645, 64 L.Ed.2d 234 (1980).
II
8
Section 17(a) of the Securities Act of 1933 provides:
9
"It shall be unlawful for any person in the offer or sale of any securities by the use of any means or instruments of transportation or communication in interstate commerce or by the use of the mails, directly or indirectly—
10
"(1) to employ any device, scheme, or artifice to defraud, or
11
"(2) to obtain money or property by means of any untrue statement of a material fact or any omission 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, or
12
"(3) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser." 48 Stat. 84, as amended, 15 U.S.C. § 77q(a) (emphasis added).
13
Petitioner does not deny that he engaged in a conspiracy to commit fraud through false representations to Bankers Trust concerning the stocks pledged; he does not deny that the shares were "securities" under the Act. Rather, he contends narrowly that these pledges did not constitute "offers" or "sales" under § 17(a) of the Act. Tr. of Oral Arg. 6.6 To sustain this contention, petitioner argues that Tri-State deposited the stocks with the bank only as collateral security for a loan, not as a transfer or sale. From this he argues that the implied power to dispose of the stocks could ripen into title and thereby constitute a "sale" only by effecting foreclosure of the various pledges, an event that could not occur without a default on the loans.
14
We begin by looking to the language of the Act. E. g., Ernst & Ernst v. Hochfelder, 425 U.S. 185, 197, 96 S.Ct. 1375, 1382, 47 L.Ed.2d 668 (1976). The terms "offer" and "sale" in § 17(a) are defined in § 2(3) of the Act:
15
"The term 'sale' or 'sell' shall include every contract of sale or disposition of a security or interest in a security, for value. The term . . . 'offer' shall include every attempt or offer to dispose of, or solicitation of an offer to buy, a security or interest in a security, for value." 48 Stat. 74, as amended, 15 U.S.C. § 77b(3) (emphasis added).
16
Obtaining a loan secured by a pledge of shares of stock unmistakably involves a "disposition of [an] interest in a security, for value." Although pledges transfer less than absolute title, the interest thus transferred nonetheless is an "interest in a security." The pledges contemplated a self-executing procedure under a power that could, at the option of the pledgee (the bank) in the event of a default, vest absolute title and ownership. Bankers Trust parted with substantial consideration—specifically, a total of $475,000—and obtained the inchoate but valuable interest under the pledges and concomitant powers. It is not essential under the terms of the Act that full title pass to a transferee for the transaction to be an "offer" or a "sale." See, e. g., United States v. Gentile, 530 F.2d 461, 466 (CA2), cert. denied, 426 U.S. 936, 96 S.Ct. 2651, 49 L.Ed.2d 388 (1976).
III
17
When we find the terms of a statute unambiguous, judicial inquiry is complete, except "in 'rare and exceptional circumstances.' " TVA v. Hill, 437 U.S. 153, 187, n. 33, 98 S.Ct. 2279, 2298, n. 33, 57 L.Ed.2d 117 (1978) (quoting Crooks v. Harrelson, 282 U.S. 55, 60, 51 S.Ct. 49, 50, 75 L.Ed. 156 (1930)). Accord, Aaron v. SEC, 446 U.S. 680, 695, 100 S.Ct. 1945, 1955, 64 L.Ed.2d 611 (1980); Ernst & Ernst v. Hochfelder, supra, at 214, n. 33, 96 S.Ct., at 1391 n. 33. No such circumstances are present here, for our reading of the statute is wholly consistent with the history and the purposes of the Securities Act of 1933. The Uniform Sale of Securities Act, a model "blue sky" statute adopted in many states, defined "sale" in language almost identical to that now appearing in § 2(3).7 In Cecil B. De Mille Productions, Inc. v. Woolery, 61 F.2d 45 (1932), the Court of Appeals for the Ninth Circuit construed this provision of the model statute as adopted by California and held that the definition of "sale" embraced a pledge. Congress subsequently enacted the definition from the uniform Act almost verbatim. See Federal Securities Act: Hearings on H.R. 4314 before the House Committee on Interstate and Foreign Commerce, 73d Cong., 1st Sess., 11 (1933). See generally id., at 13; Securities Act: Hearings on S. 875 before the Senate Committee on Banking and Currency, 73d Cong., 1st Sess., 71 (1933). Petitioner has cited nothing to suggest that Congress did not intend the broad scope that cases arising under the Uniform Act, such as Woolery, supra, had given the definition of "sale." See Lorillard v. Pons, 434 U.S. 575, 581, 98 S.Ct. 866, 870, 55 L.Ed.2d 40 (1978).
18
Treating pledges as included among "offers" and "sales" comports with the purpose of the Act and, specifically, with that of § 17(a). We frequently have observed that these provisions were enacted to protect against fraud and promote the free flow of information in the public dissemination of securities. E. g., United States v. Naftalin, 441 U.S. 768, 774, 99 S.Ct. 2077, 2082, 60 L.Ed.2d 624 (1979); Ernst & Ernst v. Hochfelder, supra, at 195, 96 S.Ct., at 1382. The economic considerations and realities present when a lender parts with value and accepts securities as collateral security for a loan are similar in important respect to the risk an investor undertakes when purchasing shares. Both are relying on the value of the securities themselves, and both must be able to depend on the representations made by the transferor of the securities, regardless of whether the transferor passes full title or only a conditional and defeasible interest to secure repayment of a loan.8
19
Petitioner would have us interpret "offer" and "sale" in a way that not only is cramped but conflicts with the plain meaning of the statute and its purpose as well. We therefore hold that the pledges here were "offers" or "sales" under § 17(a); accordingly, the judgment of the Court of Appeals is
20
Affirmed.
21
Justice BLACKMUN, concurring in the judgment.
22
While I agree that a pledge of stock to a bank as collateral for a loan is an "offer or sale" of a security within the meaning of § 17(a) of the Securities Act of 1933, 15 U.S.C. § 77q(a), I reach that conclusion by a slightly different route than does the Court. The Court holds that a pledge confers an "interest in a security," and that therefore a pledge of shares of stock as collateral for a loan constitutes a "disposition of [an] interest in a security, for value" within the meaning of § 2(3) of the Act, 15 U.S.C. § 77b(3). Ante, at 429. I would hold simply that a pledge of stock as collateral is a type of "disposition" within the meaning of § 2(3). See United States v. Gentile, 530 F.2d 461, 466 (CA2), cert. denied, 426 U.S. 936, 96 S.Ct. 2651, 49 L.Ed.2d 388 (1976) (interpreting § 2(3) of the 1933 Act). Cf. § 3(a)(14) of the Securities Exchange Act of 1934, 15 U.S.C. § 78c(a)(14) ("[t]he terms 'sale' and 'sell' each include any contract to sell or otherwise dispose of"); Mansbach v. Prescott, Ball & Turben, 598 F.2d 1017, 1029 (CA6 1979) (interpreting § 3(a)(14) of the 1934 Act).
1
The balance sheet listed an account receivable of $7.5 million and included a copy of a contract that purportedly formed the basis of this account. No such item existed, and the signature on the contract had been forged. Evidence also indicated that Tri-State had listed a fictitious tax liability to offset the fictitious asset. The statement also referred to over $264,000 cash on hand and coal worth $180,000. Both figures were exaggerated.
2
Subsequent loans were made on November 22 ($50,000), November 30 ($100,000), and December 6 ($275,000).
3
The pledges were 400,000 shares of American Leisure Corp. (October 20—shell company; shares restricted); 2,000 shares of All States Life Insurance Co. (November 10—nonmarketable; "rented" to show the bank but not owned by Tri-State); 20,000 shares of Marlin Investment Co. (November 22—"rented" from a person who was told they would not be used as collateral); 100,000 shares of Management Dynamics, Inc. (December 6—trading suspended; withdrawn as collateral); 175,000 shares of General Investment Corp. (December 19—restricted); 50,000 shares of Satellite Systems Corp. (January 19—restricted and "rented"; fictitious overseas advertisement planted).
4
Count 1 of the indictment charged petitioner and his codefendants with conspiring to violate 18 U.S.C. § 1014 (fraud in a bank loan application), 18 U.S.C. § 1341 (mail fraud), and 18 U.S.C. § 1343 (wire fraud), as well as § 17(a) (securities fraud). Counts 2 and 3 alleged substantive violations of § 17(a) and 18 U.S.C. § 1014, respectively, against petitioner and some of the codefendants listed in the conspiracy count. Proceedings against petitioner were severed before trial. The Government agreed to dismiss the substantive charge of fraud in a bank loan application before the jury reached a verdict, and the jury acquitted petitioner of the substantive count of securities fraud.
5
The Court of Appeals divided over an evidentiary issue. It rejected petitioner's argument regarding the scope of § 17(a) without comment. See 609 F.2d, at 66.
6
The misrepresentations at issue in this case related to the stocks themselves; petitioner does not allege that his conviction, insofar as it involved securities fraud under § 17(a), was based on misrepresentations made about the financial condition of Tri-State itself. Thus, we need not decide whether misrepresentations or omissions involved in a securities transaction but not pertaining to the securities themselves can form the basis of a violation of § 17(a).
7
National Conference of Commissioners on Uniform State Laws, Handbook and Proceedings 174 (1929) (Fourth and Final Draft) ("sale" defined to "include every disposition, or attempt to dispose of a security or interest in a security for value").
8
To the extent that petitioner argues there was no need to protect pledgees, the very fact that Congress saw fit to afford such protection under the Commerce Clause, U.S.Const., Art. I, § 8, cl. 3, ends our inquiry, absent a contention, not present here, that the Constitution otherwise prohibits the means selected. "Our individual appraisal of the wisdom or unwisdom of a particular course consciously selected by the Congress is to be put aside in the process of interpreting a statute. Once the meaning of an enactment is discerned and its constitutionality determined, the judicial process comes to an end." TVA v. Hill, 437 U.S. 153, 194, 98 S.Ct. 2279, 2301, 57 L.Ed.2d 117 (1978).
| 01
|
449 U.S. 456
101 S.Ct. 715
66 L.Ed.2d 659
State of MINNESOTA, Petitioner,v.CLOVER LEAF CREAMERY COMPANY et al.
No. 79-1171.
Argued Nov. 3, 1980.
Decided Jan. 21, 1981.
Rehearing Denied March 23, 1981.
See 450 U.S. 1027, 101 S.Ct. 1735.
Syllabus
For the stated purposes of promoting resource conservation, easing solid waste disposal problems, and conserving energy, the Minnesota Legislature enacted a statute banning the retail sale of milk in plastic nonreturnable, nonrefillable containers, but permitting such sale in other nonreturnable, nonrefillable containers, such as paperboard cartons. Respondents filed suit in Minnesota District Court, seeking to enjoin enforcement of the statute on constitutional grounds. The District Court held that the statute violated,inter alia, the Equal Protection Clause of the Fourteenth Amendment and the Commerce Clause. Finding that "the evidence conclusively demonstrate[d] that the discrimination against plastic nonrefillables [was] not rationally related to the Act's objectives," the Minnesota Supreme Court affirmed on the equal protection ground without reaching the Commerce Clause issue.
Held:
1. The ban on plastic nonreturnable milk containers bears a rational relation to the State's objectives and must be sustained under the Equal Protection Clause. Pp. 461-470.
(a) The Equal Protection Clause does not deny Minnesota the authority to ban one type of milk container conceded to cause environmental problems, merely because another already established type is permitted to continue in use. Whether in fact the statute will promote more environmentally desirable milk packaging is not the question. The Equal Protection Clause is satisfied if the Minnesota Legislature could rationally have decided that its ban on plastic milk jugs might foster greater use of environmentally desirable alternatives. Pp. 465-466.
(b) The fact that the state legislature, having concluded that nonreturnable, nonrefillable milk containers pose environmental hazards, decided to ban the most recent entry in the field, and thus, in effect, "grandfathered" paperboard containers, at least temporarily, does not make the ban on plastic containers arbitrary or irrational. Cf. New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511. Pp. 466-468.
(c) Where the evidence as to whether the statute would help to conserve energy was "at least debatable," the Minnesota Supreme Court erred in substituting its judgment for that of the legislature by finding, contrary to the legislature, that the production of plastic nonrefillable containers required less energy than production of paper containers. Pp. 468-469.
(d) Similarly, the Minnesota Supreme Court erred in finding, contrary to the legislature's finding based on a reputable study, that plastic milk jugs take up less space in landfills and present fewer solid waste disposal problems than do paperboard containers. Pp. 469-470.
2. The statute does not violate the Commerce Clause as constituting an unreasonable burden on interstate commerce. Pp. 470-474.
(a) The statute does not discriminate between interstate and intrastate commerce but regulates evenhandedly by prohibiting all milk retailers from selling their products in plastic containers, without regard to whether the milk, the containers, or the sellers are from outside the State. Pp. 471-472.
(b) The incidental burden imposed on interstate commerce by the statute is not excessive in relation to the putative local benefits. Milk products may continue to move freely across the Minnesota border, and since most dairies package their products in more than one type of container, the inconvenience of having to conform to different packaging requirements in Minnesota and the surrounding States should be slight. Even granting that the out-of-state plastics industry is burdened relatively more heavily than the Minnesota pulpwood industry, this burden is not "clearly excessive" in light of the substantial state interest in promoting conservation of energy and other natural resources and easing solid waste disposal problems. These local benefits amply support Minnesota's decision under the Commerce Clause. Pp. 472-474.
Minn., 289 N.W.2d 79, reversed.
Kenneth E. Raschke, Jr., St. Paul, Minn., for petitioner.
Harlon L. Dalton, Washington, D. C., for the United States, as amicus curiae, by special leave of Court.
Leonard J. Keyes, St. Paul, Minn., for the respondents.
Justice BRENNAN delivered the opinion of the Court:
1
In 1977, the Minnesota Legislature enacted a statute banning the retail sale of milk in plastic nonreturnable, nonrefillable containers, but permitting such sale in other nonreturnable, nonrefillable containers, such as paperboard milk cartons. 1977 Minn.Laws, ch. 268, Minn.Stat. § 116F.21 (1978). Respondents1 contend that the statute violates the Equal Protection and Commerce Clauses of the Constitution.
2
* The purpose of the Minnesota statute is set out as § 1:
3
"The legislature finds that the use of nonreturnable, nonrefillable containers for the packaging of milk and other milk products presents a solid waste management problem for the state, promotes energy waste, and depletes natural resources. The legislature therefore, in furtherance of the policies stated in Minnesota Statutes, Section 116F.01,[2] determines that the use of nonreturnable, nonrefillable containers for packaging milk and other milk products should be discouraged and that the use of returnable and reusable packaging for these products is preferred and should be encouraged." 1977 Minn.Laws, ch. 268, § 1, codified as Minn.Stat. § 116F.21 (1978).
4
Section 2 of the Act forbids the retail sale of milk and fluid milk products, other than sour cream, cottage cheese, and yogurt, in nonreturnable, nonrefillable rigid or semi-rigid containers composed at least 50% of plastic.3
5
The Act was introduced with the support of the state Pollution Control Agency, Department of Natural Resources, Department of Agriculture, Consumer Services Division, and Energy Agency,4 and debated vigorously in both houses of the state legislature. Proponents of the legislation argued that it would promote resource conservation, ease solid waste disposal problems, and conserve energy. Relying on the results of studies and other information,5 they stressed the need to stop introduction of the plastic nonreturnable container before it became entrenched in the market. Opponents of the Act, also presenting empirical evidence, argued that the Act would not promote the goals asserted by the proponents, but would merely increase costs of retail milk products and prolong the use of ecologically undesirable paperboard milk cartons.
6
After the Act was passed, respondents filed suit in Minnesota District Court, seeking to enjoin its enforcement. The court conducted extensive evidentiary hearings into the Act's probable consequences, and found the evidence "in sharp conflict." App. A-25. Nevertheless, finding itself "as factfinder . . . obliged to weigh and evaluate this evidence," ibid., the court resolved the evidentiary conflicts in favor of respondents, and concluded that the Act "will not succeed in effecting the Legislature's published policy goals. . . ." Id., at A-21. The court further found that, contrary to the statement of purpose in § 1, the "actual basis" for the Act "was to promote the economic interests of certain segments of the local dairy and pulpwood industries at the expense of the economic interests of other segments of the dairy industry and the plastics industry." Id., at A-19. The court therefore declared the Act "null, void, and unenforceable" and enjoined its enforcement, basing the judgment on substantive due process under the Fourteenth Amendment to the United States Constitution and Art. 1, § 7, of the Minnesota Constitution; equal protection under the Fourteenth Amendment; and prohibition of unreasonable burdens on interstate commerce under Art. I, § 8, of the United States Constitution. App. A-23.
7
The State appealed to the Supreme Court of Minnesota, which affirmed the District Court on the federal equal protection and due process grounds, without reaching the Commerce Clause or state-law issues. 289 N.W.2d 79 (1979). Unlike the District Court, the State Supreme Court found that the purpose of the Act was "to promote the state interests of encouraging the reuse and recycling of materials and reducing the amount and type of material entering the solid waste stream," and acknowledged the legitimacy of this purpose. Id., at 82. Nevertheless, relying on the District Court's findings of fact, the full record, and an independent review of documentary sources, the State Supreme Court held that "the evidence conclusively demonstrates that the discrimination against plastic nonrefillables is not rationally related to the Act's objectives." Ibid. We granted certiorari, 445 U.S. 949, 100 S.Ct. 1596, 63 L.Ed.2d 784, and now reverse.
II
8
The parties agree that the standard of review applicable to this case under the Equal Protection Clause is the familiar "rational basis" test. See Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 943, 59 L.Ed.2d 171 (1979); New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516, 49 L.Ed.2d 511 (1976).6 Moreover, they agree that the purposes of the Act cited by the legislature—promoting resource conservation, easing solid waste disposal problems, and conserving energy—are legitimate state purposes. Thus, the controversy in this case centers on the narrow issue whether the legislative classification between plastic and nonplastic nonreturnable milk containers is rationally related to achievement of the statutory purposes.7
9
Respondents apparently have not challenged the theoretical connection between a ban on plastic nonreturnables and the purposes articulated by the legislature; instead, they have argued that there is no empirical connection between the two. They produced impressive supporting evidence at trial to prove that the probable consequences of the ban on plastic nonreturnable milk containers will be to deplete natural resources, exacerbate solid waste disposal problems, and waste energy, because consumers unable to purchase milk in plastic containers will turn to paperboard milk cartons, allegedly a more environmentally harmful product.
10
But States are not required to convince the courts of the correctness of their legislative judgments. Rather, "those challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker." Vance v. Bradley, 440 U.S., at 111, 99 S.Ct., at 950. See also Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 425, 72 S.Ct. 405, 408, 96 L.Ed. 469 (1952); Henderson Co. v. Thompson, 300 U.S. 258, 264-265, 57 S.Ct. 447, 450-451, 81 L.Ed. 632 (1937).
11
Although parties challenging legislation under the Equal Protection Clause may introduce evidence supporting their claim that it is irrational, United States v. Carolene Products Co., 304 U.S. 144, 153-154, 58 S.Ct. 778, 784, 82 L.Ed. 1234 (1938),8 they cannot prevail so long as "it is evident from all the considerations presented to [the legislature], and those of which we may take judicial notice, that the question is at least debatable." Id., at 154, 58 S.Ct., at 784. Where there was evidence before the legislature reasonably supporting the classification, litigants may not procure invalidation of the legislation merely by tendering evidence in court that the legislature was mistaken.
12
The District Court candidly admitted that the evidence was "in sharp conflict," App. A-25, but resolved the conflict in favor of respondents and struck down the statute. The Supreme Court of Minnesota, however, did not reverse on the basis of this patent violation of the principles governing rationality analysis under the Equal Protection Clause. Rather, the court analyzed the statute afresh under the Equal Protection Clause, and reached the conclusion that the statute is constitutionally invalid. The State contends that in this analysis the court impermissibly substituted its judgment for that of the legislature. We turn now to that argument.
B
13
The State identifies four reasons why the classification between plastic and nonplastic nonreturnables is rationally related to the articulated statutory purposes. If any one of the four substantiates the State's claim, we must reverse the Minnesota Supreme Court and sustain the Act.
14
First, the State argues that elimination of the popular plastic milk jug will encourage the use of environmentally superior containers. There is no serious doubt that the plastic containers consume energy resources and require solid waste disposal, nor that refillable bottles and plastic pouches are environmentally superior. Citing evidence that the plastic jug is the most popular, and the gallon paperboard carton the most cumbersome and least well regarded package in the industry, the State argues that the ban on plastic nonreturnables will buy time during which environmentally preferable alternatives may be further developed and promoted.
15
As Senator Spear argued during the Senate debate:
16
"[T]his bill is designed to prevent the beginning of another system of non-returnables that is going to be very, very difficult [to stop] once it begins. It is true that our alternative now is not a returnable system in terms of milk bottles. Hopefully we are eventually going to be able to move to that kind of a system, but we are never going to move to a returnable system so long as we allow another non-returnable system with all the investment and all of the vested interest that is going to involve to begin." Transcript of the Full Senate Floor Discussion on H.F. 45, p. 6 (May 20, 1977), reprinted as Plaintiffs' Exhibit J.
17
Accord, id., at 1-2 (statement of Sen. Luther).
18
The Minnesota Supreme Court dismissed this asserted state interest as "speculative and illusory." 289 N.W.2d, at 86. The court expressed doubt that the Minnesota Legislature or Pollution Control Agency would take any further steps to promote environmentally sound milk packaging, and stated that there is no evidence that paperboard cartons will cease to be used in Minnesota. Ibid.
19
We find the State's approach fully supportable under our precedents. This Court has made clear that a legislature need not "strike at all evils at the same time or in the same way," Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608, 610, 55 S.Ct. 570, 571, 79 L.Ed. 1086 (1935), and that a legislature "may implement [its] program step by step, . . . adopting regulations that only partially ameliorate a perceived evil and deferring complete elimination of the evil to future regulations." New Orleans v. Dukes, 427 U.S., at 303, 96 S.Ct., at 2516. See also Katzenbach v. Morgan, 384 U.S. 641, 657, 86 S.Ct. 1717, 1727, 16 L.Ed.2d 828 (1966); Williamson v. Lee Optical Co., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955); Railway Express Agency, Inc. v. New York, 336 U.S. 106, 110, 69 S.Ct. 463, 465, 93 L.Ed. 533 (1949). The Equal Protection Clause does not deny the State of Minnesota the authority to ban one type of milk container conceded to cause environmental problems, merely because another type, already established in the market, is permitted to continue in use. Whether in fact the Act will promote more environmentally desirable milk packaging is not the question: the Equal Protection Clause is satisfied by our conclusion that the Minnesota Legislature could rationally have decided that its ban on plastic nonreturnable milk jugs might foster greater use of environmentally desirable alternatives.
20
Second, the State argues that its ban on plastic nonreturnable milk containers will reduce the economic dislocation foreseen from the movement toward greater use of environmentally superior containers. The State notes that plastic nonreturnables have only recently been introduced on a wide scale in Minnesota, and that, at the time the legislature was considering the Act, many Minnesota dairies were preparing to invest large amounts of capital in plastic container production. As Representative Munger, chief sponsor of the bill in the House of Representatives, explained:
21
"Minnesota's dairy market is on the verge of making a major change over from essentially a paperboard container system to a system of primarily single use, throwaway plastic bottles. The major dairies in our state have ordered the blow-mold equipment to manufacture in plant the non-returnable plastic milk bottle. Members of the House, I feel now is an ideal time for this legislation when only one dairy in our state is firmly established in manufacturing and marketing the throwaway plastic milk bottle." Transcript of the Debate of the Minnesota House of Representatives on H.F. 45, p. 2 (Mar. 10, 1977), reprinted as Plaintiffs' Exhibit J.
22
See also Transcript of the Full Senate Floor Discussion on H.F. 45, p. 6 (May 20, 1977), reprinted as Plaintiffs' Exhibit J (statement of Sen. Milton); id., at 9 (statement of Sen. Schaaf); id., at 10-11 (statement of Sen. Perpich).
23
Moreover, the State explains, to ban both the plastic and the paperboard nonreturnable milk container at once would cause an enormous disruption in the milk industry because few dairies are now able to package their products in refillable bottles or plastic pouches. Thus, by banning the plastic container while continuing to permit the paperboard container, the State was able to prevent the industry from becoming reliant on the new container, while avoiding severe economic dislocation.
24
The Minnesota Supreme Court did not directly address this justification, but we find it supported by our precedents as well. In New Orleans v. Dukes, supra, we upheld a city regulation banning pushcart food vendors, but exempting from the ban two vendors who had operated in the city for over eight years. Noting that the "city could reasonably decide that newer businesses were less likely to have built up substantial reliance interests in continued operation," we held that the city "could rationally choose initially to eliminate vendors of more recent vintage." Id., at 305, 96 S.Ct., at 2517. Accord, United States v. Maryland Savings-Share Ins. Corp., 400 U.S. 4, 6, 91 S.Ct. 16, 17, 27 L.Ed.2d 4 (1970). This case is not significantly different. The state legislature concluded that nonreturnable, nonrefillable milk containers pose environmental hazards, and decided to ban the most recent entry into the field. The fact that the legislature in effect "grandfathered" paperboard containers, at least temporarily, does not make the Act's ban on plastic nonreturnables arbitrary or irrational.
25
Third, the State argues that the Act will help to conserve energy. It points out that plastic milk jugs are made from plastic resin, an oil and natural gas derivative, whereas paperboard milk cartons are primarily composed of pulpwood, which is a renewable resource. This point was stressed by the Act's proponents in the legislature. Senator Luther commented: "We have been through an energy crisis in Minnesota. We know what it is like to go without and what we are looking at here is a total blatant waste of petroleum and natural gas. . . ." Transcript of the Full Senate Floor Discussion on H.F. 45, p. 12 (May 20, 1977), reprinted as Plaintiffs' Exhibit J. Representative Munger said in a similar vein:
26
"A sweep to the plastic throwaway bottle in the gallon size container alone would use enough additional natural gas and petroleum to heat 3,100 homes each year in Minnesota when compared to a refillable system and 1,400 compared to the present paperboard system. Plastic containers are made from a non-renewable resource while the paperboard is made from Minnesota's forest products." Transcript of the Debate of the Minnesota House of Representatives on H.F. 45, p. 2 (Mar. 10, 1977), reprinted as Plaintiffs' Exhibit J.
27
The Minnesota Supreme Court held, in effect, that the legislature misunderstood the facts. The court admitted that the results of a reliable study9 support the legislature's conclusion that less energy is consumed in the production of paperboard containers than in the production of plastic nonreturnables, but, after crediting the contrary testimony of respondents' expert witness and altering certain factual assumptions,10 the court concluded that "production of plastic nonrefillables requires less energy than production of paper containers." 289 N.W.2d, at 85.
28
The Minnesota Supreme Court may be correct that the Act is not a sensible means of conserving energy. But we reiterate that "it is up to legislatures, not courts, to decide on the wisdom and utility of legislation." Ferguson v. Skrupa, 372 U.S. 726, 729, 83 S.Ct. 1028, 1030, 10 L.Ed.2d 93 (1963). Since in view of the evidence before the legislature, the question clearly is "at least debatable," United States v. Carolene Products Co., 304 U.S., at 154, 58 S.Ct., at 784, the Minnesota Supreme Court erred in substituting its judgment for that of the legislature.
29
Fourth, the State argues that the Act will ease the State's solid waste disposal problem. Most solid consumer wastes in Minnesota are disposed of in landfills. A reputable study before the Minnesota Legislature indicated that plastic milk jugs occupy a greater volume in landfills than other nonreturnable milk containers.11 This was one of the legislature's major concerns. For example, in introducing the bill to the House of Representatives, Representative Munger asked rhetorically, "Why do we need this legislation?" Part of his answer to the query was that "the plastic non-refillable containers will increase the problems of solid waste in our state." Transcript of the Debate of the Minnesota House of Representatives on H.F. 45, p. 1 (Mar. 10, 1977), reprinted as Plaintiffs' Exhibit J.
30
The Minnesota Supreme Court found that plastic milk jugs in fact take up less space in landfills and present fewer solid waste disposal problems than do paperboard containers. 289 N.W.2d, at 82-85. But its ruling on this point must be rejected for the same reason we rejected its ruling concerning energy conservation: it is not the function of the courts to substitute their evaluation of legislative facts for that of the legislature.
31
We therefore conclude that the ban on plastic nonreturnable milk containers bears a rational relation to the State's objectives, and must be sustained under the Equal Protection Clause.12
III
32
The District Court also held that the Minnesota statute is unconstitutional under the Commerce Clause13 because it imposes an unreasonable burden on interstate commerce.14 We cannot agree.
33
When legislating in areas of legitimate local concern, such as environmental protection and resource conservation, States are nonetheless limited by the Commerce Clause. See Lewis v. BT Investment Managers, Inc., 447 U.S. 27, 36, 100 S.Ct. 2009, 2015, 64 L.Ed.2d 702 (1980); Hunt v. Washington Apple Advertising Comm'n, 432 U.S. 333, 350, 97 S.Ct. 2434, 2445, 53 L.Ed.2d 383 (1977); Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 767, 65 S.Ct. 1515, 1519, 89 L.Ed. 1915 (1945). If a state law purporting to promote environmental purposes is in reality "simple economic protectionism," we have applied a "virtually per se rule of invalidity." Philadelphia v. New Jersey, 437 U.S. 617, 624, 98 S.Ct. 2531, 2535, 57 L.Ed.2d 475 (1978).15 Even if a statute regulates "evenhandedly," and imposes only "incidental" burdens on interstate commerce, the courts must nevertheless strike it down if "the burden imposed on such commerce is clearly excessive in relation to the putative local benefits." Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970). Moreover, "the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities." Ibid.
34
Minnesota's statute does not effect "simple protectionism," but "regulates evenhandedly" by prohibiting all milk retailers from selling their products in plastic, nonreturnable milk containers, without regard to whether the milk, the containers, or the sellers are from outside the State. This statute is therefore unlike statutes discriminating against interstate commerce, which we have consistently struck down. E. g., Lewis v. BT Investment Managers, Inc., supra (Florida statutory scheme prohibiting investment advisory services by bank holding companies with principal offices out of the State); Hughes v. Oklahoma, 441 U.S. 322, 99 S.Ct. 1727, 60 L.Ed.2d 250 (1979) (Oklahoma statute prohibiting the export of natural minnows from the State); Philadelphia v. New Jersey, supra (New Jersey statute prohibiting importation of solid and liquid wastes into the State); Hunt v. Washington Apple Advertising Comm'n, supra (North Carolina statute imposing additional costs on Washington, but not on North Carolina, apple shippers).
35
Since the statute does not discriminate between interstate and intrastate commerce, the controlling question is whether the incidental burden imposed on interstate commerce by the Minnesota Act is "clearly excessive in relation to the putative local benefits." Pike v. Bruce Church, Inc., supra, at 142, 90 S.Ct., at 847. We conclude that it is not.
36
The burden imposed on interstate commerce by the statute is relatively minor. Milk products may continue to move freely across the Minnesota border, and since most dairies package their products in more than one type of containers,16 the inconvenience of having to conform to different packaging requirements in Minnesota and the surrounding States should be slight. See Pacific States Box & Basket Co. v. White, 296 U.S. 176, 184, 56 S.Ct. 159, 162, 80 L.Ed. 138 (1935). Within Minnesota, business will presumably shift from manufacturers of plastic nonreturnable containers to producers of paperboard cartons, refillable bottles, and plastic pouches, but there is no reason to suspect that the gainers will be Minnesota firms, or the losers out-of-state firms. Indeed, two of the three dairies, the sole milk retailer, and the sole milk container producer challenging the statute in this litigation are Minnesota firms.17
37
Pulpwood producers are the only Minnesota industry likely to benefit significantly from the Act at the expense of out-of-state firms. Respondents point out that plastic resin, the raw material used for making plastic nonreturnable milk jugs, is produced entirely by non-Minnesota firms, while pulpwood, used for making paperboard, is a major Minnesota product. Nevertheless, it is clear that respondents exaggerate the degree of burden on out-of-state interests, both because plastics will continue to be used in the production of plastic pouches, plastic returnable bottles, and paperboard itself, and because out-of-state pulpwood producers will presumably absorb some of the business generated by the Act.
38
Even granting that the out-of-state plastics industry is burdened relatively more heavily than the Minnesota pulpwood industry, we find that this burden is not "clearly excessive" in light of the substantial state interest in promoting conservation of energy and other natural resources and easing solid waste disposal problems, which we have already reviewed in the context of equal protection analysis. See supra, at 465-470. We find these local benefits ample to support Minnesota's decision under the Commerce Clause. Moreover, we find that no approach with "a lesser impact on interstate activities," Pike v. Bruce Church, Inc., supra, at 142, 90 S.Ct., at 847, is available. Respondents have suggested several alternative statutory schemes, but these alternatives are either more burdensome on commerce than the Act (as, for example, banning all nonreturnables) or less likely to be effective (as, for example, providing incentives for recycling). See Brief for Respondents 32-33.
39
In Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 98 S.Ct. 2207, 57 L.Ed.2d 91 (1978), we upheld a Maryland statute barring producers and refiners of petroleum products—all of which were out-of-state businesses—from retailing gasoline in the State. We stressed that the Commerce Clause "protects the interstate market, not particular interstate firms, from prohibitive or burdensome regulations." Id., at 127-128, 98 S.Ct., at 2214-2215. A nondiscriminatory regulation serving substantial state purposes is not invalid simply because it causes some business to shift from a predominantly out-of-state industry to a predominantly in-state industry. Only if the burden on interstate commerce clearly outweighs the State's legitimate purposes does such a regulation violate the Commerce Clause.
40
The judgment of the Minnesota Supreme Court is
41
Reversed.
42
Justice REHNQUIST took no part in the consideration or decision of this case.
43
Justice POWELL, concurring in part and dissenting in part.
44
The Minnesota statute at issue bans the retail sale of milk in plastic nonreturnable, nonrefillable containers, but permits such sale in paperboard milk cartons. Respondents challenged the validity of the statute under both the Equal Protection and Commerce Clauses. The Minnesota District Court agreed with respondents on both grounds. The Supreme Court of Minnesota also agreed that the statute violated the Equal Protection Clause, but found it unnecessary to reach the Commerce Clause issue.
45
This Court today reverses the Supreme Court of Minnesota, finding no merit in either of the alleged grounds of invalidity. I concur in the view that the statute survives equal protection challenge, and therefore join the judgment of reversal on this ground. I also agree with most of Parts I and II of the Court's opinion.
46
I would not, however, reach the Commerce Clause issue, but would remand it for consideration by the Supreme Court of Minnesota. The District Court expressly found:
47
"12. Despite the purported policy statement published by the legislature as its basis for enacting Chapter 268, the actual basis was to promote the economic interests of certain segments of the local dairy and pulpwood industries at the expense of the economic interests of other segments of the dairy industry and the plastics industry." App. to Pet. for Cert. A-24.
48
At a subsequent point in its opinion, and in even more explicit language, the District Court reiterated its finding that the purpose of the statute related to interstate commerce.1 These findings were highly relevant to the question whether the statute discriminated against interstate commerce. See Philadelphia v. New Jersey, 437 U.S. 617, 624, 98 S.Ct. 2531, 2536, 57 L.Ed.2d 475 (1978) ("The crucial inquiry . . . must be directed to determining whether [the statute] is basically a protectionist measure, or whether it can fairly be viewed as a law directed to legitimate local concerns, with effects upon interstate commerce that are only incidental"). Indeed, the trial court's findings normally would require us to conclude that the Minnesota Legislature was engaging in such discrimination, as they were not rejected by the Minnesota Supreme Court. That court simply invalidated the statute on equal protection grounds, and had no reason to consider the claim of discrimination against interstate commerce.
49
The Minnesota Supreme Court did accept the avowed legislative purpose of the statute. It stated: "The Act is intended to promote the policies stated in Minn.St. 116F.01; therefore it is intended to promote the state interests of encouraging the reuse and recycling of materials and reducing the amount and type of material entering the solid waste stream." 289 N.W.2d 79, 82 (1979). The Court today reads this statement as an implied rejection of the trial court's specific finding that the "actual [purpose] was to promote the economic interests of certain segments of the local dairy and pulpwood industries at the expense of the economic interests" of the nonresident dairy and plastics industry. In my view, however, the Minnesota Supreme Court was merely assuming that the statute was intended to promote its stated purposes. It was entirely appropriate for that court to accept, for purposes of equal protection analysis, the purpose expressed in the statute. See ante, at 463, n. 7. When the court did so, however, there is no reason to conclude that it intended to express or imply any view on any issue it did not consider. In drawing its conclusions, the court included no discussion whatever of the Commerce Clause issue and, certainly, no rejection of the trial court's express and repeated findings concerning the legislature's actual purpose.2
50
I conclude therefore that this Court has no basis for inferring a rejection of the quite specific factfindings by the trial court. The Court's decision today, holding that Chapter 268 does not violate the Commerce Clause, is flatly contrary to the only relevant specific findings of fact. Although we are not barred from reaching the Commerce Clause issue, in doing so we also act without the benefit of a decision by the highest court of Minnesota on the question. In these circumstances, it is both unnecessary, and in my opinion inappropriate, for this Court to decide the Commerce Clause issue. See, e. g., FTC v. Anheuser-Busch, Inc., 363 U.S. 536, 542, 80 S.Ct. 1267, 1270, 4 L.Ed.2d 1385 (1960); United States v. Ballard, 322 U.S. 78, 88, 64 S.Ct. 882, 887, 88 L.Ed. 1148 (1944). Because no reason has been offered for a departure from our customary restraint, I would remand the case with instructions to consider specifically whether the statute discriminated impermissibly against interstate commerce.
51
Justice STEVENS, dissenting.
52
While the Court in this case seems to do nothing more than apply well-established equal protection and Commerce Clause principles to a particular state statute, in reality its reversal of the Minnesota Supreme Court is based upon a newly discovered principle of federal constitutional law. According to this principle, which is applied but not explained by the majority, the Federal Constitution defines not only the relationship between Congress and the federal courts, but also the relationship between state legislatures and state courts. Because I can find no support for this novel constitutional doctrine in either the language of the Federal Constitution or the prior decisions of this Court, I respectfully dissent.
53
* The keystone of the Court's equal protection analysis is its pronouncement that "it is not the function of the courts to substitute their evaluation of legislative facts for that of the legislature." Ante, at 470.1 If the pronouncement concerned the function of federal courts, it would be amply supported by reason and precedent. For federal tribunals are courts of limited jurisdiction, whose powers are confined by the Federal Constitution, by statute, and by the decisions of this Court. It is not surprising, therefore, that the Court's pronouncement is supported by citation only to precedents dealing with the function that a federal court may properly perform when it is reviewing the constitutionality of a law enacted by Congress or by a state legislature.2
54
But what is the source—if indeed there be one—of this Court's power to make the majestic announcement that it is not the function of a state court to substitute its evaluation of legislative facts for that of a state legislature? I should have thought the allocation of functions within the structure of a state government would be a matter for the State to determine. I know of nothing in the Federal Constitution that prohibits a State from giving lawmaking power to its courts.3 Nor is there anything in the Federal Constitution that prevents a state court from reviewing factual determinations made by a state legislature or any other state agency.4 If a state statute expressly authorized a state tribunal to sit as a Council of Revision with full power to modify or to amend the work product of its legislature, that statute would not violate any federal rule of which I am aware. The functions that a state court shall perform within the structure of state government are unquestionably matters of state law.
55
One of the few propositions that this Court has respected with unqualified consistency—until today—is the rule that a federal court is bound to respect the interpretation of state law announced by the highest judicial tribunal in a State.5 In this case, the Minnesota Supreme Court has held that the state trial court acted properly when it reviewed the factual basis for the state legislation, and implicitly the Minnesota Supreme Court also has held that its own review of the legislative record was proper. Moreover, it also has determined as a matter of state law how it properly should resolve conflicts in the evidence presented to the state legislature, as supplemented by the additional evidence presented to the trial court in this case.6 In my opinion, the factual conclusions drawn by the Minnesota courts concerning the deliberations of the Minnesota Legislature are entitled to just as much deference as if they had been drafted by the state legislature itself and incorporated in a preamble to the state statute. The State of Minnesota has told us in unambiguous language that this statute is not rationally related to any environmental objective; it seems to me to be a matter of indifference, for purposes of applying the federal Equal Protection Clause, whether that message to us from the State of Minnesota is conveyed by the State Supreme Court, or by the state legislature itself.
56
I find it extraordinary that this federal tribunal feels free to conduct its own de novo review of a state legislative record in search of a rational basis that the highest court of the State has expressly rejected. There is no precedent in this Court's decisions for such federal oversight of a State's lawmaking process.7 Of course, if a federal trial court had reviewed the factual basis for a state law, conflicts in the evidence would have to be resolved in favor of the State.8 But when a state court has conducted the review, it is not our business to disagree with the state tribunal's evaluation of the State's own lawmaking process. Even if the state court should tell us that a state statute has a meaning that we believe the state legislature plainly did not intend, we are not free to take our own view of the matter.9
57
Once it is recognized that this Court may not review the question of state law presented by the Minnesota courts' decision to re-evaluate the evidence presented to the legislature, the result we must reach in this case is apparent. Because the factual conclusions drawn by the Minnesota courts are clearly supported by the record,10 the only federal issue that this case presents is whether a discriminatory statute that is admittedly irrational violates the Equal Protection Clause of the Fourteenth Amendment. The Court implicitly acknowledges that the Minnesota Supreme Court applied the proper rule of federal law when it answered that question.11 Whatever we may think about the environmental consequences of this discriminatory law, it follows inexorably that it is our duty as federal judges to affirm the judgment of the Minnesota Supreme Court.
II
58
In light of my conclusion that the Minnesota Supreme Court's equal protection decision must be affirmed, I need not address the Commerce Clause question resolved by the majority. Ante, at 470-474. Nonetheless, I believe that the majority's treatment of that question compels two observations.
59
First, in my opinion the Court errs in undertaking to decide the Commerce Clause question at all. The state trial court addressed the question and found that the statute was designed by the Minnesota Legislature to promote the economic interests of the local dairy and pulpwood industries at the expense of competing economic groups.12 On appeal, the Minnesota Supreme Court expressly declined to consider this aspect of the trial court's decision, and accordingly made no comment at all upon the merits of the Commerce Clause question. 289 N.W.2d 79, 87, n. 20 (1979). Generally, when reviewing state-court decisions, this Court will not decide questions which the highest court of a State has properly declined to address. The majority offers no persuasive explanation for its unusual action in this case.13 In the absence of some substantial justification for this action, I would not deprive the Minnesota Supreme Court of the first opportunity to review this aspect of the decision of the Minnesota trial court.
60
Second, the Court's Commerce Clause analysis suffers from the same flaw as its equal protection analysis. The Court rejects the findings of the Minnesota trial court, not because they are clearly erroneous, but because the Court is of the view that the Minnesota courts are not authorized to exercise such a broad power of review over the Minnesota Legislature. See ante, at 471, n. 15. After rejecting the trial court's findings, the Court goes on to find that any burden the Minnesota statute may impose upon interstate commerce is not excessive in light of the substantial state interests furthered by the statute. Ante, at 473. However, the Minnesota Supreme Court expressly found that the statute is not rationally related to the substantial state interests identified by the majority.14 Because I believe, as explained in Part I, supra, that the Court's intrusion upon the lawmaking process of the State of Minnesota is without constitutional sanction or precedential support it is clear to me that the findings of the Minnesota Supreme Court must be respected by this Court. Accordingly, the essential predicate for the majority's conclusion that the "local benefits [are] ample to support Minnesota's decision under the Commerce Clause," ante, at 473, is absent.
III
61
The majority properly observes that a state court, when applying the provisions of the Federal Constitution may not apply a constitutional standard more stringent than that announced in the relevant decisions of this Court. See ante, at 461-463, n. 6. It follows from this observation that a state court's decision invalidating state legislation on federal constitutional grounds may be reversed by this Court if the state court misinterpreted the relevant federal constitutional standard. In this case, however, the Minnesota Supreme Court applied the correct federal equal protection standard and properly declined to consider the Commerce Clause. The majority reverses this decision because it disagrees with the Minnesota courts' perception of their role in the State's lawmaking process, not because of any error in the application of federal law. In my opinion, this action is beyond the Court's authority. I therefore respectfully dissent.
1
Respondents, plaintiffs below, are a Minnesota dairy that owns equipment for producing plastic nonreturnable milk jugs, a Minnesota dairy that leases such equipment, a non-Minnesota company that manufactures such equipment, a Minnesota company that produces plastic nonreturnable milk jugs, a non-Minnesota dairy that sells milk products in Minnesota in plastic nonreturnable milk jugs, a Minnesota milk retailer, a non-Minnesota manufacturer of polyethylene resin that sells such resin in many States, including Minnesota, and a plastics industry trade association.
2
Minnesota Stat. § 116F.01 (1978) provides in relevant part:
"Statement of policy. The legislature seeks to encourage both the reduction of the amount and type of material entering the solid waste stream and the reuse and recycling of materials. Solid waste represents discarded materials and energy resources, and it also represents an economic burden to the people of the state. The recycling of solid waste materials is one alternative for the conservation of material and energy resources, but it is also in the public interest to reduce the amount of materials requiring recycling or disposal."
3
Minnesota is apparently the first State so to regulate milk containers. 289 N.W.2d 79, 81, n. 6 (1979).
4
Transcript of the Debate of the Minnesota House of Representatives on H.F. 45, p. 1 (Mar. 10, 1977), reprinted as Plaintiffs' Exhibit J.
5
The principal empirical study cited in legislative debate, see, e. g., Transcript of the Full Senate Floor Discussion on H.F. 45, p. 12 (May 20, 1977), reprinted as Plaintiffs' Exhibit J (statement of Sen. Luther), is Midwest Research Institute, Resource and Environmental Profile Analysis of Five Milk Container Systems, admitted into evidence as Plaintiffs' Exhibit I.
6
Justice STEVENS' dissenting opinion argues that the Minnesota Supreme Court when reviewing a challenge to a Minnesota statute on equal protection grounds is not bound by the limits applicable to federal courts, but may independently reach conclusions contrary to those of the legislature concerning legislative facts bearing on the wisdom or utility of the legislation. This argument, though novel, is without merit. A state court may, of course, apply a more stringent standard of review as a matter of state law under the State's equivalent to the Equal Protection or Due Process Clauses. E. g., Baker v. City of Fairbanks, 471 P.2d 386, 387, 401-402 (Alaska 1970); Serrano v. Priest, 18 Cal.3d 728, 764-765, 135 Cal.Rptr. 345, 557 P.2d 929, 950-951 (1976), cert. denied, 432 U.S. 907, 97 S.Ct. 2951, 53 L.Ed.2d 1079 (1977); State v. Kaluna, 55 Haw. 361, 368-369, 520 P.2d 51, 58-59 (1974); see Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489 (1977). And as the dissent correctly notes, post,479-481, at the States are free to allocate the lawmaking function to whatever branch of state government they may choose. Uphaus v. Wyman, 360 U.S. 72, 77, 79 S.Ct. 1040, 1044, 3 L.Ed.2d 1090 (1959); Sweezy v. New Hampshire, 354 U.S. 234, 256-257, 77 S.Ct. 1203, 1214-1215, 1 L.Ed.2d 1311 (1957) (Frankfurter, J., concurring in result); Dreyer v. Illinois, 187 U.S. 71, 83-84, 23 S.Ct. 28, 32, 47 L.Ed. 79 (1902). But when a state court reviews state legislation challenged as violative of the Fourteenth Amendment, it is not
free to impose greater restrictions as a matter of federal constitutional law than this Court has imposed. Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570 (1975).
The standard of review under equal protection rationality analysis—without regard to which branch of the state government has made the legislative judgment—is governed by federal constitutional law, and a state court's application of that standard is fully reviewable in this Court on writ of certiorari. 28 U.S.C. § 1257(3). Justice STEVENS concedes the flaw in his argument when he admits that "a state court's decision invalidating state legislation on federal constitutional grounds may be reversed by this Court if the state court misinterpreted the relevant federal constitutional standard." Post, at 489. And contrary to his argument that today's judgment finds "no precedent in this Court's decisions," post, at 482, we have frequently reversed State Supreme Court decisions invalidating state statutes or local ordinances on the basis of equal protection analysis more stringent than that sanctioned by this Court. E. g., Idaho Dept. of Employment v. Smith, 434 U.S. 100, 98 S.Ct. 327, 54 L.Ed.2d 324 (1977); Arlington County Board v. Richards, 434 U.S. 5, 98 S.Ct. 24, 54 L.Ed.2d 4 (1977); Richardson v. Ramirez, 418 U.S. 24, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974); Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 93 S.Ct. 1001, 35 L.Ed.2d 351 (1973). See also North Dakota Pharmacy Board v. Snyder's Drug Stores, Inc., 414 U.S. 156, 94 S.Ct. 407, 38 L.Ed.2d 379 (1973); Dean v. Gadsen Times Publishing Corp., 412 U.S. 543, 93 S.Ct. 2264, 37 L.Ed.2d 137 (1973); McDaniel v.Barresi, 402 U.S. 39, 91 S.Ct. 1287, 28 L.Ed.2d 282 (1971). Never have we suggested that our review of the judgments in such cases differs in any relevant respect because they were reached by state courts rather than federal courts.
Indeed Justice STEVENS has changed his own view. Previously he has stated that state-court decisions under the Fourteenth Amendment granting litigants "more protection than the Federal Constitution requires," are in error. Idaho Dept. of Employment v. Smith, supra, 434 U.S. at 104, 98 S.Ct. at 329 (STEVENS, J., dissenting in part). This is in agreement with the conclusion of one commentator:
"In reviewing state court resolutions of federal constitutional issues, the Supreme Court has not differentiated between those decisions which sustain and those which reject claims of federal constitutional right. In both instances, once having granted review, the Court has simply determined whether the state court's federal constitutional decision is 'correct,' meaning, in this context, whether it is the decision that the Supreme Court would independently reach." Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 Harv.L.Rev. 1212, 1243 (1978) (footnote omitted).
Thus, Justice STEVENS' argument in the dissenting opinion that today's treatment of the instant case is extraordinary and unprecedented, see post, at 482, and n. 7, is simply wrong.
7
Respondents, citing the District Court's Finding of Fact No. 12, App. A-19, also assert that the actual purpose for the Act was illegitimate: to "isolate from interstate competition the interests of certain segments of the local dairy and pulpwood industries." Brief for Respondents 23. We accept the contrary holding of the Minnesota Supreme Court that the articulated purpose of the Act is its actual purpose. See 289 N.W.2d, at 82. In equal protection analysis, this Court will assume that the objectives articulated by the legislature are actual purposes of the statute, unless an examination of the circumstances forces us to conclude that they "could not have been a goal of the legislation." See Weinberger v. Wiesenfeld, 420 U.S. 636, 648, n. 16, 95 S.Ct. 1225, 1233, 43 L.Ed.2d 514 (1975). Here, a review of the legislative history supports the Minnesota Supreme Court's conclusion that the principal purposes of the Act were to promote conservation and ease solid waste disposal problems. The contrary evidence cited by respondents, see Brief for Respondents 29-31, is easily understood, in context, as economic defense of an Act genuinely proposed for environmental reasons. We will not invalidate a state statute under the Equal Protection Clause merely because some legislators sought to obtain votes for the measure on the basis of its beneficial side effects on state industry.
8
We express no view whether the District Court could have dismissed this case on the pleadings or granted summary judgment for the State on the basis of the legislative history, without hearing respondents' evidence. See Vance v. Bradley, 440 U.S. 93, 109-112, 99 S.Ct. 939, 949, 951, 59 L.Ed.2d 171 (1979); Bayside Fish Flour Co. v. Gentry, 297 U.S. 422, 56 S.Ct. 513, 80 L.Ed. 772 (1936).
9
See n. 5, supra.
10
The court adopted the higher of two possible measurements of energy consumption from paperboard production, apparently because the lower figure contemplated the use of waste products, such as sawdust, for energy production. In addition, the court substituted a lower measurement of the energy consumption from plastic nonreturnable production for that used in the study. 289 N.W.2d, at 84-85.
11
This was the conclusion of the Midwest Research Institute study, see n. 5, supra. Brief for Petitioner 21.
12
The District Court also held that the Act violated substantive due process, and was apparently affirmed by the State Supreme Court on this ground. Conclusion of Law No. 1, App. A-23; 289 N.W.2d, at 87, n. 20. From our conclusion under equal protection, however, it follows a fortiori that the Act does not violate the Fourteenth Amendment's Due Process Clause. See Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 124-125, 98 S.Ct. 2207, 2213, 57 L.Ed.2d 91 (1978); Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963).
13
"The Congress shall have Power . . . To regulate Commerce . . . among the several States. . . ." U.S.Const., Art. I, § 8, cl. 3.
14
The Minnesota Supreme Court did not reach the Commerce Clause issue. 289 N.W.2d, at 87, n. 20. The parties and amici have fully briefed and argued the question, and because of the obvious factual connection between the rationality analysis under the Equal Protection Clause and the balancing of interests under the Commerce Clause, we will reach and decide the question. See New York City Transit Authority v. Beazer, 440 U.S. 568, 583, n. 24, 99 S.Ct. 1355, 1364-1365, 59 L.Ed.2d 587 (1979).
15
A court may find that a state law constitutes "economic protectionism" on proof either of discriminatory effect, see Philadelphia v. New Jersey, or of discriminatory purpose, see Hunt v. Washington Apple Advertising Comm'n, 432 U.S., at 352-353, 97 S.Ct., at 2446. Respondents advance a "discriminatory purpose" argument, relying on a finding by the District Court that the Act's "actual basis was to promote the economic interests of certain segments of the local dairy and pulpwood industries at the expense of the economic interests of other segments of the dairy industry and the plastics industry." App. A-19. We have already considered and rejected this argument in the equal protection context, see n. 7, supra, and do so in this context as well.
16
Respondent Wells Dairy, an Iowa firm, sells 60% of its milk in plastic nonreturnable containers, and the remainder in other type of packages, including paperboard cartons. Tr. 419, 426, 439. The Chairman of the Board of respondent Marigold Foods, Inc., a Minnesota dairy, admitted at trial that his firm would continue to sell milk in plastic nonreturnable containers in other States, despite the passage of the Act. Id., at 474.
17
See n. 1, supra. The existence of major in-state interests adversely affected by the Act is a powerful safeguard against legislative abuse. South Carolina State Highway Dept. v. Barnwell Bros., Inc., 303 U.S. 177, 187, 58 S.Ct. 510, 514, 82 L.Ed. 734 (1938).
1
Finding 23 of the District Court was as follows:
"23. Despite the purported policy reasons published by the Legislature as bases for enacting Chapter 268, actual bases were to isolate from interstate competition the interests of certain segments of the local dairy and pulpwood industries. The economic welfare of such local interests can be promoted without the remedies prescribed in Chapter 268." App. to Pet. for Cert. A-27 (emphasis added).
2
Commerce Clause analysis differs from analysis under the "rational basis" test. Under the Commerce Clause, a court is empowered to disregard a legislature's statement of purpose if it considers it a pretext. See Dean Milk Co. v. Madison, 340 U.S. 349, 354, 71 S.Ct. 295, 297, 95 L.Ed. 329 (1951) ("A different view, that the ordinance is valid simply because it professes to be a health measure, would mean that the Commerce Clause of itself imposes no limitations on state action other than those laid down by the Due Process Clause, save for the rare instance where a state artlessly discloses an avowed purpose to discriminate against interstate goods").
1
See also ante, at 464, where the Court states that "States are not required to convince the courts of the correctness of their legislative judgments"; and ibid., where the Court states that "litigants may not procure invalidation of the legislation merely by tendering evidence in court that the legislature was mistaken."
2
The majority cites Vance v. Bradley, 440 U.S. 93, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979); Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963); Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 72 S.Ct. 405, 96 L.Ed. 469 (1952); United States v. Carolene Products Co., 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234 (1938); and Henderson Co. v. Thompson, 300 U.S. 258, 57 S.Ct. 447, 81 L.Ed. 632 (1937), in support of its conclusion that it is not the function of the Minnesota courts to re-evaluate facts considered by the Minnesota Legislature. See ante, at 464, 469. However, even a cursory examination of these cases reveals that they provide no support for the Court's decision in this case.
In four of the cited cases, the Court reviewed the actions of lower federal, not state, courts. These cases thus shed no light upon the role a state court properly may play in reviewing actions of the state legislature. In Vance v. Bradley and United States v. Carolene Products, Federal District Courts had invalidated federal statutes on federal constitutional grounds. In both cases, this Court reversed because the District Courts had exceeded the scope of their powers by re-evaluating the factual bases for the congressional enactments. See Vance, supra, at 111-112, 99 S.Ct., at 950-951; Carolene Products, supra, at 152, 154, 58 S.Ct., at 784. In Ferguson v. Skrupa, a Federal District Court had invalidated a Kansas statute on federal constitutional grounds. This Court reversed, finding that the District Court had exceeded constitutional limitations by substituting its judgment for that of the Kansas Legislature. See 372 U.S., at 729-731, 83 S.Ct., at 1030-1031. The Court also indicated in Ferguson that its own power to supervise the actions of state legislatures is narrowly circumscribed. Id., at 730-731, 83 S.Ct., at 1031. Finally, in Henderson Co. v. Thompson, a Federal District Court had sustained a Texas statute in the face of a constitutional challenge. In affirming that decision, the Court simply observed that "[t]he needs of conservation are to be determined by the Legislature." 300 U.S., at 264, 57 S.Ct., at 450.
In only one of the cases cited by the majority did the Court review a state-court judgment. In Day-Brite Lighting, Inc. v. Missouri, a Missouri statute was challenged on due process, equal protection, and Contract Clause theories. The Missouri Supreme Court had upheld the statute, and this Court affirmed. In the course of its opinion, the Court stated that it was not free to re-evaluate the legislative judgment or act as "a superlegislature." 342 U.S., at 423, 425, 72 S.Ct., at 408. The Court did not comment at all upon the extent of the Missouri Supreme Court's authority to supervise the activities of the Missouri Legislature. Nothing in the Day-Brite Lighting opinion can be construed as the source of the Court's newly found power to determine for the States which lawmaking powers may be allocated to their courts and which to their legislatures.
3
Responding to an argument that the lawmaking power of the Virginia Legislature had been improperly assigned to another arm of the State's government, Justice Cardozo, writing for the Court in Highland Farms Dairy, Inc. v. Agnew, 300 U.S. 608, 612-613, 57 S.Ct. 549, 551, 81 L.Ed. 835 (1937), stated:
"The Constitution of the United States in the circumstances here exhibited has no voice upon the subject. The statute challenged as invalid is one adopted by a state. This removes objections that might be worthy of consideration if we were dealing with an act of Congress. How power shall be distributed by a state among its governmental organs is commonly, if not always, a question for the state itself. Nothing in the distribution here attempted supplies the basis for an exception. The statute is not a denial of a republican form of government. Constitution, Art. IV, § 4. Even if it were, the enforcement of that guarantee, according to the settled doctrine, is for Congress, not the courts. Pacific States Telephone Co. v. Oregon, 223 U.S. 118, 32 S.Ct. 224, 56 L.Ed. 377; Davis v. Hildebrant, 241 U.S. 565, 36 S.Ct. 708, 60 L.Ed. 1172; Ohio ex rel. Bryant v. Akron Park District, 281 U.S. 74, 79, 80, 50 S.Ct. 228, 230, 74 L.Ed. 710. Cases such as Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446, and Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570, cited by appellants, are quite beside the point. What was in controversy there was the distribution of power between President and Congress, or between Congress and administrative officers or commissions, a controversy affecting the structure of the national government as established by the provisions of the national constitution.
"So far as the objection to delegation is founded on the Constitution of Virginia, it is answered by a decision of the highest court of the state. In Reynolds v. Milk Commission, 163 Va. 957, 179 S.E. 507, the Supreme Court of Appeals passed upon the validity of the statute now in question. . . . A judgment by the highest court of a state as to the meaning and effect of its own constitution is decisive and controlling everywhere." See also Dreyer v. Illinois, 187 U.S. 71, 83-84, 23 S.Ct. 28, 32, 47 L.Ed. 79 (1902); Sweezy v. New Hampshire, 354 U.S. 234, 256-257, 77 S.Ct. 1203, 1214-1215, 1 L.Ed.2d 1311 (1957) (Frankfurter, J., concurring in result).
4
In Ferguson v. Skrupa, supra, the Court indicated that the Federal Constitution does prevent the federal courts from reviewing factual determinations made by a state legislature. In rejecting the substantive due process cases of an earlier era, the Court stated:
"Under the system of government created by our Constitution, it is up to legislatures, not courts, to decide on the wisdom and utility of legislation." 372 U.S., at 729, 83 S.Ct., at 1030.
The Court went on to explain this constitutional limitation:
"We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws. . . . Legislative bodies have broad scope to experiment with economic problems, and this Court does not sit to 'subject the State to an intolerable supervision hostile to the basic principles of our Government and wholly beyond the protection which the general clause of the Fourteenth Amendment was intended to secure.' " Id., at 730, 83 S.Ct., at 1031 (footnote omitted).
The Court's conclusion in Ferguson that the Constitution imposes limitations upon the power of the federal courts to review legislative judgments was clearly correct and was consistent with the structure of the Federal Constitution and "the system of government created" therein. The Constitution defines the relationship among the coordinate branches of the Federal Government and prescribes for each branch certain limited powers. The Federal Constitution, however, is silent with respect to the powers of the coordinate branches of state governments and the relationship among those branches.
5
Although this proposition is so well established as to require no citation of authority, abundant authority is readily available. See, e. g., North Carolina v. Butler, 441 U.S. 369, 376, n. 7, 99 S.Ct. 1755, 1759, 60 L.Ed.2d 286 (1979); Ward v. Illinois, 431 U.S. 767, 772, 97 S.Ct. 2085, 2089, 52 L.Ed.2d 738 (1977); Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668, 674, n. 9, 96 S.Ct. 2358, 2362, 49 L.Ed.2d 132 (1976); Hortonville Joint School District No. 1 v. Hortonville Education Assn., 426 U.S. 482, 488, 96 S.Ct. 2308, 2312, 49 L.Ed.2d 1 (1976); Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 1886, 44 L.Ed.2d 508 (1975); Memorial Hospital v. Maricopa County, 415 U.S. 250, 256, 94 S.Ct. 1076, 1081, 39 L.Ed.2d 306 (1974); Wardius v. Oregon, 412 U.S. 470, 477, 93 S.Ct. 2208, 2213, 37 L.Ed.2d 82 (1973); Groppi v. Wisconsin, 400 U.S. 505, 507, 91 S.Ct. 490, 491, 27 L.Ed.2d 571 (1971).
6
In its memorandum in this case, the state trial court initially observed that it was not free to "substitute its judgment for that of the legislature as to the wisdom or desirability of the act." App. A-24. With respect to the facts considered by the legislature, however, the trial court found that "as fact-finder, [it was] obliged to weigh and evaluate this evidence, much of which was in sharp conflict." Id., at A-25.
In its opinion affirming the trial court's decision, the Minnesota Supreme Court took a similar view of the function to be performed by the Minnesota courts when reviewing Minnesota legislation:
"We are aware of the deference that is accorded to the legislature when the present type of statute is analyzed on equal protection grounds. Nevertheless, our inquiry into the constitutional propriety of the present classification separating paper containers from plastic nonrefillables is dependent upon facts. Based upon the relevant findings of fact by the trial court, supported by the record, and upon our own independent review of documentary sources, we believe the evidence conclusively demonstrates that the discrimination against plastic nonrefillables is not rationally related to the Act's objectives." 289 N.W.2d 79, 82 (1979).
7
In its footnote 6, ante, at 461-463, the Court takes issue with my suggestion that its action in this case is unprecedented by citing four cases in which the Court reversed State Supreme Court decisions invalidating provisions of state law on federal equal protection grounds. See Idaho Dept. of Employment v. Smith, 434 U.S. 100, 98 S.Ct. 327, 54 L.Ed.2d 324 (1977) (per curiam); Arlington County Board v. Richards, 434 U.S. 5, 98 S.Ct. 24, 54 L.Ed.2d 4 (1977) (per curiam); Richardson v. Ramirez, 418 U.S. 24, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974); Lehnhausen v. Lake Shore Auto Parts, 410 U.S. 356, 93 S.Ct. 1001, 35 L.Ed.2d 351 (1973). In each of those cases, however, this Court concluded that the state court had applied an incorrect legal standard; in none did this Court reassess the factual predicate for the state-court decision.
In Idaho Dept. of Employment, the Idaho Supreme Court had invalidated a statutory classification, not because it generally failed to further legitimate state goals, but rather because the court had found that the classification was imperfect since some members of the class denied
unemployment benefits were in fact as available for full-time employment as members of the class entitled to benefits under the Idaho statute. See Smith v. Department of Employment, 98 Idaho 43, 43-44, 557 P.2d 637, 637-638 (1976), citing Kerr v. Department of Employment, 97 Idaho 385, 545 P.2d 473 (1976). This Court did not disagree with the Idaho court's finding that the classification was imperfect, but merely held that this imperfection was legally insufficient to invalidate the statute under the Equal Protection Clause. 434 U.S., at 101-102, 98 S.Ct., at 328. In Arlington County Board v. Richards, the Virginia Supreme Court had recognized the rational-basis test as the appropriate equal protection standard, but then had proceeded to apply a more stringent standard to the municipal ordinance at issue. The court had expressly noted that the municipal ordinance "may relieve the [parking] problems" to which it was directed. However, the court concluded that the means employed by the county to deal with these problems—a classification based upon residency created an unconstitutional "invidious discrimination." See Arlington County Board v. Richards, 217 Va. 645, 651, 231 S.E.2d 231, 235 (1977). This Court reversed, rejecting the conclusion that the ordinance's residency classification resulted in an invidious discrimination. 434 U.S., at 7, 98 S.Ct., at 26. In Richardson v. Ramirez, a voting rights case, the California Supreme Court was reversed, not because it had re-examined the factual determinations of the California Legislature, but because this Court found that the statutory discrimination at issue was expressly authorized by § 2 of the Fourteenth Amendment. 418 U.S., at 41-56, 94 S.Ct., at 2665. Finally, in Lake Shore Auto Parts v. Lehnhausen, the Illinois Supreme Court had held, in essence, that a classification used in determining liability for a property tax must, as a constitutional matter, be based upon the nature of the property at issue, and not upon the corporate or noncorporate character of the property's owner. See Lake Shore Auto Parts v. Korzen, 49 Ill.2d 137, 149-151, 273 N.E.2d 592, 598-599 (1971). This Court rejected this principle, finding it inconsistent with prior decisions clearly establishing that distinctions between individuals and corporations in tax legislation violated no constitutional rights. 410 U.S., at 359-365, 93 S.Ct., at 1003-1006.
As the majority observes, the Court in each of these cases reversed the state-court decisions because the state courts had applied an equal protection standard more stringent than that sanctioned by this Court. Quite frankly, in my opinion it would have been sound judicial policy
in all four of those cases to allow the state courts to accord even greater protection within their respective jurisdictions than the Federal Constitution commands. See my dissent in Idaho Dept. of Employment, supra, at 104, 98 S.Ct., at 329. But what is especially relevant here is the fact that in none of those cases had the state courts found, after a full evidentiary hearing, that the factual predicate for the state law at issue was simply not true. The Minnesota courts in this case made such a finding after the development of an extensive record. The Minnesota courts then applied the correct federal legal standard to the facts revealed by this record and concluded that the statutory classification was not rationally related to a legitimate state purpose. As I read the cases cited by the majority, they are simply inapposite in this case. My own research has uncovered no instance in which the Court has reversed the decision of the highest court of a State, as it does in this case, because the state court exceeded some federal constitutional limitation upon its power to review the factual determinations of the state legislature. The Court has never before, to my knowledge, undertaken to define, as a matter of federal law, the appropriate relationship between a state court and a state legislature.
8
In most of the cases in which the Court has indicated that courts may not substitute their judgment for that of the legislature, the Court was reviewing decisions of the lower federal courts. See, e. g., New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516, 49 L.Ed.2d 511 (1976) (per curiam); Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 812, 96 S.Ct. 2488, 2499, 49 L.Ed.2d 220 (1976); United States v. Maryland Savings-Share Ins. Corp., 400 U.S. 4, 6, 91 S.Ct. 16, 17, 27 L.Ed.2d 4 (1970) (per curiam); Firemen v. Chicago, R. I. & P. R. Co., 393 U.S. 129, 136, 138-139, 89 S.Ct. 323, 327-328, 21 L.Ed.2d 289 (1968); Williamson v. Lee Optical Co., 348 U.S. 483, 487-488, 75 S.Ct. 461, 464, 99 L.Ed. 1256 (1955); Secretary of Agriculture v. Central Roig Refining Co., 338 U.S. 604, 618-619, 70 S.Ct. 403, 410, 94 L.Ed. 381 (1950); Daniel v. Family Insurance Co., 336 U.S. 220, 224, 69 S.Ct. 550, 552, 93 L.Ed. 632 (1949); Clark v. Paul Gray, Inc., 306 U.S. 583, 594, 59 S.Ct. 744, 750, 83 L.Ed. 1001 (1939); South Carolina State Highway Dept. v. Barnwell Bros., Inc., 303 U.S. 177, 190-191, 58 S.Ct. 510, 516-517, 82 L.Ed. 734 (1938); Bayside Fish Flour Co. v. Gentry, 297 U.S. 422, 427-428, 430, 56 S.Ct. 513, 515, 516, 30 L.Ed. 72 (1936); Borden's Farm Products Co. v. Ten Eyck, 297 U.S. 251, 263, 56 S.Ct. 453, 456, 80 L.Ed. 669 (1936); Sproles v. Binford, 286 U.S. 374, 388-389, 52 S.Ct. 581, 585, 76 L.Ed. 1167 (1932); Standard Oil Co. v. Marysville, 279 U.S. 582, 584, 586, 49 S.Ct. 430, 431, 73 L.Ed. 856 (1929); Hebe Co. v. Shaw, 248 U.S. 297, 303, 39 S.Ct. 125, 126, 63 L.Ed. 255 (1919). In those instances in which the Court was reviewing state-court decisions, its statements with respect to the limited role of the judiciary in reviewing state
legislation clearly concerned its own authority to act as a "superlegislature," not the authority of a state court to do so where permitted by state law. See, e. g., Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 124, 98 S.Ct. 2207, 2213, 57 L.Ed.2d 91 (1978); Railway Express Agency, Inc. v. New York, 336 U.S. 106, 109, 69 S.Ct. 463, 465, 93 L.Ed. 533 (1949); Olsen v. Nebraska, 313 U.S. 236, 246, 61 S.Ct. 862, 865, 85 L.Ed. 1305 (1941); Zahn v. Board of Public Works, 274 U.S. 325, 328, 47 S.Ct. 594, 594-595, 71 L.Ed. 1522 (1927); Cusack Co. v. Chicago, 242 U.S. 526, 531, 37 S.Ct. 190, 192, 61 L.Ed. 472 (1917); Hadacheck v. Los Angeles, 239 U.S. 394, 413-414, 36 S.Ct. 143, 146-147, 60 L.Ed. 348 (1915); Price v. Illinois, 238 U.S. 446, 452-453, 35 S.Ct. 892, 894-895, 59 L.Ed. 1400 (1915); Laurel Hill Cemetery v. San Francisco, 216 U.S. 358, 365, 30 S.Ct. 301, 302, 54 L.Ed. 515 (1910).
9
This Court will defer to the interpretation of state law announced by the highest court of a State even where a more reasonable interpretation is apparent, see, e. g., O'Brien v. Skinner, 414 U.S. 524, 531, 94 S.Ct. 740, 743, 38 L.Ed.2d 702 (1974), a contrary construction might save a state statute from constitutional invalidity, see, e. g., Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 837, n. 9, 98 S.Ct. 1535, 1540, 56 L.Ed.2d 1 (1978), or it appears that the state court has attributed an unusually inflexible command to its legislature, see, e. g., Kingsley Pictures Corp. v. Regents, 360 U.S. 684, 688-689, 79 S.Ct. 1362, 1365, 3 L.Ed.2d 1512 (1959).
10
As the majority notes, the evidence considered by the Minnesota courts was conflicting, ante, at 460, 464, 469, and the respondents "produced impressive supporting evidence at trial" indicating that the decision of the Minnesota Legislature was factually unsound. Ante, at 463. In light of this record, this Court clearly cannot reverse the concurrent factual findings of two state courts.
Moreover, since there is no significant difference between plastic containers and paper containers in terms of environmental impact, and since no one contends that the Minnesota statute will reduce the consumption of dairy products, it is not difficult to understand the state judges' skeptical scrutiny of a legislative ban on the use of one kind of container without imposing any present or future restriction whatsoever on the use of the other.
11
It is true that the Court carefully avoids an express acknowledgment that the Minnesota Supreme Court applied the correct legal standard. Not one word in the Court's opinion, however, suggests that the Court has any disagreement with the state court's understanding of the proper federal rule.
12
The trial court made the following findings of fact:
"12. Despite the purported policy statement published by the Legislature as its basis for enacting Chapter 268, the actual basis was to promote the economic interests of certain segments of the local dairy and pulpwood industries at the expense of the economic interests of other segments of the dairy industry and the plastics industry.
* * * * *
"23. Despite the purported policy reasons published by the Legislature as bases for enacting Chapter 268, actual bases were to isolate from interstate competition the interests of certain segments of the local dairy and pulpwood industries. The economic welfare of such local interests can be promoted without the remedies prescribed in Chapter 268." App. A-19, A-22.
These findings were repeated in the memorandum filed by the trial court in this case:
"The relevant legislative history of Chapter 268 support [sic ] a conclusion that the real basis for it was to serve certain economic interests (paper, pulpwood, and some dairies) at the expense of other competing economic groups (plastic and certain dairies) by prohibiting the plastic milk bottle." Id., at A-24.
13
According to the majority, its decision to address the Commerce Clause question is justified "because of the obvious factual connection between the rationality analysis under the Equal Protection Clause and the balancing of interests under the Commerce Clause." Ante, at 470, n. 14. The majority cites New York City Transit Authority v. Beazer, 440 U.S. 568, 99 S.Ct. 1355, 59 L.Ed.2d 587 (1979), in support of this rationale. This justification is inadequate, in my opinion, for two reasons.
First, in light of the trial court's factual finding that the Minnesota Legislature enacted the statute for protectionist, rather than environmental, reasons, see n. 12, supra, the Equal Protection Clause and Commerce Clause inquiries are not necessarily as similar as the Court suggests. As the majority acknowledges, if a state law which purports to promote environmental goals is actually protectionist in design, a virtually automatic rule of invalidity, not a balancing-of-interests test, is applied. See ante, at 471. See also New Orleans v. Dukes, 427 U.S., at 304, n. 5, 96 S.Ct., at 2517.
Second, in Beazer the Court reviewed the decision of a lower federal court, not a state supreme court. While this Court, in its discretion, may elect to deprive lower federal courts of the opportunity to decide particular statutory questions, it seems to me that respect for the Minnesota Supreme Court as the highest court of a sovereign State dictates that we not casually divest it of authority to decide a constitutional question on which it properly declined to comment when this case was first before it. Such deference is especially appropriate here because the Court's analysis of the Commerce Clause issue requires rejection of the state trial court's findings of fact.
14
As noted in Part I, supra, the Court rejects the Minnesota Supreme Court's findings, not because they are without support in the record—they clearly are adequately supported, see n. 10, supra—but because it feels that the Minnesota Supreme Court was without authority to do anything other than endorse the factual conclusions of the Minnesota Legislature.
| 78
|
449 U.S. 411
101 S.Ct. 690
66 L.Ed.2d 621
UNITED STATES, Petitioner,v.Jesus E. CORTEZ and Pedro Hernandez-Loera.
No. 79-404.
Argued Dec. 1, 1980.
Decided Jan. 21, 1981.
Syllabus
Based on their discovery of sets of distinctive human footprints in the desert, Border Patrol officers deduced that on a number of occasions groups of from 8 to 20 persons had been guided by a person, whom they designated "Chevron," from Mexico across an area of desert in Arizona, known to be heavily trafficked by aliens illegally entering the country. These groups of aliens proceeded to an isolated point on a road to be picked up by a vehicle; the officers deduced the vehicle probably approached from the east and returned to the east after the pickup. They also surmised, based on the times when the distinctive tracks were discovered, that "Chevron" generally traveled on clear nights during or near weekends, and arrived at the pickup point between 2 a. m. and 6 a. m. On the basis of this information, the officers stationed themselves at a point east of the probable pickup point on a night when they believed there was a strong possibility that "Chevron" would be smuggling aliens. The officers observed a pickup truck with a camper shell suitable for carrying sizable groups pass them heading west and then observed the same vehicle return within the estimated time for making a round trip to the pickup point. The officers stopped the vehicle, which was being driven by respondent Cortez and in which respondent Hernandez-Loera, who was wearing shoes with soles matching the distinctive "chevron" shoeprint, was a passenger. Cortez voluntarily opened the door of the camper and the officers then discovered illegal aliens. Prior to trial on charges of transporting illegal aliens, respondents sought to suppress the evidence of the presence of the aliens discovered as a result of the stopping of their vehicle, contending that the officers did not have adequate cause to make the investigative stop. The District Court denied the motion, and respondents were convicted. The Court of Appeals reversed, holding that the officers lacked a sufficient basis to justify stopping the vehicle and thus respondents' Fourth Amendment rights were violated.
Held : The objective facts and circumstantial evidence justified the investigative stop of respondents' vehicle. Pp. 417-422.
(a) In determining what cause is sufficient to authorize police to stop a person, the totality of the circumstances—the whole picture—must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity. The process of assessing all of the circumstances does not deal with hard certainties, but with probabilities, and the evidence collected must be weighed as understood by those versed in the field of law enforcement. Also, the process must raise a suspicion that the particular individual being stopped is engaged in wrongdoing. Pp. 417-418.
(b) This case implicates all these principles—especially the imperative of recognizing that, when used by trained law enforcement officers, objective facts, meaningless to the untrained, allow for permissible deductions from such facts to afford a legitimate basis for suspicion of a particular person and action on that suspicion. Pp. 418-421.
(c) The intrusion upon privacy associated with this stop was limited and "reasonably related in scope to the justification for [its] initiation." Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889. Based upon the whole picture, the officers, as experienced Border Patrol agents, could reasonably surmise that the particular vehicle they stopped was engaged in criminal activity. Pp. 421-422.
9 Cir., 595 F.2d 505, reversed.
Barbara E. Etkind, Philadelphia, Pa., for petitioner.
Bernardo P. Velasco, Tucson, Ariz., for respondent Hernandez-Loera.
S. Jeffrey Minker, Tucson, Ariz., for respondent Cortez.
Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari, 447 U.S. 904, 100 S.Ct. 2983, 64 L.Ed.2d 852, to consider whether objective facts and circumstantial evidence suggesting that a particular vehicle is involved in criminal activity may provide a sufficient basis to justify an investigative stop of that vehicle.
2
* Late in 1976, Border Patrol officers patrolling a sparsely populated section of southern central Arizona found human footprints in the desert. In time, other sets of similar footprints were discovered in the same area. From these sets of footprints, it was deduced that, on a number of occasions, groups of from 8 to 20 persons had walked north from the Mexican border, across 30 miles of desert and mountains, over a fairly well-defined path, to an isolated point on Highway 86, an east-west road running roughly parallel to the Mexican border.
3
Officers observed that one recurring shoeprint bore a distinctive and repetitive V-shaped or chevron design. Because the officers knew from recorded experience that the area through which the groups passed was heavily trafficked by aliens illegally entering the country from Mexico, they surmised that a person, to whom they gave the case-name "Chevron," was guiding aliens illegally into the United States over the path marked by the tracks to a point where they could be picked up by a vehicle.
4
The tracks led into or over obstacles that would have been avoided in daylight. From this, the officers deduced that "Chevron" probably led his groups across the border and to the pickup point at night. Moreover, based upon the times when they had discovered the distinctive sets of tracks, they concluded that "Chevron" generally traveled during or near weekends and on nights when the weather was clear.
5
Their tracking disclosed that when "Chevron's" groups came within 50 to 75 yards of Highway 86, they turned right and walked eastward, parallel to the road. Then, approximately at highway milepost 122, the tracks would turn north and disappear at the road. From this pattern, the officers concluded that the aliens very likely were picked up by a vehicle probably one approaching from the east, for after a long overland march the group was most likely to walk parallel to the highway toward the approaching vehicle. The officers also concluded that, after the pickup, the vehicle probably returned to the east, because it was unlikely that the group would be walking away from its ultimate destination.
6
On the Sunday night of January 30-31, 1977, Officers Gray and Evans, two Border Patrolmen who had been pursuing the investigation of "Chevron," were on duty in the Casa Grande area. The latest set of observed "Chevron" tracks had been made on Saturday night, January 15-16. January 30-31 was the first clear night after three days of rain. For these reasons, Gray and Evans decided there was a strong possibility that "Chevron" would lead aliens from the border to the highway that night.
7
The officers assumed that, if "Chevron" did conduct a group that night, he would not leave Mexico until after dark, that is, about 6 p. m. They knew from their experience that groups of this sort, traveling on foot, cover about two and a half to three miles an hour. Thus, the 30-mile journey would take from 8 to 12 hours. From this, the officers calculated that "Chevron" and his group would arrive at Highway 86 somewhere between 2 a. m. and 6 a. m. on January 31.
8
About 1 a. m., Gray and Evans parked their patrol car on an elevated location about 100 feet off Highway 86 at milepost 149, a point some 27 miles east of milepost 122. From their vantage point, the officers could observe the Altar Valley, an adjoining territory they had been assigned to watch that night, and they also could see vehicles passing on Highway 86. They estimated that it would take approximately one hour and a half for a vehicle to make a round trip from their vantage point to milepost 122. Working on the hypothesis that the pickup vehicle approached milepost 122 from the east and thereafter returned to its starting point, they focused upon vehicles that passed them from the east and, after about one hour and a half, passed them returning to the east.
9
Because "Chevron" appeared to lead groups of between 8 and 20 aliens at a time, the officers deduced that the pickup vehicle would be one that was capable of carrying that large a group without arousing suspicion. For this reason, and because they knew that certain types of vehicles were commonly used for smuggling sizable groups of aliens, they decided to limit their attention to vans, pickup trucks, other small trucks, campers, motor homes, and similar vehicles.
10
Traffic on Highway 86 at milepost 149 was normal on the night of the officers' surveillance. In the 5-hour period between 1 a. m. and 6 a. m., 15 to 20 vehicles passed the officers heading west, toward milepost 122. Only two of them—both pickup trucks with camper shells—were of the kind that the officers had concluded "Chevron" would likely use if he was to carry aliens that night. One, a distinctively colored pickup truck with a camper shell, passed for the first time at 4:30 a. m. Officer Gray was able to see and record only a partial license number, "GN 88-."1 At 6:12 a. m., almost exactly the estimated one hour and a half later, a vehicle looking like this same pickup passed them again, this time heading east.
11
The officers followed the pickup and were satisfied from its license plate, "GN 8804" that it was the same vehicle that had passed at 4:30 a. m. At that point, they flashed their police lights and intercepted the vehicle. Respondent Jesus Cortez was the driver and owner of the pickup; respondent Pedro Hernandez-Loera was sitting in the passenger's seat. Hernandez-Loera was wearing shoes with soles matching the distinctive "chevron" shoeprint.
12
The officers identified themselves and told Cortez they were conducting an immigration check. They asked if he was carrying any passengers in the camper. Cortez told them he had picked up some hitchhikers, and he proceeded to open the back of the camper. In the camper, there were six illegal aliens. The officers then arrested the respondents.
13
Cortez and Hernandez-Loera were charged with six counts of transporting illegal aliens in violation of 8 U.S.C. § 1324(a). By pretrial motion, they sought to suppress the evidence obtained by Officers Gray and Evans as a result of stopping their vehicle. They argued that the officers did not have adequate cause to make the investigative stop. The District Court denied the motion. A jury found the respondents guilty as charged. They were sentenced to concurrent prison terms of five years on each of six counts. In addition, Hernandez-Loera was fined $12,000.
14
A divided panel of the Court of Appeals for the Ninth Circuit reversed, holding that the officers lacked a sufficient basis to justify the stop of the pickup. 595 F.2d 505 (1979). That court recognized that United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), provides a standard governing investigative stops of the kind involved in this case, stating:
15
"The quantum of cause necessary in . . . cases [like this one] was established . . . in United States v. Brignoni-Ponce . . . '[O]fficers on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country.' " 595 F.2d, at 507 (quoting United States v. Brignoni-Ponce, supra, at 884, 95 S.Ct., at 2582) (citations omitted).
16
The court also recognized that "the ultimate question on appeal is whether the trial judge's finding that founded suspicion was present here was clearly erroneous." 595 F.2d, at 507. Here, because, in the view of the facts of the two judges constituting the majority, "[t]he officers did not have a valid basis for singling out the Cortez vehicle," id., at 508, and because the circumstances admitted "far too many innocent inferences to make the officers' suspicions reasonably warranted," ibid., the panel concluded that the stop of Cortez' vehicle was a violation of the respondents' rights under the Fourth Amendment. In dissent, Judge Chambers was persuaded that Brignoni-Ponce recognized the validity of permitting an officer to assess the facts in light of his past experience.
II
A.
17
The Fourth Amendment applies to seizures of the person, including brief investigatory stops such as the stop of the vehicle here. Reid v. Georgia, 448 U.S. 438, 440, 100 S.Ct. 2752, 2753, 65 L.Ed.2d 890 (1980); United States v. Brignoni-Ponce, 422 U.S., supra, at 878, 95 S.Ct., at 2578; 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, 1877-1879, 20 L.Ed.2d 889 (1968). An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.2 Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979); Delaware v. Prouse, 440 U.S. 648, 661, 99 S.Ct. 1391, 1400, 59 L.Ed.2d 660 (1979); United States v. Brignoni-Ponce, supra, 422 U.S., at 884, 95 S.Ct., at 2581; Adams v. Williams, 407 U.S. 143, 146-149, 92 S.Ct. 1921, 1923-1924, 32 L.Ed.2d 612 (1972); Terry v. Ohio, supra, 392 U.S., at 16-19, 88 S.Ct., at 1877-1879.
18
Courts have used a variety of terms to capture the elusive concept of what cause is sufficient to authorize police to stop a person. Terms like "articulable reasons" and "founded suspicion" are not self-defining; they fall short of providing clear guidance dispositive of the myriad factual situations that arise. But the essence of all that has been written is that the totality of the circumstances—the whole picture—must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity. See, e. g., Brown v. Texas, supra, 443 U.S., at 51, 99 S.Ct., at 2640; United States v. Brignoni-Ponce, supra, 422 U.S., at 884, 95 S.Ct., at 2581.
19
The idea that an assessment of the whole picture must yield a particularized suspicion contains two elements, each of which must be present before a stop is permissible. First, the assessment must be based upon all the circumstances. The analysis proceeds with various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions inferences and deductions that might well elude an untrained person.
20
The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common sense conclusions about human behavior; jurors as factfinders are permitted to do the same—and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.
21
The second element contained in the idea that an assessment of the whole picture must yield a particularized suspicion is the concept that the process just described must raise a suspicion that the particular individual being stopped is engaged in wrongdoing. Chief Justice Warren, speaking for the Court in Terry v. Ohio, supra, said that, "[t]his demand for specificity in the information upon which police action is predicated is the central teaching of this Court's Fourth Amendment jurisprudence." Id., 392 U.S., at 21, n. 18, 88 S.Ct., at 1880, n. 18 (emphasis added). See also, Brown v. Texas, supra, 443 U.S., at 51, 99 S.Ct., at 2640; Delaware v. Prouse, supra, at 661-663, 99 S.Ct. at 1400-1401; United States v. Brignoni-Ponce, supra, at 884, 95 S.Ct., at 2581.
B
22
This case portrays at once both the enormous difficulties of patrolling a 2,000-mile open border and the patient skills needed needed by those charged with halting illegal entry into this country. It implicates all of the principles just discussed especially the imperative of recognizing that, when used by trained law enforcement officers, objective facts, meaningless to the untrained, can be combined with permissible deductions from such facts to form a legitimate basis for suspicion of a particular person and for action on that suspicion. We see here the kind of police work often suggested by judges and scholars as examples of appropriate and reasonable means of law enforcement. Here, fact on fact and clue on clue afforded a basis for the deductions and inferences that brought the officers to focus on "Chevron."
23
Of critical importance, the officers knew that the area was a crossing point for illegal aliens. They knew that it was common practice for persons to lead aliens through the desert from the border to Highway 86, where they could—by prearrangement—be picked up by a vehicle. Moreover, based upon clues they had discovered in the 2-month period prior to the events at issue here, they believed that one such guide, whom they designated "Chevron," had a particular pattern of operations.
24
By piecing together the information at their disposal, the officers tentatively concluded that there was a reasonable likelihood that "Chevron" would attempt to lead a group of aliens on the night of Sunday, January 30-31. Someone with chevron-soled shoes had led several groups of aliens in the previous two months, yet it had been two weeks since the latest crossing. "Chevron," they deduced, was therefore due reasonably soon. "Chevron" tended to travel on clear weekend nights. Because it had rained on the Friday and Saturday nights of the weekend involved here, Sunday was the only clear night of that weekend; the officers surmised it was therefore a likely night for a trip.
25
Once they had focused on that night, the officers drew upon other objective facts known to them to deduce a time frame within which "Chevron" and the aliens were likely to arrive. From what they knew of the practice of those who smuggle aliens, including what they knew of "Chevron's" previous activities, they deduced that the border crossing and journey through the desert would probably be at night. They knew the time when sunset would occur at the point of the border crossing; they knew about how long the trip would take. They were thus able to deduce that "Chevron" would likely arrive at the pickup point on Highway 86 in the time frame between 2 a. m. and 6 a. m.
26
From objective facts, the officers also deduced the probable point on the highway—milepost 122—at which "Chevron" would likely rendezvous with a pickup vehicle. They deduced from the direction taken by the sets of "Chevron" footprints they had earlier discovered that the pickup vehicle would approach the aliens from, and return with them to, a point east of milepost 122. They therefore staked out a position east of milepost 122 (at milepost 149) and watched for vehicles that passed them going west and then, approximately one and a half hours later, passed them again, this time going east.
27
From what they had observed about the previous groups guided by the person with "chevron" shoes, they deduced that "Chevron" would lead a group of 8 to 20 aliens. They therefore focused their attention on enclosed vehicles of that passenger capacity.
28
The analysis produced by Officers Gray and Evans can be summarized as follows: if, on the night upon which they believed "Chevron" was likely to travel, sometime between 2 a. m. and 6 a. m., a large enclosed vehicle was seen to make an east-west-east round trip to and from a deserted point (milepost 122) on a deserted road (Highway 86), the officers would stop the vehicle on the return trip. In a 4-hour period the officers observed only one vehicle meeting that description. And it is not surprising that when they stopped the vehicle on its return trip it contained "Chevron" and several illegal aliens.3
C
29
The limited purpose of the stop in this case was to question the occupants of the vehicle about their citizenship and immigration status and the reasons for the round trip in a short timespan in a virtually deserted area. No search of the camper or any of its occupants occurred until after respondent Cortez voluntarily opened the back door of the camper; thus, only the stop, not the search is at issue here. The intrusion upon privacy associated with this stop was limited and was "reasonably related in scope to the justification for [its] initiation," Terry v. Ohio, 392 U.S., at 29, 88 S.Ct., at 1883.
30
We have recently held that stops by the Border Patrol may be justified under circumstances less than those constituting probable cause for arrest or search. United States v. Brignoni-Ponce, 422 U.S., at 880, 95 S.Ct., at 2579.4 Thus, the test is not whether Officers Gray and Evans had probable cause to conclude that the vehicle they stopped would contain "Chevron" and a group of illegal aliens. Rather the question is whether, based upon the whole picture, they, as experienced Border Patrol officers, could reasonably surmise that the particular vehicle they stopped was engaged in criminal activity. On this record, they could so conclude.
31
Reversed.
32
Justice MARSHALL concurs in the judgment.
33
Justice STEWART, concurring in the result.
34
The Border Patrol officers in this case knew, or had rationally deduced, that "Chevron" had repeatedly shepherded illegal aliens up from the border; that his treks had commonly ended early in the morning around milepost 122 on Highway 86; that he usually worked on weekends; that he probably had made no trips for two weeks; and that trips were most likely when the weather was good. Knowing of this pattern, the officers could reasonably anticipate, even if they could not guarantee, the arrival of another group of aliens, led by Chevron, at milepost 122 on the first clear weekend night in late January 1977. Route 86 leads through almost uninhabited country, so little traveled in the hours of darkness that only 15 to 20 westbound vehicles passed the police during the five hours they watched that Sunday night. Only two vehicles capacious enough to carry a sizable group of illegal aliens went by. One of those two vehicles not only drove past them, but returned in the opposite direction after just enough time had elapsed for a journey to milepost 122 and back. This nocturnal round trip into "desolate desert terrain" would in any event have been puzzling. Coming when and as it did, surely the most likely explanation for it was that Chevron was again shepherding aliens.
35
In sum, the Border Patrol officers had discovered an abundance of "specific articulable facts" which, "together with rational inferences from [them]," entirely warranted a "suspicion that the vehicl[e] contain[ed] aliens who [might] be illegally in the country." United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 2581, 45 L.Ed.2d 607. Because the information possessed by the officers thus met the requirements established by the Brignoni-Ponce case for the kind of stop made here, I concur in the reversal of the judgment of the Court of Appeals.
1
The second camper passed them 15 or 20 minutes later. As far as the record shows, it did not return.
2
Of course, an officer may stop and question a person if there are reasonable grounds to believe that person is wanted for past criminal conduct.
3
In United States v. Brignoni-Ponce, 442 U.S. 873, 884-885, 95 S.Ct. 2574, 2581-2582, 45 L.Ed.2d 607 (1975), the Court listed several factors to be considered as part of the totality of the circumstances in determining the existence vel non of a particularized suspicion in cases treating official attempts to stem the influx of illegal aliens into our country. Though the list did not purport to be exhaustive, it is noteworthy that several of the factors present here were recognized by Brignoni-Ponce as significant in this context; for example, information about recent border crossings and the type of vehicle involved.
4
The wide public interest in effective measures to prevent the entry of illegal aliens at the Mexican border has been cataloged by this Court. See, e. g., United States v. Ortiz, 422 U.S. 891, 899-914, 95 S.Ct. 2585, 2590, 2597, 45 L.Ed.2d 623 (1975) (BURGER, C. J., concurring in judgment); United States v. Brignoni-Ponce, supra, 422 U.S., at 878-879, 95 S.Ct., at 2578-2579.
| 01
|
449 U.S. 490
101 S.Ct. 737
66 L.Ed.2d 686
Feodor FEDORENKO, Petitioner,v.UNITED STATES.
No. 79-5602.
Argued Oct. 15, 1980.
Decided Jan. 21, 1981.
Syllabus
The Displaced Persons Act of 1948 (DPA) enabled European refugees driven from their homelands by World War II to emigrate to the United States without regard to traditional immigration quotas. It provided that any person "who shall willfully make a misrepresentation for the purpose of gaining admission into the United States as an eligible displaced person shall thereafter not be admissible into the United States," and the applicable definition of "displaced persons" specifically excluded individuals who had "assisted the enemy in persecuting civil[ians]" or had "voluntarily assisted the enemy forces" in their operations. Petitioner was admitted to the United States under a DPA visa that had been issued on the basis of his 1949 application which misrepresented his wartime activities and concealed the fact that after being captured by the Germans while serving in the Russian Army, he had served as an armed guard at the Nazi concentration camp at Treblinka in Poland. Subsequently, he became an American citizen in 1970 on the basis of his visa papers and his naturalization application which also did not disclose his wartime service as a concentration camp guard. The Government thereafter brought this denaturalization action under § 340(a) of the Immigration and Nationality Act of 1952, which requires revocation of United States citizenship that was "illegally procured" or "procured by concealment of a material fact or by willful misrepresentation." The Government charged that petitioner, in applying for his DPA visa and for citizenship, had willfully concealed that he had served as an armed guard at Treblinka and had committed crimes against inmates of the camp because they were Jewish, and that therefore he had procured his naturalization illegally or by willfully misrepresenting material facts. The Government presented witnesses who testified that they had seen petitioner commit acts of violence against camp inmates, and an expert witness in the interpretation and application of the DPA, who testified that petitioner would have been found ineligible for a visa as a matter of law if it had been determined that he had been an armed guard at the camp, regardless of whether or not he had volunteered for service or had committed atrocities against inmates. In his testimony, petitioner admitted that he deliberately gave false information in connection with his application for the DPA visa, but claimed that he had been forced to serve as a guard and denied any personal involvement in the atrocities committed at the camp. The District Court entered judgment for petitioner, finding, inter alia, that although petitioner had lied about his wartime activities when he applied for a visa in 1949, he had been forced to serve as a guard and the Government had not met its burden of proving that he had committed war crimes or atrocities at Treblinka. The court held that because disclosure of petitioner's involuntary service as a concentration camp guard would not have been grounds for denial of citizenship, his false statements about his wartime activities were not misrepresentations of "material facts" within the meaning of the denaturalization statute under the materiality standard announced in Chaunt v. United States, 364 U.S. 350, 81 S.Ct. 147, 5 L.Ed.2d 120. As an alternative basis for its decision, the court held that even assuming misrepresentation of material facts, equitable and mitigating circumstances—the inconclusiveness of the evidence that petitioner had committed war crimes or atrocities and the uncontroverted evidence that he had been responsible and law-abiding since coming to the United States—required that he be permitted to retain his citizenship. The Court of Appeals reversed, holding that the District Court had misinterpreted the Chaunt test and that it had no discretion to enter judgment for petitioner in the face of a finding that he had procured his naturalization by willfully concealing material facts.
Held : Petitioner's citizenship must be revoked under § 340(a) of the Immigration and Nationality Act because it was "illegally procured." Pp. 505-518.
(a) The Government carries a heavy burden of proof in a denaturalization proceeding, and evidence justifying revocation of citizenship must be clear, unequivocal, and convincing, and not leave the issue in doubt. However, there must be strict compliance with all the congressionally imposed prerequisites to the acquisition of citizenship. Failure to comply with any of these conditions renders the certificate of citizenship "illegally procured," and naturalization that is unlawfully procured can be set aside. Pp. 505-507.
(b) The DPA's prohibition against admission of any person "who shall willfully make a misrepresentation" to gain admission into the United States as an "eligible displaced person," only applies to willful misrepresentations about "material facts." Under the analysis of the courts below, the misrepresentation that raised the materiality issue in this case was contained in petitioner's application for a visa. The plain language of the definition of "displaced persons" for purposes of the DPA as excluding individuals who "assisted the enemy in persecuting civil[ians]" mandates the literal interpretation, rejected by the District Court, that an individual's service as a concentration camp armed guard—whether voluntary or involuntary—made him ineligible for a visa. Since a misrepresentation must be considered material if disclosure of the true facts would have made the applicant ineligible for a visa, and since disclosure of the true facts here would, as a matter of law, have made petitioner ineligible for a visa, it is unnecessary to determine whether the materiality test of Chaunt as to applications for citizenship also applies to false statements in visa applications. Pp. 507-514.
(c) In 1970, when petitioner filed his petition for and was admitted to citizenship, the Immigration and Nationality Act required an applicant for citizenship to be lawfully admitted to the United States for permanent residence, which admission in turn required that the individual possess a valid unexpired immigrant visa. And under the law applicable at the time of petitioner's initial entry into the United States, a visa obtained through a material misrepresentation was not valid. Since petitioner thus failed to satisfy a statutory requirement which Congress had imposed as a prerequisite to the acquisition of citizenship by naturalization, his citizenship must be revoked because it was "illegally procured." Pp. 514-516.
(d) Although a denaturalization action is a suit in equity, a district court lacks equitable discretion to refrain from entering a judgment of denaturalization against a naturalized citizen whose citizenship was procured illegally or by willful misrepresentation of material facts. Once a district court determines that the Government has met its burden of proving that a naturalized citizen obtained his citizenship illegally or by willful misrepresentation, it has no discretion to excuse the conduct. Pp. 514-516.
597 F.2d 946, affirmed.
Brian M. Gildea, New Haven, Conn., for petitioner.
Atty. Gen. Benjamin R. Civiletti, Washington, D. C., for respondent.
Justice MARSHALL delivered the opinion of the Court.
1
Section 340(a) of the Immigration and Nationality Act of 1952, 66 Stat. 260, as amended, 8 U.S.C. § 1451(a), requires revocation of United States citizenship that was "illegally procured or . . . procured by concealment of a material fact or by willful misrepresentation."1 The Government brought this denaturalization action, alleging that petitioner procured his citizenship illegally or by willfully misrepresenting a material fact. The District Court entered judgment for petitioner, but the Court of Appeals reversed and ordered entry of a judgment of denaturalization. We granted certiorari, 444 U.S. 1070, 100 S.Ct. 1013, 62 L.Ed.2d 751, to resolve two questions: whether petitioner's failure to disclose, in his application for a visa to come to this country, that he had served during the Second World War as an armed guard at the Nazi concentration camp at Treblinka, Poland, rendered his citizenship revocable as "illegally procured" or procured by willful misrepresentation of a material fact, and if so, whether the District Court nonetheless possessed equitable discretion to refrain from entering judgment in favor of the Government under these circumstances.
2
* A.
3
Petitioner was born in the Ukraine in 1907. He was drafted into the Russian Army in June 1941, but was captured by the Germans shortly thereafter. After being held in a series of prisoner-of-war camps, petitioner was selected to go to the German camp at Travnicki in Poland, where he received training as a concentration camp guard. In September 1942, he was assigned to the Nazi concentration camp at Treblinka in Poland, where he was issued a uniform and rifle and where he served as a guard during 1942 and 1943. The infamous Treblinka concentration camp was described by the District Court as a "human abattoir" at which several hundred thousand Jewish civilians were murdered.2 After an armed uprising by the inmates at Treblinka led to the closure of the camp in August 1943, petitioner was transferred to a German labor camp at Danzig and then to the German prisoner-of-war camp at Poelitz, where he continued to serve as an armed guard. Petitioner was eventually transferred to Hamburg where he served as a warehouse guard. Shortly before the British forces entered that city in 1945, petitioner discarded his uniform and was able to pass as a civilian. For the next four years, he worked in Germany as a laborer.
B
4
In 1948, Congress enacted the Displaced Persons Act (DPA or Act), 62 Stat. 1009, to enable European refugees driven from their homelands by the war to emigrate to the United States without regard to traditional immigration quotas. The Act's definition of "displaced persons"3 eligible for immigration to this country specifically excluded individuals who had "assisted the enemy in persecuting civil[ians]" or had "voluntarily assisted the enemy forces . . . in their operations. . . ."4 Section 10 of the DPA, 62 Stat. 1013, placed the burden of proving eligibility under the Act on the person seeking admission and provided that "[a]ny person who shall willfully make a misrepresentation for the purpose of gaining admission into the United States as an eligible displaced person shall thereafter not be admissible into the United States." The Act established an elaborate system for determining eligibility for displaced person status. Each applicant was first interviewed by representatives of the International Refugee Organization of the United Nations (IRO) who ascertained that the person was a refugee or displaced person.5 The applicant was then interviewed by an official of the Displaced Persons Commission,6 who made a preliminary determination about his eligibility under the DPA. The final decision was made by one of several State Department vice consuls, who were specially trained for the task and sent to Europe to administer the Act.7 Thereafter, the application was reviewed by officials of the Immigration and Naturalization Service (INS) to make sure that the applicant was admissible into the United States under the standard immigration laws.
5
In October 1949, petitioner applied for admission to the United States as a displaced person. Petitioner falsified his visa application by lying about his wartime activities. He told the investigators from the Displaced Persons Commission that he had been a farmer in Sarny, Poland, from 1937 until March 1942, and that he had then been deported to Germany and forced to work in a factory in Poelitz until the end of the war, when he fled to Hamburg.8 Petitioner told the same story to the vice consul who reviewed his case and he signed a sworn statement containing these false representations as part of his application for a DPA visa. Petitioner's false statements were not discovered at the time and he was issued a DPA visa, and sailed to the United States where he was admitted for permanent residence. He took up residence in Connecticut and for three decades led an uneventful and law-abiding life as a factory worker.
6
In 1969, petitioner applied for naturalization at the INS office in Hartford, Conn. Petitioner did not disclose his wartime service as a concentration camp armed guard in his application,9 and he did not mention it in his sworn testimony to INS naturalization examiners. The INS examiners took petitioner's visa papers at face value and recommended that his citizenship application be granted. On this recommendation, the Superior Court of New Haven County granted his petition for naturalization and he became an American citizen on April 23, 1970.
C
7
Seven years later, after petitioner had moved to Miami Beach and become a resident of Florida,10 the Government filed this action in the United States District Court for the Southern District of Florida to revoke petitioner's citizenship. The complaint alleged that petitioner should have been deemed ineligible for a DPA visa because he had served as an armed guard at Treblinka and had committed crimes or atrocities against inmates of the camp because they were Jewish. The Government charged that petitioner had willfully concealed this information both in applying for a DPA visa and in applying for citizenship, and that therefore petitioner had procured his naturalization illegally or by willfully misrepresenting material facts.11
8
The Government's witnesses at trial included six survivors of Treblinka who claimed that they had seen petitioner commit specific acts of violence against inmates of the camp.12 Each witness made a pretrial identification of petitioner from a photo array that included his 1949 visa photograph, and three of the witnesses made courtroom identifications. The Government also called as a witness Kempton Jenkins, a career foreign service officer who served in Germany after the war as one of the vice consuls who administered the DPA. Jenkins had been trained to administer the Act and had reviewed some 5,000 visa applications during his tour of duty. Record 711-714, 720-722. Without objection from petitioner, Jenkins was proffered by the Government and accepted by the court, as an expert witness on the interpretation and application of the DPA. Id., at 719-721, 726-727, 734.
9
Jenkins testified that the vice consuls made the final decision about an applicant's eligibility for displaced person status.13 He indicated that if there had been any suggestion that an applicant "had served or been involved in" a concentration camp, processing of his application would have been suspended to permit a thorough investigation. Id., at 766. If it were then determined that the applicant had been an armed guard at the camp, he would have been found ineligible for a visa as a matter of law. Id., at 767-768, 822. Jenkins explained that service as an armed guard at a concentration camp brought the applicant under the statutory exclusion of persons who "assisted the enemy in persecuting civil[ians]," regardless of whether the applicant had not volunteered for service14 or had not committed atrocities against inmates. Id., at 768, 797-798. Jenkins emphasized that this interpretation of the Act was "uniformly" accepted by the vice-consuls, and that furthermore, he knew of no case in which a known concentration camp guard was found eligible for a DPA visa.15 Id., at 767. Jenkins also described the elaborate system that was used to screen visa applicants and he testified that in interviewing applicants, the vice consuls bent over backwards in interrogating each person to make sure the applicant understood what he was doing. Id., at 746.
10
Petitioner took the stand in his own behalf. He admitted his service as an armed guard at Treblinka and that he had known that thousands of Jewish inmates were being murdered there. Id., at 1442, 1451-1452, 1465. Petitioner claimed that he was forced to serve as a guard and denied any personal involvement in the atrocities committed at the camp, id., at 1276, 1297-1298, 1539-1540; he insisted that he had merely been a perimeter guard. Petitioner admitted, however, that he had followed orders and shot in the general direction of escaping inmates during the August 1943 uprising that led to closure of the camp. Id., at 1507-1509, 1546, 1564. Petitioner maintained that he was a prisoner of war at Treblinka, id., at 1495, although he admitted that the Russian armed guards significantly outnumbered the German soldiers at the camp,16 that he was paid a stipend and received a good service stripe from the Germans, and that he was allowed to leave the camp regularly but never tried to escape. Id., at 1467-1471, 1489-1494, 1497, 1508.17 Finally, petitioner conceded that he deliberately gave false statements about his wartime activities to the investigators from the Displaced Persons Commission and to the vice consul who reviewed his visa application. Id., at 1518-1524.
11
The District Court entered judgment in favor of petitioner. 455 F.Supp. 893 (1978). The court found that petitioner had served as an armed guard at Treblinka and that he lied about his wartime activities when he applied for a DPA visa in 1949.18 The court found, however, that petitioner was forced to serve as a guard. The court concluded that it could credit neither the Treblinka survivors' identification of petitioner nor their testimony,19 and it held that the Government had not met its burden of proving that petitioner committed war crimes or atrocities at Treblinka.
12
Turning to the question whether petitioner's false statements about his activities during the war were misrepresentations of "material" facts, the District Court, relying on our decision in Chaunt v. United States, 364 U.S. 350, 81 S.Ct. 147, 5 L.Ed.2d 120 (1960), held that the Government had to prove
13
"that either (1) facts were suppressed 'which, if known, would have warranted denial of citizenship' or (2) that their disclosure 'might have been useful in an investigation possibly leading to the discovery of other facts warranting denial of citizenship.' " 455 F.Supp., at 915 (quoting 364 U.S., at 355, 81 S.Ct., at 150).
14
The District Court rejected the Government's claim that disclosure of petitioner's service as a concentration camp armed guard would have been grounds for denial of citizenship. The court therefore ruled that the withheld facts were not material under the first Chaunt test. The Government argued, however, that the second Chaunt test did not require proof that the concealed facts prevented an investigation that would have revealed facts warranting denial of citizenship. The Government contended instead that the second test merely required proof that an investigation might have uncovered such facts and it argued that petitioner's concealment of his service at Treblinka fell within this test. The District Court conceded that the language of Chaunt was ambiguous enough to support the Government's interpretation of the second test. But relying on decisions by the United States Courts of Appeals for the Third and Ninth Circuits,20 the District Court rejected the Government's position and interpreted both Chaunt tests as requiring proof that "the true facts would have warranted denial of citizenship." 455 F.Supp., at 916. Applying this test, the court ruled that petitioner's false statements were not "material" within the meaning of the denaturalization statute. In doing so, the court first rejected Jenkins' testimony and held that petitioner was not ineligible for a DPA visa. The court concluded that petitioner did not come under the DPA's exclusion of persons who had assisted in the persecution of civilians because he had served involuntarily. Second, the court found that although disclosure of petitioner's service as a Treblinka guard "certainly would" have prompted an investigation into his activities, the Government had failed to prove that such an inquiry would have uncovered any additional facts warranting denial of petitioner's application for a visa. Id., at 916.21
15
As an alternative basis for its decision, the District Court held that even assuming that petitioner had misrepresented "material" facts, equitable and mitigating circumstances required that petitioner be permitted to retain his citizenship. Specifically, the court relied on its finding that the evidence that petitioner had committed any war crimes or atrocities at Treblinka was inconclusive, as well as the uncontroverted evidence that he had been responsible and law-abiding since coming to the United States. The District Court suggested that this Court had not previously considered the question whether a district court has discretion to consider the equities in a denaturalization case. The court reasoned that since naturalization courts have considered the equities in determining whether citizenship should be granted, similar discretion should also be available in denaturalization proceedings.
16
The Court of Appeals for the Fifth Circuit reversed and remanded the case with instructions to enter judgment for the Government and to cancel petitioner's certificate of citizenship. 597 F.2d 946 (1979). Although the Court of Appeals agreed with the District Court that Chaunt was controlling on the question of the materiality of petitioner's false statements, it disagreed with the District Court's interpretation of the second Chaunt test as requiring proof of ultimate facts warranting denial of citizenship. Instead, the Court of Appeals agreed with the Government that the second Chaunt test requires only clear and convincing proof that (a) disclosure of the true facts would have led to an investigation and (b) the investigation might have uncovered other facts warranting denial of citizenship.22
17
In applying its formulation of the second Chaunt test to the facts of the case, the Court of Appeals concluded that one part of the test was satisfied by the District Court's finding that the American authorities would have conducted an investigation if petitioner had disclosed that he had served as an armed guard at Treblinka. The Court of Appeals then found that Jenkins' testimony and other evidence before the District Court clearly and convincingly proved that the investigation might have resulted in denial of petitioner's application for a visa23 and the Court of Appeals held that petitioner procured his naturalization "by misrepresentation and concealment of his whereabouts during the war years and his service as a concentration camp guard." 597 F.2d, at 953. The Court of Appeals further held that the District Court had erred in supposing that it had discretion to enter judgment in favor of petitioner notwithstanding a finding that petitioner had procured his naturalization by willfully concealing material facts. The Court of Appeals concluded that "[t]he denaturalization statute . . . does not accord the district courts any authority to excuse the fraudulent procurement of citizenship." Id., at 954. Accordingly, the Court of Appeals held that petitioner's citizenship must be revoked.24 We affirm, but for reasons which differ from those stated by the Court of Appeals.
II
18
Our examination of the questions presented by this case must proceed within the framework established by two lines of prior decisions of this Court that may, at first blush, appear to point in different directions.
19
On the one hand, our decisions have recognized that the right to acquire American citizenship is a precious one and that once citizenship has been acquired, its loss can have severe and unsettling consequences. See Costello v. United States, 365 U.S. 265, 269, 81 S.Ct. 534, 536, 5 L.Ed.2d 551 (1961); Chaunt v. United States, 364 U.S., at 353, 81 S.Ct., at 149; Baumgartner v. United States, 322 U.S. 665, 675-676, 64 S.Ct. 1240, 1245-1246, 88 L.Ed. 1525 (1944); Schneiderman v. United States, 320 U.S. 118, 122, 63 S.Ct. 1333, 1335, 87 L.Ed. 1796 (1943). For these reasons, we have held that the Government "carries a heavy burden of proof in a proceeding to divest a naturalized citizen of his citizenship." Costello v. United States, supra, 365 U.S. at 269, 81 S.Ct., at 536. The evidence justifying revocation of citizenship must be " 'clear, unequivocal, and convincing' " and not leave " 'the issue in doubt.' " Schneiderman v. United States, supra, 320 U.S. at 125, 63 S.Ct., at 1336 (quoting Maxwell Land-Grant Case, 121 U.S. 325, 381, 7 S.Ct. 1015, 1028, 30 L.Ed. 949 (1887)). Any less exacting standard would be inconsistent with the importance of the right that is at stake in a denaturalization proceeding. And in reviewing denaturalization cases, we have carefully examined the record ourselves. See, e. g., Costello v. United States, supra; Chaunt v. United States, supra; Nowak v. United States, 356 U.S. 660, 78 S.Ct. 955, 2 L.Ed.2d 1048 (1958); Baumgartner v. United States, supra.
20
At the same time, our cases have also recognized that there must be strict compliance with all the congressionally imposed prerequisites to the acquisition of citizenship. Failure to comply with any of these conditions renders the certificate of citizenship "illegally procured," and naturalization that is unlawfully procured can be set aside. 8 U.S.C. § 1451(a); Afroyim v. Rusk, 387 U.S. 253, 267, n.23, 87 S.Ct. 1660, 1667, 18 L.Ed.2d 757 (1967). See Maney v. United States, 278 U.S. 17, 49 S.Ct. 15, 73 L.Ed. 156 (1928); United States v. Ness, 245 U.S. 319, 38 S.Ct. 118, 62 L.Ed. 321 (1917); United States v. Ginsberg, 243 U.S. 472, 37 S.Ct. 422, 61 L.Ed. 853 (1917). As we explained in one of these prior decisions:
21
"An alien who seeks political rights as a member of this Nation can rightfully obtain them only upon terms and conditions specified by Congress. . . .
22
* * * * *
23
"No alien has the slightest right to naturalization unless all statutory requirements are complied with; and every certificate of citizenship must be treated as granted upon condition that the government may challenge it . . . and demand its cancellation unless issued in accordance with such requirements." United States v. Ginsberg, supra, at 474-475, 37 S.Ct., at 425.
24
This judicial insistence on strict compliance with the statutory conditions precedent to naturalization is simply an acknowledgment of the fact that Congress alone has the constitutional authority to prescribe rules for naturalization,25 and the courts' task is to assure compliance with the particular prerequisites to the acquisition of United States citizenship by naturalization legislated to safeguard the integrity of this "priceless treasure." Johnson v. Eisentrager, 339 U.S. 763, 791, 70 S.Ct. 936, 950, 94 L.Ed. 1255 (1950) (Black, J., dissenting).
25
Thus, what may at first glance appear to be two inconsistent lines of cases actually reflect our consistent recognition of the importance of the issues that are at stake—for the citizen as well as the Government—in a denaturalization proceeding. With this in mind, we turn to petitioner's contention that the Court of Appeals erred in reversing the judgment of the District Court.
III
26
Petitioner does not and, indeed, cannot challenge the Government's contention that he willfully misrepresented facts about his wartime activities when he applied for a DPA visa in 1949. Petitioner admitted at trial that he "willingly" gave false information in connection with his application for a DPA visa so as to avoid the possibility of repatriation to the Soviet Union.26 Record 1520. The District Court specifically noted that there was no dispute that petitioner "lied" in his application. 455 F.Supp., at 914. Thus, petitioner falls within the plain language of the DPA's admonition that "[a]ny person who shall willfully make a misrepresentation for the purposes of gaining admission into the United States as an eligible displaced person shall thereafter not be admissible into the United States." 62 Stat. 1013. This does not, however, end our inquiry, because we agree with the Government27 that this provision only applies to willful misrepresentations about "material" facts.28 The first issue we must examine then, is whether petitioner's false statements about his activities during the war, particularly the concealment of his Treblinka service, were "material."
27
At the outset, we must determine the proper standard to be applied in judging whether petitioner's false statements were material. Both petitioner and the Government have assumed, as did the District Court and the Court of Appeals, that materiality under the above-quoted provision of the DPA is governed by the standard announced in Chaunt v. United States, 364 U.S. 350, 81 S.Ct. 147, 5 L.Ed.2d 120 (1960). But we do not find it so obvious that the Chaunt test is applicable here. In that case, the Government charged that Chaunt had procured his citizenship by concealing and misrepresenting his record of arrests in the United States in his application for citizenship, and that the arrest record was a "material" fact within the meaning of the denaturalization statute.29 Thus, the materiality standard announced in that case pertained to false statements in applications for citizenship, and the arrests that Chaunt failed to disclose all took place after he came to this country. The case presented no question concerning the lawfulness of his initial entry into the United States.
28
In the instant case, however, the events on which the Government relies in seeking to revoke petitioner's citizenship took place before he came to this country and the Government is seeking to revoke petitioner's citizenship because of the alleged unlawfulness of his initial entry into the United States. Although the complaint charged that petitioner misrepresented facts about his wartime activities in both his application for a visa and his application for naturalization, both the District Court and the Court of Appeals focused on the false statements in petitioner's application for a visa. Thus, under the analysis of both the District Court and the Court of Appeals, the misrepresentation that raises the materiality issue in this case was contained in petitioner's application for a visa.30 These distinctions plainly raise the important question whether the Chaunt test for materiality of misrepresentations in applications for citizenship also applies to false statements in visa applications.
29
It is, of course, clear that the materiality of a false statement in a visa application must be measured in terms of its effect on the applicant's admissibility into this country. See United States v. Rossi, 299 F.2d 650, 652 (CA9 1962). At the very least, a misrepresentation must be considered material if disclosure of the true facts would have made the applicant ineligible for a visa. Because we conclude that disclosure of the true facts about petitioner's service as an armed guard at Treblinka would, as a matter of law, have made him ineligible for a visa under the DPA, we find it unnecessary to resolve the question whether Chaunt's materiality test also governs false statements in visa applications.
30
Section 2(b) of the DPA, 62 Stat. 1009, by incorporating the definition of "[p]ersons who will not be [considered displaced persons]" contained in the Constitution of the IRO, see n.3, supra, specifically provided that individuals who "assisted the enemy in persecuting civil[ians]" were ineligible for visas under the Act.31 Jenkins testified that petitioner's service as an armed guard at a concentration camp—whether voluntary or not made him ineligible for a visa under this provision.32 Jenkins' testimony was based on his firsthand experience as a vice consul in Germany after the war reviewing DPA visa applications. Jenkins also testified that the practice of the vice consuls was to circulate among the other vice consuls the case files of any visa applicant who was shown to have been a concentration camp armed guard. Record 826. Thus, Jenkins and the other vice consuls were particularly well informed about the practice concerning the eligibility of former camp guards for DPA visas. The District Court evidently agreed that a literal interpretation of the statute would confirm the accuracy of Jenkins' testimony. 455 F.Supp., at 913. But by construing § 2(a) as only excluding individuals who voluntarily assisted in the persecution of civilians, the District Court was able to ignore Jenkins' uncontroverted testimony about how the Act was interpreted by the officials who administered it.33
31
The Court of Appeals evidently accepted the District Court's construction of the Act since it agreed that the Government had failed to show that petitioner was ineligible for a DPA visa. 597 F.2d, at 953. Because we are unable to find any basis for an "involuntary assistance" exception in the language of § 2(a), we conclude that the District Court's construction of the Act was incorrect. The plain language of the Act mandates precisely the literal interpretation that the District Court rejected: an individual's service as a concentration camp armed guard—whether voluntary or involuntary—made him ineligible for a visa. That Congress was perfectly capable of adopting a "voluntariness" limitation where it felt that one was necessary is plain from comparing § 2(a) with § 2(b), which excludes only those individuals who "voluntarily assisted the enemy forces . . . in their operations. . . ." Under traditional principles of statutory construction, the deliberate omission of the word "voluntary" from § 2(a) compels the conclusion that the statute made all those who assisted in the persecution of civilians ineligible for visas.34 See National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 414 U.S. 453, 458, 94 S.Ct. 690, 693, 38 L.Ed.2d 646 (1974); Botany Worsted Mills v. United States, 278 U.S. 282, 289, 49 S.Ct. 129, 132, 73 L.Ed. 379 (1929). As this Court has previously stated: "We are not at liberty to imply a condition which is opposed to the explicit terms of the statute. . . . To [so] hold . . . is not to construe the Act but to amend it." Detroit Trust Co. v. The Thomas Barlum, 293 U.S. 21, 38, 55 S.Ct. 31, 36, 79 L.Ed. 176 (1934). See FTC v. Sun Oil Co., 371 U.S. 505, 514-515, 83 S.Ct. 358, 364-365, 9 L.Ed.2d 466 (1963). Thus, the plain language of the statute and Jenkins' uncontradicted and unequivocal testimony leave no room for doubt that if petitioner had disclosed the fact that he had been an armed guard at Treblinka, he would have been found ineligible for a visa under the DPA.35 This being so, we must conclude that petitioner's false statements about his wartime activities were "willfu[l] [and material] misrepresentation[s] [made] for the purpose of gaining admission into the United States as an eligible displaced person." 62 Stat. 1013. Under the express terms of the statute, petitioner was "thereafter not . . . admissible into the United States." Ibid.
32
Our conclusion that petitioner was, as a matter of law, ineligible for a visa under the DPA makes the resolution of this case fairly straightforward. As noted, supra, at 506-507, our cases have established that a naturalized citizen's failure to comply with the statutory prerequisites for naturalization renders his certificate of citizenship revocable as "illegally procured" under 8 U.S.C. § 1451(a). In 1970, when petitioner filed his application for and was admitted to citizenship, §§ 316(a) and 318 of the Immigration and Nationality Act of 1952, 8 U.S.C. §§ 1427(a) and 1429, required an applicant for citizenship to be lawfully admitted to the United States for permanent residence.36 Lawful admission for permanent residence in turn required that the individual possess a valid unexpired immigrant visa. At the time of petitioner's initial entry into this country, § 13(a) of the Immigration and Nationality Act of 1924, ch. 190, 43 Stat. 153, 161 (repealed in 1952), provided that "[n]o immigrant shall be admitted to the United States unless he (1) has an unexpired immigration visa. . . ."37 The courts at that time consistently held that § 13(a) required a valid visa and that a visa obtained through a material misrepresentation was not valid. See, e. g., Ablett v. Brownell, 99 U.S.App.D.C. 387, 391, 240 F.2d 625, 629 (1957); United States ex rel. Jankowski v. Shaughnessy, 186 F.2d 580, 582 (CA2 1951). Section 10 of the DPA, 62 Stat. 1013, provided that "all immigration laws, . . . shall be applicable to . . . eligible displaced . . . persons who apply to be or who are admitted into the United States pursuant to this Act." And as previously noted, petitioner was inadmissible into this country under the express terms of the DPA. Accordingly, inasmuch as petitioner failed to satisfy a statutory requirement which Congress has imposed as a prerequisite to the acquisition of citizenship by naturalization, we must agree with the Government that petitioner's citizenship must be revoked because it was "illegally procured." See Polites v. United States, 364 U.S. 426, 436-437, 81 S.Ct. 202, 208-209, 5 L.Ed.2d 173 (1960); Schwinn v. United States, 311 U.S. 616, 61 S.Ct. 70, 85 L.Ed. 390 (1940); Maney v. United States, 278 U.S., at 22-23, 49 S.Ct., at 15-16; United States v. Ginsberg, 243 U.S., at 475, 37 S.Ct., at 425; Luria v. United States, 231 U.S. 9, 17, 34 S.Ct. 10, 11, 58 L.Ed. 101 (1913); Johannessen v. United States, 225 U.S. 227, 240, 32 S.Ct. 613, 616, 56 L.Ed. 1066 (1912). Cf. Schneiderman v. United States, 320 U.S., at 163, 63 S.Ct., at 1355 (Douglas, J., concurring).38 In the lexicon of our cases, one of the "jurisdictional facts upon which the grant [of citizenship] is predicated," Johannessen v. United States, supra, 225 U.S., at 240, 32 S.Ct., at 616, was missing at the time petitioner became a citizen.
B
33
This conclusion would lead us to affirm on statutory grounds (and not on the basis of our decision in Chaunt ), the judgment of the Court of Appeals. Petitioner argues, however, that in a denaturalization proceeding, a district court has discretion to consider the equities in determining whether citizenship should be revoked. This is the view adopted by the District Court but rejected by the Court of Appeals. It is true, as petitioner notes, that this Court has held that a denaturalization action is a suit in equity. Knauer v. United States, 328 U.S. 654, 671, 66 S.Ct. 1304, 1313, 90 L.Ed. 1500 (1946); Luria v. United States, supra, 231 U.S. at 27-28, 32 S.Ct., at 15. Petitioner further points to numerous cases in which the courts have exercised discretion in determining whether citizenship should be granted. See, e. g., In re Iwanenko's Petition, 145 F.Supp. 838 (N.D.Ill.1956); Petition of R., 56 F.Supp. 969 (Mass.1944). Petitioner would therefore have us conclude that similar discretion should be available to a denaturalization court to weigh the equities in light of all the circumstances in order to arrive at a solution that is just and fair. He then argues that if such power exists, the facts of this case, particularly his record of good conduct over the past 29 years and the reasonable doubts about some of the allegations in the Government's complaint, all weigh in favor of permitting him to retain his citizenship. Although petitioner presents this argument with respect to revocation of citizenship procured through willful misrepresentation of material facts, we assume that petitioner believes that courts should also be allowed to weigh the equities in deciding whether to revoke citizenship that was "illegally procured," which is our holding in this case.
34
We agree with the Court of Appeals that district courts lack equitable discretion to refrain from entering a judgment of denaturalization against a naturalized citizen whose citizenship was procured illegally or by willful misrepresentation of material facts. Petitioner is correct in noting that courts necessarily and properly exercise discretion in characterizing certain facts while determining whether an applicant for citizenship meets some of the requirements for naturalization.39 But that limited discretion does not include the authority to excuse illegal or fraudulent procurement of citizenship. As the Court of Appeals stated: "Once it has been determined that a person does not qualify for citizenship, . . . the district court has no discretion to ignore the defect and grant citizenship." 597 F.2d, at 954. By the same token, once a district court determines that the Government has met its burden of proving that a naturalized citizen obtained his citizenship illegally or by willful misrepresentation, it has no discretion to excuse the conduct. Indeed, contrary to the District Court's suggestion, see supra, at 503, this issue has been settled by prior decisions of this Court. In case after case, we have rejected lower court efforts to moderate or otherwise avoid the statutory mandate of Congress in denaturalization proceedings. For example, in United States v. Ness, 245 U.S. 319, 38 S.Ct. 118, 62 L.Ed. 321 (1917), we ordered the denaturalization of an individual who "possessed the personal qualifications which entitled aliens to admission and to citizenship,"id., at 321, 38 S.Ct., at 119, but who had failed to file a certificate of arrival as required by statute. We explained that there was "no power . . . vested in the naturalization court to dispense with" this requirement. Id., at 324, 38 S.Ct., at 120. We repeat here what we said in one of these earlier cases:
35
"An alien who seeks political rights as a member of this Nation can rightfully obtain them only upon the terms and conditions specified by Congress. Courts are without authority to sanction changes or modifications; their duty is rigidly to enforce the legislative will in respect of a matter so vital to the public welfare. United States v. Ginsberg, 243 U.S., at 474-475, 37 S.Ct., at 425.
36
See Maney v. United States, 278 U.S., at 22-23, 49 S.Ct., at 15-16; Johannessen v. United States, 225 U.S., at 241-242, 32 S.Ct., at 616-617.
37
In sum, we hold that petitioner's citizenship must be revoked under 8 U.S.C. § 1451(a) because it was illegally procured. Accordingly, the judgment of the Court of Appeals is affirmed.40
38
So ordered.
39
THE CHIEF JUSTICE concurs in the judgment.
40
Justice BLACKMUN, concurring in the judgment.
41
I agree with much of the Court's reasoning as well as with the result it reaches. I am perplexed, however, by the Court's reluctance, ante, at 508-509, to apply the materiality standard of Chaunt v. United States, 364 U.S. 350, 81 S.Ct. 147, 5 L.Ed.2d 120 (1960), to petitioner's circumstances. I write separately to express my understanding that application of Chaunt would yield no different result here and to state my belief that a standard as rigorous as Chaunt's is necessary to protect the rights of our naturalized citizens.
42
In Chaunt, the issue presented was whether failure to reveal certain prior arrests in response to a question on a citizenship application form constituted misrepresentation or concealment of a material fact for purposes of the denaturalization statute.1 Id., at 351-352, 81 S.Ct., at 148-149. As construed by Chaunt, the statute authorizes denaturalization on the basis of an applicant's failure to disclose suppressed facts which (1) "if known, would have warranted denial of citizenship," or (2) "might have been useful in an investigation possibly leading to the discovery of other facts warranting denial of citizenship." Id., at 355, 81 S.Ct., at 150.
43
The Court says that Chaunt need not be invoked when denaturalization is premised on deliberate misstatements at the visa application stage, but does not explain why this is so. I fail to see any relevant limitation in the Chaunt decision or the governing statute that bars Chaunt's application to this case. By its terms, the denaturalization statute at the time of Chaunt, as now, was not restricted to any single stage of the citizenship process.2 Although in Chaunt the nondisclosures arose in response to a question on a citizenship application form filed some years after the applicant first arrived in this country, nothing in the language or import of the opinion suggests that omissions or false statements should be assessed differently when they are tendered upon initial entry into this country. If such a distinction was intended, it has eluded the several courts that unquestioningly have appliedChaunt's materiality standard when reviewing alleged distortions in the visa request process. See, e. g., Kassab v. Immigration & Naturalization Service, 364 F.2d 806 (CA6 1966); United States v. Rossi, 299 F.2d 650 (CA9 1962); Langhammer v. Hamilton, 295 F.2d 642 (CA1 1961).
44
I doubt that the failure of these courts to raise any question about the relevance of Chaunt was an oversight. It is far from clear to me that the materiality of facts should vary because of the time at which they are concealed or misrepresented. Nor do I see why the events or activities underlying these facts become more or less material depending upon the country in which they transpired.3 In each context, the inquiry concerning nondisclosure addresses the same fundamental issue: did the applicant shield from review facts material to his eligibility for citizenship?
45
In Chaunt, the Court articulated two approaches to provide guidance and uniformity in such inquiries. The Court today adopts what it considers a new and minimal definition of materiality: it announces that a misrepresentation is material "if disclosure of the true facts would have made the applicant ineligible for a visa." Ante, at 509. This standard bears no small resemblance to the "first test" of Chaunt, for it too deems material those facts "which, if known, would have warranted denial of" eligibility. 364 U.S., at 355, 81 S.Ct., at 150. Because I see no effective difference between the standards, nor any persuasive grounds for contriving a difference, I would rely explicitly upon the Chaunt test here and avoid risking the confusion that is likely to be engendered by multiple standards.4
46
Application of Chaunt to the instant record would not result in any significant departure from the Court's basic analysis. As the Court notes, ante, at 500, petitioner admitted at trial that he deliberately misrepresented his wartime activities and whereabouts when communicating with representatives of the Displaced Persons Commission during the visa application process. Record 1518-1522.5 The expert testimony of former Vice Consul Jenkins demonstrates convincingly that an applicant who had served as a concentration camp guard would not have qualified for a displaced person's visa.6 The determination to exclude persons who had assisted in persecuting civilians was grounded in a clear statutory mandate,7 and uncontroverted testimony established that the statute was consistently applied in just this fashion against individuals in petitioner's position.8 Under these circumstances, I agree with the Court that petitioner's true activities, if known, would certainly have warranted denial of his visa application. Without a valid visa, petitioner could not have been considered for status as a United States citizen. Having proved this much by clear and convincing evidence, the Government has satisfied the first test of Chaunt.
47
This test strikes a careful and necessary balance between the Government's commitment to supervising the citizenship process and the naturalized citizen's interest in preserving his status. The individual seeks to retain his citizenship right to full and equal status in our national community, a right conferring benefits of inestimable value upon those who possess it. The freedoms and opportunities secured by United States citizenship long have been treasured by persons fortunate enough to be born with them, and are yearned for by countless less fortunate. Indeed, citizenship has been described as "man's basic right for it is nothing less than the right to have rights."9 and the effects of its loss justly have been called "more serious than a taking of one's property, or the imposition of a fine or other penalty."10 Where, as here, the Government seeks to revoke this right, the Court consistently and forcefully has held that it may do so only on scrupulously clear justification and proof. Costello v. United States, 365 U.S. 265, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961); Nowak v. United States, 356 U.S. 660, 78 S.Ct. 955, 2 L.Ed.2d 1048 (1958); Knauer v. United States, 328 U.S. 654, 66 S.Ct. 1304, 90 L.Ed. 1500 (1946); Baumgartner v. United States, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525 (1944); Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796 (1943). Before sustaining any decision to impose the grave consequences of denaturalization, the Court has regarded it as its duty "to scrutinize the record with the utmost care,"11 construing "the facts and the law . . . as far as is reasonably possible in favor of the citizen."12
48
The Chaunt decision is properly attentive to this long-recognized unique interest in citizenship, and I must join the Court in not accepting the reasoning of the Court of Appeals, which would have diluted the materiality standard. The Court of Appeals reasoned that materiality was established if the nondisclosed facts would have triggered an inquiry that might have uncovered other unproved and disqualifying facts. See 597 F.2d 946, 950-951 (CA5 1979). By concluding that the Government has demonstrated the actual existence of disqualifying facts—facts that themselves would have warranted denial of petitioner's citizenship—this Court adheres to a more rigorous standard of proof. I believe that Chaunt indeed contemplated only this rigorous standard, and I suspect the Court's reluctance explicitly to apply it stems from a desire to sidestep the confusion over whether Chaunt created more than one standard.
49
Chaunt, to be sure, did announce a disjunctive approach to the inquiry into materiality, but several factors support the conclusion that under either "test" the Government's task is the same: it must prove the existence of disqualifying facts, not simply facts that might lead to hypothesized disqualifying facts. First, this Court's reasoning before Chaunt contains no suggestion that a naturalized citizen would be reduced to alien status merely because a thwarted Government inquiry might have shown him to be unqualified. Instead, the Court has been willing to approve denaturalization only upon a clear and convincing showing that the prescribed statutory conditions of citizenship had never been met. This, it seems to me, is the clear import of the Court's exhaustive reviews in Nowak v. United States, 356 U.S., at 663-668, 78 S.Ct., at 957-960; Knauer v. United States, 328 U.S., at 656-669, 66 S.Ct., at 1306-1312; Baumgartner v. United States, 322 U.S., at 666-678, 64 S.Ct., at 1241-1247; and Schneiderman v. United States, 320 U.S., at 131-159, 63 S.Ct., at 1339-1353. Of course, the Government's ability to investigate with vigor may be affected adversely by its inability to discover that certain facts have been suppressed. The standard announced by the Court of Appeals, however, seems to me to transform this interest in unhampered investigation into an end in itself. Application of that Court's standard suggests that a deliberately false answer to any question the Government deems worth asking may be considered material. I do not believe that such a weak standard of proof was ever contemplated by this Court's decisions prior to Chaunt.
50
Instead, I conclude that the Court in Chaunt intended to follow its earlier cases, and that its "two tests" are simply two methods by which the existence of ultimate disqualifying facts might be proved. This reading of Chaunt is consistent with the actual language of the so-called second test;13 it also appears to be the meaning that the dissent in Chaunt believed the Court to have intended.14
51
Significantly, this view accords with the policy considerations informing the Court's decisions in the area of denaturalization. If naturalization can be revoked years or decades after it is conferred, on the mere suspicion that cer tain undisclosed facts might have warranted exclusion, I fear that the valued rights of citizenship are in danger of erosion. If the weaker standard were employed, I doubt that the denaturalization process would remain as careful as it has been in the past in situations where a citizen's allegedly material misstatements were closely tied to his expression of political beliefs or activities implicating the First Amendment.15 Citizenship determinations continue to involve judgments about a person's "good moral character" or his attachment "to the principles of the Constitution," see 8 U.S.C. § 1427(a), and the judiciary's task remains the difficult one of balancing a need to safeguard admission to United States citizenship, in accord with the will of Congress, against a citizen's right to feel secure in the exercise of his constitutional freedoms. By concluding that an impaired investigation may justify the loss of these freedoms, the Court of Appeals threatens to leave the naturalized citizen with "nothing more than citizenship in attenuated, if not suspended, animation."16 The Court seems to reject this approach, and follows the essential teaching of Chaunt. I regret only its unwillingness to say so.
52
Justice WHITE, dissenting.
53
The primary issue presented in the petition for certiorari was whether the Court of Appeals had properly interpreted the test articulated in Chaunt v. United States, 364 U.S. 350, 81 S.Ct. 147, 5 L.Ed.2d 120 (1960), for determining whether an individual procured his citizenship by concealment or misrepresentation of a "material" fact. In Chaunt the Government sought to revoke an individual's citizenship because he had not disclosed certain facts in his application for citizenship.1 Although Chaunt did not address the standard of materiality with respect to visa applications, the parties before this Court have assumed that the Chaunt test should be used to determine whether petitioner concealed material facts when he applied for a visa.2
54
Recognizing that the relevance of Chaunt to visa applications may be problematic, the majority turns to a wholly separate ground to decide this case, resting its decision on its interpretation of "adopted" § 2(a) of the Displaced Persons Act (see ante, at 510, n. 31). I am reluctant to resolve the issue of whether Chaunt extends to visa applications, since the parties have neither briefed nor argued the point. However, I am equally reluctant to adopt the course chosen by the majority, for the language of § 2(a) is not entirely unambiguous,3 and the parties have not addressed the proper interpretation of the statute.4 Under these circumstances, I would simply clarify the Chaunt materiality test and then remand to the Court of Appeals to review the District Court's findings on petitioner's concealment at the time he applied for citizenship.
55
In Chaunt the Court stated that to prove misrepresentation or concealment of a material fact the Government must prove by clear and convincing evidence
56
"either (1) that facts were suppressed which, if known, would have warranted denial of citizenship or (2) that their disclosure might have been useful in an investigation possibly leading to the discovery of other facts warranting denial of citizenship." 364 U.S., at 355, 81 S.Ct., at 151.5
57
Under the District Court's interpretation of the second Chaunt test and that urged by petitioner, the Government would be required to prove that an investigation prompted by a complete, truthful response would have revealed facts justifying denial of citizenship.6 The Court of Appeals and the Government contend that under the second Chaunt test the Government must prove only that such an investigation might have led to the discovery of facts justifying denial of citizenship.7 In my opinion, the latter interpretation is correct.8 If the District Court's interpretation were adopted, the Government would bear the heavy, and in many cases impossible, burden of proving the true facts that existed many years prior to the time the defendant applied for citizenship, whether it proceeded under the first or the second Chaunt test. This definition of "materiality," by greatly improving the odds that concealment would be successful, would encourage applicants to withhold information, since the Government would often be unable to meet its burden by the time the concealment was discovered.
58
In this case, the Government alleged that when petitioner filled out his application for citizenship, he willfully concealed that he had served as an armed guard for the Germans during the war. Petitioner failed to disclose this information, although the application form required him to list his past or present membership in any organization in the United States or elsewhere, including foreign military service. Although the Government produced evidence to support a finding of materiality under its interpretation of the second Chaunt test,9 the District Court concluded that petitioner's service as an armed guard for the Germans was immaterial under the District Court's interpretation of Chaunt. It also found that the nondisclosure was not willful.10
59
The Court of Appeals failed to review this portion of the District Court's opinion. Instead, it focused solely on whether petitioner had willfully concealed or misrepresented material facts when he applied for a visa. Therefore, I would vacate the judgment of the Court of Appeals and remand the case to that court to review the District Court's application of the Chaunt test to petitioner's concealment at the time he applied for citizenship.11
60
Justice STEVENS, dissenting.
61
The story of this litigation is depressing. The Government failed to prove its right to relief on any of several theories advanced in the District Court. The Court of Appeals reversed on an untenable ground. Today this Court affirms on a theory that no litigant argued, that the Government expressly disavowed, and that may jeopardize the citizenship of countless survivors of Nazi concentration camps.
62
The seven-count complaint filed by the Government in the District Court prayed for a revocation of petitioner's citizenship on four different theories: (1) that his entry visa was invalid because he had misstated his birthplace and place of residence and therefore he had never been lawfully admitted to the United States; (2) that he committed war crimes or atrocities and therefore was not eligible for admission as a displaced person; (3) that he made material misstatements on his application for citizenship in 1970; and (4) that he was not a person of good moral character when he received his American citizenship. After a long trial, the District Court concluded that the Government had failed to prove its case.
63
The trial judge was apparently convinced that the suggestive identification procedures endorsed by the prosecution had resulted in a misidentification of petitioner; that petitioner had not performed the atrocious acts witnessed by the survivors of Treblinka who testified;1 that Vice Consul Jenkins' testimony was not entirely reliable;2 and that for the most part petitioner was a truthful witness. 455 F.Supp. 893, 906-909. The District Judge specifically found that petitioner's visa was valid and that petitioner therefore lawfully entered the United States, id., at 916; that his service at Treblinka was involuntary, id., at 914; that he made no misstatements in his application for citizenship, id., at 917; and that he was a person of good moral character. Ibid. As an alternative basis for decision, the District Court concluded that because the Government had failed to prove that petitioner committed any atrocities at Treblinka, his record as a responsible and law-abiding resident of the United States for 29 years provided an equitable ground for refusing to revoke his citizenship. Id., at 918-920.
64
The Court of Appeals reversed, holding that the District Court committed two errors of law. 597 F.2d 946. First, the Court of Appeals held that the District Court in assessing the materiality of the misstatement in petitioner's 1949 visa application had misapplied this Court's decision in Chaunt v. United States, 364 U.S. 355, 81 S.Ct. 150; second, the Court of Appeals rejected the equitable basis for the District Court's judgment. The Court of Appeals did not, however, disturb any of the District Court's findings of fact.
65
Today the Court declines to endorse the Court of Appeals' first rationale. Because the Chaunt test was formulated in the context of applications for citizenship, and because the only misstatements here were made on petitioner's visa application,3 the Court acknowledges that the Chaunt test is not automatically applicable. The Court does not reach the question of the applicability of Chaunt in the visa context, however, because it concludes that at the very least a misrepresentation is material if disclosure of the true facts would have rendered the applicant ineligible for a visa. Because the Court holds as a matter of law that petitioner's service as a guard at Treblinka, whether or not voluntary, made him ineligible for a visa, petitioner was not legally admitted to the country and hence was not entitled to citizenship.
66
I cannot accept the view that any citizen's past involuntary conduct can provide the basis for stripping him of his American citizenship. The Court's contrary holding today rests entirely on its construction of the Displaced Persons Act of 1948 (DPA). Although the Court purports to consider the materiality of petitioner's misstatements, the Court's construction of the DPA renders those misstatements entirely irrelevant to the decision of this case. Every person who entered the United States pursuant to the authority granted by that statute, who subsequently acquired American citizenship, and who can be shown "to have assisted the enemy in persecuting civil populations"—even under the most severe duress—has no right to retain his or her citizenship. I believe that the Court's construction of the DPA is erroneous and that the Court of Appeals misapplied the Chaunt test.
67
* Section 2(a) of the DPA was "adopted" from the Constitution of the International Refugee Organization (see ante, at 510, n. 31), which described in Part II of Annex I "Persons who will not be [considered as displaced persons]." The second listing had two classifications:
68
"2. Any other persons who can be shown:
69
"(a) to have assisted the enemy in persecuting civil populations of countries, Members of the United Nations; or "(b ) to have voluntarily assisted the enemy forces since the outbreak of the second world war in their operations against the United Nations."
70
The District Court recognized that the section dealing with assisting enemy forces contained the word "voluntarily," while the section dealing with persecuting enemy populations did not. The District Court refused to construe the statute to bar relief to any person who assisted the enemy, whether voluntarily or not, however, because such a construction would have excluded the Jewish prisoners who assisted the §§ in the operation of the concentration camp. 455 F.Supp., at 913. These prisoners performed such tasks as cutting the hair of female prisoners prior to their execution and performing in a camp orchestra as a ruse to conceal the true nature of the camp. I agree without hesitation with the District Court's conclusion that such prisoners did not perform their duties voluntarily and that such prisoners should not be considered excludable under the DPA.4 The Court resolves the dilemma perceived by the District Court by concluding that prisoners who did no more than cut the hair of female inmates before they were executed could not be considered to be assisting the enemy in persecuting civilian populations. See ante, at 512-513, n. 34. Thus the Court would give the word "persecution" some not yet defined specially limited reading. In my opinion, the term "persecution" clearly applies to such conduct; indeed, it probably encompasses almost every aspect of life or death in a concentration camp.
71
The Court's resolution of this issue is particularly unpersuasive when applied to the "kapos," the Jewish prisoners who supervised the Jewish workers at the camp. According to witnesses who survived Treblinka, the kapos were commanded by the §§ to administer beatings to the prisoners, and they did so with just enough force to make the beating appear realistic yet avoid injury to the prisoner. Record 293-295, 300-302 (Kohn), 237 (Turowski).5 Even if we assume that the kapos were completely successful in deceiving the §§ guards and that the beatings caused no injury to other inmates, I believe their conduct would have to be characterized as assisting in the persecution of other prisoners.6 In my view, the reason that such conduct should not make the kapos ineligible for citizenship is that it surely was not voluntary. The fact that the Court's interpretation of the DPA would exclude a group whose actions were uniformly defended by survivors of Treblinka, id., at 236-239 (Turowski), 300 (Kohn), 1157-1159 (Epstein), merely underscores the strained reading the Court has given the statute.7
72
The Government was apparently persuaded by the force of the District Court's reasoning. In the Court of Appeals the Government unequivocally accepted the District Court's view that § 2(a) should be construed to read "persons who can be shown to have voluntarily assisted the enemy."8 The Government did not retreat from that concession before this Court.9 The reasons for agreeing with the Government's interpretation of the statute are compelling.
II
73
If the DPA is correctly construed, petitioner is entitled to retain his citizenship unless the Government proved that he made a material misstatement in his application for citizenship in 1970 or that he was ineligible for citizenship in 1970. Given the District Court's findings that he made no willful misstatement in 1970 and that he had not committed any crimes because his service at Treblinka was involuntary, the challenge to his citizenship rests entirely on the claim that he was not lawfully admitted to the United States in 1949 because he made material misstatements in his visa application. Even if the Chaunt test applies equally to visa applications and citizenship applications, I would hold that the Government failed to satisfy its burden under what I believe to be the proper interpretation of that test.
74
The Court and the parties seem to assume that the Chaunt test contains only two components: (1) whether a truthful answer might have or would have triggered an investigation, and (2) whether such an investigation might have or would have revealed a disqualifying circumstance. Under this characterization of the Chaunt test, the only dispute is what probability is required with respect to each of the two components. There are really three inquiries, however: (1) whether a truthful answer would have led to an investigation, (2) whether a disqualifying circumstance actually existed, and (3) whether it would have been discovered by the investigation. Regardless of whether the misstatement was made on an application for a visa or for citizenship, in my opinion the proper analysis should focus on the first and second components and attach little or no weight to the third. Unless the Government can prove the existence of a circumstance that would have disqualified the applicant, I do not believe that citizenship should be revoked on the basis of speculation about what might have been discovered if an investigation had been initiated. But if the Government can establish the existence of a disqualifying fact, I would consider a willful misstatement material if it were more probable than not that a truthful answer would have prompted more inquiry. Thus I would presume that an investigation, if begun at the time that the misstatement was made, would have been successful in finding whatever the Government is now able to prove. But if the Government is not able to prove the existence of facts that would have made the resident alien ineligible for citizenship at the time he executed his application, I would not denaturalize him on the basis of speculation about what might have been true years ago.
75
The Government in this case failed to prove that petitioner materially misrepresented facts on his citizenship application. Because I do not believe that "adopted" § 2(a) of the DPA applies to persons whose assistance in the persecution of civilian populations was involuntary, and because the District Court found that petitioner's service was not voluntary, it necessarily follows that the Government failed to prove the existence of a disqualifying circumstance with respect to petitioner's visa application.10 The misstatements in that application were therefore not material under a proper application of Chaunt.
76
The gruesome facts recited in this record create what Justice Holmes described as a sort of "hydraulic pressure" that tends to distort our judgment. Perhaps my refusal to acquiesce in the conclusion reached by highly respected colleagues is attributable in part to an overreaction to that pressure. Even after recognizing and discounting that factor, however, I remain firmly convinced that the Court has committed the profoundest sort of error by venturing into the unknown to find a basis for affirming the judgment of the Court of Appeals. That human suffering will be a consequence of today's venture is certainly predictable; that any suffering will be allayed or avoided is at best doubtful.
77
I respectfully dissent.
1
Title 8 U.S.C. § 1451(a) provides in pertinent part:
"It shall be the duty of the United States attorneys . . . to institute proceedings . . . in the judicial district in which the naturalized citizen may reside at the time of bringing suit, for the purpose of revoking and setting aside the order admitting such person to citizenship and canceling the certificate of naturalization on the ground that such order and certificate of naturalization were illegally procured or were procured by concealment of a material fact or by willful misrepresentation. . . ."
2
Historians estimate that some 800,000 people were murdered at Treblinka. See L. Dawidowicz, The War Against the Jews, 1933-1945, p. 149 (1975); R. Hilberg, The Destruction of the European Jews 572 (1978).
The District Court described Treblinka in this manner:
"It contained only living facilities for the §§ and the persons working there. The thousands who arrived daily on the trains had no need for barracks or mess halls: they would be dead before nightfall. It was operated with a barbarous methodology brutally efficient—and such camps surely fill one of the darkest chapters in the annals of human existence, certainly the darkest in that which we call Western civilization." 455 F.Supp. 893, 901, n.12 (SD Fla.1978).
3
The DPA incorporated the definition of "refugees or displaced persons" contained in Annex I to the Constitution of the International Refugee Organization of the United Nations (IRO). See § 2(b), 62 Stat. 1009. The IRO Constitution, 62 Stat. 3037-3055, was ratified by the United States on December 16, 1946 (T. I. A. S. No. 1846) and became effective on August 20, 1948. See 62 Stat. 3037.
4
The IRO Constitution provided that the following persons would not be eligible for refugee or displaced person status:
"1. War criminals, quislings and traitors.
"2. Any other persons who can be shown:
"(a) to have assisted the enemy in persecuting civil populations of countries, Members of the United Nations; or
"(b ) to have voluntarily assisted the enemy forces since the outbreak of the second world war in their operations against the United Nations." Annex I, Part II, 62 Stat. 3051-3052.
5
The IRO was established in 1946 as a temporary specialized agency of the United Nations to deal with all aspects of the refugee problem in postwar Europe. The IRO established and administered a network of camps and resettlement centers where the refugees were registered, housed, fed, and provided with medical care. Where possible, the IRO provided for the refugees' rehabilitation and training, arranged legal protection for as long as they were stateless, and negotiated agreements for resettlement. See generally, L. Holborn, The International Refugee Organization: A Specialized Agency of The United Nations: Its History and Work 1946-1952 (1956).
6
The DPA established a Displaced Persons Commission to oversee and administer the resettlement program envisaged by the Act. 62 Stat. 1012-1013.
7
According to testimony presented at trial by one of the Government's witnesses who served as a vice consul, between 35 and 40 vice consuls were involved in administering the Act. Record 715. Each vice consul spent three months in training in Washington and was then sent to Europe where he received further training before he was put to work reviewing applications. Id., at 711-712, 719-721, 723, 726-727.
8
Petitioner also lied about his birthplace and nationality, claiming that he was born in Sarny, in Poland, when in fact he was born in Sivasch, in the Ukraine. App. 26. However, on November 21, 1950, after he arrived in this country, petitioner filed an Application for a Certificate of Arrival and Preliminary Form for a Declaration of Intention in which he correctly listed his birthplace as Sivasch in the Ukraine. Petitioner again provided the correct information when he filed a similar form on April 7, 1951. 455 F.Supp., at 911.
9
It should be noted that none of the questions in the application for citizenship explicitly required petitioner to disclose this information. Perhaps the most closely related question on the application form was one that required him to list his foreign military service. Petitioner indicated only that he had served in the Russian Army. App. 33.
10
See 455 F.Supp., at 896, n.3.
11
The complaint also charged that petitioner had deliberately made false statements for the purpose of securing his naturalization and had thereby failed to satisfy the statutory requirement of good moral character during the 5-year period immediately preceding the filing of his application for naturalization. See 8 U.S.C. § 1427(a).
12
One witness Eugeun Turowski, testified that he saw petitioner shoot and whip Jewish prisoners at the camp. Record 134-136. Another, Schalom Kohn, testified that he saw petitioner almost every day for the first few months Kohn was at Treblinka, id., at 262-263, that petitioner beat him with an iron-tipped whip, and that he saw petitioner whip and shoot other prisoners. Id., at 268, 271, 322-323. The third witness, Josef Czarny, claimed that he saw petitioner beat arriving prisoners, id., at 434, and that he once saw him shoot a prisoner. Id., at 435-442. Gustaw Boraks testified that he saw petitioner repeatedly chase prisoners to the gas chambers, beating them as they went. Id., at 886-888. Boraks also claimed that on one occasion, he heard a shot and ran outside to see petitioner, with a gun drawn, standing close to a wounded woman who later told him that petitioner was responsible for the shooting. Id., at 630-634. Sonia Lewkowicz testified that she saw petitioner shoot a Jewish prisoner. Id., at 973, 1013-1015, 1039-1040. Finally, Pinchas Epstein testified that petitioner shot and killed a friend of his, after making him crawl naked on all fours. Id., at 1056-1070.
13
The vice consul's decision could be overridden by the consul general, but Jenkins testified that he knew of no situation in which this happened. Id., at 721-722.
14
On the basis of the vice consuls' experiences, Jenkins discounted the possibility that any concentration camp guards had served involuntarily. Id., at 756, 772, 795-796. Jenkins reported that all the guards who were questioned by the consular officials about their reasons for serving as guards invariably admitted that their service was voluntary. Id., at 807-808. In addition, Jenkins testified that even if an applicant refused to acknowledge that his service as an armed guard was voluntary, he would still have been denied a visa. Id., at 822-826.
15
Jenkins testified that at times concentration camp survivors who recognized a visa applicant as a guard would notify consular officials who in turn investigated the matter. If the accusation proved true, the applicant was confronted with it and invariably found ineligible for a visa. Id., at 804, 807, 826-827.
16
Petitioner testified that there were between 120 and 150 armed Russian guards and some 20 to 30 Germans. Id., at 1444-1445.
17
Petitioner testified that between 15 and 20 Russian guards escaped from the camp. Four were caught and apparently executed, but petitioner testified that he did not know what happened to the others. Id., at 1535-1536, 1555.
18
The court also noted that there was no dispute about the fact that petitioner lied when he listed his birthplace as Sarny, Poland. 455 F.Supp., at 914.
19
The court rejected the witnesses' pretrial identifications because it found the photo spreads from which the identifications were made impermissibly suggestive. The court also rejected the in-court identifications of three of the witnesses. The court noted that the first witness initially picked out a spectator in the courtroom and only identified petitioner when it became obvious from the crowd reaction that he had made a mistake. The other two witnesses identified petitioner who was seated at counsel table surrounded by much younger men. The court concluded that the courtroom identifications were tainted by the photo identification and by discussion of the case among the witnesses.
The court also found credibility problems with the testimony of the Treblinka survivors, and it concluded that "[e]ven without defendant's testimony, the Government's evidence on the claimed commission of atrocities . . . fell short of meeting the 'clear, convincing and unequivocal' burden of proof. . . . With defendant's testimony the Government's evidence . . . left the court with suspicions about whether defendant participated in atrocities at Treblinka but they were only suspicions." Id., at 909.
20
United States v. Riela, 337 F.2d 986 (CA3 1964); United States v. Rossi, 299 F.2d 650 (CA9 1962); La Madrid-Peraza v. Immigration and Naturalization Service, 492 F.2d 1297 (CA9 1974).
21
The court also found that petitioner's false statements about his birthplace and nationality were not "material" misrepresentations. The court explained that the true facts would not of themselves have justified denial of citizenship since Ukrainians per se were not excluded under the DPA. The court also noted that petitioner disclosed the truth about his place of birth and nationality when he filed Declarations of Intention in 1950 and 1951, and that the INS examiner who interviewed petitioner in connection with his application for citizenship testified that his previous false statements about these questions were not a cause for concern. 455 F.Supp., at 915.
22
The Court of Appeals explained that the District Court's interpretation "destroyed the utility of the second Chaunt test, since it would require, as does the first Chaunt test, that the government prove ultimate facts warranting denial of citizenship." 597 F.2d, at 951. The court also pointed out that adopting the District Court's view would provide a strong incentive to an applicant for a visa or citizenship to lie about his background and thereby prevent an inquiry into his fitness at a time when he has the burden of proving eligibility. If his deception were later uncovered, the Government would face the difficult tasks of conducting an inquiry into his past, discovering facts warranting disqualification, and proving those facts by clear and convincing evidence. Ibid.
23
The Court of Appeals noted that its formulation of the second Chaunt test was adopted by the Second Circuit in United States v. Oddo, 314 F.2d 115, cert. denied, 375 U.S. 833, 84 S.Ct. 50, 11 L.Ed.2d 63 (1963).
24
Because it ruled in favor of the Government under the second Chaunt test, the Court of Appeals had no reason to consider the Government's claim that, contrary to the District Court's findings, the evidence at trial clearly and convincingly proved that petitioner committed crimes and atrocities against inmates while he was an armed guard at Treblinka. We accept, for purposes of this case, the District Court's findings on this issue.
25
The Constitution empowers Congress to "establish an uniform Rule of Naturalization." Art. I, § 8, cl. 4.
26
That petitioner gave these false statements because he was motivated by fear of repatriation to the Soviet Union indicates that he understood that disclosing the truth would have affected his chances of being admitted to the United States and confirms that his misrepresentation was willful.
27
See Brief for United States 18, n.13.
28
Although the denaturalization statute speaks in terms of "willful misrepresentation" or "concealment of a material fact," this Court has indicated that the concealment, no less than the misrepresentation, must be willful and that the misrepresentation must also relate to a material fact. See Costello v. United States, 365 U.S. 265, 271-272, n.3, 81 S.Ct. 534, 537-538, 5 L.Ed.2d 551 (1961). Logically, the same principle should govern the interpretation of this provision of the DPA.
29
One question on the form Chaunt submitted in connection with his petition for citizenship, asked if he had ever "been arrested or charged with violation of any law of the United States or State or city ordinance or traffic regulation" and if so give full particulars. To this question Chaunt answered "no."
30
Neither the District Court nor the Court of Appeals directly focused on the distinction between false statements in a visa application and false statements in an application for citizenship. The District Court's opinion suggests that it concluded that there were no willful misrepresentations in petitioner's 1970 application for citizenship. See 455 F.Supp., at 916-917. The Court of Appeals characterized the case as involving "a misrepresentation by nondisclosure." 597 F.2d, at 947.
31
Hereafter, references to §§ 2(a) and 2(b), rather than referring to §§ 2(a) and 2(b) of the DPA, follow the designation of the definitional provisions in the IRO Constitution, see 62 Stat. 3051-3052, incorporated in § 2(b) of the DPA.
32
Jenkins testified as follows:
"Q If through investigation or interview you had determined that [a visa] applicant in fact did serve at a death camp . . . in occupied Poland as a Ukrainian Guard would you have denied the visa application?
"A Yes, I would.
"Q And in your expert opinion would such a person have qualified as an eligible displaced person?
"A No, he would not have.
"Q I may have asked this question, if I have permit me to ask it again, . . . you are aware of any case whatsoever in which an axis auxiliary who served in a capacity as a camp guard was ever legally qualified as a displaced person?
"A No, I am not. I am reasonably certain that there was no such case.
* * * * *
"Q Mr. Jenkins, referring to the last question and answer, would it have made any difference whatsoever to you as a visa officer if the person could have been proven to have been a guard but you could not prove that he committed an atrocity?
"A No.
"The Court: Why? Why?
"The Witness: Because under the Displaced Persons Act and in the International Refugee Organization constitution by . . . definition such a person could not be a displaced person." Record 767-768.
On cross-examination, Jenkins was asked:
"Q Despite the apparent assumption that a guard at a concentration camp was there voluntarily, a non-German was there voluntarily, if a non-German guard came to you and said to you that his service there was involuntary would that guard have been eligible under the Displaced Persons Act and would he have been granted a visa?
"A I don't believe so. In the first place I can't imagine his hypothetical situation. And secondly, I think the language of the Act is so clear that participation or even acquiesce[nce] in really doesn't leave the
vice consul that kind of latitude.
* * * * *
"The Court: . . . What is there about it that would make you think it was so clear that you had no latitude, if he had according to the hypothetical, persuaded you that his service as a guard was involuntary? How would that differ from involuntary service in the Waffen §§ [Axis combat unit]?
"A Because the crime against humanity that is involved in the concentration camp puts it into a different category. . . ." Id., at 822-823.
33
The District Court felt compelled to impose a voluntariness requirement because it was concerned that a literal interpretation of § 2(a) would "bar every Jewish prisoner who survived Treblinka because each one of them assisted the §§ in the operation of the camp." 455 F.Supp., at 913. The court noted that working prisoners led arriving prisoners to the lazaret where they were murdered, cut the hair of the women who were to be executed, or played in the orchestra at the gate to the camp as part of the Germans' ruse to persuade new arrivals that the camp was other than what it was. The court pointed out that such actions could technically be deemed assistance, and concluded that it would be "absurd to deem their conduct 'assistance or acquiescence' inasmuch as it was involuntary—even though the word 'voluntarily' was omitted from the definition." Ibid. In addition, the court noted that Jenkins testified that visa applicants who had served in Axis combat units and who could prove that their service was involuntary were found eligible for visas. Id., at 912. But see n.34, infra.
34
The solution to the problem perceived by the District Court, see n.33, supra, lies, not in "interpreting" the Act to include a voluntariness requirement that the statute itself does not impose, but in focusing on whether particular conduct can be considered assisting in the persecution of civilians. Thus, an individual who did no more than cut the hair of female inmates before they were executed cannot be found to have assisted in the persecution of civilians. On the other hand, there can be no question that a guard who was issued a uniform and armed with a rifle and a pistol, who was paid a stipend and was regularly allowed to leave the concentration camp to visit a nearby village, and who admitted to shooting at escaping inmates on orders from the commandant of the camp, fits within the statutory language about persons who assisted in the persecution of civilians. Other cases may present more difficult line-drawing problems but we need decide only this case. As for the District Court's concern about the different treatment given to visa applicants who had served in Axis combat units who were found eligible for visas if they could show that they had served involuntarily, this distinction was made by the Act itself.
35
The District Court refused to give conclusive weight to Jenkins' testimony on this issue largely because if felt that Jenkins' testimony did not recognize the "voluntariness" exception that the court read into § 2(a). However, Jenkins' testimony was in accordance with the plain language of the statute. Because the District Court mistakenly applied the law to the facts of this case in concluding that petitioner was lawfully admitted into this country, 455 F.Supp., at 915, we reject its conclusion.
The dissenting opinion of Justice Stevens argues that the Government "expressly disavowed" our interpretation of the DPA, post, at 530, and that the Government "unequivocally accepted," the District Court's construction of § 2(a), post, at 535. Elsewhere, the dissent suggests that the District Court's construction is "the Government's interpretation of the statute," post, at 536. The sole basis for these assertions is a footnote in the Government's brief in the Court of Appeals which merely stated: "The United States has no quarrel with [the District Court's] construction [of § 2(a)] in this case" (emphasis added). In our judgment, none of the dissent's claims is borne out by this statement. The suggestion that the Government "unequivocally accepted" the District Court's interpretation of the Act is at best an exaggeration, and we have found no evidence in the record or briefs in this case of the Government's "express disavowal" of our construction of § 2(a). Furthermore, being neither endowed with psychic powers nor privy to the Government's deliberations, we cannot join Justice Stevens, see post, at 535-536, in speculating about the reasons that the Government chose not to "quarrel with" the District Court's interpretation of § 2(a) "in this case."
As for Justice STEVENS' belief that our interpretation of the statute is "erroneous," see post, at 533, we simply note that he is unable to point to anything in the language of the Act that justifies reading into § 2(a) the "voluntariness" limitation that Congress omitted. Thus, we must conclude that Justice Stevens' real quarrel is with Congress, which drafted the statute. It is not the function of the courts to amend statutes under the guise of "statutory interpretation." See Potomac Electric Power Co. v. Director, Office of Workers' Compensation Programs, 449 U.S. 268, 274, 101 S.Ct. 509, 513, 66 L.Ed.2d 446. Finally, since the term "persecution" does not apply to some of the tasks performed by concentration camp inmates, see n. 34, supra, we reject the speculation that our decision "may jeopardize the citizenship of countless survivors of Nazi concentration camps," post, at 530 (STEVENS, J., dissenting).
36
Title 8 U.S.C. § 1429 provides in pertinent part: "[N]o person shall be naturalized unless he has been lawfully admitted to the United States for permanent residence in accordance with all applicable provisions of this chapter." See also 8 U.S.C. § 1427(a).
37
The same requirement is now contained in 8 U.S.C. § 1181(a) which provides that "no immigrant shall be admitted into the United States unless at the time of application for admission he (1) has a valid unexpired immigrant visa. . . ."
38
See H.R.Rep.No.1086, 87th Cong., 1st Sess., 39 (1961) (Citizenship is illegally procured if "some statutory requirement which is a condition precedent to naturalization is absent at the time the petition [for naturalization is] granted").
39
Courts must consider the facts and circumstances in deciding whether an applicant satisfies such requirements for naturalization as good moral character and an understanding of the English language, American history, and civics. See 8 U.S.C. §§ 1423, 1427(d).
40
Our decision makes it unnecessary to resolve the question whether the Court of Appeals correctly interpreted the materiality test enunciated in Chaunt.
1
The statute is § 340(a) of the Immigration and Nationality Act of 1952, 66 Stat. 260, as amended, 8 U.S.C. § 1451(a). Its relevant provisions are quoted ante, at 493, n. 1.
2
Except for the prohibition against "illegally procured" citizenship, added in 1961 by Pub.L. 87-301, § 18(a), 75 Stat. 656, the statute today is unchanged from the version considered in Chaunt. Now, as then, it authorizes the initiation of denaturalization proceedings should the Government discover that the order admitting a person to citizenship was "procured by concealment of a material fact or by willful misrepresentation." In accord with the Court's prior construction of this phrase, both the concealment and the misrepresentation must be willful, and each must also relate to a material fact. Ante, at 507-508, n. 28, citing Costello v. United States, 365 U.S. 265, 271-272, n. 3, 81 S.Ct. 534, 537-538, 5 L.Ed.2d 551 (1961).
3
This discussion of materiality relates only to proceedings brought by the Government to denaturalize a United States citizen. I do not mean to suggest that, for purposes of attaining citizenship, a misrepresentation must be analyzed in an identical fashion. The immigration law historically has afforded greater protections to persons already admitted to citizenship than to those seeking to obtain its privileges and benefits. This choice, however, reflects a judgment that the weighty interest in citizenship should be neither casually conferred nor lightly revoked. See Berenyi v. District Director, 385 U.S. 630, 636-637, 87 S.Ct. 666, 670-671, 17 L.Ed.2d 656 (1967). In view of petitioner's status as a United States citizen, it is unnecessary to consider here the question of materiality at the naturalization stage.
4
Confusion to some extent is already present. We granted certiorari in this case primarily to resolve conflicting interpretations of the Chaunt materiality standard. Compare United States v. Riela, 337 F.2d 986 (CA3 1964), and United States v. Rossi, 299 F.2d 650 (CA9 1962), with Kassab v. Immigration & Naturalization Service, 364 F.2d 806 (CA6 1966), and Langhammer v. Hamilton, 295 F.2d 642 (CA1 1961).
5
Justice WHITE's observation in dissent, post at 529, and n. 10, is not to the contrary. The District Court found a lack of willfulness with respect to the nondisclosure on petitioner's citizenship application form, completed in 1969. As the Court correctly observes, ante, at 507, n. 26, petitioner's misrepresentations at the visa application stage were plainly willful.
6
Record 766-768, 822-823, substantially reproduced, ante, at 510-511, n. 31. Jenkins further testified at length that, based on his knowledge and experience, "involuntary" guard service in Nazi concentration camps was unknown and virtually inconceivable. Record 754-758, 807-808, 823-824. While I find much of this testimony persuasive, I do not need to rely upon it here since petitioner's ineligibility for a visa is independently established. See nn. 7 and 8, infra.
7
The Displaced Persons Act, 62 Stat. 1009, enabled refugees driven from their homelands during and after World War II to emigrate to the United States without regard to traditional immigration quotas. Eligibility was extended consistent with requirements set forth in Annex I to the Constitution of the International Refugee Organization of the United Nations. This excluded the following displaced persons from its ambit of concern:
"1. War criminals, quislings and traitors.
"2. Any other persons who can be shown:
"(a) to have assisted the enemy in persecuting civil populations of countries, Members of the United Nations; or
"(b ) to have voluntarily assisted the enemy forces since the outbreak of the second world war in their operations against the United Nations." Annex I, Part II, 62 Stat. 3051-3052.
8
Record 766-768. See also id., at 790 (concentration camp guards themselves understood that admission of their former status, without more, was enough to render them ineligible).
9
Perez v. Brownell, 356 U.S. 44, 64, 78 S.Ct. 568, 579, 2 L.Ed.2d 603 (1958) (Warren, C. J., dissenting).
10
Schneiderman v. United States, 320 U.S. 118, 122, 63 S.Ct. 1333, 1335, 87 L.Ed. 1796 (1943).
11
Nowak v. United States, 356 U.S. 660, 663, 78 S.Ct. 955, 957, 2 L.Ed.2d 1048 (1958).
12
Schneiderman v. United States, 320 U.S., at 122, 63 S.Ct., at 1335.
13
Under the "second test" in Chaunt, the Government is required to prove with respect to suppressed facts "that their disclosure might have been useful in an investigation possibly leading to the discovery of other facts warranting denial of citizenship." 364 U.S., at 355, 81 S.Ct., at 150. The Court of Appeals in effect construes the word "possibly" to modify the entire following phrase. I believe the sounder construction is that adopted by the District Court, see 455 F.Supp. 893, 915-916 (S.D. Fla.1978), whereby the word "possibly" modifies only the first part of the ensuing phrase. Because what would "possibly" be discovered is not "facts which might warrant denial of citizenship" but "other facts warranting denial of citizenship" (emphasis supplied), the "second test" simply asks whether knowledge of the suppressed facts could have enabled the Government to reach the ultimate disqualifying facts whose existence is now known. See also 364 U.S., at 353, 81 S.Ct., at 149 (second test stated as whether "disclosure of the true facts might have led to the discovery of other facts which would justify denial of citizenship").
14
The dissent in Chaunt proposed its own standard, which it apparently believed was at odds with what the Court had adopted:
"The test is not whether the truthful answer in itself, or the facts discovered through an investigation prompted by that answer, would have justified a denial of citizenship. It is whether the falsification, by misleading the examining officer, forestalled an investigation which might have resulted in the defeat of petitioner's application for naturalization." Id., at 357, 81 S.Ct., at 151. (Emphasis in original.)
The dissent also voiced concern that the Court, by imposing such a heavy burden of proof on the Government in denaturalization proceedings, in effect would invite dishonesty from future applicants for citizenship. Ibid. Justice WHITE in dissent today expresses the same concern. Post, at 529. It of course is never easy to demonstrate the existence of statements or events that occurred long ago. Records and witnesses disappear, memories fade, and even the actor's personal knowledge becomes less reliable. While recognizing the arduous nature of the task, the Court nonetheless has insisted that the Government meet a very high standard of proof in denaturalization proceedings. Chaunt's rigorous definition of materiality, it is true, may occasionally benefit an applicant who conceals disqualifying information. Yet, practically and constitutionally, naturalized citizens as a class are not less trustworthy or reliable than the native-born. The procedural protection of the high standard of proof is necessary to assure the naturalized citizen his right, equally with the native-born, to enjoy the benefits of citizenship in confidence and without fear.
15
Chaunt's prior activities involved distributing handbills and speaking in a public park, activities that merit a high degree of First Amendment protection. See also Schneiderman v. United States, supra (membership in Communist Party in the United States); Nowak v. United States, supra (same).
16
Schneiderman v. United States, 320 U.S., at 166, 63 S.Ct., at 1356 (Rutledge, J., concurring).
1
Section 340(a) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1451(a), quoted in pertinent part in the majority opinion, ante, at 493, n. 1, directs the Government to seek revocation of citizenship that was "procured by concealment of a material fact or by willful misrepresentation."
2
Similarly, both the District Court and the Court of Appeals assumed that the Chaunt materiality test should be applied to the Government's claim that petitioner concealed material information when he applied for a visa.
3
The majority asserts that the plain language of the statute compels the conclusion that § 2(a) excluded all those who assisted the enemy in persecuting civil populations, even those who involuntarily assisted the enemy. The majority explains in a footnote that under § 2(a) one must focus on whether the individual assisted the enemy in persecuting civil populations, ante, at 512-513, n. 34, rather than focusing on voluntariness. Yet one could argue that the words "assist" and "persecute" suggest that § 2(a) would not apply to an individual whose actions were truly coerced.
4
The Government did not contend that § 2(a) of the Displaced Persons Act should be interpreted as excluding persons who involuntarily assisted the enemy in persecuting civil populations. Rather, it argued that the finding that petitioner had "involuntarily" served as a concentration camp guard was clearly erroneous. It therefore urged us to affirm on the ground that the first Chaunt test had been satisfied.
5
In Chaunt the Court also observed that complete, honest replies to all relevant questions are essential, not only because concealed facts might in and of themselves justify denial of citizenship but also because "disclosure of the true facts might have led to the discovery of other facts which would justify denial of citizenship." 364 U.S., at 352-353, 81 S.Ct., at 149-150.
6
455 F.Supp. 893, 915-916 (S.D.Fla.1978).
7
597 F.2d 946, 951 (CA5 1979).
8
The Government should be required to prove that an investigation would have occurred if a truthful response had been given, and that the investigation might have uncovered facts justifying denial of citizenship. The defendant could rebut the Government's showing that the investigation might have led to the discovery of facts justifying denial of citizenship by establishing that the underlying facts would not have justified denial of citizenship.
9
The naturalization examiner who processed petitioner's application testified at trial that if petitioner had disclosed his service as an armed guard with the Germans during the war, the examiner would not have made any recommendation regarding petitioner's application for citizenship until an investigation had been conducted. He also testified that if the investigation had disclosed that petitioner had physically hurt Jewish prisoners while serving as a guard at Treblinka, the examiner would have recommended that petitioner's application for citizenship be denied, either on the ground that petitioner lacked good moral character or on the ground that he had not been properly admitted into the United States. Waterbury, Conn., Trial Transcript, 147-148.
10
The District Court decided that petitioner's failure to disclose that he had served as an armed guard for the Germans was not willful, since "there would be strong reason in [petitioner's] mind to view himself as a prisoner of war." 455 F.Supp., at 917.
11
I agree with the majority's view that a district court does not have discretion to weigh equitable considerations in determining whether citizenship should be revoked.
1
The District Judge's opinion contains a suggestion that the witnesses' identification of petitioner may have been a case of mistaken identity inasmuch as petitioner resembled another guard who had a position of greater authority. See 455 F.Supp., at 908.
2
In view of the extensive references to Jenkins in the Court's opinion, some of the District Court's observations should be quoted:
"Unfortunately, and inexplicably, the Government did not find the Vice-Consul who approved defendant's application.
* * * * *
"Jenkins' testimony about the structure of the death camp organization was hardly expert and conflicts consistently with other evidence presented at the trial. For example, he testified that the Ukranian guards had the same uniforms as the §§ with only slightly different insignia. However, the unanimous testimony was the Germans wore their usual gray-green uniforms but the prisoner-guards didn't. He testified that the camp guards could get leave and get away from the camp and could transfer. The testimony was clear that they could not take leave (and go to Berlin, as Jenkins opined) but could only get a two-to-four-hour pass to visit a small village a couple of miles away.
* * * * *
"Jenkins also would have considered the kapos as excludable because they assisted the Germans. This is totally contrary to the reaction of every witness who survived Treblinka; each of the Israeli witnesses testified the kapos did only what they had to do and the witnesses were quite indignant when asked if they had ever testified against the kapos. The witnesses replied that there was no reason to do so. In addition, Jenkins speculated that the kapos were probably shot in 1945 during a period of retaliation, but the testimony was to the contrary." Id., at 911-913.
3
In Count 4 of its complaint the Government alleged that petitioner did not truthfully answer the question on his citizenship application whether he had ever committed a crime. Having found that his service in Treblinka was not voluntary, the District Court concluded that petitioner's negative answer was truthful. In Count 5 of its complaint (as amended at a pretrial conference) the Government alleged that petitioner had a duty to disclose his guard service at Treblinka in answer to the following question:
"7. List your present and past membership in every organization, association, fund, foundation, party, club, society, or similar group in the United States and in any other place, and your foreign military service."
The District Court concluded that because petitioner regarded himself as a prisoner of war, and because he had listed his Russian military service, this omission could not be considered willful. See id., at 917. That conclusion was certainly permissible; indeed it is arguable that the Treblinka guard service was neither the sort of "membership" in a club or organization nor the sort of "military service" that the question contemplated.
4
One particular squad of Jewish prisoners was responsible for undressing the aged and infirm prisoners and leading them to the lazaret, the eternally burning pit, where they were shot. Record 287 (Kohn). One of the prisoners who worked in the camp stated when asked whether this squad "assist[ed] in bringing [prisoners] to their death": "We automatically assisted, all of us, but . . . it was under the fear and terror." Id., at 293 (Kohn).
5
Two of the witnesses, Czarny and Boraks, testified that they did not recall or hear of any kapos beating prisoners, Id., at 551, 686, and one witness, Epstein, did not see or hear of beatings inflicted by kapos. Id., at 1159.
6
Moreover, the Court's distinction between the kapos and other Jewish workers on the one hand and the Ukranian guards on the other is based in large part on such factors as the issuance of a uniform and weapons, the receipt of a stipend, and the privilege of being allowed to leave the camp and visit a nearby village. These supposedly distinguishing factors are essentially unrelated to the persecution of the victims of the concentration camp.
7
We also note that Vice Consul Jenkins, upon whose testimony the Court heavily relies, indicated that he would have considered kapos to be ineligible under the DPA if they could be proved to be "internal camp inmate collaborators." Id., at 828.
8
Emphasis added. Footnote 11 on p. 17 of the Government's brief in the Court of Appeals states:
"The district court held that, in Section 2(a), 'persons who can be shown to have assisted the enemy' should be construed to read 'persons who can be shown to have voluntarily assisted the enemy.' 455 F.Supp., at 913. The United States has no quarrel with such a construction in this case."
9
Inasmuch as the Attorney General of the United States argued this case himself, presumably the decision not to question the District Court's construction of the statute was reached only after the matter had been reviewed with the utmost care.
10
Under my interpretation of the Chaunt test, the Government should not prevail on the speculation that it might have been able to uncover evidence that petitioner committed war crimes while at Treblinka. Similarly, I would hold that the District Court's findings with respect to willfulness of alleged misstatements on petitioner's citizenship application were not clearly erroneous. See n. 2, supra. I surely would not rest decision in this Court on a de novo evaluation of the testimony of the witness Jenkins rather than the findings of the District Court.
| 12
|
449 U.S. 433
101 S.Ct. 703
66 L.Ed.2d 641
Julius T. CUYLER, Superintendent, State Correctional Institution, et al., Petitioners,v.John ADAMS.
No. 78-1841.
Argued Oct. 7, 1980.
Decided Jan. 21, 1981.
Syllabus
While respondent was serving a sentence in a Pennsylvania correctional institution, the Camden County, N. J., prosecutor's office lodged a detainer against him and sought custody pursuant to Art. IV of the Interstate Agreement on Detainers (Detainer Agreement) in order to try him in New Jersey on criminal charges. Article IV, which provides the procedure whereby the receiving State may initiate the prisoner's transfer, states in paragraph (d) that nothing in the Article shall be construed to deprive the prisoner "of any right which he may have to contest the legality of his delivery as provided in paragraph (a) hereof," but that such delivery may not be opposed on the ground that the sending State's executive authority has not affirmatively consented to or ordered the delivery. Respondent filed an action in the Federal District Court for the Eastern District of Pennsylvania under 42 U.S.C. §§ 1981 and 1983, alleging that petitioners had violated the Due Process and Equal Protection Clauses by failing to grant him the pretransfer hearing that would have been available had his transfer been sought under the Uniform Criminal Extradition Act (Extradition Act), and that petitioners had violated the Due Process Clause by failing to inform him of his right under Art. IV(a) of the Detainer Agreement to petition Pennsylvania's Governor to disapprove New Jersey's request for custody. The District Court dismissed respondent's complaint. The Court of Appeals vacated the District Court judgment and remanded the case, finding it unnecessary to reach respondent's constitutional claims and holding as a matter of statutory construction under federal law that respondent had a right under Art IV(d) of the Detainer Agreement to the procedural safeguards, including a pretransfer hearing, prescribed by the Extradition Act.
Held:
1. The Detainer Agreement is a congressionally sanctioned interstate compact the interpretation of which presents a question of federal law. An interstate agreement does not fall within the scope of the Federal Constitution's Compact Clause, and will not be invalidated for lack of congressional consent, where the agreement is not "directed to the formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States." But where Congress has authorized the States to enter into a cooperative agreement and the subject matter of that agreement is an appropriate subject for congressional legislation, Congress' consent transforms the States' agreement into federal law under the Compact Clause, and construction of that agreement presents a federal question. Here, Congress gave its consent to the Detainer Agreement in advance by enacting the Crime Control Consent Act of 1934. That Act was intended to be a grant of consent under the Compact Clause, and the subject matter of the Act is an appropriate subject for congressional legislation. Pp. 438-442.
2. As a matter of statutory construction, a prisoner incarcerated in a jurisdiction that has adopted the Extradition Act is entitled to the procedural protections of that Act, including the right to a pretransfer hearing, before being transferred to another jurisdiction pursuant to Art IV of the Detainer Agreement. Both the language and legislative history of the Detainer Agreement support the interpretation that, whereas a prisoner initiating the transfer procedure under Art. III waives rights which the sending State affords persons being extradited, including rights provided under the Extradition Act, a prisoner's extradition rights are preserved when the receiving State seeks the prisoner's involuntary transfer under Art IV of the Detainer Agreement. The phrase "as provided in paragraph (a) hereof," contained in Art. IV(d), modifies "delivery," not "right," and thus Art. IV(d) preserves all the prisoner's extradition rights under state or other law except his right, otherwise available under the Extradition Act, to oppose his transfer on the ground that the sending State's Governor had not explicitly approved the custody request. Moreover, the remedial purpose of the Detainer Agreement in protecting prisoners against whom detainers are outstanding supports an interpretation that gives prisoners the right to a judicial hearing in which they can bring a limited challenge to the receiving State's custody request. Pp. 443-450.
3 Cir., 592 F.2d 720, affirmed.
Maria Parisi Vickers, Philadelphia, Pa., for petitioners.
James D. Crawford, Philadelphia, Pa., for respondent.
Justice BRENNAN delivered the opinion of the Court.
1
This case requires us to decide a recurring question concerning the relationship between the Interstate Agreement on Detainers and the Uniform Criminal Extradition Act.1 The specific issue presented is whether a prisoner incarcerated in a jurisdiction that has adopted the Extradition Act is entitled to the procedural protections of that Act—particularly the right to a pretransfer hearing—before being transferred to another jurisdiction pursuant to Art. IV of the Detainer Agreement. The Court of Appeals for the Third Circuit held as a matter of statutory construction that a prisoner is entitled to such protections. 592 F.2d 720 (1979). The Courts of Appeals and state courts are divided upon the question,2 and we granted certiorari to resolve the conflict. 444 U.S. 1069, 100 S.Ct. 1011, 62 L.Ed.2d 750 (1980).
2
* In April 1976, respondent John Adams was convicted in Pennsylvania state court of robbery and was sentenced to 30 years in the State Correctional Institution at Graterford, Pa. The Camden County (New Jersey) prosecutor's office subsequently lodged a detainer against respondent and in May 1977 filed a "Request for Temporary Custody" pursuant to Art. IV of the Detainer Agreement in order to bring him to Camden for trial on charges of armed robbery and other offenses.3
3
In an effort to prevent his transfer, respondent filed a pro se class-action complaint in June 1977 in the United States District Court for the Eastern District of Pennsylvania. He sought declaratory, injunctive, and monetary relief under 42 U.S.C. §§ 1981 and 1983, alleging (1) that petitioners had violated the Due Process and Equal Protection Clauses by failing to grant him the pretransfer hearing that would have been available had he been transferred pursuant to the Extradition Act; and (2) that petitioners had violated the Due Process Clause by failing to inform him of his right pursuant to Art. IV(a) of the Detainer Agreement to petition Pennsylvania's Governor to disapprove New Jersey's request for custody. Respondent contended, inter alia, that had he been granted a hearing or advised of his right to petition the Governor, he would have been able to convince Pennsylvania authorities to deny the custody request.4
4
The District Court, without reaching the class certification issue, dismissed respondent's complaint in October 1977 for failure to state a claim upon which relief could be granted, 441 F.Supp. 556. Respondent was then transferred to New Jersey,5 where he was convicted, sentenced to a 91/2-year prison term (to be served concurrently with his Pennsylvania sentence), and returned to Pennsylvania.
5
The Court of Appeals for the Third Circuit vacated the District Court judgment and remanded for further proceedings. 592 F.2d 720 (1979). Finding no need to reach respondent's constitutional claims, see Hagans v. Lavine, 415 U.S. 528, 543, 94 S.Ct. 1372, 1382, 39 L.Ed.2d 577 (1974), it concluded as a matter of statutory construction that respondent had a right under Art. IV(d) of the Detainer Agreement to the procedural safeguards, including a pretransfer "hearing," prescribed by § 10 of the Extradition Act. It made no finding with respect to respondent's argument that he was entitled to notification of his right to petition the Governor.6
II
6
While this case was on appeal, a Pennsylvania state court held that state prisoners transferred under Art. IV of the Detainer Agreement have no constitutional right to a pretransfer hearing. Commonwealth ex rel. Coleman v. Cuyler, 261 Pa.Super. 274, 396 A.2d 394 (1978). Although the Court of Appeals did not reach this constitutional issue, it held that it was not bound by the state court's result because the Detainer Agreement is an interstate compact approved by Congress and is thus a federal law subject to federal rather than state construction. Before reaching the merits of the Third Circuit's decision, we must determine whether that conclusion was correct. We hold that it was.
7
The Compact Clause of the United States Constitution, Art. I, § 10, cl. 3, provides that "No State shall, without the Consent of the Congress, . . . enter into any Agreement or Compact with another State . . . ." Because congressional consent transforms an interstate compact within this Clause into a law of the United States, we have held that the construction of an interstate agreement sanctioned by Congress under the Compact Clause presents a federal question. See Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275, 278, 79 S.Ct. 785, 788, 3 L.Ed.2d 804 (1959); West Virginia ex rel. Dyer v. Sims, 341 U.S. 22, 28, 71 S.Ct. 557, 560, 95 L.Ed. 713 (1951); Delaware River Joint Toll Bridge Comm'n v. Colburn, 310 U.S. 419, 427, 60 S.Ct. 1039, 1040, 84 L.Ed. 1287 (1940).7 It thus remains to be determined whether the Detainer Agreement is a congressionally sanctioned interstate compact within Art I, § 10, of the Constitution.
8
The requirement of congressional consent is at the heart of the Compact Clause. By vesting in Congress the power to grant or withhold consent, or to condition consent on the States' compliance with specified conditions, the Framers sought to ensure that Congress would maintain ultimate supervisory power over cooperative state action that might otherwise interfere with the full and free exercise of federal authority. See Frankfurter & Landis, The Compact Clause of the Constitution—A Study in Interstate Adjustments, 34 Yale L.J. 685, 694-695 (1925).
9
Congressional consent is not required for interstate agreements that fall outside the scope of the Compact Clause. Where an agreement is not "directed to the formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States," it does not fall within the scope of the Clause and will not be invalidated for lack of congressional consent. See, e. g., United States Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452, 468, 98 S.Ct. 799, 810, 54 L.Ed.2d 682 (1978), quoting Virginia v. Tennessee, 148 U.S. 503, 519, 13 S.Ct. 728, 734, 37 L.Ed. 537 (1893); New Hampshire v. Maine, 426 U.S. 363, 369-370, 96 S.Ct. 2113, 2117, 48 L.Ed.2d 701 (1976). But where Congress has authorized the States to enter into a cooperative agreement, and where the subject matter of that agreement is an appropriate subject for congressional legislation, the consent of Congress transforms the States' agreement into federal law under the Compact Clause.8
10
Congress may consent to an interstate compact by authorizing joint state action in advance or by giving expressed or implied approval to an agreement the States have already joined. Virginia v. Tennessee, supra, at 521, 13 S.Ct., at 735; Green v. Biddle, 8 Wheat. 1, 85-87, 5 L.Ed. 547 (1823). In the case of the Detainer Agreement, Congress gave its consent in advance by enacting the Crime Control Consent Act of 1934, 48 Stat. 909, as amended.9 In pertinent part, this Act provides:
11
"The consent of Congress is hereby given to any two or more States to enter into agreements or compacts for cooperative effort and mutual assistance in the prevention of crime and in the enforcement of their respective criminal laws and policies. . . ." 4 U.S.C. § 112(a).
12
Because this Act was intended to be a grant of consent under the Compact Clause, and because the subject matter of the Act is an appropriate subject for congressional legislation,10 we conclude that the Detainer Agreement is a congressionally sanctioned interstate compact the interpretation of which presents a question of federal law. We therefore turn to the merits of the Court of Appeals' holding that as a matter of statutory construction Art. IV(d) of the Detainer Agreement is to be read as incorporating the procedural safeguards provided by § 10 of the Extradition Act.
III
13
The Detainer Agreement and the Extradition Act both establish procedures for the transfer of a prisoner in one jurisdiction to the temporary custody of another jurisdiction. A prisoner transferred under the Extradition Act is explicitly granted a right to a pretransfer "hearing" at which he is informed of the receiving State's request for custody, his right to counsel, and his right to apply for a writ of habeas corpus challenging the custody request. He is also permitted "a reasonable time" in which to apply for the writ.11 However, no similar explicit provision is to be found in the Detainer Agreement.
14
The Detainer Agreement establishes two procedures under which the prisoner against whom a detainer has been lodged may be transferred to the temporary custody of the receiving State. One of these procedures may be invoked by the prisoner; the other by the prosecuting attorney of the receiving State.
15
Article III of the Agreement provides the prisoner-initiated procedure. It requires the warden to notify the prisoner of all outstanding detainers and then to inform him of his right to request final disposition of the criminal charges underlying those detainers. If the prisoner initiates the transfer by demanding disposition (which under the Agreement automatically extends to all pending charges in the receiving State), the authorities in the receiving State must bring him to trial within 180 days or the charges will be dismissed with prejudice, absent good cause shown.
16
Article IV of the Agreement provides the procedure by which the prosecutor in the receiving State may initiate the transfer. First, the prosecutor must file with the authorities in the sending State written notice of the custody request, approved by a court having jurisdiction to hear the underlying charges. For the next 30 days, the prisoner and prosecutor must wait while the Governor of the sending State, on his own motion or that of the prisoner, decides whether to disapprove the request.12 If the Governor does not disapprove, the prisoner is transferred to the temporary custody of the receiving State where he must be brought to trial on the charges underlying the detainer within 120 days of his arrival. Again, if the prisoner is not brought to trial within the time period, the charges will be dismissed with prejudice, absent good cause shown.
17
Although nothing in the Detainer Agreement explicitly provides for a pretransfer hearing, respondent contends that prisoners who are involuntarily transferred under Art. IV are entitled to greater procedural protections than those who initiate the transfer procedure under Art. III. He argues that a prisoner who initiates his own transfer to the receiving State receives a significant benefit under the Agreement and may thus be required to waive any right he might have to contest his transfer; but that a prisoner transferred against his will to the receiving State under Art. IV does not benefit from the Agreement and is thus entitled to assert any right he might have had under the Extradition Act (or any other state law applicable to interstate transfer of prisoners) to challenge his transfer.
18
Respondent's argument has substantial support in the language of the Detainer Agreement. Article III(e) provides that "[a]ny request for final disposition made by a prisoner [under this Article] shall also be deemed to be a waiver of extradition with respect to any charge or proceeding contemplated thereby. . . ." (Emphasis added.) The reference to "waiver of extradition" can reasonably be interpreted to mean "waiver of those rights the sending state affords persons being extradited." Since Pennsylvania has adopted the Uniform Criminal Extradition Act, those rights would include the rights provided by § 10 of that Act.
19
The language of Art. IV supports respondent's further contention that a prisoner's extradition rights are meant to be preserved when the receiving State seeks disposition of an outstanding detainer. Article IV(d) provides:
20
"Nothing contained in this Article shall be construed to deprive any prisoner of any right which he may have to contest the legality of his delivery as provided in paragraph (a) hereof, but such delivery may not be opposed or denied on the ground that the executive authority of the sending state has not affirmatively consented to or ordered such delivery."
21
Petitioners argue that the phrase "as provided in paragraph (a) hereof" modifies "right," not "delivery," and that paragraph (d) does no more than protect the right paragraph (a) gives the prisoner to petition the Governor to disapprove the custody request.13 The Court of Appeals rejected this interpretation, concluding that the phrase "as provided in paragraph (a) hereof" modifies "delivery," not "right." Since the major thrust of paragraph (a) is to describe the means by which the receiving State may obtain temporary custody of the prisoner, the Court of Appeals held that paragraph (d) must have been intended as the vehicle for incorporating all rights a prisoner would have under state or other laws to contest his transfer, except that the prisoner must forfeit his right, otherwise available under § 7 of the Extradition Act,14 to oppose such transfer on the ground that the Governor had not explicitly approved the custody request.
22
There are three textual reasons why we find this interpretation convincing. First, if paragraph (d) protects only the right provided by paragraph (a) to petition the Governor, as petitioners claim, it is difficult to understand what purpose paragraph (d) serves in the Agreement. Why would the drafters add a second provision to protect a right already explicitly provided? Common sense requires paragraph (d) to be construed as securing something more.
23
Second, the one ground for contesting a transfer that paragraph (d) explicitly withholds from the prisoner—that the transfer has not been affirmatively approved by the Governor -is a ground that the Extradition Act expressly reserves to the prisoner. It is surely reasonable to conclude from the elimination of this ground in the Detainer Agreement that the drafters meant the Detainer Agreement to be read as not affecting any rights given prisoners by the Extradition Act that are not expressly withheld by the Detainer Agreement. As the Court of Appeals concluded, "the fact that Article IV(d) does specifically refer to one minor procedural feature of the extradition process which is to be affected suggests forcefully that the other aspects, particularly those furnishing safeguards to the prisoner, are to continue in effect." 592 F.2d at 724.
24
Finally, paragraph (d) refers to "any right [the prisoner] may have" (emphasis added) to challenge the legality of his transfer. This suggests that more than one right is involved, a suggestion that is consistent with respondent's contention that all pre-existing rights are preserved. If petitioners' contention were correct—that the only right preserved is the right provided in paragraph (a) to the petition the Governor—it is much more likely that paragraph (d) would have referred narrowly to "the right the prisoner does have" to challenge the legality of his transfer.
25
The legislative history of the Detainer Agreement, contained in the comments on the draft Agreement made by the Council of State Governments at its 1956 conference and circulated to all the adopting States, further supports the Court of Appeals' reading. In discussing the different degrees of protection to which a prisoner is entitled under Arts. III and IV of the Agreement, the drafters stated:
26
"Article IV(d) safeguards certain of the prisoner's rights. Normally, the only way to get a prisoner from one jurisdiction to another for purposes of trial on an indictment, information or complaint is through resort to extradition or waiver thereof. If the prisoner waives, there is no problem. However, if he does not waive extradition, it is not appropriate to attempt to force him to give up the safeguards of the extradition process, even if this could be done constitutionally." Council of State Governments, Suggested State Legislation, Program for 1957, pp. 78-79 (1956) (emphasis added).
27
The suggestion, of course, is that a prisoner transferred against his will under Art. IV should be entitled to whatever "safeguards of the extradition process" he might otherwise have enjoyed. Those safeguards include the procedural protections of the Extradition Act (in those States that have adopted it), as well as any other procedural protections the sending State guarantees persons being extradited from within its borders.
28
That this is what the drafters intended is further suggested by the distinction they make between Art. III and Art. IV procedures:
29
"The situation contemplated by this portion of the agreement [Article IV] is different than that dealt with in Article III. [Article III] relates to proceedings initiated at the request of the prisoner. Accordingly, in such instances it is fitting that the prisoner be required to waive extradition. In Article IV the prosecutor initiates the proceeding. Consequently, it probably would be improper to require the prisoner to waive those features of the extradition process which are designed for the protection of his rights." Id., at 79.
30
These statements strongly support respondent's contention that prisoners were meant to be treated differently depending on which Article was being invoked, and that the general body of procedural rights available in the extradition context was meant to be preserved when the transfer was effected pursuant to Art. IV.
31
Article IX of the Detainer Agreement states that the Agreement "shall be liberally construed so as to effectuate its purpose." The legislative history of the Agreement, including the comments of the Council of State Governments and the congressional Reports and debates preceding the adoption of the Agreement on behalf of the District of Columbia and the Federal Government, emphasizes that a primary purpose of the Agreement is to protect prisoners against whom detainers are outstanding. As stated in the House and Senate Reports:
32
"[A] prisoner who has had a detainer lodged against him is seriously disadvantaged by such action. He is in custody and therefore in no position to seek witnesses or to preserve his defense. He must often be kept in close custody and is ineligible for desirable work assignments. What is more, when detainers are filed against a prisoner he sometimes loses interest in institutional opportunities because he must serve his sentence without knowing what additional sentences may lie before him, or when, if ever, he will be in a position to employ the education and skills he may be developing." H.R.Rep. No. 91-1018, p. 3 (1970); S.Rep. No. 91-1356, p. 3 (1970), U.S.Code Cong. & Admin.News 1970, p. 4866.
33
The remedial purpose of the Agreement supports an interpretation that gives prisoners the right to a judicial hearing in which they can bring a limited challenge to the receiving State's custody request.15 In light of the purpose of the Detainer Agreement, as reflected in the structure of the Agree ment, its language, and its legislative history, we conclude as a matter of federal law that prisoners transferred pursuant to the provisions of the Agreement are not required to forfeit any pre-existing rights they may have under state or federal law to challenge their transfer to the receiving State. Respondent Adams has therefore stated a claim for relief under 42 U.S.C. § 1983 for the asserted violation by state officials of the terms of the Detainer Agreement. See Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980).
34
Affirmed.
35
Justice REHNQUIST, with whom THE CHIEF JUSTICE and Justice STEWART join, dissenting.
36
In a remarkable feat of judicial alchemy the Court today transforms state law into federal law. It decides that the construction of an enactment of the Pennsylvania Legislature, for which the consent of Congress was not required under the Constitution, and to which Congress never consented at all save in the vaguest terms some 25 years prior to its passage, presents a federal question. Ante, Part II. Nothing in the prior decisions of this Court suggests, say nothing of compels, such an untoward result.
37
The cases relied upon by the Court establish, at most, that the interpretation of an interstate compact sanctioned by Congress pursuant to the Compact Clause will present a federal question. See Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275, 278, 79 S.Ct. 785, 788, 3 L.Ed.2d 804 (1959) ("The construction of a compact sanctioned by Congress under Art. I, § 10, cl. 3, of the Constitution presents a federal question") (emphasis supplied); West Virginia ex rel. Dyer v. Sims, 341 U.S. 22, 27, 71 S.Ct. 557, 560, 95 L.Ed. 713 (1951) ("congressional consent [was] required"); Delaware River Joint Toll Bridge Comm'n v. Colburn, 310 U.S. 419, 427, 60 S.Ct. 1039, 1040, 84 L.Ed. 1287 (1940) ("the construction of . . . a compact sanctioned by Congress by virtue of Article I, § 10, Clause 3 of the Constitution, involves a federal 'title, right, privilege or immunity') (emphasis supplied). In light of our recent decisions, however, it cannot seriously be contended that the Detainer Agreement constitutes an "agreement or compact" as those terms have come to be understood in the Compact Clause. In New Hampshire v. Maine, 426 U.S. 363, 96 S.Ct. 2113, 48 L.Ed.2d 701 (1976), we held that the "application of the Compact Clause is limited to agreements that are 'directed to the formation of any combination tending to the increase of the political power in the States, which may encroach upon or interfere with the just supremacy of the United States.' " Id., at 369, 96 S.Ct., at 2117, quoting Virginia v. Tennessee, 148 U.S. 503, 519, 13 S.Ct. 728, 734, 37 L.Ed. 537 (1893). This rule was reaffirmed in United States Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452, 471, 98 S.Ct. 799, 811, 54 L.Ed.2d 682 (1978), where the Court ruled that the quoted test "states the proper balance between federal and state power with respect to compacts and agreements among States." Certainly nothing about the Detainer Agreement threatens the just supremacy of the United States or enhances state power to the detriment of federal sovereignty. As with the "compact" in Multistate Tax Comm'n, any State is free to join the Detainer Agreement, so it cannot be considered to elevate member States at the expense of nonmembers. See id., at 477-478, 98 S.Ct. at 815. Finally, despite contrary intimations by the Court, ante, at 441, n.9, the views of the drafters of the Agreement or its form are not controlling. The agreement involved in Multistate Tax Comm'n was termed a "compact" and congressional consent to it was repeatedly sought, id., at 456, 458, n.8, 98 S.Ct. at 804, 805, n.8, yet the Court nonetheless held it was not a compact within the Compact Clause. See also 434 U.S., at 470-471, 98 S.Ct., at 811 ("The mere form of the interstate agreement cannot be dispositive. . . . The relevant inquiry must be one of impact on our federal structure").
38
Since the Detainer Agreement is not an "agreement or compact" within the purview of the Compact Clause, that constitutional provision is irrelevant to this case, and the Court's reliance on it can only be described as baffling. Although never maintaining that congressional consent was required by the Compact Clause for the Detainer Agreement—a conclusion foreclosed by our decisions—the Court nonetheless views its inquiry as "whether the Detainer Agreement is a congressionally sanctioned interstate compact within Art. I, § 10, of the Constitution" and concludes in this case that "the consent of Congress transforms the State's agreement into federal law under the Compact Clause." Ante, at 439, 440 (emphasis supplied). Whether a particular state enactment is "within" or "under" the Compact Clause, however, depends on whether it requires the consent of Congress—the Clause speaks of nothing else. Whatever effect the Compact Clause may have on those laws it does cover, one would have thought it unnecessary to say that it can have no effect on those it does not cover. See Engdahl, Construction of Interstate Compacts: A Questionable Federal Question, 51 Va.L.Rev. 987, 1017 (1965) ("[T]he construction of a compact not requiring consent, even if Congress has consented, will not present a federal question. . ."). The Court stresses the federal interest in the area of extradition, ante, at 442, n. 10, but, for Compact Clause purposes, "[a]bsent a threat of encroachment or interference through enhanced state power, the existence of a federal interest is irrelevant." Multistate Tax Comm'n, supra, at 480, n.33, 98 S.Ct., at 816, n.33.
39
If the Compact Clause of the Constitution does not operate to transform Pennsylvania's statute into federal law, it must be the consent of Congress, albeit unnecessary, which does so. Such a proposition is, however, contrary to the established rule in other contexts. The most fundamental example was discussed in Coyle v. Smith, 221 U.S. 559, 568, 31 S.Ct. 688, 690, 55 L.Ed. 853 (1911):
40
". . . Congress may require, under penalty of denying admission, that the organic laws of a new State at the time of admission shall be such as to meet its approval. A constitution thus supervised by Congress would, after all, be a constitution of a State, and as such subject toalteration and amendment by the State after admission. Its force would be that of a state constitution, and not that of an act of Congress."
41
The consent of Congress to state taxation of its instrumentalities does not mean that the interpretation of state tax laws presents a federal question, see Gully v. First National Bank, 299 U.S. 109, 115, 57 S.Ct. 96, 98, 81 L.Ed. 70 (1936) ("That there is a federal law permitting such taxation does not change the basis of the suit which is still the statute of the state, though the federal law is evidence to prove the statute valid") (emphasis in original), and when Congress consents to state laws regulating commerce which would otherwise be prohibited the state laws remain state laws, see In re Rahrer, 140 U.S. 545, 561, 11 S.Ct. 865, 869, 35 L.Ed. 572 (1891) (by consent ". . . Congress has not attempted to delegate the power to regulate commerce, . . . or to adopt state laws"); Prudential Insurance Co. v. Benjamin, 328 U.S. 408, 438, n.51, 66 S.Ct. 1142, 1159, n.51, 90 L.Ed. 1342 (1946) ("The . . . contention that Congress' 'adoption' of South Carolina's statute amounts to an unconstitutional delegation of Congress' legislative power to the states obviously confuses Congress' power to legislate with its power to consent to state legislation. They are not identical, though exercised in the same formal manner"). See generally Engdahl, supra, at 1015-1016. It is particularly unsettling that the Court would confuse an act of congressional consent with an act of legislation when the consent was completely gratuitous and given some 25 years before passage of the state law.
42
What is most disturbing about the Court's analysis is its potential sweep. The statute books of the States are full of reciprocal legislation in the criminal area. See, e. g., Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, 11 U.L.A. 1 (Supp.1980) (adopted in 54 jurisdictions); Uniform Rendition of Prisoners as Witnesses in Criminal Proceedings Act, 11 U.L.A. 547 (Supp.1980) (adopted in 13 jurisdictions). As this Court made clear in Multistate Tax Comm'n, supra, 434 U.S., at 469-471, 98 S.Ct., at 810-811, such reciprocal legislation is as subject to the Compact Clause as other more formal interstate agreements. See ibid. (discussing New York v. O'Neill, 359 U.S. 1, 79 S.Ct. 564, 3 L.Ed.2d 585 (1959), a case involving the Uniform Act to Secure the Attendance of Witnesses); see also 434 U.S., at 491, 98 S.Ct. at 821 (WHITE, J., dissenting). In light of the Court's analysis in this case, it is not at all clear why the construction of each of the provisions in this broad array of state legislation is not a federal matter. It is apparently no answer that congressional consent was not required under the Compact Clause; the same is true with the Detainer Agreement. And the congressional "consent" in the Crime Control Consent Act of 1934 applies with the same force to all this reciprocal legislation as it does to the Detainer Agreement. Yet it has never been supposed that the construction of the terms of such reciprocal legislation is a matter on which federal courts could override the courts of the enacting State. Enough has been said to demonstrate that the Court's opinion threatens to become a judicial Midas meandering through the state statute books, turning everything it touches into federal law.
43
Since I view the Detainer Agreement as a state statute, I would defer to the state court's interpretation of it. It is sufficiently clear to me that the court in Commonwealth ex rel. Coleman v. Cuyler, 261 Pa.Super. 274, 396 A.2d 394 (1978), disagrees with the statutory interpretation undertaken by the Court of Appeals below and by this Court.* I would therefore reverse and remand, with instructions to the Court of Appeals to consider respondent's constitutional claims, which it avoided by what I consider unjustifiable statutory interpretation.
1
The Interstate Agreement on Detainers, codified in Pennsylvania at 42 Pa.Cons.Stat. § 9101 et seq. (Supp.1980), is a compact among 48 States, the District of Columbia, and the United States. Initially drafted by the Council of State Governments in 1956 and included in the Council's Suggested State Legislation Program for 1957, the Agreement establishes procedures by which one jurisdiction may obtain temporary custody of a prisoner incarcerated in another jurisdiction for the purpose of bringing that prisoner to trial. Unlike the Extradition Act, the Detainer Agreement establishes procedures under which a prisoner may initiate his transfer to the receiving State and procedures that ensure protection of the prisoner's speedy trial rights.
The Uniform Criminal Extradition Act, codified in Pennsylvania at 42 Pa.Cons.Stat. § 9121 et seq. (Supp.1980), has been adopted by 48 States, Puerto Rico, and the Virgin Islands. Initially drafted in 1926 and revised 10 years later, the Extradition Act, like the Detainer Agreement, establishes procedures for the interstate transfer of persons against whom criminal charges are outstanding. Unlike the Detainer Agreement, the Extradition Act applies to persons at liberty as well as to persons in prison.
2
Compare Atkinson v. Hanberry, 589 F.2d 917 (CA5 1979); Commonwealth ex rel. Coleman v. Cuyler, 261 Pa.Super. 274, 396 A.2d 394 (1978); State v. Thompson, 133 N.J.Super. 180, 336 A.2d 11 (1975); Hystad v. Rhay, 12 Wash.App. 872, 533 P.2d 409 (1975); and Wertheimer v. State, 294 Minn. 293, 201 N.W.2d 383 (1972): with 592 F.2d 720 (CA3 1979) (case below); McQueen v. Wyrick, 543 S.W.2d 778 (Mo.1976); Moen v. Wilson, 189 Colo. 85, 536 P.2d 1129 (1975); and State ex rel. Garner v. Gray, 55 Wis.2d 574, 201 N.W.2d 163 (1972).
3
While the term "detainer" is nowhere defined in the Detainer Agreement, we noted in United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978), that the House and Senate Reports accompanying Congress' adoption of the Detainer Agreement had defined a detainer as " 'a notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction.' " Id., at 359, 98 S.Ct., at 1846, quoting H.R.Rep. No. 91-1018, p. 2 (1970); S.Rep. No. 91-1356, p. 2 (1970).
4
Apparently, Adams intended to argue that the State of New Jersey had acted in bad faith by deliberately not filing its custody request until after his chief alibi witness had died. While Adams presumably could have raised that argument in his petition to the Governor, he could not have raised it in either a pretransfer "hearing" under the Extradition Act or in a subsequent habeas proceeding. See n.11, infra.
5
Although the District Court stated in its October 1977 opinion that Adams had already been transferred to New Jersey, petitioners have informed this Court that the transfer did not actually occur until January 1978, three months after the District Court opinion. See Brief for Petitioners 31, n.4.
6
Accordingly, we do not reach this issue.
7
The "law of the Union" doctrine upon which this principle is based had its origin in Pennsylvania v. Wheeling & Belmont Bridge Co., 13 How. 518, 14 L.Ed. 249 (1852). In that case, a bridge construction company defended a nuisance suit on the ground that the state legislature had authorized construction of the offending bridge. The company argued that the state legislative authorization shielded it from the nuisance suit because "there is no act of Congress prohibiting obstructions on the Ohio
River, and . . . until there shall be such a regulation, a State, in the construction of bridges, has a right to exercise its own discretion on the subject." This Court rejected that argument in light of a clause in the Virginia-Kentucky Compact of 1789, sanctioned by Congress, declaring that the use and navigation of the Ohio River shall be "free and common to the citizens of the United States." Id., at 565. Even though there had been no Act of Congress explicitly regulating navigation on the river, the Court stated that the prohibition in the Compact was controlling because "[t]his compact, by the sanction of Congress, has become a law of the Union. What further legislation can be desired for judicial action?" Id. at 566; see also Wedding v. Meyler, 192 U.S. 573, 581-582, 24 S.Ct. 322, 323, 48 L.Ed. 570 (1904).
Although the law-of-the-Union doctrine was questioned in People v. Central R. Co.,, 12 Wall. 455, 456, 20 L.Ed. 458 (1872) and in Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 109, 58 S.Ct. 803, 810, 82 L.Ed. 1202 (1938), any doubts as to its continued vitality were put to rest in Delaware River Joint Toll Bridge Comm'n v. Colburn, 310 U.S., at 427-428, 60 S.Ct., at 1040-1041, where the Court stated:
"In People v. Central Railroad, . . . jurisdiction of this Court to review a judgment of a state court construing a compact between states was denied on the ground that the Compact was not a statute of the United States and that the construction of the Act of Congress giving consent was in no way drawn in question, nor was any right set up under it. This decision has long been doubted, . . . and we now conclude that the construction of such a compact sanctioned by Congress by virtue of Article I, § 10, Clause 3 of the Constitution, involves a federal 'title, right, privilege or immunity' which when 'specially set up and claimed' in a state court may be reviewed here on certiorari under § 237(b) of the Judicial Code, 28 U.S.C. § 344." Id., at 427, 60 S.Ct., at 1040.
This holding reaffirmed the law-of-the-Union doctrine and the underlying principle that congressional consent can transform interstate compacts into federal law. Accord, Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S., at 278, 79 S.Ct., at 788; see also United States ex rel. Esola v. Groomes, 520 F.2d 830, 841 (CA3 1975) (Garth, J., concurring); League to Save Lake Tahoe v. Tahoe Regional Planning Agency 507 F.2d 517 (CA9 1974), cert. denied, 420 U.S. 974, 95 S.Ct. 1398, 43 L.Ed.2d 654 (1975).
8
See West Virginia ex rel. Dyer v. Sims, 341 U.S. 22, 26, 71 S.Ct. 557, 559, 95 L.Ed. 713 (1951) (congressional consent given to compact to control pollution in interstate streams, "an appropriate subject for national legislation"); Petty v. Tennessee-Missouri Bridge Comm'n, supra, at 281, 79 S.Ct., at 789 (congressional consent given to compact affecting navigable waters and interstate commerce).
As Justice WHITE stated, dissenting in United States Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452, 98 S.Ct. 799, 54 L.Ed.2d 682 (1978):
"Congress does not pass upon a submitted compact in the manner of a court of law deciding a question of constitutionality. Rather, the requirement that Congress approve a compact is to obtain its political judgment: Is the agreement likely to interfere with federal activity in the area, is it likely to disadvantage other States to an important extent, is it a matter that would better be left untouched by state and federal regulation?" Id., at 485, 98 S.Ct., at 819 (footnotes omitted).
9
Congress enacted the Crime Control Consent Act for the express purpose of complying with the "congressional consent" requirement of the Compact Clause. As stated in both the House and Senate Reports accompanying the Act:
"Legislation is necessary to accomplish the purpose sought by the bill because of the language of that part of article I, section 10, of the Constitution which provides:
" 'No State shall, without the consent of Congress . . . enter into an agreement or compact with another State. . . .'
* * * * *
"This bill seeks to remove the obstruction imposed by the Federal Constitution and allow the States cooperatively and by mutual agreement to work out their problems of law enforcement." S.Rep. No. 1007, 73d Cong., 2d Sess., 1 (1934); H.R.Rep. No. 1137, 73d Cong., 2d Sess., 1-2 (1934).
There can be no doubt that the Detainer Agreement falls within the scope of this congressional authorization. Not only do the drafters of the Agreement state in their interpretive handbook that it "falls within the purview" of the 1934 Act and therefore has the consent of Congress, see Council of State Governments, The Handbook of Interstate Crime Control 117 (1978), but also Congress itself, when adopting the Detainer Agreement on behalf of the District of Columbia and the United States, Pub.L. 91-538, 84 Stat. 1397, expressly stated that it had authorized the Detainer Agreement in the Crime Control Consent Act. See H.R.Rep. No. 91-1018 (1970); S.Rep. No. 91-1356 (1970); U.S.Code Cong. & Admin. News 1970, p. 4864. At the same time, Congress implicitly reaffirmed its consent to the Agreement.
10
Congressional power to legislate in this area is derived from both the Commerce Clause and the Extradition Clause. The latter Clause, Art. IV, § 2, cl. 2, has provided Congress with power to legislate in the extradition area since 1793 when it passed the first Federal Extradition Act, 1 Stat. 302, now codified at 18 U.S.C. § 3182. See Michigan v. Doran, 439 U.S. 282, 286-287, 99 S.Ct. 530, 534, 58 L.Ed.2d 521 (1978); Innes v. Tobin, 240 U.S. 127, 130-131, 134-135, 36 S.Ct. 290, 291, 292, 60 L.Ed. 562 (1916); Roberts v. Reilly, 116 U.S. 80, 94, 6 S.Ct. 291, 299, 29 L.Ed. 544 (1885); Robb v. Connolly, 111 U.S. 624, 628, 4 S.Ct. 544, 546, 28 L.Ed. 542 (1884); Kentucky v. Dennison, 24 How. 66, 104-105, 16 L.Ed. 717 (1861); DeGenna v. Grasso, 413 F.Supp. 427, 431 (Conn.), aff'd sub nom. Carino v. Grasso, 426 U.S. 913, 96 S.Ct. 2617, 49 L.Ed.2d 368 (1976).
Congress' recognition that it had power to legislate in this area is also evidenced by the House and Senate Reports accompanying the 1934 Act,
"The rapidity with which persons may move from one State to another, those charged with crime and those who are necessary witnesses in criminal proceedings, and the fact that there are no barriers between the States obstructing this movement, makes it necessary that one of two things shall be done, either that the criminal jurisdiction of the Federal Government shall be greatly extended or that the States by mutual agreement shall aid each other in the detection and punishment of offenders against their respective criminal laws." S.Rep. No. 1007, supra, at 1 (emphasis added); H.R.Rep. No. 1137, supra, at 1 (emphasis added).
Despite the contrary suggestion made by the dissent, post, at 453-454, we do not decide today whether the cited examples of "reciprocal legislation in the criminal area" have received congressional consent or whether the subject matter of any of the cited Acts is an appropriate subject for congressional legislation. Those determinations must await cases properly raising the Compact Clause question with respect to those Acts.
11
Section 10 of the Uniform Criminal Extradition Act, codified in Pennsylvania at 42 Pa.Cons.Stat. § 9131 (Supp.1980), provides:
"No person arrested upon such warrant shall be delivered over to the agent whom the executive authority demanding him shall have appointed to receive him unless he shall first be taken forthwith before a judge of a court of record in this Commonwealth who shall inform him of the demand made for his surrender and of the crime with which he is charged and that he has the right to demand and procure legal counsel, and, if the prisoner or his counsel shall state that he or they desire to test the legality of his arrest, the judge of such court of record shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus."
The person being extradited has no right to challenge the facts surrounding the underlying crime or the lodging of the custody request at the first hearing. Even at the later habeas corpus hearing, if any, he is permitted to question only
"(a) whether the extradition documents on their face are in order; (b) whether [he] has been charged with a crime in the demanding state; (c) whether [he] is the person named in the request for extradition; and (d) whether [he] is a fugitive." Michigan v. Doran, supra, at 289, 99 S.Ct., at 535.
12
Article IV(a) provides in pertinent part:
"[T]here shall be a period of 30 days after receipt by the appropriate authorities before the request be honored, within which period the Governor of the sending state may disapprove the request for temporary custody or availability, either upon his own motion or upon motion of the prisoner."
13
Paragraph (a) performs two functions. First, it provides the means by which the receiving State may request the custody of a prisoner incarcerated in the sending State. Second, it authorizes the Governor of the sending State to disapprove that custody request either on his own motion or on that of the prisoner.
14
Section 7 of the Uniform Criminal Extradition Act, codified in Pennsylvania at 42 Pa.Cons.Stat. § 9128 (Supp.1980), provides:
"If the Governor decides that the demand should be complied with he shall sign a warrant of arrest which shall be sealed with the State seal and be directed to any peace officer or other person whom he may think fit to entrust with the execution thereof. The warrant must substantially recite the facts necessary to the validity of its issuance."
15
Petitioners contend that our interpretation frustrates one of the major purposes of the Detainer Agreement, which is to streamline the extradition process. We cannot accept that argument. The Detainer Agreement already provides a 30-day period from the date the prosecutor makes a request for custody until the date the prisoner can be transferred. Even if the hearing required by the Extradition Act could not be held until after the expiration of that 30-day period, which we do not now decide there is no reason the prisoner could not be brought before a court on the 31st day. Moreover, the "reasonable time" a judge fixes for a prisoner to file for a writ of habeas corpus under the Extradition Act might also be computed in recognition of the 30-day period established by the Detainer Agreement.
*
Judge Van der Voort, writing the opinion for the Pennsylvania court, assumed that the procedural protections sought by respondent were not incorporated as a matter of statutory interpretation in the Detainer Agreement, since he ruled that there was no constitutional deprivation in not affording those protections to prisoners subject to the Detainer Agreement. The state-court opinion contained a comprehensive survey of the features of both the Detainer Agreement and the Extradition Act, and did not read the Detainer Agreement to contain the protections which the federal court said were incorporated. Even Judge Spaeth, who dissented on the equal protection ground in the court decision, obviously considered that the procedural protections under the two Acts were different, or else there could not have been an equal protection challenge. See also Wallace v. Hewitt, 428 F.Supp. 39 (MD Pa.1976).
| 01
|
449 U.S. 539
101 S.Ct. 764
66 L.Ed.2d 722
George SUMNER, Warden, Petitioner,v.Robert MATA.
No. 79-1601.
Argued Dec. 9, 1980.
Decided Jan. 21, 1981.
Syllabus
Respondent was convicted of first-degree murder in a California state court after a trial at which eyewitnesses identified him as participating in the murder. The California Court of Appeal affirmed, rejecting respondent's contention, made for the first time, that the pretrial photographic identification employed by the police violated his Fourteenth Amendment due process rights. The court concluded upon review of the trial record that "the facts of the present case" did not adequately support respondent's claim. Respondent did not seek review by the California Supreme Court, but later raised the pretrial identification issue in state habeas corpus proceedings, which resulted in denial of relief by the trial court, the California Court of Appeal, and the California Supreme Court. Respondent then sought federal habeas corpus relief pursuant to 28 U.S.C. § 2254, but the Federal District Court denied the petition. The United States Court of Appeals, employing the same standard used by the state courts, reversed. On the basis of findings considerably at odds with the findings of the California Court of Appeal, the United States Court of Appeals, after reviewing the state-court trial record, concluded that the photographic identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. The Court of Appeals' opinion did not refer to 28 U.S.C. § 2254(d), which provides that in federal habeas corpus proceedings instituted by a state prisoner "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 one of seven specified conditions is found to exist or unless the habeas court concludes that the relevant state-court determination "is not fairly supported by the record."
Held : The Court of Appeals did not properly analyze respondent's challenge to his state-court conviction, given the limited nature of the review provided federal courts by § 2254. Pp. 543-552.
(a) Section 2254(d) applies to factual determinations made by state courts, whether the court be a trial court or an appellate court. The California Court of Appeal held a "hearing" within the meaning of § 2254(d), since both respondent and the State were formally before the court, respondent was given an opportunity to be heard, and his claim received plenary consideration. The interest in federalism recognized by Congress in enacting § 2254(d) requires deference by federal courts to factual determinations of all state courts, and this is true particularly in a case such as this where a federal court makes its determination based on the identical record that was considered by the state appellate court and where there was no reason for the state trial court to consider the issue because respondent failed to raise it at that level. Pp. 545-547.
(b) Given the applicability of § 2254(d) to the present case, it is not apparent that the Court of Appeals, whose opinion gave no indication that § 2254 was even considered, applied the "presumption of correctness" which is mandated by the statute to the factual determinations made by the California state court. When Congress provided in § 2254(d) that a habeas court could not dispense with the "presumption of correctness" embodied therein unless it concluded that the factual determinations were not supported by the record, it contemplated at least some reasoned written references (not present here) to § 2254(d) and the state-court findings. Pp. 547-549.
(c) In providing in § 2254(d) that absent any of the enumerated factors, the burden rests on the habeas petitioner to establish "by convincing evidence that the factual determination of the State court was erroneous," Congress meant to insure that a state finding not be overturned merely on the basis of the usual "preponderance of the evidence" standard. To ensure that this mandate of Congress is enforced, a federal habeas court should include in its opinion granting the writ the reasoning which led it to conclude that any of the first seven factors were present, or the reasoning which led it to conclude that the state finding was "not fairly supported by the record." Pp. 550-552.
9 Cir., 611 F.2d 754, vacated and remanded.
Thomas A. Brady, San Francisco, Cal., for petitioner.
Ezra Hendon, San Francisco, Cal., for respondent.
Justice REHNQUIST delivered the opinion of the Court.
1
A divided Court of Appeals for the Ninth Circuit held that respondent's state-court murder conviction was constitutionally invalid. Its holding has two bases: (1) the pretrial photographic identification procedure employed by state police was "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable in-court misidentification of the [respondent]"; and (2) the admission of the in-court identification "constituted error of constitutional dimension." 611 F.2d 754, 755 (1979). The question before us is whether the Court of Appeals properly analyzed respondent's challenge to his state-court murder conviction, given the limited nature of the review provided federal courts by 28 U.S.C. § 2254.
2
* In 1973, respondent was convicted in the Superior Court of Kern County, Cal., of the first-degree murder of one of his fellow inmates at a California correctional institution. At trial, three witnesses testified that they had witnessed all or part of the attack on the inmate and identified respondent as participating in the murder. Respondent offered as an alibi three other witnesses who testified that respondent was in bed at the time the stabbing occurred. At no point did respondent object to his in-court identification by the State's three eyewitnesses.
3
On direct appeal to the California Court of Appeal, respondent claimed for the first time that the pretrial photographic identification employed by the state police violated the due process of law guaranteed him by the Fourteenth Amendment of the United States Constitution. The California Court of Appeal analyzed his contention under the test earlier enunciated by this Court in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). The court explained that each case must be considered on its own facts and a violation of due process will occur and a conviction will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. The California court then rejected respondent's contention, in this language:
4
"Reviewing the facts of the present case to determine if the particular photographic identification procedure used contained the proscribed suggestive characteristics, we first find that the photographs were available for cross-examination purposes at the trial. We further find that there is no showing of influence by the investigating officers[;] that the witnesses had an adequate opportunity to view the crime; and that their descriptions are accurate. The circumstances thus indicate the inherent fairness of the procedure, and we find no error in the admission of the identification evidence." App. to Pet. for Cert. C-4—C-5
5
Respondent did not seek direct review of the California Court of Appeal's decision with the California Supreme Court. He did, however, later raise the pretrial identification issue in state habeas corpus proceedings. The California Superior Court, the California Court of Appeal, and the California Supreme Court all denied relief.
6
On December 9, 1977, respondent filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern District of California and again raised the pretrial identification issue. On May 23, 1978, the District Court denied the petition and respondent appealed this order to the United States Court of Appeals for the Ninth Circuit.
7
The Court of Appeals for the Ninth Circuit reversed. The court, employing the same standard used by the California state courts, concluded "the photographic identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." 611 F.2d, at 759. This conclusion was based, inter alia, on the court's finding that (1) the circumstances surrounding the witnesses' observation of the crime were such that there was a grave likelihood of misidentification; (2) the witnesses had failed to give sufficiently detailed descriptions of the assailant; and (3) considerable pressure from both prison officials and prison factions had been brought to bear on the witnesses. Id., at 758-759.
II
8
The findings made by the Court of Appeals for the Ninth Circuit are considerably at odds with the findings made by the California Court of Appeal. Both courts made their findings after reviewing the state-court trial record and neither court has indicated that this record is not a completely adequate record upon which to base such findings.
9
If this were simply a run-of-the-mine case in which an appellate court had reached an opposite conclusion from a trial court in a unitary judicial system, there would be little reason for invocation of this Court's discretionary jurisdiction to make a third set of findings. But unfortunately for the smooth functioning of our federal system, which consists of 50 state judicial systems and one national judicial system, this is not such a run-of-the-mine case. Instead, this case presents important questions regarding the role to be played by the federal courts in the exercise of the habeas corpus jurisdiction conferred upon them by 28 U.S.C. § 2254.
10
It has long been established, as to those constitutional issues which may properly be raised under § 2254, that even a single federal judge may overturn the judgment of the highest court of a State insofar as it deals with the application of the United States Constitution or laws to the facts in question. As might be imagined, this result was not easily arrived at under the Habeas Corpus Act of 1867, the predecessor to 28 U.S.C. § 2254. But the present doctrine, adumbrated in the Court's opinion in Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543 (1923), and culminating in this Court's opinion in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), is that the Act of 1867 allows such collateral attack.
11
The petitioner asserts that in reaching its decision the majority of the Court of Appeals for the Ninth Circuit failed to observe certain limitations on its authority specifically set forth in 28 U.S.C. § 2254(d). Section 2254(d) provides:
12
"(d) In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit—
13
"(1) that the merits of the factual dispute were not resolved in the State court hearing;
14
"(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;
15
"(3) that the material facts were not adequately developed at the State court hearing;
16
"(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;
17
"(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;
18
"(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or
19
"(7) that the applicant was otherwise denied due process of law in the State court proceeding;
20
"(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record:
21
"And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in paragraphs numbered (1) to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes pursuant to the provisions of paragraph numbered (8) that the record in the State court proceeding, considered as a whole, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous."
22
It is obvious from a literal reading of the above that § 2254(d) is applicable to the present situation although it has been contended that this should not be the case where a state appellate court, as opposed to a trial court, makes the pertinent factual findings. We, however, refuse to read this limitation into § 2254(d).1 Admittedly, the California Court of Appeal made the factual determinations at issue here and it did so after a review of the trial court record. Nevertheless, it clearly held a "hearing" within the meaning of § 2254(d). Both respondent and the State were formally before the court. Respondent was given an opportunity to be heard and his claim received plenary consideration even though he failed to raise it before the trial court. After respondent presented his case to the state appellate court, that court concluded in a written opinion that "the facts of the present case" did not adequately support respondent's claim. Since that court was requested to determine the issue by respondent, we do not think he may now be heard to assert that its proceeding was not a "hearing" within the meaning of § 2254(d).
23
Section 2254(d) applies to cases in which a state court of competent jurisdiction has made "a determination after a hearing on the merits of a factual issue." It makes no distinction between the factual determinations of a state trial court and those of a state appellate court. Nor does it specify any procedural requirements that must be satisfied for there to be a "hearing on the merits of a factual issue," other than that the habeas applicant and the State or its agent be parties to the state proceeding and that the state-court determination be evidenced by "a written finding, written opinion, or other reliable and adequate written indicia." Section 2254(d) by its terms thus applies to factual determinations made by state courts, whether the court be a trial court or an appellate court. Cf. Swenson v. Stidham, 409 U.S. 224, 230, 93 S.Ct. 359, 363, 34 L.Ed.2d 431 (1972). This interest in federalism recognized by Congress in enacting § 2254(d) requires deference by federal courts to factual determinations of all state courts. This is true particularly in a case such as this where a federal court makes its determination based on the identical record that was considered by the state appellate court and where there was no reason for the state trial court to consider the issue because respondent failed to raise the issue at that level. See Souza v. Howard, 488 F.2d 462 (CA1 1973). In fact, if the state appellate court here had declined to rule on the "identification" issue because it had not been properly raised in the trial court, the federal court would have been altogether barred from considering it absent a showing of "cause" and "prejudice." Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).
24
Given the applicability of § 2254(d) to the present case, it is apparent that the Court of Appeals for the Ninth Circuit did not apply the "presumption of correctness" which is mandated by the statute to the factual determinations made by the California state courts. Indeed, the court did not even refer in its opinion to § 2254(d).2 Last Term we denied certiorari in Lombard v. Taylor, 445 U.S. 946, 100 S.Ct. 1346, 63 L.Ed.2d 781 (1980), in which a New York prosecutor sought certiorari from a judgment of the Court of Appeals for the Second Circuit, 606 F.2d 371. That court had held in a § 2254 action that the habeas petitioner had been the victim of knowing use of perjured testimony at his trial, and reversed the District Court's refusal to grant the writ. In that case, however, the Federal Court of Appeals indicated in the course of its opinion full awareness of § 2254(d), and after an examination of the same documentary evidence on which the state court relied, it expressly concluded that the state-court finding to the contrary was not entitled to deference by reason of § 2254(d). Taylor v. Lombard, 606 F.2d 371, 375 (1979). The approach of the Court of Appeals for the Ninth Circuit in the instant case was quite different. Its only reference to the previous state-court decision and collateral proceedings was to state in one sentence that "[t]he Petition followed the appellant's conviction of murder in a California state court and his exhaustion of all available state court remedies." 611 F.2d, at 755. From this statement, its opinion went directly to a discussion of the "facts" and constitutional merits of the respondent's claims.
25
Undoubtedly, a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit. This, however, was not the situation presented here. To the contrary, the Court of Appeals reached a conclusion which was in conflict with the conclusion reached by every other state and federal judge after reviewing the exact same record. Reading the court's opinion in conjunction with § 2254(d), it is clear that the court could not have even implicitly relied on paragraphs 1 through 7 of § 2254(d) in reaching its decision. It is impossible to tell whether the majority of the court relied on paragraph 8 because its opinion gives no indication that § 2254 was even considered.
26
Obviously, if the Court of Appeals in this case or any other court of appeals had simply inserted a boilerplate paragraph in its opinion that it had considered the state record as a whole and concluded that the state appellate court's factual determinations were not fairly supported by the record, this objection to the judgment of the Court of Appeals could not as easily be made. Just as obviously, this would be a frustration of the intent of Congress in enacting § 2254(d). Reference can be made to Rule 52 of the Federal Rules of Civil Procedure which requires a United States district court following a bench trial to "find the facts specially and state separately its conclusions of law thereon. . . ." It is a matter of common knowledge that on some occasions a district judge will simply take findings of fact and conclusions of law prepared by the party whom the judge has indicated at the close of trial shall prevail and without alteration adopt them as his own. However, a requirement such as is imposed by Rule 52 undoubtedly makes a judge more aware that it is his own imprimatur that is placed on the findings of fact and conclusions of law, whoever may prepare them. When Congress provided in § 2254(d) that a habeas court could not dispense with the "presumption of correctness" embodied therein unless it concluded that the factual determinations were not supported by the record, it contemplated at least some reasoned written references to § 2254(d) and the state-court findings. State judges as well as federal judges swear allegiance to the Constitution of the United States, and there is no reason to think that because of their frequent differences of opinions as to how that document should be interpreted, all are not doing their mortal best to discharge their oath of office.
27
Federal habeas has been a source of friction between state and federal courts, and Congress obviously meant to alleviate some of that friction when it enacted subsection (d) in 1966 as an amendment to the original Federal Habeas Act of 1867. Accordingly, some content must be given to the provisions of the subsection if the will of Congress be not frustrated. Since the 1966 amendment, this Court has had few opportunities to address the various provisions of subsection (d), and never in a context similar to the one presented here. See, e. g., Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); LaVallee v. Delle Rose, 410 U.S. 690, 93 S.Ct. 1203, 35 L.Ed.2d 637 (1973). A writ issued at the behest of a petitioner under 28 U.S.C. § 2254 is in effect overturning either the factual or legal conclusions reached by the state-court system under the judgment of which the petitioner stands convicted, and friction is a likely result. The long line of our cases previously referred to accepted that friction as a necessary consequence of the Federal Habeas Act of 1867, 28 U.S.C. § 2254. But it is clear that in adopting the 1966 amendment, Congress in § 2254(d) intended not only to minimize that inevitable friction but also to establish that the findings made by the state-court system "shall be presumed to be correct" unless one of seven conditions specifically set forth in § 2254(d) was found to exist by the federal habeas court. If none of those seven conditions were found to exist, or unless thehabeas court concludes that the relevant state-court determination is not "fairly supported by the record," "the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous." (Emphasis supplied.)3
28
Although arising in a much different context, we think the recent language used in Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), has no little bearing on the issue here:
29
"The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to 'instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.' In re Winship, 397 U.S. 358, 370 [90 S.Ct. 1068, 1076, 25 L.Ed.2d 368] (1970) (Harlan, J., concurring). The standard serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision." Id., at 423, 99 S.Ct., at 1808.
30
When it enacted the 1966 amendment to 28 U.S.C. § 2254, Congress specified that in the absence of the previously enumerated factors one through eight, the burden shall rest on the habeas petitioner, whose case by that time had run the entire gamut of a state judicial system, to establish "by convincing evidence that the factual determination of the State court was erroneous." 28 U.S.C. § 2254(d). Thus, Congress meant to insure that a state finding not be overturned merely on the basis of the usual "preponderance of the evidence" standard in such a situation. In order to ensure that this mandate of Congress is enforced, we now hold that a habeas court should include in its opinion granting the writ the reasoning which led it to conclude that any of the first seven factors were present, or the reasoning which led it to conclude that the state finding was "not fairly supported by the record." Such a statement tying the generalities of § 2254(d) to the particular facts of the case at hand will not, we think, unduly burden federal habeas courts even though it will prevent the use of the "boilerplate" language to which we have previously adverted. Moreover, such a statement will have the obvious value of enabling court of appeals and this Court to satisfy themselves that the congressional mandate has been complied with. No court reviewing the grant of an application for habeas corpus should be left to guess as to the habeas court's reasons for granting relief notwithstanding the provisions of § 2254(d). Cf. Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 444 F.2d 841, 851 (1970).
31
Having said this, we are not to be understood as agreeing or disagreeing with the majority of the Court of Appeals on the merits of the issue of impermissibly suggestive identification procedures. Both the California courts and the federal courts relied on the basic Simmons case for their legal analysis. Applying the same test, the majority of the Court of Appeals for the Ninth Circuit reached a different determination than had all the other courts which considered the issue. Assuredly this is not the first nor the last time that such a result will occur. We do think, however, that Congress was intent on some sort of written explanation of the § 2254(d) factors when such a result does occur. The judgment of the Court of Appeals for the Ninth Circuit is accordingly vacated, and the case is remanded for further proceedings consistent with this opinion.
32
It is so ordered.
33
Justice BLACKMUN concurs in the result.
34
He would vacate the judgment of the Court of Appeals and merely remand the case to that court for reconsideration in light of 28 U.S.C. § 2254(d).
35
Justice BRENNAN, with whom Justice MARSHALL and Justice STEVENS join, dissenting.
36
The Court holds today that an order of a federal habeas court requiring release or retrial of a state prisoner because of constitutional violations at his trial must be vacated if the court does not explain in its order why 28 U.S.C. § 2254(d) does not bar re-examination of issues decided by the state courts—even if the State did not contest the order on the ground of § 2254(d), and even if § 2254(d) is plainly inapplicable under decisions of this Court. I dissent.
37
* Respondent was convicted of first-degree murder of another prisoner, largely on the strength of identification testimony by three fellow inmates at a California penitentiary. Two of these witnesses had been shown photo identification arrays on three occasions, under circumstances that led the United States Court of Appeals for the Ninth Circuit to conclude that it was "obvious that there was a grave likelihood of irreparable misidentification." 611 F.2d 754, 758 (1979). Respondent did not object at trial to admission of this identification testimony. On appeal to the California Court of Appeal, respondent argued that the use of this identification evidence violated his due process rights as defined in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). The court considered this claim on the merits, and rejected it.
38
Respondent did not seek review in the California Supreme Court. Instead, he raised the pretrial identification issue in state habeas corpus proceedings, where his petitions were denied without opinion. Finally, he filed a petition for habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the Northern District of California, again raising the pretrial identification issue. In his return in opposition to respondent's petition for habeas corpus, petitioner argued that the District Court was precluded from re-examining the issue by virtue of § 2254(d), which accords a presumption of correctness to state-court factual findings, subject to certain exceptions not relevant here.1 The District Court denied the petition on its merits, without referring to § 2254(d). Respondent appealed to the Court of Appeals for the Ninth Circuit, where petitioner abandoned his § 2254(d) argument. That court reversed on the merits, finding that respondent's due process rights had been violated by the pretrial identification procedures. It did not refer to § 2254(d). Petitioner then filed a motion for rehearing and suggestion for rehearing en banc, this time including a one-sentence argument that § 2254(d) barred the federal court from reaching the pretrial identification issue. The Court of Appeals denied these motions without discussion.
II
39
I cannot join my Brethren in concluding that the Court of Appeals' decision must be vacated for its failure to discuss an issue not timely raised by petitioner. This Court today holds that a federal habeas court may not grant a petition for a writ without stating on the record why it was not bound by § 2254(d) to defer to the state-court judgment. Ante, at 551. It therefore vacates the judgment of the Court of Appeals in this case, even though petitioner failed to raise the § 2254(d) argument in his briefs before that court. The Court admits that "a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit." Ante, at 548. To that I would add that, except in exceptional circumstances, a court need not search the universe of legal argument and discuss every contention that might have been—but was not—made by the losing party. The burden on the dockets of the federal courts is severe enough already, without requiring the courts to raise, research, and explain an issue not deemed important enough by the parties to justify mention in their briefs.
40
Moreover, I cannot agree that today's holding will "ensure that this mandate of Congress [§ 2254(d)] is enforced," ante, at 551; rather, it is more likely to be seen as an invitation to lower federal courts to "inser[t] a boilerplate paragraph" in their opinions acknowledging their awareness of § 2254(d). See ante, at 549.2 The requirement is as useless as it is disruptive.
III
41
The Court's disposition of the instant case is all the more perplexing because § 2254(d) plainly constitutes no bar to the Court of Appeals' holding that the pretrial identification procedure employed by the police violated respondent's due process rights. Section 2254(d) requires a federal habeas court to defer to "a determination after a hearing on the merits of a factual issue, made by a State court. . . ." 28 U.S.C. § 2254(d) (emphasis supplied). The factual issues to which § 2254(d) applies are "basic, primary, or historical facts: facts 'in the sense of a recital of external events and the credibility of their narrators. . . .' " Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct. 1708, 1714, 64 L.Ed.2d 333 (1980) (quoting Townsend v. Sain, 372 U.S. 293, 309, n.6, 83 S.Ct. 745, 755, n.6, 9 L.Ed.2d 770 (1963)). Section 2254(d) does not bar a federal court from reviewing "a mixed determination of law and fact that requires the application of legal principles to the historical facts of this case." 446 U.S., at 342, 100 S.Ct., at 1715; see Brewer v. Williams, 430 U.S. 387, 403-404, 97 S.Ct. 1232, 1241, 51 L.Ed.2d 424 (1977).
42
What factual determinations did the Court of Appeals for the Ninth Circuit disregard? The court did not conduct an evidentiary hearing on the pretrial identification procedures, but relied on the same state trial court record relied upon by the California Court of Appeal. My examination of the opinions of the two courts does not reveal a single disagreement over a "basic, primary, or historical fact."
43
The treatment of the pretrial identification issue by the California court was brief and contained little in the way of formal factual findings. Its relevant findings were that "the witnesses had an adequate opportunity to view the crime"; that "there is no showing of influence by the investigating officers"; and that the witnesses' "descriptions are accurate." App. to Pet. for Cert. C-4 to C-5. The Court of Appeals for the Ninth Circuit explicitly agreed that the witnesses had "an opportunity . . . to observe the perpetrators of the crime," 611 F.2d, at 758, but disagreed with the California court'slegal conclusion that the opportunity for observation was constitutionally adequate, because of the "diversion of the witnesses' attention at the time the crime was committed." Id., at 759. Similarly, the Court of Appeals' description of the facts concerning the photographic lineup procedure differs in no significant detail from that offered by the California court. Compareid., at 756, with App. to Pet. for Cert. C-3 to C-4. The California court, however, concluded that "[t]he circumstances thus indicate the inherent fairness of the procedure," id., at C-5, while the Court of Appeals reached the opposite legal conclusion. The Court of Appeals, like the California court, did not dispute the accuracy of the witnesses' identifications, but only their degree of detail. 611 F.2d, at 758. Finally, the Court of Appeals considered whether using a photo array procedure rather than a lineup was necessary, a consideration not deemed relevant by the California court. Id., at 757.
44
Plainly, the disagreement between the courts is over the constitutional significance of the facts of the case, and not over the facts themselves. Whether a witness' opportunity to view a crime is "adequate" for constitutional purposes, whether a particular course of conduct by state police raises a possibility of irreparable misidentification serious enough to violate constitutional standards, whether a witness' description is sufficiently detailed to dispel doubt about the procedures imposed, and whether the necessity for a photographic identification procedure is constitutionally significant are examples of questions of law, or at least mixed questions of fact and law. The questions addressed by the Court of Appeals for the Ninth Circuit required the " 'application of constitutional principles to the facts as found,' " Brewer v. Williams, supra, 430 U.S., at 403, 97 S.Ct., at 1242 (quoting Brown v. Allen, 344 U.S. 443, 507, 73 S.Ct. 397, 437, 446, 97 L.Ed. 469 (1953) (opinion of Frankfurter, J.)), and thus fall outside the limitations of § 2254(d).
45
Indeed, this Court has held, in a case similar on its facts to this one, that a dispute over allegedly suggestive pretrial identification procedures is "not so much over the elemental facts as over the constitutional significance to be attached to them." Neil v. Biggers, 409 U.S. 188, 193, n.3, 93 S.Ct. 375, 379, n.3, 34 L.Ed.2d 401 (1972). Cf. Cuyler v. Sullivan, supra, at 342, 100 S.Ct., at 1714 (conclusion that lawyers undertook multiple representation not a "factual" determination within the meaning of § 2254(d)); Brewer v. Williams, supra, 430 U.S., at 395-397, 402-404, 97 S.Ct., at 1237, 1241 (conclusion that defendant waived his right to counsel not a "factual" determination within the meaning of § 2254(d)).
46
In Biggers, the District Court and the Court of Appeals for the Sixth Circuit, applying the "totality of the circumstances" test of Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), both concluded that pretrial identification procedures had violated a state prisoner's due process rights. This Court reversed, over a dissent claiming that the Court was violating its "long-established practice not to reverse findings of fact concurred in by two lower courts unless shown to be clearly erroneous." Neil v. Biggers, supra, 409 U.S., at 202, 93 S.Ct., at 383 (BRENNAN, J., joined by DOUGLAS and STEWART, JJ., dissenting). The Court rejected the dissenters' argument on the basis of its conclusion that application of the "totality of the circumstances" test to the undisputed primary facts in the trial court record did not constitute a factual finding. 409 U.S., at 193, n.3, 93 S.Ct., at 379, n.3. The instant case is indistinguishable. It is cruelly ironic that the Court would hold the constitutionality of pretrial identification procedures to be a question of law when the effect is to vacate a decision in favor of a prisoner whose incarceration had been held unconstitutional by lower courts, but would reject the same conclusion when the effect would be to vindicate such a prisoner's constitutional rights.
47
On the merits, petitioner contends that the "Ninth Circuit's application of an erroneous standard led it to an erroneous result and that application of the proper standard must lead to a conclusion that [respondent] was not denied due process by reason of the admission of identification evidence at his trial." Brief for Petitioner 49 (emphasis supplied); see also id., at 14.3 Thus, petitioner's very argument reveals that the difference between the Court of Appeals for the Ninth Circuit and the California Court of Appeal was over the applicable legal standard, and not over the particular facts of the case. And § 2254(d) surely does not detract from the well-established duty of federal courts "to apply the applicable federal law to the state court fact findings independently." Townsend v. Sain, 372 U.S., at 318, 83 S.Ct., at 760. A federal court need not—indeed, must not—defer to the state court's interpretation of federal law. Ibid.; see ante, at 543-544.4 In view of this, I cannot understand how the Court today can conclude that "[i]t is obvious from a literal reading of [§ 2254(d)] that § 2254(d) is applicable to the present situation. . . ." Ante, at 545. To me, it is just as obvious that § 2254(d) is not applicable.
IV
48
The Court does not challenge the correctness of the Court of Appeals' conclusion that the pretrial identification procedure employed by the state police in this case was "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." 611 F.2d, at 759. It is therefore not necessary to review the portions of the record and the precedents of this Court that support the conclusion of the Court of Appeals. Nevertheless, today's decision denies respondent the relief to which that court found that he is entitled. Since petitioner did not raise the § 2254(d) issue in the Court of Appeals, and since § 2254(d) is plainly inapplicable to the mixed question of law and fact at issue in this case, I can see no justice in this result. I therefore respectfully dissent.
1
This Court previously reserved the question in Cuyler v. Sullivan, 446 U.S. 335, 341, n.5, 100 S.Ct. 1708, 1714, n.5, 64 L.Ed.2d 333 (1980). The Courts of Appeals, without extensive analysis, have reached differing conclusions as to whether findings of fact made by a state appellate court can be considered "determination[s] after a hearing on the merits of a factual issue" within the meaning of 28 U.S.C. § 2254(d). Compare Drayton v. Hayes, 589 F.2d 117, 122, n.9 (CA2 1979); White v. Finkbeiner, 570 F.2d 194, 201 (CA7 1978), appeal after remand, 611 F.2d 186 (1979); Payne v. Cardwell, 436 F.2d 577 (CA6 1971); Hill v. Nelson, 466 F.2d 1346, 1348 (CA9 1972), with Souza v. Howard, 488 F.2d 462 (CA1 1973); and United States ex rel. Harris v. Illinois, 457 F.2d 191 (CA7 1972).
2
The dissent contends that any argument premised on § 2254(d) was "abandoned" because petitioner raised his § 2254(d) argument before the District Court, but did not do so in his appellate brief. Post, at 554. Presumably this contention does not mean to imply that petitioner conceded error with regard to the state-court factual determinations, but instead that he "abandoned" his right to rely on § 2254(d) as a reason for not rejecting these factual determinations. Whether or not the petitioner specifically directed the Court of Appeals' attention to § 2254(d) makes no difference as to the outcome of this case. The present codification of the federal habeas statute is the successor to "the first congressional grant of jurisdiction to the federal courts," Preiser v. Rodriguez, 411 U.S. 475, 485, 93 S.Ct. 1827, 1833, 36 L.Ed.2d 439 (1973), and the 1966 amendments embodied in § 2254(d) were intended by Congress as limitations on the exercise of that jurisdiction. As we held in Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 43, 53 L.Ed. 126 (1908), and have repeatedly since reaffirmed, "it is the duty of this [C]ourt to see to it that the jurisdiction of the [district court], which is defined and limited by statute, is not exceeded." Having had the benefit of the full briefing and argument from the parties on the § 2254(d) issue, we are simply following the well-established doctrine of the Mottley case in deciding the § 2254(d) issue.
3
In addition to minimizing the "friction" between the state and federal courts, the limited nature of the review provided by § 2254 also serves the interest that both society and the individual criminal defendant have "in insuring that there will at some point be the certainty that comes with an end to litigation, and that attention will ultimately be focused not on whether a conviction was free from error but rather on whether the prisoner can be restored to a useful place in the community." Sanders v. United States, 373 U.S. 1, 24-25, 83 S.Ct. 1068, 1081, 10 L.Ed.2d 148 (1963) (Harlan, J., dissenting). See also Schneckloth v. Bustamonte, 412 U.S. 218, 262, 93 S.Ct. 2041, 2065, 36 L.Ed.2d 854 (1973) (POWELL, J., concurring).
1
See ante, at 544-545.
2
The Court admits that the decision in Taylor v. Lombard, 606 F.2d 371 (CA2 1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1346, 63 L.Ed.2d 781 (1980), would be sustained under the rule announced today. Ante, at 547-548. The sole discussion of § 2254(d) by the Court of Appeals for the Second Circuit in Taylor was its conclusory statement: "The County Court's finding that there was no factual basis for the claim of perjury is not fairly supported by the record, and therefore is not entitled to deference. 28 U.S.C. § 2254(d)(8)." 606 F.2d, at 375. On the basis of this statement, we no more know whether the Court of Appeals for the Second Circuit correctly applied § 2254(d) in Taylor than we know whether the Court of Appeals for the Ninth Circuit correctly applied it in the instant case. Admittedly, the Second Circuit opinion manifested "full awareness" of the existence of § 2254(d), see ante, at 548, but it nevertheless "left [us] to guess as to [its] reasons for granting relief notwithstanding the provisions of § 2254(d)." See ante, at 552. I would be content to presume that federal judges are fully aware of so prominent a statute as § 2254(d), and to leave them free to devote their energies to writing opinions concerning contested issues.
3
In particular, petitioner argues that the Court of Appeals for the Ninth Circuit's consideration of the necessity for using pretrial photo displays was in conflict with this Court's precedents. Brief for Petitioner 31. The Court of Appeals has held that the necessity for the use of a photographic display is an important factor in judging the validity of pretrial identification procedures, though lack of necessity is not a per se ground for rejecting the identification. 611 F.2d, at 757; see United States v. Calhoun, 542 F.2d 1094, 1104 (CA9 1976), cert. denied, 429 U.S. 1064, 97 S.Ct. 792, 50 L.Ed.2d 781 (1977). The California Court of Appeal did not consider the necessity for the use of the photographic displays, and thus did not apply the same legal standard to the pretrial identification question. App. to Pet. for Cert. C-4 to C-5; see People v. Suttle, 90 Cal.App.3d 572, 580-581, 153 Cal.Rptr. 409, 414-415 (1979).
4
The Court does not suggest, nor could it, that this case falls within the exception to this general principle enunciated in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976).
| 01
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449 U.S. 590
101 S.Ct. 817
66 L.Ed.2d 762
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Petitioner,v.ASSOCIATED DRY GOODS CORPORATION.
No. 79-1068.
Argued Nov. 3, 1980.
Decided Jan. 26, 1981.
Syllabus
Section 706(b) of Title VII of the Civil Rights Act of 1964 provides that employment discrimination charges "shall not be made public" by the Equal Employment Opportunity Commission (EEOC) and bars public disclosure of anything "said or done" during informal Commission settlement endeavors. Section 709(e) makes it a misdemeanor for any EEOC officer or employee "to make public" any information the EEOC obtains through its investigative powers before the institution of any proceeding involving such information. After employment discrimination charges were filed against a department store division (Horne) of respondent, the EEOC requested Horne to provide it with the complainants' employment records and other information relating to Horne's personnel practices. Horne refused to provide the information unless the EEOC agreed not to disclose it to the charging parties. The EEOC refused to give this assurance, explaining its practice, pursuant to regulations and its Compliance Manual, of making limited disclosure to a charging party of information in his and other files when he needs that information in connection with a potential lawsuit. When Horne continued to refuse to provide the requested information, the EEOC subpoenaed the material. Respondent then filed suit in Federal District Court, seeking to have the EEOC's limited disclosure practices declared in violation of Title VII and to enjoin enforcement of the subpoena. The District Court held that such practices violated Title VII, and accordingly enforced the subpoena only on the condition that the EEOC treat charging parties as members of the "public" to whom it cannot disclose any information in its files. The Court of Appeals affirmed.
Held : Congress did not include charging parties within the "public" to whom disclosure of confidential information is illegal under §§ 706(b) and 709(e). Pp. 598-604.
(a) The "public" to whom §§ 706(b) and 709(e) forbid disclosure of charges and other information cannot logically include the parties to the agency proceeding, since the charges, of course, cannot be concealed from the charging party or from the respondent upon whom the statute requires notice to be served. A consistent reading of the statute requires that the "public" to whom § 709(e) prohibits disclosure of information obtained in Commission investigations similarly exclude the parties. P. 598.
(b) The legislative history of §§ 706(b) and 709(e) supports this reading of the statute. Pp. 598-600.
(c) Moreover, such reading of the statute is consistent with the coordinated scheme of administrative and judicial enforcement of Title VII. Limited disclosure to the parties can speed the EEOC's required investigation and enhances its ability to carry out its statutory responsibility to resolve charges through informal conciliation and negotiation. Pp. 600-602.
(d) Even if disclosure to charging parties may encourage litigation in some instances, this result is not inconsistent with Title VII's ultimate purposes of permitting a private right of action as an important part of the enforcement scheme. Pp. 602-603.
(e) It was error to hold that respondent had a categorical right to refuse to comply with the EEOC subpoena unless the EEOC assured it that the information supplied would be held in absolute secrecy. Respondent was only entitled to assurance that each employee filing a charge against Horne would see information in no file other than his or her own. Pp. 603-604.
4th Cir., 607 F.2d 1075, reversed and remanded.
Barry Sullivan, Chicago, Ill., for petitioner.
Roger S. Kaplan, New York City, for respondent.
Justice STEWART delivered the opinion of the Court.
1
Title VII of the Civil Rights Act of 1964 limits the authority of the Equal Employment Opportunity Commission to make public disclosure of information it has obtained in investigating and attempting to resolve a claim of employment discrimination.1 We granted certiorari in this case to consider whether the Court of Appeals for the Fourth Circuit was correct in holding that a prelitigation disclosure of information in a Commission file to the employee who filed the Title VII claim is a "public" disclosure within the meaning of the statutory restrictions. 445 U.S. 926, 100 S.Ct. 1311, 63 L.Ed.2d 758.2
2
* This case arose when the Commission sought evidence with respect to discrimination charges filed against the Joseph Horne Co., a division of the respondent, Associated Dry Goods Corp. Horne operates retail department stores in Pennsylvania. Between 1971 and 1973, seven Horne employees filed employment discrimination charges with the Commission, six alleging sex discrimination and one alleging racial discrimination. The Commission began its investigation by requesting Horne to provide the employment records of the complainants, and statistics, documents, and other information relating to Horne's general personnel practices. Horne refused to provide the information unless the Commission agreed beforehand not to disclose any of the requested material to the charging parties. The Commission refused to give this assurance, explaining its practice of making limited disclosure to a charging party of information in his and other files when he needs that information in connection with a potential lawsuit.3 When Horne continued to refuse to provide the information without an assurance of absolute secrecy, the Commission subpoenaed the material. After the Commission rejected Horne's petition for revocation of the agency subpoena, the respondent filed this suit, asking the District Court to declare that the Commission's limited disclosure practices violated Title VII, and to enjoin the Commission from enforcing the subpoena.4
3
The District Court, concluding that the Commission's disclosure of confidential information to charging parties upsets Title VII's scheme of negotiation and settlement, held that the regulations and the provisions in the Compliance Manual covering special disclosure to charging parties violate Title VII. Accordingly, the court enforced the subpoena only on the condition that the Commission treat charging parties as members of the "public" to whom it cannot disclose any information in its files. 454 F.Supp. 387 (ED Va.). The Court of Appeals affirmed the District Court's judgment. EEOC v. Joseph Horne Co., 607 F.2d 1075.
II
4
In enacting Title VII, Congress combined administrative and judicial means of eliminating employment discrimination. A person claiming to be the victim of discrimination must first file a charge with the Commission. The Commission must then serve notice of the charge on the employer, and begin an investigation to determine whether there is reasonable cause to believe the charge is true. 42 U.S.C. § 2000e-5(b). If it finds no such reasonable cause, the Commission must dismiss the charge. Ibid. If it does find reasonable cause, it must try to eliminate the alleged discriminatory practice "by informal methods of conference, conciliation, and persuasion." Ibid.5 If its attempts at conciliation fail, the Commission may bring a civil action against the employer. § 2000e-5(f)(1). But Title VII also makes private lawsuits by aggrieved employees an important part of its means of enforcement. If the Commission dismisses the charge, the employee may immediately file a private action. Ibid. And regardless of whether the Commission finds reasonable cause, the employee may bring an action 180 days after filing the charge if by that time the Commission has not filed its own lawsuit. Ibid.6
5
Title VII gives the Commission two formal means of obtaining information when it investigates a charge: The Commission may examine and copy evidence in the possession of the respondent employer, § 2000e-8(a), and subpoena evidence and documents, § 2000e-9. Congress imposed on the Commission a duty to maintain this information in confidence. Section 706(b) of Title VII directs that "[c]harges shall not be made public by the Commission."7 If the Commission attempts informally to resolve a charge for which it has found reasonable cause, it cannot make "public" anything said or done in the course of the negotiations between the Commission and the parties; any Commission employee violating this prohibition faces criminal penalties. Ibid. Section 709(e) of the statute supplements these prohibitions by making it a misdemeanor for any officer or employee of the Commission "to make public in any manner whatever any information" the Commission obtains through its investigative powers before the institution of any proceeding involving this information.8
6
Title VII nowhere defines "public." In its regulation governing disclosure, the Commission has construed the statute's prohibition of "public" release of information to permit prelitigation disclosure of charges and of investigative information to the parties where such disclosure "is deemed necessary for securing appropriate relief." 29 CFR § 1601.22 (1979). Specifically, the Commission has also created special disclosure rules permitting release of information in its files to charging parties or their attorneys, aggrieved persons in whose behalf charges have been filed and the persons or organizations who have filed the charges in their behalf, and respondents and their attorneys, so long as the request for the information is made in connection with contemplated litigation.9 Though normally a person can see information in the file only for the case in which he is directly involved, the Commission sometimes allows a prospective litigant to see information in files of cases brought by other employees against the same employer where that information is relevant and material to the litigant's case. EEOC Compliance Manual § 83.7(c).10 Before disclosing any information, however, the Commission expunges the names, identifying characteristics, and statements of any witnesses who have been promised anonymity, as well as the names of any other respondents.11 Moreover, any person requesting confidential information must execute a written agreement not to disclose the information to any other person, except as part of the normal course of litigation after a suit is filed.12
III
7
For the reasons that follow, we have concluded that Congress did not include charging parties within the "public" to whom disclosure of confidential information is illegal under the provisions of Title VII here at issue. Section 706(b) states that "[c]harges shall not be made public." 42 U.S.C. § 2000e-5(b). The charge, of course, cannot be concealed from the charging party. Nor can it be concealed from the respondent, since the statute also expressly requires the Commission to serve notice of the charge upon the respondent within 10 days of its filing. Ibid. Thus, the "public" to whom the statute forbids disclosure of charges cannot logically include the parties to the agency proceeding.13 And we must infer that Congress intended the same distinction when it used the word "public" in § 709(e), 42 U.S.C. § 2000e-8(e). The two statutory provisions treat essentially the same subject, and, absent any congressional indication to the contrary, we must assume that "public" means the same thing in the two sections.14
8
The very limited legislative history of the disclosure provisions supports this reading. The bill passed by the House contained no restrictions on public disclosure. See H.R. Rep. No. 914, 88th Cong., 1st Sess., 13 (1963), U.S.Code Cong. & Admin.News 1974, p. 2355.15 The disclosure provisions were made part of the substitute bill which Senators Dirksen and Humphrey introduced in the Senate, and which the House later passed without amendment. See 110 Cong.Rec. 12819 (1964). Senator Humphrey, the cosponsor of the bill, explained that the purpose of the disclosure provisions was to prevent wide or unauthorized dissemination of unproved charges, not limited disclosures necessary to carry out the Commission's functions: "[T]his is a ban onpublicizing and not on such disclosure as is necessary to the carrying out of the Commission's duties under the statute. . . . The amendment is not intended to hamper Commission investigations or proper cooperation with other State and Federal agencies, but rather is aimed at the making available to the general public of unproven charges." Id., at 12723 (emphasis added).16 The parties to an agency proceeding are hardly members of the "general public," especially since, as common sense and the express language of § 706(b) show, see supra, at 598, they always have available to them the charge—proved or unproved—in the case to which they are parties.17
9
This reading of the statute, moreover, is consistent with the coordinated scheme of administrative and judicial enforcement which Congress created to enforce Title VII. See supra, at 595. First, limited disclosure to the parties can speed the Commission's required investigation: the Commission can more readily obtain information informally—rather than through its formal powers under 42 U.S.C. § 2000e-9—if it can present the parties with specific facts for them to corroborate or rebut. Second, limited disclosure enhances the Commission's ability to carry out its statutory responsibility to resolve charges through informal conciliation and negotiation: A party is far more likely to settle when he has enough information to be able to assess the strengths and weaknesses of his opponent's case as well as his own.18
10
The respondent argues vigorously that the disclosure of investigative information to charging parties may encourage many lawsuits that would not otherwise be filed, and thus contravene the congressional policy of relying on administrative resolution and settlement. But the effect of limited disclosure may be just the opposite. The employee has little to gain from filing a futile lawsuit, and indeed faces the possibility of an adverse fee award if the suit is frivolous. Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648. Pointless litigation burdens both the parties and the federal courts, and it is in the interest of all concerned that the charging party have adequate information in assessing the feasibility of litigation. Under the respondent's view of the statute, however, the charging party would be able to obtain that information only after filing a lawsuit. See 42 U.S.C. § 2000e-8(e). Thus, a charging party would have to file suit in a hopeless case in order to discover that the case was hopeless.19 The Commission's disclosure practice may therefore help fulfill the statutory goal of maximum possible reliance upon voluntary conciliation and administrative resolution of claims.
11
In any event, even if disclosure may encourage litigation in some instances, that result is not inconsistent with the ultimate purposes of Title VII.20 The private right of action remains an important part of Title VII's scheme of enforcement, Alexander v. Gardner-Denver Co., 415 U.S. 36, 45, 94 S.Ct. 1011, 1018, 39 L.Ed.2d 147. Congress considered the charging party a "private attorney general," whose role in enforcing the ban on discrimination is parallel to that of the Commission itself. Christiansburg Garment Co. v. EEOC, supra, at 421, 98 S.Ct., at 700.21 The private litigant could hardly play that role without access to information needed to assess the feasibility of litigation.
IV
12
Nevertheless, though Congress allowed disclosure of investigative information in a charging party's file to that party himself, nothing in the statute or its legislative history reveals any intent to allow the Commission to reveal to that charging party information in the files of other charging parties who have brought claims against the same employer. See EEOC Compliance Manual § 83.7(c).22 As noted earlier, the charging party cannot logically be a member of the "public" to whom disclosure is forbidden by § 706(b) of Title VII, and, by extension, cannot be a member of the public under § 709(e). See supra, at 598. The reason, however, is that the charging party is obviously aware of the charge he has filed, and so cannot belong to the public to which Congress referred when it directed that "[c]harges shall not be made public." 42 U.S.C. § 2000e-5(b).
13
But there is no reason why the charging party should know the content of any other employee's charge, and he must be considered a member of the public with respect to charges filed by other people. With respect to all files other than his own, he is a stranger.
14
The Commission notes that it often consolidates substantially similar charges for investigation, and in other instances draws upon information generated in an earlier investigation of the same employer. The Commission therefore argues that because information in one party's file may be directly relevant to another party's charge, it would be burdensome for it to have to reproduce the generally relevant information for each file, and unfair to a charging party to deny him access to generally relevant information that, by chance of timing, appears first and fully in another party's file.
15
But the Commission's argument is merely one of administrative convenience, and such convenience cannot override the prohibitions in the statute. Statistics and other information about an employer's general practices may certainly be relevant to individual charges of discrimination, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-805, 93 S.Ct. 1817, 1825, 36 L.Ed.2d 668, but by including such information, in full or summary form, in each individual charging party's file, the Commission can fully comply with the statute while giving each party the information he needs to weigh the strength of his own case.
V
16
The Court of Appeals erred, therefore, in holding that the respondent had a categorical right to refuse to comply with the EEOC subpoena unless the Commission assured it that the information supplied would be held in absolute secrecy. The respondent was entitled only to assurance that each employee filing a charge against Horne would see information in no file other than his or her own. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.
17
It is so ordered.
18
Justice POWELL took no part in the decision of this case. Justice REHNQUIST took no part in the consideration or decision of this case.
19
Justice BLACKMUN, concurring in part and dissenting in part.
20
In my view, the proper standard for evaluating disclosures of information by the Equal Employment Opportunity Commission (EEOC) was expressed by Senator Humphrey, the cosponsor of the bill that became Title VII. As the Court notes, ante, at 598-600, Senator Humphrey stated that the prohibitions against public disclosure in §§ 706(b) and 709(e) of Title VII, 42 U.S.C. §§ 2000e-5(b) and 2000e-8(e), do not forbid "such disclosure as is necessary to the carrying out of the Commission's duties under the statute." 110 Cong.Rec. 12723 (1964). I would adhere to this standard and require the Commission to justify any disclosure of its investigative files by demonstrating that the disclosure is "necessary to the carrying out of [its] duties."* Because the Commission must communicate charges to respondents, investigate the charges that have been filed, determine whether there is reasonable cause to believe that the charges are true, inform the parties of its determination, and attempt to settle charges, see § 706(b), there undoubtedly are many occasions when it must disclose some of its information to the parties and to witnesses. The Court of Appeals erred, therefore, when it held that no disclosure to parties and witnesses is permitted before a suit is filed.
21
The Commission, however, has not pointed to any provision of Title VII imposing a duty upon it to allow charging parties access to its records "for the purpose of reviewing information in the case file in connection with pending or contemplated litigation." EEOC Compliance Manual § 83.3(a). I do not find it necessary to resolve the disagreement between the Commission and respondent over whether the Commission's prelitigation disclosure rules are a help or a hindrance to the effective enforcement of Title VII. I simply find no provision of the statute authorizing the Commission to assist charging parties who are trying to decide whether to file a suit.
22
The Court of Appeals held that the pre-litigation disclosure rules are invalid. I would affirm that part of its judgment.
23
Justice STEVENS, dissenting.
24
The Court construes a prohibition against public disclosure as an authorization for prelitigation discovery. A principal basis for the Court's unusual construction of rather plain statutory language is that because a charging party must know the contents of a charge, that party cannot be a member of the public to which disclosure is prohibited. In my view, the reason that the statute is not violated by the charging party's knowledge of the contents of a charge is that he is the source of the information contained in the charge; no disclosure occurs when he reads what he has written, regardless of whether he is a member of the public.
25
To encourage prompt and full disclosure of relevant information to a neutral conciliator, Congress assured employees and employers alike that no public disclosure of such information would occur prior to the institution of formal proceedings. To enforce this assurance, the statute imposes criminal penalties on Commission personnel who disclose information to the public. See 42 U.S.C. § 2000e-8.1 It seems fanciful to me to conclude that Congress intended to prohibit direct disclosure while permitting indirect disclosure. That result, however, is the consequence of the Court's view that direct disclosure may be made to a fairly large group of persons who can then pass the information along to others.2 Although Commission rules do provide that such persons shall agree not to make disclosed information public to others, neither the statutes nor the regulations contain any sanction for the violation of that sort of agreement.3 If Congress had regarded this group as members of some nonpublic category, I believe that Congress would have expressly prohibited them from making any public disclosure of the confidential information they receive from the Commission.4 The Court's reading of the statute shows little respect for the drafting ability of Congress.
26
I therefore agree with the Court of Appeals for the Fourth Circuit that the statute should be interpreted in accordance with its plain meaning.
27
Accordingly, I respectfully dissent.
1
Section 706(b) of Title VII, 78 Stat. 259, as amended, 42 U.S.C. § 2000e-5(b), provides in relevant part:
"Charges shall be made in writing under oath or affirmation and shall contain such information and be in such form as the Commission requires. Charges shall not be made public by the Commission. . . . If the Commission determines after such investigation that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion. Nothing said or done during and as part of such informal endeavors may be made public by the Commission, its officers or employees, or used as evidence in a subsequent proceeding without the consent of the persons concerned. Any person who makes public information in violation of this subsection shall be fined not more than $1,000 or imprisoned for not more than one year, or both. . . ."
Section 709(e) of Title VII, 78 Stat. 264, 42 U.S.C. § 2000e-8(e), provides:
"It shall be unlawful for any officer or employee of the Commission to make public in any manner whatever any information obtained by the Commission pursuant to its authority under this section prior to the institution of any proceeding under this title involving such information. Any officer or employee of the Commission who shall make public in any manner whatever any information in violation of this subsection shall be guilty of a misdemeanor and upon conviction thereof, shall be fined not more than $1,000, or imprisoned not more than one year."
2
The decision of the Court of Appeals in this case that the Commission lacks the authority to make such a disclosure, EEOC v. Joseph Horne Co., 607 F.2d 1075 (CA4), conflicts with that of the Court of Appeals for the Fifth Circuit in H. Kessler & Co. v. EEOC, 472 F.2d 1147. The Courts of Appeals for the Seventh and District of Columbia Circuits have construed the "public" disclosure provisions of the statute in virtually the same way as did the Court of Appeals for the Fourth Circuit in the present case, though in the somewhat different context of the Commission's disclosure to individual charging parties of materials emerging from a systemwide investigation of an employer's practices after the Commission itself has brought a charge. Burlington Northern, Inc. v. EEOC, 582 F.2d 1097 (CA7); Sears, Roebuck & Co. v. EEOC, 189 U.S.App.D.C. 163, 581 F.2d 941. Since the Commission itself brought no charge in this case, the question of how the disclosure provisions apply in that context is not before the Court.
3
The Commission's general policy on disclosure is set out in 29 CFR § 1601.22 (1979):
"Neither a charge, nor information obtained pursuant to section 709(a) of Title VII, nor information obtained from records required to be kept or reports required to be filed pursuant to section 709(c) and (d) of Title VII, shall be made matters of public information by the Commission prior to the institution of any proceedings under this Title involving such charge or information. This provision does not apply to such earlier disclosures to charging parties, or their attorneys, respondents or their attorneys, or witnesses where disclosure is deemed necessary for securing appropriate relief. This provision also does not apply to such earlier disclosures to representatives of interested Federal, State, and local authorities as may be appropriate or necessary to the carrying out of the Commission's function under Title VII, nor to the publication of data derived from such information in a form which does not reveal the identity of charging parties, respondents, or persons supplying the information."
The Commission also has created very specific "special disclosure" rules governing the form and scope of disclosure to those persons whom the Commission treats as being separate from the "public" to whom the statute forbids any disclosure. 29 CFR § 1610.17(d) (1979); EEOC Compliance Manual § 83 et seq.
4
The complaint also alleged that the EEOC disclosure rules violate the Administrative Procedure Act, 5 U.S.C. §§ 551, 553, the Trade Secrets Act, 18 U.S.C. § 1905, and the Freedom of Information Act, 5 U.S.C. § 552. In addition, it alleged that the rules were substantive, rather than procedural, and therefore exceeded the Commission's statutory authority to issue rules of the latter type only. See 42 U.S.C. § 2000e-12. Neither the District Court nor the Court of Appeals addressed any of these allegations, and the issues they raise are not now before us.
5
In most cases, the Commission actually begins its attempt to achieve a negotiated settlement before it makes a reasonable-cause determination. 29 CFR § 1601.20 (1979); EEOC Compliance Manual § 15. If it does achieve an early settlement, the agreement states that the Commission has made no judgment on the merits of the claim. Ibid. To investigate a charge as quickly as possible and to improve the chances of an early informal resolution, the Commission holds a factfinding conference well before it makes a reasonable-cause decision, with each party presenting its version of the facts. 29 CFR § 1601.15(c) (1979).
6
Under Commission regulations, the employee may obtain a right-to-sue letter upon request once 180 days have passed from the filing of the charge, 29 CFR § 1601.28(a)(1), but the Commission may issue a right-to-sue letter earlier if it finds that it cannot complete its consideration of a charge within 180 days of filing, § 1601.28(a)(2). The statute gives the employee 90 days from the Commission's notice of right to sue to file a private lawsuit. 42 U.S.C. § 2000e-5(f)(1).
7
See n. 1, supra.
8
See n. 1, supra.
9
A charging party, however, cannot obtain information under these rules until his right to sue has attached, unless he can demonstrate a compelling need for earlier disclosure. EEOC Compliance Manual § 83.3(a).
10
The Commission defines "relevant and material" as follows:
"Information in other case files is relevant or material when other case files contain charges, investigations or determinations involving the same basis (e. g., sex, religion, national origin, race) with limited exceptions such as when the private litigant's case alleged discrimination in promotion against females and the other case file involved a male's claim that he was not hired because of respondent's policy of not hiring long haired males. Other case files may be relevant or material if they involve a different basis only when the treatment afforded one protected class is probative of treatment afforded the private litigant's class (e. g., systemic discrimination against Spanish Surnamed Americans is often probative as to treatment accorded Blacks and vice versa)." EEOC Compliance Manual § 83.7(c)(2).
However, whenever the Commission discloses to a charging party information from other case files, it does not reveal the identity of the other employees who brought charges against the employer. § 83.7(c)(4).
11
The Commission also expunges any records of or statements obtained in its informal settlement negotiations, except for information which the Commission can otherwise obtain under its statutory power to copy or subpoena evidence. See 42 U.S.C. §§ 2000e-8(a), 2000e-9.
12
"Information in case files may be disclosed only on the condition that the person requesting disclosure agree in writing not to make the information obtained public except in the normal course of a civil action or other proceeding instituted under Title VII." EEOC Compliance Manual § 83.3(b).
13
The statute also forbids public disclosure of any matters arising in informal conciliation "without the written consent of the persons concerned." § 2000e-5(b). This phrase suggests that the parties, the "persons" whose consent would most obviously be necessary, are not members of the "public" to whom disclosure is forbidden.
14
The language in § 709(e) forbidding disclosure "in any manner whatever," seems clearly to refer to the means of publication, and not to the persons to whom disclosure is forbidden.
15
The House bill, however, did incorporate by reference the provisions of § 10 of the Federal Trade Commission Act, 38 Stat. 723, as amended, 15 U.S.C. § 50, which prohibit FTC employees from making "public any information obtained from the Commission without its authority. . . ." See H.R. 7152, 88th Cong., 1st Sess., § 710(a) (1963). Under FTC rules construing § 10, the ban on disclosure applies only to unauthorized release of information, and does not prevent disclosure to parties to FTC proceedings. 16 CFR §§ 1.41, 1.133, 1.134 (1964) (current version at 16 CFR §§ 3.36, 4.10(c) (1980)). Thus, in passing the substitute bill without amendment, the House may well have assumed that the express disclosure provisions in the Senate bill gave the Commission powers of disclosure similar to those under the FTC Act.
16
The other cosponsor of the Senate bill, Senator Dirksen, explained § 706(b)'s prohibition of any "public" disclosure of matters revealed during informal conciliation attempts as follows: "The maximum results from the voluntary approach will be achieved if the investigation and conciliation are carried on in privacy. If voluntary compliance with this title is not achieved, the dispute will be fully exposed to public view when a court suit is filed." 110 Cong.Rec. 8193 (1964). Senator Dirksen's explanation strongly suggests that the parties are considered part of the private efforts at conciliation, not members of the general public to whom the dispute will be "fully exposed" after litigation begins.
17
The principle that courts should respect an agency's contemporaneous construction of its founding statute, Power Reactor Co. v. Electricians, 367 U.S. 396, 408, 81 S.Ct. 1529, 1535, 6 L.Ed.2d 924, also supports this view of Title VII, since the Commission first issued its rule permitting disclosure to the charging party shortly after Congress created the EEOC in 1965. 30 Fed.Reg. 8407 (1965). Moreover, such a contemporaneous construction deserves special deference when it has remained consistent over a long period of time. See Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 210, 93 S.Ct. 364, 367, 34 L.Ed.2d 415. The Commission's current regulation permitting such disclosure, 29 CFR § 1601.22 (1979), reflects no significant change from the original regulation. The original regulation permitted disclosure to the charging party "as may be appropriate or necessary to the carrying out of the Commission's functions. . . ." 30 Fed.Reg. 8409 (1965). The regulation was changed in 1977 to allow disclosure to the charging party's attorney as well as to the party himself, and to rephrase the controlling condition for disclosure as "where such disclosure is deemed necessary for securing appropriate relief." 42 Fed.Reg. 42024 (1977) (codified at 29 CFR § 1601.22 (1979)). In the 15 years during which the Commission has consistently allowed limited disclosure to the charging party, Congress has never expressed its disapproval, and its silence in this regard suggests its consent to the Commission's practice. United States v. Jackson, 280 U.S. 183, 196-197, 50 S.Ct. 143, 147, 74 L.Ed. 361. In 1972 Congress made major changes in Title VII, but the only change in the disclosure provisions was a very minor one in § 706(b): Congress amended the provision requiring consent before disclosure of conciliation matters by replacing "consent of the parties" with "consent to the persons concerned." Section 706(b) was also amended to permit charges to be filed "on behalf of" as well as by aggrieved parties, and the new phrase "persons concerned" was probably intended to conform to that change. See 118 Cong.Rec. 4941 (1972).
18
When the Commission issues its decision on whether there is probable cause to believe the charge is true, it explains the factual bases for its conclusion. EEOC Compliance Manual § 40.7. A positive finding may thereby be a spur to settlement; a negative finding may deter the employee from filing a frivolous lawsuit. If the Commission were not allowed to disclose to the parties essential facts it obtained during its investigation, it would be able to announce no more than its bare conclusion on reasonable cause, and these important benefits of the reasonable-cause determination would be lost.
Moreover, a charging party who consents to a settlement negotiated by the Commission waives his right to file a civil action. 42 U.S.C. § 2000e-5(f)(1); see Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 364, 97 S.Ct. 2447, 2453, 53 L.Ed.2d 402. Of course, anyone who settles a case gives up the right to litigate it. But Title VII places employment discrimination claimants in an especially difficult position by forcing them to yield initial control of their potential lawsuits to the Commission, which, in reaching agreement with the employer, might have interests different from those of the employee. It seems unlikely that Congress would force a Title VII charging party, who would have difficulty resisting the opportunity to enter the agreement negotiated by the Commission, to waive his statutory right to litigate when he cannot know the essential facts obtained in the Commission's investigations.
19
An impecunious employee would be unlikely to be able to conduct a thorough investigation of his own after he filed a charge, and therefore would be tempted to file a lawsuit so that he could request appointed counsel, 42 U.S.C. § 2000e-5(f)(1), if the statute did not allow the Commission to give him essential investigative information before he filed suit.
20
The filing of a private lawsuit may actually encourage settlement. See Young v. International Telephone & Telegraph Co., 438 F.2d 757, 764 (CA3).
21
The legislative history of the 1972 amendments to Title VII reflects a strong reaffirmation of the importance of the private right of action in the Title VII enforcement scheme:
"The retention of the private right of action . . . is intended to make clear that an individual aggrieved by a violation of Title VII should not be forced to abandon the claim merely because of a decision by the Commission or the Attorney General as the case may be, that there are insufficient grounds for the Government to file a complaint. . . .
"It is hoped that recourse to the private lawsuit will be the exception and not the rule. . . . However, as the individual's rights to redress are paramount under the provisions of Title VII it is necessary that all avenues be left open for quick and effective relief." 118 Cong.Rec. 7565 (1972) (Section-by-Section analysis).
22
See n. 10, supra.
*
As the Court notes, the agency adopted precisely this standard as a contemporaneous construction of the statute. Its first disclosure rules, issued in 1965, authorized disclosure to the charging party "as may be appropriate or necessary to the carrying out of the Commission's function." 30 Fed.Reg. 8409 (1965). This regulation remained unchanged until 1977, when it was amended to state a broader standard, although the agency disclaimed an intent to do so. See 42 Fed.Reg. 42024 (1977). Disclosure to a charging party, his or her attorney, and certain others is now permitted when it "is deemed necessary for securing appropriate relief." 29 CFR § 1601.22 (1979). That this is a departure from the previous standard is clear, since the Commission retained the "necessary to the carrying out of the Commission's function" language for disclosures of information to interested federal, state, or local authorities. Ibid.
The Regulations in the EEOC Compliance Manual which set forth the agency's prelitigation disclosure program were first adopted in 1975. They hardly can be called a contemporaneous construction of Title VII.
1
A violation of the disclosure prohibition contained in § 2000e-8(e) is a misdemeanor punishable by 1-year imprisonment and a $1,000 fine.
2
The persons to whom special disclosure is permitted, as described by the Court, include parties or their attorneys, aggrieved persons in whose behalf charges have been filed, and the persons or organizations who have filed the charges in their behalf, and respondents and their attorneys. See ante, at 596-597.
3
The consequences of a violation surely do not include the criminal penalties that the statute expressly authorizes when Commission personnel make public disclosure.
4
The Commission argues that it could prevent further disclosure by seeking injunctive and compensatory relief for breach of the agreement not to disclose the information to others. Brief for Petitioner 37-38, n. 24. This remedy may ameliorate the practical consequences of the Commission's regulation, but the existence of such a remedy does not answer the question of why Congress provided no express sanction for further disclosure by this nonpublic category.
| 12
|
449 U.S. 609
101 S.Ct. 775
66 L.Ed.2d 776
CONSOLIDATED RAIL CORPORATION et al.v.NATIONAL ASSOCIATION OF RECYCLING INDUSTRIES, INC., et al.
No. 80-568.
Jan. 26, 1981.
PER CURIAM.
1
Section 204 of the Railroad Revitalization and Regulatory Reform Act of 1976, Pub.L. 94-210, 90 Stat. 40, note following 45 U.S.C. § 793, directed the Interstate Commerce Commission to conduct an investigation to determine whether the rail rate structure for recyclable and competing virgin materials unjustly discriminates against recyclables or whether such rates are unreasonable, and, if found to be so, to require the removal of any such defect from the structure. The Act demonstrated congressional concern that rail rates may have been unjustly impeding the movement of recycled materials in a market of diminishing virgin resources. S.Rep.No. 94-499, p. 51 (1975).
2
After conducting the investigation required by §§ 204(a)(1) and (2), the Commission concluded that the rail rate structure was neither discriminatory with respect to recyclable materials, nor with few exceptions, unreasonable. Investigation of Freight Rates for the Transportation of Recyclable or Recycled Commodities, 356 I.C.C. 114 (1977). The Court of Appeals for the District of Columbia Circuit reversed, finding that the Commission had applied an overly restrictive definition of "competitive" in assessing whether particular commodities were comparable for purposes of determining discrimination, and that the Commission had improperly shifted the burden of proof from the railroads. National Association of Recycling Industries, Inc. v. ICC, 190 U.S.App.D.C. 118, 585 F.2d 522 (1978). The case was remanded with orders to the Commission to conduct an expedited investigation which would remedy these errors.
3
On remand, the Commission found that certain recyclable materials were being discriminated against in the rate structure and concluded that, in general, rates for transportation of recyclables were unreasonably high if they produced a revenue-to-variable cost ratio exceeding 180%. The Commission ordered the elimination of all rate discrimination and ordered that rates for recyclable materials which produced revenue in excess of the 180% ratio be reduced accordingly. Investigation of Freight Rates for transportation of Recyclable or Recycled Commodities, 361 I.C.C. 238 (1979). In eliminating the discrimination, the railroads were free to use any combination of raising or lowering rates which would equalize rates for recyclable and competing virgin materials, so long as the resulting rate would not be unreasonable. Investigation of Freight Rates for Transportation of Recyclable or Recycled Commodities, 361 I.C.C. 641 (1979). Under this approach, the railroads could raise the rates for recyclable material and competing virgin material to a level above the previous levels for either commodity, if the new rate did not produce revenue in excess of the 180% ratio.
4
The Court of Appeals affirmed with respect to the Commission's findings on discrimination. National Association of Recycling Industries, Inc. v. ICC, 201 U.S.App.D.C. 342, 627 F.2d 1328 (1980). However, the court found fault with the scope of the Commission's remedy for eliminating discrimination and with the Commission's failure adequately to justify the 180% ratio as indicative of reasonableness. The court revoked all rate increases for recyclable material put into effect pursuant to those perceived errors and remanded for further proceedings. In a supplementary order, the court made it clear that the central task on remand would be to determine whether the 180% ratio, or some other formula, provided the appropriate standard for determining reasonableness. Until such a standard had been adequately justified, the court enjoined implementation of any rate increase for recyclable material, excepting one caused by a general rate increase.
5
The railroads sought certiorari, challenging only those aspects of the Court of Appeals' decision which revoked or enjoined rate increases.* The argument is that the lower court was without authority to enter such orders. We agree. The authority to determine when any particular rate should be implemented is a matter which Congress has placed squarely in the hands of the Commission. Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658, 662-672, 83 S.Ct. 984, 986-991, 10 L.Ed.2d 52 (1963). While the Court of Appeals was not without power to order further proceedings to determine the propriety of the 180% ratio standard, the court stepped beyond the proper exercise of its power when it revoked rates implemented under the standard and enjoined any further increases toward the 180% level. The basis for these remedies was the court's conclusion that the Commission had failed to adequately support the choice of the 180% figure. That standard was not rejected outright; the court's opinion leaves open the possibility that the 180% ratio may eventually prevail.
6
Under the above circumstances, there is no basis in our prior decisions for the revocation order or for the injunction against further increases. "If a reviewing court cannot discern [the Commission's] policies, it may remand the case to the agency for clarification and further justification of the departure from precedent. . . . When a case is remanded on the ground that the agency's policies are unclear, an injunction ordinarily interferes with the primary jurisdiction of the Commission." Atchison, T. & S.F. R. Co. v. Wichita Board of Trade, 412 U.S. 800, 822, 93 S.Ct. 2367, 2382, 37 L.Ed.2d 350 (1973); see United States v. SCRAP, 412 U.S. 669, 690-698, 93 S.Ct. 2405, 2417-2421, 37 L.Ed.2d 254 (1973); Arrow Transportation Co. v. Southern R. Co., supra; see also Southern R. Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 99 S.Ct. 2388, 60 L.Ed.2d 1017 (1979). Here, the court was dissatisfied with the Commission's justification for adopting the 180% standard, and the case was remanded for further proceedings which could either produce a new standard or clarify the basis for the 180% ratio. Such a posture provides no basis for either revoking or enjoining rate increases under the above authorities. Accordingly, the petition for a writ of certiorari is granted, those portions of the Court of Appeals decision revoking or enjoining rate increases are vacated, and the case is remanded for proceedings consistent with the immediate disposition.
7
So ordered.
8
Justice POWELL took no part in the consideration or decision of this case.
*
On October 14, 1980, the President signed into law the Staggers Rail Act of 1980, Pub.L. 96-448, 94 Stat. 1895. Section 204 of the Act amends 49 U.S.C. § 10731 (1976 ed., Supp. III) so as to provide guidelines under which the Commission must develop a new revenue-to-variable cost standard for all recyclables excepting iron and steel scrap. Congress has estimated that that ratio would not exceed 160%. S.Rep.No. 96-470, p. 34 (1979). Although the Act may result in the Commission's adoption of a standard lower than 180%, that factor has no bearing on the Court of Appeals' power to revoke or enjoin the rate increases at issue here.
| 89
|
449 U.S. 560
101 S.Ct. 802
66 L.Ed.2d 740
Noel CHANDLER and Robert Granger, Appellants,v.State of FLORIDA.
No. 79-1260.
Argued Nov. 12, 1980.
Decided Jan. 26, 1981.
Syllabus
The Florida Supreme Court, following a pilot program for televising judicial proceedings in the State, promulgated a revised Canon 3A(7) of the Florida Code of Judicial Conduct. The Canon permits electronic media and still photography coverage of judicial proceedings, subject to the control of the presiding judge and to implementing guidelines placing on trial judges obligations to protect the fundamental right of the accused in a criminal case to a fair trial. Appellants, who were charged with a crime that attracted media attention, were convicted after a jury trial in a Florida trial court over objections that the televising and broadcast of parts of their trial denied them a fair and impartial trial. The Florida District Court of Appeal affirmed, finding no evidence that the presence of a television camera hampered appellants in presenting their case, deprived them of an impartial jury, or impaired the fairness of the trial. The Florida Supreme Court denied review. The Florida courts did not construe Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543, as laying down a per se constitutional rule barring broadcast coverage under all circumstances.
Held : The Constitution does not prohibit a state from experimenting with a program such as is authorized by Florida's Canon 3A(7). Pp. 569-583.
(a) This Court has no supervisory jurisdiction over state courts, and, in reviewing a state-court judgment, is confined to evaluating it in relation to the Federal Constitution. P. 570.
(b) Estes v. Texas, supra, did not announce a constitutional rule that all photographic, radio, and television coverage of criminal trials is inherently a denial of due process. It does not stand as an absolute ban on state experimentation with an evolving technology, which, in terms of modes of mass communication, was in its relative infancy in 1964 when Estes was decided, and is, even now, in a state of continuing change. Pp. 570-574.
(c) An absolute constitutional ban on broadcast coverage of trials cannot be justified simply because there is a danger that, in some cases, conduct of the broadcasting process or prejudicial broadcast accounts of pretrial and trial events may impair the ability of jurors to decide the issue of guilt or innocence uninfluenced by extraneous matter. The appropriate safeguard against juror prejudice is the defendant's right to demonstrate that the media's coverage of his case—be it printed or broadcast—compromised the ability of the particular jury that heard the case to adjudicate fairly. Pp. 574-575.
(d) Whatever may be the "mischievous potentialities [of broadcast coverage] for intruding upon the detached atmosphere which should always surround the judicial process," Estes v. Texas, supra, 381 U.S. at 587, 85 S.Ct. at 1662, at present no one has presented empirical data sufficient to establish that the mere presence of the broadcast media in the courtroom inherently has an adverse effect on that process under all circumstances. Here, appellants have offered nothing to demonstrate that their trial was subtly tainted by broadcast coverage—let alone that all broadcast trials would be so tainted. Pp. 575-580.
(e) Nor have appellants shown either that the media's coverage of their trial—printed or broadcast—compromised the jury's ability to judge them fairly or that the broadcast coverage of their particular trial had an adverse impact on the trial participants sufficient to constitute a denial of due process. Pp. 580-582.
(f) Absent a showing of prejudice of constitutional dimensions to these appellants, there is no reason for this Court either to endorse or to invalidate Florida's experiment. P. 582.
376 So.2d 1157, affirmed.
Joel Hirschhorn, Miami, Fla., for appellants.
Calvin L. Fox, Asst. Atty. Gen., and Jim Smith, Atty. Gen., State of Fla., for appellee.
Chief Justice BURGER delivered the opinion of the Court.
1
The question presented on this appeal is whether, consistent with constitutional guarantees, a state may provide for radio, television, and still photographic coverage of a criminal trial for public broadcast, notwithstanding the objection of the accused.
2
* A.
3
Background. Over the past 50 years, some criminal cases characterized as "sensational" have been subjected to extensive coverage by news media, sometimes seriously interfering with the conduct of the proceedings and creating a setting wholly inappropriate for the administration of justice. Judges, lawyers, and others soon became concerned, and in 1937, after study, the American Bar Association House of Delegates adopted Judicial Canon 35, declaring that all photographic and broadcast coverage of courtroom proceedings should be prohibited.1 In 1952, the House of Delegates amended Canon 35 to proscribe television coverage as well. 77 A.B.A.Rep. 610-611 (1952). The Canon's proscription was reaffirmed in 1972 when the Code of Judicial Conduct replaced the Canons of Judicial Ethics and Canon 3A(7) superseded Canon 35. E. Thode, Reporter's Notes to Code of Judicial Conduct 56-59 (1973). Cf. Fed.Rules Crim.Proc. 53. A majority of the states, including Florida, adopted the substance of the ABA provision and its amendments. In Florida, the rule was embodied in Canon 3A(7) of the Florida Code of Judicial Conduct.2
4
In February 1978, the American Bar Association Committee on Fair Trial-Free Press proposed revised standards. These included a provision permitting courtroom coverage by the electronic media under conditions to be established by local rule and under the control of the trial judge, but only if such coverage was carried out unobtrusively and without affecting the conduct of the trial.3 The revision was endorsed by the ABA's Standing Committee on Standards for Criminal Justice and by its Committee on Criminal Justice and the Media, but it was rejected by the House of Delegates on February 12, 1979. 65 A.B.A.J. 304 (1979).
5
In 1978, based upon its own study of the matter, the Conference of State Chief Justices, by a vote of 44 to 1, approved a resolution to allow the highest court of each state to promulgate standards and guidelines regulating radio, television, and other photographic coverage of court proceedings.4
6
The Florida Program. In January 1975, while these developments were unfolding, the Post-Newsweek Stations of Florida petitioned the Supreme Court of Florida urging a change in Florida's Canon 3A(7). In April 1975, the court invited presentations in the nature of a rulemaking proceeding, and, in January 1976, announced an experimental program for televising one civil and one criminal trial under specific guidelines. Petition of Post-Newsweek Stations, Florida, Inc., 327 So.2d 1. These initial guidelines required the consent of all parties. It developed, however, that in practice such consent could not be obtained. The Florida Supreme Court then supplemented its order and established a new 1-year pilot program during which the electronic media were permitted to cover all judicial proceedings in Florida without reference to the consent of participants, subject to detailed standards with respect to technology and the conduct of operators. In re Petition of Post-Newsweek Stations, Florida, Inc., 347 So.2d 402 (1977). The experiment began in July 1977 and continued through June 1978.
7
When the pilot program ended, the Florida Supreme Court received and reviewed briefs, reports, letters of comment, and studies. It conducted its own survey of attorneys, witnesses, jurors, and court personnel through the Office of the State Court Coordinator. A separate survey was taken of judges by the Florida Conference of Circuit Judges. The court also studied the experience of 6 States5 that had, by 1979, adopted rules relating to electronic coverage of trials, as well as that of the 10 other States that, like Florida, were experimenting with such coverage.6
8
Following its review of this material, the Florida Supreme Court concluded "that on balance there [was] more to be gained than lost by permitting electronic media coverage of judicial proceedings subject to standards for such coverage." In re Petition of Post-Newsweek Stations, Florida, Inc., 370 So.2d 764, 780 (1979). The Florida court was of the view that because of the significant effect of the courts on the day-to-day lives of the citizenry, it was essential that the people have confidence in the process. It felt that broadcast coverage of trials would contribute to wider public acceptance and understanding of decisions. Ibid. Consequently, after revising the 1977 guidelines to reflect its evaluation of the pilot program, the Florida Supreme Court promulgated a revised Canon 3A(7). Id., at 781. The Canon provides:
9
"Subject at all times to the authority of the presiding judge to (i) control the conduct of proceedings before the court, (ii) ensure decorum and prevent distractions, and (iii) ensure the fair administration of justice in the pending cause, electronic media and still photography coverage of public judicial proceedings in the appellate and trial courts of this state shall be allowed in accordance with standards of conduct and technology promulgated by the Supreme Court of Florida." Ibid.
10
The implementing guidelines specify in detail the kind of electronic equipment to be used and the manner of its use. Id., at 778-779, 783-784. For example, no more than one television camera and only one camera technician are allowed. Existing recording systems used by court reporters are used by broadcasters for audio pickup. Where more than one broadcast news organization seeks to cover a trial, the media must pool coverage. No artificial lighting is allowed. The equipment is positioned in a fixed location, and it may not be moved during trial. Videotaping equipment must be remote from the courtroom. Film, videotape, and lenses may not be changed while the court is in session. No audio recording of conferences between lawyers, between parties and counsel, or at the bench is permitted. The judge has sole and plenary discretion to exclude coverage of certain witnesses, and the jury may not be filmed. The judge has discretionary power to forbid coverage whenever satisfied that coverage may have a deleterious effect on the paramount right of the defendant to a fair trial. The Florida Supreme Court has the right to revise these rules as experience dictates, or indeed to bar all broadcast coverage or photography in courtrooms.
B
11
In July 1977, appellants were charged with conspiracy to commit burglary, grand larceny, and possession of burglary tools. The counts covered breaking and entering a well-known Miami Beach restaurant.
12
The details of the alleged criminal conduct are not relevant to the issue before us, but several aspects of the case distinguish it from a routine burglary. At the time of their arrest, appellants were Miami Beach policemen. The State's principal witness was John Sion, an amateur radio operator who, by sheer chance, had overheard and recorded conversations between the appellants over their police walkie-talkie radios during the burglary. Not surprisingly, these novel factors attracted the attention of the media.
13
By pretrial motion, counsel for the appellants sought to have experimental Canon 3A(7) declared unconstitutional on its face and as applied. The trial court denied relief but certified the issue to the Florida Supreme Court. However, the Supreme Court declined to rule on the question, on the ground that it was not directly relevant to the criminal charges against the appellants. State v. Granger, 352 So.2d 175 (1977).
14
After several additional fruitless attempts by the appellants to prevent electronic coverage of the trial, the jury was selected. At voir dire, the appellants' counsel asked each prospective juror whether he or she would be able to be "fair and impartial" despite the presence of a television camera during some, or all, of the trial. Each juror selected responded that such coverage would not affect his or her consideration in any way. A television camera recorded the voir dire.
15
A defense motion to sequester the jury because of the television coverage was denied by the trial judge. However, the court instructed the jury not to watch or read anything about the case in the media and suggested that jurors "avoid the local news and watch only the national news on television." App. 13. Subsequently, defense counsel requested that the witnesses be instructed not to watch any television accounts of testimony presented at trial. The trial court declined to give such an instruction, for "no witness' testimony was [being] reported or televised [on the evening news] in any way." Id., at 14.
16
A television camera was in place for one entire afternoon, during which the State presented the testimony of Sion, its chief witness.7 No camera was present for the presentation of any part of the case for the defense. The camera returned to cover closing arguments. Only 2 minutes and 55 seconds of the trial below were broadcast—and those depicted only the prosecution's side of the case.
17
The jury returned a guilty verdict on all counts. Appellants moved for a new trial, claiming that because of the television coverage, they had been denied a fair and impartial trial. No evidence of specific prejudice was tendered.
18
The Florida District Court of Appeal affirmed the convictions. It declined to discuss the facial validity of Canon 3A(7); it reasoned that the Florida Supreme Court, having decided to permit television coverage of criminal trials on an experimental basis, had implicitly determined that such coverage did not violate the Federal or State Constitutions. Nonetheless, the District Court of Appeal did agree to certify the question of the facial constitutionality of Canon 3A(7) to the Florida Supreme Court. The District Court of Appeal found no evidence in the trial record to indicate that the presence of a television camera had hampered appellants in presenting their case or had deprived them of an impartial jury.
19
The Florida Supreme Court denied review, holding that the appeal, which was limited to a challenge to Canon 3A(7), was moot by reason of its decision in In re Petition of Post-Newsweek Stations, Florida, Inc., 370 So.2d 764 (1979), rendered shortly after the decision of the District Court of Appeal.
II
20
At the outset, it is important to note that in promulgating the revised Canon 3A(7), the Florida Supreme Court pointedly rejected any state or federal constitutional right of access on the part of photographers or the broadcast media to televise or electronically record and thereafter disseminate court proceedings. It carefully framed its holding as follows:
21
"While we have concluded that the due process clause does not prohibit electronic media coverage of judicial proceedings per se, by the same token we reject the argument of the [Post-Newsweek stations] that the first and sixth amendments to the United States Constitution mandate entry of the electronic media into judicial proceedings." Id., at 774.
22
The Florida court relied on our holding in Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978), where we said:
23
"In the first place, . . . there is no constitutional right to have [live witness] testimony recorded and broadcast. Second, while the guarantee of a public trial, in the words of Mr. Justice Black, is 'a safeguard against any attempt to employ our courts as instruments of persecution,' it confers no special benefit on the press. Nor does the Sixth Amendment require that the trial—or any part of it—be broadcast live or on tape to the public. The requirement of a public trial is satisfied by the opportunity of members of the public and the press to attend the trial and to report what they have observed." Id., at 610, 98 S.Ct., at 1318 (citations omitted).
24
The Florida Supreme Court predicated the revised Canon 3A(7) upon its supervisory authority over the Florida courts, and not upon any constitutional imperative. Hence, we have before us only the limited question of the Florida Supreme Court's authority to promulgate the Canon for the trial of cases in Florida courts.
25
This Court has no supervisory jurisdiction over state courts, and, in reviewing a state-court judgment, we are confined to evaluating it in relation to the Federal Constitution.
III
26
Appellants rely chiefly on Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965), and Chief Justice Warren's separate concurring opinion in that case. They argue that the televising of criminal trials is inherently a denial of due process, and they read Estes as announcing a per se constitutional rule to that effect.
27
Chief Justice Warren's concurring opinion, in which he was joined by Justices Douglas and Goldberg, indeed provides some support for the appellants' position:
28
"While I join the Court's opinion and agree that the televising of criminal trials is inherently a denial of due process, I desire to express additional views on why this is so. In doing this, I wish to emphasize that our condemnation of televised criminal trials is not based on generalities or abstract fears. The record in this case presents a vivid illustration of the inherent prejudice of televised criminal trials and supports our conclusion that this is the appropriate time to make a definitive appraisal of television in the courtroom." Id., at 552, 85 S.Ct., at 1637.
29
If appellants' reading of Estes were correct, we would be obliged to apply that holding and reverse the judgment under review.
30
The six separate opinions in Estes must be examined carefully to evaluate the claim that it represents a per se constitutional rule forbidding all electronic coverage. Chief Justice Warren and Justices Douglas and Goldberg joined Justice Clark's opinion announcing the judgment, thereby creating only a plurality. Justice Harlan provided the fifth vote necessary in support of the judgment. In a separate opinion, he pointedly limited his concurrence:
31
"I concur in the opinion of the Court, subject, however, to the reservations and only to the extent indicated in this opinion." Id., at 587, 85 S.Ct., at 1662.
32
A careful analysis of Justice Harlan's opinion is therefore fundamental to an understanding of the ultimate holding of Estes.
33
Justice Harlan began by observing that the question of the constitutional permissibility of televised trials was one fraught with unusual difficulty:
34
"Permitting television in the courtroom undeniably has mischievous potentialities for intruding upon the detached atmosphere which should always surround the judicial process. Forbidding this innovation, however, would doubtless impinge upon one of the valued attributes of our federalism by preventing the states from pursuing a novel course of procedural experimentation. My conclusion is that there is no constitutional requirement that television be allowed in the courtroom, and, at least as to a notorious criminal trial such as this one, the considerations against allowing television in the courtroom so far outweigh the countervailing factors advanced in its support as to require a holding that what was done in this case infringed the fundamental right to a fair trial assured by the Due Process Clause of the Fourteenth Amendment." Ibid. (emphasis added).
35
He then proceeded to catalog what he perceived as the inherent dangers of televised trials.
36
"In the context of a trial of intense public interest, there is certainly a strong possibility that the timid or reluctant witness, for whom a court appearance even at its traditional best is a harrowing affair, will become more timid or reluctant when he finds that he will also be appearing before a 'hidden audience' of unknown but large dimensions. There is certainly a strong possibility that the 'cocky' witness having a thirst for the limelight will become more 'cocky' under the influence of television. And who can say that the juror who is gratified by having been chosen for a front-line case, an ambitious prosecutor, a publicity-minded defense attorney, and even a conscientious judge will not stray, albeit unconsciously, from doing what 'comes naturally' into pluming themselves for a satisfactory television 'performance'?" Id., at 591, 85 S.Ct., at 1664.
37
Justice Harlan faced squarely the reality that these possibilities carry "grave potentialities for distorting the integrity of the judicial process," and that, although such distortions may produce no telltale signs, "their effects may be far more pervasive and deleterious than the physical disruptions which all would concede would vitiate a conviction." Id., at 592, 85 S.Ct. at 1664. The "countervailing factors" alluded to by Justice Harlan were, as here, the educational and informational value to the public.
38
Justice STEWART, joined by Justices BLACK, BRENNAN, and WHITE in dissent, concluded that no prejudice had been shown and that Estes' Fourteenth Amendment rights had not been violated. While expressing reservations not unlike those of Justice Harlan and those of Chief Justice Warren, the dissent expressed unwillingness to "escalate this personal view into a per se constitutional rule." Id., at 601, 85 S.Ct. at 1669. The four dissenters disagreed both with the per se rule embodied in the plurality opinion of Justice Clark and with the judgment of the Court that "the circumstances of [that] trial led to a denial of [Estes'] Fourteenth Amendment rights." Ibid. (emphasis added).
39
Parsing the six opinions in Estes, one is left with a sense of doubt as to precisely how much of Justice Clark's opinion was joined in, and supported by, Justice Harlan. In an area charged with constitutional nuances, perhaps more should not be expected. Nonetheless, it is fair to say that Justice Harlan viewed the holding as limited to the proposition that "what was done in this case infringed the fundamental right to a fair trial assured by the Due Process Clause of the Fourteenth Amendment," id., 587, 85 S.Ct., at 1662 (emphasis added), he went on:
40
"At the present juncture I can only conclude that televised trials, at least in cases like this one, possess such capabilities for interfering with the even course of the judicial process that they are constitutionally banned." Id., at 596, 85 S.Ct., at 1666 (emphasis added).
41
Justice Harlan's opinion, upon which analysis of the constitutional holding of Estes turns, must be read as defining the scope of that holding; we conclude that Estes is not to be read as announcing a constitutional rule barring still photographic, radio, and television coverage in all cases and under all circumstances.8 It does not stand as an absolute ban on state experimentation with an evolving technology, which, in terms of modes of mass communication, was in its relative infancy in 1964, and is, even now, in a state of continuing change.
IV
42
Since we are satisfied that Estes did not announce a constitutional rule that all photographic or broadcast coverage of criminal trials is inherently a denial of due process, we turn to consideration, as a matter of first impression, of the appellants' suggestion that we now promulgate such a per se rule.
A.
43
Any criminal case that generates a great deal of publicity presents some risks that the publicity may compromise the right of the defendant to a fair trial. Trial courts must be especially vigilant to guard against any impairment of the defendant's right to a verdict based solely upon the evidence and the relevant law. Over the years, courts have developed a range of curative devices to prevent publicity about a trial from infecting jury deliberations. See, e. g., Nebraska Press Assn. v. Stuart, 427 U.S. 539, 563-565, 96 S.Ct. 2791, 2804, 2805, 49 L.Ed.2d 683 (1976).
44
An absolute constitutional ban on broadcast coverage of trials cannot be justified simply because there is a danger that, in some cases, prejudicial broadcast accounts of pretrial and trial events may impair the ability of jurors to decide the issue of guilt or innocence uninfluenced by extraneous matter. The risk of juror prejudice in some cases does not justify an absolute ban on news coverage of trials by the printed media; so also the risk of such prejudice does not warrant an absolute constitutional ban on all broadcast coverage. A case attracts a high level of public attention because of its intrinsic interest to the public and the manner of reporting the event. The risk of juror prejudice is present in any publication of a trial, but the appropriate safeguard against such prejudice is the defendant's right to demonstrate that the media's coverage of his case—be it printed or broadcast—compromised the ability of the particular jury that heard the case to adjudicate fairly. See Part IV-D, infra.
B
45
As we noted earlier, the concurring opinions in Estes expressed concern that the very presence of media cameras and recording devices at a trial inescapably gives rise to an adverse psychological impact on the participants in the trial. This kind of general psychological prejudice, allegedly present whenever there is broadcast coverage of a trial, is different from the more particularized problem of prejudicial impact discussed earlier. If it could be demonstrated that the mere presence of photographic and recording equipment and the knowledge that the event would be broadcast invariably and uniformly affected the conduct of participants so as to impair fundamental fairness, our task would be simple; prohibition of broadcast coverage of trials would be required.
46
In confronting the difficult and sensitive question of the potential psychological prejudice associated with broadcast coverage of trials, we have been aided by amici briefs submitted by various state officers involved in law enforcement, the Conference of Chief Justices, and the Attorneys General of 17 States9 in support of continuing experimentation such as that embarked upon by Florida, and by the American College of Trial Lawyers, and various members of the defense bar10 representing essentially the views expressed by the concurring Justices in Estes.
47
Not unimportant to the position asserted by Florida and other states is the change in television technology since 1962, when Estes was tried. It is urged, and some empirical data are presented,11 that many of the negative factors found in Estes cumbersome equipment, cables, distracting lighting, numerous camera technicians—are less substantial factors today than they were at that time.
48
It is also significant that safeguards have been built into the experimental programs in state courts, and into the Florida program, to avoid some of the most egregious problems envisioned by the six opinions in the Estes case. Florida admonishes its courts to take special pains to protect certain witnesses—for example, children, victims of sex crimes, some informants, and even the very timid witness or party—from the glare of publicity and the tensions of being "on camera." In re Petition of Post-Newsweek Stations, Florida, Inc., 370 So.2d, at 779.
49
The Florida guidelines place on trial judges positive obligations to be on guard to protect the fundamental right of the accused to a fair trial. The Florida Canon, being one of the few permitting broadcast coverage of criminal trials over the objection of the accused, raises problems not present in the rules of other states. Inherent in electronic coverage of a trial is a risk that the very awareness by the accused of the coverage and the contemplated broadcast may adversely affect the conduct of the participants and the fairness of the trial, yet leave no evidence of how the conduct or the trial's fairness was affected. Given this danger, it is significant that Florida requires that objections of the accused to coverage be heard and considered on the record by the trial court. See, e. g., Green v. State, 377 So.2d 193, 201 (Fla.App.1979). In addition to providing a record for appellate review, a pretrial hearing enables a defendant to advance the basis of his objection to broadcast coverage and allows the trial court to define the steps necessary to minimize or eliminate the risks of prejudice to the accused. Experiments such as the one presented here may well increase the number of appeals by adding a new basis for claims to reverse, but this is a risk Florida has chosen to take after preliminary experimentation. Here, the record does not indicate that appellants requested an evidentiary hearing to show adverse impact or injury. Nor does the record reveal anything more than generalized allegations of prejudice.
50
Nonetheless, it is clear that the general issue of the psychological impact of broadcast coverage upon the participants in a trial, and particularly upon the defendant, is still a subject of sharp debate—as the amici briefs of the American College of Trial Lawyers and others of the trial bar in opposition to Florida's experiment demonstrate. These amici state the view that the concerns expressed by the concurring opinions in Estes, see Part III, supra, have been borne out by actual experience. Comprehensive empirical data are still not available—at least on some aspects of the problem. For example, the amici brief of the Attorneys General concedes:
51
"The defendant's interests in not being harassed and in being able to concentrate on the proceedings and confer effectively with his attorney are crucial aspects of a fair trial. There is not much data on defendant's reactions to televised trials available now, but what there is indicates that it is possible to regulate the media so that their presence does not weigh heavily on the defendant. Particular attention should be paid to this area of concern as study of televised trials continues." Brief for the Attorney General of Alabama et al. as Amici Curiae 40 (emphasis added).
52
The experimental status of electronic coverage of trials is also emphasized by the amicus brief of the Conference of Chief Justices:
53
"Examination and reexamination, by state courts, of the in-court presence of the electronic news media, vel non, is an exercise of authority reserved to the states under our federalism." Brief for Conference of Chief Justices as Amicus Curiae 2.
54
Whatever may be the "mischievous potentialities [of broadcast coverage] for intruding upon the detached atmosphere which should always surround the judicial process," Estes v. Texas, 381 U.S., at 587, 85 S.Ct., at 1662, at present no one has been able to present empirical data sufficient to establish that the mere presence of the broadcast media inherently has an adverse effect on that process. See n. 11, supra. The appellants have offered nothing to demonstrate that their trial was subtly tainted by broadcast coverage—let alone that all broadcast trials would be so tainted. See Part IV-D, infra.12
55
Where, as here, we cannot say that a denial of due process automatically results from activity authorized by a state, the admonition of Justice Brandeis, dissenting in New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S.Ct. 371, 386, 76 L.Ed. 747 (1932), is relevant:
56
"To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. This Court has the power to prevent an experiment. We may strike down the statute which embodies it on the ground that, in our opinion, the measure is arbitrary, capricious, or unreasonable. . . . But in the exercise of this high power, we must be ever on our guard, lest we erect our prejudices into legal principles. If we would guide by the light of reason, we must let our minds be bold." (Footnote omitted.) This concept of federalism, echoed by the states favoring Florida's experiment, must guide our decision.
C
57
Amici members of the defense bar, see n. 10, supra, vigorously contend that displaying the accused on television is in itself a denial of due process. Brief for the California State Public Defenders Association et al. as Amici Curiae 5-10. This was a source of concern to Chief Justice Warren and Justice Harlan in Estes : that coverage of select cases "singles out certain defendants and subjects them to trials under prejudicial conditions not experienced by others." 381 U.S., at 565, 85 S.Ct. at 1644 (Warren, C. J., concurring). Selection of which trials, or parts of trials, to broadcast will inevitably be made not by judges but by the media, and will be governed by such factors as the nature of the crime and the status and position of the accused or of the victim; the effect may be to titillate rather than to educate and inform. The unanswered question is whether electronic coverage will bring public humiliation upon the accused with such randomness that it will evoke due process concerns by being "unusual in the same way that being struck by lightning" is "unusual." Furman v. Georgia, 408 U.S. 238, 309, 92 S.Ct. 2726, 2762, 33 L.Ed.2d 346 (1972) (STEWART, J., concurring). Societies and political systems, that, from time to time, have put on "Yankee Stadium" "show trials" tell more about the power of the state than about its concern for the decent administration of justice—with every citizen receiving the same kind of justice.
58
The concurring opinion of Chief Justice Warren joined by Justices Douglas and Goldberg in Estes can fairly be read as viewing the very broadcast of some trials as potentially a form of punishment in itself—a punishment before guilt. This concern is far from trivial. But, whether coverage of a few trials will, in practice, be the equivalent of a "Yankee Stadium" setting—which Justice Harlan likened to the public pillory long abandoned as a barbaric perversion of decent justice must also await the continuing experimentation.
D
59
To say that the appellants have not demonstrated that broadcast coverage is inherently a denial of due process is not to say that the appellants were in fact accorded all of the protections of due process in their trial. As noted earlier, a defendant has the right on review to show that the media's coverage of his case—printed or broadcast—compromised the ability of the jury to judge him fairly. Alternatively, a defendant might show that broadcast coverage of his particular case had an adverse impact on the trial participants sufficient to constitute a denial of due process. Neither showing was made in this case.
60
To demonstrate prejudice in a specific case a defendant must show something more than juror awareness that the trial is such as to attract the attention of broadcasters. Murphy v. Florida, 421 U.S. 794, 800, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975). No doubt the very presence of a camera in the courtroom made the jurors aware that the trial was thought to be of sufficient interest to the public to warrant coverage. Jurors, forbidden to watch all broadcasts, would have had no way of knowing that only fleeting seconds of the proceeding would be reproduced. But the appellants have not attempted to show with any specificity that the presence of cameras impaired the ability of the jurors to decide the case on only the evidence before them or that their trial was affected adversely by the impact on any of the participants of the presence of cameras and the prospect of broadcast.
61
Although not essential to our holding, we note that at voir dire, the jurors were asked if the presence of the camera would in any way compromise their ability to consider the case. Each answered that the camera would not prevent him or her from considering the case solely on the merits. App. 8-12. The trial court instructed the jurors not to watch television accounts of the trial, id., at 13-14, and the appellants do not contend that any juror violated this instruction. The appellants have offered no evidence that any participant in this case was affected by the presence of cameras. In short, there is no showing that the trial was compromised by television coverage, as was the case in Estes.
V
62
It is not necessary either to ignore or to discount the potential danger to the fairness of a trial in a particular case in order to conclude that Florida may permit the electronic media to cover trials in its state courts. Dangers lurk in this, as in most experiments, but unless we were to conclude that television coverage under all conditions is prohibited by the Constitution, the states must be free to experiment. We are not empowered by the Constitution to oversee or harness state procedural experimentation; only when the state action infringes fundamental guarantees are we authorized to intervene. We must assume state courts will be alert to any factors that impair the fundamental rights of the accused.
63
The Florida program is inherently evolutional in nature; the initial project has provided guidance for the new canons which can be changed at will, and application of which is subject to control by the trial judge. The risk of prejudice to particular defendants is ever present and must be examined carefully as cases arise. Nothing of the "Roman circus" or "Yankee Stadium" atmosphere, as in Estes, prevailed here, however, nor have appellants attempted to show that the unsequestered jury was exposed to "sensational" coverage, in the sense of Estes or of Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). Absent a showing of prejudice of constitutional dimensions to these defendants, there is no reason for this Court either to endorse or to invalidate Florida's experiment.
64
In this setting, because this Court has no supervisory authority over state courts, our review is confined to whether there is a constitutional violation. We hold that the Constitution does not prohibit a state from experimenting with the program authorized by revised Canon 3A(7).
65
Affirmed.
66
Justice STEVENS took no part in the decision of this case.
67
Justice STEWART, concurring in the result.
68
Although concurring in the judgment, I cannot join the opinion of the Court because I do not think the convictions in this case can be affirmed without overruling Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543.
69
I believe now, as I believed in dissent then, that Estes announced a per se rule that the Fourteenth Amendment "prohibits all television cameras from a state courtroom whenever a criminal trial is in progress." Id., at 614, 85 S.Ct., at 1676; see also, id., at 615, 85 S.Ct., at 1676 (WHITE, J., dissenting). Accordingly, rather than join what seems to me a wholly unsuccessful effort to distinguish that decision, I would now flatly overrule it.
70
While much was made in the various opinions in Estes of the technological improvements that might some day render television coverage of criminal trials less obtrusive, the restrictions on television in the Estes trial were not significantly different from those in the trial of these appellants. The opinion of the Court in Estes set out the limitations placed on cameras during that trial:
71
"A booth had been constructed at the back of the courtroom which was painted to blend with the permanent structure of the room. It had an aperture to allow the lens of the cameras an unrestricted view of the courtroom. All television cameras and newsreel photographers were restricted to the area of the booth when shooting film or telecasting.
72
"[L]ive telecasting was prohibited during a great portion of the actual trial. Only the opening and closing arguments of the State, the return of the jury's verdict and its receipt by the trial judge were carried live with sound. Although the order allowed videotapes of the entire proceeding without sound, the cameras operated only intermittently, recording various portions of the trial for broadcast on regularly scheduled newscasts later in the day and evening. At the request of the petitioner, the trial judge prohibited coverage of any kind, still or television, of the defense counsel during their summations to the jury." Id., at 537, 85 S.Ct., at 1630 (footnote omitted).
73
In his concurring opinion, Justice Harlan also remarked upon the physical setting:
74
"Some preliminary observations are in order: All would agree, I am sure, that at its worst, television is capable of distorting the trial process so as to deprive it of fundamental fairness. Cables, kleig lights, interviews with the principal participants, commentary on their performances, 'commercials' at frequent intervals, special wearing apparel and makeup for the trial participants—certainly such things would not conduce to the sound administration of justice by any acceptable standard. But that is not the case before us. We must judge television as we find it in this trial relatively unobtrustive, with the cameras contained in a booth at the back of the courtroom." Id., at 588, 85 S.Ct., at 1662 (emphasis added).
75
The constitutional violation perceived by the Estes Court did not, therefore, stem from physical disruption that might one day disappear with technological advances in television equipment. The violation inhered, rather, in the hypothesis that the mere presence of cameras and recording devices might have an effect on the trial participants prejudicial to the accused.1 See id., at 542-550, 85 S.Ct., at 1632-1636 (opinion of the Court). And Justice Harlan sounded a note in his concurring opinion that is the central theme of the appellants here: "Courtroom television introduces into the conduct of a criminal trial the element of professional 'showmanship,' an extraneous influence whose subtle capacities for serious mischief in a case of this sort will not be underestimated by any lawyer experienced in the elusive imponderables of the trial arena." Id., at 591, 85 S.Ct., at 1664.
76
It can accurately be asserted that television technology has advanced in the past 15 years, and that Americans are now much more familiar with that medium of communication. It does not follow, however, that the "subtle capacities for serious mischief" are today diminished, or that the "imponderables of the trial arena" are now less elusive.
77
The Court necessarily2 relies on the concurring opinion of Justice Harlan in its attempt to distinguish this case from Estes. It begins by noting that Justice Harlan limited his opinion "to a notorious criminal trial such as [the one in Estes ]. . . ." Ante, at 571 (emphasis of the Court). But the Court disregards Justice Harlan's concession that such a limitation may not be meaningful.3 Justice Harlan admitted that "it may appear that no workable distinction can be drawn based on the type of case involved, or that the possibilities for prejudice [in a 'run-of-the-mill' case], though less severe, are nonetheless of constitutional proportions." 381 U.S., at 590, 85 S.Ct., at 1663. Finally, Justice Harlan stated unambiguously that he was "by no means prepared to say that the constitutional issue should ultimately turn upon the nature of the particular case involved." Ibid.4
78
The Court in Estes found the admittedly unobtrusive presence of television cameras in a criminal trial to be inherently prejudicial, and thus violative of due process of law. Today the Court reaches precisely the opposite conclusion. I have no great trouble in agreeing with the Court today, but I would acknowledge our square departure from precedent.
79
Justice WHITE, concurring in the judgment.
80
The Florida rule, which permits the televising of criminal trials under controlled conditions, is challenged here on its face and as applied. Appellants contend that the rule is facially invalid because the televising of any criminal trial over the objection of the defendant inherently results in a constitutionally unfair trial; they contend that the rule is unconstitutional as applied to them because their case attracted substantial publicity and, therefore, falls within the rule established in Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965).* The Florida court rejected both of these claims.
81
For the reasons stated by Justice STEWART in his concurrence today, I think Estes is fairly read as establishing a per se constitutional rule against televising any criminal trial if the defendant objects. So understood, Estes must be overruled to affirm the judgment below.
82
It is arguable, however, that Estes should be read more narrowly, in light of Justice Harlan's concurring opinion, as forbidding the televising of only widely publicized and sensational criminal trials. Justice Harlan, the fifth vote in Estes, characterized Estes as such a case and concurred in the opinion of the Court only to the extent that it applied to a "criminal trial of great notoriety." Id., at 587, 85 S.Ct., at 1662. He recognized that there had been no showing of specific prejudice to the defense, id., at 591, 85 S.Ct., at 1664, but argued that no such showing was required "in cases like this one."
83
Whether the decision in Estes is read broadly or narrowly, I agree with Justice STEWART that it should be overruled. I was in dissent in that case, and I remain unwilling to assume or conclude without more proof than has been marshaled to date that televising criminal trials is inherently prejudicial even when carried out under properly controlled conditions. A defendant should, of course, have ample opportunity to convince a judge that televising his trial would be unfair to him, and the judge should have the authority to exclude cameras from all or part of the criminal trial. But absent some showing of prejudice to the defense, I remain convinced that a conviction obtained in a state court should not be overturned simply because a trial judge refused to exclude television cameras and all or part of the trial was televised to the public. The experience of those States which have, since Estes, permitted televised trials supports this position, and I believe that the accumulated experience of those States has further undermined the assumptions on which the majority rested its judgment in Estes.
84
Although the Court's opinion today contends that it is consistent with Estes, I believe that it effectively eviscerates Estes. The Florida rule has no exception for the sensational or widely publicized case. Absent a showing of specific prejudice, any kind of case may be televised as long as the rule is otherwise complied with. In re Petition of Post-Newsweek Stations, Florida, Inc., 370 So.2d 764, 774 (Fla.1979). Thus, even if the present case is precisely the kind of case referred to in Justice Harlan's concurrence in Estes, the Florida rule overrides the defendant's objections. The majority opinion does not find it necessary to deal with appellants' contention that because their case attracted substantial publicity, specific prejudice need not be shown. By affirming the judgment below, which sustained the rule, the majority indicates that not even the narrower reading of Estes will any longer be authoritative.
85
Moreover, the Court now reads Estes as merely announcing that on the facts of that case there had been an unfair trial—i. e., it established no per se rule at all. Justice Clark's plurality opinion, however, expressly recognized that no "isolatable" or "actual" prejudice had been or need be shown, 381 U.S., at 542-543, 85 S.Ct., at 1632, 1633, and Justice Harlan expressly rejected the necessity of showing "specific" prejudice in cases "like this one." Id., at 593, 85 S.Ct., at 1665. It is thus with telling effect that the Court now rules that "[a]bsent a showing of prejudice of constitutional dimensions to these defendants," there is no reason to overturn the Florida rule, to reverse the judgment of the Florida Supreme Court, or to set aside the conviction of the appellants. Ante, at 582.
86
By reducing Estes to an admonition to proceed with some caution, the majority does not underestimate or minimize the risks of televising criminal trials over a defendant's objections. I agree that those risks are real and should not be permitted to develop into the reality of an unfair trial. Nor does the decision today, as I understand it, suggest that any State is any less free than it was to avoid this hazard by not permitting a trial to be televised over the objection of the defendant or by forbidding cameras in its courtrooms in any criminal case.
87
Accordingly, I concur in the judgment.
1
62 A.B.A.Rep. 1134-1135 (1937). As adopted on September 30, 1937, Judicial Canon 35 read:
"Proceedings in court should be conducted with fitting dignity and decorum. The taking of photographs in the courtroom, during sessions of the court or recesses between sessions, and the broadcasting of court proceedings are calculated to detract from the essential dignity of the proceedings, degrade the court and create misconceptions with respect thereto in the mind of the public and should not be permitted."
2
As originally adopted in Florida, Canon 3A(7) provided:
"A judge should prohibit broadcasting, televising, recording, or taking photographs in the courtroom and areas immediately adjacent thereto during sessions of court or recesses between sessions, except that a judge may authorize:
"(a) the use of electronic or photographic means for the presentation of evidence, for the perpetuation of a record, or for other purposes of judicial administration;
"(b) the broadcasting, televising, recording, or photographing of investitive, ceremonial, or naturalization proceedings;
"(c) the photographic or electronic recording and reproduction of appropriate court proceedings under the following conditions;
"(i) the means of recording will not distract participants or impair the dignity of the proceedings;
"(ii) the parties have consented, and the consent to being depicted or recorded has been obtained from each witness appearing in the recording and reproduction;
"(iii) the reproduction will not be exhibited until after the proceeding has been concluded and all direct appeals have been exhausted; and
"(iv) the reproduction will be exhibited only for instructional purposes in educational institutions."
3
Proposed Standard 8-3.6(a) of the ABA Project on Standards for Criminal Justice, Fair Trial and Free Press (Tent. Draft 1978).
4
Resolution I, Television, Radio, Photographic Coverage of Judicial Proceedings, adopted at the Thirtieth Annual Meeting of the Conference of Chief Justices, Burlington, Vt., Aug. 2, 1978.
5
Alabama, Colorado, Georgia, New Hampshire, Texas, and Washington.
6
The number of states permitting electronic coverage of judicial proceedings has grown larger since 1979. As of October 1980, 19 States permitted coverage of trial and appellate courts, 3 permitted coverage of trial courts only, 6 permitted appellate court coverage only, and the court systems of 12 other States were studying the issue. Brief for the Radio Television News Directors Association et al. as Amici Curiae. On November 10, 1980, the Maryland Court of Appeals authorized an 18-month experiment with broadcast coverage of both trial and appellate court proceedings. 49 U.S.L.W. 2335 (1980).
7
At one point during Sion's testimony, the judge interrupted the examination and admonished a cameraman to discontinue a movement that the judge apparently found distracting. App. 15. Otherwise, the prescribed procedures appear to have been followed, and no other untoward events occurred.
8
Our subsequent cases have so read Estes. In Sheppard v. Maxwell, 384 U.S. 333, 352, 86 S.Ct. 1507, 1516, 16 L.Ed.2d 600 (1966), the Court noted Estes as an instance where the "totality of circumstances" led to a denial of due process. In Murphy v. Florida, 421 U.S. 794, 798, 95 S.Ct. 2031, 2035, 44 L.Ed.2d 589 (1975), we described it as "a state-court conviction obtained in a trial atmosphere that had been utterly corrupted by press coverage." And, in Nebraska Press Assn. v. Stuart, 427 U.S. 539, 552, 96 S.Ct. 2791, 2799, 49 L.Ed.2d 683 (1976), we depicted Estes as a trial lacking in due process where "the volume of trial publicity, the judge's failure to control the proceedings, and the telecast of a hearing and of the trial itself" prevented a sober search for the truth.
In his opinion concurring in the result in the instant case, Justice STEWART restates his dissenting view in Estes that the Estes Court announced a per se rule banning all broadcast coverage of trials as a denial of due process. This view overlooks the critical importance of Justice Harlan's opinion in relation to the ultimate holding of Estes. It is true that Justice Harlan's opinion "sounded a note" that is central to the proposition that broadcast coverage inherently violates the Due Process Clause. Post, at 585. But the presence of that "note" in no sense alters Justice Harlan's explicit reservations in his concurrence. Not all of the dissenting Justices in Estes read the Court as announcing a per se rule; Justice BRENNAN, for example, was explicit in emphasizing "that only four of the five Justices [in the majority] rest[ed] on the proposition that televised criminal trials are constitutionally infirm, whatever the circumstances." Id., at 617, 85 S.Ct., at 1677. Today, Justice STEWART concedes, post, at 585-586, and n. 3, that Justice Harlan purported to limit his conclusion to a subclass of cases. And, as he concluded his opinion, Justice Harlan took pains to emphasize his view that "the day may come when television will have become so commonplace an affair in the daily life of the average person as to dissipate all reasonable likelihood that its use in courtrooms may disparage the judicial process." Id., at 595, 85 S.Ct., at 1666 (emphasis added). That statement makes clear that there was not a Court holding of a per se rule in Estes. As noted in text, Justice Harlan pointedly limited his conclusion to cases like the one then before the Court, those "utterly corrupted" by press coverage. There is no need to "overrule" a "holding" never made by the Court.
9
Brief for the Attorneys General of Alabama, Alaska, Arizona, Iowa, Kentucky, Louisiana, Maryland, Montana, Nevada, New Mexico, New York, Ohio, Rhode Island, Tennessee, Vermont, West Virginia, and Wisconsin as Amici Curiae.
10
Brief for the California State Public Defenders Association, the California Attorneys for Criminal Justice, the Office of the California State Public Defender, the Los Angeles County Public Defenders Association, the Los Angeles Criminal Courts Bar Association, and the Office of the Los Angeles County Public Defender as Amici Curiae.
11
Considerable attention is devoted by the parties to experiments and surveys dealing with the impact of electronic coverage on the participants in a trial other than the defendant himself. The Florida pilot program itself was a type of study, and its results were collected in a postprogram survey of participants. While the data thus far assembled are cause for some optimism about the ability of states to minimize the problems that potentially inhere in electronic coverage of trials, even the Florida Supreme Court conceded the data were "limited," In re Petition of Post-Newsweek Stations, Florida, Inc., 370 So.2d 764, 781 (1979), and "non-scientific," id., at 768. Still, it is noteworthy that the data now available do not support the proposition that, in every case and in all circumstances, electronic coverage creates a significant adverse effect upon the participants in trials—at least not one uniquely associated with electronic coverage as opposed to more traditional forms of coverage. Further research may change the picture. At the moment, however, there is no unimpeachable empirical support for the thesis that the presence of the electronic media, ipso facto, interferes with trial proceedings.
12
Other courts that have been asked to examine the impact of television coverage on the participants in particular trials have concluded that such coverage did not have an adverse impact on the trial participants sufficient to constitute a denial of due process. See, e. g., Bradley v. Texas, 470 F.2d 785 (CA5 1972); Bell v. Patterson, 279 F.Supp. 760 (Colo.), aff'd, 402 F.2d 394 (CA10 1968), cert. denied, 403 U.S. 955, 91 S.Ct. 2279, 29 L.Ed.2d 865 (1971); Gonzales v. People, 165 Colo. 322, 438 P.2d 686 (1968). On the other hand, even the amici supporting Florida's position concede that further experimentation is necessary to evaluate the potential psychological prejudice associated with broadcast coverage of trials. Further developments and more data are required before this issue can be finally resolved.
1
Certain aspects of the Estes trial made that case an even easier one than this one in which to find no substantial threat to a fair trial. For example, the jurors in Estes were sequestered day and night, from the first day of the trial until it ended. The jurors in the present case were not sequestered at all. Aside from a court-monitored opportunity for the jurors to watch election returns, the Estes jurors were not permitted to watch television at any time during the trial. In contrast, the jurors in the present case were left free to watch the evening news programs—and to look for a glimpse of themselves while watching replays of the prosecution's most critical evidence.
2
The Court today concedes that Justice Clark's opinion for the Court in Estes announced a per se rule; that the concurring opinion of Chief Justice Warren, joined by Justices Douglas and Goldberg, pointed to "the inherent prejudice of televised criminal trials"; and that the dissenting Justices objected to the announcement of a per se rule, ante, at 570, 572.
3
The Court also seems to disregard its own description of the trial of the appellants, a description that suggests that the trial was a "notorious" one, at least in the local community. The Court's description notes that "several aspects of the case distinguish it from a routine burglary . . . [and] [n]ot surprisingly, these novel factors attracted the attention of the media." Ante, at 567. Indeed, the Court's account confirms the wisdom of Justice Harlan's concession that a per se rule limited only to cases with high public interest may not be workable.
*
In their motion in the Florida Circuit Court to declare Florida's rule unconstitutional, appellants claimed that their case had "received a substantial amount of publicity" and then argued that "[a]s . . . in Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965), the presence of television cameras . . . will substantially harm and impair the Defendant's right to a fair and impartial trial. . . ." App. 4. In their brief on the merits, appellants described their case as "not 'notorious' [but] at least 'more than routine' " and asked the Court to extend the Estes rule to it. Brief for Appellants 10.
4
The fact is, of course, that a run-of-the-mill trial—of a civil suit to quiet title, or upon a "routine burglary" charge for example—would hardly attract the cameras of public television. By the same token, the very televising of a trial serves to make that trial a "notorious" or "heavily publicized" one.
| 01
|
450 U.S. 1
101 S.Ct. 836
67 L.Ed.2d 1
HCSC-LAUNDRYv.UNITED STATES.
No. 80-338.
Feb. 23, 1981.
PER CURIAM.
1
Petitioner HCSC-Laundry is a Pennsylvania nonprofit corporation. It was organized in 1967 under the law of that Commonwealth "[t]o operate and maintain a hospital laundry and linen supply program for those public hospitals and non-profit hospitals or related health facilities organized andoperated exclusively for religious, charitable, scientific, or educational purposes that contract with [it]."1
2
Petitioner provides laundry and linen service to 15 nonprofit hospitals and to an ambulance service. All these are located in eastern Pennsylvania. Each organization served possesses a certificate of exemption from federal income taxation under § 501(c)(3) of the Internal Revenue Code of 1954, 26 U.S.C. § 501(c)(3).2 Each participating hospital pays petitioner annual membership dues based upon bed capacity. The ambulance service pays no dues. Petitioner's only other income is derived from (a) a charge for laundry and linen service based upon budgeted costs and (b) a charge of 11/2 cents per pound of laundry. Budgeted costs include operating expenses, debt retirement, and linen replacement. The amounts charged in excess of costs have been placed in a fund for equipment acquisition and replacement.
3
No part of petitioner's net earnings inures to the benefit of any individual.
4
Petitioner was formed after the Lehigh Valley Health Planning Council determined that a shared, nonprofit, off-premises laundry would best accommodate the requirements of the member hospitals with respect to both quality of service and economies of scale. The Council had investigated various alternatives. It had rejected a joint service concept because no member hospital had sufficient laundry facilities to serve more than itself. A commercial laundry had declined an offer for the laundry business of all the hospitals, and most of the other available commercial laundries were not capable of managing the heavy total volume.
5
Petitioner's laundry plant was built and equipped at a cost of about $2 million. This was financed through loans from local banks, with 15-year contracts from 10 of the hospitals used as collateral. Petitioner employs approximately 125 persons.
6
In 1976 petitioner applied for exemption under § 501(c)(3) from federal income taxation. The Internal Revenue Service denied the exemption application on the grounds that § 501(e)3 of the Code was the exclusive provision under which acooperative hospital service organization could qualify as "an organization organized and operated exclusively for charitable purposes" and therefore exempt. Because subsection (e)(1)(A) does not mention laundry, the Service reasoned that petitioner was not entitled to tax exemption.
7
Petitioner duly filed its federal corporate income tax return for its fiscal year ended June 30, 1976. That return showed taxable income of $123,521 and a tax of $10,395. The tax was paid. Shortly thereafter, petitioner filed a claim for refund of that tax and, when the Internal Revenue Service took no action on the claim within six months, see 26 U.S.C. § 6532(a)(1), petitioner commenced this refund suit in the United States District Court for the Eastern District of Pennsylvania.
8
On stipulated facts and cross-motions for summary judgment, the District Court ruled in favor of petitioner, holding that it was entitled to exemption as an organization described in § 501(c)(3), 473 F.Supp. 250 (1979). The United States Court of Appeals for the Third Circuit, however, reversed. It held that § 501(e) was the exclusive provision under which a cooperative hospital service organization could obtain an income tax exemption, and that the omission of laundry services from § 501(e)(1)(A)'s specific list of activities demonstrated that Congress intended to deny exempt status to cooperative hospital service laundries. 624 F.2d 428 (1980).
9
Because the ruling of the Court of Appeals is in conflict with decisions elsewhere,4 we grant certiorari, and we now affirm.
10
This Court has said: "The starting point in the determination of the scope of 'gross income' is the cardinal principle that Congress in creating the income tax intended 'to use the full measure of its taxing power.' " Commissioner v. Kowalski, 434 U.S. 77, 82, 98 S.Ct. 315, 318, 54 L.Ed.2d 252 (1977), quoting from Helvering v. Cliford, 309 U.S. 331, 334, 60 S.Ct. 554, 556, 84 L.Ed. 788 (1940). See § 61(a) of the Code, 26 U.S.C. § 61(a). Under our system of federal income taxation therefore, every element of gross income of a person, corporate or individual, is subject to tax unless there is a statute or some rule of law that exempts that person or element.
11
Sections 501(a) and (c)(3) provide such an exemption, and a complete one, for a corporation fitting the description set forth in subsection (c)(3) and fulfilling the subsection's requirements. But subsection (e) is also a part of § 501. And it expressly concerns the tax status of a cooperative hospital service organization. It provides that such an organization is exempt if, among other things, its activities consist of "data processing, purchasing, warehousing, billing and collection, food, clinical, industrial engineering, laboratory, printing, communications, record center, and personnel (including selection, testing, training, and education of personnel) services." Laundry and linen service, so essential to a hospital's operation, is not included in that list and, indeed, is noticeable for its absence. The issue, thus, is whether that omission prohibits petitioner from qualifying under § 501 as an organization exempt from taxation. The Government's position is that subsection (e) is controlling and exclusive, and because petitioner does not qualify under it, exemption is not available. Petitioner takes the opposing position that § 501(c)(3) clearly entitles it to the claimed exemption.
12
Without reference to the legislative history, the Government would appear to have the benefit of this skirmish, for it is a basic principle of statutory construction that a specific statute, here subsection (e), controls over a general provision such as subsection (c)(3), particularly when the two are interrelated and closely positioned, both in fact being parts of § 501 relating to exemption of organizations from tax. See Bulova Watch Co. v. United States, 365 U.S. 753, 761, 81 S.Ct. 864, 869, 6 L.Ed.2d 72 (1961).
13
Additionally, however, the legislative history provides strong and conclusive support for the Government's position. It persuades us that Congress intended subsection (e) to be exclusive and controlling for cooperative hospital service organizations. Prior to the enactment of subsection (e) in 1968, the law as to the tax status of shared hospital service organizations was uncertain. The Internal Revenue Service took the position that if two or more tax-exempt hospitals created an entity to perform commercial services for them, that entity was not entitled to exemption. See Rev.Rul. 54-305, 1954-2 Cum.Bull. 127.5 See also § 502, as amended, of the 1954 Code, 26 U.S.C. § 502. This position, however, was rejected by the Court of Claims in Hospital Bureau of Standards and Supplies, Inc. v. United States, 141 Ct.Cl. 91, 158 F.Supp. 560 (1958). After expressly noting the uncertainty in the law,6 Congress enacted subsection (e). See Revenue and Expenditure Control Act of 1968, Pub.L. 90-364, § 109(a), 82 Stat. 269.
14
In considering the provisions of the tax adjustment bill of 1968 that ultimately became subsection (e), the Senate sought to include laundry in the list of services that a cooperative hospital service organization could provide and still maintain its tax-exempt status. The Treasury Department supported the Senate amendment. See 114 Cong.Rec. 7516, 8111-8112 (1968). At the urging of commercial interests, however (see Hearings on Certain Committee Amendments to H.R. 10612 before the Senate Committee on Finance, 94th Cong., 2d Sess., 608 (1976)), the Conference Committee would accept only a limited version of the Senate amendment. In recommending the adoption of subsection (e), the managers on the part of the House emphasized that shared hospital service organizations performing laundry services were not entitled to tax-exempt status under the new provision. See H.R.Conf.Rep.No.1533, 90th Cong., 2d Sess., 43 (1968); U.S.Code Cong. & Admin.News 1968, 2341; Senate Committee on Finance and House Committee on Ways and Means, Revenue and Expenditure Control Act of 1968, Explanation of the Bill H.R. 15414, 90th Cong., 2d Sess. 1, 20 (Comm.Print 1968).
15
Later, in 1976, at the urging of the American Hospital Association, the Senate Committee on Finance proposed an amendment that would have added laundry to the list of services specified in subsection (e)(1)(A). Hearings on H.R. 10612 before the Senate Committee on Finance, 94th Cong., 2d Sess., 2765-2772 (1976); S.Rep.No.94-938, pt. 2, pp. 76-77 (1976), U.S.Code Cong. & Admin.News 1976, 2897. The amendment, however, was defeated on the floor of the Senate. 122 Cong.Rec. 25915 (1976).
16
In view of all this, it seems to us beyond dispute that subsection (e)(1)(A) of § 501, despite the seemingly broad general language of subsection (c)(3), specifies the types of hospital service organizations that are encompassed within the scope of § 501 as charitable organizations. Inasmuch as laundry service was deliberately omitted from the statutory list and, indeed, specifically was refused inclusion in that list, it inevitably follows that petitioner is not entitled to tax-exempt status. The Congress easily can change the statute whenever it is so inclined.7
17
The judgment of the Court of Appeals is affirmed.
18
It is so ordered.
19
Justice WHITE dissents and would set the case for plenary consideration.
20
Justice STEVENS, dissenting.
21
Today the Court summarily decides that § 501, read in light of the legislative history of § 501(e), requires that nonprofit cooperative hospital laundries be denied an exemption from federal income tax, even though they may satisfy the requirements of §§ 501(a) and 501(c)(3). In my opinion, the Court's summary disposition is ill-advised because a full understanding of the question presented in this case requires an examination of the history underlying the present state of the law with respect to the tax status of cooperative hospital service organizations. When the statute is read against that background—indeed, even when it is read in isolation—its plain language unambiguously entitles this petitioner to an exemption.
22
* In 1950 Congress amended § 101 of the Internal Revenue Code of 1939 by adding to that section a paragraph dealing with so-called "feeder organizations." Revenue Act of 1950, § 301(b), Pub.L. 814, ch. 994, 64 Stat. 953. This paragraph was subsequently reenacted without substantial change as § 502(a) of the Internal Revenue Code of 1954.1 In 1952, the Treasury Department adopted a regulation designed to implement the feeder provision of § 101. Treas.Reg. 111, § 29.101-3(b).2 Although this regulation did not specifi cally address cooperative hospital service organizations, it did indicate that the Treasury considered cooperative ventures operated by tax-exempt entities for the purpose of providing necessary services to those entities nonexempt feeder organizations.3
23
The Internal Revenue Service first applied this regulation to cooperative hospital service organizations in a 1954 Revenue Ruling, Rev.Rul. 54-305, 1954-2 Cum.Bull. 127. In that Ruling, the Service held that a corporation organized and operated for the primary purpose of operating and maintaining a purchasing agency for the benefit of its members—tax-exempt hospitals and other charitable institutions—fell within the feeder regulation and thus was not entitled to an income tax exemption. The corporation at issue realized substantialprofits from its operations and distributed only a portion of those profits to its members. Ibid. Accordingly, the Service found that the corporation was operated for the primary purpose of carrying on a trade or business for profit within the meaning of § 101 of the 1939 Code. This Revenue Ruling, and the regulation on which it was based, are the sources of the Treasury's pre-1968 position that cooperative hospital service organizations were not entitled to tax-exempt status.
24
The first judicial consideration of this position came in 1958 in Hospital Bureau of Standards & Supplies, Inc. v. United States, 141 Ct.Cl. 91, 158 F.Supp. 560.4 In that case, a group of nonprofit, tax-exempt hospitals formed a nonprofit corporation to act as their joint purchasing agent and to perform certain research functions on their behalf. The corporation brought suit against the Government to recover income taxes assessed for 1952 and 1953, alleging that it was entitled to a tax exemption under § 101(6) of the 1939 Code, the predecessor of present § 501(c)(3). The Government opposed the claimed exemption, arguing primarily that the corporation was a feeder organization under Treas.Reg. 118, § 39.101-2(b) (1953). The Court of Claims held that the feeder provision was inapplicable in that case because the corporation was not organized and operated for the primary purpose of carrying on a trade or business for profit as required by the statute, even though it had reported net income for the two tax years in question. 141 Ct.Cl., at 95-96, 158 F.Supp., at 563-564. Accordingly, the court ruled that the corporation was entitled to a tax exemption under § 101(6).5
25
Almost 10 years passed before the next important development in this area. In 1967, in connection with the Social Security Amendments of 1967, the original version of § 501(e), was proposed as an amendment to § 501. The proposed amendment provided that a cooperative hospital service organization would be exempt from income taxation as long as it satisfied certain requirements, among them a requirement that it perform only services which, if performed by the member hospitals themselves, would constitute an integral part of their exempt activities. See S.Rep.No.744, Social Security Amendments of 1967, Report of the Senate Committee on Finance, 90th Cong., 1st Sess., 201-202, 318-319, U.S.Code Cong. & Admin.News 1967, 2834 (1967). The legislative history indicates that laundry services were considered within the scope of the proposed amendment. Id., at 201. The legislative history also indicates that Congress was aware of the Treasury's belief that such cooperative ventures were not tax exempt because of the Code's feeder provision. Id., at 200-201.6 However, the Senate Report noted as well that the Court of Claims in Hospital Bureau, "the leading case in point," had rejected the Treasury's position. S.Rep.No.744, at 201, and n. 1.
26
The proposed amendment was not accepted by the House in its original form. See H.R.Conf.Rep.No.1030, 90th Cong., 1st Sess., 73 (1967), U.S.Code Cong. & Admin.News 1976, 2834. Rather, during 1968, § 501(e) inits present form was enacted into law as part of the Revenue and Expenditure Control Act of 1968.7 The 1968 legislative history is set forth in adequate detail in the majority opinion, ante, at 6-7, and in the opinion of the Court of Appeals, 624 F.2d 428, 433-434 (CA3 1980), and does not warrant repetition here.8 As I read that legislative history, it establishes that Congress deliberately omitted laundry servicesfrom § 501(e) and clearly intended that joint hospital laundries not be entitled to claim an income tax exemption under § 501(e). These conclusions are reinforced by Congress' rejection in 1976 of a proposed amendment to § 501(e) that would have added laundry services to that subsection's list of eligible services. See ante, at 7.
27
Despite the enactment of § 501(e) in 1968, it was not until 1980 that a federal court decided that nonprofit cooperative hospital laundries were not entitled to an income tax exemption under § 501.9 Between 1968 and 1980, six federal courts rejected the Treasury's contention that hospital service organizations providing services other than those listed in § 501(e) were not entitled to claim an exemption under § 501(c)(3).10 These courts also rejected the Treasury's alternative contention that, even if such entities were not automatically excluded from consideration under § 501(c)(3), they nonetheless were nonexempt feeder organizations under § 502(a) and Treas.Reg. § 1.502-1(b). In 1980, however, three Courts of Appeals concluded that § 501(e) provides the exclusive means by which a hospital service organization may acquire an income tax exemption.11 These courts relied primarily upon the 1968 and 1976 legislative history cited by the majority. The decision of the Third Circuit, the first in this series of Court of Appeals decisions, is presently before us.
II
28
In the District Court in this case, the Government argued, as it had on five previous occasions, that because Congress deliberately omitted hospital laundries from § 501(e), it necessarily followed that they also were outside the scope of § 501(c)(3). See 473 F.Supp. 250, 252 (ED Pa. 1979). The District Court rejected this argument, choosing instead to align itself with the then unbroken line of precedent. Id. at 253-254.12 The District Court also rejected the Government's alternative argument based upon § 502(a). On appeal, the Government abandoned this argument, see 624 F.2d, at 432, n. 6, and relied solely upon § 501(e).13 Thus, asshaped by the proceedings below, the question presented here is whether Congress, in enacting § 501(e), intended that cooperative hospital service organizations must qualify for tax exemption under that statute or not at all. The Court concludes that the statutory language and legislative history require an affirmative answer to that question. Neither factor, in my judgment, supports the Court's conclusion.
29
Correct analysis of the income tax exemption provisions at issue in this case should focus upon the language of the statutory provision which actually creates the exemption. That provision is § 501(a), which states:
30
"An organization described in subsection (c) or (d) or section 401(a) shall be exempt from taxation under this subtitle unless such exemption is denied under section 502 or 503." 26 U.S.C. § 501(a).
31
This language is clear and unambiguous. Insofar as relevant in this case, it provides that organizations meeting the requirements of § 501(c)(3) shall be exempt from the federal income tax.14 Such organizations are to be denied exemptiononly if they fall within the provisions of §§ 502 or 503. Section 501(a) contains no reference to § 501(e), nor does § 501(c)(3) indicate that it is in any way limited by § 501(e).
32
Applying this plain statutory language to the facts of this case, it is clear that, but for § 501(e), petitioner is entitled to a tax exemption under §§ 501(a) and 501(c)(3). It is undisputed that petitioner satisfies the requirements of § 501(c)(3).15 Therefore, under § 501(a) petitioner is exempt from taxation unless one of the two express exceptions identified in that subsection applies. The District Court found § 502 inapplicable because petitioner was not operated on a "for profit" basis. 473 F.Supp. at 254-255. This finding has not been challenged by the Government. Section 503 is simply irrelevant in this case. Therefore, the plain language of the relevant statutes clearly states that petitioner is a tax-exempt organization.
33
The majority overrides this plain statutory language by construing § 501(e) as an exception to the broad charitableexemption created by §§ 501(a) and 501(c)(3). Construed in this manner, § 501(e) operates to deny a tax exemption to organizations that otherwise satisfy the express statutory requirements for exemption. The § 501(e) exception itself, however, is not express: rather than identifying particular organizations as nonexempt, § 501(e) identifies particular organizations as exempt and, apparently by implication, denies all similar but unlisted organizations the exemption otherwise available under §§ 501(a) and 501(c)(3).
34
The Court silently dismisses the fact that §§ 501(a) and 501(c)(3) contain no reference indicating that § 501(e) is to have this limiting effect; the necessary connection between the statutes is supplied instead by the Court's finding that § 501(e) is "interrelated" with and "closely positioned" to § 501(c)(3). Ante, at 6. It cannot be denied that § 501(e) is close in position to § 501(c)(3). But a statute's text is surely more significant than its physical location.16 And to state, as the majority does, that §§ 501(c)(3) and 501(e) are "interrelated" is to substitute conclusion for analysis. Apart from their proximity to one another, the only express relationship between these statutes is that certain entities described in § 501(e) are to be treated as charitable organizations under § 501(c)(3) for federal income tax purposes. Nothing in any of the relevant statutes suggests that § 501(e) is to have the effect of denying an exemption to organizations that satisfy the requirements of § 501(c)(3). When Congress wanted a statute to have such an effect, it had no difficulty making its intention unmistakably plain, as is evident from § 501(a)'s reference to §§ 502 and 503. The language Congress employed in § 501(e) reflects an intention to enlarge, not to reduce, the category of organizations entitled to exemption under § 501(c)(3).17
B
35
The Court supports its interpretation of § 501 with a discussion of legislative history. However, this discussion makes no reference to the legislative history of the statutory provisions primarily at issue in this case, §§ 501(a) and 501(c)(3). Instead, the Court focuses upon the legislative history of § 501(e). In my opinion, insofar as the Court relies upon this legislative history, its decision rests upon a non sequitur. Because the text and legislative history of § 501(e), which was enacted in 1968, persuade the Court that petitioner is not entitled to an exemption under that section, the Court concludes that petitioner also is not entitled to claim exemption under § 501(c)(3), which was enacted in 1954.18 Unless the later statute limited the scope of the earlier statute, the conclusion is not supported by the premise.
36
The legislative history of § 501(e) might support the Court's position if it unambiguously revealed: (1) that Congress in 1968 believed that no cooperative hospital service organization could satisfy the requirements of § 501(c)(3) and it therefore enacted § 501(e) to extend a tax exemption to certain entities previously not entitled to exemption; or (2) that Congress in 1968 believed that cooperative hospitalservice organizations were at least arguably entitled to tax exemption under § 501(c)(3) and it enacted § 501(e) to withdraw this exemption from some, but not all, of these entities. The legislative history provides persuasive support for neither proposition.
37
In my opinion § 501(e) unambiguously granted a tax exemption to certain entities that arguably already were entitled to an exemption under § 501(c)(3). There is absolutely no evidence that the 1968 statute was intended to withdraw any benefits that were already available under the 1954 Act. Proper analysis, therefore, should focus on the question whether petitioner would have been entitled to an exemption under pre-1968 law.
38
The 1954 Act created a broad category of exempt organizations, including corporations "operated exclusively for . . . charitable . . . purposes." That hospitals could qualify for exemption has always been clear. The question whether a cooperative organization formed by a group of tax-exempt hospitals to provide services for the hospitals could also qualify for exemption was less clear. As discussed in Part I, supra, prior to 1968 the Treasury took the position that such a cooperative was a "feeder organization" within the meaning of § 502 of the Code.19 This position, however, was rejected by the Court of Claims which quite properly in my opinion—held that such a cooperative was not a "feeder" and was exempt under what is now § 501(c)(3). See Hospital Bureau of Standards & Supplies, Inc. v. United States, 141 Ct.Cl. 91, 158 F.Supp. 560 (1958).
39
As a matter of history—presumably because cooperative service organizations were fairly common in the hospital industrys the § 502 issue arose in disputes between the Treasury Department and hospital affiliates. Conceptually, however, there is no reason why the identical issue could not arise if other tax-exempt entities, such as schools or churches, might find it advantageous to form cooperatives to perform some of their essential functions for them.20 In any event, when the issue was brought to the attention of Congress in 1967 and 1968, the focus of the dispute still concerned hospital affiliates. Congress then made an unequivocal policy choice rejecting the position of the Treasury and granting an unambiguous exemption to cooperative hospital service organizations performing certain described functions.21 Nothing in the 1968 legislation explicitly or implicitly qualified the exemption previously available under § 501.22
40
Section 501(e) does not confer an exemption on cooperative educational or religious service organizations.23 If such organizations would previously have been exempt under § 501(c)(3), should the 1968 Act be construed to have withdrawn the exemption by reason of the fact that Congress saw fit to confine the benefit of its clarifying amendment to "cooperative hospital service organizations"? I think the answer is clear and that the same answer should apply to a hospital cooperative that is not expressly covered by the 1968 Act. Its tax status should be evaluated on the basis of the remaining relevant provisions of the Internal Revenue Code.
41
I recognize that both in 1968 and in 1976 attempts were made to extend the explicit § 501(e) exemption to encompass hospital laundry cooperatives and that these attempts were rejected. This legislative history proves nothing more than what is already plainly stated in the statute itself: the § 501(e) exemption is not available to petitioner. That is equally true of a cooperative educational service organization. But that fact does not evidence any intent by Congress to withdraw whatever exemption would be available to such organizations under other provisions of the Code.
42
Nor does logic compel the conclusion that Congress intended to withdraw a pre-existing exemption. As a matter of tax policy, nothing that I have read provides any obvious legitimate basis for giving hospital service organizations more favorable treatment than other charitable service organizations, or for giving a data processing or food service organization better treatment than a laundry service organization. Furthermore, I cannot accept the kind of reasoning—which unfortunately may characterize our summary dispositions—that interprets a statute that was plainly intended to do nothing more than extend a certain benefit to some taxpayers as though it were intended to withdraw a benefit otherwise available to other taxpayers.
43
I respectfully dissent.
1
The quoted language is from petitioner's articles of incorporation, as amended May 29, 1970. The articles further state that petitioner's corporate purposes are to be accomplished "in a manner consistent with the provisions of Section 501(c)(3) of the Internal Revenue Code of 1954." See 624 F.2d 428, 429, n. 1 (CA3 1980).
2
Subsections (a) and (c) of § 501, to the extent pertinent here, read:
"(a) Exemption from taxation
"An organization described in subsection (c) or (d) or section 401(a) shall be exempt from taxation under this subtitle unless such exemption is denied under section 502 or 503.
* * * * *
"(c) List of exempt organizations
"The following organizations are referred to in subsection (a):
* * * * *
"(3) Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation (except as otherwise provided in subsection (h)), and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of any candidate for public office."
3
Section 501(e) reads:
"(e) Cooperative hospital service organizations
"For purposes of this title, an organization shall be treated as an organization organized and operated exclusively for charitable purposes, if—
"(1) such organization is organized and operated solely—
"(A) to perform, on a centralized basis, one or more of the following services which, if performed on its own behalf by a hospital which is an organization described in subsection (c)(3) and exempt from taxation under subsection (a), would constitute activities in exercising or performing the purpose or function constituting the basis for its exemption: data processing, purchasing, warehousing, billing and collection, food, clinical, industrial engineering, laboratory, printing, communications, record center, and personnel (including selection, testing, training, and education of personnel) services; and
"(B) to perform such services solely for two or more hospitals each of which is—
"(i) an organization described in subsection (c)(3) which is exempt from taxation under subsection (a),
"(ii) a constituent part of an organization described in subsection (c)(3) which is exempt from taxation under subsection (a) and which, if organized and operated as a separate entity, would constitute an organization described in subsection (c)(3), or
"(iii) owned and operated by the United States, a State, the District of Columbia, or a possession of the United States, or a political subdivision or an agency or instrumentality of any of the foregoing."
4
Among the cases in conflict with the Third Circuit's ruling are Northern California Central Services, Inc. v. United States, 219 Ct.Cl. 60, 591 F.2d 620 (1979), and United Hospital Services, Inc. v. United States, 384 F.Supp. 776 (SD Ind. 1974). See also Chart, Inc. v. United States, 491 F.Supp. 10 (DC 1979) (appeals pending, Nos. 80-1138 and 80-1139 (CADC)).
Decisions in accord with the ruling of the Third Circuit include Hospital Central Services Assn. v. United States, 623 F.2d 611 (CA9 1980), cert. denied, 450 U.S. 911, 101 S.Ct. 1348, 67 L.Ed.2d 334, and Metropolitan Detroit Area Hospital Services, Inc. v. United States, 634 F.2d 330 (CA6 1980). See also Associated Hospital Services, Inc. v. Commissioner, 74 T.C. 213, 231 (1980) (reviewed by the court, with four dissents; appeal pending, No. 80-3596 (CA5)).
5
Since the enactment of subsection (e), the Internal Revenue Service has adhered to its view that laundry service provided by a cooperative hospital service organization is not entitled to exemption under § 501. See Rev.Rul. 69-160, 1969-1 Cum.Bull. 147; Rev.Rul. 69-633, 1969-2 Cum.Bull. 121.
6
See S.Rep.No.744, 90th Cong., 1st Sess., 200-201 (1967), U.S.Code Cong. & Admin.News 1967, 2834; H.R.Conf.Rep.No.1030, 90th Cong., 1st Sess., 73 (1967), U.S.Code Cong. & Admin.News 1967, 2834; 114 Cong.Rec. 7516, 8111-8112 (1968).
7
We do not agree with the suggestion made by the Court of Claims in Northern California Central Services, Inc. v. United States, 219 Ct.Cl., at 67, 591 F.2d, at 624, that Congress "may have wished not to encourage cooperative hospital laundries by new tax exemptions, to which commercial laundries made vehement objections, yet to leave such laundries free to obtain from the courts the exemptions that existing law might afford them." The extended hearings, the Committee considerations, and the floor debates all reveal that Congress was well informed on the issue and made a deliberate decision. We necessarily recognize that congressional choice.
1
Section 502(a) provides:
"An organization operated for the primary purpose of carrying on a trade or business for profit shall not be exempt from taxation under section 501 on the ground that all of its profits are payable to one or more organizations exempt from taxation under section 501." 26 U.S.C. § 502(a).
2
The feeder regulation was subsequently redesignated Treas.Reg. 118, § 39.101-2(b) (1953). This regulation, insofar as relevant to this case, appears substantially in its original form as Treas.Reg. § 1.502-1(b), 26 CFR § 1.502-1(b) (1980). It provides, in pertinent part:
"If a subsidiary organization of a tax-exempt organization would itself be exempt on the ground that its activities are an integral part of the exempt activities of the parent organization, its exemption will not be lost because, as a matter of accounting between the two organizations, the subsidiary derives a profit from its dealings with its parent organization, for example, a subsidiary organization which is operated for the sole purpose of furnishing electric power used by its parent organization, a tax-exempt educational organization, in carrying on its educational activities. However, the subsidiary organization is not exempt from tax if it is operated for the primary purpose of carrying on a trade or business which would be an unrelated trade or business (that is, unrelated to exempt activities) if regularly carried on by the parent organization. For example, if a subsidiary organization is operated primarily for the purpose of furnishing electric power to consumers other than its parent organization (and the parent's tax-exempt subsidiary organizations), it is not exempt since such business would be an unrelated trade or business if regularly carried on by the parent organization. Similarly, if the organization is owned by several unrelated exempt organizations, and is operated for the purpose of furnishing electric power to each of them, it is not exempt since such business would be an unrelated trade or business if regularly carried on by any one of the tax-exempt organizations."
3
These cooperative ventures apparently were considered feeder organizations whether or not they were operated for the purpose of generating profits. Despite the fact that the governing statute, § 502(a), is applicable only to organizations "operated for the primary purpose of carrying on a trade or business for profit," the implementing regulation, § 1.502-1(b), does not mention the "for profit" requirement. In several cases rejecting the Treasury's contention that cooperative hospital service organizations are nonexempt feeders, the courts have emphasized the Treasury's failure to take into account the "for profit" requirement of the statute. See, e. g., Hospital Bureau of Standards & Supplies, Inc. v. United States, 141 Ct.Cl. 91, 95-96, 158 F.Supp. 560, 563-564 (1958); Hospital Central Services Assn. v. United States, 40 AFTR 2d 77-5646, 77-5648 (WD Wash. 1977); Community Hospital Services, Inc. v. United States, 43 AFTR 2d 79-934, 79-939 to 79-940 (ED Mich. 1979); 473 F.Supp. 250, 254-255 (ED Pa. 1979) (case below); Associated Hospital Services, Inc. v. Commissioner, 74 T.C. 213, 234-235 (1980) (Tannenwald, J., dissenting), appeal pending, No. 80-3596 (CA5).
4
Justice Stanley Reed, then recently retired from service on this Court, sat by designation as a member of the Court of Claims in the Hospital Bureau case.
5
The Commissioner never expressly announced a nonacquiescence in this decision. However, in an apparent response to the Hospital Bureau case, the feeder regulation, § 1.502-1(b), was amended in several respects in 1963. See T.D. 6662, 1963-2 Cum.Bull. 214, 215-216. See also Associated Hospital Services, Inc. v. Commissioner, supra, at 219.
6
Under the heading "Present law," the Senate Report contains the following statement:
"If two or more tax-exempt hospitals join together in creating an entity to perform services for the hospitals, the Internal Revenue Service takes the position that the entity constitutes a 'feeder organization' and is not entitled to income tax exemption because of a special provision of the code applicable to such organizations. This is true even though the service performed, if performed by each of the hospitals individually, would be considered an integral part of their exempt activities. In spite of this position of the Service, the leading case in point held such an entity furnishing services to hospitals to be exempt from tax." S.Rep.No.744, at 200-201, U.S.Code Cong. & Admin.News 1967, 2834.
7
Section 501(e) provides, in pertinent part:
"For purposes of this title, an organization shall be treated as an organization organized and operated exclusively for charitable purposes, if—
"(1) such organization is organized and operated solely—
"(A) to perform, on a centralized basis, one or more of the following services which, if performed on its own behalf by a hospital which is an organization described in subsection (c)(3) and exempt from taxation under subsection (a), would constitute activities in exercising or performing the purpose or function constituting the basis for its exemption: data processing, purchasing, warehousing, billing and collection, food, clinical, industrial engineering, laboratory, printing, communications, record center, and personnel (including selection, testing, training, and education of personnel) services; and
"(B) to perform such services solely for two or more hospitals each of which is—
"(i) an organization described in subsection (c)(3) which is exempt from taxation under subsection (a),
"(ii) a constituent part of an organization described in subsection (c)(3) which is exempt from taxation under subsection (a) and which, if organized and operated as a separate entity, would constitute an organization described in subsection (c)(3), or
"(iii) owned and operated by the United States, a State, the District of Columbia, or a possession of the United States, or a political subdivision or an agency or instrumentality of any of the foregoing;
"(2) such organization is organized and operated on a cooperative basis and allocates or pays, within 81/2 months after the close of its taxable year, all net earnings to patrons on the basis of services performed for them; and
"(3) if such organization has capital stock, all of such stock outstanding is owned by its patrons." 26 U.S.C. § 501(e).
8
See also Metropolitan Detroit Area Hospital Services, Inc. v. United States, 634 F.2d 330, 334-335 (CA6 1980).
9
The Internal Revenue Service, shortly after enactment of § 501(e), ruled that § 501(e) did not provide an exemption for hospital service organizations that performed laundry services. Rev.Rul. 69-160, 1969-1 Cum.Bull. 147. The Service also ruled that because laundry services were not among those listed in § 501(e), a joint hospital laundry service could not claim a tax exemption under § 501(c)(3). Rev.Rul. 69-633, 1969-2 Cum.Bull. 121.
10
See United Hospital Services, Inc. v. United States, 384 F.Supp. 776 (SD Ind. 1974); Hospital Central Services Assn. v. United States, 40 AFTR 2d 77-5646 (WD Wash. 1977); Metropolitan Detroit Area Hospital Services, Inc. v. United States, 445 F.Supp. 857 (ED Mich. 1978); Northern California Central Services, Inc. v. United States, 219 Ct.Cl. 60, 591 F.2d 620 (1979); Community Hospital Services, Inc. v. United States, 43 AFTR 2d 79-934 (ED Mich. 1979); 473 F.Supp. 250 (ED Pa. 1979) (case below). See also Chart, Inc. v. United States, 491 F.Supp. 10 (DC 1979), appeal pending, Nos. 80-1138, 80-1139 (CADC), in which the District Court held that an organization that qualifies for exemption under § 501(e) may nonetheless also claim the broader exemption provided by § 501(c)(3).
11
See 624 F.2d 428 (CA3 1980) (case below); Hospital Central Services Assn. v. United States, 623 F.2d 611 (CA9 1980), cert. denied, 450 U.S. 911, 101 S.Ct. 1348, 67 L.Ed.2d 334; Metropolitan Detroit Area Hospital Services, Inc. v. United States, supra.
In Associated Hospital Services, Inc. v. Commissioner, 74 T.C. 213 (1980), appeal pending, No. 80-3596 (CA5), a sharply divided Tax Court held that a nonprofit cooperative hospital laundry was not entitled to tax exemption under § 501, because of the feeder regulation, Treas.Reg. § 1.502-1(b). However, as explained in note 13, infra, the Tax Court's reasoning is in conflict with that in the above-cited cases and, in fact, supports the position of the petitioner in the instant case.
12
See cases cited in note 10, supra.
13
In Associated Hospital Services, Inc. v. Commissioner, supra, the Tax Court, over the dissent of four judges, accepted the Government's argument that the hospital laundry cooperative was a "feeder organization" under § 502 and Treas.Reg. § 1.502-1(b) and therefore nonexempt. For the reasons stated in the dissenting opinions of Judge Tannenwald and Judge Wilbur, I disagree with that decision. What is significant about the Tax Court's holding, however, is that even the majority did not accept the Government's present contention that § 501(e) precludes any tax exemption for a laundry cooperative even if it is not a feeder organization under § 502. The Tax Court observed that laundry services had been intentionally omitted from § 501(e), but nonetheless went on to consider § 502(a) and Treas.Reg. § 1.502-1(b). This inquiry would have been wholly unnecessary if, as the Government argues in this case, hospital service organizations not listed in § 501(e) are not entitled to claim an exemption under § 501(c)(3). For, as explained in Part II-A, infra, § 502 operates to deny a tax exemption to certain organizations which otherwise would be entitled to exemption under § 501(c)(3).
14
Section 501(c) provides, in pertinent part:
"The following organizations are referred to in subsection (a):
* * * * *
"(3) Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation (except as otherwise provided in subsection (h)), and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of any candidate for public office." 26 U.S.C. § 501(c)(3).
15
After rejecting the Government's contention that § 501(e) controlled this case, the District Court found that petitioner is a charitable organization within the meaning of § 501(c)(3). 473 F.Supp., at 254. Although it reversed the District Court's decision, the Court of Appeals did not disturb this finding. Rather, it concluded that petitioner was not entitled even to attempt to qualify for an income tax exemption under § 501(c)(3), because § 501(e) exclusively governs the tax status of cooperative hospital service organizations. Thus, the Court of Appeals considered its inquiry ended once it was established that petitioner provided a service not listed in § 501(e).
16
If Congress, in a wholly separate section of the Tax Code, had clearly stated that all hospital service organizations except those specifically enumerated shall be denied income tax exemption, the Court would not decline to give that statute effect merely because it was not a part of § 501. Similarly, in this case it seems to me that § 501(e)'s position cannot take the place of a congressional declaration that certain organizations be denied tax exemption.
17
Indeed, several courts have specifically concluded that § 501(e) was intended to expand, not to contract, the category of organizations eligible for tax exemption under § 501(c)(3). See, e. g., Northern California Central Services, Inc. v. United States, 219 Ct.Cl., at 67, 591 F.2d, at 624; 473 F.Supp., at 253; Metropolitan Detroit Area Hospital Services, Inc. v. United States, 445 F.Supp., at 860; United Hospital Services, Inc. v. United States, 384 F.Supp., at 781.
18
In fact, § 501(c)(3) had as its predecessor § 101(6) of the Internal Revenue Code of 1939. However, for purposes of the analysis in the text, the precise point of origin of § 501(c)(3) is unimportant; it is sufficient that § 501(c)(3) was enacted well before § 501(e).
19
According to the Treasury, hospital cooperatives were denied tax exemption, not because they failed to satisfy the requirements of § 501(c)(3), but because in the Treasury's judgment, they were feeder organizations and thus within an express exception to the charitable exemption provisions. See Rev.Rul. 54-305, 1954-2 Cum.Bull. 127; Treas.Reg. § 1.502-1(b).
20
Indeed, in its feeder regulation the Treasury clearly indicated that its opposition to tax exemption for cooperative service organizations was not limited to hospital cooperatives, but rather extended to all cooperative service organizations formed by two or more tax-exempt entities. See Treas.Reg. § 1.502-1(b).
21
It seems clear from the legislative history that Congress was aware that cooperative hospital service organizations were at least arguably entitled to exemption prior to 1968. Several passages in the legislative history indicate that Congress knew that the Treasury believed that such organizations were not entitled to exemption; nothing in the legislative history suggests that Congress approved of this position. See S.Rep.No.744, 90th Cong., 1st Sess., 200-201 (1967), U.S.Code Cong. & Admin.News 1967, 2834; 114 Cong.Rec. 7516 (1968); id., at 8112. Congress also was aware that the Treasury's position was based primarily upon § 502(a), rather than § 501(c)(3), and that its position had been rejected by "the leading case in point." See supra, at 12.
22
In fact, since the Treasury's opposition to tax-exempt status for hospital service organizations was based on § 502, rather than § 501(c)(3), it is more reasonable to construe the enactment of § 501(e) as a congressional attempt to limit § 502, rather than § 501(c)(3). Some of the language of § 501(e) supports this view. For example, § 501(e)(2) provides that a cooperative hospital service organization qualifying for exemption under that subsection must allocate or pay to its members all net earnings within 81/2 months after the close of its taxable year. Section 502, which was the congressional response to the series of "destination of income" cases culminating in the famous case involving the New York University School of Law's noodle factory, C. F. Mueller Co. v. Commissioner, 190 F.2d 120 (CA3 1951), was directed precisely at organizations which funneled their net income to tax-exempt institutions. Thus, organizations which might otherwise reasonably be considered feeder organizations are entitled to exemption under § 501(e). However, there is no reason why a cooperative organization that operates on a nonprofit basis and does not funnel earnings back to its members, such as the petitioner in this case, cannot qualify for an income tax exemption under § 501(c)(3). Such an organization, deprived of the shield of § 501(e), should nonetheless be tax exempt if it can avoid challenge as a feeder on its own merits.
The conclusion that § 501(e) was designed as a shield for certain organizations that otherwise would be considered nonexempt feeders is also supported by the fact that the exemption available under § 501(e) is more restrictive than that available under § 501(c)(3). As the District Court in Chart, Inc. v. United States, 491 F.Supp. 10 (DC 1979), appeal pending, Nos. 80-1138, 80-1139 (CADC), observed, organizations which qualify for tax exemption under § 501(c)(3) are able to operate with a great deal more flexibility than those qualifying under § 501(e). Id., at 13-14. Congress may well have designed § 501(e) to provide a limited form of tax exemption for previously nonexempt feeder organizations.
23
Section 501(f) is entitled "Cooperative service organizations of operating educational organizations," but it is not analogous to § 501(e). Section 501(f) concerns organizations organized and operated to invest funds on behalf of educational institutions and to pay the resulting income to these institutions.
| 1112
|
450 U.S. 24
101 S.Ct. 960
67 L.Ed.2d 17
Hoyt WEAVER, Petitioner,v.Robert GRAHAM, Governor of Florida.
No. 79-5780.
Argued Nov. 5, 1980.
Decided Feb. 24, 1981.
Syllabus
Held: A Florida statute repealing an earlier statute and reducing the amount of "gain time" for good conduct and obedience to prison rules deducted from a convicted prisoner's sentence is unconstitutional as an ex post facto law as applied to petitioner, whose crime was committed before the statute's enactment. Pp. 28-36.
(a) For a criminal or penal law to be ex post facto, it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it. Lindsey v. Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 799, 81 L.Ed. 1182; Calder v. Bull, 3 Dall. 386, 390, 1 L.Ed. 648. It need not impair a "vested right." Even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Ex Post Facto Clause if it is both retrospective and more onerous than the law in effect on the date of the offense. Pp. 28-31.
(b) The effect, not the form, of the law determines whether it is ex post facto. Although the Florida statute on its face applies only after its effective date, respondent conceded that the statute is used to calculate the gain time available to prisoners, such as petitioner, convicted for acts committed before the statute's effective date. Regardless of whether or not the prospect of gain time was in some technical sense part of the petitioner's sentence, the statute substantially alters the consequences attached to a crime already completed, changing the quantum of punishment, and thus is a retrospective law which can be constitutionally applied to petitioner only if it is not to his detriment. Pp. 31-33.
(c) The Florida statute is disadvantageous to petitioner and other similarly situated prisoners. The reduction in gain time that had been available under the repealed statute for abiding by prison rules and adequately performing assigned tasks lengthens the period that someone in petitioner's position must spend in prison. It is immaterial that other statutory provisions were also enacted whereby a prisoner might earn extra gain time by satisfying extra conditions. The award of such extra gain time is purely discretionary, contingent on both the correctional authorities' wishes and the inmate's special behavior, and thus none of the provisions for extra gain time compensates for the reduction of gain time available solely for good conduct. The new provision therefore constricts the inmate's opportunity to earn early release and therebymakes more onerous the punishment for crimes committed before its enactment. Pp. 33-36.
La., 376 So.2d 855, reversed and remanded.
Thomas C. MacDonald, Jr., Menlo Park, Cal., for petitioner.
Wallace E. Allbritton, Tallahassee, Fla., for respondent.
Justice MARSHALL delivered the opinion of the Court.
1
Florida, like many other States, rewards each convicted prisoner for good conduct and obedience to prison rules by using a statutory formula that reduces the portion of his sentence that he must serve. In this case, we consider whether a Florida statute altering the availability of such "gain time for good conduct"1 is unconstitutional as an ex post facto law when applied to petitioner, whose crime was committed before the statute's enactment.
2
* The relevant facts are undisputed. Petitioner pleaded guilty to second-degree murder. The crime charged occurred on January 31, 1976. On May 13, 1976, petitioner was convicted and sentenced to a prison term of 15 years, less timealready served. The state statute in place on both the date of the offense and the date of sentencing provided a formula for deducting gain-time credits from the sentences "of every prisoner who has committed no infraction of the rules or regulations of the division, or of the laws of the state, and who has performed in a faithful, diligent, industrious, orderly and peaceful manner, the work, duties and tasks assigned to him." Fla.Stat. § 944.27(1) (1975).2 According to the formula, gain-time credits were to be calculated by the month and were to accumulate at an increasing rate the more time the prisoner had already served. Thus, the statute directed that the authorities "shall grant the following deductions" from a prisoner's sentence as gain time for good conduct:
3
"(a) Five days per month off the first and second years of his sentence;
4
"(b) Ten days per month off the third and fourth years of his sentence; and
5
"(c) Fifteen days per month off the fifth and all succeeding years of his sentence." Fla.Stat. § 944.27(1) (1975).
6
In 1978, the Florida Legislature repealed § 944.27(1) and enacted a new formula for monthly gain-time deductions. This new statute provided:
7
"(a) Three days per month off the first and second years of the sentence;
8
"(b) Six days per month off the third and fourth years of the sentence; and
9
"(c) Nine days per month off the fifth and all succeeding years of the sentence." Fla.Stat. § 944.275(1) (1979).3
10
The new provision was implemented on January 1, 1979, and since that time the State has applied it not only to prisoners sentenced for crimes committed since its enactment in 1978, but also to all other prisoners, including petitioner, whose offenses took place before that date.4
11
Petitioner, acting pro se, sought a writ of habeas corpus from the Supreme Court of Florida on the ground that the new statute as applied to him was an ex post facto law prohibited by the United States and the Florida Constitutions.5 He alleged that the reduced accumulation of monthly gain-time credits provided under the new statute would extend his required time in prison by over 2 years, or approximately 14 percent of his original 15-year sentence.6 The State Supreme Court summarily denied the petition. 376 So.2d 855. The court relied on its decision in a companion case raising the same issue where it reasoned that "gain time allowance is an act of grace rather than a vested right and may be withdrawn, modified, or denied." Harris v. Wainwright, 376 So.2d 855, 856 (1979).7 We granted certiorari, 445 U.S. 927, 100 S.Ct. 1311, 63 L.Ed.2d 759, and we now reverse.
II
12
The ex post facto prohibition8 forbids the Congress and the States to enact any law "which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed." Cummings v. Missouri, 4 Wall. 277, 325-326, 18 L.Ed. 356 (1867). See Lindsey v. Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 799, 81 L.Ed. 1182 (1937); Rooney v. North Dakota, 196 U.S. 319, 324-325, 25 S.Ct. 264, 265-266, 49 L.Ed. 494 (1905); In re Medley, 134 U.S. 160, 171, 10 S.Ct. 384, 387, 33 L.Ed. 835 (1890); Calder v. Bull, 3 Dall. 386, 390, 1 L.Ed. 648 (1798).9 Through this prohibition, the Framers sought to assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed. Dobbert v. Florida, 432 U.S. 282, 298, 97 S.Ct. 2290, 2300, 53 L.Ed.2d 344 (1977); Kring v. Missouri, 107 U.S. 221, 229, 2 S.Ct. 443, 449, 27 L.Ed. 506 (1883); Calder v. Bull, supra, 3 Dall. at 387. The ban also restricts governmental power by restraining arbitrary and potentially vindictive legislation. Malloy v. South Carolina, 237 U.S. 180, 183, 35 S.Ct. 507, 508, 59 L.Ed. 905 (1915); Kring v. Missouri, supra, 107 U.S., at 229, 2 S.Ct., at 449; Fletcher v. Peck, 6 Cranch 87, 138, 3 L.Ed. 162 (1810); Calder v. Bull, supra, at 395, 396 (Paterson, J.); the Federalist No. 44 (J. Madison), No. 84 (A. Hamilton).10
13
In accord with these purposes, our decisions prescribe that two critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment,11 and it must disadvantage the offender affected by it.12 Lindsey v. Washington, supra, 301 U.S., at 401, 57 S.Ct., at 799; Calder v. Bull, supra, at 390. Contrary to the reasoning of the Supreme Court of Florida, a law need not impair a "vested right" to violate the ex post facto prohibition.13 Evaluating whether a right has vestedis important for claims under the Contracts or Due Process Clauses, which solely protect pre-existing entitlements. See, e. g., Wood v. Lovett, 313 U.S. 362, 371, 61 S.Ct. 983, 987, 85 L.Ed. 1404 (1941); Dodge v. Board of Education, 302 U.S. 74, 78-79, 58 S.Ct. 98, 100, 82 L.Ed. 57 (1937). See also United States Railroad Retirement Board v. Fritz, 449 U.S. 166, 174, 101 S.Ct. 453, 459, 66 L.Ed.2d 368 (1980). The presence or absence of an affirmative, enforceable right is not relevant, however, to the ex post facto prohibition, which forbids the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred. Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated. Thus, even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both retrospective and more onerous than the law in effect on the date ofthe offense.14 We now consider the Florida statute in light of these two considerations.
14
The respondent maintains that Florida's 1978 law altering the availability of gain time is not retrospective because, on its face, it applies only after its effective date. Brief for Respondent 12, 15-16. This argument fails to acknowledge that it is the effect, not the form, of the law that determines whether it is ex post facto.15 The critical question is whether the law changes the legal consequences of acts completed before its effective date. In the context of this case, this question can be recast as asking whether Fla.Stat. § 944.275(1) (1979) applies to prisoners convicted for acts committed before the provision's effective date. Clearly, the answer is in the affirmative. The respondent concedes that the State uses § 944.275(1), which was implemented on January 1, 1979, to calculate the gain time available to petitioner, who was convicted of a crime occurring on January 31, 1976.16 Thus, the provision attaches legal consequences to a crime committed before the law took effect.
15
Nonetheless, respondent contends that the State's revised gain-time provision is not retrospective because its predecessor was "no part of the original sentence and thus no part of the punishment annexed to the crime at the time petitioner was sentenced." Brief for Respondent 12. This contentionis foreclosed by our precedents. First, we need not determine whether the prospect of the gain time was in some technical sense part of the sentence to conclude that it in fact is one determinant of petitioner's prison term—and that his effective sentence is altered once this determinant is changed. See Lindsey v. Washington, 301 U.S., at 401-402, 57 S.Ct., at 799; Greenfield v. Scafati, 277 F.Supp. 644 (Mass.1967) (three-judge court), summarily aff'd, 390 U.S. 713, 88 S.Ct. 1409, 20 L.Ed.2d 250 (1968). See also Rodriguez v. United States Parole Comm'n, 594 F.2d 170 (CA7 1979) (elimination of parole eligibility held an ex post facto violation). We have previously recognized that a prisoner's eligibility for reduced imprisonment is a significant factor entering into both the defendant's decision to plea bargain and the judge's calculation of the sentence to be imposed. Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974); Warden v. Marrero, 417 U.S. 653, 658, 94 S.Ct. 2532, 2535, 41 L.Ed.2d 383 (1974). See United States v. De Simone, 468 F.2d 1196 (CA2 1972); Durant v. United States, 410 F.2d 689, 692 (CA1 1969). Second, we have held that a statute may be retrospective even if it alters punitive conditions outside the sentence. Thus, we have concluded that a statute requiring solitary confinement prior to execution is ex post facto when applied to someone who committed a capital offense prior to its enactment, but not when applied only prospectively. Compare In re Medley, 134 U.S. 160, 10 S.Ct. 384, 33 L.Ed. 835 (1890), with Holden v. Minnesota, 137 U.S. 483, 11 S.Ct. 143, 34 L.Ed. 734 (1890). See also Cummings v. Missouri, 4 Wall. 277, 18 L.Ed. 356 (1867).17
16
For prisoners who committed crimes before its enactment, § 944.275(1) substantially alters the consequences attached to a crime already completed, and therefore changes "the quantum of punishment." See Dobbert v. Florida, supra, 432 U.S., at 293-294, 97 S.Ct., at 2298. Therefore, it is a retrospective law which can be constitutionally applied to petitioner only if it is not to his detriment. Id., at 294, 97 S.Ct., at 2298.
B
17
Whether a retrospective state criminal statute ameliorates or worsens conditions imposed by its predecessor is a federal question. Lindsey v. Washington, supra, 301 U.S., at 400, 57 S.Ct., at 798. See Malloy v. South Carolina, supra, 237 U.S., at 184, 35 S.Ct., at 508; Rooney v. North Dakota, supra, 196 U.S., at 325, 25 S.Ct., at 265. The inquiry looks to the challenged provision, and not to any special circumstances that may mitigate its effect on the particular individual. Dobbert v. Florida, supra, 432 U.S., at 300, 97 S.Ct., at 2301; Lindsey v. Washington, supra, 301 U.S. at 401, 57 S.Ct., at 799; Rooney v. North Dakota, supra, 196 U.S., at 325, 25 S.Ct., at 265.
18
Under this inquiry, we conclude § 944.275(1) is disadvantageous to petitioner and other similarly situated prisoners. On its face, the statute reduces the number of monthly gain-time credits available to an inmate who abides by prison rules and adequately performs his assigned tasks. By definition, this reduction in gain-time accumulation lengthens the period that someone in petitioner's position must spend in prison. In Lindsey v. Washington, supra, 301 U.S., at 401-402, 57 S.Ct., at 799, we reasoned that "[i]t is plainly to the substantial disadvantage of petitioners to be deprived of all opportunity to receive a sentence which would give them freedom from custody and control prior to the expiration of the 15-year term." Here, petitioner is similarly disadvantaged by the reducedopportunity to shorten his time in prison simply through good conduct. In Greenfield v. Scafati, supra, we affirmed the judgment of a three-judge District Court which found an ex post facto violation in the application of a statute denying any gain time for the first six months after parole revocation to an inmate whose crime occurred before the statute's enactment. There, as here, the inmate was disadvantaged by new restrictions on eligibility for release. In this vein, the three-judge court in Greenfield found "no distinction between depriving a prisoner of the right to earn good conduct deductions and the right to qualify for, and hence earn, parole. Each . . . materially 'alters the situation of the accused to his disadvantage.' " 277 F.Supp., at 646 (quoting In re Medley, supra, at 171, 10 S.Ct., at 387). See also Murphy v. Commonwealth, 172 Mass. 264, 52 N.E. 505 (1899).
19
Respondent argues that our inquiry should not end at this point because Fla.Stat. § 944.275(1) (1979) must be examined in conjunction with other provisions enacted with it. Brief for Respondent 18-26. Respondent claims that the net effect of all these provisions is increased availability of gain-time deductions.18 There can be no doubt that the legislature intended through these provisions to promote rehabilitation and to create incentives for specified productive conduct. See Fla.Stat. § 944.012 (1979). But none of these provisions for extra gain time compensates for the reduction of gain time available solely for good conduct. The fact remains that an inmate who performs satisfactory work and avoids disciplinary violations could obtain more gain time per month under the repealed provision, § 944.27(1) (1975), than he could for the same conduct under the new provision, § 944.275(1) (1979). To make up the difference, the inmate has to satisfy the extra conditions specified by the discretionary gain-time provisions.19 Even then, the award of the extra gain time is purely discretionary, contingent on both the wishes of the correctional authorities and special behavior by the inmate, such as saving a life or diligent performance in an academic program. Fla.Stat. §§ 944.275(3)(a), (b) (1979). In contrast, under both the new and old statutes, an inmate is automatically entitled to the monthly gain time simply for avoiding disciplinary infractions and performing his assigned tasks. Compare Fla.Stat. § 944.275(1) (1979) with § 944.27(1) (1975).20 Thus, the new provision constricts the inmate'sopportunity to earn early release, and thereby makes more onerous the punishment for crimes committed before its enactment. This result runs afoul of the prohibition against ex post facto laws.21
III
20
We find Fla.Stat. § 944.275(1) (1979) void as applied to petitioner, whose crime occurred before its effective date. We therefore reverse the judgment of the Supreme Court of Florida and remand this case for further proceedings not inconsistent with this opinion.22
21
Reversed and remanded.
22
Justice BLACKMUN, with whom THE CHIEF JUSTICE joins, concurring in the judgment.
23
Were the Court writing on a clean slate, I would vote to affirm the judgment of the Supreme Court of Florida. Mythesis would be: (a) the 1978 Florida statute operates only prospectively and does not affect petitioner's credits earned and accumulated prior to the effective date of the statute; (b) "good time" or "gain time" is something to be earned and is not part of, or inherent in, the sentence imposed; (c) all the new statute did was to remove some of petitioner's hope and a portion of his opportunity; and (d) his sentence therefore was not enhanced by the statute. In addition, as the Court's 18th footnote reveals, ante, at 34-35, the statutory change by no means was entirely restrictive; in certain respects it was more lenient, as the Court's careful preservation for this prisoner of the new statute's other provisions clearly implies. Ante, at 36 and this page, n. 22.
24
The Court's precedents, however, particularly Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937), and the summary disposition of Greenfield v. Scafati, 277 F.Supp. 644 (Mass.1967), aff'd, 390 U.S. 713, 88 S.Ct. 1409, 20 L.Ed.2d 250 (1968), although not warmly persuasive for me, look the other way, and I thus must accede to the judgment of the Court.
25
Justice REHNQUIST, concurring in the judgment.
26
I find this case a close one. As the Court recently noted: "It is axiomatic that for a law to be ex post facto it must be more onerous than the prior law." Dobbert v. Florida, 432 U.S. 282, 294, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977). Petitioner was clearly disadvantaged by the loss of the opportunity to accrue gain time through good conduct pursuant to the 5-10-15 formula when the legislature changed to a 3-6-9 formula. The new statute, however, also afforded petitioner opportunities not availableunder prior law to earn additional gain time beyond the good-conduct formula.* The case is not resolved simply by comparing the 5-10-15 formula with the 3-6-9 formula. "We must compare the two statutory procedures in toto to determine if the new may be fairly characterized as more onerous." Ibid.
27
I am persuaded in this case, albeit not without doubt, that the new statute is more onerous than the old, because the amount of gain time which is accrued automatically solely through good conduct is substantially reduced, and this reduction is not offset by the availability of discretionary awards of gain time for activities extending beyond simply "staying out of trouble." This is not to say, however, that no reduction in automatic gain time, however slight, can ever be offset by increases in the availability of discretionary gain time, however great, or that reductions in the amount of credit for good conduct can never be offset by increases in the availability of credit which can be earned by more than merely good conduct.
28
Since the availability of new opportunities for discretionary gain time and the reduction in the amount of automatic gain time can be viewed as a total package, it must be emphasized that nothing in today's decision compels Florida to provide prisoners in petitioner's position with the benefits of the new provisions when this Court has held that Florida may not require such prisoners to pay the price. It is not at all clear that the Florida Legislature would have intended to make available the new discretionary gain time to prisoners earning automatic gain time under the old 5-10-15 formula, when the legislature in fact reduced the 5-10-15 formula when it enacted the new provisions. The question is, of course, one for Florida to resolve.
1
Fla.Stat. § 944.275(1) (1979); Fla.Stat. § 944.27(1) (1975). At the time of petitioner's offense, Florida used the term "good-time," to refer to extra "allowance for meritorious conduct or exceptional industry." Fla.Stat. § 944.29 (1975). The current Florida law adopts the phrase "gain-time" to apply to various kinds of time credited to reduce a prisoner's prison term. See, e. g., Fla.Stat. § 944.275(3) (1979).
2
The statute also provided for extra discretionary good time, based on other factors. See n. 18, infra.
3
There are some minor language differences in the new provision directing the correctional authorities at the Department of Offender Rehabilitation to make the gain-time deductions. The phrase "who has performed in a satisfactory and acceptable manner the work, duties, and tasks assigned," Fla.Stat. § 944.275(1) (1979), replaces the former phrase, "who has performed in a faithful, diligent, industrious, orderly, and peaceful manner the work, duties, and tasks assigned," Fla.Stat. § 944.27(1) (1975). The new version also explicitly adds that the deductions are to be made "on a monthly basis, as earned," which appears to codify the previous practice. The State Supreme Court assigned no significance to these differences in evaluating the ex post facto claim, nor does any party here assert that these minor language changes are relevant to our inquiry.
4
No saving clause limiting the Act's application was included. 1978 Fla.Laws, ch. 78-304. In applying the new schedule to prisoners like petitioner, the Secretary of the Department of Offender Rehabilitation relied on the legal opinion of the Attorney General of Florida. Fla.Op.Atty.Gen. 078-96 (1978).
5
"No State shall . . . pass any . . . ex post facto Law." U.S.Const., Art. I, § 10, cl. 1. The Florida Constitution similarly provides that "[n]o . . . ex post facto law . . . shall be passed." Fla.Const., Art. I, § 10. See also Fla.Const., Art. X, § 9 (forbidding state legislature to enact a statute "affect[ing] [the] prosecution or punishment" for any offense previously committed).
6
Petitioner estimated that his "tentative expiration date" under Fla.Stat. § 944.27 (1975) would be December 31, 1984. App. 15a. The State calculated that application of the new gain-time provision starting with its effective date resulted in a projected release date of February 2, 1987. Id., at 12a-13a. The State does not dispute petitioner's contention that a difference of over two years is at stake.
7
The Florida court also distinguished cases from other jurisdictions striking down retrospective statutes that eliminated the allowance of gain time in specified situations, revised the entire scheme of criminal penalties, and extended the incarceration of juvenile offenders. 376 So.2d, at 857 (distinguishing Dowd v. Sims, 229 Ind. 54, 95 N.E.2d 628 (1950); Goldsworthy v. Hannifin, 86 Nev. 252, 468 P.2d 350 (1970); In re Dewing, 19 Cal.3d 54, 136 Cal.Rptr. 708, 560 P.2d 375 (1977); and In re Valenzuela, 275 Cal.App.2d 483, 79 Cal.Rptr. 760 (1969)).
8
U.S.Const., Art. I, § 9, cl. 3; Art. I, § 10, cl. 1. "So much importance did the [c]onvention attach to [the ex post facto prohibition], that it is found twice in the Constitution." Kring v. Missouri, 107 U.S. 221, 227, 2 S.Ct. 443, 448, 27 L.Ed. 506 (1883).
9
"The enhancement of a crime, or penalty, seems to come within the same mischief as the creation of a crime or penalty" after the fact. Calder v. Bull, 3 Dall., at 397 (Paterson, J.). See also Fletcher v. Peck, 6 Cranch 87, 138, 3 L.Ed. 162 (1810) ("An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed").
10
The ex post facto prohibition also upholds the separation of powers by confining the legislature to penal decisions with prospective effect and the judiciary and executive to applications of existing penal law. Cf. Ogden v. Blackledge, 2 Cranch 272, 277, 2 L.Ed. 276 (1804).
11
See Jaehne v. New York, 128 U.S. 189, 194, 9 S.Ct. 70, 71, 32 L.Ed. 398 (1888) (portion of legislation void which " 'should endeavor to reach by its retroactive operation acts before committed' ") (quoting T. Cooley, Constitutional Limitations 215 (5th ed. 1883)).
12
We have also held that no ex post facto violation occurs if the change effected is merely procedural, and does "not increase the punishment nor change the ingredients of the offense or the ultimate facts necessary to establish guilt." Hopt v. Utah, 110 U.S. 574, 590, 4 S.Ct. 202, 210, 28 L.Ed. 262 (1884). See Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977). Alteration of a substantial right, however, is not merely procedural, even if the statute takes a seemingly procedural form. Thompson v. Utah, 170 U.S. 343, 354-355, 18 S.Ct. 620, 624, 42 L.Ed. 1061 (1898); Kring v. Missouri, supra, at 232, 2 S.Ct., at 452.
13
In using the concept of vested rights, Harris v. Wainwright, 376 So.2d, at 856, the Florida court apparently drew on the test for evaluating retrospective laws in a civil context. See 2 C. Sands, Sutherland on Statutory Construction § 41.06 (4th ed. 1973); Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 Harv.L.Rev. 692, 696 (1960); Smead, The Rule Against Retroactive Legislation: A Basic Principle of Jurisprudence, 20 Minn.L.Rev. 775, 782 (1936). Discussion of vested rights has seldom appeared in ex post facto analysis, as in identifying whether the challenged change is substantive rather than procedural. Hopt v. Utah, supra, 110 U.S., at 590, 4 S.Ct., at 210. When a court engages in ex post facto analysis,
which is concerned solely with whether a statute assigns more disadvantageous criminal or penal consequences to an act than did the law in place when the act occurred, it is irrelevant whether the statutory change touches any vested rights. Several state courts have properly distinguished vested rights from ex post facto concerns. E. g., State v. Curtis, 363 So.2d 1375, 1379, 1382 (La.1978); State ex rel. Woodward v. Board of Parole, 155 La. 699, 700, 99 So. 534, 535-536 (1924); Murphy v. Commonwealth, 172 Mass. 264, 272, 52 N.E. 505, 507 (1899).
Respondent here advances several theories that incorporate the vested rights approach. For example, respondent defends Fla.Stat. § 944.275(1) (1979) on the ground that it does not take away any gain time that petitioner has already earned. Brief for Respondent 39-40. Although this point might have pertinence were petitioner alleging a due process violation, see Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), it has no relevance to his ex post facto claim.
14
Durant v. United States, 410 F.2d 689, 691 (CA1 1969); Adkins v. Bordenkircher, 262 S.E.2d 885, 887 (W.Va.1980); Goldsworthy v. Hannifin, 86 Nev., at 256-257, 468 P.2d, at 352. See Murphy v. Commonwealth, supra, at 272, 52 N.E., at 507.
15
"The Constitution deals with substance, not shadows. Its inhibition was levelled at the thing, not the name. It intended that the rights of the citizen should be secure against deprivation for past conduct by legislative enactment, under any form, however disguised." Cummings v. Missouri, 4 Wall. 277, 325, 18 L.Ed. 356 (1867).
16
See App. 12a-13a (Affidavit, Louie Wainwright, Secretary, Department of Corrections).
17
Even when the sentence is at issue, a law may be retrospective not only if it alters the length of the sentence, but also if it changes the maximum sentence from discretionary to mandatory. Lindsey v. Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 799, 81 L.Ed. 1182 (1937). The critical question, as Florida has often acknowledged, is whether the new provision imposes greater punishment after the commission of the offense, not merely whether it increases a criminal sentence. Greene v. State, 238 So.2d 296 (Fla.1970); Higginbotham v. State, 88 Fla. 26, 31, 101 So. 233, 235 (1924); Herberle v. P. R. O. Liquidating Co., 186 So.2d 280, 282 (Fla.App.1966). Thus in Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), we held there was no ex post facto violation because the challenged provisions changed the role of jury and judge in sentencing, but did not add to the "quantum of punishment." Id., at 293-294, 97 S.Ct. at 2298. In Malloy v. South Carolina, 237 U.S. 180, 35 S.Ct. 507, 59 L.Ed. 905 (1915), we concluded that a change in the method of execution was not ex post facto because evidence showed the new method to be more humane, not because the change in the execution method was not retrospective. Id., at 185, 35 S.Ct., at 509.
18
These other provisions permit discretionary grants of additional gain time for inmates who not only satisfy the good-conduct requirement, but who also deserve extra reward under designated categories. Under § 944.275(3)(b) (1979), "special gain-time" of 1 to 60 days "may be granted" to an "inmate who does some outstanding deed, such as the saving of a life or assisting in the recapturing of an escaped inmate." Another provision specifies that an inmate "may be granted" one to six extra gain-time days per month if he "faithfully performs the assignments given to him in a conscientious manner over and above that which may normally be expected of him" and also either shows "his desire to be a better than average inmate" or "diligently participates in an approved course of academic or vocation study." § 944.275(3)(a). An inmate may be awarded up to one gain-time credit for labor evaluated "on the basis of diligence of the inmate, the quality and quantity of work performed, and the skill required for performance of the work." § 944.275(2)(b). Finally, for inmates unable to qualify under this previous provision due to "age, illness, infirmity, or confinement for reasons other than discipline," additional gain time of up to six days per month may be granted for "constructive utilization of time." § 944.275(2)(e).
19
In addition, few of the "new" sources for extra gain time do more than reiterate previous opportunities provided by statute or state regulation. Compare Fla.Stat. § 944.275(3)(a) (1979) with § 944.29 (1975) ("an extra good-time allowance for meritorious conduct or exceptional industry"); Fla.Stat. § 944.275(2)(b) (1979) with § 944.27 (1975) (authorizing administrative rules governing additional gain time) and Fla.Admin.Code, Rule 10B-20.04(1) (1975) (gain time for construction labor project); Fla.Stat. § 944.275(3)(b) (1979) with Rule 10B-20.04(2) (1975) (gain time for outstanding deed). Moreover, under the statute in existence when petitioner's crime occurred, the Department of Corrections enjoyed greater discretion as to the reasons for awarding extra gain time, and as to the amount that could be awarded. See § 944.29 (1975).
20
As respondent put it, "all any prisoner had to do . . . was to stay out of trouble." Brief for Respondent 25. The monthly gain-time provision, both at the time of petitioner's offense and now, directed that the Department of Corrections "shall" award gain time to those who obey the rules and perform their work satisfactorily. Fla.Stat. § 944.27(1) (1975); Fla.Stat. § 944.275(1) (1979). The discretionary extra gain time cannot fully compensate for the reduced accumulation of gain time for good behavior, for the discretionary credit is more uncertain. Cf. In re Medley, 134 U.S. 160, 172, 10 S.Ct. 384, 388, 33 L.Ed. 835 (1890) (rejecting nondisclosure of execution date as ex post facto increase of uncertainty and mental anxiety). Moreover, replacement of mandatory sentence reduction with discretionary sentence reduction cannot be permissible in light of Lindsey v. Washington, 301 U.S., at 401, 57 S.Ct., at 799. There we rejected as an ex post facto violation a legislative change from flexible sentencing to mandatory maximum sentencing because the retrospective legislation restricted defendants' opportunity to serve less than the maximum time in prison.
21
We need not give lengthy consideration to respondent's claim that the challenged statute, Fla.Stat. § 944.275(1) (1979), is merely procedural because it does not alter the punishment prescribed for petitioner's offense. Brief for Respondent 13, 17-18. This contention is incorrect, given the uncontested fact that the new provision reduces the quantity of gain time automatically available, and does not merely alter procedures for its allocation. See supra, Part II-A. Respondent's reliance on a general statement of legislative intent unrelated to the gain-time provision, see Brief for Respondent 17 (citing Fla.Stat. § 944.012(6) (1979)), is also unpersuasive.
22
The proper relief upon a conclusion that a state prisoner is being treated under an ex post facto law is to remand to permit the state court to apply, if possible, the law in place when his crime occurred. See Lindsey v. Washington, supra, at 402, 57 S.Ct., at 799; In re Medley, supra, at 173, 10 S.Ct., at 388. In remanding for this relief, we note that only the ex post facto portion of the new law is void as to petitioner, and therefore any severable provisions which are not ex post facto may still be applied to him. See 2 C. Sands, Sutherland on Statutory Construction § 44.04 (4th ed. 1973).
*
While the Court points out that gain time was available under the old scheme beyond the 5-10-15 formula, ante, at 35, n. 19, I am not convinced that the new sources simply "reiterate[d]" opportunities previously available. There is, for example, no dispute that several of the new sources of gain time have no analogues in the previous statutory or administrative scheme. See, e. g., Fla.Stat. § 944.275(2)(e) (1979) (up to six days of gain time per month because of age, illness, infirmity, or confinement for reasons other than discipline); § 944.275(3)(a) (up to six days per month for inmates who diligently participate in an approved course of academic or vocational study). Other new statutory provisions which had only administrative counterparts improved substantially on the availability of gain time. For example, under the old administrative system, an inmate could receive from 1 to 15 days of gain time per month for constructive labor, Fla.Admin.Code, Rule 10B-20.04(1) (1975), while under the new statutory scheme, an inmate can receive up to 1 day of gain time for every day of constructive labor, Fla.Stat. § 944.275(2)(b) (1979).
| 01
|
450 U.S. 40
101 S.Ct. 970
67 L.Ed.2d 30
Tracy Lee HUDSON, Petitioner,v.State of LOUISIANA.
No. 79-5688.
Argued Dec. 1, 1980.
Decided Feb. 24, 1981.
Syllabus
Held : Louisiana violated the Double Jeopardy Clause by prosecuting petitioner a second time for first-degree murder after the judge at the first trial granted petitioner's motion for new trial on the ground that the evidence was legally insufficient to support the jury's guilty verdict. This case is controlled by Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (decided before the Louisiana Supreme Court affirmed petitioner's conviction after the second trial), which held that "the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient" to support the guilty verdict. Id., at 18, 98 S.Ct., at 2150. Burks is not to be read as holding that double jeopardy protections are violated only when the prosecution has adduced no evidence at all of the crime or an element thereof. The record does not support the State's contention that the trial judge granted a new trial only because, as a "13th juror," he entertained personal doubts about the verdict and would have decided it differently from the other 12 jurors. The record shows instead that he granted the new trial because the State had failed to prove its case as a matter of law. Pp. 42-45.
La., 373 So.2d 1294, reversed.
Richard O. Burst, Sr., Guthrie, Okl., for petitioner.
James M. Bullers, Bossier City, La., for respondent.
Justice POWELL delivered the opinion of the Court.
1
The question in this case is whether Louisiana violated the Double Jeopardy Clause, as we expounded it in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), by prosecuting petitioner a second time after the trial judge at the first trial granted petitioner's motion for new trial on the ground that the evidence was insufficient to support the jury's verdict of guilty.
2
* Petitioner Tracy Lee Hudson was tried in Louisiana state court for first-degree murder, and the jury found him guilty. Petitioner then moved for a new trial, which under Louisiana law was petitioner's only means of challenging the sufficiency of the evidence against him.1 The trial judge granted the motion, stating: "I heard the same evidence the jury did[;] I'm convinced that there was no evidence, certainly not evidence beyond a reasonable doubt, to sustain the verdict of the homicide committed by this defendant of this particular victim." The Louisiana Supreme Court denied the State's application for a writ of certiorari. State v. Hudson, 344 So.2d 1 (1977).
3
At petitioner's second trial, the State presented an eyewitness whose testimony it had not presented at the first trial. The second jury also found petitioner guilty. The Louisiana Supreme Court affirmed the conviction. State v. Hudson, 361 So.2d 858 (1978).
4
Petitioner then sought a writ of habeas corpus in a Louisiana state court, contending that the Double Jeopardy Clause barred the State from trying him the second time. Petitioner relied on our decision in Burks2 that "the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient" to support the guilty verdict. 437 U.S., at 18, 98 S.Ct., at 2150.3 The trial court denied a writ, and the Louisiana Supreme Court affirmed. 373 So.2d 1294 (1979). The Supreme Court read Burks to bar a second trial only if the court reviewing the evidence—whether an appellate court or a trial court determines that there was no evidence to support the verdict. Because it believed that the trial judge at petitioner's first trial had granted petitioner's motion for new trial on the ground that there was insufficient evidence to support the verdict, although some evidence, the Louisiana Supreme Court concluded that petitioner's second trial was not precluded by the Double Jeopardy Clause.
5
We granted a writ of certiorari, 445 U.S. 960, 100 S.Ct. 1645, 64 L.Ed.2d 235 (1980), and we now reverse.
II
6
We considered in Burks the question "whether an accused may be subjected to a second trial when conviction in a prior trial was reversed by an appellate court solely for lack of sufficient evidence to sustain the jury's verdict." 437 U.S., at 2, 98 S.Ct., at 2142. We held that a reversal "due to a failure of proof at trial," where the State received a "fair opportunity to offer whatever proof it could assemble," bars retrial on the same charge. Id., at 16, 98 S.Ct., at 2149. We also held that it makes "no difference that the reviewing court, rather than the trial court, determined the evidence to be insufficient." Id., at 11, 98 S.Ct., at 2147 (emphasis in original), or that "a defendant has sought a new trial as one of his remedies, or even as the sole remedy." Id., at 17, 98 S.Ct., at 2150.
7
Our decision in Burks controls this case, for it is clear that petitioner moved for a new trial on the ground that the evidence was legally insufficient to support the verdict and that the trial judge granted petitioner's motion on that ground. In the hearing on the motion, petitioner's counsel argued to the trial judge that "the verdict of the jury is contrary to the law and the evidence." After reviewing the evidence put to the jurors, the trial judge agreed with petitioner "that there was no evidence, certainly not evidence beyond a reasonable doubt, to sustain the verdict"; and he commented: "[H]ow they concluded that this defendant committed the act from that evidence when no weapon was produced, no proof of anyone who saw a blow struck, is beyond the Court's comprehension." The Louisiana Supreme Court recognized that the trial judge granted the new trial on the ground that the evidence was legally insufficient. The Supreme Court described the trial judge's decision in these words: "[T]he trial judge herein ordered a new trial pursuant to LSA-C.Cr.P. art. 851(1) solely for lack of sufficient evidence to sustain the jury's verdict . . . ." 373 So.2d, at 1298 (emphasis in original). This is precisely the circumstance in which Burks precludes retrials. 437 U.S., at 18, 98 S.Ct., at 2150. See Greene v. Massey, 437 U.S. 19, 24-26, 98 S.Ct. 2151, 2154-55, 57 L.Ed.2d 15 (1978); id., at 27, 98 S.Ct., at 2155 (POWELL, J., concurring). Nothing in Burks suggests, as the Louisiana Supreme Court seemed to believe, that double jeopardy protections are violated only when the prosecution has adduced no evidence at all of the crime or an element thereof.
8
The State contends that Burks does not control this case. As the State reads the record, the trial judge granted a new trial only because he entertained personal doubts about the verdict. According to the State, the trial judge decided that he, as a "13th juror," would not have found petitioner guilty and he therefore granted a new trial even though the evidence was not insufficient as a matter of law to support the verdict.4 The State therefore reasons that Burks does not preclude a new trial in such a case, for the new trial was not granted "due to a failure of proof at trial." 437 U.S., at 16, 98 S.Ct., at 2149.
9
This is not such a case, as the opinion of the Louisiana Supreme Court and the statements of the trial judge make clear. The trial judge granted the new trial because the State had failed to prove its case as a matter of law, not merely because he, as a "13th juror," would have decided it differently from the other 12 jurors.5 Accordingly, there are no significant facts which distinguish this case from Burks,6 and the Double Jeopardy Clause barred the State from prosecuting petitioner a second time.
III
10
The judgment of the Louisiana Supreme Court is reversed.
11
It is so ordered.
1
Louisiana's Code of Criminal Procedure does not authorize trial judges to enter judgments of acquittal in jury trials. La.Code Crim.Proc.Ann., Art. 778 (West Supp.1980); State v. Henderson, 362 So.2d 1358, 1367 (La.1978). Accordingly, a criminal defendant's only means of challenging the sufficiency of evidence presented against him to a jury is a motion for new trial under La.Code Crim.Proc.Ann., Art. 851 (West 1967 and Supp.1980), which provides in pertinent part:
"The Court, on motion of the defendant, shall grant a new trial whenever:
"(1) The verdict is contrary to the law and the evidence;
"(2) The court's ruling on a written motion, or an objection made during the proceedings, shows prejudicial error;
"(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;
"(4) The defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment; or
"(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right."
We think it clear that the trial judge in this case acted under paragraph (1) in granting a new trial. See infra, at 43.
2
We decided Burks before the Louisiana Supreme Court entered its judgment affirming petitioner's conviction.
3
Burks involved a federal prosecution, but the Court held in Greene v. Massey, 437 U.S. 19, 24, 98 S.Ct. 2151, 2154, 57 L.Ed.2d 15 (1978), that the double jeopardy principle in Burks fully applies to the States. See Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978).
4
The State's contention here adopts the reasoning of Justice Tate's concurring opinion in the Louisiana Supreme Court. Justice Tate wrote: "[The trial judge] did not grant a new trial for a reason that he did not think the state had produced sufficient evidence to prove guilt, but rather because he himself (to satisfy his doubts—not the jury's, which had concluded otherwise) had personal doubts that the evidence was sufficient to prove guilt beyond a reasonable doubt. Commendably and conscientiously, he therefore ordered a new trial . . . .
"The present is not an instance where the state did not prove its case at the first trial, so that granting a new trial gave the state a second chance to produce enough evidence to convict the accused. If so, as the majority notes, re-trial offends constitutional double jeopardy." 373 So.2d, at 1298 (emphasis in original).
5
Whether a state trial judge in a jury trial may assess evidence as a "13th juror" is a question of state law. Compare People v. Noga, 196 Colo. 478, 480, 586 P.2d 1002, 1003 (1978); State v. Bowle, 318 So.2d 407, 408 (Fla.App.1975), with Veitch v. Superior Court, 89 Cal.App.3d 722, 730-731, 152 Cal.Rptr. 822, 827 (1979); People v. Ramos, 33 App.Div.2d 344, 347, 308 N.Y.S.2d 195, 197-198 (1970). Justice Tate's concurring opinion for the Louisiana Supreme Court suggests that Louisiana law allows trial judges to act as "13th jurors." We do not decide whether the Double Jeopardy Clause would have barred Louisiana from retrying petitioner if the trial judge had granted a new trial in that capacity, for that is not the case before us. We note, however, that Burks precludes retrial where the State has failed as a matter of law to prove its case despite a fair opportunity to do so. Supra, at 43. By definition, a new trial ordered by a trial judge acting as a "13th juror" is not such a case. Thus, nothing in Burks precludes retrial in such a case.
6
The Louisiana Supreme Court did not find it significant that the trial judge, rather than an appellate court, held the State's evidence to be insufficient to sustain the jury's verdict: "While the case at bar involves the granting of a motion for new trial by the trial court for insufficient evidence rather than review at the appellate level, we deem the same principles are applicable to both." 373 So.2d, at 1297. The State does not contest this conclusion.
| 01
|
450 U.S. 46
101 S.Ct. 973
67 L.Ed.2d 36
BOARD OF GOVERNORS OF the FEDERAL RESERVE SYSTEM, Petitioner,v.INVESTMENT COMPANY INSTITUTE.
No. 79-927.
Argued Oct. 15, 1980.
Decided Feb. 24, 1981.
Syllabus
Section 4(c)(8) of the Bank Holding Company Act authorizes the Federal Reserve Board (Board) to allow bank holding companies to acquire or retain ownership in companies whose activities are "so closely related to banking or managing or controlling banks as to be a proper incident thereto." In 1972, the Board amended its Regulation Y, and issued an interpretive ruling in connection therewith, enlarging the category of activities that it would regard as "closely related to banking" under § 4(c)(8) by permitting bank holding companies and their nonbanking subsidiaries to act as an investment adviser to a closed-end investment company. Section 16 of the Banking Act of 1933 (Glass-Steagall Act) prohibits a bank from "underwriting" any issue of a security or purchasing any security for its own account, and § 21 of that Act prohibits any organization "engaged in the business of issuing, underwriting, selling, or distributing" securities from engaging in banking. Respondent trade association of open-end investment companies, in proceedings before the Board and on direct review in the Court of Appeals, challenged, on the basis of the Glass-Steagall Act, the Board's authority to determine that investment adviser services are "closely related" to banking. While rejecting respondent's argument that Regulation Y, as amended, violated the Glass-Steagall Act, the Court of Appeals nevertheless held that § 4(c)(8) of the Bank Holding Company Act did not authorize the regulation because the activities that it permitted were not consistent with the congressional intent in both of these Acts to effect as complete a separation as possible between the securities and commercial banking businesses.
Held : The amendment to Regulation Y does not exceed the Board's statutory authority. Pp. 55-78.
(a) The Board's determination that services performed by an investment adviser for a closed-end investment company are "so closely related to banking . . . as to be a proper incident thereto" is supported not only by the normal practice of banks in performing fiduciary functions in various capacities but also by a normal reading of the language of § 4(c)(8). And the Board's determination of what activities are"closely related" to banking is entitled to the greatest deference. Pp. 55-58.
(b) Investment adviser services by a bank do not necessarily violate either § 16 or § 21 of the Glass-Steagall Act. The Board's interpretive ruling here prohibits a bank holding company or its subsidiaries from participating in the "sale or distribution" of, or from purchasing, securities of any investment company for which it acts as an investment adviser. Thus, if such restrictions are followed, investment advisory services—even if performed by a bank—would not violate § 16's requirements. And the management of a customer's investment portfolio is not the kind of selling activity contemplated in the prohibition in § 21, which was intended to require securities firms, such as underwriters or brokerage houses, to sever their banking connections. In any event, even if the Glass-Steagall Act did prohibit banks from acting as investment advisers, that prohibition would not necessarily preclude the Board from determining that such adviser services would be permissible under § 4(c)(8). Pp. 58-64.
(c) Since the interpretive ruling issued with the amendment to Regulation Y prohibits a bank holding company acting as an investment adviser from issuing, underwriting, selling, or redeeming securities, Regulation Y, as amended, avoids the potential hazards involved in any association between a bank affiliate and a closed-end investment company. Cf. Investment Company Institute v. Camp, 401 U.S. 617, 91 S.Ct. 1091, 28 L.Ed.2d 367. Pp. 64-68.
(d) Regulation Y, as amended, is consistent with the legislative history of both the Bank Holding Company Act and the Glass-Steagall Act. More specifically, such legislative history indicates that Congress did not intend the Bank Holding Company Act to limit the Board's discretion to approve securities-related activity as closely related to banking beyond the prohibitions already contained in the Glass-Steagall Act. Pp. 68-78.
196 U.S.App.D.C. 97, 606 F.2d 1004, reversed.
Stephen M. Shapiro, Washington, D. C., for petitioner.
G. Duane Vieth, Washington, D. C., for respondent.
Justice STEVENS delivered the opinion of the Court.
1
In 1956 Congress enacted the Bank Holding Company Act to control the future expansion of bank holding companies and to require divestment of their nonbanking interests.1 The Act, however, authorizes the Federal Reserve Board (Board) to allow holding companies to acquire or retain ownership in companies whose activities are "so closely related to banking or managing or controlling banks as to be a proper incident thereto."2 In 1972 the Board amended itsregulations to enlarge the category of activities that it would regard as "closely related to banking" and therefore permissible for bank holding companies and their nonbanking subsidiaries. Specifically, the Board determined that the services of an investment adviser to a closed-end investment company may be such a permissible activity. The question presented by this case is whether the Board had the statutory authority to make that determination.
2
The Board's determination, which was implemented by an amendment to its "Regulation Y," permits bank holding companies and their nonbanking subsidiaries to act as an investment adviser as that term is defined by the Investment Company Act of 1940.3 Although the statutory definitionis a detailed one,4 the typical relationship between an investment adviser and an investment company can be briefly described. Investment companies, by pooling the resources of small investors under the guidance of one manager, provide those investors with diversification and expert management.5 Investment advisers generally organize and manage investment companies pursuant to a contractual arrangement with the company.6 In return for a management fee, the adviserselects the company's investment portfolio and supervises most aspects of its business.7
3
The Board issued an interpretive ruling in connection with its amendment to Regulation Y. That ruling distinguished "open-end" investment companies (commonly referred to as "mutual funds") from "closed-end" investment companies. The ruling explained that "a mutual fund is an investment company, which, typically, is continuously engaged in the issuance of its shares and stands ready at any time to redeem the securities as to which it is the issuer; a closed-end investment company typically does not issue shares after its initial organization except at infrequent intervals and does not stand ready to redeem its shares."8 Because open-end investment companies will redeem their shares, they must constantly issue securities to prevent shrinkage of assets.9 In contrast, the capital structure of a closed-end company is similar to that of other corporations; if its shareholders wish to sell, they must do so in the marketplace. Without any obligation to redeem, closed-end companies need not continuously seek new capital.10
4
The board's interpretive ruling expressed the opinion that a bank holding company may not lawfully sponsor, organize, or control an open-end investment company,11 but the Board perceived no objection to sponsorship of a closed-end investment company provided that certain restrictions are observed.12 Among those restrictions is a requirement that the investment company may not primarily or frequently engage in the issuance, sale, and distribution of securities; a requirement that the investment adviser may not have any ownership interest in the investment company, or extend credit to it; and a requirement that the adviser may not underwrite or otherwise participate in the sale or distribution of the investment company's securities.13
5
Respondent Investment Company Institute, a trade association of open-end investment companies, commenced this litigation challenging as in excess of the Board's statutory authority the determination that investment adviser services are "closely related" to banking. Both in proceedings before the Board and in a direct review proceeding in the United States Court of Appeals for the District of Columbia Circuit, respondent based this challenge on the Banking Act of 1933, commonly known as the Glass-Steagall Act, in which Congress placed restrictions on the securities-related business of banks in order to protect their depositors.14
6
The Court of Appeals rejected respondent's argument that Regulation Y, as amended, violated the Glass-Steagall Act, relying on the fact that the prohibitions of §§ 16 and 21 ofthat Act15 apply only to banks rather than to bank holding companies or their nonbanking subsidiaries. 196 U.S.App.D.C. 97, 606 F.2d 1004. The court nevertheless concluded that § 4(c)(8) of the Bank Holding Company Act did not authorize the regulation. The court reasoned that the legislative history of the Act demonstrates that Congress did not intend the Bank Holding Company Act to restrict the scope of the Glass-Steagall Act. Because the court read the legislative history to indicate that Congress perceived the Glass-Steagall Act as an effort to effect as complete a separation as possible between the securities business and the commercial banking business, the court read a similar intent into the Bank Holding Company Act. The Court of Appeals believed that activities permitted by the challenged regulation were not consistent with the congressional intent to effect this separation.
7
We granted certiorari because of the importance of the Court of Appeals holding. 444 U.S. 1070, 100 S.Ct. 1011, 62 L.Ed.2d 750. We are persuadedthat the language of both the Bank Holding Company Act and the Glass-Steagall Act, as well as our interpretation of the Glass-Steagall Act in Investment Company Institute v. Camp, 401 U.S. 617, 91 S.Ct. 1091, 28 L.Ed.2d 367 (1971), supports the Board. Moreover, contrary to the view of the Court of Appeals, we are persuaded that the regulation is consistent with the legislative history of both statutes.
8
* The services of an investment adviser are not significantly different from the traditional fiduciary functions of banks. The principal activity of an investment adviser is to manage the investment portfolio of its advisee—to invest and reinvest the funds of the client. Banks have engaged in that sort of activity for decades.16 As executor, trustee, or managing agent of funds committed to its custody, a bank regularly buys and sells securities for its customers. Bank trust departments manage employee benefits trusts, institutional and corporate agency accounts, and personal trust and agency accounts.17 Moreover, for over 50 years banks have performed these tasks for trust funds consisting of commingled funds of customers.18 These common trust funds administered by banks would be regulated as investment companies by the Investment Company Act of 1940 were they not exempted from the Act's coverage.19 The Board's conclusion that the services performed by an investment adviser are "so closely related to banking . . . as to be a proper incident thereto" is therefore supported by banking practice and by a normal reading of the language of § 4(c)(8).20
9
The Board's determination of what activities are "closely related" to banking is entitled to the greatest deference.21 Such deference is particularly appropriate in this case because the regulation under attack is merely a general determination that investment advisory services which otherwise satisfy the restrictions imposed by the Board's interpretive ruling constitute an activity that is so closely related to banking as to be a proper incident thereto.22 Because the authority for any specific investment advisory relationship must be preceded by a further determination by the Board that the relationship can be expected to provide benefits for the public, the Board will have the opportunity to ensure that no bank holding company exceeds the bounds of a bank's traditional fiduciary function of managing customers' accounts.23 Thusunless the Glass-Steagall Act requires a contrary conclusion, the Board's interpretation of the plain language of the Bank Holding Company Act must be upheld.
II
10
Respondent's principal attack on the Board's general determination that investment adviser services are so closely related as to be a proper incident to banking proceeds from the premise that if such services were performed by a bank, the bank would violate §§ 16 and 21 of the Glass-Steagall Act.24 Respondent therefore argues that such services may never be regarded as a "proper incident" that could be performed by a bank affiliate.25 We reject both the premise and the conclusion of this argument. The performance ofinvestment advisory services by a bank would not necessarily violate § 16 or § 21 of the Glass-Steagall Act. Moreover, bank affiliates may be authorized to engage in certain activities that are prohibited to banks themselves.26
11
It is familiar history that the Glass-Steagall Act was enacted in 1933 to protect bank depositors from any repetition of the widespread bank closings that occurred during the Great Depression.27 Congress was persuaded that speculative activities, partially attributable to the connection between commercial banking and investment banking, had contributed to the rash of bank failures.28 The legislative history reveals that securities firms affiliated with banks hadengaged in perilous underwriting operations, stock speculation, and maintaining a market for the bank's own stock, often with the bank's resources.29 Congress sought to separate national banks, as completely as possible, from affiliates engaged in such activities.30
12
Sections 16 and 21 of the Glass-Steagall Act approach the legislative goal of separating the securities business from the banking business from different directions. The former places a limit on the power of a bank to engage in securities transactions; the latter prohibits a securities firm from engaging in the banking business. Section 16 expressly prohibits a bank from "underwriting" any issue of a security or purchasing any security for its own account. The Board's interpretive ruling here expressly prohibits a bank holding company or its subsidiaries from participating in the "sale or distribution" of securities of any investment company for which it acts as investment adviser. 12 CFR § 225.125(h) (1980). The ruling also prohibits bank holding companies and their subsidiaries from purchasing securities of the investment company for which it acts as investment adviser. § 225.125(g).31 Therefore, if the restrictions imposed by the Board's interpretive ruling are followed, investment advisory services—even if performed by a bank would not violate the requirements of § 16.
13
We are also satisfied that a bank's performance of such services would not necessarily violate § 21. In contrast to § 16, § 21 prohibits certain kinds of securities firms from engaging in banking. The § 21 prohibition applies to any organization "engaged in the business of issuing, underwriting, selling, or distributing" securities. Such a securities firm may not engage at the same time "to any extent whatever inthe business of receiving deposits." The management of a customer's investment portfolio—even when the manager has the power to sell securities owned by the customer—is not the kind of selling activity that Congress contemplated when it enacted § 21. If it were, the statute would prohibit banks from continuing to manage investment accounts in a fiduciary capacity or as an agent for an individual. We do not believe Congress intended that such a reading be given § 21.32 Rather, § 21 presented the converse situation of § 16 and was intended to require securities firms such as underwriters or brokerage houses to sever their banking connections. It surely was not intended to require banks to abandon an accepted banking practice that was subjected to regulation under § 16.33
14
Even if we were to assume that a bank would violate the Glass-Steagall Act by engaging in certain investment advisoryservices, it would not follow that a bank holding company could never perform such services. In both the Glass-Steagall Act itself and in the Bank Holding Company Act, Congress indicated that a bank affiliate may engage in activities that would be impermissible for the bank itself. Thus, § 21 of Glass-Steagall entirely prohibits the same firm from engaging in banking and in the underwriting business, whereas § 20 does not prohibit bank affiliation with a securities firm unless that firm is "engaged principally" in activities such as underwriting.34 Further, § 4(c)(7) of the Bank Holding Company Act, which authorizes holding companies to purchase and own shares of investment companies, permits investment activity by a holding company that is impermissible for a bank itself.35 Finally, inasmuch as the Bank Holding Company Act requires divestment only of nonbanking interests, the § 4(c)(8) exception would be unnecessary if it applied only to services that a bank could legally perform. Thus even if the Glass-Steagall Act did prohibit banks from acting as investment advisers, that prohibition would not necessarily preclude the Board from determining that such adviser services would be permissible under § 4(c)(8).
15
In all events, because all that is presently at issue is the Board's preliminary authorization of such services, rather than approval of any specific advisory relationship, speculation about possible conflicts with the Glass-Steagall Act is plainly not a sufficient basis for totally rejecting the Board's carefully considered determination.
III
16
Our conclusions with respect to the Glass-Steagall Act are in no way altered by consideration of our decision in Invest mentment Company Institute v. Camp, 401 U.S. 617, 91 S.Ct. 1091, 28 L.Ed.2d 367 (1971). The Court there held that a regulation issued by the Comptroller of the Currency purporting to authorize banks to operate mutual funds violated §§ 16 and 21 of the Glass-Steagall Act. The mutual fund under review in that case was the functional equivalent of an open-end investment company.36 Because the authorization at issue in this case is expressly limited to closed-end investment companies, the holding in Camp is clearly not dispositive. Respondent argues, however, that both the Court's reasoning in Camp and its description of the "more subtle hazards" created by the performance of investment advisory services by a bank are inconsistent with the Board's action. We disagree.
17
In Camp the Court relied squarely on the literal language of §§ 16 and 21 of the Glass-Steagall Act. After noting that § 16 prohibited the underwriting by a national bank of any issue of securities and the purchase for its own account of shares of stock of any corporation, and that § 21 prohibited corporations from both receiving deposits and engaging in issuing, underwriting, selling, or distributing securities, the Court recognized that the statutory language plainly applied to a bank's sale of redeemable and transferable "units of participation" in a common investment fund operated by the bank. 401 U.S., at 634, 91 S.Ct., at 1100. Because the Court held that the bank was the underwriter of the fund's units of participation within the meaning of the Investment Company Act of 1940, id., at 622-623, 91 S.Ct., at 1094-95, the Comptroller attempted to avoid the reach of § 16 by arguing that the units of participation were not "securities" within the meaning of the Glass-Steagall Act. The Court's contrary determination led inexorably to the conclusion that § 16 had been violated.
18
This case presents an entirely different issue. No one could dispute the fact that the shares in a closed-end investment company are securities. But as we have indicated, such securities are not issued, sold, or underwritten by the investment adviser. In contrast to the bank's activities in issuing, underwriting, selling, and redeeming the units of participation in the Camp case, in this case the Board's interpretive ruling expressly prohibits such activity.37
19
The Court in Camp recognized that in enacting the Glass-Steagall Act, Congress contemplated other hazards in addition to the danger of banks using bank assets in imprudent securities investments.38 But none of these "more subtle hazards" would be present were a bank to act as an investment adviser to a closed-end investment company subject to the restrictions imposed by the Board. Those restrictions would prevent the bank from extending credit to the investment company and would also preclude the promotional pressures that are inherent in the investment banking business.39 In addition to the fact that the bank could not underwrite or sell the stock of the closed-end investment company, that company, unlike a mutual fund, would not be constantly involved in the search for new capital to cover the redemption of other stock. The advisory fee earned by the bank would provide little incentive to the bank or its holding company to engage in promotional activities.40
20
Our obligation to accord deference to the Board's interpretive ruling provides added support to our conclusion that the Board's regulation avoids the potential hazards involved in any association between a bank affiliate and a closed-end investment company. In Camp the Court emphasized that the Comptroller of the Currency had provided no guidance as to the effect of the Glass-Steagall Act on the proposed activity.41 Whereas in Camp the Court was deprived of administrative "expertise that can enlighten and rationalize the search for the meaning and intent of Congress," 401 U.S., at 628, 91 S.Ct., at 1097, in this case the regulatory action by the Board recognized and addressed the concerns that led to the enactment of the Glass-Steagall Act. Contrary to respondent's argument, the Camp decision therefore affirmatively supports the Board's action in this case.
IV
21
The Court of Appeals rested its conclusion that the Board had exceeded its statutory authority on a review of the legislative history of § 4(c)(8). As originally enacted in 1956 the section referred to activities "closely related to the business of banking." In 1970, when the Act was amended toextend its coverage to holding companies controlling just one bank, the words "business of" were deleted from § 4(c)(8), thereby making the section refer merely to activities "closely related to banking." The conclusion of the Court of Appeals did not, however, place special reliance on this modest change. Rather, the Court of Appeals was persuaded that in 1956 Congress believed that the Glass-Steagall Act had been enacted in 1933 to "divorc[e] investment from commercial banking" and that the 1970 amendment to § 4(c)(8) did not alter the intent expressed by the 1956 Congress. 196 U.S.App.D.C., at 110, 606 F.2d, at 1017.
22
Congress did intend the Bank Holding Company Act to maintain and even to strengthen Glass-Steagall's restrictions on the relationship between commercial and investment banking. Part of the motivation underlying the requirement that bank holding companies divest themselves of nonbanking interests was the desire to provide a measure of regulation missing from the Glass-Steagall Act.42 In 1956, the only provision of the Glass-Steagall Act which regulated bank holding companies was § 19(e) of the Act, which provided that a bank holding company could not obtain a permit from the Federal Reserve Board entitling it to vote the shares of a bank subsidiary unless it agreed to divest itself within five years of any interest in a company formed for the purpose of, or "engaged principally" in, the issuance or underwriting of securities.43 This provision was largely ineffectual, becausebank holding companies were not subject to the divestiture requirement as long as they did not vote their bank subsidiary shares.44 Thus bank holding companies were able to avoid Glass-Steagall's general purpose of separating as completely as possible commercial from investment banking in a way not available to other bank affiliates or banks themselves. The inadequacy of § 19(e) therefore lay not in the type of affiliation with securities-related firms permitted to bank holding companies but in the ability of holding companies to avoid any restrictions on affiliation by simply not voting their shares. To the extent that Congress strengthened the Glass-Steagall Act, it did so by closing this loophole rather than by imposing further restrictions on the permissible securities-related business of bank affiliates.45 The clear evidence of acongressional purpose in 1956 to remedy the inadequacy of § 19(e) of the 1933 Act does not support the conclusion that Congress also intended § 4(c)(8) to be read as totally prohibiting bank holding companies from being "engaged" in any securities-related activities; on the contrary it is more accurately read as merely completing the job of severing the connection between bank holding companies and affiliates "principally engaged" in the securities business.46
23
To invalidate the Board's regulation, the Court of Appeals had to assume that the activity of managing investments for a customer had been regarded by Congress as an aspect of investment banking rather than an aspect of commercial banking. But the Congress that enacted the Glass-Steagall Act did not take such an expansive view of investment banking.47 Investment advisers and closed-end investment companies are not "principally engaged" in the issuance or the underwriting of securities within the meaning of the Glass-Steagall Act, even if they are so engaged within the meaning of §§ 16 and 21.48 Nothing in the legislative history of the Bank Holding Company Act persuades us that Congress in 1956 intended to effect a more complete separation between commercial and investment banking than the separation that the Glass-Steagall Act had achieved with respect to banks in §§ 16 and 21 and had sought unsuccessfully to achieve with respect to bank holding companies in § 19(e).49
24
A review of the 1970 Amendments to the Bank Holding Company Act only strengthens this conclusion.50 On its face the 1970 amendment to § 4(c)(8) would appear to havebroadened the Board's authority to determine when an activity is sufficiently related to banking to be permissible for a nonbanking subsidiary of a bank holding company.51 The initial versions of both the House and the Senate bills changed the "closely related" test of § 4(c)(8) to a "functionally related" test.52 The Conference Committee's final version of the bill, however, retained the "closely related" language of the 1956 Act.53 Whether this indicated that § 4(c)(8) was to have the same scope as it did under the 1956 Act is difficult to discern.54 For purposes of this case, however, we neednot reconcile the conflicting views as to whether the 1970 amendment expanded the scope of § 4(c)(8), because no one disputes that the Board's discretion is at least as broad under the 1970 Amendments as it was under the 1956 Act. Therefore, our conclusion that nothing in the 1956 Act or its legislative history indicates that Congress intended to prohibit bank holding companies from acting as investment advisers to closed-end investment companies should also apply to the 1970 Amendments unless Congress specifically indicated that such services should not be authorized by the Board. Not only is there no such specific evidence, there is affirmative evidence to the contrary.
25
The legislative history of the 1970 Amendments indicates that Congress did not intend the 1970 Amendments to have any effect on the prohibitions of the Glass-Steagall Act. The Senate chairman of the Conference Committee assured his fellow Senators that the conference bill was intended neither to enlarge nor to restrict the prohibitions containedin the Glass-Steagall Act.55 Moreover, the Senate Report refers to investment services but declines to state that the Board could not approve under § 4(c)(8) "bank sponsored mutual funds."56 The House's version of the bill rigidlyconfined the Board's discretion in certain areas by including a "laundry list" of activities which the Board could not approve. Included in this list was a prohibition of bank holding company acquisition of shares of any company engaged in "the issue, flotation, underwriting, public sale, or distribution," of securities, "whether or not any such interests are redeemable."57 The Conference Committee deleted this list. This deletion indicates a rejection of the House's restrictive approach in favor of the Senate's more flexible attitude toward the Board's exercise of its discretion.58 Thusas we read the legislative history of the 1970 Amendments, Congress did not intend the Bank Holding Company Act to limit the Board's discretion to approve securities-related activity as closely related to banking beyond the prohibitions already contained in the Glass-Steagall Act.59 This case istherefore one that is best resolved by deferring to the Board's expertise in determining what activities are encompassed within the plain language of the statute.
26
Because we have concluded that the Board's decision to permit bank holding companies to act as investment advisers for closed-end investment companies is consistent with the language of the Bank Holding Company Act, and because such services are not prohibited by the Glass-Steagall Act, we hold that the amendment to Regulation Y does not exceed the Board's statutory authority. The judgment of the Court of Appeals is
27
Reversed.
28
Justice STEWART and Justice REHNQUIST took no part in the consideration or decision of this case.
29
Justice POWELL took no part in the decision of this case.
1
The stated purpose of the Bank Holding Company Act of 1956 was "[t]o define bank holding companies, control their future expansion, and require divestment of their nonbanking interests." 70 Stat. 133.
2
Section 4 of the statute, as originally enacted, provided in pertinent part:
"(a) Except as otherwise provided in this Act, no bank holding company shall—
"(1) after the date of enactment of this Act acquire direct or indirect ownership or control of any voting shares of any company which is not a bank . . .
* * * * *
"(c) The prohibitions in this section shall not apply—
* * * * *
"(6) to shares of any company all the activities of which are of a financial, fiduciary, or insurance nature and which the Board after due notice and hearing, and on the basis of the record made at such hearing, by order has determined to be so closely related to the business of banking or of managing or controlling banks as to be a proper incident thereto and as to make it unnecessary for the prohibitions of this section to apply in order to carry out the purposes of this Act. . . ." 70 Stat. 135-137.
The relevant exemption is now found in § 4(c)(8) which allows holding company ownership of:
"(8) shares of any company the activities of which the Board after due notice and opportunity for hearing has determined (by order or regulation) to be so closely related to banking or managing or controlling banks as to be a proper incident thereto. In determining whether a particular activity is a proper incident to banking or managing or controlling banks the Board shall consider whether its performance by an affiliate of a holding company can reasonably be expected to produce benefits to the public, such as greater convenience, increased competition, or gains in efficiency, that outweigh possible adverse effects, such as undue concentration of resources, decreased or unfair competition, conflicts of interests, or unsound banking practices. In orders and regulations under this subsection, the Board may differentiate between activities commenced de novo and activities commenced by the acquisition, in whole or in part, of a going concern." 12 U.S.C. § 1843(c)(8).
3
See 36 Fed.Reg. 16695, 17514 (1971); 37 Fed.Reg. 1463 (1972); 12 CFR § 225.4(a)(5)(ii) (1980). The 1972 amendment to Regulation Y made the following addition to the list of permissible activities:
"(ii) serving as investment adviser, as defined in section 2(a)(20) of the Investment Company Act of 1940, to an investment company registered under that Act."
4
The definition of an investment adviser in § (2)(a)(20) of the Investment Company Act of 1940 reads as follows:
"(20) 'Investment adviser' of an investment company means (A) any person (other than a bona fide officer, director, trustee, member of an advisory board, or employee of such company, as such) who pursuant to contract with such company regularly furnishes advice to such company with respect to the desirability of investing in, purchasing or selling securities or other property, or is empowered to determine what securities or other property shall be purchased or sold by such company, and (B) any other person who pursuant to contract with a person described in clause (A) of this paragraph regularly performs substantially all of the duties undertaken by such person described in said clause (A); but does not include (i) a person whose advice is furnished solely through uniform publications distributed to subscribers thereto, (ii) a person who furnishes only statistical and other factual information, advice regarding economic factors and trends, or advice as to occasional transactions in specific securities, but without generally furnishing advice or making recommendations regarding the purchase or sale of securities, (iii) a company furnishing such services at cost to one or more investment companies, insurance companies, or other financial institutions, (iv) any person, the character and amount of whose compensation for such services must be approved by a court, or (v) such other persons as the Commission may by rules and regulations or order determine not to be within the intent of this definition." 15 U.S.C. § 80a-2(20).
5
1 T. Frankel, The Regulation of Money Managers, I-A, § 2, p. 6 (1978).
6
Id., at I-B, § 4, pp. 9-10; See Wharton School Study of Mutual Funds, H.R.Rep.No.2274, 87th Cong., 2d Sess., 467-477 (1962) (hereinafter Wharton School Study); Burks v. Lasker, 441 U.S. 471, 480-481, 99 S.Ct. 1831, 1838-1839, 60 L.Ed.2d 404 (1979).
7
Securities and Exchange Commission Report on the Public Policy Implications of Investment Company Growth, H.R.Rep.No.2337, 89th Cong., 2d Sess., 8 (1966).
8
12 CFR § 225.125(c) (1980).
9
Hearings on S. 3580 before a Senate Subcommittee on Banking and Currency, 76th Cong., 3d Sess., 43 (1940) (hereinafter 1940 Senate Hearings) (statement of Robert E. Healy). As the SEC Report on the Public Policy Implications of Investment Company Growth recognized with respect to open-end funds:
"Since there will always be some shareholders who want to sell, an open-end company must comply with continuous demands for cash from selling stockholders. To offset the resulting cash outflow and because of the strong incentives for growth created by the structure of the industry, the managers of virtually all open-end companies vigorously promote sales of new shares at all times." H.R.Rep.No.2337, supra, at 42-43.
10
Id., at 42.
11
The ruling would apparently permit a bank holding company to provide investment advice to an open-end investment company if the holding company does not have the authority to make investment decisions or otherwise to control investments of such an advisee. Respondent has not specifically challenged the legality of a relationship that is purely advisory in character.
12
"(f) In the Board's opinion, the Glass-Steagall Act provisions, as interpreted by the U.S. Supreme Court, forbid a bank holding company to sponsor, organize or control a mutual fund. However, the Board does not believe that such restrictions apply to closed-end investment companies as long as such companies are not primarily or frequently engaged in the issuance, sale and distribution of securities." 12 CFR § 225.125(f) (1980).
13
Pertinent parts of the interpretive ruling read as follows:
"In no case, however, should a bank holding company act as investment adviser to an investment company which has a name that is similar to, or a variation of, the name of the holding company or any of its subsidiary banks.
"(g) In view of the potential conflicts of interests that may exist, a bank holding company and its bank and nonbank subsidiaries should not (1) purchase for their own account securities of any investment company for which the bank holding company acts as investment adviser; (2) purchase in their sole discretion, any such securities in a fiduciary capacity (including as managing agent); (3) extend credit to any such investment company; or (4) accept the securities of any such investment company as collateral for a loan which is for the purpose of purchasing securities of the investment company.
"(h) A bank holding company should not engage, directly or indirectly in the sale or distribution of securities of any investment company for which it acts as investment adviser. Prospectuses or sales literature should not be distributed by the holding company, nor should any literature be made available to the public at any offices of the holding company. In addition, officers and employees of bank subsidiaries should be instructed not to express any opinion with respect to advisability of purchase of securities of any investment company for which the bank holding company acts as investment adviser. Customers of banks in a bank holding company system who request information on an unsolicited basis regarding any investment company for which the bank holding company acts as investment adviser may be furnished the name and address of the fund and its underwriter or distributing company, but the names of bank customers should not be furnished by the bank holding company to the fund or its distributor. Further, a bank holding company should not act as investment adviser to a mutual fund which has offices in any building which is likely to be identified in the public's mind with the bank holding company." 12 CFR §§ 225.125(f), (g), (h) (1980).
14
The stated purpose of the 1933 Act was "[t]o provide for the safer and more effective use of the assets of banks, to regulate interbank control, to prevent the undue diversion of funds into speculative operations, and for other purposes." 48 Stat. 162.
15
Section 16, as originally enacted, provided in pertinent part:
"The business of dealing in investment securities by [a national bank] shall be limited to purchasing and selling such securities without recourse, solely upon the order, and for the account of, customers, and in no case for its own account, and [a national bank] shall not underwrite any issue of securities: Provided, That [a national bank] may purchase for its own account investment securities under such limitations and restrictions as the Comptroller of the Currency may by regulation prescribe. . . ." 48 Stat. 184.
Section 16, as amended, is now codified at 12 U.S.C. § 24 (Seventh).
Section 21, provides, in pertinent part, that it is unlawful
"[f]or any person, firm, corporation, association, business trust, or other similar organization, engaged in the business of issuing, underwriting, selling, or distributing, at wholesale or retail, or through syndicate participation, stocks, bonds, debentures, notes, or other securities, to engage at the same time to any extent whatever in the business of receiving deposits subject to check or to repayment upon presentation of a passbook, certificate of deposit, or other evidence of debt, or upon request of the depositor . . . ." 48 Stat. 189, 12 U.S.C. § 378.
16
A memorandum submitted to the Board on behalf of the American Bankers Association states, in part: "For well over a century, banks and trust companies in every state have managed and administered customers' investment funds in the form of trusts, estates and agency accounts." App. 20. The accuracy of that statement is not challenged.
17
See Securities Exchange Commission Institutional Investor Study Report Summary, H.R.Doc.No.92-64, pt. 8, pp. 34-35 (1971).
18
As we recognized in Investment Company Institute v. Camp, 401 U.S. 617, 91 S.Ct. 1091, 28 L.Ed.2d 367 (1971):
"National banks were granted trust powers in 1913. Federal Reserve Act, § 11, 38 Stat. 261. The first common trust fund was organized in 1927, and such funds were expressly authorized by the Federal Reserve Board by Regulation F promulgated in 1937. Report on Commingled or Common Trust Funds Administered by Banks and Trust Companies, H.R.Doc.No.476, 76th Cong., 2d Sess., 4-5 (1939). For at least a generation, therefore, there has been no reason to doubt that a national bank can, consistently with the banking laws, commingle trust funds on the one hand, and act as a managing agent on the other. No provision of the banking law suggests that it is improper for a national bank to pool trust assets, or to act as a managing agent for individual customers, or to purchase stock for the account of its customers." Id., at 624-625, 91 S.Ct., at 1095-96.
See also Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 307-308, 70 S.Ct. 652, 653-54, 94 L.Ed. 865 (1950).
19
See 15 U.S.C. § 80a-3(c)(3). As David Schenker, an attorney for the SEC, explained at the 1940 Senate Hearings: "We have exempted any common trust fund . . . . Those common trust funds are a sort of investment trust in which trustees can participate, and they are managed by banks and trust companies." 1940 Senate Hearings, at 181.
20
The normal reading of the language of § 4(c)(8) takes on additional significance in light of the fact, recognized by the Court of Appeals, that the legislative history of the section provides no real guidance as to the scope of the exception contained therein. 196 U.S.App.D.C. 97, 110, 606 F.2d 1004, 1017.
21
Commenting on an interpretation of the Glass-Steagall Act by the Board in Board of Governors v. Agnew, 329 U.S. 441, 67 S.Ct. 411, 91 L.Ed. 408 (1947), Justice Rutledge observed:
"Not only because Congress has committed the system's operation to their hands, but also because the system itself is a highly specialized and technical one, requiring expert and coordinated management in all its phases, I think their judgment should be conclusive upon any matter which, like this one, is open to reasonable difference of opinion. Their specialized experience gives them an advantage judges cannot possibly have, not only in dealing with the problems raised for their discretion by the system's working, but also in ascertaining the meaning Congress had in mind in prescribing the standards by which they should administer it. Accordingly their judgment in such matters should be overturned only where there is no reasonable basis to sustain it or where they exercise it in a manner which clearly exceeds their statutory authority." Id., at 450, 67 S.Ct., at 415.
See also Board of Governors v. First Lincolnwood Corp., 439 U.S. 234, 248, 99 S.Ct. 505, 513, 58 L.Ed.2d 484 (1978).
22
A determination by the Board that a particular service is closely related to banking does not end the Board's role. A bank holding company must submit a specific application with respect to each service it wishes to perform. The Board then determines on the basis of the circumstances of each applicant whether the proposed activity would serve the public interest. See 12 CFR § 225.4(a) (1980); H.R.Conf.Rep.No.91-1747, p. 22 (1970), U.S.Code Cong. & Admin.News 1970, 5519; NCNB Corp. v. Board of Governors, 599 F.2d 609, 610-611 (CA4 1979). If a bank holding company wishes to acquire or retain shares of a company engaged in an activity already approved as "closely related," the Board publishes notice of the application in the Federal Register for public comment on the "public benefits" issue. 12 CFR § 225.4(b)(2) (1980).
23
The Senate Report on the Bank Holding Company Act indicated the importance of the role of the Board in determining what activities would be permitted under § 4(c)(8):
"[T]here are many other activities of a financial, fiduciary, or insurance nature which cannot be determined to be closely related to banking without a careful examination of the particular type of business carried on under such activity. For this reason your committee deems it advisable to provide a forum before an appropriate Federal authority in which decisions concerning the relationship of such activities to banking can be determined in each case on its merits." S.Rep.No.1095, 84th Cong., 1st Sess., pt. 1, p. 13 (1955) (hereinafter 1955 Senate Report).
The legislative history of the Bank Holding Company Act Amendments of 1970 indicated that the Amendments were not intended to cut back on the discretion afforded the Board. As Senator Bennett, a member of the Conference Committee, indicated, the 1970 Amendments maintained "maximum flexibility for the Federal Reserve Board to determine the activities in which a bank holding company and its subsidiaries may engage . . . ." 116 Cong.Rec. 42432 (1970). See n. 58, infra.
24
See n. 15, supra. We agree with the Court of Appeals that §§ 16 and 21 apply only to banks and not to bank holding companies. Section 21 prohibits firms engaged in the securities business from also receiving deposits. Bank holding companies do not receive deposits, and the language of § 21 cannot be read to include within its prohibition separate organizations related by ownership with a bank, which does receive deposits. As the following colloquy, cited by the Court of Appeals, between Senator Glass, cosponsor of the bill, and Senator Robinson indicates, the drafters of the bill agreed with this construction:
"Mr. GLASS . . . . Here [§ 21] we prohibit the large private banks, whose chief business is investment business, from receiving deposits. We separate them from the deposit banking business.
* * * * *
"Mr. ROBINSON of Arkansas. That means if they wish to receive deposits they must have separate institutions for that purpose?
"Mr. GLASS. Yes." 77 Cong.Rec. 3730 (1933).
Section 16, which prohibits a national bank from "underwriting" any issue of a security, by its terms applies only to banks. Although respondent contended here and in the Court of Appeals that the bank and its holding company should be treated as a single entity for purposes of applying §§ 16 and 21, the structure of the Glass-Steagall Act indicates to the contrary. Sections 16 and 21 flatly prohibit banks from engaging in the underwriting business. Organizations affiliated with banks, however, are dealt with by other sections of the Act. Section 19(e), 48 Stat. 188, repealed in pertinent part, 80 Stat. 242, prohibited bank holding companies from voting the shares of a bank subsidiary unless the holding company divested itself of any interest in a subsidiary formed for the purpose of or "engaged principally" in the issuance or underwriting of securities. More importantly, § 20 of the Act, 48 Stat. 188, prohibits national banks or state bank members of the Federal Reserve System from owning securities affiliates, defined in § 2(b), 48 Stat. 162, that are "engaged principally" in the issuance or underwriting of securities. Thus the structure of the Act reveals a congressional intent to treat banks separately from their affiliates. The reading of the Act urged by respondent would render § 20 meaningless.
25
Respondent also argues that the regulation authorizes banks as well as bank holding companies and nonbank subsidiaries to act as investment advisers. The operative definition of "bank holding company" in the Board's interpretive ruling includes "their bank and nonbank subsidiaries." 12 CFR § 225.125(c) (1980). Respondent contends that banks have relied on the interpretive ruling as authorization for them to sponsor investment companies. Brief for Respondent 13-18. The simple answer to this argument is that not only does the interpretive ruling confer no authorization to undertake any activities, but also the Board does not have the power to confer such authorization on banks. As the Board's opinion in this case stated:
"[T]he Board's regulation was adopted pursuant to section 4(c)(8) of the Bank Holding Company Act and authorizes investment advisory activity to be conducted by a nonbanking subsidiary of the holding company. The authority of national banks or state member banks to furnish investment advisory services does not derive from the Board's regulation; such authority would exist independently of the Board's regulation and its scope is to be determined by a particular bank's primary supervisory agency." App. to Pet. for Cert. 61a.
Thus the regulation applies only to bank holding companies. Although the interpretive ruling applies to banks, that ruling contains only restrictions on the activity permitted by the regulation. The Board's opinion explained that the restrictions contained in the interpretive ruling were intended to apply to banks when the investment advisory function was performed by a holding company or its nonbanking subsidiaries. Ibid. This imposition of restrictions on banks prevented bank holding companies and their nonbanking subsidiaries from evading the restrictions by allowing subsidiary banks to perform the restricted activities. Whether banks are mistakenly relying on the Board's interpretive ruling to derive permission to act as investment advisers is not relevant to the determination of the Board's power to enact the challenged regulation. We do note that at the time of the Court of Appeals decision, the Board represented that no bank had sought the Board's approval for an investment adviser service that is a prerequisite to acting pursuant to Board authority. See 196 U.S.App.D.C., at 107, n. 26, 606 F.2d, at 1014, n. 26. Thus although in the discussion to follow we refer to bank affiliation with investment companies, this reference is only for purposes of addressing respondent's argument that banks would violate the Glass-Steagall Act by serving as investment advisers to closed-end investment companies.
26
Respondent also contends that the Board's regulation violates § 20 of the Glass-Steagall Act. The Court of Appeals did not consider the § 20 argument, but the respondent has submitted this contention to answer the Board's argument that § 20 is the only relevant section of the Glass-Steagall Act for purposes of determining what services bank holding companies may provide. Section 20 provides in pertinent part:
"[N]o [national bank] shall be affiliated . . . with any corporation, association, business trust or other similar organization engaged principally in the issue, flotation, underwriting, public sale, or distribution at wholesale or retail or through syndicate participation of stocks, bonds, debentures, notes or other securities." 48 Stat. 188, 12 U.S.C. § 377.
Although "affiliate" as originally defined in § 2(b) of the Glass-Steagall Act did not include holding companies, see 48 Stat. 162, Congress in 1966 amended the statute to bring holding companies within the definition of "affiliate" and thereby within the reach of § 20. 80 Stat. 242, 12 U.S.C. § 221a(b)(4). In Board of Governors v. Agnew, 329 U.S. 441, 67 S.Ct. 411, 91 L.Ed. 408 (1947), the Court recognized the difference in the extent of prohibition of securities-related activities reflected in the use of the word "engaged" in § 21 as opposed to the use of the words "engaged principally" in § 20. Thus a less stringent standard should apply to determine whether a holding company has violated § 20 than is applied to a determination of whether a bank has violated §§ 16 and 21. Nevertheless, the Board's regulation goes beyond the less stringent standard by prohibiting any involvement by the bank holding company or its subsidiaries in the underwriting or selling of the securities of the investment company. Moreover, the distinction here between closed-end and open-end investment companies is crucial. If, as respondent contends, the closed-end company's initial issuance of stock were sufficient to render the company "principally engaged" in the issuance of securities, then all corporations, including banks, would at some point be engaged principally in the issuance of securities. We cannot accept this premise. Moreover, given our rejection of this premise, it follows that the investment adviser to such a company is clearly not engaged principally in the issuance of securities. To a certain extent, our conclusions infra with respect to §§ 16 and 21 subsume the argument that the regulation is inconsistent with § 20.
27
Representative Steagall, cosponsor of the bill, stated in debate:
"[T]he purpose of this legislation is to protect the people of the United States in the right to have banks in which their deposits will be safe. They have a right to expect of Congress the establishment and maintenance of a system of banks in the United States where citizens may place their hard earnings with reasonable expectation of being able to get them out again upon demand." 77 Cong.Rec. 3837 (1933).
This purpose is also reflected by the fact that a major portion of the Act, around which most of the debate by both Houses centered, was the creation of the Federal Deposit Insurance Corporation. See 48 Stat. 168-180.
28
S.Rep.No.77, 73d Cong., 1st Sess., 6, 10 (1933) (hereinafter 1933 Senate Report). Representative Koppleman stated in debate: "One of the chief causes of this depression has been the diversion of depositors' moneys into the speculative markets of Wall Street." 77 Cong.Rec. 3907 (1933). See also id., at 3835 (remarks of Rep. Steagall).
29
1933 Senate Report, at 10. See also 77 Cong.Rec. 3835 (1933) (remarks of Rep. Steagall); id., at 4179, 4180 (remarks of Sen. Bulkley).
30
1933 Senate Report, at 10. See also 77 Cong.Rec. 3835 (1933) (remarks of Rep. Steagall); id., at 4179, 4180 (remarks of Sen. Bulkley).
31
See n. 13, supra.
32
The statutory prohibition in § 21 applies to firms "engaged in the business of issuing, underwriting, selling, or distributing at wholesale or retail, or through syndicate participation, stocks, bonds, debentures, notes, or other securities . . ."; that is hardly the sort of language that would be used to describe an investment adviser. Compare the statutory definition of an investment adviser quoted in n. 4, supra.
33
Section 21 originally prohibited firms "engaged principally" in the business of issuing securities from receiving deposits. Senator Bulkley introduced an amendment striking the word "principally" because "[i]t has become apparent that at least some of the great investment houses are engaged in so many forms of business that there is some doubt as to whether the investment business is the principal one." 77 Cong.Rec. 4180 (1933). This amendment indicates the type of institution which Congress focused upon in § 21. Senator Glass, in discussing the effect that § 21 would have upon the credit supply, indicated that "if we confine to their proper business activities these large private concerns whose principal business is that of dealing in investment securities, . . . and many of which unloaded millions of dollars of worthless investment securities upon the banks of this country, and deny them the right to conduct the deposit bank business at the same time, there will be no difficulty on the face of the globe in financing any business enterprise that needs to be financed at a profit in this country." 77 Cong.Rec. 4179 (1933).
34
See nn. 15, 26, supra.
35
See 12 U.S.C. § 1843(c)(7). Section 4(c)(7) even permits a bank holding company to own a controlling interest in an investment company, and § 4(a)(2) permits a holding company to provide management services to companies in which it has a controlling interest. See 12 U.S.C. § 1843(a)(2).
36
It was described as follows:
"Under the plan the bank customer tenders between $10,000 and $500,000 to the bank, together with an authorization making the bank the customer's managing agent. The customer's investment is added to the fund, and a written evidence of participation is issued which expresses in 'units of participation' the customer's proportionate interest in fund assets. Units of participation are freely redeemable, and transferable to anyone who has executed a managing agency agreement with the bank. The fund is registered as an investment company under the Investment Company Act of 1940. The bank is the underwriter of the fund's units of participation within the meaning of that Act." 401 U.S., at 622-623, 91 S.Ct., at 1094-95.
37
Moreover, the decision by an investment adviser to purchase or sell securities on behalf of a closed-end investment company is critically different from the comparable decision by the operator of the mutual fund reviewed in Camp. When an adviser makes a change in the securities portfolio of a closed-end company, the adviser is acting for the account of its customer—not for its own account. In Camp, however, the securities in the portfolio of the mutual fund were at least arguably the property of the bank itself and therefore the bank was arguably acting for its own account within the meaning of § 16.
38
The Court recognized that because the bank and its affiliate would be closely associated in the public mind, public confidence in the bank might be impaired if the affiliate performed poorly. Further, depositors of the bank might lose money on investments purchased in reliance on the relationship between the bank and its affiliate. The pressure on banks to prevent this loss of public confidence could induce the bank to make unsound loans to the affiliate or to companies in whose stock the affiliate has invested. Moreover, the association between the commercial and investment bank could result in the commercial bank's reputation for prudence and restraint being attributed, without justification, to an enterprise selling stocks and securities. Furthermore, promotional considerations might induce banks to make loans to customers to be used for the purchase of stocks and might impair the ability of the commercial banker to render disinterested advice. 401 U.S., at 630-634, 91 S.Ct., at 1098-1100.
39
The bank could not stray from its obligation to render impartial advice to its customers by promoting the fund, because the interpretive ruling prohibits a bank from giving the names of its depositors to the investment company. 12 CFR § 225.125(h) (1980); see n. 13, supra. Further, the bank could not act as investment adviser to any investment company having a similar name; prospectuses and sales literature of the investment company could not be distributed by the bank; officers and employees of the bank could not express an opinion with respect to the advisability of the purchase of securities of the investment company, and the investment company could not locate its offices in the same building as the bank. Ibid. These restrictions would prevent to a large extent the association in the public mind between the bank and the investment company, as well as the resulting connection between public confidence in the bank and the fortunes of the investment company. Although this association cannot be completely obliterated, we do note that the performance of the large trust funds operated by banks is routinely published. See American Banker, Sept. 2, 1980, pp. 1, 10, 16. The Securities Exchange Act of 1934 requires disclosure of information about the securities portfolios of common trust funds that have a portfolio with an aggregate value of at least $100 million. 15 U.S.C. § 78m(f); 17 CFR § 240.13f-1 (1980).
40
The advisory fee is the adviser's consideration for managing the investment company. In 1962 the Wharton School Study of Mutual Funds indicated that the advisory fee charged by advisers to open-end funds was typically one-half of one percent of the value of the fund's assets. Wharton School Study, at 484. The amount of the advisory fee earned by the adviser to a closed-end company increases only if the value of the investment portfolio increases. In contrast, the fee of the adviser to a mutual fund increases both with the increase in value of the investment portfolio and through the sale of the company's shares. SEC Report of Special Study of Securities Markets, H.R.Doc.No.95, 88th Cong., 1st Sess., pt. 4, pp. 204-205, 96-99 (1963). The fee paid by the closed-end company would provide scant incentive to a bank to risk its assets by making unwise loans to companies whose stock is held by the investment company.
41
The Court stated:
"The difficulty here is that the Comptroller adopted no expressly articulated position at the administrative level as to the meaning and impact of the provisions of §§ 16 and 21 as they affect bank investment funds." 401 U.S., at 627, 91 S.Ct., at 1097.
42
1955 Senate Report, at 2. See also H.R.Rep.No.609, 84th Cong., 1st Sess., 16 (1955) (hereinafter 1955 House Report).
43
Section 19(e) provided in pertinent part:
"Every such holding company affiliate shall, in its application for such voting permit, (1) show that it does not own, control, or have any interest in, and is not participating in the management or direction of, any corporation, business trust, association, or other similar organization formed for the purpose of, or engaged principally in, the issue, flotation, underwriting, public sale, or distribution, at wholesale or retail or through syndicate participation, of stocks, bonds, debentures, notes, or other securities of any sort (hereinafter referred to as 'securities company'); (2) agree that during the period that the permit remains in force it will not acquire any ownership, control, or interest in any such securities company or participation in the management or direction thereof; (3) agree that if, at the time of filing the application for such permit, it owns, controls, or has an interest in, or is participating in the management or direction of, any such securities company, it will, within five years after the filing of such application, divest itself of its ownership, control, and interest in such securities company and will cease participating in the management or direction thereof, and will not thereafter, during the period that the permit remains in force, acquire any further ownership, control, or interest in any such securities company or participate in the management or direction thereof . . . ." 48 Stat. 188.
The "engaged principally" standard is the same standard as is contained in § 20 of the Glass-Steagall Act. Section 19(e) also required bank holding companies to divest themselves of shares of companies "formed for the purpose of" the issuance or underwriting of securities. We do not view this language as prohibiting securities-related activities that would not also be prohibited by the "engaged principally" standard. All companies formed for the purpose of issuing or underwriting securities would surely meet the "engaged principally" test.
44
1955 Senate Report, at 2; see S.Rep.No.1179, 89th Cong., 2d Sess., 12 (1966), U.S.Code Cong. & Admin.News 1966, 2385 (hereinafter 1966 Senate Report).
45
The Senate Report to the Bank Holding Company Act indicated that as of December 31, 1954, only 18 holding companies had obtained voting permits for bank shares from the Board. The Board estimated that 46 bank holding companies would be subjected to regulation by the Bank Holding Company Act. 1955 Senate Report, at 2.
46
As we have indicated previously, see n. 26, supra, the words "principally engaged," contained in both §§ 19(e) and 20 of the Glass-Steagall Act, the sections applicable to bank affiliates, indicate a significantly less stringent test for determining the permissibility of securities-related activity than does the word "engaged," contained in §§ 16 and 21, the sections applicable to banks.
47
See nn. 32, 33, supra, and accompanying text.
48
See n. 26, supra.
49
The 1966 Senate Report on the 1966 Amendments to the Bank Holding Company Act states that the purpose of the 1956 Act was in part to
serve the "general purposes of the Glass-Steagall Act of 1933—to prevent unduly extensive connections between banking and other businesses." 1966 Senate Report, at 2. The legislative history identified by the Court of Appeals merely indicates that Congress recognized the deficiency of § 19(e), 1955 Senate Report, at 2, or that Congress intended the Bank Holding Company Act to serve some of the same policies that we have identified as motivating the Glass-Steagall Congress:
"Whenever a holding company thus controls both banks and nonbanking businesses, it is apparent that the holding company's nonbanking businesses may thereby occupy a preferred position over that of their competitors in obtaining bank credit. It is also apparent that in critical times the holding company which operates nonbanking businesses may be subjected to strong temptation to cause the banks which it controls to make loans to its nonbanking affiliates even though such loans may not at that time be entirely justified in the light of current banking standards. In either situation the public interest becomes directly involved." 1955 House Report, at 16.
The Court of Appeals also cited legislative history indicating that the Board was to have a "limited" authority to administer the § 4(c)(8) exception. See Control and Regulation of Bank Holding Companies: Hearings on H.R. 2674 before the House Committee on Banking and Currency, 84th Cong., 1st Sess., 14 (1955); Control of Bank Holding Companies: Hearings on S. 880, S. 2350, and H.R. 6277 before a Subcommittee of the Senate Committee on Banking and Currency, 84th Cong., 1st Sess., 76 (1955). The fact that the scope of the Board's discretion was to be limited sheds no light on the question of Congress' view of the Glass-Steagall Act. Moreover, although the Court of Appeals relied, as indicative of congressional intent regarding the scope of § 4(c)(8), on the Senate Report's omission of any securities-related activities from the listing of activities clearly falling within the § 4(c)(8) exception, 196 U.S.App.D.C., at 110, 606 F.2d, at 1017, the Senate Report, after listing those obviously related activities, goes on to indicate the importance of the Board's role in approving other such activities. See 1955 Senate Report, at 13; n. 23, supra. Finally, the Court of Appeals found significance in the repeal of § 19(e) of Glass-Steagall in 1966 and the Senate Report's indication that § 19(e) "serve[d] no substantial purpose" after passage of the 1956 Act. 1966 Senate Report, at 12. At the same time as Congress repealed § 19(e), however, it amended the definition of "affiliate" in § 2(b) of the Glass-Steagall Act to include bank holding companies, so that the restrictions applying to affiliates contained in § 20 of the Act then applied to bank holding companies as well. 80 Stat. 242. Furthermore, the fact that § 19(e) served no purpose after the passage of the 1956 Act merely indicates that Congress was successful in its attempt to close the loophole left by Congress in the Glass-Steagall Act. It does not indicate that the 1956 Congress sought to impose more substantial restrictions than those contained in § 19(e) or that the 1956 Congress misperceived the scope of those restrictions.
50
See S.Rep.No.91-1084, p. 4 (1970), U.S.Code Cong. & Admin.News 1970, 5519 (hereinafter 1970 Senate Report):
"[T]he primary purpose of the pending legislation is to modify the Bank Holding Company Act of 1956 to bring under its provisions those companies controlling one bank . . . ." See also H.R.Rep.No.91-387, p. 2 (1969) (hereinafter 1969 House Report).
51
The 1956 version had required a close connection to the "business of banking." The 1970 Amendments required only a close connection to "banking." This change eliminated the requirement that bank holding companies show a close connection between a proposed activity and an activity in which the holding company or its subsidiary already actually engaged. Thus the 1970 amendment to § 4(c)(8) permitted bank holding companies to engage in any activities closely related to activities generally engaged in by banks. H.R.Conf.Rep.No.91-1747, p. 16 (1970), U.S.Code Cong. & Admin.News 1970, 5519 (hereinafter 1970 Conference Report); 116 Cong.Rec. 42436 (1970) (remarks of Sen. Bennett).
52
1969 House Report, at 1; 1970 Senate Report, at 25.
53
1970 Conference Report, at 5.
54
The Conference Committee Report, signed by only four of the seven House conference managers, indicated that the "functionally related" test represented a "more liberal and expansive approach by the Federal Reserve Board in authorizing nonbank activities for bank holding companies" and that the retention of the "closely related" language indicated that "Congress was not convinced that such expansion and liberalization was justified." Id., Report, at 21. This view was not shared by all of the Senate Members of the Conference Committee, however. Senator Bennett criticized the Conference Report as an inaccurate indication of the conference's intent and expressed his belief that the conference intended to broaden the power of the Board to determine what activities are closely related to banking. 116 Cong.Rec. 42432-42437 (1970). Senator Bennett indicated that the proposed term "functionally related" was no broader than the retained term "closely related," and that the removal of the phrase "of a financial, fiduciary, or insurance nature" was intended to reflect an expansion of the Board's discretion. Id., at 42432-42433. See also id., at 42422 (remarks of Sen. Sparkman). See n. 2, supra. All of the Senators on the Conference Committee, however, did not so perceive the final version of § 4(c)(8). Senator Proxmire indicated that "the conference committee agreed essentially to retain the standards of the existing 1956 Bank Holding Company Act." 116 Cong.Rec. at 42427 (1970).
55
During debate on the conference bill, Senator Williams expressed concern about the effect of the 1970 Amendments on the prohibitions of the Glass-Steagall Act:
"Mr. WILLIAMS of New Jersey. I have one question I should like to ask the chairman of the committee.
"Both the Senate and House bills contained, in section 4(c)(8), substantially similar language reiterating the existing law embodied in the Glass-Steagall Act which provides, essentially, for separation of commercial banking and the securities business. This language does not appear in the bill agreed to by the conferees. I wonder whether there was any intention to imply that the very securities-related activities forbidden to banks directly may nevertheless be engaged in by bank-holding companies or their nonbanking affiliates.
"Mr. SPARKMAN. The answer to the Senator's question is that there clearly was not. As it now stands, the Glass-Steagall Act broadly prohibits both banks and their affiliates from engaging in what we commonly understand to be the securities business. There are some specific exceptions, of course, but I can assure you that we did not mean to enlarge or contract them here. We regarded that general prohibition as being so clearly applicable to the subjects of this bill as to make a restatement of it unnecessary. The provision to which you referred is already complicated enough. In short, we did not intend to amend or modify, directly or indirectly, any limitations on the activities of banks, bank holding companies or any of their affiliates, now contained in the Glass-Steagall Act. If Congress is to change that longstanding, fundamental statement of public policy, we will have to do so in other legislation. I hope there is no longer any misconception on that point.
"Mr. WILLIAMS of New Jersey. It is reassuring, indeed, to know that the Glass-Steagall Act has not been disturbed in any way and that there is no intention at all here to do so." Id., at 42430.
See also 1970 Senate Report, at 15. By the time Congress was considering the 1970 Amendments, the definition of "affiliate" contained in § 2(b) of the Glass-Steagall Act had been amended to include bank holding companies, so that the prohibitions contained in § 20 of Glass-Steagall had become applicable to bank holding companies.
56
1970 Senate Report, at 15. The Report notes that the Senate version of the bill prohibited bank holding companies from holding shares in companies "engaged principally in the issue, flotation, underwriting, public sale, or distribution at wholesale or retail or through syndicate participation of stocks, bonds, debentures, notes or securities." The Report recognized that this provision was a restatement of the prohibition already contained in the Glass-Steagall Act. The Report goes on to state:
"The inclusion of this provision is not intended to prejudice the rights of banks or bank holding companies or their affiliates to engage in such of these activities as may be permitted under existing law or which may become permissible under this legislation or under any future legislation. In particular, the language is not intended to inhibit the underwriting of revenue bonds nor operating commingled or managing agency accounts (bank sponsored mutual funds) which activities have already been specifically approved in legislation previously reported by this committee and passed by the Senate, if such legislation is finally enacted, if these activities are allowed under the amendments being made by this legislation, or if the activities are permitted by the courts." Ibid.
When the 1970 Amendments were passed, the status of bank-sponsored mutual funds under the Glass-Steagall Act was unsettled. The District of Columbia Circuit's decision in National Association of Securities Dealers v. SEC, 136 U.S.App.D.C. 241, 420 F.2d 83 (1969), approving bank operation of mutual funds, had not yet been reversed by our decision in Investment Company Institute v. Camp, 401 U.S. 617, 91 S.Ct. 1091, 28 L.Ed.2d 367 (1971).
57
115 Cong.Rec. 33133 (1969).
58
Senator Goodell stated that "[t]he Senate-passed bill . . . provided the banking industry with a great deal of flexibility regarding expansion into bank-related activities." 116 Cong.Rec. 42429 (1970). See n. 23, supra. As Senator Sparkman stated of the conference: "We reached a decision that the whole thing ought to be flexible, that it ought to be lodged in the hands of the Federal Reserve Board to carry out the guidelines we set." 116 Cong.Rec. 42429 (1970).
59
The Court of Appeals read the colloquy between Senators Williams and Sparkman, see n. 55, supra, as an indication that Congress was under the impression—admittedly incorrect—that the Glass-Steagall Act prohibited the services authorized by the Board here. 196 U.S.App.D.C., at 115, 606 F.2d, at 1022. In light of the indications in the Senate Report that the Senate did not intend § 4(c)(8) to foreclose the Board from approving bank-sponsored mutual funds, see n. 56, supra, and accompanying text, the Senate colloquy cited by the Court of Appeals lends scant support to the theory that Congress misunderstood the scope of the Glass-Steagall Act. Moreover, the language deleted from the Senate bill's version of § 4(c)(8) to which Senators Sparkman and Williams were referring contained the "principally engaged" standard contained in § 20 of the Glass-Steagall Act, and not the more complete prohibition contained in §§ 16 and 21. See nn. 54, 55, supra. Furthermore, if Congress was confused about the scope of the Glass-Steagall Act, it may have believed that the statute permitted more than is actually the case. See n. 55, supra. Finally, given the flexible approach to § 4(c)(8) which prevailed in the 1970 Amendments, we must presume that Congress did not intend to adopt a rigid and fixed construction of the Glass-Steagall Act but rather intended that the prevailing view of Glass-Steagall should guide the Board's discretion.
We also disagree with the Court of Appeals' conclusion that the policies underlying the 1970 Amendments would be frustrated by permitting bank holding companies to act as investment advisers to closed-end investment companies. See 196 U.S.App.D.C., at 116, 606 F.2d, at 1023. The first policy, the fear that bank holding companies would improperly further the interests of the nonbanking subsidiary, is adequately protected by the Board's interpretive ruling. See nn. 38-44, supra, and accompanying text. Furthermore, given our conclusion that the 1970 Amendments at the very least did not cut back on the discretion granted the Board under the 1956 Act, we believe that to the extent that Congress addressed in the 1970 Amendments the second policy, the prevention of centralization of economic power, it did so by eliminating the one bank holding company loophole and not by limiting Board discretion to determine what activities are closely related to banking. 1970 Senate Report, at 2-4; 1969 House Report, at 2.
| 78
|
450 U.S. 79
101 S.Ct. 993
67 L.Ed.2d 59
Frank L. CARSON, Lawrence Hatcher and Stuart E. Mines, Petitioners,v.AMERICAN BRANDS, INC., etc., et al.
No. 79-1236.
Argued Dec. 10, 1980.
Decided Feb. 25, 1981.
Syllabus
Petitioners, representing a class of present and former black employees and job applicants, sought injunctive and declaratory relief and damages in an action under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, alleging that respondent employer and unions had engaged in racially discriminatory employment practices. The parties negotiated a settlement and jointly moved the District Court to enter a proposed consent decree which would permanently enjoin respondents from discriminating against black employees and would require them to give hiring and seniority preferences to black employees and to fill one-third of certain supervisory positions with qualified blacks. The court denied the motion, holding that since there was no showing of present or past discrimination, the proposed decree illegally granted racial preferences to the petitioner class, and that in any event the decree would be illegal as extending relief to all present and future black employees, not just to actual victims of the alleged discrimination. The Court of Appeals dismissed petitioners' appeal for want of jurisdiction, holding that the District Court's order was not appealable under 28 U.S.C. § 1292(a)(1), which permits appeals as of right to the courts of appeals from interlocutory orders of district courts "refusing . . . injunctions."
Held : The District Court's interlocutory order refusing to enter the consent decree was an order "refusing" an "injunction" and was therefore appealable under § 1292(a)(1). Pp. 83-90.
(a) The order, although not in terms refusing an injunction, had the practical effect of doing so. However, for such an interlocutory order to be immediately appealable under § 1292(a)(1), a litigant must also show that the order might have "serious, perhaps irreparable, consequence" and that the order can be "effectually challenged" only by immediate appeal. Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 181, 75 S.Ct. 249, 252, 99 L.Ed. 233. Pp. 83-86.
(b) Here, petitioners meet such test. First, they might lose their opportunity to settle their case on the negotiated terms, because a party to a pending settlement might be legally justified in withdrawing its consent to the agreement once trial is held and final judgment entered. And a second "serious, perhaps irreparable, consequence" of the District Court's order justifying an immediate appeal is that, because petitioners cannot obtain the injunctive relief of an immediate restructuring of respondents' transfer and promotional policies until the proposed consent decree is entered, any further delay in reviewing the propriety of the District Court's refusal to enter the decree might cause them serious or irreparable harm. Pp. 86-89.
4 Cir., 606 F.2d 420, reversed.
Napoleon B. Williams, Jr., New York City, for petitioners.
Harlon L. Dalton, New York City, for United States and E.E.O.C. as amici curiae, by special leave of Court.
Henry T. Wickham, Richmond, Va., for respondent, American Brands, Inc.
Jay J. Levit, Richmond, Va., for respondent Unions.
Justice BRENNAN delivered the opinion of the Court.
1
The question presented in this Title VII class action is whether an interlocutory order of the District Court denying a joint motion of the parties to enter a consent decree containing injunctive relief is an appealable order.
2
* Petitioners, representing a class of present and former black seasonal employees and applicants for employment at theRichmond Leaf Department of the American Tobacco Co., brought this suit in the United States District Court for the Eastern District of Virginia under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Alleging that respondents1 had discriminated against them in hiring, promotion, transfer, and training opportunities, petitioners sought a declaratory judgment, preliminary and permanent injunctive relief, and money damages.
3
After extensive discovery had been conducted and the plaintiff class had been certified,2 the parties negotiated a settlement and jointly moved the District Court to approve and enter their proposed consent decree. See Fed.Rule Civ.Proc. 23(e).3 The decree would have required respondents to give hiring and seniority preferences to black employees and to fill one-third of all supervisory positions in the Richmond Leaf Department with qualified blacks. While agreeing to the terms of the decree, respondents "expressly den[ied] any violation of . . . any . . . equal employment law, regulation, or order." App. 25a.
4
The District Court denied the motion to enter the proposed decree. 446 F.Supp. 780 (1977). Concluding that preferential treatment on the basis of race violated Title VII andthe Constitution absent a showing of past or present discrimination, and that the facts submitted in support of the decree demonstrated no "vestiges of racial discrimination," id., at 790, the court held that the proposed decree illegally granted racial preferences to the petitioner class. It further declared that even if present or past discrimination had been shown, the decree would be illegal in that it would extend relief to all present and future black employees of the Richmond Leaf Department, not just to actual victims of the alleged discrimination. Id., at 789.
5
The United States Court of Appeals for the Fourth Circuit, sitting en banc, dismissed petitioners' appeal for want of jurisdiction. 606 F.2d 420 (1979). It held that the District Court's refusal to enter the consent decree was neither a "collateral order" under 28 U.S.C. § 1291,4 nor an interlocutory order "refusing" an "injunctio[n]" under 28 U.S.C. § 1292(a)(1).5 Three judges dissented, concluding that the order refusing to approve the consent decree was appealable under 28 U.S.C. § 1292(a)(1).
6
Noting a conflict in the Circuits,6 we granted certiorari. 447 U.S. 920, 100 S.Ct. 3009, 65 L.Ed.2d 1111 (1980). We hold that the order is appealable under 28 U.S.C. § 1292(a)(1), and accordingly reverse the Court of Appeals.7
II
7
The first Judiciary Act of 1789, 1 Stat. 73, established the general principle that only final decisions of the federal district courts would be reviewable on appeal. 28 U.S.C. § 1291. See Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 178-179, 75 S.Ct. 249, 250-251, 99 L.Ed. 233 (1955); Cobbledick v. United States, 309 U.S. 323, 324-325, 60 S.Ct. 540, 541, 84 L.Ed. 783 (1940). Because rigid application of this principle was found to create undue hardship in some cases, however, Congress created certain exceptions to it. See Baltimore Contractors, Inc. v. Bodinger, supra, 348 U.S., at 180-181, 75 S.Ct., at 252-253. One of these exceptions, 28 U.S.C. § 1292(a)(1), permits appeal as of right from "[i]nterlocutory orders of the district courts . . . granting, continuing, modifying, refusing or dissolving injunctions . . . ." (Emphasis added.)8
8
Although the District Court's order declining to enter the proposed consent decree did not in terms "refus[e]" an "injunctio[n]," it nonetheless had the practical effect of doing so. Cf. General Electric Co. v. Marvel Rare Metals Co., 287 U.S. 430, 433, 53 S.Ct. 202, 203, 77 L.Ed. 408 (1932). This is because the proposed decreewould have permanently enjoined respondents from discriminating against black employees at the Richmond Leaf Department, and would have directed changes in seniority and benefit systems, established hiring goals for qualified blacks in certain supervisory positions, and granted job-bidding preferences for seasonal employees. Indeed, prospective relief was at the very core of the disapproved settlement.9
9
For an interlocutory order to be immediately appealable under § 1292(a)(1), however, a litigant must show more than that the order has the practical effect of refusing an injunction. Because § 1292(a)(1) was intended to carve out only a limited exception to the final-judgment rule, we have construed the statute narrowly to ensure that appeal as of right under § 1292(a)(1) will be available only in circumstances where an appeal will further the statutory purpose of "permit[ting] litigants to effectually challenge interlocutory orders of serious, perhaps irreparable, consequence." Baltimore Contractors, Inc. v. Bodinger, supra, at 181, 75 S.Ct., at 252. Unless a litigant can show that an interlocutory order of the district court might have a "serious, perhaps irreparable, consequence," and that the order can be "effectually challenged" only by immediate appeal, the general congressional policy against piecemeal review will preclude interlocutory appeal.
10
In Switzerland Cheese Assn., Inc. v. E. Horne's Market, Inc., 385 U.S. 23, 87 S.Ct. 193, 17 L.Ed.2d 23 (1966), for example, petitioners contended that the District Court's denial of their motion for summary judgment was appealable under § 1292(a)(1) simply becauseits practical effect was to deny them the permanent injunction sought in their summary-judgment motion. Although the District Court order seemed to fit within the statutory language of § 1292(a)(1), petitioners' contention was rejected because they did not show that the order might cause them irreparable consequences if not immediately reviewed. The motion for summary judgment sought permanent and not preliminary injunctive relief and petitioners did not argue that a denial of summary judgment would cause them irreparable harm pendente lite. Since permanent injunctive relief might have been obtained after trial,10 the interlocutory order lacked the "serious, perhaps irreparable, consequence" that is a prerequisite to appealability under § 1292(a)(1).
11
Similarly, in Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 98 S.Ct. 2451, 57 L.Ed.2d 364 (1978), petitioner in a Title VII sex discrimination suit sought a permanent injunction against her prospective employer on behalf of herself and her putative class. After the District Court denied petitioner's motion for class certification, petitioner filed an appeal under § 1292(a)(1). She contended that since her complaint had requested injunctive relief, the court's order denying class certification had the effect of limiting the breadth of the available relief, and therefore of "refus[ing] a substantial portion of the injunctive relief requested in the complaint." 437 U.S., at 480, 98 S.Ct., at 2453.
12
As in Switzerland Cheese, petitioner in Gardner had not filed a motion for a preliminary injunction and had not alleged that a denial of her motion would cause irreparable harm. The District Court order thus had "no direct or irreparable impact on the merits of the controversy." 437 U.S., at 482, 98 S.Ct., at 2454. Because the denial of class certification was conditional, Fed.Rule Civ.Proc. 23(c)(1), and because it could be effectively reviewed on appeal from final judgment, petitioner could still obtain the full permanent injunctive relief she requested and a delayed review of the District Court order would therefore cause no serious or irreparable harm. As Gardner stated:
13
"The order denying class certification in this case did not have any such 'irreparable' effect. It could be reviewed both prior to and after final judgment; it did not affect the merits of petitioner's own claim; and it did not pass on the legal sufficiency of any claims for injunctive relief." 437 U.S., at 480-481, 98 S.Ct., at 2453-2454 (footnotes omitted).11
III
14
In the instant case, unless the District Court order denying the motion to enter the consent decree is immediately appealable, petitioners will lose their opportunity to "effectually challenge" an interlocutory order that denies them injunctive relief and that plainly has a "serious, perhaps irreparable, consequence." First, petitioners might lose their opportunity to settle their case on the negotiated terms. As United States v. Armour & Co., 402 U.S. 673, 681, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1971), stated:
15
"Consent decrees are entered into by parties to a case after careful negotiation has produced agreement on their precise terms. The parties waive their right to litigate the issues involved in the case and thus save themselvesthe time, expense, and inevitable risk of litigation. Naturally, the agreement reached normally embodies a compromise; in exchange for the saving of cost and elimination of risk, the parties each give up something they might have won had they proceeded with the litigation."
16
Settlement agreements may thus be predicated on an express or implied condition that the parties would, by their agreement, be able to avoid the costs and uncertainties of litigation. In this case, that condition of settlement has been radically affected by the District Court. By refusing to enter the proposed consent decree, the District Court effectively ordered the parties to proceed to trial and to have their respective rights and liabilities established within limits laid down by that court.12 Because a party to a pending settlement might be legally justified in withdrawing its consent to the agreement once trial is held and final judgment entered,13 the District Court's order might thus have the "serious, perhaps irreparable, consequence" of denying the parties their right to compromise their dispute on mutually agreeable terms.14
17
There is a second "serious, perhaps irreparable, consequence" of the District Court order that justifies our conclusion that the order is immediately appealable under § 1292 (a)(1). In seeking entry of the proposed consent decree, petitioners sought an immediate restructuring of respondents' transfer and promotional policies. They asserted in their complaint that they would suffer irreparable injury unless they obtained that injunctive relief at the earliest opportunity.15 Because petitioners cannot obtain that relief until the proposed consent decree is entered, any further delay in reviewing the propriety of the District Court's refusal to enter the decree might cause them serious or irreparable harm.16
18
In sum, in refusing to approve the parties' negotiated consent decree, the District Court denied petitioners the opportunity to compromise their claim and to obtain the injunctive benefits of the settlement agreement they negotiated. These constitute "serious, perhaps irreparable, consequences" that petitioners can "effectually challenge" only by an immediate appeal. It follows that the order is an order "refusing" an "injunctio[n]" and is therefore appealable under § 1292(a)(1).
19
Reversed.
1
Respondents in this case are: American Brands, Inc., which operates the Richmond Leaf Department of the American Tobacco Co.; Local 182 of the Tobacco Workers International Union, the exclusive bargaining agent for all hourly paid production unit employees of the Richmond Leaf Department; and the International Union.
2
The class was certified pursuant to Federal Rule of Civil Procedure 23(b)(2). It consisted of black persons who were employed as seasonal employees at the Richmond Leaf Department on or after September 9, 1972, and black persons who applied for seasonal employment at the Department on or after that date.
3
Rule 23(e) provides:
"A class action shall 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."
4
Although the Court of Appeals did not expressly mention the collateral-order doctrine, petitioners argued that the District Court order was appealable under that doctrine, and the Court of Appeals cited cases decided under that doctrine. 606 F.2d at 423-424, citing Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978); Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); and Seigal v. Merrick, 590 F.2d 35 (CA2 1978).
5
Title 28 U.S.C. § 1292(a)(1) provides:
"(a) The courts of appeals shall have jurisdiction of appeals from:
"(1) Interlocutory orders of the district courts of the United States, . . . or of the judges thereof, granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court.. . ."
6
Compare Norman v. McKee, 431 F.2d 769 (CA9 1970) (refusal to enter consent decree appealable under § 1291), cert. denied sub nom. Security Pacific National Bank v. Myers, 401 U.S. 912, 91 S.Ct. 879, 27 L.Ed.2d 811 (1971), and United States v. City of Alexandria, 614 F.2d 1358 (CA5 1980) (refusal to enter consent decree appealable under § 1292(a)(1)), with Seigal v. Merrick, supra (not appealable under § 1291), and 606 F.2d 420 (CA4 1979) (case below) (not appealable under § 1291 or § 1292(a)(1)). See also In re International House of Pancakes Franchise Litigation, 487 F.2d 303 (CA8 1973) (refusal to enter proposed settlement agreement appealable; no discussion of jurisdictional question).
7
We therefore need not decide whether the order is also appealable under 28 U.S.C. § 1291.
8
This statutory exception was first established by the Evarts Act of 1891, § 7, 26 Stat. 828, which authorized interlocutory appeals "where . . . an injunction shall be granted or continued by interlocutory order or decree." In 1895, that Act was amended to extend the right of appeal to orders of the district courts refusing requests for injunctions. 28 Stat. 666. Although the reference to orders refusing injunctions was dropped from the statute in 1900 for reasons not relevant here, 31 Stat. 660, the reference was reinstated in § 129 of the Judicial Code of 1911, 36 Stat. 1134, and has since remained part of the statute.
9
Neither the parties nor the Court of Appeals dispute that the predominant effect of the proposed decree would have been injunctive. The parties entitled the major part of the decree, "Injunctive Relief for the Class," and expressly agreed that respondents would be "permanently enjoined from discriminating against black employees at the facilities of the Richmond Leaf Department." App. 26a, 27a (emphasis added). The Court of Appeals, in construing the effect of the District Court's action, similarly characterized the relief contained in the proposed decree as "injunctive." 606 F.2d, at 423.
10
The District Court denied petitioners' motion for summary judgment because it found disputed issues of material fact, not because it disagreed with petitioners' legal arguments. Thus, not only was the court free to grant the requested injunctive relief in full after conducting a trial on the merits, but it was also not precluded from granting a motion for preliminary injunction during the pendency of the litigation if petitioners were to allege that further delay would cause them irreparable harm.
11
By contrast, General Electric Co. v. Marvel Rare Metals Co., 287 U.S. 430, 53 S.Ct. 202, 77 L.Ed. 408 (1932), a case in which respondents sought to appeal the District Court's dismissal of their counterclaim for injunctive relief on jurisdictional grounds, concluded that the District Court's order did have a serious, perhaps irreparable, consequence and that it could not be effectually challenged unless an appeal were immediately taken. The Court noted that the District Court "necessarily decided that upon the facts alleged in the counterclaim defendants were not entitled to an injunction," id., at 433, 53 S.Ct., at 204, and that this decision resolved "the very question that, among others, would have been presented to the court upon formal application for an interlocutory injunction." Ibid.
12
By refusing to enter the proposed consent decree, the District Court made clear that it would not enter any decree containing remedial relief provisions that did not rest solidly on evidence of discrimination and that were not expressly limited to actual victims of discrimination. 446 F.Supp., at 788-790. In ruling so broadly, the court did more than postpone consideration of the merits of petitioners' injunctive claim. It effectively foreclosed such consideration. Having stated that it could perceive no "vestiges of racial discrimination" on the facts presented, id., at 790, and that even if it could, no relief could be granted to future employees and others who were not "actual victims" of discrimination, id., at 789, the court made clear that nothing short of an admission of discrimination by respondents plus a complete restructuring of the class relief would induce it to approve remedial injunctive provisions.
13
Indeed, although there has yet been no trial, respondents are even now claiming a right to withdraw their consent to the settlement agreement. After the Court of Appeals dismissed petitioners' appeal and returned jurisdiction to the District Court, respondents filed a motion for a pretrial conference in which they stated: "In support of this motion the defendants assert that they do not now consent to the entry of the proposed Decree . . . ." App. 67a. Neither the District Court nor the Court of Appeals has yet considered whether respondents' statement constitutes a formal motion to withdraw consent or whether such a withdrawal would be legally permissible at this point in the litigation, and we therefore do not decide those issues.
14
Furthermore, such an order would also undermine one of the policies underlying Title VII. In enacting Title VII, Congress expressed a strong preference for encouraging voluntary settlement of employment discrimination claims. As explained in Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 1017, 39 L.Ed.2d 147 (1974):
"Congress enacted Title VII . . . to assure equality of employment opportunities by eliminating those practices and devices that discriminate on the basis of race, color, religion, sex, or national origin. . . . Cooperation and voluntary compliance were selected as the preferred means for achieving this goal."
Moreover, postjudgment review of a district court's refusal to enter a proposed consent decree raises additional problems. Not only might review come after the prevailing party has sought to withdraw its consent to the agreement, but even if the parties continued to support their decree, the court of appeals might be placed in the difficult position of having to choose between ordering the agreed-upon relief or affirming the relief granted by the trial court even when such relief rested on different facts or different judgments with respect to the parties' ultimate liability.
In addition, delaying appellate review until after final judgment would adversely affect the court of appeals' ability fairly to evaluate the propriety of the district court's order. Courts judge the fairness of a proposed compromise by weighing the plaintiff's likelihood of success on the merits against the amount and form of the relief offered in the settlement. See Protective Comm. for Independent Stockholders v. Anderson, 390 U.S. 414, 424-425, 88 S.Ct. 1157, 1163-1164, 20 L.Ed.2d 1 (1968). They do not decide the merits of the case or resolve unsettled legal questions. Since the likely outcome of a trial is best evaluated in light of the state of facts and perceptions that existed when the proposed consent decree was considered, appellate review would be more effective if held prior to the trial court's factfinding rather than after final judgment when the rights and liabilities of the parties have been established.
15
In the "Relief" section of their complaint, petitioners alleged:
"Plaintiffs and the class they represent have suffered and will continue to suffer irreparable injury by the policies, practices, customs and usages of the defendants complained of herein until the same are enjoined by this Court. Plaintiffs have no plain, adequate or complete remedy at law to redress the wrongs alleged herein and this suit for a preliminary and permanent injunction and declaratory judgment is their only means of securing adequate relief.
"WHEREFORE, plaintiffs pray that this Court advance this case on the docket, order a speedy hearing at the earliest practicable date, and upon such hearing, to:
"1. Grant plaintiffs and the class they represent a preliminary and permanent injunction enjoining the defendants and their agents, successors, employees, attorneys, and those acting in concert with them and at their direction from continuing to maintain policies, practices, customs or usages of limiting plaintiffs and members of their class to the lower-paying and less desirable jobs, denying them on-the-job training opportunities, denying them the opportunity to advance to supervisory positions, denying them fringe benefits afforded other employees of the Company, and denying them adequate and effective union representation because of their race and color." App. 9a-10a.
This is essentially the relief that petitioners would have obtained under the proposed consent decree.
16
For example, petitioners might be denied specific job opportunities and the training and competitive advantages that would come with those opportunities.
| 89
|
450 U.S. 107
101 S.Ct. 1010
67 L.Ed.2d 82
DEMOCRATIC PARTY OF the UNITED STATES of America et al., Appellants,v.WISCONSIN ex rel. Bronson C. LaFOLLETTE et al.
No. 79-1631.
Argued Dec. 8, 1980.
Decided Feb. 25, 1981.
Syllabus
Rules of the Democratic Party of the United States (National Party) provide that only those who are willing to affiliate publicly with the Democratic Party may participate in the process of selecting delegates to the Party's National Convention. Wisconsin election laws allow voters to participate in its Democratic Presidential candidate preference primary without regard to party affiliation and without requiring a public declaration of party preference. While the Wisconsin delegates to the National Convention are chosen separately, after the primary, at caucuses of persons who have stated their affiliation with the Democratic Party, those delegates are bound to vote at the Convention in accord with the results of the open primary election. Thus, while Wisconsin's open Presidential preference primary does not itself violate the National Party's rules, the State's mandate that primary results shall determine the allocation of votes cast by the State's delegates at the National Convention does. When the National Party indicated that Wisconsin delegates would not be seated at the 1980 National Convention because the Wisconsin delegate selection system violated the National Party's rules, an original action was brought in the Wisconsin Supreme Court on behalf of the State, seeking a declaration that such system was constitutional as applied to appellants (the National Party and Democratic National Committee) and that they could not lawfully refuse to seat the Wisconsin delegation. Concluding, inter alia, that the State had not impermissibly impaired the National Party's freedom of political association protected by the First and Fourteenth Amendments, the Wisconsin Supreme Court held that the State's delegate selection system was constitutional and binding upon appellants and that they could not refuse to seat delegates chosen in accord with Wisconsin law.
Held : Wisconsin cannot constitutionally compel the National Party to seat a delegation chosen in a way that violates the Party's rules. Cousins v. Wigoda, 419 U.S. 477, 95 S.Ct. 541, 42 L.Ed.2d 595, controlling. Pp. 120-126.
(a) The National Party and its adherents enjoy a constitutionally protected right of political association under the First Amendment, andthis freedom to gather in association for the purpose of advancing shared beliefs is protected by the Fourteenth Amendment from infringement by any State, and necessarily presupposes the freedom to identify the people who constitute the association and to limit the association to those people only. Here, the members of the National Party, speaking through their rules, chose to define their associational rights by limiting those who could participate in any binding process leading to the selection of delegates to their National Convention. Pp. 120-122.
(b) Wisconsin's asserted compelling interests in preserving the overall integrity of the electoral process, providing secrecy of the ballot, increasing voter participation in primaries, and preventing harassment of voters, go to the conduct of the open Presidential preference primary, not to the imposition of voting requirements upon those who, in a separate process, are eventually selected as delegates. Therefore, such asserted interests do not justify the State's substantial intrusion into the associational freedom of members of the National Party. Pp. 124-126.
93 Wis.2d 473, 287 N.W.2d 519, reversed.
Ronald D. Eastman, Washington, D. C., for appellants.
Bronson C. LaFollette, Madison, Wis., pro se, and Robert H. Friebert, Milwaukee, Wis., for appellees.
Justice STEWART delivered the opinion of the Court.
1
The charter of the appellant Democratic Party of the United States (National Party) provides that delegates to its National Convention shall be chosen through procedures in which only Democrats can participate. Consistently with the charter, the National Party's Delegate Selection Rules provide that only those who are willing to affiliate publicly with the Democratic Party may participate in the process of selecting delegates to the Party's National Convention. The question on this appeal is whether Wisconsin may successfully insist that its delegates to the Convention be seated, even though those delegates are chosen through a process that includes a binding state preference primary election in which voters do not declare their party affiliation. The Wisconsin Supreme Court held that the National Convention is bound by the Wisconsin primary election results, and cannot refuse to seat the delegates chosen in accord with Wisconsin law. 93 Wis.2d 473, 287 N.W.2d 519.
2
* Rule 2A of the Democratic Selection Rules for the 1980 National Convention states: "Participation in the delegate selection process in primaries or caucuses shall be restricted to Democratic voters only who publicly declare their party preference and have that preference publicly recorded."1 UnderNational Party rules, the "delegate selection process" includes any procedure by which delegates to the Convention are bound to vote for the nomination of particular candidates.2
3
The election laws of Wisconsin3 allow non-Democrats— including members of other parties and independents—to vote in the Democratic primary without regard to party affiliation and without requiring a public declaration of party preference. The voters in Wisconsin's "open"4 primary express theirchoice among Presidential candidates for the Democratic Party's nomination; they do not vote for delegates to the National Convention. Delegates to the National Convention are chosen separately, after the primary, at caucuses of persons who have stated their affiliation with the Party.5 But these delegates, under Wisconsin law, are bound to vote at the National Convention in accord with the results of the open primary election.6 Accordingly, while Wisconsin's open Presidential preference primary does not itself violate National Party rules,7 the State's mandate that the results of the primary shall determine the allocation of votes cast by the State's delegates at the National Convention does.
4
In May 1979, the Democratic Party of Wisconsin (State Party) submitted to the Compliance Review Commission of the National Party its plan for selecting delegates to the 1980 National Convention. The plan incorporated the provisions of the State's open primary laws, and, as a result the Commission disapproved it as violating Rule 2A.8 Since compliance with Rule 2A was a condition of participation atthe Convention, for which no exception could be made,9 the National Party indicated that Wisconsin delegates who were bound to vote according to the results of the open primary would not be seated.
5
The State Attorney General then brought an original action in the Wisconsin Supreme Court on behalf of the State. Named as respondents in the suit were the National Party and the Democratic National Committee, who are the appellants in this Court, and the State Party, an appellee here. The State sought a declaration that the Wisconsin delegate selection system was constitutional as applied to the appellants and that the appellants could not lawfully refuse to seat the Wisconsin delegation at the Convention. The State Party responded by agreeing that state law may validly be applied against it and the National Party, and cross-claimed against the National Party, asking the court to order the National Party to recognize the delegates selected in accord with Wisconsin law. The National Party argued that under the First and Fourteenth Amendments it could not be compelled to seat the Wisconsin delegation in violation of Party rules.
6
The Wisconsin Supreme Court entered a judgment declaring that the State's system of selecting delegates to the Democratic National Convention is constitutional and binding on the appellants. 93 Wis.2d 473, 287 N.W.2d 519. The court assumed that the National Party's freedom of political association, protected by the First and Fourteenth Amendments, gave it the right to restrict participation in the process of choosing Presidential and Vice Presidential candidates to Democrats. Id., at 511-512, 287 N.W.2d, at 536. It concluded, however, that the State had not impermissibly impaired that right. The court said that the State's primary election laws were themselves intended to permit persons to vote only for the candidates of the party they preferred, andthat, as a practical matter, requiring a public declaration of party affiliation would not prevent persons who are not Democrats from voting in the primary.10 Moreover, the court reasoned that to whatever extent appellants' constitutional freedom of political association might be burdened by the Wisconsin election laws, the burden was justified by the State's "compelling . . . interest in maintaining the special feature of its primary . . . which permits private declaration of party preference." Id., at 521, 287 N.W.2d, at 541.
7
The court declared that the votes of the state delegation at the National Convention for Presidential and Vice Presidential candidates must be apportioned and cast as prescribed by Wisconsin law, and that the State's delegates could not for that reason be disqualified from being seated at the Convention.11 The National Party and the Democratic National Committee then brought this appeal under 28 U.S.C. § 1257(2).
8
Wisconsin held its primary on April 1, 1980, in accord with its election laws. Subsequently, the State Party chose delegates to the 1980 Democratic National Convention, in compliance with the order of the Wisconsin Supreme Court and Wis.Stat. §§ 8.12(3)(b), (3)(c) 5 (1977). This Court noted probable jurisdiction of the appeal on July 2, 1980. 448 U.S. 909, 100 S.Ct. 3054, 65 L.Ed.2d 1139. On the same day, the Court stayed the judgment ofthe Wisconsin Supreme Court. On July 20, 1980, the Credentials Committee of the National Convention decided to seat the delegates from Wisconsin, despite this Court's stay,12 and despite the delegates' selection in a manner that violated Rule 2A.13
II
9
Rule 2A can be traced to efforts of the National Party to study and reform its nominating procedures and internal structure after the 1968 Democratic National Convention.14 The Convention, the Party's highest governing authority, directed the Democratic National Committee (DNC) to establish a Commission on Party Structure and Delegate Selection (McGovern/Fraser Commission). This Commission concluded that a major problem faced by the Party was that rank-and-file Party members had been underrepresented at its Convention, and that the Party should "find methods which would guarantee every American who claims a stake in the Democratic Party the opportunity to make his judgment felt in the presidential nominating process." Commission on Party Structure and Delegate Selection, Mandate for Reform: A Report of the Commission on Party Structure and Delegate Selection to the Democratic National Committee 8 (Apr.1970) (emphasis added) (hereafter Mandate for Reform). The Commission stressed that Party nominating procedures should be as open and accessible as possible to all persons who wished to join the Party,15 but expressed the concern that "a full opportunity for all Democrats to participate is diluted if members of other political parties are allowed to participatein the selection of delegates to the Democratic National Convention." Id., at 47.16
10
The 1972 Democratic National Convention also established a Commission on Delegate Selection and Party Structure (Mikulski Commission). This Commission reiterated many of the principles announced by the McGovern/Fraser Commission, but went further to propose binding rules directing state parties to restrict participation in the delegate selection process to Democratic voters. Commission on Delegate Selection and Party Structure, Democrats All: A Report of the Commission on Delegate Selection and Party Structure 2, 15 (Dec. 6, 1973) (hereafter Democrats All). The DNC incorporated these recommendations into the Delegate Selection Rules for the 1976 Convention. In 1974, the National Party adopted its charter and by-laws. The charter set the following qualifications for delegates to the Party's national conventions:
11
"The National Convention shall be composed of delegates who are chosen through processes which (i) assure all Democratic voters full, timely and equal opportunity to participate and include affirmative action programs toward that end, (ii) assure that delegations fairly reflect the division of preferences expressed by those who participate in the presidential nominating process, . . . [and] (v) restrict participation to Democrats only . . . ." Democratic National Committee, Charter of the Democratic Party of the United States, Art. Two, § 4 (emphasis added).
12
Rule 2A took its present form in 1976. Consistent with the charter, it restricted participation in the delegate selection process in primaries or caucuses to "Democratic voters only who publicly declare their party preference and have that preference publicly recorded." But the 1976 Delegate Selection Rules allowed for an exemption from any rule, including Rule 2A, that was inconsistent with state law if the state party was unable to secure changes in the law.17
13
In 1975, the Party established yet another commission to review its nominating procedures, the Commission on Presidential Nomination and Party Structure (Winograd Commission). This Commission was particularly concerned with what it believed to be the dilution of the voting strength of Party members in States sponsoring open or "crossover" primaries.18 Indeed, the Commission based its concern in part on a study of voting behavior in Wisconsin's open primary. See Adamany, Cross-Over Voting and the Democratic Party's Reform Rules, 70 Am.Pol.Sci.Rev. 536, 538-539 (1976).
14
The Adamany study, assessing the Wisconsin Democratic primaries from 1964 to 1972, found that crossover voters comprised 26% to 34% of the primary voters; that the voting patterns of crossover voters differed significantly from those of participants who identified themselves as Democrats; and that crossover voters altered the composition of the delegate slate chosen from Wisconsin.19 The Winograd Commissionthus recommended that the Party strengthen its rules against crossover voting, Openness, Participation and Party Building: Reforms for a Stronger Democratic Party 68 (Feb. 17, 1978) (hereafter Openness, Participation), predicting that continued crossover voting "could result in a convention delegation which did not fairly reflect the division of preferences among Democratic identifiers in the electorate." Ibid. And it specifically recommended that "participation in the delegate selection process in primaries or caucuses . . . be restricted to Democratic voters only who publicly declare their party preference and have that preference publicly recorded." Id., at 69. Accordingly, the text of Rule 2A was retained, but a new Rule, 2B, was added, prohibiting any exemptions fromRule 2A. Delegate Selection Rules for the 1980 Democratic Convention, Rule 2B.20
III
15
The question in this case is not whether Wisconsin may conduct an open primary election if it chooses to do so, or whether the National Party may require Wisconsin to limit its primary election to publicly declared Democrats.21 Rather, the question is whether, once Wisconsin has opened its Democratic Presidential preference primary to voters who do not publicly declare their party affiliation, it may then bind the National Party to honor the binding primary results, even though those results were reached in a manner contrary to National Party rules.
16
The Wisconsin Supreme Court considered the question before it to be the constitutionality of the "open" feature of the state primary election law, as such. Concluding that theopen primary serves compelling state interest by encouraging voter participation, the court held the state open primary constitutionally valid. Upon this issue, the Wisconsin Supreme Court may well be correct. In any event there is no need to question its conclusion here. For the rules of the National Party do not challenge the authority of a State to conduct an open primary, so long as it is not binding on the National Party Convention. The issue is whether the State may compel the National Party to seat a delegation chosen in a way that violates the rules of the Party. And this issue was resolved, we believe, in Cousins v. Wigoda, 419 U.S. 477, 95 S.Ct. 541, 42 L.Ed.2d 595.
17
In Cousins the Court reviewed the decision of an Illinois court holding that state law exclusively governed the seating of a state delegation at the 1972 Democratic National Convention, and enjoining the National Party from refusing to seat delegates selected in a manner in accord with state law although contrary to National Party rules. Certiorari was granted "to decide the important question . . . whether the [a]ppellate [c]ourt was correct in according primacy to state law over the National Political Party's rules in the determination of the qualifications and eligibility of delegates to the Party's National Convention." Id., at 483, 95 S.Ct., at 545. The Court reversed the state judgment, holding that "Illinois' interest in protecting the integrity of its electoral process cannot be deemed compelling in the context of the selection of delegates to the National Party Convention." Id., at 491, 95 S.Ct., at 549. That disposition controls here.
18
The Cousins Court relied upon the principle that "[t]he National Democratic Party and its adherents enjoy a constitutionally protected right of political association." Id., at 487, 95 S.Ct., at 547. See also, id., at 491, 95 S.Ct., at 549 (REHNQUIST, J., concurring). This First Amendment freedom to gather in association for the purpose of advancing shared beliefs is protected by the Fourteenth Amendment from infringement by any State. Kusper v. Pontikes, 414 U.S. 51, 57, 94 S.Ct. 303, 307, 38 L.Ed.2d 260; Williams v. Rhodes, 393 U.S. 23, 30-31, 89 S.Ct. 5, 10, 21 L.Ed.2d 24. See also NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488. And the freedom to associate for the "common advancement of political beliefs," Kusper v. Pontikes, supra, at 56, 94 S.Ct., at 307, necessarily presupposes the freedom to identify the people who constitute the association, and to limit the association to those people only.22 "Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents." Sweezy v. New Hampshire, 354 U.S. 234, 250, 77 S.Ct. 1203, 1211, 1 L.Ed.2d 1311, see NAACP v. Button, 371 U.S. 415, 431, 83 S.Ct. 328, 337, 9 L.Ed.2d 405.
19
Here, the members of the National Party, speaking through their rules, chose to define their associational rights by limiting those who could participate in the processes leading to the selection of delegates to their National Convention. On several occasions this Court has recognized that the inclusion of persons unaffiliated with a political party may seriously distort its collective decisions—thus impairing the party's essential functions—and that political parties may accordingly protect themselves "from intrusion by those with adverse political principles." Ray v. Blair, 343 U.S. 214, 221-222, 72 S.Ct. 654, 657-658, 96 L.Ed. 894. In Rosario v. Rockefeller, 410 U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1, for example, the Court sustained the constitutionality of a requirement—there imposed by a state statute—that a voter enroll in the party of his choice at least 30 days before the general election in order to vote in the next party primary. The purpose of that statute was "to inhibit party 'raiding,' whereby voters in sympathy with one party designate themselves as voters of another party so as to influence or determine the results of the other party's primary." Id., at 760, 93 S.Ct., at 1251.23 See also Kusper v. Pontikes, supra, at 59-60, 94 S.Ct., at 308-309.
20
The Wisconsin Supreme Court recognized these constitutional doctrines in stating that the National Party could exclude persons who are not Democrats from the procedures through which the Party's national candidates are actually chosen. 93 Wis.2d, at 499, 287 N.W.2d, at 530. But the court distinguished Cousins on the ground that this case "does not arise 'in the context of the selection of delegations to the National Party Convention. . . .' "24 Id., at 525, 287 N.W.2d, at 543. The court's order however, unequivocally obligated the National Party to accept the delegation to the National Convention chosen in accord with Wisconsin law, despite contrary National Party rules.
21
The State argues that its law places only a minor burden on the National Party. The National Party argues that the burden is substantial, because it prevents the Party from "screen[ing] out those whose affiliation is . . . slight, tenuous, or fleeting," and that such screening is essential to build a more effective and responsible Party. But it is not for the courts to mediate the merits of this dispute. For even if the State were correct,25 a State, or a court, may not constitutionally substitute its own judgment for that of the Party. A political party's choice among the various ways of determining the makeup of a State's delegation to the party's national convention is protected by the Constitution.26 And as is true of all expressions of First Amendment freedoms, the courts may not interfere on the ground that they view a particular expression as unwise or irrational.27
IV
22
We must consider, finally, whether the State has compelling interests that justify the imposition of its will upon the appellants. See Cousins, 419 U.S., at 489, 95 S.Ct., at 548.28 "Neither the right to associate nor the right to participate in political activities is absolute." CSC v. Letter Carriers, 413 U.S. 548, 567, 93 S.Ct. 2880, 2891, 37 L.Ed.2d 796. The State asserts a compelling interest in preserving the overall integrity of the electoral process, providing secrecyof the ballot, increasing voter participation in primaries, and preventing harassment of voters.29 But all those interests go to the conduct of the Presidential preference primary—not to the imposition of voting requirements upon those who, in a separate process, are eventually selected as delegates.30 Therefore, the interests advanced by the State31 do not justifyits substantial32 intrusion into the associational freedom of members of the National Party.
V
23
The State has a substantial interest in the manner in which its elections are conducted, and the National Party has a substantial interest in the manner in which the delegates to its National Convention are selected. But these interests are not incompatible, and to the limited extent they clash in this case, both interests can be preserved. The National Party rules do not forbid Wisconsin to conduct an open primary. But if Wisconsin does open its primary, it cannot require that Wisconsin delegates to the National Party Convention vote there in accordance with the primary results, if to do so would violate Party rules. Since the Wisconsin Supreme Court has declared that the National Party cannot disqualify delegates who are bound to vote in accordance with the results of the Wisconsin open primary, its judgment is reversed.
24
It is so ordered.
25
Justice POWELL, with whom Justice BLACKMUN and Justice REHNQUIST join, dissenting.
26
Under Wisconsin law, the Wisconsin delegations to the Presidential nominating conventions of the two major political parties are required to cast their votes in a way thatreflects the outcome of the State's "open" primary election. That election is conducted without advance party registration or any public declaration of party affiliation, thus allowing any registered voter to participate in the process by which the Presidential preferences of the Wisconsin delegation to the Democratic National Convention are determined. The question in this case is whether, in light of the National Party's rule that only publicly declared Democrats may have a voice in the nomination process, Wisconsin's open primary law infringes the National Party's First Amendment rights of association. Because I believe that this law does not impose a substantial burden on the associational freedom of the National Party, and actually promotes the free political activity of the citizens of Wisconsin, I dissent.
27
* The Wisconsin open primary law was enacted in 1903. 1903 Wis.Laws, ch. 451. It was amended two years later to apply to Presidential nominations. 1905 Wis.Laws, ch. 369. See 93 Wis.2d 473, 492, 287 N.W.2d 519, 527 (1980). As the Wisconsin Supreme Court described in its opinion below:
28
"The primary was aimed at stimulating popular participation in politics thereby ending boss rule, corruption, and fraudulent practices which were perceived to be part of the party caucus or convention system. Robert M. La Follette, Sr., supported the primary because he believed that citizens should nominate the party candidates; that the citizens, not the party bosses, could control the party by controlling the candidate selection process; and that the candidates and public officials would be more directly responsible to the citizens." Ibid.
29
As noted in the opinion of the Court, the open primary law only recently has come into conflict with the rules of the National Democratic Party. The new Rule 2A was enactedas part of a reform effort aimed at opening up the party to greater popular participation. This particular rule, however, has the ironic effect of calling into question a state law that was intended itself to open up participation in the nominating process and minimize the influence of "party bosses."
II
30
The analysis in this kind of First Amendment case has two stages. If the law can be said to impose a burden on the freedom of association, then the question becomes whether this burden is justified by a compelling state interest. E. g., Bates v. Little Rock, 361 U.S. 516, 524, 80 S.Ct. 412, 417, 4 L.Ed.2d 480 (1960). The Court in this case concludes that the Wisconsin law burdens associational freedoms. It then appears to acknowledge that the interests asserted by Wisconsin are substantial, ante, at 120-121, but argues that these interests "go to the conduct of the Presidential preference primary—not to the imposition of voting requirements upon those who, in a separate process, are eventually selected as delegates," ante, at 125. In my view, however, any burden here is not constitutionally significant, and the State has presented at least a formidable argument linking the law to compelling state interests.
A.
31
In analyzing the burden imposed on associational freedoms in this case, the Court treats the Wisconsin law as the equivalent of one regulating delegate selection, and, relying on Cousins v. Wigoda, 419 U.S. 477, 95 S.Ct. 541, 42 L.Ed.2d 595 (1975), concludes that any interference with the National Party's accepted delegate-selection procedures impinges on constitutionally protected rights. It is important to recognize, however, that the facts of this case present issues that differ considerably from those we dealt with in Cousins.
32
In Cousins, we reversed a determination that a state court could interfere with the Democratic Convention's freedom toselect one delegation from the State of Illinois over another. At issue in the case was the power of the National Party to reject a delegation chosen in accordance with state law because the State's delegate-selection procedures violated party rules regarding participation of minorities, women, and young people, as well as other matters. See id., at 479, n. 1, 95 S.Ct., at 543, n. 1. The state court had ordered the Convention to seat the delegation chosen under state law, rather than the delegation preferred by the Convention itself. In contrast with the direct state regulation of the delegate-selection process at issue in Cousins, this case involves a state statutory scheme that regulates delegate selection only indirectly. Under Wisconsin law, the "method of selecting the delegates or alternates [is] determined by the state party organization," Wis.Stat. § 8.12(3)(b) (1977). Wisconsin simply mandates that each delegate selected, by whatever procedure, must be pledged to represent a candidate who has won in the state primary election the right to delegate votes at the Convention.1
33
In sum, Wisconsin merely requires that the delegates "vote in accordance with the results of the Wisconsin open primary." Ante, at 126. While this regulation affecting participation in the primary is hardly insignificant, it differs substantially from the direct state interference in delegate selection at issue in Cousins. This difference serves to emphasize the importance of close attention to the way in which a state law is said to impose a burden on a party's freedom of association. Cf. Marchioro v. Chaney, 442 U.S. 191, 199, 99 S.Ct. 2243, 2248, 60 L.Ed.2d 816 (1979). All that Wisconsin has done is to require the major parties to allow voters to affiliate with them—for the limited purpose of participation in a primary—secretly, in the privacy of the voting booth.2 The Democrats remain free to require public affiliation from anyone wishing any greater degree of participation in party affairs. In Wisconsin, participation in the caucuses where delegates are selected is limited to publicly affiliated Democrats. Brief for Appellee Democratic Party of Wisconsin 19. And, as noted above, the State's law requires that delegates themselves affirm their membership in the party publicly.
34
In evaluating the constitutional significance of this relatively minimal state regulation of party membership requirements, I am unwilling—at least in the context of a claim by one of the two major political parties—to conclude that every conflict between state law and party rules concerning participation in the nomination process creates a burden on associational rights. Instead, I would look closely at the nature of the intrusion, in light of the nature of the association involved, to see whether we are presented with a real limitation on First Amendment freedoms.
35
It goes without saying that nomination of a candidate for President is a principal function performed by a national political party, and Wisconsin has, to an extent, regulated the terms on which a citizen may become a "member" of the group of people permitted to influence that decision. If appellant National Party were an organization with a particular ideological orientation or political mission, perhaps this regulation would present a different question.3 In such a case, the state law might well open the organization to participation by persons with incompatible beliefs and interfere with the associational rights of its founders.
36
The Democratic Party, however, is not organized around the achievement of defined ideological goals. Instead, the major parties in this country "have been characterized by a fluidity and overlap of philosophy and membership." Rosario v. Rockefeller, 410 U.S. 752, 769, 93 S.Ct. 1245, 1255, 36 L.Ed.2d 1 (1973) (POWELL, J., dissenting). It can hardly be denied that this party generally has been composed of various elements reflecting most of the American political spectrum.4 The Party does take positionson public issues, but these positions vary from time to time, and there never has been a serious effort to establish for the Party a monolithic ideological identity by excluding all those with differing views. As a result, it is hard to see what the Democratic Party has to fear from an open primary plan. Wisconsin's law may influence to some extent the outcome of a primary contest by allowing participation by voters who are unwilling to affiliate with the Party publicly. It is unlikely, however, that this influence will produce a delegation with preferences that differ from those represented by a substantial number of delegates from other parts of the country. Moreover, it seems reasonable to conclude that, insofar as the major parties do have ideological identities, an open primary merely allows relatively independent voters to cast their lot with the party that speaks to their present concerns.5 By attracting participation by relatively independent-minded voters, the Wisconsin plan arguably may enlarge the support for a party at the general election.
37
It is significant that the Democratic Party of Wisconsin, which represents those citizens of Wisconsin willing to take part publicly in Party affairs, is here defending the state law. Moreover, the National Party's apparent concern that the outcome of the Wisconsin Presidential primary will be skewed cannot be taken seriously when one considers the alternative delegate-selection methods that are acceptable to the Party under its rules. Delegates pledged to various candidates may be selected by a caucus procedure involving a small minority of Party members, as long as all participants in the process are publicly affiliated. While such a process would eliminate "crossovers," it would be at least as likely as an open primary to reflect inaccurately the views of a State's Democrats.6 In addition, the National Party apparently is quite willing to accept public affiliation immediately before primary voting, which some States permit.7 As Party affiliation becomes this easy for a voter to change in order to participate in a particular primary election, the difference between open and closed primaries loses its practical significance.8
38
In sum, I would hold that the National Party has failed to make a sufficient showing of a burden on its associational rights.9
B
39
The Court does not dispute that the State serves important interests by its open primary plan. Instead the Court argues that these interests are irrelevant because they do not support a requirement that the outcome of the primary be binding on delegates chosen for the convention. This argument, however, is premised on the unstated assumption that a nonbinding primary would be an adequate mechanism for pursuing the state interests involved. This assumption is unsupportable because the very purpose of a Presidential primary, as enunciated as early as 1903 when Wisconsin passed its first primary law, was to give control over the nomination process to individual voters.10 Wisconsin cannot do this, and still pursue the interests underlying an open primary, without making the open primary binding.11
40
If one turns to the interests asserted, it becomes clear that they are substantial. As explained by the Wisconsin Supreme Court:
41
"The state's interest in maintaining a primary and in not restricting voting in the presidential preference primary to those who publicly declare and record their party preference is to preserve the overall integrity of the electoral process by encouraging increased voter participation in the political process and providing secrecy of the ballot, thereby ensuring that the primary itself and the political party's participation in the primary are conducted in a fair and orderly manner.
42
"In guaranteeing a private primary ballot, the open primary serves the state interest of encouraging voters to participate in selecting the candidates of their party which, in turn, fosters democratic government. Historically the primary was initiated in Wisconsin in an effort to enlarge citizen participation in the political process and to remove from the political bosses the process of selecting candidates." 93 Wis.2d, at 512-513, 287 N.W.2d, at 536-537 (footnote omitted).
43
The State's interest in promoting the freedom of voters to affiliate with parties and participate in party primaries has been recognized in the decisions of this Court. In several cases, we have dealt with challenges to state laws restricting voters who wish to change party affiliation in order to participate in a primary. We have recognized that voters have a right of free association that can be impaired unconstitutionally if such state laws become too burdensome. In Rosario v. Rockefeller, 410 U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1 (1973), the Court upheld aregistration time limit, but emphasized that the law did not absolutely prevent any voter from participating in a primary and was "tied to a particularized legitimate purpose" of preventing "raiding,"12 id., at 762, 93 S.Ct., at 1252. In Kusper v. Pontikes, 414 U.S. 51, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973), we struck down an Illinois law that prevented voters who had participated in one party's primary from switching affiliations to vote in another party's primary during the succeeding 23 months. We concluded that such a law went too far in interfering with the freedom of the individual voter, and could not be justified by the State's interest in preventing raiding.
44
Here, Wisconsin has attempted to ensure that the prospect of public party affiliation will not inhibit voters from participating in a Democratic primary. Under the cases just discussed, the National Party's rule requiring public affiliation for primary voters is not itself an unconstitutional interference with voters' freedom of association. Nader v. Schaffer, 417 F.Supp. 837 (Conn.) (three-judge court), summarily aff'd, 429 U.S. 989, 97 S.Ct. 516, 50 L.Ed.2d 602 (1976). But these cases do support the State's interest in promoting free voter participation by allowing private party affiliation. The State of Wisconsin has determined that some voters are deterred from participation by a public affiliation requirement,13 and the validity of that concern is not something that we should second-guess.14
III
45
The history of state regulation of the major political parties suggests a continuing accommodation of the interests of the parties with those of the States and their citizens. In the process, "the States have evolved comprehensive, and in many respects complex, election codes regulating in most substantial ways, with respect to both federal and state elections, the time, place, and manner of holding primary and general elections, the registration and qualifications of voters, and the selection and qualification of candidates." Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 1279, 39 L.Ed.2d 714 (1974).15 Today, the Court departs from this process of accommodation. It does so, it seems to me, by upholding a First Amendment claim by one of the two major parties without any serious inquiry into the extent of the burden on associational freedoms and without due consideration of the countervailing state interests.
1
Rule 2A provides in full:
"Participation in the delegate selection process in primaries or caucuses shall be restricted to Democratic voters only who publicly declare their party preference and have that preference publicly recorded. Documentary evidence of a process which complies with this rule shall accompany all state Delegate Selection Plans upon their submission to the National Party. Such rules, when approved by the Compliance Review Commission and implemented shall constitute adequate provisions within the meaning of Section 9 of the 1972 Democratic National Convention mandate."
2
Rule 12B of the Delegate Selection Rules for the 1980 Democratic National Convention provides in part:
"At all stages of the delegates selection process, delegates shall be allocated in a fashion that fairly reflects the expressed presidential preference or uncommitted status of the primary voters or if there is no binding primary, the convention and caucus participants except that preferences securing less than the applicable percentage of votes cast for the delegates to the National Convention shall not be awarded any delegates."
Rule 12D provides in full:
"For the purpose of fairly reflecting the division of preferences, the non-binding advisory presidential preference portion of primaries shall not be considered a step in the delegate selection process." (Emphasis added.)
3
Wisconsin's election laws are contained in Wis.Stat., Tit. II, chs. 5-12 (1977).
The laws in issue in this case relate to the Presidential preference vote at the spring election, held on the first Tuesday in April in each year in which the Electors for President and Vice President are to be chosen. The relevant provisions are as follows:
"5.37 Voting machine requirements.
* * * * *
"(4) Voting machines may be used at primary elections when they comply with . . . the following provisions: All candidates' names entitled to appear on the ballots at the primary shall appear on the machines; the elector cannot vote for candidates of more than one party, whenever the restriction applies, and an elector who votes for candidates of any party may not vote for independent candidates at the September primary; the elector may secretly select the party for which he or she wishes to vote, or the independent candidates in the case of the September primary; the elector may vote for as many candidates for each office as he or she is lawfully entitled to vote for, but no more.
* * * * *
"5.60 Spring election ballots. At spring elections the following ballots, when necessary, shall be provided for each ward.
* * * * *
"(8) Ballots for Presidential Vote. There shall be a separate ballot for each party . . . listing the names of all potential candidates of that party . . . and affording, in addition, an opportunity to the voter to
nominate another potential candidate by write-in vote or to vote against the choices offered on the ballot. . . . Each voter shall be given the ballots of all the parties participating in the presidential preference vote, but may vote on one ballot only.
* * * * *
"8.12 Presidential preference vote.
* * * * *
"(3) Delegates to National Convention. (a) In canvassing the presidential preference vote, the specific candidate for president receiving a plurality in any district or in the state at large is entitled to control all the delegates representing such area . . . . As an alternative to this procedure, the state chairperson of any political party having a presidential preference ballot may inform the board . . . that the delegates from such party are to be certified on the basis of proportional representation. In such case, each presidential candidate shall be apportioned delegates committed to support him or her as nearly as possible in accordance with the percentage of the vote in a district or in the state at large which such candidate receives. . . .
* * * * *
[8.12(3)(b) and 8.12(3)(c) 5 are described in n. 6 infra]
* * * * *
"(am) No later than the last Monday in April following the presidential preference vote, the board shall notify each state party organization chairperson . . . of the results of the presidential preference vote cast within his or her party, and the number of delegates from each congressional district and from the state at large which are to be pledged to each presidential candidate and the number which are to be uninstructed."
4
What characterizes the Wisconsin primary as "open" is that the "voter is not required to declare publicly a party preference or to have that preference publicly recorded." 93 Wis.2d 473, at 485, 287 N.W.2d 519, at 523. See Wis.Stat. §§ 5.60(8), 10.02(3) (1977). "The major characteristic of open primaries is that any registered voter can vote in the primary of either party." R. Blank, Political Parties, An Introduction 316 (1980).
"The states with open primaries [including Wisconsin] allow any qualified voter to participate in a party primary without designating party affiliation or preference." D. Ippolito & T. Walker, Political Parties, Interest Groups, and Public Policy: Group Influence in American Politics 175 (1980).
5
The State Party limits participation in the selection of delegates to the National Convention to "persons who are willing to subscribe to the general principles of the Democratic Party and do so publicly by executing an appropriate statement to that effect." 93 Wis.2d, at 486, 287 N.W.2d, at 524.
6
The Convention delegates are bound for a limited period by the outcome of the Presidential preference vote in their respective districts or by the outcome of the total Presidential vote in the State at large. Wis.Stat. § 8.12(3)(b) (1977). Each delegate must pledge to support the candidate to whom the delegate is bound and to vote for that candidate on the first ballot and on any additional ballot, unless the candidate dies or releases the delegate or until the candidate fails to receive at least one-third of the votes authorized to be cast. Thereafter the delegate's vote at the Convention is based on personal preference. § 8.12(3)(c) 5.
7
Cf. Rule 12D, at n. 2, supra.
8
See n. 1, supra.
9
Rule 2B precludes any exemption from Rule 2A requirements. See n. 20 and accompanying text, infra.
10
The court reasoned that because a primary voter must vote on only one party's ballot, he effectively declares his affiliation, albeit privately.
11
The order of the Wisconsin Supreme Court was as follows:
"It is adjudged and declared that the Wisconsin electoral statutes involved in this controversy are constitutional, in full force and effect and binding on the petitioner and respondents; that the presidential preference primary shall be conducted in accordance with the Wisconsin statutes; and that Wisconsin delegates to the Democratic Party national convention shall be apportioned as required by statute in accordance with the results of the presidential preference vote and are not disqualified as delegates solely by reason of the apportionment being determined as required by the Wisconsin statutes." 93 Wis.2d, at 525-526, 287 N.W.2d, at 543.
12
In oral argument, counsel for the National Party asserted that the Party did not have the time or resources, at that late date, to establish a procedure to select an alternative slate of delegates.
13
This case is not moot. The Wisconsin Supreme Court's order is not explicitly limited to the 1980 Convention. The effect of the order "remains and controls future elections." Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1. In any event, even if the order were clearly limited to the 1980 election year, the controversy would be properly before us as one "capable of repetition, yet evading review." Rosario v. Rockefeller, 410 U.S. 752, 756, n. 5, 93 S.Ct. 1245, 1249, n. 5, 36 L.Ed.2d 1; Dunn v. Blumstein, 405 U.S. 330, 333, n. 2, 92 S.Ct. 995, 998, n. 2, 31 L.Ed.2d 274.
14
Wisconsin's open primary system has a history far longer than that of Rule 2A of the National Party. The open primary was adopted in 1903, and in the words of the Wisconsin Supreme Court, it has "functioned well" ever since. 93 Wis.2d, at 514, 287 N.W.2d, at 537. The open primary is employed in Wisconsin not only to express preference for Presidential candidates, but to choose "partisan . . . state and local candidates . . . and an extensive array of nonpartisan officers" as well. Ibid. For a history of Wisconsin's open primary, see Part II of the Wisconsin Supreme Court opinion. Id., at 491-495, 287 N.W.2d, at 526-528. See also Berdahl, Party Membership in the United States, 36 Am.Pol.Sci.Rev. 16, 39-41 (1942).
Wisconsin's open primary apparently is still very popular. On September 5, 1979, by a unanimous vote of its Senate and a 92-1 vote of its Assembly, the Wisconsin Legislature reaffirmed by joint resolution the "firm and enduring commitment of the people of Wisconsin to the open presidential preference primary law as an integral element of Wisconsin's proud tradition of direct and effective participatory democracy." And on September 14, 1979, a bill to create a modified closed primary was defeated in committee. 93 Wis.2d, at 490, n. 14, 287 N.W.2d, at 526, n. 14.
15
The McGovern/Fraser Commission adopted guidelines to eliminate state party practices that limited the access of rank-and-file Democrats to the candidate selection procedures, as well as those that tended to dilute the influence of each Democrat who took advantage of expanded opportunities to participate. Mandate for Reform, at 12. For example, the guidelines required that the delegates ultimately chosen, and their apportionment to particular candidates, had to reflect the candidate preferences of Democrats participating at all levels of the selection process. Id., at 44. Among other measures recommended by the Commission were (1) the abolition of the unit rule at any stage of the delegate selection process so that majorities could not bind dissenting minorities to vote in accordance with majority wishes; (2) adequate public notice of times and places of meetings related to the delegate selection process; (3) the requirement that ballots indicate the Presidential preference of candidates, or of slates of delegates; and (4) the prohibition of discrimination against racial minorities, women, and young people. Id., at 44-46. See also Segal, Delegate Selection Standards: The Democratic Party's Experience, 38 Geo.Wash.L.Rev. 873, 880-881 (1970).
16
The recommendations of the McGovern/Fraser Commission were subsequently incorporated into the Call to the 1972 Convention, which set forth the formal requirements of the delegate selection and nominating processes for the Convention. They were also favorably received by at least one group monitoring their implementation at the 1972 Democratic National Convention. See Americans for Democratic Action, "Let Us Continue . . .", A Report on the Democratic Party's Delegate Selection Guidelines (1973).
17
Under Rule 20 state parties must take "provable positive steps to achieve legislative changes to bring the state law into compliance with the provisions of these rules." If a state party takes such provable positive steps but is unable to obtain the necessary legislative changes, the state party may be eligible for a Rule 20 exemption. In 1976, the Wisconsin State Party obtained such an exemption from the 1976 version of Rule 2A.
18
A crossover primary is one that permits nonadherents of a party to "cross over" and vote in that party's primary.
19
In 1964, crossovers made up 26% of the participants in the Wisconsin Democratic primary. Seven percent of those identifying themselves
as Democrats voted for Governor George Wallace, but 62% of the crossovers voted for him. Three-quarters of Governor Wallace's support in the Democratic primary came from crossover voters. Adamany, Cross-Over Voting and the Democratic Party's Reform Rules, 70 Am.Pol.Sci.Rev. 536, 541 (1976).
In 1968, crossovers constituted 28% of the participants in the Wisconsin Democratic primary. Forty-eight percent of those who said they were Democrats voted for Senator Eugene McCarthy, while 39% voted for President Johnson. Of the crossovers, however, 70% voted for Senator McCarthy, while only 14% voted for President Johnson. Participation of crossovers increased Senator McCarthy's margin of victory over President Johnson in Wisconsin by 21/2 times. Id., at 539.
In 1972, crossovers amounted to 34% of the participants. Fifty-one percent of the self-identified Democrats voted for Senator George McGovern, while only 7% voted for Governor Wallace. Of the crossovers, however, only 33% voted for Senator McGovern, while 29% voted for Governor Wallace. The study figures indicate that two-thirds of Governor Wallace's support in the Democratic primary came from crossover voters. Ibid. The study found that "the participation of crossover voters will . . . alter the composition of national convention delegations." Id., at 540.
These data, of course, are relevant only insofar as they help to explain the derivation of Rule 2A. The application of Rule 2A to the delegate selection procedures of any State is not in any way dependent on the pattern or history of voting behavior in that State.
20
Rule 2A was the only rule applicable to the 1980 Convention that permitted no exemption. Rule 2B reads in full: "A Rule 20 exemption [see n. 17, supra] shall not be granted from Rule 2A requirements."
21
In its answer to the complaint filed by the Wisconsin Attorney General, the National Party stated that it would "recognize only those delegate votes at the 1980 Convention which are the product of delegate selection processes, whether in binding primaries, conventions, or caucuses, which are restricted to Democratic voters who publicly declare their party preference and have that preference publicly recorded." The National Party nowhere indicated that the Wisconsin primary cannot be open; it averred only that any process adopted by the State that binds the National Party must comply with Party rules. And in the joint stipulation of facts before the Wisconsin Supreme Court, the National Party did not declare that Wisconsin must abandon its open primary. The National Party said only that if Wisconsin does not change its primary laws by requiring public party declaration consistent with Party rules, it would be satisfied with some other, Party-run, delegate selection system that did comply with Party rules. This statement is consistent with Rule 2C of the 1980 Delegate Selection Rules, which provides that "[a] State Party which is precluded by state statute from complying with this rule [2A], shall adopt and implement an alternative Party-run delegate selection system which complies with this rule." Cf. Rule 20, at n. 17, supra.
22
"Freedom of association would prove an empty guarantee if associations could not limit control over their decisions to those who share the interests and persuasions that underlie the association's being." L. Tribe, American Constitutional Law 791 (1978).
23
The extent to which "raiding" is a motivation of Wisconsin voters matters not. As the Winograd Commission acknowledged, "the existence of 'raiding' has never been conclusively proven by survey research." Openness, Participation 68. The concern of the National Party is, rather, with crossover voters in general, regardless of their motivation.
24
The appellees similarly argue that Cousins is inapposite. They contend that the decision in Cousins involved the direct election of individual delegates to the National Convention, while this case does not. But appellees, like the Wisconsin Supreme Court, fail to recognize that the problem presented by this case is not the "openness" of Wisconsin's primary in and of itself, but the binding effect of Wisconsin law on the freedom of the National Party to define its own eligibility standards.
25
It may be the case, of course, that the public avowal of party affiliation required by Rule 2A provides no more assurance of party loyalty than does Wisconsin's requirement that a person vote in no more than one party's primary. But the stringency, and wisdom, of membership requirements is for the association and its members to decide—not the courts—so long as those requirements are otherwise constitutionally permissible.
26
Cf. Ripon Society, Inc. v. National Republican Party, 173 U.S.App.D.C. 350, 368, 525 F.2d 567, 585 (en banc). ("[A] party's choice, as among various ways of governing itself, of the one which seems best calculated to strengthen the party and advance its interests, deserves the protection of the Constitution . . .") (emphasis of the court), cert. denied, 424 U.S. 933, 96 S.Ct. 1147, 47 L.Ed.2d 341.
27
The State Party argues at length that empirical data do not support the National Party's need for Rule 2A. That argument should be addressed to the National Party—which has studied the need for something like Rule 2A for 12 years, see Part II, supra and not to the judiciary.
The State also contends that the National Party should not be able to prevent "principled crossovers" from influencing the selection of its candidate, and that the appellants have not presented any evidence that "raiding" has been a problem. These contentions are irrelevant. See n. 23, supra. It is for the National Party—and not the Wisconsin Legislature or any court—to determine the appropriate standards for participation in the Party's candidate selection process.
28
Obviously, States have important interests in regulating primary elections, United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368. A State, for example, "has an interest, if not a duty, to protect the integrity of its political processes from frivolous or fraudulent candidacies." Bullock v. Carter, 405 U.S. 134, 145, 92 S.Ct. 849, 857, 31 L.Ed.2d 92.
29
The Wisconsin Supreme Court identified the interests of the State as follows:
"The state's interest in maintaining a primary and in not restricting voting in the presidential preference primary to those who publicly declare and record their party preference is to preserve the overall integrity of the electoral process by encouraging increased voter participation in the political process and by providing secrecy of the ballot, thereby ensuring that the primary itself and the political party's participation in the primary are conducted in a fair and orderly manner." 93 Wis.2d, at 512, 287 N.W.2d, at 536.
30
The State contends repeatedly that the issue whether it can prevent the National Party from determining the qualifications of National Convention delegates is not presented. But this contention utterly ignores the Wisconsin Supreme Court order, and Wis.Stat. § 8.12(3)(b), 3(c)5 (1977). The State Party acknowledges near the end of its brief that "[p]erhaps the real issue in this case is not whether Wisconsin can conduct an open primary, but rather whether it can make the results of the open primary binding upon Wisconsin delegates to the National Convention."
31
The State attempts to add constitutional weight to its claims with the authority conferred on the States by Art. II, § 1, cl. 2, of the United States Constitution: "Each state shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which a State may be entitled." See In re Green, 134 U.S. 377, 379, 10 S.Ct. 586, 587, 33 L.Ed. 951; McPherson v. Blacker, 146 U.S. 1, 27-28, 13 S.Ct. 3, 7-8, 36 L.Ed. 869; Ray v. Blair, 343 U.S. 214, 72 S.Ct. 654, 96 L.Ed. 894; Oregon v. Mitchell, 400 U.S. 112, 291, 91 S.Ct. 260, 347, 27 L.Ed.2d 272 (opinion of STEWART, J., joined by BURGER, C.J., and BLACKMUN, J.); see also Cousins v. Wigoda, 419 U.S. 477, 495-496, 95 S.Ct. 541, 551-552 (REHNQUIST, J., concurring in result). Any connection between the process of selecting electors and the means by which political party members in a State associate to elect delegates to party nominating conventions is so remote and tenuous as to be wholly without constitutional significance. In Cousins, despite similar arguments by Illinois, all nine Justices agreed that a State could not constitutionally compel a national political convention to seat delegates against its will. See id., at 488, 95 S.Ct., at 547, id., at 492, 95 S.Ct., at 550 (REHNQUIST, J., concurring in result); id., at 496, 95 S.Ct., at 552 (POWELL, J., concurring in part and dissenting in part).
32
Because the actual selection of delegates is within the control of persons who publicly proclaim their allegiance to the Democratic Party, the Wisconsin Supreme Court apparently deduced that the effects of the open primary on the nominating process were minimal. But the court ignored the fact—the critical fact in the case—that under Wisconsin law state delegates are bound to cast their votes at the National Convention in accord with the open primary outcomes.
1
The delegates selected must be approved by the candidate they are to represent, Wis.Stat. § 8.12(3)(b) (1977), and must pledge that they are affiliated with the candidate's party and will support their candidate until he or she fails to receive at least one-third of the votes authorized to be cast at the Convention, § 8.12(3)(c).
2
It is not fully accurate to say, as the Court does, that the "election laws of Wisconsin allow non-Democrats—including members of other parties and independents—to vote in the Democratic primary." Ante, at 110-111. The Wisconsin statute states that "[i]n each year in which electors for president and vice president are to be elected, the voters of this state shall at the spring election be given an opportunity to express their preference for the person to be the presidential candidate of their party." Wis.Stat. § 8.12(1) (1977) (emphasis added). Thus, the act of voting in the Democratic primary fairly can be described as an act of affiliation with the Democratic Party. The real issue in this case is whether the Party has the right to decide that only publicly affiliated voters may participate.
The situation might be different in those States with "blanket" primaries—i. e., those where voters are allowed to participate in the primaries of more than one party on a single occasion, selecting the primary they wish to vote in with respect to each individual elective office. E. g., Wash.Rev.Code § 29.18.200 (1976). Cf. 93 Wis.2d 473, 504, 287 N.W.2d 519, 532 (1980) ("[T]he legislature has taken steps to encourage voters to participate in the primary of their party and to discourage a voter of one party from being tempted to vote in the primary of another party. Limiting voters to only one party's ballot discourages voters from voting on a ballot of a party other than their own, because in order to do so they would have to sacrifice their opportunity to participate in their own party's selection process").
3
Compare NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462-463, 78 S.Ct. 1163, 1171-1172, 2 L.Ed.2d 1488 (1958), where the Court was careful to assess the effect of a membership disclosure requirement on associational freedoms in light of the particular nature of the organization involved and the likely responses of those opposed to its aims.
4
See R. Horn, Groups and the Constitution 103-104 (1956); A. Campbell, P. Converse, W. Miller, & D. Stokes, The American Voter 183-187, 543 (1960); Developments in the Law: Elections, 88 Harv.L.Rev. 1111, 1166 (1975). The Charter of the National Democratic Party states that it is "open to all who desire to support the party and . . . be known as Democrats." Art. Ten, § 1.
This perception need not be taken as a criticism of the American party structure. The major parties have played a key role in forming coalitions and creating consensus on national issues. "Broad-based political parties supply an essential coherence and flexibility to the American political scene. They serve as coalitions of different interests that combine to seek national goals." Branti v. Finkel, 445 U.S. 507, 532, 100 S.Ct. 1287, 1302, 63 L.Ed.2d 574 (1980) (POWELL, J., dissenting). As Professor Ranney has written:
"[E]ach party has sought winning coalitions by attempting accommodations among competing interests it hopes will appeal to more contributors and voters than will the rival accommodations offered by the opposition party. This strategy, it is conceded, has resulted in vague, ambiguous, and overlapping party programs and in elections that offer the voters choices between personalities and, at most, general programmatic tendencies, certainly not unequivocal choices between sharply different programs. But this . . . is not a vice but a virtue, for it has enabled Americans through all but one era of their history to manage their differences with relatively little violence and to preserve the world's oldest constitutional democratic regime." A. Ranney, Curing the Mischiefs of Faction 201 (1975).
5
See Comment, The Constitutionality of Non-Member Voting in Political Party Primary Elections, 14 Willamette L. J. 259, 290 (1978) ("Independents and members of other parties who seek to participate in a party primary will do so precisely because they identify with the community of interest, if indeed one exists. Their very motive for participating in the primary would be to associate with a party presenting 'candidates and issues more responsive to their immediate concerns' "), quoting Rosario v. Rockefeller, 410 U.S. 752, 769, 93 S.Ct. 1245, 1255, 36 L.Ed.2d 1 (1973) (POWELL, J., dissenting).
6
The unrepresentative nature of the delegate selections produced by caucuses is suggested by differences between the results of caucuses and nonbinding primaries held in the same State. See n. 11, infra.
7
E. g., Tenn.Code Ann. § 2-7-115(b)(2) (1979). See Developments in the Law, supra n. 4, at 1164.
8
As one scholar has stated:
"The distinctions between open and closed primaries are easy to exaggerate. Too simple a distinction ignores the range of nuances and varieties within the closed primary states, which after all do account for 82 percent of the states. Take the case of Illinois. Voters do not register as members of a party; at the polling place they simply state their party preference and are given the ballot of that party, no questions asked. Because Illinois voters must disclose a party preference before entering the voting booth, their primary is generally considered 'closed.' One would be hard put, however, to argue that it is in operation much different from an open primary." F. Sorauf, Party Politics in America 206 (4th ed. 1980) (hereinafter Sorauf).
9
Of course, the National Party could decide that it no longer wishes to be a relatively nonideological party, but it has not done so. Such a change might call into question the institutionalized status achieved by the two major parties in state and federal law. It cannot be denied that these parties play a central role in the electoral process in this country, to a degree that has led this Court on occasion to impose constitutional limitations on party activities. See Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944); Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953). Arguably, the special status of the major parties is an additional factor favoring state regulation of the electoral process even in the face of a claim by such a party that this regulation has interfered with its First Amendment rights.
10
See, e. g., Sorauf 204 ("it was an article of faith among [the Progressives] that to cure the ills of democracy one needed only to prescribe larger doses of democracy").
11
Any argument that a nonbinding primary would be sufficient to allow individual voters a voice in the nomination process is belied by the fact that such a primary often will be ignored in later, nonprimary delegate-selection processes. In 1980, for example, Vermont's nonbinding open primary produced a lopsided victory, 74.3% to 25.7%, for President Carter over Senator Kennedy. 38 Cong. Q. Weekly Rep. 647 (1980). Party caucuses then produced a state delegation to the Democratic Convention that favored Kennedy over Carter by 7 to 5. Id., at 1472.
12
"Raiding" refers to primary voting by members of another party who are seeking to encourage their opponents to select a less desirable or strong candidate. It does not appear to be a problem in Wisconsin. See 93 Wis.2d, at 506, 287 N.W.2d, at 533 ("The petitioner and respondents agree that raiding is not a significant problem and that neither the Wisconsin open primary nor the declaration required by Rule 2A prevents 'raiding' ").
13
A related concern is the prevention of undue influence by a particular political organization or "machine." The Progressives who promoted the idea of a primary election perceived a need to combat political professionals who controlled access to governmental power. See A. Lovejoy, La Follette and the Establishment of the Direct Primary in Wisconsin 7-8 (1941) ("avowed purpose" was "the elimination of the boss from the American political scene"); id., at 97 ("Because of their faith in the American people, the Progressives sought to cure the ills of democracy with more democracy. . . . For the first time the middleman was eliminated between the people and their representatives"); Sorauf 203-204. The open primary carries this process one step further by eliminating some potential pressures from political organizations on voters to affiliate with a particular party. Although one well may question the wisdom of a state law that undermines the influence of party professionals and may tend to weaken parties themselves, the state interests involved are neither illegitimate nor insubstantial. As noted supra, at 133, the Democratic Party of Wisconsin has filed a brief in support of the validity of the Wisconsin plan.
14
A more difficult question in this case is whether Wisconsin can satisfy the second component of the "compelling interest
test"—whether it can show that it has no "less drastic way of satisfying its legitimate interests." Kusper v. Pontikes, 414 U.S. 51, 59, 94 S.Ct. 303, 308, 38 L.Ed.2d 260 (1973). The answer to this question depends in many cases on how the state interest is conceived. Here, a state interest in protecting voters from the possible coercive effects of public party affiliation cannot be satisfied by any law except one that allows private party affiliation. On the other hand, if the state interest is described more generally, in terms of increasing voter freedom or participation, there may well be less "drastic" alternatives available to Wisconsin. Because of my conclusion that there is no significant burden on the associational freedoms of appellant National Party in this case, and because the Court's analysis does not reach this question, I express no view on whether the State has shown a sufficient interest in this particular method of regulating the electoral process to satisfy a less-drastic-means inquiry.
15
The Court concedes that the States have a substantial interest in regulating primary elections. Ante, at 124, n. 28, 126. The power of the States in this area derives from the specific constitutional grant of authority to the States to "appoint, in such Manner as the Legislature thereof may direct" Presidential electors, U.S.Const., Art. II, § 1, cl. 2, as well as from the more general regulatory powers of the States. See Cousins v. Wigoda, 419 U.S. 477, 495-496, 95 S.Ct. 541, 551-552, 42 L.Ed.2d 595 (1975) (Rehnquist, J., concurring in result).
| 23
|
450 U.S. 91
101 S.Ct. 999
67 L.Ed.2d 69
Charles W. STEADMAN, Petitioner,v.SECURITIES AND EXCHANGE COMMISSION.
No. 79-1266.
Argued Dec. 3, 1980.
Decided Feb. 25, 1981.
Rehearing Denied April 20, 1981.
See 451 U.S. 933, 101 S.Ct. 2008.
Syllabus
After an on-the-record hearing before an Administrative Law Judge and review by the Securities and Exchange Commission (SEC) in which the preponderance-of-the-evidence standard of proof was employed, the SEC held that petitioner had violated various antifraud provisions of the federal securities laws, and sanctions were imposed. Petitioner sought review in the Court of Appeals on the alleged ground, inter alia, that the SEC's use of the preponderance-of-the-evidence, rather than the clear-and-convincing, standard of proof in determining whether he had violated the securities laws, was improper. The Court of Appeals rejected the argument.
Held:
1. In adjudicatory proceedings before the SEC, § 7(c) of the Administrative Procedure Act applies. It provides in pertinent part that a sanction may not be imposed by an administrative agency except on consideration of the whole record or parts thereof cited by a party and supported by and "in accordance with the reliable, probative, and substantial evidence." Pp. 95-97.
2. The SEC properly used the preponderance-of-the-evidence standard of proof in determining whether the antifraud provisions of the federal securities laws had been violated. Pp. 97-104.
(a) Section 7(c)'s language implies the enactment of a standard of proof. By allowing sanctions to be imposed only when they are "in accordance with . . . substantial evidence," Congress implied that a sanction must rest on a minimum quantity of evidence. And the phrase "in accordance with" lends further support to a construction of § 7(c) as establishing a standard of proof, suggesting that the adjudicatory agency must weigh the evidence and decide, based on the weight of the evidence, whether a disciplinary order should be issued. Pp. 98-100.
(b) While § 7(c)'s language is somewhat opaque as to the precise standard of proof to be used, the legislative history clearly reveals that Congress intended to adopt a preponderance-of-the-evidence standard. Pp. 100-102.
(c) Such intent is buttressed by the SEC's longstanding practice of imposing sanctions according to the preponderance of the evidence. Pp. 103-104.
5 Cir., 603 F.2d 1126, affirmed.
Peter J. Nickles, Washington, D. C., for petitioner.
Ralph C. Ferrara, Washington, D. C., for respondent.
Justice BRENNAN delivered the opinion of the Court.
1
In administrative proceedings, the Securities and Exchange Commission applies a preponderance-of-the-evidence standard of proof in determining whether the antifraud provisions of the federal securities laws have been violated. The question presented is whether such violations must be proved by clear and convincing evidence rather than by a preponderance of the evidence.
2
* In June 1971, the Commission initiated a disciplinary proceeding against petitioner and certain of his wholly owned companies. The proceeding against petitioner was brought pursuant to § 9(b) of the Investment Company Act of 19401 and § 203(f) of the Investment Advisers Act of 1940.2 The Commission alleged that petitioner had violated numerous provisions of the federal securities laws in his management of several mutual funds registered under the Investment Company Act.
3
After a lengthy evidentiary hearing before an Administrative Law Judge and review by the Commission in which the preponderance-of-the-evidence standard was employed,3 theCommission held that between December 1965 and June 1972, petitioner had violated antifraud,4 reporting,5 conflict of interest,6 and proxy7 provisions of the federal securities laws. Accordingly, it entered an order permanently barring petitioner from associating with any investment adviser or affiliating with any registered investment company, and suspending him for one year from associating with any broker or dealer in securities.8
4
Petitioner sought review of the Commission's order in theUnited States Court of Appeals for the Fifth Circuit on a number of grounds, only one of which is relevant for our purposes. Petitioner challenged the Commission's use of the preponderance-of-the-evidence standard of proof in determining whether he had violated antifraud provisions of the securities laws. He contended that, because of the potentially severe sanctions that the Commission was empowered to impose and because of the circumstantial and inferential nature of the evidence that might be used to prove intent to defraud, the Commission was required to weigh the evidence against a clear-and-convincing standard of proof. The Court of Appeals rejected petitioner's argument, holding that in a disciplinary proceeding before the Commission violations of the antifraud provisions of the securities laws may be established by a preponderance of the evidence. 603 F.2d 1126, 1143 (1979). See n. 8, supra. Because this was contrary to the position taken by the United States Court of Appeals for the District of Columbia Circuit, see Whitney v. SEC, 196 U.S.App.D.C. 12, 604 F.2d 676 (1979); Collins Securities Corp. v. SEC, 183 U.S.App.D.C. 301, 562 F.2d 820 (1977), we granted certiorari to resolve the conflict. 446 U.S. 917, 100 S.Ct. 1849, 64 L.Ed.2d 271 (1980). We affirm.
II
5
Where Congress has not prescribed the degree of proof which must be adduced by the proponent of a rule or order to carry its burden of persuasion in an administrative proceeding, this Court has felt at liberty to prescribe the standard, for "[i]t is the kind of question which has traditionally been left to the judiciary to resolve." Woodby v. INS, 385 U.S. 276, 284, 87 S.Ct. 483, 487, 17 L.Ed.2d 362 (1966). However, where Congress has spoken, we have deferred to "the traditional powers of Congress to prescribe rules of evidence and standards of proof in the federal courts"9 absent countervailing constitutional constraints. Vance v. Terrazas, 444 U.S. 252, 265, 100 S.Ct. 540, 548, 62 L.Ed.2d 540 (1980). For Commission disciplinary proceedings initiated pursuant to 15 U.S.C. § 80a-9(b) and § 80b-3(f), we conclude that Congress has spoken, and has said that the preponderance-of-the-evidence standard should be applied.10
6
The securities laws provide for judicial review of Commission disciplinary proceedings in the federal courts of appeals11 and specify the scope of such review.12 Because they do not indicate which standard of proof governs Commission adjudications, however, we turn to § 5 of the Administrative Procedure Act (APA), 5 U.S.C. § 554, which "applies . . . in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing," except in instances not relevant here.13 Section 5(b), 5 U.S.C. § 554(c)(2), makes the provisions of § 7, 5 U.S.C. § 556, applicable to adjudicatory proceedings.14 The answer to the question presented in this case turns therefore on the proper construction of § 7.15
7
The search for congressional intent begins with the language of the statute. Andrus v. Allard, 444 U.S. 51, 56, 100 S.Ct. 318, 322, 62 L.Ed.2d 210 (1979); Reiter v. Sonotone Corp., 442 U.S. 330, 337, 99 S.Ct. 2326, 2330, 60 L.Ed.2d 931 (1979); 62 Cases of Jam v. United States, 340 U.S. 593, 596, 71 S.Ct. 515, 518, 95 L.Ed. 566 (1951). Section 7(c), 5 U.S.C. § 556(d), states in pertinent part:
8
"Except as otherwise provided by statute, the proponent of a rule or order has the burden of proof. Any oral or documentary evidence may be received, but the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence. A sanction may not be imposed or rule or order issued except on consideration of the whole record or those parts thereof cited by a party and supported by and in accordance with the reliable, probative, and substantial evidence." (Emphasis added.)
9
The language of the statute itself implies the enactment of a standard of proof. By allowing sanctions to be imposed only when they are "in accordance with . . . substantial evidence," Congress implied that a sanction must rest on a minimum quantity of evidence. The word "substantial" denotes quantity.16 The phrase "in accordance with . . . substantial evidence" thus requires that a decision be based on a certain quantity of evidence. Petitioner's contention that the phrase "reliable, probative, and substantial evidence" sets merely a standard of quality of evidence is, therefore, unpersuasive.17
10
The phrase "in accordance with" lends further support to a construction of § 7(c) as establishing a standard of proof. Unlike § 10(e), the APA's explicit "Scope of review" provision that declares that agency action shall be held unlawfulif "unsupported by substantial evidence,"18 § 7(c) provides that an agency may issue an order only if that order is "supported by and in accordance with . . . substantial evidence" (emphasis added). The additional words "in accordance with"19 suggest that the adjudicating agency must weigh the evidence and decide, based on the weight of the evidence, whether a disciplinary order should be issued. The language of § 7(c), therefore, requires that the agency decision must be "in accordance with" the weight of the evidence, not simply supported by enough evidence " 'to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.' " Consolo v. FMC, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966), quoting NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 505, 83 L.Ed. 660 (1939). Obviously, weighing evidence has relevance only if the evidence on each side is to be measured against a standard of proof which allocates the risk of error. See Addington v. Texas, 441 U.S. 418, 423, 99 S.Ct. 1804, 1808, 60 L.Ed.2d 323 (1979). Section 10(e), by contrast, does not permit the reviewing court to weigh the evidence, but only to determine that there is in the record " 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,' " Consolo v. FMC, supra, at 620, 86 S.Ct., at 1026 quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938). It is not surprising, therefore, in view of the entirely different purposes of § 7(c) and § 10(e), that Congress intended the words "substantial evidence" to have different meanings in context. Thus, petitioner's argument that § 7(c) merely establishes the scope of judicial review of agency orders is unavailing.20
11
While the language of § 7(c) suggests, therefore, that Congress intended the statute to establish a standard of proof, the language of the statute is somewhat opaque concerning the precise standard of proof to be used. The legislative history, however, clearly reveals the Congress' intent. The original Senate version of § 7(c) provided that "no sanction shall be imposed . . . except as supported by relevant, reliable, and probative evidence." S. 7, 79th Cong., 1st Sess. (1945). After the Senate passed this version, the House passed the language of the statute as it reads today, and the Senate accepted theamendment. Any doubt as to the intent of Congress is removed by the House Report, which expressly adopted a preponderance-of-the-evidence standard:
12
"[W]here a party having the burden of proceeding has come forward with a prima facie and substantial case, he will prevail unless his evidence is discredited or rebutted. In any case the agency must decide 'in accordance with the evidence.' Where there is evidence pro and con, the agency must weigh it and decide in accordance with the preponderance. In short, these provisions require a conscientious and rational judgment on the whole record in accordance with the proofs adduced." H.R.Rep.No. 1980, 79th Cong., 2d Sess., 37 (1946) (emphasis added).21
13
Nor is there any suggestion in the legislative history that a standard of proof higher than a preponderance of the evidence was ever contemplated, much less intended. Congress was primarily concerned with the elimination of agency decisionmaking premised on evidence which was of poor quality—irrelevant, immaterial, unreliable, and nonprobative—and of insufficient quantity—less than a preponderance. See id., at 36-37 and 45; S.Doc.No. 248, 79th Cong., 2d Sess., 320-322 and 376-378 (1946); n. 21, supra.
14
The language and legislative history of § 7(c) lead us to conclude, therefore, that § 7(c) was intended to establish a standard of proof and that the standard adopted is the traditional preponderance-of-the-evidence standard.22
III
15
Our view of congressional intent is buttressed by the Commission's longstanding practice of imposing sanctions according to the preponderance of the evidence. As early as 1938, the Commission rejected the argument that in a proceeding to determine whether to suspend, expel, or otherwise sanction a brokerage firm and its principals for, inter alia, manipulation of security prices in violation of § 9 of the Securities Exchange Act of 1934, 15 U.S.C. § 78i, a standard of proof greater than the preponderance-of-the-evidence standard was required. In re White, 3 S.E.C. 466, 539-540 (1938). Use of the preponderance standard continued after passage of the APA, and persists today. E. g., In re Cea, 44 S.E.C. 8, 25 (1969); In re Pollisky, 43 S.E.C. 458, 459-460 (1967). The Commission's consistent practice, which is in harmony with § 7(c) and its legislative history, is persuasive authority that Congress intended that Commission disciplinary proceedings, subject to § 7 of the APA, be governed by a preponderance-of-the-evidence standard. See Andrus v. Sierra Club, 442 U.S. 347, 358, 99 S.Ct. 2335, 2341, 60 L.Ed.2d 943 (1979); United States v. National Association of Securities Dealers, Inc., 422 U.S. 694, 719, 95 S.Ct. 2427, 2442, 45 L.Ed.2d 486 (1975); Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944).
16
In Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 524, 98 S.Ct. 1197, 1202, 55 L.Ed.2d 460 (1978) we stated that § 4 of the APA, 5 U.S.C. § 553, established the "maximum procedural requirements which Congress was willing to have the courts impose upon agencies in conducting rulemaking procedures." In § 7(c), Congress has similarly expressed its intent that adjudicatory proceedings subject to the APA satisfy the statute where determinations are made according to the preponderance of the evidence. Congress was free to make that choice, Vance v. Terrazas, 444 U.S., at 265-266, 100 S.Ct., at 547-548, and, in the absence of countervailing constitutional considerations, the courts are not free to disturb it.
17
Affirmed.
18
Justice POWELL, with whom Justice STEWART joins, dissenting.
19
The Securities and Exchange Commission (SEC), acting under the antifraud provisions of the Investment Company Act of 1940 and the Investment Advisers Act of 1940, has imposed severe sanctions on petitioner. He has been barred permanently from practicing his profession and also forced to divest himself of an investment at a substantial loss. In making its findings of fraud and imposing these penalties, the SEC applied the "preponderance of the evidence" standard of proof.
20
The Court today sustains the action of the SEC, holdingthat § 7(c) of the Administrative Procedure Act (APA), 5 U.S.C. § 556(d), commands the use of this standard in disciplinary proceedings brought under the securities laws. The Court recognizes, however, ante, at 95-96, that the general provisions of the APA are applicable only when Congress has not intended that a different standard be used in the administration of a specific statute. The critical inquiry thus is the identification of the standard of proof desired by Congress.
21
The SEC acted in this case under § 9(b) of the Investment Company Act of 1940, 15 U.S.C. § 80a-9(b), and § 203(f) of the Investment Advisers Act of 1940, 15 U.S.C. § 80b-3(f). Sanctions imposed under these sections are the functional equivalent of penalties for fraud. At common law, it was plain that allegations of fraud had to be proved by clear and convincing evidence. E. g., Addington v. Texas, 441 U.S. 418, 424, 99 S.Ct. 1804, 1808, 60 L.Ed.2d 323 (1979); Woodby v. INS, 385 U.S. 276, 285, n. 18, 87 S.Ct. 483, 488, n. 18, 17 L.Ed.2d 362 (1966); Weininger v. Metropolitan Fire Insurance Co., 359 Ill. 584, 598, 195 N.E. 420, 426 (1935); Bank of Pocahontas v. Ferimer, 161 Va. 37, 40-41, 170 S.E. 591, 592 (1933); Bowe v. Gage, 127 Wis. 245, 251, 106 N.W. 1074, 1076 (1906). Congress enacted the Investment Company and Investment Advisers Acts against this common-law background. There is no evidence that Congress, when it adopted these Acts, intended to authorize the SEC to abandon the then-applicable standard of proof in fraud adjudications. See Whitney v. SEC, 196 U.S.App.D.C. 12, 604 F.2d 676 (1979); Collins Securities Corp. v. SEC, 183 U.S.App.D.C. 301, 562 F.2d 820 (1977).
22
The APA, upon which the Court relies, did not become law for some seven years after the enactment of the two statutes under which the SEC imposed these penalties. Again, the Court points to no specific evidence that Congress intended the APA to supplant the burden-of-proof rule generally applicable when the securities laws were enacted. Thus, the APA—the general statute applicable only where a specific statute is not—should have no bearing on the proof burden in this case.
23
I imply no opinion on the question whether the evidence supports the SEC's allegations against petitioner. It is clear, however, that the SEC's finding of fraud and its imposition of harsh penalties have resulted in serious stigma and deprivation. Cf. Addington v. Texas, supra.* In the absence of any specific demonstration of Congress' purpose, we should not assume that Congress intended the SEC to apply a lower standard of proof than the prevailing common-law standard for similar allegations. With all respect, it seems to me that the Court's decision today lacks the sensitivity that traditionally has marked our review of the Government's imposition upon citizens of severe penalties and permanent stigma.
1
Section 9(b) of the Investment Company Act of 1940, 15 U.S.C. § 80a-9(b), empowers the Commission, in specified circumstances, "after notice and opportunity for hearing . . . [to] prohibit, conditionally or unconditionally, either permanently or for such period of time as it in its discretion shall deem appropriate in the public interest, any person from serving or acting as an employee, officer, director, member of an advisory board, investment adviser or depositor of, or principal underwriter for, a registered investment company or affiliated person of such investment adviser, depositor, or principal underwriter . . . ."
2
Section 203(f) of the Investment Advisers Act of 1940, 15 U.S.C. § 80b-3(f), empowers the Commission, in specified circumstances, after notice and opportunity for hearing "on the record" to "censure or place limitations on the activities of any person associated or seeking to become associated with an investment adviser, or suspend for a period not exceeding twelve months or bar any such person from being associated with an investment adviser . . . ."
3
Disciplinary proceedings before the Securities and Exchange Commission are governed by the Commission's Rules of Practice, 17 CFR § 201.1 et seq. (1980), which enlarge, in certain respects, protections afforded by the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq. Cf. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 524, 98 S.Ct. 1197, 1202, 55 L.Ed.2d 460 (1978) (as to 5 U.S.C. § 553, "[a]gencies are free to grant additional procedural rights in the exercise of their discretion, but reviewing courts are generally not free to impose them if the agencies have not chosen to grant them"). A respondent in a disciplinary proceeding is entitled to receive timely notice of the charges against him and the questions of fact and law to be determined. 17 CFR § 201.6(a) (1980). He may retain counsel to represent him in connection with the proceeding, § 201.2(b), file an answer to the charges against him and move for a more definite statement of those charges, §§ 201.7(a) and (d), and have a trial-type hearing presided over by an impartial administrative law judge, other duly-appointed officer, or a Commission member, §§ 201.11(b)-(c). The respondent may present oral or documentary evidence, cross-examine adverse witnesses, and object to the admission or exclusion of evidence. § 201.14(a). A respondent may compel production of evidence by subpoena, § 201.14(b), and may obtain witness statements in the possession of the Commission's staff for cross-examination purposes, § 201.11.1. At the conclusion of the hearing, the respondent has the right to submit briefs and proposed findings of fact and conclusions of law. § 201.16(d). The initial decision of the administrative law judge must include findings of fact and conclusions of law, with supporting reasons, on all material issues of fact, law, or discretion presented on the record. § 201.16(a). A respondent may seek review by the Commission, which may affirm, reverse, or modify the initial decision based on its independent review of the record. §§ 201.17(g)(2), 201.21.
4
Section 17(a) of the Securities Act of 1933, 15 U.S.C. § 77q(a); § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and Rule 10b-5 thereunder, 17 CFR § 240.10b-5 (1980); §§ 206(1)-(2) of the Investment Advisers Act of 1940, 15 U.S.C. §§ 80b-6(1)-(2).
5
Section 17(a) of the Securities Exchange Act of 1934, 15 U.S.C. § 78q(a), and Rule 17a-5 thereunder, 17 CFR § 240.17a-5 (1980); §§ 30(a) and 34(b) of the Investment Company Act of 1940, 15 U.S.C. §§ 80a-29(a) and 80a-33(b).
6
Sections 15(a)(1), 17(a), and 17(e) of the Investment Company Act of 1940, 15 U.S.C. §§ 80a-15(a)(1), 80a-17(a), and 80a-17(e).
7
Section 20(a) of the Investment Company Act of 1940, 15 U.S.C. § 80a-20(a).
8
Petitioner was allowed 90 days in which to sell his stock in Steadman Securities Corp. Compliance with the Commission's order has been stayed pending completion of judicial review.
Because the Commission imposed severe sanctions on petitioner, the Court of Appeals remanded to the Commission "to articulate carefully the grounds for its decision, including an explanation of why lesser sanctions will not suffice." 603 F.2d 1126, 1143 (CA5 1979).
9
There is no reason to accord less deference to congressionally prescribed standards of proof and rules of evidence in administrative proceedings than in federal courts. See Woodby v. INS, 385 U.S., at 284, 87 S.Ct., at 487 (ascertaining first that Congress had not legislated a standard of proof for administrative deportation proceedings before determining appropriate standard).
10
Because the task of determining the appropriate standard of proof in the instant case is one of discerning congressional intent, many of petitioner's arguments are simply inapposite. He contends, for example, that as a matter of policy, the potentially severe consequences to a respondent in a Commission proceeding involving allegations of fraud demand that his burden of risk of erroneous factfinding should be reduced by requiring the Commission to prove violations of the antifraud provisions of the securities laws by clear and convincing evidence. This argument overlooks, however, Congress' "traditional powers . . . to prescribe . . . . standards of proof . . . ." Vance v. Terrazas, 444 U.S. 252, 265, 100 S.Ct. 540, 548, 62 L.Ed.2d 540 (1980). It is not for this Court to determine the wisdom of Congress' prescription.
11
Title 15 U.S.C. §§ 77i, 78y, 80a-42, and 80b-13 provide for judicial review of Commission orders in the courts of appeals.
12
Commission findings of fact are conclusive for a reviewing court "if supported by substantial evidence." 15 U.S.C. §§ 78y, 80a-42, and 80b-13; cf. § 77i (Commission findings conclusive "if supported by evidence").
13
This disciplinary proceeding, brought by the Commission pursuant to 15 U.S.C. § 80a-9(b) and § 80b-3(f), is clearly a "case of adjudication" within 5 U.S.C. § 554. See International Telephone & Telegraph Corp. v. Electrical Workers, 419 U.S. 428, 445, 95 S.Ct. 600, 610, 42 L.Ed.2d 558 (1975). Both § 80a-9(b) and § 80b-3(f) also explicitly require an "opportunity for [an agency] hearing." Moreover, the disciplinary proceeding must be conducted "on the record." The phrase "on the record" appears in § 80b-3(f), and while it does not appear in § 80a-9(b), see n. 1, supra, the absence of the specific phrase from § 80a-9(b) does not make the instant proceeding not subject to § 554. See United States v. Florida East Coast R. Co., 410 U.S. 224, 238, 93 S.Ct. 810, 817, 35 L.Ed.2d 223 (1973); United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 757, 92 S.Ct. 1941, 1950, 32 L.Ed.2d 453 (1972); Seacoast Anti-Pollution League v. Costle, 572 F.2d 872, 876 (CA1), cert. denied, 439 U.S. 824, 99 S.Ct. 94, 58 L.Ed.2d 117 (1978). Rather, the "on the record" requirement for § 80a-9(b) is satisfied by the substantive content of the adjudication. Title 15 U.S.C. § 80a-42 provides for judicial review of Commission orders issued pursuant to § 80a-9(b). Substantial-evidence review by the Court of Appeals here required a hearing on the record.
See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971); Seacoast Anti-Pollution League v. Costle, 572 F.2d, at 877. Otherwise effective review by the Court of Appeals would have been frustrated. Ibid. In addition, the substantive violations to be proved pursuant to §§ 80a-9(b)(1)-(3) are virtually identical to the substantive violations stated in §§ 80b-3(e)(1), (4), and (5), which are incorporated by reference into § 80b-3(f). The only substantive difference between § 80b-3(f) and § 80a-9(b) is that the former permits the Commission to impose sanctions on persons affiliated with an investment adviser and the latter on persons affiliated with an investment company. In both statutes, the Commission is required to prove violations of the securities law provisions enumerated, precisely the type of proceeding for which the APA's adjudicatory procedures were intended. See generally 410 U.S., at 246, 93 S.Ct. at 821.
14
Section 5(b), 5 U.S.C. § 554(c)(2), provides that "[t]he agency shall give all interested parties opportunity for . . . hearing and decision on notice and in accordance with sections 556 and 557 of this title."
15
Petitioner makes no claim that the Federal Constitution requires application of a clear-and-convincing-evidence standard. See Tr. of Oral Arg. 10.
16
Webster's Third New International Dictionary (1976) defines "substantial" to mean "considerable in amount."
17
Section 7(c), of course, also sets minimum quality-of-evidence standards. For example, the provision directing agency exclusion of "irrelevant, immaterial, or unduly repetitious evidence" and the further requirement that an agency sanction rest on "reliable" and "probative" evidence mandate that agency decisionmaking be premised on evidence of a certain level of quality. Thus, while the words "reliable" and "probative" may imply quality-of-evidence concerns, the word "substantial" implies quantity of evidence.
18
Section 10(e) of the APA, 5 U.S.C. § 706, is entitled "Scope of review" and provides, in pertinent part, that "[t]he reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute." § 706(2)(E).
19
Section 10(e) expressly refers to § 7. Addition of the words "in accordance with" could not have been inadvertent. See n. 18, supra. This is especially true in light of the House Report's discussion of the relationship between § 7(c) and § 10(e): " 'Substantial evidence' [in § 10(e)] means evidence which on the whole record is clearly substantial, plainly sufficient to support a finding or conclusion under the requirements of section 7(c), and material to the issues." H.R.Rep.No. 1980, 79th Cong., 2d Sess., 45 (1946).
20
It is true that the phrase "substantial evidence" is often used to denote the scope of judicial review. See n. 12, supra. But to conclude that the phrase "substantial evidence" in § 7(c) defines the scope of judicial review would make the "substantial evidence" language of § 10(e) redundant. Moreover, it is implausible to think that the drafters of the APA would place a scope-of-review standard in the middle of a statutory provision designed to govern evidentiary issues in adjudicatory proceedings. Section 7 is entitled "Hearings; presiding employees; powers and duties; burden of proof; evidence; record as basis of decision." It "is made up almost entirely of a specification of the various elements of trial procedure." 2 K. Davis, Administrative Law Treatise § 10:07, p. 332 (2d ed. 1979). More specifically, § 7(c) allocates the burden of proof (placing it on the proponent of a rule or order), provides for a broad rule governing admissibility of evidence, directs an agency to exclude "irrelevant, immaterial, or unduly repetitious evidence," and delineates the evidentiary basis on which a "sanction may . . . be imposed."
Petitioner's argument overlooks the different functions of initial decisionmaking and judicial review of it. See Charlton v. FTC, 177 U.S.App.D.C. 418, 422, 543 F.2d 903, 907 (1976); see generally 4 K. Davis, Administrative Law Treatise §§ 29.01-29.11 (1958). As we recognized in Consolo v. FMC, 383 U.S. 607, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966), the reviewing court is not to weigh the evidence, which Consolo assumed had already been done.
21
Representative Walter of Pennsylvania, author of the House Report and a principal drafter of the legislation, speaking during the floor debate on the day the bill was passed by the House, stated as to the meaning of the phrase "in accordance with . . . substantial evidence," that "the accepted standards of proof, as distinguished from the mere admissibility of evidence, are to govern in administrative proceedings as they do in courts of law and equity." S.Doc.No. 248, 79th Cong., 2d Sess. 365 (1946). This statement suggests that the usual preponderance standard was contemplated. See Sea Island Broadcasting Corp. v. FCC, 200 U.S.App.D.C. 187, 190, 627 F.2d 240, 243 (1980) ("The use of the 'preponderance of evidence' standard is the traditional standard in civil and administrative proceedings. It is the one contemplated by the APA, 5 U.S.C. § 556(d)"), cert. denied, 449 U.S. 834, 101 S.Ct. 65, 66 L.Ed.2d 39 (1980); Collins Securities Corp. v. SEC, 183 U.S.App.D.C. 301, 304, 562 F.2d 820, 823 (1977) ("The traditional standard of proof in a civil or administrative proceeding is the preponderance standard . . ."); 9 J. Wigmore, Evidence § 2498 (3d ed. 1940); cf. Woodby v. INS, 385 U.S., at 288, 87 S.Ct., at 489 (Clark, J., dissenting).
Moreover, during the floor debate, in the context of a discussion of § 10(e), it was noted that the substantial-evidence test became the scope-of-review standard because of a desire to have courts review agency decisionmaking more carefully than under the then-prevalent scintilla-of-evidence test. It is clear from the debate that Congress intended agency decisionmaking to be done according to the preponderance of the evidence:
"Mr. Springer. . . . The gentleman from Iowa . . . has gone rather carefully over the provisions of the bill. I desire to call attention to only one . . . relating to the question of reviewable acts, the review of the proceedings by the judiciary, and the scope of the review. Under the present procedure, in many cases where there is any evidence, even a scintilla of evidence, decisions have been rendered and predicated on that character of evidence before the hearing tribunal.
"Mr. Hancock. Even though contrary to the preponderance of the evidence.
"Mr. Springer. Yes, . . . that has been done in many cases even though it is contrary to the preponderance of the evidence introduced at the hearing." S.Doc.No. 248, supra, at 376.
22
Petitioner's reliance on Woodby v. INS, supra, is misplaced. There the Court required the Immigration and Naturalization Service to establish facts in deportation proceedings by clear, unequivocal, and convincing evidence. The Court adopted this standard of proof because deportation proceedings were not subject to the APA, and the Immigration and Nationality Act (INA) did not prescribe a standard of proof, only the scope of judicial review. The Court reached this conclusion after examining the language, legislative history, and purpose of § 106(a)(4) and § 242(b)(4) of the INA. That both sections contained the words "reasonable, substantial, and probative evidence" has little bearing on the construction of somewhat different language in an entirely different statute. The language, purpose, and legislative history of these sections of the INA differ in material respects from the language, purpose, and legislative history of § 7(c). Section 106(a)(4) was explicitly labeled a judicial review provision. Section 242(b)(4) was also construed by the Court
to be "addressed to reviewing courts," 385 U.S., at 283, 87 S.Ct., at 487, in part because at the time that the provision was adopted, there was no other scope-of-judicial-review provision in the INA, id., at 284, 87 S.Ct., at 487. The APA, by contrast, was passed with an explicit judicial review provision, § 10(e), and with a provision explicitly governing evidentiary matters before the agency, § 7(c). To the extent § 242(b)(4) was viewed by the Court as representing a "yardstick for the administrative factfinder," the Court concluded that the provision was directed at the quality of evidence upon which an order could be based. Id., at 283, 87 S.Ct., at 486. The language of § 242(b)(4) differs from the language of § 7(c), which includes the additional phrase "in accordance with." Moreover, as explained above, the legislative history and purpose of § 7(c) make clear that it was not limited to quality-of-evidence concerns or directed at all at judicial review.
We thus accept Justice Clark's statement in dissent, with which the Court in Woodby did not disagree, that §§ 7(c) and 10(e) of the APA have "traditionally been held satisfied when the agency decides on the preponderance of the evidence." Id., at 289, n. 1, 87 S.Ct., at 489, n. 1. Justice Clark's understanding of § 7(c), as expressed in Woodby, is entitled to particular respect. We have previously noted that the Attorney General's Manual on the Administrative Procedure Act (1947) has been "given some deference by this Court because of the role played by the Department of Justice in drafting the legislation," Vermont Yankee Nuclear Power Corp. v. National Resources Defense Council, Inc., 435 U.S., at 546, 98 S.Ct., at 1213, and Justice Clark was Attorney General both when the APA was passed and when the Manual was published.
*
Petitioner has practiced the profession of investment adviser for many years. He has been forever barred from resuming that profession. Many penalties imposed under our criminal laws such as monetary fines and probation—are far less severe, and yet these can be imposed only under the "beyond a reasonable doubt" standard of the criminal law.
| 78
|
450 U.S. 147
101 S.Ct. 1032
67 L.Ed.2d 132
FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES et al.v.FLORIDA NURSING HOME ASSOCIATION et al.
No. 80-532.
March 2, 1981.
Rehearing Denied April 20, 1981.
See 451 U.S. 933, 101 S.Ct. 2008.
M. Stephen Turner, Culpepper, Beatty & Turner, Tallahassee, Fla., for petitioners.
A. Thomas Mihok, Dempsey & Slaughter, P.A., Orlando, Fla., Shaw & Warner, Miami, Fla., for respondents.
Bill Allain, Atty. Gen., Jim R. Bruce, II, Sp. Asst. Atty. Gen., State of Miss., Jackson, Miss., Francis X. Bellotti, Atty. Gen., Mitchell J. Sikora, Jr., Scott A. Smith, Asst. Attys. Gen., Com. of Mass., Boston, Mass., Warren R. Spannaus, Atty. Gen., William P. Marshall, Asst. Atty. Gen., State of Minn., St. Paul, Minn., Tyrone C. Fahner, Atty. Gen., Springfield, Ill., James C. O'Connell, David A. Schlanger, Sp. Asst. Attys. Gen., State of Ill., Chicago Ill., for petitioners as amici curiae.
PER CURIAM.
1
Petitioners, the Florida Department of Health and Rehabilitative Services and its Secretary, seek review of a decision of the United States Court of Appeals for the Fifth Circuit ordering them to make payments to various nursing homes. These payments represent the amount that Florida was found to have underpaid these nursing homes in the course of its Medicaid reimbursements from July 1, 1976, to October 18, 1977. Because we conclude that the court below misapplied the prevailing standard for finding a waiver of the State's immunity under the Eleventh Amendment, we grant a writ of certiorari and reverse.
2
* In 1972, Congress amended the Medicaid Program to provide that every "skilled nursing facility and intermediate care facility" must be reimbursed by participating States on a "cost related basis." 86 Stat. 1426, 42 U.S.C. § 1396a(a)(13)(E). This amendment was to take effect on July 1, 1976, ibid., and had the effect of altering some reimbursement arrangements based on "flat rates" established by the States. Regulations implementing this change were not promulgated by the Department of Health, Education, and Welfare (HEW) until 1976. As a result, the regulations provided that HEW would not enforce the new "cost related" reimbursement requirement until January 1, 1978. 45 CFR § 250.30(a)(3)(iv) (1976).1
3
In March 1977, respondents, an association of Florida nursing homes and various individual nursing homes in southern Florida, brought suit in federal court against the Secretary of HEW and petitioners. They argued that the delay in enforcement created by the implementing regulations was inconsistent with the statutory directive that cost-related reimbursements begin on July 1, 1976. In addition to prospective relief, they sought retroactive relief in the form of payments by the State of the difference between the reimbursement they had received since July 1, 1976, and the amounts they would have received under a cost-related system. The United States District Court for the Southern District of Florida held the regulations invalid, relying on its previous decision in Golden Isles Convalescent Center, Inc. v. Califano, 442 F.Supp. 201 (1977), aff'd 616 F.2d 1355 (CA5), cert. denied sub nom. Taylor v. Golden Isles Con- valescent Center, Inc., 449 U.S. 872, 101 S.Ct. 562, 66 L.Ed.2d 466 (1980). These two cases were consolidated for consideration of the availability of retroactive relief, and the District Court held that such relief was barred by the Eleventh Amendment.
4
On appeal, the United States Court of Appeals for the Fifth Circuit affirmed the ruling that the regulations were invalid, but reversed the District Court's determination that retroactive relief was barred by the Eleventh Amendment. 616 F.2d 1355 (1980).2 The court acknowledged that retroactive monetary relief against a State in federal court is forbidden by the Eleventh Amendment "if not consented to by the state." Id., at 1362. It found the requisite consent, however, based on two acts of the State. First, Florida law provides that the Department of Health and Rehabilitative Services is a "body corporate" with the capacity to "sue and be sued," Fla.Stat. § 402.34 (1979). 616 F.2d, at 1363. In addition to this general waiver of sovereign immunity, the court found a specific waiver of the Eleventh Amendment's immunity from suit in federal court in an agreement under the Medicaid Program in which the Department agreed to "recognize and abide by all State and Federal Laws, Regulations, and Guidelines applicable to participation in an administration of, the Title XIX Medicaid Program." Ibid. "By contracting with appellants to be bound by all federal laws applicable to the Medicaid program, the state has expressly waived its Eleventh Amendment immunity and consented to suit in federal court regarding any action by providers alleging a breach of these laws." Ibid.
II
5
The analysis in this case is controlled by our decision in Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). There we applied 150 the Eleventh Amendment to retroactive grants of welfare benefits and discussed the proper standard for a waiver of this immunity by a State. On the latter issue we stated that "we will find waiver only where stated 'by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.' " Id., at 673, 94 S.Ct., at 1361, quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 464, 53 L.Ed. 742 (1909). We added that the "mere fact that a State participates in a program through which the Federal Government provides assistance for the operation by the State of a system of public aid is not sufficient to establish consent on the part of the State to be sued in the federal courts." 415 U.S., at 673, 94 S.Ct., at 1361.
6
The holding below, finding a waiver in this case, cannot be reconciled with the principles set out in Edelman. As the Court of Appeals recognized, the State's general waiver of sovereign immunity for the Department of Health and Rehabilitative Services "does not constitute a waiver by the state of its constitutional immunity under the Eleventh Amendment from suit in federal court." 616 F.2d, at 1363. See Smith v. Reeves, 178 U.S. 436, 441, 20 S.Ct. 919, 921, 44 L.Ed. 1140 (1900). And the fact that the Department agreed explicitly to obey federal law in administering the program can hardly be deemed an express waiver of Eleventh Amendment immunity. This agreement merely stated a customary condition for any participation in a federal program by the State, and Edelman already established that neither such participation in itself, nor a concomitant agreement to obey federal law, is sufficient to waive the protection of the Eleventh Amendment.3 415 U.S., at 673-674, 94 S.Ct., at 1360-1361.
7
We therefore reverse the decision below.
8
It is so ordered.
9
Justice BRENNAN, dissenting.
10
I dissent and would affirm the judgment of the Court of Appeals. This suit is brought by Florida citizens against Florida officials. In that circumstance I am of the view, expressed in dissent in Edelman v. Jordan, 415 U.S. 651, 687, 94 S.Ct. 1347, 1367, 39 L.Ed.2d 662 (1974), that Florida "may not invoke the Eleventh Amendment, since that Amendment bars only federal court suits against States by citizens of other States." Justice MARSHALL dissents and would affirm the judgment of the Court of Appeals, substantially for the reasons stated in his dissent in Edelman v. Jordan, 415 U.S. 651, 688, 94 S.Ct. 1347, 1368, 39 L.Ed.2d 662 (1974).
11
Justice BLACKMUN also dissents and would affirm the judgment of the Court of Appeals substantially for the reasons stated in Justice MARSHALL'S dissent in Edelman v. Jordan, 415 U.S. 651, 688, 94 S.Ct. 1347, 1368, 39 L.Ed.2d 662 (1974).
12
Justice STEVENS, concurring.
13
The decision of the Court of Appeals is in square conflict with this Court's holding in Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662. Apparently recognizing this fact, respondents urge the Court to grant certiorari and hear argument on the question whether Edelman should be overruled.1 I find this question less easily answered than do my Brothers, all of whom were Members of the Court when Edelman was decided. Each has voted today consistently with his vote in Edelman itself.
14
The arguments in favor of overruling Edelman are appealing, particularly because I share the opinion of Justice BRENNAN, Justice MARSHALL, and Justice BLACKMUN that Edelman was incorrectly decided.2 I have previously reliedon rather slender grounds for distinguishing Edelman,3 when wiser judges might have forthrightly urged rejection of the precedent.4 And I joined the Court's decision to overrule Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492, insofar as it concerned the financial responsibility of municipal corporations. See Monell v. New York City Dept. of Social Services, 436 U.S. 658, 714, 98 S.Ct. 2018, 2048, 56 L.Ed.2d 611, (STEVENS, J., concurring in part). Moreover, the reflections of some former Members of the Court on the doctrine of stare decisis suggest that they would not have hesitated to overrule a decision that stands as an impediment to providing an adequate remedy for citizens injured by their government.5 Nevertheless, I find greater force in the countervailing arguments.
15
First, I would note that Edelman did not announce a rule of law fundamentally at odds with our current understanding of the scope of constitutionally protected civil rights,6 nor did it rest upon a discredited interpretation of the relevant historical documents.7 Rather, the rule of the Edelman case is of only limited significance and has been a part of our law for only a few years. Its limiting effect on the jurisdiction of federal courts is not so restrictive that Congress may not mitigate its impact by unambiguously conditioning state participation in federal programs on a waiver of the Eleventh Amendment defense. The Edelman rule represents an interpretation of the Eleventh Amendment that had previously been endorsed by some of our finest Circuit Judges;8 it therefore cannot be characterized as unreasonable or egregiously incorrect.9
16
Of even greater importance, however, is my concern about the potential damage to the legal system that may be caused by frequent or sudden reversals of direction that may appear to have been occasioned by nothing more significant than a change in the identity of this Court's personnel.10 Granting that a zigzag is sometimes the best course.11 I am firmly convinced that we have a profound obligation to give recently decided cases the strongest presumption of validity. Thatpresumption is supported by much more than the desire to foster an appearance of certainty and impartiality in the administration of justice, or the interest in facilitating the labors of judges.12 The presumption is an essential thread in the mantle of protection that the law affords the individual. Citizens must have confidence that the rules on which they rely in ordering their affairs—particularly when they are prepared to take issue with those in power in doing so—are rules of law and not merely the opinions of a small group of men who temporarily occupy high office.13 It is the unpopular or beleaguered individual—not the man in power—who has the greatest stake in the integrity of the law.14
17
For me, the adverse consequences of adhering to an arguably erroneous precedent in this case are far less serious than the consequences of further unravelling the doctrine of stare decisis. I therefore join the Court's disposition.
1
In a commentary accompanying the new regulations, the Secretary noted that no States would be able to accumulate needed data in time to meet the statutory deadline of July 1, 1976. For this reason, cost-related reimbursement was not required under the regulations until January 1, 1978, but the States were "encouraged to meet each requirement of the regulations as soon as possible." 41 Fed.Reg. 27305 (1976).
2
The Golden Isles case and this case remained consolidated on appeal. The decision below, however, produced two separate petitions for certiorari. The first, Taylor v. Golden Isles Convalescent Center, Inc., cert. denied, 449 U.S. 872, 101 S.Ct. 562, 66 L.Ed.2d 466 (1980), involved jurisdictional and venue issues. The present petition relates only to the availability of retroactive relief.
3
Petitioners argue that under Florida law a waiver of immunity can only be accomplished by a state statute. See Fla.Const., Art. 10, § 13. No such waiver is present here.
In addition, it is worth noting that in October 1976 Congress repealed a provision requiring States participating in Medicaid to waive their Eleventh Amendment immunity. Pub.L. 94-552, 90 Stat. 2540. This repeal was made retroactive to January 1, 1976.
1
Respondents initially argued that the Court of Appeals' decision was distinguishable from Edelman and that certiorari therefore should be denied. However, after the Solicitor General, on behalf of the Secretary of Health and Human Services, recommended that the Court grant certiorari and summarily reverse the lower court's decision, respondents requested that the Court instead grant certiorari and consider overruling Edelman. See Supplemental Brief for Respondent Nursing Homes 4-13.
2
In 1972, I sat as a member of a three-judge District Court that rejected essentially the same Eleventh Amendment argument that the Court accepted in Edelman. See Mothers and Childrens Rights Organization v. Sterrett, No. 70 F. 138 (ND Ind., Apr. 14, 1972) summarily aff'd, 409 U.S. 809, 93 S.Ct. 68, 34 L.Ed.2d 70; cited in Edelman, 415 U.S., at 670, n.13, 94 S.Ct., at 1359, n.13. I am therefore quite certain that I would have joined Justice MARSHALL'S dissent if I had been a Member of the Court when Edelman was decided.
3
See Fitzpatrick v. Bitzer, 427 U.S. 445, 458-460, 96 S.Ct. 2666, 2672-2673, 49 L.Ed.2d 614 (STEVENS, J., concurring).
4
In his 1949 Cardozo lecture, Justice Douglas stated:
"The idea that any body of law, particularly public law, should appear to stay put and not be in flux is an interesting phenomenon that Frank has explored in Law and the Modern Mind. He points out how it is—in law and in other fields too—that men continue to chant of the immutability of a rule in order to 'cover up the transformation, to deny the reality of change, to conceal the truth of adaptation behind a verbal disguise of fixity and universality.' But the more blunt, open, and direct course is truer to democratic traditions. It reflects the candor of Cardozo. The principle of full disclosure has as much place in government as it does in the market place. A judiciary that discloses what it is doing and why it does it will breed understanding. And confidence based on understanding is more enduring than confidence based on awe." W. Douglas, Stare Decisis 30-31 (1949) (footnote omitted).
5
See W. Douglas, supra; A. Goldberg, Equal Justice: The Warren Era of the Supreme Court 67-97 (1971).
6
Cf. Brown v. Board of Education, 347 U.S. 483, 489-495, 74 S.Ct. 686, 688-692, 98 L.Ed.2d 873, overruling Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256.
7
Cf. Erie R. Co. v. Tompkins, 304 U.S. 64, 71-73, 58 S.Ct. 817, 818-820, 82 L.Ed. 1188, overruling Swift v. Tyson 16 Pet. 1, 10 L.Ed. 865.
8
The opinion in Rothstein v. Wyman, 467 F.2d 226, 228 (CA2 1972), which adopted the interpretation of the Eleventh Amendment subsequently approved by this Court in Edelman, was written by Judge McGowan (sitting by designation) and was joined by Chief Judge Friendly and Judge Timbers. See 415 U.S., at 664-665, 666, n. 11, 94 S.Ct., at 1356, 1357, n. 11.
9
The principal justifications for refusing to apply the doctrine of stare decisis in Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611; see id., at 695-701, 98 S.Ct., at 2038-2041, are therefore not available in this case.
10
Scholars have suggested that the identity of the Court's personnel was a factor underlying the decision in National League of Cities v. Usery, 426 U.S. 833, 853-855, 96 S.Ct. 2465, 2475-2476, 49 L.Ed.2d 245, to overrule Maryland v. Wirtz, 392 U.S. 183, 88 S.Ct. 2017, 20 L.Ed.2d 1020. See, e. g., J. Nowak, J. Young & R. Rotunda, Constitutional Law 159-163 (1978).
11
See, e. g., West Virginia Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628, overruling Minersville School District v. Gobitis, 310 U.S. 586, 60 S.Ct. 1010, 84 L.Ed. 1375.
12
These concerns are not, however, insubstantial:
"[T]he labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one's own course of bricks on the secure foundation of the courses laid by others who had gone before him." B. Cardozo, The Nature of the Judicial Process 149 (1921).
13
This, of course, is not a novel suggestion. As the first Justice White noted in his dissent in Pollack v. Farmers' Loan & Trust Co., 157 U.S. 429, 652, 15 S.Ct. 673, 716, 39 L.Ed. 759:
"The fundamental conception of a judicial body is that of one hedged about by precedents which are binding on the court without regard to the personality of its members. Break down this belief in judicial continuity, and let it be felt that on great constitutional questions this court is to depart from the settled conclusions of its predecessors, and to determine them all according to the mere opinion of those who temporarily fill its bench, and our Constitution will, in my judgment, be bereft of value and become a most dangerous instrument to the rights and liberties of the people."
14
THE CHIEF JUSTICE recently reminded us of this fact by quoting a statement ascribed to Sir Thomas More:
"This country's planted thick with laws from coast to coast Man's laws, not God's-and if you cut them down . . . d'you really think you could stand upright in the winds that would blow then? . . . Yes, I'd give the Devil benefit of law, for my own safety's sake." See TVA v. Hill, 437 U.S. 153, 195, 98 S.Ct. 2279, 2302, 57 L.Ed.2d 117, quoting R. Bolt, A Man for All Seasons, Act I, p. 147 (Three Plays, Heinemann ed. 1967).
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450 U.S. 139
101 S.Ct. 1027
67 L.Ed.2d 123
IMMIGRATION AND NATURALIZATION SERVICEv.JONG HA WANG and Kyung Hwa Wang.
No. 80-485.
March 2, 1981.
Rehearing Denied April 27, 1981.
See 451 U.S. 964, 101 S.Ct. 2037.
PER CURIAM.
1
Section 244 of the Immigration and Nationality Act (Act), 66 Stat. 214, as amended, 8 U.S.C. § 1254(a)(1), provides that the Attorney General in his discretion may suspenddeportation and adjust the status of an otherwise deportable alien who (1) has been physically present in the United States for not less than seven years; (2) is a person of good moral character; and (3) is "a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence."1 The Attorney General is authorized to delegate his powers under the Act, 8 U.S.C. § 1103, and his authority under § 244 has been delegated by regulation to specified authorities in the Immigration and Naturalization Service. 8 CFR § 2.1 (1979).2
2
The § 244 issue usually arises in an alien's deportation hearing. It can arise, however, as it did in this case, on a motion to reopen after deportation has been duly ordered. The Act itself does not expressly provide for a motion to reopen, but regulations promulgated under the Act allow sucha procedure.3 The regulations also provide that the motion to reopen shall "state the new fact to be proved at the reopened hearing and shall be supported by affidavits or other evidentiary material." 8 CFR § 3.8(a) (1979). Motions to reopen are thus permitted in those cases in which the events or circumstances occurring after the order of deportation would satisfy the extreme-hardship standard of § 244. Such motions will not be granted "when a prima facie case of eligibility for the relief sought has not been established." Matter of Lam, 14 I. & N.Dec. 98 (BIA 1972). See Matter of Sipus, 14 I. & N.Dec. 229 (BIA 1972).
3
Respondents, husband and wife, are natives and citizens of Korea who first entered the United States in January 1970 as nonimmigrant treaty traders. They were authorized to remain until January 10, 1972, but they remained beyond that date without permission and were found deportable after a hearing in November 1974. They were granted the privilege of voluntarily departing by February 1, 1975. They did not do so. Instead, they applied for adjustment of status under § 245 of the Act, 8 U.S.C. § 1255, but were found ineligible for this relief after a hearing on July 15, 1975.4 Their appeal from this ruling was dismissed by the Board ofImmigration Appeals in October 1977. Respondents then filed a second motion to reopen their deportation proceedings in December 1977, this time claiming suspension under § 244 of the Act. Respondents by then had satisfied the 7-year-continuous-physical-presence requirement of that section. The motion alleged that deportation would result in extreme hardship to respondents' two American-born children because neither child spoke Korean and would thus lose "educational opportunities" if forced to leave this country. Respondents also claimed economic hardship to themselves and their children resulting from the forced liquidation of their assets at a possible loss. None of the allegations was sworn or otherwise supported by evidentiary materials, but it appeared that all of respondents' close relatives, aside from their children, resided in Korea and that respondents had purchased a dry-cleaning business in August 1977, some three years after they had been found deportable. The business was valued at $75,000 and provided an income of $650 per week. Respondents also owned a home purchased in 1974 and valued at $60,000. They had $24,000 in a savings account and some $20,000 in miscellaneous assets. Liabilities were approximately $81,000.
4
The Board of Immigration Appeals denied respondents' motion to reopen without a hearing, concluding that they had failed to demonstrate a prima facie case that deportation would result in extreme hardship to either themselves or their children so as to entitle them to discretionary relief under the Act. The Board noted that a mere showing of economic detriment is not sufficient to establish extreme hardship under the Act. See Pelaez v. INS, 513 F.2d 303 (CA5), cert. denied, 423 U.S. 892, 96 S.Ct. 190, 36 L.Ed.2d 124 (1975). This was particularly true since respondents had "significant financial resources and there [was] nothing to suggest that the college-educated male respondent could not find suitable employment in Korea." With respect to the claims involving the children, the Board ruled that the alleged loss of educational opportunities to theyoung children of relatively affluent, educated Korean parents did not constitute extreme hardship within the meaning of § 244.
5
The Court of Appeals for the Ninth Circuit, sitting en banc, reversed. 622 F.2d 1341 (1980). Contrary to the Board's holding, the Court of Appeals found that respondents had alleged a sufficient prima facie case of extreme hardship to entitle them to a hearing. The court reasoned that the statute should be liberally construed to effectuate its ameliorative purpose. The combined effect of the allegation of harm to the minor children, which the court thought was hard to discern without a hearing, and the impact on respondents' economic interests was sufficient to constitute a prima facie case requiring a hearing where the Board would "consider the total potential effect of deportation on the alien and his family." Id., at 1349.
6
The Court of Appeals erred in two respects. First, the court ignored the regulation which requires the alien seeking suspension to allege and support by affidavit or other evidentiary material the particular facts claimed to constitute extreme hardship. Here, the allegations of hardship were in the main conclusory and unsupported by affidavit. By requiring a hearing on such a motion, the Court of Appeals circumvented this aspect of the regulation, which was obviously designed to permit the Board to select for hearing only those motions reliably indicating the specific recent events that would render deportation a matter of extreme hardship for the alien or his children.5
7
Secondly, and more fundamentally, the Court of Appeals improvidently encroached on the authority which the Act confers on the Attorney General and his delegates. The crucial question in this case is what constitutes "extreme hardship." These words are not self-explanatory, and reasonable men could easily differ as to their construction. But the Act commits their definition in the first instance to the Attorney General and his delegates, and their construction and application of this standard should not be overturned by a reviewing court simply because it may prefer another interpretation of the statute. Here, the Board considered the facts alleged and found that neither respondents nor their children would suffer extreme hardship. The Board considered it well settled that a mere showing of economic detriment was insufficient to satisfy the requirements of § 244 and in any event noted that respondents had significant financial resources while finding nothing to suggest that Mr. Wang could not find suitable employment in Korea. It also followed that respondents' two children would not suffer serious economic deprivation if they returned to Korea. Finally, the Board could not believe that the two "young children ofaffluent, educated parents" would be subject to such educational deprivations in Korea as to amount to extreme hardship. In making these determinations, the Board was acting within its authority. As we see it, nothing in the allegations indicated that this is a particularly unusual case requiring the Board to reopen the deportation proceedings.
8
The Court of Appeals nevertheless ruled that the hardship requirement of § 244 is satisfied if an alien produces sufficient evidence to suggest that the "hardship from deportation would be different and more severe than that suffered by the ordinary alien who is deported." 622 F.2d, at 1346. Also, as Judge Goodwin observed in dissent, the majority of the Court of Appeals also strongly indicated that respondents should prevail under such an understanding of the statute. Id., at 1352. In taking this course, the Court of Appeals extended its "writ beyond its proper scope and deprives the Attorney General of a substantial portion of the discretion which § 244(a) vests in him." Id., at 1351 (Sneed, J., dissenting).
9
The Attorney General and his delegates have the authority to construe "extreme hardship" narrowly should they deem it wise to do so. Such a narrow interpretation is consistent with the "extreme hardship" language, which itself indicates the exceptional nature of the suspension remedy. Moreover, the Government has a legitimate interest in creating official procedures for handling motions to reopen deportation proceedings so as readily to identify those cases raising new and meritorious considerations. Under the standard applied by the court below, many aliens could obtain a hearing based upon quite minimal showings. As stated in dissent below, "by using the majority opinion as a blueprint, any foreign visitor who has fertility, money, and the ability to stay out of trouble with the police for seven years can change his status from that of tourist or student to that of permanent resident without the inconvenience of immigration quotas. This strategy is not fair to those waiting for a quota." Id., at 1352 (Goodwin, J., dissenting). Judge Goodwin further observed that the relaxed standard of the majority opinion "is likely to shift the administration of hardship deportation cases from the Immigration and Naturalization Service to this court." Id., at 1351.
10
We are convinced that the Board did not exceed its authority and that the Court of Appeals erred in ordering that the case be reopened. Accordingly, the petition for certiorari is granted, and the judgment of the Court of Appeals is reversed.
11
So ordered.
12
BRENNAN, MARSHALL and BLACKMUN would grant the petition for certiorari and give the case plenary consideration.
1
Initially, the Attorney General had no discretion in ordering deportation, and an alien's sole remedy was to obtain a private bill from Congress. See Foti v. INS, 375 U.S. 217, 222, 84 S.Ct. 306, 310, 11 L.Ed.2d 281 (1963). The first measure of statutory relief was included in the Alien Registration Act of 1940, 54 Stat. 670. Under the statutory predecessor of § 244, suspension of a deportation order could be granted only if the alien demonstrated "exceptional and extremely unusual hardship." Immigration and Nationality Act of 1952, § 244(a)(1), Pub.L. 414, 66 Stat. 214. This provision was amended to require that the alien show that deportation would result in "extreme hardship," Act of Oct. 24, 1962, Pub.L. 87-885, § 4, 76 Stat. 1248.
2
Section 2.1 of the regulations delegates the Attorney General's power to the Commissioner of Immigration and Naturalization, and permits the Commissioner to redelegate the authority through appropriate regulations. The power to consider § 244 applications in deportation hearings is delegated to special inquiry officers, whose decisions are subject to review by the Board of Immigration Appeals, 8 CFR §§ 242.8, 242.21 (1979). See Bastidas v. INS, 609 F.2d 101, 103, n. 1 (C.A.3 1979). The Board of Immigration Appeals has the power to consider the question if it is raised on a motion to reopen where the Board has already made a decision in the case. 8 CFR § 3.2 (1979).
3
Title 8 CFR § 3.2 (1979) provides in pertinent part:
"Motions to reopen in deportation proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing; nor shall any motion to reopen for the purpose of affording the alien an opportunity to apply for any form of discretionary relief be granted . . . unless the relief is sought on the basis of circumstances which have arisen subsequent to the hearing."
4
Relief was denied because the immigration judge determined that visa numbers for nonpreference Korean immigrants were not available, thus rendering respondents ineligible for the requested relief. The immigration judge also stated that he would have denied the application given respondents' failure to move to Salt Lake City where Mr. Wang's sponsoring employer was located, thus causing doubt whether his services were in fact needed.
5
Other Courts of Appeals have enforced the evidentiary requirement stated in 8 CFR § 3.8 (1979). See, e. g., Oum v. INS, 613 F.2d 51, 54 (CA4 1980); Acevedo v. INS, 538 F.2d 918, 920 (CA2 1976). See also Tupacyupanqui-Marin v. INS, 447 F.2d 603, 607 (CA7 1971); Luna-Benalcazar v. INS, 414 F.2d 254, 256 (CA6 1969).
Prior to the present procedures, the grant or denial of a motion to reopen was solely within the discretion of the Board. See Arakas v. Zimmerman, 200 F.2d 322, 323-324, and n. 2 (CA3 1952). The present regulation is framed negatively; it directs the Board not to reopen unless certain showings are made. It does not affirmatively require the Board to reopen the proceedings under any particular condition. Thus, the regulations may be construed to provide the Board with discretion in determining under what circumstances proceedings should be reopened. See Villena v. INS, 622 F.2d 1352 (CA9 1980) (en banc) (Wallace, J., dissenting). In his dissent, Judge Wallace stated that INS had discretion beyond requiring proof of a prima facie case:
"If INS discretion is to mean anything, it must be that the INS has some latitude in deciding when to reopen a case. The INS should have the right to be restrictive. Granting such motions too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case. It will also waste the time and efforts of immigration judges called upon to preside at hearings automatically required by the prima facie allegations." Id., at 1362.
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