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WEST POINT WHOLESALE GROCERY CO. v. CITY OF OPELIKA, ALABAMA.
No. 478.
Argued April 24, 1957.
Decided June 17, 1957.
M. R. Schlesinger argued the cause for appellant. With him on the brief were N. D. Denson and Tom B. Slade.
R. E. L. Cope argued the cause for appellee. On the brief was Lawrence K. Andrews.
Mr. Justice Harlan
delivered the opinion of the Court.
This is a suit to recover taxes paid by the appellant to the City of Opelika, Alabama, on the ground that the taxes in question imposed a discriminatory burden on interstate commerce. The state court sustained a demurrer to the complaint, 38 Ala. App. 444, 87 So. 2d 661, rejecting the appellant’s federal contention, and we noted probable jurisdiction. 352 U. S. 924.
Section 130 (a) of Ordinance No. 101-53 of the City of Opelika, as amended by Ordinance No. 103-53, provides that an annual privilege tax of $250 must be paid by any firm engaged in the wholesale grocery business which delivers, at wholesale, groceries in the City from points without the City. Appellant is a Georgia corporation engaged in the wholesale grocery business in West Point, Georgia. It solicits business in the City of Opelika through salesmen; orders are transmitted to appellant’s place of business in Georgia, where they are accepted and the groceries thereupon loaded on trucks and delivered to the City. Appellant has no place of business, office, or inventory in Opelika, its only contact with that City being the solicitation of orders and the delivery of goods.
We held in Nippert v. City of Richmond, 327 U. S. 416, and in Memphis Steam Laundry Cleaner, Inc. v. Stone, 342 U. S. 389, that a municipality may not impose a flat-sum privilege tax on an interstate enterprise whose only contact with the municipality is the solicitation of orders and the subsequent delivery of goods at the end of an uninterrupted movement in interstate commerce, such a tax having a substantial exclusory effect on interstate commerce. In our opinion the tax here in question falls squarely within the ban of those cases. This is particularly so in that Opelika places no comparable flat-sum tax on local merchants. Wholesale grocers whose deliveries originate in Opelika, instead of paying $250 annually, are taxed a sum graduated according to their gross receipts. Such an Opelika wholesaler would have to gross the sum of $280,000 in sales in one year before his tax would reach the flat $250 amount imposed on all foreign grocers before they may set foot in the City. The Commerce Clause forbids any such discrimination against the free flow of trade over state boundaries.
Since the present tax cannot constitutionally be applied to the appellant, the judgment must be reversed and the case remanded for proceedings not inconsistent with this opinion.
Reversed.
Mr. Justice Black dissents.
The ordinance provides for the following “schedule of rates for license or privilege taxes for the conduct of any trade, vocation, profession or other business conducted within the City of Opelika”:
“Each person, firm or corporation engaged in the wholesale grocery business who unloads, delivers, distributes or disposes of groceries at wholesale in the City of Opelika, Alabama which are transported from a point without the City of Opelika, Alabama to a point within the City of Opelika, Alabama, Annual only.$250.00.”
The facts, which are admitted for purposes of the demurrer, are taken from the complaint.
Section 82 of the Ordinance provides for the following rates of tax on local wholesale merchants:
“Where a gross annual business is:
$100,000.00 and less. $35.00
Over $100,000.00 and less than $200,000.00. $50.00
$200,000.00 and less than $500,000.00. $75.00
$500,000.00 and less than $1,000,000.00. $100.00
$1,000,000.00 and less than $2,000,000.00. $200.00
$2,000,000.00 and over. $250.00
“And in addition thereto, one-sixteenth (1/16) of one percent (1%) on the first $500,000.00 gross receipts, plus one-twentieth (1/20) of one percent (1%) on the next $500,000.00 gross receipts plus one-fortieth (1/40) of one percent (1%) on all gross receipts over one million dollars ($1,000,000.00).”
Thus a local wholesale grocer grossing $280,000 in one year would pay a sum of $75, plus 1/16 of one percent of his sales, that is, $175 — a total of $250. | What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations | What is the ideological direction of the decision reviewed by the Supreme Court? | [
"Conservative",
"Liberal",
"Unspecifiable"
] | [
1
] | sc_lcdispositiondirection |
BUREAU OF ALCOHOL, TOBACCO AND FIREARMS v. FEDERAL LABOR RELATIONS AUTHORITY et al.
No. 82-799.
Argued October 11, 1983
Decided November 29, 1983
Carolyn F. Corwin argued the cause for petitioner. With her on the briefs were Solicitor General Lee, Assistant Attorney General McGrath, Deputy Solicitor General Geller, William Ranter, and Douglas Letter.
Ruth E. Peters argued the cause for respondents. Steven H. Svartz and William E. Persina filed a brief for respondent Federal Labor Relations Authority. Robert M. Tobias, Lois G. Williams, and Kerry L. Adams filed a brief for respondent National Treasury Employees Union.
Edmn Vieira, Jr., filed a brief for the Public Service Research Council as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the American Federation of Government Employees, AFL-CIO, by Mark D. Roth and James R. Rosa; and for the National Federation of Federal Employees by Catherine Waelder.
Justice Brennan
delivered the opinion of the Court.
Title VII of the Civil Service Reform Act of 1978 (Act), Pub. L. 95-454, 92 Stat. 1214, 5 U. S. C. § 7131(a) (1982 ed.), requires federal agencies to grant “official time” to employees representing their union in collective bargaining with the agencies. The grant of official time allows the employee negotiators to be paid as if they were at work, whenever they bargain during hours when they would otherwise be on duty. The Federal Labor Relations Authority (FLRA or Authority) concluded that the grant of official time also entitles employee union representatives to a per diem allowance and reimbursement for travel expenses incurred in connection with collective bargaining. 2 F. L. R. A. 265 (1979). In this case, the Court of Appeals for the Ninth Circuit enforced an FLRA order requiring an agency to pay a union negotiator travel expenses and a per diem, finding the Authority’s interpretation of the statute “reasonably defensible.” 672 F. 2d 732, 733 (1982). Three other Courts of Appeals have rejected the FLRA’s construction of the Act. We granted certiorari to resolve this conflict, 459 U. S. 1145 (1983), and now reverse.
I
A
Title VII of the Civil Service Reform Act, part of a comprehensive revision of the laws governing the rights and obligations of civil servants, contains the first statutory scheme governing labor relations between federal agencies and their employees. Prior to enactment of Title VII, labor-management relations in the federal sector were governed by a program established in a 1962 Executive Order. The Executive Order regime, under which federal employees had limited rights to engage in concerted activity, was most recently administered by the Federal Labor Relations Council, a body composed of three Executive Branch management officials whose decisions were not subject to judicial review.
The new Act, declaring that “labor organizations and collective bargaining in the civil service are in the public interest,” 5 U. S. C. § 7101(a) (1982 ed.), significantly strengthened the position of public employee unions while carefully preserving the ability of federal managers to maintain “an effective and efficient Government,” § 7101(b). Title VII expressly protects the rights of federal employees “to form, join, or assist any labor organization, or to refrain from any such activity,” § 7102, and imposes on federal agencies and labor organizations a duty to bargain collectively in good faith, §§ 7116(a)(5) and (b)(5). The Act excludes certain management prerogatives from the scope of negotiations, although an agency must bargain over the procedures by which these management rights are exercised. See § 7106. In general, unions and federal agencies must negotiate over terms and conditions of employment, unless a bargaining proposal is inconsistent with existing federal law, rule, or regulation. See §§ 7103(a), 7114, 7116, and 7117(a). Strikes and certain other forms of concerted actitivies by federal employees are illegal and constitute unfair labor practices under the Act, § 7116(b)(7)(A).
The Act replaced the management-controlled Federal Labor Relations Council with the FLRA, a three-member independent and bipartisan body within the Executive Branch with responsibility for supervising the collective-bargaining process and administering other aspects of federal labor relations established by Title VII. § 7104. The Authority, the role of which in the public sector is analogous to that of the National Labor Relations Board in the private sector, see H. R. Rep. No. 95-1403, p. 41 (1978), adjudicates negotiability disputes, unfair labor practice complaints, bargaining unit issues, arbitration exceptions, and conflicts over the conduct of representational elections. See §§ 7105(a)(2) (A)-(I). In addition to its adjudicatory functions, the Authority may engage in formal rulemaking, § 7134, and is specifically required to “provide leadership in establishing policies and guidance relating to matters” arising under the Act, § 7105(a)(1). The FLRA may seek enforcement of its adjudicatory orders in the United States courts of appeals, § 7123(b), and persons, including federal agencies, aggrieved by any final FLRA decision may also seek judicial review in those courts, § 7123(a).
B
Petitioner, the Bureau of Alcohol, Tobacco and Firearms (BATF or Bureau), an agency within the Department of the Treasury, maintained a regional office in Lodi, California. Respondent National Treasury Employees Union (NTEU or Union) was the exclusive representative of BATF employees stationed in the Lodi office. In November 1978, the Bureau notified NTEU that it intended to move the Lodi office to Sacramento and to establish a reduced duty post at a new location in Lodi. The Union informed BATF that it wished to negotiate aspects of the move’s impact on employees in the bargaining unit. As its agent for these negotiations, the Union designated Donald Pruett, a BATF employee and NTEU steward who lived in Madera, California, and was stationed in Fresno. Bureau officials agreed to meet with Pruett at the new offices and discuss the planned move. Pruett asked that his participation in the discussions be classified as “official time” so that he could receive his regular salary while attending the meetings. The Bureau denied the request and directed Pruett to take either annual leave or leave without pay for the day of the meeting.
On February 23, 1979, Bureau officials met with Pruett at the proposed new Sacramento offices and inspected the physical amenities, including the restrooms, dining facilities, and parking areas. Pruett and the BATF officials then drove to Lodi where they conducted a similar inspection of the new reduced duty post. Finally, the group repaired to the existing Lodi office where they discussed the planned move. After Pruett expressed his general satisfaction with the new facilities, he negotiated with the agency officials about such matters as parking arrangements, employee assignments, and the possibility of excusing employee tardiness for the first week of operations in the Sacramento office. Once the parties reached an agreement on the move, Pruett drove back to his home in Madera.
Pruett had spent 1154 hours traveling to and attending the meetings, and had driven more than 300 miles in his own car. When he renewed his request to have his participation at the meetings classified as official time, the Bureau informed him that it did not reimburse employees for expenses incurred in negotiations and that it granted official time only for quarterly collective-bargaining sessions and not for midterm discussions like those involved here. In June 1979, the Union filed an unfair labor practice charge with the FLRA, claiming that BATF had improperly compelled Pruett to take annual leave for the February 23 sessions.
While the charge was pending, the FLRA issued an “Interpretation and Guidance” of general applicability which required federal agencies to pay salaries, travel expenses, and per diem allowances to union representatives engaged in collective bargaining with the agencies. 2 F. L. R. A. 265 (1979). The Interpretation relied on 5 U. S. C. § 7131(a) (1982 ed.), which provides that “[a]ny employee representing an exclusive representative in the negotiation of a collective bargaining agreement. . . shall be authorized official time for such purposes . . . .” The Authority concluded that an employee’s entitlement to official time under this provision extends to “all negotiations between an exclusive representative and an agency, regardless of whether such negotiations pertain to the negotiation or renegotiation of a basic collective bargaining agreement.” 2 F. L. R. A., at 268. The Authority further determined that § 7131(a) requires agencies to pay a per diem allowance and travel expenses to employees representing their union in such negotiations. Id., at 270.
Based on the NTEU’s pending charge against the Bureau, the General Counsel of the Authority issued a complaint and notice of hearing, alleging that the B ATF had committed an unfair labor practice by refusing to grant Pruett official time for the February 23 meetings. During the course of a subsequent hearing on the charge before an Administrative Law Judge, the complaint was amended to add a claim that, in addition to paying Pruett’s salary for the day of the meetings, the BATF should have paid his travel expenses and a per diem allowance. Following the hearing, the ALJ determined that negotiations had in fact taken place between Pruett and BATF officials at the February 23 meetings. Bound to follow the recent FLRA Interpretation and Guidance, the ALJ concluded that the Bureau had committed an unfair labor practice by failing to comply with § 7131(a). Accordingly, he ordered the Bureau to pay Pruett his regular salary for the day in question, as well as his travel costs and a per diem allowance. The ALJ also required the BATF to post a notice stating that the agency would do the same for all employee union representatives in future negotiations. The Bureau filed exceptions to the decision with the Authority, which, in September 1980, affirmed the decision of the ALJ, adopting his findings, conclusions, and recommended relief. 4 F. L. R. A. 288 (1980).
The Bureau sought review in the United States Court of Appeals for the Ninth Circuit, and the Union intervened as a party in that appeal. The Bureau challenged both the FLRA’s conclusion that § 7131(a) applies to midterm negotiations and its determination that the section requires payment of travel expenses and a per diem allowance. After deciding that the Authority’s construction of its enabling Act was entitled to deference if it was “reasoned and supportable,” 672 F. 2d, at 735-736, the Court of Appeals enforced the Authority’s order on both issues. Id., at 737, 738. On cer-tiorari to this Court, petitioner does not seek review of the holding with respect to midterm negotiations. Only that aspect of the Court of Appeals’ decision regarding travel expenses and per diem allowances is at issue here.
The FLRA order enforced by the Court of Appeals in this case was, as noted, premised on the Authority’s earlier construction of § 7131(a) in its Interpretation and Guidance. Although we have not previously had occasion to consider an interpretation of the Civil Service Reform Act by the FLRA, we have often described the appropriate standard of judicial review in similar contexts. Like the National Labor Relations Board, see, e. g., NLRB v. Erie Resistor Corp., 373 U. S. 221, 236 (1963), the FLRA was intended to develop specialized expertise in its field of labor relations and to use that expertise to give content to the principles and goals set forth in the Act. See §7105; H. R. Rep. No. 95-1403, p. 41 (1978). Consequently, the Authority is entitled to considerable deference when it exercises its “special function of applying the general provisions of the Act to the complexities” of federal labor relations. Cf. NLRB v. Erie Resistor Corp., supra, at 236. See also Ford Motor Co. v. NLRB, 441 U. S. 488, 496 (1979); NLRB v. Iron Workers, 434 U. S. 335, 350 (1978); NLRB v. Truck Drivers, 353 U. S. 87, 96 (1957).
On the other hand, the “deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia which results in the unauthorized assumption by an agency of major policy decisions properly made by Congress.” American Ship Building Co. v. NLRB, 380 U. S. 300, 318 (1965). Accordingly, while reviewing courts should uphold reasonable and defensible constructions of an agency’s enabling Act, NLRB v. Iron Workers, supra, at 350, they must not “rubber-stamp . . . administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute.” NLRB v. Brown, 380 U. S. 278, 291-292 (1965). See Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U. S. 157, 166 (1971). Guided by these principles, we turn to a consideration of the FLRA’s construction of § 7131(a).
f — < bH
Title 5 U. S. C. § 7131(a) (1982 ed.) provides in full:
“Any employee representing an exclusive representative in the negotiation of a collective bargaining agreement under this chapter shall be authorized official time for such purposes, including attendance at impasse proceeding, during the time the employee otherwise would be in a duty status. The number of employees for whom official time is authorized under this subsection shall not exceed the number of individuals designated as representing the agency for such purposes.”
According to the House Committee that reported the bill containing § 7131, Congress used the term “official time” to mean “paid time.” See H. R. Rep. No. 95-1403, p. 58 (1978). In light of this clear expression of congressional intent, the parties agree that employee union negotiators are entitled to their usual pay during collective-bargaining sessions that occur when the employee “otherwise would be in a duty status.” Both the Authority, 2 F. L. R. A., at 269, and the Court of Appeals, 672 F. 2d, at 737, recognized that there is no corresponding expression, either in the statute or the extensive legislative history, of a congressional intent to pay employee negotiators travel expenses and per diem allowances as well.
Despite this congressional silence, respondents advance several reasons why the FLRA’s determination that such payments are required is consistent with the policies underlying the Act. Each of these arguments proceeds from the assumption that, by providing employee negotiators with official time for bargaining, Congress rejected the model of federal labor relations that had shaped prior administrative practice. In its place, according to respondents, Congress substituted a new vision of collective bargaining under which employee negotiators, like management representatives, are considered “on the job” while bargaining and are therefore entitled to all customary forms of compensation, including travel expenses and per diem allowances. In order to evaluate this claim, it is necessary briefly to review the rights of employee negotiators to compensation prior to adoption of the Act.
A
Under the 1962 Executive Order establishing the first federal labor relations program, the decision whether to pay union representatives for the time spent in collective bargaining was left within the discretion of their employing agency, apparently on the ground that, without some control by management, the length of such sessions could impose too great a burden on Government business. See Report of the President’s Task Force on Employee-Management Relations in the Federal Service, reprinted in Legislative History of the Federal Service Labor-Management Relations. Statute, Title VII of the Civil Service Reform Act of 1978, pp. 1177, 1203 (Comm. Print 1979) (hereinafter Leg. Hist.). Under this early scheme, employee negotiators were not entitled to per diem allowances and travel expenses, on the view that they were engaged, not in official business of the Government, but rather in activities “primarily in the interest of the employee organization.” 44 Comp. Gen. 617, 618 (1965).
Executive Order No. 11491, which became effective in 1970, cut back on the previous Order by providing that employees engaged in negotiations with their agencies could not receive official time, even at the agencies’ discretion. See 3 CFR 861-862, 873-874 (1966-1970 Comp.). Again, the prohibition was based on the view that employee representatives work for their union, not for the Government, when negotiating an agreement with their employers. See Leg. Hist., at 1167. In 1971, however, at the recommendation of the Federal Labor Relations Council, an amending Executive Order allowed unions to negotiate with agencies to obtain official time for employee representatives, up to a maximum of either 40 hours, or 50% of the total time spent in bargaining. Exec. Order No. 11616, 3 CFR 605 (1971-1975 Comp.). The Cpuncil made clear that this limited authorization, which was intended “to maintain a reasonable policy with respect to union self-support and an incentive to economical and businesslike bargaining practices,” Leg. Hist., at 1169, did not permit “[ojvertime, premium pay, or travel expenditures.” Id., at 1264.
The Senate version of the bill that became the Civil Service Reform Act would have retained the last Executive Order’s restrictions on the authorization of official time. S. Rep. No. 95-969, p. 112 (1978). Congress instead adopted the section in its present form, concluding, in the words of one Congressman, that union negotiators “should be allowed official time to carry out their statutory representational activities just as management uses official time to carry out its responsibilities.” 124 Cong. Rec. 29188 (1978) (remarks of Rep. Clay). See H. R. Conf. Rep. No. 95-1717, p. Ill (1978).
B
Respondents suggest that, by rejecting earlier limitations on official time, Congress repudiated the view that employee negotiators work only for their union and not for the Government. Under the new vision of federal labor relations postulated by respondents, civil servants on both sides of the bargaining table are engaged in official business of the Government and must be compensated equally. Because federal employees representing the views of management receive travel expenses and per diem allowances, federal employees representing the views of labor are entitled to such payments as well. In support of this view, respondents rely on the Act’s declaration that public sector collective bargaining is in “the public interest” and “contributes to the effective conduct of public business,” § 7101(a), as well as on a number of specific provisions in the Act intended to equalize the position of management and labor. For instance, the Act requires agencies to deduct union dues from employees’ paychecks and to transfer the funds to the union at no cost, § 7115(a); in addition, agencies must furnish a variety of data useful to unions in the collective-bargaining process, § 7114(b)(4). Respondents also contend that Congress employed the term “official time” in § 7131 specifically to indicate that employee negotiators are engaged in Government business and therefore entitled to all of their usual forms of compensation.
Although Congress certainly could have adopted the model of collective bargaining advanced by respondents, we find no indications in the Act or its legislative history that it intended to do so. The Act’s declaration that collective bargaining contributes to efficient government and therefore serves the public interest does not reflect a dramatic departure from the principles of the Executive Order regime under which employee negotiators had not been regarded as working for the Government. To the contrary, the declaration constitutes a strong congressional endorsement of the policy on which the federal labor relations program had been based since its creation in 1962. See, e. g., Exec. Order No. 10988, 3 CFR 521 (1959-1963 Comp.) (“participation of employees in the formulation and implementation of personnel policies affecting them contributes to effective conduct of public business”); Exec. Order No. 11491, 3 CFR 861 (1966-1970 Comp.) (“public interest requires . . . modern and progressive work practices to facilitate improved employee performance and efficiency” and efficient government is “benefited by providing employees an opportunity to participate in the formulation and implementation of personnel policies and practices affecting the conditions of their employment”). See also S. Rep. No. 95-969, p. 12 (1978); 124 Cong. Rec. 29182 (1978) (remarks of Rep. Udall) (“What we really do is to codify the 1962 action of President Kennedy in setting up a basic framework of collective bargaining for Federal employees”).
Nor do the specific provisions of the Act aimed at equalizing the positions of management and labor suggest that Congress intended employee representatives to be treated as though they were “on the job” for all purposes. Indeed, the Act’s provision of a number of specific subsidies for union activities supports precisely the opposite conclusion. As noted above, Congress expressly considered and ultimately rejected the approach to paid time that had prevailed under the Executive Order regime. See supra, at 101-102. In contrast, there is no reference in the statute or the legislative history to travel expenses and per diem allowances, despite the fact that these kinds of payments had also received administrative attention prior to passage of the Act, see supra, at 100, and n. 11. There is, of course, nothing inconsistent in paying the salaries, but not the expenses, of union negotiators. Congress might well have concluded that, although union representatives should not be penalized by a loss in salary while engaged in collective bargaining, they need not be further subsidized with travel and per diem allowances. The provisions of the Act intended to facilitate the collection of union dues, see §7115, certainly suggest that Congress contemplated that unions would ordinarily pay their own expenses.
Respondents also find their understanding of the role of union representatives supported by Congress’ use of the phrase “official time” in § 7131(a). For respondents, the use of this term indicates an intent to treat employee negotiators “as doing the government’s work for all the usual purposes,” and therefore entitled to “all attributes of employment,” including travel expenses and a per diem allowance. Brief for Respondent NTEU 24-28. They suggest that, if Congress intended to maintain only the employees’ salaries, it would have granted them “leave without loss of pay,” a term it has used in other statutes. See, e. g., 5 U. S. C. §6321 (absence of veterans to attend funeral services), § 6322(a) (jury or witness duty), and §6323 (military reserve duty) (1982 ed.). In contrast, Congress uses the terms “official capacity” and “duty status” to indicate that an employee is “on the job” and entitled to all the usual liabilities and privileges of employment. See, e. g., §§5751, 6322(b) (employee summoned to testify in “official capacity” entitled to travel expenses).
The difficulty with respondents’ argument is that Congress did not provide that employees engaged in collective bargaining are acting in their “official capacity,” “on the job,” or in a “duty status.” Instead, the right to a salary conferred by § 7131(a) obtains only when “the employee otherwise would be in a duty status” (emphasis supplied). This qualifying language strongly suggests that union negotiators engaged in collective bargaining are not considered in a duty status and thereby entitled to all of their normal forms of compensation. Nor does the phrase “official time,” borrowed from prior administrative practice, have the same meaning as “official capacity.” As noted above, employees on “official time” under the Executive Order regime were not generally entitled to travel expenses and a per diem allowance. See swpra, at 100-101. Moreover, as respondents’ own examples demonstrate, Congress does not rely on the mere use of the word “official” when it intends to allow travel expenses and per diems. Even as to those employees acting in an “official capacity,” Congress generally provides explicit authorization for such payments. See, e. g., §§5702, 5751(b), 6322(b). In the Civil Service Reform Act itself, for instance, Congress expressly provided that members of the Federal Service Impasses Panel are entitled to travel expenses and a per diem allowance, in addition to a salary. See §§5703, 7119(c)(4).
Perhaps recognizing that authority for travel expenses and per diem allowances cannot be found within the four corners of § 7131(a), respondents alternatively contend that the Authority’s decision is supported by the Travel Expense Act, 5 U. S. C. § 5702(a) (1982 ed.), which provides that a federal employee “traveling on official business away from his designated post of duty ... is entitled to ... a per diem allowance.” The Travel Expense Act is administered by the Comptroller General who has concluded that agencies may authorize per diem allowances for travel that is “sufficiently in the interest of the United States so as to be regarded as official business.” 44 Comp. Gen. 188, 189 (1964). Under the Executive Order regime, the Comptroller General authorized per diem payments to employee negotiators pursuant to this statute upon a certification that the employees’ travel served the convenience of the employing agency. See n. 11, supra.
Based on its view that employee negotiators are “on the job,” the Authority determined that union representatives engaged in collective bargaining are on “official business” and therefore entitled to a per diem allowance under the Travel Expense Act. 2 F. L. R. A., at 269. In support of this reasoning, the Authority notes that § 5702(a) has been construed broadly to authorize reimbursement in connection with a variety of “quasi-official” activities, such as employees’ attendance at their own personnel hearings and at privately sponsored conferences. See, e. g., Comptroller General of the United States, Travel in the Management and Operation of Federal Programs 1, App. I, p. 5 (Rpt. No. FPCD-77-11, Mar. 17, 1977); 31 Comp. Gen. 346 (1952). In each of these instances, however, the travel in question was presumably for the convenience of the agency and therefore clearly constituted “official business” of the Government. As we have explained, neither Congress’ declaration that collective bargaining is in the public interest nor its use of the term of art “official time” warrants the conclusion that employee negotiators are on “official business” of the Government.
1 — 1 <1
In passing the Civil Service Reform Act, Congress unquestionably intended to strengthen the position of federal unions and to make the collective-bargaining process a more effective instrument of the public interest than it had been under the Executive Order regime. See supra, at 91-93. There is no evidence, however, that the Act departed from the basic assumption underlying collective bargaining in both the pub-lie and the private sector that the parties “proceed from contrary and to an extent antagonistic viewpoints and concepts of self-interest.” NLRB v. Insurance Agents, 361 U. S. 477, 488 (1960), quoted in General Building Contractors Assn., Inc. v. Pennsylvania, 458 U. S. 375, 394 (1982). Nor did the Act confer on the FLRA an unconstrained authority to equalize the economic positions of union and management. See American Ship Building Co. v. NLRB, 380 U. S., at 316-318. We conclude, therefore, that the FLRA’s interpretation of § 7131(a) constitutes an “unauthorized assumption by [the] agency of [a] major policy decisio[n] properly made by Congress.” Id., at 318.
The judgment of the Court of Appeals is
Reversed.
Florida National Guard v. FLRA, 699 F. 2d 1082 (CA11 1983), cert. pending, No. 82-1970; United States Dept. of Agriculture v. FLRA, 691 F. 2d 1242 (CA8 1982), cert. pending, No. 82-979; Division of Military & Naval Affairs v. FLRA, 683 F. 2d 45 (CA2 1982), cert. pending, No. 82-1021.
Exec. Order No. 10988, 3 CFR 521 (1959-1963 Comp.). The Executive Order program was revised and continued by Exec. Order No. 11491, 3 CFR 861 (1966-1970 Comp.), as amended by Exec. Orders Nos. 11616, 11636, and 11838, 3 CFR 605, 634, 957 (1971-1975 Comp.).
The Council was established by Executive Order No. 11491 in 1970.
Certain federal employees, including members of the military and the Foreign Service, and certain federal agencies, including the Federal Bureau of Investigation and the Central Intelligence Agency, are excluded from the coverage of Title VII. 5 U. S. C. §§ 7102(a)(2) and (3) (1982 ed.).
Although the Authority invited interested persons to express their views prior to adoption of the Interpretation, see Notice Relating to Official Time, 44 Fed. Reg. 42788 (1979), the decision apparently was issued not under the FLRA’s statutory power to promulgate regulations, § 7134, but rather under § 7105(a)(1), which requires the Authority to provide leadership in establishing policies and guidance relating to federal labor-management relations. See Brief for Respondent FLRA 11, n. 10.
Title 5 U. S. C. §7118 (1982 ed.) provides in part:
“(a)(1) If any agency or labor organization is charged by any person with having engaged in or engaging in an unfair labor practice, the General Counsel shall investigate the charge and may issue and cause to be served upon the agency or labor organization a complaint. ...”
The complaint issued by the General Counsel in this case relied on § 7116, which provides in part:
“(a) For the purposes of this chapter, it shall be an unfair labor practice for an agency—
“(1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter;
“(8) to otherwise fail or refuse to comply with any provision of this chapter.”
The decisions of the FLRA are subject to judicial review in accordance with the Administrative Procedure Act (APA), 5 U. S. C. § 706. See 5 U. S. C. § 7123(c) (1982 ed.). The APA requires a reviewing court to “decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” §706. The court must set aside agency actions and conclusions found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” §§ 706(2)(A) and (C).
Petitioner suggests that we should accord little deference to the Authority’s decision in this case for two reasons. First, petitioner contends that the FLRA’s conclusion that employee negotiators are entitled to travel expenses and a per diem allowance was based largely on the Authority’s reading of the Travel Expense Act, 5 U. S. C. § 5702 (1982 ed.), a statute the FLRA does not administer. As we understand the FLRA’s decision, however, the Authority’s view that the Travel Expense Act supported its conclusion derived primarily from its interpretation of § 7131(a). See infra, at 106.
Second, petitioner argues that the Interpretation and Guidance is entitled to less weight since it was apparently an “interpretative rule” rather than an “administrative regulation.” See n. 5, supra. Congress did, however, afford the FLRA broad authority to establish policies consistent with the Act, see §§ 7105 and 7134, and the Interpretation and Guidance was attended by at least some of the procedural characteristics of a rulemaking. See n. 5, supra. See 5 U. S. C. § 553. Compare FEC v. Democratic Senatorial Campaign Committee, 454 U. S. 27, 37 (1981), with General Electric Co. v. Gilbert, 429 U. S. 125, 141-142 (1976). In any event, we find it unnecessary to rest our decision on a precise classification of the FLRA’s action. As we explain in the text, an agency acting within its authority to make policy choices consistent with the congressional mandate should receive considerable deference from courts, provided, of course, that its actions conform to applicable procedural requirements and are not “arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with law,” 5 U. S. C. §706(2)(A). See, e. g., Batterton v. Francis, 432 U. S. 416, 424-426 (1977); FCC v. Pottsville Broadcasting Co., 309 U. S. 134, 137-138 (1940). When an agency’s decision is premised on its understanding of a specific congressional intent, however, it engages in the quintessential judicial function of deciding what a statute means. In that case, the agency’s interpretation, particularly to the extent it rests on factual premises within its expertise, may be influential, but it cannot bind a court. General Electric Co. v. Gilbert, supra; Zuber v. Allen, 396 U. S. 168, 192-193 (1969); Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944). For the reasons set out below, we conclude that the FLRA’s decision in this case neither rests on specific congressional intent nor is consistent with the policies underlying the Act.
In the Interpretation and Guidance, the FLRA also noted that it had previously construed § 7131(c), which authorizes “official time” for employee representatives appearing before the Authority, to require the payment of travel expenses and a per diem allowance. 2 F. L. R. A. 265, 270 (1979). See 5 CFR §2429.13 (1983). The fact that the Authority interpreted two similar provisions of the Act consistently does not, however, demonstrate that either interpretation is correct. We, of course, express no view as to whether different considerations uniquely applicable to proceedings before the Authority might justify the FLRA’s interpretation of § 7131(c).
Section 9 of Executive Order No. 10988 encouraged agencies to conduct general consultations with labor representatives on official time, but left them free to conduct collective-bargaining sessions “during the non-duty hours of the employee organization representatives involved in such negotiations.” 3 CFR 521, 524-525 (1959-1963 Comp.).
The 1962 Executive Order contained no reference to travel expenses or per diem allowances. The decision that such payments were not available was made in 1965 by the Comptroller General, 44 Comp. Gen. 617, who is authorized to give agencies guidance concerning such disbursements. See 31 U. S. C. § 3529 (1982 ed.). The following year, the Comptroller General modified his position and approved new guidelines issued by the Civil Service Commission. 46 Comp. Gen. 21, 21-22. The guidelines provided that, while employees should not generally be allowed travel expenses to attend negotiations, such expenses would be approved if an agency head certified that the employee representatives’ travel would be in the “primary interest of the Government.” Ibid. An agency might make such a certification when, for example, it would be more convenient for management to meet at a particular site and more economical to pay the employees’ costs of traveling there than to pay the cost for agency representatives to travel to a different site. . Ibid. This exception to the earlier prohibition on travel expenses was, by its terms, consistent with the Comptroller General’s view that employee negotiators act principally in the interest of their union and not on official business for the United States.
Under the Executive Order regime, unions had to negotiate for dues deductions and were generally charged a fee for the service. See Information Announcement, 1 P. L. R. C. 676, 677 (1973).
We do not read Representative Udall’s remarks to suggest that the Authority is bound by administrative decisions made under the Executive Order regime. The Act explicitly encourages the Authority to establish policies and provide guidance in the federal labor relations field, § 7105(a)(1), and there are undoubtedly areas in which the FLRA, like the National Labor Relations Board, enjoys considerable freedom to apply its expertise to new problems, provided it remains faithful to the fundamental policy choices made by Congress. See supra, at 96-98, and n. 8. See also § 7135(b) (decisions under Executive Order regime remain in effect unless revised by President or superseded by Act or regulations or decisions thereunder).
The Authority seemed to rely on this distinction between “duty status” and “leave” in its Interpretation when it stated that an employee negotiator “is on paid time entitled to his or her usual compensation and is not in leave status.” 2 F. L. R. A., at 269.
Similarly, the statement of Representative Clay that employee representatives “should be allowed official time to carry out their statutory representational activities just as management uses official time to carry out its responsibilities,” 124 Cong. Ree. 29188 (1978), does not indicate that Congress intended union representatives to be treated as if they are “at work” for all purposes.
As farther support for their reading of “official time,” respondents contend that union representatives engaged in collective bargaining may be entitled to benefits under the Federal Employees’ Compensation Act, 5 U. S. C. §8101 et seq. (1982 ed.), and may create Government liability under the Federal Tort Claims Act, 28 U. S. C. § 1346(b) (1976 ed. and Supp. V). The fact that other federal statutes, with different purposes, may be construed to apply to employee negotiators, however, does not demonstrate that, in enacting the Civil Service Reform Act, Congress intended to treat union negotiators as engaged in official business of the Government.
Our conclusion that federal agencies may not be required under § 7131(a) to pay the travel expenses and per diem allowances of union negotiators does not, of course, preclude an agency from making such payments upon a determination that they serve the convenience of the agency or are otherwise in the primary interest of the Government, as was the practice prior to passage of the Act. See n. 11, supra. Furthermore, unions may presumably negotiate for such payments in collective bargaining as they do in the private sector. See Midstate Tel. Corp. v. NLRB, 706 F. 2d 401, 405 (CA2 1983); Axelson, Inc. v. NLRB, 599 F. 2d 91, 93-95 (CA5 1979). Indeed, we are informed that many agencies presently pay the travel expenses of employee representatives pursuant to collective-bargaining agreements. Letter from Ruth E. Peters, Counsel for Respondent FLRA, Nov. 9, 1983. See also J. P. Stevens & Co., 239 N. L. R. B. 738, 739 (1978) (employer required to pay travel expenses as remedy for failing to bargain in good faith). | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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46
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Joseph JESNER, et al., Petitioners
v.
ARAB BANK, PLC.
No. 16-499.
Supreme Court of the United States
Argued Oct. 11, 2017.
Decided April 24, 2018.
Jeffrey L. Fisher, Stanford, CA, for Petitioners.
Brian H. Fletcher, for the United States as amicus curiae, by special leave of the Court, supporting neither party.
Paul D. Clement, Washington, DC, for Respondent.
Michael E. Elsner, John M. Eubanks, Jodi Westbrook Flowers, Motley Rice LLC, Mt. Pleasant, SC, Mark Werbner, Sayles Werbner P.C., Dallas, TX, Jeffrey L. Fisher, David T. Goldberg, Pamela S. Karlan, Jenny S. Martinez, Stanford Law School, Supreme Court Litigation Clinic, Stanford, CA, for Petitioners.
Jonathan Siegfried, Kevin Walsh, Douglas W. Mateyaschuk, DLA Piper LLP (US), New York, NY, Paul D. Clement, Erin E. Murphy, Edmund G. LaCour Jr., Andrew C. Lawrence, Kirkland & Ellis LLP, Washington, DC, for Respondent.
Justice KENNEDY announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-B-1, and II-C, and an opinion with respect to Parts II-A, II-B-2, II-B-3, and III, in which THE CHIEF JUSTICE and Justice THOMAS join.
Petitioners in this case, or the persons on whose behalf petitioners now assert claims, allegedly were injured or killed by terrorist acts committed abroad. Those terrorist acts, it is contended, were in part caused or facilitated by a foreign corporation. Petitioners now seek to impose liability on the foreign corporation for the conduct of its human agents, including its then-chairman and other high-ranking management officials. The suits were filed in a United States District Court under the Alien Tort Statute, commonly referred to as the ATS. See 28 U.S.C. § 1350.
The foreign corporation charged with liability in these ATS suits is Arab Bank, PLC; and it is respondent here. Some of Arab Bank's officials, it is alleged, allowed the Bank to be used to transfer funds to terrorist groups in the Middle East, which in turn enabled or facilitated criminal acts of terrorism, causing the deaths or injuries for which petitioners now seek compensation. Petitioners seek to prove Arab Bank helped the terrorists receive the moneys in part by means of currency clearances and bank transactions passing through its New York City offices, all by means of electronic transfers.
It is assumed here that those individuals who inflicted death or injury by terrorism committed crimes in violation of well-settled, fundamental precepts of international law, precepts essential for basic human-rights protections. It is assumed as well that individuals who knowingly and purposefully facilitated banking transactions to aid, enable, or facilitate the terrorist acts would themselves be committing crimes under the same international-law prohibitions.
Petitioners contend that international and domestic laws impose responsibility and liability on a corporation if its human agents use the corporation to commit crimes in violation of international laws that protect human rights. The question here is whether the Judiciary has the authority, in an ATS action, to make that determination and then to enforce that liability in ATS suits, all without any explicit authorization from Congress to do so.
The answer turns upon the proper interpretation and implementation of the ATS. The statute provides: "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." § 1350. The Court must first ask whether the law of nations imposes liability on corporations for human-rights violations committed by its employees. The Court must also ask whether it has authority and discretion in an ATS suit to impose liability on a corporation without a specific direction from Congress to do so.
I
A
Petitioners are plaintiffs in five ATS lawsuits filed against Arab Bank in the United States District Court for the Eastern District of New York. The suits were filed between 2004 and 2010.
A significant majority of the plaintiffs in these lawsuits-about 6,000 of them-are foreign nationals whose claims arise under the ATS. These foreign nationals are petitioners here. They allege that they or their family members were injured by terrorist attacks in the Middle East over a 10-year period. Two of the five lawsuits also included claims brought by American nationals under the Anti-Terrorism Act, 18 U.S.C. § 2333(a), but those claims are not at issue.
Arab Bank is a major Jordanian financial institution with branches throughout the world, including in New York. According to the Kingdom of Jordan, Arab Bank "accounts for between one-fifth and one-third of the total market capitalization of the Amman Stock Exchange." Brief for Hashemite Kingdom of Jordan as Amicus Curiae 2. Petitioners allege that Arab Bank helped finance attacks by Hamas and other terrorist groups. Among other claims, petitioners allege that Arab Bank maintained bank accounts for terrorists and their front groups and allowed the accounts to be used to pay the families of suicide bombers.
Most of petitioners' allegations involve conduct that occurred in the Middle East. Yet petitioners allege as well that Arab Bank used its New York branch to clear dollar-denominated transactions through the Clearing House Interbank Payments System. That elaborate system is commonly referred to as CHIPS. It is alleged that some of these CHIPS transactions benefited terrorists.
Foreign banks often use dollar-clearing transactions to facilitate currency exchanges or to make payments in dollars from one foreign bank account to another. Arab Bank and certain amici point out that CHIPS transactions are enormous both in volume and in dollar amounts. The transactions occur predominantly in the United States but are used by major banks both in the United States and abroad. The CHIPS system is used for dollar-denominated transactions and for transactions where the dollar is used as an intermediate currency to facilitate a currency exchange. Brief for Institute of International Bankers as Amicus Curiae 12-13, and n. 8. In New York each day, on average, about 440,000 of these transfers occur, in dollar amounts totaling about $1.5 trillion. Id., at 14. The "clearance activity is an entirely mechanical function; it occurs without human intervention in the proverbial 'blink of an eye.' " Ibid. There seems to be no dispute that the speed and volume of these transactions are such that individual supervision is simply not a systemic reality. As noted below, substantial regulations govern these transactions, both in the United States and in Jordan.
In addition to the dollar-clearing transactions, petitioners allege that Arab Bank's New York branch was used to launder money for the Holy Land Foundation for Relief and Development (HLF), a Texas-based charity that petitioners say is affiliated with Hamas. According to petitioners, Arab Bank used its New York branch to facilitate the transfer of funds from HLF to the bank accounts of terrorist-affiliated charities in the Middle East.
During the pendency of this litigation, there was an unrelated case that also implicated the issue whether the ATS is applicable to suits in this country against foreign corporations. See Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (C.A.2 2010). That suit worked its way through the trial court and the Court of Appeals for the Second Circuit. The Kiobel litigation did not involve banking transactions. Its allegations were that holding companies incorporated in the Netherlands and the United Kingdom had, through a Nigerian subsidiary, aided and abetted the Nigerian Government in human-rights abuses. Id., at 123. In Kiobel, the Court of Appeals held that the ATS does not extend to suits against corporations. Id., at 120. This Court granted certiorari in Kiobel . 565 U.S. 961, 132 S.Ct. 472, 181 L.Ed.2d 292 (2011).
After additional briefing and reargument in Kiobel, this Court held that, given all the circumstances, the suit could not be maintained under the ATS. Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 114, 124-125, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013). The rationale of the holding, however, was not that the ATS does not extend to suits against foreign corporations. That question was left unresolved. The Court ruled, instead, that "all the relevant conduct took place outside the United States." Id., at 124, 133 S.Ct. 1659. Dismissal of the action was required based on the presumption against extraterritorial application of statutes.
So while this Court in Kiobel affirmed the ruling that the action there could not be maintained, it did not address the broader holding of the Court of Appeals that dismissal was required because corporations may not be sued under the ATS. Still, the courts of the Second Circuit deemed that broader holding to be binding precedent. As a consequence, in the instant case the District Court dismissed petitioners' ATS claims based on the earlier Kiobel holding in the Court of Appeals; and on review of the dismissal order the Court of Appeals, also adhering to its earlier holding, affirmed. In re Arab Bank, PLC Alien Tort Statute Litigation, 808 F.3d 144 (2015). This Court granted certiorari in the instant case. 581 U.S. ----, 137 S.Ct. 1432, 197 L.Ed.2d 646 (2017).
Since the Court of Appeals relied on its Kiobel holding in the instant case, it is instructive to begin with an analysis of that decision. The majority opinion in Kiobel, written by Judge Cabranes, held that the ATS does not apply to alleged international-law violations by a corporation. 621 F.3d, at 120. Judge Cabranes relied in large part on the fact that international criminal tribunals have consistently limited their jurisdiction to natural persons. Id., at 132-137.
Judge Leval filed a separate opinion. He concurred in the judgment on other grounds but disagreed with the proposition that the foreign corporation was not subject to suit under the ATS. Id., at 196. Judge Leval conceded that "international law, of its own force, imposes no liabilities on corporations or other private juridical entities." Id., at 186. But he reasoned that corporate liability for violations of international law is an issue of "civil compensatory liability" that international law leaves to individual nations. Ibid. Later decisions in the Courts of Appeals for the Seventh, Ninth, and District of Columbia Circuits agreed with Judge Leval and held that corporations can be subject to suit under the ATS. See Flomo v. Firestone Nat. Rubber Co., 643 F.3d 1013, 1017-1021 (C.A.7 2011) ; Doe I v. Nestle USA, Inc., 766 F.3d 1013, 1020-1022 (C.A.9 2014) ; Doe VIII v. Exxon Mobil Corp., 654 F.3d 11, 40-55 (C.A.D.C.2011), vacated on other grounds, 527 Fed.Appx. 7 (C.A.D.C.2013). The respective opinions by Judges Cabranes and Leval are scholarly and extensive, providing significant guidance for this Court in the case now before it.
With this background, it is now proper to turn to the history of the ATS and the decisions interpreting it.
B
Under the Articles of Confederation, the Continental Congress lacked authority to " 'cause infractions of treaties, or of the law of nations to be punished.' " Sosa v. Alvarez-Machain, 542 U.S. 692, 716, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004) (quoting J. Madison, Journal of the Constitutional Convention 60 (E. Scott ed. 1893)). The Continental Congress urged the States to authorize suits for damages sustained by foreign citizens as a result of violations of international law; but the state courts' vindication of the law of nations remained unsatisfactory. Concerns with the consequent international-relations tensions "persisted through the time of the Constitutional Convention." 542 U.S., at 717, 124 S.Ct. 2739.
Under the Articles of Confederation, the inability of the central government to ensure adequate remedies for foreign citizens caused substantial foreign-relations problems. In 1784, the French Minister lodged a protest with the Continental Congress after a French adventurer, the Chevalier de Longchamps, assaulted the Secretary of the French Legation in Philadelphia. See Kiobel, 569 U.S., at 120, 133 S.Ct. 1659. A few years later, a New York constable caused an international incident when he entered the house of the Dutch Ambassador and arrested one of his servants. Ibid. Under the Articles of Confederation, there was no national forum available to resolve disputes like these under any binding laws that were or could be enacted or enforced by a central government.
The Framers addressed these matters at the 1787 Philadelphia Convention; and, as a result, Article III of the Constitution extends the federal judicial power to "all cases affecting ambassadors, other public ministers and consuls," and "to controversies ... between a state, or the citizens thereof, and foreign states, citizens, or subjects." § 2. The First Congress passed a statute to implement these provisions: The Judiciary Act of 1789 authorized federal jurisdiction over suits involving disputes between aliens and United States citizens and suits involving diplomats. §§ 9, 11, 1 Stat. 76-79.
The Judiciary Act also included what is now the statute known as the ATS. § 9, id., at 76. As noted, the ATS is central to this case and its brief text bears repeating. Its full text is: "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." 28 U.S.C. § 1350.
The ATS is "strictly jurisdictional" and does not by its own terms provide or delineate the definition of a cause of action for violations of international law. Sosa, 542 U.S., at 713-714, 124 S.Ct. 2739. But the statute was not enacted to sit on a shelf awaiting further legislation. Id., at 714, 124 S.Ct. 2739. Rather, Congress enacted it against the backdrop of the general common law, which in 1789 recognized a limited category of "torts in violation of the law of nations." Ibid.
In the 18th century, international law primarily governed relationships between and among nation-states, but in a few instances it governed individual conduct occurring outside national borders (for example, "disputes relating to prizes, to shipwrecks, to hostages, and ransom bills"). Id ., at 714-715, 124 S.Ct. 2739 (internal quotation marks omitted). There was, furthermore, a narrow domain in which "rules binding individuals for the benefit of other individuals overlapped with" the rules governing the relationships between nation-states. Id., at 715, 124 S.Ct. 2739. As understood by Blackstone, this domain included "three specific offenses against the law of nations addressed by the criminal law of England: violation of safe conducts, infringement of the rights of ambassadors, and piracy." Ibid. (citing 4 W. Blackstone, Commentaries on the Laws of England 68 (1769)). "It was this narrow set of violations of the law of nations, admitting of a judicial remedy and at the same time threatening serious consequences in international affairs, that was probably on the minds of the men who drafted the ATS." 542 U.S., at 715, 124 S.Ct. 2739.
This history teaches that Congress drafted the ATS "to furnish jurisdiction for a relatively modest set of actions alleging violations of the law of nations." Id., at 720, 124 S.Ct. 2739. The principal objective of the statute, when first enacted, was to avoid foreign entanglements by ensuring the availability of a federal forum where the failure to provide one might cause another nation to hold the United States responsible for an injury to a foreign citizen. See id., at 715-719, 124 S.Ct. 2739 ; Kiobel, 569 U.S., at 123-124, 133 S.Ct. 1659.
Over the first 190 years or so after its enactment, the ATS was invoked but a few times. Yet with the evolving recognition-for instance, in the Nuremberg trials after World War II-that certain acts constituting crimes against humanity are in violation of basic precepts of international law, courts began to give some redress for violations of international human-rights protections that are clear and unambiguous. In the modern era this began with the decision of the Court of Appeals for the Second Circuit in Filartiga v. Pena-Irala, 630 F.2d 876 (1980).
In Filartiga, it was alleged that a young man had been tortured and murdered by Paraguayan police officers, and that an officer named Pena-Irala was one of the supervisors and perpetrators. Some members of the victim's family were in the United States on visas. When they discovered that Pena-Irala himself was living in New York, they filed suit against him. The action, seeking damages for the suffering and death he allegedly had caused, was filed in the United States District Court for the Eastern District of New York. The Court of Appeals found that there was jurisdiction under the ATS. For this holding it relied upon the universal acknowledgment that acts of official torture are contrary to the law of nations. Id., at 890. This Court did not review that decision.
In the midst of debates in the courts of appeals over whether the court in Filartiga was correct in holding that plaintiffs could bring ATS actions based on modern human-rights laws absent an express cause of action created by an additional statute, Congress enacted the Torture Victim Protection Act of 1991 (TVPA), 106 Stat. 73, note following 28 U.S.C. § 1350. H.R. Rep. No. 102-367, pp. 3-4 (1991) (H.R. Rep.) (citing Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (C.A.D.C.1984) ); S. Rep. No. 102-249, pp. 3-5 (1991) (S. Rep.) (same). The TVPA-which is codified as a note following the ATS-creates an express cause of action for victims of torture and extrajudicial killing in violation of international law.
After Filartiga and the TVPA, ATS lawsuits became more frequent. Modern ATS litigation has the potential to involve large groups of foreign plaintiffs suing foreign corporations in the United States for alleged human-rights violations in other nations. For example, in Kiobel the plaintiffs were Nigerian nationals who sued Dutch, British, and Nigerian corporations for alleged crimes in Nigeria. 569 U.S., at 111-112, 133 S.Ct. 1659. The extent and scope of this litigation in United States courts have resulted in criticism here and abroad. See id., at 124, 133 S.Ct. 1659 (noting objections to ATS litigation by Canada, Germany, Indonesia, Papua New Guinea, South Africa, Switzerland, and the United Kingdom).
In Sosa, the Court considered the question whether courts may recognize new, enforceable international norms in ATS lawsuits. 542 U.S., at 730-731, 124 S.Ct. 2739. The Sosa Court acknowledged the decisions made in Filartiga and similar cases; and it held that in certain narrow circumstances courts may recognize a common-law cause of action for claims based on the present-day law of nations, in addition to the "historical paradigms familiar when § 1350 was enacted." 542 U.S., at 732, 124 S.Ct. 2739. The Court was quite explicit, however, in holding that ATS litigation implicates serious separation-of-powers and foreign-relations concerns. Id., at 727-728, 124 S.Ct. 2739. Thus, ATS claims must be "subject to vigilant doorkeeping." Id., at 729, 124 S.Ct. 2739.
This Court next addressed the ATS in Kiobel, the case already noted. There, this Court held that "the presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts the presumption." 569 U.S., at 124, 133 S.Ct. 1659. The Court added that "even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application." Id., at 124-125, 133 S.Ct. 1659.
II
With these principles in mind, this Court now must decide whether common-law liability under the ATS extends to a foreign corporate defendant. It could be argued, under the Court's holding in Kiobel, that even if, under accepted principles of international law and federal common law, corporations are subject to ATS liability for human-rights crimes committed by their human agents, in this case the activities of the defendant corporation and the alleged actions of its employees have insufficient connections to the United States to subject it to jurisdiction under the ATS. Various amici urge this as a rationale to affirm here, while the Government argues that the Court should remand this case so the Court of Appeals can address the issue in the first instance. There are substantial arguments on both sides of that question; but it is not the question on which this Court granted certiorari, nor is it the question that has divided the Courts of Appeals.
The question whether foreign corporations are subject to liability under the ATS should be addressed; for, if there is no liability for Arab Bank, the lengthy and costly litigation concerning whether corporate contacts like those alleged here suffice to impose liability would be pointless. In addition, a remand to the Court of Appeals would require prolonging litigation that already has caused significant diplomatic tensions with Jordan for more than a decade. So it is proper for this Court to decide whether corporations, or at least foreign corporations, are subject to liability in an ATS suit filed in a United States district court.
Before recognizing a common-law action under the ATS, federal courts must apply the test announced in Sosa . An initial, threshold question is whether a plaintiff can demonstrate that the alleged violation is "of a norm that is specific, universal, and obligatory." 542 U.S., at 732, 124 S.Ct. 2739 (internal quotation marks omitted). And even assuming that, under international law, there is a specific norm that can be controlling, it must be determined further whether allowing this case to proceed under the ATS is a proper exercise of judicial discretion, or instead whether caution requires the political branches to grant specific authority before corporate liability can be imposed. See id., at 732-733, and nn. 20-21, 124 S.Ct. 2739. "[T]he potential implications for the foreign relations of the United States of recognizing such causes should make courts particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs." Id., at 727, 124 S.Ct. 2739.
It must be said that some of the considerations that pertain to determining whether there is a specific, universal, and obligatory norm that is established under international law are applicable as well in determining whether deference must be given to the political branches. For instance, the fact that the charters of some international tribunals and the provisions of some congressional statutes addressing international human-rights violations are specifically limited to individual wrongdoers, and thus foreclose corporate liability, has significant bearing both on the content of the norm being asserted and the question whether courts should defer to Congress. The two inquiries inform each other and are, to that extent, not altogether discrete.
With that introduction, it is proper now to turn first to the question whether there is an international-law norm imposing liability on corporations for acts of their employees that contravene fundamental human rights.
A
Petitioners and Arab Bank disagree as to whether corporate liability is a question of international law or only a question of judicial authority and discretion under domestic law. The dispute centers on a footnote in Sosa . In the course of holding that international norms must be "sufficiently definite to support a cause of action," the Court in Sosa noted that a "related consideration is whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or individual." Id ., at 732, and n. 20, 124 S.Ct. 2739.
In the Court of Appeals' decision in Kiobel, the majority opinion by Judge Cabranes interpreted footnote 20 to mean that corporate defendants may be held liable under the ATS only if there is a specific, universal, and obligatory norm that corporations are liable for violations of international law. 621 F.3d, at 127. In Judge Cabranes' view, "[i]nternational law is not silent on the question of the subjects of international law-that is, those that, to varying extents, have legal status, personality, rights, and duties under international law," "[n]or does international law leave to individual States the responsibility of defining those subjects." Id., at 126 (internal quotation marks omitted). There is considerable force and weight to the position articulated by Judge Cabranes. And, assuming the Court of Appeals was correct that under Sosa corporate liability is a question of international law, there is an equally strong argument that petitioners cannot satisfy the high bar of demonstrating a specific, universal, and obligatory norm of liability for corporations. Indeed, Judge Leval agreed with the conclusion that international law does "not provide for any form of liability of corporations." Kiobel, 621 F.3d, at 186.
1
In modern times, there is no doubt, of course, that "the international community has come to recognize the common danger posed by the flagrant disregard of basic human rights," leading "the nations of the world to recognize that respect for fundamental human rights is in their individual and collective interest." Filartiga, 630 F.2d, at 890. That principle and commitment support the conclusion that human-rights norms must bind the individual men and women responsible for committing humanity's most terrible crimes, not just nation-states in their interactions with one another. "The singular achievement of international law since the Second World War has come in the area of human rights," where international law now imposes duties on individuals as well as nation-states. Kiobel, 621 F.3d, at 118.
It does not follow, however, that current principles of international law extend liability-civil or criminal-for human-rights violations to corporations or other artificial entities. This is confirmed by the fact that the charters of respective international criminal tribunals often exclude corporations from their jurisdictional reach.
The Charter for the Nuremberg Tribunal, created by the Allies after World War II, provided that the Tribunal had jurisdiction over natural persons only. See Agreement for Prosecution and Punishment of Major War Criminals of the European Axis, Art. 6, Aug. 8, 1945, 59 Stat. 1547, E.A.S. 472. Later, a United States Military Tribunal prosecuted 24 executives of the German corporation IG Farben. 7 Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10, pp. 11-60 (1952) (The Farben Case ). Among other crimes, Farben's employees had operated a slave-labor camp at Auschwitz and "knowingly and intentionally manufactured and provided" the poison gas used in the Nazi death chambers. Kiobel, 621 F.3d, at 135. Although the Military Tribunal "used the term 'Farben' as descriptive of the instrumentality of cohesion in the name of which" the crimes were committed, the Tribunal noted that "corporations act through individuals." 8 The Farben Case, at 1153. Farben itself was not held liable. See ibid.
The jurisdictional reach of more recent international tribunals also has been limited to "natural persons." See Statute of the International Criminal Tribunal for the Former Yugoslavia, S.C. Res. 827 (May 25, 1993), adopting U.N. Secretary-General Rep. Pursuant to Paragraph 2 of Security Council Resolution 808, Art. 6, U.N. Doc. S/25704 (May 3, 1993); Statute of the International Tribunal for Rwanda, Art. 5, S.C. Res. 955, Art. 5 (Nov. 8, 1994). The Rome Statute of the International Criminal Court, for example, limits that tribunal's jurisdiction to "natural persons." See Rome Statute of the International Criminal Court, Art. 25(1), July 17, 1998, 2187 U.N.T.S. 90. The drafters of the Rome Statute considered, but rejected, a proposal to give the International Criminal Court jurisdiction over corporations. Eser, Individual Criminal Responsibility, in 1 Rome Statute of the International Criminal Court 767, 778-779 (A. Cassese et al. eds. 2002).
The international community's conscious decision to limit the authority of these international tribunals to natural persons counsels against a broad holding that there is a specific, universal, and obligatory norm of corporate liability under currently prevailing international law.
2
In light of the sources just discussed, the sources petitioners rely on to support their contention that liability for corporations is well established as a matter of international law lend weak support to their position.
Petitioners first point to the International Convention for the Suppression of the Financing of Terrorism. This Convention imposes an obligation on "Each State Party" "to enable a legal entity located in its territory or organized under its laws to be held liable when a person responsible for the management or control of that legal entity has, in that capacity," violated the Convention. International Convention for the Suppression of the Financing of Terrorism, Dec. 9, 1999, S. Treaty Doc. No. 106-49, 2178 U.N.T.S. 232. But by its terms the Convention imposes its obligations only on nation-states "to enable" corporations to be held liable in certain circumstances under domestic law. The United States and other nations, including Jordan, may fulfill their obligations under the Convention by adopting detailed regulatory regimes governing financial institutions. See, e.g., 18 U.S.C. § 2333(a) (private right of action under the Anti-Terrorism Act); 31 U.S.C. § 5311 et seq. (Bank Secrecy Act); 31 C.F.R. pt. 595 (2017) (Terrorism Sanctions Regulations); Brief for Central Bank of Jordan as Amicus Curiae 5 (describing Jordan's "comprehensive approach to preventing money laundering and terrorist financing"). The Convention neither requires nor authorizes courts, without congressional authorization, to displace those detailed regulatory regimes by allowing common-law actions under the ATS. And nothing in the Convention's text requires signatories to hold corporations liable in common-law tort actions raising claims under international law.
In addition, petitioners and their amici cite a few cases from other nations and the Special Tribunal for Lebanon that, according to petitioners, are examples of corporations being held liable for violations of international law. E.g., Brief for Petitioners 50-51. Yet even assuming that these cases are relevant examples, at most they demonstrate that corporate liability might be permissible under international law in some circumstances. That falls far short of establishing a specific, universal, and obligatory norm of corporate liability.
It must be remembered that international law is distinct from domestic law in its domain as well as its objectives. International human-rights norms prohibit acts repugnant to all civilized peoples-crimes like genocide, torture, and slavery, that make their perpetrators "enem[ies] of all mankind." Sosa, 542 U.S., at 732, 124 S.Ct. 2739 (internal quotation marks omitted). In the American legal system, of course, corporations are often subject to liability for the conduct of their human employees, and so it may seem necessary and natural that corporate entities are liable for violations of international law under the ATS. It is true, furthermore, that the enormity of the offenses that can be committed against persons in violation of international human-rights protections can be cited to show that corporations should be subject to liability for the crimes of their human agents. But the international community has not yet taken that step, at least in the specific, universal, and obligatory manner required by Sosa . Indeed, there is precedent to the contrary in the statement during the Nuremberg proceedings that "[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced." The Nurnberg Trial, 6 F.R.D. 69, 110 (1946).
Petitioners also contend that international law leaves questions of remedies open for determination under domestic law. As they see it, corporate liability is a remedial consideration, not a substantive principle that must be supported by a universal and obligatory norm if it is to be implemented under the ATS. According to petitioners, footnote 20 in Sosa does no more than recognize the distinction in international law between state and private actors. But, as just explained, there is a similar distinction in international law between corporations and natural persons. And it is far from obvious why the question whether corporations may be held liable for the international crimes of their employees is a mere question of remedy.
In any event, the Court need not resolve the questions whether corporate liability is a question that is governed by international law, or, if so, whether international law imposes liability on corporations. There is at least sufficient doubt on the point to turn to Sosa 's second question-whether the Judiciary must defer to Congress, allowing it to determine in the first instance whether that universal norm has been recognized and, if so, whether it is prudent and necessary to direct its enforcement in suits under the ATS.
B
1
Sosa is consistent with this Court's general reluctance to extend judicially created private rights of action. The Court's recent precedents cast doubt on the authority of courts to extend or create private causes of action even in the realm of domestic law, where this Court has "recently and repeatedly said that a decision to create a private right of action is one better left to legislative judgment in the great majority of cases." 542 U.S., at 727, 124 S.Ct. 2739 (citing Correctional Services Corp. v. Malesko, 534 U.S. 61, 68, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) ; Alexander v. Sandoval, 532 U.S. 275, 286-287, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) ). That is because "the Legislature is in the better position to consider if the public interest would be served by imposing a new substantive legal liability." Ziglar v. Abbasi, 582 U.S. ----, ----, 137 S.Ct. 1843, 1857, 198 L.Ed.2d 290 (2017) (internal quotation marks omitted). Thus, "if there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy, ... courts must refrain from creating the remedy in order to respect the role of Congress." Id., at ----, 137 S.Ct., at 1858.
This caution extends to the question whether the courts should exercise the judicial authority to mandate a rule that imposes liability upon artificial entities like corporations. Thus, in Malesko the Court held that corporate defendants may not be held liable in Bivens actions. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Allowing corporate liability would have been a "marked extension" of Bivens that was unnecessary to advance its purpose of holding individual officers responsible for "engaging in unconstitutional wrongdoing." Malesko, 534 U.S., at 74, 122 S.Ct. 515. Whether corporate defendants should be subject to suit was "a question for Congress, not us, to decide." Id., at 72, 122 S.Ct. 515.
Neither the language of the ATS nor the precedents interpreting it support an exception to these general principles in this context. In fact, the separation-of-powers concerns that counsel against courts creating private rights of action apply with particular force in the context of the ATS. See infra, at 1406 - 1407. The political branches, not the Judiciary, have the responsibility and institutional capacity to weigh foreign-policy concerns. See Kiobel, 569 U.S., at 116-117, 133 S.Ct. 1659. That the ATS implicates foreign relations "is itself a reason for a high bar to new private causes of action for violating international law." Sosa, supra, at 727, 124 S.Ct. 2739.
In Sosa, the Court emphasized that federal courts must exercise "great caution" before recognizing new forms of liability under the ATS. 542 U.S., at 728, 124 S.Ct. 2739. In light of the foreign-policy and separation-of-powers concerns inherent in ATS litigation, there is an argument that a proper application of Sosa would preclude courts from ever recognizing any new causes of action under the ATS. But the Court need not resolve that question in this case. Either way, absent further action from Congress it would be inappropriate for courts to extend ATS liability to foreign corporations.
2
Even in areas less fraught with foreign-policy consequences, the Court looks to analogous statutes for guidance on the appropriate boundaries of judge-made causes of action. See, e.g., Miles v. Apex Marine Corp., 498 U.S. 19, 24, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990) ; Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 736, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975). Doing so is even more important in the realm of international law, where "the general practice has been to look for legislative guidance before exercising innovative authority over substantive law." Sosa, supra, at 726, 124 S.Ct. 2739.
Here, the logical place to look for a statutory analogy to an ATS common-law action is the TVPA-the only cause of action under the ATS created by Congress rather than the courts. As explained above, Congress drafted the TVPA to "establish an unambiguous and modern basis for a cause of action" under the ATS. H.R. Rep., at 3; S. Rep., at 4-5. Congress took care to delineate the TVPA's boundaries. In doing so, it could weigh the foreign-policy implications of its rule. Among other things, Congress specified who may be liable, created an exhaustion requirement, and established a limitations period. Kiobel, 569 U.S., at 117, 133 S.Ct. 1659. In Kiobel, the Court recognized that "[e]ach of these decisions carries with it significant foreign policy implications." Ibid. The TVPA reflects Congress' considered judgment of the proper structure for a right of action under the ATS. Absent a compelling justification, courts should not deviate from that model.
The key feature of the TVPA for this case is that it limits liability to "individuals," which, the Court has held, unambiguously limits liability to natural persons. Mohamad v. Palestinian Authority, 566 U.S. 449, 453-456, 132 S.Ct. 1702, 182 L.Ed.2d 720 (2012). Congress' decision to exclude liability for corporations in actions brought under the TVPA is all but dispositive of the present case. That decision illustrates that significant foreign-policy implications require the courts to draw a careful balance in defining the scope of actions under the ATS. It would be inconsistent with that balance to create a remedy broader than the one created by Congress. Indeed, it "would be remarkable to take a more aggressive role in exercising a jurisdiction that remained largely in shadow for much of the prior two centuries." Sosa, supra, at 726, 124 S.Ct. 2739.
According to petitioners, the TVPA is not a useful guidepost because Congress limited liability under that statute to "individuals" out of concern for the sovereign immunity of foreign governmental entities, not out of general hesitation about corporate liability under the ATS. The argument seems to run as follows: The TVPA provides a right of action to victims of torture and extrajudicial killing, and under international law those human-rights violations require state action. For a corporation's employees to violate these norms therefore would require the corporation to be an instrumentality of a foreign state or other sovereign entity. That concern is absent, petitioners insist, for crimes that lack a state-action requirement-for example, genocide, slavery, or, in the present case, the financing of terrorists.
At least two flaws inhere in this argument. First, in Mohamad the Court unanimously rejected petitioners' account of the TVPA's legislative history. 566 U.S., at 453, 458-460, 132 S.Ct. 1702. The Court instead read that history to demonstrate that Congress acted to exclude all corporate entities, not just the sovereign ones. Id ., at 459-460, 132 S.Ct. 1702 (citing Hearing and Markup on H.R. 1417 before the House Committee on Foreign Affairs and Its Subcommittee on Human Rights and International Organizations, 100th Cong., 2d Sess., 87-88 (1988)); see also 566 U.S., at 461-462, 132 S.Ct. 1702 (BREYER, J., concurring). Second, even for international-law norms that do not require state action, plaintiffs can still use corporations as surrogate defendants to challenge the conduct of foreign governments. In Kiobel, for example, the plaintiffs sought to hold a corporate defendant liable for "aiding and abetting the Nigerian Government in committing," among other things, "crimes against humanity." 569 U.S., at 114, 133 S.Ct. 1659 ; see also, e.g., Sarei v. Rio Tinto, PLC, 671 F.3d 736, 761-763 (C.A.9 2011) (en banc) (corporate defendant allegedly used Papua New Guinea's military to commit genocide), vacated and remanded, 569 U.S. 945, 133 S.Ct. 1995, 185 L.Ed.2d 863 (2013).
Petitioners contend that, instead of the TVPA, the most analogous statute here is the Anti-Terrorism Act. That Act does permit suits against corporate entities. See 18 U.S.C. §§ 2331(3), 2333(d)(2). In fact, in these suits some of the foreign plaintiffs joined their claims to those of United States nationals suing Arab Bank under the Anti-Terrorism Act. But the Anti-Terrorism Act provides a cause of action only to "national[s] of the United States," and their "estate, survivors, or heirs." § 2333(a). In contrast, the ATS is available only for claims brought by "an alien." 28 U.S.C. § 1350. A statute that excludes foreign nationals (with the possible exception of foreign survivors or heirs) is an inapt analogy for a common-law cause of action that provides a remedy for foreign nationals only.
To the extent, furthermore, that the Anti-Terrorism Act is relevant it suggests that there should be no common-law action under the ATS for allegations like petitioners'. Otherwise, foreign plaintiffs could bypass Congress' express limitations on liability under the Anti-Terrorism Act simply by bringing an ATS lawsuit. The Anti-Terrorism Act, as mentioned above, is part of a comprehensive statutory and regulatory regime that prohibits terrorism and terrorism financing. The detailed regulatory structures prescribed by Congress and the federal agencies charged with oversight of financial institutions reflect the careful deliberation of the political branches on when, and how, banks should be held liable for the financing of terrorism. It would be inappropriate for courts to displace this considered statutory and regulatory structure by holding banks subject to common-law liability in actions filed under the ATS.
In any event, even if the Anti-Terrorism Act were a suitable model for an ATS suit, Congress' decision in the TVPA to limit liability to individuals still demonstrates that there are two reasonable choices. In this area, that is dispositive-Congress, not the Judiciary, must decide whether to expand the scope of liability under the ATS to include foreign corporations.
3
Other considerations relevant to the exercise of judicial discretion also counsel against allowing liability under the ATS for foreign corporations, absent instructions from Congress to do so. It has not been shown that corporate liability under the ATS is essential to serve the goals of the statute. As to the question of adequate remedies, the ATS will seldom be the only way for plaintiffs to hold the perpetrators liable. See, e.g., 18 U.S.C. § 1091 (criminal prohibition on genocide); § 1595 (civil remedy for victims of slavery). And plaintiffs still can sue the individual corporate employees responsible for a violation of international law under the ATS. If the Court were to hold that foreign corporations have liability for international-law violations, then plaintiffs may well ignore the human perpetrators and concentrate instead on multinational corporate entities.
As explained above, in the context of criminal tribunals international law itself generally limits liability to natural persons. Although the Court need not decide whether the seeming absence of a specific, universal, and obligatory norm of corporate liability under international law by itself forecloses petitioners' claims against Arab Bank, or whether this is an issue governed by international law, the lack of a clear and well-established international-law rule is of critical relevance in determining whether courts should extend ATS liability to foreign corporations without specific congressional authorization to do so. That is especially so in light of the TVPA's limitation of liability to natural persons, which parallels the distinction between corporations and individuals in international law.
If, moreover, the Court were to hold that foreign corporations may be held liable under the ATS, that precedent-setting principle "would imply that other nations, also applying the law of nations, could hale our [corporations] into their courts for alleged violations of the law of nations." Kiobel, 569 U.S., at 124, 133 S.Ct. 1659. This judicially mandated doctrine, in turn, could subject American corporations to an immediate, constant risk of claims seeking to impose massive liability for the alleged conduct of their employees and subsidiaries around the world, all as determined in foreign courts, thereby "hinder[ing] global investment in developing economies, where it is most needed." Brief for United States as Amicus Curiae in American Isuzu Motors, Inc. v. Ntsebeza, O.T. 2007, No. 07-919, p. 20 (internal quotation marks omitted).
In other words, allowing plaintiffs to sue foreign corporations under the ATS could establish a precedent that discourages American corporations from investing abroad, including in developing economies where the host government might have a history of alleged human-rights violations, or where judicial systems might lack the safeguards of United States courts. And, in consequence, that often might deter the active corporate investment that contributes to the economic development that so often is an essential foundation for human rights.
It is also true, of course, that natural persons can and do use corporations for sinister purposes, including conduct that violates international law. That the corporate form can be an instrument for inflicting grave harm and suffering poses serious and complex questions both for the international community and for Congress. So there are strong arguments for permitting the victims to seek relief from corporations themselves. Yet the urgency and complexity of this problem make it all the more important that Congress determine whether victims of human-rights abuses may sue foreign corporations in federal courts in the United States. Congress, not the Judiciary, is the branch with "the facilities necessary to make fairly such an important policy decision where the possibilities of international discord are so evident and retaliative action so certain." Kiobel, 569 U.S., at 116, 133 S.Ct. 1659 (internal quotation marks omitted). As noted further below, there are many delicate and important considerations that Congress is in a better position to examine in determining whether and how best to impose corporate liability. And, as the TVPA illustrates, Congress is well aware of the necessity of clarifying the proper scope of liability under the ATS in a timely way.
C
The ATS was intended to promote harmony in international relations by ensuring foreign plaintiffs a remedy for international-law violations in circumstances where the absence of such a remedy might provoke foreign nations to hold the United States accountable. Brief for United States as Amicus Curiae 7. But here, and in similar cases, the opposite is occurring.
Petitioners are foreign nationals seeking hundreds of millions of dollars in damages from a major Jordanian financial institution for injuries suffered in attacks by foreign terrorists in the Middle East. The only alleged connections to the United States are the CHIPS transactions in Arab Bank's New York branch and a brief allegation regarding a charity in Texas. The Court of Appeals did not address, and the Court need not now decide, whether these allegations are sufficient to "touch and concern" the United States under Kiobel . See 569 U.S., at 124-125, 133 S.Ct. 1659.
At a minimum, the relatively minor connection between the terrorist attacks at issue in this case and the alleged conduct in the United States well illustrates the perils of extending the scope of ATS liability to foreign multinational corporations like Arab Bank. For 13 years, this litigation has "caused significant diplomatic tensions" with Jordan, a critical ally in one of the world's most sensitive regions. Brief for United States as Amicus Curiae 30. "Jordan is a key counterterrorism partner, especially in the global campaign to defeat the Islamic State in Iraq and Syria." Id., at 31. The United States explains that Arab Bank itself is "a constructive partner with the United States in working to prevent terrorist financing." Id., at 32 (internal quotation marks omitted). Jordan considers the instant litigation to be a "grave affront" to its sovereignty. See Brief for Hashemite Kingdom of Jordan as Amicus Curiae 3; see ibid. ("By exposing Arab Bank to massive liability, this suit thus threatens to destabilize Jordan's economy and undermine its cooperation with the United States").
This is not the first time, furthermore, that a foreign sovereign has appeared in this Court to note its objections to ATS litigation. Sosa, 542 U.S., at 733, n. 21, 124 S.Ct. 2739 (noting objections by the European Commission and South Africa); Brief for the Federal Republic of Germany as Amicus Curiae in Kiobel v. Royal Dutch Petroleum Co., O.T. 2012, No. 10-1491, p. 1; Brief for the Government of the United Kingdom of Great Britain and Northern Ireland and the Kingdom of the Netherlands as Amici Curiae in No. 10-1491, p. 3. These are the very foreign-relations tensions the First Congress sought to avoid.
Petitioners insist that whatever the faults of this litigation-for example, its tenuous connections to the United States and the prolonged diplomatic disruptions it has caused-the fact that Arab Bank is a foreign corporate entity, as distinct from a natural person, is not one of them. That misses the point. As demonstrated by this litigation, foreign corporate defendants create unique problems. And courts are not well suited to make the required policy judgments that are implicated by corporate liability in cases like this one.
Like the presumption against extraterritoriality, judicial caution under Sosa "guards against our courts triggering ... serious foreign policy consequences, and instead defers such decisions, quite appropriately, to the political branches." Kiobel, 569 U.S., at 124, 133 S.Ct. 1659. If, in light of all the concerns that must be weighed before imposing liability on foreign corporations via ATS suits, the Court were to hold that it has the discretion to make that determination, then the cautionary language of Sosa would be little more than empty rhetoric. Accordingly, the Court holds that foreign corporations may not be defendants in suits brought under the ATS.
III
With the ATS, the First Congress provided a federal remedy for a narrow category of international-law violations committed by individuals. Whether, more than two centuries on, a similar remedy should be available against foreign corporations is similarly a decision that Congress must make.
The political branches can determine, referring to international law to the extent they deem proper, whether to impose liability for human-rights violations upon foreign corporations in this Nation's courts, and, conversely, that courts in other countries should be able to hold United States corporations liable. Congress might determine that violations of international law do, or should, impose that liability to ensure that corporations make every effort to deter human-rights violations, and so that, even when those efforts cannot be faulted, compensation for injured persons will be a cost of doing business. If Congress and the Executive were to determine that corporations should be liable for violations of international law, that decision would have special power and force because it would be made by the branches most immediately responsive to, and accountable to, the electorate.
It is still another possibility that, in the careful exercise of its expertise in the field of foreign affairs, Congress might conclude that neutral judicial safeguards may not be ensured in every country; and so, as a reciprocal matter, it could determine that liability of foreign corporations under the ATS should be subject to some limitations or preconditions. Congress might deem this more careful course to be the best way to encourage American corporations to undertake the extensive investments and foreign operations that can be an important beginning point for creating the infrastructures that allow human rights, as well as judicial safeguards, to emerge. These delicate judgments, involving a balance that it is the prerogative of the political branches to make, especially in the field of foreign affairs, would, once again, also be entitled to special respect, especially because those careful distinctions might themselves advance the Rule of Law. All this underscores the important separation-of-powers concerns that require the Judiciary to refrain from making these kinds of decisions under the ATS. The political branches, moreover, surely are better positioned than the Judiciary to determine if corporate liability would, or would not, create special risks of disrupting good relations with foreign governments.
Finally, Congress might find that corporate liability should be limited to cases where a corporation's management was actively complicit in the crime. Cf. ALI, Model Penal Code § 2.07(1)(c) (1985) (a corporation may be held criminally liable where "the commission of the offense was authorized, requested, commanded, performed or recklessly tolerated by the board of directors or by a high managerial agent acting on behalf of the corporation within the scope of his office or employment"). Again, the political branches are better equipped to make the preliminary findings and consequent conclusions that should inform this determination.
These and other considerations that must shape and instruct the formulation of principles of international and domestic law are matters that the political branches are in the better position to define and articulate. For these reasons, judicial deference requires that any imposition of corporate liability on foreign corporations for violations of international law must be determined in the first instance by the political branches of the Government.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
Justice THOMAS, concurring.
I join the Court's opinion in full because it correctly applies our precedents. I also agree with the points raised by my concurring colleagues. Courts should not be in the business of creating new causes of action under the Alien Tort Statute, see post, at 1412 - 1414 (GORSUCH, J., concurring in part and concurring in judgment), especially when it risks international strife, see post, at 1408 (ALITO, J., concurring in part and concurring in judgment). And the Alien Tort Statute likely does not apply to suits between foreign plaintiffs and foreign defendants. See post, at 1414 - 1419 (opinion of GORSUCH, J.).
Justice ALITO, concurring in part and concurring in the judgment.
Creating causes of action under the Alien Tort Statute against foreign corporate defendants would precipitate exactly the sort of diplomatic strife that the law was enacted to prevent. As a result, I agree with the Court that we should not take that step, and I join Parts I, II-B-1, and II-C of the opinion of the Court. I write separately to elaborate on why that outcome is compelled not only by "judicial caution," ante, at 1407 (majority opinion), but also by the separation of powers.
I
The ATS is a jurisdictional statute. It provides that "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." 28 U.S.C. § 1350. By its terms, the ATS does not create any causes of action.
In Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004), however, this Court nevertheless held that federal courts, exercising their authority in limited circumstances to make federal common law, may create causes of action that aliens may assert under the ATS. That holding takes some explaining.
According to Sosa, when the First Congress enacted the ATS in 1789, it assumed that the statute would "have practical effect the moment it became law" because the general common law "would provide a cause of action for [a] modest number of international law violations." Id., at 724, 124 S.Ct. 2739. That assumption, however, depended on the continued existence of the general common law. And in 1938-a century and a half after Congress enacted the ATS-this Court rejected the "fallacy" underlying the general common law, declaring definitively that "[t]here is no federal general common law." Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 79, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). That left the ATS in an awkward spot: Congress had not created any causes of action for the statute on the assumption that litigants would use those provided by the general common law, but now the general common law was no more.
In Sosa, this Court did its best to resolve that problem. "[I]t would be unreasonable to assume," the Court explained, "that the First Congress would have expected federal courts to lose all capacity to recognize enforceable international norms simply because the [general] common law might lose some metaphysical cachet on the road to modern realism." 542 U.S., at 730, 124 S.Ct. 2739. Although the general common law was gone, the Court concluded, federal courts could still exercise their authority to create so-called "federal common law" for those " 'few and restricted' " areas "in which Congress has given the courts the power to develop substantive law." Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640, 101 S.Ct. 2061, 68 L.Ed.2d 500 (1981). Sosa interpreted the ATS as conferring such authorization.
As a result, Sosa held that federal courts, subject to certain conditions, may "recognize private causes of action [under the ATS] for certain torts in violation of the law of nations." 542 U.S., at 724, 124 S.Ct. 2739. But before doing so, Sosa stressed, courts should follow a two-step process. First, they should ensure that the contemplated cause of action reflects an international law norm that is " 'specific, universal and obligatory.' " Id., at 732, 124 S.Ct. 2739. Second, if a suitable norm is identified, federal courts should decide whether there is any other reason to limit "the availability of relief." Id., at 733, n. 21, 124 S.Ct. 2739.
II
For the reasons articulated by Justice Scalia in Sosa and by Justice GORSUCH today, I am not certain that Sosa was correctly decided. See id., at 739-751, 124 S.Ct. 2739 (Scalia, J., dissenting); post, at 1412 - 1414 (GORSUCH, J., concurring in part and concurring in judgment). But even taking that decision on its own terms, this Court should not create causes of action under the ATS against foreign corporate defendants. As part of Sosa 's second step, a court should decline to create a cause of action as a matter of federal common law where the result would be to further, not avoid, diplomatic strife. Properly applied, that rule easily resolves the question presented by this case.
Sosa interpreted the ATS to authorize the federal courts to create causes of action as a matter of federal common law. We have repeatedly emphasized that "in fashioning federal [common law] principles to govern areas left open by Congress, our function is to effectuate congressional policy." United States v. Kimbell Foods, Inc., 440 U.S. 715, 738, 99 S.Ct. 1448, 59 L.Ed.2d 711 (1979). Fidelity to congressional policy is not only prudent but necessary: Going beyond the bounds of Congress's authorization would mean unconstitutionally usurping part of the "legislative Powers." U.S. Const. Art. I, § 1. Accordingly, the objective for courts in every case requiring the creation of federal common law must be "to find the rule that will best effectuate the federal policy." Textile Workers v. Lincoln Mills of Ala., 353 U.S. 448, 457, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957).
The ATS was meant to help the United States avoid diplomatic friction. The First Congress enacted the law to provide a forum for adjudicating that "narrow set of violations of the law of nations" that, if left unaddressed, "threaten[ed] serious consequences" for the United States. Sosa, 542 U.S., at 715, 124 S.Ct. 2739 ; see also Brief for Professors of International Law et al. as Amici Curiae 7-12. Specifically, the First Congress was concerned about offenses like piracy, violation of safe conducts, and infringement of the rights of ambassadors, each of which "if not adequately redressed could rise to an issue of war." Sosa, supra, at 715, 124 S.Ct. 2739. That threat was existentially terrifying for the young Nation. See Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 123-124, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013). To minimize the danger, the First Congress enacted the ATS, "ensur[ing] that the United States could provide a forum for adjudicating such incidents" and thus helping the Nation avoid further diplomatic imbroglios. Id., at 124, 133 S.Ct. 1659 ; see ante, at 1406 (majority opinion).
Putting that objective together with the rules governing federal common law generally, the following principle emerges: Federal courts should decline to create federal common law causes of action under Sosa 's second step whenever doing so would not materially advance the ATS's objective of avoiding diplomatic strife. And applying that principle here, it is clear that federal courts should not create causes of action under the ATS against foreign corporate defendants. All parties agree that customary international law does not require corporate liability as a general matter. See Brief for Petitioners 30; Brief for Respondent 22; see also ante, at 1427 (plurality opinion); post, at 1420 - 1421 (SOTOMAYOR, J., dissenting). But if customary international law does not require corporate liability, then declining to create it under the ATS cannot give other nations just cause for complaint against the United States.
To the contrary, ATS suits against foreign corporations may provoke-and, indeed, frequently have provoked-exactly the sort of diplomatic strife inimical to the fundamental purpose of the ATS. Some foreign states appear to interpret international law as foreclosing civil corporate liability for violations of the law of nations.
See Brief for Government of the United Kingdom et al. as Amici Curiae in Kiobel v. Royal Dutch Petroleum Co., O.T. 2012, No. 10-1491, p. 14. Creating ATS causes of action against foreign corporate defendants would put the United States at odds with these nations. Even when states do not object to this sort of corporate liability as a legal matter, they may be concerned about ATS suits against their corporations for political reasons. For example, Jordan considers this suit "a direct affront" to its sovereignty and one that "risks destabilizing Jordan's economy and undercutting one of the most stable and productive alliances the United States has in the Middle East." Brief for Hashemite Kingdom of Jordan as Amicus Curiae 4. Courting these sorts of problems-which seem endemic to ATS litigation-was the opposite of what the First Congress had in mind.
In response, the dissent argues merely that any diplomatic friction "can be addressed with a tool more tailored to the source of the problem than a blanket ban on corporate liability." Post, at 1429. Even on its own terms, that argument is problematic: Many of the "more tailored" tools offered by the dissent will still be hotly litigated by ATS plaintiffs, and it may be years before incorrect initial decisions about their applicability can be reviewed by the courts of appeals. See ante, at 1398 (plurality opinion).
In any event, the dissent misunderstands the relevant standard. The question before us is whether the United States would be embroiled in fewer international controversies if we created causes of action under the ATS against foreign corporate defendants. Unless corporate liability would actively decrease diplomatic disputes, we have no authority to act. On that score, the dissent can only speculate that declining to create causes of action against foreign corporate defendants "might" lead to diplomatic friction. Post, at 1435. But the dissent has no real-world examples to support its hunch, and that is not surprising; the ATS already goes further than any other statute in the world in granting aliens the right to sue civilly for violations of international law, especially in light of the many other avenues for relief available. See ante, at 1405 (plurality opinion). It would be rather rich for any other nation to complain that the ATS does not go far enough. Indeed, no country has.
Finally, the dissent invokes "the considered judgment of the Executive Branch and Congress" that ATS suits against foreign corporations are "necessary 'to help the United States avoid diplomatic friction.' " Post, at 1435, n. 13. Tellingly, however, the dissent cannot muster a single source that actually supports that bold contention. Instead, the dissent immediately retreats to two far more modest assertions. First, the dissent observes that the Executive Branch has twice suggested that this Court should allow causes of action against corporate defendants under the ATS. But both times the Executive Branch defended that perspective primarily under the first step of Sosa ; here, however, we are dealing with Sosa 's second step, and with the risk of diplomatic friction in particular. Second, the dissent also notes that the Executive Branch and Congress have each taken steps to hold corporations liable for certain acts like terrorism. Post, at 1436, n. 13. That is, of course, true, but it is also entirely irrelevant. Congress and the Executive Branch may be willing to trade off the risk of some diplomatic friction in exchange for the promotion of other objectives (such as "holding foreign corporations to account for certain egregious conduct," ibid. ). That is their prerogative as the political branches. But consistent with the separation of powers, we have neither the luxury nor the right to make such policy decisions ourselves.
Creating causes of action under the ATS against foreign corporate defendants would be a no-win proposition. Foreign corporate liability would not only fail to meaningfully advance the objectives of the ATS, but it would also lead to precisely those "serious consequences in international affairs" that the ATS was enacted to avoid. Sosa, 542 U.S., at 715, 124 S.Ct. 2739. Under those circumstances, federal courts have a duty to refrain from acting. Although that may make it more difficult for aliens to hold foreign corporations liable for human rights abuses, we have repeatedly rejected the view that the ATS was meant to transform the federal courts into forums for the litigation of all human rights suits. See ante, at 1422 - 1424, 1432 - 1433 (majority opinion); Kiobel, 569 U.S., at 123-124, 133 S.Ct. 1659 ; Sosa, supra, at 715-718, 124 S.Ct. 2739. Declining to extend the ATS to foreign corporate defendants is thus not about "[i]mmunizing corporations that violate human rights," post, at 1437, but rather about furthering the purpose that the ATS was actually meant to serve-avoiding diplomatic strife.
Justice GORSUCH, concurring in part and concurring in the judgment.
I am pleased to join the Court's judgment and Parts I, II-B-1, and II-C of its opinion. Respectfully, though, I believe there are two more fundamental reasons why this lawsuit must be dismissed. A group of foreign plaintiffs wants a federal court to invent a new cause of action so they can sue another foreigner for allegedly breaching international norms. In any other context, a federal judge faced with a request like that would know exactly what to do with it: dismiss it out of hand. Not because the defendant happens to be a corporation instead of a human being. But because the job of creating new causes of action and navigating foreign policy disputes belongs to the political branches. For reasons passing understanding, federal courts have sometimes treated the Alien Tort Statute as a license to overlook these foundational principles. I would end ATS exceptionalism. We should refuse invitations to create new forms of legal liability. And we should not meddle in disputes between foreign citizens over international norms. I write because I am hopeful that courts in the future might pause to consider both of these reasons for restraint before taking up cases like this one. Whatever powers courts may possess in ATS suits, they are powers judges should be doubly careful not to abuse.
I
First adopted in 1789, the current version of the ATS provides that "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." 28 U.S.C. § 1350. More than two hundred years later, the meaning of this terse provision has still "proven elusive." Sosa v. Alvarez-Machain, 542 U.S. 692, 719, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). At the same time, this Court has suggested that Congress enacted the statute to afford federal courts jurisdiction to hear tort claims related to three violations of international law that were already embodied in English common law: violations of safe conducts extended to aliens, interference with ambassadors, and piracy. Id., at 715, 124 S.Ct. 2739 ; 4 W. Blackstone, Commentaries on the Laws of England 68 (1769) (Blackstone); see also Bellia & Clark, The Alien Tort Statute and the Law of Nations, 78 U. Chi. L. Rev. 445 (2011) (arguing that the ATS meant to supply jurisdiction over a slightly larger set of claims involving intentional torts by Americans against aliens).
In this case, the plaintiffs seek much more. They want the federal courts to recognize a new cause of action, one that did not exist at the time of the statute's adoption, one that Congress has never authorized. While their request might appear inconsistent with Sosa 's explanation of the ATS's modest origin, the plaintiffs say that a caveat later in the opinion saves them. They point to a passage where the Court went on to suggest that the ATS may also afford federal judges "discretion [to] conside[r] [creating] new cause [s] of action" if they "rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the [three] 18th-century" torts the Court already described. 542 U.S., at 725, 124 S.Ct. 2739.
I harbor serious doubts about Sosa 's suggestion. In our democracy the people's elected representatives make the laws that govern them. Judges do not. The Constitution's provisions insulating judges from political accountability may promote our ability to render impartial judgments in disputes between the people, but they do nothing to recommend us as policymakers for a large nation. Recognizing just this, our cases have held that when confronted with a request to fashion a new cause of action, "separation-of-powers principles are or should be central to the analysis." Ziglar v. Abbasi, 582 U.S. ----, ----, 137 S.Ct. 1843, 1857, 198 L.Ed.2d 290 (2017). The first and most important question in that analysis "is 'who should decide' ..., Congress or the courts?" and the right answer "most often will be Congress." Ibid. Deciding that, henceforth, persons like A who engage in certain conduct will be liable to persons like B is, in every meaningful sense, just like enacting a new law. And in our constitutional order the job of writing new laws belongs to Congress, not the courts. Adopting new causes of action may have been a "proper function for common-law courts," but it is not appropriate "for federal tribunals" mindful of the limits of their constitutional authority. Alexander v. Sandoval, 532 U.S. 275, 287, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) (internal quotation marks omitted).
Nor can I see any reason to make a special exception for the ATS. As Sosa initially acknowledged, the ATS was designed as "a jurisdictional statute creating no new causes of action." 542 U.S., at 724, 124 S.Ct. 2739 ; accord, ante, at 1392 (majority opinion). And I would have thought that the end of the matter. A statute that creates no new causes of action ... creates no new causes of action. To the extent Sosa continued on to claim for federal judges the discretionary power to create new forms of liability on their own, it invaded terrain that belongs to the people's representatives and should be promptly returned to them. 542 U.S., at 747, 124 S.Ct. 2739 (Scalia, J., concurring in part and concurring in judgment).
But even accepting Sosa 's framework does not end the matter. As the Court acknowledges, there is a strong argument that "a proper application of Sosa would preclude courts from ever recognizing any new causes of action under the ATS."Ante, at 1403. I believe that argument is correct. For the reasons just described, separation of powers considerations ordinarily require us to defer to Congress in the creation of new forms of liability. This Court hasn't yet used Sosa 's assertion of discretionary authority to recognize a new cause of action, and I cannot imagine a sound reason, hundreds of years after the statute's passage, to start now. For a court inclined to claim the discretion to enter this field, it is a discretion best exercised by staying out of it.
The context in which any Sosa discretion would be exercised confirms the wisdom of restraint. Sosa acknowledged that any decision to create a new cause of action would "inevitably [involve] an element of judgment about the practical consequences" that might follow. Id., at 732-733, 124 S.Ct. 2739. But because the point of such a claim would be to vindicate "a norm of international character," id., at 725, 124 S.Ct. 2739 those "practical consequences" would likely involve questions of foreign affairs and national security-matters that implicate neither judicial expertise nor authority. It is for Congress to "define and punish ... Offences against the Law of Nations" and to regulate foreign commerce. U.S. Const. Art. I., § 8. And it is for the President to resolve diplomatic disputes and command the armed forces. Art. II, §§ 2-3. Foreign policy and national security decisions are "delicate, complex, and involve large elements of prophecy" for which "the Judiciary has neither aptitude, facilities[,] nor responsibility." Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111, 68 S.Ct. 431, 92 L.Ed. 568 (1948) (Jackson, J.). And I find it difficult to imagine a case in which a federal court might safely conclude otherwise. Take this very lawsuit by way of example. The Kingdom of Jordan considers it to be "a 'grave affront' to its sovereignty," and the State Department worries about its foreign policy implications. Ante, at 1432. Whether American interests justify the "practical consequence" of offending another nation in this way (or in worse ways yet) is a question that should be addressed "only by those directly responsible to the people whose welfare" such decisions "advance or imperil." Waterman S.S. Corp., supra, at 111, 68 S.Ct. 431. So while I have no quarrel with the dissent's observation, post, at 1426 - 1427, that lower federal courts are not free to overrule Sosa 's framework or treat it as optional, I do know that the analysis Sosa requires should come out the same way in virtually every case. If Sosa is right-and I am sure it is-that federal courts must "inevitably" exercise "an element of judgment" about delicate questions of foreign affairs when deciding whether to create a new cause of action, then judges should exercise good judgment by declining the project before we create real trouble.
II
Another independent problem lurks here. This is a suit by foreigners against a foreigner over the meaning of international norms. Respectfully, I do not think the original understanding of the ATS or our precedent permits federal courts to hear cases like this. At a minimum, both those considerations and simple common sense about the limits of the judicial function should lead federal courts to require a domestic defendant before agreeing to exercise any Sosa -generated discretion to entertain an ATS suit.
Start with the statute. What we call the Alien Tort Statute began as just one clause among many in § 9 of the Judiciary Act of 1789, which specified the jurisdiction of the federal courts. 1 Stat. 76-78. The ATS clause gave the district courts "cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States." Like today's recodified version, 28 U.S.C. § 1350, the original text of the ATS did not expressly call for a U.S. defendant. But I think it likely would have been understood to contain such a requirement when adopted.
That is because the First Congress passed the Judiciary Act in the shadow of the Constitution. The Act created the federal courts and vested them with statutory authority to entertain claims consistent with the newly ratified terms of Article III. Meanwhile, under Article III, Congress could not have extended to federal courts the power to hear just any suit between two aliens (unless, for example, one was a diplomat). Diversity of citizenship was required. So, because Article III's diversity-of-citizenship clause calls for a U.S. party, and because the ATS clause requires an alien plaintiff, it follows that an American defendant was needed for an ATS suit to proceed.
Precedent confirms this conclusion. In Mossman v. Higginson, 4 Dall. 12, 14, 1 L.Ed. 720 (1800), this Court addressed the meaning of a neighboring provision of the Judiciary Act. Section 11 gave the circuit courts power to hear, among other things, civil cases where "an alien is a party." 1 Stat. 78. As with § 9, you might think § 11's language could be read to permit a suit between aliens. Yet this Court held § 11 must instead be construed to refer only to cases "where, indeed, an alien is one party, but a citizen is the other." Mossman, 4 Dall., at 14 (internal quotation marks omitted). That was necessary, Mossman explained, to give the statute a "constructio[n] consistent" with the diversity-jurisdiction clause of Article III. Ibid. And as a matter of precedent, I cannot think of a good reason why we would now read § 9 differently than Mossman read § 11. Like cases are, after all, supposed to come out alike. See Sarei v. Rio Tinto, PLC, 671 F.3d 736, 828 (C.A.9 2011) (Ikuta, J., dissenting) ("Mossman 's analysis [of § 11] is equally applicable to [§ 9].... ATS does not give federal courts jurisdiction to hear international law claims between two aliens"), vacated and remanded, 569 U.S. 945, 133 S.Ct. 1995, 185 L.Ed.2d 863 (2013).
Nor does it appear the ATS meant to rely on any other head of Article III jurisdiction. You might wonder, for example, if the First Congress considered a "violation of the law of nations" to be a violation of, and thus "arise under," federal law. But that does not seem likely. At the founding, the law of nations was considered a distinct "system of rules, deducible by natural reason, and established by universal consent among the civilized inhabitants of the world," 4 Blackstone 66. While this Court has called international law "part of our law," The Paquete Habana, 175 U.S. 677, 700, 20 S.Ct. 290, 44 L.Ed. 320 (1900), and a component of the "law of the land," The Nereide, 9 Cranch 388, 423, 3 L.Ed. 769 (1815), that simply meant international law was no different than the law of torts or contracts-it was "part of the so-called general common law," but not part of federal law. Sosa, 542 U.S., at 739-740, 124 S.Ct. 2739 (opinion of Scalia, J.). See Bradley & Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815, 824, 849-850 (1997) ; see also Young, Sorting Out the Debate Over Customary International Law, 42 Va. J. Int'l L. 365, 374-375 (2002). The text of the Constitution appears to recognize just this distinction. Article I speaks of "Offences against the Law of Nations," while both Article III and Article VI's Supremacy Clause, which defines the scope of pre-emptive federal law, omit that phrase while referring to the "Laws of the United States." Congress may act to bring provisions of international law into federal law, but they cannot find their way there on their own. "The law of nations is not embodied in any provision of the Constitution, nor in any treaty, act of Congress, or any authority, or commission derived from the United States." Caperton v. Bowyer, 14 Wall. 216, 228, 20 L.Ed. 882 (1872).
Even so, that hardly left the ATS without important work to perform. At the time of the founding, "[i]f a nation failed to redress injuries by its citizens upon the citizens of another nation, the perpetrators' nation violated the 'perfect rights' of the other nation," which "provided the offended nation with just cause for reprisals or war." Bellia & Clark, 78 U. Chi. L. Rev., at 476. This reality posed an existential threat to the new nation. Under the Articles of Confederation, States regularly refused to redress injuries their citizens caused foreigners. British creditors, for example, often found their efforts to collect debts from American debtors thwarted. Id., at 498-501. Seeking to remedy these and similar problems, the Continental Congress in 1781 passed a resolution encouraging the States, among other things, to establish tribunals for vindicating "offences against the law of nations" and to "authorise suits to be instituted for damages by the party injured." Id., at 495-496. But the States did too little, too late. So when the framers gathered to write the Constitution they included among their chief priorities endowing the national government with sufficient power to ensure the country's compliance with the law of nations. See 1 Records of the Federal Convention of 1787, pp. 24-25 (M. Farrand rev. 1966).
Together with other provisions of the Judiciary Act, the ATS served that purpose. The law of nations required countries to ensure foreign citizens could obtain redress for wrongs committed by domestic defendants, whether "through criminal punishment, extradition, or a civil remedy." Bellia & Clark, 78 U. Chi. L. Rev., at 509. Yet in 1789 this country had no comprehensive criminal code and no extradition treaty with Great Britain. Id., at 509-510. Section 11 achieved a partial solution to the problem by permitting civil diversity suits in federal court between aliens and domestic parties, but that provision required at least $500 in controversy. 1 Stat. 78; cf. 28 U.S.C. § 1332(a) (today's minimum is $75,000). But, as Professors Bellia and Clark have explained, "[h]ad Congress stopped there, it would have omitted an important category of law of nations violations that threatened the peace of the United States: personal injuries that U.S. citizens inflicted upon aliens resulting in less than $500 in damages." 78 U. Chi. L. Rev., at 509. So the ATS neatly filled the remaining gap by allowing aliens to sue in federal court for a tort in violation of the law of nations regardless of the amount in controversy. One obvious advantage of this solution "was that it was self-executing-it placed the burden on injured aliens to bring suit and did not require the still-forming U.S. government immediately to marshal the resources necessary to prosecute crimes" or aid extraditions. Id., at 510.
Any attempt to decipher a cryptic old statute is sure to meet with challenges. For example, one could object that this reading of the Act does not assign to the ATS the work of addressing assaults by aliens against foreign ambassadors on our soil, even though Sosa suggested the statute was enacted partly in response to precisely such a case: the "Marbois incident of May 1784, in which a French adventurer, De Longchamps, verbally and physically assaulted the Secretary of the French Legion in Philadelphia." 542 U.S., at 716, 124 S.Ct. 2739. Many thought that the States' failure to provide a forum for relief to the foreign minister was a scandal and part of what prompted the framers of the Constitution to strengthen the national government. Id., at 717, 124 S.Ct. 2739 ; Bellia & Clark, supra, at 467 ("The Confederation's inability to remedy or curtail violations like these was a significant factor precipitating the Federal Convention of 1787").
But worries along these lines may be misplaced. The ATS was never meant to serve as a freestanding statute, only as one clause in one section of the Judiciary Act. So even if you think something in the Judiciary Act must be interpreted to address the Marbois incident, that doesn't mean it must be the ATS clause. And, as it happens, a different provision of the Act did deal expressly with the problem of ambassadorial assaults: Section 13 conferred on this Court "original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul, or vice consul shall be a party." 1 Stat. 80-81. That implemented Article III's provision empowering us to hear suits "affecting Ambassadors, other public ministers and Consuls." § 2. And given that § 13 deals with the problem of "ambassadors" so directly, it is unclear why we must read § 9 to address that same problem. See Lee, The Safe-Conduct Theory of the Alien Tort Statute, 106 Colum. L. Rev. 830, 855-858 (2006).
Along different but similar lines, some might be concerned that requiring a U.S. defendant in ATS suits would leave the problem of piracy inadequately addressed, given that Sosa suggested that piracy was one of the three offenses the ATS may have meant to capture, and many pirates were foreigners. See 542 U.S., at 719, 124 S.Ct. 2739. But here the response is much the same. A separate clause of § 9 gave the district courts "exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction." 1 Stat. 77. That statute has long been given a broad construction covering "all maritime contracts, torts and injuries," DeLovio v. Boit, 7 F.Cas. 418, 442 (No. 3,776) (C.C.D.Mass. 1815) (Story, J.), along with "prize jurisdiction, which probably included almost all 'piracy' cases after 1789," Lee, supra, at 867. So it is not clear why it's necessary to cram the problem of piracy into the ATS. If anything, it may be necessary not to do so. Structural features of § 9 make it at least questionable that both provisions were meant to address the same subject matter: Cases falling within § 9's ATS clause could also be brought in state court or in the circuit courts, 1 Stat. 77, while § 9's admiralty jurisdiction was generally exclusive, id., at 76-77. See Lee, supra, at 868. And the two provisions also called for incompatible procedures: Section 9 required jury trials "in all causes except civil causes of admiralty and maritime jurisdiction." 1 Stat. 77 (emphasis added).
If doubt lingers on these historical questions, it is a doubt that should counsel restraint all the same. Even if the ATS might have meant to allow foreign ambassadors to sue foreign defendants, or foreign plaintiffs to sue foreign pirates, what would that prove about more mine-run cases like ours, where none of those special concerns are implicated? There are at least serious historical arguments suggesting the ATS was not meant to apply to suits like this one. And to the extent Sosa affords courts discretion to proceed, these arguments should inform any decision whether to exercise that discretion. In Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 116-117, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013), the Court invoked Sosa discretion to refuse to hear cases involving foreign conduct. I can see no reason why courts should respond differently when it comes to cases involving foreign defendants.
Any consideration of Sosa 's discretion must also account for proper limits on the judicial function. As discussed above, federal courts generally lack the institutional expertise and constitutional authority to oversee foreign policy and national security, and should be wary of straying where they do not belong. See supra, at 1394 - 1396. Yet there are degrees of institutional incompetence and constitutional evil. It is one thing for courts to assume the task of creating new causes of action to ensure our citizens abide by the law of nations and avoid reprisals against this country. It is altogether another thing for courts to punish foreign parties for conduct that could not be attributed to the United States and thereby risk reprisals against this country. If a foreign state or citizen violates an "international norm" in a way that offends another foreign state or citizen, the Constitution arms the President and Congress with ample means to address it. Or, if they think best, the political branches may choose to look the other way. But in all events, the decision to impose sanctions in disputes between foreigners over international norms is not ours to make. It is a decision that belongs to those answerable to the people and assigned by the Constitution to defend this nation. If they wish our help, they are free to enlist it, but we should not ever be in the business of elbowing our way in.
Justice SOTOMAYOR, with whom Justice GINSBURG, Justice BREYER, and Justice KAGAN join, dissenting.
The Court today holds that the Alien Tort Statute (ATS), 28 U.S.C. § 1350, categorically forecloses foreign corporate liability. In so doing, it absolves corporations from responsibility under the ATS for conscience-shocking behavior. I disagree both with the Court's conclusion and its analytic approach. The text, history, and purpose of the ATS, as well as the long and consistent history of corporate liability in tort, confirm that tort claims for law-of-nations violations may be brought against corporations under the ATS. Nothing about the corporate form in itself raises foreign-policy concerns that require the Court, as a matter of common-law discretion, to immunize all foreign corporations from liability under the ATS, regardless of the specific law-of-nations violations alleged. I respectfully dissent.
I
The plurality assumes without deciding that whether corporations can be permissible defendants under the ATS turns on the first step of the two-part inquiry set out in Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). But by asking whether there is "a specific, universal, and obligatory norm of liability for corporations" in international law, ante, at 1400, the plurality fundamentally misconceives how international law works and so misapplies the first step of Sosa.
A
In Sosa, the Court considered whether a Mexican citizen could recover under the ATS for a claim of arbitrary detention by a Mexican national who had been hired by the Drug Enforcement Administration to seize and transport him to the United States. See 542 U.S., at 697-698, 124 S.Ct. 2739. The Court held that the ATS permits federal courts to "recognize private causes of action for certain torts in violation of the law of nations," id., at 724, 124 S.Ct. 2739 without the need for any "further congressional action," id., at 712, 124 S.Ct. 2739. The Court then articulated a two-step framework to guide that inquiry. First, a court must determine whether the particular international-law norm alleged to have been violated is "accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms," i.e., "violation of safe conducts, infringement of the rights of ambassadors, and piracy." Id., at 724-725, 124 S.Ct. 2739. Only if the norm is " 'specific, universal, and obligatory' " may federal courts recognize a cause of action for its violation. Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 117, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013) (quoting Sosa, 542 U.S., at 732, 124 S.Ct. 2739 ). Second, if that threshold hurdle is satisfied, a court should consider whether allowing a particular case to proceed is an appropriate exercise of judicial discretion. Sosa, 542 U.S., at 727-728, 732-733, 738, 124 S.Ct. 2739. Applying that framework, Sosa held that the alleged arbitrary detention claim at issue failed at step one because "a single illegal detention of less than a day, followed by the transfer of custody to lawful authorities and a prompt arraignment, violates no norm of customary international law so well defined as to support the creation of a federal remedy." Id., at 738, 124 S.Ct. 2739.
Sosa 's norm-specific first step is inapposite to the categorical question whether corporations may be sued under the ATS as a general matter. International law imposes certain obligations that are intended to govern the behavior of states and private actors. See id., at 714-715, 124 S.Ct. 2739 ; 1 Restatement (Third) of Foreign Relations Law of the United States, pt. II, Introductory Note, pp. 70-71 (1987) (Restatement). Among those obligations are substantive prohibitions on certain conduct thought to violate human rights, such as genocide, slavery, extrajudicial killing, and torture. See 2 Restatement § 702. Substantive prohibitions like these are the norms at which Sosa 's step-one inquiry is aimed and for which Sosa requires that there be sufficient international consensus.
Sosa does not, however, demand that there be sufficient international consensus with regard to the mechanisms of enforcing these norms, for enforcement is not a question with which customary international law is concerned. Although international law determines what substantive conduct violates the law of nations, it leaves the specific rules of how to enforce international-law norms and remedy their violation to states, which may act to impose liability collectively through treaties or independently via their domestic legal systems. See, e.g., L. Henkin, Foreign Affairs and the United States Constitution 245 (2d ed. 1996) ("International law itself ... does not require any particular reaction to violations of law"); Denza, The Relationship Between International and National Law, in International Law 423 (M. Evans ed. 2006) ("[I]nternational law does not itself prescribe how it should be applied or enforced at the national level"); 1 Restatement § 111, Comment h ("In the absence of special agreement, it is ordinarily for the United States to decide how it will carry out its international obligations"); Brief for International Law Scholars as Amici Curiae 9-10.
In keeping with the nature of international law, Sosa consistently used the word "norm" to refer to substantive conduct. For example, Sosa commands that "federal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when § 1350 was enacted." 542 U.S., at 732, 124 S.Ct. 2739. That statement would make little sense if "norm" encompassed enforcement mechanisms like "corporate liability." Unlike "the prohibition on genocide," "corporate liability" cannot be violated. Moreover, "the historical paradigms familiar when § 1350 was enacted" are all prohibitions on conduct, and Sosa clearly contemplated that courts should compare the charged conduct with the historical conduct. See ibid. (quoting Filartiga v. Pena-Irala, 630 F.2d 876 (1980), where the Court of Appeals for the Second Circuit compared a " 'torturer' " to " 'the pirate and slave trader before him,' " id., at 890, and Judge Edwards' concurrence in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (C.A.D.C.1984), which suggested that the " 'limits of section 1350's reach' " be defined by " 'a handful of heinous actions-each of which violates definable, universal and obligatory norms,' " id., at 781 ). There is no indication in Sosa that the Court also intended for courts to undertake the apples-to-oranges comparison of the conduct proscribed under customary international law and the forms of liability available under domestic law.
The text of the ATS also reflects this distinction between prohibiting conduct and determining enforcement. The statute provides: "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." 28 U.S.C. § 1350. The phrase "of the law of nations" modifies "violation," not "civil action." The statutory text thus requires only that the alleged conduct be specifically and universally condemned under international law, not that the civil action be of a type that the international community specifically and universally practices or endorses.
B
1
The plurality nonetheless allies itself with the view that international law supplies the rule of decision in this case based on its reading of footnote 20 in Sosa . That footnote sets out "[a] related consideration" to "the determination whether a norm is sufficiently definite to support a cause of action." 542 U.S., at 732, and n. 20, 124 S.Ct. 2739. In full, it states:
"A related consideration is whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or individual. Compare Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 791-795 (C.A.D.C.1984) (Edwards, J., concurring) (insufficient consensus in 1984 that torture by private actors violates international law), with Kadic v. Karadz?ic, 70 F.3d 232, 239-241 (C.A.2 1995) (sufficient consensus in 1995 that genocide by private actors violates international law)." 542 U.S., at 732, n. 20, 124 S.Ct. 2739.
In the Second Circuit's decision in Kiobel v. Royal Dutch Petroleum, 621 F.3d 111 (2010), the majority opinion read footnote 20 to "requir[e] that [courts] look to international law to determine [their] jurisdiction over ATS claims against a particular class of defendant, such as corporations." Id., at 127 (emphasis in original). The plurality today accords "considerable force and weight to [that] position," ante, at 1400, and so proceeds to assess whether there exists a specific, universal, and obligatory norm of liability for corporations in international law, ante, at 1425 - 1428. But the Court of Appeals mistook the meaning of footnote 20, which simply draws attention to the fact that, under international law, "the distinction between conduct that does and conduct that does not violate the law of nations can turn on whether the conduct is done by or on behalf of a State or by a private actor independently of a State." Kiobel, 621 F.3d, at 177 (Leval, J., concurring in judgment).
The international-law norm against genocide, for example, imposes obligations on all actors. Acts of genocide thus violate the norm irrespective of whether they are committed privately or in concert with the state. See Convention on the Prevention and Punishment of the Crime of Genocide, Art. II, Dec. 9, 1948, 102 Stat. 3045 (defining "genocide" as "any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group"); see also 18 U.S.C. § 1091(a) ("Whoever" commits genocide "shall be punished as provided in subsection (b)"). In contrast, other norms, like the prohibition on torture, require state action. Conduct thus qualifies as torture and violates the norm only when done "by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Art. 1, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 114 (Torture Convention).
Footnote 20 in Sosa flags this distinction and instructs courts to consider whether there is "sufficient consensus" that, with respect to the particular conduct prohibited under "a given norm," the type of defendant being sued can be alleged to have violated that specific norm. 542 U.S., at 732, n. 20, 124 S.Ct. 2739. Because footnote 20 contemplates a norm-specific inquiry, not a categorical one, it is irrelevant to the categorical question presented here. Assuming the prohibition against financing of terrorism is sufficiently "specific, universal, and obligatory" to satisfy the first step of Sosa, a question on which I would remand to the Court of Appeals, nothing in international law suggests a corporation may not violate it.
2
The plurality briefly acknowledges this critique of its reading of footnote 20, but nonetheless assumes the correctness of its approach because of its view that there exists a "distinction in international law between corporations and natural persons." Ante, at 1402. The plurality attempts to substantiate this proposition by pointing to the charters of certain international criminal tribunals and noting that none was given jurisdiction over corporate defendants. That argument, however, confuses the substance of international law with how it has been enforced in particular contexts.
Again, the question of who must undertake the prohibited conduct for there to be a violation of an international-law norm is one of international law, but how a particular actor is held liable for a given law-of-nations violation generally is a question of enforcement left up to individual states. Sometimes, states act collectively and establish international tribunals to punish certain international-law violations. Each such tribunal is individually negotiated, and the limitations placed on its jurisdiction are typically driven by strategic considerations and resource constraints.
For example, the Allies elected not to prosecute corporations at Nuremberg because of pragmatic factors. Those factors included scarce judicial resources, a preference of the occupation governments to swiftly dismantle the most culpable German companies without destroying Germany's postwar economy, and a desire to focus on establishing the principle of nonstate criminal responsibility for human-rights violations. See Brief for Nuremberg Scholars as Amici Curiae 4, 11-13.
More recently, the delegations that negotiated the Rome Statute of the International Criminal Court in the 1990's elected not to extend that tribunal's jurisdiction to corporations in part because states had varying domestic practices as to whether and how to impose criminal liability on corporations. See Frulli, Jurisdiction Ratione Personae, in 1 Rome Statute of the International Criminal Court 527, 532-533 (A. Cassese et al. eds. 2002); Brief for Ambassador David J. Scheffer as Amicus Curiae 8-10.
Taken to its natural conclusion, the plurality's focus on the practice of international criminal tribunals would prove too much. No international tribunal has been created and endowed with the jurisdiction to hold natural persons civilly (as opposed to criminally) liable, yet the majority and respondent accept that natural persons can be held liable under the ATS. See ante, at 1432 - 1433; Tr. of Oral Arg. 62. It cannot be persuasive evidence for purposes of ascertaining the availability of corporate civil liability under the ATS, then, that the jurisdiction of the handful of international criminal tribunals that states have seen fit to create in the last 75 years has not extended to corporate defendants.
Ultimately, the evidence on which the plurality relies does not prove that international law distinguishes between corporations and natural persons as a categorical matter. To the contrary, it proves only that states' collective efforts to enforce various international-law norms have, to date, often focused on natural rather than corporate defendants.
In fact, careful review of states' collective and individual enforcement efforts makes clear that corporations are subject to certain obligations under international law. For instance, the United States Military Tribunal that prosecuted several corporate executives of IG Farben declared that corporations could violate international law. See 8 Trials of War Criminals Before the Nuernberg Military Tribunals Under Council Control Law No. 10, p. 1132 (1952) ( "Where private individuals, including juristic persons, proceed to exploit the military occupancy by acquiring private property against the will and consent of the former owner, such action ... is in violation of international law"). Similarly, the International Criminal Tribunal for Rwanda found that three nonnatural entities-a private radio station, newspaper, and political party-were responsible for genocide. See Prosecutor v. Nahimana, Case No. ICTR-99-52-T, Judgment and Sentence ¶ 953 (Dec. 3, 2003). Most recently, the appeals panel of the Special Tribunal for Lebanon held that corporations may be prosecuted for contempt. See Prosecutor v. New TV S.A.L., Case No. STL-14-05/PT/AP/AR126.1, Decision on Interlocutory Appeal Concerning Personal Jurisdiction in Contempt Proceedings ¶ 74 (Oct. 2, 2014).
In addition, various international agreements require signatory states to impose liability on corporations for certain conduct. Of particular relevance here, the International Convention for the Suppression of the Financing of Terrorism provides: "Any person commits an offence within the meaning of this Convention if that person by any means, directly or indirectly, unlawfully and wilfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out" an act of terrorism. Dec. 9, 1999, Art. 2, S. Treaty Doc. No. 106-49, 2178 U.N.T.S. 230. It then requires each signatory state, "in accordance with its domestic legal principles," to "take the necessary measures to enable a legal entity located in its territory or organized under its laws to be held liable when a person responsible for the management or control of that legal entity has, in that capacity," violated the Convention. Id., Art. 5(1). The Convention provides that "[s]uch liability may be criminal, civil, or administrative," ibid., so long as the penalties, which can include monetary sanctions, are "effective, proportionate and dissuasive." Id., Art. 5(3). The United States is a party to the Convention, along with 131 other states.
The plurality dismisses the relevance of this Convention because it does not require states parties to hold corporations liable in common-law tort actions, but rather permits them to "fulfill their obligations ... by adopting detailed regulatory regimes governing financial institutions." Ante, at 1401. That critique misses the point. The significance of the Convention is that the international community agreed that financing terrorism is unacceptable conduct and that such conduct violates the Convention when undertaken by corporations. That the Convention leaves up to each state party how to impose liability on corporations, e.g., via erecting a regulatory regime, providing for tort actions, or imposing criminal sanctions, is unremarkable, and simply reflects that international law sets out standards of conduct and leaves it to individual states to determine how best to enforce those standards.
Finally, a number of states, acting individually, have imposed criminal and civil liability on corporations for law-of-nations violations through their domestic legal systems. See, e.g., New TV S.A.L., Case No. STL-14-05/PT/AP/AR126.1, ¶¶ 52-55 (listing more than 40 countries that provide for corporate criminal liability); A. Ramasastry & R. Thompson, Commerce, Crime and Conflict: Legal Remedies for Private Sector Liability for Grave Breaches of International Law 22-24 (2006), available at https://www.biicl.org/files/4364_536.pdf (noting that 15 of 16 countries surveyed permit civil claims against corporations for human rights violations); Brief for Comparative Law Scholars and Practitioners as Amici Curiae 15-19 (detailing provisions creating corporate civil liability for international-law violations in England, France, the Netherlands, and Canada).
C
Instead of asking whether there exists a specific, universal, and obligatory norm of corporate liability under international law, the relevant inquiry in response to the question presented here is whether there is any reason-under either international law or our domestic law-to distinguish between a corporation and a natural person who is alleged to have violated the law of nations under the ATS. As explained above, international law provides no such reason. See Kiobel, 621 F.3d, at 175 (Leval, J., concurring in judgment) ("[T]he answer international law furnishes is that it takes no position on the question"). Nor does domestic law. The text, history, and purpose of the ATS plainly support the conclusion that corporations may be held liable.
Beginning "with the language of the statute itself," United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989), two aspects of the text of the ATS make clear that the statute allows corporate liability. First, the text confers jurisdiction on federal district courts to hear "civil action[s]" for "tort[s]." 28 U.S.C. § 1350. Where Congress uses a term of art like tort, "it presumably knows and adopts the cluster of ideas that were attached to [the] borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed." Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 96 L.Ed. 288 (1952).
Corporations have long been held liable in tort under the federal common law. See Philadelphia, W., & B.R. Co. v. Quigley, 21 How. 202, 210, 16 L.Ed. 73 (1859) ("At a very early period, it was decided in Great Britain, as well as in the United States, that actions might be maintained against corporations for torts; and instances may be found, in the judicial annals of both countries, of suits for torts arising from the acts of their agents, of nearly every variety"); Chestnut Hill & Spring House Turnpike Co. v. Rutter, 4 Serg. & Rawle 6, 17 (Pa.1818) ("[F]rom the earliest times to the present, corporations have been held liable for torts"). This Court "has assumed that, when Congress creates a tort action, it legislates against a legal background of ordinary tort-related ... rules and consequently intends its legislation to incorporate those rules." Meyer v. Holley, 537 U.S. 280, 285, 123 S.Ct. 824, 154 L.Ed.2d 753 (2003). The presumption, then, is that, in providing for "tort" liability, the ATS provides for corporate liability.
Second, whereas the ATS expressly limits the class of permissible plaintiffs to "alien[s]," § 1350, it "does not distinguish among classes of defendants," Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 438, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989). That silence as to defendants cannot be presumed to be inadvertent. That is because in the same section of the Judiciary Act of 1789 as what is now the ATS, Congress provided the federal district courts with jurisdiction over "all suits against consuls or vice-consuls." § 9, 1 Stat. 76-77. Where Congress wanted to limit the range of permissible defendants, then, it clearly knew how to do so. Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) ("[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion" (internal quotation marks omitted)).
Nothing about the historical background against which the ATS was enacted rebuts the presumption that the statute incorporated the accepted principle of corporate liability for tortious conduct. Under the Articles of Confederation, the Continental Congress was unable to provide redress to foreign citizens for violations of treaties or the law of nations, which threatened to undermine the United States' relationships with other nations. See Kiobel, 569 U.S., at 123, 133 S.Ct. 1659. The First Congress responded with, inter alia, the ATS. Although the two incidents that highlighted the need to provide foreign citizens with a federal forum in which to pursue their grievances involved conflicts between natural persons, see ante, at --- - (majority opinion) (describing the assault by a French adventurer on the Secretary of the French Legation and the arrest of one of the Dutch Ambassador's servants by a New York constable), there is "no reason to conclude that the First Congress was supremely concerned with the risk that natural persons would cause the United States to be drawn into foreign entanglements, but was content to allow formal legal associations of individuals, i.e., corporations, to do so," Doe v. Exxon Mobil Corp., 654 F.3d 11, 47 (C.A.D.C.2011), vacated on other grounds, 527 Fed.Appx. 7 (C.A.D.C.2013) ; see also Brief for United States as Amicus Curiae 6 ("The ATS was enacted to ensure a private damages remedy for incidents with the potential for serious diplomatic consequences, and Congress had no good reason to limit the set of possible defendants in such actions to potentially judgment-proof individuals"). Indeed, foreclosing corporations from liability under the ATS would have been at odds with the contemporaneous practice of imposing liability for piracy on ships, juridical entities. See, e.g., Skinner v. East India Co., 6 State Trials 710, 711 (1666); The Marianna Flora, 11 Wheat. 1, 40-41, 6 L.Ed. 405 (1826) ; Harmony v. United States, 2 How. 210, 233, 11 L.Ed. 239 (1844).
Finally, the conclusion that corporations may be held liable under the ATS for violations of the law of nations is not of recent vintage. More than a century ago, the Attorney General acknowledged that corporations could be held liable under the ATS. See 26 Op. Atty. Gen. 250, 252 (1907) (stating that citizens of Mexico could bring a claim under the ATS against a corporation, the American Rio Grande Land and Irrigation Company, for violating provisions of a treaty between the United States and Mexico).
D
In his concurrence, Justice GORSUCH urges courts to exercise restraint in recognizing causes of action under the ATS. But whether the ATS provides a cause of action for violations of the norms against genocide, crimes against humanity, and financing of terrorism is not the question the parties have asked the Court to decide. I therefore see no reason why it is necessary to delve into the propriety of creating new causes of action. Nevertheless, because I disagree with the premises on which the concurrence relies, I offer two brief observations.
First, Justice GORSUCH says it "pass[es] understanding" why federal courts have exercised jurisdiction over ATS claims raised by foreign plaintiffs against foreign defendants for breaches of international norms. See ante, at 1412 (opinion concurring in part and concurring in judgment). Modern ATS cases, however, are not being litigated against a blank slate. The Court held in Sosa that Congress authorized the federal courts to "recognize private causes of action for certain torts in violation of the law of nations," 542 U.S., at 724, 124 S.Ct. 2739 so long as the underlying norm had no "less definite content and acceptance among civilized nations than the historical paradigms familiar when § 1350 was enacted," id., at 732, 124 S.Ct. 2739. That holding was no mere "suggestion," ante, at 1420 (opinion of GORSUCH, J.), as this Court has made clear. See Kiobel, 569 U.S., at 116-117, 133 S.Ct. 1659.
Given that the First Congress authorized suit for violations based on "the law of nations" and "treat[ies] of the United States," 28 U.S.C. § 1350, it is natural to conclude that Congress intended the district courts to consider new claims under the law of nations as that law and our Nation's treaty obligations continued to develop. If Congress intended to limit such cases to violations of safe conduct, assaults against ambassadors, piracy, and-as Justice GORSUCH suggests may have been the case-" 'personal injuries that U.S. citizens inflicted upon aliens resulting in less than $500 in damages,' " ante, at 1417 (quoting Bellia & Clark, The Alien Tort Statute and the Law of Nations, 78 U. Chi. L. Rev. 445, 509 (2011) ), it easily could have said so. Instead, it granted the federal courts jurisdiction over claims based on "the law of nations," a body of law that Congress did not understand to be static. See United States v. The La Jeune Eugenie, 26 F.Cas. 832, 846 (No. 15,551) (C.C.D.Mass. 1822) (Story, J.) ("What, therefore, the law of nations is ... may be considered as modified by practice, or ascertained by the treaties of nations at different periods. It does not follow ... that because a principle cannot be found settled by the consent or practice of nations at one time, it is to be concluded, that at no subsequent period the principle can be considered as incorporated into the public code of nations").
The question for courts considering new ATS claims is, "Who are today's pirates?" Kiobel, 569 U.S., at 129, 133 S.Ct. 1659 (BREYER, J., concurring in judgment). Torturers and those who commit genocide are now fairly viewed, like pirates, as "common enemies of all mankind." Id., at 131, 133 S.Ct. 1659 (internal quotation marks omitted). On remand, the Court of Appeals would decide whether the financiers of terrorism are the same. The fact that few norms have overcome Sosa 's high hurdle is strong evidence that the carefully considered standard set forth in that case is generating exactly the kind of "judicial caution" the Court stressed as necessary. See 542 U.S., at 725, 124 S.Ct. 2739.
Second, the concurrence suggests that federal courts may lack jurisdiction to entertain suits between aliens based solely on a violation of the law of nations. It contends that ATS suits between aliens fall under neither the federal courts' diversity jurisdiction nor our federal question jurisdiction. The Court was not unaware of this argument when it decided Sosa . As noted, that case involved an ATS suit brought by a citizen of Mexico against a citizen of Mexico, and various amici argued that the Court lacked Article III jurisdiction over such suits. See Brief for National Foreign Trade Counsel et al. as Amici Curiae in Sosa v. Alvarez-Machain, O.T. 2003, No. 03-339, pp. 24-25; see also Brief for Washington Legal Foundation et al. as Amici Curiae in No. 03-339, pp. 14-21. The Court nonetheless proceeded to decide the case, which it could not have done had it been concerned about its Article III power to do so. See Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). That decision forecloses the argument the concurrence now makes, as Sosa authorized courts to "recognize private claims under federal common law for violations of" certain international law norms. 542 U.S., at 732, 124 S.Ct. 2739 (emphasis added); see also id., at 729-730, 124 S.Ct. 2739 (explaining that, post- Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), there are "limited enclaves in which federal courts may derive from substantive law in a common law way," including the law of nations, and that "it would be unreasonable to assume that the First Congress would have expected federal courts to lose all capacity to recognize enforceable international norms simply because the common law might lose some metaphysical cachet on the road to modern realism"); Sarei v. Rio Tinto, 671 F.3d 736, 749-754 (C.A.9 2011) (en banc) (discussing Sosa and concluding that federal courts have Article III jurisdiction to hear ATS cases between aliens), vacated and remanded, 569 U.S. 945, 133 S.Ct. 1995, 185 L.Ed.2d 863 (2013) (remanding for further consideration in light of Kiobel ).
Sosa was correct as a legal matter. Moreover, our Nation has an interest not only in providing a remedy when our own citizens commit law of nations violations, but also in preventing our Nation from serving as a safe harbor for today's pirates. See Kiobel, 569 U.S., at 133-134, 133 S.Ct. 1659 (BREYER, J., concurring in judgment). To that end, Congress has ratified treaties requiring the United States "to punish or extradite offenders, even when the offense was not committed ... by a national." 1 Restatement § 404, Reporters' Note 1, at 255-257; see Torture Convention, Arts. 5, 7; Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, Art. 3, Dec. 14, 1973, 28 U.S.T. 1975, T.I.A.S. No. 8532 ; Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, Sept. 23, 1971, 24 U.S.T. 565, T.I.A.S. No. 7570 ; Convention for the Suppression of Unlawful Seizure of Aircraft, Art. 4, Dec. 16, 1970, 22 U.S.T. 1641, T.I.A.S. No. 7192 ; Geneva Convention Relative to the Treatment of Prisoners of War, Art. 129, Aug. 12, 1949, 6 U.S.T. 3316, T.I.A.S. No. 3364. To the extent suits against foreign defendants may lead to international friction, that concern is better addressed under the presumption the Court established in Kiobel against extraterritorial application of the ATS, see 569 U.S., at 124-125, 133 S.Ct. 1659 than it is by relitigating settled precedent.
II
At its second step, Sosa cautions that courts should consider whether permitting a case to proceed is an appropriate exercise of judicial discretion in light of potential foreign-policy implications. See 542 U.S., at 727-728, 732-733, 738, 124 S.Ct. 2739. The plurality only assumes without deciding that international law does not impose liability on corporations, so it necessarily proceeds to Sosa 's second step. Here, too, its analysis is flawed.
A
Nothing about the corporate form in itself justifies categorically foreclosing corporate liability in all ATS actions. Each source of diplomatic friction that respondent Arab Bank and the plurality identify can be addressed with a tool more tailored to the source of the problem than a blanket ban on corporate liability.
Arab Bank contends that foreign citizens should not be able "to sue a Jordanian corporation in New York for events taking place in the Middle East." Brief for Respondent 42. The heart of that qualm was already addressed in Kiobel, which held that the presumption against extraterritoriality applies to the ATS. 569 U.S., at 124, 133 S.Ct. 1659. Only where the claims "touch and concern the territory of the United States ... with sufficient force" can the presumption be displaced. Id., at 124-125, 133 S.Ct. 1659. "[M]ere corporate presence" does not suffice. Id., at 125, 133 S.Ct. 1659. Thus, contrary to the majority's contention, "the relatively minor connection between the terrorist attacks at issue in this case and the alleged conduct in the United States" does not "well illustrat[e] the perils of extending the scope of ATS liability to foreign multinational corporations," ante, at 1406, but merely illustrates the risks of extending the scope of ATS liability extraterritorially absent sufficient connection to the United States.
Arab Bank also bemoans the unfairness of being sued when others-namely, the individuals and organizations that carried out the terrorist attacks-were "the direct cause" of the harm petitioners here suffered. Brief for Respondent 41. That complaint, though, is a critique of the imposition of liability for financing terrorism, not an argument that ATS suits against corporations generally necessarily cause diplomatic tensions.
Arab Bank further expresses concern that ATS suits are being filed against corporations in an effort to recover for the bad acts of foreign governments or officials. See id., at 40. But the Bank's explanation of this problem reveals that the true source of its grievance is the availability of aiding and abetting liability. See ibid. ("[N]umerous ATS suits have alleged that a corporation has aided or abetted bad acts committed by a foreign government and its officials " (emphasis in original)); id., at 41 ("[A]iding and abetting suits under the ATS have given plaintiffs 'a clear means for effectively circumventing' critical limits on foreign sovereign immunity" (quoting Brief for United States as Amicus Curiae in American Isuzu Motors, Inc. v. Ntsebeza, O.T. 2007, No. 07-919, p. 15)). The plurality too points to an aiding and abetting case to support its contention that plaintiffs "use corporations as surrogate defendants to challenge the conduct of foreign governments." Ante, at 1404 (discussing Kiobel, in which plaintiffs sought to hold a corporate defendant liable for " 'aiding and abetting the Nigerian Government in committing' " law-of-nations violations (quoting 569 U.S., at 114, 133 S.Ct. 1659 )). Yet not all law-of-nations violations asserted against corporations are premised on aiding and abetting liability; it is possible for a corporation to violate international-law norms independent of a foreign state or foreign state officials. In this respect, too, the Court's rule is ill fitted to the problem identified.
Notably, even the Hashemite Kingdom of Jordan does not argue that there are foreign-policy tensions inherent in suing a corporation generally. Instead, Jordan contends that this particular suit is an affront to its sovereignty because of its extraterritorial character and because of the role that Arab Bank specifically plays in the Jordanian economy. See Brief for Hashemite Kingdom of Jordan as Amicus Curiae 6-12.
The majority also cites to instances in which other foreign sovereigns have "appeared in this Court to note [their] objections to ATS litigation," ante, at 1407, but none of those objections was about the availability of corporate liability as a general matter. See Sosa, 542 U.S., at 733, n. 21, 124 S.Ct. 2739 (noting argument of the European Commission that "basic principles of international law require that before asserting a claim in a foreign forum, the claimant must have exhausted any remedies available in the domestic legal system, and perhaps in other forums such as international claims tribunals"); ibid. (noting objections by South Africa to "several class actions seeking damages from various corporations alleged to have participated in, or abetted, the regime of apartheid" on the basis that the cases "interfere[d] with the policy embodied by its Truth and Reconciliation Commission"); Brief for Federal Republic of Germany as Amicus Curiae in Kiobel v. Royal Dutch Petroleum Co., O.T. 2012, No. 10-1491, p. 1 ("The Federal Republic of Germany has consistently maintained its opposition to overly broad assertions of extraterritorial civil jurisdiction arising out of aliens' claims against foreign defendants for alleged foreign activities that caused injury on foreign soil"); Brief for Government of the United Kingdom of Great Britain and Northern Ireland et al. as Amici Curiae in No. 10-1491, p. 3 ("The Governments remain deeply concerned about ... suits by foreign plaintiffs against foreign defendants for conduct that entirely took place in the territory of a foreign sovereign").
As the United States urged at oral argument, when international friction arises, a court should respond with the doctrine that speaks directly to the friction's source. See Tr. of Oral. Arg. 28 (acknowledging that "ATS litigation in recent decades has raised international friction" and explaining that "the way to deal with that friction is with a doctrine that speaks directly to the international entanglement ... as those questions arise"). In addition to the presumption against extraterritoriality, federal courts have at their disposal a number of tools to address any foreign-relations concerns that an ATS case may raise. This Court has held that a federal court may exercise personal jurisdiction over a foreign corporate defendant only if the corporation is incorporated in the United States, has its principal place of business or is otherwise at home here, or if the activities giving rise to the lawsuit occurred or had their impact here. See Daimler AG v. Bauman, 571 U.S. 117, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014). Courts also can dismiss ATS suits for a plaintiff's failure to exhaust the remedies available in her domestic forum, on forum non conveniens grounds, for reasons of international comity, or when asked to do so by the State Department. See Kiobel, 569 U.S., at 133, 133 S.Ct. 1659 (BREYER, J., concurring in judgment); Sosa, 542 U.S., at 733, n. 21, 124 S.Ct. 2739.
Several of these doctrines might be implicated in this case, and I would remand for the Second Circuit to address them in the first instance. The majority, however, prefers to use a sledgehammer to crack a nut. I see no need for such an ill-fitting and disproportionate response. Foreclosing foreign corporate liability in all ATS actions, irrespective of circumstance or norm, is simply too broad a response to case-specific concerns that can be addressed via other means.
B
1
The Court urges that "[t]he political branches, not the Judiciary, have the responsibility and institutional capacity to weigh foreign-policy concerns." Ante, at 1403. I agree that the political branches are well poised to assess the foreign-policy concerns attending ATS litigation, which is why I give significant weight to the fact that the Executive Branch, in briefs signed by the Solicitor General and State Department Legal Advisor, has twice urged the Court to reach exactly the opposite conclusion of the one embraced by the majority. See Brief for United States as Amicus Curiae 5 ("This Court should vacate the decision below, which rests on the mistaken premise that a federal common-law claim under the ATS may never be brought against a corporation"); Brief for United States as Amicus Curiae in Kiobel v. Royal Dutch Petroleum Co., O.T. 2012, No. 10-1491, p. 7 ("Courts may recognize corporate liability in actions under the ATS as a matter of federal common law.... Sosa 's cautionary admonitions provide no reason to depart from the common law on this issue"). At oral argument in this case, the United States told the Court that it saw no "sound reason to categorically exclude corporate liability." Tr. of Oral Arg. 29. It explained that another country would hold the United States accountable for not providing a remedy against a corporate defendant in a "classic" ATS case, such as one involving a "foreign officia[l] injured in the United States," id., at 32-33, and suggested that foreclosing the ability to recover from a corporation actually would raise "the possibility of friction," id., at 33. Notably, the Government's position that categorically barring corporate liability under the ATS is wrong has been consistent across two administrations led by Presidents of different political parties.
Likewise, when Members of Congress have weighed in on the question whether corporations can be proper defendants in an ATS suit, it has been to advise the Court against the rule it now adopts. See Brief for Sen. Sheldon Whitehouse et al. as Amici Curiae 7-11; Brief for Former Sen. Arlen Specter et al. as Amici Curiae in Kiobel v. Royal Dutch Petroleum Co., O.T. 2012, No. 10-1491, pp. 17-18. Congress has also never seen it necessary to immunize corporations from ATS liability even though corporations have been named as defendants in ATS suits for years. See Monessen Southwestern R. Co. v. Morgan, 486 U.S. 330, 338, 108 S.Ct. 1837, 100 L.Ed.2d 349 (1988) ("Congress' failure to disturb a consistent judicial interpretation of a statute may provide some indication that 'Congress at least acquiesces in, and apparently affirms, that [interpretation]' " (quoting Cannon v. University of Chicago, 441 U.S. 677, 703, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979) )).
Given the deference to the political branches that Sosa encourages, I find it puzzling that the Court so eagerly departs from the express assessment of the Executive Branch and Members of Congress that corporations can be defendants in ATS actions.
2
The plurality instead purports to defer to Congress by relying heavily on the Torture Victim Protection Act of 1991 (TVPA), 106 Stat. 73, note following 28 U.S.C. § 1350, to support its categorical bar. See ante, at 1429 - 1430. The TVPA makes available to all individuals, not just foreign citizens, a civil cause of action for torture and extrajudicial killing that may be brought against natural persons. See Mohamad v. Palestinian Authority, 566 U.S. 449, 451-452, 454, 132 S.Ct. 1702, 182 L.Ed.2d 720 (2012). The plurality extrapolates from Congress' decision regarding the scope of liability under the TVPA a rule that it contends should govern all ATS suits. See ante, at 1429 - 1430. But there is no reason to think that because Congress saw fit to permit suits only against natural persons for two specific law-of-nations violations, Congress meant to foreclose corporate liability for all law-of-nations violations. The plurality's contrary conclusion ignores the critical textual differences between the ATS and TVPA, as well as the TVPA's legislative history, which emphasizes Congress' intent to leave the ATS undisturbed.
On its face, the TVPA is different from the ATS in several significant ways: It is focused on only two law-of-nations violations, torture and extrajudicial killing; it makes a cause of action available to all individuals, not just foreign citizens; and it uses the word "individual" to delineate who may be liable. See 28 U.S.C. § 1350 note. The ATS, by contrast, is concerned with all law-of-nations violations generally, makes a cause of action available only to foreign citizens, and is silent as to who may be liable. Because of the textual differences between the two statutes, the Court unanimously concluded in Mohamad that the ATS "offers no comparative value" in ascertaining the scope of liability under the TVPA. 566 U.S., at 458, 132 S.Ct. 1702. It makes little sense, then, to conclude that the TVPA has dispositive comparative value in discerning the scope of liability under the ATS.
Furthermore, Congress repeatedly emphasized in the House and Senate Reports on the TVPA that the statute was meant to supplement the ATS, not replace or cabin it. See H.R. Rep. No. 102-367, pt. 1, p. 3 (1991) (" Section 1350 has other important uses and should not be replaced. There should also, however, be a clear and specific remedy, not limited to aliens, for torture and extrajudicial killing"); id., at 4 ("The TVPA ... would also enhance the remedy already available under section 1350 in an important respect: While the [ATS] provides a remedy to aliens only, the TVPA
would extend a civil remedy also to U.S. citizens who may have been tortured abroad"); ibid. ("[C]laims based on torture or summary executions do not exhaust the list of actions that may appropriately be covered b[y] section 1350. That statute should remain intact to permit suits based on other norms that already exist or may ripen in the future into rules of customary international law"); S. Rep. No. 102-249, pp. 4-5 (1991); see also Sosa, 542 U.S., at 731, 124 S.Ct. 2739 (explaining that the TVPA "supplement[ed] the judicial determination" in Filartiga ).
Lacking any affirmative evidence that Congress' decision to limit liability under the TVPA to natural persons indicates a legislative judgment about the proper scope of liability in all ATS suits, the plurality focuses its efforts on dismissing petitioners' argument that Congress limited TVPA liability to natural persons to harmonize the statute with the Foreign Sovereign Immunities Act of 1976 (FSIA), which generally immunizes foreign states from suit. See ante, at 1430. Contrary to the plurality's contention, however, this Court did not reject petitioners' account of the TVPA's legislative history in Mohamad . In fact, that decision agreed that the legislative history "clarifi[es] that the Act does not encompass liability against foreign states." 566 U.S., at 459, 132 S.Ct. 1702. What Mohamad rejected was the argument that because the TVPA forecloses liability against foreign states, it necessarily permits liability against corporations. In concluding that the TVPA encompasses only natural persons, Mohamad took no position on why Congress excluded organizations from its reach.
To infer from the TVPA that no corporation may ever be held liable under the ATS for any violation of any international-law norm, moreover, ignores that Congress has elsewhere imposed liability on corporations for conduct prohibited by customary international law. For instance, the Antiterrorism Act of 1990 (ATA) created a civil cause of action for U.S. nationals injured by an act of international terrorism and expressly provides for corporate liability. 18 U.S.C. § 2333. That Congress foreclosed corporate liability for torture and extrajudicial killing claims under the TVPA but permitted corporate liability for terrorism-related claims under the ATA is strong evidence that Congress exercises its judgment as to the appropriateness of corporate liability on a norm-by-norm basis, and that courts should do the same when considering whether to permit causes of action against corporations for law-of-nations violations under the ATS.
The plurality dismisses the ATA as "an inapt analogy" because the ATA "provides a cause of action only to 'national[s] of the United States,' " whereas the ATS "provides a remedy for foreign nationals only." Ante, at 1404 (quoting 18 U.S.C. § 2333(a) ). But if encompassing different groups of plaintiffs is what makes two statutes poor comparators for each other, the TVPA, too, is an inapt analogy, for it permits suits by all individuals, U.S. and foreign nationals alike.
The plurality also posits that the ATA "suggests that there should be no common-law action under the ATS for allegations like petitioners'," ante, at 1405, because permitting such suits would allow foreign plaintiffs to "bypass Congress' express limitations on liability under the [ATA] simply by bringing an ATS lawsuit," ibid . Yet an ATS suit alleging terrorism-related conduct does not "bypass" or "displace" any "statutory and regulatory structure," ibid., any more than an ATA suit does. As this case demonstrates, U.S. nationals and foreign citizens may bring ATA and ATS suits in the same court, at the same time, for the same underlying conduct. To the extent the plurality is suggesting that Congress, in enacting the ATA, meant to foreclose ATS suits based on terrorism financing, the plurality offers no evidence to support that hypothesis, and the legislative history suggests that Congress enacted the ATA to provide U.S. citizens with the same remedy already available to foreign citizens under the ATS. See Hearing on S. 2465 before the Subcommittee on Courts and Administrative Practice of the Senate Committee on the Judiciary, 101st Cong., 1st Sess., 90 (1990) (testimony of Joseph A. Morris) (noting that ATS actions for terrorism "would be preserved").
At bottom, the ATS and TVPA are related but distinct statutes that coexist independently. There is no basis to conclude that the considered judgment Congress made about who should be liable under the TVPA for torture and extrajudicial killing should restrict who can be held liable under the ATS for other law-of-nations violations, particularly where Congress made a different judgment about the scope of liability under the ATA for terrorism.
C
Finally, the plurality offers a set of "[o]ther considerations relevant to the exercise of judicial discretion" that it concludes "counsel against allowing liability under the ATS for foreign corporations." Ante, at 1405. None is persuasive.
First, the plurality asserts that "[i]t has not been shown that corporate liability under the ATS is essential to serve the goals of the statute" because "the ATS will seldom be the only way for plaintiffs to hold the perpetrators liable," and because "plaintiffs still can sue the individual corporate employees responsible for a violation of international law under the ATS." Ibid. This Court has never previously required that, to maintain an ATS action, a plaintiff must show that the ATS is the exclusive means by which to hold the alleged perpetrator liable and that no relief can be had from other parties. Such requirements extend far beyond the inquiry Sosa contemplated and are without any basis in the statutory text.
Moreover, even if there are other grounds on which a suit alleging conduct constituting a law-of-nations violation can be brought, such as a state-law tort claim, the First Congress created the ATS because it wanted foreign plaintiffs to be able to bring their claims in federal court and sue for law-of-nations violations. A suit for state-law battery, even if based on the same alleged conduct, is not the equivalent of a federal suit for torture; the latter contributes to the uptake of international human rights norms, and the former does not.
Furthermore, holding corporations accountable for violating the human rights of foreign citizens when those violations touch and concern the United States may well be necessary to avoid the international tension with which the First Congress was concerned. Consider again the assault on the Secretary of the French Legation in Philadelphia by a French adventurer. See supra, at 1426; ante, at 1415 (majority opinion). Would the diplomatic strife that followed really have been any less charged if a corporation had sent its agent to accost the Secretary? Or, consider piracy. If a corporation owned a fleet of vessels and directed them to seize other ships in U.S. waters, there no doubt would be calls to hold the corporation to account. See Kiobel, 621 F.3d, at 156, and n. 10 (observing that "Somali pirates essentially operate as limited partnerships"). Finally, take, for example, a corporation posing as a job-placement agency that actually traffics in persons, forcibly transporting foreign nationals to the United States for exploitation and profiting from their abuse. Not only are the individual employees of that business less likely to be able fully to compensate successful ATS plaintiffs, but holding only individual employees liable does not impose accountability for the institution-wide disregard for human rights. Absent a corporate sanction, that harm will persist unremedied. Immunizing the corporation from suit under the ATS merely because it is a corporation, even though the violations stemmed directly from corporate policy and practice, might cause serious diplomatic friction.
Second, the plurality expresses concern that if foreign corporations are subject to liability under the ATS, other nations could hale American corporations into court and subject them "to an immediate, constant risk of claims seeking to impose massive liability for the alleged conduct of their employees and subsidiaries around the world," a prospect that will deter American corporations from investing in developing economies. Ante, at 1405. The plurality offers no empirical evidence to support these alarmist conjectures, which is especially telling given that plaintiffs have been filing ATS suits against foreign corporations in United States courts for years. It does cite to an amicus brief for the United States in American Isuzu Motors, Inc. v. Ntsebeza, see ante, at 1405, but that case was concerned with the availability of civil aiding and abetting liability, not corporate liability generally, and the United States never contended that permitting corporate liability under the ATS would undermine global investment. Instead, it argued that permitting extraterritorial aiding and abetting cases would interfere with foreign relations and deter "the free flow of trade and investment." See Brief for United States as Amicus Curiae, O.T. 2007, No. 07-919, pp. 12-16, 20. Driven by hypothetical worry about besieged American corporations, today's decision needlessly goes much further, encompassing all ATS suits against all foreign corporations, not just those cases with extraterritorial dimensions premised on an aiding and abetting theory.
* * *
In sum, international law establishes what conduct violates the law of nations, and specifies whether, to constitute a law-of-nations violation, the alleged conduct must be undertaken by a particular type of actor. But it is federal common law that determines whether corporations may, as a general matter, be held liable in tort for law-of-nations violations. Applying that framework here, I would hold that the ATS does not categorically foreclose corporate liability. Tort actions against corporations have long been available under federal common law. Whatever the majority might think of the value of modern-day ATS litigation, it has identified nothing to support its conclusion that "foreign corporate defendants create unique problems" that necessitate a categorical rule barring all foreign corporate liability. Ante, at 1406.
Absent any reason to believe that the corporate form in itself raises serious foreign-policy concerns, and given the repeated urging from the Executive Branch and Members of Congress that the Court need not and should not foreclose corporate liability, I would reverse the decision of the Court of Appeals for the Second Circuit and remand for further proceedings, including whether the allegations here sufficiently touch and concern the United States, see Kiobel, 569 U.S., at 124-125, 133 S.Ct. 1659 and whether the international-law norms alleged to have been violated by Arab Bank-the prohibitions on genocide, crimes against humanity, and financing of terrorism-are of sufficiently definite content and universal acceptance to give rise to a cause of action under the ATS.
III
In categorically barring all suits against foreign corporations under the ATS, the Court ensures that foreign corporations-entities capable of wrongdoing under our domestic law-remain immune from liability for human rights abuses, however egregious they may be.
Corporations can be and often are a force for innovation and growth. Many of their contributions to society should be celebrated. But the unique power that corporations wield can be used both for good and for bad. Just as corporations can increase the capacity for production, so, too, some can increase the capacity for suffering. Consider the genocide that took upwards of 800,000 lives in Rwanda in 1994, which was fueled by incendiary rhetoric delivered via a private radio station, the Radio Télévision Libre des Mille Collines (RTLM). Men spoke the hateful words, but the RTLM made their widespread influence possible.
There can be, and sometimes is, a profit motive for these types of abuses. Although the market does not price all externalities, the law does. We recognize as much when we permit a civil suit to proceed against a paint company that long knew its product contained lead yet continued to sell it to families, or against an oil company that failed to undertake the requisite safety checks on a pipeline that subsequently burst. There is no reason why a different approach should obtain in the human rights context.
Immunizing corporations that violate human rights from liability under the ATS undermines the system of accountability for law-of-nations violations that the First Congress endeavored to impose. It allows these entities to take advantage of the significant benefits of the corporate form and enjoy fundamental rights, see, e.g., Citizens United v. Federal Election Comm'n, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010) ; Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ----, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014), without having to shoulder attendant fundamental responsibilities.
I respectfully dissent.
Because this case involves a foreign corporation, we have no need to reach the question whether an alien may sue a United States corporation under the ATS. And since such a suit may generally be brought in federal court based on diversity jurisdiction, 28 U.S.C. § 1332(a)(2), it is unclear why ATS jurisdiction would be needed in that situation.
The dissent claims that Congress's decision to give federal courts "jurisdiction over claims based on 'the law of nations,' " necessarily implies the authority to develop that law. Post, at 1427. That does not follow. Federal courts have jurisdiction over all kinds of cases-for example, those arising under the law of torts or contracts. Yet following our decision in Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), federal courts are generally no longer permitted to promulgate new federal common law causes of action in those areas. Id., at 75, 58 S.Ct. 817. I can see no reason to treat the law of nations differently. See Sosa v. Alvarez-Machain, 542 U.S. 692, 744-746, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004) (Scalia, J., concurring in part and concurring in judgment).
"Sec. 9. And be it further enacted, That the district courts shall have, exclusively of the courts of the several States, cognizance of all crimes and offences that shall be cognizable under the authority of the United States, committed within their respective districts, or upon the high seas; where no other punishment than whipping, not exceeding thirty stripes, a fine not exceeding one hundred dollars, or a term of imprisonment not exceeding six months, is to be inflicted; and shall also have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation or trade of the United States, where the seizures are made, on waters which are navigable from the sea by vessels of ten or more tons burthen, within their respective districts as well as upon the high seas; saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it; and shall also have exclusive original cognizance of all seizures on land, or other waters than as aforesaid, made, and of all suits for penalties and forfeitures incurred, under the laws of the United States. And shall also have cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States. And shall also have cognizance, concurrent as last mentioned, of all suits at common law where the United States sue, and the matter in dispute amounts, exclusive of costs, to the sum or value of one hundred dollars. And shall also have jurisdiction, exclusively of the courts of the several States, of all suits against consuls or vice-consuls, except for offences above the description aforesaid. And the trial of issues in fact, in the district courts, in all causes except civil causes of admiralty and maritime jurisdiction, shall be by jury." 1 Stat. 76-77 (some emphasis added; footnotes omitted).
As a leading treatise explained, a sovereign "ought not to suffer his subjects to molest the subjects of others, or to do them an injury, much less should he permit them audaciously to offend foreign powers." E. de Vattel, 1 The Law of Nations, bk. II, § 76, p. 145 (1760). Instead, the nation "ought to oblige the guilty to repair the damage, if that be possible, to inflict on him an exemplary punishment, or, in short, according to the nature of the case, and the circumstances attending it, to deliver him up to the offended state there to receive justice." Ibid . A sovereign who "refuses to cause a reparation to be made of the damage caused by his subject, or to punish the guilty, or, in short, to deliver him up, renders himself in some measure an accomplice in the injury, and becomes responsible for it."Id ., § 77, at 145; see also Bellia & Clark, The Alien Tort Statute and the Law of Nations, 78 U. Chi. L. Rev. 472-477 (2011).
The dissent is wrong to suggest, post, at 1427, that Sosa "forecloses" the possibility of recognizing a U.S.-defendant requirement in ATS cases. Sosa said nothing about the subject. And were Sosa taken to preclude any future limits on ATS suits it did not itself anticipate, then Kiobel must have been wrong to apply the canon against extraterritorial application to that statute. But that is not so. The dissent also observes that Sosa "involved an ATS suit brought by a citizen of Mexico against a citizen of Mexico," and that certain amici in Sosa filed briefs arguing that the Court lacked authority over the ATS claims for that reason. See post, at 1427 - 1428. But Sosa did not address those arguments; questions that "merely lurk in the record are not resolved, and no resolution of them may be inferred." Illinois Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 183, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979) (citations and internal quotation marks omitted); accord, RJR Nabisco, Inc. v. European Community, 579 U.S. ----, ----, n. 10, 136 S.Ct. 2090, 2108, n. 10, 195 L.Ed.2d 476 (2016) (issue present but unaddressed by the Court in a previous case was not implicitly decided).
This distinction is similar to the state-action doctrine in domestic law. The prohibitions in the Bill of Rights, for instance, apply only to state actors, whereas the Thirteenth Amendment's prohibition on slavery applies to all actors, state and private. See United States v. Kozminski, 487 U.S. 931, 942, 108 S.Ct. 2751, 101 L.Ed.2d 788 (1988).
At present, the norm-specific query contemplated by footnote 20 is likely resolved simply by considering whether the given international-law norm binds only state actors or state and nonstate actors alike, because there does not appear to be an international-law norm that contemplates a finer distinction between types of private actors. See Brief for United States as Amicus Curiae in Kiobel v. Royal Dutch Petroleum Co., O.T. 2012, No. 10-1491, p. 20 ("At the present time, the United States is not aware of any international-law norm, accepted by civilized nations and defined with the degree of specificity required by Sosa, that requires, or necessarily contemplates, a distinction between natural and juridical actors"); Dodge, Corporate Liability Under Customary International Law, 43 Geo. J. Int'l L. 1045, 1050 (2012) ("None of the norms that are actionable under Sosa distinguish between natural and juridical persons").
Sosa itself supports the proposition that international law does not distinguish between types of private actors, but rather treats natural persons and corporations alike. Footnote 20 groups corporations and individuals together under the larger category of "private actor." Sosa, 542 U.S., at 732, n. 20, 124 S.Ct. 2739 ("if the defendant is a private actor such as a corporation or an individual"); see also id., at 760, 124 S.Ct. 2739 (BREYER, J., concurring in part and concurring in judgment) ("The norm must extend liability to the type of perpetrator (e.g., a private actor) the plaintiff seeks to sue" (citing id ., at 732, n. 20, 124 S.Ct. 2739 )). Sosa also describes the two Court of Appeals decisions on which it relies as having considered whether there was sufficient consensus that particular conduct-torture or genocide-"violates international law" when undertaken "by private actors." Id ., at 732, n. 20, 124 S.Ct. 2739 (discussing Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 791-795 (C.A.D.C.1984) (Edwards, J., concurring), and Kadic v. Karadz?ic, 70 F.3d 232, 239-241 (C.A.2 1995) ). Even though the defendant in Kadic was a natural person, see id ., at 237, and the defendants in Tel-Oren were juridical entities, see 726 F.2d, at 775-776, Sosa refers to them all as "private actors," 542 U.S., at 732, n. 20, 124 S.Ct. 2739.
The Nuremberg Tribunal also was empowered to adjudicate a form of criminal organizational liability, pursuant to which an individual member of a convicted organization would face a rebuttable presumption of guilt in a subsequent proceeding. Brief for Nuremberg Scholars as Amici Curiae 4, 20-21 (citing Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, Arts. 9-10, 59 Stat. 1544, E.A.S. No. 472; see also Brief for Nuremberg Scholars 21-22 (citing United States v. Goering , 22 Trial of the Major War Criminals Before the International Military Tribunal 171, 505, 511, 516-517 (Int'l Mil. Trib. 1946) (declaring three organizations criminal)).
See, e.g., United Nations Convention Against Transnational Organized Crime, Art. 10(1), Nov. 15, 2000, T.I.A.S. No. 13127, S. Treaty Doc. No. 108-16; Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, Art. 2, Dec. 17, 1997, 2802 U.N.T.S. 230.
See International Convention for the Suppression of the Financing of Terrorism, online at https://treaties.un.org/doc/Publication/MTDSG/Volume% 20II/Chapter% 20XVIII/XVIII-11.en.pdf (all Internet materials as last visited Apr. 16, 2018).
The Genocide Convention also does not specifically require that states parties recognize tort claims for genocide, but federal courts have long permitted such actions under the ATS as a matter of federal common law. See, e.g., Kadic, 70 F.3d, at 236. The same is true of the Torture Convention. See, e.g., Filartiga v. Pena-Irala, 630 F.2d 876, 885 (C.A.2 1980).
Jordan does argue that corporate liability is unavailable under the ATS, but that argument is based on its view that there is no universally recognized international-law norm of corporate liability, see Brief for Hashemite Kingdom of Jordan as Amicus Curiae 12-15, not a contention that corporate status alone presents foreign-policy concerns justifying immunity for all corporations in all ATS suits irrespective of circumstance.
For instance, the alleged conduct might not sufficiently touch and concern the United States to displace the presumption against extraterritoriality; the prohibition on terrorism financing might not be a specific, universal, and obligatory norm warranting recognition under the ATS; and petitioners might not be able to prove the requisite mens rea . In addition, petitioners have asserted direct, rather than vicarious, liability against respondent. A suit based on only vicarious liability may raise different questions not presented here.
The majority's overly blunt rule is also unlikely to resolve any foreign-relations concerns at play in this case. Arab Bank is still being sued under the Antiterrorism Act of 1990 for the exact same conduct as alleged here. It is also hard to imagine that Jordan would have been perfectly content to see the CEO of Arab Bank and high-level officials at the New York branch sued under the ATS.
The TVPA requires state action to trigger liability. See 28 U.S.C. § 1350 note (imposing liability on "[a]n individual who, under actual or apparent authority, or color of law, of any foreign nation" subjects an individual to torture or extrajudicial killing). Absent a limitation on suits against states and state entities, the TVPA arguably would have been in conflict with the FSIA.
Petitioners may be right that Congress limited liability under the TVPA to natural persons to harmonize the statute with the FSIA. That Congress thought it necessary to achieve that goal by foreclosing liability against all organizational defendants, not just those operating under the authority of a foreign government, might indicate that Congress thought such line drawing would be difficult, or that an expansive approach was the cleanest way to avoid the statute becoming a backdoor to suits against foreign governments.
Counsel for Arab Bank acknowledged the symbolic force of ATS liability at oral argument. See Tr. of Oral Arg. 60 ("[T]he idea of the ATS is ... not just that you violated a statute, but that you have violated some specific universal obligatory norm so you are essentially an enemy of mankind. So, as much as my clients would not like to be an ATA defendant, they would really, really, really not like to be ... labeled an enemy of mankind").
Justice ALITO, adopting a more absolutist position than the plurality, asserts without qualification that "federal courts should not create causes of action under the ATS against foreign corporate defendants" because doing so "would precipitate ... diplomatic strife." Ante, at 1415, 1414 (opinion concurring in part and concurring in judgment). The conclusion that ATS suits against foreign corporate defendants for law-of-nations and treaty violations always will cause diplomatic friction, and that such suits will never be necessary "to help the United States avoid diplomatic friction," ante, at 1411, however, is at odds with the considered judgment of the Executive Branch and Congress regarding the importance of holding foreign corporations to account for certain egregious conduct. As noted, see Part II-B-1, supra, the Executive Branch has twice urged the Court not to foreclose the ability of foreign nationals to sue foreign corporate defendants under the ATS. The United States also has ratified several international agreements that require it to impose liability on corporations, both foreign and domestic, for certain actions, including the financing of terrorism. See supra, at 1424 - 1425. Congress, too, has expressly authorized civil suits against corporations for acts related to terrorism. See 18 U.S.C. § 2333. The Executive Branch and Congress surely would not have taken these positions, entered into these obligations, or made available these causes of action if the result were intolerable diplomatic strife.
Justice ALITO also faults the lack of "real-world examples" of instances in which diplomatic friction has resulted from a court's refusal to permit an individual to bring an ATS suit against a foreign corporation solely because of the defendant's status as a foreign juridical entity. Ante, at 1414. Such refusals, though, have been rare, as no other Court of Appeals besides the Second Circuit that has considered the question has imposed a bar on corporate liability. Compare Doe v. Drummond Co., 782 F.3d 576, 584 (C.A.11 2015) ; Doe I v. Nestle USA, Inc., 766 F.3d 1013, 1022 (C.A.9 2014) ; Doe v. Exxon Mobil Corp., 654 F.3d 11, 39-57 (C.A.D.C.2011), vacated on other grounds, 527 Fed.Appx. 7 (C.A.D.C.2013) ; Flomo v. Firestone Nat. Rubber Co., 643 F.3d 1013, 1017-1021 (C.A.7 2011), with Kiobel v. Royal Dutch Petroleum, 621 F.3d 111, 120 (C.A.2 2010).
See, e.g., Nahimana v. Prosecutor, Case No. ICTR 99-52-A, Appeals Judgment ¶ 176 (Nov. 28, 2007) (upholding finding that the RTLM Collines broadcasts "contributed substantially to the killing of Tutsi"); G. Prunier, The Rwanda Crisis: History of a Genocide 224 (2d ed. 1999) (detailing incitements to murder broadcast on the RTLM, including: " 'The graves are not yet full. Who is going to do the good work and help us fill them completely' "); Yanagizawa-Drott, Propaganda and Conflict: Evidence From the Rwandan Genocide, 129 Q.J. Econ. 1947, 1950 (2014) (analyzing village-level data from Rwanda to estimate that the RTLM's transmissions caused 10 percent of the total participation in the genocide). | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases. | What is the ideological direction of the decision? | [
"Conservative",
"Liberal",
"Unspecifiable"
] | [
0
] | sc_decisiondirection |
GRATZ et al. v. BOLLINGER et al.
No. 02-516.
Argued April 1, 2003
Decided June 23, 2003
Rehnquist, C. J., delivered the opinion of the Court, in which O’Con-nor, Scalia, Kennedy, and Thomas, JJ., joined. O’Connor, J., filed a concurring opinion, in which Breyer, J., joined in part, post, p. 276. Thomas, J., filed a concurring opinion, post, p. 281. Breyer, J., filed an opinion concurring in the judgment, post, p. 281. Stevens, J., filed a dissenting opinion, in which ¿OUTER, J., joined, post, p. 282. SOUTER, J., filed a dissenting opinion, in which Ginsburg, J., joined as to Part II, post, p. 291. Ginsburg, J., filed a dissenting opinion, in which Souter, J., joined, and in which Breyer, J., joined as to Part I, post, p. 298.
Kirk 0. Kolbo argued the cause for petitioners. With him on the briefs were David F. Herr, R. Lawrence Purdy, Michael C. McCarthy, Michael E. Rosman, Hans Bader,.and Kerry L. Morgan.
Solicitor General Olson argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Boyd and Deputy Solicitor General Clement.
John Payton argued the cause for respondents. With him on the brief for respondent Bollinger et al. were John H. Pickering, Brígida Benitez, Craig Goldblatt, Terry A. Ma-roney, Maureen E. Mahoney, Marvin Krislov, Jonathan Alger, Jeffrey Lehman, Evan Caminker, Philip J. Kessler, and Leonard M. Niehoff. Theodore M. Shaw, Norman J. Chachkin, James L. Cott, Melissa S. Woods, Christopher A. Hansen, Brent E. Simmons, Michael J. Steinberg, Antonia Hernandez, Patricia Mendoza, Godfrey J. Dillard, and Milton R. Henry filed a brief for respondent Patterson et al.
Briefs of amici curiae urging reversal were filed for the State of Florida et al. by Charlie Crist, Attorney General of Florida, Christopher M. Rise, Solicitor General, Louis F. Hubener, Deputy Solicitor General, and Daniel Woodring; for the Cato Institute by Robert A Levy, Timothy Lynch, James L. Swanson, and Samuel Estreicher; for the Center for Equal Opportunity et al. by Roger Clegg and C. Mark Pickrell; for the Center for Individual Freedom by Renee L. Giachino; for the Center for New Black Leadership by Clint Bo lick, William H. Mellor, and Richard D. Komer; for the Center for the Advancement of Capitalism by David Reed Burton; for the Claremont Institute Center for Constitutional Jurisprudence by Edwin Meese III; for the Michigan Association of Scholars by William F. Mohrman; for the National Association of Scholars by William H. Allen, Oscar M. Garibaldi, and Keith A Noreika; for the Pacific Legal Foundation by John H. Findley; and for the Reason Foundation by Martin S. Kaufman.
Briefs of amici curiae urging affirmance were filed for Members of the United States Congress by Leslie T. Thornton and Steven M. Schnee-baum; for the State of Maryland et al. by J. Joseph Curran, Jr., Attorney General of Maryland, Andrew H. Baida, Solicitor General, Mark J. Davis and William F. Brockman, Assistant Attorneys General, Eliot Spitzer, Attorney General of New York, Caitlin J. Halligan, Solicitor General, Michelle Aronowitz, Deputy Solicitor General, and Julie Mathy Sheridan and Sachin S. Pandya, Assistant Solicitors General, and by the Attorneys General for their respective jurisdictions as follows: Terry Goddard of Arizona, Bill Lockyer of California, Ken Salazar of Colorado, Richard Blu-menthal of Connecticut, Lisa Madigan of Illinois, Thomas J. Miller of Iowa, G. Steven Rowe of Maine, Thomas F. Reilly of Massachusetts, Mike Hatch of Minnesota, Mike McGrath of Montana, Patricia A Madrid of New Mexico, Roy Cooper of North Carolina, W. A Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Patrick Lynch of Rhode Island, William H. Sorrell of Vermont, Iver A Stridiron of the Virgin Islands, Christine 0. Gregoire of Washington, Darrell V. McGraw, Jr., of West Virginia, and Peggy A Lautenschlager of Wisconsin; for the State of New Jersey by David Samson, Attorney General, Jeffrey Burstein, Assistant Attorney General, and Donna Arons and Anne Marie Kelly, Deputy Attorneys General; for New York City Council Speaker A. Gifford Miller et al. by Jack Greenberg and Saul B. Shapiro; for the City of Philadelphia, Pennsylvania, et al. by Victor A Bolden and Nelson A Diaz; for the American Educational Research Association et al. by Angelo N. Ancheta; for the American Jewish Committee et al. by Stewart D. Aaron, Thomas M. Jan-cik, Jeffrey P. Sinensky, Kara H. Stein, and Richard T. Foltin; for the American Psychological Association by Paul R. Friedman, William F. Sheehan, and Nathalie F. P. Gilfoyle; for Amherst College et al. by Charles S. Sims; for the Authors of the Texas Ten Percent Plan by Rolando L. Rios; for the Bay Mills Indian Community et al. by Vanya S. Hogen; for the College Board by Janet Pitterle Holt; for Columbia University et al. by Floyd Abrams, Susan Buckley, and James J. Mingle; for Harvard University et al. by Laurence H. Tribe, Jonathan S. Massey, Beverly Ledbetter, Robert B. Donin, and Wendy S. White; for Howard University by Janell M. Byrd; for the Lawyers’ Committee for Civil Rights Under Law et al. by John S. Skilton, Barbara R. Amwine, Thomas J. Henderson, Dennis C. Hayes, Marcia D. Greenberger, Judith L. Lichtman, and Jocelyn C. Frye; for the Leadership Conference on Civil Rights et al. by Robert N. Weiner and William L. Taylor; for the National Coalition of Blacks for Reparations in America et al. by Kevin Outterson; for the National Education Association et al. by Robert H. Chanin, John M. West, Elliot Mincberg, Larry P. Weinberg, and John C. Dempsey; for the National Urban League et al. by William A Norris and Michael C. Small; for the New America Alliance by Thomas R. Julin and D. Patricia Wallace; for Northeastern University by Daryl J. Lapp and Lisa A Sinclair; for the NOW Legal Defense and Education Fund et al. by Wendy R. Weiser and Martha F Davis; for the United Negro College Fund et al. by Drew S. Days III and Beth S. Brinkmann; for the University of Pittsburgh et al. by David C. Frederick and Sean A Lev; for Lieutenant General Julius W. Becton, Jr., et al. by Virginia A. Seitz, Joseph R. Reeder, Robert P. Charrow, and Kevin E. Stern; for Senator Thomas A. Daschle et al. by David T Goldberg and Penny Shane; for the Hayden Family by Roy C. Howell; and for Glenn C. Loury et al. by Jeffrey F. Liss and James J. Halpert.
Briefs of amici curiae were filed for Michigan Governor Jennifer M. Granholm by John D. Pirich and Mark A Goldsmith; for the American Federation of Labor and Congress of Industrial Organizations by Harold Craig Becker, David J. Strom, Jonathan P. Hiatt, and Daniel W. Sherrick; for the Asian American Legal Foundation by Daniel C. Girard and Gordon M. Fauth, Jr.; for the Anti-Defamation League by Martin E. Karlinsky and Steven M. Freeman; for Banks Broadcasting, Inc., by Elizabeth G. Taylor; for the Black Women Lawyers Association of Greater Chicago, Inc., by Sharon E. Jones; for Carnegie Mellon University et al. by W. Thomas McGough, Jr., Kathy M. Banke, Gary L. Kaplan, and Edward N. Stoner II; for the Equal Employment Advisory Council by Jeffrey A Norris and Ann Elizabeth Reesman; for Exxon Mobil Corp. by Richard R. Brann; for General Motors Corp. by Kenneth S. Getter, Eileen Penner, and Thomas A Gottschalk; for Human Rights Advocates et al. by Constance de la Vega; for the Massachusetts Institute of Technology et al. by Donald B. Ayer, Elizabeth Rees, Debra L. Zumwalt, and Stacey J.'Mobley; for the National Asian Pacific American Legal Consortium et al. by Mark A Packman, Jonathan M. Cohen, Karen K. Narasaki, Vincent A. Eng, and Trang Q. Tran; for the National Council of La Raza et al. by Vilma S. Martinez and Jeffrey L. Bleich; for the National School Boards Association et al. by Julie Underwood and Naomi Gittins; for 3M et al. by David W. DeBruin, Deanne E. Maynard, Daniel Mach, Russell W. Porter, Jr., Charles R. Watt, Martin J. Barrington, Deval L. Patrick, John R. Parker, Jr., William J. O’Brien, Gary P. Van Graafeiland, Kathryn A Oberly, Randall E. Mehrberg, Donald M. Remy, Ben W. Heineman, Jr., Brackett B. Denniston III, Elpidio Villarreal, Wayne A Budd, J. Richard Smith, Stewart S. Hudnut, John A Shutkin, Theodore L. Banks, Kenneth C. Frazier, David R. Andrews, Jeffrey B. Kindler, Teresa M. Holland, Charles W. Gerdts III, John L. Sander, Mark P. Klein, and Stephen P. Sawyer; for Representative John Conyers, Jr., et al. by Paul J. Lawrence and Anthony R. Miles; for Duane C. Ellison, by Mr. Ellison, pro se, and Carl V. Angelis; and for Representative Richard A. Gephardt et al. by Andrew L. Sandler and Mary L. Smith.
Chief Justice Rehnquist
delivered the opinion of the Court.
We granted certiorari in this case to decide whether “the University of Michigan’s use of racial preferences in undergraduate admissions violate[s] the Equal Protection Clause of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964 (42 U. S. C. § 2000d), or 42 U. S. C. § 1981.” Brief for Petitioners i. Because we find that the manner in which the University considers the race of applicants in its undergraduate admissions guidelines violates these constitutional and statutory provisions, we reverse that portion of the District Court’s decision upholding the guidelines.
A
Petitioners Jennifer Gratz and Patrick Hamacher both applied for admission to the University of Michigan's (University) College of Literature, Science, and the Arts (LSA) as residents of the State of Michigan. Both petitioners are Caucasian. Gratz, who applied for admission for the fall of 1995, was notified in January of that year that a final decision regarding her admission had been delayed until April. This delay was based upon the University’s determination that, although Gratz was “ ‘well qualified,’ ” she was “ ‘less competitive than the students who ha[d] been admitted on first review.’ ” App. to Pet. for Cert. 109a. Gratz was notified in April that the LSA was unable to offer her admission. She enrolled in the University of Michigan at Dearborn, from which she graduated in the spring of 1999.
Hamacher applied for admission to the LSA for the fall of 1997. A final decision as to his application was also postponed because, though his “‘academic credentials [were] in the qualified range, they [were] not at the level needed for first review admission.’ ” Ibid. Hamacher’s application was subsequently denied in April 1997, and he enrolled at Michigan State University.
In October 1997, Gratz and Hamaeher filed a lawsuit in the United States District Court for the Eastern District of Michigan against the University, the LSA, James Duderstadt, and Lee Bollinger. Petitioners’ complaint was a class-action suit alleging “violations and threatened violations of the rights of the plaintiffs and the class they represent to equal protection of the laws under the Fourteenth Amendment . . . , and for racial discrimination in violation of 42 U. S.C. §§ 1981, 1983 and 2000d et seq” App. 33. Petitioners sought, inter alia, compensatory and punitive damages for past violations, declaratory relief finding that respondents violated petitioners’ “rights to nondiscriminatory treatment,” an injunction prohibiting respondents from “continuing to discriminate on the basis of race in violation of the Fourteenth Amendment,” and an order requiring the LSA to offer Hamaeher admission as a transfer student. Id., at 40.
The District Court granted petitioners’ motion for class certification after determining that a class action was appropriate pursuant to Federal Rule of Civil Procedure 23(b)(2). The certified class consisted of “those individuals who applied for and were not granted admission to the College of Literature, Science & the Arts of the University of Michigan for all academic years from 1995 forward and who are members of those racial or ethnic groups, including Caucasian, that defendants treat[ed] less favorably on the basis of race in considering their application for admission.” App. 70-71. And Hamacher, whose claim the District Court found to challenge a “ ‘practice of racial discrimination pervasively applied on a classwide basis,’” was designated as the class representative. Id., at 67, 70. The court also granted petitioners’ motion to bifurcate the proceedings into a liability and damages phase. Id., at 71. The liability phase was to determine “whether [respondents’] use of race as a factor in admissions decisions violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution.” Id., at 70.
B
The University has changed its admissions guidelines a number of times during the period relevant to this litigation, and we summarize the most significant of these changes briefly. The University’s Office of Undergraduate Admissions (OUA) oversees the LSA admissions process. In order to promote consistency in the review of the large number of applications received, the OUA uses written guidelines for each academic year. Admissions counselors make admissions decisions in accordance with these guidelines.
OUA considers a number of factors in making admissions decisions, including high school grades, standardized test scores, high school quality, curriculum strength, geography, alumni relationships, and leadership. OUA also considers race. During all periods relevant to this litigation, the University has considered African-Americans, Hispanics, and Native Americans to be “underrepresented minorities,” and it is undisputed that the University admits “virtually every qualified . .. applicant” from these groups. App. to Pet. for Cert. 111a.
During 1995 and 1996, OUA counselors evaluated applications according to grade point average combined with what were referred to as the “SCUGA” factors. These factors included the quality of an applicant’s high school (S), the strength of an applicant’s high school curriculum (C), an applicant’s unusual circumstances (U), an applicant’s geographical residence (G), and an applicant’s alumni relationships (A). After these scores were combined to produce an applicant’s “GPA 2” score, the reviewing admissions counselors referenced a set of “Guidelines” tables, which listed GPA 2 ranges on the vertical axis, and American College Test/Scholastic Aptitude Test (ACT/SAT) scores on the horizontal axis. Each table was divided into cells that included one or more courses of action to be taken, including admit, reject, delay for additional information, or postpone for reconsideration.
In both years, applicants with the same GPA 2 score and ACT/SAT score were subject to different admissions outcomes based upon their racial or ethnic status. For example, as a Caucasian in-state applicant, Gratz’s GPA 2 score and ACT score placed her within a cell calling for a postponed decision on her application. An in-state or out-of-state minority applicant with Gratz’s scores would have fallen within a cell calling for admission.
In 1997, the University modified its admissions procedure. Specifically, the formula for calculating an applicant’s GPA 2 score was restructured to include additional point values under the “U” category in the SCUGA factors. Under this new system, applicants could receive points for underrepresented minority status, socioeconomic disadvantage, or attendance at a high school with a predominantly underrepresented minority population, or underrepresentation in the unit to which the student was applying (for example, men who sought to pursue a career in nursing). Under the 1997 procedures, Hamacher’s GPA 2 score and ACT score placed him in a cell on the in-state applicant table calling for postponement of a final admissions decision. An underrepresented minority applicant placed in the same cell would generally have been admitted.
Beginning with the 1998 academic year, the OUA dispensed with the Guidelines tables and the SCUGA point system in favor of a “selection index,” on which an applicant could score a maximum of 150 points. This index was divided linearly into ranges generally calling for admissions dispositions as follows: 100-150 (admit); 95-99 (admit or postpone); 90-94 (postpone or admit); 75-89 (delay or postpone); 74 and below (delay or reject).
Each application received points based on high school grade point average, standardized test scores, academic quality of an applicant’s high school, strength or weakness of high school curriculum, in-state residency, alumni relationship, personal essay, and personal achievement or leadership. Of particular significance here, under a “miscellaneous” category, an applicant was entitled to 20 points based upon his or her membership in an underrepresented racial or ethnic minority group. The University explained that the “ ‘development of the selection index for admissions in 1998 changed only the mechanics, not the substance, of how race and ethnicity [were] considered in admissions.’” App. to Pet. for Cert. 116a.
In all application years from 1995 to 1998, the guidelines provided that qualified applicants from underrepresented minority groups be admitted as soon as possible in light of the University’s belief that such applicants were more likely to enroll if promptly notified of their admission. Also from 1995 through 1998, the University carefully managed its rolling admissions system to permit consideration of certain applications submitted later in the academic year through the use of “protected seats.” Specific groups — including athletes, foreign students, ROTC candidates, and underrepresented minorities — were “protected categories” eligible for these seats. A committee called the Enrollment Working Group (EWG) projected how many applicants from each of these protected categories the University was likely to receive after a given date and then paced admissions decisions to permit full consideration of expected applications from these groups. If this space was not filled by qualified candidates from the designated groups toward the end of the admissions season, it was then used to admit qualified candidates remaining in the applicant pool, including those on the waiting list.
During 1999 and 2000, the OUA used the selection index, under which every applicant from an underrepresented racial or ethnic minority group was awarded 20 points. Starting in 1999, however, the University established an Admissions Review Committee (ARC), to provide an additional level of consideration for some applications. Under the new system, counselors may, in their discretion, “flag” an application for the ARC to review after determining that the applicant (1) is academically prepared to succeed at the University, (2) has achieved a minimum selection index score, and (3) possesses a quality or characteristic important to the University’s composition of its freshman class, such as high class rank, unique life experiences, challenges, circumstances, interests or talents, socioeconomic disadvantage, and underrepresented race, ethnicity, or geography. After reviewing “flagged” applications, the ARC determines whether to admit, defer, or deny each applicant.
C
The parties filed cross-motions for summary judgment with respect to liability. Petitioners asserted that the LSA’s use of race as a factor in admissions violates Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U. S. C. § 2000d, and the Equal Protection Clause of the Fourteenth Amendment. Respondents relied on Justice Powell’s opinion in Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978), to respond to petitioners’ arguments. As discussed in greater detail in the Court’s opinion in Grutter v. Bollinger, post, at 323-325, Justice Powell, in Bakke, expressed the view that the consideration of race as a factor in admissions might in some cases serve a compelling government interest. See 438 U. S., at 317. Respondents contended that the LSA has just such an interest in the educational benefits that result from having a racially and ethnically diverse student body and that its program is narrowly tailored to serve that interest. Respondent-intervenors asserted that the LSA had a compelling interest in remedying the University’s past and current discrimination against minorities.
The District Court began its analysis by reviewing this Court’s decision in Bakke. See 122 F. Supp. 2d 811, 817 (ED Mich. 2000). Although the court acknowledged that no decision from this Court since Bakke has explicitly accepted the diversity rationale discussed by Justice Powell, see 122 F. Supp. 2d, at 820-821, it also concluded that this Court had not, in the years since Bakke, ruled out such a justification for the use of race, 122 F. Supp. 2d, at 820-821. The District Court concluded that respondents and their amici curiae had presented “solid evidence” that a racially and ethnically diverse student body produces significant educational benefits such that achieving such a student body constitutes a compelling governmental interest. See id., at 822-824.
The court next considered whether the LSA’s admissions guidelines were narrowly tailored to achieve that interest. See id., at 824. Again relying on Justice Powell’s opinion in Bakke, the District Court determined that the admissions program the LSA began using in 1999 is a narrowly tailored means of achieving the University’s interest in the educational benefits that flow from a racially and ethnically diverse student body. See 122 F. Supp. 2d, at 827. The court emphasized that the LSA’s current program does not utilize rigid quotas or seek to admit a predetermined number of minority students. See ibid. The award of 20 points for membership in an underrepresented minority group, in the District Court’s view, was not the functional equivalent of a quota because minority candidates were not insulated from review by virtue of those points. See id., at 828. Likewise, the court rejected the assertion that the LSA’s program operates like the two-track system Justice Powell found objectionable in Bakke on the grounds that LSA applicants are not competing for different groups of seats. See 122 F. Supp. 2d, at 828-829. The court also dismissed petitioners’ assertion that the LSA’s current system is nothing more than a means by which to achieve racial balancing. See id., at 831. The court explained that the LSA does not seek to achieve a certain proportion of minority students, let alone a proportion that represents the community. See ibid.
The District Court found the admissions guidelines the LSA used from 1995 through 1998 to be more problematic. In the court’s view, the University’s prior practice of “protecting” or “reserving” seats for underrepresented minority applicants effectively kept nonprotected applicants from competing for those slots. See id., at 832. This system, the court concluded, operated as the functional equivalent of a quota and ran afoul of Justice Powell’s opinion in Bakke. See 122 P. Supp. 2d, at 832.
Based on these findings, the court granted petitioners’ motion for summary judgment with respect to the LSA’s admissions programs in existence from 1995 through 1998, and respondents’ motion with respect to the LSA’s admissions programs for 1999 and 2000. See id., at 833. Accordingly, the District Court denied petitioners’ request for injunctive relief. See id., at 814.
The District Court issued an order consistent with its rulings and certified two questions for interlocutory appeal to the Sixth Circuit pursuant to 28 U. S. C. § 1292(b). Both parties appealed aspects of the District Court’s rulings, and the Court of Appeals heard the case en banc on the same day as Grutter v. Bollinger. The Sixth Circuit later issued an opinion in Grutter, upholding the admissions program used by the University of Michigan Law School, and the petitioner in that case sought a writ of certiorari from this Court. Petitioners asked this Court to grant certiorari in this case as well, despite the fact that the Court of Appeals had not yet rendered a judgment, so that this Court could address the constitutionality of the consideration of race in university admissions in a wider range of circumstances. We did so. See 537 U. S. 1044 (2002).
II
As they have throughout the course of this litigation, petitioners contend that the University’s consideration of race in its undergraduate admissions decisions violates §1 of the Equal Protection Clause of the Fourteenth Amendment, Title VI, and 42 U. S. C. § 1981. We consider first whether petitioners have standing to seek declaratory and injunctive relief, and, finding that they do, we next consider the merits of their claims.
A
Although no party has raised the issue, Justice Stevens argues that petitioners lack Article III standing to seek in-junctive relief with respect to the University’s use of race in undergraduate admissions. He first contends that because Hamacher did not “actually appl[y] for admission as a transfer student[,] [h]is claim of future injury is at best ‘conjectural or hypothetical’ rather than ‘real and immediate.’” Post, at 285 (dissenting opinion). But whether Hamacher “actually applied” for admission as a transfer student is not determinative of his ability to seek injunctive relief in this case. If Hamacher had submitted a transfer application and been rejected, he would still need to allege an intent to apply again in order to seek prospective relief. If Justice Stevens means that because Hamacher did not apply to transfer, he must never really have intended to do so, that conclusion directly conflicts with the finding of fact entered by the District Court that Hamacher “intends to transfer to the University of Michigan when defendants cease the use of race as an admissions preference.” App. 67.
. It is well established that intent may be relevant to standing in an equal protection challenge. In Clements v. Fashing, 457 U. S. 957 (1982), for example, we considered a challenge to a provision of the Texas Constitution requiring the immediate resignation of certain state officeholders upon their announcement of candidacy for another office. We concluded that the plaintiff officeholders had Article III standing because they had alleged that they would have announced their candidacy for other offices were it not for the “automatic resignation” provision they were challenging. Id., at 962; accord, Turner v. Fouche, 396 U. S. 346, 361-362, n. 23 (1970) (plaintiff who did not own property had standing to challenge property ownership requirement for membership on school board even though there was no evidence that plaintiff had applied and been rejected); Quinn v. Millsap, 491 U. S. 95, 103, n. 8 (1989) (plaintiffs who did not own property had standing to challenge property ownership requirement for membership on government board even though they lacked standing to challenge the requirement “as applied”). Likewise, in Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U. S. 656 (1993), we considered whether an association challenging an ordinance that gave preferential treatment to certain minority-owned businesses in the award of city contracts needed to show that one of its members would have received a contract absent the ordinance in order to establish standing. In finding that no such showing was necessary, we explained that “[t]he ‘injury in fact’ in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.... And in the context of a challenge to a set-aside program, the ‘injury in fact’ is the inability to compete on an equal footing in the bidding process, not the loss of contract.” Id., at 666. We concluded that in the face of such a barrier, “[t]o establish standing..., a party challenging a set-aside program like Jacksonville’s need only demonstrate that it is able and ready to bid on contracts and that a discriminatory policy prevents it from doing so on an equal basis.” Ibid.
In bringing his equal protection challenge against the University’s use of race in undergraduate admissions, Hamacher alleged that the University had denied him the opportunity to compete for admission on an equal basis. When Ha-macher applied to the University as a freshman applicant, he was denied admission even though an underrepresented minority applicant with his qualifications would have been admitted. See App. to Pet. for Cert. 115a. After being denied admission, Hamacher demonstrated that he was “able and ready” to apply as a transfer student should the University cease to use race in undergraduate admissions. He therefore has standing to seek prospective relief with respect to the University’s continued use of race in under-' graduate admissions.
Justice Stevens raises a second argument as to standing. He contends that the University’s use of race in undergraduate transfer admissions differs from its use of race in undergraduate freshman admissions, and that therefore Ha-macher lacks standing to represent absent class members challenging the latter. Post, at 286-287 (dissenting opinion). As an initial matter, there is a question whether the relevance of this variation, if any, is a matter of Article III standing at all or whether it goes to the propriety of class certification pursuant to Federal Rule of Civil Procedure 23(a). The parties have not briefed the question of standing versus adequacy, however, and we need not resolve the question today: Regardless of whether the requirement is deemed one of adequacy or standing, it is clearly satisfied in this case.
From the time petitioners filed their original complaint through their brief on the merits in this Court, they have consistently challenged the University’s use of race in undergraduate admissions and its asserted justification of promoting “diversity.” See, e. g., App. 38; Brief for Petitioners 13. Consistent with this challenge, petitioners requested injunc-tive relief prohibiting respondents “from continuing to discriminate on the basis of race.” App. 40. They sought to certify a class consisting of all individuals who were not members of an underrepresented minority group who either had applied for admission to the LSA and been rejected or who intended to apply for admission to the LSA, for all academic years from 1995 forward. Id., at 35-36. The District Court determined that the proposed class satisfied the requirements of the Federal Rules of Civil Procedure, including the requirements of numerosity, commonality, and typicality. See Fed. Rule Civ. Proc. 23(a); App. 70. The court further concluded that Hamacher was an adequate representative for the class in the pursuit of compensatory and injunctive relief for purposes of Rule 23(a)(4), see id., at 61-69, and found “the record utterly devoid of the presence of . . . antagonism between the interests of. . . Hamacher, and the members of the class which [he] seek[s] to represent,” id., at 61. Finally, the District Court concluded that petitioners’ claim was appropriate for class treatment because the University’s “‘practice of racial discrimination pervasively applied on a classwide basis.’” Id., at 67. The court certified the class pursuant to Federal Rule of Civil Procedure 23(b)(2), and designated Hamacher as the class representative. App. 70.
Justice Stevens cites Blum v. Yaretsky, 457 U. S. 991 (1982), in arguing that the District Court erred. Post, at 289. In Blum, we considered a class-action suit brought by Medicaid beneficiaries. The named representatives in Blum challenged decisions by the State’s Medicaid Utilization Review Committee (URC) to transfer them to lower levels of care without, in their view, sufficient procedural safeguards. After a class was certified, the plaintiffs obtained an order expanding class certification to include challenges to URC decisions to transfer patients to higher levels of care as well. The defendants argued that the named representatives could not represent absent elass members challenging transfers to higher levels of care because they had not been threatened with such transfers. We agreed. We noted that “[njothing in the record ... suggests that any of the individual respondents have been either transferred to more intensive care or threatened with such transfers.” 457 U. S., at 1001. And we found that transfers to lower levels of care involved a number of fundamentally different concerns than did transfers to higher ones. Id., at 1001-1002 (noting, for example, that transfers to lower levels of care implicated beneficiaries’ property interests given the concomitant decrease in Medicaid benefits, while transfers to higher levels of care did not).
In the present case, the University’s use of race in undergraduate transfer admissions does not implicate a significantly different set of concerns than does its use of race in undergraduate freshman admissions. Respondents challenged Hamacher’s standing at the certification stage, but never did so on the grounds that the University’s use of race in undergraduate transfer admissions involves a different set of concerns than does its use of race in freshman admissions. Respondents’ failure to allege any such difference is simply consistent with the fact that no such difference exists. Each year the OUA produces a document entitled “COLLEGE OF LITERATURE, SCIENCE AND THE ARTS GUIDELINES FOR ALL TERMS,” which sets forth guidelines for all individuals seeking admission to the LSA, including freshman applicants, transfer applicants, international student applicants, and the like. See, e.g., 2 App. in No. 01-1333 etc. (CA6), pp. 507-542. The guidelines used to evaluate transfer applicants specifically cross-reference factors and qualifications considered in assessing freshman applicants. In fact, the criteria used to determine whether a transfer applicant will contribute to the University’s stated goal of diversity are identical to that used to evaluate freshman applicants. For example, in 1997, when the class was certified and the District Court found that Hamacher had standing to represent the class, the transfer guidelines contained a separate section entitled “CONTRIBUTION TO A DIVERSE STUDENT BODY.” 2 id., at 531. This section explained that any transfer applicant who could “contribute] to a diverse student body” should “generally be admitted” even with substantially lower qualifications than those required of other transfer applicants. Ibid. (emphasis added). To determine whether a transfer applicant was capable of “contribut[ing] to a diverse student body,” admissions counselors were instructed to determine whether that transfer applicant met the “criteria as defined in Section IV of the ‘U’ category of [the] SCUGA” factors used to assess freshman applicants. Ibid. Section IV of the “U” category, entitled “Contribution to a Diverse Class/' explained that “[t]he University is committed to a rich educational experience for its students. A diverse, as opposed to a homogenous, student population enhances the educational experience for all students. To insure a diverse class, significant weight will be given in the admissions process to indicators of students contribution to a diverse class.” 1 id., at 432. These indicators, used in evaluating freshman and transfer applicants alike, list being a member of an underrepresented minority group as establishing an applicant’s contribution to diversity. See 3 id., at 1133-1134, 1153-1154. Indeed, the only difference between the University’s use of race in considering freshman and transfer applicants is that all underrepresented minority freshman applicants receive 20 points and “virtually” all who are minimally qualified are admitted, while “generally” all minimally qualified minority transfer applicants are admitted outright. While this difference might be relevant to a narrow tailoring analysis, it clearly has no effect on petitioners’ standing to challenge the University’s use of race in undergraduate admissions and its assertion that diversity is a compelling state interest that justifies its consideration of the race of its undergraduate applicants.
Particularly instructive here is our statement in General Telephone Co. of Southwest v. Falcon, 457 U. S. 147 (1982), that “[i]f [defendant-employer] used a biased testing procedure to evaluate both applicants for employment and incumbent employees, a class action on behalf of every applicant or employee who might have been prejudiced by the test clearly would satisfy the . . . requirements of Rule 23(a).” Id., at 159, n. 15 (emphasis added). Here, the District Court found that the sole rationale the University had provided for any of its race-based preferences in undergraduate admissions was the interest in “the educational benefits that result from having a diverse student body.” App. to Pet. for Cert. 8a. And petitioners argue that an interest in “diversity” is not a compelling state interest that is ever capable of justifying the use of race in undergraduate admissions. See, e. g., Brief for Petitioners 11-13. In sum, the same set of concerns is implicated by the University’s use of race in evaluating all undergraduate admissions applications under the guidelines. We therefore agree with the District Court’s carefully considered decision to certify this class-action challenge to the University’s consideration of race in undergraduate admissions. See App. 67 (“ ‘It is a singular policy . . . applied on a classwide basis’”); cf. Coopers & Lybrand v. Livesay, 437 U. S. 463, 469 (1978) (“[T]he class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action” (internal quotation marks omitted)). Indeed, class-action treatment was particularly important in this case because “the claims of the individual students run the risk of becoming moot” and the “[t]he class action vehicle . . . provides a mechanism for ensuring that a justiciable claim is before the Court.” App. 69. Thus, we think it clear that Hamacher’s personal stake, in view of both his past injury and the potential injury he faced at the time of certification, demonstrates that he may maintain this class-action challenge to the University’s use of race in undergraduate admissions.
B
Petitioners argue, first and foremost, that the University’s use of race in undergraduate admissions violates the Fourteenth Amendment. Specifically, they contend that this Court has only sanctioned the use of racial classifications to remedy identified discrimination, a justification on which respondents have never relied. Brief for Petitioners 15-16. Petitioners further argue that “diversity as a basis for employing racial preferences is simply too open-ended, ill-defined, and indefinite to constitute a compelling interest capable of supporting narrowly-tailored means.” Id., at 17-18, 40-41. But for the reasons set forth today in Grutter v. Bollinger, post, at 327-333, the Court has rejected these arguments of petitioners.
Petitioners alternatively argue that even if the University’s interest in diversity can constitute a compelling state interest, the District Court erroneously concluded that the University’s use of race in its current freshman admissions policy is narrowly tailored to achieve such an interest. Petitioners argue that the guidelines the University began using in 1999 do not “remotely resemble the kind of consideration of race and ethnicity that Justice Powell endorsed in Bakke” Brief for Petitioners 18. Respondents reply that the University’s current admissions program is narrowly tailored and avoids the problems of the Medical School of the University of California at Davis program (U. C. Davis) rejected by Justice Powell. They claim that their program “hews closely” to both the admissions program described by Justice Powell as well as the Harvard College admissions program that he endorsed. Brief for Respondent Bollinger et al. 32. Specifically, respondents contend that the LSA’s policy provides the individualized consideration that “Justice Powell considered a hallmark of a constitutionally appropriate admissions program.” Id., at 35. For the reasons set out below, we do not' agree.
It is by now well established that “all racial classifications reviewable under the Equal Protection Clause must be strictly scrutinized.” Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 224 (1995). This “ ‘standard of review ... is not dependent on the race of those burdened or benefited by a particular classification.’” Ibid. (quoting Richmond v. J. A. Croson Co., 488 U. S. 469, 494 (1989) (plurality opinion)). Thus, “any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest of judicial scrutiny.” Ada-rand, 515 U. S., at 224.
To withstand our strict scrutiny analysis, respondents must demonstrate that the University’s use of race in its current admissions program employs “narrowly tailored measures that further compelling governmental interests.” Id., at 227. Because “[rjacial classifications are simply too pernicious to permit any but the most exact connection between justification and classification,” Fullilove v. Klutznick, 448 U. S. 448, 537 (1980) (Stevens, J., dissenting), our review of whether such requirements have been met must entail “‘a most searching examination.’” Adarand, supra, at 223 (quoting Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 273 (1986) (plurality opinion of Powell, J.)). We find that the University’s policy, which automatically distributes 20 points, or one-fifth of the points needed to guarantee admission, to every single “underrepresented minority” applicant solely because of race, is not narrowly tailored to achieve the interest in educational diversity that respondents claim justifies their program.
In Bakke, Justice Powell reiterated that “[preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake.” 438 U. S., at 307. He then explained, however, that in his view it would be permissible for a university to employ an admissions program in which “race or ethnic background may be deemed a ‘plus’ in a particular applicant’s file.” Id., at 317. He explained that such a program might allow for “[t]he file of a particular black applicant [to] be examined for his potential contribution to diversity without the factor of race being decisive when compared, for example, with that of an applicant identified as an Italian-American if the latter is thought to exhibit qualities more likely to promote beneficial educational pluralism.” Ibid. Such a system, in Justice Powell’s view, would be “flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant.” Ibid.
Justice Powell’s opinion in Bakke emphasized the importance of considering each particular applicant as an individual, assessing all of the qualities that individual possesses, and in turn, evaluating that individual’s ability to contribute to the unique setting of higher education. The admissions program Justice Powell described, however, did not contemplate that any single characteristic automatically ensured a specific and identifiable contribution to a university’s diversity. See id., at 315. See also Metro Broadcasting, Inc. v. FCC, 497 U. S. 547, 618 (1990) (O’Connor, J., dissenting) (concluding that the Federal Communications Commission’s policy, which “embodie[d] the related notions ... that a particular applicant, by virtue of race or ethnicity alone, is more valued than other applicants because [the applicant is] ‘likely to provide [a] distinct perspective,’ ” “impermissibly value[d] individuals” based on a presumption that “persons think in a manner associated with their race”). Instead, under the approach Justice Powell described, each characteristic of a particular applicant was to be considered in assessing the applicant’s entire application.
The current LSA policy does not provide such individualized consideration. The LSA’s policy automatically distributes 20 points to every single applicant from an “underrepresented minority” group, as defined by the University. The only consideration that accompanies this distribution of points is a factual review of an application to determine whether an individual is a member of one of these minority groups. Moreover, unlike Justice Powell’s example, where the race of a “particular black applicant” could be considered without being decisive, see Bakke, 438 U. S., at 317, the LSA’s automatic distribution of 20 points has the effect of making “the factor of race . . . decisive” for virtually every minimally qualified underrepresented minority applicant. Ibid.
Also instructive in our consideration of the LSA’s system is the example provided in the description of the Harvard College Admissions Program, which Justice Powell both discussed in, and attached to, his opinion in Bakke. The example was included to “illustrate the kind of significance attached to race” under the Harvard College program. Id., at 324. It provided as follows:
“The Admissions Committee, with only a few places left to fill, might find itself forced to choose between A, the child of a successful black physician in an academic community with promise of superior academic performance, and B, a black who grew up in an inner-city ghetto of semi-literate parents whose academic achievement was lower but who had demonstrated energy and leadership as well as an apparently-abiding interest in black power. If a good number of black students much like A but few like B had already been admitted, the Committee might prefer B; and vice versa. If C, a white student with extraordinary artistic talent, were also seeking one of the remaining places, his unique quality might give him an edge over both A and B. Thus, the critical criteria are often individual qualities or experience not depend ent upon race but sometimes associated with it.” Ibid. (emphasis added).
This example further demonstrates the problematic nature of the LSA’s admissions system. Even if student C’s “extraordinary artistic talent” rivaled that of Monet or Picasso, the applicant would receive, at most, five points under the LSA’s system. See App. 234-235. At the same time, every single underrepresented minority applicant, including students A and B, would automatically receive 20 points for submitting an application. Clearly, the LSA’s system does not offer applicants the individualized selection process described in Harvard’s example. Instead of considering how the differing backgrounds, experiences, and characteristics of students A, B, and C might benefit the University, admissions counselors reviewing LSA applications would simply award both A and B 20 points because their applications indicate that they are African-American, and student C would receive up to 5 points for his “extraordinary talent.”
Respondents emphasize the fact that the LSA has created the possibility of an applicant’s file being flagged for individualized consideration by the ARC. We think that the flagging program only emphasizes the flaws of the University’s system as a whole when compared to that described by Justice Powell. Again, students A, B, and C illustrate the point. First, student A would never be flagged. This is because, as the University has conceded, the effect of automatically awarding 20 points is that virtually every qualified underrepresented minority applicant is admitted. Student A, an applicant “with promise of superior academic performance,” would certainly fit this description. Thus, the result of the automatic distribution of 20 points is that the University would never consider student A’s individual background, experiences, and characteristics to assess his individual “potential contribution to diversity,” Bakke, supra, at 317. Instead, every applicant like student A would simply be admitted.
It is possible that students B and C would be flagged and considered as individuals. This assumes that student B was not already admitted because of the automatic 20-point distribution, and that student C could muster at least 70 additional points. But the fact that the “review committee can look at the applications individually and ignore the points,” once an application is flagged, Tr. of Oral Arg. 42, is of little comfort under our strict scrutiny analysis. The record does not reveal precisely how many applications are flagged for this individualized consideration, but it is undisputed that such consideration is the exception and not the rule in the operation of the LSA’s admissions program. See App. to Pet. for Cert. 117a (“The ARC reviews only a portion of all of the applications. The bulk of admissions decisions are executed based on selection index score parameters set by the EWG”). Additionally, this individualized review is only provided after admissions counselors automatically distribute the University’s version of a “plus” that makes race a decisive factor for virtually every minimally qualified underrepresented minority applicant.
Respondents contend that “[t]he volume of applications and the presentation of applicant information make it impractical for [LSA] to use the ... admissions system” upheld by the Court today in Grutter. Brief for Respondent Bol-linger et al. 6, n. 8. But the fact that the implementation of a program capable of providing individualized consideration might present administrative challenges does not render constitutional an otherwise problematic system. See J. A. Croson Co., 488 U. S., at 508 (citing Frontiero v. Richardson, 411 U. S. 677, 690 (1973) (plurality opinion of Brennan, J.) (rejecting “ ‘administrative convenience’ ” as a determinant of constitutionality in the face of a suspect classification)). Nothing in Justice Powell’s opinion in Bakke signaled that a university may employ whatever means it desires to achieve the stated goal of diversity without regard to the limits imposed by our strict scrutiny analysis.
We conclude, therefore, that because the University’s use of race in its current freshman admissions policy is not narrowly tailored to achieve respondents’ asserted compelling interest in diversity, the admissions policy violates the Equal Protection Clause of the Fourteenth Amendment. We further find that the admissions policy also violates Title VI and 42 U. S. C. § 1981. Accordingly, we reverse that portion of the District Court’s decision granting respondents summary judgment with respect to liability and remand the case for proceedings consistent with this opinion.
It is so ordered.
Although Hamacher indicated that he “intended] to apply to transfer if the [LSA’s] discriminatory admissions system [is] eliminated,” he has since graduated from Michigan State University. App. 34.
The University of Michigan Board of Regents was subsequently named as the proper defendant in place of the University and the LSA. See id., at 17.
Duderstadt was the president of the University during the time that Gratz’s application was under consideration. He has been sued in his individual capacity. Bollinger was the president of the University when Ha-macher applied for admission. He was originally sued in both his individual and official capacities, but he is no longer the president of the University. Id., at 35.
A group of African-American and Latino students who applied for, or intended to apply for, admission to the University, as well as the Citizens for Affirmative Action’s Preservation, a nonprofit organization in Michigan, sought to intervene pursuant to Federal Rule of Civil Procedure 24. See App. 13-14. The District Court originally denied this request, see id., at 14-15, but the Sixth Circuit reversed that decision. See Gratz v. Bollinger, 188 F. 3d 394 (1999).
The District Court decided also to consider petitioners’ request for injunctive and declaratory relief during the liability phase of the proceedings. App. 71.
Our description is taken, in large part, from the “Joint Proposed Summary of Undisputed Facts Kegarding Admissions Process” filed by the parties in the District Court. App. to Pet. for Cert. 108a-117a.
In 1995, counselors used four such tables for different groups of applicants: (1) in-state, nonminority applicants; (2) out-of-state, nonminority applicants; (3) in-state, minority applicants; and (4) out-of-state, minority applicants. In 1996, only two tables were used, one for in-state applicants and one for out-of-state applicants. But each cell on these two tables contained separate courses of action for minority applicants and nonminority applicants whose GPA 2 scores and ACT/SAT scores placed them in that cell.
LSA applicants who are Michigan residents must accumulate 80 points from the selection index criteria to be flagged, while out-of-state applicants need to accumulate 75 points to be eligible for such consideration. See App. 257.
The District Court considered and rejected respondent-intervenors’ arguments in a supplemental opinion and order. See 135 F. Supp. 2d 790 (ED Mich. 2001). The court explained that respondent-intervenors “failed to present any evidence that the discrimination alleged by them, or the continuing effects of such discrimination, was the real justification for the LSA’s race-conscious admissions programs.” Id., at 795. We agree, and to the extent respondent-intervenors reassert this justification, a justification the University has never asserted throughout the course of this litigation, we affirm the District Court’s disposition of the issue.
The District Court determined that respondents Bollinger and Duder-stadt, who were sued in their individual capacities under Rev. Stat. § 1979, 42 U. S. C. § 1983, were entitled to summary judgment based on the doctrine of qualified immunity. See 122 F. Supp. 2d, at 833-834. Petitioners have not asked this Court to review this aspect of the District Court’s decision. The District Court denied the Board of Regents’ motion for summary judgment with respect to petitioners’ Title VI claim on Eleventh Amendment immunity grounds. See id., at 834-836. Respondents have not asked this Court to review this aspect of the District Court’s decision.
The Equal Protection Clause of the Fourteenth Amendment explains that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”
Title VI provides that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U. S. C. § 2000d.
Section 1981(a) 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, . . . 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.”
This finding is further corroborated by Hamacher’s request that the District Court “[r]equir[e] the LSA College to offer [him] admission as a transfer student.” App. 40.
Although we do not resolve here-whether such an inquiry in this case is appropriately addressed under the rubric of standing or adequacy, we note that there is tension in our prior cases in this regard. See, e. g., Burns, Standing and Mootness in Class Actions: A Search for Consistency, 22 U. C. D. L. Rev. 1239,1240-1241 (1989); General Telephone Co. of Southwest v. Falcon, 457 U. S. 147, 149 (1982) (Mexican-American plaintiff alleging that he was passed over for a promotion because of race was not an adequate representative to “maintain a class action on behalf of Mexican-American applicants” who were not hired by the same employer); Blum v. Yaretsky, 457 U. S. 991 (1982) (class representatives who had been transferred to lower levels of medical care lacked standing to challenge transfers to higher levels of care).
Because the University’s guidelines concededly use race in evaluating both freshman and transfer applications, and because petitioners have challenged any use of race by the University in undergraduate admissions, the transfer admissions policy is very much before this Court. Although petitioners did not raise a narrow tailoring challenge to the transfer policy, as counsel for petitioners repeatedly explained, the transfer policy is before this Court in that petitioners challenged any use of race by the University to promote diversity, including through the transfer policy. See Tr. of Oral Arg. 4 (“[T]he [transfer] policy is essentially the same with respect to the consideration of race”); id., at 5 (“The transfer policy considers race”); id., at 6 (same); id., at 7 (“[T]he transfer policy and the [freshman] admissions policy are fundamentally the same in the respect that they both consider race in the admissions process in a way that is discriminatory”); id., at 7-8 (“[T]he University considers race for a purpose to achieve a diversity that we believe is not compelling, and if that is struck down as a rationale, then the [result] would be [the] same with respect to the transfer policy as with respect to the [freshman] admissions policy, Your Honor”).
Indeed, as the litigation history of this case demonstrates, “the class-action device save[d] the resources of both the courts and the parties by permitting an issue potentially affecting every [class member] to be litigated in an economical fashion.” Califano v. Yamasaki, 442 U. S. 682, 701 (1979). This case was therefore quite unlike General Telephone Co. of Southwest v. Falcon, 457 U. S. 147 (1982), in which we found that the named representative, who had been passed over for a promotion, was not an adequate representative for absent class members who were never hired in the first instance. As we explained, the plaintiff’s “evidentiary approaches to the individual and class claims were entirely different. He attempted to sustain his individual claim by proving intentional discrimination. He tried to prove the class claims through statistical evidence of disparate impact.... It is clear that the maintenance of respondent’s action as a class action did not advance ‘the efficiency and economy of litigation which is a principal purpose of the procedure.’” Id., at 159 (quoting American Pipe & Constr. Co. v. Utah, 414 U. S. 538, 553 (1974)).
U. C. Davis set aside 16 of the 100 seats available in its first year medical school program for “economically and/or educationally disadvantaged” applicants who were also members of designated “minority groups” as defined by the university. “To the extent that there existed a pool of at least minimally qualified minority applicants to fill the 16 special admissions seats, white applicants could compete only for 84 seats in the entering class, rather than the 100 open to minority applicants.” Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 274, 289 (1978) (principal opinion). Justice Powell found that the program employed an impermissible two-track system that “disregardfed] . . . individual rights as guaranteed by the Fourteenth Amendment.” Id., at 320. He reached this conclusion even though the university argued that “the reservation of a specified number of seats in each class for individuals from the preferred ethnic groups” was “the only effective means of serving the interest of diversity.” Id., at 315. Justice Powell concluded that such arguments misunderstood the very nature of the diversity he found to be compelling. See ibid.
Justice Souter recognizes that the LSA’s use of race is decisive in practice, but he attempts to avoid that fact through unsupported speculation about the self-selection of minorities in the applicant pool. See post, at 296 (dissenting opinion).
Justice Souter is therefore wrong when he contends that “applicants to the undergraduate college are [not] denied individualized consideration.” Post, at 295. As Justice O’Connor explains in her concurrence, the LSA’s program “ensures that the diversity contributions of applicants cannot be individually assessed.” Post, at 279.
Justice Souter is mistaken in his assertion that the Court “take[s] it upon itself to apply a newly-formulated legal standard to an undeveloped record.” Post, at 297, n. 3. He ignores the fact that respondents have told us all that is necessary to decide this case. As explained above, respondents concede that only a portion of the applications are reviewed by the ARC and that the “bulk of admissions decisions” are based on the point system. It should be readily apparent that the availability of this review, which comes after the automatic distribution of points, is far more limited than the individualized review given to the “large middle group of applicants” discussed by Justice Powell and described by the Harvard plan in Bakke. 438 U. S., at 316 (internal quotation marks omitted).
Justice Ginsburg in her dissent observes that “[o]ne can reasonably anticipate . . . that colleges and universities will seek to maintain their minority enrollment . . . whether or not they can do so in full candor through adoption of affirmative action plans of the kind here at issue.” Post, at 304. She goes on to say that “[i]f honesty is the best policy, surely Michigan’s accurately described, fully disclosed College affirmative action program is preferable to achieving similar numbers through winks, nods, and disguises.” Post, at 305. These observations are remarkable for two reasons. First, they suggest that universities — to whose academic judgment we are told in Grutter v. Bollinger, post, at 328, we should defer— will pursue their affirmative-action programs whether or not they violate the United States Constitution. Second, they recommend that these violations should be dealt with, not by requiring the universities to obey the Constitution, but by changing the Constitution so that it conforms to the conduct of the universities.
We have explained that discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI. See Alexander v. Sandoval, 532 U. S. 275, 281 (2001); United States v. Fordice, 505 U. S. 717, 732, n. 7 (1992); Alexander v. Choate, 469 U. S. 287, 293 (1985). Likewise, with respect to § 1981, we have explained that the provision was “meant, by its broad terms, to proscribe discrimination in the making or enforcement of contracts against, or in favor of, any race.” McDonald v. Santa Fe Trail Transp. Co., 427 U. S. 273, 295-296 (1976). Furthermore, we have explained that a contract for educational services is a “contract” for purposes of § 1981. See Runyon v. McCrary, 427 U. S. 160, 172 (1976). Finally, purposeful discrimination that violates the Equal Protection Clause of the Fourteenth Amendment will also violate § 1981. See General Building Contractors Assn., Inc. v. Pennsylvania, 458 U. S. 375, 389-390 (1982). | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari. | What reason, if any, does the court give for granting the petition for certiorari? | [
"case did not arise on cert or cert not granted",
"federal court conflict",
"federal court conflict and to resolve important or significant question",
"putative conflict",
"conflict between federal court and state court",
"state court conflict",
"federal court confusion or uncertainty",
"state court confusion or uncertainty",
"federal court and state court confusion or uncertainty",
"to resolve important or significant question",
"to resolve question presented",
"no reason given",
"other reason"
] | [
11
] | sc_certreason |
Jorge Luna TORRES, Petitioner
v.
Loretta E. LYNCH, Attorney General.
No. 14-1096.
Supreme Court of the United States
Argued Nov. 3, 2015.
Decided May 19, 2016.
Matthew L. Guadagno, New York, NY, for Petitioner.
Elaine J. Goldenberg, for Respondent.
Stuart Banner, Los Angeles, CA, Matthew L. Guadagno, New York, NY, for Petitioner.
Donald B. Verrilli, Jr., Solicitor General, Benjamin C. Mizer, Principal Deputy Assistant, Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Rachel P. Kovner, Assistant to the Solicitor, General, Donald E. Keener, Patrick J. Glen, Attorneys, Department of Justice, Washington, D.C., for Respondent.
Justice KAGAN delivered the opinion of the Court.
The Immigration and Nationality Act (INA or Act) imposes certain adverse immigration consequences on an alien convicted of an "aggravated felony." The INA defines that term by listing various crimes, most of which are identified as offenses "described in" specified provisions of the federal criminal code. Immediately following that list, the Act provides that the referenced offenses are aggravated felonies irrespective of whether they are "in violation of Federal[,] State[,]" or foreign law. 108 Stat. 4322, 8 U.S.C. § 1101(a)(43). In this case, we must decide if a state crime counts as an aggravated felony when it corresponds to a specified federal offense in all ways but one-namely, the state crime lacks the interstate commerce element used in the federal statute to establish legislative jurisdiction (i.e., Congress's power to enact the law). We hold that the absence of such a jurisdictional element is immaterial: A state crime of that kind is an aggravated felony.
I
The INA makes any alien convicted of an "aggravated felony" after entering the United States deportable. See § 1227(a)(2)(A)(iii). Such an alien is also ineligible for several forms of discretionary relief, including cancellation of removal-an order allowing a deportable alien to remain in the country. See § 1229b(a)(3). And because of his felony, the alien faces expedited removal proceedings. See § 1228(a)(3)(A).
The Act defines the term "aggravated felony" by way of a long list of offenses, now codified at § 1101(a)(43). In all, that provision's 21 subparagraphs enumerate some 80 different crimes. In more than half of those subparagraphs, Congress specified the crimes by citing particular federal statutes. According to that common formulation, an offense is an aggravated felony if it is "described in," say, 18 U.S.C. § 2251 (relating to child pornography), § 922(g) (relating to unlawful gun possession), or, of particular relevance here, § 844(i) (relating to arson and explosives). 8 U.S.C. §§ 1101(a)(43)(E), (I). Most of the remaining subparagraphs refer to crimes by their generic labels, stating that an offense is an aggravated felony if, for example, it is "murder, rape, or sexual abuse of a minor." § 1101(a)(43)(A). Following the entire list of crimes, § 1101(a)(43)'s penultimate sentence reads: "The term [aggravated felony] applies to an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years." So, putting aside the 15-year curlicue, the penultimate sentence provides that an offense listed in § 1101(a)(43) is an aggravated felony whether in violation of federal, state, or foreign law.
Petitioner Jorge Luna Torres, who goes by the name George Luna, immigrated to the United States as a child and has lived here ever since as a lawful permanent resident. In 1999, he pleaded guilty to attempted arson in the third degree, in violation of New York law; he was sentenced to one day in prison and five years of probation. Seven years later, immigration officials discovered his conviction and initiated proceedings to remove him from the country. During those proceedings, Luna applied for cancellation of removal. But the Immigration Judge found him ineligible for that discretionary relief because his arson conviction qualified as an aggravated felony. See App. to Pet. for Cert. 21a-22a.
The Board of Immigration Appeals (Board) affirmed, based on a comparison of the federal and New York arson statutes. See id., at 15a-17a. The INA, as just noted, provides that "an offense described in" 18 U.S.C. § 844(i), the federal arson and explosives statute, is an aggravated felony. Section 844(i), in turn, makes it a crime to "maliciously damage[ ] or destroy[ ], or attempt[ ] to damage or destroy, by means of fire or an explosive, any building [or] vehicle ... used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce." For its part, the New York law that Luna was convicted under prohibits "intentionally damag[ing]," or attempting to damage, "a building or motor vehicle by starting a fire or causing an explosion." N.Y. Penal Law Ann. §§ 110, 150.10 (West 2010). The state law, the Board explained, thus matches the federal statute element-for-element with one exception: The New York law does not require a connection to interstate commerce. According to the Board, that single difference did not matter because the federal statute's commerce element is "jurisdictional"-that is, its function is to establish Congress's power to legislate. See App. to Pet for Cert. 16a-17a. Given that the two laws' substantive (i.e., non-jurisdictional) elements map onto each other, the Board held, the New York arson offense is "described in" 18 U.S.C. § 844(i).
The Court of Appeals for the Second Circuit denied Luna's petition for review of the Board's ruling. See 764 F.3d 152 (2014). The court's decision added to a Circuit split over whether a state offense is an aggravated felony when it has all the elements of a listed federal crime except one requiring a connection to interstate commerce. We granted certiorari. 576 U.S. ----, 135 S.Ct. 2918, 192 L.Ed.2d 923 (2015).
II
The issue in this case arises because of the distinctive role interstate commerce elements play in federal criminal law. In our federal system, "Congress cannot punish felonies generally," Cohens v. Virginia, 6 Wheat. 264, 428, 5 L.Ed. 257 (1821) ; it may enact only those criminal laws that are connected to one of its constitutionally enumerated powers, such as the authority to regulate interstate commerce. As a result, most federal offenses include, in addition to substantive elements, a jurisdictional one, like the interstate commerce requirement of § 844(i). The substantive elements "primarily define[ ] the behavior that the statute calls a 'violation' of federal law," Scheidler v. National Organization for Women, Inc., 547 U.S. 9, 18, 126 S.Ct. 1264, 164 L.Ed.2d 10 (2006) -or, as the Model Penal Code puts the point, they relate to "the harm or evil" the law seeks to prevent, § 1.13(10). The jurisdictional element, by contrast, ties the substantive offense (here, arson) to one of Congress's constitutional powers (here, its authority over interstate commerce), thus spelling out the warrant for Congress to legislate. See id., at 17-18, 126 S.Ct. 1264 (explaining that Congress intends "such statutory terms as 'affect commerce' or 'in commerce' ... as terms of art connecting the congressional exercise of legislative authority with the constitutional provision (here, the Commerce Clause) that grants Congress that authority").
For obvious reasons, state criminal laws do not include the jurisdictional elements common in federal statutes. State legislatures, exercising their plenary police powers, are not limited to Congress's enumerated powers; and so States have no reason to tie their substantive offenses to those grants of authority. See, e.g., United States v. Lopez, 514 U.S. 549, 567, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). In particular, state crimes do not contain interstate commerce elements because a State does not need such a jurisdictional hook. Accordingly, even state offenses whose substantive elements match up exactly with a federal law's will part ways with respect to interstate commerce. That slight discrepancy creates the issue here: If a state offense lacks an interstate commerce element but otherwise mirrors one of the federal statutes listed in § 1101(a)(43), does the state crime count as an aggravated felony? Or, alternatively, does the jurisdictional difference reflected in the state and federal laws preclude that result, no matter the laws' substantive correspondence?
Both parties begin with the statutory text most directly at issue, disputing when a state offense (here, arson) is "described in" an enumerated federal statute (here, 18 U.S.C. § 844(i) ). Luna, armed principally with Black's Law Dictionary, argues that "described in" means "expressed" or "set forth" in-which, he says, requires the state offense to include each one of the federal law's elements. Brief for Petitioner 15-16. The Government, brandishing dictionaries of its own, contends that the statutory phrase has a looser meaning-that "describing entails ... not precise replication," but "convey[ance of] an idea or impression" or of a thing's "central features." Brief for Respondent 17. On that view, "described in," as opposed to the more precise "defined in" sometimes found in statutes, denotes that the state offense need only incorporate the federal law's core, substantive elements.
But neither of those claims about the bare term "described in" can resolve this case. Like many words, "describe" takes on different meanings in different contexts. Consider two ways in which this Court has used the word. In one case, "describe" conveyed exactness: A contractual provision, we wrote, "describes the subject [matter] with great particularity[,] ... giv[ing] the precise number of pounds [of tobacco], the tax for which each pound was liable, and the aggregate of the tax." Ryan v. United States, 19 Wall. 514, 517, 22 L.Ed. 172 (1874). In another case, not: "The disclosure provision is meant," we stated, "to describe the law to consumers in a manner that is concise and comprehensible to the layman-which necessarily means that it will be imprecise." CompuCredit Corp. v. Greenwood, 565 U.S. 95, 102, 132 S.Ct. 665, 181 L.Ed.2d 586 (2012). So staring at, or even looking up, the words "described in" cannot answer whether a state offense must replicate every last element of a listed federal statute, including its jurisdictional one, to qualify as an aggravated felony. In considering that issue, we must, as usual, "interpret the relevant words not in a vacuum, but with reference to the statutory context." Abramski v. United States, 573 U.S. ----, ----, 134 S.Ct. 2259, 2267, 189 L.Ed.2d 262 (2014).
Here, two contextual considerations decide the matter. The first is § 1101(a)(43)'s penultimate sentence, which shows that Congress meant the term "aggravated felony" to capture serious crimes regardless of whether they are prohibited by federal, state, or foreign law. The second is a well-established background principle distinguishing between substantive and jurisdictional elements in federal criminal statutes. We address each factor in turn.
A
Section 1101(a)(43)'s penultimate sentence, as noted above, provides: "The term [aggravated felony] applies to an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years." See supra, at 1623. That sentence (except for the time limit on foreign convictions) declares the source of criminal law irrelevant: The listed offenses count as aggravated felonies regardless of whether they are made illegal by the Federal Government, a State, or a foreign country. That is true of the crimes identified by reference to federal statutes (as here, an offense described in 18 U.S.C. § 844(i) ), as well as those employing generic labels (for example, murder). As even Luna recognizes, state and foreign analogues of the enumerated federal crimes qualify as aggravated felonies. See Brief for Petitioner 21 (contesting only what properly counts as such an analogue).
The whole point of § 1101(a)(43)'s penultimate sentence is to make clear that a listed offense should lead to swift removal, no matter whether it violates federal, state, or foreign law.
Luna's jot-for-jot view of "described in" would substantially undercut that function by excluding from the Act's coverage all state and foreign versions of any enumerated federal offense that (like § 844(i) ) contains an interstate commerce element. Such an element appears in about half of § 1101(a)(43)'s listed statutes-defining, altogether, 27 serious crimes. Yet under Luna's reading, only those federal crimes, and not their state and foreign counterparts, would provide a basis for an alien's removal-because, as explained earlier, only Congress must ever show a link to interstate commerce. See supra, at 1624 - 1625. No state or foreign legislature needs to incorporate a commerce element to establish its jurisdiction, and so none ever does. Accordingly, state and foreign crimes will never precisely replicate a federal statute containing a commerce element. And that means, contrary to § 1101(a)(43)'s penultimate sentence, that the term "aggravated felony" would not apply to many of the Act's listed offenses irrespective of whether they are "in violation of Federal[,] State[, or foreign] law"; instead, that term would apply exclusively to the federal variants.
Indeed, Luna's view would limit the penultimate sentence's effect in a peculiarly perverse fashion-excluding state and foreign convictions for many of the gravest crimes listed in § 1101(a)(43), while reaching those convictions for less harmful offenses. Consider some of the state and foreign crimes that would not count as aggravated felonies on Luna's reading because the corresponding federal law has a commerce element: most child pornography offenses, including selling a child for the purpose of manufacturing such material, see § 1101(a)(43)(I) ; demanding or receiving a ransom for kidnapping, see § 1101(a)(43)(H) ; and possessing a firearm after a felony conviction, see § 1101(a)(43)(E)(ii). Conversely, the term "aggravated felony" in Luna's world would include state and foreign convictions for such comparatively minor offenses as operating an unlawful gambling business, see § 1101(a)(43)(J), and possessing a firearm not identified by a serial number, see § 1101(a)(43)(E)(iii), because Congress chose, for whatever reason, not to use a commerce element when barring that conduct. And similarly, the term would cover any state or foreign conviction for such nonviolent activity as receiving stolen property, see § 1101(a)(43)(G), or forging documents, see § 1101(a)(43)(R), because the INA happens to use generic labels to describe those crimes. This Court has previously refused to construe § 1101(a)(43) so as to produce such "haphazard"-indeed, upside-down-coverage. Nijhawan v. Holder, 557 U.S. 29, 40, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009). We see no reason to follow a different path here: Congress would not have placed an alien convicted by a State of running an illegal casino at greater risk of removal than one found guilty under the same State's law of selling a child.
In an attempt to make some sense of his reading, Luna posits that Congress might have believed that crimes having an interstate connection are generally more serious than those lacking one-for example, that interstate child pornography is "worse" than the intrastate variety. Brief for Petitioner 35. But to begin with, that theory cannot explain the set of crazy-quilt results just described: Not even Luna maintains that Congress thought local acts of selling a child, receiving explosives, or demanding a ransom are categorically less serious than, say, operating an unlawful casino or receiving stolen property (whether or not in interstate commerce). And it is scarcely more plausible to view an interstate commerce element in any given offense as separating serious from non-serious conduct: Why, for example, would Congress see an alien who carried out a kidnapping for ransom wholly within a State as materially less dangerous than one who crossed state lines in committing that crime? The essential harm of the crime is the same irrespective of state borders. Luna's argument thus misconceives the function of interstate commerce elements: Rather than distinguishing greater from lesser evils, they serve (as earlier explained) to connect a given substantive offense to one of Congress's enumerated powers. See supra, at 1624 - 1625. And still more fundamentally, Luna's account runs counter to the penultimate sentence's central message: that the national, local, or foreign character of a crime has no bearing on whether it is grave enough to warrant an alien's automatic removal.
Luna (and the dissent, see post, at 1637) must therefore fall back on a different defense: that his approach would exclude from the universe of aggravated felonies fewer serious state and foreign offenses than one might think. To make that argument, Luna relies primarily on a part of the Act specifying that the term "aggravated felony" shall include "a crime of violence (as defined in [18 U.S.C. § 16 ] ) for which the term of imprisonment [is] at least one year." § 1101(a)(43)(F) ; see 18 U.S.C. § 16 (defining "crime of violence" as involving the use of "physical force" against the person or property of another). According to Luna, many state and foreign offenses failing to match the Act's listed federal statutes (for want of an interstate commerce element) would count as crimes of violence and, by that alternative route, trigger automatic removal. A different statutory phrase, or so Luna says, would thus plug the holes opened by his construction of the "described in" provisions.
Luna's argument does not reassure us. We agree that state counterparts of some enumerated federal offenses would qualify as aggravated felonies through the "crime of violence" provision. But not nearly all such offenses, and not even the worst ones. Consider again some of the listed offenses described earlier. See supra, at 1628. The "crime of violence" provision would not pick up demanding a ransom for kidnapping. See 18 U.S.C. § 875(a) (defining the crime without any reference to physical force). It would not cover most of the listed child pornography offenses, involving the distribution, receipt, and possession of such materials. It would not reach felon-in-possession laws and other firearms offenses. And indeed, it would not reach arson in the many States defining that crime to include the destruction of one's own property. See Jordison v. Gonzales, 501 F.3d 1134, 1135 (C.A.9 2007) (holding that a violation of California's arson statute does not count as a crime of violence for that reason); Tr. of Oral Arg. 28-29 (Solicitor General agreeing with that interpretation). So under Luna's reading, state and foreign counterparts to a broad swath of listed statutes would remain outside § 1101(a)(43)'s coverage merely because they lack an explicit interstate commerce connection. And for all the reasons discussed above, that result would significantly restrict the penultimate sentence's force and effect, and in an utterly random manner.
B
Just as important, a settled practice of distinguishing between substantive and jurisdictional elements of federal criminal laws supports reading § 1101(a)(43) to include state analogues lacking an interstate commerce requirement. As already explained, the substantive elements of a federal statute describe the evil Congress seeks to prevent; the jurisdictional element connects the law to one of Congress's enumerated powers, thus establishing legislative authority. See supra, at 1624 - 1625; ALI, Model Penal Code § 1.13(10) (1962). Both kinds of elements must be proved to a jury beyond a reasonable doubt; and because that is so, both may play a real role in a criminal case. But still, they are not created equal for every purpose. To the contrary, courts have often recognized-including when comparing federal and state offenses-that Congress uses substantive and jurisdictional elements for different reasons and does not expect them to receive identical treatment.
Consider the law respecting mens rea . In general, courts interpret criminal statutes to require that a defendant possess a mens rea, or guilty mind, as to every element of an offense. See Elonis v. United States, 575 U.S. ----, ----, 135 S.Ct. 2001, 2009-2010, 192 L.Ed.2d 1 (2015). That is so even when the "statute by its terms does not contain" any demand of that kind. United States v. X-Citement Video, Inc., 513 U.S. 64, 70, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994). In such cases, courts read the statute against a "background rule" that the defendant must know each fact making his conduct illegal. Staples v. United States, 511 U.S. 600, 619, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994). Or otherwise said, they infer, absent an express indication to the contrary, that Congress intended such a mental-state requirement.
Except when it comes to jurisdictional elements. There, this Court has stated, "the existence of the fact that confers federal jurisdiction need not be one in the mind of the actor at the time he perpetrates the act made criminal by the federal statute." United States v. Feola, 420 U.S. 671, 677, n. 9, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975) ; see United States v. Yermian, 468 U.S. 63, 68, 104 S.Ct. 2936, 82 L.Ed.2d 53 (1984) ("Jurisdictional language need not contain the same culpability requirement as other elements of the offense"); Model Penal Code § 2.02. So when Congress has said nothing about the mental state pertaining to a jurisdictional element, the default rule flips: Courts assume that Congress wanted such an element to stand outside the otherwise applicable mens rea requirement. In line with that practice, courts have routinely held that a criminal defendant need not know of a federal crime's interstate commerce connection to be found guilty. See, e.g., United States v. Jinian, 725 F.3d 954, 964-966 (C.A.9 2013) ; United States v. Lindemann, 85 F.3d 1232, 1241 (C.A.7 1996) ; United States v. Blackmon, 839 F.2d 900, 907 (C.A.2 1988). Those courts have recognized, as we do here, that Congress viewed the commerce element as distinct from, and subject to a different rule than, the elements describing the substantive offense.
Still more strikingly, courts have distinguished between the two kinds of elements in contexts, similar to this one, in which the judicial task is to compare federal and state offenses. The Assimilative Crimes Act (ACA), 18 U.S.C. § 13(a), subjects federal enclaves, like military bases, to state criminal laws except when they punish the same conduct as a federal statute. The ACA thus requires courts to decide when a federal and a state law are sufficiently alike that only the federal one will apply. And we have held that, in making that assessment, courts should ignore jurisdictional elements: When the "differences among elements" of the state and federal crimes "reflect jurisdictional, or other technical, considerations" alone, then the state law will have no effect in the area. Lewis v. United States, 523 U.S. 155, 165, 118 S.Ct. 1135, 140 L.Ed.2d 271 (1998) ; see also id., at 182, 118 S.Ct. 1135 (KENNEDY, J., dissenting) (agreeing that courts should "look beyond ... jurisdictional elements," and focus only on substantive ones, in determining whether "the elements of the two crimes are the same"). In such a case, we reasoned-just as we do now-that Congress meant for the federal jurisdictional element to be set aside.
And lower courts have uniformly adopted the same approach when comparing federal and state crimes in order to apply the federal three-strikes statute. That law imposes mandatory life imprisonment on a person convicted on three separate occasions of a "serious violent felony." 18 U.S.C. § 3559(c)(1). Sounding very much like the INA, the three-strikes statute defines such a felony to include "a Federal or State offense, by whatever designation and wherever committed, consisting of" specified crimes (e.g., murder, manslaughter, robbery) "as described in" listed federal criminal statutes. § 3559(c)(2)(F). In deciding whether a state crime of conviction thus corresponds to an enumerated federal statute, every court to have faced the issue has ignored the statute's jurisdictional element. See, e.g., United States v. Rosario-Delgado, 198 F.3d 1354, 1357 (C.A.11 1999) (per curiam ); United States v. Wicks, 132 F.3d 383, 386-387 (C.A.7 1997). Judge Wood, writing for the Seventh Circuit, highlighted the phrase "a Federal or State offense, by whatever designation and wherever committed"-the three-strikes law's version of § 1101(a)(43)'s penultimate sentence. "It is hard to see why Congress would have used this language," she reasoned, "if it had meant that every detail of the federal offense, including its jurisdictional element [ ], had to be replicated in the state offense." Id., at 386-387. Just so, too, in the INA-whose "aggravated felony" provisions operate against, and rely on, an established legal backdrop distinguishing between jurisdictional and substantive elements.
Luna objects to drawing that line on the ground that it is too hard to tell the difference between the two. See Brief for Petitioner 26-28 (discussing, in particular, statutes criminalizing the destruction of federal property and sending threats via the Postal Service). But that contention collides with the judicial experience just described. Courts regularly separate substantive from jurisdictional elements in applying federal criminal statutes' mens rea requirements; so too in implementing other laws that require a comparison of federal and state offenses. And from all we can see, courts perform that task with no real trouble: Luna has not pointed to any divisions between or within Circuits arising from the practice. We do not deny that some tough questions may lurk on the margins-where an element that makes evident Congress's regulatory power also might play a role in defining the behavior Congress thought harmful. But a standard interstate commerce element, of the kind appearing in a great many federal laws, is almost always a simple jurisdictional hook-and courts may as easily acknowledge that fact in enforcing the INA as they have done in other contexts.
C
Luna makes a final argument opposing our reading of § 1101(a)(43) : If Congress had meant for "ordinary state-law" crimes like arson to count as aggravated felonies, it would have drafted the provision to make that self-evident. Brief for Petitioner 20. Congress, Luna submits, would have used the generic term for those crimes-e.g., "arson"-rather than demanding that the state law of conviction correspond to a listed federal statute. See id., at 20-23. Or else, Luna (and the dissent) suggests, see id., at 24; post, at 1640 - 1641, Congress would have expressly distinguished between substantive and jurisdictional elements, as it did in an unrelated law mandating the pretrial detention of any person convicted of a federal offense "described in [a certain federal statute], or of a State or local offense that would have been an offense described in [that statute] if a circumstance giving rise to Federal jurisdiction had existed," 18 U.S.C. § 3142(e)(2)(A).
But as an initial matter, Congress may have had good reason to think that a statutory reference would capture more accurately than a generic label the range of state convictions warranting automatic deportation. The clause of § 1101(a)(43) applying to Luna's case well illustrates the point. By referring to 18 U.S.C. § 844(i), that provision incorporates not only the garden-variety arson offenses that a generic "arson" label would cover, but various explosives offenses too. See Brief for Petitioner 23, n. 7 (conceding that had Congress used the term "arson," it would have had to separately identify the explosives crimes encompassed in § 844(i) ). And the elements of generic arson are themselves so uncertain as to pose problems for a court having to decide whether they are present in a given state law. See Poulos, The Metamorphosis of the Law of Arson, 51 Mo. L.Rev. 295, 364, 387-435 (1986) (describing multiple conflicts over what conduct the term "arson" includes). Nor is the clause at issue here unusual in those respects: Section 1101(a)(43) includes many other statutory references that do not convert easily to generic labels. See, e.g., § 1101(a)(43)(E)(ii) (listing federal statutes defining various firearms offenses). To be sure, Congress used such labels to describe some crimes qualifying as aggravated felonies-for example, "murder, rape, or sexual abuse of a minor." § 1101(a)(43)(A). But what is good for some crimes is not for others. The use of a federal statutory reference shows only that Congress thought it the best way to identify certain substantive crimes-not that Congress wanted (in conflict with the penultimate sentence) to exclude state and foreign versions of those offenses for lack of a jurisdictional element.
Still more, Congress's omission of statutory language specifically directing courts to ignore those elements cannot tip the scales in Luna's favor. We have little doubt that "Congress could have drafted [§ 1101(a)(43) ] with more precision than it did." Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson, 545 U.S. 409, 422, 125 S.Ct. 2444, 162 L.Ed.2d 390 (2005). But the same could be said of many (even most) statutes; as to that feature, § 1101(a)(43) can join a well-populated club. And we have long been mindful of that fact when interpreting laws. Rather than expecting (let alone demanding) perfection in drafting, we have routinely construed statutes to have a particular meaning even as we acknowledged that Congress could have expressed itself more clearly. See, e.g., ibid. ;
Florida Dept. of Revenue v. Piccadilly Cafeterias, Inc., 554 U.S. 33, 41, 128 S.Ct. 2326, 171 L.Ed.2d 203 (2008) ; Scarborough v. United States, 431 U.S. 563, 570-571, 575, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977). The question, then, is not: Could Congress have indicated (or even did Congress elsewhere indicate) in more crystalline fashion that comparisons of federal and state offenses should disregard elements that merely establish legislative jurisdiction? The question is instead, and more simply: Is that the right and fair reading of the statute before us? And the answer to that question, given the import of § 1101(a)(43)'s penultimate sentence and the well-settled background rule distinguishing between jurisdictional and substantive elements, is yes.
III
That reading of § 1101(a)(43) resolves this case. Luna has acknowledged that the New York arson law differs from the listed federal statute, 18 U.S.C. § 844(i), in only one respect: It lacks an interstate commerce element. See Pet. for Cert. 3. And Luna nowhere contests that § 844(i)'s commerce element-featuring the terms "in interstate or foreign commerce" and "affecting interstate or foreign commerce"-is of the standard, jurisdictional kind. See Tr. of Oral Arg. 12, 19; Scheidler, 547 U.S., at 17-18, 126 S.Ct. 1264 (referring to the phrases "affect commerce" and "in commerce" as conventional "jurisdictional language"). For all the reasons we have given, such an element is properly ignored when determining if a state offense counts as an aggravated felony under § 1101(a)(43). We accordingly affirm the judgment of the Second Circuit.
It is so ordered.
Justice SOTOMAYOR, with whom Justice THOMAS and Justice BREYER join, dissenting.
The Immigration and Nationality Act (INA) metes out severe immigration consequences to a noncitizen convicted of any of a number of "aggravated felon [ies]." 8 U.S.C. § 1101(a)(43). An offense "described in" 18 U.S.C. § 844(i) -a federal arson statute-qualifies as such a crime.
In this case, petitioner, who goes by George Luna, was convicted of third-degree arson under N.Y. Penal Law Ann. § 150.10 (West 2010), which punishes anyone who (1) "intentionally" (2) "damages," by (3) "starting a fire or causing an explosion," (4) "a building or motor vehicle." By contrast, the federal arson statute, 18 U.S.C. § 844(i), applies when someone (1) "maliciously" (2) "damages or destroys," (3) "by means of fire or an explosive," (4) "any building, vehicle, or other real or personal property" (5) "used in interstate or foreign commerce." There is one more element in the federal offense than in the state offense-(5), the interstate or foreign commerce element. Luna thus was not convicted of an offense "described in" the federal statute. Case closed.
Not for the majority. It dubs the fifth element "jurisdictional," then relies on contextual clues to read it out of the statute altogether. As a result of the majority's sleuthing, Luna-a long-time legal permanent resident-is foreclosed from even appealing to the sound discretion of the Attorney General to obtain relief from removal. Because precedent and the text and structure of the INA require the opposite result, I respectfully dissent.
I
A
Noncitizens convicted of crimes face various consequences under the INA. Among the harshest of those consequences fall on noncitizens convicted of 1 of the approximately 80 "aggravated felonies." A crime that falls into one of the listed provisions can be an aggravated felony "whether in violation of Federal or State law" or "in violation of the law of a foreign country." See 8 U.S.C. § 1101(a)(43).
An aggravated felony conviction has two primary repercussions for noncitizens: It renders them deportable, § 1227(a)(2)(A)(iii), and it makes them categorically ineligible for several forms of immigration relief ordinarily left to the discretion of the Attorney General. See, e.g., §§ 1229b(a) -(b) (cancellation of removal).
The dozens of aggravated felonies in the INA are specified in two main ways. First, some are specified by reference to a generic crime. It is an aggravated felony, for instance, to commit "murder, rape, or sexual abuse of a minor." § 1101(a)(43)(A). Some of those crimes use a federal definition as one of the elements. For example: "Illicit trafficking in a controlled substance (as defined in [21 U.S.C. § 802 ] )." 8 U.S.C. § 1101(a)(43)(B) (emphasis added). ("Illicit trafficking" is a generic crime; the element of "controlled substance" takes the meaning in 21 U.S.C. § 802, the "Definitions" provision of the Controlled Substances Act.)
Second, it lists crimes that are wholly "described in" the federal criminal code. See, e.g., § 1101(a)(43)(H) ("an offense described in section 875, 876, 877, or 1202 of title 18 (relating to the demand for or receipt of ransom)"); § 1101(a)(43)(I) ("an offense described in section 2251, 2251A, or 2252 of title 18 (relating to child pornography)"). The Government contends that Luna committed a crime in this second category: an "offense described in" 18 U.S.C. § 844(i), which criminalizes arson. 8 U.S.C. § 1101(a)(43)(E)(i).
B
In 2006, Luna was found removable from the United States. He attempted to apply for cancellation of removal, a form of relief available to long-time legal permanent residents at the discretion of the Attorney General. § 1229b(a). Nothing in Luna's history would otherwise preclude cancellation. He was the sole source of financial support for his U.S. citizen fiancee, enrolled in college and studying engineering, a homeowner, and a law-abiding legal permanent resident since he was brought to the United States as a child over 30 years ago, aside from the one third-degree arson conviction at issue in this case, for which he served a day in jail.
But the Immigration Judge found-and the Board of Immigration Appeals and the Second Circuit confirmed-that Luna was ineligible for cancellation of removal. Luna's New York State arson conviction, the judge held, qualified as an aggravated felony under the provision for "an offense described in" § 844(i), a federal arson statute. See § 1101(a)(43)(E)(i). Aggravated felons are ineligible for cancellation of removal. See § 1229b(a)(3). Luna's cancellation-of-removal application was thus summarily denied.
II
But the offense of which Luna was convicted is not " described in" § 844(i). This Court's ordinary method of interpreting the aggravated felony statute, the plain text of that provision, and the structure of the INA all confirm as much.
A
This is not the first time the Court has been tasked with determining whether a state offense constitutes an "aggravated felony" under the INA. Until today, the Court has always required the state offense to match every element of the listed "aggravated felony."
Kawashima v. Holder, 565 U.S. ----, ----, 132 S.Ct. 1166, 1171, 182 L.Ed.2d 1 (2012) ; see also Moncrieffe v. Holder, 569 U.S. ----, ----, 133 S.Ct. 1678, 1683-1685, 185 L.Ed.2d 727 (2013) ; Carachuri-Rosendo v. Holder, 560 U.S. 563, 580, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010) ; Nijhawan v. Holder, 557 U.S. 29, 33, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009) ; Gonzales v. Duenas-Alvarez, 549 U.S. 183, 185, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) ; Lopez v. Gonzales, 549 U.S. 47, 52-53, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006) ; Leocal v. Ashcroft, 543 U.S. 1, 8, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004).
Our ordinary methodology thus confirms that the federal arson statute does not describe the New York arson statute under which Luna was convicted. As I have outlined above, see supra, at 1634, the federal statute is more limited: It applies only to fires that involve "interstate or foreign commerce." The state statute contains no such limitation. Thus, under the approach we have used in every case to date, the omission of the interstate commerce element means that Luna's state arson conviction was not an aggravated felony under the INA.
B
The plain language of the statute supports this straightforward approach. The word "describe" means to "express," "portray," or "represent." See Black's Law Dictionary 445 (6th ed. 1990); Webster's Third New International Dictionary 610 (1986). A description may be "detailed" or it may be general, setting forth only the "recognizable features, or characteristic marks," of the thing described while leaving the rest to the imagination. 4 Oxford English Dictionary 512 (2d ed. 1989). For example, a Craigslist ad describing an apartment with "in-unit laundry, a dishwasher, rooftop access, central A/C, and a walk-in closet" may leave much to the imagination. After all, the description does not mention the apartment's square footage, windows, or floor number. But though the ad omits features, we would still call it a "description" because it accurately conveys the "recognizable features" of the apartment.
However, even the most general description cannot refer to features that the thing being described does not have. The ad is only an accurate description if the apartment "described in" it has at least the five features listed. If the apartment only has four of the five listed features-there is no rooftop access, say, or the walk-in closet is not so much walk-in as shimmy-in-then the Craigslist ad no longer "describes" the apartment. Rather, it mis describes it.
So, too, with the statutes in this case. The federal description can be general as long as it is still accurate-that is, as long as the state law has at least all of the elements in the federal law. But there is no meaning of "describe" that allows the Court to say § 844(i)"describes" the New York offense when the New York offense only has four of the five elements listed in § 844(i). Section 844(i) misdescribes the New York offense just as surely as the too-good-to-be-true Craigslist ad misdescribes the real-life apartment.
C
The structure of the INA confirms that conclusion and makes clear that we need not contort the ordinary, accepted meaning of the phrase "described in." The INA has many overlapping provisions that assign carefully calibrated consequences to various types of criminal convictions. The Court thus need not interpret any provision-and certainly none of the aggravated felony provisions, among the harshest in the INA-as broadly as possible because the INA as a whole ensures that serious criminal conduct is adequately captured.
That overlapping structure is apparent throughout the INA. First, the aggravated felony list itself has multiple fail-safe provisions. Most serious offenses, for instance, will qualify as "crime[s] of violence ... for which the term of imprisonment [is] at least one year," 8 U.S.C. § 1101(a)(43)(F), even if they are not covered by a more specific provision in the aggravated felony list. Had his crime been charged as a more serious arson and had he been punished by one year of imprisonment instead of one day, Luna might have qualified as an aggravated felon under that provision. See Santana v. Holder, 714 F.3d 140, 145 (C.A.2 2013) (second-degree arson in New York is a "crime of violence").
Second, other sections of the INA provide intertwining coverage for serious crimes. Some examples of provisions that encompass many offenses include those for the commission of a "crime involving moral turpitude," a firearms offense, or a controlled substance offense, all of which will render a noncitizen removable, even if he or she has not committed an aggravated felony. See §§ 1227(a)(2)(A)(i), (B)(i), (C) ; §§ 1182(a)(2)(A)(i)-(ii). Cf. Judulang v. Holder, 565 U.S. 42, 48, 132 S.Ct. 476, 181 L.Ed.2d 449 (2011) (commenting on the breadth of the "crime involving moral turpitude" provision).
And finally, in Luna's case or anyone else's, the Attorney General can exercise her discretion to deny relief to a serious criminal whether or not that criminal has been convicted of an aggravated felony. See Carachuri-Rosendo, 560 U.S., at 581, 130 S.Ct. 2577 (doubting that a narrow reading of § 1101(a)(43) will have "any practical effect on policing our Nation's borders").
To be sure, on Luna's reading, some serious conduct may not be captured by the INA. But not nearly so much as the majority suggests. By contrast, once the aggravated felony statute applies to a noncitizen, no provision in the INA-and virtually no act by the Attorney General-can prevent him or her from being removed.
Looking for consistency in the aggravated felony provisions of the INA is often a fool's errand. See Kawashima, 565 U.S., at ----, n. 2, 132 S.Ct., at 1171, n. 2 (GINSBURG, J., dissenting) (noting the absurdity of making a tax misdemeanor, but not driving while drunk and causing serious bodily injury, an aggravated felony). But the structure of the INA gives the Court no reason to read the aggravated felony provisions as broadly as possible. That is why this Court has repeatedly cautioned against interpreting the aggravated felony section to sweep in offenses that-like many state arson convictions-may be neither aggravated nor felonies. See Carachuri-Rosendo, 560 U.S., at 574, 130 S.Ct. 2577 ; Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 28-29 (collecting state misdemeanor arson statutes).
III
The majority denies Luna the opportunity to present his case to the Attorney General based on two "contextual considerations," ante, at 1626, and an intuition about how the statute ought to work. None are sufficiently persuasive to overcome the most natural reading of the aggravated felony statute.
A
The majority first perceives a conflict between Luna's reading of the INA and what it calls the "penultimate sentence" of the aggravated felony statute. The "penultimate sentence" provides that an offense can be an aggravated felony "whether in violation of Federal or State law" or "in violation of the law of a foreign country." 8 U.S.C. § 1101(a)(43). The majority claims that Luna's reading of the INA would vitiate the quoted proviso. Ante, at 1623 - 1628.
It is true that, on Luna's reading, some of the aggravated felonies listed in the INA (including "an offense described in" § 844(i) ) will have no state or foreign analog. But the proviso still applies to generic offenses, which constitute nearly half of the entries in the aggravated felony list. See, e.g., §§ 1101(a)(43)(A), (G), (M)(i). And that already-large portion jumps to close to three-quarters of the offenses after counting those many listed federal statutes with no jurisdictional element. See, e.g., §§ 1101(a)(43)(C), (E)(ii), (J). In fact, it applies to the vast majority of offenses adjudicated under the INA given that most serious crimes are also "crimes of violence." See § 1101(a)(43)(F).
And the majority must admit that its interpretation will also leave entries in the aggravated-felony section with no state or foreign analogs. For instance, it seems unlikely that the proviso contemplates state analogs for the aggravated felony provisions regarding treason, levying war against the United States, or disclosing national defense information. See §§ 1101(a)(43)(L)(i), (P).
In other words, under Luna's reading, the "penultimate sentence" applies to most, but not all, of the entries of the aggravated felony statute; under the majority's reading, the "penultimate sentence" also applies to most, but not all, of the entries of the aggravated felony statute. The majority's first "contextual consideration" thus supplies no reason to prefer one reading over the other.
B
Just as important, the majority suggests, is a "settled practice of distinguishing between substantive ... elements"-those that define "the evil Congress seeks to prevent"-and "jurisdictional element[s]," which merely "establis[h] legislative authority." Ante, at 1630. The majority admits that the Court does not distinguish between substantive and jurisdictional elements for many purposes, such as proof beyond a reasonable doubt and the right to a jury trial. Ibid .; see Ring v. Arizona, 536 U.S. 584, 606, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). But it nonetheless insists on a standard distinction so entrenched that Congress must have intended it to apply even absent any particular indication in the INA.
None of the three examples that the majority proffers is evidence of such a strong norm. First, the majority invokes our rules for interpreting criminal statutes. Ante, at 1630 - 1631. Whereas our general assumption is that a defendant must know each fact making his conduct illegal, courts generally hold that a criminal defendant need not know the facts that satisfy the jurisdictional element of a statute.
But jurisdictional elements are not the only elements a defendant need not know. Under the "default rule," ante, at 1632, n. 12, for interpreting so-called "public welfare" offenses, courts have held that a defendant need not know that the substance he possesses is a narcotic, that the device he possesses is unregistered, or that he reentered the United States after previously being deported. See Staples v. United States, 511 U.S. 600, 606-609, 611, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994) (citing United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604 (1922), and United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971) ); United States v. Burwell, 690 F.3d 500, 508-509 (C.A.D.C.2012) ; United States v. Giambro, 544 F.3d 26, 29 (C.A.1 2008) ; United States v. Martinez-Morel, 118 F.3d 710, 715-717 (C.A.10 1997). But surely the majority would not suggest that if we agree with those holdings regarding mens rea, we must then ignore the "controlled substance" element of the drug trafficking aggravated felony, the "unregistered" element of the unregistered firearms aggravated felony, or the "following deportation" element of the illegal reentry aggravated felony. See 8 U.S.C. §§ 1101(a)(43)(B), (E)(iii), (M)(i), (O). So there is likewise no reason to believe that the "default rule" for assigning mens rea to jurisdictional elements is embedded in the INA.
The majority next points to two of the many statutes that, like the INA, require comparing the elements of federal and state offenses. But in each case, it is the statute's language and context, not some "settled practice," ante, at 1630 - 1631, that command the omission of the jurisdictional element.
The majority's first example, ante, at 1631 - 1632, is the Assimilative Crimes Act, 18 U.S.C. § 13(a), a gap-filling statute that incorporates state criminal law into federal enclaves if the "act or omission" is not "made punishable by any enactment of Congress" but "would be punishable if committed or omitted within the jurisdiction of the State." The Court held that, in identifying such a gap, courts should ignore "jurisdictional, or other technical," differences between a state and federal statute. Lewis v. United States, 523 U.S. 155, 165, 118 S.Ct. 1135, 140 L.Ed.2d 271 (1998). But the way courts match the elements of a state law to a federal analog under the Assimilative Crimes Act differs fundamentally from our INA inquiry. The basic question under the Assimilative Crimes Act is whether "federal statutes reveal an intent to occupy so much of the field as would exclude the use of the particular state statute at issue." Id., at 164, 118 S.Ct. 1135. Under the Assimilative Crimes Act, the state statute is not compared to a single federal statute, but rather to a complex of federal statutes that roughly cover the same general conduct and "policies." Ibid. That statute thus has little to teach us about 8 U.S.C. § 1101(a)(43) : In interpreting the Assimilative Crimes Act, every Member of the Court rejected the simple elements-matching approach that the Court generally employs to construe the aggravated felony provisions of the INA. See 523 U.S., at 182, 118 S.Ct. 1135 (KENNEDY, J., dissenting) (allowing "slight differences" in definition between federal and state statute and using "same-elements inquiry" only as a "starting point").
The majority's analogy to the federal three strikes statute, 18 U.S.C. § 3559(c)(2)(F), ante, at 1631 - 1632, is similarly unhelpful. That provision counts as a predicate " 'serious violent felony' " any " 'Federal or State offense ... wherever committed, consisting of' " various crimes, including several " 'as described in' " federal statutes. Ante, at 1631. (emphasis added). Though this Court has not construed the statute, the majority notes that courts of appeals disregard the jurisdictional element of federal statutes in assessing whether a state conviction is for a "serious violent felony." Ante, at 1630 - 1631. But nearly all of the statutes listed in § 3559(c)(2)(F) contain place-based jurisdiction elements-the crime must take place "within the special maritime and territorial jurisdiction of the United States," e.g., § 1111(b), or within "the special aircraft jurisdiction of the United States," 49 U.S.C. § 46502, and so on. In the two cases cited by the majority, for instance, ante, at 1631 - 1632, Courts of Appeals concluded that a state robbery offense qualified as an offense "described in" the federal bank robbery statute even though the robbery did not take place in a bank. See United States v. Wicks, 132 F.3d 383, 387 (C.A.7 1997) ; United States v. Rosario-Delgado, 198 F.3d 1354, 1357 (C.A.11 1999). In that statute, it is the "wherever committed," not some loose construction of "described in," that specifically instructs the courts that the location where a crime occurs does not matter.
Moreover, in other statutes where Congress wants to exclude jurisdictional elements when comparing state and federal offenses, it ordinarily just says so. See, e.g., 18 U.S.C. § 3142(e)(2)(A) (requiring detention of defendant pending trial if "the person has been convicted ... of a State or local offense that would have been an offense described in subsection (f)(1) of this section if a circumstance giving rise to Federal jurisdiction had existed"); § 2265A(b)(1)(B); § 2426(b)(1)(B); § 3142(f)(1)(D) ; § 5032; 42 U.S.C. §§ 671(a)(15)(D)(ii)(I)-(II) ; §§ 5106a(b)(2)(B)(xvi)(I)-(II). Absent comparably clear language, the Court should not presume that the INA intended deportability to depend on a not-so-"settled practice," ante, at 1630, of occasionally distinguishing between substantive and jurisdictional elements.
C
Finally, the majority suggests that it would be "peculiarly perverse," ante, at 1628, to adopt Luna's plain-text reading of the statute because it would draw a distinction among crimes based on a jurisdictional element that the majority assumes is wholly divorced from "the evil Congress seeks to prevent," ante, at 1630. The jurisdictional element of a federal statute, the majority asserts, is as trivial as the perfunctory warning on a new electronic device: "[A] person would say that she had followed the instructions for setting up an iPhone that are 'described in' the user's manual, even if she in fact ignored the one" instructing that she "begin by 'read[ing] important safety information.' " Ante, at 1626, n. 5; see also ibid. (comparing jurisdictional element to a "detour" in a 3-week itinerary).
For instance, the majority assumes that it would not be "plausible," ante, at 1629, for Congress to have thought that interstate crimes are worse than wholly intrastate crimes. Perhaps. But when faced with an offense that, like arson, admits of a range of conduct, from the minor to the serious, Congress could plausibly have concluded that arsons prosecuted as federal crimes are more uniformly serious than arsons prosecuted as state crimes and counted only the former as aggravated felonies. See, e.g., Klein et al., Why Federal Prosecutors Charge: A Comparison of Federal and New York State Arson and Robbery Filings, 2006-2010, 51 Houston L. Rev. 1381, 1406, 1416-1419 (2014) (finding that arsons prosecuted federally involve more property damage and more injury than arsons prosecuted under state law).
That is because, far from being token, "conventional jurisdictional elements" serve to narrow the kinds of crimes that can be prosecuted, not just to specify the sovereign that can do the prosecuting. Take the federal statute at issue in this case. Section 844(i) requires that the property destroyed be "used in interstate ... commerce." The Court has held that "standard, jurisdictional" element, ante, at 1634, demands the property's "active employment for commercial purposes, and not merely a passive, passing, or past connection to commerce." Jones v. United States, 529 U.S. 848, 855, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000). As a result, the Court held that a defendant who threw a Molotov cocktail through the window of an owner-occupied residential house could not be guilty under § 844(i) because the house was not "active[ly] used" in interstate commerce. Id ., at 851, 120 S.Ct. 1904. Surely, however, a New York prosecutor could have secured a conviction under N.Y. Penal Law Ann. § 150.10 had the same crime been prosecuted in state, rather than federal, court.
The difference between an offense under N.Y. Penal Law Ann. § 150.10 and an offense under 18 U.S.C. § 844(i) is thus more than a technical consideration about which authority chooses to prosecute. It is a difference that goes to the magnitude and nature of the "evil," ante, at 1630, itself.
* * *
On the majority's reading, long-time legal permanent residents with convictions for minor state offenses are foreclosed from even appealing to the mercy of the Attorney General. Against our standard method for comparing statutes and the text and structure of the INA, the majority stacks a supposed superfluity, a not-so-well-settled practice, and its conviction that jurisdictional elements are mere technicalities. But an element is an element, and I would not so lightly strip a federal statute of one. I respectfully dissent.
Compare Espinal-Andrades v. Holder, 777 F.3d 163 (C.A.4 2015) (finding an aggravated felony in that circumstance); Spacek v. Holder, 688 F.3d 536 (C.A.8 2012) (same); Nieto Hernandez v. Holder, 592 F.3d 681 (C.A.5 2009) (same); Negrete-Rodriguez v. Mukasey, 518 F.3d 497 (C.A.7 2008) (same); United States v. Castillo-Rivera, 244 F.3d 1020 (C.A.9 2001) (same), with Bautista v. Attorney General, 744 F.3d 54 (C.A.3 2014) (declining to find an aggravated felony).
That flat statement is infinitesimally shy of being wholly true. We have found a handful of state criminal laws with an interstate commerce element, out of the tens (or perhaps hundreds) of thousands of state crimes on the books. Mississippi, for example, lifted essentially verbatim the text of the federal money laundering statute when drafting its own, and thus wound up with such an element. See Miss.Code Ann. § 97-23-101 (rev. 2014). But because the incidence of such laws is so vanishingly small, and the few that exist play no role in Luna's arguments, we proceed without qualifying each statement of the kind above.
Black's Law Dictionary 401 (5th ed. 1979) (defining "describe" as to "express, explain, set forth, relate, recount, narrate, depict, delineate, portray"). Luna also cites Webster's New Collegiate Dictionary 307 (1976), which defines "describe" to mean "to represent or give an account of in words."
See American Heritage Dictionary of the English Language 490 (5th ed. 2011) (defining "describe" as "[t]o convey an idea or impression of "); Webster's Third New International Dictionary 610 (1986) (defining "describe" as "to convey an image or notion of" or "trace or traverse the outline of ").
The dissent disagrees, contending that the word "describe" decides this case in Luna's favor because a "description cannot refer to features that the thing being described does not have." Post, at 1636 (opinion of SOTOMAYOR, J.). Says the dissent: If a Craigslist ad "describes" an apartment as having an "in-unit laundry, a dishwasher, rooftop access, central A/C, and a walk-in closet," it does not describe an apartment lacking rooftop access. Ibid. That is true enough, but irrelevant. The dissent is right that when someone describes an object by a list of specific characteristics, he means that the item has each of those attributes. But things are different when someone uses a more general descriptor-even when that descriptor (as here, a federal statute) itself has a determinate set of elements. It would be natural, for example, to say (in the exact syntax of § 1101(a)(43) ) that a person followed the itinerary for a journey through Brazil that is "described in" a Lonely Planet guide if he traveled every leg of the tour other than a brief "detour north to Petrópolis." The Lonely Planet, On the Road: Destination Brazil, http://media.lonelyplanet.com/shop/pdfs/brazil-8-getting-started.pdf (all Internet materials as last visited May 16, 2016). And similarly, a person would say that she had followed the instructions for setting up an iPhone that are "described in" the user's manual even if she in fact ignored the one (specifically highlighted there) telling her to begin by "read[ing] important safety information" to "avoid injury." Apple, Set Up iPhone, http://help.apple.com/iphone/9/#iph3bf43d79.
See 8 U.S.C. § 1101(a)(43)(D) ("an offense described in" 18 U.S.C. § 1956, which criminalizes laundering of monetary instruments); ibid. ("an offense described in" 18 U.S.C. § 1957, which criminalizes engaging in monetary transactions involving property derived from specified unlawful activities); § 1101(a)(43)(E)(i) (three "offense[s] described in" 18 U.S.C. §§ 842(h) -(i), 844(d), which criminalize activities involving explosives); ibid. ("an offense described in" 18 U.S.C. § 844(e), which criminalizes threatening to cause death, injury, or property damage using explosives); ibid. ("an offense described in" 18 U.S.C. § 844(i), which criminalizes using fire or explosives to cause property damage); § 1101(a)(43)(E)(ii) (six "offense[s] described in" 18 U.S.C. §§ 922(g)(1)-(5), ( j), which criminalize possessing a firearm in various circumstances); ibid. (two "offense[s] described in" 18 U.S.C. §§ 922(n), 924(b), which criminalize transporting or receiving a firearm under certain circumstances); § 1101(a)(43)(E)(iii) ("an offense described in" 26 U.S.C. § 5861( j), which criminalizes transporting an unregistered firearm); § 1101(a)(43)(H) ("an offense described in" 18 U.S.C. § 875, which criminalizes making a threat to kidnap or a ransom demand); ibid. ("an offense described in" 18 U.S.C. § 1202(b), which criminalizes possessing, receiving, or transmitting proceeds of a kidnapping); § 1101(a)(43)(I) ("an offense described in" 18 U.S.C. § 2251, which criminalizes sexually exploiting a child); ibid. ("an offense described in" 18 U.S.C. § 2251A, which criminalizes selling a child for purposes of child pornography); ibid. ("an offense described in 18 U.S.C. § 2252, which criminalizes various activities relating to child pornography); § 1101(a)(43)(J) ("an offense described in" 18 U.S.C. § 1962, which criminalizes activities relating to racketeering); ibid. ("an offense described in" 18 U.S.C. § 1084, which criminalizes transmitting information to facilitate gambling); § 1101(a)(43)(K)(ii) ("an offense described in" 18 U.S.C. § 2421, which criminalizes transporting a person for purposes of prostitution); ibid. ("an offense described in" 18 U.S.C. § 2422, which criminalizes coercing or enticing a person to travel for purposes of prostitution); ibid. ("an offense described in" 18 U.S.C. § 2423, which criminalizes transporting a child for purposes of prostitution); § 1101(a)(43)(K)(iii) ("an offense described in" 18 U.S.C. § 1591(a)(1), which criminalizes sex trafficking of children, or of adults by force, fraud, or coercion).
The dissent replies: What's the big deal? See post, at 1639. After all, it reasons, some listed federal statutes-specifically, those prohibiting treason, levying war against the United States, and disclosing national defense information-will lack state or foreign analogues even under our construction. See ibid. But Congress's inclusion of a few federal offenses that, by their nature, have no state or foreign analogues hardly excuses expelling from the Act's coverage the countless state and foreign versions of 27 other serious crimes.
Luna's position, in addition to producing this bizarre patchwork of coverage, conflicts with our ordinary assumption that Congress, when drafting a statute, gives each provision independent meaning. See United States v. Butler, 297 U.S. 1, 65, 56 S.Ct. 312, 80 L.Ed. 477 (1936) ("These words cannot be meaningless, else they would not have been used"). Until its most recent amendment, § 1101(a)(43)(J) provided that the term "aggravated felony" included any "offense described in [18 U.S.C. § 1962 ] (relating to racketeer influenced corrupt organizations) for which a sentence of 5 years' imprisonment or more may be imposed." 8 U.S.C. § 1101(a)(43)(J) (1994 ed., Supp. I). (That provision now incorporates two more federal crimes, and uses one year of prison as the threshold.) The federal racketeering statute cited has an interstate commerce element; analogous state and foreign laws (per usual) do not, and therefore would fall outside § 1101(a)(43)(J) on Luna's reading. But if Congress had meant to so exclude those state and foreign counterparts, then § 1101(a)(43)(J)'s final clause-"for which a sentence of 5 years' imprisonment may be imposed"-would have been superfluous, because federal racketeering is always punishable by more than five years' imprisonment, see 18 U.S.C. § 1963(a). That language's presence shows that Congress thought § 1101(a)(43)(J) would sweep in some state and foreign laws: The final clause served to filter out such statutes when-but only when-they applied to less serious conduct than the federal racketeering offense.
The dissent attempts a variant of Luna's "not so serious" argument, but to no better effect. Claims the dissent: Even if Congress could not have viewed "interstate crimes [as] worse than wholly intrastate crimes," it might have thought that, say, "arsons prosecuted as federal crimes are more uniformly serious than arsons prosecuted as state crimes." Post, at 1641 (emphasis added). But we see no call to suppose that Congress regarded state prosecutions as Grapefruit League versions of the Big Show. Cf. Mistretta v. United States, 488 U.S. 361, 427, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (SCALIA, J., dissenting). In our federal system, "States possess primary authority for defining and enforcing" criminal laws, including those prohibiting the gravest crimes. Brecht v. Abrahamson, 507 U.S. 619, 635, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). For that reason, even when U.S. Attorneys have jurisdiction, they are generally to defer to, rather than supplant, state prosecutions of serious offenses. See U.S. Attorneys' Manual: Principles of Federal Prosecution § 9-27.240 (1997). And still more obviously, the dissent's theory fails with respect to foreign convictions. That a foreign sovereign prosecutes a given crime reflects nothing about its gravity, but only about its location.
In all those States, arsons of every description (whether of one's own or another's property) would fall outside the "crime of violence" provision. See Tr. of Oral Arg. 29, 46 (Solicitor General noting that the categorical approach to comparing federal and state crimes produces that effect). And contrary to the dissent's suggestion, post, at 1637, n. 2, that would be true of the most dangerous arsons, as well as of less serious ones. The dissent similarly fails to take into account the categorical approach's rigorous requirements when discussing a couple of the non-arson offenses discussed above. (Still others, the dissent wholly ignores.) It speculates that if the exact right state charge is filed, some of that conduct "may" qualify, through the crime-of-violence provision or some other route, as an aggravated felony. Ibid. "May" is very much the operative word there, because-depending on the elements of the state offense chosen-that conduct also "may not." And the dissent never explains why Congress would have left the deportation of dangerous felons to such prosecutorial happenstance.
The dissent well-nigh embraces those consequences, arguing that a narrow reading of "aggravated felony" would make more convicted criminals removable under other statutory provisions, all of which allow for relief at the Attorney General's discretion. See post, at 1638, 1642 (lamenting that aliens convicted of aggravated felonies may not "even appeal[ ] to the mercy of the Attorney General"). But Congress made a judgment that aliens convicted of certain serious offenses (irrespective of whether those convictions were based on federal, state, or foreign law) should be not only removable but also ineligible for discretionary relief. It is not our place to second-guess that decision.
The dissent declares our discussion of the three-strikes law, the Assimilative Crime Act (ACA), and mens rea "unhelpful" on the ground that all three contexts are somehow "differ[ent]." Post, at 1639 - 1641. But what makes them relevantly so the dissent fails to explain. First, the dissent errs in suggesting that the uniform judicial interpretation of the three-strikes law ignores only "place-based jurisdiction elements" (because, so says the dissent, of the phrase "wherever committed"). Post, at 1640. As Judge Wood's analysis indicates, that is a theory of the dissent's own creation; the actual appellate decisions apply to all jurisdictional elements, not just territorial ones. Next, the dissent goes wrong in claiming that the ACA is not pertinent because this Court adopted a different method for matching substantive elements under that law than under the INA. See post, at 1640. For even as the Court made that choice, it unanimously agreed that, however substantive elements should be compared, jurisdictional elements should be disregarded. See Lewis v. United States, 523 U.S. 155, 165, 118 S.Ct. 1135, 140 L.Ed.2d 271 (1998) ; id., at 182, 118 S.Ct. 1135 (KENNEDY, J., dissenting). And finally, the dissent does nothing to undermine our point on mens rea by noting that Congress very occasionally dispenses with that requirement for substantive elements. See post, at 1639 - 1640. As just shown, the default rule respecting mental states flips as between jurisdictional and substantive elements, see supra, at 1630 - 1631-reflecting the view (also at play in the three-strikes and ACA contexts) that Congress generally means to treat the two differently. That leaves the dissent with nothing except its observation that when applying the beyond-a-reasonable-doubt and jury-trial requirements, the Court does not distinguish between jurisdictional and substantive elements. See post, at 1639. But the dissent forgets that those commands are constitutional in nature; a principle of statutory interpretation distinguishing between the two kinds of elements, as best reflecting Congress's intent, could not bear on those mandates.
Many of the majority's own examples of "the gravest" state offenses supposedly excluded from the aggravated felony list by Luna's reading actually fall within these fail-safe provisions. Ante, at 1628. Many state arsons will qualify as "crime[s] of violence" under 8 U.S.C. § 1101(a)(43)(F), see, e.g., Mbea v. Gonzales, 482 F.3d 276, 279 (C.A.4 2007) ; an even greater fraction of the most serious arsons will fall under that heading because States like New York have enacted gradated statutes under which more severe degrees of arson are crimes of violence, see Santana, 714 F.3d, at 145. To take another of the majority's examples, while a state conviction for demanding a ransom in a kidnaping is not "an offense described in [18 U.S.C. § 875 ]" under § 1101(a)(43)(H), a state conviction for kidnaping or conspiring to kidnap may qualify as a crime of violence under § 1101(a)(43)(F). See United States v. Kaplansky, 42 F.3d 320 (C.A.6 1994).
And even under the majority's reading, a state-law conviction will only qualify as an aggravated felony if the "right state charge is filed." Ante, at 1630, n. 10. For example, even on the majority's reading, a state-court defendant who sells a child for purposes of child pornography is unlikely to be convicted of "an offense described in [18 U.S.C.] § 2251A," see § 1101(a)(43)(I). That is because virtually no States have a statute corresponding to 18 U.S.C. § 2251A, with or without the interstate commerce element. (But see Fla. Stat. § 847.0145 (2015).) Such a defendant may, however, be convicted of a state offense that qualifies as an aggravated felony for conspiring to commit sexual abuse of a minor under 8 U.S.C. §§ 1101(a)(43)(U) and 1101(a)(43)(A).
Other crimes in the majority's list of serious offenses, ante, at 1628 - 1630, will be covered by these separate INA provisions. For example, the Board of Immigration Appeals has held that any child pornography offense is a "crime involving moral turpitude," rendering a noncitizen removable in many cases. See §§ 1227(a)(2)(A)(i), 1182(a)(2)(A)(i) ; In re Olquin-Rufino, 23 I. & N. Dec. 896 (BIA 2006). Any offense involving a gun would make a noncitizen deportable under one of the catchall provisions for buying, selling, or possessing a firearm in violation of "any law." See § 1227(a)(2)(C).
If the aggravated felony provisions were the primary mechanism for removing serious noncitizen criminals, we would expect any noncitizen convicted of an aggravated felony to face immigration consequences. In fact, the aggravated felony provisions only apply to noncitizens who are lawfully admitted or later paroled. Matter of Alyazji, 25 I. & N. Dec. 397, 399 (BIA 2011). Other noncitizens-such as undocumented immigrants, noncitizens applying for a visa, or some legal permanent residents returning after an extended stay abroad-cannot be removed based on the conviction of an aggravated felony; the Government must rely on the other provisions of the INA, including the statute's other criminal provisions, to remove such noncitizens. See §§ 1101(a)(13)(A), 1182, 1227(a)(2)(A)(iii).
Similarly, if the aggravated felony provision were the only way to ensure that the Attorney General exercised her discretion wisely, we would expect that discretion to be constrained as to all noncitizens who potentially pose a threat to the United States. In fact, the Attorney General is not prevented from granting cancellation of removal-the discretionary relief at issue in this case-to, for instance, a noncitizen who has not been convicted of a crime but is removable for having "received military-type training" from a terrorist organization. See §§ 1227(a)(4)(B), 1182(a)(3)(B)(i)(VIII), 1229b(a).
In short, it cannot be the case that the aggravated felony provisions were intended to be the statute's sole mechanism for identifying the most dangerous noncitizens.
When the proviso was added to the INA in 1990, it would have applied to an even greater fraction of the aggravated felonies: At that time, the aggravated felony statute listed only five offenses, four of which would have had state analogs even on Luna's reading. See 104 Stat. 5048 (1990). | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them.
Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. | Who is the respondent of the case? | [
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] | [
254
] | sc_respondent |
FRANKLIN v. LYNAUGH, DIRECTOR, TEXAS DEPARTMENT OF CORRECTIONS
No. 87-5546.
Argued March 1, 1988
Decided June 22, 1988
White, J., announced the judgment of the Court, and delivered an opinion, in which Rehnquist, C. J., and Scalia and Kennedy, JJ., joined. O'Connor, J., filed an opinion concurring in the judgment, in which Blackmun, J., joined, post, p. 183. Stevens, J.., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 189.
Mark Stevens argued the cause for petitioner. With him on the briefs were Clarence Williams, Allen Cazier, and George Scharmen.
William C. Zapalac, Assistant Attorney General of Texas, argued the cause for respondent. With him on the brief were Jim Mattox, Attorney General, Mary F. Keller, First Assistant Attorney General, Lou McCreary, Executive Assistant Attorney General, and Michael P. Hodge, Assistant Attorney General.
Justice White
announced the judgment of the Court, and delivered an opinion, in which The Chief Justice, Justice Scalia, and Justice Kennedy join.
In this case, we are called on to determine if the Eighth Amendment required a Texas trial court to give certain jury instructions, relating to the consideration of mitigating evidence, that petitioner had requested in the sentencing phase of his capital trial.
I
Around midnight on July 25, 1975, someone attacked Mary Margaret Moran, a nurse at a Veterans’ Administration hospital in San Antonio, Texas, in the hospital parking lot as she left work. Five days later, Ms. Moran was found, naked, lying in a field in the midday Texas sun. She had been stabbed seven times; Ms. Moran was also robbed, and possibly sexually assaulted. Still alive when she was discovered, Ms. Moran was taken to a local hospital, where she died the following day.
Suspicion had focused on petitioner within hours of Ms. Moran’s abduction, and he was arrested the following morning at his house, where police found a wide array of physical evidence concerning the crime. Petitioner told the officers that he had loaned his car and clothing to a friend the previous evening, and had no explanation for the physical evidence revealed by the search.
Petitioner did not take the stand at his trial. His principal defense was that he had been mistakenly identified, and that — even if he was the person who stabbed the victim — her death was the result of incompetent hospital treatment and not the assault. The jury found petitioner guilty of capital murder under Tex. Penal Code Ann. § 19.03 (1974).
At the penalty phase of petitioner’s trial, the State called four police officers who testified that petitioner had a bad reputation as a law-abiding citizen. The State also proved that petitioner had a prior conviction for rape, and called a witness who testified that petitioner had raped her the year before this crime was committed. The sole mitigating evidence petitioner presented was the stipulation that petitioner’s disciplinary record while incarcerated from 1971-1974 and 1976-1980 was without incident. At the conclusion of this penalty hearing, the trial court, pursuant to Tex. Code Crim. Proc. Ann., Art. 37.071(b) (Vernon 1981), submitted two “Special Issues” to the jury, instructing'the jury that if they determined the answer to both these questions to be “Yes,” petitioner would be sentenced to death.
Earlier, petitioner had submitted five “special requested” jury instructions to direct the jury’s consideration of the Special Issues. In essence, the requested instructions would have told the jury that any evidence considered by them to mitigate against the death penalty should be taken into account in answering the Special Issues, and could alone be enough to return a negative answer to either one or both of the questions submitted to them — even if the jury otherwise believed that “Yes” answers to the Special Issues were warranted.
The trial court declined to give the petitioner’s requested instructions, and instead gave a brief charge which remonstrated the jury to “remember all the instructions that the Court has previously given you and be guided by them.” App. 13. Those previous instructions included the charge that they arrive at their verdict based on all the evidence. The jury returned “Yes” answers to both Special Issues and the trial court therefore imposed a sentence of death. Subsequently, the Texas courts affirmed petitioner’s conviction and death sentence. Franklin v. State, 693 S. W. 2d 420 (Tex. Crim. App. 1985).
Petitioner then filed this federal habeas action contesting his conviction and sentence. Among other claims, petitioner argued that, absent his special requested instructions, the Texas Special Issues limited the jury’s consideration of mitigating evidence, contrary to this Court’s decision in Lockett v. Ohio, 438 U. S. 586 (1978), and several other decisions as well. The District Court rejected this claim, finding no error in the trial court’s refusal to give the requested instructions and no violation of this Court’s precedents. App. 22. The Court of Appeals affirmed the District Court’s denial of habeas relief without commenting on the jury instruction claim. 823 F. 2d 98, 99-100 (CA5 1987).
Petitioner then sought review by this Court. We granted certiorari to determine if the trial court’s refusal to give the requested instructions violated petitioner’s Eighth Amendment right to present mitigating evidence at his capital sentencing trial, 484 U. S. 891 (1987), and now affirm the judgment below.
Jurek v. Texas, 428 U. S. 262 (1976), expressly upheld the constitutionality of the manner in which mitigating evidence is considered under the “Special Issues” submitted to Texas capital juries. See id., at 273 (opinion of Stewart, Powell, and Stevens, JJ.). Petitioner here does not challenge the constitutionality of the Texas capital sentencing scheme as a general matter, see Tr. of Oral Arg. 11; petitioner has disavowed any request for this Court to overrule its decision in Jurek, see Tr. of Oral Arg. 18, 20.
Nor does petitioner complain that he was denied the opportunity to present any mitigating evidence to the jury, or that the jury was instructed to ignore any mitigating evidence petitioner did present. Cf. Hitchcock v. Dugger, 481 U. S. 393 (1987). Here, petitioner was permitted to present to the jury any and all mitigating evidence that he offered. It is the established Texas practice to permit jury consideration of “ ‘whatever mitigating circumstances’ the defendant might be able to show” in capital sentencing — a practice which this Court relied upon when it concluded in Lockett v. Ohio, supra, that our decision in that case did not require reversal of our earlier approval of the Texas Special Issue scheme in Jurek. See Lockett v. Ohio, supra, at 606-607 (opinion of Burger, C. J.). In the decade which has followed, the Texas courts have expressed resolute adherence to Lockett, declaring that under Texas’ capital sentencing procedures the defense is free to ask “the jury ... to consider whatever evidence of mitigating circumstances the defense can bring before it.” Quinones v. State, 592 S. W. 2d 933, 947 (Tex. Crim. App. 1980).
Petitioner nevertheless complains that the instructions and Special Issues did not provide sufficient opportunity for the jury, in the process of answering the two Special Issues, to consider whatever “residual doubt” it may have had about petitioner’s guilt. The instructions also allegedly did not allow the jury to give adequate weight to the mitigating evidence of petitioner’s good behavior while in prison. In addition, petitioner contends that the Eighth Amendment was violated because the jury was not afforded an opportunity to “giv[e] independent mitigating weight,” Lockett, supra, at 605, to the circumstances the defense presented; i. e., not permitted to weigh petitioner’s mitigating evidence and circumstances apart from its deliberation over the Texas Special Issues, and return a verdict requiring a life sentence. See Brief for Petitioner 20; Tr. of Oral Arg. 18, 23.
We consider these claims with respect to each of petitioner’s two “mitigating factors.”
A
Petitioner first suggests that the jury may, in its penalty deliberations, have harbored “residual doubts” about three issues considered in the guilt phase of his trial: first, petitioner’s identity as the murderer; second, the extent to which petitioner’s actions (as opposed to medical mistreatment) actually caused the victim’s death; and third, the extent to which petitioner’s actions were intended to result in the victim’s death. See Brief for Petitioner 13; 12 Record 2892-2896. He argues that the jury should have been instructed that it could consider any such doubts in arriving at its answers to the Special Issues.
(1)
At the outset, we note that this Court has never held that a capital defendant has a constitutional right to an instruction telling the jury to revisit the question of his identity as the murderer as a basis for mitigation. Petitioner suggests that our discussion of the “residual doubt” question in Lockhart v. McCree, 476 U. S. 162, 180-182 (1986), supports his position that he has such an entitlement. See Tr. of Oral Arg. 6-7; Brief for Petitioner 9. But all that this aspect of the Lock-hart opinion stands for is the simple truism that where “States are willing to go to allow defendants to capitalize on 'residual doubts,’” such doubts will inure to the defendant’s benefit. Lockhart, supra, at 181. Lockhart did not endorse capital sentencing schemes which permit such use of “residual doubts,” let alone suggest that capital defendants have a right to demand jury consideration of “residual doubts” in the sentencing phase. Indeed, the Lockhart dissent recognized that there have been only a “few times in which any legitimacy has been given” to the notion that a convicted capital defendant has a right to argue his innocence during the sentencing phase. 476 U. S., at 205-206 (Marshall, J., dissenting). The dissent also noted that this Court has not struck down the practice in somé States of prohibiting the consideration of “residual doubts” during the punishment trial. Ibid.
Our edict that, in a capital case, “‘the sentencer . . . [may] not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense,’” Eddings v. Oklahoma, 455 U. S. 104, 110 (1982) (quoting Lockett, 438 U. S., at 604), in no way mandates reconsideration by capital juries, in the sentencing phase, of their “residual doubts” over a defendant’s guilt. Such lingering doubts are not over any aspect of petitioner’s “character,” “record,” or a “circumstance of the offense.” This Court’s prior decisions, as we understand them, fail to recognize a constitutional right to have such doubts considered as a mitigating factor.
Most importantly, even if we were inclined to discern such a right in the Eighth Amendment, we would not find any violation of it in this case. For even if such a right existed, nothing done by the trial court impaired petitioner’s exercise of this “right.” The trial court placed no limitation whatsoever on petitioner’s opportunity to press the “residual doubts” question with the sentencing jury. Moreover, in our view, the trial court’s rejection of petitioner’s proffered jury instructions was without impact on the jury’s consideration of the “residual doubts” issue. We reject petitioner’s complaint that the possibility of residual doubt was not “self-evidently relevant to either of the special issue questions,” and that “[ujnless told that residual doubt . . . could be considered in relation to [the special issue] question^], the jurors could logically have concluded that such doubt was irrelevant.” Brief for Petitioner 15, 16. Among other problems with this argument is the simple fact that petitioner’s requested instructions on mitigating evidence themselves offered no specific direction to the jury concerning the potential consideration of “residual doubt.” See App. 7-12. The proposed instructions did not suggest that lingering doubts about the petitioner’s guilt were to be a subject of deliberations in the sentencing phase. Consequently, it is difficult to see how the rejection of these instructions denied petitioner the benefit of any “residual doubts” about his guilt.
In sum, even if petitioner had some constitutional right to seek jury consideration of “residual doubts” about his guilt during his sentencing hearing — a questionable proposition— the rejection of petitioner’s proffered jury instructions did not impair this “right.”
(2)
In regard to the second and third elements of “residual doubt” petitioner advances — potential jury doubts over his responsibility for the victim’s death, and the extent to which he intended the victim’s death if indeed he was her attacker — we do not think that the Texas Special Issues limited the jury’s consideration of any doubts in these respects.
Petitioner suggests that there may have been residual doubt over the question of whether the victim would have perished had she received proper medical treatment. See Brief for Petitioner 5, 13; 12 Record 2895-2896. Yet, to the extent that this question implicates petitioner’s culpability in causing Ms. Moran’s death, this is precisely the concern that the jury might have considered in answering Special Issue No. One, i. e., in determining that “the conduct of the Defendant . . . that caused the death of [the victim] was committed deliberately and with the reasonable expectation that the death of the deceased . . . would result.” App. 15. The Texas courts have consistently held that something more must be found in the penalty phase — something beyond the guilt-phase finding of “intentional” commission of the crime— before the jury can determine that a capital murder is “deliberate” within the meaning of the first Special Issue. See, e. g., Marquez v. State, 725 S. W. 2d 217, 244 (Tex. Crim. App. 1987); Fearance v. State, 620 S. W. 2d 577, 584 (Tex. Crim. App. 1981). In fact, Texas juries have found, on occasion, that a defendant had committed an “intentional murder” without finding that the murder was a “deliberate” one. See, e. g., Heckert v. State, 612 S. W. 2d 549, 552 (Tex. Crim. App. 1981). Petitioner was not deprived of any opportunity to make a similar argument here in mitigation.
The same is true of the parallel contention that petitioner did advance at the end of the penalty hearing: that his murder of Ms. Moran was not a “deliberate” one, but rather, “a [hjelter-skelter crazy crime of passion.” 13 Record 2962-2963. This argument echoed a theme petitioner raised in the closing argument of the guilt phase of the trial. See 12 Record 2893-2897. But this element of “residual doubt” could likewise have been considered by the jury in answering the first Special Issue.
Petitioner was thus not deprived of any chance to have his sentencing jury weigh this element of his culpability. And, as was the case with respect to the “residual doubt” issue discussed in Part II-A(l), there was nothing in petitioner’s proposed jury instructions which would have provided the jury with any further guidance, beyond that already found in the first Special Issue, to direct its consideration of this mitigating factor. The denial of petitioner’s special requested instructions in no way limited his efforts to gain full consideration by the sentencing jury — including a reconsideration of any “residual doubts” from the guilt phase— of petitioner’s deliberateness in (killing Ms. Moran.
B
The second mitigating circumstance which petitioner claims that the jury did not adequately consider is his good disciplinary record during his period of incarceration, both before and after the murder of Ms. Moran.
As noted above, petitioner’s prison disciplinary record was presented to the jury in this case — in fact, it was the sole bit of evidence in mitigation petitioner presented during the penalty phase of his trial. 13 Record 2952-2953. This case is therefore unlike Skipper v. South Carolina, 476 U. S. 1, 3 (1986), where evidence of the defendant’s conduct while incarcerated was wholly excluded from the jury’s consideration in its sentencing deliberations. To the contrary, petitioner here was permitted to press, with some emphasis, his good behavior in prison when he urged the jury, at the close of the sentencing hearing, to return a “No” answer to the second Special Issue concerning future dangerousness. See 13 Record 2963-2965. Petitioner acknowledged as much before this Court. Tr. of Oral Arg. 14, 24.
Petitioner objects, however, that — absent his requested jury instructions — there was no opportunity for the jury to give “independent” mitigating weight to his prison record. See Lockett, 438 U. S., at 604. He argues that this mitigating evidence had significance independent of its relevance to the Special Issues — as a reflection on his “character.” See Skipper, supra, at 4. Petitioner contends that his prison disciplinary record reflected so positively on his “character” that the instructions in this case should have provided the jury with a “mechanism though which to impose a life sentence” even if the jury otherwise believed that both Special Issues should have been answered “Yes.” Brief for Petitioner 20. For several reasons, we do not find these arguments convincing.
First, petitioner was accorded a full opportunity to have his sentencing jury consider and give effect to any mitigating impulse that petitioner’s prison record might have suggested to the jury as they proceeded with their task. In resolving the second Texas Special Issue the jury was surely free to weigh and evaluate petitioner’s disciplinary record as it bore on his “character” — that is, his “character” as measured by his likely future behavior. We have never defined what the term “character” means when we have held that a defendant’s “character” is a relevant consideration in capital sentencing. But nothing in our cases supports petitioner’s contention that relevant aspects of his “character,” as far as they were illuminated by the presentation of evidence concerning petitioner’s disciplinary record, encompassed anything more than those matters fully considered by the jury when it was asked to answer the second Special Issue.
Indeed, our discussion in Skipper of the relevancy of such disciplinary record evidence in capital sentencing decisions dealt exclusively with the question of how such evidence reflects on a defendant’s likely future behavior. See Skipper, supra, at 4-5. Nothing in Skipper suggests that such evidence has any further relevancy with respect to a defendant’s “character” or with respect to the punishment decision. Moreover, Skipper’s discussion of the proper use of a defendant’s prison disciplinary record in a jury’s sentencing decision focused precisely on the way in which such evidence is encompassed by the Texas future-dangerousness question, and on the Court’s previous decision in Jurek. See 476 U. S., at 4-5. Furthermore, we note that nothing in petitioner’s presentation or discussion of his prison record at the sentencing hearing urged the jury to consider petitioner’s record as probative of anything more than that the answer to the question posed by Special Issue Two should be “No.” See 13 Record 2963-2964. Even in this Court, in seeking to define how his prison record sheds light on his “character,” petitioner has cast his argument in terms of future dangerousness.
We find unavailing petitioner’s reliance on this Court’s statement in Eddings, 455 U. S., at 114, that the sentencing jury may not be precluded from considering “any relevant, mitigating evidence.” See Tr. of Oral Arg. 15. This statement leaves unanswered the question: relevant to what? While Lockett, supra, at 604, answers this question at least in part — making it clear that a State cannot take out of the realm of relevant sentencing considerations the questions of the defendant’s “character,” “record,” or the “circumstances of the offense” — Lockett does not hold that the State has no role in structuring or giving shape to the jury’s consideration of these mitigating factors. See Booth v. Maryland, 482 U. S. 496, 502 (1987). Given the awesome power that a sentencing jury must exercise in a capital case, it may be advisable for a State to provide the jury with some framework for discharging these responsibilities. And we have never held that a specific method for balancing mitigating and aggravating factors in a capital sentencing proceeding is constitutionally required. See Zant v. Stephens, 462 U. S. 862, 875-876, n. 13 (1983).
We are thus quite sure that the jury’s consideration of petitioner’s prison record was not improperly limited. The jury was completely free to give that evidence appropriate weight in arriving at its answers to the Special Issues. And as for the claim that the jury should have been instructed that, even if its answer to the Special Issues was “Yes,” it was still entitled to cast an “independent” vote against the death penalty, we note that this submission is foreclosed by Jurek, which held that Texas could constitutionally impose the death penalty if a jury returned “Yes” answers to the two Special Issues. See Jurek, 428 U. S., at 273-274 (joint opinion). Jurek has not been overruled; and we are not inclined to take any such action now.
I — ( I — I » — I
Our specific rejection of petitioner’s claims is well supported by the general principles governing the role of mitigating evidence in capital sentencing which have been developed since our decisions in Gregg v. Georgia, 428 U. S. 153 (1976), and Jurek v. Texas, supra.
It is true that since Jurek was decided, this Court has gone far in establishing a constitutional entitlement of capital defendants to appeal for leniency in the exercise of juries’ sentencing discretion. See, e. g., Eddings v. Oklahoma, supra, at 113-117; Lockett v. Ohio, 438 U. S., at 608 (opinion of Burger, C. J.). But even in so doing, this Court has never held that jury discretion must be unlimited or unguided; we have never suggested that jury consideration of mitigating evidence must be undirected or unfocused; we have never concluded that States cannot channel jury discretion in capital sentencing in an effort to achieve a more rational and equitable administration of the death penalty.
Much in our cases suggests just the opposite. This Court has previously held that the States “must channel the [capital] sentencer’s discretion by ‘clear and objective standards’ that provide ‘specific and detailed guidance’ and that ‘make rationally reviewable the process for imposing a sentence of death.’” Godfrey v. Georgia, 446 U. S. 420, 428 (1980) (plurality opinion) (footnotes omitted). Our cases before and since have similarly suggested that “sentencers may not be given unbridled discretion in determining the fates of those charged with capital offenses” and that the “Constitution . . . requires that death penalty statutes be structured so as to prevent the penalty from being administered in an arbitrary and unpredictable fashion.” California v. Brown, 479 U. S. 538, 541 (1987). See also Proffitt v. Florida, 428 U. S. 242, 253 (1976) (joint opinion); Gregg v. Georgia, supra, at 189, 195, n. 46, 196, n. 47, 198 (joint opinion).
Arguably these two lines of cases — Eddings and Lockett on the one hand, and Gh°egg and Proffitt on the other — are somewhat in “tension” with each other. See California v. Brown, supra, at 544 (O’Connor, J., concurring). Yet the Texas capital sentencing system has been upheld by this Court, and its method for providing for the consideration of mitigating evidence has been cited repeatedly with favor, precisely because of the way in which the Texas scheme accommodates both of these concerns. Doubtlessly this is why this Court originally approved Texas’ use of Special Issues to guide jury discretion in the sentencing phase, notwithstanding the fact — expressly averted to in the plurality opinion for the Court — that mitigating evidence is employed in the Texas scheme only to inform the jury’s consideration of the answers to the Special Issue questions. Jurek, supra, at 272-273. No doubt this is also why the Texas scheme has continued to pass constitutional muster, even when the Court laid down its broad rule in Lockett, supra, at 606-607 (opinion of Burger, C. J.), concerning the consideration of mitigating evidence. Simply put, we have previously recognized that the Texas Special Issues adequately “allo[w] the jury to consider the mitigating aspects of the crime and the unique characteristics of the perpetrator, and therefore sufficiently pro-vid[e] for jury discretion.” See Lowenfield v. Phelps, 484 U. S. 231, 245 (1988). We adhere to this prior conclusion.
> HH
Because we do not believe that the jury instructions or the Texas Special Issues precluded jury consideration of any relevant mitigating circumstances in this case, or otherwise unconstitutionally limited the jury’s discretion here, we reject petitioner’s Eighth Amendment challenge to his death sentence. Consequently, the Fifth Circuit’s judgment in this case is
Affirmed.
Among the items found at petitioner’s home were: a pair of shoes with human blood on them that matched the victim’s type; some of petitioner’s clothes, soiled with blood and plant samples (matching the field where the victim was discovered); one of petitioner’s shirts, covered with fibers that matched the victim’s sweater. In addition, in a trash can behind petitioner’s house, various items of the victim’s personal property were found, as well as a knife which was later determined to be the apparent murder weapon.
Similar fiber, plant, and blood sample evidence was found in petitioner’s car, matching samples of the victim’s blood, her clothing, and the field where she was found. See Franklin v. State, 606 S. W. 2d 818, 819-821 (Tex. Crim. App. 1979).
This petition concerns the proceedings at petitioner’s 1982 trial, his third for this same offense. Petitioner’s two previous convictions and death sentences were set aside for reasons unrelated to the issues before us now. See Franklin v. State, 693 S. W. 2d 420, 422 (Tex. Crim. App. 1985).
The two Special Issues, as presented to the jury in this case, were:
“Do you find from the evidence beyond a reasonable doubt that the conduct of the Defendant, Donald Gene Franklin, that caused the death of Mary Margaret Moran, was committed deliberately and with the reasonable expectation that the death of the deceased or another would result?
“Do you find from the evidence beyond a reasonable doubt that there is a probability that the Defendant, Donald Gene Franklin, would commit criminal acts of violence that would constitute a continuing threat to society?” App. 15.
The requested jury instructions were, in pertinent part, as follows:
“‘You are instructed that any evidence which, in your opinion, mitigates against the imposition of the Death Penalty, including any aspect of the Defendant’s character or record, and any of the circumstances of the commission of the offense . . . may be sufficient to cause you to have a reasonable doubt as to whether or not the true answer to any of the Special Issues is “Yes”; and in the event such evidence does cause you to have such a reasonable doubt, you should answer the Issue “No.”’” Defendant’s Special Requested Charge on Punishment No. One, App. 7.
“ ‘An answer of “No” may be given to any of the [Special] Issues if:
“ ‘2) . . . at least ten (10) jurors find that mitigating factors against the imposition of the Death Penalty exist, either in regard to any aspect of the Defendant’s character or record, or in regard to any of the circumstances of the commission of the offense ... or
“ ‘3) if evidence of any such mitigating factors causes at least ten (10) jurors to have a reasonable doubt as to whether the true answer to the Issues is “Yes.”’” Id., at 8-9 (No. Two). (Texas law instructs the jury to answer the Special Issues in the negative if 10 jurors agree on the “No” answer. See App. 13.).
“ ‘You are instructed that you may answer any of the Special Issues “No” if you find any aspect of the Defendant’s character or record or any of the circumstances of the offense as factors which mitigate against the imposition of the death penalty.’” Id., at 10 (No. Three).
“‘You are instructed that you may answer Special Issue No. One “No” if you find any aspect of the Defendant’s character or record as factors which mitigate against the imposition of the death penalty.”’ Id., at 11 (No. Four).
“‘You are instructed that you may answer Special Issue No. 2 “No" if you find any aspect of the Defendant’s character or record or any of the circumstances of the offense as factors which mitigate against the imposition of the death penalty.’ ” Id., at 12 (No. Five).
See also, e. g., Cordova v. State, 733 S. W. 2d 175, 189-190, and n. 3 (Tex. Crim. App. 1987); Johnson v. State, 691 S. W. 2d 619, 625-626 (Tex. Crim. App. 1984); Stewart v. State, 686 S. W. 2d 118, 121 (Tex. Crim. App. 1984); Williams v. State, 674 S. W. 2d 315, 322 (Tex. Crim. App. 1984).
Finding a constitutional right to rely on a guilt-phase jury’s “residual doubts” about innocence when the defense presents its mitigating case in the penalty phase is arguably inconsistent with the common practice of allowing penalty-only trials on remand of cases where a death sentence— but not the underlying conviction — is struck down on appeal. See, e. g., Scott v. State, 310 Md. 277, 301, 529 A. 2d 340, 352 (1987); Stringer v. State, 500 So. 2d 928, 946 (Miss. 1986); Whalen v. State, 492 A. 2d 552, 569 (Del. 1985). Cf. Lockhart v. McCree, 476 U. S., at 205 (Marshall, J., dissenting).
In fact, this Court has, on several previous occasions, suggested such a method of proceeding on remand. See, e. g., Hitchcock v. Dugger, 481 U. S. 393, 399 (1987). Moreover, petitioner himself, in suggesting the appropriate relief in this case, asked only that he be “resentenced in a proceeding that comports with the requirements of Lockett" — not that he be retried in full so as to have the benefit of any potential guilt-phase “residual doubts.” See Brief for Petitioner 21.
In sum, we are quite doubtful that such “penalty-only” trials are vio-lative of a defendant’s Eighth Amendment rights. Yet such is the logical conclusion of petitioner’s claim of a constitutional right to argue “residual doubts” to a capital sentencing jury.
Likewise, petitioner’s closing argument — the sole element of his presentation in the sentencing phase — did not draw the jury’s attention to the “residual guilt” question. The only element of the defense’s lengthy closing statement that even remotely raised this issue was a brief suggestion, in the course of a general argument against the death penalty, that the jury should recognize “our inherent human fallibility . . . recognize [that] we can make a mistake.” See 13 Record 2968. Otherwise, nothing in the defense’s mitigating presentation sought the jury’s ■ reconsideration of petitioner’s guilt in committing this crime.
See, e. g., Skipper v. South Carolina, 476 U. S. 1, 4 (1986); Eddings v. Oklahoma, 455 U. S. 104, 110 (1982); Lockett v. Ohio, 438 U. S. 586, 604 (1978) (plurality opinion); Woodson v. North Carolina, 428 U. S. 280, 304 (1976).
In describing what, arguably, the Texas Special Issue did not permit the jury to take into account with respect to petitioner’s “character” and his disciplinary record, petitioner principally argues that “Mr. Franklin's behavior in prison demonstrated that he had the strength of character to live a peaceful, productive life within the structured environment of a prison, and that, so long as he stayed in prison there was no probability that he would pose a threat to others. ” Brief for Petitioner 18-19 (emphasis added).
Yet, as the State noted at argument, the question of a defendant's likelihood of injuring others in prison is precisely the question posed by the second Texas Special Issue. See Tr. of Oral Arg. 27-28.
The dissent says that the Texas scheme is infirm because it “limits the senteneer’s consideration to only that mitigating evidence that bears on one or more of the Special Issues.” Post, at 199. It is difficult to reconcile this statement with the dissent’s avowed adherence to Jurek. If, as Jurek held, it is constitutional for Texas to impose a death sentence on a person whenever a jury answers both Special Issues in the affirmative— without any other inquiry — then surely Texas must be permitted to direct the jury’s consideration of mitigating evidence to those items relevant to this undertaking.
In the final analysis, the dissent’s position appears to be that the Texas capital punishment statute is unconstitutional because it does not require that the jurors be instructed that — even though they would answer the two statutory questions “Yes” after taking account of all mitigating evidence— they may rely on any mitigating evidence before them, although irrelevant to those two questions, as an independent basis for deciding against the death penalty. Post, at 199-200. Yet this is nothing more or less than a requirement that three, rather than two, Special Issues be put to the jury, the third one being: “Does any mitigating evidence before you, whether or not relevant to the above two questions, lead you to believe that the death penalty should not be imposed?”
Such a requirement would have foreclosed the decision in Jurek, since the Texas statute upheld there did not mandate such an inquiry — one that would be required in virtually every case where there was any suggestion of a mitigating circumstance, under the dissent’s view. As we have said above, however, our cases since Jurek have not suggested that Jurek is to be overruled or modified. Our differences with the dissent are therefore clear enough: notwithstanding its stated adherence to Jurek, the dissent would revisit and overrule that precedent; we decline to do so.
See, e. g., Lowenfield v. Phelps, 484 U. S. 231, 245-246 (1988); Lockhart v. McCree, 476 U. S., at 193; Pulley v. Harris, 465 U. S. 37, 48-49 (1984); Zant v. Stephens, 462 U. S. 862, 875-876, n. 13 (1983); Adams v. Texas, 448 U. S. 38, 46 (1980).
We also repeat our previous acknowledgment, that — as a practical matter — a Texas capital jury deliberating over the Special Issues is aware of the consequences of its answers, and is likely to weigh mitigating evidence as it formulates these answers in a manner similar to that employed by capital juries in “pure balancing” States. See Adams v. Texas, supra, at 46. Thus, the differences between the two systems may be even less than it appears at first examination. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss. | What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed? | [
"stay, petition, or motion granted",
"affirmed (includes modified)",
"reversed",
"reversed and remanded",
"vacated and remanded",
"affirmed and reversed (or vacated) in part",
"affirmed and reversed (or vacated) in part and remanded",
"vacated",
"petition denied or appeal dismissed",
"certification to or from a lower court",
"no disposition"
] | [
1
] | sc_casedisposition |
VARITY CORP. v. HOWE et al.
No. 94-1471.
Argued November 1, 1995
Decided March 19, 1996
Breyer, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, Kennedy, Souter, and Ginsburg, JJ., joined. Thomas, J., filed a dissenting opinion, in which O’Connor and Scalia, JJ., joined, post, p. 516.
Floyd Abrams argued the cause for petitioner. With him on the briefs were Thomas J. Kavaler, Katherine B. Harrison, Jonathan Sherman, and William J Koehn.
H Richard Smith argued the cause for respondents. With him on the brief were David Swinton, Michael J Eason, and Robert J. Schmit.
Deputy Solicitor General Kneedler argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Days, Richard R Bress, Thomas S. Williamson, Jr., Allen H. Feldman, Steven J. Mandel, Mark S. Flynn, and Judith D. Heimlich.
Briefs of amici curiae urging reversal were filed for the Chamber of Commerce of the United States by Evan Miller, John G. Roberts, Jr., and Stephen A. Bokat; and for the Eastman Kodak Co. et al. by Robert N. Eccles.
Briefs of amici curiae urging affirmance were filed for the American Association of Retired Persons by Steven S. Saleznick and Mary Ellen Signorille; and for the National Employment Lawyers Association by Stephen R. Bruce, Jeffrey Lewis, Ronald Dean, and Edgar Pauk.
Briefs of amici curiae were filed for the Central States, Southeast and Southwest Areas Health and Welfare and Pension Fund by Thomas C. Nyhan and Terence G. Craig; and for the National Association of Securities and Commercial Law Attorneys by Kevin P. Roddy, Jonathan W Cuneo, Bryan L. Clobes, Stephen P. Hoffman, Henry H. Rossbacher, and Steve W Berman.
Justice Breyer
delivered the opinion of the Court.
A group of beneficiaries of a firm’s employee welfare benefit plan, protected by the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 832, as amended, 29 U. S. C. § 1001 et seq. (1988 ed.), have sued their plan’s administrator, who was also their employer. They claim that the administrator, through trickery, led them to withdraw from the plan and to forfeit their benefits. They seek, among other things, an order that, in essence, would reinstate each of them as a participant in the employer’s ERISA plan. The lower courts entered judgment in the employees’ favor, and we agreed to review that judgment.
In conducting our review, we do not question the lower courts’ findings of serious deception by the employer, but instead consider three legal questions. First, in the factual circumstances (as determined by the lower courts), was the employer acting in its capacity as an ERISA “fiduciary” when it significantly and deliberately misled the beneficiaries? Second, in misleading the beneficiaries, did the employer violate the fiduciary obligations that ERISA §404 imposes upon plan administrators? Third, does ERISA § 502(a)(3) authorize ERISA plan beneficiaries to bring a lawsuit, such as this one, that seeks relief for individual beneficiaries harmed by an administrator’s breach of fiduciary obligations?
We answer each of these questions in the beneficiaries’ favor, and we therefore affirm the judgment of the Court of Appeals.
I
The key facts, as found by the District Court after trial, include the following: Charles Howe, and the other respondents, used to work for Massey-Ferguson, Inc., a farm equipment manufacturer, and a wholly owned subsidiary of the petitioner, Varity Corporation. (Since the lower courts found that Varity and Massey-Ferguson were “alter egos,” we shall refer to them interchangeably.) These employees all were participants in, and beneficiaries of, Massey-Ferguson’s self-funded employee welfare benefit plan — an ERISA-protected plan that Massey-Ferguson itself administered. In the mid-1980’s, Varity became concerned that some of Massey-Ferguson’s divisions were losing too much money and developed a business plan to deal with the problem.
The business plan — which Varity called “Project Sunshine” — amounted to placing many of Varity’s money-losing eggs in one financially rickety basket. It called for a transfer of Massey-Ferguson’s money-losing divisions, along with various other debts, to a newly created, separately incorporated subsidiary called Massey Combines. The plan foresaw the possibility that Massey Combines would fail. But it viewed such a failure, from Varity’s business perspective, as closer to a victory than to a defeat. That is because Massey Combine’s failure would not only eliminate several of Varity’s poorly performing divisions, but it would also eradicate various debts that Varity would transfer to Massey Combines, and which, in the absence of the reorganization, Varity’s more profitable subsidiaries or divisions might have to pay.
Among the obligations that Varity hoped the reorganization would eliminate were those arising from the Massey-Ferguson benefit plan’s promises to pay medical and other nonpension benefits to employees of Massey-Ferguson’s money-losing divisions. Rather than terminate those benefits directly (as it had retained the right to do), Varity attempted to avoid the undesirable fallout that could have accompanied cancellation by inducing the failing divisions’ employees to switch employers and thereby voluntarily release Massey-Ferguson from its obligation to provide them benefits (effectively substituting the new, self-funded Massey Combines benefit plan for the former Massey-Ferguson plan). Insofar as Massey-Ferguson’s employees did so, a subsequent Massey Combines failure would eliminate — simply and automatically, without distressing the remaining Massey-Ferguson employees — what would otherwise have been Massey-Ferguson’s obligation to pay those employees their benefits.
To persuade the employees of the failing divisions to accept the change of employer and benefit plan, Varity called them together at a special meeting and talked to them about Massey Combines’ future business outlook, its likely financial viability, and the security of their employee benefits. The thrust of Varity’s remarks (which we shall discuss in greater detail infra, at 499-501) was that the employees’ benefits would remain secure if they voluntarily transferred to Massey Combines. As Varity knew, however, the reality was very different. Indeed, the District Court found that Massey Combines was insolvent from the day of its creation and that it hid a $46 million negative net worth by overvaluing its assets and underestimating its liabilities.
After the presentation, about 1,500 Massey-Ferguson employees accepted Varity’s assurances and voluntarily agreed tp the transfer. (Varity also unilaterally assigned to Massey Combines the benefit obligations it owed to some 4,000 workers who had retired from Massey-Ferguson prior to this reorganization, without requesting permission or informing them of the assignment.) Unfortunately for these employees, Massey Combines ended its first year with a loss of $88 million, and ended its second year in a receivership, under which its employees lost their nonpension benefits. Many of those employees (along with several retirees whose benefit obligations Varity had assigned to Massey Combines and others whose claims we do not now consider) brought this lawsuit, seeking the benefits they would have been owed under their old, Massey-Ferguson plan, had they not transferred to Massey Combines.
After trial, the District Court found, among other things, that Varity and Massey-Ferguson, acting as ERISA fiduciaries, had harmed the plan’s beneficiaries through deliberate deception. The court held that Varity and Massey-Ferguson thereby violated an ERISA-imposed fiduciary obligation to administer Massey-Ferguson’s benefit plan “solely in the interest of the participants and beneficiaries” of the plan. ERISA § 404(a). The court added that ERISA § 502(a)(3) gave the former Massey-Ferguson employees a right to “appropriate equitable relief ... to redress” the harm that this deception had caused them individually. Among other remedies the court considered “appropriate equitable relief” was an order that Massey-Ferguson reinstate its former employees into its own plan (which had continued to provide benefits to employees of Massey-Fergusoris profitable divisions). The court also ordered certain monetary relief which is not at issue here. The Court of Appeals later affirmed the District Court’s determinations, in relevant part. 36 F. 3d 746 (CA8 1994).
We granted certiorari in this case primarily because the Courts of Appeals have disagreed about the proper interpretation of ERISA § 502(a)(3), the provision the District Court held authorized the lawsuit and relief in this case. Some Courts of Appeals have held that this section, when applied to a claim of breach of fiduciary obligation, does not authorize awards of relief to individuals, but instead only authorizes suits to obtain relief for the plan (as, for example, when a beneficiary sues in a representative capacity, seeking to compel a dishonest fiduciary to return embezzled funds to the plan). See McLeod v. Oregon Lithoprint Inc., 46 F. 3d 956 (CA9 1995); Simmons v. Southern Bell Telephone and Telegraph Co., 940 F. 2d 614 (CA11 1991). Other Courts of Appeals, such as the Eighth Circuit in this case, have not read any such limitation into the statute. See Bixler v. Central Pennsylvania Teamsters Health & Welfare Fund, 12 F. 3d 1292 (CA3 1993); Anweiler v. American Electric Power Service Corp., 3 F. 3d 986 (CA7 1993).
Varity has raised two additional issues. First, Varity points out that the relevant ERISA section imposes liability only upon plan fiduciaries; and it argues that it was acting only as an employer and not as a plan fiduciary when it deceived its employees. Second, it argues that, in any event, its conduct did not violate the fiduciary standard that ERISA imposes.
We consider all three issues to be fairly within the scope of the questions that Varity posed in its petition for certio-rari, although only with respect to the workers who were deceived by Varity, for as we construe Varity’s petition, it does not sufficiently call into question the District Court’s holding that Varity breached a fiduciary duty with respect to the Massey-Ferguson retirees whose benefit obligations had been involuntarily assigned to Massey Combines. With these limitations in mind, we turn to the questions presented.
II
ERISA protects employee pensions and other benefits by providing insurance (for vested pension rights, see ERISA §4001 et seq.), specifying certain plan characteristics in detail (such as when and how pensions vest, see §§201-211), and by setting forth certain general fiduciary duties applicable to the management of both pension and nonpension benefit plans. See § 404. In this case, we interpret and apply these general fiduciary duties and several related statutory provisions.
In doing so, we recognize that these fiduciary duties draw much of their content from the common law of trusts, the law that governed most benefit plans before ERISA’s enactment. See Central States, Southeast & Southwest Areas Pension Fund v. Central Transport, Inc., 472 U. S. 559, 570 (1985) (“[RJather than explicitly enumerating all of the powers and duties of trustees and other fiduciaries, Congress invoked the common law of trusts to define the general scope of their authority and responsibility”); H. R. Rep. No. 93-533, pp. 3-5, 11-13 (1973), 2 Legislative History of the Employee Retirement Income Security Act of 1974 (Committee Print compiled for the Senate Subcommittee on Labor of the Committee on Labor and Public Welfare by the Library of Congress), Ser. No. 93-406, pp. 2350-2352, 2358-2360 (1976) (hereinafter Leg. Hist.); G. Bogert & G. Bogert, Law of Trusts and Trustees § 255, p. 343 (rev. 2d ed. 1992).
We also recognize, however, that trust law does not tell the entire story. After all, ERISA’s standards and procedural protections partly reflect a congressional determination that the common law of trusts did not offer completely satisfactory protection. See ERISA §2(a). See also H. R. Rep. No. 93-533, supra, at 3-5, 11-13, 2 Leg. Hist. 2350-2352; 2358-2360; H. R. Conf. Rep. No. 93-1280, pp. 295, 302 (1974), 3 Leg. Hist. 4562, 4569. And, even with respect to the trust-like fiduciary standards ERISA imposes, Congress “expected] that the courts will interpret this prudent man rule (and the other fiduciary standards) bearing in mind the special nature and purpose of employee benefit plans,” id., at 302, 3 Leg. Hist. 4569, as they “develop a 'federal common law of rights and obligations under ERISA-regulated plans.’ ” Firestone Tire & Rubber Co. v. Bruch, 489 U. S. 101, 110-111 (1989) (quoting Pilot Life Ins. Co. v. Dedeaux, 481 U. S. 41, 56 (1987)).
Consequently, we believe that the law of trusts often will inform, but will not necessarily determine the outcome of, an effort to interpret ERISA’s fiduciary duties. In some instances, trust law will offer only a starting point, after which courts must go on to ask whether, or to what extent, the language of the statute, its structure, or its purposes require departing from common-law trust requirements. And, in doing so, courts may have to take account of competing congressional purposes, such as Congress’ desire to offer employees enhanced protection for their benefits, on the one hand, and, on the other, its desire not to create a system that is so complex that administrative costs, or litigation expenses, unduly discourage employers from offering welfare benefit plans in the first place. Compare ERISA §2 with Curtiss-Wright Corp. v. Schoonejongen, 514 U. S. 73, 78-81 (1995), and Mertens v. Hewitt Associates, 508 U. S. 248, 262-263 (1993).
We have followed this approach when interpreting, and applying, the statutory provisions here before us.
A
We begin with the question of Varity’s fiduciary status. In relevant part, the statute says that a “person is a fiduciary with respect to a plan,” and therefore subject to ERISA fiduciary duties, “to the extent” that he or she “exercises any discretionary authority or discretionary control respecting management” of the plan, or “has any discretionary authority or discretionary responsibility in the administration” of the plan. ERISA §3(21)(A).
Varity was both an employer and the benefit plan’s administrator, as ERISA permits. Compare ERISA §3(16) (employer is, in some circumstances, the default plan administrator) with NLRB v. Amax Coal Co., 453 U. S. 322, 329-330 (1981) (common law of trusts prohibits fiduciaries from holding positions that create conflict of interest with trust beneficiaries); Bogert & Bogert, supra, § 543, at 218, 264 (same). But, obviously, not all of Varity’s business activities involved plan management or administration. Varity argues that when it communicated with its Massey-Ferguson workers about transferring to Massey Combines, it was not administering or managing the plan; rather, it was acting only in its capacity as an employer and not as a plan administrator.
The District Court, however, held that when the misrepresentations regarding employee benefits were made, Varity was wearing its “fiduciary,” as well as its “employer,” hat. In reviewing this legal conclusion, we give deference to the factual findings of the District Court, recognizing its comparative advantage in understanding the specific context in which the events of this case occurred. We believe that these factual findings (which Varity does not challenge) adequately support the District Court’s holding that Varity was exercising “discretionary authority” respecting the plan’s “management” or “administration” when it made these misrepresentations, which legal holding we have independently reviewed.
The relevant factual circumstances include the following: In the spring of 1986, Varity summoned the employees of Massey-Ferguson’s money-losing divisions to a meeting at Massey-Ferguson’s corporate headquarters for a 30-minute presentation. The employees saw a 90-second videotaped message from Mr. Ivan Porter, a Varity vice president and Massey Combines’ newly appointed president. They also received four documents: (a) a several-page, detailed comparison between the employee benefits offered by Massey-Ferguson and those offered by Massey Combines; (b) a question-and-answer sheet; (c) a transcript of the Porter videotape; and (d) a cover letter with an acceptance form. Each of these documents discussed employee benefits and benefit plans, some briefly in general terms, and others at length and in detail:
(a) The longest document, the side-by-side benefits comparison, contained a fairly detailed description of the benefit plans. Its object was to show that after transfer, the employees’ benefits would remain the same. It says, for example, that, under Massey-Ferguson’s plan, “[diagnostic x-ray and laboratory expenses will be paid on the basis of reasonable and customary charges for such services.” App. 70. It then repeats the same sentence in describing Massey Combines’ “[diagnostic x-ray and laboratory expenses” benefits. Ibid. It describes about 20 different benefits in this way.
(b) The eight questions and answers on the question-and-answer sheet include three that relate to welfare benefits or to the ERISA pension plan Varity also administered:
“Q. 3. What happens to my benefits, pension, etc.?
“A. 3. When you transfer to MCC [Massey Combines], pay levels and benefit programmes will remain unchanged. There will be no loss of seniority or pensionable service.
“Q. 4. Do you expect the terms and conditions of employment to change?
“A. 4. Employment conditions in the future will depend on our ability to make Massey Combines Corporation a success and if changes are considered necessary or appropriate, they will be made.
“Q. 8. Are the pensions protected under MCC?
“A. 8. Responsibility for pension benefits earned by employees transferring to Massey Combines Corporation is being assumed by the Massey Combines Corporation Pension Plan.
“The assets which are held in the Massey Ferguson Pension Plan to fund such benefits as determined by actuarial calculations, are being transferred to the Massey Combines Corporation Plan. Such benefits and assets will be protected by the same legislation that protect the Massey Ferguson Pension Plan.
“There will be no change in pension benefits as a result of your transfer to Massey Combines Corporation.” Id., at 75-77.
(c) The transcript of the 90-second videotape message repeated much of the information in the question-and-answer sheet, adding assurances about Massey Combines’ viability:
“This financial restructuring created Massey Combines Corporation and will provide the funds necessary to ensure its future viability. I believe that with the continued help and support of you we can make Massey Combines Corporation the kind of successful business enterprise which we all want to work for.
“____When you transfer your employment to the Massey Combines Corporation, pay levels and benefit programs will remain unchanged. There will be no loss of seniority or pensionable service. Employment conditions in the future will depend on the success of the Massey Combines Corporation and should changes be deemed appropriate or necessary, they will be made....
“Finally, despite the depression which persists in the North American economy, I am excited about the future of Massey Combines Corporation.” Id., at 80.
(d) The cover letter, in five short paragraphs, repeated verbatim these benefit-related assurances:
“To enable us to accept you as an employee of Massey Combines Corporation and to continue to process the payment of benefits to you, we require that you complete the information below and return this letter ....
“When you accept employment with Massey Combines Corporation, pay levels and benefit programs will remain unchanged. There will be no loss of seniority or pensionable service. Employment conditions in the future will depend on our ability to make Massey Combines Corporation a success, and if changes are considered necessary or appropriate, they will be made.
“We are all very optimistic that our new company, has a bright future, and are excited by the new challenges facing all of us.. . .
“In order to ensure uninterrupted continuation of your pay and benefits, please return this signed acceptance of employment. .. .” Id., at 82-83.
Given this record material, the District Court determined, as a factual matter, that the key meeting, to a considerable extent, was about benefits, for the documents described them in detail, explained the similarity between past and future plans in principle, and assured the employees that they would continue to receive similar benefits in practice. The District Court concluded that the basic message conveyed to the employees was that transferring from Massey-Ferguson to Massey Combines would not significantly undermine the security of their benefits. And, given this view of the facts, we believe that the District Court reached the correct legal conclusion, namely, that Varity spoke, in significant part, in its capacity as plan administrator.
To decide whether Varity’s actions fall within the statutory definition of “fiduciary” acts, we must interpret the statutory terms which limit the scope of fiduciary activity to discretionary acts of plan “management” and “administration.” ERISA §3(21)(A). These words are not self-defining, and the activity at issue here neither falls clearly within nor outside of the common understanding of these words. The dissent looks to the dictionary for interpretive assistance. See post, at 528-529. Though dictionaries sometimes help in such matters, we believe it more important here to look to the common law, which, over the years, has given to terms such as “fiduciary” and trust “administration” a legal meaning to which, we normally presume, Congress meant to refer. See, e. g., Nationwide Mut. Ins. Co. v. Darden, 503 U. S. 318, 322 (1992). The ordinary trust law understanding of fiduciary “administration” of a trust is that to act as an administrator is to perform the duties imposed, or exercise the powers conferred, by the trust documents. See Restatement (Second) of Trusts § 164 (1957); 76 Am. Jur. 2d, Trusts § 321 (1992). Cf. ERISA § 404(a). The law of trusts also understands a trust document to implicitly confer “such powers •as are necessary or appropriate for the carrying out of the purposes” of the trust. 3 A. Scott & W. Fratcher, Law of Trusts § 186, p. 6 (4th ed. 1988). See also Bogert & Bogert, Law of Trusts and Trustees §551, at 41; Central States, 472 U. S., at 570. Conveying information about the likely future of plan benefits, thereby permitting beneficiaries to make an informed choice about continued participation, would seem to be an exercise of a power “appropriate” to carrying out an important plan purpose. After all, ERISA itself specifically requires administrators to give beneficiaries certain information about the plan. See, e. g., ERISA §§ 102, 104(b)(1), 105(a). And administrators, as part of their administrative responsibilities, frequently offer beneficiaries more than the minimum information that the statute requires — for example, answering beneficiaries’ questions about the meaning- of the terms of a plan so that those beneficiaries can more easily obtain the plan’s benefits. To offer beneficiaries detailed plan information in order to help them decide whether to remain with the plan is essentially the same kind of plan-related activity. Cf. Restatement (Second) of Agency § 229(1) (1957) (determining whether an activity is within the “scope of . . . employment” in part by examining whether it is “of the same general nature as that authorized”).
Moreover, as far as the record reveals, Mr. Porter’s letter, videotape, and the other documents came from those within the firm who had authority to communicate as fiduciaries with plan beneficiaries. Varity does not claim that it authorized only special individuals, not connected with the meeting documents, to speak as plan administrators. See § 402(b)(2) (a plan may describe a “procedure under the plan for the allocation of responsibilities for the operation and administration of the plan”).
Finally, reasonable employees, in the circumstances found by the District Court, could have thought that Varity was communicating with them both in its capacity as employer and in its capacity as plan administrator. Reasonable employees might not have distinguished consciously between the two roles. But they would have known that the employer was their plan’s administrator and had expert knowledge about how their plan worked. The central conclusion (“your benefits are secure”) could well have drawn strength from their awareness of that expertise, and one could reasonably believe that the employer, aware of the importance of the matter, so intended.
We conclude, therefore, that the factual context in which the statements were made, combined with the plan-related nature of the activity, engaged in by those who had plan-related authority to do so, together provide sufficient support for the District Court’s legal conclusion that Varity was acting as a fiduciary.
Varity raises three contrary arguments. First, Varity argues that it was not engaged in plan administration because neither the specific disclosure provisions of ERISA, nor the specific terms of the plan instruments, App. 5-26, required it to make these statements. But that does not mean Varity was not engaging in plan administration in making them, as the dissent seems to suggest. See post, at 531-532, and n. 12. There is more to plan (or trust) administration than simply complying with the specific duties imposed by the plan documents or statutory regime; it also includes the activities that are “ordinary and natural means” of achieving the “objective” of the plan. Bogert & Bogert, supra, § 551, at 41-52. Indeed, the primary function of the fiduciary duty is to constrain the exercise of discretionary powers which are controlled by no other specific duty imposed by the trust instrument or the legal regime. If the fiduciary duty applied to nothing more than activities already controlled by other specific legal duties, it would serve no purpose.
Second, Varity says that when it made the statements that most worried the-District Court — the statements about Massey Combines’ “bright future” — it must have been speaking only as employer (and not as fiduciary), for statements about a new subsidiary’s financial future have virtually nothing to do with administering benefit plans. But this argument parses the meeting’s communications too finely. The ultimate message Varity intended to convey — “your benefits are secure” — depended in part upon its repeated assurances that benefits would remain “unchanged,” in part upon the detailed comparison of benefits, and in part upon assurances about Massey Combines’ “bright” financial future. Vanity’s workers would not necessarily have focused upon each underlying supporting statement separately, because what primarily interested them, and what primarily interested the District Court, was the truthfulness of the ultimate conclusion that transferring to Massey Combines would not adversely affect the security of their benefits. And, in the present context (see supra, at 499-501), Varity’s statements about the security of benefits amounted to an act of plan administration. That Varity intentionally communicated its conclusion through a closely linked set of statements (some directly concerning plan benefits, others concerning the viability of the corporation) does not change this conclusion.
We do not hold, as the dissent suggests, post, at 529-531, that Varity acted as a fiduciary simply because it made statements about its expected financial condition or because “an ordinary business decision turn[ed] out to have an adverse impact on the plan.” Post, at 539. Instead, we accept the undisputed facts found, and factual inferences drawn, by the District Court, namely, that Varity intentionally connected its statements about Massey Combines’ financial health to statements it made about the future of benefits, so that its intended communication about the security of benefits was rendered materially misleading. See App. to Pet. for Cert. 64a-65a, ¶ ¶ 65, 68. And we hold that making intentional representations about the future of plan benefits in that context is an act of plan administration.
Third, Varity says that an employer’s decision to amend or terminate a plan (as Varity had the right to do) is not an act of plan administration. See Curtiss-Wright Corp., 514 U. S., at 78-81. How then, it asks, could conveying information about the likelihood of termination be an act of plan administration? While it may be true that amending or terminating a plan (or a common-law trust) is beyond the power of a plan administrator (or trustee)— and, therefore, cannot be an act of plan “management” or “administration” — it does not follow that making statements about the likely future of the plan is also beyond the scope of plan administration. As we explained above, plan administrators often have, and commonly exercise, discretionary authority to communicate with beneficiaries about the future of plan benefits.
B
The second question — whether Varity’s deception violated ERISA-imposed fiduciary obligations — calls for a brief, affirmative answer. ERISA requires a “fiduciary” to “discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries.” ERISA § 404(a). To participate knowingly and significantly in deceiving a plan’s beneficiaries in order to save the employer money at the beneficiaries’ expense is not to act “solely in the interest of the participants and beneficiaries.” As other courts have held, “[l]ying is inconsistent with the duty of loyalty owed by all fiduciaries and codified in section 404(a)(1) of ERISA,” Peoria Union Stock Yards Co. v. Penn Mut. Life Ins. Co., 698 F. 2d 320, 326 (CA7 1983). See also Central States, 472 U. S., at 570-571 (ERISA fiduciary duty includes common-law duty of loyalty); Bogert & Bogert, Law of Trusts and Trustees § 543, at 218-219 (duty of loyalty requires trustee to deal fairly and honestly with beneficiaries); 2A Scott & Fratcher, Law of Trusts § 170, pp. 311-312 (same); Restatement (Second) of Trusts § 170 (same). Because the breach of this duty is sufficient to uphold the decision below, we need not reach the question whether ERISA fiduciaries have any fiduciary duty to disclose truthful information on their own initiative, or in response to employee inquiries.
We recognize, as mentioned above, that we are to apply common-law trust standards “bearing in mind the special nature and purpose of employee benefit plans.” H. R. Conf. Rep. No. 93-1280, at 302, 3 Leg. Hist. 4569. But we can find no adequate basis here, in the statute or otherwise, for any special interpretation that might insulate Varity, acting as a fiduciary, from the legal consequences of the kind of conduct (intentional misrepresentation) that often creates liability even among strangers.
We are aware, as Varity suggests, of one possible reason for a departure from ordinary trust law principles. In arguing about ERISA’s remedies for breaches of fiduciary obligation, Varity says that Congress intended ERISA’s fiduciary standards to protect only the financial integrity of the plan, not individual beneficiaries. This intent, says Varity, is shown by the fact that Congress did not provide remedies for individuals harmed by such breaches; rather, Congress limited relief to remedies that would benefit only the plan itself. This argument fails, however, because, in our view, Congress did provide remedies for individual beneficiaries harmed by breaches of fiduciary duty, as we shall next discuss.
C
The remaining question before us is whether or not the remedial provision of ERISA that the beneficiaries invoked, ERISA § 502(a)(3), authorizes this lawsuit for individual relief. That subsection is the third of six subsections contained within ERISA’s “Civil Enforcement” provision (as it stood at the times relevant to this lawsuit):
“Sec. 502. (a) A civil action may be brought—
“(1) by a participant or beneficiary—
“(A) for the relief provided for in subsection (c) of this section [providing for liquidated damages for failure to provide certain information on request], or
“(B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan;
“(2) by the Secretary, or by a participant, beneficiary or fiduciary for appropriate relief under section 409 [entitled “Liability for Breach of Fiduciary Duty”];
“(3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this title or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this title or the terms of the plan;
“(4) by the Secretary, or by a participant, or beneficiary for appropriate relief in the case of a violation of 105(c) [requiring disclosure of certain tax registration statements];
“(5) except as otherwise provided in subsection (b), by the Secretary (A) to enjoin any act or practice which violates any provision of this title, or (B) to obtain other appropriate equitable relief (i) to redress such violation or (ii) to enforce any provision of this title; or
“(6) by the Secretary to collect any civil penalty under subsection (i).” ERISA § 502(a), 88 Stat. 891, 29 U. S. C. § 1132(a) (1988 ed.) (emphasis added).
The District Court held that the third subsection, which we have italicized, authorized this suit and the relief awarded. Varity concedes that the plaintiffs satisfy most of this provision’s requirements, namely, that the plaintiffs are plan “participants” or “beneficiaries,” and that they are suing for “equitable” relief to “redress” a violation of § 404(a), which is a “provision of this title.” Varity does not agree, however, that this lawsuit seeks equitable relief that is “appropriate.” In support of this conclusion, Varity makes a complicated, four-step argument:
Step One: Section 502(a)’s second subsection says that a plaintiff may bring a civil action “for appropriate relief under section 409.”
Step Two: Section 409(a), in turn, reads:
“Liability for Breach of Fiduciary Duty Sec. 409. (a) Any person who is a fiduciary with respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries by this title shall be personally liable to make good to such plan any losses to the plan resulting from each such breach, and to restore to such plan any profits of such fiduciary which have been made through use of assets of the plan by the fiduciary, and shall be subject to such other equi table or remedial relief as the court may deem appropriate, including removal of such fiduciary. ...” (Emphasis added.)
Step Three: In Massachusetts Mut. Life Ins. Co. v. Russell, 473 U. S. 134 (1985), this Court pointed to the above-italicized language in §409 and concluded that this section (and its companion remedial provision, subsection (2)) did not authorize the plaintiff’s suit for compensatory and punitive damages against an administrator who had wrongfully delayed payment of her benefit claim. The first two italicized phrases, the Court said, show that §409’s “draftsmen were primarily concerned with the possible misuse of plan assets, and with remedies that would protect the entire plan, rather than with the rights of an individual beneficiary.” Id., at 142 (emphasis added). The Court added that, in this context, the last italicized phrase (“other equitable or remedial relief”) does not “authorize any relief except for the plan itself.” Id., at 144.
Step Four: In light of Russell, as well as ERISA’s language, structure, and purposes, one cannot read the third subsection (the subsection before us) as including (as “appropriate”) the very kind of action — an action for individual, rather than plan, relief — that this Court found Congress excluded in subsection (2). It is at this point, however, that we must disagree with Varity. We have reexamined Russell, as well as the relevant statutory language, structure, and purpose. And, in our view, they support the beneficiaries’ view of the statute, not Varity’s.
First, Russell discusses §502(a)’s second subsection, not its third subsection, and the language that the Court found limiting appears in a statutory section (§409) that the second subsection, not the third, cross-references. Russell’s plaintiff expressly disavowed reliance on the third subsection, id., at 139, n. 5, perhaps because she was seeking compensatory and punitive damages and subsection (3) authorizes only “equitable” relief. See Mertens, 508 U. S., at 255, 256-258, and n. 8 (compensatory and punitive damages are not “equitable relief” within the meaning of subsection (3)); ERISA § 409(a) (authorizing “other equitable or remedial relief”) (emphasis added). Further, Russell involved a complicating factor not present here, in that another remedial provision (subsection (1)) already provided specific relief for the sort of injury the plaintiff had suffered (wrongful denial of benefits), but said “nothing about the recovery of extracontractual damages, or about the possible consequences of delay in the plan administrators’ processing of a disputed claim.” Russell, supra, at 144. These differences lead us to conclude that Russell does not control, either implicitly or explicitly, the outcome of the case before us.
Second, subsection (3)’s language does not favor Varity. The words of subsection (3) — “appropriate equitable relief” to “redress” any “act or practice which violates any provision of this title” — are broad enough to cover individual relief for breach of a fiduciary obligation. Varity argues that the title of §409 — “Liability for Breach of Fiduciary Duty” — means that § 409 (and its companion, subsection (2)) cover all such liability. But that is not what the title or the provision says. And other language in the statute suggests the contrary. Section 502(1), added in 1989, calculates a certain civil penalty as a percentage of the sum “ordered by a court to be paid by such fiduciary ... to a plan or its participants and beneficiaries” under subsection (5). Subsection (5) is identical to subsection (3), except that it authorizes suits by the Secretary, rather than the participants and beneficiaries. Compare § 502(a)(3) with § 502(a)(5). This new provision, therefore, seems to foresee instances in which the sort of relief provided by both subsection (5) and, by implication, subsection (3), would include an award to “participants and beneficiaries,” rather than to the “plan,” for breach of fiduciary obligation.
Third, the statute’s structure offers Varity little support. Varity notes that the second subsection refers specifically (through its §409 cross-reference) to breaches of fiduciary duty, while the third sub.section refers, as a kind of “catchall,” to all ERISA Title One violations. And it argues that a canon of statutory construction, namely “the specific governs over the general,” means that the more specific second (fiduciary breach) subsection makes the more general third (catchall) subsection inapplicable to claims of fiduciary breach. Canons of construction, however, are simply “rules of thumb” which will sometimes “help courts determine the meaning of legislation.” Connecticut Nat. Bank v. Germain, 503 U. S. 249, 253 (1992). To apply a canon properly one must understand its rationale. This Court has understood the .present canon (“the specific governs the general”) as a warning against applying a general provision when doing so would undermine limitations created by a more specific provision. See, e. g., Morales v. Trans World Airlines, Inc., 504 U. S. 374, 384-385 (1992); HCSC-Laundry v. United States, 450 U. S. 1, 6, 8 (1981); Fourco Glass Co. v. Transmirra Products Corp., 353 U. S. 222, 228-229 (1957). Yet, in this case, why should one believe that Congress intended the specific remedies in § 409 as a limitation?
To the contrary, one can read § 409 as reflecting a special congressional concern about plan asset management without also finding that Congress intended that section to contain the exclusive set of remedies for every kind of fiduciary breach. After all, ERISA makes clear that a fiduciary has obligations other than, and in addition to, managing plan assets. See § 3(21)(A) (defining “fiduciary” as one who “exercises any discretionary authority . . . respecting management of such plan or . . . respecting management or disposition of its assets”) (emphasis added). For example, as the dissent concedes, post, at 530, a plan administrator engages in a fiduciary act when making a discretionary determination about whether a claimant is entitled to benefits under the terms of the plan documents. See § 404(a)(1)(D); Dept. of Labor, Interpretive Bulletin 75-8,29 CFR §2509.75-8 (1995) (“[A] plan employee who has the final authority to authorize or disallow benefit payments in cases where a dispute exists as to the interpretation of plan provisions . . . would be a fiduciary”); Moore v. Reynolds Metals Co. Retirement Program, 740 F. 2d 454, 457 (CA6 1984); Birmingham v. Sogen-Swiss Intern. Corp. Retirement Plan, 718 F. 2d 515, 521-522 (CA2 1983). And, as the Court pointed out in Russell, 473 U. S., at 144, ERISA specifically provides a remedy for breaches of fiduciary duty with respect to the interpretation of plan documents and the payment of claims, one that is outside the framework of the second subsection and cross-referenced §409, and one that runs directly to the injured beneficiary. § 502(a)(1)(B). See also Firestone, 489 U. S., at 108. Why should we not conclude that Congress provided yet other remedies for yet other breaches of other sorts of fiduciary obligation in another, “catchall” remedial section?
Such a reading is consistent with § 502’s overall structure. Four of that section’s six subsections focus upon specific areas, i. e., the first (wrongful denial of benefits and information), the second (fiduciary obligations related to the plan’s financial integrity), the fourth (tax registration), and the sixth (civil penalties). The language of the other two subsections, the third and the fifth, creates two “catchalls,” providing “appropriate equitable relief” for “any” statutory violation. This structure suggests that these “catchall” provisions act as a safety net, offering appropriate equitable relief for injuries caused by violations that §502 does not elsewhere adequately remedy. And, contrary to Varity’s argument, there is nothing in the legislative history that conflicts with this interpretation. See S. Rep. No. 93-127, p. 35 (1973), 1 Leg. Hist. 621 (describing Senate version of enforcement provisions as intended to “provide both the Secretary and participants and beneficiaries with broad remedies for redressing or preventing violations of [ERISA]”); H. R. Rep. No. 93-533, at 17,2 Leg. Hist. 2364 (describing House version in identical terms).
Fourth, ERISA’s basic purposes favor a reading of the third subsection that provides the plaintiffs with a remedy. The statute itself says that it seeks
“to protect. . . the interests of participants . . . and . . . beneficiaries ... by establishing standards of conduct, responsibility, and obligation for fiduciaries . . . and . . . providing for appropriate remedies ... and ready access to the Federal courts.” ERISA § 2(b).
Section 404(a), in furtherance of this general objective, requires fiduciaries to discharge their duties “solely in the interest of the participants and beneficiaries.” Given these objectives, it is hard to imagine why Congress would want to immunize breaches of fiduciary obligation that harm individuals by denying injured beneficiaries a remedy.
Amici supporting Varity find a strong contrary argument in an important, subsidiary congressional purpose — the need for a sensible administrative system. They say that holding that the Act permits individuals to enforce fiduciary obligations owed directly to them as individuals threatens to increase the cost of welfare benefit plans and thereby discourage employers from offering them. Consider a plan administrator’s decision not to pay for surgery on the ground that it falls outside the plan’s coverage. At present, courts review such decisions with a degree of deference to the administrator, provided that “the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone, supra, at 115. But what will happen, ask amici, if a beneficiary can repackage his or her “denial of benefits” claim as a claim for “breach of fiduciary duty?” Wouldn’t a court, they ask, then have to forgo deference and hold the administrator to the “rigid level of conduct” expected of fiduciaries? And, as a consequence, would there not then be two “incompatible legal standards for courts hearing benefit claim disputes” depending upon whether the beneficiary claimed simply “denial of benefits,” or a virtually identical “breach of fiduciary duty?” See Brief for Chamber of Commerce as Amicus Curiae 10. Consider, too, they add, a medical review board trying to decide whether certain proposed surgery is medically necessary. Will the board’s awareness of a “duty of loyalty” to the surgery-seeking beneficiary not risk inadequate attention to the countervailing, but important, need to constrain costs in order to preserve the plan’s funds? Id,., at 11.
Thus, amici warn that a legally enforceable duty of loyalty that extends beyond plan asset management to individual beneficiaries will risk these and other adverse consequences. Administrators will tend to interpret plan documents as requiring payments to individuals instead of trying to preserve plan assets; nonexpert courts will try to supervise too closely, and second guess, the often technical decisions of plan administrators; and, lawyers will complicate ordinary benefit claims by dressing them up in “fiduciary duty” clothing. The need to avoid these consequences, they conclude, requires us to accept Varity’s position.
The concerns that amici raise seem to us unlikely to materialize, however, for several reasons. First, a fiduciary obligation, enforceable by beneficiaries seeking relief for themselves, does not necessarily favor payment over nonpayment. The common law of trusts recognizes the need to preserve assets to satisfy future, as well as present, claims and requires a trustee to take impartial account of the interests of all beneficiaries. See Restatement (Second) of Trusts § 183 (discussing duty of impartiality); id., § 232 (same).
Second, characterizing a denial of benefits as a breach of fiduciary duty does not necessarily change the standard a court would apply when reviewing the administrator’s decision to deny benefits. After all, Firestone, which authorized deferential court review when the plan itself gives the administrator discretionary authority, based its decision upon the same common-law trust doctrines that govern standards of fiduciary conduct. See Restatement (Second) of Trusts § 187 (“Where discretion is conferred upon the trustee with respect to the exercise of a power, its exercise is not subject to control by the court, except to prevent an abuse by the trustee of his discretion”) (as quoted in Firestone, 489 U. S., at 111).
Third, the statute authorizes “appropriate” equitable relief. We should expect that courts, in fashioning “appropriate” equitable relief, will keep in mind the “special nature and purpose of employee benefit plans,” and will respect the “policy choices reflected in the inclusion of certain remedies and the exclusion of others.” Pilot Life Ins. Co., 481 U. S., at 54. See also Russell, 473 U. S., at 147; Mertens, 508 U. S., at 263-264. Thus, we should expect that where Congress elsewhere provided adequate relief for a beneficiary’s injury, there will likely be no need for further equitable relief, in which case such relief normally would not be “appropriate.” Cf. Russell, supra, at 144.
But that is not the case here. The plaintiffs in this case could not proceed under the first subsection because they were no longer members of the Massey-Ferguson plan and, therefore, had no “benefits due [them] under the terms of [the] plan.” § 502(a)(1)(B). They could not proceed under the second subsection because that provision, tied to § 409, does not provide a remedy for individual beneficiaries. Russell, supra, at 144. They must rely on the third subsection or they have no remedy at all. We are not aware of any ERISA-related purpose that denial of a remedy would serve. Rather, we believe that granting a remedy is consistent with the literal language of the statute, the Act’s purposes, and pre-existing trust law.
For these reasons, the judgment of the Court of Appeals is
Affirmed. | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases. | What is the ideological direction of the decision? | [
"Conservative",
"Liberal",
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1
] | sc_decisiondirection |
FERGUSON v. ST. LOUIS-SAN FRANCISCO RAILWAY CO.
No. 799.
Decided March 17, 1958.
Jo B. Gardner for petitioner.
James L. Homire and Frank C. Mann for respondent.
Per Curiam.
The petition for writ of certiorari is granted. We hold that the proofs were sufficient to submit to the jury the question whether employer negligence played a part in producing the petitioner’s injury. Wilkerson v. McCarthy, 336 U. S. 53; Rogers v. Missouri Pacific R. Co., 352 U. S. 500; Webb v. Illinois Central R. Co., 352 U. S. 512; Shaw v. Atlantic Coast Line R. Co., 353 U. S. 920; Futrelle v. Atlantic Coast Line R. Co., 353 U. S. 920; Deen v. Gulf, C. & S. F. R. Co., 353 U. S. 925; Thomson v. Texas & Pacific R. Co., 353 U. S. 926; Arnold v. Panhandle & S. F. R. Co., 353 U. S. 360; Ringhiser v. Chesapeake & O. R. Co., 354 U. S. 901; McBride v. Toledo Terminal R. Co., 354 U. S. 517; Gibson v. Thompson, 355 U. S. 18; Honeycutt v. Wabash R. Co., 355 U. S. 424. The judgment of the Supreme Court of Missouri is reversed and the case is remanded for further proceedings in conformity with this opinion.
Mr. Justice Harlan concurs in the result for the reasons given in his memorandum in Gibson v. Thompson, 355 U. S. 18.
For the reasons set forth in his opinion in Rogers v. Missouri Pacific R. Co., 352 U. S. 500, 524, Mr. Justice Frankfurter is of the view that the writ of certiorari is improvidently granted.
Mr. Justice Whittaker dissents. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state of the court in which the case originated. Consider the District of Columbia as a state. | What is the state of the court in which the case originated? | [
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"Alaska",
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"Arkansas",
"California",
"Colorado",
"Connecticut",
"Delaware",
"District of Columbia",
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"Florida",
"Georgia",
"Guam",
"Hawaii",
"Idaho",
"Illinois",
"Indiana",
"Iowa",
"Kansas",
"Kentucky",
"Louisiana",
"Maine",
"Marshall Islands",
"Maryland",
"Massachusetts",
"Michigan",
"Minnesota",
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"Montana",
"Nebraska",
"Nevada",
"New Hampshire",
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"New Mexico",
"New York",
"North Carolina",
"North Dakota",
"Northern Mariana Islands",
"Ohio",
"Oklahoma",
"Oregon",
"Palau",
"Pennsylvania",
"Puerto Rico",
"Rhode Island",
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"Indian",
"Dakota"
] | [
29
] | sc_caseoriginstate |
PENNHURST STATE SCHOOL AND HOSPITAL et al. v. HALDERMAN et al.
No. 79-1404.
Argued December 8, 1980
Decided April 20, 1981
Rehnquist, J., delivered the opinion of the Court, in which BüRGER, C. J., and Stewart, Powell, and Stevens, JJ., joined. BlaciímuN, J., filed an opinion concurring in part and concurring in the judgment, post, p. 32. White, J., filed an opinion dissenting in part, in which BRENNAN and Marshall, JJ., joined, post, p. 33.
Allen C. Warshaw, argued the cause for petitioners in No. 79-1404. Thomas Kittredge argued the cause for petitioners in Nos. 79-1408 and 79-1415. Joel I. Klein argued the cause for petitioner in No. 79-1489. With them on the briefs were Harvey Bartle III, Robert B. Hoffman, Norman J. Watkins, Alan J. Davis, Carl E. Singley, and H. Bartow Farr III.
David Ferleger argued the cause and filed a brief for respondents Halderman et al. Thomas K. Gilhool argued the cause for the Pennsylvania Association for Retarded Citizens et al., petitioners in No. 79-1414 and respondents in Nos. 79-1404, 79-1408, 79-1415, and 79-1489. With him on the brief were Frank J. Laski arid Michael Churchill. Assistant Attorney General Days argued the cause for the United States. With him on the brief were Solicitor General McCree, Harriet S. Shapiro, Brian K. Landsberg, Frank D. Allen, Jr., and Joan Magagna.
Together with No. 79-1408, Mayor of Philadelphia et al. v. Halderman et al.; No. 79-1414, Pennsylvania Association for Retarded Citizens et al. v. Pennhurst State School and Hospital et al.; No. 79-1415, Commissioners and Mental Health/Mentcd Retardation Administrator for Bucks County et al. v. Halderman et al.; and No 79-1489, Pennhurst Parents-Staff Assn. v. Halderman et al., also on certiorari to the same court.
Briefs of amici curiae urging reversal were filed by Carl R. Ajello, Attorney General, and Hugh Barber and Francis J. MacGregor, Assistant Attorneys General, for the State of Connecticut; and by Michael H. Gottesman and Robert M. Weinberg for Congress of Advocates for the Retarded, Inc., et al.
Briefs of amici curiae urging affirmance were filed by Wm. Reece Smith, Jr., for the American Bar Association; by Margaret F. Ewing and Paul R. Friedman for the American Orthopsychiatric Association et al.; by Clifford D. Stromberg for the American Psychiatric Association; by David S. Tatel for the International League of Societies for the Mentally Handicapped et al.; by Robert L. Burgdorf, Jr., for the National Association of Protection and Advocacy Systems et al.; by James D. Crawford for the National Association for Retarded Citizens et al.; by Ronald M. Soslán for the National Center for Law and the Handicapped et al.; by Deborah Kaplan and Steven M. Fleisher for People First International, Inc., et al.; by David C. Shaw for the Connecticut Association for Retarded Citizens, Ine., et al.; and by Steven J. Schwartz and Robert D. Fleischner for Plaintiffs in Brewster v. Dukakis (D. Mass.), et al.
A brief for the State of Illinois et al. as amici curiae was filed by Alan E. Grischke and Christine A. Bremer, Special Assistant Attorneys General of Illinois; Gregorey H. Smith, Acting Attorney General of New Hampshire, and Wilbur A. Glahn III and Anne R. Clarke, Assistant Attorneys General; William J. Guste, Jr., Attorney General of Louisiana, and Carmack M. Blackmon, Assistant Attorney General; William J. Brown, Attorney General of Ohio, and George Striker, Assistant Attorney General; Mark V. Meierhenry, Attorney General of South Dakota, and Janice Godtland, Assistant Attorney General; Slade Gorton, Attorney General of Washington, and David R. Minikel, Assistant Attorney General; Chauncey H. Browning, Attorney General of West Virginia, and David R. Brisell, Assistant Attorney General; Paul L. Douglas, Attorney General of Nebraska; John J. Degnan, Attorney General of New Jersey, and Steven Wattach, Deputy Attorney General; William M. Leech, Jr., Attorney General of Tennessee, and Lee Breckenridge, Assistant Attorney General; and Warren A. Spannaus, Attorney General of Minnesota, and Alan A. Held, Special Assistant Attorney General.
Justice Rehnquist
delivered the opinion of the Court.
At issue in these cases is the scope and meaning of the Developmentally Disabled Assistance and Bill of Rights Act of 1975, 89 Stat. 486, as amended, 42 U. S. C. § 6000 et seq. (1976 ed. and Supp. III). The Court of Appeals for the Third Circuit held that the Act created substantive rights in favor of the mentally retarded, that those rights were judicially enforceable, and that conditions at the Pennhurst State School and Hospital (Pennhurst), a facility for the care and treatment of the mentally retarded, violated those rights. For the reasons stated below, we reverse the decision of the Court of Appeals and remand the cases for further proceedings.
I
The Commonwealth of Pennsylvania owns and operates Pennhurst. Pennhurst is a large institution, housing approximately 1,200 residents. Seventy-five percent of the residents are either “severely” or “profoundly” retarded — that is, with an IQ of less than 35 — and a number of the residents are also physically handicapped. About half of its residents were committed there by court order and half by a parent or other guardian.
In 1974, respondent Terri Lee Halderman, a minor retarded resident of Pennhurst, filed suit in the District Court for the Eastern District of Pennsylvania on behalf of herself and all other Pennhurst residents against Pennhurst, its superintendent, and various officials of the Commonwealth of Pennsylvania responsible for the operation of Pennhurst (hereafter petitioners). The additional respondents (hereinafter, with respondent Halderman, referred to as respondents) in these cases — other mentally retarded persons, the United States, and the Pennsylvania Association for Retarded Citizens (PARC) — subsequently intervened as plaintiffs. PARC added several surrounding counties as defendants, alleging that they were responsible for the commitment of persons to Pennhurst.
As amended in 1975, the complaint alleged, inter alia, that conditions at Pennhurst were unsanitary, inhumane, and dangerous. Specifically, the complaint averred that these conditions denied the class members due process and equal protection of the law in violation of the Fourteenth Amendment, inflicted on them cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments, and denied them certain rights conferred by the Rehabilitation Act of 1973, 87 Stat. 355, as amended, 29 U. S. C. § 701 et seq. (1976 ed. and Supp. Ill), the Developmentally Disabled Assistance and Bill of Rights Act, 42 U. S. C. §§ 6001 et seq. (1976 ed. and Supp. Ill), and the Pennsylvania Mental Health and Mental Retardation Act of 1966, Pa. Stat. Ann., Tit. 50, §§ 4101-4704 (Pur-don 1969). In addition to seeking injunctive and monetary relief, the complaint urged that Pennhurst be closed and that “community living arrangements” be established for its residents.
The District Court certified a class consisting of all persons who have been or may become residents of Pennhurst. After a 32-day trial, it issued an opinion, reported at 446 F. Supp. 1295 (1977), making findings of fact and conclusions of law with respect to the conditions at Pennhurst. Its findings of fact are undisputed: Conditions at Pennhurst are not only dangerous, with the residents often physically abused or drugged by staff members, but also inadequate for the “habili-tation” of the retarded. Indeed, the court found that the physical, intellectual, and emotional skills of some residents have deteriorated at Pennhurst. Id., at 1308-1310.
The District Court went on to hold that the mentally retarded have a federal constitutional right to be provided with “minimally adequate habilitation” in the “least restrictive environment,” regardless of whether they were voluntarily or involuntarily committed. Id., at 1314-1320. The court also held that there existed a constitutional right to “be free from harm” under the Eighth Amendment, and to be provided with “nondiscriminatory habilitation” under the Equal Protection Clause. Id., at 1320-1322. In addition, it found that § 504 of the Rehabilitation Act of 1973, 29 U. S. C. § 794, and § 201 of the Pennsylvania Mental Health and Mental Retardation Act of 1966, Pa. Stat. Ann., Tit. 50, § 4201 (Pur-don 1969), provided a right to minimally adequate habilitation in the least restrictive environment.
Each of these rights was found to have been violated by the conditions existing at Pennhurst. Indeed, the court held that a large institution such as Pennhurst could not provide adequate habilitation. ' 446 F. Supp., at 1318. It thus ordered that Pennhurst eventually be closed, that suitable “community living arrangements” be provided for all Penn-hurst residents, that plans for the removal of residents from Pennhurst be submitted to the court, that individual treatment plans be developed for each resident with the participation of his or her family, and that conditions at Pennhurst be improved in the interim. The court appointed a Special Master to supervise the implementation of this order. Id., at 1326-1329.
The Court of Appeals for the Third Circuit substantially affirmed the District Court’s remedial order. 612 F. 2d 84 (1979) (en banc). Unlike the District Court, however, the Court of Appeals sought to avoid the constitutional claims raised by respondents and instead rested its order on a construction of the Developmentally Disabled Assistance and Bill of Rights Act, 42 U. S. C. § 6000 et seg. (1976 ed. and Supp. III). It found that §§ 111 (1) and (2) of the Act, 89 Stat. 502, 42 U. S. C. §§ 6010 (1) and (2), the “bill of rights” provision, grant to mentally retarded persons a right to “appropriate treatment, services, and habilitation” in “the setting that is least restrictive of . . . personal liberty.” The court further held that under the test articulated in Cort v. Ash, 422 U. S. 66, 78 (1975), mentally retarded persons have an implied cause of action to enforce that right. 612 F. 2d, at 97. Because the court found that Congress enacted the statute pursuant to both § 5 of the Fourteenth Amendment and the spending power, it declined to consider whether a statute enacted pursuant to the spending power alone “could ever provide the predicate for private substantive rights.” Id., at 98. As an alternative ground, the court affirmed the District Court’s holding that Pennhurst residents have a state statutory right to adequate “habilitation.”
The court concluded that the conditions at Pennhurst violated these federal and state statutory rights. As to relief, it affirmed the order of the District Court except insofar as it ordered Pennhurst to be closed. Although the court concluded that “deinstitutionalization is the favored approach to habilitation” in the least restrictive environment, it did not construe the Act to require the closing of large institutions like Pennhurst. Id., at 115. The court thus remanded the case to the District Court for “individual determinations by the court, or by the Special Master, as to the appropriateness of an improved Pennhurst for each such patient” and instructed the District Court or the Master to “engage in a presumption in favor of placing individuals in [community living arrangements].” Id., at 114-115.
Three judges dissented. Although they assumed that the majority was correct in holding that Pennhurst residents have a right to treatment under the Act and an implied cause of action under the Act to enforce that right, they disagreed that the Act imposed a duty on the defendants to provide the “least restrictive treatment” possible. The dissent stated that “the language and structure of the Act, the relevant regulations, and the legislative history all indicate that the States may consider their own resources in providing less restrictive treatment.” Id., at 119. It did not believe that the general findings and declarations contained in a funding statute designed to encourage a course of conduct could be used by the federal courts to create absolute obligations on the States.
We granted certiorari to consider petitioners’ several challenges to the decision below. 447 U. S. 904. Petitioners first contend that 42 U. S. C. § 6010 does not create in favor of the mentally retarded any substantive rights to “appropriate treatment” in the “least restrictive” environment. Assuming that Congress did intend to create such a right, petitioners question the authority of Congress to impose these affirmative obligations on the States under either its spending power or § 5 of the Fourteenth Amendment. Petitioners next assert that any rights created by the Act are enforceable in federal court only by the Federal Government, not by private parties. Finally, petitioners argue that the court below read the scope of any rights created by the Act too broadly and far exceeded its remedial powers in requiring the Commonwealth to move its residents to less restrictive environments and create individual habilitation plans for the mentally retarded. Because we agree with petitioners’ first contention — that § 6010 simply does not create substantive rights — we find it unnecessary to address the remaining issues.
II
We turn first to a brief review of the general structure of the Act. It is a federal-state grant program whereby the Federal Government provides financial assistance to participating States to aid them in creating programs to care for and treat the developmentally disabled. Like other federal-state cooperative programs, the Act is voluntary and the States are given the choice of complying with the conditions set forth in the Act or forgoing the benefits of federal funding. See generally King v. Smith, 392 U. S. 309 (1968); Rosado v. Wyman, 397 U. S. 397 (1970); Harris v. McRae, 448 U. S. 297 (1980). The Commonwealth of Pennsylvania has elected to participate in the program. The Secretary of the Department of Health and Human Services (HHS), the agency responsible for administering the Act, has approved Pennsylvania’s state plan and in 1976 disbursed to Pennsylvania approximately $1.6 million. Pennhurst itself receives no federal funds from Pennsylvania’s allotment under the Act, though it does receive approximately $6 million per year in Medicaid funds.
The Act begins with an exhaustive statement of purposes. 42 U. S. C. § 6000 (b)(1) (1976 ed., Supp. III). The “overall purpose” of the Act, as amended in 1978, is:
“[T]o assist [the] states to assure that persons with developmental disabilities receive the care, treatment, and other services necessary to enable them to achieve their maximum potential through a system which coordinates, monitors, plans, and evaluates those services and which ensures the protection of the legal and human rights of persons with developmental disabilities.” (Emphasis supplied.)
As set forth in the margin, the “specific purposes” of the Act are to “assist” and financially “support” various activities necessary to the provision of comprehensive services to the developmentally disabled. § 6000 (b)(2) (1976 ed., Supp. III).
The Act next lists a variety of conditions for the receipt of federal funds. Under § 6005, for example, the Secretary “as a condition of providing assistance” shall require that “each recipient of such assistance take affirmative action” to hire qualified handicapped individuals. Each State, in turn, shall “as a condition” of receiving assistance submit to the Secretary a plan to evaluate the services provided under the Act. § 6009. Each State shall also “as a condition” of receiving assistance “provide the Secretary satisfactory assur-anees that each program . . . which receives funds from the State’s allotment . . . has in effect for each developmental^ disabled person who receives services from or under the program a habilitation plan.” § 6011 (a) (1976 ed., Supp. III). And § 6012 (a) (1976 ed., Supp. Ill) conditions aid on a State’s promise to “have in effect a system to protect and advocate the rights of persons with developmental disabilities.”
At issue here, of course, is § 6010, the “bill of rights” provision. It states in relevant part:
“Congress makes the following findings respecting the rights of persons with developmental disabilities:
“(1) Persons with developmental disabilities have a right to appropriate treatment, services, and habilitation for such disabilities.
“(2) The treatment, services, and habilitation for a person with developmental disabilities should be designed to maximize the developmental potential of the person and should be provided in the setting that is least restrictive of the person’s personal liberty.
“(3) The Federal Government and the States both have an obligation to assure that public funds are not provided to any institutio[n] . . . that — (A) does not provide treatment, services, and habilitation which is appropriate to the needs of such person; or (B) does not meet the following minimum standards . . . .”
Noticeably absent from § 6010 is any language suggesting that § 6010 is a “condition” for the receipt of federal funding under the Act. Section 6010 thus stands in sharp contrast to §§ 6005, 6009, 6011, and 6012.
The enabling parts of the Act are the funding sections. 42 U. S. C. §§ 6061-6063 (1976 ed. and Supp. III). Those sections describe how funds are to be allotted to the States, require that any State desiring financial assistance submit an overall plan satisfactory to the Secretary of HHS, and require that funds disbursed under the Act be used in accordance with the approved state plan. To be approved by the Secretary, the state plan must comply with several specific conditions set forth in § 6063. It, inter alia, must provide for the establishment of a State Planning Council, §6063 (b)(1), and set out specific objectives to be achieved under the plan, § 6063 (b)(2)(A) (1976 ed., Supp. III). Services furnished under the plan must be consistent with standards prescribed by the Secretary, § 6063 (b)(5)(A)(i) (1976 ed., Supp. Ill), and be provided in an individual manner consistent with § 6011, § 6063 (b)(5)(B) (1976 ed., Supp. III). The plan must also be supported by assurances that any program receiving assistance is protecting the human rights of the disabled consistent with § 6010, § 6063 (b)(5)(C) (1976 ed., Supp. III). Each State must also require its State Planning Council to serve as an advocate of persons with developmental disabilities. §6067 (1976 ed. and Supp. III).
The Act further provides procedures and sanctions to ensure state compliance with its requirements. The Secretary may, of course, disapprove a state plan, § 6063 (c). If a State fails to satisfy the requirements of § 6063, the Secretary may terminate or reduce the federal grant. § 6065 (1976 ed., Supp. III). Any State dissatisfied with the Secretary’s disapproval of the plan, or his decision to terminate funding, may appeal to the federal courts of appeals. § 6068. No other cause of action is recognized in the Act.
III
As support for its broad remedial order, the Court of Appeals found that 42 U. S. C. § 6010 created substantive rights in favor of the disabled and imposed an obligation on the States to provide, at their own expense, certain kinds of treatment. The initial question before us, then, is one of statutory construction: Did Congress intend in § 6010 to create enforceable rights and obligations?
A
In discerning congressional intent, we necessarily turn to the possible sources of Congress’ power to legislate, namely, Congress’ power to enforce the Fourteenth Amendment and its power under the Spending Clause to place conditions on the grant of federal funds. Although the court below held that Congress acted under both powers, the respondents themselves disagree on this point. The Halderman respondents argue that § 6010 was enacted pursuant to § 5 of the Fourteenth Amendment. Accordingly, they assert that § 6010 is mandatory on the States, regardless of their receipt of federal funds. The Solicitor General, in contrast, concedes that Congress acted pursuant to its spending power alone. Tr. of Oral Arg. 54. Thus, in his view, § 6010 only applies to those States which accept federal funds.
Although this Court has previously addressed issues going to Congress’ power to secure the guarantees of the Fourteenth Amendment, Katzenbach v. Morgan, 384 U. S. 641, 651 (1966); Oregon v. Mitchell, 400 U. S. 112 (1970); Fitzpatrick v. Bitzer, 427 U. S. 445 (1975), we have had little occasion to consider the appropriate test for determining when Congress intends to enforce those guarantees. Because such legislation imposes congressional policy on a State involuntarily, and because it often intrudes on traditional state authority, we should not quickly attribute to Congress an unstated intent to act under its authority to enforce the Fourteenth Amendment. Our previous cases are wholly consistent with that view, since Congress in those cases expressly articulated its intent to legislate pursuant to § 5. See Katzenbach v. Morgan, supra (intent expressly stated in the Voting Rights Act of 1965); Oregon v. Mitchell, supra (intent expressly stated in the Voting Rights Act Amendments of 1970); Fitzpatrick v. Bitzer, supra (intent expressly stated in both the House and Senate Reports of the 1972 Amendments to the Civil Rights Act of 1964); cf. South Carolina v. Katzenbach, 383 U. S. 301 (1966) (intent to enforce the Fifteenth Amendment expressly stated in the Voting Rights Act of 1965). Those cases, moreover, involved statutes which simply prohibited certain kinds of state conduct. The case for inferring intent is at its weakest where, as here, the rights asserted impose affirmative obligations on the States to fund certain services, since we may assume that Congress will not implicitly attempt to impose massive financial obligations on the States.
Turning to Congress’ power to legislate pursuant to the spending power, our cases have long recognized that Congress may fix the terms on which it shall disburse federal money to the States. See, e. g., Oklahoma v. CSC, 330 U. S. 127 (1947); King v. Smith, 392 U. S. 309 (1968); Rosado v. Wyman, 397 U. S. 397 (1970). Unlike legislation enacted under § 5, however, legislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions. The legitimacy of Congress’ power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the “contract.” See Steward Machine Co. v. Davis, 301 U. S. 548, 585-598 (1937); Harris v. McRae, 448 U. S. 297 (1980). There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it. Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously. Cf. Employees v. Department of Public Health and Welfare, 411 U. S. 279, 285 (1973); Edelman v. Jordan, 415 U. S. 651 (1974). By insisting that Congress speak with a clear voice, we enable the States to exercise their choice knowingly, cognizant of the consequences of their participation.
Indeed, in those instances where Congress has intended the States to fund certain entitlements as a condition of receiving federal funds, it has proved capable of saying so explicitly. See, e. g., King v. Smith, supra, at 333 (Social Security Act creates a “federally imposed obligation [on the States] to furnish '’aid to families with dependent children . . . with reasonable promptness to all eligible individuals,’ ” quoting the Act). We must carefully inquire, then, whether Congress in § 6010 imposed an obligation on the States to spend state money to fund certain rights as a condition of receiving federal moneys under the Act or whether it spoke merely in precatory terms.
B
Applying those principles to these cases, we find nothing in the Act or its legislative history to suggest that Congress intended to require the States to assume the high cost of providing “appropriate treatment” in the “least restrictive environment” to their mentally retarded citizens.
There is virtually no support for the lower court’s conclusion that Congress created rights and obligations pursuant to its power to enforce the Fourteenth Amendment. The Act nowhere states that that is its purpose. Quite the contrary, the Act’s language and structure demonstrate that it is a mere federal-state funding statute. The explicit purposes of the Act are simply “to assist” the States through the use of federal grants to improve the care and treatment of the mentally retarded. § 6000 (b) (1976 ed.-, Supp. III). Nothing in either the “overall” or “specific” purposes of the Act reveals an intent to require the States to fund new, substantive rights. Surely Congress would not have established such elaborate funding incentives had it simply intended to impose absolute obligations on the States.
Respondents nonetheless insist that the fact that § 6010 speaks in terms of “rights” supports their view. Their reliance is misplaced. “ ‘In expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.’” Philbrook v. Glodgett, 421 U. S. 707, 713 (1975), quoting United States v. Heirs of Boisdoré, 8 How. 113, 122 (1849). See District of Columbia v. Carter, 409 U. S. 418, 420 (1973). Contrary to respondents’ assertion, the specific language and the legislative history of § 6010 are ambiguous. We are persuaded that § 6010, when read in the context of other more specific provisions of the Act, does no more than express a congressional preference for certain kinds of treatment. It is simply a general statement of “findings” and, as such, is too thin a reed to support the rights and obligations read into it by the court below. The closest one can come in giving § 6010 meaning is that it justifies and supports Congress’ appropriation of money under the Act and guides the Secretary in his review of state applications for federal funds. See United States v. Carotene Products Co., 304 U. S. 144, 152 (1938). As this Court recognized in Rosado v. Wyman, supra, at 413, “Congress sometimes legislates by innuendo, making declarations of policy and indicating a preference while requiring measures that, though falling short of legislating its goal, serve as a nudge in the preferred directions.” This is such a case.
The legislative history buttresses our conclusion that Congress intended to encourage, rather than mandate, the provision of better services to the developmentally disabled. The House Committee believed the purpose of the Act was simply to continue an existing federal grant program, designed to promote “effective planning by the states of their programs, initiation of new, needed programs, and filling of gaps among existing efforts.” H. R. Rep. No. 94-58, pp. 6, 8-9 (1975). Indeed, as passed by the House, the Act contained no “bill of rights” provision whatsoever. The Committee instead merely “applauded” the efforts of others to secure rights for the developmentally disabled. Id., at 7.
Respondents, however, argue vigorously that the legislative history of the bill as passed by the Senate evinces Congress’ intent to impose absolute obligations on the States to fund certain levels of treatment. Respondents rely most heavily on Title II of the Senate bill which adopted a “Bill of Rights” for the mentally retarded and contained over 400 pages of detailed standards “designed to assist in the protection of the human rights guaranteed under the Constitution.” S. Rep. No. 94-160, p. 34 (1975). The Report also noted that the “Federal Government has a responsibility to provide equal protection under the law to all citizens.” Id., at 32. And Senator Stafford stated on the Senate floor that “Title II was added to the bill to assist in the protection of the rights guaranteed under our Constitution for those individuals that will require institutionalization.” 121 Cong. Rec. 16516 (1975).
Respondents read too much into these scattered bits of legislative history. In the first place, it is by no means clear that even the Senate bill created new substantive rights in favor of the disabled. Despite the general discussion of equal protection guarantees in the Senate Report, the Committee’s view of the Act was quite modest. It explained that the purpose of Title II was simply “to stimulate the States to develop alternative programs of care for mentally retarded.” S. Rep. No. 94-160, supra, at 1. It viewed Title II as satisfying the “need for a clear exposition of the purposes for which support should be provided under the authorities of the Act.” Id., at 3. Nor are the remarks of various Senators to the contrary. Senator Stafford spoke merely in terms of “assisting” the States. Senator Randolph, in introducing the bill on the floor of the Senate, confirmed the Senate’s limited purpose. He said:
“[W]e have developed a bill whose thrust, like the 1970 act, is to assist States in developing a comprehensive plan to bring together available resources in a coordinated way so developmentally disabled individuals are appropriately served. Our goal is more thorough and careful planning and more effective evaluation.” 121 Cong. Rec. 16514 (1975) (emphasis supplied).
Even Senator Javits, the principal proponent of Title II, did not read the Act as establishing new substantive rights to enforce those guaranteed by the Constitution. He explained that Title II “represents a reaffirmation of the basic human and civil rights of all citizens. It offers the direction to provide a valid and realistic framework for improving the overall situation of this country’s mentally retarded and other developmentally disabled individuals.” Id., at 16519 (emphasis supplied).
In any event, whatever the Senate’s view of its bill, Congress declined to adopt it. The Conference Committee rejected the explicit standards of Title II and instead compromised on the more general statement of “findings” in what later became § 6010. H. R. Conf. Rep. No. 94-473, pp. 41, 43 (1975). As Senator Javits noted with respect to the compromise, “Title II of the Conference agreement establishes a clear Federal policy that the mentally retarded have a right to appropriate treatment, services, and habilitation.” 121 Cong. Rec. 29820 (1975) (emphasis supplied).
In sum, nothing suggests that Congress intended the Act to be something other than a typical funding statute. Far from requiring the States to fund newly declared individual rights, the Act has ’ a systematic focus, seeking to improve care to individuals by encouraging better state planning, coordination, and demonstration projects. Much like the Medicaid statute considered in Harris v. McRae, 448 U. S. 297 (1980), the Act at issue here “was designed as a cooperative program of shared responsibilities], not as a device for the Federal Government to compel a State to provide services that Congress itself is unwilling to fund.” Id., at 309.
There remains the contention of the Solicitor General that Congress, acting pursuant to its spending power, conditioned the grant of federal money on the State’s agreeing to underwrite the obligations the Court of Appeals read into § 6010. We find that contention wholly without merit. As amply demonstrated above, the “findings” in § 6010, when viewed in the context of the more specific provisions of the Act, represent general statements of federal policy, not newly created legal duties.
The “plain language” of § 6010 also refutes the Solicitor General’s contention. When Congress intended to impose conditions on the grant of federal funds, as in §§ 6005, 6009, 6011, 6012, 6063, and 6067, it proved capable of doing so in clear terms. Section 6010, in marked contrast, in no way suggests that the grant of federal funds is “conditioned” on a State’s funding the rights described therein. The existence of explicit conditions throughout the Act, and the absence of conditional language in § 6010, manifest the limited meaning of § 6010.
Equally telling is the fact that the Secretary has specifically rejected the position of the Solicitor General. The purpose of the Act, according to the Secretary, is merely “to improve and coordinate the provision of services to persons with developmental disabilities.” 45 CFR § 1385.1 (1979). The Secretary acknowledges that “[n]o authority was included in [the 1975] Act to allow the Department to withhold funds from States on the basis of failure to meet the findings [of §6010].” 45 Fed. Reg. 31006 (1980). If funds cannot be terminated for a State’s failure to comply with § 6010, § 6010 can hardly be considered a “condition” of the grant of federal funds. The Secretary’s interpretation of § 6010, moreover, is well supported by the legislative history. In reaching the compromise on § 6010, the Conference Committee rejected the Senate’s proposal to terminate federal funding of States which failed to comply with the standards enumerated in Title II of the Senate’s bill, see n. 15, supra. By eliminating that sanction, Congress made clear that the provisions of § 6010 were intended to be hortatory, not mandatory.
The fact that Congress granted to Pennsylvania only $1.6 million in 1976, a sum woefully inadequate to meet the enormous financial burden of providing “appropriate” treatment in the “least restrictive” setting, confirms that Congress must have had a limited purpose in enacting § 6010. When Congress does impose affirmative obligations on the States, it usually makes a far more substantial contribution to defray costs. Harris v. McRae, supra. It defies common sense, in short, to suppose that Congress implicitly imposed this massive obligation on participating States.
Our conclusion is also buttressed by the rule of statutory construction established above, that Congress must express clearly its intent to impose conditions on the grant of federal funds so that the States can knowingly decide whether or not to accept those funds. That canon applies with greatest force where, as here, a State’s potential obligations under the Act are largely indeterminate. It is difficult to know what is meant by providing “appropriate treatment” in the “least restrictive” setting, and it is unlikely that a State would have accepted federal funds had it known it would be bound to provide such treatment. The crucial inquiry, however, is not whether a State would knowingly undertake that obligation, but whether Congress spoke so clearly that we can fairly say that the State could make an informed choice. In this case, Congress fell well short of providing clear notice to the States that they, by accepting funds under the Act, would indeed be obligated to comply with § 6010. Not only does § 6010 lack conditional language, but it strains credulity to argue that participating States should have known of their “obligations” under § 6010 when the Secretary of HHS, the governmental agency responsible for the administration of the Act and the agency with which the participating States have the most contact, has never understood § 6010 to impose conditions on participating States. Though Congress’ power to legislate under the spending power is broad, it does not include surprising participating States with postacceptance or “retroactive” conditions.
Finally, a brief comparison of the general language of § 6010 with the conditions Congress explicitly imposed on the States demonstrates that Congress did not intend to place either absolute or conditional obligations on the States. The Court of Appeals, for example, read § 6010 to impose an obligation to provide habilitation plans for all developmentally disabled persons. But Congress required habilitation plans under § 6011 “only when the Federal assistance under the Act contributes a portion of the cost of the habilitation services to the developmentally disabled person.” H. R. Conf. Rep. No. 94-473, p. 43 (1975). If the Court of Appeals were correct, of course, there would be no purpose for Congress to have required habilitation plans at all, or to have limited the requirement to certain programs, since such plans automatically would have been mandated in all programs by the more inclusive requirements of § 6010.
Second, the specific condition imposed in § 6063 (b)(5)(C) (1976 ed., Supp. Ill) requires each state plan to
“contain or be supported by assurances satisfactory to the Secretary that the human rights of all persons with developmental disabilities . . . who are receiving treatment, services, or habilitation, under programs assisted under this chapter will be protected consistent with section 6010 of this title (relating to rights of the developmentally disabled).”
Once again, these limitations — both as to programs assisted under the Act and as to affording protection in a manner that is “consistent with § 6010” — would be unnecessary if, as the court below ruled, all state programs were required to fund the rights described in § 6010.
And third, the court below held that § 6010 mandated de-institutionalization for most, if not all, mentally retarded persons. As originally enacted in 1975, however, the Act required only that each State use not less than 30 percent of its allotment “for the purpose of assisting it in developing and implementing plans designed to eliminate inappropriate placement in institutions of persons with developmental disabilities.” § 6062 (a) (4). Three years later, Congress relieved the States of even that modest duty. Instead of requiring the States to use a certain portion, of their allotment to support deinstitutionalization, Congress required the States to concentrate their efforts in at least one of four areas, only one of which was “community living arrangements.” § 6063 (b) (4) (A) (ii) (1976 ed., Supp. III). Had § 6010 created a right to deinstitutionalization, the policy choices contemplated by both the 1975 and 1978 provisions would be meaningless.
In sum, the court below failed to recognize the well-settled distinction between congressional "encouragement” of state programs and the imposition of binding obligations on the States. Harris v. McRae, 448 U. S. 297 (1980). Relying on that distinction, this Court in Southeastern Community College v. Davis, 442 U. S. 397 (1979), rejected a claim that § 504 of the Rehabilitation Act of 1973, which bars discrimination against handicapped persons in federally funded programs, obligates schools to take affirmative steps to eliminate problems raised by an applicant's hearing disability. Finding that “state agencies such as Southeastern are only ‘encourage [d] ... to adopt and implement such policies and procedures,’ ” id., at 410 (quoting the Act), we stressed that “Congress understood [that] accommodation of the needs of handicapped individuals may require affirmative action and knew how to provide for it in those instances where it wished to do so.” Id., at 411. Likewise in this case, Congress was aware of the need of developmentally disabled persons and plainly understood the difference, financial and otherwise, between encouraging a specified type of treatment and mandating it.
IV
Respondents also suggest that they may bring suit to compel compliance with those conditions which are contained in the Act. Of particular relevance to these cases are § 6011 (a) (1976 ed., Supp. Ill) and §6063 (b)(5)(C) (1976 ed'., Supp. Ill), which are quoted supra, at 12-13, 26.
That claim raises several issues. First, it must be determined whether respondents have a private cause of action to compel state compliance with those conditions. In legislation enacted pursuant to the spending power, the typical remedy for state noncompliance with federally imposed conditions is not a private cause of action for noncompliance but rather action by the Federal Government to terminate funds to the State. See §6065 (1976 ed., Supp. III). Just last Term, however, in Maine v. Thiboutot, 448 U. S. 1 (1980), we held that 42 U. S. C. § 1983 provides a cause of action for state deprivations of “rights secured” by “the laws” of the United States. See 448 U. S., at 4. Whether Thiboutot controls these cases depends on two factors. First, respondents here, unlike the plaintiffs in Thiboutot, who alleged that state law prevented them from receiving federal funds to which they were entitled, can only claim that the state plan has not provided adequate “assurances” to the Secretary. It is at least an open question whether an individual’s interest in having a State provide those “assurances” is a “right secured” by the laws of the United States within the meaning of § 1983. Second, Justice Powell in dissent in Thiboutot suggested that § 1983 would not he available where the “governing statute provides an exclusive remedy for violations of its terms.” Id., at 22, n. 11. It is unclear whether the express remedy contained in this Act is exclusive.
Second, it is not at all clear that the Pennhurst petitioners have violated §6011 and § 6063 (b) (5) (C) (1976 ed. and Supp. III). Those sections, by their terms, only refer to “programs assisted” under the Act. Because Pennhurst does not receive federal funds under the Act, it is arguably not a “program assisted.” Thus, there may be no obligation on the State under § 6011 to assure the Secretary that each resident of Pennhurst have a habilitation plan, or assure the Secretary under § 6063 (b) (5) (C) that Pennhurst residents are being provided services consistent with § 6010.
Third, there is the question of remedy. Respondents’ relief may well be limited to enjoining the Federal Government from providing funds to the Commonwealth. As we stated in Rosado v. Wyman, 397 U. S., at 420, welfare claimants were “entitled to declaratory relief and an appropriate injunction by the District Court against the payment of federal monies . . . should the State not develop a conforming plan within a reasonable period of time.” (Emphasis in original.) There, we rejected the suggestion that the courts could require the State to pay the additional sums demanded by compliance with federal standards. Relying on King v. Smith, 392 U. S. 309 (1968), we explained that “the State had alternative choices of assuming the additional cost” of complying with the federal standard “or not using federal funds.” 397 U. S., at 420-421. Accordingly, we remanded the case so that the State could exercise that choice.
In other instances, however, we have implicitly departed from that rule and have affirmed lower court decisions enjoining a State from enforcing any provisions which conflict with federal law in violation of the Supremacy Clause, e. g., Carleson v. Remillard, 406 U. S. 598 (1972). In still other cases, we have struck down state laws without addressing the form of relief, e. g., Townsend v. Swank, 404 U.S. 282 (1971). In no case, however, have we required a State to provide money to plaintiffs, much less required a State to take on such open-ended and potentially burdensome obligations as providing “appropriate” treatment in the “least restrictive” environment. And because this is a suit in federal court, anything but prospective relief would pose serious questions under the Eleventh Amendment. Edelman v. Jordan, 415 U. S. 651 (1974).
These are all difficult questions. Because the Court of Appeals has not addressed these issues, however, we remand the issues for consideration in light of our decision here.
V
After finding that federal law imposed an obligation on the States to provide treatment, the court below examined state law and found that it too imposed such a requirement. 612 F. 2d, at 100-103. The court looked to § 4201 of the Pennsylvania Mental Health and Mental Retardation Act of 1966, which provides in pertinent part:
“The department of [Public Welfare] shall have power, and its duty shall be:
“(1) To assure within the State the availability and equitable provision of adequate mental health and mental retardation services for all persons who need them, regardless of religion, race, color, national origin, settlement, residence, or economic or social status.” Pa. Stat. Ann., Tit. 50, §4201 (Purdon 1969).
Respondents contend that, even if we conclude that relief is unavailable under federal law, state law adequately supports the relief ordered by the Court of Appeals. There are, however, two difficulties with that argument. First, the lower court’s finding that state law provides a right to treatment may well have been colored by its holding with respect to | 6010. Second, the court held only that there is a right to “treatment,” not that there is a state-right to treatment in the “least restrictive” environment. As such, it is unclear whether state law provides an independent and adequate ground which can support the court’s remedial order. Accordingly, we remand the state-law issue for reconsideration in light of our decision here.
For similar reasons, we also remand to the Court of Appeals those issues it did not address, namely, respondents’ federal constitutional claims and their claims under § 504 of the Rehabilitation Act.
VI
Congress in recent years has enacted several laws designed to improve the way in which this Nation treats the mentally retarded. The Developmental^ Disabled Assistance and Bill of Rights Act is one such law. It establishes a national policy to provide better care and treatment to the retarded and creates funding incentives to induce the States to do so. But the Act does no more than that. We would be attributing far too much to Congress if we held that it required the States, at their own expense, to provide certain kinds of treatment. Accordingly, we reverse the principal holding of the Court of Appeals and remand for further proceedings consistent with this opinion.
Reversed and remanded.
“Community living arrangements” are smaller, less isolated residences where retarded persons are treated as much as possible like nonretarded persons.
There is a technical difference between “treatment,” which applies to curable mental illness, and “habilitation,” which consists of education and training for those, such as the mentally retarded, who are not ill. This opinion, like the opinions of the courts below, will use the terms interchangeably.
As originally enacted in 1975, the definition of “developmentally disabled” included mental retardation. § 6001 (7) (A) (i). As amended in 1978, however, a mentally retarded individual is considered developmentally disabled only if he satisfies various criteria set forth in the Act.
It is perhaps suggestive of the novelty of the Court of Appeals’ decision that none of the respondents briefed the Act before the District Court, nor raised it in the Court of Appeals. Rather, the court itself suggested the applicability of the Act and requested supplemental briefs on the issue for the purpose of rehearing en banc. Even then the United States, which raised only constitutional claims before the District Court, contended merely that the “most significant implication of the Developmentally Disabled Act is the important light which it sheds upon congressional intent about the nature of the rights of institutionalized mentally retarded persons, and the guidance which it may give in discerning a violation of Section 504 [of the Rehabilitation Act].” Supplemental Brief for United States in No. 78-1490 (CA3), p. 2.
Section 5 of the Fourteenth Amendment provides that “[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
The spending power is encompassed in Art. I, § 8, cl. 1, of the Constitution, which states that the “Congress shall have the Power To . . . provide for the . . . general Welfare of the United States.”
The decisions below are somewhat unclear concerning to whom petitioners owe this right of treatment. The District Court certified a class of all persons who may become residents of Pennhurst, and the Court of Appeals directed relief for all plaintiffs in the case, including those on Pennhurst’s waiting list. Thus, the decisions arguably entitle even those mentally retarded citizens who are not institutionalized or currently receiving services to a “right to treatment.”
The dissent went on to conclude that neither the Federal Constitution, § 504 of the Rehabilitation Act of 1973, nor state law required a State to provide treatment in the “least restrictive setting.” The dissent would have thus reversed those portions of the District Court’s order that contemplated a court order closing Pennhurst and the creation of new less restrictive facilities. It would also have remanded the case to the District Court for it to decide “how best to bring Pennhurst in compliance with statutory and constitutional requirements” and left open “the possibility that certain individuals in the future may be able to show that their particular mode of treatment is not rationally related to the State’s purpose in confining them.” 612 F. 2d, at 131.
Section 6000 (b)(2) provides:
“The specific purposes of this chapter are—
“ (A) to assist in the provision of comprehensive services to persons with developmental disabilities, with priority to those persons whose needs cannot be covered or otherwise met under the Education for All Handicapped Children Act, the Rehabilitation Act of 1973 ... , or other health, education, or welfare programs;
“(B) to assist States in appropriate planning activities;
“(C) to make grants to States and public and private, nonprofit agencies to establish model programs, to demonstrate innovative habilitation techniques, and to train professional and paraprofessional personnel with respect to providing services to persons with developmental disabilities;
“(D) to make grants to university affiliated facilities to assist them in administering and operating demonstration facilities for the provision of services to persons with developmental disabilities, and interdisciplinary training programs for personnel needed to provide specialized services for these persons; and
“(E) to make grants to support a system in each State to protect the legal and human rights of all persons with developmental disabilities.”
Sections 6031-6043 authorize separate funding to university-affiliated facilities for the operation of demonstration and training programs and are not pertinent here.
The provisions of § 6063 were reworded and recodified in 1978. Section 6063 (b) (5) (C) (1976 ed., Supp. Ill) replaced § 133 (b) (24) of the Act, as added and renumbered, 89 Stat. 491, 506, 42 U. S. C. § 6063 (b) (24), which required a somewhat similar “assurance.” The only significant difference between the two provisions is that § 6063 (b) (5) (C) contains a specific reference to § 6010.
The PARC respondents take a somewhat different view. Although they argue that Congress enacted § 6010 under both § 5 and the spending power, they suggest that § 6010 applies only to programs which receive federal money. The PARC respondents are also cross-petitioners in this litigation, arguing that the Act requires Pennhurst to be closed. In their view, the individual placement decisions required by the court below are not authorized by the Act and, in any event, are an improper exercise of judicial authority.
There is of course a question whether Congress would .have the power to create the rights and obligations found by the court below. Although the court below held that “section 6010 does not go beyond what has been judicially declared to be the limits of the [Fourteenth [A]mendment,” 612 F. 2d, at 98, this Court has never found that the involuntarily committed have a constitutional “right to treatment,” much less the voluntarily committed. See Sanchez v. New Mexico, 396 U. S. 276 (1970), dismissing for want of substantial federal question, 80 N. M. 438, 457 P. 2d 370 (1968); O’Connor v. Donaldson, 422 U. S. 563, 587-589 (1975) (BuRger, C. J., concurring). Thus, the Pennhurst petitioners and several amici argue that legislation which purports to create against the States not only a right to treatment, but one in the least restrictive setting, is not “appropriate”- legislation within the meaning of § 5. Because we conclude that § 6010 creates no rights whatsoever, we find it unnecessary to consider that question.
There are limits on the power of Congress to impose conditions on the States pursuant to its spending power, Steward Machine Co. v. Davis, 301 U. S., at 585; Lau v. Nichols, 414 U. S. 563, 569 (1974); Fullilove v. Klutznick, 448 U. S. 448 (1980) (Burger, C. J.); see National League of Cities v. Usery, 426 U. S. 833 (1976). Even the Halderman respondents, like the court below, recognize the “constitutional difficulties” with imposing affirmative obligations on the States pursuant to the spending power, Tr. of Oral Arg. 45. That issue, however, is not now before us.
Respondents also contend that the title of the Act as passed, rather than as codified, reveals an intent to create rights in favor of the disabled. Pub. L. 94-103, 89 Stat. 486. As passed, the Act contained three Titles. Title I provided for services and facilities to the developmentally disabled and Title II, entitled “The Establishment and Protection of the Rights of Persons with Developmental Disabilities,” contained § 6010. Respondents’ reliance on this title is misplaced. It has long been established that the title of an Act “cannot enlarge or confer powers.” United States v. Oregon & California R. Co., 164 U. S. 626, 541 (1896); Cornell v. Coyne, 192 U. S. 418, 430 (1904). See United States v. Fisher, 2 Cranch 358, 386 (1805); Yazoo & Mississippi Valley R. Co. v. Thomas, 132 U. S. 174, 188 (1889). In addition, the location of § 6010 in the Act as passed confirms § 6010’s limited meaning. Section 6010 was the preamble of Title II followed by provisions later codified as §§ 6009, 6011, 6012. The congressional findings in § 6010 thus seem to have been designed simply to serve as the rationale for the conditions imposed in the remaining sections of Title II.
As originally passed by the Senate, for example, the bill provided that a State which failed to comply with the detailed standards of care enumerated in Title II would lose all federal funding, including that provided under such programs as Medicaid. S. 462, Tit. II, § 206. See S. Rep. No. 94^160, p. 35 (1975). The fact that the Senate would include a funding sanction is, of course, wholly inconsistent with respondents’ argument that Congress was acting pursuant to § 5 of the Fourteenth Amendment.
Nor is the contrary proved by a 1978 amendment to § 6010 which provides:
“The rights of persons with developmental disabilities described in findings made in this section are in addition to any constitutional or other rights otherwise afforded to all persons.” 92 Stat. 3007.
This provision, adopted in Conference Committee without any legislative history, merely expresses Congress’ view that persons with developmental disabilities have rights in addition to those generally available to “all persons.” The section recognizes that Congress only “described” rights, not created them. Nothing in the language supports an inference of substantive duties from a statement of congressional policy.
To be sure, the Secretary has read the 1978 reeodification of § 6063 (b) (5) (C) (1976 ed., Supp. Ill) to require a participating State to assure the Secretary that services in funded programs are being provided consistent with § 6010. 45 Fed. Reg. 31006 (1980). But, as will be discussed infra, even if the Secretary’s interpretation of the 1978 recodification is correct, a participating State’s obligations under § 6063 (b) (5) (C) are far more modest than the obligations read into § 6010 by the court below and urged by the Solicitor General here. It is also important to note that the Secretary, despite his apparent authority to do so, has not terminated funds to Pennsylvania for noncompliance with § 6063 (b) (5) (C).
The Solicitor General also relies heavily on §6010 (3), quoted supra, at 13. He apparently contends that Congress in § 6010 (3) conditioned the grant of all federal funds, including Medicaid, on the participating State’s agreement to provide adequate treatment to individuals. Although § 6010 (3), unlike §§ 6010 (1) and (2), at least speaks in terms of “obligations,” we find the Solicitor General’s argument ultimately without merit. First, like the other “findings” in § 6010, § 6010 (3) is merely an expression of federal policy. As even the Secretary concedes, Congress did not give the Secretary authority to withdraw federal funds on the basis of a State’s failure to comply with § 6010 (3). Second, by its terms, § 6010 (3) states that both the Federal Government and the States should not spend public money for substandard institutions. Nothing reveals an intent to condition the grant of federal funds under the Act on the State’s promise to provide appropriate habilitation to individuals.
The House Report, for example, explained that States were required only to plan “for as much deinstitutionalization as is feasible,” recognizing that this requirement would “prompt some movement of patients from State institutions back into their communities.” H. R. Rep. No. 94-58, p. 10 (1975).
The Court of Appeals was apparently aware of these conditions since it referred expressly to § 6063 (b) (5) (C) in concluding that § 6010 creates a right to treatment. Its error was in bypassing these specific conditions and resting its decision on the more general language of § 6010.
Because we conclude that § 6010 confers no substantive rights, we need not reach the question whether there is a private cause of action under that section or under 42 U. S. C. § 1983 to enforce those rights. See Southeastern Community College v. Davis, 442 U. S. 397, 404, n. 5 (1979).
Justice White concedes that Pennsylvania may not have violated § 6011, since Pennhurst may not be a “program assisted” under the Act. Post, at 41-42, n. 7. Curiously, however, he simultaneously assumes that § 6063 (b) (5) (C) applies to Pennhurst. Post, at 41. Because both § 6011 and § 6063 (b) (5) (C) apply only to “programs assisted,” I do not understand why §6063 (b)(5)(C), but not §6011, is applicable.
We do not significantly differ with our Brother White on the remedy for failure to comply with federally imposed conditions. Relying on Rosado v. Wyman, he argues that Pennsylvania should be given the option of rejecting federal funds under the Act or complying with § 6010. If we agreed that § 6010 was a condition on the grant of federal funds, we would have little difficulty subscribing to that view. We differ only in that he believes that § 6010 imposes conditions on participating States while we believe that the relevant conditions to these cases are §§ 6011 and 6063 (b)(5)(C). If the court on remand determines that there has been a violation of those conditions, it may well be appropriate to apply the principles announced in Rosado, as Justice White suggests.
Respondents have submitted to the Court 10 photocopies of a recent decision of the Pennsylvania Supreme Court which they characterize as holding that Pennsylvania state law provides a right to “state-funded individualized habilitation services.” In re Schmidt, 494 Pa. 86, 429 A.2d 631 (1981). The late submission not only fails to comply with Supreme Court Rule 35.5, it does not affect our decision here. On remand following our reversal, the Court of Appeals will be in a position to consider the state-law issues in light of the Pennsylvania’s Supreme Court’s recent decision.
A. g., The Rehabilitation Act of 1973, as amended in 1974 and 1978, 29 U. S. C. § 701 et seq. (1976 ed. and Supp. Ill); The Education for All Handicapped Children Act of 1975, 20 U. S. C. §§ 1401-1420; Social Security Amendments of 1974, 42 U. S. C. §§ 1396d (d) and 1397; Community Mental Health Centers Act, 42 U. S. C. § 2689 et seq. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York. | What is the court in which the case originated? | [
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99
] | sc_caseorigin |
CURTISS-WRIGHT CORP. v. GENERAL ELECTRIC CO.
No. 79-105.
Argued January 14, 1980
Decided April 22, 1980
Burger, C. J., delivered the opinion for a unanimous Court.
Ralph N. Del Deo argued the cause for petitioner. With him on the briefs were Richard S. Zackin, David Lasky, and Alfred J. Kovell.
Isaac N. Groner argued the cause for respondent. With him on the brief were Walter H. Fleischer, Alfred F. Belcuore, and Albert G. Besser.
Mb. Chief Justice BubgeR
delivered the opinion of the Court.
Federal Rule of Civil Procedure 54 (b) allows a district court dealing with multiple claims or multiple parties to direct the entry of final judgment as to fewer than all of the claims or parties; to do so, the court must make an express determination that there is no just reason for delay. We granted certiorari in order to examine the use of this procedural device. 444 U. S. 823 (1979).
I
From 1968 to 1972, respondent General Electric Co. entered into a series of 21 contracts with petitioner Curtiss-Wright Corp. for the manufacture of components designed for use in nuclear powered naval vessels. These contracts had a total value of $215 million.
In 1976, Curtiss-Wright brought a diversity action in the United States District Court for the District of New Jersey, seeking damages and reformation with regard to the 21 contracts. The complaint asserted claims based on alleged fraud, misrepresentation, and breach of contract by General Electric. It also sought $19 million from General Electric on the outstanding balance due on the contracts already performed.
General Electric counterclaimed for $1.9 million in costs allegedly incurred as the result of “extraordinary efforts” provided to Curtiss-Wright during performance of the contracts which enabled Curtiss-Wright to avoid a contract default. General Electric also sought, by way of counterclaim, to recover $52 million by which Curtiss-Wright was allegedly unjustly enriched as a result of these “extraordinary efforts.”
The facts underlying most of these claims and counterclaims are in dispute. As to Curtiss-Wright’s claims for the $19 million balance due, however, the sole dispute concerns the application of a release clause contained in each of the 21 agreements, which states that “Seller . . . agree [s] as a condition precedent to final payment, that the Buyer and the Government . . . are released from all liabilities, obligations and claims arising under or by virtue of this order.” App. 103a. When Curtiss-Wright moved for summary judgment on the balance due, General Electric contended that so long as Curtiss-Wright’s other claims remained pending, this provision constituted a bar to recovery of the undisputed balance.
The District Court rejected this contention and granted summary judgment for Curtiss-Wright on this otherwise undisputed claim. Applying New York law by which the parties had agreed to be bound, the District Court held that Curtiss-Wright was entitled to payment of the balance due notwithstanding the release clause. The court also ruled that Curtiss-Wright was entitled to prejudgment interest at the New York statutory rate of 6% per annum.
Curtiss-Wright then moved for a certification of the District Court’s orders as final judgments under Federal Rule of Civil Procedure 54 (b), which provides:.
“When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.”
The court expressly directed entry of final judgment for Curtiss-Wright and made the determination that there was “no just reason for delay” pursuant to Rule 54 (b).
The District Court also provided a written statement of reasons supporting its decision to certify the judgment as final. It acknowledged that Rule 54 (b) certification was not to be granted as a matter of course, and that this remedy should be reserved for the infrequent harsh case because of the overload in appellate courts which would otherwise result from appeals of an interlocutory nature. The essential inquiry was stated to be “whether, after balancing the competing factors, finality of judgment should be ordered to advance the interests of sound judicial administration and justice to the litigants.”
The District Court then went on to identify the relevant factors in the case before it. It found that certification would not result in unnecessary appellate review; that the claims finally adjudicated were separate, distinct, and independent of any of the other claims or counterclaims involved; that review of these adjudicated claims would not be mooted by any future developments in the case; and that the nature of the claims was such that no appellate court would have to decide the same issues more than once even if there were subsequent appeals.
Turning to considerations of justice to the litigants, the District Court found that Curtiss-Wright would suffer severe daily financial loss from nonpayment of the $19 million judgment because current interest rates were higher than the statutory prejudgment rate, a situation compounded by the large amount of money involved. The court observed that the complex nature of the remaining claims could, without certification, mean a delay that “would span many months, if not years.”
The court found that solvency of the parties was not a significant factor, since each appeared to be financially sound. Although the. presence of General Electric’s counterclaims and the consequent possibility of a setoff recovery were factors which weighed against certification, the court, in balancing these factors, determined that they were outweighed by the other factors in the case. Accordingly, it granted Rule 54 (b) certification. It also granted General Electric’s motion for a stay without bond pending appeal.
A divided panel of the United States Court of Appeals for the Third Circuit held that the case was controlled by its decision in Allis-Chalmers Corp. v. Philadelphia Electric Co., 521 F. 2d 360 (1975), where the court had stated:
“In the absence of unusual or harsh circumstances, we believe that the presence of a counterclaim, which could result in a set-off against any amounts due and owing to the plaintiff, weighs heavily against the grant of 54 (b) certification.” Id., at 366 (footnote omitted).
In Allis-Chalmers, the court defined unusual or harsh circumstances as those factors “involving considerations of solvency, economic duress, etc.” Id., at 366, n. 14.
In the Third Circuit’s view, the question was which of the parties should have the benefit of the amount of the balance due pending final resolution of the litigation. The court held that AUis-Chalmers dictated “that the matter remain in status quo when non-frivolous counterclaims are pending, and in the absence of unusual or harsh circumstances.” 597 F. 2d 35, 36 (1979) (per curiam). The Court of Appeals acknowledged that Curtiss-Wright’s inability to have use of the money from the judgment might seem harsh, but noted that the same could be said for General Electric if it were forced to pay Curtiss-Wright now but later prevailed on its counterclaims. Ibid.
The Court of Appeals concluded that the District Court had abused its discretion by granting Rule 54 (b) certification in this situation and dismissed the case for want of an appeal-able order; it also directed the District Court to vacate its Rule 54 (b) determination of finality. Curtiss-Wright’s petition for rehearing and suggestion for rehearing en banc were denied. 599 F. 2d 1259 (1979). Four judges dissented from that denial, observing that the case was in conflict with United Bank of Pueblo v. Hartford Accident & Indemnity Co., 529 F. 2d 490 (CA10 1976). We reverse.
II
Nearly a quarter of a century ago, in Sears, Roebuck & Co. v. Mackey, 351 U. S. 427 (1956), this Court outlined the steps to be followed in making determinations under Rule 54 (b). A district court must first determine that it is dealing with a “final judgment.” It must be a “judgment” in the sense that it is a decision upon a cognizable claim for relief, and it must be “final” in the sense that it is “an ultimate disposition of an individual claim entered in the course of a multiple claims action.” 351 U. S., at 436.
Once having found finality, the district court must go on to determine whether there is any just reason for delay. Not all final judgments on individual claims should be immediately appealable, even if they are in some sense separable from the remaining unresolved claims. The function of the district •court under the Rule is to act as a “dispatcher.” Id., at 435. It is left to the sound judicial discretion of the district court to determine the “appropriate time” when each final decision in a multiple claims action is ready for appeal. Ibid. This discretion is to be exercised “in the interest of sound judicial administration.” Id., at 437.
Thus, in deciding whether there are no just reasons to delay the appeal of individual final judgments in a setting such as this, a district court must take into account judicial administrative interests as well as the equities involved. Consideration of the former is necessary to assure that application of the Rule effectively “preserves the historic federal policy against piecemeal appeals.” Id., at 438. It was therefore proper for the District Judge here to consider such factors as whether the claims under review were separable from the others remaining to be adjudicated and whether the nature of the claims already determined was such that no appellate court would have to decide the same issues more than once even if there were subsequent appeals.-
Here the District Judge saw no sound reason to delay appellate resolution of the undisputed claims already adjudicated. The contrary conclusion of the Court of Appeals was strongly influenced by the existence of nonfrivolous counterclaims. The mere presence of such claims, however, does not render a Rule 54 (b) certification inappropriate. If it did, Rule 54 (b) would lose much of its utility. In Cold Metal Process Co. v. United Engineering & Foundry Co., 351 U. S. 445 (1956), this Court explained that counterclaims, whether compulsory or permissive, present no special problems for Rule 54 (b) determinations; counterclaims are not to be evaluated differently from other claims. 351 U. S., at 452. Like other claims, their significance for Rule 54 (b) purposes turns on their interrelationship with the claims on which certification is sought. Here, the District Judge determined that General Electric’s counterclaims were severable from the claims which had been determined in terms of both the factual and the legal issues involved. The Court of Appeals did not conclude otherwise.
What the Court of Appeals found objectionable about the District Judge’s exercise of discretion was the assessment of the equities involved. .The Court of Appeals concluded that the possibility of a setoff required that the status quo be maintained unless petitioner could show harsh or unusual circumstances; it held that such a showing had not been made in the District Court.
This holding reflects a misinterpretation of the standard of review for Rule 54 (b) certifications and a misperception of the appellate function in such cases. The Court of Appeals relied on a statement of the Advisory Committee on the Rules of Civil Procedure, and its error derives from reading a description in the commentary as a standard of construction. When Rule 54 (b) was amended in 1946, the Notes of the Advisory Committee which accompanied the suggested amendment indicated that the entire lawsuit was generally the appropriate unit for appellate review, “and that this rule needed only the exercise of a discretionary power to afford a remedy in the infrequent harsh case to provide a simple, definite, workable rule.” 28 U. S. C. App., p. 484; 5 F. R. D. 433, 473 (1946). However accurate it may be as a description of cases qualifying for Rule 54 (b) treatment, the phrase “infrequent harsh case” in isolation is neither workable nor entirely reliable as a benchmark for appellate review. There is no indication it was ever intended by the drafters to function as such.
In Sears, the Court stated that the decision to certify was with good reason left to the sound judicial discretion of the district court. At the same time, the Court noted that “ [w] ith equally good reason, any abuse of that discretion remains reviewable by the Court of Appeals.” 351 U. S., at 437 (emphasis added). The Court indicated that the standard against which a district court’s exercise of discretion is to be judged is the “interest of sound judicial administration.” Ibid. Admittedly this presents issues not always easily resolved, but the proper role of the court of appeals is not to reweigh the equities or reassess the facts but to make sure that the conclusions derived from those weighings and assessments are juridically sound and supported by the record.
There are thus two aspects to the proper function of a reviewing court in Rule 54 (b) cases. The court of appeals must, of course, scrutinize the district court’s evaluation of such factors as the interrelationship of the claims so as to prevent piecemeal appeals in cases which should be reviewed only as single units. But once such juridical concerns have been met, the discretionary judgment of the district court should be given substantial deference, for that court is “the one most likely to be familiar with the case and with any justifiable reasons for delay.” Sears, supra, at 437. The reviewing court should disturb the trial court’s assessment of the equities only if it can say that the judge’s conclusion was clearly unreasonable.
Plainly, sound judicial administration does not require that Rule 54 (b) requests be granted routinely. That is implicit in commending them to the sound discretion of a district court. Because this discretion “is, with good reason, vested by the rule primarily” in the district courts, Sears, supra, at 437, and because the number of possible situations is large, we are reluctant either to fix or sanction narrow guidelines fof the district courts to follow. We are satisfied, however, that on the record here the District Court’s assessment of the equities was reasonable.
One of the equities which the District Judge considered was the difference between the statutory and market rates of interest. Respondent correctly points out that adjustment of the statutory pre judgment interest rate is a matter within the province of the legislature, but that fact does not make the existing differential irrelevant for Rule 54 (b) purposes. If the judgment is otherwise certifiable, the fact that a litigant who has successfully reduced his claim to judgment stands to lose money because of the difference in interest rates is surely not a “just reason for delay.”
The difference between the pre judgment and market interest rates was not the only factor considered by the District Court. The court also noted that the debts in issue were liquidated and large, and that absent Rule 54 (b) certification they would not be paid for “many months, if not years” because the rest of the litigation could be expected to continue for that period of time. The District Judge had noted earlier in his opinion on the merits of the release clause issue that respondent General Electric contested neither the amount of the debt nor the fact that it must eventually be paid. App. 164a-172a. The only contest was over the effect of the release clause on the timing of the payment, an isolated and strictly legal issue on which summary judgment had been entered against respondent.
The question before the District Court thus came down to which of the parties should get the benefit of the difference between the prejudgment and market rates of interest on debts admittedly owing and adjudged to be due while unrelated claims were litigated. The central factor weighing in favor of General Electric was that its pending counterclaims created the possibility of a setoff against the amount it owed petitioner. This possibility was surely not an insignificant factor, especially since the counterclaims had survived a motion to dismiss for failure to state a claim. Id., at 173a^l74a. But the District Court took this into account when it determined that both litigants appeared to be in financially sound condition, and that Curtiss-Wright would be able to satisfy a judgment on the counterclaims should any be entered.
The Court of Appeals concluded that this was not enough, and suggested that the presence of such factors as economic duress and insolvency would be necessary to qualify the judgment for Rule 54 (b) certification. 597 F. 2d, at 36. But if Curtiss-Wright were under a threat of insolvency, that factor alone would weigh against qualifying; that very threat would cast doubt upon Curtiss-Wright’s capacity to produce all or part,of the $19 million should General Electric prevail on some of its counterclaims. Such a showing would thus in fact be self-defeating.
Nor is General Electric’s solvency a dispositive factor; if its financial position were such that a delay in entry of judgment on Curtiss-Wright’s claims would impair Curtiss-Wright’s ability to collect on the judgment, that would weigh in favor of certification. But the fact that General Electric is capable of paying either now or later is not a “just reason for delay.” At most, as the District Court found, the fact that neither party is or will become insolvent renders that factor neutral in a proper weighing of the equities involved.
The question in cases such as this is likely to be close, but the task of weighing and balancing the contending factors is peculiarly one for the trial judge, who can explore all the facets of a case. As we have noted, that assessment merits substantial deference on review. Here, the District Court’s assessment of the equities between the parties was based on an intimate knowledge of the case and is a reasonable one. The District Court having found no other reason justifying delay, we conclude that it did not abuse its discretion in granting petitioner’s motion for certification under Rule 54 (b).
Accordingly, the judgment of the Court of Appeals is vacated, and the case is remanded for proceedings consistent with this opinion.
It is so ordered.
This was the second motion by Curtiss-Wright for Rule 54 (b) certification. An earlier motion was denied by the District Court because at that time the matter of prejudgment interest had not yet been resolved.
We do not suggest that the presence of one of these factors would necessarily mean that Rule 54 (b) certification would be improper. It would, however, require the district court to find a sufficiently important reason for nonetheless granting certification. For example, if the district court concluded that there was a possibility that an appellate court would have to face the same issues on a subsequent appeal, this might perhaps be offset by a finding that an appellate resolution of the certified claims would facilitate a settlement of the remainder of the claims. See Cold Metal Process Co. v. United Engineering & Foundry Co., 351 U. S. 445, 450, n. 5 (1956).
We note that Federal Rule of Civil Procedure 62 (h) allows a court certifying a judgment under Rule 54 (b) to stay its enforcement until the entering of a subsequent judgment or judgments. Rule 62 (h) also states that the court “may prescribe such conditions as are necessary to secure the benefit thereof to the party in whose favor the judgment is entered.” Under this Rule, we assume it would be within the power of the District Court to protect all parties by having the losing party deposit the amount of the judgment with the court, directing the Clerk to purchase high yield government obligations and to hold them pending the outcome of the case. In this way, valid considerations of economic duress and solvency, which do not affect the juridical considerations involved in a Rule 54 (b) determination, can be provided for without preventing Rule 54 (b) certification.
In the instant case, after certifying the judgment as final under Rule 54 (b), the District Court granted respondent’s motion for a stay of judgment without bond, but only pending resolution of the appeal. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari. | What reason, if any, does the court give for granting the petition for certiorari? | [
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10
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CAMPBELL v. LOUISIANA
No. 96-1584.
Argued January 20, 1998
Decided April 21, 1998
Kennedy, J., delivered the opinion for a unanimous Court with respect to Parts I, II, IV, and V, and the opinion of the Court with respect to Part III, in which Rehnquist, C. J., and Stevens, O’Connor, Souter, Ginsburg, and Breyer, JJ., joined. Thomas, J., filed an opinion concurring in part and dissenting in part, in which SCALIA, J., joined, post, p. 403.
Dmitrc I. Burnes argued the cause for petitioner. With him on the briefs was Richard'V. Burnes.
Richard P. leyoub, Attorney General of Louisiana, argued the cause for respondent. With him on the brief were Kathleen E. Petersen and Mary Ellen Hunley, Assistant Attorneys General, and Paul R. Baier.
Joshua L. Dratel, Lisa Kemler, and Richard A. Greenberg filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging reversal.
Justice Kennedy
delivered the opinion of the Court.
We must decide whether a white criminal defendant has standing to object to discrimination against black persons in the selection of grand jurors. Finding he has the requisite standing to raise equal protection and due process claims, we reverse and remand.
I
A grand jury in Evangeline Parish, Louisiana, indicted petitioner Terry Campbell on one count of second-degree murder. Campbell, who is white, filed a timely pretrial motion to quash the indictment on the grounds the grand jury was constituted in violation of his equal protection and due process rights under the Fourteenth Amendment and in violation of the Sixth Amendment’s fair-cross-section requirement. Campbell alleged a longstanding practice of racial discrimination in the selection of grand jury forepersons in the parish. His sole piece of evidence is that, between January 1976 and August 1993, no black person served as a grand jury foreperson in the parish, even though more than 20 percent of the registered voters were black persons. See Brief for Petitioner 16. The State does not dispute this evidence. The trial judge refused to quash the indictment because “Campbell, being a white man accused of killing another white man,” lacked standing to complain “where all of the forepersons were white.” App. to Pet. for Cert. G-33.
After Campbell’s first trial resulted in a mistrial, he was retried, convicted of second-degree murder, and sentenced to life in prison without possibility of parole. Campbell renewed his challenge to the grand jury foreperson selection procedures in a motion for new trial, which was denied. See id., at 1-2. The Louisiana Court of Appeal reversed, because, under our decision in Powers v. Ohio, 499 U. S. 400 (1991), Campbell had standing to object to the alleged discrimination even though he is white. 651 So. 2d 412 (1995). The Court of Appeal remanded the ease for an evidentiary hearing because it found Campbell’s evidence of discrimination inadequate. Id., at 413.
The Louisiana Supreme Court reversed. It distinguished Powers as turning on the “considerable and substantial impact” that a prosecutor’s discriminatory use of peremptory challenges has on a defendant’s trial as well as on the integrity of the judicial system. See 661 So. 2d 1321, 1324 (1995). The court declined to extend Powers to a claim of discrimination in the selection of a grand jury foreperson. It also found Hobby v. United States, 468 U. S. 339 (1984), did not afford Campbell standing to raise a due process objection' In Hobby, this Court held no relief could be granted to a white defendant even if his due process rights were violated by discrimination in the selection of a federal grand jury foreperson. Noting that Hobby turned on the ministerial nature of the federal grand jury foreperson’s duties, the Louisiana Supreme Court held “[t]he role of the grand jury foreman in Louisiana appears to be similarly ministerial” such that any discrimination “has little, if any, effect on the defendant’s due process right of fundamental fairness.” 661 So. 2d, at 1S24. Because the Court of Appeal had not addressed Campbell’s other asserted points of error, the Louisiana Supreme Court remanded the ease. After the Court of Appeal rejected Campbell’s remaining claims, 673 So. 2d 1061 (1996), the Louisiana Supreme Court refused to reconsider its ruling on the grand jury issue, 685 So. 2d 140 (1997). We granted certiorari to address the narrow question of Campbell’s standing to raise equal protection, due process, and fair-cross-section claims. 521 U. S. 1151 (1997).
II
As an initial matter, we note Campbell complains about more than discrimination in the selection of his grand jury foreperson; he alleges that discrimination shaped the composition of the grand jury itself. In the federal system and in most States which use grand juries, the foreperson is selected from the ranks of the already seated grand jurors. See 1 S. Beale, W. Bryson, J. Felman, & M. Elston, Grand Jury Law and Practice §4:6, pp. 4-20 to 4-21 (2d ed. 1997) (either the judge selects the foreperson or fellow grand jurors elect him or her). Under those systems, the title “foreperson” is bestowed on one of the existing grand jurors without any change in the grand jury’s composition. In Louisiana, by contrast, the judge selects the foreperson from the grand jury venire before the remaining members of the grand jury have been chosen by lot. La. Code Crim. Proc. Ann., Art. 413(B) (West Supp. 1997); see also 1 Beale, supra, at 4-22, n. 11 (Ohio, Oklahoma, Tennessee, and Virginia use procedures similar to Louisiana’s). In addition to his other duties, the foreperson of the Louisiana grand jury has the same full voting powers as other grand jury members. As a result, when the Louisiana judge selected the foreperson, he also selected one member of the grand jury outside of the drawing system used to compose the balance of that body. These considerations require us to treat the ease as one alleging discriminatory selection of grand jurors.
r-H HH J — I
Standing to litigate often turns on imprecise distinctions and requires difficult line-drawing. On occasion, however, we can ascertain standing with relative ease by applying rules established in prior cases. See Allen v. Wright, 468 U. S. 787, 751 (1984). Campbell’s equal protection claim is such an instance.
In Powers v. Ohio, supra, we found a white defendant had standing to challenge racial discrimination against black persons in the use of peremptory challenges. We determined the defendant himself could raise the equal protection rights of the excluded jurors. Recognizing our general reluctance to permit a litigant to assert the rights of a third party, we found three preconditions had been satisfied: (1) the defendant suffered an “injury in fact”; (2) he had a “close relationship” to the excluded jurors; and (3) there was some hindrance to the excluded jurors asserting their own rights. Powers, supra, at 411 (citing Singleton v. Wulff, 428 U. S. 106 (1976)). We concluded a white defendant suffers a serious injury in fact because discrimination at the voir dire stage “‘easts doubt on the integrity of the judicial process’ ... and places the fairness of a criminal proceeding in doubt.” 499 U. S., at 411. This cloud of doubt deprives the defendant of the certainty that a verdict in his case “is given in accordance with the law by persons who are fair.” Id., at 413. Second, the excluded juror and criminal defendant have a close relationship: They share a common interest in eliminating discrimination, and the criminal defendant has an incentive to serve as an effective advocate because a victory may result in overturning his conviction. Id., at 413-414. Third, given the economic burdens of litigation and the small financial reward available, “a juror dismissed because of race probably will leave the courtroom possessing little incentive to set in motion the arduous process needed to vindicate his own rights.” Id., at 415. Upon consideration of these factors, we concluded a white defendant had standing to bring an equal protection challenge to racial discrimination against black persons in the petit jury selection process.
Although Campbell challenges discriminatory selection of grand jurors, rather than petit jurors, Powers' reasoning applies to this case on the question of standing. Our prior cases have not decided whether a white defendant’s own equal protection rights are violated when the composition of his grand jury is tainted by discrimination against black persons. We do not need to address this issue because Campbell seeks to assert the well-established equal protection rights of black persons not to be excluded from grand jury service on the basis of their race. See Tr. 9 (Dec. 2, 1993); see also Carter v. Jury Comm’n of Greene Cty., 396 U. S. 320, 329-330 (1970) (racial exclusion of prospective grand and petit jurors violates their constitutional rights). Campbell satisfies the three preconditions for third-party standing outlined in Powers.
Regardless of his or her skin color, the accused suffers a significant injury in fact when the composition of the grand jury is tainted by racial discrimination. “[Discrimination on the basis of race in the selection of members of a grand jury . . . strikes at the fundamental values of our judicial system” because the grand jury is a central component of the criminal justice process. Rose v. Mitchell, 443 U. S. 545, 556 (1979). The Fifth Amendment requires the Federal Gov-eminent to use a grand jury to initiate a prosecution, and 22 States adopt a similar rule as a matter of state law. See 1 Beale, supra, §1:2, at 1-3; see also Hurtado v. California, 110 U. S. 516 (1884) (Fifth Amendment’s grand jury requirement is not binding on the States). The grand jury, like the petit jury, “acts as a vital check against the wrongful exercise of power by the State and its prosecutors.” Powers, supra, at 411. It controls not only the initial decision to indict, but also significant decisions such as how many counts to charge and whether to charge a greater or lesser offense, including the important decision to charge a capital crime. See Vasquez v. Hillery, 474 U. S. 254, 263 (1986). The integrity of these decisions depends on the integrity of the process used to select the grand jurors. If that process is infected with racial discrimination, doubt is cast over the fairness of all subsequent decisions. See Rose, supra, at 555-556 (“Selection of members of a grand jury because they are of one race and not another destroys the appearance of justice and thereby easts doubt on the integrity of the judicial process”).
Powers emphasized the harm inflicted when a prosecutor discriminates by striking racial minorities in open court and in front of the entire jury pool. The Court expressed concern that this tactic might encourage the jury to be lawless in its own actions. See 499 U. S., at 412-413. The State suggests this sort of harm is not inflicted when a single grand juror is selected based on racial prejudice because the discrimination is invisible to the grand jurors on that panel; it only becomes apparent when a pattern emerges over the course of years. See Brief for Respondent 16. This argument, however, underestimates the seriousness of the allegations. In Powers, even if the prosecutor had been motivated by racial prejudice, those responsible for the defendant’s fate, the judge and the jury, had shown no actual bias. If, by contrast, the allegations here are true, the impartiality and discretion of the judge himself would be called into question.
The remaining two preconditions to establish third-party standing are satisfied with little trouble. We find no reason why a white defendant would be any less effective as an advocate for excluded grand jurors than for excluded petit jurors. See Powers, supra, at 413-414. The defendant and the excluded grand juror share a common interest in eradicating discrimination from the grand jury selection process, and the defendant has a vital interest in asserting the excluded juror’s rights because his conviction may be overturned as a result. See Vasquez, supra, at 264; Rose, supra, at 551; Cassell v. Texas, 339 U. S. 282 (1950). The State contends Campbell’s connection to “the excluded class of . . . jurors . . . who were not called to serve ... for the prior 1614 years is tenuous, at best.” Brief for Respondent 22. This argument confuses Campbell’s underlying claim with the evidence needed to prove it. To assert the rights of those venirepersons who were excluded from serving on the grand jury in his case, Campbell must prove their exclusion was on account of intentional discrimination. He seeks to do so based on past treatment of similarly situated venire-persons in other cases, see Castaneda v. Partida, 430 U. S. 482, 494 (1977), but this does not mean he seeks to assert those venirepersons’ rights. As a final matter, excluded grand jurors have the same economic disincentives to assert their own rights as do excluded petit jurors. See Powers, supra, at 415. We find Campbell, like any other white defendant, has standing to raise an equal protection challenge to discrimination against black persons in the selection of his grand jury.
IV
It is axiomatic that one has standing to litigate his or her own due process rights. We need not explore the nature and extent of a defendant’s due process rights when he alleges discriminatory selection of grand jurors, and confine our holding to his standing to raise the issue. Our decision in Peters v. Kiff addressed the due process question, although a majority of Justices could not agree on a comprehensive statement of the rule or an appropriate remedy for any violation. See 407 U. S. 493, 504 (1972) (opinion of Marshall, J.) (“[Wjhatever his race, a criminal defendant has standing to challenge the system used to select his grand... jury, on the ground that it arbitrarily excludes ... members of any race, and thereby denies him due process of law”); id., at 507 (White, J., joined by Brennan and Powell, JJ., concurring in judgment) (“[Tjhe strong statutory policy of [18 U. S. C.] §243, which reflects the central concern of the Fourteenth Amendment” permits a white defendant to challenge discrimination in grand jury selection). Our more recent decision in Hobby v. United States proceeded on the implied assumption that a white defendant had standing to raise a due process objection to discriminatory appointment of a federal grand jmy foreperson and skipped ahead to the question whether a remedy was available. 468 U. S., at 350. It is unnecessary here to discuss the nature and full extent of due process protection in the context of grand jmy selection. That issue, to the extent it is still open based upon our earlier precedents, should be determined on the merits, assuming a court finds it necessary to reach the point in light of the concomitant equal protection claim. The relevant assumption of Hobby, and our holding here, is that a defendant has standing to litigate whether his conviction was procured by means or procedures which contravene due process.
The Louisiana Supreme Court erred in reading Hobby to foreclose Campbell’s standing to bring a due process challenge. 661 So. 2d, at 1324. In Hobby, we held discrimination in the selection of a federal grand jury foreperson did not infringe principles of fundamental fairness because the foreperson’s duties were “ministerial.” See Hobby, supra, at 345-346. In this case, the Louisiana Supreme Court decided a Louisiana grand jury foreperson’s duties were ministerial too, but then couched its decision in terms of Campbell’s lack of standing to litigate a due process claim. 661 So. 2d, at 1324.
The Louisiana Supreme Court was wrong on both counts. Its interpretation of Hobby is inconsistent with the implicit assumption of standing we have just noted and with our explicit reasoning in that case. In Hobby, a federal grand jury foreperson was selected from the existing grand jurors, so the decision to pick one grand juror over another, at least arguably, affected the defendant only if the foreperson was given some significant duties that he would not have had as a regular grand juror. See swpra, at 396. Against this background, the Court rejected the defendant’s claim because the ministerial role of a federal grand jury foreperson “is not such a vital one that discrimination in the appointment of an individual to that post significantly invades” due process. Hobby, supra, at 346. Campbell’s challenge is different in kind and degree because it implicates the impermissible appointment of a member of the grand jury. See supra, at 396-397. What concerns Campbell is not the foreperson’s performance of his duty to preside, but performance as a grand juror, namely, voting to charge Campbell with second-degree murder.
The significance of this distinction was acknowledged by Hobby’s discussion of a previous ease, Rose v. Mitchell, 443 U. S. 545 (1979). In Rose, we assumed relief could be granted for a constitutional challenge to discrimination in the appointment of a state grand jury foreperson. See id., at 556. Hobby distinguished Rose in part because it involved Tennessee’s grand jury system. Under the Tennessee law then in effect, 12 members of the grand jury were selected at random, and then the judge appointed a 13th member who also served as foreperson. See Hobby, 468 U. S., at 347. As a result, Hobby pointed out discrimination in selection of the foreperson in Tennessee was much more serious than in the federal system because the former can affect the composition of the grand jury whereas the latter cannot: “So long as the grand jury itself is properly constituted, there is no risk that the appointment of any one of its members as foreman will distort the overall composition of the array or otherwise taint the operation of the judicial process.” Id., at 348. By its own terms, then, Hobby does not address a claim like Campbell’s.
V
One of the questions raised on certiorari is whether Campbell also has standing to raise a fair-cross-section claim. It appears neither the Louisiana Supreme Court nor the Louisiana Court of Appeal discussed this contention. “With 'very rare exceptions,’... we will not consider a petitioner’s federal claim unless it was either addressed by or properly presented to the state court that rendered the decision we have been asked to review.” Adams v. Robertson, 520 U. S. 83, 86 (1997) (per curiam). Campbell has made no effort to meet his burden of showing this issue was properly presented to the Louisiana appellate courts, even after the State pointed out this omission before this Court. See Brief for Respondent 29-30. In fact, Campbell devotes no more than one page of text in his brief to his fair-eross-seetion claim. See Brief for Petitioner 31-32. We decline to address the issue.
The judgment of the Louisiana Supreme Court is reversed. The case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state of the court in which the case originated. Consider the District of Columbia as a state. | What is the state of the court in which the case originated? | [
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21
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WASHINGTON v. RECUENCO
CERTIORARI TO THE SUPREME COURT OP WASHINGTON
No. 05-83.
Argued April 17, 2006
Decided June 26, 2006
James M. Whisman argued the cause for petitioner. With him on the briefs were Norm Maleng and Brian M. McDonald.
Patricia A. Millett argued the cause for the United States as amicus curiae urging reversal. On the brief were Solicitor General Clement, Assistant Attorney General Fisher, Deputy Solicitor General Dreeben, and Kannon K. Shanmugam.
Gregory C. Link, by appointment of the Court, 546 U. S. 1087, argued the cause for respondent. With him on the brief were Thomas M. Kummerow and Jeffrey L. Fisher.
Briefs of amici curiae urging reversal were filed for the State of Alabama et al. by John W. Suthers, Attorney General of Colorado, Allison H. Eid, Solicitor General, and John D. Seidel, Assistant Attorney General, by Christopher L. Morano, Chief State’s Attorney of Connecticut, and by the Attorneys General for their respective States as follows: Troy King of Alabama, David W. Márquez of Alaska, Terry Goddard of Arizona, Mike Beebe of Arkansas, Bill Lockyer of California, Carl C. Danberg of Delaware, Mark J. Bennett of Hawaii, Lawrence G. Wasden of Idaho, Thomas J. Miller of Iowa, Phill Kline of Kansas, G. Steven Rowe of Maine, Michael A. Cox of Michigan, Mike McGrath of Montana, Jim Petro of Ohio, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Lawrence E. Long of South Dakota, Paul G. Summers of Tennessee, Mark L. Shurtleff of Utah, and William Sorrell of Vermont; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson.
Robert N. Hochman, Pamela Harris, and Sheryl Gordon McCloud filed a brief for the National Association of Criminal Defense Lawyers et al. as amici curiae urging affirmance.
Justice Thomas
delivered the opinion of the Court.
Respondent Arturo Recuenco was convicted of assault in the second degree based on the jury’s finding that he assaulted his wife “with a deadly weapon.” App. 18. The trial court applied a 3-year firearm enhancement to respondent’s sentence based on its own factual findings, in violation of Blakely v. Washington, 542 U. S. 296 (2004). On appeal, the Supreme Court of Washington vacated the sentence, concluding that Blakely violations can never be harmless. We granted certiorari to review this conclusion, 546 U. S. 960 (2005), and now reverse.
I
On September 18, 1999, respondent fought with his wife, Amy Recuenco. After screaming at her and smashing their stove, he threatened her with a gun. Based on this incident, the State of Washington charged respondent with assault in the second degree, i. e., “intentiona[l] assault . . . with a deadly weapon, to-wit: a handgun.” App. 3. Defense counsel proposed, and the court accepted, a special verdict form that directed the jury to make a specific finding whether respondent was “armed with a deadly weapon at the time of the commission of the crime.” Id., at 13. A “firearm” qualifies as a “deadly weapon” under Washington law. Wash. Rev. Code §9.94A.602 (2004). But nothing in the verdict form specifically required the jury to find that respondent had engaged in assault with a “firearm,” as opposed to any other kind of “deadly weapon.” The jury returned a verdict of guilty on the charge of assault in the second degree, and answered the special verdict question in the affirmative. App. 10, 13.
At sentencing, the State sought the low end of the standard range sentence for assault in the second degree (three months). It also sought a mandatory 3-year enhancement because respondent was armed with a “firearm,” § 9.94A.533(3)(b), rather than requesting the 1-year enhancement that would attend the jury’s finding that respondent was armed with a deadly weapon, § 9.94A.533(4)(b). The trial court concluded that respondent satisfied the condition for the firearm enhancement, and accordingly imposed a total sentence of 39 months.
Before the Supreme Court of Washington heard respondent’s appeal, we decided Apprendi v. New Jersey, 530 U. S. 466 (2000), and Blakely, supra. In Apprendi, we held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U. S., at 490. In Blakely, we clarified that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” 542 U. S., at 303 (emphasis in original). Because the trial court in this case could not have subjected respondent to a firearm enhancement based only on the jury’s finding that respondent was armed with a “deadly weapon,” the State conceded before the Supreme Court of Washington that a Sixth Amendment violation occurred under Blakely. 154 Wash. 2d 156, 162-163, 110 P. 3d 188, 191 (2005). See also Tr. of Oral Arg. 10-11.
The State urged the Supreme Court of Washington to find the Blakely error harmless and, accordingly, to affirm the sentence. In State v. Hughes, 154 Wash. 2d 118, 110 P. 3d 192 (2005), however, decided the same day as the present case, the Supreme Court of Washington declared Blakely error to be “‘structural’ erro[r]” which “‘will always invalidate the conviction.’ ” 154 Wash. 2d, at 142, 110 P. 3d, at 205 (quoting Sullivan v. Louisiana, 508 U. S. 275, 279 (1993)). As a result, the court refused to apply harmless-error analysis to the Blakely error infecting respondent’s sentence. Instead, it vacated his sentence and remanded for sentencing based solely on the deadly weapon enhancement. 154 Wash. 2d, at 164, 110 P. 3d, at 192.
II
Before reaching the merits, we must address respondent’s argument that we are without power to reverse the judgment of the Supreme Court of Washington because that judgment rested on adequate and independent state-law grounds. Respondent claims that at the time of his conviction, Washington state law provided no procedure for a jury to determine whether a defendant was armed with a firearm. Therefore, he contends, it is impossible to conduct harmless-error analysis on the Blakely error in his case. Respondent bases his position on Hughes, in which the Supreme Court of Washington refused to “create a procedure to empanel juries on remand to find aggravating factors because the legislature did not provide such a procedure and, instead, explicitly assigned such findings to the trial court.” 154 Wash. 2d, at 151, 110 P. 3d, at 209. Respondent contends that, likewise, the Washington Legislature provided no procedure by which a jury could decide at trial whether a defendant was armed with a firearm, as opposed to a deadly weapon.
It is far from clear that respondent’s interpretation of Washington law is correct. See State v. Pharr, 131 Wash. App. 119, 124-125, 126 R 3d 66, 69 (2006) (affirming the trial court’s imposition of a firearm enhancement when the jury’s special verdict reflected a finding that the defendant was armed with a firearm). In Hughes, the Supreme Court of Washington carefully avoided reaching the conclusion respondent now advocates, instead expressly recognizing that “[w]e are presented only with the question of the appropriate remedy on remand—we do not decide here whether juries may be given special verdict forms or interrogatories to determine aggravating factors at trial.” 154 Wash. 2d, at 149, 110 R 3d, at 208. Accordingly, Hughes does not appear to foreclose the possibility that an error could be found harmless because the jury which convicted the defendant would have concluded, if given the opportunity, that a defendant was armed with a firearm.
The correctness of respondent’s interpretation of Washington law, however, is not determinative of the question that the Supreme Court of Washington decided and on which we granted review, i. e., whether Blakely error can ever be deemed harmless. If respondent is correct that Washington law does not provide for a procedure by which his jury could have made a finding pertaining to his possession of a firearm, that merely suggests that respondent will be able to demonstrate that the Blakely violation in this particular case was not harmless. See Chapman v. California, 386 U. S. 18, 24 (1967). But that does not mean that Blakely error—which is of the same nature, whether it involves a fact that state law permits to be submitted to the jury or not—is structural, or that we are precluded from deciding that question. Thus, we need not resolve this open question of Washington law.
Ill
We have repeatedly recognized that the commission of a constitutional error at trial alone does not entitle a defendant to automatic reversal. Instead, “ ‘most constitutional errors can be harmless.’ ” Neder v. United States, 527 U. S. 1, 8 (1999) (quoting Arizona v. Fulminante, 499 U. S. 279, 306 (1991)). “ ‘[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other [constitutional] errors that may have occurred are subject to harmless-error analysis.’ ” 527 U. S., at 8 (quoting Rose v. Clark, 478 U. S. 570, 579 (1986)). Only in rare cases has this Court held that an error is structural, and thus requires automatic reversal. In such cases, the error “necessarily render[s] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” Neder, supra, at 9 (emphasis deleted).
We recently considered whether an error similar to that which occurred here was structural in Neder, supra. Neder was charged with mail fraud, in violation of 18 U. S. C. § 1341; wire fraud, in violation of § 1343; bank fraud, in violation of § 1344; and filing a false income tax return, in violation of 26 U. S. C. §7206(1). 527 U. S., at 6. At Neder’s trial, the District Court instructed the jury that it “‘need not consider’” the materiality of any false statements to convict Neder of the tax offenses or bank fraud, because materiality “‘is not a question for the jury to decide.’” Ibid. The court also failed to include materiality as an element of the offenses of mail fraud and wire fraud. Ibid. We determined that the District Court erred because under United States v. Gaudin, 515 U. S. 506 (1995), materiality is an element of the tax offense that must be found by the jury. We further determined that materiality is an element of the mail fraud, wire fraud, and bank fraud statutes, and thus must be submitted to the jury to support conviction of those crimes as well. Neder, 527 U. S., at 20. We nonetheless held that harmless-error analysis applied to these errors, because “an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” Id., at 9. See also Schriro v. Summerlin, 542 U. S. 348, 355-356 (2004) (rejecting the claim that Ring v. Arizona, 536 U. S. 584 (2002), which applied Apprendi to hold that a jury must find the existence of aggravating factors necessary to impose the death penalty, was a “ ‘ “watershed rul[e] of criminal procedure” implicating the fundamental fairness and accuracy of the criminal proceeding,’” in part because we could not “confidently say that judicial factfinding seriously diminishes accuracy”).
The State and the United States urge that this case is indistinguishable from Neder. We agree. Our decision in Apprendi makes clear that “[a]ny possible distinction between an ‘element’ of a felony offense and a ‘sentencing factor’ was unknown to the practice of criminal indictment, trial by jury, and judgment by court as it existed during the years surrounding our Nation’s founding.” 530 U. S., at 478 (footnote omitted). Accordingly, we have treated sentencing factors, like elements, as facts that have to be tried to the jury and proved beyond a reasonable doubt. Id., at 483-484. The only difference between this case and Neder is that in Neder, the prosecution failed to prove the element of materiality to the jury beyond a reasonable doubt, while here the prosecution failed to prove the sentencing factor of “armed with a firearm” to the jury beyond a reasonable doubt. Assigning this distinction constitutional significance cannot be reconciled with our recognition in Apprendi that elements and sentencing factors must be treated the same for Sixth Amendment purposes.
Respondent attempts to distinguish Neder on the ground that, in that case, the jury returned a guilty verdict on the offense for which the defendant was sentenced. Here, in contrast, the jury returned a guilty verdict only on the offense of assault in the second degree, and an affirmative answer to the sentencing question whether respondent was armed with a deadly weapon. Accordingly, respondent argues, the trial court’s action in his case was the equivalent of a directed verdict of guilt on an offense (assault in the second degree while armed with a firearm) greater than the one for which the jury convicted him (assault in the second degree while armed with any deadly weapon). Rather than asking whether the jury would have returned the same verdict absent the error, as in Neder, respondent contends that applying harmless-error analysis here would “ ‘hypothesize a guilty verdict that [was] never in fact rendered,’ ” in violation of the jury-trial guarantee. Brief for Respondent 27 (quoting Sullivan, 508 U. S., at 279).
We find this distinction unpersuasive. Certainly, in Neder, the jury purported to have convicted the defendant of the crimes with which he was charged and for which he was sentenced. However, the jury was precluded “from making a finding on the actual element of the offense.” 527 U. S., at 10. Because Neder’s jury did not find him guilty of each of the elements of the offenses with which he was charged, its verdict is no more fairly described as a complete finding of guilt of the crimes for which the defendant was sentenced than is the verdict here. See id., at 31 (Scalia, J., concurring in part and dissenting in part) (“[S]ince all crimes require proof of more than one element to establish guilt... it follows that trial by jury means determination by a jury that all elements were proved. The Court does not contest this”). Put another way, we concluded that the error in Neder was subject to harmless-error analysis, even though the District Court there not only failed to submit the question of materiality to the jury, but also mistakenly concluded that the jury’s verdict was a complete verdict of guilt on the charges and imposed sentence accordingly. Thus, in order to find for respondent, we would have to conclude that harmless-error analysis would apply if Washington had a crime labeled “assault in the second degree while armed with a firearm,” and the trial court erroneously instructed the jury that it was not required to find a deadly weapon or a firearm to convict, while harmless error does not apply in the present case. This result defies logic.
* * *
Failure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error. Accordingly, we reverse the judgment of the Supreme Court of Washington and remand the case for further proceedings not inconsistent with this opinion.
It is so ordered.
Respondent’s argument that, as a matter of state law, the Blakely v. Washington, 542 U. S. 296 (2004), error was not harmless remains open to him on remand.
See Neder v. United States, 527 U. S. 1, 8 (1999) (citing Johnson v. United States, 520 U. S. 461, 468 (1997), in turn citing Gideon v. Wainwright, 372 U. S. 335 (1963) (complete denial of counsel); Tumey v. Ohio, 273 U. S. 510 (1927) (biased trial judge); Vasquez v. Hillery, 474 U. S. 254 (1986) (racial discrimination in selection of grand jury); McKaskle v. Wiggins, 465 U. S. 168 (1984) (denial of self-representation at trial); Waller v. Georgia, 467 U. S. 39 (1984) (denial of public trial); Sullivan v. Louisiana, 508 U. S. 275 (1993) (defective reasonable-doubt instruction)).
Respondent also attempts to evade Neder by characterizing this as a case of charging error, rather than of judicial factfinding. Brief for Respondent 16-19. Because the Supreme Court of Washington treated the error as one of the latter type, we treat it similarly. See 154 Wash. 2d 156, 159-161, 110 P. 3d 188, 189-190 (2005) (considering “whether imposition of a firearm enhancement without a jury finding that Recuenco was armed with a firearm beyond a reasonable doubt violated Recueneo’s Sixth Amendment right to a jury trial as defined by Apprendi v. New Jersey, 530 U. S. 466 [(2000)], and its progeny,” and whether the Apprendi and Blakely error, if uninvited, could “be deemed harmless”).
The Supreme Court of Washington reached the contrary conclusion based on language from Sullivan. See State v. Hughes, 154 Wash. 2d 118, 144, 110 P. 3d 192, 205 (2005) (“ ‘There being no jury verdict of guilty-beyond-a-reasonable-doubt, the question whether the same verdict of guilty-beyond-a-reasonable-doubt would have been rendered absent the constitutional error is utterly meaningless. There is no object, so to speak, upon which harmless-error scrutiny can operate’” (quoting Sullivan, 508 U. S., at 280)). Here, as in Neder, “this strand of reasoning in Sullivan does provide support for [respondent]’s position.” 527 U. S., at 11. We recognized in Neder, however, that a broad interpretation of our language from Sullivan is inconsistent with our case law. 527 U. S., at 11-15. Because the jury in Neder, as here, failed to return a complete verdict of guilty beyond a reasonable doubt, our rejection of Neder’s proposed application of the language from Sullivan compels our rejection of this argument here. | What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the case was heard by a three-judge federal district court. Beginning in the early 1900s, Congress required three-judge district courts to hear certain kinds of cases. More modern-day legislation has reduced the kinds of lawsuits that must be heard by such a court. As a result, the frequency is less for the Burger Court than for the Warren Court, and all but nonexistent for the Rehnquist and Roberts Courts. | Was the case heard by a three-judge federal district court? | [
"Yes",
"No"
] | [
1
] | sc_threejudgefdc |
BLUM, COMMISSIONER, NEW YORK STATE DEPARTMENT OF SOCIAL SERVICES v. STENSON
No. 81-1374.
Argued January 11, 1984
Decided March 21, 1984
Powell, J., delivered the opinion for a unanimous Court. Brennan, J., filed a concurring opinion, in which Marshall, J., joined, post, p. 902.
Melvyn R. Leventhal, Deputy First Assistant Attorney General of New York, argued the cause for petitioner. With him on the briefs were Robert Abrams, Attorney General, Dennis H. Allee, First Assistant Attorney General, Peter H. Schiff, George D. Zuckerman, Deputy Solicitor General, and Marion R. Buchbinder and Frederick K. Mehlman, Assistant Attorneys General.
Leon Silverman argued the cause for respondent. With him on the brief were Kalman Finkel, Arthur J. Fried, John E. Kirklin, and Linda R. Blumkin.
Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Lee, Assistant Attorney General McGrath, Deputy Solicitor General Getter, Deputy Assistant Attorney General Kuhl, Joshua I. Schwartz, William Ranter, and Mark W. Pennak; for the State of Alabama et al. by Kenneth 0. Eikenberry, Attorney General of Washington, and Thomas F. Carr, Senior Assistant Attorney General, joined by the Attorneys General for their respective States as follows: Charles A. Graddick of Alabama, Norman C. Gorsuch of Alaska, Robert K. Corbin of Arizona, Duane Woodard of Colorado, Joseph Lieberman of Connecticut, Jim Smith of Florida, Michael J. Bowers of Georgia, Tany S. Hong of Hawaii, Jim Jones of Idaho, Neil Hartigan of Illinois, Linley E. Pearson of Indiana, Thomas J. Miller of Iowa, Robert T. Stephan of Kansas, William J. Guste, Jr., of Louisiana, Stephen H. Sachs of Maryland, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, JohnD. Ashcroft of Missouri, Michael T. Greely of Montana, Paul L. Douglas of Nebraska, Brian McKay of Nevada, Gregory H. Smith of New Hampshire, Irwin I. Kim-melman of New Jersey, Rufus L. Edmisten of North Carolina, Robert 0. Wefald of North Dakota, Anthony J. Celebrezze, Jr., of Ohio, Michael Turpén of Oklahoma, David B. Frohnmayer of Oregon, LeRoy S. Zimmerman of Pennsylvania, Dennis J. Roberts II of Rhode Island, Mark V. Meierhenry of South Dakota, William M. Leech, Jr., of Tennessee, David L. Wilkinson of Utah, John J. Easton of Vermont, Gerald L. Baliles of Virginia, Chauncey H. Browning of West Virginia, Bronson C. La Fol-lette of Wisconsin, and Archie G. McClintock of Wyoming; and for the Commonwealth of Massachusetts by Francis X. Bellotti, Attorney General, Thomas R. Kiley, First Assistant Attorney General, and Judith S. Yogman and Carl Valvo, Assistant Attorneys General.
Briefs of amici curiae urging affirmance were filed for the Alliance for Justice by Laura Macklin; for the California Coalition of Welfare Rights Organizations by Mary S. Burdick and Rickard A. Rothschild; for the NAACP Legal Defense and Educational Fund, Inc., et al. by Jack Green-berg, James M. Nabrit III, Charles Stephen Ralston, Steven L. Winter, Fred N. Fishman, Robert H. Kapp, Norman Redlich, William L. Robinson, Norman J. Chachkin, E. Richard Larson, Burt Neubome, Kenneth Kimerling, Joaquin G. Avila, and Morris J. Bailer; for the National Education Association et al. by Michael H. Gottesman, Robert M. Weinberg, Julia Penny Clark, Robert H. Chanin, and Lawrence A. Poltrock; for the New York State Bar Association et al. by Haliburton Fales II; and for Oliver Hill et al. by Armand Derfner and Stephen P. Berzon.
Justice Powell
delivered the opinion of the Court.
Title 42 U. S. C. § 1988 (1976 ed., Supp. V) provides that in federal civil rights actions “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” The initial estimate of a reasonable attorney’s fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate. Hensley v. Eckerhart, 461 U. S. 424 (1983). Adjustments to that fee then may be made as necessary in the particular case. The two issues in this case are whether Congress intended fee awards to nonprofit legal service organizations to be calculated according to cost or to prevailing market rates, and whether, and under what circumstances, an upward adjustment of an award based on prevailing market rates is appropriate under § 1988.
I
A
This suit was brought in 1978 by respondent on behalf of a statewide class of Medicaid recipients pursuant to 42 U. S. C. § 1983 in the District Court for the Southern District of New York. Under New York law, one who is eligible to receive benefits under the Supplemental Security Income (SSI) program, 42 U. S. C. § 1381 et seq. (1976 ed. and Supp. V), automatically is eligible to receive Medicaid benefits. N. Y. Soc. Serv. Law § 363 et seq. (McKinney 1976). Prior to this suit, persons who qualified for Medicaid in this fashion automatically lost their benefits if they thereafter became ineligible for SSI payments. The case was decided on cross-motions for summary judgment after only one set of plaintiff’s interrogatories had been served and answered. On these motions, the District Court certified the class and rendered final judgment in favor of the class.
The court enjoined the prior practice of automatic termination of benefits, and prescribed procedural rights for the certified class that included “(a) an ex parte determination of continued eligibility for Medicaid, independent of eligibility for SSI; (b) timely and adequate notice of such termination; (c) an opportunity for a hearing.” Stenson v. Blum, 476 F. Supp. 1331, 1335 (1979). The Court of Appeals for the Second Circuit affirmed in an unpublished oral opinion from the bench. Affirmance order, Stenson v. Blum, 628 F. 2d 1345, cert. denied, 449 U. S. 885 (1980). Respondent’s subsequent request for an award of reasonable attorney’s fees under § 1988 is the subject of the present case.
B
Throughout this litigation, respondent was represented by attorneys from the Legal Aid Society of New York, a private nonprofit law office. In November 1980, respondent filed a request for attorney’s fees for the period December 1978 through the end of the litigation. Her three attorneys sought payment for some 809 hours of work at rates varying from $95 to $105 per hour. This amounted to approximately $79,312. Respondent’s total fee request, however, reflected a 50% increase in that fee. In her brief to the District Court, respondent explained that such an increase was necessary to compensate for the complexity of the case, the novelty of the issues, and the “great benefit” achieved. The total requested fee amounted to approximately $118,968. Petitioner opposed the fee award on the grounds that the rates were exorbitant, the number of hours charged were unreasonable and duplicative, and the 50% “bonus” was improper.
Petitioner submitted no evidence to support her claim that the hours and rates charged by respondent were unreasonable. Instead, petitioner rested her claim that the hours were duplicative and excessive and the rates exorbitant on arguments contained in her brief to the District Court and on that court’s discretion. Petitioner requested an eviden-tiary hearing on the issue of reasonable billable hours only if the District Court found that the discussion in her brief did not justify reductions in the number of hours charged. Finally, petitioner argued that the 50% “bonus” requested by respondent was improper because it would be paid by the public.
The District Court held that both the hours expended and the rates charged were reasonable. It also held that the fee calculated by multiplying the number of hours times the hourly rates should be increased by the requested 50% because of the quality of representation, the complexity of the issues, the riskiness of success, and the “great benefit to a large class” that was achieved. 512 F. Supp. 680, 685 (1981). The District Court awarded the plaintiff class the requested fee of $118,968.
The Court of Appeals affirmed in an unpublished opinion. No. 81-7385 (CA2, Oct. 19, 1981). Affirmance order, 671 F. 2d 493 (1981). We granted certiorari to consider whether it was proper for the District Court to use prevailing market rates in awarding attorney’s fees to nonprofit legal services organizations and whether the District Court abused its discretion in increasing the fee award above that based on market rates. 461 U. S. 956 (1983).
hH I — I
Petitioner argues that the use of prevailing market rates to calculate attorney’s fees under § 1988 leads to exorbitant fee awards and provides windfalls to civil rights counsel contrary to the express intent of Congress. To avoid this result, petitioner urges this Court to require that all fee awards under § 1988 be calculated according to the cost of providing legal services ráther than according to the prevailing market rate. The Solicitor General, for the United States as amicus curiae, urges the Court to adopt a cost-related standard only for fee awards made to nonprofit legal aid organizations. He argues that market rates reflect the level of compensation necessary to attract profit-making attorneys, but that such rates provide excessive fees to nonprofit counsel. Because market rates incorporate operating expenses that may exceed the expenses of nonprofit legal services organizations, and include an element of profit unnecessary to attract nonprofit counsel, the Solicitor General argues that fee awards based on market rates “confer an unjustified windfall or subsidy upon legal services organizations.” Brief for United States as Amicus Curiae 6.
Resolution of these two arguments begins and ends with an interpretation of the attorney’s fee statute. The Civil Rights Attorney’s Fees Awards Act of 1976, 90 Stat. 2641, 42 U. S. C. § 1988 (1976 ed., Supp. V), authorizes district courts to award a reasonable attorney’s fee to prevailing civil rights litigants. In enacting the statute, Congress directed that attorney’s fees be calculated according to standards currently in use under other fee-shifting statutes:
“It is intended that the amount of fees awarded under [§ 1988] be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases[,] and not be reduced because the rights involved may be nonpecuniary in nature. The appropriate standards, see Johnson v. Georgia Highway Express, 488 F. 2d 714 (5th Cir. 1974), are correctly applied in such cases as Stanford Daily v. Zurcher, 64 F. R. D. 680 (N. D. Cal. 1974); Davis v. County of Los Angeles, 8 E. P. D. ¶9444 (C. D. Cal. 1974); and Swann v. Charlotte-Mecklenburg Board of Education, 66 F. R. D. 483 (W. D. N. C. 1975). These cases have resulted in fees which are adequate to attract competent counsel, but which do not produce windfalls to attorneys.” S. Rep. No. 94-1011, p. 6 (1976).
In all four of the cases cited by the Senate Report, fee awards were calculated according to prevailing market rates. None of these four cases made any mention of a cost-based standard. Petitioner’s argument that the use of market rates violates congressional intent, therefore, is flatly contradicted by the legislative history of § 1988.
It is also clear from the legislative history that Congress did not intend the calculation of fee awards to vary depending on whether plaintiff was represented by private counsel or by a nonprofit legal services organization. The citations to Stanford Daily v. Zurcher, 64 F. R. D. 680 (ND Cal. 1974), and Davis v. County of Los Angeles, 8 EPD ¶9444 (CD Cal. 1974), make this explicit. In Stanford Daily, the court held that it “must avoid . . . decreasing reasonable fees because the attorneys conducted the litigation more as an act of pro bono publico than as an effort at securing a large monetary return.” 64 F. R. D., at 681. In Davis, the court held:
“In determining the amount of fees to be awarded, it is not legally relevant that plaintiffs’ counsel . . . are employed by ... a privately funded non-profit public interest law firm. It is in the interest of the public that such law firms be awarded reasonable attorneys’ fees to be computed in the traditional manner when its counsel perform legal services otherwise entitling them to the award of attorneys’ fees.” 8 EPD, at 5048-5049.
We cannot assume that Congress would endorse the standards used in Johnson v. Georgia Highway Express, Inc., 488 F. 2d 714 (CA5 1974), Stanford Daily, Davis, and Swann v. Charlotte-Mecklenburg Board of Education, 66 F. R. D. 483 (WDNC 1975), if fee awards based on market rates were viewed as the kind of “windfall profits” it expressly intended to prohibit.
The statute and legislative history establish that “reasonable fees” under § 1988 are to be calculated according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or nonprofit counsel. The policy arguments advanced in favor of a cost-based standard should be addressed to Congress rather than to this Court.
Ill
We address now the second question presented: whether a 50% upward adjustment in the fee was — as petitioner argues — an abuse of discretion by the District Court. Petitioner makes two separate but related arguments. First, she asserts that a reasonable attorney’s fee is calculated by multiplying the reasonable number of hours expended times a reasonable hourly rate and that any upward adjustment of that fee is improper. In the alternative, she argues that the 50% upward adjustment in this case constitutes a clear abuse of discretion.
A
Where, as here, resolution of a question of federal law turns on a statute and the intention of Congress, we look first to the statutory language and then to the legislative history if the statutory language is unclear. In actions to enforce federal civil rights, § 1988 authorizes a court, “in its discretion,” to “allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” The legislative history explains that “a reasonable attorney’s fee” is one that is “adequate to attract competent counsel, but . . . [that does] not produce windfalls to attorneys.” S. Rep. No. 94-1011, p. 6 (1976). As noted, the Senate Report identified four cases that had calculated correctly a reasonable attorney’s fee.
In Hensley v. Eckerhart, 461 U. S. 424 (1983), we reviewed the cases cited in the legislative history of § 1988 and concluded that the “product of reasonable hours times a reasonable rate” normally provides a “reasonable” attorney’s fee within the meaning of the statute. Id., at 434. Hensley also recognized that “in some cases of exceptional success an enhanced award may be justified.” Id., at 435. In view of our recognition that an enhanced award may be justified “in some cases of exceptional success,” we cannot agree with petitioner’s argument that an “upward adjustment” is never permissible. The statute requires a “reasonable fee,” and there may be circumstances in which the basic standard of reasonable rates multiplied by reasonably expended hours results in a fee that is either unreasonably low or unreasonably high. When, however, the applicant for a fee has carried his burden of showing that the claimed rate and number of hours are reasonable, the resulting product is presumed to be the reasonable fee contemplated by § 1988.
B
The issue remaining is the appropriateness of an upward adjustment to the fee award in this case. The burden of proving that such an adjustment is necessary to the determination of a reasonable fee is on the fee applicant. The record before us contains no evidence supporting an upward adjustment to fees calculated under the basic standard of reasonable rates times reasonable hours. The affidavits of respondent’s attorneys do not claim, or even mention, entitlement to a bonus or upward revision. Respondent’s brief to the District Court merely states in conclusory fashion that an upward adjustment to the fee is necessary because the issues were novel, the litigation was complex, and the results were of far-reaching significance to a large class of people. The District Court, without elaboration, accepted these conclu-sory reasons for approving the upward adjustment and supplied additional reasons of its own. In awarding the 50% increase, the court referred to the complexity of the litigation, the novelty of the issues, the high quality of representation, the “great benefit” to the class, and the “riskiness” of the lawsuit. The Court of Appeals, in affirming, shed no light on why it thought this substantial upward adjustment was appropriate. In a single sentence, it simply repeated the unsupported conclusions of the District Court.
The reasons offered by the District Court to support the upward adjustment do not withstand examination. The novelty and complexity of the issues presumably were fully reflected in the number of billable hours recorded by counsel and thus do not warrant an upward adjustment in a fee based on the number of billable hours times reasonable hourly rates. There may be cases, of course, where the experience and special skill of the attorney will require the expenditure of fewer hours than counsel normally would be expected to spend on a particularly novel or complex issue. In those cases, the special skill and experience of counsel should be reflected in the reasonableness of the hourly rates. Neither complexity nor novelty of the issues, therefore, is an appropriate factor in determining whether to increase the basic fee award.
The District Court, having tried the case, was in the best position to conclude that “the quality of representation was high.” In view of the reputation of the Legal Aid Society and its staff, we have no doubt that this was true. The “quality of representation,” however, generally is reflected in the reasonable hourly rate. It, therefore, may justify an upward adjustment only in the rare case where the fee applicant offers specific evidence to show that the quality of service rendered was superior to that one reasonably should expect in light of the hourly rates charged and that the success was “exceptional.” See Hensley, 461 U. S., at 435. Respondent offered no such evidence in this case, and on this record the District Court’s rationale for providing an upward adjustment for quality of representation is a clear example of double counting. In justifying the high hourly rates used to calculate the fee award, the District Court explained:
“The rates requested here are consonant with fee awards in cases of similar complexity and difficulty. . . . [T]hey are fair in view of these attorneys^] experience and expertise .... The quality of work performed by counsel throughout this case was high. In view of all these considerations, I do not find the requested rates, from $95 per hour to $105 per hour, excessive.” 512 F. Supp., at 683.
In justifying the upward adjustment to the fee award, the District Court merely restated these same two factors: “The quality of representation was high. The litigation was complex.” Id., at 685.
Not only has respondent failed to show that the hourly rates failed to provide a reasonable fee for the quality of representation provided, but she candidly concedes that the “fees awarded [to her attorneys] may be at the upper end of the market for awards under § 1988 . . . Brief for Respondent 42. Absent specific evidence to the contrary, we cannot say that rates from $95 per hour to $105 per hour for these three attorneys do not fully reflect the quality of their representation.
The 50% upward adjustment also was based in part on the District Court’s determination that the ultimate outcome of the litigation “was of great benefit to a large class of needy people.” 512 F. Supp., at 685. The court did not explain, however, exactly how this determination affected the fee award. “Results obtained” is one of the 12 factors identified in Johnson v. Georgia Highway Express, 488 F. 2d, at 718, as relevant to the calculation of a reasonable attorney’s fee. It is “particularly crucial where a plaintiff is deemed ‘prevailing’ even though he succeeded on only some of his claims for relief.” Hensley, supra, at 434 (fee award must be reduced by the number of hours spent on unsuccessful claims). Because acknowledgment of the “results obtained” generally will be subsumed within other factors used to calculate a reasonable fee, it normally should not provide an independent basis for increasing the fee award. Neither the District Court’s opinion nor respondent’s briefs have identified record evidence that shows that the benefit achieved requires an upward adjustment to the fee.
Finally, the District Court included among its reasons for an upward adjustment a statement that the “issues presented were novel and the undertaking therefore risky.” 512 F. Supp., at 685. Absent any claim in the affidavits or briefs submitted in support of respondent’s fee request, seeking such an adjustment, we cannot be sure what prompted the court’s statement. Nowhere in the affidavits submitted in support of respondent’s fee request, nor in her brief to the District Court, did respondent identify any risks associated with the litigation or claim that the risk of nonpayment required an upward adjustment to provide a reasonable fee. On this record, therefore, any upward adjustment for the contingent nature of the litigation was unjustified.
In sum, we reiterate what was said in Hensley: “Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhanced award may be justified.” 461 U. S., at 435. We therefore reject petitioner’s argument that an upward adjustment to an attorney’s fee is never appropriate under § 1988. On the record before us, however, respondent established only that hourly rates ranging from $95 per hour to $105 per hour for the full 809.75 hours billed were reasonable. This resulted in a charge of $79,312. Respondent introduced no evidence that enhancement was necessary to provide fair and reasonable compensation. She therefore has failed to carry her burden of justifying entitlement to an upward adjustment. On this record, we conclude that the fee of $79,312 was “fully compensatory.” Accordingly, the judgment below is reversed only insofar as the fee award was increased by the sum of $39,656, and is otherwise affirmed.
It is so ordered.
Medicaid is a program providing medical assistance to the needy. It is jointly funded by the State and Federal Governments. 42 U. S. C. §§ 1396-1396k (1976 ed., Supp. V); N. Y. Soc. Serv. Law §§363-369 (McKinney 1976).
The certified class consisted of:
“New York State residents who received Medicaid due to their eligibility for SSI and whose Medicaid benefits have been terminated because of subsequent ineligibility for SSI without having received one or more of the following: (a) an ex parte determination of continued eligibility for Medicaid, independent of eligibility for SSI; (b) timely and adequate notice of such termination; (c) an opportunity for a hearing.” Stenson v. Blum, 476 F. Supp. 1331, 1336 (1979).
The Legal Aid Society, based in New York City, is a private, nonprofit law office dedicated since 1876 to providing legal representation to persons who cannot afford a lawyer. It may well be the oldest formally organized legal aid society in the United States. It enjoys a wide reputation for the devotion of its staff and the quality of its service. We are told that some three-fourths of the budget of its Civil Division is funded by nongovernmental contributors. See The Legal Aid Society 1983 Annual Report 49-52.
Ann Moynihan billed 487 hours and 50 minutes at $95 per hour. 512 F. Supp. 680, 682 (1981). She graduated from law school in 1977, and at the outset of this litigation, she had l'/z years of experience as a practicing attorney. App. 320-321. Paula Galowitz billed 166 hours and 15 minutes at $100 per hour. 512 F. Supp., at 682. She graduated from law school in 1976 and served as a law clerk to a state judge during her first year after graduation. She had IV2 years of experience as a practicing attorney at the Legal Aid Society at the outset of this litigation. App. 335. Arthur Fried billed 155 hours and 40 minutes at $105 per hour. 512 F. Supp., at 682. (The parties agree that the 115 hours noted in the District Court’s table is a typographical error.) He graduated from law school in 1975 and served as a law clerk to a United States District Court Judge for the first two years thereafter. He had 17a years experience as a practicing attorney at the Legal Aid Society at the outset of litigation. App. 308-309.
Petitioner does not renew here her argument that the hourly rates claimed by respondent’s counsel were out of line with the “prevailing market rate” for private counsel of comparable experience, skill, and reputation. Petitioner claims only that hourly rates for § 1988 fee awards should be based on cost rather than on prevailing market rates. See Brief for Petitioner 12-13,15-21. We decline to consider petitioner’s further argument that the hours charged by respondent’s counsel were unreasonable. As noted above, petitioner failed to submit to the District Court any evidence challenging the accuracy and reasonableness of the hours charged, see Hensley v. Eckerhart, 461 U. S. 424, 437, and n. 12 (1983), or the facts asserted in the affidavits submitted by respondent’s counsel. She therefore waived her right to an evidentiary hearing in the District Court. See City of Detroit v. Grinnell Corp., 495 F. 2d 448, 472-473 (CA2 1974) (where facts are disputed, an evidentiary hearing is required before a district court determines a proper attorney’s fee award). In view of the trial strategy she chose, petitioner waived her right to challenge in this Court the District Court’s determination that the number of hours billed were reasonable for cases of similar complexity.
Petitioner specifically proposes that fees be based on “the cost of providing [legal] services plus, where appropriate, a margin for profit.” Brief for Petitioner 17.
Section 1988 provides in relevant part:
“In any action or proceeding to enforce a provision of sections 1981, 1982, 1983,1986, 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.”
Accord H. R. Rep. No. 94-1558, p. 8 (1976).
See Johnson v. Georgia Highway Express, Inc., 488 F. 2d 714, 718 (CA5 1974) (“The customary fee for similar work in the community should be considered”); Stanford Daily v. Zurcher, 64 F. R. D. 680, 682 (ND Cal. 1974) (“[In making the fee award,] the court will consider . . . the value of the [attorney’s] time in light of billing rates . . .”); Davis v. County of Los Angeles, 8 EPD ¶ 9444, at 5048 (CD Cal. 1974) (fee award calculated by multiplying number of hours expended times the “normal hourly rates” for attorneys of like skill and experience); Swann v. Charlotte-Mecklenburg Board of Education, 66 F. R. D. 483, 486 (WDNC 1975) (fee award calculated with reference to hourly rates generally charged in federal litigation).
Congress was legislating in light of experience when it enacted the 1976 fee statute. By that time, courts were familiar with calculating fee awards for civil litigation under Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e-5(k), and under the judicially established “private attorney general” theory that had prevailed prior to this Court’s decision in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240 (1975). None of the cases decided at that time had adopted a cost-based approach to calculating fees. Reference to market rate was uniform. See, e. g., Waters v. Wisconsin Steel Works, 502 F. 2d 1309, 1322 (CA7 1974), cert. denied, 425 U. S. 997 (1976); Evans v. Sheraton Park Hotel, 164 U. S. App. D. C. 86, 96, 503 F. 2d 177, 187 (1974); Tillman v. Wheaton-Haven Recreation Assn., Inc., 517 F. 2d 1141, 1148 (CA4 1975); Kerr v. Screen Extras Guild, Inc., 526 F. 2d 67, 69-70 (CA9 1975), cert. denied sub nom. Perkins v. Screen Extras Guild, Inc., 425 U. S. 951 (1976).
We recognize, of course, that determining an appropriate “market rate” for the services of a lawyer is inherently difficult. Market prices of commodities and most services are determined by supply and demand. In this traditional sense there is no such thing as a prevailing market rate for the service of lawyers in a particular community. The type of services rendered by lawyers, as well as their experience, skill, and reputation, varies extensively — even within a law firm. Accordingly, the hourly rates of lawyers in private practice also vary widely. The fees charged often are based on the product of hours devoted to the representation multiplied by the lawyer’s customary rate. But the fee usually is discussed with the client, may be negotiated, and it is the client who pays whether he wins or loses. The § 1988 fee determination is made by the court in an entirely different setting: there is no negotiation or even discussion with the prevailing client, as the fee — found to be reasonable by the court — is paid by the losing party. Nevertheless, as shown in the text above, the critical inquiry in determining reasonableness is now generally recognized as the appropriate hourly rate. And the rates charged in private representations may afford relevant comparisons.
In seeking some basis for a standard, courts properly have required prevailing attorneys to justify the reasonableness of the requested rate or rates. To inform and assist the court in the exercise of its discretion, the burden is on the fee applicant to produce satisfactory evidence — in addition to the attorney’s own affidavits — that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation. A rate determined in this way is normally deemed to be reasonable, and is referred to — for convenience — as the prevailing market rate.
The District Court characterized the 50% increase as a “bonus.” The Court of Appeals, in its brief opinion, spoke of it as an “upward adjustment.” As we think the latter characterization is fairer, we will use it.
Specifically, the Senate Report expressly approved the 12 factors that the Court of Appeals for the Fifth Circuit had used in calculating a fee award in Johnson v. Georgia Highway Express, Inc., 488 F. 2d 714 (1974). It then identified three cases as having “correctly applied” those 12 factors. See supra, at 893-894.
At another point in Hensley, the Court observed that the “product of reasonable hours times a reasonable rate does not end the inquiry. There remain other considerations that may lead the district court to adjust the fee upward or downward, including the important factor of the ‘results obtained.’” 461 U. S., at 434.
Each of respondent’s counsel had admirable records as scholars, and two had valuable clerkship experience. They also were specializing in social security type claims against the Government. Yet none of them, at the outset of this suit in December 1978, had more than IV2 years’ experience as practicing lawyers. See n. 4, supra. As the term “experience” normally is used, this is quite limited.
Nor do we believe that the number of persons benefited is a consideration of significance in calculating fees under § 1988. Unlike the calculation of attorney’s fees under the “common fund doctrine,” where a reasonable fee is based on a percentage of the fund bestowed on the class, a reasonable fee under § 1988 reflects the amount of attorney time reasonably expended on the litigation. Presumably, counsel will spend as much time and will be as diligent in litigating a case that benefits a small class of people, or, indeed, in protecting the civil rights of a single individual.
We have no occasion in this case to consider whether the risk of not being the prevailing party in a § 1983 case, and therefore not being entitled to an award of attorney’s fees from one’s adversary, may ever justify an upward fee adjustment.
In Part II of this opinion, we declined to draw a distinction with respect to the use of market rates between profit and nonprofit law offices. Similarly, in the rare case in which an upward adjustment to the presumptively reasonable fee of rate times hours is appropriate, we draw no distinction between profit and nonprofit law offices.
As we stated in Hensley, a “request for attorney’s fees should not result in a second major litigation.” Hensley, 461 U. S., at 437. Parties to civil rights litigation in particular should make a conscientious effort, where a fee award is to be made, to resolve any differences. A district court is expressly empowered to exercise discretion in determining whether an award is to be made and if so its reasonableness. The court, with its intimate knowledge of the litigation, has a responsibility to encourage agreement. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari. | What reason, if any, does the court give for granting the petition for certiorari? | [
"case did not arise on cert or cert not granted",
"federal court conflict",
"federal court conflict and to resolve important or significant question",
"putative conflict",
"conflict between federal court and state court",
"state court conflict",
"federal court confusion or uncertainty",
"state court confusion or uncertainty",
"federal court and state court confusion or uncertainty",
"to resolve important or significant question",
"to resolve question presented",
"no reason given",
"other reason"
] | [
10
] | sc_certreason |
UNITED STATES v. EDWARDS et al.
No. 73-88.
Argued January 15, 1974
Decided March 26, 1974
White, J., delivered the opinion of the Court, in which Burger, C. J., and Blackmun, Powell, and RehNQUIST, JJ., joined. Stewart, J., filed a dissenting opinion, in which Douglas, BrenNAN, and Marshall, JJ., joined, post, p. 809.
Edward B. Korman argued the cause for the United States. With him on the brief were Solicitor General Bork, Assistant Attorney General Petersen, and Jerome M. Feit.
Thomas R. Smith, by appointment of the Court, 414 U. S. 1125, argued the cause and filed a brief for respondents.
Frank G. Carrington, Jr., Wayne W. Schmidt, Fred E. Inbau, Glen Murphy, Paid Keller, and Courtney A. Evans filed a brief for Americans for Effective Law Enforcement, Inc., et al. as amici curiae urging reversal.
Mr. Justice White
delivered the opinion of the Court.
The question here is whether the Fourth Amendment should be extended to exclude from evidence certain clothing taken from respondent Edwards while he was in custody at the city jail approximately 10 hours after his arrest.
Shortly after 11 p. m. on May 31, 1970, respondent Edwards was lawfully arrested on the streets of Lebanon, Ohio, and charged with attempting to break into that city’s Post Office. He was taken to the local jail and placed in a cell. Contemporaneously or shortly thereafter, investigation at the scene revealed that the attempted entry had been made through a wooden window which apparently had been pried up with a pry bar, leaving paint chips on the window sill and wire mesh screen. The next morning, trousers and a T-shirt were purchased for Edwards to substitute for the clothing which he had been wearing at the time of and since his arrest. His clothing was then taken from him and held as evidence. Examination of the clothing revealed paint chips matching the samples that had been taken from the window. This evidence and his clothing were received at trial over Edwards’ objection that neither the clothing nor the results of its examination were admissible because the warrantless seizure of his clothing was invalid under the Fourth Amendment.
The Court of Appeals reversed. Expressly disagreeing with two other Courts of Appeals, it held that although the arrest was lawful and probable cause existed to believe that paint chips would be discovered on respondent’s clothing, the warrantless seizure of the clothing carried out “after the administrative process and the mechanics of the arrest have come to a halt” was nevertheless unconstitutional under the Fourth Amendment. 474 F. 2d 1206, 1211 (CA6 1973). We granted certiorari, 414 U. S. 818, and now conclude that the Fourth Amendment should not be extended to invalidate the search and seizure in the circumstances of this case.
The prevailing rule under the Fourth Amendment that searches and seizures may not be made without a warrant is subject to various exceptions. One of them permits warrantless searches incident to custodial arrests, United States v. Robinson, 414 U. S. 218 (1973); Chimel v. California, 395 U. S. 752, 755 (1969); Weeks v. United States, 232 U. S. 383, 392 (1914), and has traditionally been justified by the reasonableness of searching for weapons, instruments of escape, and evidence of crime when a person is taken into official custody and lawfully detained. United States v. Robinson, supra.
It is also plain that searches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention. If need be, Abel v. United States, 362 U. S. 217 (1960), settled this question. There the defendant was arrested at his hotel, but the belongings taken with him to the place of detention were searched there. In sustaining the search, the Court noted that a valid search of the property could have been made at the place of arrest and perceived little difference
“when the accused decides to take the property with him, for the search of it to occur instead at the first place of detention when the accused arrives there, especially as the search of property carried by an accused to the place of detention has additional justifications, similar to those which justify a search of the person of one who is arrested.” Id., at 239.
The courts of appeals have followed this same rule, holding that both the person and the property in his immediate possession may be searched at the station house after the arrest has occurred at another place and if evidence of crime is discovered, it may be seized and admitted in evidence. Nor is there any doubt that clothing or other belongings may be seized upon arrival of the accused at the place of detention and later subjected to laboratory analysis or that the test results are admissible at trial.
Conceding all this, the Court of Appeals in this case nevertheless held that a warrant is required where the search occurs after the administrative mechanics of arrest have been completed and the prisoner is incarcerated. But even on these terms, it seems to us that the normal processes incident to arrest and custody had not been completed when Edwards was placed in his cell on the night of May 31. With or without probable cause, the authorities were entitled at that point not only to search Edwards' clothing but also to take it from him and keep it in official custody. There was testimony that this was the standard practice in this city. The police were also entitled to take from Edwards any evidence of the crime in his immediate possession, including his clothing. And the Court of Appeals acknowledged that contemporaneously with or shortly after the time Edwards went to his cell, the police had probable cause to believe that the articles of clothing he wore were themselves material evidence of the crime for which he had been arrested. 474 F. 2d, at 1210. But it was late at night; no substitute clothing was then available for Edwards to wear, and it would certainly have been unreasonable for the police to have stripped respondent of his clothing and left him exposed in his cell throughout the night. Cf. United States v. Caruso, 358 F. 2d 184, 185-186 (CA2), cert. denied, 385 U. S. 862 (1966). When the substitutes were purchased the next morning, the clothing he had been wearing at the time of arrest was taken from him and subjected to laboratory analysis. This was no more than taking from respondent the effects in his immediate possession that constituted evidence of crime. This was and is a normal incident of a custodial arrest, and reasonable delay in effectuating it does not change the fact that Edwards was no more imposed upon than he could have been at the time and place of the arrest or immediately upon arrival at the place of detention. The police did no more on June 1 than they were entitled to do incident to the usual custodial arrest and incarceration.
Other closely related considerations sustain the examination of the clothing in this case. It must be remembered that on both May 31 and June 1 the police had lawful custody of Edwards and necessarily of the clothing he wore. When it became apparent that the articles of clothing were evidence of the crime for which Edwards was being held, the police were entitled to take, examine, and preserve them for use as evidence, just as they are normally permitted to seize evidence of crime when it is lawfully encountered. Chimel v. California, 395 U. S. 752 (1969); Frazier v. Cupp, 394 U. S. 731 (1969); Warden v. Hayden, 387 U. S. 294 (1967); Ker v. California, 374 U. S. 23 (1963) (plurality opinion); Zap v. United States, 328 U. S. 624 (1946), vacated on other grounds, 330 U. S. 800 (1947). Surely, the clothes could have been brushed down and vacuumed while Edwards had them on in the cell, and it was similarly reasonable to take and examine them as the police did, particularly in view of the existence of probable cause linking the clothes to the crime. Indeed, it is difficult to perceive what is unreasonable about the police’s examining and holding as evidence those personal effects of the accused that they already have in their lawful custody as the result of a lawful arrest.
In Cooper v. California, 386 U. S. 58 (1967), an accused had been arrested for a narcotics offense and his automobile impounded preparatory to institution of forfeiture proceedings. The car was searched a week later without a warrant and evidence seized that was later introduced at the defendant’s criminal trial. The war-rantless search and seizure were sustained because they were “closely related to the reason petitioner was arrested, the reason his car had been impounded, and the reason it was being retained. .... It would be unreasonable to hold that the police, having to retain the car in their custody for such a length of time, had no right, even for their own protection, to search it.” Id., at 61-62. It was no answer to say that the police could have obtained a search warrant, for the Court held the test to be, not whether it was reasonable to procure a search warrant, but whether the search itself was reasonable, which it was. Id., at 62. United States v. Caruso, supra, expresses similar views. There, defendant's clothes were not taken until six hours after his arrival at a place of detention. The Court of Appeals properly held that no warrant was required:
“He and his clothes were constantly in custody from the moment of his arrest, and the inspection of his clothes and the holding of them for use in evidence were, under the circumstances, reasonable and proper.” 358 F. 2d, at 185 (citations omitted).
Caruso is typical of most cases in the courts of appeals that have long since concluded that once the accused is lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of his arrest may lawfully be searched and seized without a warrant even though a substantial period of time has elapsed between the arrest and subsequent administrative processing, on the one hand, and the taking of the property for use as evidence, on the other. This is true where the clothing or effects are immediately seized upon arrival at the jail, held under the defendant’s name in the “property room” of the jail, and at a later time searched and taken for use at the subsequent criminal trial. The result is the same where the property is not physically taken from the defendant until sometime after his incarceration.
In upholding this search and seizure, we do not conclude that the Warrant Clause of the Fourth Amendment is never applicable to postarrest seizures of the effects of an arrestee. But we do think that the Court of Appeals for the First Circuit captured the essence of situations like this when it said in United States v. DeLeo, 422 F. 2d 487, 493 (1970) (footnote omitted):
“While the legal arrest of a person should not destroy the privacy of his premises, it does — for at least a reasonable time and to a reasonable extent— take his own privacy out of the realm of protection from police interest in weapons, means of escape, and evidence.”
The judgment of the Court of Appeals is reversed.
So ordered.
Edwards (hereafter also referred to as respondent) had an alleged confederate, William T. Livesay, who was corespondent in this case, but died after the petition for certiorari was granted. We therefore vacate the judgment as to him and remand the case to the District Court with directions to dismiss the indictment. Durham v. United States, 401 U. S. 481 (1971).
The Court stated that it could not agree with United States v. Williams, 416 F. 2d 4 (CA5 1969), and United States v. Caruso, 358 F. 2d 184 (CA2), cert. denied, 385 U. S. 862 (1966).
“A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” United States v. Robinson, supra, at 235.
United States v. Manar, 454 F. 2d 342 (CA7 1971); United States v. Gonzalez-Perez, 426 F. 2d 1283 (CA5 1970); United States v. DeLeo, 422 F. 2d 487 (CA1 1970); United States v. Williams, supra; United States v. Miles, 413 F. 2d 34 (CA3 1969); Ray v. United States, 412 F. 2d 1052 (CA9 1969); Westover v. United States, 394 F. 2d 164 (CA9 1968); United States v. Frankenberry, 387 F. 2d 337 (CA2 1967); Evalt v. United States, 382 F. 2d 424 (CA9 1967); Malone v. Crouse, 380 F. 2d 741 (CA10 1967); Cotton v. United States, 371 F. 2d 385 (CA9 1967); Miller v. Eklund, 364 F. 2d 976 (CA9 1966); Hancock v. Nelson, 363 F. 2d 249 (CA1 1966); Golliher v. United States, 362 F. 2d 594 (CA8 1966); Rodgers v. United States, 362 F. 2d 358 (CA8), cert. denied, 385 U. S. 993 (1966); United States v. Caruso, supra; Whalem v. United States, 120 U. S. App. D. C. 331, 346 F. 2d 812, cert. denied, 382 U. S. 862 (1965); Grillo v. United States, 336 F. 2d 211 (CA1 1964), cert. denied sub nom. Gorin v. United States, 379 U. S. 971 (1965); Robinson v. United States, 109 U. S. App. D. C. 22, 283 F. 2d 508 (1960); Baskerville v. United States, 227 F. 2d 454 (CA10 1955).
See, e. g., United States v. Caruso, supra; United States v. Williams, supra; Golliher v. United States, supra; Whalem v. United States, supra; Robinson v. United States, supra; Evalt v. United States, supra; Hancock v. Nelson, supra.
App. 6. Historical evidence points to the established and routine custom of permitting a jailer to search the person who is being processed for confinement under his custody and control. See, e. g., T. Gardner & V. Manian, Principles and Cases of the Law of Arrest, Search, and Seizure 200 (1974); E. Fisher, Search and Seizure 71 (1970). While “[a] rule of practice must not be allowed ... to prevail over a constitutional right,” Gouled v. United States, 255 U. S. 298, 313 (1921), little doubt has ever been expressed about the validity or reasonableness of such searches incident to incarceration. T. Taylor, Two Studies in Constitutional Interpretation 50 (1969).
See Evalt v. United States, 382 F. 2d 424 (CA9 1967); Westover v. United States, 394 F. 2d 164 (CA9 1968); Baskerville v. United States, 227 F. 2d 454 (CA10 1955). In Baskerville, the effects were taken for safekeeping on December 23 but re-examined and taken as evidence on January 6. Brett v. United States, 412 F. 2d 401 (CA5 1969), is contra. There the defendant’s clothes were taken from him shortly after arrival at the jail, as was the custom, and held in the property room of the jail. Three days later the clothing was searched and incriminating evidence found. A divided panel of the Court of Appeals held the evidence inadmissible for want of a warrant authorizing the search.
Hancock v. Nelson, 363 F. 2d 249 (CA1 1966); Malone v. Crouse, 380 F. 2d 741 (CA10 1967); United States v. Caruso, 358 F. 2d 184 (CA2 1966). In Hancock, the defendant was first taken into custody at 12:51 a. m. His clothes were taken at 2 p. m. on the same day, two hours after probable cause to do so eventuated.
Holding the Warrant Clause inapplicable in the circumstances present here does not leave law enforcement officials subject to no restraints. This type of police conduct “must [still] be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures.” Terry v. Ohio, 392 U. S. 1, 20 (1968). But the Court of Appeals here conceded that probable cause existed for the search and seizure of respondent’s clothing, and respondent complains only that a warrant should have been secured. We thus have no occasion to express a view concerning those circumstances surrounding custodial searches incident to incarceration which might “violate the dictates of reason either because of their number or their manner of perpetration.” Charles v. United States, 278 F. 2d 386, 389 (CA9), cert. denied, 364 U. S. 831 (1960). Cf. Schmerber v. California, 384 U. S. 757 (1966); Rochin v. California, 342 U. S. 165 (1952). | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them.
Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. | Who is the respondent of the case? | [
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"employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.",
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"nonresident",
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"owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels",
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"tender offer",
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"patient of a health professional",
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"resident",
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"retired or former employee",
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"shopping center, mall",
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"theater, studio",
"forest products, lumber, or logging company",
"person traveling or wishing to travel abroad, or overseas travel agent",
"trucking company, or motor carrier",
"television station",
"union member",
"unemployed person or unemployment compensation applicant or claimant",
"union, labor organization, or official of",
"veteran",
"voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)",
"wholesale trade",
"wife, or ex-wife",
"witness, or person under subpoena",
"network",
"slave",
"slave-owner",
"bank of the united states",
"timber company",
"u.s. job applicants or employees",
"Army and Air Force Exchange Service",
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"Secretary or administrative unit or personnel of the U.S. Air Force",
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"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
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"Bonneville Power Administration",
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"Civil Aeronautics Board",
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"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner of Customs",
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NEW YORK STATE CLUB ASSOCIATION, INC. v. CITY OF NEW YORK et al.
No. 86-1836.
Argued February 23, 1988
Decided June 20, 1988
White, J., delivered the opinion for a unanimous Court with respect to Parts I, II, and III, and an opinion of the Court with respect to Part IV, in which Rehnquist, C. J., and Brennan, Marshall, Blackmun, Stevens, O’Connor, and Kennedy, JJ., joined. O’Connor, J., filed a concurring opinion, in which Kennedy, J., joined, post, p. 18. Scalia, J., filed an opinion concurring in part and concurring in the judgment, post, p. 20.
Alan Mansfield argued the causé for appellant. With him on the briefs were Angelo T. Cometa and Louis J. Lefkoivitz.
Peter L. Zimroth argued the cause for appellees. With him on the brief were Leonard J. Koerner and Fay Leoussis.
Briefs of amici curiae urging reversal were filed for the Conference of Private Organizations by Thomas P. Ondeck; for the Club Managers Association of America by John M. Wood and David Ferber; and for the Francisca Club et al. by Michael H. Salinsky and Kevin M. Fong.
Briefs of amici curiae urging affirmance were filed for the State of New Yorketal. by Robert Abrams, Attorney General of New York, 0. Peter Sherwood, Solicitor General, and Suzanne M. Lyon and Elvia Rosales Amóla, Assistant Attorneys General, joined by the Attorneys General for their respective States as follows: John Van de Kamp of California, W. Cary Edwards of New Jersey, Donald J. Hanaivay of Wisconsin, J. Joseph Cur-ran, Jr., of Maryland, Neil F. Hartigan of Illinois, Hubert H. Humphrey III of Minnesota, Dave Frohnmayer of Oregon, James M. Shannon of Massachusetts, Frank J. Kelley of Michigan, and Charles Brown of West Virginia; for the city of Chicago by Judson H. Miner and Ruth M. Mos-covitch; for the city of Los Angeles et al. by Pamela A. Albers, and Vanessa Place; for the city and county of San Francisco by Louise H. Renne; for the Licensing Board of the city of Boston by Barbara A. H. Smith; for the American Bar Association by Robert MacCrate and Stark Ritchie; for the Anti-Defamation League of B’Nai B’rith et al. by Jill L. Kahn, Justin J. Finger, and Jeffrey P. Sinensky; for the Committees on Civil Rights and Sex and Law of the Association of the Bar of the city of New York by Robert M. Kaufman, Jonathan Lang, Arthur Leonard, Evelyn F. Cohn, and Kay C. Murray; for the NOW Legal Defense and Education Fund et al. by Sarah E. Bums, Judith I. Avner, and Beverly Gross; and for the U. S. Conference of Mayors et al. by Benna Ruth Solomon, Beate Bloch, and Nancy J. Bregstein.
Briefs of amici curiae were filed for the American Civil Liberties Union Foundation et al. by Burt Neubome, John A. Powell, Steven R. Shapiro, Isabelle Katz Pinzler, Arthur N. Eisenberg, Paul L. Hoffman, and Judith Resnik; and for the Lawyer’s Committee for Civil Rights Under Law by Lloyd N. Cutler, James Robertson, Conrad K. Harper, Stuart J. Land, Norman Redlich, William L. Robinson, and Judith Winston.
Justice White
delivered the opinion of the Court.
New York City has adopted a local law that forbids discrimination by certain private clubs. The New York Court of Appeals rejected a facial challenge to this law based on the First and Fourteenth Amendments. We sit in review of that judgment.
I
In 1965, New York City adopted a Human Rights Law that prohibits discrimination by any “place of public accommodation, resort or amusement.” This term is defined broadly in the Law to cover such various places as hotels, restaurants, retail stores, hospitals, laundries, theaters, parks, public conveyances, and public halls, in addition to numerous other places that are specifically listed. N. Y. C. Admin. Code § 8-102(9) (1986). Yet the Law also exempted from its coverage various public educational facilities and “any institution, club or place of accommodation which proves that it is in its nature distinctly private.” Ibid. The city adopted this Law soon after the Federal Government adopted civil rights legislation to bar discrimination in places of public accommodation, Civil Rights Act of 1964, Title II, 78 Stat. 243, 42 U. S. C. §2000a(e).
In 1984, New York City amended its Human Rights Law. The basic purpose of the amendment is to prohibit discrimi- . nation, in certain private clubs that are determined to be sufficiently “public” in nature that they do not fit properly within the exemption for “any institution, club or place of accommodation which is in its nature distinctly private.” As the City Council stated at greater length:
“It is hereby found and declared that the city of New York has a compelling interest in providing its citizens an environment where all persons, regardless of race, creed, color, national origin or sex, have a fair and equal opportunity to participate in the business and professional life of the city, and may be unfettered in availing themselves of employment opportunities. Although city, state and federal laws have been enacted to eliminate discrimination in employment, women and minority group members have not attained equal opportunity in business and the professions. One barrier to the advancement of women and minorities in the business and professional life of the city is the discriminatory practices of certain membership organizations where business deals are often made and personal contacts valuable for business purposes, employment and professional advancement are formed. While such organizations may avowedly be organized for social, cultural, civic or educational purposes, and while many perform valuable services to the community, the commercial nature of some of the activities occurring therein and the prejudicial impact of these activities on business, professional and employment opportunities of minorities and women cannot be ignored. ” Local Law No. 63 of 1984, § 1, App. 14-15.
For these reasons, the City Council found that “the public interest in equal opportunity” outweighs “the interest in private association asserted by club members.” Ibid. It cautioned, however, that it did not purpose “to interfere in club activities or subject club operations to scrutiny beyond what is necessary in good faith to enforce the human rights law,” and the amendments were not intended as an attempt “to dictate the manner in which certain private clubs conduct their activities or select their members, except insofar as is necessary to ensure that clubs do not automatically exclude persons from consideration for membership or enjoyment of club accommodations and facilities and the advantages and privileges of membership, on account of invidious discrimination.” Ibid.
The specific change wrought by the amendment is to extend the antidiscrimination provisions of the Human Rights Law to any “institution, club or place of accommodation [that] has more than four hundred members, provides regular meal service and regularly receives payment for dues, fees, use of space, facilities, services, meals or beverages directly or indirectly from or.on behalf of nonmembers for the furtherance of trade or business.” N. Y. C. Admin. Code § 8-102(9) (1986). Any such club “shall not be considered in its nature distinctly private.” Ibid. Nonetheless, the city also stated that any such club “shall be deemed to be in its nature distinctly private” if it is “a corporation incorporated under the benevolent orders law or described in the benevolent orders law but formed under any other law of this state, or a religious corporation incorporated under the education law or the religious corporations law.” Ibid. The City Council explained that it drafted the amendment in this way so as to meet the specific problem confronting women and minorities in the city’s business and professional world: “Because small clubs, benevolent orders and religious corporations have not been identified in testimony before the Council as places where business activity is prevalent, the Council has determined not to apply the requirements of this local law to such organizations.” Local Law No. 63, § 1, App. 15.
Immediately after the 1984 Law became effective, the New York State Club Association filed suit against the city and some of its officers in state court, seeking a declaration that the Law is invalid on various state grounds and is unconstitutional on its face under the First and Fourteenth Amendments and requesting that defendants be enjoined from enforcing it. On cross-motions for summary judgment, the trial court upheld the Law against all challenges, including the federal constitutional challenges. The intermediate state appellate court affirmed this judgment on appeal; one judge dissented, however, concluding that the exemption for benevolent orders violates the Equal Protection Clause because it fails to accord equal protection to similarly situated persons. 118 App. Div. 2d 392, 505 N. Y. S. 2d 152 (1986).
The State Club Association appealed this decision to the New York Court of Appeals, which affirmed in a unanimous opinion. 69 N. Y. 2d 211, 505 N. E. 2d 915 (1987). The court rejected the First Amendment challenge to Local Law 63, relying heavily on the decisions in Roberts v. United States Jaycees, 468 U. S. 609 (1984), and Board of Directors of Rotary Int’l v. Rotary Club, 481 U. S. 537 (1987). It ruled that any infringement on associational rights is amply justified by the city’s compelling interest in eliminating discrimination against women and minorities. In addition, the Law employs the least restrictive means to achieve its ends because it interferes with the policies and activities of private clubs only “to the extent necessary to ensure that they do not automatically exclude persons from membership or use of the facilities on account of invidious discrimination.” 69 N. Y. 2d, at 223, 505 N. E. 2d, at 921. The court denied relief on the equal protection claim without discussing it.
The State Club Association appealed to this Court. We noted probable jurisdiction, 484 U. S. 812 (1987), and we now affirm the judgment below, upholding Local Law 63 against appellant’s facial attack on its constitutionality.
r — 4 H-4
The initial question in this case is whether appellant has standing to challenge the constitutionality of Local Law 63 in this Court. We hold that it does.
Appellant is a nonprofit corporation, which essentially consists of a consortium of 125 other private clubs and associations in the State of New York, many of which are located in New York City. In Hunt v. Washington Apple Advertising Comm’n, 432 U. S. 333, 343 (1977), we held that an association has standing to sue on behalf of its members “when (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” See also Automobile Workers v. Brock, 477 U. S. 274 (1986). Appellees focus on the first part of this test; they read the requirement that the association’s members “would otherwise have standing to sue in their own right” as meaning that appellant’s member associations must have standing to sue only on behalf of themselves, and not on behalf of anyone else, such as their own individual members.
This reading of Hunt is incorrect. Under Hunt, an association has standing to sue on behalf of its members when those members would have standing to bring the same suit. It does not matter what specific analysis is necessary to determine that the members could bring the same suit, for the purpose of the first part of the Hunt test is simply to weed out plaintiffs who try to bring cases, which could not otherwise be brought, by manufacturing allegations of standing that lack any real foundation. Here, however, the appellant consortium has standing to sue on behalf of its member associations as long as those associations would have standing to bring the same challenge to Local Law 63. In this regard, it is sufficient to note that appellant’s member associations would have standing to bring this same suit on behalf of their own individual members, since those individuals “are suffering immediate or threatened injury” to their associational rights as a result of the Law’s enactment. Warth v. Seldin, 422 U. S. 490, 511 (1975); see App. 10, 32, 34-35, 38. Thus the case is properly before us.
► — I H-4
New York City’s Human Rights Law authorizes the city’s Human Rights Commission or any aggrieved individual to initiate a complaint against any “place of public accommodation, resort or amusement” that is alleged to have discriminated in violation of the Law. N. Y. C. Admin. Code §8-109(1) (1986). The Commission investigates the complaint and determines whether probable cause exists to find a violation. When probable cause is found, the Commission may settle the matter by conciliatory measures, if possible; if the matter is not settled, the Commission schedules a hearing in which the defending party may present evidence and answer the charges against it. After the hearing is concluded, the Commission states its findings of fact and either dismisses the complaint or issues a cease-and-desist order. § 8-109(2). Any person aggrieved by an order of the Commission is entitled to seek judicial review of the order, and the Commission may seek enforcement of its orders in judicial proceedings. §8-110.
None of these procedures has come into play in this case, however, for appellant brought this suit challenging the constitutionality of the 1984 Law on its face before any enforcement proceedings were initiated against any of its member associations. Although such facial challenges are sometimes permissible and often have been entertained, especially when speech protected by the First Amendment is at stake, to prevail on a facial attack the plaintiff must demonstrate that the challenged law either “could never be applied in a valid manner” or that even though it may be validly applied to the plaintiff and others, it nevertheless is so broad that it “may inhibit the constitutionally protected speech of third parties.” City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 798 (1984). Properly understood, the latter kind of facial challenge is an exception to ordinary standing requirements, and is justified only by the recognition that free expression may be inhibited almost as easily by the potential or threatened use of power as by the actual exercise of that power. Thornhill v. Alabama, 310 U. S. 88, 97-98 (1940). Both exceptions, however, are narrow ones: the first kind of facial challenge will not succeed unless the court finds that “every application of the statute created an impermissible risk of suppression of ideas,” Taxpayers for Vincent, supra, at 798, n. 15, and the second kind of facial challenge will not succeed unless the statute is “substantially” overbroad, which requires the court to find “a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court.” 466 U. S., at 801.
We are unpersuaded that appellant is entitled to make either one of these two distinct facial challenges. Appellant conceded at oral argument, understandably we think, that the antidiscrimination provisions of the Human Rights Law certainly could be constitutionally applied at least to some of the large clubs, under this Court’s decisions in Rotary and Roberts. Tr. of Oral Arg. 11-12. The clubs that are covered under the Law contain at least 400 members. They thus are comparable in size to the local chapters of the Jaycees that we found not to be protected private associations in Roberts, and they are considerably larger than many of the local clubs that were found to be unprotected in Rotary, some which included as few as 20 members. See Roberts, 468 U. S., at 621; Rotary, 481 U. S., at 546. Cf. Village of Belle Terre v. Boraas, 416 U. S. 1, 7-8 (1974). The clubs covered by Local Law 63 also provide “regular meal service” and receive regular payments “directly or indirectly from or on behalf of nonmembers for the furtherance of trade or business.” N. Y. C. Admin. Code §8-102(9) (1986). The city found these two characteristics to be significant in pinpointing organizations which are “commercial” in nature, “where business deals are often made and personal contacts valuable for business purposes, employment and professional advancement are formed.” Local Law 63, § 1, App. 15.
These characteristics are at least as significant in defining the nonprivate nature of these associations, because of the kind of role that strangers play in their ordinary existence, as is the regular participation of strangers at meetings, which we emphasized in Roberts and Rotary. See Roberts, supra, at 621; Rotary, supra, at 547. It may well be that a considerable amount of private or intimate association occurs in such a setting, as is also true in many restaurants and other places of public accommodation, but that fact alone does not afford the entity as a whole any constitutional immunity to practice discrimination when the government has barred it from doing so. Hishon v. King & Spalding, 467 U. S. 69, 78 (1984). Although there may be clubs that would be entitled to constitutional protection despite the presence of these characteristics, surely it cannot be said that Local Law 63 is invalid on its face because it infringes the private associational rights of each and every club covered by it.
The same may be said about the contention that the Law infringes upon every club member’s right of expressive association. The ability and the opportunity to combine with others to advance one’s views is a powerful practical means of ensuring the perpetuation of the freedoms the First Amendment has guaranteed to individuals as against the government. “Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly.” NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 460 (1958). This is not to say, however, that in every setting in which individuals exercise some discrimination in choosing associates, their selective process of inclusion and exclusion is protected by the Constitution. Hishon, supra, at 78; Norwood v. Harrison, 413 U. S. 455, 470 (1973); Railway Mail Assn. v. Corsi, 326 U. S. 88, 93-94 (1945).
On its face, Local Law 63 does not affect “in any significant way” the ability of individuals to form associations that will advocate public or private viewpoints. Rotary, 481 U. S., at 548. It does not require the clubs “to abandon or alter” any activities that are protected by the First Amendment. Ibid. If a club seeks to exclude individuals who do not share the views that the club’s members wish to promote, the Law erects no obstacle to this end. Instead, the Law merely prevents an association from using race, sex, and the other specified characteristics as shorthand measures in place of what the city considers to be more legitimate criteria for determining membership. It is conceivable, of course, that an association might be able to show that it is organized for specific expressive purposes and that it will not be able to advocate its desired viewpoints nearly as effectively if it cannot confine its membership to those who share the same sex, for example, or the same religion. In the case before us, however, it seems sensible enough to believe that many of the large clubs covered by the Law are not of this kind. We could hardly hold otherwise on the record before us, which contains no specific evidence on the characteristics of any club covered by the Law.
The facial attack based on the claim that Local Law 63 is invalid in all of its applications must therefore fail. Appellant insists, however, that there are some clubs within the reach of the Law that are “distinctively private” and that the Law is therefore overbroad and invalid on its face. But as we have indicated, this kind of facial challenge also falls short.
The overbreadth doctrine is “strong medicine” that is used “sparingly and only as a last resort.” Broadrick v. Oklahoma, 413 U. S. 601, 613 (1973). A law is constitutional unless it is “substantially overbroad.” Id., at 615. To succeed in its challenge, appellant must demonstrate from the text of Local Law 63 and from actual fact that a substantial number of instances exist in which the Law cannot be applied constitutionally. Yet appellant has not identified those clubs for whom the antidiscrimination provisions will impair their ability to associate together or to advocate public or private viewpoints. No record was made in this respect, we are not informed of the characteristics of any particular clubs, and hence we cannot conclude that the Law threatens to undermine the associational or expressive purposes of any club, let alone a substantial number of them. We therefore cannot conclude that the Law is substantially overbroad and must assume that “whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied.” Id., at 615-616.
Appellant claims, however, that the Law erects an “irre-buttable” presumption that the clubs covered under it are not private in nature, and contends that its member associations will not be permitted to raise the constitutionality of the Law in individual administrative and judicial proceedings. Cf. Rotary, supra, at 547-548, n. 6. Even if this were a correct interpretation of what the Law says — and the decisions below at least suggest the contrary view — it does not affect our analysis. Although the city’s Human Rights Commission may not be empowered to consider the constitutionality of the statute under which it operates, under accepted legal principles it would be quite unusual if the Commission “could not construe its own statutory mandate in the light of federal constitutional principles.” Ohio Civil Rights Comm’n v. Dayton Christian Schools, 477 U. S. 619, 629 (1986). And even if this were also true, nothing in the Law purports to preclude judicial review of constitutional claims that may be raised on appeal from the administrative enforcement proceedings. N. Y. C. Admin. Code §8-110 (1986); Dayton Christian Schools, supra, at 629. These opportunities for individual associations to contest the constitutionality of the Law as it may be applied against them are adequate to assure that any overbreadth under the Law will be curable through case-by-case analysis of specific facts.
IV
Appellant also contends that the exemption m Local Law 63 for benevolent and religious corporations, which deems them to be “distinctly private” in nature, violates the Equal Protection Clause. Since, as just discussed, it has not been demonstrated that the Law affects “in any significant way” the fundamental interests of any clubs covered by the Law, heightened scrutiny does not apply. See Lyng v. Automobile Workers, 485 U. S. 360, 365, 366 (1988); Rotary, 481 U. S., at 548. On this state of the record, the equal protection challenge must fail unless the city could not reasonably believe that the exempted organizations are different in relevant respects from appellant’s members.
As written, the legislative classification on its face is not manifestly without reasoned support. The City Council explained that it limited the Law’s coverage to large clubs and excluded smaller clubs, benevolent orders, and religious corporations because the latter associations “have not been identified in testimony before the Council as places where business activity is prevalent.” Local Law No. 63, § 1, App. 15. This explanation echoes the logic of the decision in New York ex rel. Bryant v. Zimmerman, 278 U. S. 63 (1928), which upheld a New York law that exempted benevolent orders from having to file certain documents with the State that must be filed by most other corporations and associations. See N. Y. Civ. Rights Law § 53 (McKinney 1976). The Court rejected a claim that the statute violated the Equal Protection Clause, finding on the evidence before it that the legislative distinction was justified because benevolent orders were judged not to pose the same dangers as other groups that were required to file the documents. Bryant, supra, at 73-77. In addition, New York State law indicates that benevolent orders and religious corporations are unique and thus that a rational basis exists for their exemption here. For well over a century, the State has extended special treatment in the law to these associations, and each continues to be treated in a separate body of legislation. See N. Y. Ben. Ord. Law §§ 1-14 (McKinney 1951 and Supp. 1988); N. Y. Relig. Corp. Law §§ 1-437 (McKinney 1952 and Supp. 1988). It is plausible that these associations differ in their practices and pin-poses from other private clubs that are now covered under Local Law 63. As the Appellate Division in this case pointed out, the benevolent orders are organized under the relevant law “ ‘solely for the benefit of [their] membership and their beneficiaries/ ” and thus are not “public” organizations. 118 App. Div. 2d, at 394, 505 N. Y. S. 2d, at 154, quoting N. Y. Ins. Law § 4501(a) (McKinney 1985). Similarly, religious organizations are “ ‘created for religious purposes’ ” and are “patently not engaged in commercial activity for the benefit of non-members.” 118 App. Div. 2d, at 394-395, 505 N. Y. S. 2d, at 154, quoting N. Y. Relig. Corp. Law §2 (McKinney 1952).
Appellant contends, however, that the benevolent and religious corporations exempted in the Law are in fact no different in nature from the other clubs and associations that are now made subject to the city’s antidiscrimination restrictions. Because the Equal Protection Clause “is essentially a direction that all persons similarly situated should be treated alike,” Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 439 (1985), appellant contends that the exemption violates the Clause.
In support of its argument, appellant observes that appel-lees offered no evidence to support the city’s position that benevolent and religious groups are actually different from other private associations. Legislative classifications, however, are presumed to be constitutional, and the burden of showing a statute to be unconstitutional is on the challenging party, not on the party defending the statute: “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. 93, 111 (1979). In a case such as this, the plaintiff can carry this burden by submitting evidence to show that the asserted grounds for the legislative classification lack any reasonable support in fact, but this burden is nonetheless a considerable one. United States v. Carolene Products Co., 304 U. S. 144, 154 (1938).
The City Council’s explanation for exempting benevolent orders and religious corporations from Local Law 63’s coverage reflects a view that these associations are different in kind, at least in the crucial respect of whether business activity is prevalent among them, from the associations on whose behalf appellant has brought suit. Appellant has the burden of showing that this view is erroneous and that the issue is not truly debatable, a burden that appellant has failed to carry. There is no evidence in the record to indicate that a detailed examination of the practices, purposes, and structures of benevolent orders and religious corporations would show them to be identical in this and other critical respects to the private clubs that are covered under the city’s antidis-crimination provisions. Without any such showing, appellant’s facial attack on the Law under the Equal Protection Clause must founder.
We therefore affirm the judgment below.
So ordered.
The Human Rights Law (Local Law No. 97 of 1965) makes it “an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement, because of the race, creed, color, national origin or sex of any person directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof, or, directly or indirectly, to publish, circulate, issue, display, post or mail any written or printed communication, notice or advertisement, to the effect that any of the accommodations, advantages, facilities and privileges of any such place shall be refused, withheld from or denied to any person on account of race, creed, color, national origin or sex or that the patronage or custom thereat of any person belonging to or purporting to be of any particular race, creed, color, national origin, or sex is unwelcome, objectionable or not acceptable, desired or solicited.” N. Y. C. Admin. Code § 8-107(2) (1986). The city has also extended the Law’s coverage to discrimination against “an otherwise qualified person who is physically or mentally handicapped,” § 8-108, and to discrimination against “individuals because of their actual or perceived sexual orientation,” §8-108.1.
The state trial court found that appellant has standing to challenge the validity of the Law, and neither of the other state courts addressed this issue on appeal. Nonetheless, an independent determination of the question of standing is necessary in this Court, for the special limitations that Article III of the Constitution imposes on the jurisdiction of the federal courts are not binding on the state courts. See Pennell v. San Jose, 485 U. S. 1, 8 (1988). The States are thus left free as a matter of their own procedural law to determine whether their courts may issue advisory opinions or to determine matters that would not satisfy the more stringent requirement in the federal courts that an actual “case” or “controversy” be presented for resolution. U. S. Const., Art. Ill, §2. Accordingly, this Court has dismissed cases on appeal from state courts when it appeared that the complaining party lacked standing to contest the law’s validity in the federal courts. Tileston v. Ullman, 318 U. S. 44 (1943) (per curiam); Braxton County Court v. West Virginia ex rel. Tax Comm’rs, 208 U. S. 192 (1908). And the statement that “[b]y exercising their jurisdiction, state courts cannot determine the jurisdiction to be exercised by this Court,” is perhaps all the more applicable to actions brought in state court for declaratory relief. Poe v. Ullman, 367 U. S. 497, 506 (1961) (plurality opinion).
Appellees’ argument to the contrary, based on a footnote in the Rotary opinion, is unavailing. The footnote states that Rotary International, “an association of thousands of local Rotary Clubs, can claim no constitutionally protected right of private association. ” Board of Directors of Rotary Int’l v. Rotary Club, 481 U. S. 537, 545, n. 4 (1987). But there the larger association had brought suit in its own right against one of its member clubs, and was not suing on behalf of any of its members, so the passage is inappo-site to the situation here.
In light of the foregoing analysis, it is not necessary to consider also whether appellant consortium would have standing to sue directly on behalf of its member associations because those associations themselves are suffering some immediate or threatened injury from the Law. In addition, though appellees do not contest either of the other two parts of the Hunt test, those requirements clearly are met in this case. Here the associational interests that the consortium seeks to protect are germane to its purpose: appellant’s certificate of incorporation states that its purpose is “to promote the common business interests of its [member clubs].” App. 38. Moreover, appellant’s facial challenge to the Law does not require the participation of individual members, since there is complete identity between the interests of the consortium and those of its member associations with respect to the issues raised in this suit, and the necessary proof could be presented “in a group context.” Hunt v. Washington Apple Advertising Comm’n, 432 U. S. 333, 344 (1977). See also Automobile Workers v. Brock, 477 U. S. 274, 287-288 (1986).
In making this case-by-case inquiry into the constitutionality of Local Law 63 as applied to particular associations, it is relevant to note that the Court has recognized the State’s “compelling interest” in combating invidious discrimination. See, e. g., Rotary, 481 U. S., at 549.
In its opinion, the Court of Appeals suggested that the three criteria identified in Local Law 63 are not exclusive but are to be considered in conjunction with other relevant characteristics. 69 N. Y. 2d, at 222, 505 N. E. 2d, at 920-921, citing United States Power Squadrons v. State Human Rights Appeal Bd., 59 N. Y. 2d 401, 412-413, 452 N. E. 2d 1199, 1204 (1983).
The Court of Appeals did not separately address the equal protection question other than by affirming the decision of the Appellate Division. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them.
Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. | Who is the respondent of the case? | [
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] | [
2
] | sc_respondent |
BROWN, WARDEN v. PAYTON
No. 03-1039.
Argued November 10, 2004
Decided March 22, 2005
Kennedy, J., delivered the opinion of the Court, in which O’Connor, Scalia, Thomas, and Breyer, JJ., joined. Scalia, J., filed a concurring opinion, in which Thomas, J., joined, post, p. 147. Breyer, J., filed a concurring opinion, post, p. 148. SOUTER, J., filed a dissenting opinion, in which Stevens and Ginsburg, JJ., joined, post, p. 149. Rehnquist, C. J., took no part in the decision of the case.
A. Natalia Cortina, Deputy Attorney General of California, argued the cause for petitioner. With her on the briefs were Bill Lockyer, Attorney General, Manuel M. Medeiros, Staté Solicitor General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steven T. Oetting, Supervising Deputy Attorney General, and Melissa A. Mandel, Deputy Attorney General.
Dean R. Gits argued the cause for respondent. With him on the brief were Maria E. Stratton, Mark R. Drozdowski, and Rosalie L. Rakoff.
Kent S. Scheidegger and Charles L. Hobson filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging reversal.
Justice Kennedy
delivered the opinion of the Court.
The United States Court of Appeals for the Ninth Circuit, convening en banc, granted habeas relief to respondent William Payton. It held that the jury instructions in the penalty phase of his trial for capital murder did not permit consideration of all the mitigation evidence Payton presented. The error, the court determined, was that the general mitigation instruction did not make it clear to the jury that it could consider evidence concerning Payton’s post-crime religious conversion and the prosecutor was allowed to urge this erroneous interpretation. We granted the petition for certiorari, 541 U. S. 1062 (2004), to decide whether the Ninth Circuit’s decision was contrary to the limits on federal habeas review imposed by 28 U. S. C. § 2254(d). We now reverse.
I
In 1980, while spending the night at a boarding house, Pay-ton raped another boarder, Pamela Montgomery, and then used a butcher knife to stab her to death. Payton proceeded to enter the bedroom of the house’s patron, Patricia Pen-singer, and to stab her as she slept aside her 10-year-old son, Blaine. When Blaine resisted, Payton started to stab him as well. Payton’s knife blade bent, and he went to the kitchen to retrieve another. Upon the intervention of other boarders, Payton dropped the second knife and fled.
Payton was arrested and tried for the first-degree murder and rape of Pamela Montgomery and for the attempted murders of Patricia and Blaine Pensinger. Payton presented no evidence in the guilt phase of the trial and was convicted on all counts. The trial proceeded to the penalty phase, where the prosecutor introduced evidence of a prior incident when Payton stabbed a girlfriend; a prior conviction for rape; a prior drug-related felony conviction; and evidence of jailhouse conversations in which Payton admitted he had an “urge to kill” and a “severe problem with sex and women” that caused him to view all women as potential victims to “stab . . . and rape.” People v. Payton, 3 Cal. 4th 1050, 1058, 839 P. 2d 1035, 1040 (1992) (internal quotation marks omitted).
Defense counsel concentrated on Payton’s postcrime behavior and presented evidence from eight witnesses. They testified that in the year and nine months Payton spent in prison since his arrest, he had made a sincere commitment to God, participated in prison Bible study classes and a prison ministry, and had a calming effect on other prisoners.
Before the penalty phase closing arguments, the judge held an in-chambers conference with counsel to discuss jury instructions. He proposed to give — and later did give — an instruction which followed verbatim the text of a California statute. Cal. Penal Code Ann. § 190.3 (West 1988). The instruction set forth 11 different factors, labeled (a) through (k), for the jury to “consider, take into account and be guided by” in determining whether to impose a sentence of life imprisonment or death. 1 Cal. Jury Instr., Crim., No. 8.84.1 (4th rev, ed. 1979).
The in-chambers conference considered in particular the last instruction in the series, the so-called factor (k) instruction. Factor (k) was a catchall instruction, in contrast to the greater specificity of the instructions that preceded it. As set forth in the statute, and as explained to the jury, it directed jurors to consider “[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.” Cal. Penal Code Ann. § 190.3 (West 1988). (The statute has since been amended.)
Defense counsel objected to the instruction and asked that it be modified to direct the jury, in more specific terms, to consider evidence of the defendant’s character and background. The prosecution, on the other hand, indicated that in its view factor (k) was not intended to encompass evidence concerning a defendant’s background or character. The court agreed with defense counsel that factor (k) was a general instruction covering all mitigating evidence. It declined, however, to modify the wording, in part because the instruction repeated the text of the statute. In addition, the court stated: “I assume you gentlemen, as I said, in your argument can certainly relate — relate back to those factors and certainly can argue the defendant’s character, background, history, mental condition, physical condition; certainly fall into category ‘k’ and certainly make a clear argument to the jury.” App. 59.
The judge prefaced closing arguments by instructing the jury that what it would hear from counsel was “not evidence but argument” and “[you] should rely on your own recollection of the evidence.” Id., at 62. In his closing, the prosecutor offered jurors his opinion that factor (k) did not allow them to consider anything that happened “after the [crime] or later.” Id., at 68. The parties do not now dispute that this was a misstatement of law. The defense objected to the comment and moved for a mistrial, which the trial court denied. The court admonished the jury that the prosecutor’s comments were merely argument, but it did not explicitly instruct the jury that the prosecutor’s interpretation was incorrect. Id., at 69-70.
Although the prosecutor again told the jury several times that, in his view, the jury had not heard any evidence of mitigation, he proceeded to argue that the circumstances and facts of the case, coupled with Payton’s prior violent acts, outweighed the mitigating effect of Payton’s newfound Christianity. Id., at 70. He discussed the mitigation evidence in considerable detail and concluded by urging that the circumstances of the case and Payton’s prior violent acts outweighed his religious conversion. Id., at 75-76. In his closing, defense counsel argued to the jury that, although it might be awkwardly worded, factor (k) was a catchall instruction designed to cover precisely the kind of evidence Payton had presented.
The trial court’s final instructions to the jury included the factor (k) instruction, as well as an instruction directing the jury to consider all evidence presented during the trial. Id., at 94. The jury found the special circumstance of murder in the course of committing rape and returned a verdict recommending a death sentence. The judge sentenced Payton to death for murder and to 21 years and 8 months for rape and attempted murder.
On direct appeal to the California Supreme Court, Payton argued that his penalty phase jury incorrectly was led to believe it could not consider the mitigating evidence of his postconviction conduct in determining whether he should receive a sentence of life imprisonment or death, in violation of the Eighth Amendment of the Ü. S. Constitution. Lockett v. Ohio, 438 U. S. 586, 602-609 (1978) (plurality opinion). The text of the factor (k) instruction, he maintained, was misleading, and rendered more so in light of the prosecutor’s argument.
In a 5-to-2 decision, the California Supreme Court rejected Payton’s claims and affirmed his convictions and sentence. 3 Cal. 4th 1050, 839 P. 2d 1035 (1992). Applying Boyde v. California, 494 U. S. 370 (1990), which had considered the constitutionality of the same factor (k) instruction, the state court held that in the context of the proceedings there was no reasonable likelihood that Payton’s jury believed it was required to disregard his mitigating evidence. 3 Cal. 4th, at 1070-1071, 839 P. 2d, at 1048. Payton sought review of the California Supreme Court’s decision here. We declined to grant certiorari. Payton v. California, 510 U. S. 1040 (1994).
Payton filed a petition for a writ of habeas corpus in the United States District Court for the Central District of California, reiterating that the jury was prevented from considering his mitigation evidence. The District Court held that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, did not apply to Payton’s petition because he had filed a motion for appointment of counsel before AEDPA’s effective date, even though he did not file the petition until after that date., The District Court considered his claims de novo and granted the petition.
On appeal to the Court of Appeals for the Ninth Circuit, a divided panel reversed. Payton v. Woodford, 258 F. 3d 905 (2001). The Court of Appeals granted Payton’s petition for rehearing en banc and, by a 6-to-5 vote, affirmed the District Court’s order granting habeas relief. Payton v. Woodford, 299 F. 3d 815 (2002). The en banc panel, like the District Court, held that AEDPA did not govern Payton’s petition. It, too, conducted a de novo review of his claims, and concluded that postcrime mitigation evidence was not encompassed by the factor (k) instruction, a view it found to have been reinforced by the prosecutor’s arguments.
The State petitioned for certiorari. Pursuant to Woodford v. Garceau, 538 U. S. 202 (2003), which held that a request for appointment of counsel did not suffice to make “pending” a habeas petition filed after AEDPA’s effective date, we granted the State’s petition, Woodford v. Payton, 538 U. S. 975 (2003), and remanded to the Court of Appeals for reconsideration of its decision under AEDPA’s deferential standards. See Williams v. Taylor, 529 U. S. 362 (2000).
On remand, the en banc panel affirmed the District Court’s previous grant of habeas relief by the same 6-to-5 vote. Payton v. Woodford, 346 F. 3d 1204 (CA9 2003). In light of Garceau, the Court of Appeals purported to decide the case under the deferential standard AEDPA mandates. It concluded, however, that the California Supreme Court had unreasonably applied this Court’s precedents in holding the factor (k) instruction was not unconstitutionally ambiguous in Payton’s case.
The Court of Appeals relied, as it had in its initial decision, on the proposition that Boyde concerned precrime, not post-crime, mitigation evidence. Boyde, in its view, reasoned that a jury would be unlikely to disregard mitigating evidence as to character because of the long-held social belief that defendants who commit criminal acts attributable to a disadvantaged background may be less culpable than defendants who have no such excuse. As to postcrime mitigating evidence, however, the Court of Appeals concluded that “there is reason to doubt that a jury would similarly consider post-crime evidence of a defendant’s religious conversion and good behavior in prison.” 346 F. 3d, at 1212. It cited no precedent of this Court to support that supposition.
In addition, it reasoned that unlike in Boyde the prosecutor in Payton’s case misstated the law and the trial court did not give a specific instruction rejecting that misstatement, relying instead on a general admonition that counsel's arguments were not evidence. These two differences, the Court of Appeals concluded, made Payton's case unlike Boyde. 346 F. 3d, at 1216. In its view, the factor (k) instruction was likely to have misled the jury and it was an unreasonable application of this Court's cases for the California Supreme Court to have concluded otherwise.
II
AEDPA provides that, when a habeas petitioner's claim has been adjudicated on the merits in state-court proceedings, a federal court may not grant relief unless the state court's adjudication of the claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U. S. C. § 2254(d)(1). A state-court decision is contrary to this Court's clearly established precedents if it applies a rule that contradicts the governing law set forth in our cases, or if it confronts a set of facts that is materially indistinguishable from a decision of this Court but reaches a different result. Williams v. Taylor, supra, at 405; Early v. Packer, 537 U. S. 3, 8 (2002) (per curiam). A state-court decision involves an unreasonable application of this Court's clearly established precedents if the state court applies this Court's precedents to the facts in an objectively unreasonable manner. Williams v. Taylor, supra, at 405; Woodford v. Visciotti, 537 U. S. 19, 24-25 (2002) (per curiam). These conditions for the grant of federal habeas relief have not been established.
A.
The California Supreme Court was correct to identify Boyde as the starting point for its analysis. Boyde involved a challenge to the same instruction at issue here, factor (k). As to the text of factor (k), Boyde established that it does not limit the jury’s consideration of extenuating circumstances solely to circumstances of the crime. See 494 U. S., at 382. In so holding, we expressly rejected the suggestion that factor (k) precluded the jury from considering evidence pertaining to a defendant’s background and character because those circumstances did not concern the crime itself. Boyde instead found that factor (k), by its terms, directed the jury to consider any other circumstance that might excuse the crime, including factors related to a defendant’s background and character. We held:
“The [factor (k)] instruction did not, as petitioner seems to suggest, limit the jury’s consideration to ‘any other circumstance of the crime which extenuates the gravity of the crime.’ The jury was directed to consider any other circumstance that might excuse the crime, which certainly includes a defendant’s background and character.” Ibid, (emphasis in original).
The California Supreme Court read Boyde as establishing that the text of factor (k) was broad enough to accommodate the postcrime mitigating evidence Payton presented. People v. Payton, 3 Cal. 4th, at 1070, 839 P. 2d, at 1048. The Court of Appeals held Boyde’s reasoning did not control Pay-ton’s case because Boyde concerned precrime, not postcrime, mitigation evidence. 346 F. 3d, at 1211-1212.
We do not think that, in light of Boyde, the California Supreme Court acted unreasonably in declining to distinguish between precrime and postcrime mitigating evidence. After all, Boyde held that factor (k) directed consideration of any circumstance that might excuse the crime, and it is not unreasonable to believe that a postcrime character transformation could do so. Indeed, to accept the view that such evidence could not because it occurred after the crime, one would have to reach the surprising conclusion that remorse could never serve to lessen or excuse a crime. But remorse, which by definition can only be experienced after a crime’s commission, is something commonly thought to lessen or excuse a defendant’s culpability.
B
That leaves respondent to defend the decision of the Court of Appeals on grounds that, even if it was at least reasonable for the California Supreme Court to conclude that the text of factor (k) allowed the jury to consider the postcrime evidence, it was unreasonable to conclude that the prosecutor’s argument and remarks did not mislead the jury into believing it could not consider Payton’s mitigation evidence. As we shall explain, however, the California Supreme Court’s conclusion that the jury was not reasonably likely to have accepted the prosecutor’s narrow view of factor (k) was an application of Boyde to similar but not identical facts. Even on the assumption that its conclusion was incorrect, it was not unreasonable, and is therefore just the type of decision that AEDPA shields on habeas review.
The following language from Boyde should be noted at the outset:
“We think the proper inquiry in such a case is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence. . . . Jurors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting.” 494 U. S., at 380-381 (footnote omitted).
Unlike in Boyde the prosecutor here argued to jurors during his closing that they should not consider Payton’s mitigation evidence, evidence which concerned postcrime as opposed to precrime conduct. Because Boyde sets forth a general framework for determining whether a challenged instruction precluded jurors from considering a defendant's mitigation evidence, however, the California Supreme Court. was correct to structure its own analysis on the premises that controlled Boyde. The Boyde analysis applies here, and, even if it did not dictate a particular outcome in Payton’s case, it refutes the conclusion of the Court of Appeals that the California Supreme Court was unreasonable.
The prosecutor’s mistaken approach appears most prominently at three different points in the penalty phase. First, in chambers and outside the presence of the jury he argued to the judge that background and character (whether of pre-crime or postcrime) was simply beyond the ambit of the instruction. Second, he told the jurors in his closing statement that factor (k) did not allow them to consider what happened “after the [crime] or later.” App. 68. Third, after defense counsel objected to his narrow view, he argued to the jury that it had not heard any evidence of mitigation. Id., at 70. Boyde, however, mandates that the whole context of the trial be considered. And considering the whole context of the trial, it was not unreasonable for the state court to have concluded that this line of prosecutorial argument did not put Payton’s mitigating evidence beyond the jury’s reach.
The prosecutor’s argument came after the defense presented eight witnesses, spanning two days of testimony without a single objection from the prosecution as to its relevance. As the California Supreme Court recognized, like in Boyde, for the jury to have believed it could not consider Payton’s mitigating evidence, it would have had to believe that the penalty phase served virtually no purpose at all. Payton’s counsel recognized as much, arguing to the jury that “[t]he whole purpose for the second phase [of the] trial is to decide the proper punishment to be imposed. Everything that was presented by the defense'relates directly to that.” App. 88. He told the jury that if the evidence Pay-ton presented was not entitled to consideration, and therefore “all the evidence we presented [would not be] applicable, why didn’t we hear any objections to its relevance?” Ibid. The prosecutor was not given an opportunity to rebut defense counsel’s argument that factor (k) required the jury to consider Payton’s mitigating evidence.
For his part, the prosecutor devoted specific attention to disputing the sincerity of Payton’s evidence, stating that “everybody seems to get religion in jail when facing the death penalty” and that “[sjtate prison is full of people who get religion when they are in jail.” Id., at 74. Later, he intimated the timing of Payton’s religious conversion was suspect, stating “he becomes a newborn Christian, after he’s in custody” after “he gets caught.” Ibid. As the California Supreme Court reasonably surmised, this exercise would have been pointless if the jury believed it could not consider the evidence.
Along similar lines, although the prosecutor characterized Payton’s evidence as not being evidence of mitigation, he devoted substantial attention to discounting its importance as compared to the aggravating factors. He said:
“The law in its simplicity is that the aggravating — if the aggravating factors outweigh the mitigating, the sentence the jury should vote for should be the death penalty. How do the factors line up? The circumstances and facts of the case, the defendant’s other acts showing violence . . . , the defendant’s two prior convictions line up against really nothing except [the] defendant’s newborn Christianity and the fact that he’s 28 years old. This is not close. You haven’t heard anything to mitigate what he’s done. If you wanted to distribute a thousand points over the factors, 900 would have to go to what he did to [the victim], and I really doubt if [defense counsel] would dispute that breakdown of the facts.” Id., at 76.
Indeed, the prosecutor characterized testimony concerning Payton’s religious conversion as “evidence” on at least four separate occasions. Id., at 68, 70, 73. In context, it was not unreasonable for the state court to conclude that the jury believed Payton’s evidence was neither credible nor sufficient to outweigh the aggravating factors, not that it was not evidence at all.
To be sure, the prosecutor advocated a narrow interpretation of factor (k), an interpretation that neither party accepts as correct. There is, however, no indication that the prosecutor’s argument was made in bad faith, nor does Payton suggest otherwise. In addition, the first time the jury was exposed to the prosecutor’s narrow and incorrect view of factor (k), it had already heard the entirety of Payton’s mitigating evidence. Defense counsel immediately objected to the prosecutor’s narrow characterization, and the trial court, noting at a side bar that one could “argue it either way,” admonished the jury that “the comments by both the prosecution and the defense are not evidence. You’ve heard the evidence and, as I said, this is argument. And it’s to be placed in its proper perspective.” Id., at 69-70.
The trial judge, of course, should have advised the jury that it could consider Payton’s evidence under factor (k), and allowed counsel simply to argue the evidence’s persuasive force instead of the meaning of the instruction itself. The judge is, after all, the one responsible for instructing the jury on the law, a responsibility that may not be abdicated to counsel. Even in the face of the trial court’s failure to give an instant curative instruction, however, it was not unreasonable to find that the jurors did not likely believe Payton’s mitigation evidence beyond their reach. The jury was not left without any judicial direction. Before it began deliberations as to what penalty was appropriate, the court instructed it to consider all evidence received “during any part of the trial in this case, except as you may be hereafter instructed,” id., at 94, and it was not thereafter instructed to disregard anything. It was also instructed as to factor (k) which, as we held in Boyde, by its terms directs jurors to consider any other circumstance that might lessen a defendant’s culpability.
Testimony about a religious conversion spanning one year and nine months may well have been considered altogether insignificant in light of the brutality of the crimes, the prior offenses, and a proclivity for committing violent acts against women. It was not unreasonable for the state court to determine that the jury most likely believed that the evidence in mitigation, while within the reach of the factor (k) instruction, was simply too insubstantial to overcome the arguments for imposing the death penalty; nor was it unreasonable for the state court to rely upon Boyde to support its analysis. Even were we to assume the “ ‘relevant state-court decision applied clearly established federal law erroneously or incorrectly,’ ” Lockyer v. Andrade, 538 U. S. 63, 76 (2003) (quoting Williams v. Taylor, 529 U. S., at 411), there is no basis for further concluding that the application of our precedents was “objectively unreasonable,” Lockyer, supra, at 76. The Court of Appeals made this last mentioned assumption, and it was in error to do so. The judgment of the Ninth Circuit is reversed.
It is so ordered.
The Chief Justice took no part in the decision of this case. | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases. | What is the ideological direction of the decision? | [
"Conservative",
"Liberal",
"Unspecifiable"
] | [
0
] | sc_decisiondirection |
AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY & MOTOR COACH EMPLOYEES OF AMERICA, DIVISION 998, et al. v. WISCONSIN EMPLOYMENT RELATIONS BOARD et al.
No. 330.
Argued January 9-10, 1951.
Decided February 26, 1951.
David Previant argued the cause and filed a brief for petitioners.
Malcolm L. Riley and Beatrice Lampert, Assistant Attorneys General of Wisconsin, argued the cause for the Wisconsin Employment Relations Board et al., respondents. With Mr. Riley on the brief were Vernon W. Thomson, Attorney General, Thomas E. Fairchild, then Attorney General, and Stewart G. Honeck, Deputy Attorney General.
Martin R. Paulsen argued the cause for the Milwaukee Electric Railway & Transport Company, respondent. With him on the brief was Van B. Wake.
Briefs of amici curiae urging reversal were filed by Solicitor General Perlman, David P. Findling and Mozart G. Batner for the National Labor Relations Board; and J. Albert Woll, James A. Glenn and Herbert S. Thatcher for the American Federation of Labor.
Briefs of amici curiae urging affirmance were filed by Harold R. Fatzer, Attorney General, for the State of Kansas; Clarence S. Beck, Attorney General, and Bert L. Overcash, Assistant Attorney General, for the State of Nebraska; and Theodore D. Parsons, Attorney General, and Benjamin C. Van Tine for the State of New Jersey.
Mr. Chief Justice Vinson
delivered the opinion of the Court.
The parties to this case are the same transit workers, the same transit company, and the Wisconsin Employment Relations Board before the Court in No. 329, decided this day, ante, p. 383. This action arises out of the same threatened strike discussed in that case. After a restraining order had led to postponement of the strike, the Wisconsin Board appointed arbitrators to “hear and determine” the dispute in accordance with the terms of the Wisconsin Public Utility Anti-Strike Law. Wis. Stat., 1949, § 111.55. Upon the filing of the arbitrators’ award, petitioners filed an action in a state circuit court to review that award. Id., § 111.60. That court affirmed the award and the Wisconsin Supreme Court affirmed, 257 Wis. 53, 42 N. W. 2d 477 (1950). We granted certiorari in this case together with No. 329, 340 U. S. 874 (1950).
In the courts below and in this Court, petitioners attack the arbitration award on the same grounds urged against the Wisconsin Act as a whole in No. 329, and, in addition, raise issues peculiar to the arbitration phase of that act. But we do not reach these issues since it is clear that this case has become moot.
The arbitration, award became effective on April 11, 1949. Under the Wisconsin Act, that award “shall continue effective for one year from that date,” unless sooner terminated by agreement of the parties. Wis. Stat., 1949, § 111.59. We are informed that this award was superseded by agreement, and, in any event, the one-year period has elapsed. There being no subject matter upon which the judgment of this Court can operate, the cause is moot.
It is argued that the Wisconsin courts have adopted a practice of deciding questions of importance even though the case has become moot, and we are urged to follow that same practice. But whatever the practice in Wisconsin courts, “A federal court is without power to decide moot questions or to give advisory opinions which cannot affect the rights of the litigants in the case before it. United States v. Alaska S. S. Co., 253 U. S. 113, 115-16, and cases cited; United States v. Hamburg-American Co., 239 U. S. 466, 475-77.” St. Pierre v. United States, 319 U. S. 41, 42 (1943).
It appearing that the cause has become moot, the judgment of the Supreme Court of Wisconsin is vacated without costs and the cause is remanded for such proceedings as by that court may be deemed appropriate.
It is so ordered.
It has also been argued that No. 329 and No. 438 are moot by reason of the settlement of the immediate dispute which led to the strike action in each case. The injunction before us in No. 329 is "perpetual” by its terms so that the action does not become moot even though the decree be obeyed. J. I. Case Co. v. Labor Board, 321 U. S. 332, 334 (1944); Federal Trade Comm’n v. Goodyear Tire & Rubber Co., 304 U. S. 257, 260 (1938), and cases cited therein. As to No. 438, the judgment below imposes fines upon petitioners. No question of mootness can be raised so long as enforcement of that judgment is sought. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss. | What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed? | [
"stay, petition, or motion granted",
"affirmed (includes modified)",
"reversed",
"reversed and remanded",
"vacated and remanded",
"affirmed and reversed (or vacated) in part",
"affirmed and reversed (or vacated) in part and remanded",
"vacated",
"petition denied or appeal dismissed",
"certification to or from a lower court",
"no disposition"
] | [
4
] | sc_casedisposition |
PARKE, WARDEN v. RALEY
No. 91-719.
Argued October 5, 1992
Decided December 1, 1992
O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Stevens, Scalia, Kennedy, Souter, and Thomas, JJ., joined. Blackmun, J., filed an opinion concurring in the judgment, post, p. 37.
Ian G. Sonego, Assistant Attorney General of Kentucky, argued the cause for petitioner. With him on the briefs were Chris Gorman, Attorney General, and David A. Sexton, Assistant Attorney General.
John F. Manning argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Starr, Assistant Attorney General Mueller, Deputy Solicitor General Bryson, and Sean Connelly.
J. Gregory Clare, by appointment of the Court, 503 U. S. 957, argued the cause for respondent. With him on the brief was Mark R. Brown.
Kent S. Scheidegger filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging reversal.
Justice O’Connor
delivered the opinion of the Court.
Kentucky’s “Persistent felony offender sentencing” statute, Ky. Rev. Stat. Ann. §532.080 (Michie 1990), provides mandatory minimum sentences for repeat felons. Under Kentucky law, a defendant charged as a persistent felony offender may challenge prior convictions that form the basis of the charge on the ground that they are invalid. Respondent, who was indicted under the statute, claimed that two convictions offered against him were invalid under Boykin v. Alabama, 395 U. S. 238 (1969). The trial court, after a hearing, rejected this claim, and respondent was convicted ánd sentenced as a persistent felony offender. After exhausting his state remedies, respondent petitioned for a writ of habeas corpus in the United States District Court for the Western District of Kentucky. The District Court denied relief, but the Court of Appeals for the Sixth Circuit ordered that the writ conditionally issue, concluding that the trial court proceedings were constitutionally infirm. As it comes to this Court, the question presented is whether Kentucky’s procedure for determining a prior conviction’s validity under Boykin violates the Due Process Clause of the Fourteenth Amendment because It does not require the government to carry the entire burden of proof by clear and convincing evidence when a transcript of the prior plea proceeding is unavailable.
In May 1986, the Commonwealth charged respondent Ricky Harold Raley with robbery and with being a persistent felony offender in the first degree. The latter charge was based on two burglaries to which respondent had pleaded guilty in November 1979 and October 1981. Respondent never appealed his convictions for those crimes. He nevertheless moved to suppress them in the persistent felony offender proceeding, arguing that they were invalid under Boykin because the records did not contain transcripts of the plea proceedings and hence did not affirmatively show that respondent’s guilty pleas were knowing and voluntary.
The trial court held a hearing according to procedures set forth in Commonwealth v. Gadd, 665 S. W. 2d 915 (Ky. 1984), and Dunn v. Commonwealth, 703 S. W. 2d 874 (Ky. 1985), cert. denied, 479 U. S. 832 (1986). In Gadd, the Supreme Court of Kentucky observed that the persistent felony offender statute requires that the prosecution prove only the fact of a previous conviction beyond a reasonable doubt; the Commonwealth need not also show that the conviction was validly obtained. 665 S. W. 2d, at 917. But, citing Burgett v. Texas, 389 U. S. 109 (1967), the court also held that defendants must be able to attack a prior conviction’s invalidity. 665 S. W. 2d, at 917. Dunn v. Commonwealth clarified the procedures to be followed. When a defendant challenges a previous conviction through a suppression motion, the Commonwealth must prove the existence of the judgment on which it intends to rely. Once this is done, a presumption of regularity attaches, and the burden shifts to the defendant to produce evidence that his rights were infringed or some procedural irregularity occurred in the earlier proceeding. If the defendant refutes the presumption of regularity, the burden shifts back to the government affirmatively to show that the underlying judgment was entered in a manner that did, in fact, protect the defendant’s rights. 703 S. W. 2d, at 876.
After the prosecution filed certified copies of the prior judgments of conviction for burglary, both sides presented evidence about the earlier plea proceedings. Respondent testified that he had an 11th grade education, that he read adequately, that he was not intoxicated or otherwise mentally impaired when he entered the challenged pleas, and that he was represented by counsel on both occasions. He remembered the trial judge in each case asking him whether his plea was voluntary, but he said he could not remember whether he was specifically told about the rights he waived by pleading guilty. The government’s evidence showed that in the 1979 proceeding, respondent signed (though he later claimed not to have read) a “Plea of Guilty” form, which stated that he understood the charges against him, the maximum punishment he faced, his constitutional rights, and that a guilty plea waived those rights. The attorney who represented respondent in the first case verified his own signature on another part of the form indicating that he had fully explained respondent’s rights to him. As to the 1981 plea, respondent acknowledged signing a form that specified the charges to which he agreed to plead guilty. He also admitted that the judge had at least advised him of his right to a jury trial.
Based on this evidence, the trial court denied respondent’s suppression motion. Respondent then entered a conditional guilty plea on the robbery and the persistent felony offender counts, reserving the right to appeal the suppression determination. The trial court sentenced him to 5 years for robbery, enhanced to 10 because of the persistent felony offender conviction.
The Kentucky Court of Appeals affirmed. It found the totality of circumstances surrounding the 1979 plea sufficient to support a finding that the plea was knowing and voluntary. It also upheld use of the 1981 conviction. The court explained that respondent’s knowledge of his rights in November 1979 permitted an inference that he remained aware of them 23 months later. Respondent’s testimony, moreover, indicated that his sophistication regarding his legal rights had increased substantially after his first conviction. The Supreme Court of Kentucky denied discretionary review.
Respondent then filed a federal habeas petition, arguing that the Kentucky courts had erred in requiring him to adduce evidence, rather than requiring the Commonwealth affirmatively to prove the prior convictions’ validity. The District Court denied the petition for essentially the same reasons given by the Kentucky Court of Appeals. Raley v. Parke, Civ. Action No. C89-0756-L(A) (WD Ky., Mar. 15, 1990). The Court of Appeals for the Sixth Circuit, however, agreed with respondent, relying on its recent decision in Dunn v. Simmons, 877 F. 2d 1275 (1989), cert. denied, 494 U. S. 1061 (1990). 945 F. 2d 137 (1991). Simmons held that when no transcript of the prior guilty plea proceeding exists, the prosecution has the entire burden of establishing the plea’s validity, and no presumption of regularity attaches to the final judgment. 877 F. 2d, at 1277. It also held that when the prosecution seeks to demonstrate the regularity of the prior proceeding with extrarecord evidence, that evidence must be “clear and convincing.” Ibid. Although Simmons was decided after respondent’s persistent felony offender conviction became final, the Commonwealth did not argue that Teague v. Lane, 489 U. S. 288 (1989), barred its application to this case. Cf. Collins v. Youngblood, 497 U. S. 37, 40-41 (1990) (Teague not jurisdictional).
The Court of Appeals affirmed the District Court’s determination with respect to the 1979 plea but reversed with respect to the 1981 plea. It declined to infer that respondent remembered his rights from 1979, reasoning that such an inference would give rise to line-drawing problems and would discriminate improperly between accused recidivists and first offenders on the basis of prior court experience. The Court of Appeals observed that because the trial court hearing took place before Simmons was decided, the Commonwealth had not yet had an opportunity to try to meet the higher standard of proof that decision imposed. Thus, rather than issue the writ of habeas corpus outright, the Court of Appeals directed the District Court to grant the writ if Kentucky did not hold a new hearing on the validity of the 1981 conviction in compliance with Simmons within 90 days. We granted certiorari. 503 U. S. 905 (1992).
K
>
Statutes that punish recidivists more severely than first offenders have a long tradition in this country that dates back to colonial times. See, e..g., I The Acts and Resolves, Public and Private, of the Province of Massachusetts Bay 52 (Boston 1869) (1692 statute providing progressive punishments for robbery and burglary); 3 Laws of Virginia 276-278 (W. Henning ed. 1823) (1705 recidivism statute dealing with hog stealing); see also Graham v. West Virginia, 224 U. S. 616, 623 (1912). Such laws currently are in effect in all 50 States, see Department of Justice, Statutes Requiring the Use of Criminal History Record Information 17-41 (June 1991) (NJC-129846), and several have been enacted by the Federal Government, as well, see, e. g., 18 U. S. C. § 924(e) (Armed Career Criminal Act); 21 U. S. C. §§ 842(c)(2)(b), 843(c), 844(a) (provisions of the Controlled Substances Act); see also United States Sentencing Commission, Guidelines Manual §4A1.1 (Nov. 1992) (prior criminal conduct enhances criminal history for purpose of determining sentencing range).
States have a valid interest in deterring and segregating habitual criminals. See Rummel v. Estelle, 445 U. S. 263, 284 (1980). We have said before that a charge under a recidivism statute does not state a separate offense, but goes to punishment only. See Oyler v. Boles, 368 U. S. 448, 452 (1962); Graham, supra, at 623-624; McDonald v. Massachusetts, 180 U. S. 311, 313 (1901). And we have repeatedly upheld recidivism statutes “against contentions that they violate constitutional strictures dealing with double jeopardy, ex post facto laws, cruel and unusual punishment, due process, equal protection, and privileges and immunities.” Spencer v. Texas, 385 U. S. 554, 560 (1967) (citing Oyler, supra; Gryger v. Burke, 334 U. S. 728 (1948); Graham, supra; McDonald, supra; Moore v. Missouri, 159 U. S. 673 (1895)). But see Solem v. Helm, 463 U. S. 277 (1983) (life sentence without parole imposed under recidivism statute violated Eighth Amendment when current conviction was for passing a bad check and prior offenses were similarly minor).
The States’ freedom to define the types of convictions that may be used for sentence enhancement is not unlimited. In Burgett v. Texas, 389 U. S. 109 (1967), we held that uncoun-seled convictions cannot be used “against a person either to support guilt or enhance punishment for another offense.” Id., at 115. This Court has nevertheless also expressed a willingness to uphold, under the Due Process Clause, a variety of state procedures for implementing otherwise valid recidivism statutes. See Spencer, supra (due process allows government to introduce proof of past convictions before jury has rendered guilt determination for current offense); Oyler, supra (due process does not require advance notice that trial for substantive offense will be followed by habitual-criminal accusation). As Justice Harlan observed 25 years ago in Spencer, the Court is not “a rule-making organ for the promulgation of state rules of criminal procedure.” 385 U. S., at 564. “Tolerance for a spectrum of state procedures dealing with [recidivism] is especially appropriate” given the high rate of recidivism and the diversity of approaches that States have developed for addressing it. Id., at 566. We think this reasoning remains persuasive today; studies suggest that as many as two-thirds of those arrested have prior criminal records, often from other jurisdictions. See Department of Justice, supra, at 1; see also Spencer, supra, at 566, n. 9. The narrow question we face is whether due process permits Kentucky to employ its particular burden-of-proof scheme when allowing recidivism defendants to attack previous convictions as invalid under Boykin. In our view, Kentucky’s burden-shifting rule easily passes constitutional muster.
B
As an initial matter, we decline to reach the broad argument advanced by petitioner and the Solicitor General that Kentucky’s procedure is a fortiori constitutional because, with narrow exceptions not applicable here, due process does not require state courts to permit challenges to guilty pleas used for enhancement purposes at all. Petitioner did not make this argument below or in his petition for certiorari. We ordinarily do not reach issues not raised in the petition for certiorari, see Yee v. Escondido, 503 U. S. 519, 535 (1992), and it is unnecessary for us to determine whether States must allow recidivism defendants to challenge prior guilty pleas because Kentucky does allow such challenges. We turn, then, to the question before us.
It is beyond dispute that a guilty plea must be both knowing and voluntary. See, e. g., Boykin, 395 U. S., at 242; Mc Carthy v. United States, 394 U. S. 459, 466 (1969). “The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” North Carolina v. Alford, 400 U. S. 25, 31 (1970). That is so because a guilty plea constitutes a waiver of three constitutional rights: the right to a jury trial, the right to confront one’s accusers, and the privilege against self-incrimination. Boykin, 395 U. S., at 243.
In Boykin the Court found reversible error when a trial judge accepted a defendant’s guilty plea without creating a record affirmatively showing that the plea was knowing and voluntary. Id., at 242. The Sixth Circuit thought rejection of Kentucky’s burden-shifting scheme compelled by Boykin’s statement that the waiver of rights resulting from a guilty plea cannot be “presume[d] . . . from a silent record.” Id., at 243. Kentucky favors the prosecution with only an initial presumption upon proof of the existence of a prior judgment; but because a defendant may be unable to offer rebuttal evidence, the Sixth Circuit reasoned that Kentucky’s procedure improperly permits the Commonwealth to carry its burden of persuasion upon a “bare record of a conviction.” Simmons, 877 F. 2d, at 1278.
We see no tension between the Kentucky scheme and Boy-kin. Boykin involved direct review of a conviction allegedly based upon an uninformed guilty plea. Respondent, however, never appealed his earlier convictions. They became final years ago, and he now seeks to revisit the question of their validity in a separate recidivism proceeding. To import Boykin’s presumption of invalidity into this very different context would, in our view, improperly ignore another presumption deeply rooted in our jurisprudence: the “presumption of regularity” that attaches to final judgments, even when the question is waiver of constitutional rights. Johnson v. Zerbst, 304 U. S. 458, 464, 468 (1938). Although we are perhaps most familiar with this principle in habeas corpus actions, see, e. g., Barefoot v. Estelle, 463 U. S. 880, 887 (1983); Johnson, supra, it has long been applied equally to other forms of collateral attack, see, e. g., Voorhees v. Jackson, 10 Pet. 449, 472 (1836) (observing, in a collateral challenge to a court-ordered sale of property in an ejectment action, that “[tjhere is no principle of law better settled, than that every act of a court of competent jurisdiction shall be presumed to have been rightly done, till the contrary appears”). Respondent, by definition, collaterally attacked his previous convictions; he sought to deprive them of their normal force and effect in a proceeding that had an independent purpose other than to overturn the prior judgments. See Black’s Law Dictionary 261 (6th ed. 1990); see also Lewis v. United States, 445 U. S. 55, 58, 65 (1980) (challenge to un-counseled prior conviction used as predicate for subsequent conviction characterized as “collateral”).
There is no good reason to suspend the presumption of regularity here. This is not a case in which an extant transcript is suspiciously “silent” on the question whether the defendant waived constitutional rights. Evidently, no transcripts or other records of the earlier plea colloquies exist at all. Transcripts of guilty plea proceedings are normally made in Kentucky only if a direct appeal is taken or upon the trial judge’s specific direction, Tr. of Oral Arg. 13-14, and the stenographer’s notes and any tapes made of the proceedings normally are not preserved more than five years, id., at 16-17. The circumstance of a missing or nonexistent record is, we suspect, not atypical, particularly when the prior conviction is several years old. But Boykin colloquies have been required for nearly a quarter century. On collateral review, we think it defies logic to presume from the mere unavailability of a transcript (assuming no allegation that the unavailability is due to governmental misconduct) that the defendant was not advised of his rights. In this situation, Boykin does not prohibit a state court from presuming, at least initially, that a final judgment of conviction offered for purposes of sentence enhancement was validly obtained.
Burgett v. Texas, 389 U. S. 109 (1967), does not necessitate a different result. There the Court held that a prior conviction could not be used for sentence enhancement because the record of the earlier proceeding did not show that the defendant had waived his right to counsel. Id., at 114-115. Respondent suggests that because Burgett involved a state recidivism proceeding, it stands for the proposition that every previous conviction used to enhance punishment is “presumptively void” if waiver of a claimed constitutional right does not appear from the face of the record. Brief for Respondent 14-15. We do not read the decision so broadly. At the time the prior conviction at issue in Burgett was entered, state criminal defendants’ federal constitutional right to counsel had not yet been recognized, and so it was reasonable to presume that the defendant had not waived a right he did not possess. As we have already explained, the same cannot be said about a record that, by virtue of its unavailability on collateral review, fails to show compliance with the well-established Boykin requirements.
Respondent argues that imposing even a burden of production on him is fundamentally unfair because “a constitutionally protected right is in question.” Brief for Respondent 15. By this he apparently refers to the Fifth and Sixth Amendment rights that a defendant waives by pleading guilty. Our precedents make clear, however, that even when a collateral attack on a final conviction rests on constitutional grounds, the presumption of regularity that attaches to final judgments makes it appropriate to assign a proof burden to the defendant. See, e. g., Johnson, supra, at 468-469.
Respondent also contends that Kentucky’s rule is unfair because it may be difficult to prove the invalidity of a conviction entered many years ago, perhaps in another jurisdiction, when records are unavailable and witnesses inaccessible. We have little doubt that serious practical difficulties will confront any party assigned an evidentiary burden in such circumstances. See Loper v. Beto, 405 U. S. 473, 500-501 (1972) (Rehnquist, J., dissenting). “The Due Process Clause does not, however, require a State to adopt one procedure over another on the basis that it may produce results more favorable to the accused.” Medina v. California, 505 U. S. 437, 451 (1992). When a defendant challenges the validity of a previous guilty plea, the government will not invariably, or perhaps even usually, have superior access to evidence. Indeed, when the plea was entered in another jurisdiction, the defendant may be the only witness who was actually present at the earlier proceeding. If raising a Boy-kin claim and pointing to a missing record suffices to place the entire burden of proof on the government, the prosecution will not infrequently be forced to expend considerable effort and expense attempting to reconstruct records from farflung States where procedures are unfamiliar and memories unreliable. To the extent that the government fails to carry its burden due to the staleness or unavailability of evidence, of course, its legitimate interest in differentially punishing repeat offenders is compromised. In light of the relative positions of the defendant and the prosecution in recidivism proceedings, we cannot say that it is fundamentally unfair to place at least a burden of production on the defendant.
Respondent cites no historical tradition or contemporary practice indicating that Kentucky’s scheme violates due process. See Medina, supra, at 446, 447. For much of our history, it appears that state courts altogether prohibited defendants in recidivism proceedings from challenging prior convictions as erroneous, as opposed to void for lack of jurisdiction. See, e. g., Kelly v. People, 115 Ill. 583, 588, 4 N. E. 644, 645-646 (1886); accord, State v. Webb, 36 N. D. 235, 243, 162 N. W. 358, 361 (1917). In recent years state courts have permitted various challenges to prior convictions and have allocated proof burdens differently. Some, like the Sixth Circuit, evidently place the full burden on the prosecution. See, e. g., State v. Elling, 11 Ohio Misc. 2d 13, 15, 463 N. E. 2d 668, 670 (Com. Pl. 1983) (challenge to allegedly uncounseled conviction); State v. Hennings, 100 Wash. 2d 379, 382, 670 P. 2d 256, 257 (1983) (challenge to guilty plea). Others assign the entire burden to the defendant once the government has established the fact of conviction. See, e. g., People v. Harris, 61 N. Y. 2d 9, 15, 459 N. E. 2d 170, 172 (1983) (guilty plea); see also D. C. Code Ann. §23-111(c)(2) (1989); N. C. Gen. Stat. § 15A-980(c) (1988). Several, like Kentucky, take a middle position that requires the defendant to produce evidence of invalidity once the fact of conviction is proved but that shifts the burden back to the prosecution once the defendant satisfies his burden of production. See, e. g., Watkins v. People, 655 P. 2d 834, 837 (Colo. 1982) (guilty plea); State v. O’Neil, 91 N. M. 727, 729, 580 P. 2d 495, 497 (Ct. App. 1978) (uncounseled conviction); State v. Triptow, 770 P. 2d 146, 149 (Utah 1989) (same). This range of contemporary state practice certainly does not suggest that allocating some burden to the defendant is fundamentally unfair.
Interpretations of analogous federal laws by the Courts of Appeals point even more strongly away from respondent’s position. Under the Armed Career Criminal Act, 18 U. S. C. § 924(e), Courts of Appeals have placed on the defendant the entire burden of proving the invalidity of a prior conviction based on a guilty plea. See, e. g., United States v. Gallman, 907 F. 2d 639, 643-645 (CA7 1990), cert. denied, 499 U. S. 908 (1991); accord, United States v. Paleo, 967 F. 2d 7, 13 (CA1 1992); United States v. Day, 949 F. 2d 973, 982-983 (CA8 1991); United States v. Ruo, 943 F. 2d 1274, 1276 (CA11 1991). Courts of Appeals have also allocated the full burden of proof to . defendants claiming that an invalid guilty plea renders a prior conviction unavailable for purposes of calculating criminal history under the Sentencing Guidelines. See, e. g., United States v. Boyer, 931 F. 2d 1201, 1204-1205 (CA7), cert. denied, 502 U. S. 873 (1991). And the text of the Comprehensive Drug Abuse Prevention and Control Act of 1970 itself clearly provides that a defendant raising a constitutional challenge to a prior conviction used for sentence enhancement bears the burden of proof. See 21 U. S. C. § 851(c)(2).
In sum, neither our precedents nor historical or contemporary practice compel the conclusion that Kentucky’s burden-shifting rule violates due process, and we cannot say that the rule is fundamentally unfair in its operation. Accordingly, we hold that the Due Process Clause permits a State to impose a burden of production on a recidivism defendant who challenges the validity of a prior conviction under Boykin.
C
Petitioner also challenges the Sixth Circuit’s holding that the prosecution’s extrarecord evidence must be clear and convincing. In petitioner’s view, the preponderance of the evidence standard applicable to constitutional claims raised on federal habeas, see, e. g., Johnson, 304 U. S., at 468-469, is appropriate. The Sixth Circuit based its conclusion to the contrary on Boykin, observing that an “extraordinary standard of persuasion” is justified “in view of misgivings inherent in ‘collateral proceedings that seek to probe murky memories.’” Simmons, 877 F. 2d, at 1277 (quoting Boykin, 395 U. S., at 244); see also Roddy v. Black, 516 F. 2d 1380, 1384 (CA6), cert. denied, 423 U. S. 917 (1975). Respondent, in support of the Sixth Circuit’s heightened standard, reiterates his arguments regarding the importance of the constitutional rights at stake and the government’s position relative to the defendant’s.
Our analysis of this question parallels our discussion of the proper allocation of proof burdens. Boykin did not address the question of measure of proof, and even if it had, it would not necessarily follow that the same standard should apply in recidivism proceedings. We find respondent’s arguments no more persuasive here than they were in the allocation context. Given the difficulties of proof for both sides, it is not obvious to us that, once a State assigns the government the burden of persuasion, requiring anything less than clear and convincing extrinsic evidence is fundamentally unfair. Again, we are pointed to no historical tradition setting the standard of proof at this particular level. And contemporary practice is far from uniform; state courts that impose the ultimate burden on the government appear to demand proof ranging from preponderance, see Triptow, supra, at 149; Watkins, supra, at 837, to beyond a reasonable doubt, see Hennings, supra, at 382, 670 P. 2d, at 257. We are therefore unprepared to say that when the government carries the ultimate burden of persuasion and no transcript of the prior proceeding exists, the Due Process Clause requires the Commonwealth to prove the validity of the conviction by clear and convincing extrarecord evidence.
III
Respondent no longer challenges the validity of his 1979 plea. Thus, the final issue before us is whether the Kentucky courts properly concluded that respondent’s 1981 guilty plea was valid. For the proper standard of review, petitioner cites Marshall v. Lonberger, 459 U. S. 422 (1983), a case quite similar to this one. In Lonberger, the state defendant challenged a prior conviction used to obtain a death sentence on the ground that the conviction was based on a guilty plea invalid under Boykin. We held that although “the governing standard as to whether a plea of guilty is voluntary for purposes of the Federal Constitution is a question of federal law,” 459 U. S., at 431, questions of historical fact, including inferences properly drawn from such facts, are in this context entitled to the presumption of correctness accorded state court factual findings under 28 U. S. C. § 2254(d), Lonberger, supra, at 431-432; cf. Miller v. Fenton, 474 U. S. 104, 113, 115, 117 (1985) (holding that the question whether a confession is voluntary is subject to independent federal determination, expressly distinguishing Lonberger). We said that the federal habeas courts in Lonberger were bound to respect the contents of the record of the prior plea proceeding, the state trial court’s findings that the defendant was “an intelligent individual, well experienced in the criminal processes and well represented at all stages of the proceedings by competent and capable counsel,” the similar conclusions of the state appellate court, and “inferences fairly deducible from these facts.” Lonberger, supra, at 435 (internal quotation marks omitted); see also Sumner v. Mata, 449 U. S. 539, 545-547 (1981) (deference owed to findings of both state trial and appellate courts).
We note that petitioner’s theory of the case, which we have declined to consider, suggests a different standard. If Kentucky’s procedure is indeed not constitutionally mandated, the Kentucky courts’ determination that respondent understood his rights when he entered his plea would seem to be reviewable at most for sufficiency of the evidence under Jackson v. Virginia, 443 U. S. 307 (1979). There is no need to choose between the two standards of review in this case, however, because we are convinced that the Kentucky courts’ factual determinations are “fairly supported by the record” within the meaning of 28 U. S. C. § 2254(d)(8).
The Kentucky Court of Appeals, reviewing the trial court’s decision not to suppress the 1981 conviction, observed that respondent had an 11th grade education, could read adequately, was represented by counsel in the 1981 proceedings, and was in no way mentally impaired when he entered his plea. The court noted that respondent had signed a form specifying the charges to which he agreed to plead guilty. And it found that he had been fully advised of his rights in 1979. Respondent does not now dispute those determinations. The Kentucky Court of Appeals inferred that respondent remained aware in 1981 of the rights of which he was advised in 1979. Supporting that inference was the court’s determination, based on respondent’s testimony at the trial court hearing, that his “knowledge and sophistication regarding his rights under our judicial system increased substantially after his first conviction.”1 App. to Pet. for Cert. A32. Respondent knew, for example, the difference between first- and second-degree persistent felony offender charges, and he knew the sentencing and' parole requirements for both offenses. “[H]e indicated that the evidence against him and his lack of a strong defense had persuaded him to accept the Commonwealth’s offered plea bargain in return for a recommendation that he be given a minimum sentence. In fact, he voluntarily and knowingly chose not to risk the uncertainties of a jury trial.” Id., at 32-33.
We have previously treated evidence of a defendant’s prior experience with the criminal justice system as relevant to the question whether he knowingly waived constitutional rights, see, e. g., Lonberger, supra, at 437; Gryger v. Burke, 334 U. S., at 730, and we think the Kentucky Court of Appeals fairly inferred that respondent understood the full consequences of his 1981 plea. That, combined with respondent’s admission that he understood the charges against him and his self-serving testimony that he simply could not remember whether the trial judge advised him of other rights, satisfied every court that has considered the issue that the government carried its burden of persuasion under the Kentucky framework. We cannot say that this was error.
The judgment of the Court of Appeals for the Sixth Circuit is accordingly
Reversed.
“A persistent felony offender in the first degree is a person who is more than twenty-one (21) years of age and who stands convicted of a felony after having been convicted of two (2) or more felonies.” Ky. Rev. Stat. Ann. § 532.080(3) (Michie 1990). The applicable penalty depends upon the nature of the offense for which the defendant presently stands convicted. A defendant convicted both of second-degree robbery (the crime to which respondent ultimately pleaded guilty) and of being a first-degree persistent felony offender faces a mandatory sentence of 10 to 20 years. §§ 515.030, 532.080(6)(b). A first-degree persistent felony offender is also ineligible for probation or parole until he has served at least 10 years. §532.080(7). | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York. | What is the court in which the case originated? | [
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64
] | sc_caseorigin |
STOGNER v. CALIFORNIA
No. 01-1757.
Argued March 31, 2003
Decided June 26, 2003
Breyer, J., delivered the opinion of the Court, in which Stevens, O’Connor, Souter, and Ginsburg, JJ., joined. Kennedy, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia and Thomas, JJ., joined, post, p. 633.
Roberto Nájera argued the cause for petitioner. With him on the briefs was Elisa Stewart.
Janet Gaard, Special Assistant Attorney General of California, argued the cause for respondent. With' her on the brief were Bill Lockyer, Attorney General, Manuel M. Med-eiros, Solicitor General, Robert R. Anderson, Chief Assistant Attorney General, W. Scott Thorpe, Special Assistant Attorney General, and Kelly E. Lebel, Deputy Attorney General.
Irving L. Gornstein argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Olson, Assistant Attorney General Chertoff, Deputy Solicitor General Dreeben, and John F. De Pue.
Briefs of amici curiae were filed for the American Psychological Association et al. by Kathleen A Behan, Christopher D. Man, and Nathalie F. P. Gilfoyle; and for the National Association of Criminal Defense Lawyers et al. by David M. Porter, Barry T. Simons, Martin N. Buchanan, and Michael B. Dashjian.
Justice Breyer
delivered the opinion of the Court.
California has brought a criminal prosecution after expiration of the time periods set forth in previously applicable statutes of limitations. California has done so under the authority of a new law that (1) permits resurrection of otherwise time-barred criminal prosecutions, and (2) was itself enacted after pre-existing limitations periods had expired. We conclude that the Constitution’s Ex Post Facto Clause, Art. I, §10, cl. 1, bars application of this new law to the present case.
I
In 1993, California enacted a new criminal statute of limitations governing sex-related child abuse crimes. The new statute permits prosecution for those crimes where “[t]he limitation period specified in [prior statutes of limitations] has expired” — provided that (1) a victim has reported an allegation of abuse to the police, (2) “there is independent evidence that clearly and convincingly corroborates the victim’s allegation,” and (3) the prosecution is begun within one year of the victim’s report. 1993 Cal. Stats, ch. 390, § 1 (codified as amended at Cal. Penal Code Ann. § 803(g) (West Supp. 2003)). A related provision, added to the statute in 1996, makes clear that a prosecution satisfying these three conditions “shall revive any cause of action barred by [prior statutes of limitations].” 1996 Cal. Stats, ch. 130, § 1 (codified at Cal. Penal Code Ann. § 803(g)(3)(A) (West Supp. 2003)). The statute thus authorizes prosecution for criminal acts committed many years beforehand — and where the original limitations period has expired — as long as prosecution begins within a year of a victim’s first complaint to the police.
In 1998, a California grand jury indicted Marion Stogner, the petitioner, charging him with sex-related child abuse committed decades earlier — between 1956 and 1973. Without the new statute allowing revival of the State’s cause of action, California could not have prosecuted Stogner. The statute of limitations governing prosecutions at the time the crimes were allegedly committed had set forth a 3-year limitations period. And that period had run 22 years or more before the present prosecution was brought.
Stogner moved for the complaint’s dismissal. He argued that the Federal Constitution’s Ex Post Facto Clause, Art. I, § 10, cl. 1, forbids revival of a previously time-barred prosecution. The trial court agreed that such a revival is unconstitutional. But the California Court of Appeal reversed, citing a recent, contrary decision by the California Supreme Court, People v. Frazer, 21 Cal. 4th 737, 982 P. 2d 180 (1999), cert. denied, 529 U. S. 1108 (2000). Stogner then moved to dismiss his indictment, arguing that his prosecution is unconstitutional under both the Ex Post Facto Clause and the Due Process Clause, Amdt. 14, § 1. The trial court denied Stog-ner’s motion, and the Court of Appeal upheld that denial. Stogner v. Superior Court, 93 Cal. App. 4th 1229, 114 Cal. Rptr. 2d 37 (2001). We granted certiorari to consider Stogner’s constitutional claims. 537 U. S. 1043 (2002).
II
The Constitution’s two Ex Post Facto Clauses prohibit the Federal Government and the States from enacting laws with certain retroactive effects. See Art. I, §9, cl. 3 (Federal Government); Art. I, §10, cl. 1 (States). The law at issue here created a new criminal limitations period that extends the time in which prosecution is allowed. It authorized criminal prosecutions that the passage of time had previously barred. Moreover, it was enacted after prior limitations periods for Stogner’s alleged offenses had expired. Do these features of the law, taken together, produce the kind of retroactivity that the Constitution forbids? We conclude that they do.
First, the new statute threatens the kinds of harm that, in this Court’s view, the Ex Post Facto Clause seeks to avoid. Long ago Justice Chase pointed out that the Clause protects liberty by preventing governments from enacting statutes with “manifestly unjust and oppressive” retroactive effects. Calder v. Bull, 3 Dall. 386, 391 (1798). Judge Learned Hand later wrote that extending a limitations period after the State has assured “a man that he has become safe from its pursuit... seems to most of us unfair and dishonest.” Falter v. United States, 23 F. 2d 420, 426 (CA2), cert. denied, 277 U. S. 590 (1928). In such a case, the government has refused “to play by its own rules,” Carmell v. Texas, 529 U. S. 513, 533 (2000). It has deprived the defendant of the “fair warning,” Weaver v. Graham, 450 U. S. 24, 28 (1981), that might have led him to preserve exculpatory evidence. F. Wharton, Criminal Pleading and Practice § 316, p. 210 (8th ed. 1880) (“The statute [of limitations] is ... an amnesty, declaring that after a certain time ... the offender shall be at liberty to return to his country ... and . .. may cease to preserve the proofs of his innocence”). And a Constitution that permits such an extension, by allowing legislatures to pick and choose when to act retroactively, risks both “arbitrary and potentially vindictive legislation,” and erosion of the separation of powers, Weaver, supra, at 29, and n. 10. See Fletcher v. Peck, 6 Cranch 87, 137-138 (1810) (viewing the Ex Post Facto Clause as a protection against “violent acts which might grow out of the feelings of the moment”).
Second, the kind of statute at issue falls literally within the categorical descriptions of ex post facto laws set forth by Justice Chase more than 200 years ago in Calder v. Bull, supra—a categorization that this Court has recognized as providing an authoritative account of the scope of the Ex Post Faceto Clause. Collins v. Youngblood, 497 U. S. 37, 46 (1990); Carmell, supra, at 539. Drawing substantially on Richard Wooddeson’s 18th-century commentary on the nature of ex post facto laws and past parliamentary abuses, Chase divided ex post facto laws into categories that he described in two alternative ways. See 529 U. S., at 522-524, and n. 9. He wrote:
“I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. All these, and similar laws, are manifestly unjust and oppressive.” Calder, supra, at 390-391 (emphasis altered from original).
In his alternative description, Chase traced these four categories back to Parliament’s earlier abusive acts, as follows:
Category 1: “Sometimes they respected the crime, by declaring acts to be treason, which were not treason, when committed.”
Category 2: “[A]t other times they inflicted punishments, where the party was not, by law, liable to any punishment.”
Category 3: “[I]n other cases, they inflicted greater punishment, than the law annexed to the offence.”
Category 4: “[A]t other times, they violated the rules of evidence (to supply a deficiency of legal proof) by admitting one witness, when the existing law required two; by receiving evidence without oath; or the oath of the wife against the husband; or other testimony, which the courts of justice would not admit. ” 3 Dall., at 389 (emphasis altered from original).
The second category — including any “law that aggravates a crime, or makes it greater than it was, when committed,” id., at 390 — describes California’s statute as long as those words are understood as Justice Chase understood them— i. e., as referring to a statute that “inflict[s] punishments, where the party was not, by law, liable to any punishment,” id., at 389. See also 2 R. Wooddeson, A Systematical View of the Laws of England 638 (1792) (hereinafter Wooddeson, Systematical View) (discussing the ex post facto status of a law that affects punishment by “making therein some innovation, or creating some forfeiture or disability, not incurred in the ordinary course of law” (emphasis added)). After (but not before) the original statute of limitations had expired, a party such as Stogner was not “liable to any punishment.” California’s new statute therefore “aggravated” Stogner’s alleged crime, or made it “greater than it was, when committed,” in the sense that, and to the extent that, it “inflicted punishment” for past criminal conduct that (when the new law was enacted) did not trigger any such liability. See also H. Black, American Constitutional Law § 266, p. 700 (4th ed. 1927) (hereinafter Black, American Constitutional Law) (“[A]n act condoned by the expiration of the statute of limitations is no longer a punishable offense”). It is consequently not surprising that New Jersey’s highest court long ago recognized that Chase’s alternative description of second category laws “exactly describes the operation” of the kind of statute at issue here. Moore v. State, 43 N. J. L. 203, 217 (1881) (emphasis added). See also H. Black, Constitutional Prohibitions Against Legislation Impairing the Obligation of Contracts, and Against Retroactive and Ex Post Facto Laws §235, p. 298 (1887) (hereinafter Black, Constitutional Prohibitions) (“Such a statute” “certainly makes that a punishable offense which was previously a condoned and obliterated offense”).
So to understand the second category (as applying where a new law inflicts a punishment upon a person not then subject to that punishment, to any degree) explains why and how that category differs from both the first category (making criminal noncriminal behavior) and the third category (aggravating the punishment). And this understanding is consistent, in relevant part, with Chase’s second category examples — examples specifically provided to illustrate Chase’s alternative description of laws “‘inflicting] punishments, where the party was not, by law, liable to any punishment,’ ” Calder, 3 Dall., at 389.
Following Wooddeson, Chase cited as examples of such laws Acts of Parliament that banished certain individuals accused of treason. Id., at 389, and n. ‡; see also Carmell, 529 U. S., at 522-524, and n. 11. Both Chase and Wooddeson explicitly referred to these laws as involving “banishment.” Calder, supra, at 389, and n. ‡; 2 Wooddeson, Systematical View 638-639. This fact was significant because Parliament had enacted those laws not only after the crime’s commission, but under circumstances where banishment “was simply not a form of penalty that could be imposed by the courts.” Carmell, supra, at 523, n. 11; see also 11 W. Holdsworth, A History of English Law 569 (1938). Thus, these laws, like the California law at issue here, enabled punishment where it was not otherwise available “in the ordinary course of law,” 2 Wooddeson, Systematical View 638. As this Court previously recognized in Carmell, supra, at 523, and n. 11, it was this vice that was relevant to Chase’s purpose.
It is true, however, that Parliament’s Acts of banishment, unlike the law in this case, involved a punishment (1) that the legislature imposed directly, and (2) that courts had never previously had the power to impose. But these differences are not determinative. The first describes not a retroactivity problem but an attainder problem that Justice Chase’s language does not emphasize and with which the Constitution separately deals, Art. I, § 9, cl. 3; Art. I, § 10, cl. 1. The second difference seems beside the point. The example of Parliament’s banishment laws points to concern that a legislature, knowing the accused and seeking to have the accused punished for a pre-existing crime, might enable punishment of the accused in ways that existing law forbids. That fundamental concern, related to basic concerns about retroactive penal laws and erosion of the separation of powers, applies with equal force to punishment like that enabled by California’s law as applied to Stogner — punishment that courts lacked the power to impose at the time the legislature acted. See Black, Constitutional Prohibitions §235, at 298 (“It would be superfluous to point out that such an act [reviving otherwise time-barred criminal liability] would fall within the evils intended to be guarded against by the prohibition in question”). Cf. 1 F. Wharton, Criminal Law §444a, pp. 347-348, n. b (rev. 7th ed. 1874) (hereinafter Criminal Law).
In finding that California’s law falls within the literal terms of Justice Chase’s second category, we do not deny that it may fall within another category as well. Justice Chase’s fourth category, for example, includes any “law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.” Calder, supra, at 390. This Court has described that category as including laws that diminish “the quantum of evidence required to convict.” Carmell, supra, at 532.
Significantly, a statute of limitations reflects a legislative judgment that, after a certain time, no quantum of evidence is sufficient to convict. See United States v. Marion, 404 U. S. 307, 322 (1971). And that judgment typically rests, in large part, upon evidentiary concerns — for example, concern that the passage of time has eroded memories or made witnesses or other evidence unavailable. United States v. Kubrick, 444 U. S. 111, 117 (1979); 4 W. LaFave, J. Israel, & N. King, Criminal Procedure § 18.5(a), p. 718 (1999); Wharton, Criminal Pleading and Practice §316, at 210. Indeed, this Court once described statutes of limitations as creating “a presumption which renders proof unnecessary.” Wood v. Carpenter, 101 U. S. 135, 139 (1879).
Consequently, to resurrect a prosecution after the relevant statute of limitations has expired is to eliminate a currently existing conclusive presumption forbidding prosecution, and thereby to permit conviction on a quantum of evidence where that quantum, at the time the new law is enacted,,would have been legally insufficient. And, in that sense, the new law would “violate” previous evidence-related legal rules by authorizing the courts to “ ‘receiv[e] evidence . . . which the courts of justice would not [previously have] admitted]’ ” as sufficient proof of a crime, supra, at 612. Cf. Collins, 497 U. S., at 46 (“Subtle ex post facto violations are no more permissible than overt ones”); Cummings v. Missouri, 4 Wall. 277, 329 (1867) (The Ex Post Facto Clause “cannot be evaded by the form in which the power of the State is exerted”). Nonetheless, given Justice Chase’s description of the second category, we need not explore the fourth category, or other categories, further.
Third, likely for the reasons just stated, numerous legislators, courts, and commentators have long believed it well settled that the Ex Post Facto Clause forbids resurrection of a time-barred prosecution. Such sentiments appear already to have been widespread when the Reconstruction Congress of 1867 — the Congress that drafted the Fourteenth Amendment — rejected a bill that would have revived time-barred prosecutions for treason that various Congressmen wanted brought against Jefferson Davis and “his coconspirators,” Cong. Globe, 39th Cong., 2d Sess., 279 (1866-1867) (comments of Rep. Lawrence). Radical Republicans such as Roscoe Conkling and Thaddeus Stevens, no friends of the South, opposed the bill because, in their minds, it proposed an “ex post facto law,” id., at 68 (comments of Rep. Conkling), and threatened an injustice tantamount to “judicial murder,” id., at 69 (comments of Rep. Stevens). In this instance, Congress ultimately passed a law extending unexpired limitations periods, ch. 2B6, 15 Stat. 183 — a tailored approach to extending limitations periods that has also been taken in modern statutes, e.g., 18 U. S. C. §3293 (notes on effective date of 1990 amendment and effect of 1989 amendment); Cal. Penal Code Ann. §805.5 (West Supp. 2003).
Further, Congressmen such as Conkling were not the only ones who believed that laws reviving time-barred prosecutions are ex post facto. That view was echoed in roughly contemporaneous opinions by State Supreme Courts. E. g., State v. Sneed, 25 Tex. Supp. 66, 67 (1860); Moore, 43 N. J. L., at 216-217. Cf. State v. Keith, 63 N. C. 140, 145 (1869) (A State’s repeal of an amnesty was “substantially an ex post facto law”). Courts, with apparent unanimity until California’s decision in Frazer, have continued to state such views, and, when necessary, so to hold. E. g., People ex rel. Reibman v. Warden, 242 App. Div. 282, 285, 275 N. Y. S. 59, 62 (1934); United States v. Fraidin, 63 F. Supp. 271, 276 (Md. 1945); People v. Shedd, 702 P. 2d 267, 268 (Colo. 1985) (en banc) (per curiam); State v. Hodgson, 108 Wash. 2d 662, 667-669, 740 P. 2d 848, 851-852 (1987) (en banc), cert. denied sub nom. Fied v. Washington, 485 U. S. 938 (1988); Commonwealth v. Rochelean, 404 Mass. 129, 130-131, 533 N. E. 2d 1333, 1334 (1989); State v. Nunn, 244 Kan. 207, 218, 768 P. 2d 268, 277-278 (1989); State v. O’Neill, 118 Idaho 244, 247, 796 P. 2d 121, 124 (1990); State v. Hirsch, 245 Neb. 31, 39-40, 511 N. W. 2d 69, 76 (1994); State v. Schultzen, 522 N. W. 2d 833, 835 (Iowa 1994); State v. Comeau, 142 N. H. 84, 88, 697 A. 2d 497, 500 (1997) (citing State v. Hamel, 138 N. H. 392, 395-396, 643 A. 2d 953, 955-956 (1994)); Santiago v. Commonwealth, 428 Mass. 39, 42, 697 N. E. 2d 979, 981, cert. denied, 525 U. S. 1003 (1998). Cf. Thompson v. State, 54 Miss. 740, 743 (1877) (stating, without specifying further grounds, that a new law could not take away a vested statute-of-limitations defense); State v. Cookman, 127 Ore. App. 283, 289, 873 P. 2d 335, 338 (1994) (holding that a law resurrecting a time-barred criminal case “violates the Due Process Clause”), aff’d on state-law grounds, 324 Ore. 19, 920 P. 2d 1086 (1996); Commonwealth v. Guimento, 341 Pa. Super. 95, 97-98, 491 A. 2d 166, 167-168 (1985) (enforcing a state ban on ex post facto laws apparently equivalent to the federal prohibition); People v. Chesebro, 185 Mich. App. 412, 416, 463 N. W. 2d 134, 135-136 (1990) (reciting “the general rule” that, “ ‘where a complete defense has arisen under [a statute of limitations], it cannot be taken away by a subsequent repeal thereof’ ”).
Even where courts have upheld extensions of unexpired statutes of limitations (extensions that our holding today does not affect, see supra, at 613), they have consistently distinguished situations where limitations periods have expired. Further, they have often done so by saying that extension of existing limitations periods is not ex post facto “provided,” “so long as,” “because,” or “if” the prior limitations periods have not expired — a manner of speaking that suggests a presumption that revival of time-barred criminal eases is not allowed. E. g., United States v. Madia, 955 F. 2d 538, 540 (CA8 1992) (“ ‘provided’ ”); United States v. Richardson, 512 F. 2d 105, 106 (CA3 1975) (“provided”); People v. Anderson, 53 Ill. 2d 437, 440, 292 N. E. 2d 364, 366 (1973) (“so long as”); United States v. Haug, 21 F. R. D. 22, 25 (ND Ohio 1957) (“so long as”), aff’d, 274 F. 2d 885 (CA6 1960), cert. denied, 365 U. S. 811 (1961); United States v. Kurzenknabe, 136 F. Supp. 17, 23 (NJ 1955) (“so long as”); State v. Duffy, 300 Mont. 381, 390, 6 P. 3d 453, 460 (2000) (“because”); State v. Davenport, 536 N. W. 2d 686, 688 (N. D. 1995) (“because”); Andrews v. State, 392 So. 2d 270, 271 (Fla. App. 1980) (“if”), review denied, 399 So. 2d 1145 (Fla. 1981). See, e. g., Shedd, supra, at 268 (citing Richardson, supra, and Andrews, supra, as directly supporting a conclusion that a law reviving time-barred offenses is ex post facto). Cf. Commonwealth v. Duffy, 96 Pa. 506, 514 (1881) (“[I]n any case where a right to acquittal has not been absolutely acquired by the completion of the period of limitation, that period is subject to enlargement or repeal without being obnoxious to the constitutional prohibition against ex post facto laws”).
Given the apparent unanimity of pre-Frazer case law, legal scholars have long had reason to believe this matter settled. As early as 1887, Henry Black reported that, although “not at all numerous,” the “cases upon this point... unmistakably point to the conclusion that such an act would be ex post facto in the strict sense, and void.” Constitutional Prohibitions §235, at 297. Even earlier, in 1874, Francis Wharton supported this conclusion by emphasizing the historic role of statutes of limitations as “acts of grace or oblivion, and not of process,” “extinguishing] all future prosecution” and making an offense unable to “be again called into existence at the caprice of the prince.” 1 Criminal Law §444a, at 347-348, n. b. More modern commentators — reporting on the same and subsequent cases — have come to the same conclusion. E. g., 21 Am. Jur. 2d, Criminal Law § 294, pp. 349-350 (1998 and Supp. 2002); 16A C. J. S., Constitutional Law §420, p. 372 (1984 and Supp. 2002); 4 LaFave, Israel, & King, Criminal Procedure § 18.5(a), at 718, n. 6; 2 C. Antieau & W. Rich, Modern Constitutional Law §38.11, p. 445 (2d ed. 1997); Adlestein, Conflict of the Criminal Statute of Limitations with Lesser Offenses at Trial, 37 Wm. & Mary L. Rev. 199, 246 (1995); C. Corman, Limitation of Actions § 1.6, p. 35 (1993 Supp.); Black, Statutes of Limitations and the Ex Post Facto Clauses, 26 Ky. L. J. 42 (1937); Black, American Constitutional Law §266, at 700. Cf. H. Wood, Limitation of Actions § 13, p. 43 (3d ed. 1901) (The State “may be said” to be “estopped from prosecuting”). Likewise, with respect to the closely related case of a law repealing an amnesty — a case not distinguished by the dissent — William Wade concluded early on that “[s]uch an act would be as clearly in contravention of the inhibition of ex post facto laws as though it undertook to annex criminality to an act innocent when done.” Operation and Construction of Retroactive Laws §286, p. 389 (1880). But cf. post, at 638-639 (Kennedy, J., dissenting).
This Court itself has not previously spoken decisively on this matter. On the one hand, it has clearly stated that the Fifth Amendment’s privilege against self-incrimination does not apply after the relevant limitations period has expired. Brown v. Walker, 161 U. S. 591, 597-598 (1896). And that rule may suggest that the expiration of a statute of limitations is irrevocable, for otherwise the passage of time would not have eliminated fear of prosecution.
On the other hand, in Stewart v. Kahn, 11 Wall. 493, 503-504 (1871), this Court upheld a statute, enacted during the Civil War, that retroactively tolled all civil and criminal limitations for periods during which the war had made service of process impossible or courts inaccessible. Stewart, however, involved a civil, not a criminal, limitations statute. Id., at 500-501. Significantly, in reviewing this civil case, the Court upheld the statute as an exercise of Congress’ war powers, id., at 507, without explicit consideration of any potential collision with the Ex Post Facto Clause. Moreover, the Court already had held, independent of Congress’ Act, that statutes of limitations were tolled for “the time during which the courts in the States lately in rebellion were closed to the citizens of the loyal States ....” Id., at 503; see also Hanger v. Abbott, 6 Wall. 532, 539-542 (1868). Hence, the Court could have seen the relevant statute as ratifying a pre-existing expectation of tolling due to wartime exigencies, rather than as extending limitations periods that had truly expired. See id., at 541; see also Stewart, supra, at 507. In our view, Stewart therefore no more dictates the outcome here than does seemingly contrary precedent regarding the Fifth Amendment privilege.
Instead, we believe that the outcome of this case is determined by the nature of the harms that California’s law creates, by the fact that the law falls within Justice Chase’s second category as Chase understood that category, and by a long line of authority holding that a law of this type violates the Ex Post Facto Clause.
III
In a prodigious display of legal and historical textual research, the dissent finely parses cases that offer us support, see post, at 633-637; shows appreciation for 19th-century dissident commentary, see post, at 638-639; discusses in depth its understanding of late 17th-century and early 18th-century parliamentary history, post, at 642-649; and does its best to drive a linguistic wedge between Justice Chase’s alternative descriptions of categories of ex post facto laws, post, at 640-641. All to what end? The dissent undertakes this Herculean effort to prove that it is not unfair, in any constitutionally relevant sense, to prosecute a man for crimes committed 25 to 42 years earlier when nearly a generation has passed since the law granted him an effective amnesty. Cf. post, at 649-653.
We disagree strongly with the dissent’s ultimate conclusion about the fairness of resurrecting a long-dead prosecution. See infra, at 630-632. Rather, like Judge Learned Hand, we believe that this retroactive application of a later-enacted law is unfair. And, like most other judges who have addressed this issue, see supra, at 617-618, we find the words “ex post facto” applicable to describe this kind of unfairness. Indeed, given the close fit between laws that work this kind of unfairness and the Constitution’s concern with ex post facto laws, we might well conclude that California’s law falls within the scope of the Constitution’s interdiction even were the dissent’s historical and precedent-related criticisms better founded than they are.
We need not examine that possibility here, however, because the dissent’s reading of the relevant history and precedent raises far too many problems to serve as a foundation for the reading of “ex post facto” that it proposes. In our view, that reading is too narrow; it is unsupported by precedent; and it would deny liberty where the Constitution gives protection.
A
In the dissent’s view, Chase’s historical examples show that “Calder’s second category concerns only laws” that both (1) “subjec[t] the offender to increased punishment” and (2) do so by “changing] the nature of an offense to make it greater than it was at the time of commission.” Post, at 642 (emphasis added). The dissent does not explain what it means by “changing] the nature of an offense,” but we must assume (from the fact that this language comes in a dissent) that it means something beyond attaching otherwise unavailable punishment and requires, in addition, some form of re-characterization of the crime. After all, the dissent seeks to show through its discussion of the relevant historical examples that a new law subjecting to punishment a person not then legally subject to punishment does not fall within the second category unless the new law somehow changes the kind of crime that was previously at issue.
The dissent’s discussion of the historical examples suffers from several problems. First, it raises problems of historical accuracy. In order to show the occurrence of a change in the kind or nature of the crime, the dissent argues that Parliament’s effort to banish the Earl of Clarendon amounted to an effort “to elevate criminal behavior of lower magnitude to the level of treason.” Post, at 643. The dissent supports this argument with a claim that “the allegations [against Clarendon] could not support a charge of treason.” Ibid. Historians, however, appear to have taken a different view. But cf. post, at 646. In their view, at least one charge against Clarendon did amount to treason.
Clarendon was charged with “betraying his majesty’s secret counsels to his enemies during the war.” Edward Earl of Clarendon’s Trial, 6 How. St. Tr. 292, 350 (1667) (hereinafter Clarendon’s Trial). In the words of one historian, this charge “undoubtedly contained treasonous matter.” Roberts, The Impeachment of the Earl of Clarendon, 13 Camb. Hist. J. 1, 13 (1957) (hereinafter Roberts, Impeachment); accord, G. Miller, Edward Hyde, Earl of Clarendon 21-22 (1983); 10 Dictionary of National Biography 383 (L. Stephen & S. Lee eds. reprint 1922). See also Roberts, The Law of Impeachment in Stuart England: A Reply to Raoul Berger, 84 Yale L. J. 1419,1426 (1975); R. Berger, Impeachment: The Constitutional Problems 45, n. 193 (1974) (acknowledging and not contradicting the historian Henry Hal-lam’s conclusion that “ ‘one of the articles did actually contain an unquestionable treason'”). And it was on the basis of this specific charge — a charge of conduct that amounted to treason — that the House of Commons (which had previously refused to impeach Clarendon on other charges that did not amount to treason) “voted to impeach Clarendon for high treason.” Roberts, Impeachment 13; accord, Clarendon’s Trial 350-351.
The House of Lords initially thought that the Commons had failed to provide sufficient evidence because it failed to provide “special articles” laying out “particulars to prove it.” Roberts, Impeachment 14. The Lords and Commons deadlocked over whether a “general charge” was sufficient. Ibid. See. also Clarendon’s Trial 351-374. But Clarendon fled, thereby providing proof of guilt. 10 Dictionary of National Biography, supra, at 383; see also Clarendon’s Trial 389-390; 2 H. Hallam, Constitutional History of England: From the Accession of Henry VII to the Death of George II, p. 373 (8th ed. 1855). See also Berger, supra, at 44-45, and n. 189. The Lords and Commons then agreed to banish Clarendon. The Act of banishment — the only item in this complicated history explicitly cited by Chase — explained that Clarendon was being banished because he had “been impeached by the Commons ... of Treason and other misdemeanours” and had “fled whereby Justice cannot be done upon him according to his demerit.” 19 & 20 Car. II, c. 2 (1667-1668) (reprint 1963).
In sum, Clarendon’s case involved Parliament’s punishment of an individual who was charged before Parliament with treason and satisfactorily proved to have committed treason, but whom Parliament punished by imposing “banishment” in circumstances where the party was not, in “the ordinary course of law,” liable to any “banishment” See supra, at 614. Indeed, because Clarendon had fled the country, it had become impossible to hold a proper trial to subject Clarendon to punishment through “ordinary” proceedings. See 19 & 20 Car. II, c. 2; Clarendon’s Trial 385-386. To repeat, the example of Clarendon’s banishment is an example of an individual’s being punished through legislation that subjected him to punishment otherwise unavailable, to any degree, through “the ordinary course of law” — just as Chase and his predecessor Wooddeson said. Calder, 3 Dall., at 389, and n. ‡; 2 Wooddeson, Systematical View 638. See also Carmell, 529 U. S., at 523, n. 11.
A second problem that the dissent’s account raises is one of historical completeness. That account does not explain how the second relevant example — the banishment of the Bishop of Atterbury — can count as an example of a recharac-terization of a pre-existing crime. The dissent concedes that Atterbury was charged with conduct constituting a “conspiracy to depose George I.” Post, at 647. It ought then to note (but it does not note) that, like the charge of “‘betraying his majesty’s secret counsels,’” supra, at 622, this charge was recognized as a charge of treason, see 2 J. Stephen, A History of the Criminal Law of England 266-267 (1883). As the dissent claims, the evidence upon which Parliament based its decision to banish may have been “meager,” and the punishment may even have been greater than some expected. Post, at 647. But the relevant point is that Parliament did not recharacterize the Bishop’s crime. Rather, through extraordinary proceedings that concluded with a punishment that only the legislature could impose, Parliament aggravated a predefined crime by imposing a punishment that courts could not have imposed in “the ordinary course.”
Third, the dissent’s account raises a problem of vagueness. The dissent describes Justice Chase’s alternative description of the second category as “shed[ding] light on the meaning” of the category, post, at 641, and describes the historical references that accompany Chase’s alternative description as “illustrative examples,” post, at 649. But the question is would the dissent apply the term ex post facto to laws that fall within the alternative description — or would it not? If not, how does it reconcile its view with Carmell? See 529 U. S., at 522, n. 9; see also id., at 523 (Wooddeson’s categories “correlate precisely to Calder’s four categories”). If so, how does it explain the fact that the alternative description nowhere says anything about recharacterizing, or “changing the nature,” of a crime?
In our view, the key to the Atterbury and Clarendon examples lies not in any kind of recharacterization, or the like, but in the fact that Atterbury and Clarendon suffered the “same sentence” — “banishment.” 2 Wooddeson, Systematical View 638; see also Calder, supra, at 389, n. ‡ (using the word “banishment” to describe both examples). As we have argued, supra, at 614, Parliament aggravated the crimes at issue by imposing an otherwise unavailable punishment— namely, banishment — which was, according to Wooddeson, a “forfeiture or disability, not incurred in the ordinary course of law,” 2 Systematical View 638.
Fourth, the dissent’s initial account suffers from a technical problem of redundancy. Were the second category always to involve the recharacterization of an offense in a way that subjects it to greater punishment, see post, at 642, the second category would be redundant. Any law falling within it would also necessarily fall within the third category, which already encompasses “‘[e]very law that... inflicts a greater punishment,’ ” supra, at 612 (emphasis added).
Fifth, the dissent’s historical account raises problems of pertinence. For one thing, to the extent that we are construing the scope of the Calder categories, we are trying not to investigate precisely what happened during the trials of Clarendon and Atterbury, but to determine how, several decades later, an 18th-century legal commentator and an 18th-century American judge who relied on that commentator — and, by extension, the Framers themselves — likely understood the scope of the words “ex post facto” Hence, the dissent’s account seems of little relevance once we recognize that:
(1) When Justice Chase set forth his alternative language for the second category (the language that the historical examples are meant to illuminate), he said nothing about recharacterizing crimes, Calder, 3 Dall., at 389;
(2) When Chase speaks of laws “declaring acts to be treason, which were not treason, when committed,” ibid., he uses this language for his alternative description of first category laws, and not second category laws, supra, at 612; and
(3) Wooddeson says nothing about recharacterizing crimes and instead uses the Clarendon and Atterbury examples to illustrate laws that “principally affect the punishment, making therein some innovation, or creating some forfeiture or disability, not incurred in the ordinary course of law,” 2 Systematical View 638 (some emphasis added).
Of course, we do not know whether Chase and Wooddeson, in using such language, had statutes of limitations specifically in mind. We know only that their descriptions of ex post facto laws and the relevant historical examples indicate an ex post facto category broad enough to include retroactive changes in, and applications of, those statutes. And we know that those descriptions fit this case — the dissent’s historical exegesis notwithstanding.
More importantly, even were we to accept the dissent’s view that Chase’s second category examples involved some kind of recharacterization of criminal behavior (which they did not), why would recharacterization be the ex post facto touchstone? Why, in a case where (a) application of a previously inapplicable punishment and (b) recharacterization (or “changing the nature”) of criminal behavior do not come hand in hand, should the absence of the latter make a critical difference? After all, the presence of a recharacterization without new punishment works no harm. But the presence of the new punishment without recharacterization works all the harm. Indeed, it works retroactive harm — a circumstance relevant to the applicability of a constitutional provision aimed at preventing unfair retroactive laws. Perhaps that is why Justice Chase’s alternative description — which, like Wooddeson’s, speaks of laws “affect[ing] the punishment,” ibid.—does not mention recharacterization or the like.
B
The dissent believes that our discussion of the case law is “less persuasive than it may appear at a first glance.” Post, at 633. The dissent says that this case law is “deficient,” and that we rely on an “inapposite” case and other cases that “flatly contradict” the “principles” on which we rely. Post, at 634, 635.
Having reviewed the relevant cases and commentary, we continue to believe that our characterizations are accurate. We say that courts, “with apparent unanimity until California’s decision in Frazer, have continued to state” that “laws reviving time-barred prosecutions are ex post facto” and, “when necessary, so to hold.” Supra, at 617. That statement is accurate. The dissent refers to no case, outside of California, that has held, or even suggested, anything to the contrary.
Of course, one might claim that the judges who wrote the cited opinions did not consider the matter as thoroughly as has the dissent or used precisely the same kind of reasoning. The dissent makes this kind of argument in its discussion of the old New Jersey case, Moore v. State, 43 N. J. L. 203 (1881)—a case that we believe supports our view. The dissent says that the Moore court “expressly stated that a statute reviving an expired limitations period ‘is not covered by any of [Justice Chase’s] classes.’” Post, at 635. And the dissent draws from this language the conclusion that Moore “flatly contradict^]” our views. Post, at 635.
The dissent, however, has taken the language that it quotes out of context. In context, the court’s statement reflects a conclusion that the language of Justice Chase’s first description of the categories (which Moore used the word “classes” to describe) does not fit cases in which a State revives time-barred prosecutions. The Moore court immediately adds, however, that Chase’s alternative description of second category laws does fit this case. Indeed, it “easily embraces” a statute that, like the statute here, retroactively extends an expired statute of limitations and “exactly describes [its] operation.” 43 N. J. L., at 216-217 (emphasis added). Had the New Jersey court had the benefit of Carmell, 529 U. S., at 522-524, and n. 9, or perhaps even of the dissent itself, post, at 641, would it not have recognized Chase’s alternative description as an authoritative account of elements of Chase’s “classes”? Would it then not have withdrawn its earlier statement, which the dissent quotes? Would it not have simply held that the statute did fall within the second category? Our reading of the case leads us to answer these questions affirmatively, but we leave the interested reader to examine the case and draw his or her own conclusions.
The dissent draws special attention to another case, State v. Sneed, 25 Tex. Supp. 66 (1860), arguing that it is “inappo-site” because it “avoided the issue” whether a law was ex post facto “by holding that the statute was not meant to apply retroactively.” Post, at 634. Here is the court’s analysis, virtually in full:
“In this case the bar of the statute of limitations of one year was completed before the Code went into operation .... The state having neglected to prosecute within the time prescribed for its own action, lost the right to prosecute the suit. To give an Act of the Legislature, passed after such loss, the effect of reviving the right of action in the State, would give it an operation ex post facto, which we cannot suppose the Legislature intended.” 25 Tex. Supp., at 67.
The reader can make up his own mind.
Neither can we accept the dissent’s view that Judge Learned Hand’s like-minded comments in Falter were “unsupported,” post, at 637. In fact, Judge Hand’s comments had support in pre-existing case law, commentary, and published legislative debates, supra, at 616-620, and Hand’s opinion specifically cited Moore and two other early cases, Commonwealth v. Duffy, 96 Pa. 506 (1880), and People v. Buckner, 281 Ill. 340, 117 N. E. 1023 (1917). Falter, 23 F. 2d, at 425.
We add that, whatever the exact counts of categories of cases that we cite, cf. post, at 633, it is not surprising that most of these cases involve dicta, while only a handful involve clear holdings. Where the law has long been accepted as clearly settled, few cases are likely to arise, and cases that do arise most likely involve bordering areas of law, such as new limitations statutes enacted prior to expiration of preexisting limitations periods. Consistent with this expectation, one commentator noted in 1993 that the question whether to give retroactive effect to the extension of unexpired limitations periods had “become timely due to state legislature amendments during the early 1980s that lengthen the limitation period for the crimes of rape and sexual intercourse with a child.” Corman, Limitation of Actions §1.6, at 36. The law at issue today represents a kind of extreme variant that, given the legal consensus of unconstitutionality, has not likely been often enacted in our Nation’s history. Cf. 1 J. Bishop, Criminal Law § 219a, p. 127 (rev. 4th ed. 1868) (declining to answer whether a law reviving time-barred prosecutions was ex post facto in part because “it is not likely to come before the courts”).
Neither should it be surprising if the reasoning in a string of cases stretching back over nearly 150 years is not perfectly consistent with modern conceptions of how legal analysis should proceed. After all, Beazell v. Ohio, 269 U. S. 167 (1925), an opinion relied on by the dissent, post, at 640, is itself vulnerable to criticism that its “method of analysis is foreclosed by this Court’s precedents,” post, at 637. See Collins, 497 U. S., at 45-46. In assessing the case law, we find the essential fact to be the unanimity of judicial views that the kind of statute before us is ex post facto. See supra, at 617-619.
The situation is similar with respect to commentators. Here, the essential fact is that, over a span of well over a century, commentators have come to the same conclusion, and have done so with virtual unanimity. See supra, at 619-620. We say “virtual,” for the dissent identifies one commentator who did not, namely, Joel Bishop — the same commentator relied on 122 years ago by the dissent in Moore, supra, at 240. The Moore majority rejected Bishop’s Conclusion. So did other contemporary courts and commentators. Supra, at 617-620. We do the same.
C
The dissent says it is a “fallacy” to apply the label “ ‘unfair and dishonest’ ” to this statute,, a law that revives long-dead prosecutions. Post, at 650. The dissent supports this conclusion with three arguments. First, it suggests that “retroactive extension of unexpired statutes of limitations” is no less unfair. Ibid. Second, the dissent refers to the small likelihood that “criminals keep calendars” to mark the expiration of limitations periods, and it mocks the possibility that revival “destroys a reliance interest.” Ibid. Third, the dissent emphasizes the harm that child molestation causes, a harm that “will plague the victim for a lifetime,” and stresses the need to convict those who abuse children. Post, at 651.
In making the first argument, the dissent reverses field, abandoning its historical literalism to appeal to practical consequences. But history, case law, and constitutional purposes all are relevant. At a minimum, the first two of these adequately explain the difference between expired and unexpired statutes of limitations, and Chase’s alternative description of second category laws itself supports such a distinction. See supra, at 613-614, 618-619.
In making its second argument, which denies the existence of significant reliance interests, the dissent ignores the potentially lengthy period of time (in this case, 22 years) during which the accused lacked notice that he might be prosecuted and during which he was unaware, for example, of any need to preserve evidence of innocence. See supra, at 609-610. Memories fade, and witnesses can die or disappear. See supra, at 615-616. Such problems can plague child abuse cases, where recollection after so many years may be uncertain, and “recovered” memories faulty, but may nonetheless lead to prosecutions that destroy families. See, e.g., Holdsworth, Is It Repressed Memory with Delayed Recall or Is It False Memory Syndrome? The Controversy and Its Potential Legal Implications, 22 Law & Psychol. Rev. 103, 103-104 (1998). Regardless, a constitutional principle must apply not only in child abuse cases, but in every criminal case. And, insofar as we can tell, the dissent’s principle would permit the State to revive a prosecution for any kind of crime without any temporal limitation. Thus, in the criminal context, the dissent goes beyond our prior statements of what is constitutionally permissible even in the analogous civil context. Chase Securities Corp. v. Donaldson, 325 U. S. 304, 312, n. 8, 315-316 (1945) (acknowledging that extension of even an expired civil limitations period can unconstitutionally infringe upon a “vested right”); William Danzer & Co. v. Gulf & Ship Island R. Co., 268 U. S. 633, 637 (1925) (holding the same). But see post, at 638, 653. It is difficult to believe that the Constitution grants greater protection from unfair retroactivity to property than to human liberty.
As to the dissent’s third argument, we agree that the State’s interest in prosecuting child abuse cases is an important one. But there is also a predominating constitutional interest in forbidding the State to revive a long-forbidden prosecution. And to hold that such a law is ex post facto does not prevent the State from extending time limits for the prosecution of future offenses, or for prosecutions not yet time barred.
In sum, California’s law subjects an individual such as Stogner to prosecution long after the State has, in effect, granted an amnesty, telling him that he is “at liberty to return to his country . . . and that from henceforth he may cease to preserve the proofs of his innocence,” Wharton, Criminal Pleading and Practice §316, at 210. See also Moore, 43 N. J. L., at 223-224. It retroactively withdraws a complete defense to prosecution after it has already attached, and it does so in a manner that allows the State to withdraw this defense at will and with respect to individuals already identified. See supra, at 611. “Unfair” seems to us a fair characterization.
IV
The statute before us is unfairly retroactive as applied to Stogner. A long line of judicial authority supports characterization of this law as ex post facto. For the reasons stated, we believe the law falls within Justice Chase’s second category of ex post facto laws. We conclude that a law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution. The California court’s judgment to the contrary is
Reversed. | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases. | What is the ideological direction of the decision? | [
"Conservative",
"Liberal",
"Unspecifiable"
] | [
1
] | sc_decisiondirection |
SCHWEIKER et al. v. CHILICKY et al.
No. 86-1781.
Argued March 1, 1988
Decided June 24, 1988
O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Scalia, and Kennedy, JJ., joined, and in all but n. 3 of which Stevens, J., joined. Stevens, J., filed an opinion concurring in part and concurring in the judgment, post, p. 430. Brennan, J., filed a dissenting opinion, in which Marshall and Blackmun, JJ., joined, post, p. 430.
Solicitor General Fried argued the cause for petitioners. With him on the briefs were Assistant Attorney General Willard, Deputy Solicitor General Ayer, Michael K. Kellogg, William Kanter, and Howard S. Scher.
Laurence H. Tribe argued the cause for respondents. With him on the brief was William E. Morris.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union Foundation et al. by Steven R. Shapiro, John A. Poivell, and Helen Hershkoff; and for the National Mental Health Associa-. tion et aL by Daniel M. Taubman and Peter Komlos-Hrobsky.
Justice O’Connor
delivered the opinion of the Court.
This case requires us to decide whether the improper denial of Social Security disability benefits, allegedly resulting from violations of due process by government officials who administered the federal Social Security program, may give rise to a cause of action for money damages against those officials. We conclude that such a remedy, not having been included in the elaborate remedial scheme devised by Congress, is unavailable.
I
A
Under Title II of the Social Security Act (Act), the Federal Government provides disability benefits to individuals who have contributed to the Social Security program and who, because of a medically determinable physical or mental impairment, are unable to engage in. substantial gainful work. 42 U. S. C. §§ 423(a), (d) (1982 ed. and Supp. IV). A very similar program for disabled indigents is operated under Title XVI of the Act, 42 U. S. C. § 1381 et seq. (1982 ed. and Supp. IV), but those provisions are technically not at issue in this case. Title II, which is administered in conjunction with state welfare agencies, provides benefits only while an individual’s statutory disability persists. See 42 U. S. C. §§ 421(a), 423(a)(1) (1982 ed. and Supp. IV), In 1980, Congress noted that existing administrative procedures provided for reexamination of eligibility “only under a limited number of circumstances.” H. R. Conf. Rep. No. 96-944, p. 60 (1980); see also S. Rep. No. 96-408, pp. 60-61 (1979). Congress responded by enacting legislation requiring that most disability determinations be reviewed at least once every three years. Pub. L. 96-265, § 311(a), 94 Stat. 460, as amended, 42 U. S. C. §421(i) (1982 ed. and Supp. IV). Although the statute did not require this program for “continuing disability review” (CDR) to become effective before January 1, 1982, the Secretary of Health and Human Services initiated CDR in March 1981.. See Pub. L. 96-265, § 311(b), 94 Stat. 460, note'following 42 U. S. C. §421; Brief for Petitioners 10.
The administration of the CDR program was at first modeled on the previous procedures for reexamination of eligibility. Under these procedures, an individual whose case is selected for review bears the burden of demonstrating the continuing existence of a statutory disability. The appropriate state agency performs the initial review, and persons who are found to have become ineligible are generally provided with administrative review similar to the review provided to new claimants. See 42 U. S. C. §421(i) (1982 ed. and Supp. IV); Brief for Petitioners 10. Cf. Mathews v. Eldridge, 424 U. S. 319, 335-339 (1976). Under the original CDR procedures, benefits were usually terminated after a state agency found a claimant ineligible, and were not available during administrative appeals. See H. R. Conf. Rep. No. 98-1039, p. 33 (1984).
Finding that benefits were too often being improperly terminated by state agencies, only to be reinstated by a federal administrative law judge (ALJ), Congress enacted temporary emergency legislation in 1983. This law provided for the continuation of benefits, pending review by an ALJ, after a state agency determined that an individual was no longer disabled. Pub. L. 97-455, § 2, 96 Stat. 2498; see also Pub. L. 98-118, §2, 97 Stat. 803. In the Social Security Disability Benefits Reform Act of 1984 (1984 Reform Act), Congress extended this provision until January 1, 1988, and provided for a number of other significant changes in the administration of CDR. Pub; L. 98-460, §§2, 7, 98 Stat. 1794-1796, 1803-1804, 42 U. S. C. §§ 423(f), (g) (1982 ed. and Supp. IV). In its final form, this legislation was enacted without a single opposing vote in either Chamber. See 130 Cong. Rec. 26000, 26145-26146 (1984); see also id,., at 6621; id., at 13247.
The problems to which Congress responded so emphatically were widespread. One of the cosponsors of the 1984 Reform Act, who had conducted hearings on the administration of CDR, summarized evidence from the General Accounting Office as follows:
“[T]he message perceived by the State agencies, swamped with cases, was to deny, deny, deny, and, I might add, to process cases faster and faster and faster. In the name of efficiency, we have scanned our computer terminals, rounded up the disabled workers in the country, pushed the discharge button, aiid let them go into a free [f]all toward economic chaos.” Id., at 13218 (Sen. Cohen).
Other legislators reached similar conclusions. See, e. g., id., at 13234 (Sen. Moynihan) (“[T]he Social Security Administration has tried to reduce program cost by terminating the benefits of hundreds of thousands of truly disabled Americans”); id., at 6583 (Rep. Rostenkowski) (alluding to “massive number of beneficiaries who have lost their benefits over the last 3 years even though they are truly disabled and unable to work”). Such conclusions were based, not only on anecdotal evidence, but on compellingly forceful statistics. The Social Security Administration itself apparently reported that about 200,000 persons were wrongfully terminated, and then reinstated, between March 1981 and April 1984. Id., at 25979 (Sen. Levin); see also id., at 25989 (Sen. Byrd); id., at 6588 (Rep. Conte). In the first year of CDR, half of those who were terminated appealed the decision, and “an amazing two-thirds of those who appealed were being reinstated.” Id., at 25979 (Sen. Levin); see also id., at 25986 (Sen. Heinz); id., at 13244 (Sen. Glenn); S. Rep. No. 98-466, p. 18 (1984).
Congress was also made aware of the terrible effects on individual lives that CDR had produced. The chairman of the Senate’s Special Committee on Aging pointed out that “[t]he human dimension of this crisis — the unnecessary suffering, anxiety, and turmoil — has been graphically exposed by dozens of congressional hearings and in newspaper articles all across the country.” 130 Cong. Rec. 25986 (1984) (Sen. Heinz). Termination could also lead to the cut-off of Medicare benefits, so that some people were left without adequate medical care. Id., at 13321-13322 (Sen. Durenberger); see also id., at 6590 (Rep. Hammerschmidt). There is little doubt that CDR led to many hardships and injuries that could never be adequately compensated. See, e. g., id., at 6588-6589 (Rep. Regula).
: B
Respondents are three individuals whose disability benefits under Title II were terminated pursuant to the CDR program in 1981 and 1982. Respondents Spencer Harris and Dora Adelerte appealed these determinations through the administrative process, were restored to disabled status, and were awarded full retroactive benefits. Respondent James Chilieky did not pursue these administrative remedies. Instead, he filed a new application for benefits about a year and a half after his benefits were stopped. His application was granted, and he was awarded one year’s retroactive benefits; his application for the restoration of the other six months’ benefits is apparently still pending. See Brief for Petitioners 18, and n. 13; Brief for Respondents 3. Because the terminations in these three cases occurred before the 1983 emergency legislation was enacted, respondents experienced delays of many months in receiving disability benefits to which they were entitled. All the respondents had been wholly dependent on their disability benefits, and all allege that they were unable to maintain themselves or their families in even a minimally adequate fashion after they were declared ineligible. Id., at 7-8. Respondent James Chilicky was in the hospital recovering from open-heart surgery when he was informed that his heart condition was no longer disabling. Id., at 7.
In addition to pursuing administrative remedies, respondents (along with several other individuals who have since withdrawn from the case) filed this lawsuit in the United States District Court for the District of Arizona. They alleged that petitioners — one Arizona and two federal officials who had policymaking roles in the administration of the CDR program — had violated respondents’ due process rights. The thrust of the complaint, which named petitioners in their official and individual capacities, was that petitioners had adopted illegal policies that led to the wrongful termination of benefits by state agencies. Among the allegations were claims that petitioners improperly accelerated the starting date of the CDR program; illegally refused to acquiesce in decisions of the United States Court of Appeals for the Ninth Circuit; failed to apply uniform written standards in implementing the CDR program; failed to give effect to dispositive evidence in particular cases; and used an impermissible quota system under which state agencies were required to terminate predetermined numbers of recipients. See 796 F. 2d 1131, 1133-1134 (1986) (opinion below). Respondents sought injunctive and declaratory relief, and money damages for “emotional distress and for loss of food, shelter and other necessities proximately caused by [petitioners’] denial of benefits without due process.” Id., at 1134, n. 2.
The District Court dismissed the case on the ground that petitioners were protected by a qualified immunity. Their alleged conduct, the court concluded, did not violate “‘clearly established statutory or constitutional rights of which a reasonable person would have known.’” App. to Pet. for Cert. 16a (quoting Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982)). Although the court discussed only the claims involving acceleration of the starting date for CDR and nonacquiescence in Ninth Circuit decisions, its qualified immunity holding apparently applied to respondents’ other claims as well.
Respondents appealed, pressing only their claims for money damages against petitioners in their individual capacities. These claims, noted the Court of Appeals, are “predicated- on the constitutional tort theory of Bivens v. Six Unknown Named Agents, 403 U. S. 388 . . . (1971).” 796 F. 2d, at 1134. Petitioners argued that the District Court lacked subject matter jurisdiction because the procedures set forth in 42 U. S. C. § 405(g), which do not authorize judicial review in a case like this one, provide the exclusive means of judicial redress for actions “arising under” the relevant provisions of the Act. The Court of Appeals rejected this argument, holding that subject matter jurisdiction existed because respondents’ claims for emotional distress “arose under” the Due Process Clause of the Fifth Amendment rather than under the statute. The Court of Appeals went on to affirm the District Court to the extent that it dismissed the claims involving acceleration of the CDR program and nonacquiescence in Ninth Circuit decisions. As to respondents’ other claims, however, the Court of Appeals con-eluded that “[i]t cannot be determined as a matter of law that [respondents] could prove no state of facts . . . that resulted in violations of their due process rights and consequent damages.” 796 F. 2d, at 1139. The case was accordingly remanded for further proceedings, including a trial if necessary.
The petition for certiorari presented one question: “Whether a Bivens remedy should be implied for alleged due process violations in the denial of social security disability benefits.” We granted the petition, 484 U. S. 814 (1987), and now reverse.
II
A
The Constitution provides that federal courts may be given original jurisdiction over “all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” U. S. Const., Art. Ill, §§ 1, 2. Since 1875, Congress has provided the federal trial courts with general jurisdiction over such cases. See Judiciary Act of March 3, 1875, §1, 18 Stat. 470; 13B C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3561 (2d ed. 1984); American Law Institute, Study of the Division of Jurisdiction between State and Federal Courts 162-163 (1969). The statute currently provides that the “district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U. S. C. § 1331.
In 1971, this Court held that the victim of a Fourth Amendment violation by federal officers acting under color of their authority may bring suit for money damages against the officers in federal court. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388. The Court noted that Congress had not specifically provided for such a remedy and that “the Fourth Amendment does not in so many words provide for its enforcement by an award of money damages for the consequences of its violation.” Id., at 396. Nevertheless, finding “no special factors counselling hesitation in the absence of affirmative action by Congress,” and “no explicit congressional declaration” that money damages may not be awarded, the majority relied on the rule- that “ ‘where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done.’” Id., at 396-397 (quoting Bell v. Hood, 327 U. S. 678, 684 (1946)),
So-called “Bivens actions” for money damages against federal officers have subsequently been permitted under § 1331 for violations of the Due Process Clause of the Fifth Amendment, Davis v. Passman, 442 U. S. 228 (1979), and the Cruel and Unusual Punishments Clause of the Eighth Amendment, Carlson v. Green, 446 U. S. 14 (1980). In each of these cases, as in Bivens itself, the Court found that there were no “special factors counselling hesitation in the absence of affirmative action by Congress,” no explicit statutory prohibition against the relief sought, and no exclusive statutory alternative remedy. See 442 U. S., at 246-247; 446 U. S., at 18-20.
Our more recent decisions have responded cautiously to suggestions that Bivens remedies be extended into new contexts. The absence of statutory relief for a constitutional violation, for example, does not by any means necessarily imply that courts should award money damages against the officers responsible for the violation. Thus, in Chappell v. Wallace, 462 U. S. 296 (1983), we refused — unanimously — to create a Bivens action for enlisted military personnel who alleged that they had been injured by the unconstitutional actions of their superior officers and who had no remedy against the Government itself:
“The special nature of military life — the need for unhesitating and decisive action by military officers and equally disciplined responses by enlisted personnel — would be undermined by a judicially created remedy exposing officers to personal liability at the hands of those they áre charged to command. . . .
“Also, Congress, the constitutionally authorized source of authority over the military system of justice, has not provided a damages remedy for claims by military personnel that constitutional rights have been violated by superior officers. Any action to provide a judicial response by way of such a remedy would be plainly inconsistent ivith Congress’ authority in this field.
“Taken together, the unique disciplinary structure of the Military Establishment and Congress’ activity in the field constitute ‘special factors’ which dictate that it would be inappropriate to provide enlisted military personnel a Bivens-type remedy against their superior officers.” 462 U. S., at 304 (emphasis added; citation omitted).
See also United States v. Stanley, 483 U. S. 669, 681 (1987) (disallowing Bivens actions by military personnel “whenever the injury arises out of activity ‘incident to service’ ”).
Similarly, we refused — again unanimously — to create a Bivens remedy for a First Amendment violation “arising] out of an employment relationship that is governed by comprehensive procedural and substantive provisions giving meaningful remedies against the United States.” Bush v. Lucas, 462 U. S. 367, 368 (1983). In that case, a federal employee was demoted, allegedly in violation of the First Amendment, for making public statements critical of the agency for which he worked. He was reinstated through the administrative process, with retroactive seniority and full backpay, but he was not permitted to recover for any loss due to emotional distress or mental anguish, or for attorney’s fees. See id., at 371, 372, andnn. 8-9;id., at 390-391 (Marshall, J., concurring). Concluding that the administrative system created by Congress “provides meaningful remedies for employees who may have been unfairly disciplined for making critical comments about their agencies,” id., at 386 (footnote omitted), the Court refused to create a Bivens action even though it assumed a First Amendment violation and acknowledged that “existing remedies do not provide complete relief for the plaintiff,” 462 U. S., at 388. See also id., at 385, n. 28 (no remedy whatsoever for short suspensions or for adverse personnel actions against probationary employees). The Court stressed that the case involved policy questions in an area that had received careful attention from Congress. Id., at 380-388. Noting that the Legislature is far more competent than the Judiciary to carry out the necessary “balancing [of] governmental efficiency and the rights of employees,” we refused to “decide whether or not it would be good policy to permit a federal employee to recover damages from a supervisor who has improperly disciplined him for exercising his First Amendment rights.” Id., at 389, 390.
In sum, the concept of “special factors counselling hesitation in the absence of affirmative action by Congress” has proved to include an appropriate judicial deference to indications that congressional inaction has not been inadvertent. When the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration, we have not created additional Bivens remedies.
B
The administrative structure and procedures of the Social Security system, which affects virtually every American, “are of a size and extent difficult to comprehend.” Richardson v. Perales, 402 U. S. 389, 399 (1971). Millions of claims are filed every year under the Act’s disability benefits programs alone, and these claims are handled under “an unusually protective [multi]-step process for the review and adjudication of disputed claims.” Heckler v. Day, 467 U. S. 104, 106 (1984).
The steps provided for under Title II are essentially identical for new claimants and for persons subject to CDR. An initial determination of a claimant’s eligibility for benefits is made by a state agency, under federal standards and criteria. See 42 U. S. C. § 421(a) (1982 ed. and Supp. IV); see also 20 CFR §§404.1588-404.1599 (1887). Next, a claimant is entitled to de novo reconsideration by the state agency, and additional evidence may be presented at that time. §§404.907-404.922. If the claimant is dissatisfied with the state agency’s decision, review may then be had by the Secretary of Health and Human Services, acting through a federal ALJ; at this stage, the claimant is again free to introduce new evidence or raise new issues. 42 U. S. C. § 421(d) (1982 ed., Supp. IV); 20 CFR §§404.929-404.965 (1987). If the claimant is still dissatisfied, a hearing may be sought before the Appeals Council of the Social Security Administration. §§404.967-404.983. Once these elaborate administrative remedies have been exhausted, a claimant is entitled to seek judicial review, including review of constitutional claims. 42 U. S. C. §§ 405(g), 421(d) (1982 ed. and Supp. IV); Heckler v. Ringer, 466 U. S. 602, 615 (1984); Mathews v. Eldridge, 424 U. S., at 332; Weinberger v. Salfi, 422 U. S. 749, 762 (1975). The Act, however, makes no provision for remedies in money damages against officials responsible for unconstitutional conduct that leads to the wrongful denial of benefits. As respondents concede, claimants whose benefits have been fully restored through the administrative process would lack standing to invoke the Constitution under the statute’s administrative review provision. See Brief for Respondents 32-33.
The case before us cannot reasonably be distinguished from Bush v. Lucas. Here, exactly as in Bush, Congress has failed to provide for “complete relief”: respondents have not been given a remedy in damages for emotional distress or for other hardships suffered because of delays in their receipt of Social Security benefits. Compare Bush, 462 U. S., at 372, n. 9, with 796 F. 2d, at 1134, n. 2 (opinion below). The creation of a Bivens remedy would obviously offer the prospect of relief for injuries that must now go unredressed. Congress, however, has not failed to provide meaningful safeguards or remedies for the rights of persons situated as respondents were. Indeed, the system for protecting their rights is, if anything, considerably more elaborate than the civil service system considered in Bush. The prospect of personal liability for official acts, moreover, would undoubtedly lead to new difficulties and expense in recruiting administrators for the programs Congress has established. Congressional competence at “balancing governmental efficiency and the rights of [individuals],” Bush, supra, at 389, is no more questionable in the social welfare context than it is in the civil service context. Cf. Forrester v. White, 484 U. S. 219, 223-224 (1988).
Congressional attention to problems that have arisen in the administration of CDR (ineluding the very problems that gave rise to this case) has, moreover, been frequent and intense. See, e. g., H. R. Rep. No. 98-618, pp. 2, 4 (1984); S. Rep. No. 98-466, pp. 10, 17-18 (1984). Congress itself required that the CDR program be instituted. Within two years after the program began, Congress enacted emergency legislation providing for the continuation of benefits even after a finding of ineligibility by a state agency. Less than two years after passing that law, and fully aware of the results of extensive investigations of the practices that led to respondents’ injuries, Congress again enacted legislation aimed at reforming the administration of CDR; that legislation again specifically addressed the problem that had provoked the earlier emergency legislation. At each step, Congress chose specific forms and levels of protection for the rights of persons affected by incorrect eligibility determinations under CDR. At no point did Congress choose to extend to any person the kind of remedies that respondents seek in this lawsuit. Cf. 130 Cong. Rec. 6585-6586 (1984) (Rep. Perkins) (expressing regret that the bill eventually enacted as the 1984 Reform Act did not provide additional relief for persons improperly terminated during the early years of CDR). Thus, congressional unwillingness to provide consequential damages for unconstitutional deprivations of a statutory right is at least as clear in the context of this case as it was in Bush.
Respondents nonetheless contend that Bush should be confined to its facts, arguing that it applies only in the context of what they call “the special nature of federal employee relations.” Brief for Respondents 40. Noting that the parties to this case did “not share the sort of close, collaborative, continuing juridical relationship found in the federal civil service,” respondents suggest that the availability of Bivens remedies would create less “inconvenience” to the Social Security system than it would in the context of the civil service. See Brief for Respondents 44, 46-48. Petitioners are less sanguine, arguing that the creation of Bivens remedy in this context would lead to “a complete disruption of [a] carefully crafted and constantly monitored congressional scheme.” Reply Brief for Petitioners 15.
We need not choose between these competing predictions, which have little bearing on the applicability of Bush to this case. The decision in Bush did not rest on this Court’s belief that Bivens actions would be more disruptive of the civil service than they are in other contexts where they have been allowed, such as federal law enforcement agencies (Bivens itself) or the federal prisons (Carlson v. Green, 446 U. S. 14 (1980)). Rather, we declined in Bush “‘to create a new substantive legal liability . . because we are convinced that Congress is in a better position to decide whether or not the public interest would be served by creating it.” 462 U. S., at 390 (citation omitted). That reasoning applies as much, or more, in this case as it did in Bush itself.
Respondents also suggest that this case is distinguishable from Bush because the plaintiff in that case received compensation for the constitutional violation itself, while these respondents have merely received that to which they would have been entitled had there been no constitutional violation. See Brief for Respondents 20, n. 26 (“Bush’s reinstatement was a remedy for the alleged abuse, not just a restoration of something to which he was entitled . . .”); see also id., at 11 (failure to create a Bivens remedy “would give respondents precisely the same thing whether or not they were victims of constitutional deprivation and would thus leave respondents with no post-deprivation remedy at all for the constitutional violations they allege”). The Bush opinion, however, drew no distinction between compensation for a “constitutional wrong” and the restoration of statutory rights that had been unconstitutionally taken away. Nor did it suggest that such labels would matter. Indeed, the Court appeared to assume that civil service employees would get “precisely the same thing whether or not they were victims of constitutional deprivation.” Ibid.; see Bush, 462 U. S., at 386 (civil service statute “provides meaningful remedies for employees who may have been unfairly disciplined for making critical comments about their agencies”) (emphasis added; footnote omitted). Bush thus lends no support to the notion that statutory violations caused by unconstitutional conduct necessarily require remedies in addition to the remedies provided generally for such statutory violations. Here, as in Bush, it is evident that if we were “to fashion an adequate remedy for every wrong that can be proved in a case . . . [the complaining party] would obviously prevail.” Id., at 373. In neither case, howéver, does the presence of alleged unconstitutional conduct that is not separately remedied under the statutory scheme imply that the statute has provided “no remedy” for the constitutional wrong at issue.
The remedy sought in Bush was virtually identical to the one sought by respondents in this case: consequential damages for hardships resulting from an allegedly unconstitutional denial of a statutory right (Social Security benefits in one instance and employment in a particular Government job in the other). In light of the comprehensive statutory schemes involved, the harm resulting from the alleged constitutional violation can in neither case be separated from the harm resulting from the denial of the statutory right. Respondents’ effort to separate the two does not distinguish this case from Bush in any analytically meaningful sense.
In the end, respondents’ various arguments are rooted in their insistent and vigorous contention that they simply have not been adequately recompensed for their injuries. They say, for example:
“Respondents are disabled workers who were dependent upon their Social Security benefits when petitioners unconstitutionally terminated them. Respondents needed those benefits, at the time they were wrongfully withheld, to purchase food, shelter, medicine, and life’s other necessities. The harm they suffered as a result . bears no relation to the dollar amount of the benefits unjustly withheld from them. For the Government to offer belated restoration of back benefits in a lump sum and attempt to call it quits, after respondents have suffered deprivation for months on end, is not only to display gross insensitivity to the damage done to respondents’ lives, but to trivialize the seriousness of petitioners’ offense.” Brief for Respondents 11.
We agree that suffering months of delay in receiving the income on which one has depended for the very necessities of life cannot be fully remedied by the “belated restoration of back benefits. ” The trauma to respondents, and thousands of others like them, must surely have gone beyond what anyone of normal sensibilities would wish to see imposed on innocent disabled citizens. Nor would we care to “trivialize” the nature of the wrongs alleged in this case. Congress, however, has addressed the problems created by state agencies’ wrongful termination of disability benefits. Whether or not we believe that its response was the best response, Congress is the body charged with making the inevitable compromises required in the design of a massive and complex welfare benefits program. Cf. Dandridge v. Williams, 397 U. S. 471, 487 (1970). Congress has discharged that responsibility to the extent that it affects the case before us, and we see no legal basis that would allow us to revise its decision.
Because the relief sought by respondents is unavailable as a matter of law, the case must be dismissed. The judgment of the Court of Appeals to the contrary is therefore
Reversed.
Petitioner William R. Sims is director of the Arizona Disability Determination Service, which participates in the administration of Title II under the supervision of the Secretary of Health and Human Services. 42 U. S. C. § 421(a) (1982 ed. and Supp. IV). The Court of Appeals concluded, for jurisdictional purposes only, that Sims “was acting under color of federal law as an agent of the Secretary.” 796 F. 2d 1131, 1135, n. 3 (CA9 1986) (opinion below). We may assume, arguendo, that if an action akin to the one recognized in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), would be available against the petitioners who were federal employees, it would also be available against Sims. In light of our disposition of the ease, however, we need not decide the question.
The Court of Appeals described the remaining allegations as follows: “1. Knowing use of unpublished criteria and rules and standards contrary to the Social Security Act.
“2. Intentional disregard of dispositive favorable evidence.
“3. Purposeful selection of biased physicians and staff to review claims. “4. Imposition of quotas.
“5. Failure to review impartially adverse decisions.
“6. Arbitrary reversal of favorable decisions.
“7. Denial of benefits based on the type of disabling impairment.
“8. Unreasonable delays in receiving hearings af ter termination of benefits.” 796 F. 2d, at 1138.
The Solicitor General contends that Congress has explicitly precluded the creation of a Bivens remedy for respondents' claims. Cf. Bivens, 403 U. S., at 397. His argument rests on 42 U. S. C. § 405(h) (1982 ed., Supp. IV), which provides:
“The findings and decision of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Secretary, or any officer or employee thereof shall be brought under sections 1331 or 1346 of title 28 to recover on any claim arising under [Title II].”
Relying on Heckler v. Ringer, 466 U. S. 602, 614-616, 620-626 (1984), and Weinberger v. Salfi, 422 U. S. 749, 756-762 (1975), the Solicitor General has previously argued that the third sentence of this provision prevents any exercise of general federal-question jurisdiction under § 1331. See Bowen v. Michigan Academy of Family Physicians, 476 U. S. 667, 679 (1986). Without deciding the question, we noted that arguments could be made for and against the Solicitor General’s position. Id., at 679-680. We continue to believe that the exact scope' of the third sentence’s restriction on federal-question jurisdiction is not free from doubt; because we hold on other grounds that a Bivens remedy is precluded in this case, we need not decide whether § 405(h) would have the same effect. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari. | What reason, if any, does the court give for granting the petition for certiorari? | [
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11
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ROGERS v. UNITED STATES.
No. 20.
Argued November 7, 1950.
Decided February 26, 1951.
Samuel D. Menin argued the cause and filed a brief for petitioner.
Solicitor General Perlman argued the cause for the United States. With him on the brief were Assistant Attorney General Mclnerney, John F. Davis and J. F. Bishop.
Mr. Chief Justice Vinson
delivered the opinion of the Court.
This case arises out of an investigation by the regularly convened grand jury of the United States District Court for the District of Colorado. The books and records of the Communist Party of Denver were sought as necessary to that inquiry and were the subject of questioning by the grand jury. In September, 1948, petitioner, in response to a subpoena, appeared before the grand jury. She testified that she held the position of Treasurer of the Communist Party of Denver until January, 1948, and that, by virtue of her office, she had been in possession of membership lists and dues records of the Party. Petitioner denied having possession of the records and testified that she had turned them over to another. But she refused to identify the person to whom she had given the Party’s books, stating to the court as her only reason: “I don’t feel that I should subject a person or persons to the same thing that I’m going through.” The court thereupon committed petitioner to the custody of the marshal until ten o’clock the next morning, expressly advising petitioner of her right to consult with counsel.
The next day, counsel for petitioner informed the court that he had read the transcript of the prior day’s proceedings and that, upon his advice, petitioner would answer the questions to purge herself of contempt. However, upon reappearing before the grand jury, petitioner again refused to answer the question. The following day she was again brought into court. Called before the district judge immediately after he had heard oral argument concerning the privilege against self-incrimination in another case, petitioner repeated her refusal to answer the question, asserting this time the privilege against self-incrimination. After ruling that her refusal was not privileged, the district judge imposed a sentence of four months for contempt. The Court of Appeals for the Tenth Circuit affirmed, 179 F. 2d 559 (1950), and we granted certiorari, 339 U. S. 956 (1950).
If petitioner desired the protection of the privilege against self-incrimination, she was required to claim it. United States v. Monia, 317 U. S. 424, 427 (1943). The privilege "is deemed waived unless invoked.” United States v. Murdock, 284 U. S. 141, 148 (1931). Furthermore, the decisions of this Court are explicit in holding that the privilege against self-incrimination “is solely for the benefit, of the witness,” and “is purely a personal privilege of the witness.” Petitioner expressly placed her original declination to answer on an untenable ground, since a refusal to answer cannot be justified by a desire to protect others from punishment, much less to protect another from interrogation by a grand jury. Petitioner’s claim of the privilege against self-incrimination was pure afterthought. Although the claim was made at the time of her second refusal to answer in the presence of the court, it came only after she had voluntarily testified to her status as an officer of the Communist Party of Denver. To uphold a claim of privilege in this case would open the way to distortion of facts by permitting a witness to select any stopping place in the testimony.
The privilege against self-incrimination, even if claimed at the time the question as to the name of the person to whom petitioner turned over the Party records was asked, would not justify her refusal to answer. As a preliminary matter, we note that petitioner had no privilege with respect to the books of the Party, whether it be a corporation or an unincorporated association. Books and records kept “in a representative rather than in a personal capacity cannot be the subject of the personal privilege against self-incrimination, even though production of the papers might tend to incriminate [their keeper] personally.” United States v. White, 322 U. S. 694, 699 (1944). Since petitioner’s claim of privilege cannot be asserted in relation to the books and records sought by the grand jury, the only claim for reversal of her conviction rests on the ground that mere disclosure of the name of the recipient of the books tends to incriminate.
In Patricia Blau v. United States, 340 U. S. 159 (1950), we held that questions as to connections with the Communist Party are subject to the privilege against self-incrimination as calling for disclosure of facts tending to criminate under the Smith Act. But petitioner’s conviction stands on an entirely different footing, for she had freely described her membership, activities and office in the Party. Since the privilege against self-incrimination presupposes a real danger of legal detriment arising from the disclosure, petitioner cannot invoke the privilege where response to the specific question in issue here would not further incriminate her. Disclosure of a fact waives the privilege as to details. As this Court stated in Brown v. Walker, 161 U. S. 591, 597 (1896):
“Thus, if the witness himself elects to waive his privilege, as he may doubtless do, since the privilege is for his protection and not for that of other parties, and discloses his criminal connections, he is not permitted to stop, but must go on and make a full disclosure."
Following this rule, federal courts have uniformly held that, where criminating facts have been voluntarily revealed, the privilege cannot be invoked to avoid disclosure of the details. The decisions of this Court in Arndstein v. McCarthy, 254 U. S. 71 (1920), and McCarthy v. Arndstein, 262 U. S. 355 (1923), further support the conviction in this case for, in sustaining the privilege on each appeal, the Court stressed the absence of any previous “admission of guilt or incriminating facts,” and relied particularly upon Brown v. Walker, supra, and Foster v. People, 18 Mich. 266 (1869). The holding of the Michigan court is entirely apposite here:
“[WJhere a witness has voluntarily answered as to materially criminating facts, it is held with uniformity that he cannot then stop short and refuse further explanation, but must disclose fully what he has attempted to relate.” 18 Mich, at 276.
Requiring full disclosure of details after a witness freely testifies as to a criminating fact does not rest upon a further “waiver” of the privilege against self-incrimination. Admittedly, petitioner had already “waived” her privilege of silence when she freely answered criminating questions relating to her connection with the Communist Party. But when petitioner was asked to furnish the name of the person to whom she turned over Party records, the court was required to determine, as it must whenever the privilege 'is claimed, whether the question presented a reasonable danger of further crimination in light of all the circumstances, including any previous disclosures. As to each question to which a claim of privilege is directed, the court must determine whether the answer to that particular question would subject the witness to a “real danger” of further crimination. After petitioner’s admission that she held the office of Treasurer of the Communist Party of Denver, disclosure of acquaintance with her successor presents no more than a “mere imaginary possibility” of increasing the danger of prosecution.
Petitioner’s contention in the Court of Appeals and in this Court has been that, conceding her prior voluntary crimination as to one element of proof of a Smith Act violation, disclosure of the name of the recipient of the Party records would tend to incriminate as to the different crime of conspiracy to violate the Smith Act. Our opinion in Patricia Blau v. United States, supra, at 161, explicitly rejects petitioner’s argument for reversal here in its holding that questions relating to activities in the Communist Party are criminating both as to “violation of (or conspiracy to violate) the Smith Act.” Of course, at least two persons are required to constitute a conspiracy, but the identity of the other members of the conspiracy is not needed, inasmuch as one person can be convicted of conspiring with persons whose names are unknown.
Affirmed.
Mb. Justice Clark took no part in the consideration or decision of this case.
Transcript, p. 39 (September 21,1948):
“The Court: Now, what is the question ?
“Mr. Goldschein: Who has the books and records of the Communist Party of Denver now. Who did Mrs. Rogers give those books up to as she says she gave them up in January of this year.
“The Court: Do you care to answer that question, madam?
“Mrs. Rogers: I do not.
“TheCourt: What?
“Mrs. Rogers: I do not, and that’s what I told them.
“The Court: Why won’t you answer ?
“Mrs. Rogers: I don’t feel that I should subject a person or persons to the same thing that I’m going through.
“The Court: It is the order or finding of the Court that you should answer those questions. Now, will you do that ?
“Mrs. Rogers: No.”
Transcript, p. 40 (September 21,1948):
“The Court: You will be detained until tomorrow morning until ten o’clock. In the meantime, you may consult counsel and have a hearing tomorrow morning at ten o’clock on your reasons for refusal to answer questions. '
“Mrs. Rogers: I can consult counsel between now and then?
“The Court: Yes, but you will be in the custody of the marshal all the time. Get your counsel and bring him over here if you want to, but you will have to be in the custody of the marshal and spend the night in jail, I’m afraid.”
Transcript, pp. 43, 49 (September 22,1948):
“Mr. Menin [After entering his appearance on behalf of petitioner] : In regard to the witness Rogers, I’ve read the transcript of what has transpired in court here yesterday; and I believe that upon my advice she will answer questions which were propounded to her.
“Mr. Menin: As to the witness Jane Rogers, I think she will purge herself of her contempt by answering the questions.
“The Court: In the case of the witness Rogers, then, the order of the Court is that she return to the Grand Jury room and if she purges herself of contempt, then upon bringing the matter back to the Court, she will be discharged. In the meantime, she will remain in custody.”
“No person. . . . shall be compelled in any criminal case to be a witness against himself . . . .” U. S. Const., Amend. V. The proceedings leading to the claim of privilege by petitioner appear at Transcript, pp. 77-78 (September 23,1948):
“The Court: . . . Madam, do you still persist in not answering these questions?
"Mrs. Rogers: Well, on the basis of Mr. Menin’s statements this morning—
“The Court: Will you please answer the question yes or no?
“Mrs. Rogers: Well, I think that’s rather undemocratic[.] I’m a very honest person. Would you mind letting me consider—
“The Court: Make any statement you wish.
“Mrs. Rogers: Well, as I said before, I’m a very honest person and I’m not acquainted with the tricks of legal procedure, but I understand from the reading of these cases this morning that I am — and I do have a right to refuse to answer these questions, on the basis that they would tend to incriminate me, and you read it yourself, that I have a right to decide that.
“The Court: You have not the right to say.
“Mrs. Rogers: According to what you read, I do. I stand on that.
“The Court: All right. If you will make no changes, it is the judgment and sentence of the court you be confined to the custody of the Attorney General for four months. Call the next case.”
Citing Vajtauer v. Commissioner of Immigration, 273 U. S. 103, 113 (1927). See Smith v. United States, 337 U. S. 137, 147 (1949) ; Corwin, The Supreme Court’s Construction of the Self-Incrimination Clause, 29 Mich. L. Rev. 1, 198-199 (1930).
United States v. Murdock, 284 U. S. 141, 148 (1931).
Hale v. Henkel, 201 U. S. 43, 69 (1906). McAlister v. Henkel, 201 U.S. 90, 91 (1906).
Brown v. Walker, 161 U. S. 591, 609 (1896); Hale v. Henkel, 201 U. S. 43, 69-70 (1906).
Wilson v. United States, 221 U. S. 361 (1911); Wheeler v. United States, 226 U. S. 478 (1913); Grant v. United States, 227 U. S. 74 (1913); Essgee Co. v. United States, 262 U. S. 151 (1923).
Brown v. United States, 276 U. S. 134 (1928); United States v. White, 322 U. S. 694 (1944). Cf. United States v. Fleischman, 339 U. S. 349, 358 (1950).
See also the cases cited in notes 7 and 8, supra. The privilege does not attach to the books of an organization, whether or not the books in question are “required records” of the type considered in Shapiro v. United States, 335 U. S. 1 (1948).
Membership in the Communist Party was not, of itself, a crime at the time the questions in this case were asked. And Congress has since expressly provided, in the Internal Security Act of 1950, Act of Sept. 23, 1950, 64 Stat. 987, 992, §4 (f), that “neither the holding of office nor membership in any Communist organization by any person shall constitute per se a violation of subsection (a) or subsection (c) of this section or of any other criminal statute.” We, of course, express no opinion as to the implications of this legislation upon the issues presented by these cases.
Quoted with approval in Powers v. United States, 223 U. S. 303, 314 (1912).
United States v. St. Pierre, 132 F. 2d 837 (C. A. 2d Cir., 1942); Buckeye Powder Co. v. Hazard Powder Co., 205 F. 827, 829 (D. C. Conn., 1913).
262 U. S. at 359 (emphasis supplied). The Arndstein appeals, like the present case, arose out of an involuntary examination. The Court reserved, as we do here, the problems arising out of a possible abuse of the privilege against self-incrimination in adversary proceedings. Compare state court decisions collected in 147 A. L. R. 255 (1943).
VIII Wigmore, Evidence (1940), §2276, quotes from Foster v. People, 18 Mich. 266 (1869), as authoritative and summarizes the law as follows:
“The case of the ordinary witness can hardly present any doubt. He may waive his privilege; this is conceded. He waives it by exercising his option of answering; this is conceded. Thus the only inquiry can be whether, by answering as to fact X, he waived it for fact Y. If the two are related facts, parts of a whole fact forming a single relevant topic, then his waiver as to a part is a waiver as to the remaining parts; because the privilege exists for the sake of the criminating fact as a whole.” (Emphasis in original.)
Heike v. United States, 227 U. S. 131, 144 (1913). Brown v. Walker, 161 U. S. 591, 600 (1896).
Mason v. United States, 244 U. S. 362, 366 (1917).
United States v. St. Pierre, 132 F. 2d 837 (C. A. 2d Cir., 1942), presented a closer question since the “detail” which St. Pierre was required to divulge would identify a person without whose testimony St. Pierre could not have been convicted of a crime. We, of course, do not here pass upon the precise factual question there decided by the Court of Appeals.
Browne v. United States, 145 F. 1, 13 (C. A. 2d Cir., 1905); Donegan v. United States, 287 F. 641, 648 (C. A. 2d Cir., 1922); Pomerantz v. United States, 51 F. 2d 911, 913 (C. A. 3d Cir., 1931); Grove v. United States, 3 F. 2d 965, 967 (C. A. 4th Cir., 1925); McDonald v. United States, 9 F. 2d 506, 507 (C. A. 8th Cir., 1925) ; Rosenthal v. United States, 45 F. 2d 1000, 1003 (C. A. 8th Cir., 1930); Didenti v. United States, 44 F. 2d 537, 538 (C. A. 9th Cir., 1930). See also Feder v. United States, 257 F. 694, 697 (C. A. 2d Cir., 1919); Worthington v. United States, 64 F. 2d 936, 939 (C. A. 7th Cir., 1933). | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them.
Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. | Who is the respondent of the case? | [
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] | [
26
] | sc_respondent |
ROGERS et al. v. LODGE et al.
No. 80-2100.
Argued February 23, 1982
Decided July 1, 1982
White, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Marshall, Blackmun, and O’Connor, JJ., joined. Powell, J., filed a dissenting opinion, in which Rehnquist, J., joined, post, p. 628. Stevens, J., filed a dissenting opinion, post, p. 631.
E. Freeman Leverett argued the cause for appellants. With him on the briefs was Preston B. Lewis.
David F. Walbert argued the cause for appellees. With him on the brief were Robert W. Cullen, Laughlin McDonald, Christopher Coates, and Neil Bradley
Briefs of amici curiae urging affirmance were filed by Arthur Kinoy and Robert Boehm for the Center for Constitutional Rights; by Marvin S. Arrington, Bobby L. Hill, John R. Myer, and Margrett Ford for the Georgia Association of Black Elected Officials et al.; by William L. Robinson and Frank R. Parker for the Lawyers’ Committee for Civil Rights Under Law; and by Jack Greenberg, James M. Nabrit III, and Lani Guinier for the NAACP Legal Defense and Educational Fund, Inc., et al.
Justice White
delivered the opinion of the Court.
The issue in this case is whether the at-large system of elections in Burke County, Ga., violates the Fourteenth Amendment rights of Burke County’s black citizens.
I
Burke County is a large, predominately rural county located in eastern Georgia. Eight hundred and thirty-one square miles in area, it is approximately two-thirds the size of the State of Rhode Island. According to the 1980 census, Burke County had a total population of 19,349, of whom 10,385, or 53.6%, were black. The average age of blacks living there is lower than the average age of whites and therefore whites constitute a slight majority of the voting age population. As of 1978, 6,373 persons were registered to vote in Burke County, of whom 38% were black.
The Burke County Board of Commissioners governs the county. It was created in 1911, see 1911 Ga. Laws 310-311, and consists of five members elected at large to concurrent 4-year terms by all qualified voters in the county. The county has never been divided into districts, either for the purpose of imposing a residency requirement on candidates or for the purpose of requiring candidates to be elected by voters residing in a district. In order to be nominated or elected, a candidate must receive a majority of the votes cast in the primary or general election, and a runoff must be held if no candidate receives a majority in the first primary or general election. Ga. Code §34-1513 (Supp. 1980). Each candidate must run for a specific seat on the Board, Ga. Code § 34-1015 (1978), and a voter may vote only once for any candidate. No Negro has ever been elected to the Burke County Board of Commissioners.
Appellees, eight black citizens of Burke County, filed this suit in 1976 in the United States District Court for the Southern District of Georgia. The suit was brought on behalf of all black citizens in Burke County. The class was certified in 1977. The complaint alleged that the county’s system of at-large elections violates appellees’ First, Thirteenth, Fourteenth, and Fifteenth Amendment rights, as well as their rights under 42 U. S. C. §§ 1971, 1973, and 1983, by diluting the voting power of black citizens. Following a bench trial at which both sides introduced extensive evidence, the court issued an order on September 29, 1978, stating that appellees were entitled to prevail and ordering that Burke County be divided into five districts for purposes of electing County Commissioners. App. to Juris. Statement 62a. The court later issued detailed findings of fact and conclusions of law in which it stated that while the present method of electing County Commissioners was “racially neutral when adopted, [it] is being maintained for invidious purposes” in violation of appellees’ Fourteenth and Fifteenth Amendment rights. Id., at 71a, 96a.
The Court of Appeals affirmed. Lodge v. Buxton, 639 F. 2d 1358 (CA5 1981). It stated that while the proceedings in the District Court took place prior to the decision in Mobile v. Bolden, 446 U. S. 55 (1980), the District Court correctly anticipated Mobile and required appellees to prove that the at-large voting system was maintained for a discriminatory purpose. 639 F. 2d, at 1375-1376. The Court of Appeals also held that the District Court’s findings were not clearly erroneous, and that its conclusion that the at-large system was maintained for invidious purposes was “virtually mandated by the overwhelming proof.” Id., at 1380. We noted probable jurisdiction, 454 U. S. 811 (1981), and now affirm.
II
At-large voting schemes and multimember districts tend to minimize the voting strength of minority groups by permitting the political majority to elect all representatives of the district. A distinct minority, whether it be a racial, ethnic, economic, or political group, may be unable to elect any representatives in an at-large election, yet may be able to elect several representatives if the political unit is divided into single-member districts. The minority’s voting power in a multimember district is particularly diluted when bloc voting occurs and ballots are cast along strict majority-minority lines. While multimember districts have been challenged for “their winner-take-all aspects, their tendency to submerge minorities and to overrepresent the winning party,” Whitcomb v. Chavis, 403 U. S. 124, 158-159 (1971), this Court has repeatedly held that they are not unconstitutional per se. Mobile v. Bolden, supra, at 66; White v. Regester, 412 U. S. 755, 765 (1973); Whitcomb v. Chavis, supra, at 142. The Court has recognized, however, that multimember districts violate the Fourteenth Amendment if “conceived or operated as purposeful devices to further racial discrimination” by minimizing, cancelling out or diluting the voting strength of racial elements in the voting population. Whitcomb v. Chavis, supra, at 149. See also White v. Regester, supra, at 765. Cases charging that multimember districts unconstitutionally dilute the voting strength of racial minorities are thus subject to the standard of proof generally applicable to Equal Protection Clause cases. Washington v. Davis, 426 U. S. 229 (1976), and Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252 (1977), made it clear that in order for the Equal Protection Clause to be violated, “the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose.” Washington v. Davis, supra, at 240. Neither case involved voting dilution, but in both cases the Court observed that the requirement that racially discriminatory purpose or intent be proved applies to voting cases by relying upon, among others, Wright v. Rockefeller, 376 U. S. 52 (1964), a districting case, to illustrate that a showing of discriminatory intent has long been required in all types of equal protection cases charging racial discrimination. Arlington Heights, supra, at 265; Washington v. Davis, supra, at 240.
Arlington Heights and Washington v. Davis both rejected the notion that a law is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than another. Arlington Heights, supra, at 265; Washington v. Davis, 426 U. S., at 242. However, both cases recognized that discriminatory intent need not be proved by direct evidence. “Necessarily, an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another.” Ibid. Thus determining the existence of a discriminatory purpose “demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Arlington Heights, supra, at 266.
In Mobile v. Bolden, supra, the Court was called upon to apply these principles to the at-large election system in Mobile, Ala. Mobile is governed by three commissioners who exercise all legislative, executive, and administrative power in the municipality. 446 U. S., at 59. Each candidate for the City Commission runs for one of three numbered posts in an at-large election and can only be elected by a majority vote. Id., at 59-60. Plaintiffs brought a class action on behalf of all Negro citizens of Mobile alleging that the at-large scheme diluted their voting strength in violation of several statutory and constitutional provisions. The District Court concluded that the at-large system “violates the constitutional rights of the plaintiffs by improperly restricting their access to the political process,” Bolden v. Mobile, 423 F. Supp. 384, 399 (SD Ala. 1976), and ordered that the commission form of government be replaced by a mayor and a nine-member City Council elected from single-member districts. Id., at 404. The Court of Appeals affirmed. 571 F. 2d 238 (CA5 1978). This Court reversed.
Justice Stewart, writing for himself and three other Justices, noted that to prevail in their contention that the at-large voting system violates the Equal Protection Clause of the Fourteenth Amendment, plaintiffs had to prove the system was “ ‘conceived or operated as [a] purposeful devic[e] to further racial . . . discrimination.’” 446 U. S., at 66, quoting Whitcomb v. Chavis, supra, at 149. Such a requirement “is simply one aspect of the basic principle that only if there is purposeful discrimination can there be a violation of the Equal Protection Clause of the Fourteenth Amendment,” 446 U. S., at 66, and White v. Regester is consistent with that principle. 446 U. S., at 69. Another Justice agreed with the standard of proof recognized by the plurality. Id., at 101 (White, J., dissenting).
The plurality went on to conclude that the District Court had failed to comply with this standard. The District Court had analyzed plaintiffs’ claims in light of the standard which had been set forth in Zimmer v. McKeithen, 485 F. 2d 1297 (CA5 1973), aff’d on other grounds sub nom. East Carroll Parish School Bd. v. Marshall, 424 U. S. 636 (1975) (per curiam). Zimmer set out a list of factors gleaned from Whitcomb v. Chavis, supra, and White v. Regester, supra, that a court should consider in assessing the constitutionality of at-large and multimember district voting schemes. Under Zimmer, voting dilution is established “upon proof of the existence of an aggregate of these factors.” 485 F. 2d, at 1305.
The plurality in Mobile was of the view that Zimmer was “decided upon the misunderstanding that it is not necessary to show a discriminatory purpose in order to prove a violation of the Equal Protection Clause — that proof of a discriminatory effect is sufficient.” 446 U. S., at 71. The plurality observed that while “the presence of the indicia relied on in Zimmer may afford some evidence of a discriminatory purpose,” the mere existence of those criteria is not a substitute for a finding of discriminatory purpose. Id., at 73. The District Court’s standard in Mobile was likewise flawed. Finally, the plurality concluded that the evidence upon which the lower courts had relied was “insufficient to prove an unconstitutionally discriminatory purpose in the present case.” Ibid. Justice Stevens rejected the intentional discrimination standard but concluded that the proof failed to satisfy the legal standard that in his view was the applicable rule. He therefore concurred in the judgment of reversal. Four other Justices, however, thought the evidence sufficient to satisfy the purposeful discrimination standard. One of them, Justice Blackmun, nevertheless concurred in the Court’s judgment because he believed an erroneous remedy had been imposed.
Because the District Court in the present case employed the evidentiary factors outlined in Zimmer, it is urged that its judgment is infirm for the same reasons that led to the reversal in Mobile. We do not agree. First, and fundamentally, we are unconvinced that the District Court in this case applied the wrong legal standard. Not only was the District Court’s decision rendered a considerable time after Washington v. Davis and Arlington Heights, but the trial judge also had the benefit of Nevett v. Sides, 571 F. 2d 209 (1978), where the Court of Appeals for the Fifth Circuit assessed the impact of Washington v. Davis and Arlington Heights and held that “a showing of racially motivated discrimination is a necessary element in an equal protection voting dilution claim . . . .” 571 F. 2d, at 219. The court stated that “[t]he ultimate issue in a case alleging unconstitutional dilution of the votes of a racial group is whether the districting plan under attack exists because it was intended to diminish or dilute the political efficacy of that group.” Id., at 226. The Court of Appeals also explained that although the evidentiary factors outlined in Zimmer were important considerations in arriving at the ultimate conclusion of discriminatory intent, the plaintiff is not limited to those factors. “The task before the fact finder is to determine, under all the relevant facts, in whose favor the ‘aggregate’ of the evidence preponderates. This determination is peculiarly dependent upon the facts of each case.” 571 F. 2d, at 224 (footnote omitted).
The District Court referred to Nevett v. Sides and demonstrated its understanding of the controlling standard by observing that a determination of discriminatory intent is “a requisite to a finding of unconstitutional vote dilution” under the Fourteenth and Fifteenth Amendments. App. to Juris. Statement 68a. Furthermore, while recognizing that the evidentiary factors identified in Zimmer were to be considered, the District Court was aware that it was “not limited in its determination only to the Zimmerfactors” but could consider other relevant factors as well. App. to Juris. Statement 70a. The District Court then proceeded to deal with what it considered to be the relevant proof and concluded that the at-large scheme of electing commissioners, “although racially neutral when adopted, is being maintained for invidious purposes.” Id., at 71a. That system “while neutral in origin . . . has been subverted to invidious purposes.” Id., at 90a. For the most part, the District Court dealt with the evidence in terms of the factors set out in Zimmer and its progeny, but as the Court of Appeals stated:
“Judge Alaimo employed the constitutionally required standard . . . [and] did not treat the Zimmer criteria as absolute, but rather considered them only to the extent they were relevant to the question of discriminatory intent.” 639 F. 2d, at 1376.
Although a tenable argument can be made to the contrary, we are not inclined to disagree with the Court of Appeals’ conclusion that the District Court applied the proper legal standard.
Ill
A
We are also unconvinced that we should disturb the District Court’s finding that the at-large system in Burke County was being maintained for the invidious purpose of diluting the voting strength of the black population. In White v. Regester, 412 U. S., at 769-770, we stated that we were not inclined to overturn the District Court’s factual findings, “representing as they do a blend of history and an intensely local appraisal of the design and impact of the Bexar County multimember district in the light of past and present reality, political and otherwise.” See also Columbus Board of Education v. Penick, 443 U. S. 449, 468 (1979) (Burger, C. J., concurring in judgment). Our recent decision in Pullman-Standard v. Swint, 456 U. S. 273 (1982), emphasizes the deference Federal Rule of Civil Procedure 52 requires reviewing courts to give a trial court’s findings of fact. “Rule 52(a) broadly requires that findings of fact not be set aside unless clearly erroneous. It does not make exceptions or purport to exclude certain categories of factual findings . . . .” 456 U. S., at 287. The Court held that the issue of whether the differential impact of a seniority system resulted from an intent to discriminate on racial grounds “is a pure question of fact, subject to Rule 52(a)’s clearly-erroneous standard.” Id., at 287-288. The Swint Court also noted that issues of intent are commonly treated as factual matters. Id., at 288. We are of the view that the same clearly-erroneous standard applies to the trial court’s finding in this case that the at-large system in Burke County is being maintained for discriminatory purposes, as well as to the court’s subsidiary findings of fact. The Court of Appeals did not hold any of the District Court’s findings of fact to be clearly erroneous, and this Court has frequently noted its reluctance to disturb findings of fact concurred in by two lower courts. See, e. g., Berenyi v. Information Director, 385 U. S. 630, 635 (1967); Blau v. Lehman, 368 U. S. 403, 408-409 (1962); Graver Tank & Mfg. Co. v. Linde Co., 336 U. S. 271, 275 (1949). We agree with the Court of Appeals that on the record before us, none of the factual findings are clearly erroneous.
B
The District Court found that blacks have always made up a substantial majority of the population in Burke County, App. to Juris. Statement 66a, n. 3, but that they are a distinct minority of the registered voters. Id., at 71a-72a. There was also overwhelming evidence of bloc voting along racial lines. Id., at 72a-73a. Hence, although there had been black candidates, no black had ever been elected to the Burke County Commission. These facts bear heavily on the issue of purposeful discrimination. Voting along racial lines allows those elected to ignore black interests without fear of political consequences, and without bloc voting the minority candidates would not lose elections solely because of their race. Because it is sensible to expect that at least some blacks would have been elected in Burke County, the fact that none have ever been elected is important evidence of purposeful exclusion. See White v. Regester, supra, at 766.
Under our cases, however, such facts are insufficient in themselves to prove purposeful discrimination absent other evidence such as proof that blacks have less opportunity to participate in the political processes and to elect candidates of their choice. United Jewish Organizations v. Carey, 430 U. S. 144, 167 (1977); White v. Regester, supra, at 765-766; Whitcomb v. Chavis, 403 U. S., at 149-150. See also Mobile v. Bolden, 446 U. S., at 66 (plurality opinion). Both the District Court and the Court of Appeals thought the supporting proof in this case was sufficient to support an inference of intentional discrimination. The supporting evidence was organized primarily around the factors which Nevett v. Sides, 571 F. 2d 209 (CA5 1978), had deemed relevant to the issue of intentional discrimination. These factors were primarily those suggested in Zimmer v. McKeithen, 485 F. 2d 1297 (CA5 1973).
The District Court began by determining the impact of past discrimination on the ability of blacks to participate effectively in the political process. Past discrimination was found to contribute to low black voter registration because, prior to the Voting Rights Act of 1965, blacks had been denied access to the political process by means such as literacy tests, poll taxes, and white primaries. The result was that “Black suffrage in Burke County was virtually non-existent.” App. to Juris. Statement 71a. Black voter registration in Burke County has increased following the Voting Rights Act to the point that some 38% of blacks eligible to vote are registered to do so. Id., at 72a. On that basis the District Court inferred that “past discrimination has had an adverse effect on black voter registration which lingers to this date.” Ibid. Past discrimination against blacks in education also had the same effect. Not only did Burke County schools discriminate against blacks as recently as 1969, but also some schools still remain essentially segregated and blacks as a group have completed less formal education than whites. Id., at 74a.
The District Court found further evidence of exclusion from the political process. Past discrimination had prevented blacks from effectively participating in Democratic Party affairs and in primary elections. Until this lawsuit was filed, there had never been a black member of the County Executive Committee of the Democratic Party. There were also property ownership requirements that made it difficult for blacks to serve as chief registrar in the county. There had been discrimination in the selection of grand jurors, the hiring of county employees, and in the appointments to boards and committees which oversee the county government. Id., at 74a-76a. The District Court thus concluded that historical discrimination had restricted the present opportunity of blacks effectively to participate in the political process. Evidence of historical discrimination is relevant to drawing an inference of purposeful discrimination, particularly in cases such as this one where the evidence shows that discriminatory practices were commonly utilized, that they were abandoned when enjoined by courts or made illegal by civil rights legislation, and that they were replaced by laws and practices which, though neutral on their face, serve to maintain the status quo.
Extensive evidence was cited by the District Court to support its finding that elected officials of Burke County have been unresponsive and insensitive to the needs of the black community, which increases the likelihood that the political process was not equally open to blacks. This evidence ranged from the effects of past discrimination which still haunt the county courthouse to the infrequent appointment of blacks to county boards and committees; the overtly discriminatory pattern of paving county roads; the reluctance of the county to remedy black complaints, which forced blacks to take legal action to obtain school and grand jury desegregation; and the role played by the County Commissioners in the incorporation of an all-white private school to which they donated public funds for the purchase of band uniforms. Id., at 77a-82a.
The District Court also considered the depressed socioeconomic status of Burke County blacks. It found that proportionately more blacks than whites have incomes below the poverty level. Id., at 83a. Nearly 53% of all black families living in Burke County had incomes equal to or less than three-fourths of a poverty-level income. Ibid. Not only have blacks completed less formal education than whites, but also the education they have received “was qualitatively inferior to a marked degree.” Id., at 84a. Blacks tend to receive less pay than whites, even for similar work, and they tend to be employed in menial jobs more often than whites. Id., at 85a. Seventy-three percent of houses occupied by blacks lacked all or some plumbing facilities; only 16% of white-occupied houses suffered the same deficiency. Ibid. The District Court concluded that the depressed socioeconomic status of blacks results in part from “the lingering effects of past discrimination.” Ibid.
Although finding that the state policy behind the at-large electoral system in Burke County was “neutral in origin,” the District Court concluded that the policy “has been subverted to invidious purposes.” Id., at 90a. As a practical matter, máintenance of the state statute providing for at-large elections in Burke County is determined by Burke County’s state representatives, for the legislature defers to their wishes on matters of purely local application. The court found that Burke County’s state representatives “have retained a system which has minimized the ability of Burke County Blacks to participate in the political system.” Ibid.
The trial court considered, in addition, several factors which this Court has indicated enhance the tendency of multimember districts to minimize the voting strength of racial minorities. See Whitcomb v. Chavis, 403 U. S., at 143-144. It found that the sheer geographic size of the county, which is nearly two-thirds the size of Rhode Island, “has made it more difficult for Blacks to get to polling places or to campaign for office.” App. to Juris. Statement 91a. The court concluded, as a matter of law, that the size of the county tends to impair the access of blacks to the political process. Id., at 92a. The majority vote requirement, Ga. Code § 34-1513 (Supp. 1980), was found “to submerge the will of the minority” and thus “deny the minority’s access to the system.” App. to Juris. Statement 92a. The court also found the requirement that candidates run for specific seats, Ga. Code § 34-1015 (1978), enhances appellees’ lack of access because it prevents a cohesive political group from concentrating on a single candidate. Because Burke County has no residency requirement, “[a]ll candidates could reside in Waynesboro, or in ‘lilly-white’ [sic] neighborhoods. To that extent, the denial of access becomes enhanced.” App. to Juris. Statement 93a.
None of the District Court’s findings underlying its ultimate finding of intentional discrimination appears to us to be clearly erroneous; and as we have said, we decline to overturn the essential finding of the District Court, agreed to by the Court of Appeals, that the at-large system in Burke County has been maintained for the purpose of denying blacks equal access to the political processes in the county. As in White v. Regester, 412 U. S., at 767, the District Court’s findings were “sufficient to sustain [its] judgment . . . and, on this record, we have no reason-to disturb them.”
IV
We also find no reason to overturn the relief ordered by the District Court. Neither the District Court nor the Court of Appeals discerned any special circumstances that would militate against utilizing single-member districts. Where “a constitutional violation has been found, the remedy does not ‘exceed’ the violation if the remedy is tailored to cure the ‘condition that offends the Constitution.’ ” Milliken v. Bradley, 433 U. S. 267, 282 (1977) (emphasis deleted), quoting Milliken v. Bradley, 418 U. S. 717, 738 (1974).
The judgment of the Court of Appeals is
Affirmed.
U. S. Dept. of Commerce, Bureau of the Census, County and City Data Book 1977, p. 90 (1978).
U. S. Dept. of Commerce, Bureau of the Census, 1980 Census of Population and Housing, PHC80-V-12, p. 5 (Mar. 1981). In 1930, Burke County had a total population of 29,224, of whom 22,698 or 78% were black. U. S. Dept. of Commerce, Bureau of the Census, II Characteristics of the Population, pt. 2, p. 229 (1943). The percentage of blacks in the total population of Burke County has steadily diminished over the last 50 years.
App. to Juris. Statement 72a.
The District Court’s judgment was stayed pending appeal to the Court of Appeals. 439 U. S. 948 (1978). The Court of Appeals stayed its mandate on April 6, 1981, pending disposition of the case here.
Purposeful racial discrimination invokes the strictest scrutiny of adverse differential treatment. Absent such purpose, differential impact is subject only to the test of rationality. Washington v. Davis, 426 U. S., at 247-248.
With respect to the Fifteenth Amendment, the plurality held that the Amendment prohibits only direct, purposefully discriminatory interference with the freedom of Negroes to vote. “Having found that Negroes in Mobile ‘register and vote without hindrance,’ the District Court and Court of Appeals were in error in believing that the appellants invaded the protection of [the Fifteenth] Amendment in the present case.” Mobile v. Bolden, 446 U. S., at 65. Three Justices disagreed with the plurality’s basis for putting aside the Fifteenth Amendment. Id., at 84, n. 3 (Stevens, J., concurring in judgment); id., at 102 (White, J., dissenting); id., at 125-135 (Marshall, J., dissenting). We express no view on the application of the Fifteenth Amendment to this case.
The plurality noted that plaintiffs’ claim under §2 of the Voting Rights Act, 79 Stat. 437, as amended, 42 U. S. C. § 1973, added nothing to their Fifteenth Amendment claim because the “legislative history of §2 makes clear that it was intended to have an effect no different from that of the Fifteenth Amendment itself.” 446 U. S., at 60-61.
We specifically affirmed the judgment below “without approval of the constitutional views expressed by the Court of Appeals.” 424 U. S., at 638.
The primary factors listed in Zimmer include a lack of minority access to the candidate selection process, unresponsiveness of elected officials to minority interests, a tenuous state policy underlying the preference for multimember or at-large districting, and the existence of past discrimination which precludes effective participation in the electoral process. 485 F. 2d, at 1305. Factors which enhance the proof of voting dilution are the existence of large districts, anti-single-shot voting provisions, and the absence of any provision for at-large candidates to run from geographic sub-districts. Ibid.
The Court of Appeals held that “proof of unresponsiveness by the public body in question to the group claiming injury” is an essential element of a claim of voting dilution under the Fourteenth Amendment. 639 F. 2d, at 1375. Under our cases, however, unresponsiveness is an important element but only one of a number of circumstances a court should consider in determining whether discriminatory purpose may be inferred.
Appellants contend that the District Court should not have divided Burke County into five districts but should have allowed appellants to devise a plan for subdividing the county and to submit their plan for preclearance under §5 of the Voting Rights Act, 79 Stat. 439, as amended, 42 U. S. C. § 1973c. This contention was not properly raised in the Court of Appeals and was not addressed by that court. We therefore do not address it. See Adickes v. S. H. Kress & Co., 398 U. S. 144, 147, n. 2 (1970).
Appellants also contend that the doctrine of unconstitutional dilution of voting rights arising from an at-large election system does not apply to county governing bodies. We find no merit to this contention, having previously affirmed a judgment that at-large elections for the governing body of a parish (county) unconstitutionally diluted black voting strength. East Carroll Parish School Bd. v. Marshall, 424 U. S. 636 (1976). | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. | What is the issue area of the decision? | [
"Criminal Procedure",
"Civil Rights",
"First Amendment",
"Due Process",
"Privacy",
"Attorneys",
"Unions",
"Economic Activity",
"Judicial Power",
"Federalism",
"Interstate Relations",
"Federal Taxation",
"Miscellaneous",
"Private Action"
] | [
1
] | sc_issuearea |
BOARD OF EDUCATION OF OKLAHOMA CITY v. NATIONAL GAY TASK FORCE
No. 83-2030.
Argued January 14, 1985
Decided March 26, 1985
Dennis W. Arrow argued the cause for appellant. With him on the briefs were Larry Lewis and James B. Croy.
Laurence H. Tribe argued the cause for appellee. With him on the brief were William B. Rogers and Leonard Graff
Briefs of amici curiae urging reversal were filed for Concerned Women for America Education and Legal Defense Foundation by Jordan W. Lorence; for the State of Oklahoma by Michael C. Turpén, Attorney General, and David W. Lee, Assistant Attorney General; for the National School Boards Association by Gwendolyn H. Gregory, August W. Stein-hilber, and Thomas A. Shannon; and for the Washington Legal Foundation by Daniel J. Popeo, Paul D. Kamenar, and George C. Smith.
Briefs of amici curiae urging affirmance were filed for the American Association for Personal Privacy et al. by Thomas F. Coleman and Jay M. Kohom; for the American Association of University Professors by Ann H. Franke, Ralph S. Brown, and Matthew Finkin; for the Center for Constitutional Rights et al. by Anne E. Simon, Sarah Wunsch, and Rhonda Copelon; for the Lambda Legal Defense and Education Fund, Inc., et al. by Abby R. Rubenfeld and Rosalyn Richter; for the National Education Association et al. by Robert Chanin and Robert M. Weinberg; and for the State of New York et al. by Robert Abrams, Attorney General of New York, Robert Hermann, Solicitor General, Lawrence S. Kahn, Assistant Attorney General, and John K. Van de Kamp, Attorney General of California.
Per Curiam.
The judgment is affirmed by an equally divided Court.
Justice Powell took no part in the decision of this case. | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. | What is the issue of the decision? | [
"First Amendment, miscellaneous (cf. comity: First Amendment)",
"commercial speech, excluding attorneys",
"libel, defamation: defamation of public officials and public and private persons",
"libel, privacy: true and false light invasions of privacy",
"legislative investigations: concerning internal security only",
"federal or state internal security legislation: Smith, Internal Security, and related federal statutes",
"loyalty oath or non-Communist affidavit (other than bar applicants, government employees, political party, or teacher)",
"loyalty oath: bar applicants (cf. admission to bar, state or federal or U.S. Supreme Court)",
"loyalty oath: government employees",
"loyalty oath: political party",
"loyalty oath: teachers",
"security risks: denial of benefits or dismissal of employees for reasons other than failure to meet loyalty oath requirements",
"conscientious objectors (cf. military draftee or military active duty) to military service",
"campaign spending (cf. governmental corruption):",
"protest demonstrations (other than as pertains to sit-in demonstrations): demonstrations and other forms of protest based on First Amendment guarantees",
"free exercise of religion",
"establishment of religion (other than as pertains to parochiaid:)",
"parochiaid: government aid to religious schools, or religious requirements in public schools",
"obscenity, state (cf. comity: privacy): including the regulation of sexually explicit material under the 21st Amendment",
"obscenity, federal"
] | [
0
] | sc_issue_3 |
GREGORY et al., JUDGES v. ASHCROFT, GOVERNOR OF MISSOURI
No. 90-50.
Argued March 18, 1991
Decided June 20, 1991
Jim J. Shoemake argued the cause for petitioners. With him on the briefs were Thomas J. Guilfoil and Bruce Dayton Livingston.
James B. Deutsch, Deputy Attorney General of Missouri, argued the cause for respondent. With him on the brief were William L. Webster, Attorney General, and Michael L. Boicourt, Assistant Attorney General.
Cathy Ventrell-Monsees filed a brief for the American Association of Retired Persons as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the State of Colorado et al. by Scott Harshbarger, Attorney General of Massachusetts, H. Reed Witherby, Special Assistant Attorney General, and Thomas A. Bar-uico, Assistant Attorney General, and by the Attorneys General for their respective jurisdictions as follows: Gale A. Norton of Colorado, Robert A. Butterworth of Florida, Warren Price III of Hawaii, Hubert H. Httmphrey III of Minnesota, Donald Stenberg of Nebraska, RobeH Del Tufo of New Jersey, Nicholas J. Spaeth of North Dakota, Ernest D. Preate, Jr., of Pennsylvania, Hector Rivera-Cruz of Puerto Rico, James E. O’Neil of Rhode Island, T. Travis Medlock of South Carolina, and Joseph B. Meyer of Wyoming; for the State of Connecticut by Richard Blumenthal, Attorney General, and Arnold B. Feigin and Daniel R. Schaefer, Assistant Attorneys General; for the State of Vermont, Office of Court Administrator, by William B. Gray; for the Missouri Bar by Karen M. Iverson and Timothy K. McNamara; for the National Governors Association et al. by Richard Ruda, Michael J. Wahoske, and Mark B. Rotenberg; and for the Washington Legal Foundation by John C. Cozad, W. Dennis Cross, R. Christopher Abele, Daniel J. Popeo, and John C. Scully.
Daniel G. Spraul filed a brief for Judge John W. Keefe as amicus curiae.
Justice O’Connor
delivered the opinion of the Court.
Article V, § 26, of the Missouri Constitution provides that “[a]ll judges other than municipal judges shall retire at the age of seventy years.” We consider whether this mandatory retirement provision violates the federal Age Discrimination in Employment Act of 1967 (ADEA or Act), 81 Stat. 602, as amended, 29 U. S. C. §§ 621-634, and whether it comports with the federal constitutional prescription of equal protection of the laws.
I
Petitioners are Missouri state judges. Judge Ellis Gregory, Jr., is an associate circuit judge for the Twenty-first Judicial Circuit. Judge Anthony P. Nugent, Jr., is a judge of the Missouri Court of Appeals, Western District. Both are subject to the § 26 mandatory retirement provision. Petitioners were appointed to office by the Governor of Missouri, pursuant to the Missouri Non-Partisan Court Plan, Mo. Const., Art. V, §§ 25(a)-25(g). Each has, since his appointment, been retained in office by means of a retention election in which the judge ran unopposed, subject only to a “yes or no” vote. See Mo. Const., Art. V, § 25(c)(1).
Petitioners and two other state judges filed suit against John D. Ashcroft, the Governor of Missouri, in the United States District Court for the Eastern District of Missouri, challenging the validity of the mandatory retirement provision. The judges alleged that the provision violated both the ADEA and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The Governor filed a motion to dismiss.
The District Court granted the motion, holding that Missouri’s appointed judges are not protected by the ADEA because they are “appointees ... ‘on a policymaking level’ ” and therefore are excluded from the Act’s definition of “employee.” App. to Pet. for Cert. 22. The court held also that the mandatory retirement provision does not violate the Equal Protection Clause because there is a rational basis for the distinction between judges and other state officials to whom no mandatory retirement age applies. Id., at 23.
The United States Court of Appeals for the Eighth Circuit affirmed the dismissal. 898 F. 2d 598 (1990). That court also held that appointed judges are “ ‘appointee[s] on the poli-cymaking level,’” and are therefore not covered under the ADEA. Id., at 604. The Court of Appeals held as well that Missouri had a rational basis for distinguishing judges who had reached the age of 70 from those who had not. Id., at 606.
We granted certiorari on both the ADEA and equal protection questions, 498 U. S. 979 (1990), and now affirm.
HH ) — l
The ADEA makes it unlawful for an employer to discharge any individual” who is at least 40 years old “because of such individual’s age.” 29 U. S. C. §§ 623(a), 631(a). The term “employer” is defined to include “a State or political subdivision of a State.” § 630(b)(2). Petitioners work for the State of Missouri. They contend that the Missouri mandatory retirement requirement for judges violates the ADEA.
A
As every schoolchild learns, our Constitution establishes a system of dual sovereignty between the States and the Federal Government. This Court also has recognized this fundamental principle. In Tafflin v. Levitt, 493 U. S. 455, 458 (1990), “[w]e beg[a]n with the axiom that, under our federal system, the States possess sovereignty concurrent with that of the Federal Government, subject only to limitations imposed by the Supremacy Clause.” Over 120 years ago, the Court described the constitutional scheme of dual sovereigns:
“‘[TJhe people of each State compose a State, having its own government, and endowed with all the functions essential to separate and independent existence,’ . . . ‘[WJithout the States in union, there could be no such political body as the United States.’ Not only, therefore, can there be no loss of separate and independent autonomy to the States, through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.” Texas v. White, 7 Wall. 700, 725 (1869), quoting Lane County v. Oregon, 7 Wall. 71, 76 (1869).
The Constitution created a Federal Government of limited powers. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U. S. Const., Arndt. 10. The States thus retain substantial sovereign authority under our constitutional system. As James Madison put it:
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. . . . The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” The Federalist No. 45, pp. 292-293 (C. Rossiter ed. 1961).
This federalist structure of joint sovereigns preserves to the people numerous advantages. It assures a decentralized government that will be more sensitive to the diverse needs of a heterogenous society; it increases opportunity for citizen involvement in democratic processes; it allows for more innovation and experimentation in government; and it makes government more responsive by putting the States in competition for a mobile citizenry. See generally McConnell, Federalism: Evaluating the Founders’ Design, 54 U. Chi. L. Rev. 1484, 1491-1511 (1987); Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 Colum. L. Rev. 1, 3-10 (1988).
Perhaps the principal benefit of the federalist system is a check on abuses of government power. “The ‘constitutionally mandated balance of power’ between the States and the Federal Government was adopted by the Framers to ensure the protection of ‘our fundamental liberties.’” Atascadero State Hospital v. Scanlon, 473 U. S. 234, 242 (1985), quoting Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 572 (1985) (Powell, J., dissenting). Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front. Alexander Hamilton explained to the people of New York, perhaps optimistically, that the new federalist system would suppress completely “the attémpts of the government to establish a tyranny”:
“[I]n a confederacy the people, without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress.” The Federalist No. 28, pp. 180-181 (C. Rossiter ed. 1961).
James Madison made much the same point:
“In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.” Id., No. 51, p. 323.
One fairly can dispute whether our federalist system has been quite as successful in checking government abuse as Hamilton promised, but there is no doubt about the design. If this “double security” is to be effective, there must be a proper balance between the States and the Federal Government. These twin powers will act as mutual restraints only if both are credible. In the tension between federal and state power lies the promise of liberty.
The Federal Government holds a decided advantage in this delicate balance: the Supremacy Clause. U. S. Const., Art. VI, cl. 2. As long as it is acting within the powers granted it | under the Constitution, Congress may impose its will on the | States. Congress may legislate in areas traditionally regulated by the States. This is an extraordinary power in a federalist system. It is a power that we must assume Congress does not exercise lightly.
The present case concerns a state constitutional provision through which the people of Missouri establish a qualification for those who sit as their judges. This provision goes beyond an area traditionally regulated by the States; it is a decision of the most fundamental sort for a sovereign entity. . Through the structure of its government, and the character of those who exercise government authority, a State defines itself as a sovereign. “It is obviously essential to the independence of the States, and to their peace and tranquility, that their power to prescribe the qualifications of their own officers . . . should be exclusive, and free from external interference, except so far as plainly provided by the Constitution of the United States.” Taylor v. Beckham, 178 U. S. 548, 570-571 (1900). See also Boyd v. Nebraska ex rel. Thayer, 143 U. S. 135, 161 (1892) (“Each State has the power to prescribe the qualifications of its officers and the manner in which they shall be chosen”).
Congressional interference with this decision of the people of Missouri, defining their constitutional officers, would upset the usual constitutional balance of federal and state powers. For this reason, “it is incumbent upon the federal courts to be certain of Congress’ intent before finding that federal law overrides” this balance. Atascadero, supra, at 243. We explained recently:
“[I]f Congress intends to alter the ‘usual constitutional balance between the States and the Federal Government,’ it must make its intention to do so ‘unmistakably clear in the language of the statute.’ Atascadero State Hospital v. Scanlon, 473 U. S. 234, 242 (1985); see also Pennhurst State School and Hospital v. Halderman, 465 U. S. 89, 99 (1984). Atascadero was an Eleventh Amendment case, but a similar approach is applied in other contexts. Congress should make its intention ‘clear and manifest’ if it intends to pre-empt the historic powers of the States, Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947) .... ‘In traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.’ United States v. Bass, 404 U. S. 336, 349 (1971).” Will v. Michigan Dept. of State Police, 491 U. S. 58, 65 (1989).
This plain statement rule is nothing more than an acknowledgment that the States retain substantial sovereign powers under our constitutional scheme, powers with which Congress does not readily interfere.
In a recent line of authority, we have acknowledged the unique nature of state decisions that “go to the heart of representative government.” Sugarman v. Dougall, 413 U. S. 634, 647 (1973). Sugarman was the first in a series of cases to consider the restrictions imposed by the Equal Protection Clause of the Fourteenth Amendment on the ability of state and local governments to prohibit aliens from public employment. In that case, the Court struck down under the Equal Protection Clause a New York City law that provided a flat ban against the employment of aliens in a wide variety of city jobs. Ibid.
The Court did not hold, however, that alienage could never justify exclusion from public employment. We recognized explicitly the States’ constitutional power to establish the qualifications for those who would govern:
“Just as ‘the Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections,’ Oregon v. Mitchell, 400 U. S. 112, 124-125 (1970) (footnote omitted) (opinion of Black, J.); see id., at 201 (opinion of Harlan, J.), and id., at 293-294 (opinion of Stewart, J.), “[e]ach State has the power to prescribe the qualifications of its officers and the manner in which they shall be chosen.” Boyd v. Thayer, 143 U. S. 135, 161 (1892). See Luther v. Borden, 7 How. 1, 41 (1849); Pope v. Williams, 193 U. S. 621, 632-633 (1904). Such power inheres in the State by virtue of its obligation, already noted above, ‘to preserve the basic conception of a political community.’ Dunn v. Blumstein, 405 U. S. [330, 344 (1972)]. And this power and responsibility of the State applies, not only to the qualifications of voters, but also to persons holding state elective and important non-elective executive, legislative, and judicial positions, for officers who participate directly in the formulation, execution, or review of broad public policy perform functions that go to the heart of representative government.” Ibid.
We explained that, while the Equal Protection Clause provides a check on such state authority, “our scrutiny will not be so demanding where we deal with matters resting firmly within a State’s constitutional prerogatives.” Id., at 648. This rule “is no more than ... a recognition of a State’s constitutional responsibility for the establishment and operation of its own government, as well as the qualifications of an appropriately designated class of public office holders. U. S. Const. Art. IV, § 4; U. S. Const. Amdt. X; Luther v. Borden, supra; see In re Duncan, 139 U. S. 449, 461 (1891).” Ibid.
In several subsequent cases we have applied the “political function” exception to laws through which States exclude aliens from positions “intimately related to the process of democratic self-government.” See Bernal v. Fainter, 467 U. S. 216, 220 (1984). See also Nyquist v. Mauclet, 432 U. S. 1, 11 (1977); Foley v. Connelie, 435 U. S. 291, 295-296 (1978); Ambach v. Norwick, 441 U. S. 68, 73-74 (1979); Cabell v. Chavez-Salido, 454 U. S. 432, 439-441 (1982). “We have . . . lowered our standard of review when evaluating the validity- of exclusions that entrust only to citizens important elective and nonelective positions whose operations ‘go to the heart of representative government.’” Bernal, 467 U. S., at 221 (citations omitted).
These cases stand in recognition of the authority of the people of the States to determine the qualifications of their most important government officials. It is an authority that lies at “‘the heart of representative government.’” Ibid. It is a power reserved to the States under the Tenth Amendment and guaranteed them by that provision of the Constitution under which the United States “guarantee^] to every State in this Union a Republican Form of Government.” U. S. Const., Art. IV, § 4. See Sugarman, supra, at 648 (citing the Guarantee Clause and the Tenth Amendment). See also Merritt, 88 Colum. L. Rev., at 50-55.
The authority of the people of the States to determine the qualifications of their government officials is, of course, not without limit. Other constitutional provisions, most notably the Fourteenth Amendment, proscribe certain qualifications; our review of citizenship requirements under the political function exception is less exacting, but it is not absent. Here, we must decide what Congress did in extending the ADEA to the States, pursuant to its powers under the Commerce Clause. See EEOC v. Wyoming, 460 U. S. 226 (1983) (the extension of the ADEA to employment by state and local governments was a valid exercise of Congress’ powers under the Commerce Clause). As against Congress’ powers “[t]o regulate Commerce . . . among the several States,” U. S. Const., Art. I, § 8, cl. 3, the authority of the people of the States to determine the qualifications of their government officials may be inviolate.
We are constrained in our ability to consider the limits that the state-federal balance places on Congress’ powers under the Commerce Clause. See Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528 (1985) (declining to review limitations placed on Congress’ Commerce Clause powers by our federal system). But there is no need to do so if we hold that the ADEA does not apply to state judges. Application of the plain statement rule thus may avoid a potential constitutional problem. Indeed, inasmuch as this Court in Garcia has left primarily to the political process the protection of the States against intrusive exercises of Congress’ Commerce Clause powers, we must be absolutely certain that Congress intended such an exercise. “[T]o give the state-displacing weight of federal law to mere congressional ambiguity would evade the very procedure for lawmaking on which Garcia relied to protect states’ interests.” L. Tribe, American Constitutional Law §6-25, p. 480 (2d ed. 1988).
B
In 1974, Congress extended the substantive provisions of the ADEA to include the States as employers. Pub. L. 93-259, § 28(a), 88 Stat. 74, 29 U. S. C. § 630(b)(2). At the same time, Congress amended the definition of “employee” to exclude all elected and most high-ranking government officials. Under the Act, as amended:
“The term ‘employee’ means an individual employed by any employer except that the term ‘employee’ shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer’s personal staff, or an appointee on the policymaking level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office.” 29 U. S. C. § 630(f).
Governor Ashcroft contends that the § 630(f) exclusion of certain public officials also excludes judges, like petitioners, who are appointed to office by the Governor and are then subject to retention election. The Governor points to two passages in § 630(f). First, he argues, these judges are selected by an elected official and, because they make policy, are “appointee[s] on the policymaking level.”
Petitioners counter that judges merely resolve factual disputes and decide questions of law; they do not make policy. Moreover, petitioners point out that the policymaking-level exception is part of a trilogy, tied closely to the elected-official exception. Thus, the Act excepts elected officials and: (1) “any person chosen by such officer to be on such officer’s personal staff”; (2) “an appointee on the policymaking level”; and (3) “an immediate advisor with respect to the exercise of the constitutional or legal powers of the office.” Applying the maxim of statutory construction noscitur a sock's — that a word is known by the company it keeps — petitioners argue that since (1) and (3) refer only to those in close working relationships with elected officials, so too must (2). Even if it can be said that judges may make policy, petitioners contend, they do not do so at the behest of an elected official.
Governor Ashcroft relies on the plain language of the statute: It exempts persons appointed “at the policymaking level.” The Governor argues that state judges, in fashioning and applying the common law, make policy. Missouri is a common law state. See Mo. Rev. Stat. § 1.010 (1986) (adopting “[t]he common law of England” consistent with federal and state law). The common law, unlike a constitution or statute, provides no definitive text; it is to be derived from the interstices of prior opinions and a well-considered judgment of what is best for the community. As Justice Holmes put it:
“The very considerations which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life. I mean, of course, considerations of what is expedient for the community concerned. Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy; most generally, to be sure, under our practice and traditions, the unconscious result of instinctive preferences and inarticulate convictions, but nonetheless traceable to views of public policy in the last analysis.” 0. Holmes, The Common Law 35-36 (1881).
Governor Ashcroft contends that Missouri judges make policy in other ways as well. The Missouri Supreme Court and Courts of Appeals have supervisory authority over inferior courts. Mo. Const., Art. V, § 4. The Missouri Supreme Court has the constitutional duty to establish rules of practice and procedure for the Missouri court system, and inferior courts exercise policy judgment in establishing local rules of practice. See Mo. Const., Art. V, § 5. The state courts have supervisory powers over the state'-bar, with the Missouri Supreme Court given the authority to develop disciplinary rules. See Mo. Rev. Stat. §§ 484.040, 484.200-484.270 (1986); Rules Governing the Missouri Bar and the Judiciary (1991).
The Governor stresses judges’ policymaking responsibilities, but it is far from plain that the statutory exception requires that judges actually make policy. The statute refers to appointees “on the policymaking level,” not to appointees “who make policy.” It may be sufficient that the appointee is in a position requiring the exercise of discretion concerning issues of public importance. This certainly describes the bench, regardless of whether judges might be considered policymakers in the same sense as the executive or legislature.
Nonetheless, “appointee at the policymaking level,” particularly in the context of the other exceptions that surround it, is an odd way for Congress to exclude judges; a plain statement that judges are not “employees” would seem the most efficient phrasing. But in this case we are not looking for a plain statement that judges are excluded. We will not read the ADEA to cover state judges unless Congress has made it clear that judges are included. This does not mean that the Act must mention judges explicitly, though it does not. Cf. Dellmuth v. Muth, 491 U. S. 223, 233 (1989) (Sca-lia, J., concurring). Rather, it must be plain to anyone reading the Act that it covers judges. In the context of a statute that plainly excludes most important state public officials, “appointee on the policymaking level” is sufficiently broad that we cannot conclude that the statute plainly covers appointed state judges. Therefore, it does not.
The ADEA plainly covers all state employees except those excluded by one of the exceptions. Where it is unambiguous that an employee does not fall within one of the exceptions, the Act states plainly and unequivocally that the employee is included. It is at least ambiguous whether a state judge is an “appointee on the policymaking level.”
Governor Ashcroft points also to the “person elected to public office” exception. He contends that because petitioners — although appointed to office initially — are subject to retention election, they are “elected to public office” under the ADEA. Because we conclude that petitioners fall presumptively under the policymaking-level exception, we need not answer this question.
C
The extension of the ADEA to employment by state and local governments was a valid exercise of Congress’ powers under the Commerce Clause. EEOC v. Wyoming, 460 U. S. 226 (1983). In Wyoming, we reserved the questions whether Congress might also have passed the ADEA extension pursuant to its powers under § 5 of the Fourteenth Amendment, and whether the extension would have been a valid exercise of that power. Id., at 243, and n. 18. We noted, however, that the principles of federalism that constrain Congress’ exercise of its Commerce Clause powers are attenuated when Congress acts pursuant to its powers to enforce the Civil War Amendments. Id., at 243, and n. 18, citing City of Rome v. United States, 446 U. S. 156, 179 (1980). This is because those “Amendments were specifically designed as an expansion of federal power and an intrusion on state sovereignty.” Id., at 179. One might argue, therefore, that if Congress passed the ADEA extension under its §5 powers, the concerns about federal intrusion into state government that compel the result in this case might carry less weight.
By its terms, the Fourteenth Amendment contemplates terference with state authority: “No State shall. . . deny to any person within its jurisdiction the equal protection of the laws.” U. S. Const., Arndt. 14. But this Court has never held that the Amendment may be applied in complete disregard for a State’s constitutional powers. Rather, the Court has recognized that the States’ power to define the qualifications of their officeholders has force even as against the proscriptions of the Fourteenth Amendment.
We return to the political-function cases. In Sugarman, the Court noted that “aliens as a class ‘are a prime example of a “discrete and insular” minority (see United States v. Carolene Products Co., 304 U. S. 144, 152-153, n. 4 (1938)),’ and that classifications based on alienage are ‘subject to close judicial scrutiny.’” 413 U. S., at 642, quoting Graham v. Richardson, 403 U. S. 365, 372 (1971). The Sugarman Court held that New York City had insufficient interest in preventing aliens from holding a broad category of public jobs to justify the blanket prohibition. 413 U. S., at 647. At the same time, the Court established the rule that scrutiny under the Equal Protection Clause “will not be so demanding where we deal with matters resting firmly within a State’s constitutional prerogatives.” Id., at 648. Later cases have reaffirmed this practice. See Foley v. Connelie, 435 U. S. 291 (1978); Ambach v. Norwick, 441 U. S. 68 (1979); Cabell v. Chavez-Salido, 454 U. S. 432 (1982). These cases demonstrate that the Fourteenth Amendment does not override all principles of federalism.
Of particular relevance here is Pennhurst State School and Hospital v. Halderman, 451 U. S. 1 (1981). The question in that case was whether Congress, in passing a section of the Developmentally Disabled Assistance and Bill of Rights Act, 42 U. S. C. § 6010 (1982 ed.), intended to place an obligation on the States to provide certain kinds of treatment to the disabled. Respondent Halderman argued that Congress passed § 6010 pursuant to § 5 of the Fourteenth Amendment, and therefore that it was mandatory on the States, regardless of whether they received federal funds. Petitioner and the United States, as respondent, argued that, in passing § 6010, Congress acted pursuant to its spending power alone. Consequently, § 6010 applied only to States accepting federal funds under the Act.
The Court was required to consider the “appropriate test for determining when Congress intends to enforce” the guarantees of the Fourteenth Amendment. 451 U. S., at 16. We adopted a rule fully cognizant of the traditional power of the States: “Because such legislation imposes congressional policy on a State involuntarily, and because it often intrudes on traditional state authority, we should not quickly attribute to Congress an unstated intent to act under its authority to enforce the Fourteenth Amendment.” Ibid. Because Congress nowhere stated its intent to impose mandatory obligations on the States under its § 5 powers, we concluded that Congress did not do so. Ibid.
The Pennhurst rule looks much like the plain statement rule we apply today. In EEOC v. Wyoming, the Court explained that Pennhurst established a rule of statutory construction to be applied where statutory intent is ambiguous. 460 U. S., at 244, n. 18. In light of the ADE A’s clear exclusion of most important public officials, it is at least ambiguous whether Congress intended that appointed judges nonetheless be included. In the face of such ambiguity, we will not attribute to Congress an intent to intrude on state governmental functions regardless of whether Congress acted pursuant to its Commerce Clause powers or § 5 of the Fourteenth Amendment.
Ill
Petitioners argue that, even if they are not covered by the ADEA, the Missouri Constitution’s mandatory retirement provision for judges violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Petitioners contend that there is no rational basis for the decision of the people of Missouri to preclude those aged 70 and over from serving as their judges. They claim that the mandatory retirement provision makes two irrational distinctions: between judges who have reached age 70 and younger judges, and between judges 70 and over and other state employees of the same age who are not subject to mandatory retirement.
Petitioners are correct to assert their challenge at the level of rational basis. This Court has said repeatedly that age is not a suspect classification under the Equal Protection Clause. See Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307, 313-314 (1976); Vance v. Bradley, 440 U. S. 93, 97 (1979); Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 441 (1986). Nor do petitioners claim that they have a fundamental interest in serving as judges. The State need therefore assert only a rational basis for its age classification. See Murgia, supra, at 314; Bradley, 440 U. S., at 97. In cases where a classification burdens neither a suspect group nor a fundamental interest, “courts are quite reluctant to overturn governmental action on the ground that it denies equal protection of the laws.” Ibid. In this case, we are dealing not merely with government action, but with a state constitutional provision approved by the people of Missouri as a whole. This constitutional provision reflects both the considered judgment of the state legislature that proposed it and that of the citizens of Missouri who voted for it. See 1976 Mo. Laws 812 (proposing the mandatory retirement provision of § 26); Mo. Const., Art. XII, §§ 2(a), 2(b) (describing the amendment process). “[W]e will not overturn such a [law] unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the [people’s] actions were irrational.” Bradley, supra, at 97. See also Pennell v. San Jose, 486 U. S. 1, 14 (1988).
Governor Ashcroft cites O’Neil v. Baine, 568 S. W. 2d 761 (Mo. 1978) (en banc), as a fruitful source of rational bases. In O’Neil, the Missouri Supreme Court — to whom Missouri Constitution Article V, § 26, applies — considered an equal protection challenge to a state statute that established a mandatory retirement age of 70 for state magistrate and probate judges. The court upheld the statute, declaring numerous legitimate state objectives it served: “The statute draws a line at a certain age which attempts to uphold the high competency for judicial posts and which fulfills a societal demand for the highest caliber of judges in the system”; “the statute . . . draws a legitimate line to avoid the tedious and often perplexing decisions to determine which judges after a certain age are physically and mentally qualified and those who are not”; “mandatory retirement increases the opportunity for qualified persons ... to share in the judiciary and permits an orderly attrition through retirement”; “such a mandatory provision also assures predictability and ease in establishing and administering judges’ pension plans.” Id., at 766-767. Any one of these explanations is sufficient to rebut the claim that “the varying treatment of different groups or persons [in § 26] is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the [people’s] actions were irrational.” Bradley, supra, at 97.
The people of Missouri have a legitimate, indeed compelling, interest in maintaining a judiciary fully capable of performing the demanding tasks that judges must perform. It is an unfortunate fact of life that physical and mental capacity sometimes diminish with age. See Bradley, supra, at 111—112; Murgia, supra, at 315. The people may therefore wish to replace some older judges. Voluntary retirement will not always be sufficient. Nor may impeachment — with its public humiliation and elaborate procedural machinery — serve acceptably the goal of a fully functioning judiciary. See Mo. Const., Art. VII, §§ 1-3.
The election process may also be inadequate. Whereas the electorate would be expected to discover if their governor or state legislator were not performing adequately and vote the official out of office, the same may not be true of judges. Most voters never observe state judges in action, nor read judicial opinions. State judges also serve longer terms of office than other public officials, making them — deliberately— less dependent on the will of the people. Compare Mo. Const., Art. V, § 19 (Supreme Court justices and Court of Appeals judges serve 12-year terms; Circuit Court judges 6 years), with Mo. Const., Art. IV, § 17 (Governor, Lieutenant Governor, secretary of state, state treasurer, and attorney general serve 4-year terms) and Mo. Const., Art. III, § 11 (state representatives serve 2-year terms; state senators 4 years). Most of these judges do not run in ordinary elections. See Mo. Const., Art. V, § 25(a). The people of Missouri rationally could conclude that retention elections — in which state judges run unopposed at relatively long intervals — do not serve as an adequate check on judges whose performance is deficient. Mandatory retirement is a reasonable response to this dilemma.
This is also a rational explanation for the fact that state judges are subject to a mandatory retirement provision, while other state officials — whose performance is subject to greater public scrutiny, and who are subject to more standard elections — are not. Judges’ general lack of accountability explains also the distinction between judges and other state employees, in whom a deterioration in performance is more readily discernible and who are more easily removed.
The Missouri mandatory retirement provision, like all legal classifications, is founded on a generalization. It is far from true that all judges suffer significant deterioration in performance at age 70. It is probably not true that most do. It may not be true at all. But a State “ ‘does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect.’” Murgia, 427 U. S., at 316, quoting Dandridge v. Williams, 397 U. S. 471, 485 (1970). “In an equal protection case of this type . . . those challenging the . . . judgment [of the people] must convince the court that the . . . facts on which the classification is apparently based could not reasonably be conceived to be true by the . . . decisionmaker.” Bradley, 440 U. S., at 111. The people of Missouri rationally could conclude that the threat of deterioration at age 70 is sufficiently great, and the alternatives for removal sufficiently inadequate, that they will require all judges to step aside at age 70. This classification does not violate the Equal Protection Clause.
> L — Í
The people of Missouri have established a qualification for those who would be their judges. It is their prerogative as citizens of a sovereign State to do so. Neither the ADEA nor the Equal Protection Clause prohibits the choice they have made. Accordingly, the judgment of the Court of Appeals is
Affirmed.
Justice White believes that the “political function” cases are inappo-site because they involve limitations on “judicially created scrutiny” rather than “Congress’ legislative authority,” which is at issue here. Post, at 477. He apparently suggests that Congress has greater authority to interfere with state sovereignty when acting pursuant to its Commerce Clause powers than this Court does when applying the Fourteenth Amendment. Elsewhere in his opinion, Justice White emphasizes that the Fourteenth Amendment was designed as an intrusion on state sovereignty. See post, at 480. That being the case, our diminished scrutiny of state laws in the “political function” cases, brought under the Fourteenth Amendment, argues strongly for special care when interpreting alleged congressional intrusions into state sovereignty under the Commerce Clause. | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. | What is the issue of the decision? | [
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] | [
5
] | sc_issue_2 |
ROSE, WARDEN v. MITCHELL et al.
No. 77-1701.
Argued January 16, 1979
Decided July 2, 1979
Blacemun, J., delivered the opinion of the Court, in which Brennan and Marshall, JJ., joined; in Parts I, III, and IV of which Burger, C. J., and Eehnquist, J., joined; and in Parts I and II of which White and Stevens, JJ., joined. Eehnquist, J., filed a statement concurring in part, post, -p. 574. Stewart, J., post, p. 574, and Powell, J., post, p. 579, filed opinions concurring in the judgment, in which Eehnquist, J., joined. White, J., filed a dissenting opinion, in which Stevens, J., joined, post, p. 588. Stevens, J., filed an opinion dissenting in part, post, p. 593.
William M. Leech, Jr., Attorney General of Tennessee, argued the cause for petitioner. With him on the brief was Michael E. Terry, Assistant Attorney General.
Walter Kurtz argued the cause and filed a brief for respondents.
Solicitor General McCree, Assistant Attorney General Days, Walter W. Barnett, and Mildred M. Matesich filed a memorandum for the United States as amicus curiae urging affirmance.
Mr. Justice Blackmun
delivered the opinion of the Court.
In this federal habeas corpus case, respondents claim they were the victims of racial discrimination, in violation of the Equal Protection Clause of the Fourteenth Amendment, in the selection of the foreman of the Tennessee grand jury that indicted them for murders in the first degree. As the case comes to this Court, no issue of discrimination in the selection of the venire is presented; we are concerned only with the selection of the foreman.
I
In November 1972, respondents James E. Mitchell and James Nichols, Jr., and two other men were jointly indicted by the grand jury of Tipton County, Tenn. The four were charged in two counts of first-degree murder in connection with the shooting deaths of patrons during the robbery of a place known as White’s Cafe. Prior to trial, respondents filed with the trial court a written pro se motion in the nature of a plea in abatement. App. 1. They sought thereby, together with other relief, the dismissal of the indictment on the grounds that the grand jury array, and the foreman, had been selected in a racially discriminatory fashion. Each respondent is a Negro.
The court appointed counsel to represent respondents and in due course conducted an evidentiary hearing on the plea in abatement. At that hearing, testimony on behalf of the respondents was taken from the 3 Tipton County jury commissioners; from 2 former Tipton County grand jury foremen; from the foreman of the grand jury serving at the time respondents were indicted; and from 11 of the 12 other members of that grand jury. The court clerk was a witness on behalf of the State. Id., at 3-35.
At the close of this evidence, the court denied the plea in abatement, first orally, and then by written order, without comment. Id., at 35 and 36.
Respondents were then tried jointly to a jury. A verdict of guilty of first-degree murder on each count was returned. Respondents received sentences of 60 years on each count, the sentences to run consecutively with credit allowed for time spent in jail awaiting trial.
On appeal, the Court of Criminal Appeals of Tennessee affirmed the convictions, finding, with respect to an assignment of error relating to the plea in abatement, that the “facts here do not demonstrate a systematic exclusion of Negroes upon racial grounds.” Id., at 38-39. The Supreme Court of Tennessee denied certiorari. Id., at 42.
Respondents each then filed a pro se petition for a writ of habeas corpus in the United States District Court for the Western District of Tennessee, id., at 43-52, 62-73, renewing, among other things, the allegation of discrimination in the selection of the Tipton County grand jury and its foreman. The District Court referred the petitions to a magistrate who, after reviewing the evidence introduced in the state court at the hearing on the plea in abatement and studying the method of selection, recommended that the court hold an evidentiary hearing on the grand jury and jury foreman selection issues. Specifically, the magistrate concluded that respondents had presented an unrebutted prima facie case with respect to the selection of the foreman. Id., at 84, 90, 97. The District Court disagreed with the magistrate as to the grand jury, and concluded that the state judge had ruled correctly on that issue. On the foreman question, the District Court went along with the magistrate, and ordered the State to make further response. Id., at 98. The State then submitted affidavits from the acting foreman of the grand jury that indicted respondents and from the state trial judge who appointed the foreman. Id., at 102-106, 108-113. On the basis of these affidavits, the petitions were ordered dismissed. Id., at 121-122.
The District Judge, however, granted the certificate of probable cause required by Fed. Rule App. Proc. 22 (b), App. 126-127, and respondents appealed to the United States Court of Appeals for the Sixth Circuit.
The Court of Appeals reversed. 570 F. 2d 129 (1978). That court deemed it unnecessary to resolve respondents’ contentions concerning discrimination in the selection of the grand jury venire, id., at 134, since it found sufficient grounds to reverse with respect to the selection of the foreman. It remanded the case with instructions for the entry of an order that respondents’ murder convictions be set aside and that respondents be reindicted within 60 days or be released. Id., at 137.
We granted certiorari to consider the foreman issue. 439 U. S. 816 (1978).
II
We initially address two arguments that, aside from the specific facts of this particular case, go to the question whether a federal court, as a matter of policy, should hear claims of racial discrimination in the selection of a grand jury when reviewing a state conviction. First, we consider whether claims of grand jury discrimination should be considered harmless error when raised, on direct review or in a habeas corpus proceeding, by a defendant who has been found guilty beyond a reasonable doubt by a properly constituted petit jury at a trial on the merits that was free from other constitutional error. Second, we consider the related question whether such claims should be cognizable any longer on federal habeas corpus in light of the decision in Stone v. Powell, 428 U. S. 465 (1976).
A
For nearly a century, this Court in an unbroken line of cases has held that “a criminal conviction of a Negro cannot stand under the Equal Protection Clause of the Fourteenth Amendment if it is based on an indictment of a grand jury from which Negroes were excluded by reason of their race.” Alexander v. Louisiana, 405 U. S. 625, 628 (1972); Bush v. Kentucky, 107 U. S. 110, 119 (1883); Neal v. Delaware, 103 U. S. 370, 394 (1881). See Castaneda v. Partida, 430 U. S. 482, 492-495, and n. 12 (1977). A criminal defendant “is entitled to require that the State not deliberately and systematically deny to members of his race the right to participate as jurors in the administration of justice.” Alexander v. Louisiana, 405 U. S., at 628-629. Accordingly, where sufficient proof of discrimination in violation of the Fourteenth Amendment has been made out and not rebutted, this Court uniformly has required that the conviction be set aside and the indictment returned by the unconstitutionally constituted grand jury be quashed. E. g., Hill v. Texas, 316 U. S. 400, 406 (1942).
Until today, only one Justice among those who have served on this Court in the 100 years since Strauder v. West Virginia, 100 U. S. 303 (1880), has departed from this line of decisions. In his dissent in Cassell v. Texas, 339 U. S. 282, 298 (1950), Mr. Justice Jackson voiced this lone objection by arguing that federal courts should not set aside criminal convictions solely on the ground that discrimination occurred in the selection of the grand jury, so long as no constitutional impropriety tainted the selection of the petit jury, and guilt was established beyond a reasonable doubt at a trial free from constitutional error. The Cassell dissent noted that discrimination in the selection of the grand jury had nothing to do with the fairness of the trial or the guilt or innocence of the defendant, and that reversal based on such discrimination conflicted “with another principle important to our law, viz., that no conviction should be set aside for errors not affecting substantial rights of the accused.” Id., at 299.
Mr. Justice Jackson could discern no reason to permit this conflict. In the first place, he noted, the convicted defendant suffered no possible prejudice. Unlike the petit jury, the grand jury sat only to determine probable cause to hold the defendant for trial. It did not consider the ultimate issue of guilt or innocence. Once a trial court heard all the evidence and determined it was sufficient to submit the case to the trier of fact, and once that trier determined that the defendant was guilty beyond a reasonable doubt, Mr. Justice Jackson believed that it “hardly lies in the mouth of a defendant ... to say that his indictment is attributable to prejudice.” Id., at 302. “Under such circumstances,” he concluded, “it is frivolous to contend that any grand jury, however constituted, could have done its duty in any way other than to indict.” Ibid.
Nor did Mr. Justice Jackson believe the Strauder line of cases to be justified by a need to enforce the rights of those discriminated against to sit on grand juries without regard to their race. He pointed out that Congress had made it a crime to discriminate in this manner, 18 U. S. C. § 243, and that civil remedies at law and equity were available to members of the class discriminated against. Accordingly, Mr. Justice Jackson would have held that “discrimination in selection of the grand jury . . . , however great the wrong toward qualified Negroes of the community, was harmless to this defendant,” 339 U. S., at 304, and would have left enforcement of Fourteenth Amendment interests to criminal prosecutions under § 243 and civil actions instituted by such “qualified Negroes.”
This position for the first time has attracted the support of additional Members of the Court, as expressed in the separate opinion of Mr. Justice Stewart in this case. Echoing the Cassell dissent, this separate opinion asserts that “the time has come to acknowledge that Mr. Justice Jackson’s [position] is unanswerable, and to hold that a defendant may not rely on a claim of grand jury discrimination to overturn an otherwise valid conviction.” Post, at 575. It argues that the conviction of the defendant should be a break in the chain of events that preceded it, and notes that where Fourth or Fifth Amendment rights are violated, the evidence illegally obtained is suppressed, but “the prosecution is not barred altogether.” Post, at 576-577, n. 4. The separate opinion believes that any other interests that are harmed by grand jury discrimination may be protected adequately by prosecutions, civil actions, or pretrial remedies available to defendants. In such circumstances, it finds the heavy social cost entailed in a reversal unjustified, especially in light of the fact the defendant himself has suffered no prejudice. - Accordingly, the separate opinion would not recognize, either on direct review or on an application for a writ of habeas corpus, a claim of grand jury discrimination as a valid ground for setting aside a criminal conviction.
This Court, of course, consistently has rejected this argument. It has done so implicitly in those cases in which it has reaffirmed the Strauder principle in the context of grand jury discrimination. E. g., Reece v. Georgia, 350 U. S. 85, 87 (1955); Alexander v. Louisiana, 405 U. S., at 628. And it has done so expressly, where the argument was pressed in the guise of the claim that the constitutional rights of the defendant are not violated by grand jury discrimination since an indictment only brings that defendant before the petit jury for trial. Pierre v. Louisiana, 306 U. S. 354, 356-358 (1939). See Cassell v. Texas, 339 U. S., at 290 (Frankfurter, J., concurring) ; id., at 296 (Clark, J., concurring). We decline now to depart from this longstanding consistent practice, and we adhere to the Court’s previous decisions.
Discrimination on account of race was the primary evil at which the Amendments adopted after the War Between the States, including the Fourteenth Amendment, were aimed. The Equal Protection Clause was central to the Fourteenth Amendment’s prohibition of discriminatory action by the State: it banned most types of purposeful discrimination by the State on the basis of race in an attempt to lift the burdens placed on Negroes by our society. It is clear from the earliest cases applying the Equal Protection Clause in the context of racial discrimination in the selection of a grand jury, that the Court from the first was concerned with the broad aspects of racial discrimination that the Equal Protection Clause was designed to eradicate, and with the fundamental social values the Fourteenth Amendment was adopted to protect, even though it addressed the issue in the context of reviewing an individual criminal conviction. Thus, in the first case establishing the principles that have guided the Court’s decisions these 100 years, the Court framed the issue in terms of the larger concerns with racial discrimination in general that it understood as being at the core of the Fourteenth Amendment:
“The very fact that colored people are singled out and expressly denied by a statute all right to participate in the administration of the law, as jurors, because of their color, though they are citizens, and may be in other respects fully qualified, is practically a brand upon them, affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others... . [T]he apprehension that through prejudice [such persons] might be denied that equal protection, that is, that there might be discrimination against them, was the inducement to bestow upon the national government the power to enforce the provision that no State shall deny to them the equal protection of the laws.” Strauder v. West Virginia, 100 U. S., at 308, 309.
Discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice. Selection of members of a grand jury because they are of one race and not another destroys the appearance of justice and thereby casts doubt on the integrity of the judicial process. The exclusion from grand jury service of Negroes, or any group otherwise qualified to serve, impairs the confidence of the public in the administration of justice. As this Court repeatedly has emphasized, such discrimination “not only violates our Constitution and the laws enacted under it but is at war with our basic concepts of a democratic society and a representative government.” Smith v. Texas, 311 U. S. 128, 130 (1940) (footnote omitted). The harm is not only to the accused, indicted as he is by a jury from which a segment of the community has been excluded. It is to society as a whole. “The injury is not limited to the defendant — there is injury to the jury system, to the law as an institution, to the community at large, and to the democratic ideal reflected in the processes of our courts.” Ballard v. United States, 329 U. S. 187, 195 (1946).
4 Because discrimination on the basis of race in the selection of members of a grand jury thus strikes at the fundamental values of our judicial system and our society as a whole, the Court has recognized that a criminal defendant's right to equal protection of the laws has been denied when he is indicted by a grand jury from which members of a racial group purposefully have been excluded. E. g., Neal v. Delaware, 103 U. S., at 394; Reece v. Georgia, 350 U. S., at 87. For this same reason, the Court also has reversed the conviction and ordered the indictment quashed in such cases without inquiry into whether the defendant was prejudiced in fact by the discrimination at the grand jury stage. Since the beginning, the Court has held that where discrimination in violation of the Fourteenth Amendment is proved, “‘[t]he court will correct the wrong, will quash the indictment[,] or the panel[;] or, if not, the error will be corrected in a superior court,' and ultimately in this court upon review,” and all without regard to prejudice. Neal v. Delaware, 103 U. S., at 394, quoting Virginia v. Rives, 100 U. S. 313, 322 (1880). See Bush v. Ken tucky, 107 U. S., at 119. The Court in Hill v. Texas, 316 U. S., at 406, stated:
“[N]o State is at liberty to impose upon one charged with crime a discrimination in its trial procedure which the Constitution, and an Act of Congress passed pursuant to the Constitution, alike forbid. Nor is this Court at liberty to grant or withhold the benefits of equal protection, which the Constitution commands for all, merely as we may deem the defendant innocent or guilty. Tumey v. Ohio, 273 TJ. S. 510, 535. It is the State’s function, not ours, to assess the evidence against a defendant. But it is our duty as well as the State’s to see i!o it that throughout the procedure for bringing him to justice he shall enjoy the protection which the Constitution guarantees. Where, as in this case, timely objection has laid bare a discrimination in the selection of grand jurors, the conviction cannot stand, because the Constitution prohibits the procedure by which it was obtained. Equal protection of the laws is something more than an abstract right. It is a command which the State must respect, the benefits of which every person may demand. Not the least merit of our constitutional system is that its safeguards extend to all — the least deserving as well as the most virtuous.”
We do not deny that there are costs associated with this approach. But the remedy here is in many ways less drastic than in situations where other constitutional rights have been violated. In the case of a Fourth or Fifth Amendment violation, the violation often results in the suppression of evidence that is highly probative on the issue of guilt. Here, however, reversal does not render a defendant “immune from prosecution,” nor is a subsequent reindictment and reprosecution “barred altogether,” as Mr. Justice Stewart’s opinion suggests. Post, at 576-577, n. 4. “A prisoner whose conviction is reversed by this Court need not go free if he is in fact guilty, for [the State] may indict and try him again by the procedure which conforms to constitutional requirements.” Hill v. Texas, 316 U. S., at 406. And in that subsequent prosecution, the State remains free to use all the proof it introduced to obtain the conviction in the first trial.
In any event, we believe such costs as do exist are outweighed by the strong policy the Court consistently has recognized of combating racial discrimination in the administration of justice. And regardless of the fact that alternative remedies remain to vindicate the rights of those members of the class denied the chance to serve on grand juries, the fact is that permitting challenges to unconstitutional state action by defendants has been, and is, the main avenue by which Fourteenth Amendment rights are vindicated in this context. Prosecutions under 18 U. S. C. § 243 have been rare, and they are not under the control of the class members and the courts. Civil actions, expensive to maintain and lengthy, have not often been used. And even assuming that some type of pretrial procedure would be open to a defendant, e. g., petitioning for a writ of habeas corpus in federal court, under such a procedure the vindication of federal constitutional rights would turn on a race to obtain a writ before the State could commence the trial.
We think the better view is to leave open the route that over time has been the main one by which Fourteenth Amendment rights in the context of grand jury discrimination have been vindicated. For we also cannot deny that, 114 years after the close of the War Between the States and nearly 100 years after Strauder, racial and other forms of discrimination still remain a fact of life, in the administration of justice as in our society as a whole. Perhaps today that discrimination takes a form more subtle than before. But it is not less real or pernicious. We therefore decline “to reverse a course of decisions of long standing directed against racial discrimination in the administration of justice,” Cassell v. Texas, 339 U. S., at 290 (Frankfurter, J., concurring), and we adhere to our position that discrimination in the selection of the grand jury remains a valid ground for setting aside a criminal conviction.
B
The State makes the additional argument that the decision in Stone v. Powell, 428 U. S. 465 (1976), should be extended so as to foreclose a grant of federal habeas corpus',relief to a state prisoner on the ground of discrimination in the selection of the grand jury. Mr. Justice Powell, dissenting in Castaneda v. Partida, 430 U. S., at 508 n. 1, joined by The Chief Justice and Mr. Justice Rehnquist, and at least inferentially by Mr. Justice Stewart, id., at 507, specifically observed that a “strong case may be made that claims of grand jury discrimination are not cognizable on federal habeas corpus after Stone v. Powell.” In this connection, Mr. Justice Powell noted that a claim by a convicted prisoner of grand jury discrimination goes only to the “moot determination by the grand jury that there was sufficient cause to proceed to trial [and not to any] flaw in the trial itself.” Id., at.508 n. 1. He concluded that, as in Stone, “the incremental benefit of extending habeas corpus as a means of correcting unconstitutional grand jury selection procedures might be viewed as 'outweighed by the acknowledged costs to other values vital to a rational system of criminal justice.’ ” 430 U. S., at 508 n. 1, quoting Stone, 428 U. S., at 494.
The State echoes these arguments. It contends that habeas corpus relief should be granted only where the error alleged in support of that relief affected the determination of guilt. In this case, as in Stone v. Powell, it argues, no error affected the trial on the merits. Moreover, only a relatively minor error, involving the nonvoting foreman of the grand jury and not the entire venire, is at issue. Accordingly, following its interpretation of Stone, the State contends that the benefits derived from extending habeas relief in this case are outweighed by the costs associated with reversing a state conviction entered upon a finding of guilt beyond a reasonable doubt at a trial free from constitutional error.
In Stone v. Powell, however, the Court carefully limited the reach of its opinion. It stressed that its decision to limit review was “not concerned with the scope of the habeas corpus statute as authority for litigating constitutional claims generally.” 428 U. S., at 495 n. 37 (emphasis in original). Rather, the Court made it clear that it was confining its ruling to cases involving the judicially created exclusionary rule, which had minimal utility when applied in a habeas corpus proceeding. “In sum,” the Court concluded, it was holding “only that a federal court need not apply the exclusionary rule on habeas review of a Fourth Amendment claim absent a showing that the state prisoner was denied an opportunity for a full and fair litigation of that claim at trial and on direct review.” Ibid.
Mindful of this limited reach of Stone, we conclude that a claim of discrimination in the selection of the grand jury differs so fundamentally from application on habeas of the Fourth Amendment exclusionary rule that the reasoning of Stone v. Powell should not be extended to foreclose habeas review of such claims in federal court.
In the first place, claims such as those pressed by respondents in this case concern allegations that the trial court itself violated the Fourteenth Amendment in the operation of the grand jury system. In most such cases, as in this one, this same trial court will be the court that initially must decide the merits of such a claim, finding facts and applying the law to those facts. This leads us to doubt that claims that the operation of the grand jury system violates the Fourteenth Amendment in general will receive the type of full and fair hearing deemed essential to the holding of Stone. See, e. g., 428 U. S., at 494, 495 n. 37. In Fourth Amendment cases, courts are called upon to evaluate the actions of the police in seizing evidence, and this Court believed that state courts were as capable of performing this task as federal habeas courts. Id., at 493-494, n. 35. But claims that the state judiciary itself has purposely violated the Equal Protection Clause are different. There is a need in such cases to ensure that an independent means of obtaining review by a federal court is available on a broader basis than review only by this Court will permit. A federal forum must be available if a full and fair hearing of such claims is to be had.
Beyond this, there are fundamental differences between the claim here at issue and the claim at issue in Stone v. Powell. Allegations of grand jury discrimination involve charges that state officials are violating the direct command of the Fourteenth Amendment, and federal statutes passed under that Amendment, that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” Since the first days after adoption of the Amendment, the Court has recognized that by its direct operation the Equal Protection Clause forbids the States to discriminate in the selection of members of a grand jury. This contrasts with the situation in Stone, where the Court considered application of “a judicially created remedy rather than a personal constitutional right.” 428 U. S., at 495 n. 37. Indeed, whereas the Fourteenth Amendment by its terms always has been directly applicable to the States, the Fourth Amendment and its attendant exclusionary rule only recently have been applied fully to the States.
"In this context, the federalism concerns that motivated the Court to adopt the rule of Stone v. Powell are not present. Federal courts have granted relief to state prisoners upon proof of the proscribed discrimination for nearly a century. See, e. g., Virginia v. Rives, 100 U. S., at 322. The confirmation that habeas corpus remains an appropriate vehicle by which federal courts are to exercise their Fourteenth Amendment responsibilities is not likely further to increase “ ‘friction between our federal and state systems of justice, [or impair] the maintenance of the constitutional balance upon which the doctrine of federalism is founded.’ ” Stone v. Powell, 428 U. S., at 491 n. 31, quoting Schneckloth v. Bustamante, 412 U. S. 218, 259 (1973) (Powell, J., concurring).
Further, Stone rested to a large extent on the Court’s perception that the exclusionary rule is of minimal value when applied in a federal habeas proceeding. The Court there found that the deterrent value of the exclusionary rule was not enhanced by the possibility that a “conviction obtained in state court and affirmed on direct review might be overturned in collateral proceedings often occurring years after the incarceration of the defendant.” 428 U. S., at 493. Nor did the Court believe that the “overall educative effect of the exclusionary rule would be appreciably diminished if search- and-seizure claims could not be raised in federal habeas corpus review of state convictions.” Ibid. And it could not find any basis to say that federal review would reveal flaws in the search or seizure that had gone undetected at trial or on appeal. Ibid. In these circumstances, the Court concluded that the benefits of applying the Fourth Amendment exclusionary rule on federal habeas did not outweigh the costs associated with it.
None of this reasoning has force here. Federal habeas review is necessary to ensure that constitutional defects in the state judiciary’s grand jury selection procedure are not overlooked by the very state judges who operate that system. There is strong reason to believe that federal review would indeed reveal flaws not appreciated by state judges perhaps too close to the day-to-day operation of their system to be able properly to evaluate claims that the system is defective. The educative and deterrent effect of federal review is likely to be great, since the state officials who operate the system, judges or employees of the judiciary, may be expected to take note of a federal court’s determination that their procedures are unconstitutional and must be changed.
We note also that Stone rested to an extent on the Court’s feeling that state courts were as capable of adjudicating Fourth Amendment claims as were federal courts. But where the allegation is that the state judiciary itself engages in discrimination in violation of the Fourteenth Amendment, there is a need to preserve independent federal habeas review of the allegation that federal rights have been transgressed. As noted above, in this case, the very judge whose conduct respondents challenged decided the validity of that .challenge.
It is also true that the concern with judicial integrity, deprecated by the Court in Stone in the context of habeas review of exclusionary rule issues, is of much greater concern in grand jury discrimination cases. The claim that the court has discriminated on the basis of race in a given case brings the integrity of the judicial system into direct question. The force of this justification for extending federal habeas review cannot be said to be minimal where allegations of improper judicial conduct are made.
As pointed out in our discussion of the Cassell dissent, it is tempting to exaggerate the costs associated with quashing an indictment returned by an improperly constituted grand jury. In fact, the costs associated with quashing an indictment are significantly less than those associated with suppressing evidence. Evidence suppressed under the Fourth Amendment may not be used by the State in any new trial, though it be highly probative on the issue of guilt. In contrast, after a federal court quashes an indictment, the State remains free to use at a second trial any and all evidence it employed at the first proceeding. A prisoner who is guilty in fact is less likely to go free, therefore, than in cases involving the exclusionary rule. Hill v. Texas, 316 U. S., at 406. Providing federal habeas corpus relief is, as a consequence, less of an intrusion on the State’s system of criminal justice than was the case in Stone.
Finally, we note that the constitutional interests that a federal court adjudicating a claim on habeas of grand jury discrimination seeks to vindicate are substantially more compelling than those at issue in Stone. As noted above, discrimination on account of race in the administration of justice strikes at the core concerns of the Fourteenth Amendment and at fundamental values of our society and our legal system. Where discrimination that is “at war with our basic concepts of a democratic society and a representative government,” Smith v. Texas, 311 U. S., at 130, infects the legal system, the strong interest in making available federal habeas corpus relief outweighs the costs associated with such relief.
We therefore decline to extend the rationale of Stone v. Powell to a claim of discrimination in the selection of the grand jury that indicts the habeas petitioner. And we hold that federal habeas corpus relief remains available to provide a federal forum for such claims.
Ill
Notwithstanding these holdings that claims of discrimination in the selection of members of the grand jury are cognizable on federal habeas corpus, and will support issuance of a writ setting aside a state conviction and ordering the indictment quashed, it remains true that to be entitled- to habeas relief the present respondents were required to prove discrimination under the standards set out in this Court’s cases. That is, “in order to show that an equal protection violation has occurred in the context of grand jury [foreman] selection, the defendant must show that the procedure employed resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs.” Castaneda v. Par-tida, 430 U. S., at 494. Specifically, respondents were required to prove their prima facie case with regard to the foreman as follows:
“The first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied. . . . Next, the degree of underrepresentation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as [foreman], over a significant period of time. . . . This method of proof, sometimes called the ‘rule of exclusion,’ has been held to be available as a method of proving discrimination in jury selection against a delineated class. . . . Finally ... a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing.” Ibid.
Only if respondents established a prima facie case of discrimination in the selection of the foreman in accord with this approach, did the burden shift to the State to rebut that prima facie case. Id., at 495.
There is no question, of course, that respondents, as Negroes, are members of a group recognizable as a distinct class capable of being singled out for different treatment under the laws. Id., at 494; Hernandez v. Texas, 347 U. S. 475, 478-479 (1954). And one may assume for purposes of this case that the Tennessee method of selecting a grand jury foreman is susceptible of abuse. Accordingly, we turn to a consideration of the evidence offered by respondents in their attempt to prove sufficient underrepresentation to make out a prima facie case.
Respondents’ case at the hearing on the plea in abatement consisted in its entirety of the following:
Respondents first called as witnesses the three Tipton County jury commissioners. These commissioners, all white, testified only as to the selection of the grand jury venire. In view of the Tennessee method of foreman selection, n. 2, supra, they did not testify, and could hardly be expected to have testified, as to the method of selection of foremen; neither did any of them refer to the race of any past foremen.
Respondents next called two former foremen and the current foreman of the Tipton County grand jury. The first, Frank McBride, testified that he was a lifelong resident of the county, but there was no evidence as to his age and thus as to the years he lived in the county. McBride stated that he had served as foreman, “ten or twelve years ago . . . for five or six years . . . and then about two or three times since then, just for one session of Court.” App. 17. In answer to respondents’ inquiry whether he had “ever known of any foreman that was a black man,” McBride said “No, sir.” Id., at 18. The second past foreman, Peyton J. Smith, stated that he had resided in Tipton County all his life but, again, no inquiry was made to as to how long that had been. Smith testified that he had served as foreman “for several years back in the early ’50’s, and . . . several times since then on occasion of the illness of the foreman at that time.” Id., at 20. Like McBride, Smith answered “No” when asked whether he had ever known of a Negro foreman. Ibid. Jimmy Naifeh, the current foreman, testified that he had served for approximately two years and that he did not know “if there was or if there wasn’t” ever a Negro foreman of the county grand jury. Id., at 25. No inquiry was made of Naifeh as to the length of time he had lived in the county.
Respondents then called 11 of the 12 grand jurors (other than the foreman) who were serving when respondents were indicted. Not one testified relative to the selection of the foreman or the race of past foremen. Their testimony, individually and collectively, was to the effect that one among their number was a Negro; that they had heard only one witness, a deputy sheriff, on respondents’ case; that no one voiced any prejudice or hostility toward respondents because of their race; and that there was no consideration of the fact that respondents were Negroes. Indeed, when some were asked whether they knew whether respondents were Negroes, they answered in the negative. Id., at 26-32.
This was all the evidence respondents presented in support of their case. In rebuttal, the State called only the clerk of the trial court. He was asked no question relating to grand jury foremen, and respondents made no inquiry of him on cross-examination on that or on any other topic. Id., at 34-35.
Two additional facts were stressed by the State at the later federal habeas proceeding. The first was the recruitment, at the 1972 term, of temporary (and former) foreman Smith in place of regular foreman Naifeh. Smith had testified at the hearing on the plea in abatement that Naifeh “could not be here and I was asked to come and appear before this Court and the judge asked me to serve.” Id., at 21. The State argued that Smith had been selected only because the judge believed Smith, in view of his experience, would be a capable temporary replacement for the regular foreman. This proper motive, the State said, negated any claim that racial discrimination played a role in the selection of Smith to be temporary foreman. The second fact was that the temporary foreman did not vote on the indictment returned against respondents, see id., at 105; this was because the other 12 had all voted to indict and the temporary foreman’s vote therefore was unnecessary. Thus, the State argued, any possible error in the selection of the foreman was harmless and of no consequence to respondents.
In support of its argument to the federal habeas court, the State submitted the affidavit of the judge who had selected the temporary foreman and the permanent foreman, and who had presided at the hearing on the plea in abatement as well as at respondents’ trial. The judge, who had served since 1966, id., at 5, a period of seven years, stated that Naifeh “was unable to serve because he was going to be out of the County at the November 1972 term.” Id., at 112. The judge went on to say that he had appointed Smith temporary foreman because Smith had had experience “and does a good job as such foreman.” The affidavit concluded:
“In my five counties, I do not have a black grand jury foreman, although I have a black member of my Jury Commission in one county. Most all of my Grand Juries and Petit Juries have sizeable numbers of blacks on them, both men and women. I don’t appoint Grand Jury Foreman very often because when their two year term expires, I usually reappoint them, thus they serve a long time and the problem doesn’t come up very often. I don’t think that I have really given any thought to appointing a black foreman but I have no feeling against doing so.” Id., at 113.
It was on the basis of this material in rebuttal that the District Court declined to issue the writs of habeas corpus. It found that no racial discrimination had been proved, since the foreman had been “selected for other than racial reasons, and . . . did not vote at the time the indictment was rendered.” Id., at 122.
The Court of Appeals, in reversing, conceded: “The facts elicited at the pretrial hearing were meager.” 570 F. 2d, at 132. It went on, however, to note: “There has never been a black foreman or forewoman of a grand jury in Tipton County according to the recollections of the trial judge, three jury commissioners, and three former foremen.” Id., at 134 — 135. This fact, the court concluded, coupled with the opportunity for discrimination found to be inherent- in the selection system, was sufficient to make out a prima facie case of discrimination in the selection of the foreman. And the Court of Appeals held that the State had failed to rebut that case. The exculpatory affidavit of the judge asserting a benign reason for the selection of the foreman, in the court's view, could not serve to rebut respondents’ case in the absence of proof that there were no qualified Negroes to serve as foreman. The fact the foreman did not vote, the court held, similarly did not support the District Court’s judgment, since the broad powers exercised by the foreman in conducting the grand jury’s proceedings meant that respondents could have been prejudiced even though the foreman had not cast a vote against them.
IY
In reaching our conclusion in disagreement with the Court of Appeals, we note first that that court seems to have overemphasized and exaggerated the evidence in support of its conclusion that there had “never been a black foreman or forewoman of a grand jury in Tipton County.” The Court of Appeals believed this conclusion had been proved by the recollections of the trial judge, the testimony of three jury commissioners, and the testimony of three former foremen. Ibid. But recollections of the trial judge — by which the Court of Appeals presumably meant the affidavit filed in Federal District Court by the trial judge — formed no part of the case put on by respondents. (Indeed, the Court of Appeals seems to have recognized this in another portion of its opinion, where it considered the state trial judge’s affidavit to have been offered in rebuttal of the respondents’ asserted prima facie case.) And the jury commissioners gave no testimony whatsoever relating to foremen of the grand jury, to the method of selecting foremen, or to the race of past foremen. Thus, respondents’ prima facie case as to discrimination in the selection of grand jury foremen rested entirely and only on the testimony of the three foremen. On the record of this case, it is that testimony alone upon which respondents’ allegations of discrimination must stand or fall.
The testimony of the three foremen, however, did not establish respondents’ case. First, it cannot be said that the testimony covered any significant period of time. Smith testified that he served in the early 1950’s and occasionally thereafter, but except for the fact that Smith was resident in the county, and for his negative answer to the question whether he had “known of any foreman that has been black,” there is nothing in the record to show that Smith knew who had served as foremen in the interim years when he was not serving. Similarly, McBride testified that he had served for 5 or 6 years some 10 or 12 years prior to the 1973 hearing, and on two or three occasions since then, and had not known of any Negro’s having acted as foreman of the grand jury, but he gave no indication that he was knowledgeable as to the years not covered by this service. Naifeh’s testimony was the weakest from respondents’ point of view. He had served as foreman for only two years prior to the hearing, and he did not know one way or the other whether a Negro had served as foreman of the county grand jury. Thus, even assuming that the period 1951-1973 is the significant one for purposes of this case, respondents’ evidence covered only portions of that time and left a number of years during that period about which no evidence whatsoever was offered.
Moreover, such evidence as was provided by the testifying foremen was of little force. McBride and Smith simply said “No” in response to the question whether either had ever known of any Negro foreman. Naifeh could give no information on the point. There thus was no positive testimony that no Negro had ever served during the critical period of time; the only testimony was that three foremen who served for parts of that period had no knowledge of any. And there is no indication in the record that Smith, McBride, and Naifeh necessarily would have been aware had a Negro ever served as foreman.*
Most important, there was no evidence as to the total number of foremen appointed by the judges in Tipton County during the critical period of time. Absent such evidence, it is difficult to say that the number of Negroes appointed foreman, even if zero, is statistically so significant as to make out a case of discrimination under the.“rule of exclusion.” The only testimony in the record concerning Negro population of the county was to the effect that it was approximately 30%. App. 11. Given the fact that any foreman was not limited in the number of 2-year terms he could serve, and given the inclination on the part of the judge to reappoint, it is likely that during the period in question only a few persons in actual number served as foremen of the grand jury. If the number was small enough, the disparity between the ratio of Negroes chosen to be foreman to the total number of foremen, and the ratio of Negroes to the total population of the county, might not be “sufficiently large [that] it is unlikely that [this disparity] is due solely to chance or accident.” Castaneda v. Partida, 430 U. S., at 494 n. 13. Inasmuch as there is no evidence in the record of the number of foremen appointed, it is not possible to perform the calculations and comparisons needed to permit a court to conclude that a statistical case of discrimination had been made out, id., at 496-497, n. 17, and proof under the "rule of exclusion” fails. Id., at 494 n. 13; see Hernandez v. Texas, 347 U. S., at 480.
Comparison of the proof introduced by respondents in this case with the proof offered by defendants in cases where this Court has found that a prima facie case was made out is most instructive. In Norris v. Alabama, 294 U. S. 587 (1935), for example, the defendant proved his case by witnesses who testified as to the number of Negroes called for jury duty. The evidence in support of the prima facie case was summarized by the Court:
“It appeared that no negro had served on any grand or petit jury in that county within the memory of witnesses who had lived there all their lives. Testimony to that effect was given by men whose ages ran from fifty to seventy-six years. Their testimony was uncontradicted. It was supported by the testimony of officials. The clerk of the jury commission and the clerk of the circuit court had never known of a negro serving on a grand jury in Jackson County. The court reporter, who had not missed a session in that county in twenty-four years, and two jury commissioners testified to the same effect. One of the latter, who was a member of the commission which made up the jury roll for the grand jury which found the indictment, testified that he had ‘never known of a single instance where any negro sat on any grand or petit jury in the entire history of that county.’ ” Id., at 591.
See Castaneda v. Partida, 430 U. S., at 495-496; Eubanks v. Louisiana, 356 U. S. 584, 586-587 (1958); Reece v. Georgia, 350 U. S., at 87-88; Hill v. Texas, 316 U. S., at 402-404.
The comparison of the evidence in Norris and in the other cited cases stands in stark contrast with the evidence in the present case. All that we have here to establish the prima facie case is testimony from two former foremen and from a briefly serving present foreman that they had no knowledge of a Negro’s having served. There is no evidence that these foremen were knowledgeable about years other than the ones in which they themselves served. And there is no evidence to fill in the gaps for the years they did not serve. In contrast to Norris, there is no direct assertion that for long periods of time no Negro had ever served, or that officials with access to county records could state that none had ever served. And there is no basis in the record upon which to determine that, even assuming no Negro had ever served as foreman, that fact statistically was so significant as to support an inference that the disparity between the Negroes serving and the Negro population in the county was the result of discrimination in violation of the Fourteenth Amendment.
It thus was error for the District Court to have concluded initially that respondents made out a prima facie case. And it was error, as well, for the Court of Appeals to have reached the same final conclusion. The State, however, under questioning at oral argument, tended to concede that the finding that a prima facie case had been established was correct (“we did not contest that”), Tr. of Oral Arg. 6-7, and did the same in its brief, although there it described the proof as “very questionable.” Brief for Petitioner 26.
Normally, a flat concession by the State might be given effect. But the inadequacy of respondents’ proof is plain. And the error of the Court of Appeals in exaggerating the extent of that proof is equally plain. We decline to overlook so fundamental a defect in respondents’ case.
Accordingly, we hold that, as a matter of law, respondents failed to make out a prima facie case of discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment with regard to the selection of the grand jury foreman. The judgment of the Court of Appeals is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Mr. Chief Justice Burger and Mr. Justice Eehnquist join only Parts I, III, and IV of the opinion, and Mr. Justice White and Mr. Justice Stevens join only Parts I and II.
The Constitution of Tennessee requires that any prosecution for the crimes with which respondents were charged be instituted by presentment or indictment by a grand jury. Tenn. Const., Art. I, § 14.
In Tennessee, the grand jury is composed of 12 grand jurors, Term. Code Ann. §40-1501 (1975), and a foreman or forewoman who “shall be the thirteenth member of each grand jury organized during his term of office, having equal power and authority in all matters coming before the grand jury with the other members thereof.” §40-1506 (Supp. 1978). The foreman or forewoman is appointed for a term of two years by the judge of the court having criminal jurisdiction in the county. Ibid. There is no limitation on reappointment. The foreman or forewoman must be at least 25 years of age, “shall be a good and lawful man or woman,” and possess all the other qualifications required of Tennessee jurors. § 40-1507 (Supp. 1978). See § 22-101 (Supp. 1978).
The members of the grand jury, other than the foreman or forewoman, are selected through the operation of the “key man” system, whereby three jury commissioners compile a list of qualified potential jurors from which the grand jurors are selected at random. See §§ 22-223 to 22-228 (Supp. 1978); §§40-1501 and 40-1502 (1975). Twelve members of the grand jury must concur in order to return an indictment. § 40-1706 (1975). The foreman or forewoman may be 1 of the 12. Bolen v. State, 554 S. W. 2d 918, 920 (Tenn. Crim. App. 1976). The foreman or forewoman acts as chairman or “presiding officer.” State v. Collins, 65 Tenn. 151, 153 (1873). He or she is charged with the duty of assisting the district attorney in investigating crime, may order the issuance of subpoenas for witnesses before the grand jury, may administer oaths to grand jury witnesses, must endorse every bill returned by the grand jury, and must present any indictment to the court in the presence of the grand jury. Tenn. Code Ann. §§ 40-1510, 40-1622, 40-1706, and 40-1709 (1975 and Supp. 1978). The absence of the foreman's endorsement makes an indictment “fatally defective.” Bird v. State, 103 Tenn. 343, 344, 52 S. W. 1076 (1899).
In Castaneda v. Partida, we noted that among the eases in which the Court had applied this principle in circumstances involving grand jury-discrimination were Bush v. Kentucky; Carter v. Texas, 177 U. S. 442 (1900); Rogers v. Alabama, 192 U. S. 226 (1904); Pierre v. Louisiana, 306 U. S. 354 (1939); Smith v. Texas, 311 U. S. 128 (1940); Hill v. Texas, 316 U. S. 400 (1942); Cassell v. Texas, 339 U. S. 282 (1950); Reece v. Georgia, 350 U. S. 85 (1955); Eubanks v. Louisiana, 356 U. S. 584 (1958) ; Arnold v. North Carolina, 376 U. S. 773 (1964); and Alexander v. Louisiana.
In view of the disposition of this case on the merits, we may assume without deciding that discrimination with regard to the selection of only the foreman requires that a subsequent conviction be set aside, just as if the discrimination proved had tainted the selection of the entire grand jury venire. See Carter v. Jury Comm’n, 396 U. S. 320, 338 (1970).
Title 18 U. S. C. § 243 provides:
“No citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State on account of race, color, or previous condition of servitude; and whoever, being an officer or other person charged with any duty in the selection or summoning of jurors, excludes or fails to summon any citizen for such cause, shall be fined not more than $5,000.”
The State makes a variation of this argument by contending that any constitutional error that occurred in the selection of the foreman of the grand jury is “now moot procedural error which had no effect on the integrity of the trial,” Brief for Petitioner 29, and so was harmless beyond a reasonable doubt in light of the subsequent conviction by a properly constituted petit jury.
The fact that there is no constitutional requirement that States institute prosecutions by means of an indictment returned by a grand jury, see Hurtado v. California, 110 U. S. 516 (1884), does not relieve those States that do employ grand juries from complying with the commands of the Fourteenth Amendment in the operation of those juries.
There is no contention in this case that respondents sought to press their challenge to the grand jury without complying with state procedural rules as to when such claims may be raised. See Francis v. Henderson, 425 U. S. 536 (1976). Nor do they seek to press this challenge after pleading guilty. See Tollett v. Henderson, 411 U. S. 258 (1973).
The Stone v. Powell issue was raised by petition for rehearing in the Court of Appeals. App. 142. In denying that petition, the court stated “that the issues raised therein were fully considered upon the original submission and decision of this case.” Id., at 151. In its opinion denying respondents’ motion for amendment of judgment, the District Court found that its original ruling denying the writ was bolstered by the decision in St one. App. 125.
The record indicates that one grand juror was in Florida at the time of the hearing. App. 27.
The 1970 census figure was 32.44%. Bureau of the Census, 1970 Census of Population, Characteristics of the Population, Part 44 Tennessee, Table 35, p. 124.
Respondents urge us to fill the gap in their proof by reference to the history of race relations in Tennessee and the fact that the State in past years practiced de jure discrimination against Negroes in many ways. We decline to do this. Reference to history texts in a case of this kind does not supply what respondents failed to prove. If it were otherwise, one alleging discrimination always would be able to prove his case simply by referring to the history of discrimination within the State. The Court’s cases, however, make it clear that inore is required to establish a violation of the Equal Protection Clause of the Fourteenth Amendment.
The State in this ease apparently places no reliance on 28 U. S. C. § 2254 (d), which provides in relevant part:
“[A] determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction . . . 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 . . .—
“(1) that the merits of the factual dispute were not resolved in the State court hearing
See LaVallee v. Delle Rose, 410 U. S. 690 (1973). | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them.
Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. | Who is the respondent of the case? | [
"attorney general of the United States, or his office",
"specified state board or department of education",
"city, town, township, village, or borough government or governmental unit",
"state commission, board, committee, or authority",
"county government or county governmental unit, except school district",
"court or judicial district",
"state department or agency",
"governmental employee or job applicant",
"female governmental employee or job applicant",
"minority governmental employee or job applicant",
"minority female governmental employee or job applicant",
"not listed among agencies in the first Administrative Action variable",
"retired or former governmental employee",
"U.S. House of Representatives",
"interstate compact",
"judge",
"state legislature, house, or committee",
"local governmental unit other than a county, city, town, township, village, or borough",
"governmental official, or an official of an agency established under an interstate compact",
"state or U.S. supreme court",
"local school district or board of education",
"U.S. Senate",
"U.S. senator",
"foreign nation or instrumentality",
"state or local governmental taxpayer, or executor of the estate of",
"state college or university",
"United States",
"State",
"person accused, indicted, or suspected of crime",
"advertising business or agency",
"agent, fiduciary, trustee, or executor",
"airplane manufacturer, or manufacturer of parts of airplanes",
"airline",
"distributor, importer, or exporter of alcoholic beverages",
"alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked",
"American Medical Association",
"National Railroad Passenger Corp.",
"amusement establishment, or recreational facility",
"arrested person, or pretrial detainee",
"attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association",
"author, copyright holder",
"bank, savings and loan, credit union, investment company",
"bankrupt person or business, or business in reorganization",
"establishment serving liquor by the glass, or package liquor store",
"water transportation, stevedore",
"bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines",
"brewery, distillery",
"broker, stock exchange, investment or securities firm",
"construction industry",
"bus or motorized passenger transportation vehicle",
"business, corporation",
"buyer, purchaser",
"cable TV",
"car dealer",
"person convicted of crime",
"tangible property, other than real estate, including contraband",
"chemical company",
"child, children, including adopted or illegitimate",
"religious organization, institution, or person",
"private club or facility",
"coal company or coal mine operator",
"computer business or manufacturer, hardware or software",
"consumer, consumer organization",
"creditor, including institution appearing as such; e.g., a finance company",
"person allegedly criminally insane or mentally incompetent to stand trial",
"defendant",
"debtor",
"real estate developer",
"disabled person or disability benefit claimant",
"distributor",
"person subject to selective service, including conscientious objector",
"drug manufacturer",
"druggist, pharmacist, pharmacy",
"employee, or job applicant, including beneficiaries of",
"employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan",
"electric equipment manufacturer",
"electric or hydroelectric power utility, power cooperative, or gas and electric company",
"eleemosynary institution or person",
"environmental organization",
"employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.",
"farmer, farm worker, or farm organization",
"father",
"female employee or job applicant",
"female",
"movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of",
"fisherman or fishing company",
"food, meat packing, or processing company, stockyard",
"foreign (non-American) nongovernmental entity",
"franchiser",
"franchisee",
"lesbian, gay, bisexual, transexual person or organization",
"person who guarantees another's obligations",
"handicapped individual, or organization of devoted to",
"health organization or person, nursing home, medical clinic or laboratory, chiropractor",
"heir, or beneficiary, or person so claiming to be",
"hospital, medical center",
"husband, or ex-husband",
"involuntarily committed mental patient",
"Indian, including Indian tribe or nation",
"insurance company, or surety",
"inventor, patent assigner, trademark owner or holder",
"investor",
"injured person or legal entity, nonphysically and non-employment related",
"juvenile",
"government contractor",
"holder of a license or permit, or applicant therefor",
"magazine",
"male",
"medical or Medicaid claimant",
"medical supply or manufacturing co.",
"racial or ethnic minority employee or job applicant",
"minority female employee or job applicant",
"manufacturer",
"management, executive officer, or director, of business entity",
"military personnel, or dependent of, including reservist",
"mining company or miner, excluding coal, oil, or pipeline company",
"mother",
"auto manufacturer",
"newspaper, newsletter, journal of opinion, news service",
"radio and television network, except cable tv",
"nonprofit organization or business",
"nonresident",
"nuclear power plant or facility",
"owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels",
"shareholders to whom a tender offer is made",
"tender offer",
"oil company, or natural gas producer",
"elderly person, or organization dedicated to the elderly",
"out of state noncriminal defendant",
"political action committee",
"parent or parents",
"parking lot or service",
"patient of a health professional",
"telephone, telecommunications, or telegraph company",
"physician, MD or DO, dentist, or medical society",
"public interest organization",
"physically injured person, including wrongful death, who is not an employee",
"pipe line company",
"package, luggage, container",
"political candidate, activist, committee, party, party member, organization, or elected official",
"indigent, needy, welfare recipient",
"indigent defendant",
"private person",
"prisoner, inmate of penal institution",
"professional organization, business, or person",
"probationer, or parolee",
"protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer",
"public utility",
"publisher, publishing company",
"radio station",
"racial or ethnic minority",
"person or organization protesting racial or ethnic segregation or discrimination",
"racial or ethnic minority student or applicant for admission to an educational institution",
"realtor",
"journalist, columnist, member of the news media",
"resident",
"restaurant, food vendor",
"retarded person, or mental incompetent",
"retired or former employee",
"railroad",
"private school, college, or university",
"seller or vendor",
"shipper, including importer and exporter",
"shopping center, mall",
"spouse, or former spouse",
"stockholder, shareholder, or bondholder",
"retail business or outlet",
"student, or applicant for admission to an educational institution",
"taxpayer or executor of taxpayer's estate, federal only",
"tenant or lessee",
"theater, studio",
"forest products, lumber, or logging company",
"person traveling or wishing to travel abroad, or overseas travel agent",
"trucking company, or motor carrier",
"television station",
"union member",
"unemployed person or unemployment compensation applicant or claimant",
"union, labor organization, or official of",
"veteran",
"voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)",
"wholesale trade",
"wife, or ex-wife",
"witness, or person under subpoena",
"network",
"slave",
"slave-owner",
"bank of the united states",
"timber company",
"u.s. job applicants or employees",
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration",
"War Production Board",
"Wage Stabilization Board",
"General Land Office of Commissioners",
"Transportation Security Administration",
"Surface Transportation Board",
"U.S. Shipping Board Emergency Fleet Corp.",
"Reconstruction Finance Corp.",
"Department or Secretary of Homeland Security",
"Unidentifiable",
"International Entity"
] | [
150
] | sc_respondent |
Mark J. McBURNEY, et al., Petitioners
v.
Nathaniel L. YOUNG, Deputy Commissioner and Director, Virginia Division of Child Support Enforcement, et al.
No. 12-17.
Supreme Court of the United States
Argued Feb. 20, 2013.
Decided April 29, 2013.
Deepak Gupta, for Petitioners.
Duncan Getchell, Jr., Solicitor General, for Respondents.
Brian Wolfman, Anne King, Institute for Public Representation, Washington, DC, Deepak Gupta, Counsel of Record, Gregory A. Beck, Jonathan E. Taylor, Gupta Beck PLLC, Washington, DC, for Petitioners.
Kenneth T. Cuccinelli, II, Attorney General of Virginia, Patricia L. West, Chief Deputy Attorney General, E. Duncan Getchell, Jr. Solicitor General of Virginia, Counsel of Record, Michael H. Brady, Assistant Attorney General, Office of the Attorney General, Richmond, VA, Joseph P. Rapisarda, Jr., County Attorney, Benjamin A. Thorp, Assistant County Attorney, Henrico County Attorney's Office, Henrico, VA, for Respondents.
Justice ALITO delivered the opinion of the Court.
In this case, we must decide whether the Virginia Freedom of Information Act, Va.Code Ann. § 2.2-3700 et seq. , violates either the Privileges and Immunities Clause of Article IV of the Constitution or the dormant Commerce Clause. The Virginia Freedom of Information Act (FOIA), provides that "all public records shall be open to inspection and copying by any citizens of the Commonwealth," but it grants no such right to non-Virginians. § 2.2-3704(A) (Lexis 2011).
Petitioners, who are citizens of other States, unsuccessfully sought information under the Act and then brought this constitutional challenge. We hold, however, that petitioners' constitutional rights were not violated. By means other than the state FOIA, Virginia made available to petitioners most of the information that they sought, and the Commonwealth's refusal to furnish the additional information did not abridge any constitutionally protected privilege or immunity. Nor did Virginia violate the dormant Commerce Clause. The state Freedom of Information Act does not regulate commerce in any meaningful sense, but instead provides a service that is related to state citizenship. For these reasons, we affirm the decision of the Court of Appeals rejecting petitioners' constitutional claims.
I
Petitioners Mark J. McBurney and Roger W. Hurlbert are citizens of Rhode Island and California respectively. McBurney and Hurlbert each requested documents under the Virginia FOIA, but their requests were denied because of their citizenship.
McBurney is a former resident of Virginia whose ex-wife is a Virginia citizen. After his ex-wife defaulted on her child support obligations, McBurney asked the Commonwealth's Division of Child Support Enforcement to file a petition for child support on his behalf. The agency complied, but only after a 9-month delay. McBurney attributes that delay to agency error and says that it cost him nine months of child support. To ascertain the reason for the agency's delay, McBurney filed a Virginia FOIA request seeking "all emails, notes, files, memos, reports, letters, policies, [and] opinions" pertaining to his family, along with all documents "regarding [his] application for child support" and all documents pertaining to the handling of child support claims like his. App. in No. 11-1099(CA4), p. 39A. The agency denied McBurney's request on the ground that he was not a Virginia citizen. McBurney later requested the same documents under Virginia's Government Data Collection and Dissemination Practices Act, Va.Code Ann. § 2.2-3800 et seq. , and through that request he received most of the information he had sought that pertained specifically to his own case. He did not, however, receive any general policy information about how the agency handled claims like his.
Hurlbert is the sole proprietor of Sage Information Services, a business that requests real estate tax records on clients' behalf from state and local governments across the United States. In 2008, Hurlbert was hired by a land/title company to obtain real estate tax records for properties in Henrico County, Virginia. He filed a Virginia FOIA request for the documents with the Henrico County Real Estate Assessor's Office, but his request was denied because he was not a Virginia citizen.
Petitioners filed suit under 42 U.S.C. § 1983, seeking declaratory and injunctive relief for violations of the Privileges and Immunities Clause and, in Hurlbert's case, the dormant Commerce Clause. The District Court granted Virginia's motion for summary judgment, McBurney v. Cuccinelli, 780 F.Supp.2d 439 (E.D.Va.2011), and the Court of Appeals affirmed, 667 F.3d 454 (C.A.4 2012).
Like Virginia, several other States have enacted freedom of information laws that are available only to their citizens. See, e.g., Ala.Code § 36-12-40 (2012 Cum.Supp.); Ark.Code Ann. § 25-19-105 (2011 Supp.); Del.Code Ann., Tit. 29, § 10003 (2012 Supp.); Mo.Rev.Stat. § 109.180 (2012) ; N.H.Rev.Stat. Ann. § 91-A:4 (West 2012) ; N.J. Stat. Ann. § 47:1A-1 (West 2003) ; Tenn.Code Ann. § 10-7-503 (2012). In Lee v. Minner, 458 F.3d 194 (2006), the Third Circuit held that this feature of Delaware's FOIA violated the Privileges and Immunities Clause. We granted certiorari to resolve this conflict. 568 U.S. ----, 133 S.Ct. 421, 184 L.Ed.2d 252 (2012).
II
Under the Privileges and Immunities Clause, "[t]he Citizens of each State [are] entitled to all Privileges and Immunities of Citizens in the several States." U.S. Const., Art. IV, § 2, cl. 1. We have said that "[t]he object of the Privileges and Immunities Clause is to 'strongly ... constitute the citizens of the United States [as] one people,' by 'plac[ing] the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned.' " Lunding v. New York Tax Appeals Tribunal, 522 U.S. 287, 296, 118 S.Ct. 766, 139 L.Ed.2d 717 (1998) (quoting Paul v. Virginia, 8 Wall. 168, 180, 19 L.Ed. 357 (1869) ). This does not mean, we have cautioned, that "state citizenship or residency may never be used by a State to distinguish among persons." Baldwin v. Fish and Game Comm'n of Mont., 436 U.S. 371, 383, 98 S.Ct. 1852, 56 L.Ed.2d 354 (1978). "Nor must a State always apply all its laws or all its services equally to anyone, resident or nonresident, who may request it so to do." Ibid. Rather, we have long held that the Privileges and Immunities Clause protects only those privileges and immunities that are "fundamental."
See, e.g., id., at 382, 388, 98 S.Ct. 1852.
Petitioners allege that Virginia's citizens-only FOIA provision violates four different "fundamental" privileges or immunities: the opportunity to pursue a common calling, the ability to own and transfer property, access to the Virginia courts, and access to public information. The first three items on that list, however, are not abridged by the Virginia FOIA, and the fourth-framed broadly-is not protected by the Privileges and Immunities Clause.
A
Hurlbert argues that Virginia's citizens-only FOIA provision abridges his ability to earn a living in his chosen profession, namely, obtaining property records from state and local governments on behalf of clients. He is correct that the Privileges and Immunities Clause protects the right of citizens to "ply their trade, practice their occupation, or pursue a common calling." Hicklin v. Orbeck, 437 U.S. 518, 524, 98 S.Ct. 2482, 57 L.Ed.2d 397 (1978) ; Supreme Court of N.H. v. Piper, 470 U.S. 274, 280, 105 S.Ct. 1272, 84 L.Ed.2d 205 (1985) (" '[O]ne of the privileges which the Clause guarantees to citizens of State A is that of doing business in State B on terms of substantial equality with the citizens of that State' "). But the Virginia FOIA does not abridge Hurlbert's ability to engage in a common calling in the sense prohibited by the Privileges and Immunities Clause. Rather, the Court has struck laws down as violating the privilege of pursuing a common calling only when those laws were enacted for the protectionist purpose of burdening out-of-state citizens. See, e.g., Hicklin, supra, (striking down as a violation of noncitizens' privileges and immunities an "Alaska Hire" statute containing a resident hiring preference for all employment related to the development of the State's oil and gas resources); Toomer v. Witsell, 334 U.S. 385, 395, 397, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948) (striking down a South Carolina statute imposing a $2,500 license fee on out-of-state shrimping boats and only a $25 fee on in-state shrimping boats where petitioners alleged that the "purpose and effect of this statute ... [was] not to conserve shrimp, but to exclude non-residents and thereby create a commercial monopoly for South Carolina residents," and the "record cas[t] some doubt on" the State's counterassertion that the statute's "obvious purpose was to conserve its shrimp supply"); United Building & Constr. Trades Council of Camden Cty. v. Mayor and Council of Camden, 465 U.S. 208, 104 S.Ct. 1020, 79 L.Ed.2d 249 (1984) (New Jersey municipal ordinance requiring that at least 40% of employees of contractors and subcontractors working on city construction projects be city residents facially burdened out-of-state citizens' ability to pursue a common calling). In each case, the clear aim of the statute at issue was to advantage in-state workers and commercial interests at the expense of their out-of-state counterparts.
Virginia's FOIA differs sharply from those statutes. By its own terms, Virginia's FOIA was enacted to "ensur[e] the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted." Va.Code Ann. § 2.2-3700(B) (Lexis 2011). Hurlbert does not allege-and has offered no proof-that the challenged provision of the Virginia FOIA was enacted in order to provide a competitive economic advantage for Virginia citizens. Cf. Hillside Dairy Inc. v. Lyons, 539 U.S. 59, 67, 123 S.Ct. 2142, 156 L.Ed.2d 54 (2003) (piercing a professedly nondiscriminatory statute to find economic protectionism). Rather, it seems clear that the distinction that the statute makes between citizens and noncitizens has a distinctly nonprotectionist aim. The state FOIA essentially represents a mechanism by which those who ultimately hold sovereign power (i.e., the citizens of the Commonwealth) may obtain an accounting from the public officials to whom they delegate the exercise of that power. See Va. Const., Art. I, § 2 ; Va.Code Ann. § 2.2-3700(B). In addition, the provision limiting the use of the state FOIA to Virginia citizens recognizes that Virginia taxpayers foot the bill for the fixed costs underlying recordkeeping in the Commonwealth. Tr. of Oral Arg. 53-54. The challenged provision of the state FOIA does not violate the Privileges and Immunities Clause simply because it has the incidental effect of preventing citizens of other States from making a profit by trading on information contained in state records. While the Clause forbids a State from intentionally giving its own citizens a competitive advantage in business or employment, the Clause does not require that a State tailor its every action to avoid any incidental effect on out-of-state tradesmen.
B
Hurlbert next alleges that the challenged provision of the Virginia FOIA abridges the right to own and transfer property in the Commonwealth. Like the right to pursue a common calling, the right to "take, hold and dispose of property, either real or personal," has long been seen as one of the privileges of citizenship. See Corfield v. Coryell, 6 F.Cas. 546, 552 (No. 3,230) (CCED Pa.1825) ; see also Paul, supra, at 180 (listing "the acquisition and enjoyment of property" among the privileges of citizenship). Thus, if a State prevented out-of-state citizens from accessing records-like title documents and mortgage records-that are necessary to the transfer of property, the State might well run afoul of the Privileges and Immunities Clause. Cf. State v. Grimes, 29 Nev. 50, 85, 84 P. 1061, 1073 (1906) ("Caveat emptor being the rule with us in the absence of a special agreement, it is just and essential to the protection of persons intending to purchase or take incumbrances that they be allowed the right of inspection"); Jackson ex dem. Center v. Campbell, 19 Johns. 281, 283 (N.Y.1822) (the "plain intention" of the State's property records system was "to give notice, through the medium of the county records, to persons about to purchase").
Virginia, however, does not prevent citizens of other States from obtaining such documents. Under Virginia law, "any records and papers of every circuit court that are maintained by the clerk of the circuit court shall be open to inspection by any person and the clerk shall, when requested, furnish copies thereof."
Va.Code Ann. § 17.1-208 (Lexis 2010). Such records and papers include records of property transfers, like title documents, § 55 - 106 (LEXIS 2012); notices of federal tax liens and other federal liens against property, § 55-142.1 ; notices of state tax liens against property, § 58.1-314 (Lexis 2009) (state taxes generally), § 58.1-908 (estate tax liens), § 58.1-1805 (state taxes generally), § 58.1-2021(A) (liens filed by agencies other than the Tax Commission); and notice of mortgages and other encumbrances, § 8.01-241 (Lexis Supp. 2012).
A similar flaw undermines Hurlbert's claim that Virginia violates the Privileges and Immunities Clause by preventing citizens of other States from accessing real estate tax assessment records. It is true that those records, while available to Virginia citizens under the state FOIA, are not required by statute to be made available to noncitizens. See Associated Tax Service, Inc. v. Fitzpatrick, 236 Va. 181, 183, 187, 372 S.E.2d 625, 627, 629 (1988). But in fact Virginia and its subdivisions generally make even these less essential records readily available to all. These records are considered nonconfidential under Virginia law and, accordingly, they may be posted online. § 58.1-3122.2 (Lexis 2009). Henrico County, from which Hurlbert sought real estate tax assessments, follows this practice, as does almost every other county in the Commonwealth. Requiring noncitizens to conduct a few minutes of Internet research in lieu of using a relatively cumbersome state FOIA process cannot be said to impose any significant burden on noncitizens' ability to own or transfer property in Virginia.
C
McBurney alleges that Virginia's citizens-only FOIA provision impermissibly burdens his "access to public proceedings." Brief for Petitioners 42. McBurney is correct that the Privileges and Immunities Clause "secures citizens of one State the right to resort to the courts of another, equally with the citizens of the latter State." Missouri Pacific R. Co. v. Clarendon Boat Oar Co., 257 U.S. 533, 535, 42 S.Ct. 210, 66 L.Ed. 354 (1922). But petitioners do not suggest that the Virginia FOIA slams the courthouse door on noncitizens; rather, the most they claim is that the law creates "[a]n information asymmetry between adversaries based solely on state citizenship." Brief for Petitioners 42.
The Privileges and Immunities Clause does not require States to erase any distinction between citizens and non-citizens that might conceivably give state citizens some detectable litigation advantage. Rather, the Court has made clear that "the constitutional requirement is satisfied if the non-resident is given access to the courts of the State upon terms which in themselves are reasonable and adequate for the enforcing of any rights he may have, even though they may not be technically and precisely the same in extent as those accorded to resident citizens." Canadian Northern R. Co. v. Eggen, 252 U.S. 553, 562, 40 S.Ct. 402, 64 L.Ed. 713 (1920).
The challenged provision of the Virginia FOIA clearly does not deprive noncitizens of "reasonable and adequate" access to the Commonwealth's courts. Virginia's rules of civil procedure provide for both discovery, Va. Sup.Ct. Rule 4:1 (2012), and subpoenas duces tecum, Rule 4:9. There is no reason to think that those mechanisms are insufficient to provide noncitizens with any relevant, nonprivileged documents needed in litigation.
Moreover, Virginia law gives citizens and noncitizens alike access to judicial records. Va.Code Ann. § 17.1-208 ; see also Shenandoah Publishing House, Inc. v. Fanning, 235 Va. 253, 258, 368 S.E.2d 253, 256 (1988). And if Virginia has in its possession information about any person, whether a citizen of the Commonwealth or of another State, that person has the right under the Government Data Collection and Dissemination Practices Act to inspect that information. § 2.2-3806(A)(3) (Lexis 2011).
McBurney's own case is illustrative. When his FOIA request was denied, McBurney was told that he should request the materials he sought pursuant to the Government Data Collection and Dissemination Practices Act. Upon placing a request under that Act, he ultimately received much of what he sought. Accordingly, Virginia's citizens-only FOIA provision does not impermissibly burden noncitizens' ability to access the Commonwealth's courts.
D
Finally, we reject petitioners' sweeping claim that the challenged provision of the Virginia FOIA violates the Privileges and Immunities Clause because it denies them the right to access public information on equal terms with citizens of the Commonwealth. We cannot agree that the Privileges and Immunities Clause covers this broad right.
This Court has repeatedly made clear that there is no constitutional right to obtain all the information provided by FOIA laws. See Houchins v. KQED, Inc., 438 U.S. 1, 14, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978) (plurality opinion) (" 'The Constitution itself is [not] a Freedom of Information Act' "); see also Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U.S. 32, 40, 120 S.Ct. 483, 145 L.Ed.2d 451 (1999) (the Government could decide "not to give out [this] information at all"); Sorrell v. IMS Health Inc., 564 U.S. ----, ----, 131 S.Ct. 2653, 2677, 180 L.Ed.2d 544 (2011) (BREYER, J., dissenting) ("[T]his Court has never found that the First Amendment prohibits the government from restricting the use of information gathered pursuant to a regulatory mandate").
It certainly cannot be said that such a broad right has "at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign." Corfield, 6 F.Cas., at 551. No such right was recognized at common law. See H. Cross, The People's Right to Know 25 (1953) ("[T]he courts declared the primary rule that there was no general common law right in all persons (as citizens, taxpayers, electors or merely as persons) to inspect public records or documents"). Most founding-era English cases provided that only those persons who had a personal interest in non-judicial records were permitted to access them. See, e.g., King v. Shelley, 3 T.R. 141, 142, 100 Eng. Rep. 498, 499 (K.B.1789) (Buller, J.) ("[O]ne man has no right to look into another's title deeds and records, when he ... has no interest in the deeds or rolls himself"); King v. Justices of Staffordshire, 6 Ad. & E. 84, 101, 112 Eng. Rep. 33, 39 (K.B.1837) ("The utmost ... that can be said on the ground of interest, is that the applicants have a rational curiosity to gratify by this inspection, or that they may thereby ascertain facts useful to them in advancing some ulterior measures in contemplation as to regulating county expenditure; but this is merely an interest in obtaining information on the general subject, and would furnish an equally good reason for permitting inspection of the records of any other county: there is not that direct and tangible interest, which is necessary to bring them within the rule on which the Court acts in granting inspection of public documents").
Nineteenth-century American cases, while less uniform, certainly do not support the proposition that a broad-based right to access public information was widely recognized in the early Republic. See, e.g., Cormack v. Wolcott, 37 Kan. 391, 394, 15 P. 245, 246 (1887) (denying mandamus to plaintiff seeking to compile abstracts of title records; "At common law, parties had no vested rights in the examination of a record of title, or other public records, save by some interest in the land or subject of record"); Brewer v. Watson, 71 Ala. 299, 305 (1882) ("The individual demanding access to, and inspection of public writings must not only have an interest in the matters to which they relate, a direct, tangible interest, but the inspection must be sought for some specific and legitimate purpose. The gratification of mere curiosity, or motives merely speculative will not entitle him to demand an examination of such writings"); Nadel, What are "Records" of Agency Which Must Be Made Available Under State Freedom of Information Act, 27 A.L.R.4th 680, 687, § 2 [b] (1984) ("[A]t common law, a person requesting inspection of a public record was required to show an interest therein which would enable him to maintain or defend an action for which the document or record sought could furnish evidence or necessary information").
Nor is such a sweeping right "basic to the maintenance or well-being of the Union." Baldwin, 436 U.S., at 388, 98 S.Ct. 1852. FOIA laws are of relatively recent vintage. The federal FOIA was enacted in 1966, § 1, 80 Stat. 383, and Virginia's counterpart was adopted two years later, 1968 Va. Acts ch. 479, p. 690. There is no contention that the Nation's unity foundered in their absence, or that it is suffering now because of the citizens-only FOIA provisions that several States have enacted.
III
In addition to his Privileges and Immunities Clause claim, Hurlbert contends that Virginia's citizens-only FOIA provision violates the dormant Commerce Clause. The Commerce Clause empowers Congress "[t]o regulate Commerce ... among the several States." Art. I, § 8, cl. 3. The Commerce Clause does not expressly impose any constraints on "the several States," and several Members of the Court have expressed the view that it does not do so. See General Motors Corp. v. Tracy, 519 U.S. 278, 312, 117 S.Ct. 811, 136 L.Ed.2d 761 (1997) (SCALIA, J., concurring) ("[T]he so-called 'negative' Commerce Clause is an unjustified judicial intervention, not to be expanded beyond its existing domain"); United Haulers Assn . Inc. v. Oneida-Herkimer Solid Waste Management Authority, 550 U.S. 330, 349, 127 S.Ct. 1786, 167 L.Ed.2d 655 (2007) (THOMAS, J., concurring in judgment) ("The negative Commerce Clause has no basis in the Constitution and has proved unworkable in practice"). Nonetheless, the Court has long inferred that the Commerce Clause itself imposes certain implicit limitations on state power. See, e.g., Cooley v. Board of Wardens of Port of Philadelphia ex rel. Soc. for Relief of Distressed Pilots, 12 How. 299, 318-319, 13 L.Ed. 996 (1852) ; cf. Gibbons v. Ogden, 9 Wheat. 1, 209, 6 L.Ed. 23 (1824) (Marshall, C.J.) (dictum).
Our dormant Commerce Clause jurisprudence "significantly limits the ability of States and localities to regulate or otherwise burden the flow of interstate commerce." Maine v. Taylor, 477 U.S. 131, 151, 106 S.Ct. 2440, 91 L.Ed.2d 110 (1986). It is driven by a concern about "economic protectionism-that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors." New Energy Co. of Ind. v. Limbach, 486 U.S. 269, 273-274, 108 S.Ct. 1803, 100 L.Ed.2d 302 (1988) ; see also Philadelphia v. New Jersey, 437 U.S. 617, 624, 98 S.Ct. 2531, 57 L.Ed.2d 475 (1978) ("The crucial inquiry ... must be directed to determining whether [the challenged 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").
Virginia's FOIA law neither "regulates" nor "burdens" interstate commerce; rather, it merely provides a service to local citizens that would not otherwise be available at all. The "common thread" among those cases in which the Court has found a dormant Commerce Clause violation is that "the State interfered with the natural functioning of the interstate market either through prohibition or through burdensome regulation." Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 806, 96 S.Ct. 2488, 49 L.Ed.2d 220 (1976). Here, by contrast, Virginia neither prohibits access to an interstate market nor imposes burdensome regulation on that market. Rather, it merely creates and provides to its own citizens copies-which would not otherwise exist-of state records. As discussed above, the express purpose of Virginia's FOIA law is to "ensur[e] the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted." Va.Code Ann. § 2.2-3700(B). This case is thus most properly brought under the Privileges and Immunities Clause: It quite literally poses the question whether Virginia can deny out-of-state citizens a benefit that it has conferred on its own citizens. Cf. Missouri Pacific R. Co., 257 U.S., at 535, 42 S.Ct. 210 (analyzing whether the privilege of access to a State's courts must be made available to out-of-state citizens equally with the citizens of the relevant State). Because it does not pose the question of the constitutionality of a state law that interferes with an interstate market through prohibition or burdensome regulations, this case is not governed by the dormant Commerce Clause.
Even shoehorned into our dormant Commerce Clause framework, however, Hurlbert's claim would fail. Insofar as there is a "market" for public documents in Virginia, it is a market for a product that the Commonwealth has created and of which the Commonwealth is the sole manufacturer. We have held that a State does not violate the dormant Commerce Clause when, having created a market through a state program, it "limits benefits generated by [that] state program to those who fund the state treasury and whom the State was created to serve." Reeves, Inc. v. Stake, 447 U.S. 429, 442, 100 S.Ct. 2271, 65 L.Ed.2d 244 (1980). "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." Ibid. ;cf. Department of Revenue of Ky. v. Davis, 553 U.S. 328, 341, 128 S.Ct. 1801, 170 L.Ed.2d 685 (2008) ("[A] government function is not susceptible to standard dormant Commerce Clause scrutiny owing to its likely motivation by legitimate objectives distinct from the simple economic protectionism the Clause abhors").
For these reasons, Virginia's citizens-only FOIA provision does not violate the dormant Commerce Clause.
* * *
Because Virginia's citizens-only FOIA provision neither abridges any of petitioners' fundamental privileges and immunities nor impermissibly regulates commerce, petitioners' constitutional claims fail. The judgment below is affirmed.
It is so ordered.
At oral argument, the Solicitor General of Virginia contended that, as a matter of Virginia law, Hurlbert "is entitled to the tax assessment data in the clerk's office." Tr. of Oral Arg. 38. Neither at oral argument nor in its briefs did Virginia cite any Virginia statute providing that real estate tax assessment records be filed in the clerk's office. Virginia Code Ann. § 58.1-3300 (Lexis 2009), which directs that "reassessment" records be filed with the clerk, may be the statute to which counsel referred, but without an official construction of the statute by Virginia's Supreme Court-and, in light of the fact that petitioners have not been afforded an opportunity to rebut its importance-we do not rely upon it here.
See http://www.co.henrico.va.us/finance/disclaimer.html (as visited April 26, 2013, and available in Clerk of Court's case file). | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari. | What reason, if any, does the court give for granting the petition for certiorari? | [
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GUTKNECHT v. UNITED STATES
No. 71.
Argued November 20, 1969
Decided January 19, 1970
Michael E. Tigar argued the cause for petitioner pro hac vice. With him on the briefs were Melvin L. Wulf and Chester Bruvold.
Assistant Attorney General Ruckelshaus argued the cause for the United States. With him on the brief were Attorney General Mitchell, Assistant Attorney General Wilson, and Philip R. Monahan.
Briefs of amici curiae urging reversal were filed by George Soli and Joseph B. Robison for the American Jewish Congress, and by Marvin M. Karpatkin, Michael N. Pollet, and E. Curry First for the Central Committee for Conscientious Objectors.
Mr. Justice Douglas
delivered the opinion of the Court.
This case presents an important question under the Military Selective Service Act of 1967, 62 Stat. 604, as amended, 65 Stat. 75, 81 Stat. 100.
Petitioner registered with his Selective Service Local Board and was classified I-A. Shortly thereafter he received a II-S (student) classification. In a little over a year he notified the Board that he was no longer a student and was classified I-A. Meanwhile he had asked for an exemption as a conscientious objector. The Board denied that exemption, reclassifying him as I-A, and he appealed to the State Board. While that appeal was pending, he surrendered his registration certificate and notice of classification by leaving them on the steps of the Federal Building in Minneapolis with a statement explaining he was opposed to the war in Vietnam. That was on October 16, 1967. On November 22, 1967, his appeal to the State Board was denied. On November 27, 1967, he was notified that he was I-A.
On December 20, 1967, he was declared delinquent by the local board. On December 26, 1967, he was ordered to report for induction on January 24,1968. He reported at the induction center, but in his case the normal procedure of induction was not followed. Rather, he signed a statement, “I refuse to take part, or all, [sic] of the prescribed processing.” Thereafter he was indicted for wilfully and knowingly failing and neglecting “to perform a duty required of him” under the Act. He was tried without a jury, found guilty, and sentenced to four years’ imprisonment. 283 F. Supp. 945. His conviction was affirmed by the Court of Appeals. 406 F. 2d 494. The case is here on a petition for a writ of certiorari. 394 U. S. 997.
I
Among the defenses tendered at the trial was the legality of the delinquency regulations which were applied to petitioner. It is that single question which we will consider.
By the regulations promulgated under the Act a local board may declare a registrant to be a “delinquent” whenever he
“has failed to perform any duty or duties required of him under the selective service law other than the duty to comply with an Order to Report for Induction (SSS Form No. 252) or the duty to comply with an Order to Report for Civilian Work and Statement of Employer (SSS Form No. 153) . . . 32 CFR § 1642.4.
In this case, petitioner was declared a delinquent for failing to have his registration certificate (SSS Form No. 2) and current classification notice (SSS Form No. 110) in his personal possession at all times, as required by 32 CFR §§.1617.1 and 1623.5, respectively.
The consequences of being declared a delinquent under § 1642.4 are of two types: (1) Registrants who have deferments or exemptions may be reclassified in one of the classes available for service, I-A, I-A-O, or I-O, whichever is deemed applicable. 32 CFR § 1642.12. (2) Registrants who are already classified I-A, I-A-O, or I-O, and those who are reclassified to such a status, will be given first priority in the order of call for induction, requiring them to be called even ahead of volunteers for induction. 32 CFR § 1642.13. The latter consequence deprives the registrant of his previous standing in the order of call as set out in 32 CFR § 1631.7.
The order-of-call provision in use when petitioner was declared “delinquent” is set out in 32 CFR § 1631.7 (a). The provision lists, in order, six categories of registrants and provides that the registrants shall be selected and ordered to report for induction according to the order of those categories. The first category is delinquents; the next category is volunteers; the other four categories consist of nonvolunteers. In this case, the petitioner was in the third of the six categories at the time he was declared to be a “delinquent.” By virtue of the declaration of delinquency he was moved to the first of the categories which meant, according to the brief of the Department of Justice, that “it is unlikely that petitioner, who was 20 years of age when ordered to report for induction, would have been called at such an early date had he not been declared a delinquent.”
If a person, who is ordered to report for induction or alternative civilian service, refuses to comply with that order, he subjects himself to criminal prosecution. See 32 CFR §§ 1642.41, 1660.30.
There is no doubt concerning the propriety of the latter criminal sanction, for Congress has specifically provided for the punishment of those who disobey selective service statutes and regulations in § 12 of the Military Selective Service Act of 1967, 50 U. S. C. App. § 462 (1964 ed., Supp. IV). The question posed by this case concerns the legitimacy of the delinquency regulations, which were applied to the petitioner, so as to deprive him of his previous standing in the order of call.
II
There is a preliminary point which must be mentioned and that is the suggestion that petitioner should have taken an administrative appeal from the order declaring him “delinquent” and that his failure to do so bars the defense in the criminal prosecution.
The pertinent regulation is 32 CFR § 1642.14, which gives a delinquent who “is classified in or reclassified into Class I-A, Class I-A-0 or Class I-O” three rights:
(a) the right to a personal appearance, upon request, “under the same circumstances as in any other case”;
(b) the right to have his classification reopened “in the discretion of the local hoard”; and
(c) the right to an appeal “under the same circumstances and by the same persons as in any other case.” (Emphasis added.)
The right to a personal appearance “in any other case” is covered by 32 CFR § 1624.1 (a). That section gives the right to “[e]very registrant after his classification is determined by the local board” provided a request is made therefor within 30 days. (Emphasis added.) The action taken against this petitioner, however, did not involve classification. The term “classification” is used exclusively in the regulations to refer to classification in one of the classes determining availability for service, e. g., I-A, I-O. See 32 CFR pts. 1621-1623. “Delinquency” is not such a classification, and a registrant is “declared” a delinquent, not “classified” as a delinquent. See 32 CFR pt. 1642.
The right to reopen his classification is also irrelevant to petitioner as he is not attacking his classification, but only his accelerated induction.
The right to appeal “as in any other case” is covered by 32 CFR § 1626.2(a). That section provides that “[t]he registrant . . . may appeal to an appeal board from the classification of a registrant by the local board.” (Emphasis added.)
Again, since petitioner was not classified in conjunction with his delinquency, but only had his induction accelerated, it would mean that he did not have the right to an appeal under the regulations. We are not advised, in any authoritative way, that this interpretation of the regulations is contrary to the administrative construction of them or to the accepted practice.
Ill
We come then to the merits. The problem of “delinquency” goes back to the 1917 Act, 40 Stat. 76, as shown in the Appendix to this opinion. The present “delinquency” regulations with which we are concerned stem from the 1948 Act, 62 Stat. 604.
The regulations issued under the 1948 Act were substantially identical to th'e present delinquency regulations, 32 CFR pt. 1642. Nothing in the 1948 Act or in any prior Act makes reference to delinquency or delinquents. The regulations purport to issue under the authority of § 10 of the 1948 Act. Section 10, however, relates neither to selection (§5) nor to deferments and exemptions (§6), but simply to the administration of the Act as delegated to the President: “The President is authorized — (1) to prescribe the necessary rules and regulations to carry out the provisions of this title.” 62 Stat. 619.
The delinquency provisions of 32 CFR pt. 1642 survived the Military Selective Service Act of 1967 largely intact. Again, however, there is nothing to indicate that Congress authorized the Selective Service System to reclassify exempt or deferred registrants for punitive purposes and to provide for accelerated induction of delinquents. Rather, the Congress reaffirmed its intention under § 12 (60 U. S. C. App. § 462 (1964 ed., Supp. IV)), to punish delinquents through the criminal law.
It is true, of course, that Congress referred to “delinquents” in § 6 (h)(1), 81 St-at. 102, 50 U. S. C. App. § 456 (h)(1) (1964 ed., Supp. IV):
“As used in this subsection, the term ‘prime age group’ means the age group which has been designated by the President as the age group from which selections for induction into the Armed Forces are first to be made after delinquents and volunteers.” (Emphasis added.)
This reference concerns only an order-of-call provision which institutes a call by age groups, 32 CFR § 1631.7 (b), a provision which has never been used. This casual mention of the term “delinquents,” moreover, must be measured against the explicit congressional provision for criminal punishment of those who violate the selective service laws, 50 U. S. C. App. § 462 (1964 ed., Supp. IV), the congressional provision for exemptions and deferments, 50 U. S. C. App. § 456 (1964 ed., Supp. IV), and congressional expressions emphasizing the importance of an impartial order of call, 50 U. S. C. App. § 455 (1964 ed., Supp. IV); H. R. Conf. Rep. No. 346, 90th Cong., 1st Sess., 9-10. Thus it was that the Solicitor General stated in his brief in Oestereich v. Selective Service Board, No. 46, O. T. 1968, 393 U. S. 233:
“It is difficult to believe that Congress intended the local boards to have the unfettered discretion to decide that any violation of the Act or regulations warrants a declaration of delinquency, reclassification and induction . . . Brief for the United States 54.
Judge Dooling stated in United States v. Eisdorfer, 299 F. Supp. 975, 989:
“The delinquency procedure has no statutory authorization and no Congressional support except what can be spelled out of the 1967 amendment of 50 U. S. C. App. §456 (h)(1) .... The delinquency regulations, moreover, disregard the structure of the Act; deferments and priorities-of-induction, adopted in the public interest, are treated as if they were forfeitable personal privileges.”
Oestereich involved a case where a divinity school student with a statutory exemption and a IV-D classification was declared “delinquent” for turning in his registration certificate to the Government in protest against the war in Vietnam. His Board thereupon reclassified him as I-A. After he exhausted his administrative remedies, he was ordered to report for induction. At that point he brought suit in the District Court for judicial review of the action by the Board. We held that under the unusual circumstances of the case, pre-induction judicial review was permissible prior to induction and that there was no statutory authorization to use the “delinquency” procedure to deprive a registrant of a statutory exemption. We said:
“There is no suggestion in the legislative history that, when Congress has granted an exemption and a registrant meets its terms and conditions, a Board can nonetheless withhold it from him for activities or conduct not material to the grant or withdrawal of the exemption. So to hold would make the Boards free-wheeling agencies meting out their brand of justice in a vindictive manner.
“Once a person registers and qualifies for a statutory exemption, we find no legislative authority to deprive him of that exemption because of conduct or activities unrelated to the merits of granting or continuing that exemption.” 393 U. S., at 237.
The question in the instant case is different because no- “exemption,” no “deferment,” no “classification” in the statutory sense is involved. “Delinquency” was used here not to change a classification but to accelerate petitioner’s induction from the third category to the first; and it was that difference which led the Court of Appeals to conclude that what we said in Oestereich was not controlling here.
Deferment of the order of call may be the bestowal of great benefits; and its acceleration may be extremely punitive. As already indicated, the statutory policy is the selection of persons for training and service “in an impartial manner.” 50 U. S. C. App. § 455 (a)(1) (1964 ed., Supp. IV). That is the only express statutory provision which gives specific content to that phrase. That section does permit people registered at one time to be selected “before, together with, or after” persons registered at a prior time. Moreover, those who have not reached the age of 19 are given a deferred position in the order of call. But those variations in the phrase “in an impartial manner” are of no particular help in the instant case, except to underline the concern of Congress with the integrity of that phrase.
We know from the legislative history that, while Congress did not address itself specifically to the “delinquency” issue, it was vitally concerned with the order of selection, as well as with exemptions and deferments. Thus in 1967 a Conference Report brought House and Senate together against the grant of power to the President to initiate “a random system of selection” — a grant which, it was felt, would preclude Congress from “playing an affirmative role” in the constitutional task of “raising armies.” II. R. Conf. Rep. No. 346, supra, at 9-10. It is difficult to believe that with that show of resistance to a grant of a more limited power, there was acquiescence in the delegation of a broad, sweeping power to Selective Service to discipline registrants through the “delinquency” device.
The problem of the order of induction was once more before the Congress late in 1969. Section 5 (a) (2) of the 1967 Act, 50 U. S. C. App. §455 (a)(2) (1964 ed., Supp. IV), provided:
“Notwithstanding the provisions of paragraph (1) of this subsection, the President in establishing the order of induction for registrants within the various age groups found qualified for induction shall not effect any change in the method of determining the relative order of induction for such registrants within such age groups as has been heretofore established and in effect on the date of enactment of this paragraph, unless authorized by law enacted after the date of enactment of the Military Selective Service Act of 1967.”
While §5 (a) (2) gave the President authority to designate a prime age group for induction, it required him to select from the oldest first within the group. S. Rep. No. 91-531, 91st Cong., 1st Sess., 1. The Act of November 26, 1969, 83 Stat. 220, repealed § 5 (a) (2) pursuant to a request of the President that a random system of selection be authorized. See S. Rep. No. 91-531, supra, at 3-4; H. R. Rep. No. 91-577, 91st Cong., 1st Sess., 2, 9. The random system has now been put in force. It applies of course only prospectively. But its legislative history, as well as the concern of the Congress that the order in which registrants are inducted be achieved “in an impartial manner,” emphasizes a deep concern by Congress with the problems of the order of induction as well as with those of exemptions, deferments, and classifications.
While § 5 (a) (1) provides that “there shall be no discrimination against any person on account of race or color,” 50 U. S. C. App. § 455 (a)(1) (1964 ed., Supp. IV), there is no suggestion that as respects other types of discrimination the Selective Service has freewheeling authority to ride herd on the registrants using immediate induction as a disciplinary or vindictive measure.
The power under the regulations to declare a registrant “delinquent” has no statutory standard or even guidelines. The power is exercised entirely at the discretion of the local board. It is a broad, roving authority, a type of administrative absolutism not congenial to our law-making traditions. In Kent v. Dulles, 357 U. S. 116, 128-129, we refused to impute to Congress the grant of “unbridled discretion” to the Secretary of State to issue or withhold a passport from a citizen “for any substantive reason he may choose.” Id., at 128. Where the liberties of the citizen are involved, we said that “we will construe narrowly all delegated powers that curtail or dilute them.” Id., at 129. The Director of Selective Service described the “delinquency” regulations as designed “to prevent, wherever possible, prosecutions for minor infractions of rules” during the selective service processing. We search the Act in vain for any clues that Congress desired the Act to have punitive sanctions apart from the criminal prosecutions specifically authorized. Nor do we read it as granting personal privileges that may be forfeited for transgressions that affront the local board. If federal or state laws are violated by registrants, they can be prosecuted. If induction is to be substituted for these prosecutions, a vast rewriting of the Act is needed. Standards would be needed by which the legality of a declaration of “delinquency” could be judged. And the regulations, when written, would be subject to the customary inquiries as to infirmities on their face or in their application, including the question whether they were used to penalize or punish the free exercise of constitutional rights.
Reversed.
Mr. Chief Justice Burger concurs in the result reached by the Court generally for the reasons set put in the separate opinion of Mr. Justice Stewart.
Mr. Justice White joins the opinion of the Court insofar as it holds that Congress has not delegated to the President the authority to promulgate the delinquency regulations involved in this case.
APPENDIX TO OPINION OF THE COURT
Under the Selective Service Act of 1917, 40 Stat. 76, if a registrant failed to return his questionnaire or to report for physical examination, he was mailed a special order directing him to report for military service at a specified time. The registrant became a member of the service on the date specified in his order; any refusal to obey that order subjected him to prosecution under military law for desertion. “Since in most instances the delinquent registrant would never receive the order, due to not being in contact with his local board, he would normally acquire the status of a deserter without having any actual knowledge of his induction.” Selective Service System, Enforcement of the Selective Service Law 13 (Special Monograph No. 14, 1950). Thus, enforcement of the 1917 Act rested principally with the military, with court-martial being the main weapon of enforcement.
In passing the Selective Training and Service Act of 1940, 54 Stat. 885, Congress specifically ended the practice of subjecting delinquent registrants to military jurisdiction immediately upon receipt of their orders to report. Rather, § 11 of the Act provided that no registrant should be tried in a military court for disobeying selective service laws until he had been actually inducted, vesting criminal jurisdiction until such time in the United States district courts.
No mention was made in the 1940 Act of “delinquency” or “delinquents.” These terms were first introduced by the Selective Service regulations issued under the Act, 32 CFR, c. VI (Supp. 1940), which prescribed various duties for registrants and defined a “delinquent” as one who failed to perform them:
“A ‘delinquent’ is . . . (b) any registrant who prior to his induction into the military service fails to perform at the required time, or within the allowed period of given time, any duty imposed upon him by the selective service law, and directions given pursuant thereto, and has no valid reason for having failed to perform that duty.” 32 CFR § 601.106 (Supp.1940).
Furthermore, the regulations provided definite procedures for processing delinquents: after giving them notice of their suspected delinquency, 32 CFR § 603.389 (Supp. 1940), and after investigating those suspected charges, 32 CFR §603.390 (Supp. 1940), the Selective Service System provided for two possible dispositions:
On the one hand—
“If the local board is convinced that a delinquent is not innocent of wrongful intent, or if a suspected delinquent does not report to the board within 5 days after the mailing of the Notice of Delinquency . . . , the board should report him to a United States District Attorney for prosecution under section 11 of the Selective Service Act.” 32 CFR § 603.391 (a) (Supp. 1940).
On the other hand—
“If the board finds that the suspected delinquent is innocent of any wrongful intent, the board shall proceed with him just as if he were never suspected of being a delinquent.” 32 CFR § 603.390 (a) (Supp. 1940).
The February 1942 amendments to the regulations added a provision by which local boards would advise the United States Attorney in the exercise of his discretion not to prosecute those who had violated the selective service laws:
“If it is determined that the delinquency is not wilful, or that substantial justice will result, the local board should encourage the delinquent to comply with his obligations under the law and, if he does so or offers to do so, should urge that any charge of delinquency against him or any prosecution of him for delinquency be dropped.” 32 CFR §642.5 (Cum. Supp. 1938-1943).
This process was called the “enforcement procedure of education and persuasion.” Selective Service System, Enforcement of the Selective Service Law, supra, at 1-3.
“The first steps of the board were to try educating and persuading [the delinquent] to comply, but if such failed his case was referred to the United States attorney for further education and persuasion or if such also failed, for prosecution.” Selective Service System, Organization and Administration of the System 241 (Special Monograph No. 3, 1951).
If it was determined that the delinquency was “wilful” or that for any reason the United States Attorney should not exercise his discretion not to prosecute, the registrant was given an opportunity to avoid prosecution by “volunteering” for induction.
“[T]he registrant could volunteer for induction from any classification, not just I-A, any time he so desired, and if he was a delinquent under prosecution such volunteering was often allowed from any stage of the proceedings.” Ibid.
This procedure made it possible for the boards to siphon into military service some delinquents who might otherwise have traveled to jail:
“Since the purpose of the [selective service] law is to provide men for the military establishment rather than for the penitentiaries, it would seem that when a registrant is willing to be inducted, he should not be prosecuted for minor offenses committed during his processing.” Selective Service System, Legal Aspects of Selective Service 47 (Rev. 1969).
In November 1943, a new and substantially different set of regulations was issued. These regulations did not rely upon a delinquent’s “volunteering” for induction; instead they provided for reclassification of deferred or exempted delinquents into classes available for service, 32 CFR § 642.12 (a) (Supp. 1943), and provided for their priority induction without regard to the order of call established elsewhere in the regulations, 32 CFR § 642.13 (a) (Supp. 1943).
A deferred or exempted registrant who was reclassified into a class available for service was accorded the procedural rights of personal appearance and appeal to which he would otherwise have been entitled. 32 CFR § 642.14 (a) (Supp. 1943). In the case of a registrant who was not reclassified as a result of his delinquency, the local board could “reopen” the classification and accord rights of personal appearance and appeal “at any time before induction.” 32 CFR § 642.14 (b) (Supp. 1943). If the local board determined that the registrant “knowingly became a delinquent,” however, it was directed to decline to reopen the registrant’s classification. Ibid.
With respect to those registrants who were given appeal rights under § 642.14, the appeal board would determine if they had “knowingly” become delinquents. If they had, they were to be retained in a class available for service. If they had not, they were to be “classified on appeal in the usual manner” and their status as delinquents was to be “disregarded.” 32 CFR § 642.14 (c) (Supp. 1943).
The purpose of these regulations was “to prevent delay in the induction of apprehended delinquent registrants.” Selective Service System, Enforcement of the Selective Service Law, supra, at 56 (emphasis added). More important, the Service recognized that the procedure had little to do with the statutory exemptions delineated by Congress but, rather, was punitive in nature:
“[T]he Selective Service Regulations concerning delinquents . . . were amended again on November 1, 1943 .... The purposes of these changes were . . . To provide for the administrative penalty to a delinquent of prompt classification into Classes I-A, I-A-0 or IV-E as available for service, in addition to the existing criminal sanction.” (Ibid.) (Emphasis added.)
The regulation of November 1, 1943, purportedly drew its authority from § 3 of the 1940 Act, 54 Stat. 885. Nothing in that section, however, gives the Service powers of punitive reclassification and accelerated induction. Moreover, to the extent that § 3 has been so construed, it would conflict with the spirit of § 4 (a):
“The selection of men for training and service under section 3 . . . shall be made in an impartial manner, under such rules and regulations as the President may prescribe, from the men who are liable for such training and service and who at the time of selection are registered and classified but not deferred or exempted.” 54 Stat. 887 (emphasis added).
The delinquency provisions under the 1940 Act expired on March 31, 1947. The provisions issued under the 1948 Act are discussed in the text, supra.
Under the terms of 32 CFR §1631.7 (a)(1) in effect at the time of petitioner’s trial, the first in line for induction were “[delinquents who have attained the age of 19 years in the order of their dates of birth with the oldest being selected first.” That provision has been included in the new § 1631.7 (a) promulgated after the random system of selection, discussed hereafter, was adopted.
The order of call provided for by 32 CFR § 1631.7 (b) concerned calls of a designated “age group or groups,” a system never used.
Cf. McKart v. United States, 395 U. S. 185. In McKart, the petitioner, who challenged his I-A classification, was given a right to appeal under the regulations but failed to exercise it. This Court held that this failure did not preclude the petitioner from raising the invalidity of his I-A classification as a defense to his prosecution for refusal to report for induction. The doctrine of exhaustion of remedies, we held, was inapplicable where the question sought to be raised was solely one of statutory interpretation, id., at 197-199, and where application of the doctrine would serve to deprive a criminal defendant of a defense to his prosecution, id., at 197.
The Department of Justice does not suggest that a registrant who has been declared a “delinquent” has administrative remedies for a review of that action. It points out, however, that the regulations, 32 CFR § 1642.4 (c), provide that: “A registrant who has been declared to be a delinquent may be removed from that status by the local board at any time.” It suggests that “at least up to the time of the issuance of the order to report for priority induction, it would be an abuse of discretion for a board to refuse removal in the case of a registrant who sought in good faith to correct his breach of duty.” Whatever may be the ultimate reach of 32 CFR § 1642.4 (c), it seems to be conceded that it has little relevance to the present case where, the Department states, “the local board had solid evidence that petitioner had dispossessed himself of his draft cards.”
And see 115 Cong. Rec. H10255 et seq. (Oct. 29, 1969). Id., at H 10301 et seq., H 10313 et seq. (Oct. 30, 1969). Id., at S 14632 et seq. (Nov. 19, 1969).
The random selection was established by the President through Proclamation 3945, on November 26, 1969. 34 Fed. Reg. 19017 (Nov. 29,1969).
Selective Service System, Legal Aspects of Selective Service 46 (Rev. 1969).
“The escalation of the United States military involvement in Vietnam increased the draft calls, and there was an upsurge of public demonstrations in protest. Some of these protests took the form of turning ‘draft’ cards in to various public officials of the Department of Justice,' the State or National Headquarters of Selective Service System, or directly to local boards. By agreement with the Department of Justice, registrants who turned in cards (as contrasted to those who burned cards) were not prosecuted under section 12 (a) of the Military Selective Service Law of 1967, but were processed administratively by the local boards. In many instances, the local boards determined that a deferment of such registrant was no longer in the national interest, and he was reclassified 1-A delinquent for failure to perform a duty required of him under the Act, namely retaining in his possession the Registration Card and current Notice of Classification card.” Id.., at 47. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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106
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YOUNGSTOWN SHEET & TUBE CO. v. BOWERS, TAX COMMISSIONER OF OHIO.
No. 9.
Argued November 12, 1958.
Decided February 24, 1959
Carlton S. Dargusch, Sr. argued the cause for appellant in No. 9. With him on the brief were Carlton S. Dar-gusch, Jr. and Jack H. Bertsch.
Roger C. Minahan argued the cause and filed a brief for petitioner in No. 44.
William Saxbe, Attorney General of Ohio, and John M. Tobin, Assistant Attorney General, argued the cause and filed a brief for appellee in No. 9.
Edwin Larkin argued the cause and filed a brief for respondent in No. 44.
Bruce Bromley and Roswell Magill filed a brief, as amici curiae, in Nos. 9 and 44.
Together with No. 44, United States Plywood Corp. v. City of Algoma, on certiorari to the Supreme Court of Wisconsin, argued November 12-13, 1958.
Mr. Justice Whittaker
delivered the opinion of the Court.
The principal question presented by these cases is whether appellant in No. 9, the Youngstown Sheet and Tube Company, and petitioner in No. 44, United States Plywood Corporation, have so acted upon the materials which they have imported for use in their manufacturing operations as to cause them to lose their distinctive character as “imports,” within the meaning of that term as used in the Import-Export Clause, Art. I, § 10, cl. 2, of the United States Constitution. The Supreme Courts of the States concerned have held that these manufacturers have done so. Our task is to decide whether, on the particular facts involved, those holdings violate the Import-Export Clause of the Constitution.
The facts in the Youngstown case are stipulated. In essence, they are that Youngstown, an Ohio corporation, operates an industrial plant in or near Youngstown, Ohio, where it manufactures iron and steel. In addition to the use of domestic ores, it imports iron ores from five countries “for ultimate use in [its] open hearth [and] blast furnaces” in its manufacturing processes. The imported ores arrive in shiploads “in bulk” either at an Atlantic or a Lake Erie port of entry where they are unloaded from the ship into railroad cars and are thereby transported to Youngstown’s plant in Ohio. The plant is enclosed by a wire fence. Within the enclosure and “adjacent to [the] manufacturing facilities” are several “ore yards” for the storage of supplies of ore. Each ore yard consists of “two parallel walls, on which there [is] a movable ore bridge.” When the imported ores arrive at this final destination, they are unloaded into one of the ore yards, but, because the ore from each country is different from the others and each is imported for a different use, the ores are kept segregated as to the country of origin by being “placed in a separate pile in a separate area of the ore yard.” The daily manufacturing needs for ore are taken from these piles. As needed, ores are conveyed from the particular pile or piles selected to “stock bins” or “stock houses,” holding one or two days’ supply and located in close proximity to the furnaces, from which the ores are fed into the furnaces. As ore from a particular “pile” in the ore yard is thus taken and consumed, other like ore is similarly imported from the same country and is brought to the plant and unloaded on top of the remainder of that particular pile. This course is continuously repeated. Youngstown endeavors to maintain “a supply of imported ores to meet its estimated requirements for a period of at least three months.” The ores are not imported “for resale,” but “for use in manufacturing [at the Ohio plant].”
Acting under Ohio statutes which provide, inter alia, that “All personal property located and used in business in this state [shall be] subject to taxation ...” and that “Personal property is ‘used’ within the meaning of ‘used in business’ . . . when stored or kept on hand as material, parts, products, or merchandise . . . ,” the Tax Commissioner of Ohio proposed to assess an ad valorem tax against Youngstown based on the average value of the iron ores in its ore yards during the tax year ended January 1, 1954. Youngstown contested the proposed assessment. It contended, among other things, that the imported ores had not lost their character as imports and were therefore immune from state taxation under Art. I, § 10, cl. 2 of the United States Constitution.
After exhaustion of administrative proceedings, the case reached the Supreme Court of Ohio. It held that the “protection [of the Import-Export Clause cannot] extend to such iron ore (1) after it has been commingled with other iron ore imported at a different time, even though such other iron ore is of the same grade and was imported from the same place, and (2) after portions of such iron ore have been removed for use in manufacturing.” It then entered judgment sustaining the tax, 166 Ohio St. 122, 140 N. E. 2d 313, and we noted probable jurisdiction of Youngstown’s appeal. 355 U. S. 911.
The facts in the United States Plywood Corporation case were found in detail by the trial court and those findings are not challenged here. In essence, they are that United States Plywood Corporation (petitioner) operates an industrial plant in Algoma, Wisconsin, where it manufactures veneered wood products. It uses both domestic and imported lumber and veneers in its manufacturing processes. The imported lumber is shipped in railroad cars directly from Canada to petitioner’s plant. It is unfinished, and is received in bulk or as loose, individual pieces or boards. It is also “green” when received and therefore must be dried before it can be used by petitioner. Upon arrival at destination, it is unloaded and carted to petitioner’s storage yard, located “adjacent” to its plant, where it is stacked in the open in such a way as to allow the air freely to circulate through the stacks for the “dominant purpose” of air-drying it. This method does not so completely dry the lumber as to make kiln-drying unnecessary, but it does materially reduce the time and expense of that process. From time to time, so much of the lumber as is about to be put into veneered products is taken from the stacks and placed in a kiln where the drying is completed and the lumber readied for use. The veneers are imported from three countries. They are received in bundles and are kept in that form in piles, separated as to specie, in petitioner’s plant for use as needed in the day-to-day operations of the plant.
On the assessment date of May 1, 1955, the Assessor of the City of Algoma, acting under what is now Wis. Stat., 1957, § 70.01, assessed a tax against petitioner based upon the value of one-half of the imported lumber and veneers then on hand. Petitioner paid the tax and then sued in the state court for its recovery. The trial court also found that air-drying the lumber “was part of [petitioner’s] manufacturing practices,” and that, when stacked for air-drying, the lumber “entered the process of manufacture” and thus lost its character as an “import,” and therefore all of it might lawfully have been taxed by the city. The court further found that the lumber and veneers had been imported by petitioner “for use in manufacturing” at its Algoma plant, and that their importation journeys definitely had ended; that the lumber and veneers that were taxed (one-half of the amounts on hand) had been irrevocably committed to “use in manufacturing” at that plant, were “necessarily required to be kept on hand to meet [petitioner’s] current operational needs,” were being “used in manufacturing,” and had therefore lost their character as “imports” and were subject to local taxation. It then entered judgment for the city, sustaining the tax, and, on petitioner’s appeal, the Supreme Court of Wisconsin affirmed. 2 Wis. 2d 567, 87 N. W. 2d 481. Because of the importance of the constitutional question presented we granted certiorari. 356 U. S. 957.
The Constitution confers on Congress the power to lay and collect import duties, Art. I, § 8, and provides that “No State shall, without the Consent of the Congress, lay any Impost or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws. . . Art. I, § 10, cl. 2. That these provisions were intended to confer on the National Government the exclusive power to tax the act of importation is plain from their terms. And early in our national history Chief Justice Marshall held, in the landmark case of Brown v. Maryland, 12 Wheat. 419, that one who had imported goods for the purpose of selling them had, “by payment of the duty to the United States, [acquired the] right to dispose of his merchandise, as well as to bring it into the country” (id., at 442), and that the State could not tax it “while remaining the property of the importer, in his warehouse, in the original form or package in which it was imported.” Id., at 442. But he made very clear that “. . . there must be a point of time when the prohibition ceases, and the power of the State to tax commences.” Id., at 441. Elaborating this concept, he said:
“The constitutional prohibition on the States to lay a duty on imports . . . may certainly come in conflict with their acknowledged power to tax persons and property within their territory. The power, and the restriction on it, though quite distinguishable when they do not approach each other, may yet . . . approach so nearly as to perplex the understanding. ... Yet the distinction exists, and must be marked as the cases arise. Till they do arise, it might be premature to state any rule as being universal in its application. It is sufficient for the present to say, generally, that when the importer has so acted upon the thing imported, that it has become incorporated and mixed up with the mass of property in the country, it has, perhaps, lost its distinctive character as an import, and has become subject to the taxing power of the State. . . Id., at 441-442. (Emphasis added.)
While Chief Justice Marshall did not undertake definitively to state just what acts or conduct of the importer would be deemed to have “so acted upon the thing imported” as to cause it to be “mixed up with the mass of property in the country [and to losé] its distinctive character as an import,” he did specify some of the acts that would so result. He held that the goods lose their character as imports when the importer (1) “sells them,” or (2) “[breaks] up his packages, and [travels] with them as an itinerant pedlar.” Id., at 443. More important to the question confronting us, he also held (3) that goods brought into this country by an importer “for his own use” and here “used” by him are to be regarded as a part of “the common mass” of property and are not immune from state taxation.
In Hooven & Allison Co. v. Evatt, 324 U. S. 652, it was held that goods imported for “use” share the same immunity as goods imported for “sale,” and that goods imported “for manufacture [do not] lose their character as imports any sooner or more readily than imports for sale” (id., at 667); but “when [the imported goods are] used for the purpose for which they are imported, they cease to be imports and their tax exemption is at an end.” Id., at 665.
Thus, though Brown v. Maryland, supra, holds that goods brought into the country by an importer “for his own use” are not exempted from state taxation by the Import-Export Clause, and Hooven & Allison Co. v. Evatt, supra, holds that they are, both agree that when the imported goods are “used for the purpose for which they are imported, they cease to be imports and their tax exemption is at an end.” Hooven & Allison Co. v. Evatt, supra, at 665. Compare Brown v. Maryland, supra, at 441-443.
Do the facts as stipulated and found in the cases before us, when considered in the light of applicable legal principles, show that these manufacturers have so acted upon the imported materials as to cause them to lose their distinctive character as “imports” by irrevocably committing them, after their importation journeys have definitely ended, to “use in manufacturing” at the plant and point of final destination, and by “entering” and “using” them “in manufacturing” at that place? The manufacturers, relying upon their understanding of the Hooven case, argue that they do not, but we have concluded that they do.
In Hooven the taxpayer had imported bales of hemp and other fibers which it stored in its warehouse at its factory in Ohio with the intention of eventually using them in the manufacture of cordage and similar products. Ohio sought to lay an ad valorem tax on the bales of fibers so stored in the taxpayer’s warehouse. The taxpayer contended that the bales of fibers were “imports” and thus immune from state taxation under the Import-Export Clause of the Constitution. The Supreme Court of Ohio “thought that Brown v. Maryland, supra, laid down a rule applicable only to imports for the purpose of sale, and that imports for use became, upon storage, even if still in the original package, so intermingled with the common mass of property within the State as to be subject to the State power of taxation” (324 U. S., at 656), and upon that ground upheld the tax. This Court, holding that the tax immunity applies to goods imported for “use” as well as for “sale,” that the bales of fibers would not lose their character as imports “until [they were] put to the use for which [they were] imported” (id., at 665), and that the fibers were not shown by the record in that case to have been “subjected to manufacture when they were placed in [the taxpayer’s] warehouse in their original packages” {id., at 667), reversed the judgment. But the record there did not present, and this ^Court did not reach or decide, the question we have here. Indeed, the Court expressly reserved it.. It said :
“[I]t is unnecessary to decide whether, for purposes of the constitutional immunity, the presence of some fibers in the factory was so essential to current manufacturing requirements that they could be said to have entered the process of manufacture, and hence were already put to the use for which they were imported, before they were removed from the original packages. Even though the inventory of raw material required to be kept on hand to meet the current operational needs of a manufacturing business could be thought to have then entered the manufacturing process, the decision of the Ohio Supreme Court did not rest on that ground, and the record affords no basis for saying that any part of petitioner’s fibers, stored in its warehouse, were required to meet such immediate current needs. Hence we have'no occasion to consider that question.” Id., at 667.
Unlike Hooven, these are not cases of the mere storage in a warehouse of imported materials intended for eventual use in manufacturing but not found to have been essential to current operational needs. Here the Ohio and Wisconsin courts have in effect held that the stipulated and found facts show that the imported materials that were taxed by those States were so essential to current manufacturing requirements that they must be said to have entered the process of manufacture, and those courts have rested their judgments, in major part at least, on that ground. Our question therefore is precisely the one which the Court did not reach or consider in the Hooven case.
We are therefore confronted with the practical, albeit vexing, problem of reconciling the competing demands of the constitutional immunity of imports and of the State’s power to tax property within its borders. The design of the constitutional immunity was to prevent “[t]he great importing States [from laying] a tax on the non-importing States,” to which the imported property is or might ultimately be destined, which would not only discriminate against them but also “would necessarily produce countervailing measures on the part of those States whose situation was less favourable to importation.” Brown v. Maryland, supra, at 440. See Madison, Debates in the Federal Convention of 1787, August 28, 1787 (Hunt & Scott ed.). And see, e. g., Cook v. Pennsylvania, 97 U. S. 566, 574; Richfield Oil Corp. v. State Board, 329 U. S. 69, 76-77. The constitutional design was then to immunize imports from taxation by the importing States, and all others through or into which they may pass, so long as they retain their distinctive character as imports. Hence, that design is not impinged by the taxation of materials that were imported for use in manufacturing after all phases of the importation definitely have ended and the materials have been “put to the use for which they [were] imported” (Hooven & Allison Co. v. Evatt, supra, at 657), for in such a case they have lost their distinctive character as imports and are subject to taxation. And inasmuch as “the reconciliation of the competing demands of the constitutional immunity and of the state’s power to tax, is an extremely practical matter” (Hooven & Allison Co. v. Evatt, supra, at 668), we must approach the question whether these materials had been “put to the use for which they [were] imported” (id., at 657) with full awareness of realities and treat with them in a practical way.
The stipulation in the Youngstown case shows that the imported ores were essential to the operation of Youngstown’s Ohio plant; that Youngstown had imported them “for use in manufacturing” and “to meet its estimated [manufacturing] requirements” at that plant; that the ores had arrived at their destination, had been placed in “piles” in the “ore yards” of that plant, and their importation journey definitely had ended; that the ores were irrevocably committed to “use in manufacturing” at that plant and point of final destination; and that the daily ore needs of the plant were conveyed from the “piles” in the “ore yards” to “stock bins” or “stock houses,” holding one or two days’ supply, from which they were fed into the furnaces. Does not the stipulation thus show that the ores were not only needed, imported, and irrevocably committed to supply, but were actually being used to supply, the daily requirements of the plant? It seems to us that these stipulated facts inescapably establish that Youngstown had “so acted upon the [imported ores]” (Brown v. Maryland, supra, at 441), by using them “for the purpose for which they [were] imported,” that they must be held “to have then entered the manufacturing process” (Hooven & Allison Co. v. Evatt, supra, at 665, 667) and to have lost their distinctive character as “imports” and all tax immunity as such.
Youngstown does not deny that so much of the ores as have been conveyed from the “piles” in the “ore yards” to the “stock bins” or “stock houses” have lost their distinctive character as imports.' Is there any real basis of distinction? The only possible differences are in the sizes of the piles and their distances from the furnaces. Surely the size of the pile is not material. Just as surely the short distance between the smaller piles in the “stock bins” or “stock houses” and the larger piles in the ore yards is not a real distinction. If the larger piles stood on higher ground adjoining the “stock bins” and “stock houses” so that the ores might feed by gravity from the former to the latter there would be no practical difference from the actual facts involved, but it could not be argued that the ores in the one are any less certainly being used in the processes of manufacture than the ores in the other. It seems entirely plain that the ores in the smaller piles in the “stock bins” and “stock houses” are no more definitely and irrevocably committed to use, or being used, at the plant than are the ores in the larger piles in the ore yards from which the smaller ones are constantly kept supplied. “ [R] econciliation of the competing demands of the constitutional immunity and of the state’s power to tax [being] an extremely practical matter” (Hooven & Allison Co. v. Evatt, supra, at 668), taxability cannot depend upon whether the size of the pile of stored materials or its distance from the place of actual fabrication or consumption is a little more or a little less.
In the United States Plywood Corporation case, two types of imported materials are involved — unfinished “green” lumber received “in bulk” and veneers received in “bundles.” The Assessor of the City of Algoma, believing that one-half of the lumber and veneers on hand on the taxing date was necessarily required to be kept on hand to meet the current operating needs of petitioner’s manufacturing plant, assessed an ad valorem tax upon the value of that one-half of the lumber and veneers. In the ensuing litigation, the Wisconsin courts found that the imported materials had been imported by petitioner “for use in manufacturing” at its Algoma plant, had arrived at that place and that their importation journeys definitely had ended; that the lumber and veneers that were taxed (one-half of the amounts on hand on the taxing date) had been irrevocably committed to “use in manufacturing” at that plant, were “necessarily required to be kept on hand to meet [its] current operational needs,” and were actually being “used” to supply those needs. These findings are amply supported by the evidence and are not contested here. We think they clearly show that the lumber and veneers that were taxed were not only needed, imported, and irrevocably committed to supply, but were actually being used to supply, the day-to-day manufacturing requirements of the plant. They thus establish that petitioner had “so acted upon the [imported materials]” (Brown v. Maryland, supra, at 441) that were taxed by using them “for the purpose for which they [were] imported,” that — like the ores in the Youngstown case — they must be held “to have then entered the manufacturing process” (Hooven & Allison Co. v. Evatt, supra, at 665, 667) and to have lost their distinctive character as “imports” and all tax immunity as such.
The fact that the veneers were received in “bundles” which were not opened until the veneers were put into the daily manufacturing operations of the plant is not controlling under the facts and findings here. Whatever may be the significance of retaining in the “original package” goods that have been so imported for sale (Brown v. Maryland, supra; Waring v. The Mayor, 8 Wall. 110, 122-123; Low v. Austin, 13 Wall. 29, 32-33; Cook v. Pennsylvania, 97 U. S. 566, 573; May v. New Orleans, 178 U. S. 496, 501, 507-508), goods that have been so imported for use in manufacturing are not exempt from taxation, though not removed from the “original package,” if, as found here, they have been “put to the use for which they [were] imported.” Hooven & Allison Co. v. Evatt, supra, at 657. Breaking the original package is only one of the ways by which packaged goods that have been imported for use in manufacturing may lose their distinctive character as imports. Another way is by putting them “to the use for which they [were] imported.” Id. That the package has not been broken is, therefore, only one of the several factors to be considered in factually determining whether the goods are being “used for the purpose for which they [were] imported.” Hooven & Allison Co. v. Evatt, supra, at 665. Here the fact that the bundles are not opened until the veneers are put into the day-to-day manufacturing operations of the plant was fully considered by the Wisconsin courts before they made the finding that the veneers that were taxed were “necessarily required to be kept on hand to meet [petitioner’s] current operational needs,” and were actually being “used” to supply those needs.
Because of the views expressed, it is unnecessary to reach or discuss the further finding and conclusion of the Wisconsin courts that when the “green” lumber was stacked by petitioner in the open in a particular way for the “dominant purpose” of air-drying it, the lumber “entered the process of manufacture,” and, for that reason also, lost its character as an import.
The materials here in question were imported to supply, and were essential to supply, the manufacturer’s current operating needs. When, after all phases of their importation had ended, they were put to that use and indiscriminate portions of the whole were actually being used to supply daily operating needs, they stood in the same relation to the State as like piles of domestic materials at the same place that were kept for use and used in the same way. The one was then as fully subject to taxation as the other. In those circumstances, the tax was not on “imports,” nor was it a tax on the materials because they had been imported, but because at the time of the assessment they were being used, in every practical sense, for the purposes for which they had been imported. They were therefore subject to taxation just like domestic property that was kept at the same place in the same way for the same use. We cannot impute to the Framers of the Constitution a purpose to make such a discrimination in favor of materials imported from other countries as would result if we approved the views pressed upon us by the manufacturers. Compare May v. New Orleans, 178 U. S., at 509.
Youngstown also challenged a portion of the tax on the ground that its domestic ores stored on public docks on the shore of Lake Erie in Ohio were “merchandise . . . held in a storage warehouse for storage only” within the meaning of § 5701.08 (A), and that, because the section exempted nonresidents but taxed residents on stocks of merchandise so held, it denied to Youngstown, a resident of Ohio, the equal protection of the laws in violation of the Fourteenth Amendment of the Constitution. The Supreme Court of Ohio answered that contention by saying: “For the reasons stated in Allied Stores of Ohio, Inc., v. Bowers, Tax Commr., ante [166 Ohio St.], 116, the taxpayer’s contentions [in that respect] must be rejected . . . .” Youngstown Sheet & Tube Co. v. Bowers, 166 Ohio St. 122, 124, 140 N. E. 2d 313, 316. We have today affirmed the judgment of the Supreme Court of Ohio in Allied Stores of Ohio, Inc., v. Bowers, Tax Comm’r, ante, p. 522, and for the reasons stated in our opinion in that case we hold that § 5701.08 (A) and the questioned tax laid thereunder did not violate the Equal Protection Clause of the Fourteenth Amendment.
It follows that the judgment in each case must be
Affirmed.
Mr. Justice Stewart took no part in the consideration or decision of these cases.
Article I, § 10, cl. 2 of the United States Constitution, in pertinent part, provides: “No State shall, without the Consent qf the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws. . . .”
Exhibits in the record, though not giving measurements, indicate that the nearest ore yard is located within two or three hundred feet, and the most distant one is located within two or three hundred yards, of the furnaces.
Title 57, Page’s Ohio Rev. Code Ann., 1953, § 5709.01.
Title 57, Page’s Ohio Rev. Code Ann., 1953, § 5701.08 (A).
The Ohio taxing date is January 1, Title 57, Page’s Ohio Rev. Code Ann., 1953, § 5711.03. But personal property held by a manufacturer for use in manufacturing is valued for tax purposes “by taking the value of all [such] property . . . owned by such manufacturer on the last business day of each month [that] the manufacturer was engaged in business during the year, adding the monthly values together, and dividing the result by the number of months the manufacturer was engaged in such business during the year.” Title 57, Page’s Ohio Rev. Code Ann., 1953, § 5711.16.
Chief Justice Taney, while still at the bar, had argued that case for the State of Maryland. After coming to this Court, he had occasion to say that the theory of that holding was that while the imported articles “are in the hands of the importer for sale . . . they may be regarded as merely in transitu, and on their way to the distant cities, villages and country for which they are destined, and where they are expected to be used and consumed, and for the supply of which they were in truth imported.” License Cases, 5 How. 504, 575.
The Court said that when the imported goods are sold “the tax intercepts the import, as an import, in its way to become incorporated with the general mass of property, and denies it the privilege of becoming so incorporated until it shall have contributed to the revenue of the State.” 12 Wheat., at 443. That imported goods lose their character as “imports” upon being sold is well-settled. License Cases, 5 How. 504, 575; Waring v. The Mayor, 8 Wall. 110; Low v. Austin, 13 Wall. 29; May v. New Orleans, 178 U. S. 496.
Counsel for Maryland had argued that to permit state tax immunity in that case would result in granting immunity to “an importer who may bring in goods, as plate, for his own use, and thus retain much valuable property exempt from taxation.” In reply to that argument, Marshall rejected the assumption that the principles then announced would grant state tax exemptions to imports that were being used or held for use by the importer. In such a case, as in a case where the importer “[breaks] up his packages, and [travels] with them as an itinerant pedlar,” he said “[T]he tax finds the article already incorporated with the mass of property by the act of the importer. He has used the privilege [i. e., of importation and sale] he had purchased, and has himself mixed them up with the common mass, and the law may treat them as it finds them. The same observations apply to plate, or other furniture used by the importer.” 12 Wheat., at 443. (Emphasis added.)
As earlier stated (Note 3), §5709.01 provides in pertinent part, “All personal property located and used in business in this state [shall be] subject to taxation . . . .” (Title 57, Page’s Ohio Rev. Code Ann., 1953, § 5709.01), and § 5701.08 (A), at the time in question, provided, in pertinent part, that:
“As used in Title LVII of the Revised Code:
“(A) Personal property is ‘used’ within the meaning of ‘used in business’. . . when stored or kept on hand as material, parts, products, or merchandise; but merchandise or agricultural products belonging to a nonresident of this state is not used in business in this state if held in a storage warehouse for storage only. . . .” Title 57, Page’s Ohio Rev. Code Ann., 1953, § 5701.08 (A). | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state or territory of the court whose decision the Supreme Court reviewed. | What is the state of the court whose decision the Supreme Court reviewed? | [
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"Iowa",
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"Louisiana",
"Maine",
"Marshall Islands",
"Maryland",
"Massachusetts",
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40
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BRANIFF AIRWAYS, INC. v. NEBRASKA STATE BOARD OF EQUALIZATION AND ASSESSMENT et al.
No. 476.
Argued March 12, 1954.
Decided June 1, 1954.
William J. Hotz, Sr. argued the cause for appellant. With him on the brief were William J. Hotz, Jr. and Roger J. Whitejord.
C. C. Sheldon, Assistant Attorney General of Nebraska, argued the cause for appellees. With him on the brief was Clarence S. Beck, Attorney General.
Me. Justice Reed
delivered the opinion of the Court.
The question presented by this appeal from the Supreme Court of Nebraska is whether the Constitution bars the State of Nebraska from levying an apportioned ad valorem tax on the flight equipment of appellant, an interstate air carrier. Appellant is not incorporated in Nebraska and does not have its principal place of business or home port registered under the Civil Aeronautics Act, 52 Stat. 973, 977, 49 U. S. C. §§ 401-705, in that state. Such flight equipment is employed as a part of a system of interstate air commerce operating over fixed routes and landing on and departing from airports within Nebraska on regular schedules. Appellant does not challenge the reasonableness of the apportionment prescribed by the taxing statute or the application of such apportionment to its property. It contends only that its flight equipment used in interstate commerce is immune from taxation by Nebraska because without situs in that state and because regulation of air navigation by the Federal Government precludes such state taxation.
This petition for a declaratory judgment of the invalidity of §§ 77-1244 to 77-1250 of the state tax statute and an injunction against the collection of taxes assessed under such provisions for previous years was filed as an original action in the court below by Mid-Continent Airlines, Inc., and tried upon stipulated facts. Subsequent to filing, but before the decision, Mid-Continent and appellant were merged on August 1, 1952, and appellant was substituted as the party plaintiff. Mid-Continent had been incorporated in Delaware with its corporate place of business in Wilmington in that state, and Braniff is incorporated in Oklahoma and has its corporate place of business in Oklahoma City. Pursuant to the merger Mid-Continent’s main executive offices were moved from Kansas City, Missouri, and merged with appellant’s in Dallas, Texas. The number of regularly scheduled stops in Nebraska, fourteen per day at Omaha and four at Lincoln, was not affected by the merger.
The home port registered with the Civil Aeronautics Authority and the overhaul base for the aircraft in question is the Minneapolis-St. Paul Airport, Minnesota. All of the aircraft not undergoing overhaul fly regular schedules upon a circuit ranging from Minot, North Dakota, to New Orleans, Louisiana, with stops in fourteen states including Minnesota, Nebraska and Oklahoma. No stops were made in Delaware. The Nebraska stops are of short duration since utilized only for the discharge and loading of passengers, mail, express, and freight, and sometimes for refueling. Appellant neither owns nor maintains facilities for repairing, reconditioning, or storing its flight equipment in Nebraska, but rents depot space and hires other services as required. The Supreme Court of Nebraska made no distinction as to taxability between those years when no flights were made into the state of domicile (Delaware) and those when flights did enter the state of new domicile (Oklahoma).
It is stipulated that the tax in question is assessed only against regularly scheduled air carriers and is not applied to carriers who operate only intermittently in the state. The statute defines “flight equipment” as “aircraft fully equipped for flight,” and provides that “any tax upon or measured by the value of flight equipment of air carriers incorporated or doing business in this state shall be assessed and collected by the Tax Commissioner.” A formula is prescribed for arriving at the proportion of a carrier’s flight equipment to be allocated to the state.
The statute uses the allocation formula of the “proposed uniform statute to provide for an equitable method of state taxation of air carriers” adopted by the Council of State Governments upon the recommendation of the National Association of Tax Administrators in 1947. Use of a uniform allocation formula to apportion air-carrier taxes among the states follows the recommendation of the Civil Aeronautics Board in its report to Congress. The Nebraska statute provides for reports, levy, and rate of tax by state average.
Required reports filed by Mid-Continent for 1950 show that about 9% of its revenue and 11%% of the total system tonnage originated in Nebraska and about 9% of its total stops were made in that state. From these figures, using the statutory formula, the Tax Commissioner arrived at a valuation of $118,901 allocable to Nebraska, resulting in a tax of $4,280.44. Since Mid-Continent filed no return for 1951 the same valuation was used and an increased rate resulted in assessment of $4,518.29. The Supreme Court of Nebraska held the statute not violative of the Commerce Clause and dismissed appellant's petition.
Appellant argues that federal statutes governing air commerce enacted under the commerce power pre-empt the field of regulation of such air commerce and preclude this tax. Congress, by the Civil Aeronautics Act of 1938, 52 Stat. 973, 977, 1028, §1107(i)(3), 49 U. S. C. § 176 (a), enacted:
“The United States of America is declared to possess and exercise complete and exclusive national sovereignty in the air space above the United States, including the air space above all inland waters and the air space above those portions of the adjacent marginal high seas, bays, and lakes, over which by international law or treaty or convention the United States exercises national jurisdiction.”
This provision originated in the Air Commerce Act of 1926, 44 Stat. 568, 572, § 6. The 1938 Act also declares “a public right of freedom of transit” for air commerce in the navigable air space to exist for any citizen of the United States. 52 Stat. 980, § 3, 49 U. S. C. § 403.
The provision pertinent to sovereignty over the navigable air space in the Air Commerce Act of 1926 was an assertion of exclusive national sovereignty. The convention between the United States and other nations respecting international civil aviation ratified August 6, 1946, 61 Stat. 1180, accords. The Act, however, did not expressly exclude the sovereign powers of the states. H. R. Rep. No. 572, 69th Cong., 1st Sess., p. 10. The Civil Aeronautics Act of 1938 gives no support to a different view. After the enactment of the Air Commerce Act, more than twenty states adopted the Uniform Aeronautics Act. It had three provisions indicating that the states did not consider their sovereignty affected by the National Act except to the extent that the states had ceded that sovereignty by constitutional grant. The recommendation of the National Conference of Commissioners on Uniform State Laws to the states to enact this Act was withdrawn in 1943. Where adopted, however, it continues in effect. See United States v. Praylou, 208 F. 2d 291. Recognizing this “exclusive national sovereignty” and right of freedom in air transit, this Court in United States v. Causby, 328 U. S. 256, 261, nevertheless held that the owner of land might recover for a taking by national use of navigable air space, resulting in destruction in whole or in part of the usefulness of the land property.
These Federal Acts regulating air commerce are bottomed on the commerce power of Congress, not on national ownership of the navigable air space, as distinguished from sovereignty. In reporting the bill which became the Air Commerce Act, it was said:
“The declaration of what constitutes navigable air space is an exercise of the same source of power, the interstate commerce clause, as that under which Congress has long declared in many acts what constitutes navigable or nonnavigable waters. The public right of flight in the navigable air space owes its source to the same constitutional basis which, under decisions of the Supreme Court, has given rise to a public easement of navigation in the navigable waters of the United States, regardless of the ownership of the adjacent or subjacent soil.” H. R. Rep. No. 572, 69th Cong., 1st Sess., p. 10.
The commerce power, since Gibbons v. Ogden, 9 Wheat. 1, 193, has comprehended navigation of streams. Its breadth covers all commercial intercourse. But the federal commerce power over navigable streams does not prevent state action consistent with that power. Gilman v. Philadelphia, 3 Wall. 713, 729. Since, over streams, Congress acts by virtue of the commerce power, the sovereignty of the state is not impaired. Oklahoma v. Atkinson Co., 313 U. S. 508, 534. The title to the beds and the banks are in the states and the riparian owners, subject to the federal power over navigation. Federal regulation of interstate land and water carriers under the commerce power has not been deemed to deny all state power to tax the property of such carriers. We conclude that existent federal air-carrier regulation does not preclude the Nebraska tax challenged here.
Nor has appellant demonstrated that the Commerce Clause otherwise bars this tax as a burden on interstate commerce. We have frequently reiterated that the Commerce Clause does not immunize interstate instru-mentalities from all state taxation, but that such commerce may be required to pay a nondiscriminatory share of the tax burden. And appellant does not allege that this Nebraska statute discriminates against it nor, as noted above, does it challenge the reasonableness of the apportionment prescribed by the statute.
The argument upon which appellant depends ultimately, however, is that its aircraft never “attained a taxable situs within Nebraska” from which it argues that the Nebraska tax imposes a burden on interstate commerce. In relying upon the Commerce Clause on this issue and in not specifically claiming protection under the Due Process Clause of the Fourteenth Amendment, appellant names the wrong constitutional clause to support its position. While the question of whether a commodity en route to market is sufficiently settled in a state for purpose of subjection to a property tax has been determined by this Court as a Commerce Clause question, the bare question whether an instrumentality of commerce has tax situs in a state for the purpose of subjection to a property tax is one of due process. However, appellant timely raised and preserved its contention that its property was not taxable because such property had attained no taxable situs in Nebraska. Though inex-plicit, we consider the due process issue within the clear intendment of such contention and hold such issue sufficiently presented. See New York ex rel. Bryant v. Zimmerman, 278 U. S. 63, 67, and cases cited; Robertson and Kirkham, Jurisdiction of the Supreme Court of the United States (Wolfson and Kurland ed.), 149 et seq.
Appellant relies upon cases involving ocean-going vessels to support its contention that its aircraft attained no tax situs in Nebraska. See, e. g., Hays v. Pacific Mail S. S. Co., 17 How. 596; Morgan v. Parham, 16 Wall. 471; Southern Pacific Co. v. Kentucky, 222 U. S. 63. The first two cases were efforts to tax the entire value of the ships as other local property, without apportionment, when they were used to plow the open seas. The last case holds the state of corporate domicile has power to tax vessels that are not taxable elsewhere. A closer analogy exists between planes flying interstate and boats that ply the inland waters. We perceive no logical basis for distinguishing the constitutional power to impose a tax on such aircraft from the power to impose taxes on river boats. Ott v. Mississippi Valley Barge Line Co., 336 U. S. 169; Standard Oil Co. v. Peck, 342 U. S. 382. The limitation imposed by the Due Process Clause upon state power to impose taxes upon such instrumentalities was succinctly stated in the Ott case: “So far as due process is concerned the only question is whether the tax in practical operation has relation to opportunities, benefits, or protection conferred or afforded by the taxing State.” 336 U. S., at 174. In Curry v. McCanless, 307 U. S. 357, the evolution of such restriction on state power was reviewed and the rule stated thusly:
“When we speak of the jurisdiction to tax land or chattels as being exclusively in the state where they are physically located, we mean no more than that the benefit and protection of laws enabling the owner to enjoy the fruits of his ownership and the power to reach effectively the interests protected, for the purpose of subjecting them to payment of a tax, are so narrowly restricted to the state in whose territory the physical property is located as to set practical limits to taxation by others.” Id., at 364.
Thus the situs issue devolves into the question of whether eighteen stops per day by appellant’s aircraft is sufficient contact with Nebraska to sustain that state’s power to levy an apportioned ad valorem tax on such aircraft. We think such regular contact is sufficient to establish Nebraska’s power to tax even though the same aircraft do not land every day and even though none of the aircraft is continuously within the state. “The basis of the jurisdiction is the habitual employment of the property within the State.” Appellant rents its ground facilities and pays for fuel it purchases in Nebraska. This leaves it in the position of other carriers such as rails, boats and motors that pay for the use of local facilities so as to have the opportunity to exploit the commerce, traffic, and trade that originates in or reaches Nebraska. Approximately one-tenth of appellant’s revenue is produced- by the pickup and discharge of Nebraska freight and passengers. Nebraska certainly affords protection during such stops and these regular landings are clearly a benefit to appellant.
Nor do we think that Nebraska’s power to levy this tax was affected by the merger of Mid-Continent with Braniff. Since “the rule which permits taxation by two or more states on an apportionment basis precludes taxation of all of the property by the state of the domicile,” Standard Oil Co. v. Peck, supra, at 384, we deem it immaterial that before the merger Mid-Continent was domiciled in Delaware, a state through which its planes did not fly, and after the merger Braniff is domiciled in Oklahoma, a state through which these aircraft make regular flights.
Appellant urges that Northwest Airlines v. Minnesota, 322 U. S. 292, precludes this tax unless that case is to be overruled. In that case Minnesota, as the domicile of the air carrier and its “home port,” was permitted to tax the entire value of the fleet ad valorem although it ranged by fixed routes through eight states. While no one view mustered a majority of this Court, it seems fair to say that without the position stated in the Conclusion and Judgment which announced the decision of this Court, the result would have been the reverse. That position was that it was not shown “that a defined part of the domiciliary corpus has acquired a permanent location, i. e., a taxing situs, elsewhere.” P. 295. That opinion recognized the “doctrine of tax apportionment for instrumentalities engaged in interstate commerce,” p. 297, but held it inapplicable because no “property (or a portion of fungible units) is permanently situated in a State other than the domiciliary State.” P. 298. When Standard Oil Co. v. Peck, 342 U. S. 382, 384, was here, the Court interpreted the Northwest Airlines case to permit states other than those of the corporate domicile to tax boats in interstate commerce on the apportionment basis in accordance with their use in the taxing state. We adhere to that interpretation.
Affirmed.
Mr. Justice Black concurs in the result.
Neb. Rev. Stat., 1943, § 77-1244 et seq.
Id., §77-1244 (3).
Id., §77-1245.
Ibid. This section provides that “The proportion of flight equipment allocated to this state for purposes of taxation shall be the arithmetical average of the following three ratios: (1) The ratio which the aircraft arrivals and departures within this state scheduled by such air carrier during the preceding calendar year bears to the total aircraft arrivals and departures within and without this state scheduled by such carrier during the same period; Provided, that in the case of nonseheduled operations all arrivals and departures shall be substituted for scheduled arrivals and departures; (2) the ratio which the revenue tons handled by such air carrier at airports within this state during the preceding calendar year bears to the total revenue tons handled by such carrier at airports within and without this state during the same period; and (3) the ratio which such air carrier’s originating revenue within this state for the preceding calendar year bears to the total originating revenue of such carrier within and without this state for the same period.”
Resolutions, The Eighth General Assembly of the States, 20 State Government 95.
Multiple Taxation of Air Commerce, H. R. Doc. No. 141, 79th Cong., 1st Sess. Recommendations by various interested groups as to the proper method of apportionment are included in that report and its appendices. See also Arditto, State and Local Taxation of Scheduled Local Airlines, 16 J. Air L. & Com. 162; Kassell, Interstate Cooperation and Airlines, 25 Taxes 302. Mr. Bulwinkle introduced bills in accordance with the recommendation of the C. A. B. report that the National Government should prescribe the method of state taxation of air carriers. The bills adopted the Council formula utilized by Nebraska. Neither was enacted. H. R. 3446, 79th Cong., 1st Sess.; H. R. 1241, 80th Cong., 1st Sess.
Neb. Rev. Stat., 1943, §§ 77-1247, 77-1249.
Mid-Continent Airlines, Inc. v. Nebraska State Board of Equalization and Assessment, 157 Neb. 425, 59 N. W. 2d 746.
That space was defined in § 10 of the Air Commerce Act and freedom for its navigation declared. This was continued by the Civil Aeronautics Act, 49 U. S. C. § 180, in “airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority.”
S. Rep. No. 1661, 75th Cong., 3d Sess.; H. R. Rep. No. 2254, 75th Cong., 3d Sess.; H. R. Conf. Rep. No. 2635, 75th Cong., 3d Sess.
11 Uniform Laws Annotated 159, 160:
“§ 2. Sovereignty in Space. — Sovereignty in the space above the lands and waters of this State is declared to rest in the State, except where granted to and assumed by the United States pursuant to a constitutional grant from the people of this State.
“§ 3. Ownership of Space. — The ownership of the space above the lands and waters of this State is declared to be vested in the several owners of the surface beneath, subject to the right of flight described in Section 4.
"§ 4. Lawfulness of Flight. — Flight in aircraft over the lands and waters of this State is lawful, unless at such a low altitude as to interfere with the then existing use to which the land or water, or the space over the land or water, is put by the owner, or unless so conducted as to be imminently dangerous to persons or property lawfully on the land or water beneath. The landing of an aircraft on the lands or waters of another, without his consent, is unlawful, except in the case of a forced landing. For damages caused by a forced landing, however, the owner or lessee of the aircraft or the aeronaut shall be liable, as provided in Section 5.”
See Conference Handbook, 1943, pp. 66-67. Efforts continue to draft an acceptable State Uniform Aeronautical Code. See Conference Handbook, 1948, p. 147.
United States v. Chandler-Dunbar Water Power Co., 229 U. S. 53, 60; United States v. Kansas City Ins. Co., 339 U. S. 799, 808; Federal Power Comm’n v. Niagara Mohawk Power Corp., 347 U. S. 239, 246 et seq.
In its original petition appellant also alleged that the Nebraska statute is invalid under § 9, cl. 6, and § 10, el. 3 of Art. I of the Constitution. While noting that such contentions were apparently “abandoned in the brief and oral argument,” the court below held such provisions of the Constitution not violated. Since appellant did not preserve such contentions in its Statement as to Jurisdiction, we do not consider such issues.
Western Live Stock v. Bureau, 303 U. S. 250, 254; Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U. S. 157, 165.
See Pullman’s Palace Car Co. v. Pennsylvania, 141 U. S. 18; Ford Motor Co. v. Beauchamp, 308 U. S. 331; Nashville, C. & St. L. R. Co. v. Browning, 310 U. S. 362; Greyhound Lines v. Mealey, 334 U. S. 653, 654, 662, 663; Ott v. Mississippi Valley Barge Line Co., 336 U. S. 169, 174; Canton R. Co. v. Rogan, 340 U. S. 511, 514-516; Multiple Taxation of Air Commerce, H. R. Doc. No. 141, 79th Cong., 1st Sess.; Arditto, State and Local Taxation of Scheduled Local Airlines, 16 J. Air L. & Com. 162; Howard, State Taxation of Airplanes in Interstate Commerce, 10 Mo. L. Rev. 195; Welch, The Taxation of Air Carriers, 11 Law & Contemp. Prob. 584; Green, The War Against the States in Aviation, 31 Ya. L. Rev. 835; Sutherland and Vinciguerra, The Octroi and the Airplane, 32 Cornell L. Q. 161; Saxe, Federal Control of the State Taxation of Airlines, 31 Cornell L. Q. 228; Ternes, Aviation Taxation, 25 Mich. S. B. J. 23; Note, 57 Harv. L. Rev. 1097.
See, e. g., Independent Warehouses v. Scheele, 331 U. S. 70, 72; Carson Petroleum Co. v. Vial, 279 U. S. 95; Champlain Realty Co. v. Brattleboro, 260 U. S. 366; General Oil Co. v. Crain, 209 U. S. 211; Coe v. Errol, 116 U. S. 517; Brown v. Houston, 114 U. S. 622; Powell, Taxation of Things in Transit, 7 Va. L. Rev. 167, 245, 429, 497.
See, e. g., Johnson Oil Rfg. Co. v. Oklahoma, 290 U. S. 158; Frick v. Pennsylvania, 268 U. S. 473; Union Refrigerator Transit Co. v. Kentucky, 199 U. S. 194; Delaware, L. & W. R. Co. v. Pennsylvania, 198 U. S. 341; 1 Beale, Conflict of Laws, 533 et seq.; Moore, Taxation of Movables and the Fourteenth Amendment, 7 Col. L. Rev. 309; Page, Jurisdiction to Tax Tangible Movables, 1945 Wis. L. Rev. 125.
While the common-law concept of situs was recognized by this Court as a limitation on state power to tax tangible personalty prior to invocation of the Fourteenth Amendment as a defense to such taxation, the bases for such decisions varied and no consistent constitutional principle was applied. Compare the following cases: Hays v. Pacific Mail S. S. Co., 17 How. 596; Morgan v. Parham, 16 Wall. 471; St. Louis v. The Ferry Co., 11 Wall. 423; Marye v. Baltimore & O. R. Co., 127 U. S. 117; Pullman’s Palace Car Co. v. Pennsylvania, 141 U. S. 18; Adams Express Co. v. Ohio State Auditor, 165 U. S. 194. See also Hartman, State Taxation of Interstate Commerce, 13, 73 et seq.
A collection of this Court’s decisions dealing with power to tax may be found in an Appendix to Miller Bros. Co. v. Maryland, 347 U. S. 340, notes 8-20.
Johnson Oil Rfg. Co. v. Oklahoma, supra, at 162. See also Pullman’s Palace Car Co. v. Pennsylvania, supra; Ott v. Mississippi Valley Barge Line Co., supra.
Subsequent to the Northwest Airlines ease, Minnesota enacted a tax statute incorporating an apportionment formula for allocation of the valuation of property of air carriers to Minnesota. Minn. Stat., 1945, §§ 270.071-270.079, as amended, Minn. Laws 1953, c. 672, §§ 2-3. | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. | What is the issue area of the decision? | [
"Criminal Procedure",
"Civil Rights",
"First Amendment",
"Due Process",
"Privacy",
"Attorneys",
"Unions",
"Economic Activity",
"Judicial Power",
"Federalism",
"Interstate Relations",
"Federal Taxation",
"Miscellaneous",
"Private Action"
] | [
7
] | sc_issuearea |
LASCARIS, COMMISSIONER, DEPARTMENT OF SOCIAL SERVICES OF ONONDAGA COUNTY v. SHIRLEY et al.
No. 73-1016.
Argued December 18, 1974
Decided March 19, 1975
Alan W. Rubenstein argued the cause for appellants in both cases. With him on the briefs for appellant in No. 73-1095 were Louis J. Lefkowitz, Attorney General of New York, and Ruth Kessler Toch, Solicitor General. Philip C. Pinsky and John B. LaParo filed a brief for appellant in No. 73-1016.
Douglas A. Eldridge argued the cause pro hac vice for appellees in both cases. With him on the brief for appellee Stuck was Isadore Greenberg.
Together with No. 73-1095, Lavine, Commissioner, Department of Social Services of New York v. Shirley et al., also on appeal to the same court.
Ronald A. Zumbrun filed a brief for the Pacific Legal Foundation as amicus curiae urging reversal in both cases. Evelle J. Younger, Attorney General, Elizabeth Palmer, Assistant Attorney General, and John J. Klee, Jr., Deputy Attorney General, filed a brief for the State of California as amicus curiae urging reversal in No. 73-1095.
Per Curiam.
After our previous remand, 409 U. S. 1052 (1972), the three-judge District Court held that amended New York Social Services Law § 101-a “engraft[ed] ... a condition on to the Congressionally prescribed initial AFDC eligibility requirements or on to the grounds for discontinuance of benefits.” 365 P. Supp. 818, 821 (1973). That condition, the court held, rendered the amended section invalid because in conflict with the Social Security Act, § 402 (a), 42 U. S. C. § 602 (a), insofar as it required recipient cooperation in a paternity or support action against an absent parent as a condition of eligibility for benefits under the program for Aid to Families with Dependent Children. On June 17, 1974, we noted probable jurisdiction of the appeals of the State and County Commissioners of Social Service, 417 U. S. 943. Since that time, however, on January 4, 1975, Pub. L. 93-647, 88 Stat. 2359, amended § 402 (a) of the Social Security Act expressly to resolve the conflict as to eligibility found by the three-judge District Court to exist between the federal and state laws. Amended §402 (a), like New York’s amended § 101-a, requires the recipient to cooperate to compel the absent parent to contribute to the support of the child.
Section 402 (a), as amended, in pertinent part provides:
“A State plan for aid and services to needy families with children must
“(26) provide that, as a condition of eligibility for aid, each applicant or recipient will be required—
“(B) to cooperate with the State (i) in establishing the paternity of a child born out of wedlock with respect to whom aid is claimed, and (ii) in obtaining support payments for such applicant and for a child with respect to whom such aid is claimed, or in obtaining any other payments or property due such applicant or such child and that, if the relative with whom a child is living is found to be ineligible because of failure to comply with the requirements of subparagraphs (A) and (B) of this paragraph, any aid for which such child is eligible will be provided in the form of protective payments as described in section 406 (b) (2) (without regard to subpara-graphs (A) through (E) of such section) . . .
We affirm the judgment of the three-judge court. Townsend v. Swank, 404 U. S. 282 (1971); Carleson v. Remillard, 406 U. S. 598 (1972). In light of the resolution of the conflict by Pub. L. 93-647, we have no occasion to prepare an extended opinion.
Affirmed.
The Chief Justice, Me. Justice Powell, and Me. Justice Rehnquist dissent.
Pub. L. 93-647 provides that § 402 (a), as amended, shall become effective on July 1, 1975. However, President Ford announced when he signed the law that he would propose changes to several sections, including the child-support provisions, during the early months of the 94th Congress, stating:
“The second element of this bill involves the collection of child support payments from absent parents. I strongly agree with the objectives of this legislation.
“In pursuit of this objective, however, certain provisions of this legislation go too far by injecting the Federal Government into domestic relations. Specifically, provisions for use of the Federal courts, the tax collection procedures of the Internal Revenue Service, and excessive audit requirements are an undesirable and unnecessary intrusion of the Federal Government into domestic relations. They are also an undesirable addition to the worldoad of the Federal courts, the IRS and the Department of Health, Education, and Welfare Audit Agency. Further, the establishment of a parent locator service in the Department of Health, Education, and Welfare with access to all Federal records raises serious privacy and administrative issues. I believe that these defects should be corrected in the next Congress, and I will propose legislation to do so.” 11 Weekly Compilation of Presidential Documents, No. 2, Jan. 13, 1975, p. 20. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the petitioner. If the petitioner is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials. | What state is associated with the petitioner? | [
"Alabama",
"Alaska",
"American Samoa",
"Arizona",
"Arkansas",
"California",
"Colorado",
"Connecticut",
"Delaware",
"District of Columbia",
"Federated States of Micronesia",
"Florida",
"Georgia",
"Guam",
"Hawaii",
"Idaho",
"Illinois",
"Indiana",
"Iowa",
"Kansas",
"Kentucky",
"Louisiana",
"Maine",
"Marshall Islands",
"Maryland",
"Massachusetts",
"Michigan",
"Minnesota",
"Mississippi",
"Missouri",
"Montana",
"Nebraska",
"Nevada",
"New Hampshire",
"New Jersey",
"New Mexico",
"New York",
"North Carolina",
"North Dakota",
"Northern Mariana Islands",
"Ohio",
"Oklahoma",
"Oregon",
"Palau",
"Pennsylvania",
"Puerto Rico",
"Rhode Island",
"South Carolina",
"South Dakota",
"Tennessee",
"Texas",
"Utah",
"Vermont",
"Virgin Islands",
"Virginia",
"Washington",
"West Virginia",
"Wisconsin",
"Wyoming",
"United States",
"Interstate Compact",
"Philippines",
"Indian",
"Dakota"
] | [
36
] | sc_petitionerstate |
BERKEMER, SHERIFF OF FRANKLIN COUNTY, OHIO v. McCARTY
No. 83-710.
Argued April 18, 1984
Decided July 2, 1984
Marshall, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, Blackmun, Powell, Rehnquist, and O’Connor, JJ., joined. Stevens, J., filed an opinion concurring in part and concurring in the judgment, post, p. 445.
Alan C. Travis argued the cause for petitioner. With him on the briefs was Stephen Michael Miller.
R. William Meeks argued the cause for respondent. With him on the brief were Paul D. Cassidy, Lawrence Herman, and Joel A. Rosenfeld.
Anthony J. Celebrezze, Jr., Attorney General, and Richard David Drake, Assistant Attorney General, filed a brief for the State of Ohio as amicus curiae urging reversal.
Jacob D. Fuchsberg and Charles S. Sims filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.
Justice Marshall
delivered the opinion of the Court.
This case presents two related questions: First, does our decision in Miranda v. Arizona, 384 U. S. 436 (1966), govern the admissibility of statements made during custodial interrogation by a suspect accused of a misdemeanor traffic offense? Second, does the roadside questioning of a motorist detained pursuant to a traffic stop constitute custodial interrogation for the purposes of the doctrine enunciated in Miranda?
I
A
The parties have stipulated to the essential facts. See App. to Pet. for Cert. A-l. On the evening of March 31, 1980, Trooper Williams of the Ohio State Highway Patrol observed respondent’s car weaving in and out of a lane on Interstate Highway 270. After following the car for two miles, Williams forced respondent to stop and asked him to get out of the vehicle. When respondent complied, Williams noticed that he was having difficulty standing. At that point, “Williams concluded that [respondent] would be charged with a traffic offense and, therefore, his freedom to leave the scene was terminated.” Id., at A-2. However, respondent was not told that he would be taken into custody. Williams then asked respondent to perform a field sobriety test, commonly known as a “balancing test.” Respondent could not do so without falling.
While still at the scene of the traffic stop, Williams asked respondent whether he had been using intoxicants. Respondent replied that “he had consumed two beers and had smoked several joints of marijuana a short time before.” Ibid. Respondent’s speech was slurred, and Williams had difficulty understanding him. Williams thereupon formally placed respondent under arrest and transported him in the patrol car to the Franklin County Jail.
At the jail, respondent was given an intoxilyzer test to determine the concentration of alcohol in his blood. The test did not detect any alcohol whatsoever in respondent’s system. Williams then resumed questioning respondent in order to obtain information for inclusion in the State Highway Patrol Alcohol Influence Report. Respondent answered affirmatively a question whether he had been drinking. When then asked if he was under the influence of alcohol, he said, “I guess, barely.” Ibid. Williams next asked respondent to indicate on the form whether the marihuana he had smoked had been treated with any chemicals. In the section of the report headed “Remarks,” respondent wrote, “No ang[el] dust or PCP in the pot. Rick McCarty.” App. 2.
At no point in this sequence of events did Williams or anyone else tell respondent that he had a right to remain silent, to consult with an attorney, and to have an attorney appointed for him if he could not afford one.
B
Respondent was charged with operating a motor vehicle while under the influence of alcohol and/or drugs in violation of Ohio Rev. Code Ann. §4511.19 (Supp. 1983). Under Ohio law, that offense is a first-degree misdemeanor and is punishable by fine or imprisonment for up to six months. § 2929.21 (1982). Incarceration for a minimum of three days is mandatory. §4511.99 (Supp. 1983).
Respondent moved to exclude the various incriminating statements he had made to Trooper Williams on the ground that introduction into evidence of those statements would violate the Fifth Amendment insofar as he had not been informed of his constitutional rights prior to his interrogation. When the trial court denied the motion, respondent pleaded “no contest” and was found guilty. He was sentenced to 90 days in jail, 80 of which were suspended, and was fined $300, $100 of which were suspended.
On appeal to the Franklin County Court of Appeals, respondent renewed his constitutional claim. Relying on a prior decision by the Ohio Supreme Court, which held that the rule announced in Miranda “is not applicable to misdemeanors,” State v. Pyle, 19 Ohio St. 2d 64, 249 N. E. 2d 826 (1969), cert. denied, 396 U. S. 1007 (1970), the Court of Appeals rejected respondent’s argument and affirmed his conviction. State v. McCarty, No. 80AP-680 (Mar. 10, 1981). The Ohio Supreme Court dismissed respondent’s appeal on the ground that it failed to present a “substantial constitutional question.” State v. McCarty, No. 81-710 (July 1, 1981).
Respondent then filed an action for a writ of habeas corpus in the District Court for the Southern District of Ohio. The District Court dismissed the petition, holding that “Miranda warnings do not have to be given prior to in custody interrogation of a suspect arrested for a traffic offense.” McCarty v. Herdman, No. C-2-81-1118 (Dec. 11, 1981).
A divided panel of the Court of Appeals for the Sixth Circuit reversed, holding that “Miranda warnings must be given to all individuals prior to custodial interrogation, whether the offense investigated be a felony or a misdemeanor traffic offense.” McCarty v. Herdman, 716 F. 2d 361, 363 (1983) (emphasis in original). In applying this principle to the facts of the case, the Court of Appeals distinguished between the statements made by respondent before and after his formal arrest. The postarrest statements, the court ruled, were plainly inadmissible; because respondent was not warned of his constitutional rights prior to or “[a]t the point that Trooper Williams took [him] to the police station,” his ensuing admissions could not be used against him. Id., at 364. The court’s treatment of respondent’s prearrest statements was less clear. It eschewed a holding that “the mere stopping of a motor vehicle triggers Miranda,” ibid., but did not expressly rule that the statements made by respondent at the scene of the traffic stop could be used against him. In the penultimate paragraph of its opinion, the court asserted that “[t]he failure to advise [respondent] of his constitutional rights rendered at least some of his statements inadmissible,” ibid, (emphasis added), suggesting that the court was uncertain as to the status of the prearrest confessions. “Because [respondent] was convicted on inadmissible evidence,” the court deemed it necessary to vacate his conviction and order the District Court to issue a writ of habeas corpus. Ibid. However, the Court of Appeals did not specify which statements, if any, could be used against respondent in a retrial.
We granted certiorari to resolve confusion in the federal and state courts regarding the applicability of our ruling in Miranda to interrogations involving minor offenses and to questioning of motorists detained pursuant to traffic stops. 464 U. S. 1038 (1984).
II
The Fifth Amendment provides: “No person . . . shall be compelled in any criminal case to be a witness against himself . . . .” It is settled that this provision governs state as well as federal criminal proceedings. Malloy v. Hogan, 378 U. S. 1, 8 (1964).
In Miranda v. Arizona, 384 U. S. 436 (1966), the Court addressed the problem of how the privilege against compelled self-incrimination guaranteed by the Fifth Amendment could be protected from the coercive pressures that can be brought to bear upon a suspect in the context of custodial interrogation. The Court held:
“[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of [a] defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” Id., at 444 (footnote omitted).
In the years since the decision in Miranda, we have frequently reaffirmed the central principle established by that case: if the police take a suspect into custody and then ask him questions without informing him of the rights enumerated above, his responses cannot be introduced into evidence to establish his guilt. See, e. g., Estelle v. Smith, 451 U. S. 454, 466-467 (1981); Rhode Island v. Innis, 446 U. S. 291, 297-298 (1980) (dictum); Orozco v. Texas, 394 U. S. 324, 326-327 (1969); Mathis v. United States, 391 U. S. 1, 3-5 (1968).
Petitioner asks us to carve an exception out of the foregoing principle. When the police arrest a person for allegedly committing a misdemeanor traffic offense and then ask him questions without telling him his constitutional rights, petitioner argues, his responses should be admissible against him. We cannot agree.
One of the principal advantages of the doctrine that suspects must be given warnings before being interrogated while in custody is the clarity of that rule.
“Miranda’s holding has the virtue of informing police and prosecutors with specificity as to what they may do in conducting custodial interrogation, and of informing courts under what circumstances statements obtained during such interrogation are not admissible. This gain in specificity, which benefits the accused and the State alike, has been thought to outweigh the burdens that the decision in Miranda imposes on law enforcement agencies and the courts by requiring the suppression of trustworthy and highly probative evidence even though the confession might be voluntary under traditional Fifth Amendment analysis.” Fare v. Michael C., 442 U. S. 707, 718 (1979).
The exception to Miranda proposed by petitioner would substantially undermine this crucial advantage of the doctrine. The police often are unaware when they arrest a person whether he may have committed a misdemeanor or a felony. Consider, for example, the reasonably common situation in which the driver of a car involved in an accident is taken into custody. Under Ohio law, both driving while under the influence of intoxicants and negligent vehicular homicide are misdemeanors, Ohio Rev. Code Ann. §§2903.07, 4511.99 (Supp. 1983), while reckless vehicular homicide is a felony, §2903.06 (Supp. 1983). When arresting a person for causing a collision, the police may not know which of these offenses he may have committed. Indeed, the nature of his offense may depend upon circumstances unknowable to the police, such as whether the suspect has previously committed a similar offense or has a criminal record of some other kind. It may even turn upon events yet to happen, such as whether a victim of the accident dies. It would be unreasonable to expect the police to make guesses as to the nature of the criminal conduct at issue before deciding how they may interrogate the suspect.
Equally importantly, the doctrinal complexities that would confront the courts if we accepted petitioner’s proposal would be Byzantine. Difficult questions quickly spring to mind: For instance, investigations into seemingly minor offenses sometimes escalate gradually into investigations into more serious matters; at what point in the evolution of an affair of this sort would the police be obliged to give Miranda warnings to a suspect in custody? What evidence would be necessary to establish that an arrest for a misdemeanor offense was merely a pretext to enable the police to interrogate the suspect (in hopes of obtaining information about a felony) without providing him the safeguards prescribed by Miranda'? The litigation necessary to resolve such matters would be time-consuming and disruptive of law enforcement. And the end result would be an elaborate set of rules, interlaced with exceptions and subtle distinctions, discriminating between different kinds of custodial interrogations. Neither the police nor criminal defendants would benefit from such a development.
Absent a compelling justification we surely would be unwilling so seriously to impair the simplicity and clarity of the holding of Miranda. Neither of the two arguments proffered by petitioner constitutes such a justification. Petitioner first contends that Miranda warnings are unnecessary when a suspect is questioned about a misdemeanor traffic offense, because the police have no reason to subject such a suspect to the sort of interrogation that most troubled the Court in Miranda. We cannot agree that the dangers of police abuse are so slight in this context. For example, the offense of driving while intoxicated is increasingly regarded in many jurisdictions as a very serious matter. Especially when the intoxicant at issue is a narcotic drug rather than alcohol, the police sometimes have difficulty obtaining evi- ' dence of this crime. Under such circumstances, the incentive for the police to try to induce the defendant to incriminate himself may well be substantial. Similar incentives are likely to be present when a person is arrested for a minor offense but the police suspect that a more serious crime may have been committed. See supra, at 431-432.
We do not suggest that there is any reason to think improper efforts were made in this case to induce respondent to make damaging admissions. More generally, we have no doubt that, in conducting most custodial interrogations of persons arrested for misdemeanor traffic offenses, the police behave responsibly and do not deliberately exert pressures upon the suspect to confess against his will. But the same might be said of custodial interrogations of persons arrested for felonies. The purposes of the safeguards prescribed by Miranda are to ensure that the police do not coerce or trick captive suspects into confessing, to relieve the “‘inherently compelling pressures’” generated by the custodial setting itself, “‘which work to undermine the individual’s will to resist,’ ” and as much as possible to free courts from the task of scrutinizing individual cases to try to determine, after the fact, whether particular confessions were voluntary. Those purposes are implicated as much by in-custody questioning of persons suspected of misdemeanors as they are by questioning of persons suspected of felonies.
Petitioner’s second argument is that law enforcement would be more expeditious and effective in the absence of a requirement that persons arrested for traffic offenses be informed of their rights. Again, we are unpersuaded. The occasions on which the police arrest and then interrogate someone suspected only of a misdemeanor traffic offense are rare. The police are already well accustomed to giving Miranda warnings to persons taken into custody. Adherence to the principle that all suspects must be given such warnings will not significantly hamper the efforts of the police to investigate crimes.
We hold therefore that a person subjected to custodial interrogation is entitled to the benefit of the procedural safeguards enunciated in Miranda, regardless of the nature or severity of the offense of which he is suspected or for which he was arrested.
The implication of this holding is that the Court of Appeals was correct in ruling that the statements made by respondent at the County Jail were inadmissible. There can be no question that respondent was “in custody” at least as of the moment he was formally placed under arrest and instructed to get into the police car. Because he was not informed of his constitutional rights at that juncture, respondent’s subsequent admissions should not have been used against him.
h — I > — ! 1 — t
To assess the admissibility of the self-incriminating statements made by respondent prior to his formal arrest, we are obliged to address a second issue concerning the scope of our decision in Miranda: whether the roadside questioning of a motorist detained pursuant to a routine traffic stop should be considered “custodial interrogation.” Respondent urges that it should, on the ground that Miranda by its terms applies whenever “a person has been taken into custody or otherwise deprived of his freedom of action in any significant way,” 384 U. S., at 444 (emphasis added); see id., at 467. Petitioner contends that a holding that every detained motorist must be advised of his rights before being questioned would constitute an unwarranted extension of the Miranda doctriné.
It must be acknowledged at the outset that a traffic stop significantly curtails the “freedom of action” of the driver and the passengers, if any, of the detained vehicle. Under the law of most States, it is a crime either to ignore a policeman’s signal to stop one’s car or, once having stopped, to drive away without permission. E. g., Ohio Rev. Code Ann. §4511.02 (1982). Certainly few motorists would feel free either to disobey a directive to pull over or to leave the scene of a traffic stop without being told they might do so. Partly for these reasons, we have long acknowledged that “stopping an automobile and detaining its occupants constitute a ‘seizure’ within the meaning of [the Fourth] Amendment], even though the purpose of the stop is limited and the resulting detention quite brief.” Delaware v. Prouse, 440 U. S. 648, 663 (1979) (citations omitted).
However, we decline to accord talismanic power to the phrase in the Miranda opinion emphasized by respondent. Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated. Thus, we must decide whether a traffic stop exerts upon a detained person pressures that sufficiently impair his free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights.
Two features of an ordinary traffic stop mitigate the danger that a person questioned will be induced “to speak where he would not otherwise do so freely,” Miranda v. Arizona, 384 U. S., at 467. First, detention of a motorist pursuant to a traffic stop is presumptively temporary and brief. The vast majority of roadside detentions last only a few minutes. A motorist’s expectations, when he sees a policeman’s fight flashing behind him, are that he will be obliged to spend a short period of time answering questions and waiting while the officer checks his license and registration, that he may then be given a citation, but that in the end he most likely will be allowed to continue on his way. In this respect, questioning incident to an ordinary traffic stop is quite different from stationhouse interrogation, which frequently is prolonged, and in which the detainee often is aware that questioning will continue until he provides his interrogators the answers they seek. See id., at 451.
Second, circumstances associated with the typical traffic stop are not such that the motorist feels completely at the mercy of the police. To be sure, the aura of authority surrounding an armed, uniformed officer and the knowledge that the officer has some discretion in deciding whether to issue a citation, in combination, exert some pressure on the detainee to respond to questions. But other aspects of the situation substantially offset these forces. Perhaps most importantly, the typical traffic stop is public, at least to some degree. Passersby, on foot or in other cars, witness the interaction of officer and motorist. This exposure to public view both reduces the ability of an unscrupulous policeman to use illegitimate means to elicit self-incriminating statements and diminishes the motorist’s fear that, if he does not cooperate, he will be subjected to abuse. The fact that the detained motorist typically is confronted by only one or at most two policemen further mutes his sense of vulnerability. In short, the atmosphere surrounding an ordinary traffic stop is substantially less “police dominated” than that surrounding the kinds of interrogation at issue in Miranda itself, see 384 U. S., at 445, 491-498, and in the subsequent cases in which we have applied Miranda.
In both of these respects, the usual traffic stop is more analogous to a so-called “Terry stop,” see Terry v. Ohio, 392 U. S. 1 (1968), than to a formal arrest. Under the Fourth Amendment, we have held, a policeman who lacks probable cause but whose “observations lead him reasonably to suspect” that a particular person has committed, is committing, or is about to commit a crime, may detain that person briefly in order to “investigate the circumstances that provoke suspicion.” United States v. Brignoni-Ponce, 422 U. S. 873, 881 (1975). “[T]he stop and inquiry must be ‘reasonably related in scope to the justification for their initiation.’” Ibid, (quoting Terry v. Ohio, supra, at 29.) Typically, this means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions. But the detainee is not obliged to respond. And, unless the detainee’s answers provide the officer with probable cause to arrest him, he must then be released. The comparatively nonthreatening character of detentions of this sort explains the absence of any suggestion in our opinions that Terry stops are subject to the dictates of Miranda. The similarly noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not “in custody” for the purposes of Miranda.
Respondent contends that to “exempt” traffic stops from the coverage of Miranda will open the way to widespread abuse. Policemen will simply delay formally arresting detained motorists, and will subject them to sustained and intimidating interrogation at the scene of their initial detention. Cf. State v. Roberti, 293 Ore. 59, 95, 644 P. 2d 1104, 1125 (1982) (Linde, J., dissenting) (predicting the emergence of a rule that “a person has not been significantly deprived of freedom of action for Miranda purposes as long as he is in his own car, even if it is surrounded by several patrol cars and officers with drawn weapons”), withdrawn on rehearing, 293 Ore. 236, 646 P. 2d 1341 (1982), cert. pending, No. 82-315. The net result, respondent contends, will be a serious threat to the rights that the Miranda doctrine is designed to protect.
We are confident that the state of affairs projected by respondent will not come to pass. It is settled that the safeguards prescribed by Miranda become applicable as soon as a suspect’s freedom of action is curtailed to a “degree associated with formal arrest.” California v. Beheler, 463 U. S. 1121, 1125 (1983) (per curiam). If a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him “in custody” for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda. See Oregon v. Mathiason, 429 U. S. 492, 495 (1977) (per curiam).
Admittedly, our adherence to the doctrine just recounted will mean that the police and lower courts will continue occasionally to have difficulty deciding exactly when a suspect has been taken into custody. Either a rule that Miranda applies to all traffic stops or a rule that a suspect need not be advised of his rights until he is formally placed under arrest would provide a clearer, more easily administered line. However, each of these two alternatives has drawbacks that make it unacceptable. The first would substantially impede the enforcement of the Nation’s traffic laws — by compelling the police either to take the time to warn all detained motorists of their constitutional rights or to forgo use of self-incriminating statements made by those motorists — while doing little to protect citizens’ Fifth Amendment rights. The second would enable the police to circumvent the constraints on custodial interrogations established by Miranda.
Turning to the case before us, we find nothing in the record that indicates that respondent should have been given Miranda warnings at any point prior to the time Trooper Williams placed him under arrest. For the reasons indicated above, we reject the contention that the initial stop of respondent’s car, by itself, rendered him “in custody.” And respondent has failed to demonstrate that, at any time between the initial stop and the arrest, he was subjected to restraints comparable to those associated with a formal arrest. Only a short period of time elapsed between the stop and the arrest. At no point during that interval was respondent informed that his detention would not be temporary. Although Trooper Williams apparently decided as soon as respondent stepped out of his car that respondent would be taken into custody and charged with a traffic offense, Williams never communicated his intention to respondent. A policeman’s unarticulated plan has no bearing on the question whether a suspect was “in custody” at a particular time; the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation. Nor do other aspects of the interaction of Williams and respondent support the contention that respondent was exposed to “custodial interrogation” at the scene of the stop. From aught that appears in the stipulation of facts, a single police officer asked respondent a modest number of questions and requested him to perform a simple balancing test at a location visible to passing motorists. Treatment of this sort cannot fairly be characterized as the functional equivalent of formal arrest.
We conclude, in short, that respondent was not taken into custody for the purposes of Miranda until Williams arrested him. Consequently, the statements respondent made prior to that point were admissible against him.
IV
We are left with the question of the appropriate remedy. In his brief, petitioner contends that, if we agree with the Court of Appeals that respondent’s postarrest statements should have been suppressed but conclude that respondent’s prearrest statements were admissible, we should reverse the Court of Appeals’ judgment on the ground that the state trial court’s erroneous refusal to exclude the postarrest admissions constituted “harmless error” within the meaning of Chapman v. California, 386 U. S. 18 (1967). Relying on Milton v. Wainwright, 407 U. S. 371 (1972), petitioner argues that the statements made by respondent at the police station “were merely recitations of what respondent had already admitted at the scene of the traffic arrest” and therefore were unnecessary to his conviction. Brief for Petitioner 25. We reject this proposed disposition of the case for three cumulative reasons.
First, the issue of harmless error was not presented to any of the Ohio courts, to the District Court, or to the Court of Appeals. Though, when reviewing a judgment of a federal court, we have jurisdiction to consider an issue not raised below, see Carlson v. Green, 446 U. S. 14, 17, n. 2 (1980), we are generally reluctant to do so, Adickes v. S. H. Kress & Co., 398 U. S. 144, 147, n. 2 (1970).
Second, the admissions respondent made at the scene of the traffic stop and the statements he made at the police station were not identical. Most importantly, though respondent at the scene admitted having recently drunk beer and smoked marihuana, not until questioned at the station did he acknowledge being under the influence of intoxicants, an essential element of the crime for which he was convicted. This fact assumes significance in view of the failure of the intoxilyzer test to discern any alcohol in his blood.
Third, the case arises in a procedural posture that makes the use of harmless-error analysis especially difficult. This is not a case in which a defendant, after denial of a suppression motion, is given a full trial resulting in his conviction. Rather, after the trial court ruled that all of respondent’s self-incriminating statements were admissible, respondent elected not to contest the prosecution’s case against him, while preserving his objection to the denial of his pretrial motion. As a result, respondent has not yet had an opportunity to try to impeach the State’s evidence or to present evidence of his own. For example; respondent alleges that, at the time of his arrest, he had an injured back and a limp and that those ailments accounted for his difficulty getting out of the car and performing the balancing test; because he pleaded “no contest,” he never had a chance to make that argument to a jury. It is difficult enough, on the basis of a complete record of a trial and the parties’ contentions regarding the relative importance of each portion of the evidence presented, to determine whether the erroneous admission of particular material affected the outcome. Without the benefit of such a record in this case, we decline to rule that the trial court’s refusal to suppress respondent’s postarrest statements “was harmless beyond a reasonable doubt.” See Chapman v. California, 386 U. S., at 24.
Accordingly, the judgment of the Court of Appeals is
Affirmed.
For a description of the technology associated with the intoxilyzer test, see California v. Trombetta, 467 U. S. 479, 481-482 (1984).
Ohio Rev. Code Ann. §2937.07 (1982) provides, in pertinent part: “If the plea be ‘no contest’ or words of similar import in pleading to a misdemeanor, it shall constitute a stipulation that the judge or magistrate may-make [a] finding of guilty or not guilty from the explanation of circumstances, and if guilt be found, impose or continue for sentence accordingly.”
Ohio Rule of Criminal Procedure 12(H) provides: “The plea of no contest does not preclude a defendant from asserting upon appeal that the trial court prejudicially erred in ruling on a pretrial motion, including a pretrial motion to suppress evidence.”
On respondent’s motion, the state trial court stayed execution of respondent’s sentence pending the outcome of his application for a writ of habeas corpus. State v. McCarty, No. 80-TF-C-123915 (Franklin County Mun. Ct., July 28, 1981).
In differentiating respondent’s various admissions, the Court of Appeals accorded no significance to the parties’ stipulation that respondent’s “freedom to leave the scene was terminated” at the moment Trooper Williams formed an intent to arrest respondent. The court reasoned that a “‘reasonable man’ test,” not a subjective standard, should control the determination of when a suspect is taken into custody for the purposes of Miranda. McCarty v. Herdman, 716 F. 2d, at 362, n. 1 (quoting Lowe v. United States, 407 F. 2d 1391, 1397 (CA9 1969)).
Judge Wellford, dissenting, observed: “As I read the opinion, the majority finds that McCarty was not in custody until he was formally placed under arrest.” 716 F. 2d, at 364. The majority neither accepted nor disavowed this interpretation of its ruling.
Judge Wellford’s dissent was premised on his view that the incriminating statements made by respondent after he was formally taken into custody were “essentially repetitious” of the statements he made before his arrest. Reasoning that the prearrest statements were admissible, Judge Wellford argued that the trial court’s failure to suppress the postarrest statements was “harmless error.” Id., at 365.
In Clay v. Riddle, 541 F. 2d 456 (1976), the Court of Appeals for the Fourth Circuit held that persons arrested for traffic offenses need not be given Miranda warnings. Id., at 457. Several state courts have taken similar positions. See State v. Bliss, 238 A. 2d 848, 850 (Del. 1968); County of Dade v. Callahan, 259 So. 2d 504, 507 (Fla. App. 1971), cert. denied, 265 So. 2d 50 (Fla. 1972); State v. Gabrielson, 192 N. W. 2d 792, 796 (Iowa 1971), cert. denied, 409 U. S. 912 (1972); State v. Angelo, 251 La. 250, 254-255, 203 So. 2d 710, 711-717 (1967); State v. Neal, 476 S. W. 2d 547, 553 (Mo. 1972); State v. Macuk, 57 N. J. 1, 15-16, 268 A. 2d 1, 9 (1970). Other state courts have refused to limit in this fashion the reach of Miranda. See Campbell v. Superior Court, 106 Ariz. 542, 552, 479 P. 2d 685, 695 (1971); Commonwealth v. Brennan, 386 Mass. 772, 775, 438 N. E. 2d 60, 63 (1982); State v. Kinn, 288 Minn. 31, 35, 178 N. W. 2d 888, 891 (1970); State v. Lawson, 285 N. C. 320, 327-328, 204 S. E. 2d 843, 848 (1974); State v. Fields, 294 N. W. 2d 404, 409 (N. D. 1980) (Miranda applicable at least to “more serious [traffic] offense[s] such as driving while intoxicated”); State v. Buchholz, 11 Ohio St. 3d 24, 28, 462 N. E. 2d 1222, 1226 (1984) (overruling State v. Pyle, 19 Ohio St. 2d 64, 249 N. E. 2d 826 (1969), cert. denied, 396 U. S. 1007 (1970), and holding that “Miranda warnings must be given prior to any custodial interrogation regardless of whether the individual is suspected of committing a felony or misdemeanor”); State v. Roberti, 293 Ore. 59, 644 P. 2d 1104, on rehearing, 293 Ore. 236, 646 P. 2d 1341 (1982), cert. pending, No. 82-315; Commonwealth v. Meyer, 488 Pa. 297, 305-306, 412 A. 2d 517, 521 (1980); Holman v. Cox, 598 P. 2d 1331, 1333 (Utah 1979); State v. Darnell, 8 Wash. App. 627, 628, 508 P. 2d 613, 615, cert. denied, 414 U. S. 1112 (1973). 8
The lower courts have dealt with the problem of roadside questioning in a wide variety of ways. For a spectrum of positions, see State v. Tellez, 6 Ariz. App. 251, 256, 431 P. 2d 691, 696 (1967) (.Miranda warnings must be given as soon as the policeman has “reasonable grounds” to believe the detained motorist has committed an offense); Newberry v. State, 552 S. W. 2d 457, 461 (Tex. Crim. App. 1977) (Miranda applies when there is probable cause to arrest the driver and the policeman “consider[s the driver] to be in custody and would not... let him leave”); State v. Roberti, 293 Ore., at 236, 646 P. 2d, at 1341 (Miranda applies as soon as the officer forms an intention to arrest the motorist); People v. Ramirez, 199 Colo. 367, 372, n. 5, 609 P. 2d 616, 618, n. 5 (1980) (en banc); State v. Darnell, supra, at 629-630, 508 P. 2d, at 615 (driver is “in custody” for Miranda purposes at least by the time he is asked to take a field sobriety test); Commonwealth v. Meyer, supra, at 307, 412 A. 2d, at 521-522 (warnings are required as soon as the motorist “reasonably believes his freedom of action is being restricted”); Lowe v. United States, supra, at 1394, 1396; State v. Sykes, 285 N. C. 202, 205-206, 203 S. E. 2d 849, 850 (1974) (Miranda is inapplicable to a traffic stop until the motorist is subjected to formal arrest or the functional equivalent thereof); Allen v. United States, 129 U. S. App. D. C. 61, 63-64, 390 F. 2d 476, 478-479 (“[S]ome inquiry can be made [without giving Miranda warnings] as part of an investigation notwithstanding limited and brief restraints by the police in their effort to screen crimes from relatively routine mishaps”), modified, 131 U. S. App. D. C. 358, 404 F. 2d 1335 (1968); Holman v. Cox, supra, at 1333 (Miranda applies upon formal arrest).
In Harris v. New York, 401 U. S. 222 (1971), the Court did sanction use of statements obtained in violation of Miranda to impeach the defendant who had made them. The Court was careful to note, however, that the jury had been instructed to consider the statements “only in passing on [the defendant’s] credibility and not as evidence of guilt.” 401 U. S., at 223.
The one exception to this consistent line of decisions is New York v. Quarles, 467 U. S. 649 (1984). The Court held in that case that, when the police arrest a suspect under circumstances presenting an imminent danger to the public safety, they may without informing him of his constitutional rights ask questions essential to elicit information necessary to neutralize the threat to the public. Once such information has' been obtained, the suspect must be given the standard warnings.
Not all of petitioner’s formulations of his proposal are consistent. At some points in his brief and at oral argument, petitioner appeared to advocate an exception solely for drunken-driving charges; at other points, he seemed to favor a line between felonies and misdemeanors. Because all of these suggestions suffer from similar infirmities, we do not differentiate among them in the ensuing discussion.
Thus, under Ohio law, while a first offense of negligent vehicular homicide is a misdemeanor, a second offense is a felony. Ohio Rev. Code Ann. § 2903.07 (Supp. 1983). In some jurisdictions, a certain number of convictions for drunken driving triggers a quantum jump in the status of the crime. In South Dakota, for instance, first and second offenses for driving while intoxicated are misdemeanors, but a third offense is a felony. See Solem v. Helm, 463 U. S. 277, 280, n. 4 (1983).
Cf. Welsh v. Wisconsin, 466 U. S. 740, 761 (1984) (White, J., dissenting) (observing that officers in the field frequently “have neither the time nor the competence to determine” the severity of the offense for which they are considering arresting a person).
It might be argued that the police would not need to make such guesses; whenever in doubt, they could ensure compliance with the law by giving the full Miranda warnings. It cannot be doubted, however, that in some cases a desire to induce a suspect to reveal information he might withhold if informed of his rights would induce the police not to take the cautious course.
See, e. g., United States v. Schultz, 442 F. Supp. 176 (Md. 1977) (investigation of erratic driving developed into inquiry into narcotics offenses and terminated in a charge of possession of a sawed-off shotgun); United States v. Hatchel, 329 F. Supp. 113 (Mass. 1971) (investigation into offense of driving the wrong way on a one-way street yielded a charge of possession of a stolen car).
Cf. United States v. Robinson, 414 U. S. 218, 221, n. 1 (1973); id., at 238, n. 2 (Powell, J., concurring) (discussing the problem of determining if a traffic arrest was used as a pretext to legitimate a warrantless search for narcotics).
Cf. New York v. Quarles, 467 U. S., at 663-664 (O’Connor, J., concurring in judgment in part and dissenting in part).
See Brief for State of Ohio as Amicus Curiae 18-21 (discussing the “National Epidemic Of Impaired Drivers” and the importance of stemming it); cf. South Dakota v. Neville, 459 U. S. 553, 558-559 (1983); Perez v. Campbell, 402 U. S. 637, 657, 672 (1971) (Blackmun, J., concurring in part and dissenting in part).
See Rhode Island v. Innis, 446 U. S. 291, 299, 301 (1980); Miranda v. Arizona, 384 U. S. 436, 445-458 (1966).
Minnesota v. Murphy, 465 U. S. 420, 430 (1984) (quoting Miranda v. Arizona, supra, at 467); see Estelle v. Smith, 451 U. S. 454, 467 (1981); United States v. Washington, 431 U. S. 181, 187, n. 5 (1977).
Cf. Developments in the Law — Confessions, 79 Harv. L. Rev. 935, 954-984 (1966) (describing the difficulties encountered by state and federal courts, during the period preceding the decision in Miranda, in trying to distinguish voluntary from involuntary confessions).
We do not suggest that compliance with Miranda conclusively establishes the voluntariness of a subsequent confession. But cases in which a defendant can make a colorable argument that a self-incriminating statement was “compelled” despite the fact that the law enforcement authorities adhered to the dictates of Miranda are rare.
The parties urge us to answer two questions concerning the precise scope of the safeguards required in circumstances of the sort involved in this case. First, we are asked to consider what a State must do in order to demonstrate that a suspect who might have been under the influence of drugs or alcohol when subjected to custodial interrogation nevertheless understood and freely waived his constitutional rights. Second, it is suggested that we decide whether an indigent suspect has a right, under the Fifth Amendment, to have an attorney appointed to advise him regarding his responses to custodial interrogation when the alleged offense about which he is being questioned is sufficiently minor that he would not have a right, under the Sixth Amendment, to the assistance of appointed counsel at trial, see Scott v. Illinois, 440 U. S. 367 (1979). We prefer to defer resolution of such matters to a case in which law enforcement authorities have at least attempted to inform the suspect of rights to which he is indisputably entitled.
In his brief, respondent hesitates to embrace this proposition fully, advocating instead a more limited rule under which questioning of a suspect detained pursuant to a traffic stop would be deemed “custodial interrogation” if and only if the police officer had probable cause to arrest the motorist for a crime. See Brief for Respondent 39-40, 46. This ostensibly more modest proposal has little to recommend it. The threat to a citizen’s Fifth Amendment rights that Miranda was designed to neutralize has little to do with the strength of an interrogating officer’s suspicions. And, by requiring a policeman conversing with a motorist constantly to monitor the information available to him to determine when it becomes sufficient to establish probable cause, the rule proposed by respondent would be extremely difficult to administer. Accordingly, we confine our attention below to respondent’s stronger argument: that all traffic stops are subject to the dictates of Miranda.
It might be argued that, insofar as the Court of Appeals expressly held inadmissible only the statements made by respondent after his formal arrest, and respondent has not filed a cross-petition, respondent is dis-entitled at this juncture to assert that Miranda warnings must be given to a detained motorist who has not been arrested. See, e. g., United States v. Reliable Transfer Co., 421 U. S. 397, 401, n. 2 (1975). However, three considerations, in combination, prompt us to consider the question highlighted by respondent. First, as indicated above, the Court of Appeals’ judgment regarding the time at which Miranda became applicable is ambiguous; some of the court’s statements cast doubt upon the admissibility of respondent’s prearrest statements. See swpra, at 425-426. Without undue strain, the position taken by respondent before this Court thus might be characterized as an argument in support of the judgment below, which respondent is entitled to make. Second, the relevance of Miranda to the questioning of a motorist detained pursuant to a traffic stop is an issue that plainly warrants our attention, and with regard to which the lower courts are in need of guidance. Third and perhaps most importantly, both parties have briefed and argued the question. Under these circumstances, we decline to interpret and apply strictly the rule that we will not address an argument advanced by a respondent that would enlarge his rights under a judgment, unless he has filed a cross-petition for certiorari.
Examples of similar provisions in other States are: Ariz. Rev. Stat. Ann. §§28-622, 28-622.01 (1976 and Supp. 1983-1984); Cal. Veh. Code Ann. §§2800, 2800.1 (West Supp. 1984); Del. Code Ann., Tit. 21, §4103 (1979); Fla. Stat. §316.1935 (Supp. 1984); Ill. Rev. Stat., ch. 95%, ¶ 11-204 (1983); N. Y. Veh. & Traf. Law § 1102 (McKinney Supp. 1983-1984); Nev. Rev. Stat. §484.348(1) (1983); 75 Pa. Cons. Stat. § 3733(a) (1977); Wash. Rev. Code §46.61.020 (1983).
Indeed, petitioner frankly admits that “[n]o reasonable person would feel that he was free to ignore the visible and audible signal of a traffic safety enforcement officer .... Moreover, it is nothing short of sophistic to state that a motorist ordered by a police officer to step out of his vehicle would reasonably] or prudently believe that he was at liberty to ignore that command.” Brief for Petitioner 16-17.
State laws governing when a motorist detained pursuant to a traffic stop may or must be issued a citation instead of taken into custody vary significantly, see Y. Kamisar, W. LaFave, & J. Israel, Modern Criminal Procedure 402, n. a (5th ed. 1980), but no State requires that a detained motorist be arrested unless he is accused of a specified serious crime, refuses to promise to appear in court, or demands to be taken before a magistrate. For a representative sample of these provisions, see Ariz. Rev. Stat. Ann. §§28-1053, 28-1054 (1976); Ga. Code Ann. §40-13-53 (Supp. 1983); Kan. Stat. Ann. §§8-2105, 8-2106 (1982); Nev. Rev. Stat. §§484.793, 484.795, 484.797, 484.799, 484.805 (1983); Ore. Rev. Stat. § 484.353 (1983); S. D. Codified Laws § 32-33-2 (Supp. 1983); Tex. Rev. Civ. Stat. Ann., Art. 6701d, §§147, 148 (Vernon 1977); Va. Code §46.1-178 (Supp. 1983). Cf. National Committee on Uniform Traffic Laws and Ordinances, Uniform Vehicle Code and Model Traffic Ordinance §§ 16-203 — 16-206 (Supp. 1979) (advocating mandatory release on citation of all drivers except those charged with specified offenses, those who fail to furnish satisfactory self-identification, and those as to whom the officer has “reasonable and probable grounds to believe . . . will disregard a written promise to appear in court”).
The brevity and spontaneity of an ordinary traffic stop also reduces the danger that the driver through subterfuge will be made to incriminate himself. One of the investigative techniques that Miranda was designed to guard against was the use by police of various kinds of trickery — such as “Mutt and Jeff” routines — to elicit confessions from suspects. See 384 U. S., at 448-455. A police officer who stops a suspect on the highway has little chance to develop or implement a plan of this sort. Cf. LaFave, “Street Encounters” and the Constitution: Terry, Sibron, Peters, and Beyond, 67 Mich. L. Rev. 39, 99 (1968).
See Orozco v. Texas, 394 U. S. 324, 325 (1969) (suspect arrested and questioned in his bedroom by four police officers); Mathis v. United States, 391U. S. 1, 2-3 (1968) (defendant questioned by a Government agent while in jail).
No more is implied by this analogy than that most traffic stops resemble, in duration and atmosphere, the kind of brief detention authorized in Terry. We of course do not suggest that a traffic stop supported by probable cause may not exceed the bounds set by the Fourth Amendment on the scope of a Terry stop.
Nothing in this opinion is intended to refine the constraints imposed by the Fourth Amendment on the duration of such detentions. Cf. Sharpe v. United States, 712 F. 2d 65 (CA4 1983), cert. granted, 467 U. S. 1250 (1984).
Cf. Adams v. Williams, 407 U. S. 143, 148 (1972).
Cf. Terry v. Ohio, 392 U. S., at 34 (White, J., concurring).
Contrast the minor burdens on law enforcement and significant protection of citizens’ rights effected by our holding that Miranda governs custodial interrogation of persons accused of misdemeanor traffic offenses. See supra, at 432-434.
Cf. Commonwealth v. Meyer, 488 Pa., at 301, 307, 412 A. 2d, at 518-519, 522 (driver who was detained for over one-half hour, part of the time in a patrol car, held to have been in custody for the purposes of Miranda by the time he was questioned concerning the circumstances of an accident).
Cf. Beckwith v. United States, 425 U. S. 341, 346-347 (1976) (“ ‘It was the compulsive aspect of custodial interrogation, and not the strength or content of the government’s suspicions at the time the questioning was conducted, which led the Court to impose the Miranda requirements with regard to custodial questioning’ ”) (quoting United States v. Caiello, 420 F. 2d 471, 473 (CA2 1969)); People v. P., 21 N. Y. 2d 1, 9-10, 233 N. E. 2d 255, 260 (1967) (an objective, reasonable-man test is appropriate because, unlike a subjective test, it “is not solely dependent either on the self-serving declarations of the police officers or the defendant nor does it place upon the police the burden of anticipating the frailties or idiosyncracies of every person whom they question”).
Cf. United States v. Schultz, 442 F. Supp., at 180 (suspect who was stopped for erratic driving, subjected to persistent questioning in the squad car about drinking alcohol and smoking marihuana, and denied permission to contact his mother held to have been in custody for the purposes of Miranda by the time he confessed to possession of a sawed-off shotgun).
Judge Wellford, dissenting in the Court of Appeals, did address the issue of harmless error, see n. 6, supra, but without the benefit of briefing by the parties. The majority of the panel of the Court of Appeals did not consider the question.
Nor did petitioner mention harmless error in his petition to this Court. Absent unusual circumstances, cf. n. 23, supra, we are chary of considering issues not presented in petitions for certiorari. See this Court’s Rule 21.1(a) (“Only the questions set forth in the petition or fairly included therein will be considered by the Court”).
This case is thus not comparable to Milton v. Wainwright, 407 U. S. 371 (1972), in which a confession presumed to be inadmissible contained no information not already provided by three admissible confessions. See id., at 375-376.
Because we do not rule that the trial court’s error was harmless, we need not decide whether harmless-error analysis is even applicable to a case of this sort.
Under Ohio law, respondent had a right to pursue such a course. See n. 2, supra.
Indeed, respondent points out that he told Trooper Williams of these ailments at the time of his arrest, and their existence was duly noted in the Alcohol Influence Report. See App. 2. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari. | What reason, if any, does the court give for granting the petition for certiorari? | [
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"putative conflict",
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"state court confusion or uncertainty",
"federal court and state court confusion or uncertainty",
"to resolve important or significant question",
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"no reason given",
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8
] | sc_certreason |
LEMON et al. v. KURTZMAN, SUPERINTENDENT OF PUBLIC INSTRUCTION OF PENNSYLVANIA, et al.
No. 71-1470.
Argued November 8, 1972
Decided April 2, 1973
Mr. Justice White concurred in the judgment.
Burger, C. J., announced the judgment of the Court and an opinion in which Blackmun, Powell, and Rehnquist, JJ., joined. White, J., concurred in the judgment. Douglas, J., filed a dissenting opinion, in which Brennan and Stewart, JJ., joined, post, p. 209. Marshall, J., took no part in the consideration or decision of the ease.
David P. Bruton argued the cause for appellants. With him on the briefs were Melvin L. Wulf, Sanford J. Rosen, and Franklin C. Salisbury.
William B. Ball argued the cause for appellees. With him on the brief for appellee Commonwealth of Pennsylvania were J. Shane Creamer, Attorney General, Samuel Rappaport, Joseph G. Skelly, James E. Gallagher, Jr., C. Clark Hodgson, Jr., and William D. Valente. Henry T. Reath filed a brief for appellee Pennsylvania Association of Independent Schools.
Mr. Chief Justice Burger
announced the judgment of the Court and an opinion in which Mr. Justice Black-mun, Mr. Justice Powell, and Mr. Justice Rehnquist join.
On June 28, 1971, we held that the Pennsylvania statutory program to reimburse nonpublic sectarian schools for certain secular educational services violated the Establishment Clause of the First Amendment. The case was remanded to the three-judge District Court for further proceedings consistent with our opinion. Lemon v. Kurtzman, 403 U. S. 602 (1971) (Lemon I). On remand, the District Court entered summary judgment in favor of appellants and enjoined payment, under Act 109, of any state funds to nonpublic sectarian schools for educational services performed after June 28, 1971. The District Court’s order permitted the State to reimburse nonpublic sectarian schools for services provided before our decision in Lemon I. Appellants made no claim that appellees refund all sums paid under the Pennsylvania statute struck down in Lemon I.
Appellants, the successful plaintiffs of Lemon I, now challenge the limited scope of the District Court’s injunction. Specifically, they assert that the District Court erred in refusing to enjoin payment of some $24 million set aside by Pennsylvania to compensate nonpublic sectarian schools for educational services rendered by them during the 1970-1971 school year. We noted probable jurisdiction, 406 U. S. 943 (1972), and we affirm the judgment of the District Court.
(1)
The specifics of the Pennsylvania statutory scheme held unconstitutional in Lemon I need be recalled only briefly. Under Act 109, the participating nonpublic schools of Pennsylvania were to be reimbursed by the State for certain educational services provided by the schools pursuant to purchase-of-service contracts with the State. According to the terms of the contracts, the schools were to provide teachers, textbooks, and instructional materials for mathematics, modern foreign language, physical science, and physical education courses— “secular” courses of instruction. The State was not only to compensate the schools for the services provided, but also to undertake continuing surveillance of the instructional programs to insure that the services purchased were not provided in connection with “any subject matter expressing religious teaching, or the morals or forms of worship of any sect.” See Lemon I, supra, at 609-610.
Under § 5607 of the Act, any nonpublic school seeking reimbursement was to “maintain such accounting procedures, including maintenance of separate funds and accounts pertaining to the cost of secular educational service, as to establish that it actually expended in support of such service an amount of money equal to the amount of money sought in reimbursement.” To this end, the school accounts were to be subject to audit by the State Auditor General. Actual payment was to be made by the Superintendent of Public Instruction “in four equal installments payable on the first day of September, December, March and June of the school term following the school term in which the secular educational service was rendered.” (Emphasis supplied.)
In Lemon I, we held that, although Act 109 had a secular legislative purpose, the Act fostered “excessive entanglement” of church schools and State through the requirement of ongoing state scrutiny of the educational programs of sectarian schools, the statutory post-audit procedures, and potential involvement in the political process. We found it unnecessary to decide whether Act 109 was constitutionally infirm on the additional ground that the “primary effect” of any state payments to church-related schools would be to promote the cause of religion in contravention of the Establishment Clause of the First Amendment.
(2)
Against this backdrop, we turn to the events relevant to this appeal. On June 19, 1968, Act 109 became law. Approximately one month later, appellants publicly declared their intention of challenging the constitutionality of the new legislation. During the following six months, the State took steps to implement the Act, promulgating regulations and, in January 1969, entering for the first time into service contracts for the 1968-1969 school year (then in progress) with approximately 1,181 nonpublic schools throughout Pennsylvania. The schools submitted schedules in June 1969, at the conclusion of the 1968-1969 school year, specifying the precise items of expense during that year for which they would seek reimbursement, to be made during the 1969-1970 school year. On June 3, 1969, appellants filed their complaint, asking that Act 109 be declared unconstitutional and its enforcement enjoined.
Simultaneously with their 1969 complaint, appellants filed a motion for a preliminary injunction to restrain the responsible state officials from “paying or processing for paying any funds pursuant to [Act 109].” However, appellants abandoned the request for preliminary relief in a letter of August 28, 1969, from their counsel to Judge Troutman. Appellants, describing their position as a “sensible recognition of the practical realities of the situation, . . . withdrew from any attempt to prevent initial payment to the nonpublic schools scheduled for September 2 [1969].” In the same letter, appellants’ counsel mentioned the payments scheduled for December 2, 1969, but in fact no attempt was ever made to enjoin those reimbursements.
On November 29,1969, a divided District Court granted appellees’ motion to dismiss appellants’ complaint for failure to state a claim on which relief could be granted. Appellants filed a notice of appeal to this Court on December 17, 1969; at no time before or after probable jurisdiction was noted on April 20, 1970, did appellants move for interlocutory relief pending appeal, even though on January 15, 1970, the schools entered into service contracts with the State for the 1969-1970 school year. Consequently, the District Court had no occasion to consider the exercise of injunctive power pendente lite.
In September 1970, the schools began performing services for the 1970-1971 school year, compensable under the terms of Act 109; and on January 15, 1971, contracts were entered into for that school year. On June 28,1971, we held Act 109 unconstitutional and remanded the cause to the District Court for further proceedings consistent with our opinion. Not until appellants filed their motion for summary judgment, in August 1971, did they first indicate their intention to prevent reimbursement under Act 109 for the services already provided by the schools during the 1970-1971 school year.
(3)
Claims that a particular holding of the Court should be applied retroactively have been pressed on us frequently in recent years. Most often, we have been called upon to decide whether a decision defining new constitutional rights of a defendant in a criminal case should be applied to convictions of others that predated the new constitutional development. E. g., Robinson v. Neil, 409 U. S. 505 (1973); Adams v. Illinois, 405 U. S. 278 (1972); Desist v. United States, 394 U. S. 244 (1969); Stovall v. Denno, 388 U. S. 293 (1967); Johnson v. New Jersey, 384 U. S. 719 (1966); Tehan v. Shott, 382 U. S. 406 (1966); Linkletter v. Walker, 381 U. S. 618 (1965). But “in the last few decades, we have recognized the doctrine of nonretroactivity outside the criminal area many times, in both constitutional and nonconstitutional cases.” Chevron Oil Co. v. Huson, 404 U. S. 97, 106 (1971); Hanover Shoe v. United Shoe Machinery Corp., 392 U. S. 481 (1968); Simpson v. Union Oil Co., 377 U. S. 13 (1964); England v. State Board of Medical Examiners, 375 U. S. 411 (1964). We have approved nonretroactive relief in civil litigation, relating, for ex-ampié, to the validity of municipal financing founded upon electoral procedures later declared unconstitutional, Cipriano v. City of Houma, 395 U. S. 701 (1969), and City of Phoenix v. Kolodziefski, 399 U. S. 204 (1970); or to the validity of elections for local officials held under possibly discriminatory voting laws, Allen v. State Board of Elections, 393 U. S. 544 (1969). In each of these cases, the common request was that we should reach back to disturb or to attach legal consequence to patterns of conduct premised either on unlawful statutes or on a different understanding of the controlling judge-made law from the rule that ultimately prevailed.
Appellants urge, as they did in the District Court, a strange amalgam of flexibility and absolutism. Appellants assure us that they do not seek to require the schools to disgorge prior payments received under Act 109; in the. same breath, appellants insist that the presently disputed payment be enjoined because an unconstitutional statute “confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.” Norton v. Shelby County, 118 U. S. 425, 442 (1886). Conceding that we have receded from Norton in a host of criminal decisions and in other recent constitutional decisions relating to municipal bonds, appellants nevertheless view those precedents as departures from the established norm of Norton. We disagree.
The process of reconciling the constitutional interests reflected in a new rule of law with reliance interests founded upon the old is “among the most difficult of those which have engaged the attention of courts, state and federal . . . .” Chicot County Drainage Dist. v. Baxter State Bank, 308 U. S. 371, 374 (1940). Consequently, our holdings in recent years have emphasized that the effect of a given constitutional ruling on prior conduct “is subject to no set ‘principle of absolute retroactive invalidity’ but depends upon a consideration of 'particular relations . . . and particular conduct . . . of rights claimed to have become vested, of status, of prior determinations deemed to have finality’; and 'of public policy in the light of the nature both of the statute and of its previous application.’ ” Linkletter, supra, at 627, quoting from Chicot County Drainage Dist., supra, at 374. However appealing the logic of Norton may have been in the abstract, its abandonment reflected our recognition that statutory or even judge-made rules of law are hard facts on which people must rely in making decisions and in shaping their conduct. This fact of legal life underpins our modern decisions recognizing a doctrine of nonretroactivity. Appellants offer no persuasive reason for confining the modern approach to those constitutional cases involving criminal procedure or municipal bonds, and we ourselves perceive none.
In Linkletter, the Court suggested a test, often repeated since, embodying the recent balancing approach; we looked to “the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” Id., at 629. Those guidelines are helpful, see infra, at 201-203, but the problem of Linkletter and its progeny is not precisely the same as that now before us. Here, we are not considering whether we will apply a new constitutional rule of criminal law in reviewing judgments of conviction obtained under a prior standard; the problem of the instant case is essentially one relating to the appropriate scope of federal equitable remedies, a problem arising from enforcement of a state statute during the period before it had been declared unconstitutional. True, the temporal scope of the injunction has brought the parties back to this Court, and their dispute calls into play values not unlike those underlying Linkletter and its progeny. But however we state the issue, the fact remains that we are asked to reexamine the District Court's evaluation of the proper means of implementing an equitable decree. Cf. United States v. Estate of Donnelly, 397 U. S. 286, 295 (1970) ; id., at 296-297 (Harlan, J., concurring).
In shaping equity decrees, the trial court is vested with broad discretionary power; appellate review is correspondingly narrow. Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 15, 27 n. 10 (1971). Moreover, in constitutional adjudication as elsewhere, equitable remedies are a special blend of what is necessary, what is fair, and what is workable. “Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs." Brown v. Board of Education, 349 U. S. 294, 300 (1955). Mr. Justice Douglas, speaking for the Court, has said,
“The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims.” Hecht Co. v. Bowles, 321 TJ. S. 321, 329-330 (1944).
See also Holmberg v. Armbrecht, 327 U. S. 392, 396 (1946).
In equity, as nowhere else, courts eschew rigid absolutes and look to the practical realities and necessities inescapably involved in reconciling competing interests, notwithstanding that those interests have constitutional roots.
(4)
The constitutional fulcrum of Lemon I was the excessive entanglement of church and state fostered by Act 109. We found it unnecessary to decide whether the “legislative precautions [of Act 109] restrict the principal or primary effect of the programs to the point where they do not offend the Religion Clauses.” 403 U. S., at 613-614. For, as we said of both Act 109 and the similar Rhode Island provision, “[a] comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that these restrictions are obeyed .... These prophylactic contacts will involve excessive and enduring entanglement between state and church.” Id., at 619. We further emphasized the reciprocal threat to First Amendment interests from enmeshing the divisive issue of direct aid to religious schools in the traditional political processes. Id., at 622-624.
The sensitive values of the Religion Clauses do not readily lend themselves to quantification but, despite the inescapable imprecision, we think it clear that the proposed distribution of state funds to Pennsylvania’s nonpublic sectarian schools will not substantially undermine the constitutional interests at stake in Lemon I. Act 109 required the Superintendent of Public Instruction to ensure that educational services to be reimbursed by the State were kept free of religious influences. Under the Act, the Superintendent's supervisory task was to have been completed long ago, during the 1970-1971 school year itself; nothing in the record suggests that the Superintendent did not faithfully execute his duties according to law. Hence, payment of the present disputed sums will compel no further state oversight of the instructional processes of sectarian schools. By the same token, since the constitutionality of Act 109 is now settled, there is no further potential for divisive political conflict among the citizens and legislators of Pennsylvania over the desirability or degree of direct state aid to sectarian schools under Act 109.
Two problems having constitutional overtones remain, but their resolution requires no compromise of the basic principles of Lemon I. There is, first, the impact of the single and final post-audit. The record indicates that the post-audit process will involve only a ministerial “cleanup” function, that of balancing expenditures and receipts in the closing accounting — undertaken only once, and in that setting a minimal contact of the State with the affairs of the schools. Second, there is the question of impinging on the Religion Clauses from the fact of any payment that provides any state assistance or aid to sectarian schools — the issue we did not reach in Lemon I. Yet even assuming a cognizable constitutional interest in barring any state payments, under the District Court holding that interest is implicated only once under special circumstances that will not recur. There is no present risk of significant intrusive administrative entanglement, since only a final post-audit remains and detailed state surveillance of the schools is a thing of the past. At the same time, that very process of oversight — now an accomplished fact — assures that state funds will not be applied for any sectarian purposes. Finally, as will appear, even this single proposed payment for services long since passing state scrutiny reflects no more than the schools’ reliance on promised payment for expenses incurred by them prior to June 28, 1971.
Offsetting the remote possibility of constitutional harm from allowing the State to keep its bargain are the expenses incurred by the schools in reliance on the state statute inviting the contracts made and authorizing reimbursement for past services performed by the schools. It is well established that reliance interests weigh heavily in the shaping of an appropriate equitable remedy. City of Phoenix v. Kolodziejski, 399 U. S. 204 (1970); Cipriano v. City of Houma, 395 U. S. 701 (1969); Allen v. State Board of Elections, 393 U. S. 544 (1969). That there was such reliance by the schools is reflected by a well-supported District Court finding. The District Court found that there was no dispute “that to deny the church-related schools any reimbursement for their services rendered would impose upon them a substantial burden which would be difficult for them to meet.” 348 F. Supp. 300, 304-305.
The significance of appellee schools’ reliance is reinforced by the fact that appellants’ tactical choice not to press for interim injunctive suspension of payments or contracts during the pendency of the Lemon I litigation may well have encouraged the appellee schools to incur detriments in reliance upon reimbursement by the State under Act 109. In June 1969, appellants initiated the litigation that culminated in Lemon I. Though initially appellants moved for a preliminary injunction to block the September 1969 payment of funds for services rendered during the 1968-1969 school year, for reasons of their own appellants withdrew the request. Funds were paid in September and December 1969, and in March and June 1970. In 1970, the State entered into new contracts with the nonpublic schools; appellants took no steps to block the making of these contracts or to prevent the State from disbursing funds, in September and December 1970, or March and June 1971, for services rendered during the 1969-1970 school year. Appellants, meanwhile, had filed a notice of appeal to this Court by the time the distribution of funds for the 1969-1970 school year began. It was only after our decision in Lemon I — six months after the contracts for the 1970-1971 school year were perfected and after all services under those contracts had been performed — that appellants asserted their intention to block the payments due, beginning in the fall of 1971. Thus, for nearly two years, the State and the schools proceeded to act on the assumption that appellants would continue to adhere to a “sensible recognition of the practical realities of the situation.”
There has been no demonstration by the appellee schools of the precise amount of any detriment incurred by them during the 1970-1971 school year in the expectation of reimbursement by the State. The complexity of such a determination for each of Pennsylvania’s 1,181 nonpublic schools that contracted with the State under Act 109 is readily apparent. But we need not dwell on the matter of uncertainty. On this record the District Court could reasonably find reliance on the part of the appellee schools and reasonably could conclude that no more was needed to demonstrate retrospectively the degree of their reliance.
It is argued, though, that the schools were foolhardy to rely on any reimbursement by the State whatever, in view of the constitutional cloud over the Pennsylvania program from the outset. We conclude, however, that our holding in Lemon I “decid [ed] an issue of first impression whose resolution was not clearly foreshadowed.” Chevron Oil Co. v. Huson, 404 U. S., at 106. A three-judge district court, with one dissent, upheld Act 109. Soon after, another three-judge district court in Rhode Island held unconstitutional the Rhode Island statutory scheme we considered together with Pennsylvania’s program in Lemon I. Nor were district courts alone in disagreement over the constitutionality of Lemon-style plans to provide financial assistance to sectarian schools. This Court was itself divided when the issue was ultimately resolved after full briefing and argument. And the Court acknowledged “that we can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law.” Lemon I, 403 U. S., at 612.
That there would be constitutional attack on Act 109 was plain from the outset. But this is not a case where it could be said that appellees acted in bad faith or that they relied on a plainly unlawful statute. In this case, even the clarity of hindsight is not persuasive that the constitutional resolution of Lemon I could be predicted with assurance sufficient to undermine appellees’ reliance on Act 109.
(5)
In the end, then, appellants’ position comes down to this: that any reliance whatever by the schools was unjustified because Act 109 was an “untested” state statute whose validity had never been authoritatively determined. The short answer to this argument is that governments must act if they are to fulfill their high responsibilities. As one scholar has observed, the diverse state governments were preserved by the Framers “as separate sources of authority and organs of administration — a point on which they hardly had a choice.” H. Wechsler, Principles, Politics, and Fundamental Law 50 (1961).
Appellants ask, in effect, that we hold those charged with executing state legislative directives to the peril of having their arrangements unraveled if they act before there has been an authoritative judicial determination that the governing legislation is constitutional. Appellants would have state officials stay their hands until newly enacted state programs are “ratified” by the federal courts, or risk draconian, retrospective decrees should the legislation fall. In our view, appellants’ position could seriously undermine the initiative of state legislators and executive officials alike. Until judges say otherwise, state officers — the officers of Pennsylvania— have the power to carry forward the directives of the state legislature. Those officials may, in some circumstances, elect to defer acting until an authoritative judicial pronouncement has been secured; but particularly when there are no fixed and clear constitutional precedents, the choice is essentially one of political discretion and one this Court has never conceived as an incident of judicial review. We do not engage lightly in post hoc evaluation of such political judgment, founded as it is on “one of the first principles of constitutional adjudication — the basic presumption of the constitutional validity of a duly enacted state or federal law.” San Antonio School District v. Rodriguez, ante, p. 1, at 60 (1973) (Stewart, J., concurring).
Federalism suggests that federal court intervention in state judicial processes be appropriately confined. See Younger v. Harris, 401 U. S. 37 (1971), and companion cases. Likewise, federalism requires that federal injunctions unrelated to state courts be shaped with concern and care for the responsibilities of the executive and legislative branches of state governments. In short, the propriety of the relief afforded appellants by the District Court, applying familiar equitable principles, must be measured against the totality of circumstances and in light of the general principle that, absent contrary direction, state officials and those with whom they deal are entitled to rely on a presumptively valid state statute, enacted in good faith and by no means plainly unlawful.
Affirmed.
Mr. Justice White concurs in the judgment.
Mr. Justice Marshall took no part in the consideration or decision of this case.
Nonpublic Elementary and Secondary Education Act, June 19, 1968, No. 109, Pa. Stat. Ann., Tit. 24, §§5601-5609 (Supp. 1971).
In Linkletter v. Walker, 381 U. S. 618, 629 (1965), the Court recalled Mr. Justice Cardozo’s statement that “the federal constitution has no voice upon the subject,” citing Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U. S. 358, 364 (1932). In Sunburst, the Court refused to accept the petitioner’s contention that “[a]dherence to precedent as establishing a governing rule for the past in respect of the meaning of a statute is ... a denial of due process when coupled with the declaration of an intention to refuse to adhere to it in adjudicating any controversies growing out of the transactions of the future.” Id., at 363-364. Instead, the Court held that
“A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward.” Id., at 364.
Sunburst does not, of course, suggest that we may ignore constitutional interests in deciding whether to attach retrospective effect to a constitutional decision of this Court.
See Lemon v. Kurtzman, 403 U. S. 602 (1971):
“If the government closed its eyes to the manner in which these grants are actually used it would be allowing public funds to promote sectarian education. If it did not close its eyes but undertook the surveillance needed, it would, I fear, intermeddle in parochial affairs in a way that would breed only rancor and dissension.” Id., at 640 (Douglas, J., concurring).
“The Court thus creates an insoluble paradox for the State and the parochial schools. The State cannot finance secular instruction if it permits religion to be taught in the same classroom; but if it exacts a promise that religion not be so taught . . . and enforces it, it is then entangled in the 'no entanglement’ aspect of the Court’s Establishment Clause jurisprudence.” Id., at 668 (opinion of White, J.).
Here, the “insoluble paradox” is avoided because the entangling supervision prerequisite to state aid has already been accomplished and need not enter into our present evaluation of the constitutional interests at stake in the proposed payment.
We agree with the District Court that whether the payments in question constitute payments under valid contracts or a subsidy “makes no difference in our decision.” To characterize the payments as subsidies does not “lessen the reliance of the nonpublic schools on the payments or the subsequent hardship upon them if the payments are not made.” 348 F. Supp. 300, 304 n. 6.
The District Court’s comment, in turn, reflects the following colloquy between that court and counsel for appellants, at the December 15, 1971, hearing after remand from this Court:
“MR. SAWYER: I am perfectly willing to concede — and I think I must here; we have taken no evidence — that there was reliance. And I would like to state, so there is no question about that, that I am assuming there was reliance. I think as a practical matter, however, the schools continued to do what they were doing before.
“JUDGE HASTIE: Reliance in the sense, I assume, of determining activities and expenditures in anticipation that this amount would be reimbursed?
“MR. SAWYER: I know of a school that escrowed it, but I would think that would be rare. And I have to live with that, I think, unless I want to be prepared to go ahead and ask to take testimony and try to prove that wasn’t so. . . .”
As to each school, the determination of actual reliance would be subtle, premised largely on credibility and not on facts of record. Nonreliance could not be assumed simply because expenditure levels remained constant before and after Act 109; any school might well assert that it would have reduced its educational expenditures in some particular but for the expectation of compensation for certain other expenditures incurred in connection with Act 109. Similarly, the inquiry could not be limited to expenditures for those items specified by the Act. Increased expenditures for any of the gamut of a school's activities might have been incurred in reliance on reimbursement for services covered by Act 109.
According to the dissent, appellees can “tender no considerations of equity” because they had “clear warning” that they were “treading on unconstitutional ground.” The apparent premise for this assertion is the view that the Establishment Clause forbids any and all use of tax moneys to “support” or to “subsidize” sectarian schools. Yet the Court’s decisions, prior to and at the time of Lemon I, shied away from this sweeping application of the Establishment Clause, favoring instead particularized analysis of state involvement in religious schools, with the analysis based upon the facts and circumstances before us. Tilton v. Richardson, 403 U. S. 672 (1971); Walz v. Tax Comm’n, 397 U. S. 664, 669 (1970); Board of Education v. Allen, 392 U. S. 236, 242-243 (1968); Everson v. Board of Education, 330 U. S. 1, 14 (1947). There is, then, no basis for the dissent’s suggestion that the Court has been “unequivocal” in proscribing all state assistance to religious schools.
This is not to say, of course, that the flexible range of federal injunctive powers should be curtailed so as to permit state officers to proceed with their business regardless of serious constitutional questions concerning state legislation. Indeed, a significant purpose of these tools is to preserve rights of all parties and to minimize unnecessary harm during the often protracted pendency of constitutional litigation. | What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations | What is the ideological direction of the decision reviewed by the Supreme Court? | [
"Conservative",
"Liberal",
"Unspecifiable"
] | [
0
] | sc_lcdispositiondirection |
KIRBY FOREST INDUSTRIES, INC. v. UNITED STATES
No. 82-1994.
Argued February 22, 1984
Decided May 21, 1984
Joe G. Roady argued the cause and filed briefs for petitioner.
Harriet S. Shapiro argued the cause for the United States. With her on the brief were Solicitor General Lee, Assistant Attorney General Habicht, Deputy Assistant Attorney General Liotta, Raymond N. Zagone, and Jacques B. Gelin
Jerrold A. Fadem and Michael M. Berger filed a brief for Laughlin Recreational Enterprises, Inc., as amicus curiae urging reversal.
Justice Marshall
delivered the opinion of the Court.
Title 40 U. S. C. § 257, in conjunction with Rule 71A of the Federal Rules of Civil Procedure, prescribes a procedure pursuant to which the United States may appropriate privately owned land by eminent domain. The central issue in this case is whether the manner in which the value of the land is determined and paid to its owner under that procedure comports with the requirement, embodied in the Fifth Amendment, that private property not be taken for public use without just compensation.
i — (
h>
The United States customarily employs one of three methods when it appropriates private land for a public purpose. The most frequently used is the so-called “straight-condemnation” procedure prescribed in 40 U. S. C. §257. Under that statute, an “officer of the Government” who is “authorized to procure real estate for the erection of a public building or for other public uses” makes an application to the Attorney General who, within 30 days, must initiate condemnation proceedings. The form of those proceedings is governed by Federal Rule of Civil Procedure 71A. In brief, Rule 71A requires the filing in federal district court of a “complaint in condemnation,” identifying the property and the interest therein that the United States wishes to take, followed by a trial — before a jury, judge, or specially appointed commission — of the question of how much compensation is due the owner of the land. The practical effect of final judgment on the issue of just compensation is to give the Government an option to buy the property at the adjudicated price. Danforth v. United States, 308 U. S. 271, 284 (1939). If the Government wishes to exercise that option, it tenders payment to the private owner, whereupon title and right to possession vest in the United States. If the Government decides not to exercise its option, it can move for dismissal of the condemnation action. Ibid.; see Fed. Rule Civ. Proc. 71A(i)(3).
A more expeditious procedure is prescribed by 40 U. S. C. §258a. That statute empowers the Government, “at any time before judgment” in a condemnation suit, to file “a declaration of taking signed by the authority empowered by law to acquire the lands [in question], declaring that said lands are thereby taken for the use of the United States.” The Government is obliged, at the time of the filing, to deposit in the court, “to the use of the persons entitled thereto,” an amount of money equal to the estimated value of the land. Title and right to possession thereupon vest immediately in the United States. In subsequent judicial proceedings, the exact value of the land (on the date the declaration of taking was filed) is determined, and the owner is awarded the difference (if any) between the adjudicated value of the land and the amount already received by the owner, plus interest on that difference.
Finally, Congress occasionally exercises the power of eminent domain directly. For example, when Congress thinks that a tract of land that it wishes to preserve inviolate is threatened with imminent alteration, it sometimes enacts a statute appropriating the property immediately by “legislative taking” and setting up a special procedure for ascertaining, after the appropriation, the compensation due to the owners.
In addition to these three statutory methods, the United States is capable of acquiring privately owned land summarily, by physically entering into possession and ousting the owner. E. g., United States v. Dickinson, 331 U. S. 745, 747-749 (1947). In such a case, the owner has a right to bring an “inverse condemnation” suit to recover the value of the land on the date of the intrusion by the Government. United States v. Dow, 357 U. S. 17, 21-22 (1958).
The Government’s selection amongst and implementation of these various methods of acquiring property is governed, to some extent, by the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U. S. C. §4601 et seq. That statute enjoins federal agencies, inter alia, to attempt to acquire property by negotiation rather than condemnation, and whenever possible not to take land by physical appropriation. §§4651(1), (4), (8). In addition, the statute requires a court with jurisdiction over a condemnation action that is dismissed or abandoned by the Government to award the landowner an amount that will reimburse him for “his reasonable costs, disbursements, and expenses” incurred in contesting the suit. § 4654(a). The statute does not, however, regulate decisions by the Government whether to employ the “straight-condemnation” procedure prescribed in § 257 or the “declaration of taking” procedure embodied in § 258a.
B
Petitioner, a manufacturer of forest products, owns substantial tracts of timberland in Texas. This case arises out of a protracted effort by the United States to appropriate 2,175.86 acres of that land.
In the mid-1960’s, several studies were made of the desirability of establishing a national park or preserve to protect an area of relatively untrammeled wilderness in eastern Texas. One of those studies, conducted in 1967 by the National Park Service, recommended the creation of a 35,500-acre Big Thicket National Park. The Texas Forestry Association, of which petitioner is a member, endorsed that proposal and declared a voluntary moratorium on logging in the designated area. Since 1967, petitioner has observed that moratorium and has not cut any trees on its property lying within the area demarked by the Park Service.
After seven years of desultory consideration of the matter, Congress rejected the Park Service proposal and enacted legislation creating a much larger Big Thicket National Preserve. Act of Oct. 11, 1974, Pub. L. 93-439, 88 Stat. 1254, 16 U. S. C. §698 et seq. The statute directed the Secretary of the Interior to acquire the land within the boundaries of the Preserve. 16 U. S. C. § 698(c). The Senate Report made clear that, though the Secretary had the authority to acquire individual tracts by declaration of taking, pursuant to 40 U. S. C. § 258a, such a peremptory procedure should be employed only when necessary to protect a parcel from destruction. S. Rep. No. 93-875, p. 5 (1974). It was understood that, in the absence of such an emergency, the Secretary would purchase the land using the straight-condemnation method prescribed in 40 U. S. C. §257.
The Government initially attempted to acquire the acreage owned by petitioner through a negotiated purchase. On August 21, 1978, after those negotiations had broken down, the United States filed a complaint in condemnation in the District Court for the Eastern District of Texas. Shortly thereafter, the Government filed a notice of Us pendens, notifying the public of the institution of the condemnation proceeding. The District Court referred the matter to a special commission to ascertain the compensation due petitioner.
Trial before the commission began on March 6, 1979. On that day, the parties stipulated that “today is the date of taking.” After hearing competing testimony pertaining to the fair market value of petitioner’s land, the commission entered a report recommending compensation in the amount of $2,331,202.
Both parties filed objections to the report in the District Court. On August 13, 1981, after holding a hearing to consider those objections, the District Court entered judgment awarding petitioner compensation in the amount recommended by the commission, plus interest at a rate of six percent for the period from August 21, 1978 (the date the complaint had been filed), to the date the Government deposited the adjudicated value of the land with the court. United States v. 2,175.86 Acres of Land, 520 F. Supp. 75, 81 (1981). The court justified its award of interest on the ground that the institution of condemnation proceedings had “effectively denied [petitioner] economically viable use and enjoyment of its property” and therefore had constituted a taking. Id., at 80. On March 26, 1982, the United States deposited the total amount of the judgment in the registry of the District Court. On the same date, the Government acquired title to the land.
Both parties appealed. A panel of the Court of Appeals for the Fifth Circuit unanimously ruled that the commission’s report failed to meet the standards enunciated in United States v. Merz, 376 U. S. 192 (1964), and remanded the case for further findings regarding the value of petitioner’s land. United States v. 2,175.86 Acres of Land, 696 F. 2d 351, 358 (1983). More importantly for present purposes, the Court of Appeals, by a vote of two to one, reversed the District Court’s award of interest to petitioner. Reasoning that “the mere commencement of straight condemnation proceedings, where the government does not enter into possession . . . , does not constitute a taking,” id., at 355, the court held that, in this case, the date of the taking should be deemed the date on which the compensation award was paid. Consequently, no interest was due on that award.
We granted certiorari to resolve a conflict in the Circuits regarding the date on which the taking, in a “straight-condemnation” proceeding, should be deemed to occur and the constitutional obligation of the United States to pay interest on the adjudicated value of the property. 464 U. S. 913 (1983). We now affirm.
f — 1 WH
The United States has the authority to take private property for public use by eminent domain, Kohl v. United States, 91 U. S. 367, 371 (1876), but is obliged by the Fifth Amendment to provide “just compensation” to the owner thereof. “Just compensation,” we have held, means in most cases the fair market value of the property on the date it is appropriated. United States v. 564.54, Acres of Land, 441 U. S. 506, 511-513 (1979). “Under this standard, the owner is entitled to receive 'what a willing buyer would pay in cash to a willing seller’ at the time of the taking.” Id., at 511 (quoting United States v. Miller, 317 U. S. 369, 374 (1943)).
If the Government pays the owner before or at the time the property is taken, no interest is due on the award. See Danforth v. United States, 308 U. S., at 284. Such a mode of compensation is not constitutionally mandated; the Fifth Amendment does not forbid the Government to take land and pay for it later. Sweet v. Rechel, 159 U. S. 380, 400-403 (1895). But if disbursement of the award is delayed, the owner is entitled to interest thereon sufficient to ensure that he is placed in as good a position pecuniarily as he would have occupied if the payment had coincided with the appropriation. Phelps v. United States, 274 U. S. 341, 344 (1927); Seaboard Air Line R. Co. v. United States, 261 U. S. 299, 306 (1923).
From the foregoing it should be apparent that identification of the time a taking of a tract of land occurs is crucial to determination of the amount of compensation to which the owner is constitutionally entitled. The Government contends that, in straight-condemnation proceedings like that at issue here, the date of taking must be deemed the date the United States tenders payment to the owner of the land. The Government’s position is amply supported by prior decisions by this Court and by indications of congressional intent derivable from the structure of the pertinent statutory scheme and the governing procedural rule.
In Danforth v. United States, supra, we were called upon to determine the date on which the Government, in an exercise of its eminent domain power under the Flood Control Act of 1928, ch. 569, 45 Stat. 534, as amended, 33 U. S. C. § 702a et seq., appropriated the petitioner’s property. We held that, “[u]nless a taking has occurred previously in actuality or by a statutory provision ... , we are of the view that the taking in a condemnation suit under this statute takes place upon the payment of the money award by the condem-nor.” 308 U. S., at 284. In response to the contention that such a procedure was unfair, we observed, “ ‘[t]he owner is protected by the rule that title does not pass until compensation has been ascertained and paid Id., at 284-285 (quoting Albert Hanson Lumber Co. v. United States, 261 U. S. 581, 587 (1923)).
That all straight-condemnation proceedings under §257 should operate in the fashion described in Danforth is strongly suggested by the structure of Rule 71A, which now governs the administration of the statute. Rule 71A(i) permits the United States to dismiss a condemnation suit at any time before “compensation has been determined and paid,” unless the Government previously has “acquired the title or a lesser interest ... or taken possession.” The Government’s capacity to withdraw from the proceeding in this fashion would be difficult to explain if a taking were effectuated prior to tendering of payment.
Finally, Congress’ understanding that a taking does not occur until the termination of condemnation proceedings brought under § 257 is reflected in its adoption of § 258a for the purpose of affording the Government the option of peremptorily appropriating land prior to final judgment, thereby permitting immediate occupancy and improvement of the property. Such an option would have been superfluous if, as petitioner contends, a taking occurred upon the filing of the complaint in a § 257 suit.
Petitioner’s principal objection to the position advocated by the Government is that such a reading of § 257 and Rule 71A is precluded by the Fifth Amendment. Petitioner contends that, at least when the subject of a straight-condemnation proceeding is unimproved land, the owner is effectively deprived of all of the significant interests associated with ownership long before the Government tenders payment. The filing of a complaint in condemnation and a notice of lis pendens, petitioner contends, has the effect of preventing the owner of unimproved land thereafter from making any profitable use of it, or of selling it to another private party. At the same time, the owner remains liable for property taxes. Such a thoroughgoing abrogation of the owner’s rights, petitioner submits, surely constitutes a taking as soon as the abrogation is effective, regardless of when the land is officially appropriated under the terms of the statute.
If petitioner’s depiction of the impairment of its beneficial interests during the pendency of the condemnation suit were accurate, we would find its constitutional argument compelling. We have frequently recognized that a radical curtailment of a landowner’s freedom to make use of or ability to derive income from his land may give rise to a taking within the meaning of the Fifth Amendment, even if the Government has not physically intruded upon the premises or acquired a legal interest in the property. Thus, we have acknowledged that a taking would be effected by a zoning ordinance that deprived “an owner [of] economically viable use of his land.” Agins v. Tiburón, 447 U. S. 255, 260 (1980). And we have suggested that, under some circumstances, a land-use regulation that severely interfered with an owner’s “distinct investment-backed expectations” might precipitate a taking. Penn Central Transportation Co. v. New York City, 438 U. S. 104, 124 (1978). The principle that underlies this doctrine is that, while most burdens consequent upon government action undertaken in the public interest must be borne by individual landowners as concomitants of “‘the advantage of living and doing business in a civilized community,’” some are so substantial and unfor-seeable, and can so easily be identified and redistributed, that “justice and fairness” require that they be borne by the public as a whole. These considerations are as applicable to the problem of determining when in a condemnation proceeding the taking occurs as they are to the problem of ascertaining whether a taking has been effected by a putative exercise of the police power.
However, we do not find, prior to the payment of the condemnation award in this case, an interference with petitioner’s property interests severe enough to give rise to a taking under the foregoing theory. Until titlé passed to the United States, petitioner was free to make whatever use it pleased of its property. The Government never forbade petitioner to cut the trees on the land or to develop the tract in some other way. Indeed, petitioner is unable to point to any statutory provision that would have authorized the Government to restrict petitioner’s usage of the property prior to payment of the award.
Nor did the Government abridge petitioner’s right to sell the land if it wished. It is certainly possible, as petitioner contends, that the initiation of condemnation proceedings, publicized by the filing of a notice of lis pendens, reduced the price that the land would have fetched, but impairment of the market value of real property incident to otherwise legitimate government action ordinarily does not result in a taking. See, e. g., Agins v. Tiburon, supra, at 263, n. 9; Danforth v. United States, 308 U. S., at 285; Euclid v. Ambler Realty Co., 272 U. S. 365 (1926). At least in the absence of an interference with an owner’s legal right to dispose of his land, even a substantial reduction of the attractiveness of the property to potential purchasers does not entitle the owner to compensation under the Fifth Amendment.
It is true that any effort by petitioner to develop the land probably would have prompted the Government to exercise its authority, under 40 U. S. C. § 258a, to file a declaration of taking and thereby peremptorily to appropriate the tract in order to protect it from alteration. But the likelihood that the United States would have responded in that fashion to an attempt by petitioner to make productive use of the land weakens rather than strengthens petitioner’s position, because it suggests that petitioner had the option, at any time, to precipitate an immediate taking of the land and to obtain compensation therefor as of that date, merely by informing the Government of its intention to cut down the trees.
We conclude, in sum, that petitioner has failed to demonstrate that its interests were impaired in any constitutionally significant way before the Government tendered payment and acquired title in the usual course. Accordingly, we approve the finding of the Court of Appeals that the taking of petitioner’s land occurred on March 26, 1982. Because the award was paid on that date, no interest was due thereon.
h — 1 I HH
The foregoing conclusion does not dispose of this case. We still must determine whether the award itself satisfied the strictures of the Fifth Amendment. As indicated above, petitioner is constitutionally entitled to the fair market value of its property on the date of the taking. See supra, at 10. Petitioner points out that $2,331,202 represents the commission’s best estimate of the value of the land on March 6, 1979. To the extent that that figure is less than the value of the land on March 26, 1982, the date of the taking, petitioner contends, it has been denied just compensation.
The Government attempts to meet this objection by emphasizing the pragmatic constraints on determination of the value of real property. The Government contends that it is imperative that the trier of fact in a condemnation action be given a fixed date as of which the value of the land is to be assessed. At the time of trial, no one knows when the United States will exercise its option to purchase the property, so adoption of the date of payment as the date of valuation is infeasible. Moreover, prediction of the value of land at a future time is notoriously difficult. Under these circumstances, courts and commissions understandably have adopted the convention of using the date of the commencement of the trial as the date of the valuation.
The Government’s argument provides a plausible explanation for the valuation procedure used in this case and other cases, but it does not meet petitioner’s constitutional claim. However reasonable it may be to designate the date of trial as the date of valuation, if the result of that approach is to provide the owner substantially less than the fair market value of his property on the date the United States tenders payment, it violates the Fifth Amendment.
We are left with the problem of prescribing a solution to this difficulty. Petitioner suggests that we mandate an award of interest, at least for the period from the date of valuation to the date of the taking, as a rough proxy for the increase in the value of the land during that period. We decline the invitation. Change in the market value of particular tracts of land over time bears only a tenuous relationship to the market rate of interest. Some parcels appreciate at rates far in excess of the interest rate; others decline in value. Thus, to require the Government to pay interest on the basis proposed by petitioner would only sometimes improve the fit between the value of condemned land on the date of its appropriation and the amount paid to the owner of such land.
Solution of the problem highlighted by petitioner requires, not a rule compelling payment of interest by the Government, but rather a procedure for modifying a condemnation award when there is a substantial delay between the date of valuation and the date the judgment is paid, during which time the value of the land changes materially. In the case before us, such a procedure is readily available. In view of the inadequacy of the commission’s explanation for its valuation of petitioner’s land, the Court of Appeals remanded for reconsideration of the value of the property. Oh remand, the District Court can easily adduce evidence pertaining to alteration in the value of petitioner’s tract between March 6, 1979, and March 26, 1982. In our view, such a reassessment is both necessary and sufficient to provide petitioner just compensation.
In other cases, such an option may not be available. However, the Federal Rules of Civil Procedure contain a procedural device that could do tolerable service in this cause. Rule 60(b) empowers a federal court, upon motion of a party, to withdraw or amend a final order for “any . . . reason justifying relief from the operation of the judgment.” This provision seems to us expansive enough to encompass a motion, by the owner of condemned land, to amend a condemnation award. The evidence adduced in consideration of such a motion would be very limited. The parties would not be permitted to question the adjudicated value of the tract as of the date of its original valuation; they would be limited to the presentation of evidence and arguments on the issue of how the market value of the property altered between that date and the date on which the judgment was paid by the Government. So focused, the consideration of such a motion would be expeditious and relatively inexpensive for the parties involved. Further refinement of this procedural option we leave to the courts called upon to administer it.
IV
For the reasons set forth above, we agree with the Court of Appeals that no interest was due on the condemnation award paid to petitioner. Petitioner’s meritorious contention that it is constitutionally entitled to the value of its land on the date of the taking, not on the date of the valuation, can be accommodated by allowing petitioner, on remand, to present evidence pertaining to change in the market value of the tract during the period between those two dates. On the understanding that petitioner will be afforded that opportunity, the judgment is
Affirmed.
Such authorization generally is derived from some independent statute that vests the officer with the power of eminent domain but does not prescribe the manner in which that power should be exercised. See, e. g., 16 U. S. C. § 404c-ll.
Suits under § 257 originally were required to “conform, as near as may be, to the practice, pleadings, forms and proceedings existing at the time in like causes in the courts of record of the State” in which the suits were instituted. Act of Aug. 1, 1888, ch. 728, § 2, 25 Stat. 357. The adoption in 1951 of Rule 71A capped an effort to establish a uniform set of procedures governing all federal condemnation actions. See Advisory Committee’s Notes on Rule 71A, Original Report, 28 U. S. C. App., p. 644.
Section 258a was enacted in 1931, for the principal purpose of enabling the United States, when it wished, peremptorily to appropriate property on which public buildings were to be constructed, making it possible for the Government to begin improving the land, thereby stimulating employment during the Great Depression. See H. R. Rep. No. 2086, 71st Cong., 3d Sess. (1930).
The owner is entitled to prompt distribution of the deposited funds. 40 U. S. C. § 258a; Fed. Rule Civ. Proe. 71A(j).
See, e. g., 16 U. S. C. § 79c(b) (vesting in the United States “all right, title, and interest” in the land encompassed by the Redwood National Park as of the date of the enactment of the statute).
Such a suit is “inverse” because it is brought by the affected owner, not by the condemnor. United States v. Clarke, 445 U. S. 253, 257 (1980). The owner’s right to bring such a suit derives from “ ‘the self-executing character of the constitutional provision with respect to condemnation. . . Ibid, (quoting 6 P. Nichols, Eminent Domain §25.41 (3d rev. ed. 1972)).
We have held that the last-mentioned provision for the reimbursement of costs is a matter of legislative grace, not constitutional entitlement. United States v. Bodcaw Co., 440 U. S. 202, 204 (1979) (per curiam).
Testimony at trial by one of petitioner’s officers suggested that, regardless of the existence of the moratorium, petitioner would not have cut any trees on that land, which it had held as a “reserve logging area” since the 1950’s. Brief for United States 8, citing 1 Tr. 52. For the purpose of our decision, we place no weight on that testimony; we assume that petitioner voluntarily forwent an opportunity to make profitable use of its land.
The House bill had contained a provision appropriating the land by a legislative taking. H. R. 11546, 93d Cong., 1st Sess., §2 (1978). The Senate rejected this method on the ground that it was unnecessary to protect the land and would be unduly expensive. S. Rep. No. 93-875, pp. 5-6 (1974). The House acceded to the Senate’s position.
The District Court did not expressly rule upon petitioner’s contention that the stipulation entered into by the parties on the opening day of trial established the date of the taking. But, by awarding interest as of the date of the filing of the complaint, the court implicitly rejected petitioner’s submission on that issue.
The Court of Appeals agreed with the District Court that the parties’ stipulation regarding the “date of taking” was not controlling, see n. 10, supra. After reviewing the record, the Court of Appeals determined that the stipulation pertained only to the date as of which the land was to be valued, not the date on which the Government was deemed to have appropriated the land. 696 F. 2d, at 356. We see no reason to question that determination.
Judge Jolly dissented on this issue, arguing that the owner of unimproved land subject to condemnation proceedings under 40 U. S. C. §257 is entitled to interest on the award at least for the period beginning with entry of judgment by the district court, because during that period the owner is “shackled from making economically viable use of his property.” 696 F. 2d, at 358-359.
In two cases, panels of the Court of Appeals for the Ninth Circuit have rejected the position taken by the Fifth Circuit in this ease, holding that, when the United States condemns unimproved property using the method prescribed in 40 U. S. C. § 257, it must award interest to the owner for some period prior to the date the award is paid and title passes. United States v. 15.65 Acres of Land, 689 F. 2d 1329 (1982), cert. denied sub nom. Marin Ridgeland Co. v. United States, 460 U. S. 1041 (1983); United States v. 156.81 Acres of Land, 671 F. 2d 336, cert. denied, 459 U. S. 1086 (1982). Similar confusion exists in the District Courts. See, e. g., United States v. 59.29 Acres of Land, 495 F. Supp. 212 (ED Tex. 1980) (date of taking is date of announcement of the award by the commission).
Other measures of “just compensation” are employed only “when market value [is] too difficult to find, or when its application would result in manifest injustice to owner or public. . . .” United States v. Commodities Trading Corp., 339 U. S. 121, 123 (1950).
We have acknowledged that, in some cases, this standard fails fully to indemnify the owner for his loss. Particularly when property has some special value to its owner because of its adaptability to his particular use, the fair-market-value measure does not make the owner whole. United States v. 564.54 Acres of Land, 441 U. S. 506, 511-512 (1979). We are willing to tolerate such occasional inequity because of the difficulty of assessing the value an individual places upon a particular piece of property and because of the need for a clear, easily administrable rule governing the measure of “just compensation.” Ibid.
None of the discussion in this opinion is intended to modify either the manner in which the fair-market-value standard is interpreted and applied or the test for determining when the fair-market-value standard must be supplanted by other formulae, see n. 14, supra. In particular, we express no view on the question of how the value of land condemned under 40 U. S. C. § 257 should be assessed when activities of the Government during the pendency of the condemnation proceedings have so altered the condition of the property as to reduce the price it could fetch on the open market on the date of the taking.
The last-mentioned principle underlies the provision in 40 U. S. C. . § 258a for the payment of interest on any difference between the estimated value of land appropriated through a declaration of taking and its subsequently adjudicated actual value as of that date. See supra, at 5. The principle also underlies several decisions by Courts of Appeals, holding that the six percent rate of interest prescribed by § 258a is not a ceiling on the amount that can and must be paid by the Government. See, e. g., United States v. 329.78 Acres of Land, 704 F. 2d 800, 812, and n. 18 (CA5 1983) (en banc). The United States has acquiesced in those decisions. Brief for United States 14, n. 13.
Petitioner’s contention that our decision in Danforth pertained only to takings effected pursuant to the Flood Control Act is unpersuasive. Though the Flood Control Act contained a provision (analogous to 40 U. S. C. § 258a) empowering the United States to appropriate land expeditiously by filing a special petition and depositing an estimated award, ch. 569, § 4, 45 Stat. 536 (incorporating by reference § 5 of the River and Harbor Act of 1918, ch. 155, 40 Stat. 911), when the Government appropriated the land at issue in Danforth, it apparently did not invoke its special statutory authority but instead took the property in the usual fashion as authorized by 40 U. S. C. § 257. The holding of the case is thus on point.
After commencement of the valuation hearing, the Government may dismiss the suit only pursuant to a stipulation with the owner, Fed. Rule Civ. Proc. 71A(i)(2), or with the approval of the district court, Fed. Rule Civ. Proc. 71A(i)(3). The Rule does not suggest that a court order dismissing a suit has the effect of nullifying a taking that has already occurred. Indeed, to the contrary, the Rule forbids the district court to dismiss an action (without awarding just compensation) if the Government has acquired any “interest” in the property. Ibid.
See n. 3, supra.
It must be admitted that the adoption of § 258a does not compel the conclusion that Congress in 1981 understood that the taking in a § 257 suit did not occur until the date payment was tendered by the condemnor, because § 258a by its terms only empowers the Government to file a declaration of taking prior to “judgment.” The language of §258a is thus consistent with a congressional understanding that the taking occurred upon entry of final judgment in a straight-condemnation action. However, the fact that Congress did not empower the Government to file a declaration of taking anytime prior to the tender of payment does not undercut our construction of §257, because the Government has no need of special authority to appropriate land after judgment and before payment in a straight-condemnation suit; after entry of judgment, the Government can acquire the land merely by paying the owner the adjudicated value of the property.
Cf. United States v. 15.65 Acres of Land, 689 F. 2d, at 1334 (arguing that the initiation of a condemnation action leaves “[t]he owner of unimproved land . . . with the liabilities which follow title but none of the benefits, save the right ultimately to be paid for the taking”).
Andrus v. Allard, 444 U. S. 51, 67 (1979) (quoting Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 422 (1922) (Brandéis, J., dissenting)).
See Agins v. Tiburon, 447 U. S. 255, 260-262 (1980); Penn Central Transportation Co. v. New York City, 438 U. S. 104, 123-128 (1978); Armstrong v. United States, 364 U. S. 40, 49 (1960); Pennsylvania Coal Co. v. Mahon, supra, at 413, 415-416; Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law, 80 Harv. L. Rev. 1165, 1214-1224 (1967).
The question of the Government's authority to dictate to petitioner the manner in which it could use the land is preeminently a question of law, not of fact. Thus, we find no merit in petitioner’s contention that the Court of Appeals erred in not adhering to the strictures of Federal Rule of Civil Procedure 52(a) when examining the District Court’s finding that the Government denied petitioner economically viable use of the land during the pendency of the suit.
We have no occasion here to determine whether abrogation of an owner’s right to sell real property, combined with a sufficiently substantial diminution of its utility to the owner, would give rise a taking. Cf. Andrus v. Allard, supra, at 66-68.
Had petitioner made such a showing, complex questions would have arisen regarding the measure of “just compensation. ” We defer resolution of those questions to a case in which they are fairly presented.
For example, it appears that the market value of timberland of the sort owned by petitioner was much higher in March 1979 than in March 1982. See Vardaman’s Green Sheet, Index of Pine Sawtimber Stumpage and Timberland Prices (Jan. 15, 1983), reprinted in App. to Brief for United States la.
Though the value of timberland of the kind contained in petitioner’s tract seems to have declined during this period, see n. 27, supra, petitioner contends that the value of its parcel nevertheless increased because of the expansion of the residential areas surrounding nearby Beaumont, Tex., and the susceptibility of the parcel to rural subdivision or recreational usage. The District Court can and should assess these contentions on remand.
The procedure would not be free, of course, but that fact may well have a healthy effect in deterring frivolous pleas for relief from final judgments. That he would be obliged to bear some litigation costs in contesting a Rule 60(b) motion should dissuade a landowner from filing such a motion unless he had good reason to believe that the value of his property changed materially between valuation and payment.
We do not mean to suggest that the constitutional difficulty discussed in this section can be solved only by affording a condemnee in petitioner’s position an opportunity to file a motion to amend the judgment under Rule 60(b). Either Congress or a lower court might perceive a more easily ad-ministrable way of ensuring that the compensation paid to the owner of condemned land does not fall substantially below the fair market value of the property on the date of the taking. | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence. | What is the basis of the Supreme Court's decision? | [
"judicial review (national level)",
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PRESTON v. FERRER
CERTIORARI TO THE COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT
No. 06-1463.
Argued January 14, 2008
Decided February 20, 2008
Joseph D. Schleimer argued the cause for petitioner. With him on the briefs was Kenneth D. Freundlich.
G. Eric Brunstad, Jr., argued the cause for respondent. With him on the brief were Rheba Rutkowski, Brian R. Hole, Collin O’Connor Udell, and Robert M. Dudnik.
Briefs of amici curiae urging reversal were filed for the Chamber of Commerce of the United States of America by Gene C. Schaerr, Steffen N. Johnson, Robin S. Conrad, Amar D. Sarwal, and Linda T. Coberly; for CTIA-The Wireless Association by Andrew J. Pincus, Evan M. Tager, David M. Gossett, and Michael F. Altschul; for Macy’s Group Inc. by Glen D. Nager and C. Kevin Marshall; and for the Pacific Legal Foundation by Deborah J. La Fetra and Timothy Sandefur.
Briefs of amici curiae urging affirmance were filed for the Screen Actors Guild, Inc., et al. by Duncan Crabtree-Ireland and Danielle S. Van Lier; and for the William Morris Agency by David J. Bederman.
Justice Ginsburg
delivered the opinion of the Court.
As this Court recognized in Southland Corp. v. Keating, 465 U. S. 1 (1984), the Federal Arbitration Act (FAA or Act), 9 U. S. C. § 1 et seq. (2000 ed. and Supp. V), establishes a national policy favoring arbitration when the parties contract for that mode of dispute resolution. The Act, which rests on Congress’ authority under the Commerce Clause, supplies not simply a procedural framework applicable in federal courts; it also calls for the application, in state as well as federal courts, of federal substantive law regarding arbitration. 465 U. S., at 16. More recently, in Buckeye Check Cashing, Inc. v. Cardegna, 546 U. S. 440 (2006), the Court clarified that, when parties agree to arbitrate all disputes arising under their contract, questions concerning the validity of the entire contract are to be resolved by the arbitrator in the first instance, not by a federal or state court.
The instant petition presents the following question: Does the FAA override not only state statutes that refer certain state-law controversies initially to a judicial forum, but also state statutes that refer certain disputes initially to an administrative agency? We hold today that, when parties agree to arbitrate all questions arising under a contract, state laws lodging primary jurisdiction in another forum, whether judicial or administrative, are superseded by the FAA.
I
This case concerns a contract between respondent Alex E. Ferrer, a former Florida trial court judge who currently appears as “Judge Alex” on a Fox television network program, and petitioner Arnold M. Preston, a California attorney who renders services to persons in the entertainment industry. Seeking fees allegedly due under the contract, Preston invoked the parties’ agreement to arbitrate “any dispute . . . relating to the terms of [the contract] or the breach, validity, or legality thereof... in accordance with the rules [of the American Arbitration Association].” App. 18.
Preston’s demand for arbitration, made in June 2005, was countered a month later by Ferrer’s petition to the California Labor Commissioner charging that the contract was invalid and unenforceable under the California Talent Agencies Act (TAA), Cal. Lab. Code Ann. §1700 et seq. (West 2003 and Supp. 2008). Ferrer asserted that Preston acted as a talent agent without the license required by the TAA, and that Preston’s unlicensed status rendered the entire contract void.
The Labor Commissioner’s hearing officer, in November 2005, determined that Ferrer had stated a “colorable basis for exercise of the Labor Commissioner’s jurisdiction.” App. 33. The officer denied Ferrer’s motion to stay the arbitration, however, on the ground that the Labor Commissioner lacked authority to order such relief. Ferrer then filed suit in the Los Angeles Superior Court, seeking a declaration that the controversy between the parties “arising from the [c]ontract, including in particular the issue of the validity of the [c]ontract, is not subject to arbitration.” Id., at 29. As interim relief, Ferrer sought an injunction restraining Preston from proceeding before the arbitrator. Preston responded by moving to compel arbitration.
In December 2005, the Superior Court denied Preston’s motion to compel arbitration and enjoined Preston from proceeding before the arbitrator “unless and until the Labor Commissioner determines that . . . she is without jurisdiction over the disputes between Preston and Ferrer.” No. BC342454 (Dec. 7, 2005), App. C to Pet. for Cert. 18a, 26a-27a. During the pendency of Preston’s appeal from the Superior Court’s decision, this Court reaffirmed, in Buckeye, that challenges to the validity of a contract providing for arbitration ordinarily “should ... be considered by an arbitrator, not a court.” 546 U. S., at 446.
In a 2-to-l decision issued in November 2006, the California Court of Appeal affirmed the Superior Court’s judgment. The appeals court held that the relevant provision of the TAA, Cal. Lab. Code Ann. § 1700.44(a) (West 2003), vests “exclusive original jurisdiction” over the dispute in the Labor Commissioner. 145 Cal. App. 4th 440, 447, 51 Cal. Rptr. 3d 628, 634. Buckeye is “inapposite,” the court said, because that case “did not involve an administrative agency with exclusive jurisdiction over a disputed issue.” 145 Cal. App. 4th, at 447, 51 Cal. Rptr. 3d, at 634. The dissenting judge, in contrast, viewed Buckeye as controlling; she reasoned that the FAA called for immediate recognition and enforcement of the parties’ agreement to arbitrate and afforded no basis for distinguishing prior resort to a state administrative agency from prior resort to a state court. 145 Cal. App. 4th, at 450-451,51 Cal. Rptr. 3d, at 636-637 (Vogel, J., dissenting).
The California Supreme Court denied Preston’s petition for review. No. S149190 (Feb. 14, 2007), 2007 Cal. LEXIS 1539, App. A to Pet. for Cert. la. We granted certiorari to determine whether the FAA overrides a state law vesting initial adjudicatory authority in an administrative agency. 551 U. S. 1190 (2007).
II
An easily stated question underlies this controversy. Ferrer claims that Preston was a talent agent who operated without a license in violation of the TAA. Accordingly, he urges, the contract between the parties, purportedly for “personal management,” is void, and Preston is entitled to no compensation for any services he rendered. Preston, on the other hand, maintains that he acted as a personal manager, not as a talent agent, hence his contract with Ferrer is not governed by the TAA and is both lawful and fully binding on the parties.
Because the contract between Ferrer and Preston provides that “any dispute . . . relating to the . . . validity, or legality,” of the agreement “shall be submitted to arbitration,” App. 18, Preston urges that Ferrer must litigate “his TAA defense in the arbitral forum,” Reply Brief 31. Ferrer insists, however, that the “personal manager” or “talent agent” inquiry falls, under California law, within the exclusive original jurisdiction of the Labor Commissioner, and that the FAA does not displace the Commissioner’s primary jurisdiction. Brief for Respondent 14, 30, 40-44.
The dispositive issue, then, contrary to Ferrer’s suggestion, is not whether the FAA preempts the TAA wholesale. See id., at 44-48. The FAA plainly has no such destructive aim or effect. Instead, the question is simply who decides whether Preston acted as personal manager or as talent agent.
III
Section 2 of the FAA states:
“A written provision in any . . . contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U. S. C. § 2.
Section 2 “declared] a national policy favoring arbitration” of claims that parties contract to settle in that manner. Southland Corp., 465 U. S., at 10. That national policy, we held in Southland, “appli[es] in state as well as federal courts” and “foreclosed] state legislative attempts to undercut the enforceability of arbitration agreements.” Id., at 16. The FAA’s displacement of conflicting state law is “now well-established,” Allied-Bruce Terminix Cos. v. Dobson, 513 U. S. 265, 272 (1995), and has been repeatedly reaffirmed, see, e. g., Buckeye, 546 U. S., at 445-446; Doctor’s Associates, Inc. v. Casarotto, 517 U. S. 681, 684-685 (1996); Perry v. Thomas, 482 U. S. 483, 489 (1987).
A recurring question under §2 is who should decide whether “grounds ... exist at law or in equity” to invalidate an arbitration agreement. In Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U. S. 395, 403-404 (1967), we held that attacks on the validity of an entire contract, as distinct from attacks aimed at the arbitration clause, are within the arbitrator’s ken.
The litigation in Prima Paint originated in federal court, but the same rule, we held in Buckeye, applies in state court. 546 U. S., at 447-448. The plaintiffs in Buckeye alleged that the contracts they signed, which contained arbitration clauses, were illegal under state law and void ab initio. Id., at 443. Relying on Southland, we held that the plaintiffs’ challenge was within the province of the arbitrator to decide. See 546 U. S., at 446.
Buckeye largely, if not entirely, resolves the dispute before us. The contract between Preston and Ferrer clearly “evidenced] a transaction involving commerce,” 9 U. S. C. § 2, and Ferrer has never disputed that the written arbitration provision in the contract falls within the purview of §2. Moreover, Ferrer sought invalidation of the contract as a whole. In the proceedings below, he made no discrete challenge to the validity of the arbitration clause. See 145 Cal. App. 4th, at 449, 51 Cal. Rptr. 3d, at 635 (Vogel, J., dissenting). Ferrer thus urged the Labor Commissioner and California courts to override the contract’s arbitration clause on a ground that Buckeye requires the arbitrator to decide in the first instance.
IV
Ferrer attempts to distinguish Buckeye by arguing that the TAA merely requires exhaustion of administrative remedies before the parties proceed to arbitration. We reject that argument.
A
The TAA regulates talent agents and talent agency agreements. “Talent agency” is defined, with exceptions not relevant here, as “a person or corporation who engages in the occupation of procuring, offering, promising, or attempting to procure employment or engagements for an artist or artists.” Cal. Lab. Code Ann. § 1700.4(a) (West 2003). The definition “does not cover other services for which artists often contract, such as personal and career management (i. e., advice, direction, coordination, and oversight with respect to an artist’s career or personal or financial affairs).” Styne v. Stevens, 26 Cal. 4th 42, 51, 26 P. 3d 343, 349 (2001) (emphasis deleted). The TAA requires talent agents to procure a license from the Labor Commissioner. § 1700.5. “In furtherance of the [TAA’s] protective aims, an unlicensed person’s contract with an artist to provide the services of a talent agency is illegal and void.” Ibid.
Section 1700.44(a) of the TAA states:
“In cases of controversy arising under this chapter, the parties involved shall refer the matters in dispute to the Labor Commissioner, who shall hear and determine the same, subject to an appeal within 10 days after determination, to the superior court where the same shall be heard de novo.”
Absent a notice of appeal filed within ten days, the Labor Commissioner’s determination becomes final and binding on the parties. REO Broadcasting Consultants v. Martin, 69 Cal. App. 4th 489, 495, 81 Cal. Rptr. 2d 639, 642-643 (1999).
The TAA permits arbitration in lieu of proceeding before the Labor Commissioner if an arbitration provision “in a contract between a talent agency and [an artist]” both “provides for reasonable notice to the Labor Commissioner of the time and place of all arbitration hearings” and gives the Commissioner “the right to attend all arbitration hearings.” § 1700.45. This prescription demonstrates that there is no inherent conflict between the TAA and arbitration as a dispute resolution mechanism. But § 1700.45 was of no utility to Preston. He has consistently maintained that he is not a talent agent as that term is defined in § 1700.4(a), but is, instead, a personal manager not subject to the TAA’s regulatory regime. 145 Cal. App. 4th, at 444, 51 Cal. Rptr. 3d, at 631. To invoke § 1700.45, Preston would have been required to concede a point fatal to his claim for compensation — i. e., that he is a talent agent, albeit an unlicensed one — and to have drafted his contract in compliance with a statute that he maintains is inapplicable.
Procedural prescriptions of the TAA thus conflict with the FAA’s dispute resolution regime in two basic respects: First, the TAA, in § 1700.44(a), grants the Labor Commissioner exclusive jurisdiction to decide an issue that the parties agreed to arbitrate, see Buckeye, 546 U. S., at 446; second, the TAA, in § 1700.45, imposes prerequisites to enforcement of an arbitration agreement that are not applicable to contracts generally, see Doctor’s Associates, Inc., 517 U. S., at 687.
B
Ferrer contends that the TAA is nevertheless compatible with the FAA because § 1700.44(a) merely postpones arbitration until after the Labor Commissioner has exercised her primary jurisdiction. Brief for Respondent 14, 40. The party that loses before the Labor Commissioner may file for de novo review in Superior Court. See § 1700.44(a). At that point, Ferrer asserts, either party could move to compel arbitration under Cal. Civ. Proc. Code Ann. § 1281.2 (West 2007), and thereby obtain an arbitrator’s determination prior to judicial review. See Brief for Respondent 13.
That is not the position Ferrer took in the California courts. In his complaint, he urged the Superior Court to declare that “the [contract, including in particular the issue of the validity of the [cjontract, is not subject to arbitration,” and he sought an injunction stopping arbitration “unless and until, if ever, the Labor Commissioner determines that he/ she has no jurisdiction over the parties’ dispute.” App. 29 (emphasis added). Ferrer also told the Superior Court: “[I]f . . . the Commissioner rules that the [cjontract is void, Preston may appeal that ruling and have a hearing de novo before this Court.” Appellant’s App. in No. B188997 (Cal. App.), p. 157, n. 1 (emphasis added).
Nor does Ferrer’s current argument — that § 1700.44(a) merely postpones arbitration — withstand examination. Section 1700.44(a) provides for de novo review in Superior Court, not elsewhere. Arbitration, if it ever occurred following the Labor Commissioner’s decision, would likely be long delayed, in contravention of Congress’ intent “to move the parties to an arbitrable dispute out of court and into arbitration as quickly and easily as possible.” Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 22 (1983). If Ferrer prevailed in the California courts, moreover, he would no doubt argue that judicial findings of fact and conclusions of law, made after a full and fair de novo hearing in court, are binding on the parties and preclude the arbitrator from making any contrary rulings.
A prime objective of an agreement to arbitrate is to achieve “streamlined proceedings and expeditious results.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 633 (1985). See also Allied-Bruce Terminix Cos., 513 U. S., at 278; Southland Corp., 465 U. S., at 7. That objective would be frustrated even if Preston could compel arbitration in lieu of de novo Superior Court review. Requiring initial reference of the parties’ dispute to the Labor Commissioner would, at the least, hinder speedy resolution of the controversy.
Ferrer asks us to overlook the apparent conflict between the arbitration clause and § 1700.44(a) because proceedings before the Labor Commissioner are administrative rather than judicial. Brief for Respondent 40-48. Allowing parties to proceed directly to arbitration, Ferrer contends, would undermine the Labor Commissioner’s ability to stay informed of potentially illegal activity, id., at 43, and would deprive artists protected by the TAA of the Labor Commissioner’s expertise, id., at 41-43.
In Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20 (1991), we considered and rejected a similar argument, namely, that arbitration of age discrimination claims would undermine the role of the Equal Employment Opportunity Commission (EEOC) in enforcing federal law. The “mere involvement of an administrative agency in the enforcement of a statute,” we held, does not limit private parties’ obligation to comply with their arbitration agreements. Id., at 28-29.
Ferrer points to our holding in EEOC v. Waffle House, Inc., 534 U. S. 279, 293-294 (2002), that an arbitration agreement signed by an employee who becomes a discrimination complainant does not bar the EEOC from filing an enforcement suit in its own name. He further emphasizes our observation in Gilmer that individuals who agreed to arbitrate their discrimination claims would “still be free to file a charge with the EEOC.” 500 U. S., at 28. Consistent with these decisions, Ferrer argues, the arbitration clause in his contract with Preston leaves undisturbed the Labor Commissioner’s independent authority to enforce the TAA. See Brief for Respondent 44-48. And so it may. But in proceedings under § 1700.44(a), the Labor Commissioner functions not as an advocate advancing a cause before a tribunal authorized to find the facts and apply the law; instead, the Commissioner serves as impartial arbiter. That role is just what the FAA-governed agreement between Ferrer and Preston reserves for the arbitrator. In contrast, in Waffle House and in the Gilmer aside Ferrer quotes, the Court addressed the role of an agency, not as adjudicator but as prosecutor, pursuing an enforcement action in its own name or reviewing a discrimination charge to determine whether to initiate judicial proceedings.
Finally, it bears repeating that Preston’s petition presents precisely and only a question concerning the forum in which the parties’ dispute will be heard. See supra, at 352. “By agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral... forum.” Mitsubishi Motors Corp., 473 U. S., at 628. So here, Ferrer relinquishes no substantive rights the TAA or other California law may accord him. But under the contract he signed, he cannot escape resolution of those rights in an arbitral forum.
In sum, we disapprove the distinction between judicial and administrative proceedings drawn by Ferrer and adopted by the appeals court. When parties agree to arbitrate all questions arising under a contract, the FAA supersedes state laws lodging primary jurisdiction in another forum, whether judicial or administrative.
V
Ferrer’s final attempt to distinguish Buckeye relies on Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U. S. 468 (1989). Volt involved a California statute dealing with cases in which “[a] party to [an] arbitration agreement is also a party to a pending court action . . . [involving] a third party [not bound by the arbitration agreement], arising out of the same transaction or series of related transactions.” Cal. Civ. Proc. Code Ann. § 1281.2(c) (West 2007). To avoid the “possibility of conflicting rulings on a common issue of law or fact,” the statute gives the Superior Court authority, inter alia, to stay the court proceeding “pending the outcome of the arbitration” or to stay the arbitration “pending the outcome of the court action.” Ibid.
Volt Information Sciences and Stanford University were parties to a construction contract containing an ¿rbitration clause. When a dispute arose and Volt demanded arbitration, Stanford sued Volt and two other companies involved in the construction project. Those other companies were not parties to the arbitration agreement; Stanford sought indemnification from them in the event that Volt prevailed against Stanford. At Stanford’s request, the Superior Court stayed the arbitration. The California Court of Appeal affirmed the stay order. Volt and Stanford incorporated § 1281.2(c) into their agreement, the appeals court held. They did so by stipulating that the contract — otherwise silent on the priority of suits drawing in parties not subject to arbitration— would be governed by California law. Board of Trustees of Leland Stanford Junior Univ. v. Volt Information Sciences, Inc., 240 Cal. Rptr. 558, 561 (1987) (officially depublished). Relying on the Court of Appeal’s interpretation of the contract, we held that the FAA did not bar a stay of arbitration pending the resolution of Stanford’s Superior Court suit against Volt and the two companies not bound by the arbitration agreement.
Preston and Ferrer’s contract also contains a choice-of-law clause, which states that the “agreement shall be governed by the laws of the state of California.” App. 17. A separate saving clause provides: “If there is any conflict between this agreement and any present or future law,” the law prevails over the contract “to the extent necessary to bring [the contract] within the requirements of said law.” Id., at 18. Those contractual terms, according to Ferrer, call for the application of California procedural law, including § 1700.44(a)’s grant of exclusive jurisdiction to the Labor Commissioner.
Ferrer’s reliance on Volt is misplaced for two discrete reasons. First, arbitration was stayed in Volt to accommodate litigation involving third parties who were strangers to the arbitration agreement. Nothing in the arbitration agreement addressed the order of proceedings when pending litigation with third parties presented the prospect of inconsistent rulings. We thought it proper, in those circumstances, to recognize state law as the gap filler.
Here, in contrast, the arbitration clause speaks to the matter in controversy; it states that “any dispute . . . relating to ... the breach, validity, or legality” of the contract should be arbitrated in accordance with the American Arbitration Association (AAA) rules. App. 18. Both parties are bound by the arbitration agreement; the question of Preston’s status as a talent agent relates to the validity or legality of the contract; there is no risk that related litigation will yield conflicting rulings on common issues; and there is no other procedural void for the choice-of-law clause to fill.
Second, we are guided by our more recent decision in Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U. S. 52 (1995). Although the contract in Volt provided for “arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association,” 489 U. S., at 470, n. 1 (internal quotation marks omitted), Volt never argued that incorporation of those rules trumped the choice-of-law clause contained in the contract, see Brief for Appellant, and Reply Brief, in Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., O. T. 1988, No. 87-1318. Therefore, neither our decision in Volt nor the decision of the California appeals court in that case addressed the import of the contract’s incorporation by reference of privately promulgated arbitration rules.
In Mastrobuono, we reached that open question while interpreting a contract with both a New York choice-of-law clause and a clause providing for arbitration in accordance with the rules of the National Association of Securities Dealers (NASD). 514 U. S., at 58-59. The “best way to harmonize” the two clauses, we held, was to read the choice-of-law clause “to encompass substantive principles that New York courts would apply, but not to include [New York’s] special rules limiting the authority of arbitrators.” Id., at 63-64.
Preston and Ferrer’s contract, as noted, provides for arbitration in accordance with the AAA rules. App. 18. One of those rules states that “[t]he arbitrator shall have the power to determine the existence or validity of a contract of which an arbitration clause forms a part.” AAA, Commercial Arbitration Rules ¶ R-7(b) (2007), online at http:// www.adr.org/sp.asp?id=22440 (as visited Feb. 15,2008, and in Clerk of Court’s case file). The incorporation of the AAA rules, and in particular Rule 7(b), weighs against inferring from the choice-of-law clause an understanding shared by Ferrer and Preston that their disputes would be heard, in the first instance, by the Labor Commissioner. Following the guide Mastrobuono provides, the “best way to harmonize” the parties’ adoption of the AAA rules and their selection of California law is to read the latter to encompass prescriptions governing the substantive rights and obligations of the parties, but not the State’s “special rules limiting the authority of arbitrators.” 514 U. S., at 63-64.
For the reasons stated, the judgment of the California Court of Appeal is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
The TAA uses the term “talent agency” to describe both corporations and individual talent agents. We use the terms “talent agent” and “talent agency” interchangeably.
Although Ferrer urges us to overrule Southland, he relies on the same arguments we considered and rejected in Allied-Bruce Terminix Cos. v. Dobson, 513 U. S. 265 (1995). Compare Brief for Respondent 55-59 with Brief for Attorney General of Alabama et al. as Amici Curiae in AlliedBruce Terminix Cos. v. Dobson, O. T. 1994, No. 93-1001, pp. 11-19. Adhering to precedent, we do not take up Ferrer’s invitation to overrule Southland.
Ferrer’s petition to the Labor Commissioner sought a declaration that the contract “is void under the [TAA].” App. 23. His complaint in Superior Court seeking to enjoin arbitration asserted: “[T]he [contract is void by reason of [Preston’s] attempt to procure employment for [Ferrer] in violation of the [TAA],” and “the Contract’s arbitration clause does not vest authority in an arbitrator to determine whether the contract is void.” Id., at 27. His brief in the appeals court stated: “Ferrer does not contend that the arbitration clause in the Contract was procured by fraud. Ferrer contends that Preston unlawfully acted as an unlicensed talent agent and hence cannot enforce the Contract.” Brief for Respondent in No. B188997, p. 18.
Courts “may void the entire contract” where talent agency services regulated by the TAA are “inseparable from [unregulated] managerial services.” Marathon Entertainment, Inc. v. Blasi, 42 Cal. 4th 974, 998, 174 P. 3d 741,744 (2008). If the contractual terms are severable, however, “an isolated instance” of unlicensed conduct “does not automatically bar recovery for services that could lawfully be provided without a license.” Ibid.
To appeal the Labor Commissioner’s decision, an aggrieved party must post a bond of at least $ 1,000 and up to twice the amount of any judgment approved by the Commissioner. § 1700.44(a).
From Superior Court an appeal lies in the Court of Appeal. Cal. Civ. Proe. Code Ann. § 904.1(a) (West 2007); Cal. Rule of Court 8.100(a) (Appellate Rules) (West 2007 rev. ed.). Thereafter, the losing party may seek review in the California Supreme Court, Rule 8.500(a)(1) (Appellate Rules), perhaps followed by a petition for a writ of certiorari in this Court, 28 U. S. C. § 1257. Ferrer has not identified a single case holding that ' California law permits interruption of this chain of appeals to allow the arbitrator to review the Labor Commissioner’s decision. See Tr. of Oral Arg. 35.
Enforcement of the parties’ arbitration agreement in this case does not displace any independent authority the Labor Commissioner may have to investigate and rectify violations of the TAA. See Brief for Respondent 47 (“[T]he Commissioner has independent investigatory authority and may receive information concerning alleged violations of the TAA from any source.” (citation omitted)). See also Tr. of Oral Arg. 13-14.
The question in Mastrobuono was whether the arbitrator could award punitive damages. See Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U. S. 52, 53-54 (1995). New York law prohibited arbitrators, but not courts, from awarding such damages. Id., at 55. The NASD rules, in contrast, authorized “damages and other relief,” which, according to an NASD arbitration manual, included punitive damages. Id., at 61 (internal quotation marks omitted). Relying on Volt, respondents argued that the choice-of-law clause incorporated into the parties’ arbitration agreement New York’s ban on arbitral awards of punitive damages. Opposing that argument, petitioners successfully urged that the agreement to arbitrate in accordance with the NASD rules controlled. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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116
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BOARD OF REGENTS OF THE UNIVERSITY OF TEXAS SYSTEM v. NEW LEFT EDUCATION PROJECT et al.
No. 70-55.
Argued December 6, 1971
Decided January 24, 1972
W. 0. Shultz II, Assistant Attorney General of Texas, argued the cause for appellant. With him on the brief were Crawford C. Martin, Attorney General, Nola White, First Assistant Attorney General, Alfred Walker, Executive Assistant Attorney General, and J. C. Davis, Pat Bailey, and James C. McCoy, Assistant Attorneys General.
David R. Richards argued the cause for appellees. With him on the brief was Melvin L. Wulf.
Mr. Justice White
delivered the opinion of the Court.
This case comes here on direct appeal from the ruling of a three-judge court declaring unconstitutional and enjoining enforcement of two sections of the Rules and Regulations of appellant Board of Regents of the University of Texas System. 326 F. Supp. 158 (1970). We postponed consideration of our jurisdiction to a hearing on the merits. 401 U. S. 935 (1971). For reasons explained below, we have concluded that we lack jurisdiction of this appeal.
This litigation began when the Board of Regents sued the New Left Education Project and certain individuals in a Texas court. In that suit, the Regents sought to restrain defendants from distributing a newspaper and making either commercial or noncommercial solicitations on the Austin campus of the University of Texas except in compliance with appellant's rules. Defendants countered by bringing this federal suit to enjoin further state court proceedings on the ground that the rules that the Regents sought to enforce abridged defendants’ First Amendment rights. A three-judge court met and determined that it was properly convened pursuant to 28 U. S. C. § 2281. It then permitted certain other organizations and individuals, including appellees here, to join the suit as plaintiffs and dismissed the action as to those involved in the state court adjudication. Thereafter, the court granted summary judgment in favor of appellees, declaring unconstitutional and permanently enjoining enforcement of two rules, Regents’ Rules & Regs., c. VI, pt. 1, §§ 6.11, 6.12 (App. 173), governing the campus distribution of certain kinds of literature and the solicitation of dues from members of political organizations.
We have jurisdiction to review directly the lower court’s order granting an injunction only if the case was one required to be heard and determined by a three-judge court. 28 U. S. C. § 1253. Such a court is required where the challenged statute or regulation, albeit created or authorized by a state legislature, has statewide application or effectuates a statewide policy. But a single judge, not a three-judge court, must hear the case where the statute or regulation is of only local import. Moody v. Flowers, 387 U. S. 97 (1967); Rorick v. Board of Commissioners, 307 U. S. 208 (1939); Ex parte Public National Bank, 278 U. S. 101 (1928); Ex parte Collins, 277 U. S. 565 (1928). This rule achieves the congressional purpose of saving statewide regulatory legislation from invalidation through ordinary federal court equity suits, minimizes the burden that the three-judge court places upon the federal judiciary, and avoids unduly expanding the Court’s carefully limited appellate jurisdiction. Phillips v. United States, 312 U. S. 246, 250 (1941). Thus, the "term `statute’ in § 2281 does not encompass local ordinances or resolutions," Moody v. Flowers, supra, at 101, nor does it include a state statute having only a local impact, even if administered by a state official. Rorick v. Board of Commissioners, supra.
Appellant Board of Regents was created by the Texas Legislature and is charged with governing those educational institutions in the University of Texas System. Texas Rev. Civ. Stat. Ann., Art. 2585 (1965). This governance, which specifically includes a rulemaking power, ibid., extends to but three of the 23 four-year state colleges and universities listed in the Higher Education Coordinating Act of 1965, id., Art. 2919e-2, § 2 (Supp. 1970-1971): the University of Texas at Austin, El Paso, and Arlington. In addition to the 20 senior colleges and universities for which appellant bears no responsibility, Texas has at least 31 public junior colleges that are not within the University of Texas System. Ibid. It is true that the Board of Regents governs numerous medical and other specialized schools and branches, id., Arts. 2603e to 2603i, 2606b to 2606d, but these are only some of the specialized institutions that Texas denominates as agencies of higher education. Id., Art. 2919e-2, §§ 2 (e)-(g) (Supp. 1970-1971). It is therefore apparent that the Regents’ rulemaking power and the rules at issue in this litigation extend to but a fraction of the campuses in the Texas system of higher public education. These rules can scarcely be described as matters of statewide concern or expressions of a statewide policy when a large percentage of Texas colleges and universities are unaffected by them and could not be affected by any pronouncement that a federal court might make on their constitutionality. There is no suggestion or indication of any kind that the Regents’ rules are similar to those for other schools or are required by or express statewide policy. The situation here is comparable to that in Moody v. Flowers, supra, where we held that three-judge courts were improperly convened to consider challenges to a state statute applying to a particular country and to a county charter based upon a state statute. The fact that several campuses over which the Board of Regents has jurisdiction are located in different parts of the State does not in our view make their rules of general applicability for the purpose of 28 U. S. C. § 2281. These rules, applying only to some of the higher educational institutions of the State, are of limited significance and do not partake of the quality and dignity of those state statutes or policies that three-judge courts were designed to consider. We are persuaded that a contrary view of this case would be inconsistent with our oft-repeated admonition that the three-judge court statute is to be strictly construed. E. g., Allen v. State Board of Elections, 393 U. S. 544 (1969); Phillips v. United States, 312 U. S., at 251.
Since the three-judge court was improperly convened, appeal lies not here but to the Court of Appeals for the Fifth Circuit. So that appellant may be able, if it desires, to perfect a timely appeal, we vacate the judgment below and remand the case with instruction that the court enter a fresh decree. Phillips v. United States, supra, at 254.
Judgment vacated and remanded.
Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of this case.
Appellant also mentions the University of Texas at San Antonio and of the Permian Basin but does not take issue with appellees’ contention that these schools are merely in the planning stage (Brief for Appellees 2 n. 1).
It has long been settled that a three-judge court is proper even in a suit against a local official, although localized in his geographic activities and mode of his selection, when he is engaged in enforcing a policy of statewide application whose constitutionality is challenged. Spielman Motor Sales Co. v. Dodge, 295 U. S. 89 (1935); Rorick v. Board of Commissioners, 307 U. S. 208, 212 (1939). The thrust of our more recent decision in Alabama State Teachers Assn. v. Alabama Public School and College Authority, 393 U. S. 400 (1969), is to the same effect. The issue there was a legislative direction to the Alabama Public School and Housing Authority to issue bonds for the construction of a public university in Montgomery, Alabama. Appellants challenged that action, although having a local impact, as expressive of an official, statewide policy to maintain a racially identifiable, dual system of education, and the District Court denied relief. The dissent on the merits from summary affirmance, disagreeing with Mr. Justice Harlan’s dissent on jurisdictional grounds, agreed that a statewide policy was sufficiently implicated to sustain the jurisdiction of the three-judge court and the direct appeal here. Board of Visitors v. Norris, post, p. 907, aff’g 327 F. Supp. 1368 (ED Va. 1971), rests upon the same basis. In McLaurin v. Oklahoma State Regents, 339 U. S. 637 (1950), the Court entertained an appeal from the judgment of a three-judge District Court upholding an Oklahoma statute providing that Negroes, though admissible to white graduate schools, must get that education on a segregated basis.
Nothing in the record before us in this case indicates that the regulations challenged here represent general state policy, reflect a statutory command, or apply to more than a fraction of the Texas higher educational institutions. It is thus difficult to understand the dissent’s reliance on the Alabama, Norris, and McLaurin cases. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent. | Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented? | [
"Yes",
"No"
] | [
1
] | sc_lcdisagreement |
ADDERLEY et al. v. FLORIDA.
No. 19.
Argued October 18, 1966.
Decided November 14, 1966.
Richard Yale Feder argued the cause for petitioners. With him on the brief was Tobias Simon.
William D. Roth, Assistant Attorney General of Florida, argued the cause for respondent, pro hac vice, by special leave of Court. With him on the brief was Earl Faircloth, Attorney General.
Mr. Justice Black
delivered the opinion of the Court.
Petitioners, Harriett Louise Adderley and 31 other, persons, were convicted by a jury in a joint trial in the County Judge’s Court of Leon County, Florida, on a charge of “trespass with a malicious and mischievous intent” upon the premises of the county jail contrary to § 821.18 of the Florida statutes set out below. Petitioners, apparently all students of the Florida A. & M. University in Tallahassee, had gone from the school to the jail about a mile away, along with many other students, to “demonstrate” at the jail their protests of arrests of other protesting students the day before, and perhaps to protest more generally against state and local policies and practices of racial segregation, including segregation of the jail. The county sheriff, legal custodian of the jail and jail grounds, tried to persuade the students to leave the jail grounds. When this did not work, he notified them that they must leave, that if they did not leave he would arrest them for trespassing, and that if they resisted he would Gharge them with that as well. Some of the students left but others, including petitioners, remained and they were arrested. On appeal the convictions were affirmed by the Florida Circuit Court and then by the Florida District Court of Appeal, 175 So. 2d 249. That being the highest state court to which they could appeal, petitioners applied to us for certiorari contending that, in view of petitioners’ purpose to protest against jail and other segregation policies, their conviction denied them “rights of free speech, assembly, petition, due process of law and equal protection of the laws as guaranteed by the Fourteenth Amendment to the Constitution of the- United States.” On. this “Question Presented” we granted certiorari. 382 U. S. 1023. Petitioners present their argument on this question in four separate points, and for convenience we deal with each of their points in the order in which they present them.
I.
Petitioners have insisted from the beginning of this case that it is controlled by and must be reversed be- - cause of our prior cases of Edwards v. South Carolina, 372 U. S. 229, and Cox v. Louisiana, 379 U. S. 536, 559. We cannot agree.
The Edwards case, like this one, did come up when a number of persons demonstrated on public property against their State’s segregation policies. They also sang hymns and danced, as did the demonstrators in this case. But here the analogies to this case end. In Edwards, the demonstrators went to the South Carolina State Capitol grounds to protest. In this case they went to the jail. Traditionally, state capitol grounds are open to the public. Jails, built for security purposes, are not. The demonstrators at the South Carolina Capitol went in through a public driveway and as they entered they were told by state officials there that they had a right as citizens to go through the State House grounds as long as they were peaceful. Here the demonstrators entered the jail grounds through a driveway used only for jail purposes and without warning to or permission from the sheriff. More importantly, South Carolina sought to prosecute its State Capitol demonstrators by charging them with the common-law crime of breach of the peace, j This Court in Edwards took pains to point out at length the indefinite, loose, and broad nature of this charge; indeed, this Court pointed out at p. 237, that the South Carolina Supreme Court had itself declared that the “breach of the peace” charge is “not susceptible of exact definition.” South Carolina’s power to prosecute, it was emphasized at p. 236, would have been different had the State proceeded under a< “precise and narrowly drawn regulatory statute evincing a legislative judgment that certain specific conduct be limited or proscribed” such as, for example, “limiting the periods during which the State House grounds were open to the public . . . The South Carolina breach-of-the-peace statute was thus struck down as being so broad and all-embracing as to jeopardize speech, press, assembly and petition, under the constitutional doctrine enunciated in Cantwell v. Connecticut, 310 U. S. 296, 307-308, and followed in many subsequent cases. And it was on this same ground of vagueness that in Cox v. Louisiana, supra, at 551-552, the Louisiana breach-of-the-peace law used to prosecute Cox was invalidated.
The Florida trespass statute under which these petitioners were charged cannot be challenged on this ground. \ It is aimed at conduct of one limited kind, that is, for one person or persons to trespass upon the property of another with a malicious and mischievous intent. There is no lack o.f notice in this law, nothing to entrap or fool the unwary.j
Petitioners seem" to argue that the Florida trespass law is void for vagueness because it requires a trespass to be “with a malicious and mischievous intent . . . .” But these words do not broaden the scope of trespass so as to make it cover a multitude of types of conduct as does the common-law breach-of-the-peace charge. On the contrary, these words narrow the scope of the offense. The trial court charged the jury as to their meaning and petitioners have not argued that this definition, set out below, is not a reasonable and clear definition of the terms. The use of these terms- in the statute, instead of contributing to uncertainty and misunderstanding, actually makes its meaning more understandable and clear.
II.
Petitioners in this Court invoke the doctrine of abatement announced by this Court in Hamm v. City of Rock Hill, 379 U. S. 306. But that holding was that the Civil Rights Act of 1964, 78 Stat. 241, which made it unlawful for places of public accommodation to deny service to any person because of race, effected an abatement of prosecutions of persons for seeking such services that arose prior to the passage of the Act. But this case in no way involves prosecution of petitioners for seeking service in establishments covered by the Act. It involves only an alleged trespass on jail grounds — a trespass which can be prosecuted regardless of the fact that it is the means of protesting segregation of establishments covered by the Act.
III.
Petitioners next argue that “petty criminal statutes may not be used to violate minorities’ constitutional rights.” This of course is true but this abstract proposition gets us nowhere in deciding this case.
IV.
Petitioners here contend that “Petitioners’ convictions are based on a total lack of relevant evidence.” If true, this would be a denial of due process under Garner v. Louisiana, 368 U. S. 157, and Thompson v. City of Louisville, 362 U. S. 199. Both in the petition for certiorari and in the brief on the merits petitioners state that their summary of the evidence “does not conflict with the facts contained in the Circuit Court’s opinion” which was in effect affirmed by the District Court of Appeal. 175 So. 2d 249. That statement is correct and petitioners’ summary of facts, as well as that of the Circuit Court, shows an abundance of facts to support the jury’s verdict of guilty in this case.
In summary both these statements show testimony ample to prove this: Disturbed and upset by the arrest of their schoolmates the day before, a large number of Florida A. & M. students assembled on the school grounds and decided to march down to the county jail. Some apparently wanted to be put in jail too, along with the students already there. A group of around 200 marched from the school and arrived at the jail singing and clapping. They went directly to the jail-door entrance where they were met by a deputy sheriff, evidently surprised by their arrival. He asked them to move back, claiming they were blocking the entrance to the jail and fearing that they might attempt to enter the jail. They moved back part of the way, where they stood or sat, singing, clapping and dancing, on the jail driveway and on an adjacent grassy area upon the jail premises. This particular jail entrance and driveway were not normally used by the public, but by the sheriff’s department for transporting prisoners to and from the courts several blocks away and by commercial concerns for servicing the jail. Even after their partial retreat, the demonstrators continued to block vehicular passage over' this driveway up to the entrance of the jail. Someone called the sheriff who was at the moment apparently conferring with one of the state court judges about incidents connected with prior arrests for demonstrations. When the sheriff returned to the jail, he immediately inquired if all was safe inside the jail and was told it was. He then engaged in a conversation with two of the leaders. He told them that they were trespassing upon jail property and that he would give them 10 minutes to leave or he would arrest them. Neither of the leaders did anything to disperse the crowd, and one of them told the sheriff that they wanted to get arrested. A local minister talked with some of the demonstrators and told them not to enter the jail, because they could not arrest themselves, but just to remain where they were. After about 10 minutes, the sheriff, in a voice loud enough to be heard by all, told the demonstrators that he was the legal custodian of the jail and its premises, that they were trespassing on county property in violation of the law, that they should all leave forthwith or he would arrest them, and that if they attempted to resist arrest, he would charge them with that as a separate offense. Some of the group then left. Others, including all petitioners, did not leave. Some of them sat down. In a few minutes, realizing that the remaining demonstrators had no intention of leaving, the sheriff ordered his deputies to surround those remaining on jail premises and placed them, 107 demonstrators, under arrest. The sheriff unequivocally testified that he did not arrest any persons other than those who were on the jail premises. Of the three petitioners testifying, two insisted that they were arrested before they had a chance to leave, had they wanted to, and one testified that she did not intend to leave. The sheriff again explicitly testified that he did not arrest any person who was attempting to leave.
Under the foregoing testimony the jury was authorized to find that the State had proven every essential element of the crime, as it was defined by the state court. That interpretation is, of course, binding on us, leaving only the question of whether conviction of the state offense, thus defined, unconstitutionally deprives petitioners of their rights to freedom of speech, press, assembly or petition. We hold it does not. The sheriff, as jail custodian, had power, as the state courts have here held, to direct that this large crowd of people get off the grounds. There is. not a shred of evidence in this record that this power was exercised, or that its exercise was sanctioned by the lower courts, because the sheriff objected to what was being sung or said by the demonstrators or because he disagreed with the objectives of their protest. The record reveals that he objected only to their presence on that part of the jail grounds reserved for jail uses. There is no evidence at all that on any other occasion had similarly large groups of the public been permitted to gather on this portion of the jail grounds for any purpose. Nothing in the Constitution of the United States prevents Florida from even-handed enforcement of its general trespass statute against those refusing to obey the sheriff’s order to remove themselves from what amounted to the curtilage of the jailhouse. The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated. For this reason there is no merit to the petitioners’ argument that they had a constitutional right to stay on the property, over the jail custodian’s objections, because this “area chosen for the peaceful civil rights demonstration was not only 'reasonable’ but also particularly appropriate . . . .” Such an argument has as its major unarticulated premise the assumption that people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please. That concept of constitutional law was vigorously and forthrightly rejected in two of the cases petitioners rely on, Cox v. Louisiana, supra, at 554-655 and 563-564. We reject it again. The United States Constitution does not forbid a State to control the use of its own property for its own lawful nondiscriminatory purpose.
These judgments are Affirmed.
“Every trespass upon the property of another, committed with a malicious and mischievous intent, the punishment of which is not specially provided for, shall be punished by imprisonment not exceeding three months, or by fine not exceeding one hundred dollars.” Fla. Stat. §821.18 (1965).
“ 'Malicious’ means wrongful, you remember back in the original charge, the State has to prove beyond a reasonable doubt there was a malicious and mischievous intent. The word ‘malicious’ means that the wrongful act shall be done voluntarily, unlawfully and without excuse or justification. The word ‘malicious’ that is used in these affidavits does not necessarily allege nor require the State to prove that the defendant had actual malice in his mind at the time of the alleged trespass. Another way of stating the definition of ‘malicious’ is by ‘malicious’ is meant the act was done knowingly and willfully and without any legal justification. “
“ ‘Mischievous,’ which is also required, means that the alleged trespass shall be inclined to cause petty and trivial trouble, annoyance and vexation to others in order for you to find that the alleged trespass was committed with mischievous intent.” R. 74.
The three petitioners who testified insisted that they had not come to the jail for the purpose of being arrested. But both the sheriff and a deputy testified that they heard several of the demonstrators present at the jail loudly proclaim their desire to be arrested. Indeed, this latter version is borne out by the fact that, though assertedly protesting the prior arrests of their fellow students and the city’s segregation policies, none of the demonstrators carried any signs and upon arriving at the jail, no speeches or other verbal protests were made.
There is no evidence that any attempt was made by law enforcement officers to interfere with this march, or, for that matter, that such officers even knew of the march or its ultimate destination.
Although some of the petitioners testified that they had no intention of interfering with vehicular traffic to and from the jail entrance and that they noticed no vehicle trying to enter or leave the driveway, the deputy sheriff testified that it would have been impossible for automobiles to drive up to the jail entrance and that one serviceman, finished with his business in the jail, waited inside because the demonstrators were sitting around and leaning against his truck parked outside. The sheriff testified that the time the demonstrators were there, between 9:30 and 10 Monday morning, was generally a very busy time for using the jail entrance to transport weekend inmates to the courts and for tradesmen to make service calls at the jail.
In Cox v. Louisiana, supra, at 558, the Court emphasized: “It; is, of course, undisputed that appropriate, limited discretion, under properly drawn statutes or ordinances, concerning the time, place, duration, or manner of use of the streets for public assemblies may be vested in administrative officials, provided that such limited discretion is ‘exercised with “uniformity of method of treatment upon the facts of each application, free from improper or inappropriate considerations and from unfair discrimination” . . . [and with] a “systematic, consistent and just order of treatment, with reference to the convenience of public use of the highways
“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. . . . A group of demonstrators could not insist upon the right to cordon off a street, or entrance to a public or private building, and allow no one to pass who did not agree to listen to their exhortations.” 379 U. S., at 554-555.
“The conduct which is the subject of this statute — picketing and parading — is subject to regulation even though intertwined with expression’ and association. The examples are many of the application by this Court of the principle that certain forms of conduct mixed with speech may be regulated or prohibited.” Id., at 563. | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. | What is the issue area of the decision? | [
"Criminal Procedure",
"Civil Rights",
"First Amendment",
"Due Process",
"Privacy",
"Attorneys",
"Unions",
"Economic Activity",
"Judicial Power",
"Federalism",
"Interstate Relations",
"Federal Taxation",
"Miscellaneous",
"Private Action"
] | [
2
] | sc_issuearea |
MORTON, SECRETARY OF THE INTERIOR, et al. v. MANCARI et al.
No. 73-362.
Argued April 24, 1974
Decided June 17, 1974
BlackmuN, J., delivered the opinion for a unanimous Court.
Harry R. Sachse argued the cause for appellants in No. 73-362. With him on the brief were Solicitor General Bork, Assistant Attorney General Pottinger, Carlton R. Stoiber, and M. Patricia Schaffer. Harris D. Sherman argued the cause for appellant in No. 73-364. With him on the briefs was Stuart J. Land.
Gene E. Franchini argued the cause and filed a brief for appellees in both cases.
Together with No. 73-364, Amerind v. Mancari et al., also on appeal from the same court.
Briefs of amici curiae urging reversal were filed by Theodore S. Hope, Jr., William C. Pelster, and Joseph E. Fortenberry for Montana Inter-Tribal Policy Board et al., and by Sanford Jay Rosen for the Mexican American Legal Defense and Educational Fund.
Mr. Justice Blackmun
delivered the opinion of the Court.
The Indian Reorganization Act of 1934, also known as the Wheeler-Howard Act, 48 Stat. 984, 25 U. S. C. § 461 et seq., accords an employment preference for qualified Indians in the Bureau of Indian Affairs (BIA or Bureau). Appellees, non-Indian BIA employees, challenged this preference as contrary to the anti-discrimination provisions of the Equal Employment Opportunity Act of 1972, 86 Stat. 103, 42 U. S. C. § 2000e et seq. (1970 ed., Supp. II), and as violative of the Due Process Clause of the Fifth Amendment. A three-judge Federal District Court concluded that the Indian preference under the 1934 Act was impliedly repealed by the 1972 Act. 359 F. Supp. 585 (NM 1973). We noted probable jurisdiction in order to examine the statutory and constitutional validity of this longstanding Indian preference. 414 U. S. 1142 (1974); 415 U. S. 946 (1974).
I
Section 12 of the Indian Reorganization Act, 48 Stat. 986,25 U. S. C. § 472, provides:
“The Secretary of the Interior is directed to establish standards of health, age, character, experience, knowledge, and ability for Indians who may be appointed, without regard to civil-service laws, to the various positions maintained, now or hereafter, by the Indian Office,[] in the administration of functions or services affecting any Indian tribe. Such qualified Indians shall hereafter have the preference to appointment to vacancies in any such positions.”
In June 1972, pursuant to this provision, the Commissioner of Indian Affairs, with the approval of the Secretary of the Interior, issued a directive (Personnel Management Letter No. 72-12) (App. 52) stating that the BIA’s policy would be to grant a preference to qualified Indians not only, as before, in the initial hiring stage, but also in the situation where an Indian and a non-Indian, both already employed by the BIA, were competing for a promotion within the Bureau. The record indicates that this policy was implemented immediately.
Shortly thereafter, appellees, who are non-Indian employees of the BIA at Albuquerque, instituted this class action, on behalf of themselves and other non-Indian employees similarly situated, in the United States District Court for the District of New Mexico, claiming that the “so-called 'Indian Preference Statutes,’ ” App. 15, were repealed by the 1972 Equal Employment Opportunity Act and deprived them of rights to\property without due process of law, in violation of the Fifth Amendment. Named as defendants were the Secretary of the Interior, the Commissioner of Indian Affairs, and the BIA Directors for the Albuquerque and Navajo Area Offices. Appellees claimed that implementation and enforcement of the new preference policy “placed and will continue to place [appellees] at a distinct disadvantage in competing for promotion and training programs with Indian employees, all of which has and will continue to subject the [appellees] to discrimination and deny them equal employment opportunity.” App. 16.
A three-judge court was convened pursuant to 28 U. S. C. § 2282 because the complaint sought to enjoin, as unconstitutional, the enforcement of a federal statute. Appellant Amerind, a nonprofit organization representing Indian employees of the BIA, moved to intervene in support of the preference; this motion was granted by the District Court and Amerind thereafter participated at all stages of the litigation.
After a short trial focusing primarily on how the new policy, in fact, has been implemented, the District Court concluded that the Indian preference was implicitly repealed by § 11 of the Equal Employment Opportunity Act of 1972, Pub. L. 92-261, 86 Stat. Ill, 42 U. S. C. § 2000e-16 (a) (1970 ed., Supp. II), proscribing discrimination in most federal employment on the basis of race. Having found that Congress repealed the preference, it was unnecessary for the District Court to pass on its constitutionality. The court permanently enjoined appellants “from implementing any policy in the Bureau of Indian Affairs which would hire, promote, or reassign any person in preference to another solely for the reason that such person is an Indian.” The execution and enforcement of the judgment of the District Court was stayed by Mr. Justice Marshall on August 16, 1973, pending the disposition of this appeal.
II
The federal policy of according some hiring preference to Indians in the Indian service dates at least as far back as 1834. Since that time, Congress repeatedly has enacted various preferences of the general type here at issue. The purpose of these preferences, as variously expressed in the legislative history, has been to give Indians a greater participation in their own self-government; to further the Government’s trust obligation toward the Indian tribes; and to reduce the negative effect of having non-Indians administer matters that affect Indian tribal life.
The preference directly at issue here was enacted as an important part of the sweeping Indian Reorganization Act of 1934. The overriding purpose of that particular Act was to establish machinery whereby Indian tribes-would be able to assume a greater degree of self-government, both politically and economically. Congress was seeking to modify the then-existing situation whereby the primarily non-Indian-staffed BIA had plenary control, for all practical purposes, over the lives and destinies of the federally recognized Indian tribes. Initial congressional proposals would have diminished substantially the role of the BIA by turning over to federally chartered self-governing Indian communities many of the functions normally performed by the Bureau. Committee sentiment, however, ran against such a radical change in the role of the BIA. The solution ultimately adopted was to strengthen tribal government while continuing the active role of the BIA, with the understanding that the Bureau would be more responsive to the interests of the people it was created to serve.
One of the primary means by which self-government would be fostered and the Bureau made more responsive was to increase the participation of tribal Indians in the BIA operations. In order to achieve this end, it was recognized that some kind of preference and exemption from otherwise prevailing civil service requirements was necessary. Congressman Howard, the House sponsor, expressed the need for the preference:
“The Indians have not only been thus deprived of civic rights and powers, but they have been largely deprived of the opportunity to enter the more important positions in the service of the very bureau which manages their affairs. Theoretically, the Indians have the right to qualify for the Federal civil service. In actual practice there has been no adequate program of training to qualify Indians to compete in these examinations, especially for technical and higher positions; and even if there were such training, the Indians would have to compete under existing law, on equal terms with multitudes of white applicants. . . . The various services on the Indian reservations are actually local rather than Federal services and are comparable to local municipal and county services, since they are dealing with purely local Indian problems. It should be possible for Indians with the requisite vocational and professional training to enter the service of their own people without the necessity of competing with white applicants for these positions. This bill permits them to do so.” 78 Cong. Rec. 11729 (1934).
Congress was well aware that the proposed preference would result in employment disadvantages within the BIA for non-Indians. Not only was this displacement unavoidable if room were to be made for Indians, but it was explicitly determined that gradual replacement of non-Indians with Indians within the Bureau was a desirable feature of the entire program for self-government. Since 1934, the BIA has implemented the preference with a fair degree of success. The percentage of Indians employed in the Bureau rose from 34% in 1934 to 57% in 1972. This reversed the former downward trend, see n. 16, supra, and was due, clearly, to the presence of the 1934 Act. The Commissioner’s extension of the preference in 1972 to promotions within the BIA was designed to bring more Indians into positions of responsibility and, in that regard, appears to be a logical extension of the congressional intent. See Freeman v. Morton, 162 U. S. App. D. C. 358, 499 F. 2d 494 (1974), and n. 5, supra.
It is against this background that we encounter the first issue in the present case: whether the Indian preference was repealed by the Equal Employment Opportunity Act of 1972. Title VII of the Civil Rights Act of 1964, 78 Stat. 253, was the first major piece of federal legislation prohibiting discrimination in private employment on the basis of “race, color, religion, sex, or national origin.” 42 U. S. C. §2000e-2(a). Significantly, §§ 701 (b) and 703 (i) of that Act explicitly exempted from its coverage the preferential employment of Indians by Indian tribes or by industries located on or near Indian reservations. 42 U. S. C. §§ 2000e (b) and 2000e-2 (i). This exemption reveals a clear congressional recognition, within the framework of Title VII, of the unique legal status of tribal and reservation-based activities. The Senate sponsor, Senator Humphrey, stated on the floor by way of explanation:
“This exemption is consistent with the Federal Government’s policy of encouraging Indian employment and with the special legal position of Indians.” 110 Cong. Rec. 12723 (1964).
The 1964 Act did not specifically outlaw employment discrimination by the Federal Government. Yet the mechanism for enforcing longstanding Executive Orders forbidding Government discrimination had proved ineffective for the most part. In order to remedy this, Congress, by the 1972 Act, amended the 1964 Act and proscribed discrimination in most areas of federal employment. See n. 6, supra. In general, it may be said that the substantive anti-discrimination law embraced in Title VII was carried over and applied to the Federal Government. As stated in the House Report:
“To correct this entrenched discrimination in the Federal service, it is necessary to insure the effective application of uniform, fair and strongly enforced policies. The present law and the proposed statute do not permit industry and labor organizations to be the judges of their own conduct in the area of employment discrimination. There is no reason why government agencies should not be treated similarly. . . H. R. Rep. No. 92-238, on H. R. 1746, pp. 2^-25 (1971).
Nowhere in the legislative history of the 1972 Act, however, is there any mention of Indian preference.
Appellees assert, and the District Court held, that since the 1972 Act proscribed racial discrimination in Government employment, the Act necessarily, albeit sub silentio, repealed the provision of the 1934 Act that called for the preference in the BIA of one racial group, Indians, over non-Indians:
“When a conflict such as in this case, is present, the most recent law or Act should apply and the conflicting Preferences passed some 39 years earlier should be impliedly repealed.” Brief for Appellees 7.
We disagree. For several reasons we conclude that Congress did not intend to repeal the Indian preference and that the District Court erred in holding that it was repealed.
First: There are the above-mentioned affirmative provisions in the 1964 Act excluding coverage of tribal employment and of preferential treatment by a business or enterprise on or near a reservation. 42 U. S. C. §§ 2000e (b) and 2000e-2 (i). See n. 19, supra. These 1964 exemptions as to private employment indicate Congress’ recognition of the longstanding federal policy of providing a unique legal status to Indians in matters concerning tribal or “on or near” reservation employment. The exemptions reveal a clear congressional sentiment that an Indian preference in the narrow context of tribal or reservation-related employment did not constitute racial discrimination of the type otherwise proscribed. In extending the general anti-discrimination machinery to federal employment in 1972, Congress in no way modified these private employment preferences built into the 1964 Act, and they are still in effect. It would be anomalous to conclude that Congress intended to eliminate the longstanding statutory preferences in BIA employment, as being racially discriminatory, at the very same time it was reaffirming the right of tribal and reservation-related private employers to provide Indian preference. Appellees’ assertion that Congress implicitly repealed the preference as racially discriminatory, while retaining the 1964 preferences, attributes to Congress irrationality and arbitrariness, an attribution we do not share.
■ Second: Three months after Congress passed the 1972 amendments, it enacted two new Indian preference laws. These were part of the Education Amendments of 1972, 86 Stat. 235, 20 U. S. C. §§ 887c (a) and (d), and § 1119a (1970 ed., Supp. II). The new laws explicitly require that Indians be given preference in Government programs for training teachers of Indian children. It is improbable, to say the least, that the same Congress which affirmatively approved and enacted these additional and similar Indian preferences was, at the same time, con-deinning the BIA preference as racially discriminatory. In the total absence of any manifestation of supportive intent, we are loathe to imply this improbable result.
Third: Indian preferences, for many years, have been treated as exceptions to Executive Orders forbidding Government employment discrimination. The 1972 extension of the Civil Rights Act to Government employment is in large part merely a codification of prior anti-discrimination Executive Orders that had proved ineffective because of inadequate enforcement machinery. There certainly was no indication that the substantive proscription against discrimination was intended to be any broader than that which previously existed. By codifying the existing anti-discrimination provisions, and by providing enforcement machinery for them, there is no reason to presume that Congress affirmatively intended to erase the preferences that previously had coexisted with broad anti-discrimination provisions in Executive Orders.
Fourth: Appellees encounter head-on the “cardinal rule . . . that repeals by implication are not favored.” Posadas v. National City Bank, 296 U. S. 497, 503 (1936) ; Wood v. United States, 16 Pet. 342-343, 363 (1842); Universal Interpretive Shuttle Corp. v. Washington Metropolitan Area Transit Comm’n, 393 U. S. 186, 193 (1968). They and the District Court read the congressional silence as effectuating a repeal by implication. There is nothing in the legislative history, however, that indicates affirmatively any congressional intent to repeal the 1934 preference. Indeed, as explained above, there ■is ample independent evidence that the legislative intent was to the contrary.
This is a prototypical case where an adjudication of repeal by implication is not appropriate. The preference is a longstanding, important component of the Government’s Indian program. The anti-discrimination provision, aimed at alleviating minority discrimination in employment, obviously is designed to deal with an entirely different and, indeed, opposite problem. Any perceived conflict is thus more apparent than real.
In the absence of some affirmative showing of an intention to repeal, the only-permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable. Georgia v. Pennsylvania R. Co., 324 U. S. 439, 456—457 (1945). Clearly, this is not the case'here. .A provision aimed at furthering Indian self-government by according an employment preference within the BIA for qualified members of the governed group can readily co-exist with a general rule prohibiting employment discrimination on the basis of race. Any other conclusion can be reached only by formalistic reasoning that ignores both the history and purposes of the preference and the unique legal relationship between the Federal Government and tribal Indians.
Furthermore, the- Indian preference statute is a specific provision applying to a very specific situation. The 1972 Act, on the other hand, is of general application. Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment. See, e. g., Bulova Watch Co. v. United States, 365 U. S. 753, 758 (1961); Rodgers v. United States, 185 U. S. 83, 87-89 (1902).
The courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective. “When there are two acts upon the same subject, the rule is to give effect to both if possible .... The intention of the legislature to repeal ‘must be clear and manifest.’ ” United States v. Borden Co., 308 U. S. 188, 198 (1939). In light of the factors indicating no repeal, we simply cannot conclude that Congress consciously abandoned its policy of furthering Indian self-government when it passed the 1972 amendments.
We therefore hold that the District Court erred in ruling that the Indian preference was repealed by the 1972 Act.
IV
We still must decide whether, as the appellees contend, the preference constitutes invidious racial discrimination in violation of the Due Process Clause of the Fifth Amendment. Bolling v. Sharpe, 347 U. S. 497 (1954). The District Court, while pretermitting this issue, said: “[W]e could well hold that the statute must fail on constitutional grounds.” 359 F. Supp., at 591.
Resolution of the instant issue turns on the unique legal status of Indian tribes under federal law and upon the plenary power of Congress, based on a history of treaties and the assumption of a “guardian-ward” status, to legislate on behalf of-federally recognized Indian tribes. The plenary power of Congress to deal with the special problems of Indians is drawn both explicitly and implicitly from the Constitution itself. Article I, § 8, cl. 3, provides Congress with the power to “regulate Commerce . . . with the Indian Tribes,” and thus, to this extent, singles Indians out as a proper subject for separate legislation. Article II, § 2, cl. 2, gives the President the power, by and with the advice and consent of the Senate, to make treaties. This has often been the source of the Government's power to deal with the Indian tribes. The Court has described the origin and nature of the special relationship:
“In the exercise of the war and treaty powers, the United States overcame the Indians and took possession of their lands, sometimes by force, leaving them an uneducated, helpless and dependent people, needing protection against the selfishness of others and their own improvidence. Of necessity, the United States assumed the duty of furnishing that protection, and with it the authority to do all that was required to perform that obligation and to prepare the Indians to take their place as independent, qualified members of the modern body politic. . . .” Board of County Comm’rs v. Seber, 318 U. S. 705, 715 (1943).
See also United States v. Kagama, 118 U. S. 375, 383-384 (1886).
Literally every piece of legislation dealing with Indian tribes and reservations, and certainly all legislation dealing with the BIA, single out for special treatment a constituency of tribal Indians living on or near reservations. If these laws, derived from historical relationships and explicitly designed to help only Indians, were deemed invidious racial discrimination, an entire Title of the United States Code (25 U. S. C.) would be effectively erased and the solemn commitment of the Government toward the Indians would be jeopardized. See Simmons v. Eagle Seelatsee, 244 F. Supp. 808, 814 n. 13 (ED Wash. 1965), aff’d, 384 U. S. 209 (1966).
It is in this historical and legal context that the constitutional validity of the Indian preference is to be determined. As discussed above, Congress in 1934 determined that proper fulfillment of its trust required turning over to the Indians a greater control of their own destinies. The overly paternalistic approach of prior years had proved both exploitative and destructive of Indian interests. Congress was united in the belief that institutional changes were required. An important part of the Indian Reorganization Act was the preference provision here at issue.
Contrary to the characterization made by appellees, this preference does not constitute “racial discrimination.” Indeed, it is not even a “racial” preference. Rather, it is an employment criterion reasonably designed to further the cause of Indian self-government and to make the BIA more responsive to the needs of its constituent groups. It is directed to participation by the governed in the governing agency. The preference is similar in kind to the constitutional requirement that a United States Senator, when elected, be “an Inhabitant of that State for which he shall be chosen/’ Art. I, § 3, cl. 3, or that a member of a city council reside within the city governed by the council. Congress has sought only to enable the BIA to draw more heavily from among the constituent group in staffing its projects, all of which, either directly or indirectly, affect the lives of tribal Indians. The preference, as applied, is granted to Indians not as a discrete racial group, but, rather, as members of quasi-sovereign tribal entities whose lives and activities are governed by the BIA in a unique fashion. See n. 24, supra. In the sense that there is no other group of people favored in this manner, the legal status of the BIA is truly mi generis. Furthermore, the preference applies only to employment in the Indian service. The preference does not cover any other Government agency or activity, and we need not consider the obviously more difficult question that would be presented by a blanket exemption for Indians from all civil service examinations. Here, the preference is reasonably and directly related to a legitimate, nonracially based goal. This is the principal characteristic that generally is absent from proscribed forms of racial discrimination.
On numerous occasions this Court specifically has upheld legislation that singles out Indians for particular and special treatment. See, e. g., Board of County Comm’rs v. Seber, 318 U. S. 705 (1943) (federally granted tax immunity); McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164 (1973) (same); Simmons v. Eagle Seelatsee, 384 U. S. 209 (1966), aff’g 244 F. Supp. 808 (ED Wash. 1965) (statutory definition of tribal membership, with resulting interest in trust estate); Williams v. Lee, 358 U. S. 217 (1959) (tribal courts and their jurisdiction over reservation affairs). Cf. Morton v. Ruiz, 415 U. S. 199 (1974) (federal welfare benefits for Indians “on or near” reservations). This unique legal status is of long standing, see Cherokee Nation v. Georgia, 5 Pet. 1 (1831); Worcester v. Georgia, 6 Pet. 515 (1832), and its sources are diverse. See generally U. S. Dept, of Interior, Federal Indian Law (1958); Comment, The Indian Battle for Self-Determination, 58 Calif. L. Rev. 445 (1970). As long as the special treatment can be tied rationally to the fulfillment of Congress’ unique obligation toward the Indians, such legislative judgments will not be disturbed. Here, where the preference is reasonable and rationally designed to further Indian self-government, we cannot say that Congress’ classification violates due process.
The judgment of the District Court is reversed and the cases are remanded for further proceedings consistent with this opinion.
It is so ordered.
The Indian Health Service was transferred in 1954 from the Department of the Interior to the Department of Health, Education, and Welfare. Act of Aug. 5, 1954, § 1, 68 Stat. 674, 42 U. S. C. § 2001. Presumably, despite this transfer, the reference in § 12 to the “Indian Office” has continuing application to the Indian Health Service. See 5 CFR § 213.3116 (b) (8).
There are earlier and more narrowly drawn Indian preference statutes. 25 U. S. C. §§ 44, 45, 46, 47, and 274. For all practical purposes, these were replaced by the broader preference of § 12. Although not directly challenged in this litigation, these statutes, under the District Court’s decision, clearly would be invalidated.
The directive stated:
“The Secretary of the Interior announced today [June 26, 1972] he has approved the Bureau’s policy to extend Indian Preference to training and to filling vacancies by original appointment, reinstatement and promotions. The new policy was discussed with the National President of the National Federation of Federal Employees under National Consultation Rights NFFE has with the Department. Secretary Morton and I jointly stress that careful attention must be given to protecting the Rights of non-Indian employees. The new policy provides as follows: Where two or more candidates who meet the established qualification requirements are available for filling a vacancy. If one of them is an Indian, he shall be given preference in filling the vacancy. This new policy is effective immediately, and is incorporated into all existing programs such as the Promotion Program. Revised Manual releases will be issued promptly for review and comment. You should take immediate steps to notify all employees and recognized unions of this policy.” App. 52-53.
The appellees state that none of them is employed on or near an Indian reservation. Brief for Appellees 8. The District Court described the appellees as “teachers ... or programmers, or in computer work.” 359 F. Supp. 585, 587 (NM 1973).
The specific question whether § 12 of the 1934 Act authorizes a preference in promotion as well as in initial hiring was not decided by the District Court' and is not now before us. We express no opinion on this issue. See Freeman v. Morton, 162 U. S. App. D. C. 358, 499 F. 2d 494 (1974). See also Mescalero Apache Tribe v. Mickel, 432 F. 2d 956 (CA10 1970), cert. denied, 401 U. S. 981 (1971) (preference held inapplicable to reduction in force).
Section 2000e-16 (a) reads:
“All personnel actions affecting employees or applicants for employment (except with regard to aliens employed outside the limits of the United States) in military departments as defined in section 102 of Title 5, in executive agencies (other than the General Accounting Office) as defined in section 105 of Title 5 (including employees and applicants for employment who are paid from nonap-propriated funds), in the United States Postal Service and the Postal Rate Commission, in those units of the Government of the District of Columbia having positions in the competitive service, and in those units of the legislative and judicial branches of the Federal Government having positions in the competitive service, and in the Library of Congress shall be made free from any discrimination based on race, color, religion, sex, or national origin.”
Act of June 30, 1834, § 9, 4 Stat: 737, 25 U. S. C. §45:
“[I]n all cases of the appointments of interpreters or other persons employed for the benefit of the Indians, a preference shall be given to persons of Indian descent, if such can be found, who are properly qualified for the execution of the duties.”
Act of May 17, 1882, § 6, 22 Stat. 88, and Act of July 4, 1884, § 6, 23 Stat. 97, 25 U. S. C. § 46 (employment of clerical, mechanical, and other help on reservations and about agencies); Act of Aug. 15, 1894, § 10, 28 Stat. 313, 25 U. S. C. § 44 (employment of herders, teamsters, and laborers, “and where practicable in all other employments” in the Indian service); Act of June 7, 1897, § 1, 30 Stat. 83, 25 U. S. C. § 274 (employment as matrons, farmers, and industrial teachers in Indian schools); Act of June 25, 1910, § 23, 36 Stat. 861, 25 U. S. C„ § 47 (general preference as to Indian labor and products of Indian industry).
Senator Wheeler, cosponsor of the 1934 Act, explained the need for a preference as follows:
“We are setting up in the United States a civil service rule which prevents Indians from managing their own property. It is an entirely different service from anything else in the United States, because these Indians own this property. It belongs to them. What the policy of this Government is and what it should be is to teach these Indians to manage their own business and control their own funds and to administer their own property, and the civil service has worked very poorly so far as the Indian Service is concerned ... .” Hearings on S. 2755 and S. 3645 before the Senate Committee on Indian Affairs, 73d Cong., 2d Sess., pt. 2, p. 256 (1934).
A letter, contained in the House Report to the 1934 Act, from President F. D. Roosevelt to Congressman Howard states:
“We can and should, without further delay, extend to the Indian the fundamental rights of political liberty and local self-government and the opportunities of education and economic assistance that they require in order to attain a wholesome American life. This is but the obligation of honor of a powerful nation toward a people living among us and dependent upon our protection.” H. R. Rep. No. 1804, 73d Cong., 2d Sess., 8 (1934).
“If the Indians are exposed to any danger, there is none greater than the residence among them of unprincipled white men.” H. R. Rep. No. 474, 23d Cong., 1st Sess., 98 (1834) (letter dated Feb. 10, 1834, from Indian Commissioners to the Secretary of War).
As explained by John Collier, Commissioner of Indian Affairs: “[T]his bill is designed not to prevent the absorption of Indians in white communities, but rather to provide for those Indians unwilling or unable to compete in the white world some measures of self-government in their own affairs.” Hearing on S. 2755 before the Senate Committee on Indian Affairs, 73d Cong., 2d Sess., pt. 1, p. 26 (1934).
Hearings on H. R. 7902, Readjustment of Indian Affairs, before the House Committee on Indian Affairs, 73d Cong., 2d Sess., 1-7 (1934) (hereafter House Hearings). See also Mescalero Apache Tribe v. Jones, 411 U. S. 145, 152-153, n. 9 (1973).
House Hearings 491-497.
“[Section 12] was intended to integrate the Indian into the government service connected with the administration of his affairs. Congress was anxious to promote economic and political self-determination for the Indian.” Mescalero Apache Tribe v. Hickel, 432 F. 2d, at 960 (footnote omitted).
“The bill admits qualified Indians to the position [sic] in their own service.
“Thirty-four years ago, in 1900, the number of Indians holding regular positions in the Indian Service, in proportion to the total of positions, was greater than it is today.
“The reason primarily is found in the application of the generalized civil service to the Indian Service, and the consequent exclusion of Indians from their own jobs.” House Hearings 19 (memorandum dated Feb. 19, 1934, submitted by Commissioner Collier to the Senate and House Committees on Indian Affairs).
Congressman Carter, an opponent of the bill, placed in the Congressional Record the following observation by Commissioner Collier at the Committee hearings:
“[W]e must not blind ourselves to the fact that the effect of this bill if worked out would unquestionably be to replace white employees by Indian employees. I do not know how fast, but ultimately it ought to go very far indeed.” 78 Cong. Rec. 11737 (1934).
“It should be possible for Indians to enter the service of their own people without running the gauntlet of competition with whites for these positions. Indian progress and ambition will be enormously strengthened as soon as we adopt the principle that the Indian Service shall gradually become, in fact as well as in name, an Indian service predominantly in the hands of educated and competent Indians.” Id., at 11731 (remarles of Cong. Howard).
Section 701 (b) excludes “an Indian Tribe” from the Act’s definition of “employer.” Section 703 (i) states:
“Nothing contained in this subchapter shall apply to any business or enterprise on or near an Indian reservation with respect to any publicly announced employment practice of such business or enterprise under which a preferential treatment is given to any individual because he is an Indian living on or near a reservation.”
Senator Mundt supported these exemptions on the Senate floor by claiming that they would allow Indians “to benefit from Indian preference programs now in operation or later to be instituted.” 110 Cong. Rec. 13702 (1964).
The 1964 Act, however, did contain a proviso, expressed in somewhat precatory language:
“That it shall be the policy of the United States to insure equal employment opportunities for Federal employees without discrimination because of race, color, religion, sex or national origin.” 78 Stat. 254.
This statement of policy was re-enacted as 5 U. S. C. § 7151, 80 Stat. 523 (1966), and the 1964 Act’s proviso was repealed, id., at 662.
“This disproportionatte [sic] distribution of minoriijies and women throughout the Federal bureaucracy and their exclusion from higher level policy-making and supervisory positions indicates the government’s failure to pursue its policy of equal opportunity.
“A critical defect of the Federal equal employment program has been the failure of the complaint process. That process has impeded rather than advanced the goal of the elimination of discrimination in Federal employment. . . .” H. R. Rep. No. 92-238, on H. R. 1746, pp. 23-24 (1971).
See, e. g., Exec. Order No. 7423, July 26, 1936, 1 Fed. Reg. 885-886, 3 CFR 189 (1936-1938 Comp.). When President Eisenhower issued an Order prohibiting' discrimination on the basis of race in the civil service, Exec. Order No. 10577, § 4.2, Nov. 22, 1954, 19 Fed. Reg. 7521, 3 CFR 218 (1954-1958 Comp.), he left standing earlier Executive Orders containing exceptions for the Indian service. Id., §301. See also 5 CFR § 213.3112 (a) (7), which provides a civil service exemption for:
“All positions in the Bureau of Indian -Affairs and other positions in the Department of the Interior directly and primarily related to the providing of services to Indians when filled by the appointment of Indians who are one-fourth or more Indian blood.”
See also 5 CFR §213.3116 (b)(8) (Indian Health Services).
The preference is not directed towards a “racial” group consisting of “Indians”; instead, it applies only to members of “federally recognized” tribes. This operates to exclude many individuals who are racially to be classified as “Indians.” In this , sense, the preference is political rather than racial in nature. The eligibility criteria appear in 44 BIAM 335, 3.1:
“.1 Policy — An Indian has preference in appointment in the Bureau. To be eligible for preference in appointment, promotion, and training, an individual must be one-fourth or more degree Indian blood and be a member of a Federally-recognized tribe. It is the policy for promotional consideration that where two or more candidates who meet the established qualification requirements are available for filling a vacancy, if one of them is an Indian, he shall be given preference in filling the vacancy. In accordance with the policy statement approved by the Secretary, the Commissioner may grant exceptions to this policy by approving the selection and appointment of non-Indians, when he considers it in the best interest, of the Bureau.
“This program does not restrict the right of management to fill positions by methods other than through promotion. Positions may be filled by transfers, reassignment, reinstatement, or initial appointment.” App. 92.
Senator Wheeler described the BIA as “an entirely different service from anything else in the United States.” Hearings on S. 2755 and S. 3645 before the Senate Committee on Indian Affairs, 73d Cong., 2d Sess., pt. 2, p. 256 (1934). | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the manner in which the Court took jurisdiction. The Court uses a variety of means whereby it undertakes to consider cases that it has been petitioned to review. The most important ones are the writ of certiorari, the writ of appeal, and for legacy cases the writ of error, appeal, and certification. For cases that fall into more than one category, identify the manner in which the court takes jurisdiction on the basis of the writ. For example, Marbury v. Madison, 5 U.S. 137 (1803), an original jurisdiction and a mandamus case, should be coded as mandamus rather than original jurisdiction due to the nature of the writ. Some legacy cases are "original" motions or requests for the Court to take jurisdiction but were heard or filed in another court. For example, Ex parte Matthew Addy S.S. & Commerce Corp., 256 U.S. 417 (1921) asked the Court to issue a writ of mandamus to a federal judge. Do not code these cases as "original" jurisdiction cases but rather on the basis of the writ. | What is the manner in which the Court took jurisdiction? | [
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EXECUTIVE JET AVIATION, INC., et al. v. CITY OF CLEVELAND et al.
No. 71-678.
Argued November 15, 1972
Decided December 18, 1972
Stewart, J., delivered the opinion for a unanimous Court.
Phillip D. Bostwick argued the cause and filed briefs for petitioners.
Solicitor General Griswold argued the cause for respondent Dicken. With him on the brief were Assistant Attorney General Wood, Allan A. Tuttle, and Walter H. Fleischer. Edward D. Crocker filed a brief for respondents City of Cleveland et al.
MR. Justice Stewart
delivered the opinion of the Court.
On July 28, 1968, a jet aircraft, owned and operated by the petitioners, struck a flock of seagulls as it was taking off from Burke Lakefront Airport in Cleveland, Ohio, adjacent to Lake Erie. As a result, the plane lost its power, crashed, and ultimately sank in the navigable waters of Lake Erie, a short distance from the airport. The question before us is whether the petitioners’ suit for property damage to the aircraft, allegedly caused by the respondents’ negligence, lies within federal admiralty jurisdiction.
When the crash occurred, the plane was manned by a pilot, a co-pilot, and a stewardess, and was departing Cleveland on a charter flight to Portland, Maine, where it was to pick up passengers and then continue to White Plains, New York. After being cleared for takeoff by the respondent Dicken, who was the federal air traffic controller at the airport, the plane took off, becoming airborne at about half the distance down the runway. The takeoff flushed the seagulls on the runway, and they rose into the airspace directly ahead of the ascending plane. Ingestion of the birds into the plane’s jet engines caused an almost total loss of power. Descending back toward the runway in a semi-stalled condition, the plane veered slightly to the left, struck a portion of the airport perimeter fence and the top of a nearby pickup truck, and then settled in Lake Erie just off the end of the runway and less than one-fifth of a statute mile offshore. There were no injuries to the crew, but the aircraft soon sank and became a total loss.
Invoking federal admiralty jurisdiction under 28 U. S. C. § 1333 (l), the petitioners brought this suit for damages in the District Court for the Northern District of Ohio against Dicken and the other respondents, alleging that the crash had been caused by the respondents’ negligent failure to keep the runway free of the birds or to give adequate warning of their presence. The District Court, in an unreported opinion, held that the suit was not cognizable in admiralty and dismissed the complaint for lack of subject matter jurisdiction.
Relying primarily on the Sixth Circuit precedent of Chapman v. City of Grosse Pointe Farms, 385 F. 2d 962 (1967), the District Court held that admiralty jurisdiction over torts may properly be invoked only when two criteria are met: (1) the locality where the alleged tortious wrong occurred must have been on navigable waters; and (2) there must have been a relationship between the wrong and some maritime service, navigation, or commerce on navigable waters. The District Court found that the allegations of the petitioners’ complaint satisfied neither of these criteria. With respect to the locality of the alleged wrong, the court stated that “the alleged negligence became operative upon the aircraft while it was over the land; and in this sense the 'impact’ of the alleged negligence occurred when the gulls disabled the plane’s engines [over the land] .... From this point on the plane was disabled and was caused to fall. Whether it came down upon land or upon water was largely fortuitous.” Alternatively, the court concluded that the wrong bore no relationship to maritime service, navigation, or commerce:
“Assuming . . . that air commerce bears some relationship to maritime commerce when the former is carried out over navigable waters, the relevant circumstances here were unconnected with the maritime facets of air commerce. The claimed ‘wrong’ in this case was the alleged failure to keep the runway free of birds and the failure to adequately warn the pilots of their presence upon the end of the runway. When the alleged negligence occurred, and when it became operative upon the aircraft, all the parties were engaged in functions common to all air commerce, whether over land or over sea.
“. . . Thus, the conclusion here must be that the operative facts of the claim in this case are concerned with the land-connected aspects of air commerce, namely, the maintenance and operation of an airport located on the land and the dangers encountered by an aircraft when using its runways for take-off.”
The Court of Appeals for the Sixth Circuit affirmed on the ground that “the alleged tort in this case occurred on land before the aircraft reached Lake Erie . . . .” 448 F. 2d 151, 154 (1971). Hence, that court found it “not necessary to consider the question of maritime relationship or nexus discussed by this court in [Chapman].” Ibid. We granted certiorari to consider a seemingly important question affecting the jurisdiction of the federal courts. 405 U. S. 915 (1972).
I
Determination of the question whether a tort is “maritime” and thus within the admiralty jurisdiction of the federal courts has traditionally depended upon the locality of the wrong. If the wrong occurred on navigable waters, the action is within admiralty jurisdiction; if the wrong occurred on land, it is not. As early as 1813, Mr. Justice Story, on Circuit, stated this general principle:
“In regard to torts I have always understood, that the jurisdiction of the admiralty is exclusively dependent upon the locality of the act. The admiralty has not, and never (I believe) deliberately claimed to have any jurisdiction over torts, except such as are maritime torts, that is, such as are committed on the high seas, or on waters within the ebb and flow of the tide.” Thomas v. Lane, 23 F. Cas. 957, 960 (No. 13,902) (CC Me.).
See also De Lovio v. Boit, 7 F. Cas. 418, 444 (No. 3,776) (CC Mass. 1815); Philadelphia, W. & B. R. Co. v. Philadelphia & Havre de Grace Steam Towboat Co., 23 How. 209, 215 (1860). Later, this locality test was expanded to include not only tidewaters, but all navigable waters, including lakes and rivers. The Genesee Chief v. Fitzhugh, 12 How. 443 (1852).
In The Plymouth, 3 Wall. 20, 35, 36 (1866), the Court essayed a definition of when a tort is “located” on navigable waters:
“[T]he wrong and injury complained of must have been committed wholly upon the high seas or navigable waters, or, at least, the substance and consummation of the same must have taken place upon these waters to be within the admiralty jurisdiction. . . .
“. . . The jurisdiction of the admiralty over maritime torts does not depend upon the wrong having been committed on board the vessel, but upon its having been committed upon the high seas or other navigable waters.
“. . . Every species of tort, however occurring, and whether on board a vessel or not, if upon the high seas or navigable waters, is of admiralty cognizance.”
The Court has often reiterated this rule of locality. As recently as last Term, in Victory Carriers, Inc. v. Law, 404 U. S. 202, 205, we repeated that “[t]he historic view of this Court has been that the maritime tort jurisdiction of the federal courts is determined by the locality of the accident and that maritime law governs only those torts occurring on the navigable waters of the United States.”
This locality test, of course, was established and grew up in an era when it was difficult to conceive of a tortious occurrence on navigable waters other than in connection with a waterborne vessel. Indeed, for the traditional types of maritime torts, the traditional test has worked quite satisfactorily. As a leading admiralty text has put the matter:
“It should be stressed that the important cases in admiralty are not the borderline cases on jurisdiction; these may exercise a perverse fascination in the occasion they afford for elaborate casuistry, but the main business of the [admiralty] court involves claims for cargo damage, collision, seamen’s injuries and the like — all well and comfortably within the circle, and far from the penumbra.” G. Gilmore & C. Black, The Law of Admiralty 24 n. 88 (1957).
But it is the perverse and casuistic borderline situations that have demonstrated some of the problems with the locality test of maritime tort jurisdiction. In Smith & Son v. Taylor, 276 U. S. 179 (1928), for instance, a longshoreman unloading a vessel was standing on the pier when he was struck by a cargo-laden sling from the ship and knocked into the water where he was later found dead. This Court held that there was no admiralty jurisdiction in that case, despite the fact that the longshoreman was knocked into the water, because the blow by the sling was what gave rise to the cause of action, and it took effect on the land. Hence, the Court concluded, “[t]he substance and consummation of the occurrence which gave rise to the cause of action took place on land.” 276 U. S., at 182. In the converse factual setting, however, where a longshoreman working on the deck of a vessel was struck by a hoist and knocked onto the pier, the Court upheld admiralty jurisdiction because the cause of action arose on the vessel. Minnie v. Port Huron Terminal Co., 295 U. S. 647 (1935). See also The Admiral Peoples, 295 U. S. 649 (1935).
Other serious difficulties with the locality test are illustrated by cases where the maritime locality of the tort is clear, but where the invocation of admiralty jurisdiction seems almost absurd. If a swimmer at a public beach is injured by another swimmer or by a submerged object on the bottom, or if a piece of machinery sustains water damage from being dropped into a harbor by a land-based crane, a literal application of the locality test invokes not only the jurisdiction of the federal courts, but the full panoply of the substantive admiralty law as well. In cases such as these, some courts have adhered to a mechanical application of the strict locality rule and have sustained admiralty jurisdiction despite the lack of any connection between the wrong and traditional forms of maritime commerce and navigation. Other courts, however, have held in such situations that a maritime locality is not sufficient to bring the tort within federal admiralty jurisdiction, but that there must also be a maritime nexus — some relationship between the tort and traditional maritime activities, involving navigation or commerce on navigable waters. The Court of Appeals for the Sixth Circuit, for instance, in the Chapman case, where a swimmer at a public beach was injured, held that
“[ajbsent such a relationship, admiralty jurisdiction would depend entirely upon the fact that a tort occurred on navigable waters; a fact which in and of itself, in light of the historical justification for federal admiralty jurisdiction, is quite immaterial to any meaningful invocation of the jurisdiction of admiralty courts.” 385 F. 2d, at 966.
As early as 1850, admiralty scholars began to suggest that a traditional maritime activity, as well as a maritime locality, is necessary to invoke admiralty jurisdiction over torts. In that year, Judge Benedict expressed his “celebrated doubt” as to whether such jurisdiction did not depend, in addition to a maritime locality, upon some “relation of the parties to a ship or vessel, embracing only those tortious violation [s] of maritime right and duty which occur in vessels to which the Admiralty jurisdiction, in cases of contracts, applies.” E. Benedict, The American Admiralty 173 (1850). More recently, commentators have actively criticized the rule of locality as the sole criterion for admiralty jurisdiction, and have recommended adoption of a maritime relationship requirement as well. See 7A J. Moore, Federal Practice, Admiralty ¶¶ .325'[3] and .325 [5] (2d ed. 1972); Black, Admiralty Jurisdiction: Critique and Suggestions, 50 Col. L. Rev. 259, 264 (1950). In 1969, the American Law Institute’s Study of the Division of Jurisdiction Between State and Federal Courts (ALI Study) also made that recommendation, stating (at 233) :
“It is hard to think of any reason why access to federal court should be allowed without regard to amount in controversy or citizenship of the parties merely because of the fortuity that a tort occurred on navigable waters, rather than on other waters or on land. The federal courts should not be burdened with every case of an injured swimmer.”
Despite the broad language of cases like The Plymouth, 3 Wall. 20 (1866), the fact is that this Court has never explicitly held that a maritime locality is the sole test of admiralty tort jurisdiction. The last time the Court considered the matter, the question was left open. Atlantic Transport Co. v. Imbrovek, 234 U. S. 52 (1914). In that case, a stevedore brought suit for injuries sustained on board a vessel while loading and stowing copper. The petitioner admitted the maritime locality of the tort, but contended that no maritime relationship was present. The Court sustained federal admiralty jurisdiction, but found that it was not necessary to decide whether locality alone is sufficient:
“Even if it be assumed that the requirement as to locality in tort cases, while indispensable, is not necessarily exclusive, still in the present case the wrong which was the subject of the suit was, we think, of a maritime nature and hence the District Court, from any point of view, had jurisdiction. . . .
“. . . If more is required than the locality of the wrong in order to give the court jurisdiction, the relation of the wrong to maritime service, to navigation and to commerce on navigable waters, was quite sufficient.” Id., at 61, 62.
Since the time of that decision the Court has not squarely dealt with the question left open there, although opinions in several cases have discussed the maritime or non-maritime nature of the tort and its relationship to maritime navigation. In Rodrigue v. Aetna Casualty & Surety Co., 395 U. S. 352 (1969), for instance, we held that admiralty had no jurisdiction of wrongful-death actions under the Death on the High Seas Act, 41 Stat. 537, 46 U. S. C. § 761 et seq., arising out of accidents on artificial island drilling rigs in the Gulf of Mexico more than a marine league offshore. We relied in that case on the fact that the accidents bore no relation to any navigational function:
“The accidents in question here involved no collision with a vessel, and the structures were not navigational aids. They were islands, albeit artificial ones, and the accidents had no more connection with the ordinary stuff of admiralty than do accidents on piers.” Id., at 360.
See also The Raithmoor, 241 U. S. 166, 176-177 (1916); Chelentis v. Luckenbach S. S. Co., 247 U. S. 372, 382 (1918); Great Lakes Dredge & Dock Co. v. Kierejewski, 261 U. S. 479, 481 (1923); Robins Dry Dock & Repair Co. v. Dahl, 266 U. S. 449, 457 (1925); London Guarantee & Accident Co. v. Industrial Accident Comm’n, 279 U. S. 109, 123 (1929).
Apart from the difficulties involved in trying to apply the locality rule as the sole test of admiralty tort jurisdiction, another indictment of that test is to be found in the number of times the federal courts and the Congress, in the interests of justice, have had to create exceptions to it in the converse situation — i. e., when the tort has no maritime locality, but does bear a relationship to maritime service, commerce, or navigation. See 7A J. Moore, Federal Practice, Admiralty ¶ .325 [4] (2d ed. 1972). For example, in O’Donnell v. Great Lakes Dredge & Dock Co., 318 U. S. 36 (1943), the Court sustained the application of the Jones Act, 41 Stat. 1007, 46 U. S. C. § 688, to injuries to a seaman on land, because of the seaman’s connection with maritime commerce. We relied in that case on an analogy to maintenance and cure:
“[T]he maritime law, as recognized in the federal courts, has not in general allowed recovery for personal injuries occurring on land. But there is an important exception to this generalization in the case of maintenance and cure. From its dawn, the maritime law has recognized the seaman’s right to maintenance and cure for injuries suffered in the course of his service to his vessel, whether occurring on sea or on land.” Id., at 41-42.
Similarly, the doctrine of unseaworthiness has been extended to permit a seaman or a longshoreman to recover from a shipowner for injuries sustained wholly on land, so long as those injuries were caused by defects in the ship or its gear. Gutierrez v. Waterman S. S. Corp., 373 U. S. 206, 214-215 (1963). See also Strika v. Netherlands Ministry of Traffic, 185 F. 2d 555 (CA2 1950).
Congress, too, has extended admiralty jurisdiction predicated on the relation of the wrong to maritime activities, regardless of the locality of the tort. In the Extension of Admiralty Jurisdiction Act, 62 Stat. 496, 46 U. S. C. § 740, enacted in 1948, Congress provided :
“The admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land.”
This Act was passed specifically to overrule cases, such as The Plymouth, supra, holding that admiralty does not provide a remedy for damage done to land structures by ships on navigable waters. Victory Carriers, Inc. v. Law, 404 U. S., at 209 n. 8; Gutierrez v. Waterman S. S. Corp., 373 U. S., at 209-210.
In sum, there has existed over the years a judicial, legislative, and scholarly recognition that, in determining whether there is admiralty jurisdiction over a particular tort or class of torts, reliance on the relationship of the wrong to traditional maritime activity is often more sensible and more consonant with the purposes of maritime law than is a purely mechanical application of the locality test.
II
One area in which locality as the exclusive test of admiralty tort jurisdiction has given rise to serious problems in application is that of aviation. For the reasons discussed above and those to be discussed, we have concluded that maritime locality alone is not a sufficient predicate for admiralty jurisdiction in aviation tort cases.
In one of the earliest aircraft cases brought in admiralty, The Crawford Bros. No. 2, 215 F. 269, 271 (WD Wash. 1914), in which a libel in rem for repairs was brought against an airplane that had crashed into Puget Sound, the federal court declined to assume jurisdiction, reasoning that an airplane could not be characterized as a maritime vessel. The Crawford Bros, was followed by a number of cases dealing with seaplanes, in which the courts restricted admiralty jurisdiction to occurrences involving planes that were afloat on navigable waters. Continuing doubt as to the applicability of admiralty law to aircraft was illustrated by cases in the 19;30’s and 1940's holding that aircraft owners could not invoke the benefits of the maritime doctrine of limitation of liability, and that crimes committed on board aircraft flying over international waters were not punishable under criminal statutes proscribing acts committed on the high seas. Moreover, Congress exempted all aircraft from conformity with United States navigation and shipping laws.
The first major extension of admiralty jurisdiction to land-based aircraft came in wrongful-death actions arising out of aircraft crashes at sea and brought under the Death on the High Seas Act, 46 U. S. C. § 761 et seg. The federal courts took jurisdiction of such cases because the literal provisions of that statute appeared to be clearly applicable. The Death on the High Seas Act, enacted in 1920, provides:
“Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty . . .
The first aviation case brought pursuant to the Death on the High Seas Act was apparently Choy v. Pan-American Airways Co., 1941 A. M. C. 483 (SDNY), where death was caused by the crash of a seaplane into the Pacific Ocean during a transoceanic flight. The District Court upheld admiralty jurisdiction on the ground that the language of the Act was broad and made no reference to surface vessels. According to the court:
“The statute certainly includes the phrase 'on the high seas’ but there is no reason why this should make the law operable only on a horizontal plane. The very next phrase 'beyond a marine league from the shore of any State’ may be said to include a vertical sense and another dimension.” Id., at 484.
Since Choy, many actions for wrongful death arising out of aircraft crashes into the high seas beyond one marine league from shore have been brought under the Death on the High Seas Act, and federal jurisdiction has consistently been sustained in those cases. Indeed, it may be considered as settled today that this specific federal statute gives the federal admiralty courts jurisdiction of such wrongful-death actions.
In recent years, however, some federal courts have been persuaded in aviation cases to extend their admiralty jurisdiction beyond the statutory coverage of the Death on the High Seas Act. Several cases have held that actions for personal injuries arising out of aircraft crashes into the high seas more than one league off shore or arising out of aircraft accidents in the airspace over the high seas were cognizable in admiralty because of their maritime locality, although they were not within the scope of the Death on the High Seas Act or any other federal legislation. These cases, as well as most of those brought under the Death on the High Seas Act, involved torts both with a maritime locality, in that the alleged negligence became operative while the aircraft was on or over navigable waters, and also with some relationship to maritime commerce, at least insofar as the aircraft was beyond state territorial waters and performing a function- — transoceanic crossing — that previously would have been performed by waterborne vessels.
But a further extension of admiralty jurisdiction was created when courts began to sustain that jurisdiction in situations such as the one now before us — when the claim arose out of an aircraft accident that occurred on or over navigable waters within state territorial limits, and when the aircraft was not on a transoceanic flight. Apparently, the first such case grew out of a 1960 crash of a commercial jet, bound from Boston to Philadelphia, that collided with a flock of birds over the airport runway and crashed into Boston Harbor within one minute after takeoff. Weinstein v. Eastern Airlines, Inc., 316 F. 2d 758 (CA3 1963). In deciding that a wrongful-death action arising from this crash was within admiralty jurisdiction, the Court of Appeals for the Third Circuit applied the strict locality rule and found that the tort had a maritime locality. The court further justified the invocation of admiralty jurisdiction in that case by an analogy to the Death on the High Seas Act:
“If, as it has been held, a tort claim arising out of the crash of an airplane beyond the one marine league line is within the jurisdiction of admiralty, then a fortiori a crash of an aircraft just short of that line but still within the navigable waters is within that jurisdiction as well.” Id., at 765.
There have been a few subsequent cases to like effect. To the contrary, of course, is the decision of the Court of Appeals for the Sixth Circuit in the present case.
Ill
These latter cases graphically demonstrate the problems involved in applying a locality-alone test of admiralty tort jurisdiction to the crashes of aircraft. Airplanes, unlike waterborne vessels, are not limited by physical boundaries and can and do operate over both land and navigable bodies of water. As Professor Moore and his colleague Professor Pelaez have stated, “In both death and injury cases ... it is evident that while distinctions based on locality often are in fact quite relevant where water vessels are concerned, they entirely lose their significance where aircraft, which are not geographically restrained, are concerned.” 7A J. Moore, Federal Practice, Admiralty ¶ .330 >[5], pp. 3772-3773 (2d ed. 1972). In flights within the continental United States, which are principally over land, the fact that an aircraft happens to fall in navigable waters, rather than on land, is wholly fortuitous. The ALI Study, in criticizing the Weinstein decision, observed:
“If a plane takes off from Boston's Logan Airport bound for Philadelphia, and crashes on takeoff, it makes little sense that the next of kin of the passengers killed should be left to their usual remedies, ordinarily in state court, if the plane crashes oru land, but that they have access to a federal court, and the distinctive substantive law of admiralty applies, if the wrecked plane ends up in the waters of Boston Harbor.” ALI Study 231.
Moreover, not only is the locality test in such cases wholly adventitious, but it is sometimes almost impossible to apply with any degree of certainty. Under the locality test, the tort “occurs” where the alleged negligence took effect, The Plymouth, supra; Smith & Son v. Taylor, 276 U. S. 179 (1928); and in the case of aircraft that locus is often most difficult to determine.
The case before us provides a good example of these difficulties. The petitioners contend that since their aircraft crashed into the navigable waters of Lake Erie and was totally destroyed when it sank in those waters, the locality of the tort, or the place where the alleged negligence took effect, was there. The fact that the major damage to their plane would not have occurred if it had not landed in the lake indicates, they say, that the substance and consummation of the wrong took place in navigable waters. The respondents, on the other hand, argue that the alleged negligence took effect when the plane collided with the birds — over land. Relying on cases such as Smith & Son v. Taylor, supra, where admiralty jurisdiction was denied in the case of a longshoreman struck by a ship’s sling while standing on a pier, and knocked into the water, the respondents contend that a tort “occurs” at the point of first impact of the alleged negligence. Here, they say, the cause of action arose as soon as the plane struck the birds; from then on, the plane was destined to fall, and whether it came down on land or water should not affect “the locality of the act.” See Thomas v. Lane, 23 F. Cas., at 960.
In the view we take of the question before us, we need not decide who has the better of this dispute. It is enough to note that either position gives rise to the problems inherent in applying the strict locality test of admiralty tort jurisdiction in aviation accident cases. The petitioners’ argument, if accepted, would make jurisdiction depend on where the plane ended up— a circumstance that could be wholly fortuitous and completely unrelated to the tort itself. The anomaly is well illustrated by the hypothetical case of two aircraft colliding at a. high altitude, with one crashing on land and the other in a navigable river. If, on the other hand, the respondents’ position were adopted, jurisdiction would depend on whether the plane happened to be flying over land or water when the original impact of the alleged negligence occurred. This circumstance, too, could be totally fortuitous. If the plane in the present case struck the birds over Cleveland’s Lakefront Airport, admiralty jurisdiction would not lie; but if the plane had just crossed the shoreline when it struck the birds, admiralty jurisdiction would attach, even if the plane were then able to make it back to the airport and crashland there. These are hardly the types of distinctions with which admiralty law was designed to deal.
All these and other difficulties that can arise in attempting to apply the locality test of admiralty jurisdiction to aeronautical torts are, of course, attributable to the inherent nature of aircraft. Unlike waterborne vessels, they are not restrained by one-dimensional geographic and physical boundaries. For this elementary reason, we conclude that the mere fact that the alleged wrong “occurs” or “is located” on or over navigable waters — whatever that means in an aviation context— is not of itself sufficient to turn an airplane negligence case into a “maritime tort.” It is far more consistent with the history and purpose of admiralty to require also that the wrong bear a significant relationship to traditional maritime activity. We hold that unless such a relationship exists, claims arising from airplane accidents are not cognizable in admiralty in the absence of legislation to the contrary.
IV
This conclusion, however, does not end our inquiry, for there remains the question of what constitutes, in the context of aviation, a significant relationship to traditional maritime activity. The petitioners argue that any aircraft falling into navigable waters has a sufficient relationship to maritime activity to satisfy the test. The relevant analogy, they say, is not between flying aircraft and sailing ships, but between a downed plane and a sinking ship. Quoting from the Weinstein opinion, they contend: “When an aircraft crashes into navigable waters, the dangers to persons and property are much the same as those arising out of the sinking of a ship or a. collision between two vessels.” 316 F. 2d, at 763. The dissenting opinion in the Court of Appeals in the present case made the same argument:
“I believe that there are many comparisons between the problems of aircraft over navigable waters and those of the ships which the aircraft are rapidly replacing. . . .
“. . . Problems posed for aircraft landing on, crashing on, or sinking into navigable waters differ markedly from landings upon land. ... In such instances, wind and wave and water, the normal problems of the mariner, become the approach or survival problems of the pilot and his passengers. . . . What I would hold is that tort cases arising out of aircraft crashes into navigable waters are cognizable in admiralty jurisdiction even if the negligent conduct is alleged to have happened wholly on land.” 448 F. 2d, at 163.
We cannot accept that definition of traditional maritime activity. It is true that in a literal sense there may be some similarities between the problems posed for a plane downed on water and those faced by a sinking ship. But the differences between the two modes of transportation are far greater, in terms of their basic qualities and traditions, and consequently in terms of the conceptual expertise of the law to be applied. The law of admiralty has evolved over many centuries, designed and molded to handle problems of vessels relegated to ply the waterways of the world, beyond whose shores they cannot go. That law deals with navigational rules — rules that govern the manner and direction those vessels may rightly move upon the waters. When a collision occurs or a ship founders at sea, the law of admiralty looks to those rules to determine fault, liability, and all other questions that may arise from such a catastrophe. Through long experience, the law of the sea knows how to determine whether a particular ship is seaworthy, and it knows the nature of maintenance and cure. It is concerned with maritime liens, the general average, captures and prizes, limitation of liability, cargo damage, and claims for salvage.
Rules and concepts such as these are wholly alien to air commerce, whose vehicles operate in a totally different element, unhindered by geographical boundaries and exempt from the navigational rules of the maritime road. The matters with which admiralty is basically concerned have no conceivable bearing on the operation of aircraft, whether over land or water. Indeed, in contexts other than tort, Congress and the courts have recognized that, because of these differences, aircraft are not subject to maritime law. Although dangers of wind and wave faced by a plane that has crashed on navigable waters may be superficially similar to those encountered by a sinking ship, the plane’s unexpected descent will almost invariably have been attributable to a cause unrelated to the sea — be it pilot error, defective design or manufacture of airframe or engine, error of a traffic controller at an airport, or some other cause; and the determination of liability will thus be based on factual and conceptual inquiries unfamiliar to the law of admiralty. It is clear, therefore, that neither the fact that a plane goes down on navigable waters nor the fact that the negligence “occurs” while a plane is flying over such waters is enough to create such a relationship to traditional maritime activity as to justify the invocation of admiralty jurisdiction.
We need not decide today whether an aviation tort can ever, under any circumstances, bear a sufficient relationship to traditional maritime activity to come within admiralty jurisdiction in the absence of legislation. It could be argued, for instance, that if a plane flying from New York to London crashed in the mid-Atlantic, there would be admiralty jurisdiction over resulting tort claims even absent a specific statute. An aircraft in that situation might be thought to bear a significant relationship to traditional maritime activity because it would be performing a function traditionally performed by waterborne vessels. Moreover, other factors might come into play in the area of international air commerce — choice-of-forum problems, choice-of-law problems, international law problems, problems involving multi-nation conventions and treaties, and so on.
But none of these considerations is of concern in the case before us. The flight of the petitioners’ land-based aircraft was to be from Cleveland to Portland, Maine, and thence to White Plains, New York — a flight that would have been almost entirely over land and within the continental United States. After it struck the flock of seagulls over the runway, the plane descended and settled in Lake Erie within the territorial waters of Ohio. We can find no significant relationship between such an event befalling a land-based plane flying from one point in the continental United States to another, and traditional maritime activity involving navigation and commerce on navigable waters.
Just last Term, in Victory Carriers, Inc. v. Law, 404 U. S., at 212, we observed that in determining whether to expand admiralty jurisdiction, “we should proceed with caution Quoting from Healy v. Ratta, 292 U. S. 263, 270 (1934), we stated:
“ 'The power reserved to the states, under the Constitution, to provide for the determination of controversies in their courts may be restricted only by the action of Congress in conformity to the judiciary sections of the Constitution. . . . Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which [a federal] statute has defined.’ ”
In the situation before us, which is only fortuitously and incidentally connected to navigable waters and which bears no relationship to traditional maritime activity, the Ohio courts could plainly exercise jurisdiction over the suit, and could plainly apply familiar concepts of Ohio tort law without any effect on maritime endeavors.
It may be, as the petitioners argue, that aviation tort cases should be governed by uniform substantive and procedural laws, and that such actions should be heard in the federal courts so as to avoid divergent results and duplicitous litigation in multi-party cases. But for this Court to uphold federal admiralty jurisdiction in a few wholly fortuitous aircraft cases would be a most quixotic way of approaching that goal. If federal uniformity is the desired goal with respect to claims arising from aviation accidents, Congress is free under the Commerce Clause to enact legislation applicable to all such accidents, whether occurring on land or water, and adapted to the specific characteristics of air commerce.
For the reasons stated in this opinion we hold that, in the absence of legislation to the contrary, there is no federal admiralty jurisdiction over aviation tort claims arising from flights by land-based aircraft between points within the continental United States.
The judgment is affirmed.
That section provides:
“The district courts shall have original jurisdiction, exclusive of the courts of the States, of:
“(1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.”
Besides Dicken, the respondents are the City of Cleveland, as owner and operator of the airport, and Phillip A. Schwenz, the airport manager.
The petitioners also filed an action against Dicken’s employer, the United States, under the Federal Tort Claims Act, 28 U. S. C. §§ 1346 (b) and 2674, asserting the same claim. That action is pending in the District Court for the Northern District of Ohio.
In Victory Carriers, Inc. v. Law, 404 U. S. 202, 205 n. 2 (1971), we cited over 40 cases to this effect.
Davis v. City of Jacksonville Beach, 251 F. Supp. 327 (MD Fla. 1965) (injury to a swimmer by a surfboard); King v. Testerman, 214 F. Supp. 335, 336 (ED Tenn. 1963) (injuries to a water skier). See also Horton v. J. & J. Aircraft, Inc., 257 F. Supp. 120, 121 (SD Fla. 1966). Cf. Weinstein v. Eastern Airlines, Inc., 316 F. 2d 758 (CA3 1963).
In another injured-swimmer case, McGuire v. City of New York, 192 F. Supp. 866, 871-872 (SDNY 1961), the court stated:
“The proper scope of jurisdiction should include all matters relating to the business of the sea and the business conducted on navigable waters.
“The libel in this case does not relate to any tort which grows out of navigation. It alleges an ordinary tort, no different in substance because the injury occurred in shallow waters along the shore than if the injury had occurred on the sandy beach above the water line. Whether the City of New York should be held liable for the injury suffered by libellant is a question which can easily be determined in the courts of the locality. To endeavor to project such an action into the federal courts on the ground of admiralty jurisdiction is to misinterpret the nature of admiralty jurisdiction.”
Other cases holding that admiralty jurisdiction was not properly invoked because the tort, while having a maritime locality, lacked a significant relationship to maritime navigation and commerce, include: Peytavin v. Government Employees Insurance Co., 453 F. 2d 1121 (CA5 1972); Gowdy v. United States, 412 F. 2d 525, 527-529 (CA6 1969); Smith v. Guerrant, 290 F. Supp. 111, 113-114 (SD Tex. 1968). See also J. W. Petersen Coal & Oil Co. v. United States, 323 F. Supp. 1198, 1201 (ND Ill. 1970); O’Connor & Co. v. City of Pascagoula, 304 F. Supp. 681, 683 (SD Miss. 1969); Hastings v. Mann, 226 F. Supp. 962, 964-965 (EDNC 1964), aff’d, 340 F. 2d 910 (CA4 1965). A similar view is taken by the English courts. Queen v. Judge of the City of London Court, [1892] 1 Q. B. 273.
Hough, Admiralty Jurisdiction — Of Late Years, 37 Harv. L. Rev. 529, 531 (1924).
The Court has held, however, that there is no admiralty jurisdiction under the Extension of Admiralty Jurisdiction Act over suits brought by longshoremen injured while working on a pier, when such injuries were caused, not by ships, but by pier-based equipment. Victory Carriers, Inc. v. Law, supra; Nacirema Co. v. Johnson, 396 U. S. 212, 223 (1969). The Longshoremen’s and Harbor Workers’ Compensation Act, 33 U. S. C. § 901 et seq., was amended in 1972 to cover employees working on those areas of the shore customarily used in loading, unloading, repairing, or building a vessel. Pub. L. No. 92-576, §2, 86 Stat. 1251.
Matter of Reinhardt v. Newport Flying Service Corp., 232 N. Y. 115, 117-118, 133 N. E. 371, 372 (1921); United States v. Northwest Air Service, Inc., 80 F. 2d 804, 805 (CA9 1935). See also Lambros Seaplane Base v. The Batory, 215 F. 2d 228, 231 (CA2 1954).
Dollins v. Pan-American Grace Airways, Inc., 27 F. Supp. 487, 488-489 (SDNY 1939); Noakes v. Imperial Airways, Ltd., 29 F. Supp. 412, 413 (SDNY 1939).
United States v. Peoples, 50 F. Supp. 462 (ND Cal. 1943); United States v. Cordova, 89 F. Supp. 298 (EDNY 1950).
In 1952, however, Congress amended the criminal jurisdiction of admiralty to include crimes committed aboard aircraft while in flight over the high seas or any other waters within the admiralty jurisdiction of the United States except waters within the territorial jurisdiction of any State. 18 U. S. C. §7 (5).
The Federal Aviation Act of 1958, 72 Stat. 799, as amended, 49 U. S. C. § 1509 (a), the successor to the Air Commerce Act of 1926, 44 Stat. 572, formerly 49 U. S. C. § 177 (1952 ed.).
See, e. g., Wyman v. Pan-American Airways, Inc., 181 Misc. 963, 966, 43 N. Y. S. 2d 420, 423, aff’d, 267 App. Div. 947, 48 N. Y. S. 2d 459, aff’d, 293 N. Y. 878, 59 N. E. 2d 785 (1944); Higa v. Transocean Airlines, 230 F. 2d 780 (CA9 1955); Noel v. Linea Aeropostal Venezolana, 247 F. 2d 677, 680 (CA2 1957); Trihey v. Transocean Air Lines, 255 F. 2d 824, 827 (CA9 1958); Lacey v. L. W. Wiggins Airways, Inc., 95 F. Supp. 916 (Mass. 1951); Wilson v. Transocean Airlines, 121 F. Supp. 85 (ND Cal. 1954); Stiles v. National Airlines, Inc., 161 F. Supp. 125 (ED La. 1958), aff’d, 268 F. 2d 400 (CA5 1959); Noel v. Airponents, Inc., 169 F. Supp. 348 (NJ 1958); Lavello v. Danko, 175 F. Supp. 92 (SDNY 1959); Blumenthal v. United States, 189 F. Supp. 439, 445 (ED Pa. 1960), aff’d, 306 F. 2d 16 (CA3 1962); Pardonnet v. Flying Tiger Line, Inc., 233 F. Supp. 683 (ND Ill. 1964); Kropp v. Douglas Aircraft Co., 329 F. Supp. 447, 453-455 (EDNY 1971). Cf. D’Aleman v. Pan American World Airways, 259 F. 2d 493 (CA2 1958).
Bergeron v. Aero Associates, Inc., 213 F. Supp. 936 (ED La. 1963); Notarian v. Trans World Airlines, Inc., 244 F. Supp. 874 (WD Pa. 1965); Horton v. J. & J. Aircraft, Inc., 257 F. Supp. 120 (SD Fla. 1966).
Whether this type of relationship to maritime commerce is a sufficient maritime nexus to justify admiralty jurisdiction over airplane accidents is discussed infra, at 271-272. We do not decide that question in this case.
Hornsby v. Fish Meal Co., 431 F. 2d 865 (CA5 1970); Harris v. United Air Lines, Inc., 275 F. Supp. 431, 432 (SD Iowa 1967). Cf. Scott v. Eastern Air Lines, Inc., 399 F. 2d 14, 21-22 (CA3 1968) (en banc).
See also Comment, Admiralty Jurisdiction: Airplanes and Wrongful Death in Territorial Waters, 64 Col. L. Rev. 1084, 1091— 1092 (1964).
Moreover, if the mere happenstance that an aircraft falls into navigable waters creates a maritime relationship because of the maritime dangers to a sinking plane, then the maritime relationship test would be the same as the petitioners’ view of the maritime-locality test, with the same inherent fortuity.
See supra, at 261-262.
Of course, under the Death on the High Seas Act, a wrongful-death action arising out of an airplane crash on the high seas beyond a marine league from the shore of a State may clearly be brought in a federal admiralty court.
But see 7A J. Moore, Federal Practice, Admiralty ¶ .330 [5], p. 3772 (2d ed. 1972):
“What possible rational basis is there, for instance, in holding that the personal representative of a passenger killed in the crash of an airplane traveling from Shannon, Ireland to Logan Field in Boston has a cause of action within the admiralty jurisdiction if the plane goes down three miles from shore; may have a cause of action within the admiralty jurisdiction if the plane goes down within an area circumscribed by the shore and the three-mile limit; and will not have a cause of action within the admiralty jurisdiction if the plane managed to remain airborne until reaching the Massachusetts coast? And this notwithstanding that in all instances the plane may have developed engine trouble or been the victim of pilot error at an identical site far out over the Atlantic.”
Apart from transoceanic flights, the Government’s brief suggests that another example where admiralty jurisdiction might properly be invoked in an airplane accident case on the ground that the plane was performing a function traditonally performed by waterborne vessels, is shown in Hornsby v. Fish Med Co., 431 F. 2d 865 (CA5 1970), which involved the mid-air collision of two light aircraft used in spotting schools of fish and the crash of those aircraft into the Gulf of Mexico within one marine league of the Louisiana shore.
In such a situation, it has been stated:
“Were the maritime law not applicable, it is argued that the recovery would depend upon a confusing consideration of what substantive law to apply, i. e., the law of the forum, the law of the place where each decedent [or injured party] purchased his ticket, the law of the place where the plane took off, or, perhaps, the law of the point of destination.” 7A J. Moore, Federal Practice, Admiralty ¶.330 [5], p. 3774 (2d ed. 1972).
There is no diversity of citizenship between petitioners and the City of Cleveland.
The United States, respondent Dicken’s employer, can be sued, of course, only in federal district court under the Federal Tort Claims Act, 28 U. S. C. §§ 1346 (b) and 2674. Such an action has been filed by the petitioners here, but even in that suit the federal court will apply the substantive tort law of Ohio. Thus, Ohio law will not be ousted in this case, and the pendency of the action under the Tort Claims Act has no relevance in determining whether the instant case should be heard in admiralty, with its federal substantive law.
The possibility that the petitioners would have to litigate the same claim in two forums is the same possibility that would exist if their plane had stopped on the shore of the lake, instead of going into the water, and is the same possibility that exists every time a plane goes down on land, negligence of the federal air trafile controller is alleged, and there is no diversity of citizenship. This problem cannot be solved merely by upholding admiralty jurisdiction in cases where the plane happens to fall on navigable waters.
Some such flights, e. g., New York City to Miami, Florida, no doubt involve passage over “the high seas beyond a marine league from the shore of any State.” To the extent that the terms of the Death on the High Seas Act become applicable to such flights, that Act, of course, is “legislation to the contrary.” | What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations | What is the ideological direction of the decision reviewed by the Supreme Court? | [
"Conservative",
"Liberal",
"Unspecifiable"
] | [
0
] | sc_lcdispositiondirection |
ROSTKER, DIRECTOR OF SELECTIVE SERVICE v. GOLDBERG et al.
No. 80-251.
Argued March 24, 1981
Decided June 25, 1981
Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, Blackmun, Powell, and Stevens, JJ., joined. White, J., post, p. 83, and Marshall, J., post, p. 86, filed dissenting opinions, in which Brennan, J., joined.
Solicitor General McCree argued the cause for appellant. With him on the briefs were Assistant Attorney General Daniel, Acting Assistant Attorney General Martin, Deputy Solicitor General Claiborne, Barbara E. Etkind, William Ranter, and Mark H. Gallant.
Donald L. Weinberg argued the cause for appellees. With him on the brief were Harold E. Kohn, Stuart H. Savett, Isabelle Katz Pinzler, Bruce J. Ennis, and Laurence H. Tribe
Briefs of amici curiae urging reversal were filed by Dennis Rapps and A. David Stern for the Orthodox Jewish Coalition on the Draft; and by Nathan Lewin for Stacy Acker et al.
Briefs of amici curiae urging affirmance were filed by Daniel Marcus for Congressman Robert W. Kastenmeier et al.; by Paul Kenney for Men’s Rights, Inc.; by Barbara A. Brown, Thomas J. Hart, Phyllis N. Segal, and Judith I. .Avner for the National Organization for Women; and by Judith L. Lichtman for the Women’s Equity Action League Educational and Legal Defense Fund et al.
Daniel J. Popeo and Paul D. Kamenar filed a brief for Congressman Lawrence P. McDonald et al. as amici curiae.
Justice Rehnquist
delivered the opinion of the Court.
The question presented is whether the Military Selective Service Act, 50 U. S. C. App. § 451 et seq. (1976 ed. and Supp. III), violates the Fifth Amendment to the United States Constitution in authorizing the President to require the registration of males and not females.
I
Congress is given the power under the Constitution “To raise and support Armies,” “To provide and maintain a Navy,” and “To make Rules for the Government and Regulation of the land and naval Forces.” Art. I, § 8, cls. 12-14. Pursuant to this grant of authority Congress has enacted the Military Selective Service Act, 50 U. S. C. App. § 451 et seq. (1976 ed. and Supp. III) (the MSSA or the Act). Section 3 of the Act, 62 Stat. 605, as amended, 50 U. S. C. App. § 453, empowers the President, by proclamation, to require the registration of “every male citizen” and male resident aliens between the ages of 18 and 26. The purpose of this registration is to facilitate any eventual conscription: pursuant to § 4 (a) of the Act, 62 Stat. 605, as amended, 50 U. S. C. App. § 454 (a), those persons required to register under § 3 are liable for training and service in the Armed Forces. The MSSA registration provision serves no other purpose beyond providing a pool for subsequent induction.
Registration for the draft under § 3 was discontinued in 1975. Presidential Proclamation No. 4360, 3 CFR 462 (1971-1975 Comp.), note following 50 U. S. C. App. §453. In early 1980, President Carter determined that it was necessary to reactivate the draft registration process. The immediate impetus for this decision was the Soviet armed invasion of Afghanistan. 16 Weekly Comp, of Pres. Doc. 198 (1980) (State of the Union Address). According to the administration’s witnesses before the Senate Armed Services Committee, the resulting crisis in Southwestern Asia convinced the President that the “time has come” “to use his present authority to require registration ... as a necessary step to preserving or enhancing our national security interests.” Department of Defense Authorization for Appropriations for Fiscal Year 1981: Hearings on S. 2294 before the Senate Committee on Armed Services, 96th Cong., 2d Sess., 1805 (1980) (hereafter Hearings on S. 2294) (joint statement of Dr. John P. White, Deputy Director, Office of Management and Budget, Dr. Bernard Rostker, Director, Selective Service System, and Richard Danzig, Principal Deputy Assistant Secretary of Defense). The Selective Service System had been inactive, however, and funds were needed before reactivating registration. The President therefore recommended that funds be transferred from the Department of Defense to the separate Selective Service System. H. R. Doc. No. 96-267, p. 2 (1980). He also recommended that Congress take action to amend the MSSA to permit the registration and conscription of women as well as men. See House Committee on Armed Services, Presidential Recommendations for Selective Service Reform — A Report to Congress Prepared Pursuant to Pub. L. 96-107, 96th Cong., 2d Sess., 20-23 (Comm. Print No. 19, 1980) (hereinafter Presidential Recommendations), App. 57-61.
Congress agreed that it was necessary to reactivate the registration process, and allocated funds for that purpose in a Joint Resolution which passed the House on April 22 and the Senate on June 12. H. J. Res. 521, Pub. L. 96-282, 94 Stat. 552. The Resolution did not allocate all the funds originally requested by the President, but only those necessary to register males. See S. Rep. No. 96-789, p. 1, n. 1, and p. 2 (1980); 126 Cong. Rec. 13895 (1980) (Sen. Nunn). Although Congress considered the question at great length, see infra, at 72-74, it declined to amend the MSSA to permit the registration of women.
On July 2, 1980, the President, by Proclamation, ordered the registration of specified groups of young men pursuant to the authority conferred by § 3 of the Act. Registration was to commence on July 21, 1980. Proclamation No. 4771, 3 CFR 82 (1980).
These events of last year breathed new life into a lawsuit which had been essentially dormant in the lower courts for nearly a decade. It began in 1971 when several men subject to registration for the draft and subsequent induction into the Armed Services filed a complaint in the United States District Court for the Eastern District of Pennsylvania challenging the MSSA on several grounds. A three-judge Dis-strict Court was convened in 1974 to consider the claim of unlawful gender-based discrimination which is now before us. On July 1, 1974, the court declined to dismiss the case as moot, reasoning that although authority to induct registrants had lapsed, see n. 1, supra, plaintiffs were still under certain affirmative obligations in connection with registration. Rowland v. Tarr, 378 F. Supp. 766. Nothing more happened in the case for five years. Then, on June 6, 1979, the court Clerk, acting pursuant to a local rule governing inactive cases, proposed that the case be dismissed. Additional discovery thereupon ensued, and defendants moved to dismiss on various justiciability grounds. The court denied the motion to dismiss, ruling that it did not have before it an adequate record on the operation of the Selective Service System and what action would be necessary to reactivate it. Goldberg v. Tarr, 510 F. Supp. 292 (1980). On July 1, 1980, the court certified a plaintiff class of “all male persons who are registered or subject to registration under 50 U. S. C. App. § 453 or are liable for training and service in the armed forces of the United States under 50 U. S. C. App. §§ 454, 456 (h) and 467 (c).” 509 F. Supp. 586, 589,
On Friday, July 18, 1980, three days before registration was to commence, the District Court issued an opinion finding that the Act violated the Due Process Clause of the Fifth Amendment and permanently enjoined the Government from requiring registration under the Act. The court initially determined that the plaintiffs had standing and that the case was ripe, determinations which are not challenged here by the Government. Turning to the merits, the court rejected plaintiffs’ suggestions that the equal protection claim should , be tested under “strict scrutiny,” and also rejected defendants’ argument that the deference due Congress in the area of military affairs required application of the traditional 'minimum scrutiny” test. Applying the “important government interest” test articulated in Craig v. Boren, 429 U. S. 190 (1976), the court struck down the MSSA. The court stressed that it was not deciding whether or to what extent women should serve in combat, but only the issue of registration, and felt that this “should dispel any concern that we are injecting ourselves in an inappropriate manner into military affairs.” 509 F. Supp., at 597. See also id., at 599, nn. 17 and 18. The court then proceeded to examine the testimony and hearing evidence presented to Congress by representatives of the military and the Executive Branch, and concluded on the basis of this testimony that “military opinion, backed by extensive study, is that the availability of women registrants would materially increase flexibility, not hamper it.” Id., at 603. It rejected Congress’ contrary determination in part because of what it viewed as Congress’ “inconsistent positions” in declining to register women yet spending funds to recruit them and expand their opportunities in the military. Ibid.
The Director of Selective Service immediately filed a notice of appeal and the next day, Saturday, July 19, 1980, Justice Brennan, acting in his capacity as Circuit Justice for the Third Circuit, stayed the District Court’s order enjoining commencement of registration. 448 U. S. 1306. Registration began the next Monday. On December 1, 1980, we noted probable jurisdiction. 449 U. S. 1009.
II
Whenever called upon to judge the constitutionality of an Act of Congress -“the gravest and) most delicate duty that this Court is called upon to perform,” Blodgett v. Holden, 275 U. S. 142, 148 (1927) (Holmes, J.) — the Court accords “great weight to the decisions of Congress.” Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94, 102 (1973). The Congress is a coequal branch of government whose Members take the same oath we do to uphold the Constitution of the United States. As Justice Frankfurter noted in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123, 164 (1951) (concurring opinion), we must have “due regard to the fact that this Court is not exercising a primary judgment but is sitting in judgment upon those who also have taken the oath to observe the Constitution and who have the responsibility for carrying on government.” The customary deference accorded the judgments of Congress is certainly appropriate when, as here, Congress specifically considered the question of the Act’s constitutionality. See, e. g., S. Rep. No. 96-826, pp. 159-161 (1980); 126 Cong. Rec. 13880-13882 (1980) (Sen. Warner); id., at 13896 (Sen. Hatfield).
This is not, however, merely a case'involving the customary deference accorded congressional decisions. The case ^arises in the context of Congress’ authority over national defense and military affairs, and perhaps in no other area has the Court accorded Congress greater deference. In rejecting the registration of women, Congress explicitly relied upon its constitutional powers under Art. I, § 8, cls. 12-14. The “specific findings” section of the Report of the Senate Armed Services Committee, later adopted by both Houses of Congress, began by stating:
“Article I, séction 8 of the Constitution commits exclusively to the Congress the powers to raise and support armies, provide and maintain a Navy, and make rules for Government and regulation of the land and naval forces, and pursuant to these powers it lies within the discretion of the Congress to determine the occasions for expansion of our Armed Forces, and the means best suited to such expansion should it prove necessary.” S. Rep. No. 96-826, supra, at 160.
See also S. Rep. No. 96-226, p. 8 (1979). This Court has consistently recognized Congress’ “broad constitutional power” to raise and regulate armies and navies, Schlesinger v. Ballard, 419 U. S. 498, 510 (1975). As the Court noted in considering a challenge to the selective service laws: “The constitutional power of Congress to raise and support armies and to make all laws necessary and proper to that end is broad and sweeping.” United States v. O’Brien, 391 U. S. 367, 377 (1968). See Lichter v. United States, 334 U. S. 742, 755 (1948).
Not only is the scope of Congress’ constitutional power in this area broad, but the lack of competence on the part of the courts is marked. In Gilligan v. Morgan, 413 U. S. 1, 10 (1973), the Court noted:
“[I]t is difficult to conceive of an area of governmental activity in which the courts have less competence. The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches.”
See also Orloff v. Willoughby, 345 U. S. 83, 93-94 (1953).
The operation of a healthy deference to legislative and executive judgments in the area of military affairs is evident in several recent decisions of this Court. In Parker v. Levy, 417 U. S. 733, 756, 758 (1974), the Court rejected both vagueness and overbreadth challenges to provisions of the Uniform Code of Military Justice, noting that “Congress is permitted to legislate both with greater breadth and with greater flexibility” when the statute governs military society, and that “[w]hile the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections.” In Middendorf v. Henry, 425 U. S. 25 (1976), the Court noted that in considering due process claims in the context of a summary court-martial it “must give particular deference to the determination of Congress, made under its authority to regulate the land and naval forces, U. S. Const., Art. I, § 8,” concerning what rights were available. Id., at 43. See also id., at 49-50 (Powell, J., concurring). Deference to the judgment of other branches in the area of military affairs also played a major role in Greer v. Spock, 424 U. S. 828, 837-838 (1976), where the Court upheld a ban on political speeches by civilians on a military base, and Brown v. Glines, 444 U. S. 348 (1980), where the Court upheld regulations imposing a prior restraint on the right to petition of military personnel. See also Burns v. Wilson, 346 U. S. 137 (1953); United States v. MacIntosh, 283 U. S. 605, 622 (1931).
In Schlesinger v. Ballard, supra, the Court considered a due process challenge, brought by males, to the Navy policy of according females a longer period than males in which to attain promotions necessary to continued service. The Court distinguished previous gender-based discriminations held unlawful in Reed v. Reed, 404 U. S. 71 (1971), and Frontiero v. Richardson, 411 U. S. 677 (1973). In those cases, the classifications were based on “overbroad generalizations.” See 419 U. S., at 506-507. In the case before it, however, the Court noted:
“[T]he different treatment of men and women naval officers . . . reflects, not archaic and overbroad generalizations, but, instead, the demonstrable fact that male and female line officers in the Navy are not similarly situated with respect to opportunities for professional service. Appellee has not challenged the current restrictions on women officers’ participation in combat and in most sea duty.” Id., at 508.
In light of the combat restrictions, women did not have the same opportunities for promotion as men, and therefore it was not unconstitutional for Congress to distinguish between them.
None of this is to say that Congress is free to disregard the Constitution when it acts in the area of military affairs. In that area, as any other, Congress remains subject to the limitations of the Due Process Clause, see Ex parte Milligan, 4 Wall. 2 (1866); Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U. S. 146, 156 (1919), but the tests and limitations to be applied may differ because of the military context. We of course do not abdicate our ultimate responsibility to decide the constitutional question, but simply recognize that the Constitution itself requires such deference to congressional choice. See Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S., at 103. In deciding the question before us we must be particularly careful not to substitute our judgment of what is desirable for that of Congress, or our own evaluation of evidence for a reasonable evaluation by the Legislative Branch.
The District Court purported to recognize the appropriateness of deference to Congress when that body was exercising its constitutionally delegated authority over military affairs, 509 F. Supp., at 596, but it stressed that “[w]e are not here concerned with military operations or day-to-day conduct of the military into which we have no desire to intrude.” Ibid. Appellees also stress that this case involves civilians, not the military, and that “the impact of registration on the military is only indirect and attenuated.” Brief for Appellees 19 (emphasis omitted). We find these efforts to divorce registration from the military and national defense context, with all the deference called for in that context, singularly unpersuasive. United States v. O’Brien, 391 U. S. 367 (1968), recognized the broad deference due Congress in the selective service area before us in this case. Registration is not an end in itself in the civilian world but rather the first step in the induction process into the military one, and Congress specifically linked its consideration of registration to induction, see, e. g., S. Rep. No. 96-826, pp. 156, 160 (1980). Congressional judgments concerning registration and the draft are based on judgments concerning military operations and needs, see, e. g., id., at 157 (“the starting point for any discussion of the appropriateness of registering women for the draft is the question of the proper role of women in combat”), and the deference unquestionably due the latter judgments is necessarily required in assessing the former as well. Although the District Court stressed that it was not intruding on military questions, its opinion was based on assessments of military need and flexibility in a time of mobilization. See, e. g., 509 F. Supp., at 600-605. It would be blinking reality to say that our precedents requiring deference to Congress in military affairs are not implicated by the present case.
The Solicitor General argues, largely on the basis of the foregoing cases emphasizing the deference due Congress in the area of military affairs and national security, that this Court should scrutinize the MSSA only to determine if the distinction drawn between men and women bears a rational relation to some legitimate Government purpose, see U. S. Railroad Retirement Bd. v. Fritz, 449 U. S. 166 (1980), and should not examine the Act under the heightened scrutiny with which we have approached gender-based discrimination, see Michael M. v. Superior Court of Sonoma County, 450 U. S. 464 (1981); Craig v. Boren, 429 U. S. 190 (1976); Reed v. Reed, supra. We do not think that the substantive guarantee of due process or certainty in the law will be advanced by any further “refinement” in the applicable tests as suggested by the Government. Announced degrees of “deference” to legislative judgments, just as levels of “scrutiny” which this Court announces that it applies to particular classifications made by a legislative body, may all too readily become facile abstractions used to justify a result. In this case the courts are called upon to decide whether Congress, acting under an explicit constitutional grant of authority, has by that action transgressed an explicit guarantee of individual rights which limits the authority so conferred. Simply labeling the legislative decision “military” on the one hand or “gender-based” on the other does not automatically guide a court to the correct constitutional result.
No one could deny that under the test of Craig v. Boren, supra, the Government’s interest in raising and supporting armies is an “important governmental interest.” Congress and its Committees carefully considered and debated two alternative means of furthering that interest: the first was to register only males for potential conscription, and the other was to register both sexes. Congress chose the former alternative. When that decision is challenged on equal protection grounds, the question a court must decide is not which alternative it would have chosen, had it been the primary decision-maker, but whether that chosen by Congress denies equal protection of the laws.
Nor can it be denied that the imposing number of cases from this Court previously cited suggest that judicial deference to such congressional exercise of authority is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged. As previously noted, supra, at 67, deference does not mean abdication. The reconciliation between the deference due Congress and our own constitutional responsibility is perhaps best instanced in Schlesinger v. Ballard, 419 U. S., at 510, where we stated:
“This Court has recognized that fit is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise.’ [U. S. ex rel.] Toth v. Quarles, 350 U. S. 11, 17. See also Orloff v. Willoughby, 345 U. S. 83, 94. The responsibility for determining how best our Armed Forces shall attend to that business rests with Congress, see U. S. Const., Art. I, § 8, cls. 12-14, and with the President. See U. S. Const., Art. II, § 2, cl. 1. We cannot say that, in exercising its broad constitutional power here, Congress has violated the Due Process Clause of the Fifth Amendment.”
Or, as put a generation ago in a case not involving any claim of gender-based discrimination:
“[JJudges are not given the task of running the Army. The responsibility for setting up channels through which . . . grievances can be considered and fairly settled rests upon the Congress and upon the President of the United States and his subordinates. The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters.” Orloff v. Willoughby, 345 U. S., at 93-94.
Schlesinger v. Ballard did not purport to apply a different equal protection test because of the military context, but did stress the deference due congressional choices among alternatives in exercising the congressional authority to raise and support armies and make rules for their governance. In light of the floor debate and the Report of the Senate Armed Services Committee hereinafter discussed, it is apparent that Congress was fully aware not merely of the many facts and figures presented to it by witnesses who testified before its Committees, but of the current thinking as to the place of women in the Armed Services. In such a case, we cannot ignore Congress’ broad authority conferred by the Constitution to raise and support armies when we are urged to declare unconstitutional its studied choice of one alternative in preference to another for furthering that goal.
Ill
This case is quite different from several of the gender-based ^discrimination cases we have considered in that, despite appel-lees' assertions, Congress did not act “unthinkingly” or “reflexively and not for any considered reason.” Brief for Appellees 35. The question of registering women for the draft not only received considerable national attention and was the subject of wide-ranging public debate, but also was extensively considered by Congress in hearings, floor debate, and in committee. Hearings held by both Houses of Congress in response to the President's request for authorization to register women adduced extensive testimony and evidence concerning the issue. See Hearings on S. 2294; Hearings on H. R. 6569, Registration of Women, before the Subcommittee on Military Personnel of the House Committee on Armed Services, 96th Cong., 2d Sess. (1980) (hereafter House Hearings). These hearings built on other hearings held the previous year addressed to the same question.
The House declined to provide for the registration of women when it passed the Joint Resolution allocating funds for the Selective Service System. See 126 Cong. Rec. 8601-8602, 8620 (1980). When the Senate considered the Joint Resolution, it defeated, after extensive debate, an amendment which in effect would have authorized the registration of women. Id., at 13876-13898. As noted earlier, Congress in H. J. Res. 521 only authorized funds sufficient to cover the registration of males. The Report of the Senate Committee on Appropriations on H. J. Res. 521 noted that the amount authorized was below the President’s request “due to the Committee’s decision not to provide $8,500,000 to register women,” and that “[t]he amount recommended by the Committee would allow for registration of young men only.” S. Rep. No. 96-789, p. 2 (1980); see 126 Cong. Rec. 13895 (1980) (Sen. Nunn).
While proposals to register women were being rejected in the course of transferring funds to register males, Committees in both Houses which had conducted hearings on the issue were also rejecting the registration of women. The House Subcommittee on Military Personnel of the House Armed Services Committee tabled a bill which would have amended the MSSA to authorize registration of women, H. R. 6569, on March 6, 1980. Legislative Calendar, House Committee on Armed Services, 96th Cong., 2d Sess., 58 (1979-1980). The Senate Armed Services Committee rejected a proposal to register women, S. 2440, as it had one year before, see S. Rep. No. 96-226, pp. 8-9 (1979), and adopted specific findings supporting its action. See S. Rep. No. 96-826, pp. 156-161 (1980). These findings were stressed in debate in the Senate on Joint Resolution 521, see 126 Cong. Rec. 13893-13894 (1980) (Sen. Nunn); id., at 13880-13881 (Sen. Warner). They were later specifically endorsed by House and Senate conferees considering the Fiscal Year 1981 Defense Authorization Bill. See S. Conf. Rep. No. 96-895, p. 100 (1980). Later both Houses adopted the findings by passing the Report. 126 Cong. Rec. 23126, 23261 (1980). The Senate Report, therefore, is considerably more significant than a typical report of a single House, and its findings are in effect findings of the entire Congress.
The foregoing clearly establishes that the decision to ex-women from registration was not the “ 'accidental byproduct of a traditional way of thinking about females/” Califano v. Webster, 430 U. S. 313, 320 (1977) (quoting Califano v. Goldfarb, 430 U. S. 199, 223 (1977) (Stevens, J., concurring in judgment)). In Michael M., 450 U. S., at 471, n. 6 (plurality opinion), we rejected a similar argument because of action by the California Legislature considering and rejecting proposals to make a statute challenged on discrimination grounds gender-neutral. The cause for rejecting the argument is considerably stronger here. The issue was considered at great length, and Congress clearly expressed its purpose and intent. Contrast Califano v. Westcott, 443 U. S. 76, 87 (1979) (“The gender qualification . . . escaped virtually unnoticed in the hearings and floor debates”).
For the same reasons we reject appellees’ argument that we must consider the constitutionality of the MSSA solely on the basis of the views expressed by Congress in 1948, when the MSSA was first enacted in its modern form. Contrary to the suggestions of appellees and various amici, reliance on the legislative history of Joint Resolution 521 and the activity of the various Committees of the 96th Congress considering the registration of women does not violate sound principles that appropriations legislation should not be considered as modifying substantive legislation. Congress did not change the MSSA in 1980, but it did thoroughly reconsider the question of exempting women from its provisions, and its basis for doing so. The 1980 legislative history is, therefore, highly relevant in assessing the constitutional validity of the exemption.
The MSSA established a plan for maintaining “adequate armed strength ... to insure the security of [the] Nation.” 50 U. S. C. App. §451 (b). Registration is the first step “in a united and continuous process designed to raise an army speedily and efficiently,” Falbo v. United States, 320 U. S. 549, 553 (1944), see United States v. Nugent, 346 U. S. 1, 9 (1953), and Congress provided for the reactivation of registration in order to “provid [e] the means for the early delivery of inductees in an emergency.” S. Rep. No. 96-826, supra, at 156. Although the three-judge District Court often tried to sever its consideration of registration from the particulars of induction, see, e. g., 509 F. Supp., at 604-605, Congress rather clearly linked the need for renewed registration with its views on the character of a subsequent draft. The Senate Report specifically found that “[a]n ability to mobilize rapidly is essential to the preservation of our national security. ... A functioning registration system is a vital part of any mobilization plan.” S. Rep. No. 96-826, supra, at 160. As Senator Warner put it, “I equate registration with the draft.” Hearings on S. 2294, at 1197. See also id., at 1195 (Sen. Jepsen), 1671 (Sen. Exon). Such an approach is certainly logical, since under the MSSA induction interlocked with registration: only those registered may be drafted, and registration serves no purpose beyond providing pool for the draft. Any assessment of the congressional purpose and its chosen means must therefore consider the registration scheme as a prelude to a draft in a time of national emergency. Any other approach would not be testing the Act in light of the purposes Congress sought to achieve.
Congress determined that any future draft, which would be facilitated by the registration scheme, would be characterized by a need for combat troops. The Senate Report explained, in a specific finding later adopted by both Houses, that “[i]f mobilization were to be ordered in a wartime scenario, the primary manpower need would be for combat replacements.” S. Rep. No. 96-826, p. 160 (1980); see id., at 158. This conclusion echoed one made a year before by the same Senate Committee, see S. Rep. No. 96-226, pp. 2-3, 6 (1979). As Senator Jepsen put it, “the shortage would be in the combat arms. That is why you have drafts.” Hearings on S. 2294, at 1688. See also id., at 1195 (Sen. Jepsen); 126 Cong. Rec. 8623 (1980) (Rep. Nelson). Congress’ determination that the need would be for combat troops if a draft took place was sufficiently supported by testimony adduced at the hearings so that the courts are not free to make their own judgment on the question. See Hearings on S. 2294, at 1528-1529 (Marine Corps Lt. Gen. Bronars); 1395 (Principal Deputy Assistant Secretary of Army Clark); 1391 (Lt. Gen. Yerks); 748 (Gen. Meyer); House Hearings 17 (Assistant Secretary of Defense for Manpower Pirie). See also Hearing on S. 109 and S. 226, at 24, 54 (Gen. Rogers). The purpose of registration, therefore, was to prepare for a draft of combat troops.
Women as a group, however, unlike men as a group, are not eligible for combat. The restrictions on the participation of women in combat in the Navy and Air Force are statutory. Under 10 U. S. C. § 6015 (1976 ed., Supp. III), “women may not be assigned to duty on vessels or in aircraft that are engaged in combat missions,” and under 10 U. S. C. § 8549 female members of the Air Force “may not be assigned to duty in aircraft engaged in combat missions.” The Army and Marine Corps preclude the use of women in combat as a matter of established policy. See App. 86, 34, 58. Congress specifically recognized and endorsed the exclusion of women from combat in exempting women from registration. In the words of the Senate Report:
“The principle that women should not intentionally and routinely engage in combat is fundamental, and enjoys wide support among our people. It is universally supported by military leaders who have testified before the Committee .... Current law and policy exclude women from being assigned to combat in our military forces, and the Committee reaffirms this policy.” S. Rep. No. 96-826, supra, at 157.
The Senate Report specifically found that “[wjomen should not be intentionally or routinely placed in combat positions in our military services.” Id., at 160. See S. Rep. No. 96-226, supra, at 9. The President expressed his intent to continue the current military policy precluding women from combat, see Presidential Recommendations 3, App. 34, and appellees present their argument concerning registration against the background of such restrictions on the use of women in combat. Consistent with the approach of this Court in Schlesinger v. Ballard, 419 U. S. 498 (1975), we must examine appellees’ constitutional claim concerning registration with these combat restrictions firmly in mind.
. The existence of the combat restrictions clearly indicates the basis for Congress’ decision to exempt women from registration. The purpose of registration was to prepare for a draft of combat troops. Since women are excluded from combat, Congress concluded that they would not be needed in the event of a draft, and therefore decided not to register them. Again turning to the Senate Report:
“In the Committee’s view, the starting point for any discussion of the appropriateness of registering women for the draft is the question of the proper role of women in combat. . . . The policy precluding the use of women in combat is, in the Committee’s view, the most important reason for not including women in a registration system.” S. Rep. No. 96-826, supra, at 157.
The District Court stressed that the military need for women was irrelevant to the issue of their registration. As that court put it: “Congress could not constitutionally require registration under the MSSA of only black citizens or only white citizens, or single out any political or religious group simply because those groups contain sufficient persons to fill the needs of the Selective Service System.” 509 P. Supp., at 596. This reasoning is beside the point. The reason women are exempt from registration is not because military needs can be met by drafting men. This is not a case oh Congress arbitrarily choosing to burden one of two similarly situated groups, such as would be the case with an all-black or all-white, or an all-Catholic or all-Lutheran, or an all-Republican or all-Democratic registration. Men and women, because of the combat restrictions on women, are simply not similarly situated for purposes of a draft or registration for a draft.
Congress’ decision to authorize the registration of only men, therefore, does not violate the Due Process Clause. The exemption of women from registration is not only sufficiently but also closely related to Congress’ purpose in authorizing registration. See Michael M., 450 U. S., at 472-473 (plurality opinion); Craig v. Boren, 429 U. S. 190 (1976); Reed v. Reed, 404 U. S. 71 (1971). The fact that Congress and the Executive have decided that women should not serve in combat fully justifies Congress in not authorizing their registration, since the purpose of registration is to develop a pool of potential combat troops. As was the case in Schlesinger v. Ballard, supra, “the gender classification is not individious, but rather realistically reflects the fact that the sexes are not similarly situated” in this case. Michael M., supra, at 469 (plurality opinion). The Constitution requires that Congress treat similarly situated persons similarly, not that it engage in gestures of superficial equality.
In holding the MSSA constitutionally invalid the District Court relied heavily on the President’s decision to seek authority to register women and the testimony of members of the Executive Branch and the military in support of that decision. See, e. g., 509 F. Supp., at 603-604, and n. 30. As stated by the administration’s witnesses before Congress, however, the President’s “decision to ask for authority to register women is based on equity.” House Hearings 7 (statement of Assistant Secretary of Defense Pirie and Director of Selective Service System Rostker); see also Presidential Recommendations 3, 21, 22, App. 35, 59, 60; Hearings on S. 2294, at 1657 (statements of Executive Associate Director of Office of Management and Budget Wellford, Director of Selective Service System Rostker, and Principal Deputy Assistant Secretary of Defense Danzig). This was also the basis for the testimony by military officials. Id., at 710 (Gen. Meyer), 1002 (Gen. Allen). The Senate Report, evaluating the testimony before the Committee, recognized that “[t]he argument for registration and induction of women ... is not based on military necessity, but on considerations of equity.” S. Rep. No. 96-826, p. 158 (1980). Congress was certainly entitled, in the exercise of its constitutional powers to raise and regulate armies and navies, to focus on the question of military need rather than “equity.” As Senator Nunn of the Senate Armed Services Committee put it:
“Our committee went into very great detail. We found that there was no military necessity cited by any witnesses for the registration of females.
“The main point that those who favored the registra-tration of females made was that they were in favor of this because of the equality issue, which is, of course, a legitimate view. But as far as military necessity, and that is what we are primarily, I hópe, considering in the overall registration bill, there is no military necessity for this.” 126 Cong. Rec. 13893 (1980).
See also House Hearings 20 (Rep. Holt) (“You are talking about equity. I am talking about military”).
Although the military experts who testified in favor of registering women uniformly opposed the actual drafting of women, see, e. g., Hearing on S. 109 and S. 226, at 11 (Gen. Rogers), there was testimony that in the event of a draft of 650,000 the military could absorb some 80,000 female inductees. Hearings on S. 2294, at 1661, 1828. The 80,000 would be used to fill noncombat positions, freeing men to go to the front. In relying on this testimony in striking down the MSSA, the District Court palpably exceeded its authority when it ignored Congress’ considered response to this fine of reasoning.
In the first place, assuming that a small number of women could be drafted for noncombat roles, Congress simply did not consider it worth the added burdens of including women in draft and registration plans. “It has been suggested that all women be registered, but only a handful actually be inducted in an emergency. The Committee finds this a confused and ultimately unsatisfactory solution.” S. Rep. No. 96-826, supra, at 158. As the Senate Committee recognized a year before, “training would be needlessly burdened by women recruits who could not be used in combat.” S. Rep. No. 96-226, p. 9 (1979). See also S. Rep. No. 96-826, supra, at 159 (“Other administrative problems such as housing and different treatment with regard to dependency, hardship and physical standards would also exist”). It is not for this Court to dismiss such problems as insignificant in the context of military preparedness and the exigencies of a future mobilization.
Congress also concluded that whatever the need for women for noncombat roles during mobilization, whether 80,000 or less, it could be met by volunteers. See id., at 160; id., at 158 (“Because of the combat restrictions, the need would be primarily for men, and women volunteers would fill the requirements for women”); House Hearings 19 (Rep. Holt). See also Hearings on S. 2294, at 1195 (Gen. Rogers).
Most significantly, Congress determined that staffing noncombat positions with women during a mobilization would be positively detrimental to the important goal of military flexibility.
. . [T]here are other military reasons that preclude very large numbers of women from serving. Military flexibility requires that a commander be able to move units or ships quickly. Units or ships not located at the front or not previously scheduled for the front nevertheless must be able to move into action if necessary. In peace and war, significant rotation of personnel is necessary. We should not divide the military into two groups — one in permanent combat and one in permanent support. Large numbers of non-combat positions must be available to which combat troops can return for duty before being redeployed.” S. Rep. No. 96-826, supra, at 158.
The point was repeated in specific findings, id., at 160; see also S. Rep. No. 96-226, supra, at 9. In sum, Congress carefully evaluated the testimony that 80,000 women conscripts could be usefully employed in the event of a draft and rejected it in the permissible exercise of its constitutional responsibility. See also Hearing on S. 109 and S. 226, at 16 (Gen. Rogers); Hearings on S. 2294, at 1682. The District Court was quite wrong in undertaking an independent evaluation of this evidence, rather than adopting an appropriately deferential examination of Congress’ evaluation of that evidence.
In light of the foregoing, we conclude that Congress acted well within its constitutional authority when it authorized the registration of men, and not women, under the Military Selective Service Act. The decision of the District Court holding otherwise is accordingly
Reversed.
The President did not seek conscription. Since the Act was amended to preclude conscription as of July 1, 1973, Pub. L. 92-129, 85 Stat. 353, 50 U. S. C. App. § 467 (c), any actual conscription would require further congressional action. See S. Rep. No. 96-826, p. 155 (1980).
Plaintiffs contended that the Act amounted to a taking of property without due process, imposed involuntary servitude, violated rights of free expression and assembly, was unlawfully implemented to advance an unconstitutional war, and impermissibly discriminated between males and females. The District Court denied plaintiffs’ application to convene a three-judge District Court and dismissed the suit, Rowland v. Tarr, 341 F. Supp. 339 (1972). On appeal, the Court of Appeals for the Third Circuit affirmed the dismissal of all claims except the discrimination claim, and remanded the case to the District Court to determine if this claim was substantial enough to warrant the convening of a three-judge court under then-applicable 28 U. S. C. §2282 (1970 ed.) and whether plaintiffs had standing to assert that claim. 480 F. 2d 545 (1973). On remand, the District Court answered both questions in the affirmative, resulting in the convening of the three-judge court which decided the case below. The Act authorizing three-judge courts to hear claims such as this was repealed in 1976, Pub. L. 94-381, §§ 1 and 2, 90 Stat. 1119, but remains applicable to suits filed before repeal, § 7, 90 Stat. 1120.
As the Court stated in Schlesinger v. Ballard, 419 U. S. 498, 500, n. 3 (1975): “Although it contains no Equal Protection Clause as does the Fourteenth Amendment, the Fifth Amendment’s Due Process Clause prohibits the Federal Government from engaging in discrimination that is ‘so unjustifiable as to be violative of due process.’ Bolling v. Sharpe, 347 U. S. 497, 499.”
When entering its judgment on July 18, the District Court redefined the class to include “[a] 11 male persons who are registered under 50 U. S. C. App. § 453 or are liable for training and service in the armed forces of the United States under 50 U. S. C. App. §§ 454, 456 (h) and 467 (c); and who are also either subject to registration under Presidential Proclamation No. 4771 (July 2, 1980) or are presently registered with the Selective Service System.” 509 F. Supp., at 605.
See also Simmons v. United States, 406 F. 2d 456, 459 (CA5), cert, denied, 395 U. S. 982 (1969) (“That this court is not competent or empowered to sit as a super-executive authority to review the decisions of the Executive and Legislative branches of government in regard to the necessity, method of selection, and composition of our defense forces is obvious and needs no further discussion”).
Congress recognized that its decision on registration involved judgments on military needs and operations, and that its decisions were entitled to particular deference: “The Supreme Court’s most recent teachings in the field of equal protection cannot be read in isolation from its opinions giving great deference to the judgment of Congress and military commanders in dealing [with] the management of military forces and the requirements of military discipline. The Court has made it unmistakably clear that even our most fundamental constitutional rights must in some circumstances be modified in the light of military needs, and that Congress’ judgment as to what is necessary to preserve our national security is entitled to great deference.” S. Rep. No. 96-826, pp. 159-160 (1980).
Deference to Congress’ judgment was a consistent and dominant theme in lower court decisions assessing the present claim. See, e. g., United States v. Clinton, 310 F. Supp. 333, 335 (ED La. 1970); United States v. Offord, 373 F. Supp. 1117, 1118 (ED Wis. 1974).
It is clear that “[g]ender has never been rejected as an impermissible classification in all instances.” Kahn v. Shevin, 416 U. S. 351, 356, n. 10 (1974). In making this observation the Court noted that “Congress has not so far drafted women into the Armed Services, 50 U. S. C. App. § 454.” Ibid.
See Reinstitution of Procedures for Registration Under the Military Selective Service Act: Hearing on S. 109 and S. 226 before the Subcommittee on Manpower and Personnel of the Senate Committee on Armed Services, 96th Cong., 1st Sess. (1979) (Hearing on S. 109 and S. 226). Seven months before the President's call for the registration of women, the Senate Armed Services Committee rejected the idea, see S. Rep. No. 96-226, pp. 8-9 (1979).
The amendment provided that no funds “shall be made available for implementing a system of registration which does not include women.” 126 Cong. Rec. 13876 (1980).
The findings were before the conferees because the Senate Armed Services Committee had added a provision to the 1981 Defense Authorization Bill authorizing the transfer of funds to register young men as a stopgap measure should Joint Resolution 521 fail. See S. Conf. Rep. No. 96-895, at 100.
Nor can we agree with the characterization of the MSSA in the Brief for National Organization for Women as Amicus Curiae as a law which “coerce[s] or preclude[s] women as a class from performing tasks or jobs of which they are capable,” or the suggestion that this case involves “[t]he exclusion of women from the military.” Id., at 19-20. Nothing in the MSSA restricts in any way the opportunities for women to volunteer for military service.
No major country has women in combat jobs in their standing army. See App. 143.
See Brief for Appellees 1-2, n. 2 (denying any concession of the validity of combat restrictions, but submitting restrictions are irrelevant to the present case). See also App. 256.
Justice Marshall’s suggestion that since Congress focused on the need for combat troops in authorizing male-only registration the Court could “be forced to declare the male-only registration program unconstitutional,” post, at 96, in the event of a peacetime draft misreads our opinion. The perceived need for combat or combat-eligible troops in the event of a draft was not limited to a wartime draft. See, e. g., S. Rep. No. 96-826, at 157 (considering problems associated with “[registering women for assignment to combat or assigning women to combat positions in peacetime”) (emphasis supplied); id., at 158 (need for rotation between combat and noncombat positions “[i]n peace and war”).
The grant of constitutional authority is, after all, to Congress and not to the Executive or military officials.
The District Court also focused on what it termed Congress’ “inconsistent positions” in encouraging women to volunteer for military service and expanding their opportunities in the service, on the one hand, and exempting them from registration and the draft on the other. 509 F. Supp., at 603-604. This reasoning fails to appreciate the different purposes served by encouraging women volunteers and registration for the draft. Women volunteers do not occupy combat positions, so encouraging women to volunteer is not related to concerns about the availability of combat troops. In the event of a draft, however, the need would be for combat troops or troops which could be rotated into combat. See supra, at 76. Congress’ positions are clearly not inconsistent and in treating them as such the District Court failed to understand Congress’ purpose behind registration as distinguished from its purpose in encouraging women volunteers.
General Rogers' testimony merits quotation:
“General Rogers. One thing which is often lost sight of, Senator, is that in an emergency during war, the Army has often had to reach back into the support base, into the supporting elements in the operating base, and pull forward soldiers to fill the ranks in an emergency; that is, to hand them a rifle or give them a tanker suit and put them in the front ranks.
“Senator WARNER. General Patton did that at one time, I believe at the Battle of the Bulge.
“General Rogers. Absolutely.
“Now, if that support base and that operating base to the rear consists in large measure of women, then we don’t have that opportunity to reach back and pull them forward, because women should not be placed in a forward fighting position or in a tank, in my opinion. So that, too, enters the equation when one considers the subject of the utility of women under contingency conditions." | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. | What is the issue of the decision? | [
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] | [
13
] | sc_issue_2 |
UNITED STATES v. ATLANTIC MUTUAL INSURANCE CO. et al.
No. 450.
Argued March 7, 1952.
Decided April 21, 1952.
James L. Morrisson argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Baldridge, Samuel D. Slade, Roscoe H. Hupper and Ray Rood Allen.
Leonard J. Matteson argued the cause for the Farr Sugar Corporation et al., respondents. With him on the brief were Oscar R. Houston and Richard F. Shaw.
Cletus Keating, Edwin S. Murphy and Louis J. Gus-mano submitted on brief for the Belgian Overseas Transport, S. A., respondent.
Mr. Justice Black
delivered the opinion of the Court.
Respondents are cargo owners who shipped goods on the steamship Nathaniel Bacon owned by petitioner, the United States, and operated as a common carrier of goods for hire. It collided with the Esso Belgium and respondents’ cargo was damaged. The ships were also damaged. This litigation was brought in the District Court to determine liability for the damages suffered by the cargo owners and for the physical damage caused the ships. It was agreed in the District Court that:
(a) The collision was due to negligent navigation by employees of both ships. The cargo owners were in no way at fault.
(b) The Belgium, as one of two joint tortfeasors, must pay “100%” of damages suffered by the Bacon’s cargo owners.
(c) Because of § 3 of the Harter Act and § 4 (2) of the Carriage of Goods by Sea Act, the cargo owners are barred from directly suing the Bacon for cargo damages.
(d) Since the two ships were mutually at fault, the aggregate of all damages to both should be shared by both.
(e) In computing the aggregate damages caused both ships, account should be taken of the cargo damages recovered from the Belgium by the cargo owners.
(f) The bill of lading issued by the Bacon to the cargo owners contained a “Both-to-Blame” clause. This clause, if valid, requires the cargo owners to indemnify the carrier Bacon for any amounts the Bacon loses because damages recovered by the cargo owners from the Belgium are included in the aggregate damages divided between the two ships.
The only question presented to us is whether the “Both-to-Blame” clause is valid. Respondent cargo owners contend that it is void and unenforceable as a violation of the long-standing rule of law which forbids common carriers from stipulating against the consequences of their own or their employees’ negligence. Petitioner, the United States, contends that § 3 of the Harter Act, as substantially reenacted in § 4 (2) of the Carriage of Goods by Sea Act, provides special statutory authorization permitting ocean carriers to deviate from the general rule and to stipulate against their negligence as they did here. The District Court held the clause valid. 90 F. Supp. 836. The Court of Appeals reversed. 191 F. 2d 370. Deeming the question decided of sufficient importance to justify our review, this Court granted certiorari. 342 U. S. 913.
There is a general rule of law that common carriers cannot stipulate for immunity from their own or their agents’ negligence. While this general rule was fashioned by the courts, it has been continuously accepted as a guide to common-carrier relationships for more than a century and has acquired the force and precision of a legislative enactment. Considering the relationship of the rule to the Harter Act, this Court said in 1901 that “in view of the well-settled nature of the general rule at the time the statute was adopted, it must result that legislative approval was by clear implication given to the general rule as then existing in all cases where it was not changed.” The Kensington, 183 U. S. 263, 268-269. Our question therefore is whether the language of the Harter Act, substantially reenacted in the Carriage of Goods by Sea Act, has carved out a special statutory exception to the general rule so as to permit a carrier to deprive its cargo owners of a part of the fruits of any judgment they obtain in a direct action against a noncarrying vessel that contributes to a collision.
Prior to the passage of the Harter Act in 1893, cargo damages incurred in a both-to-blame collision could be recovered in full from either ship. The Atlas, 93 U. S. 302. The Harter Act, under some circumstances, took away the right of the cargo owner to sue his own carrier for cargo damages caused by the negligent navigation of the carrier’s servants or agents. It did not deprive the cargo owner of his tort action against the noncarrying ship. The Chattahoochee, 173 U. S. 540, 549-550. Nor did the Harter Act go so far as to insulate the carrier from responsibility to another vessel for physical damages caused to the ship by negligent navigation of the carrier’s servants or agents. In The Delaware, 161 U. S. 459, 471, 474, this Court declined to give the Harter Act such a broad interpretation even though the language itself, if “broadly construed” and considered alone, would have justified such an interpretation. In addition, the Harter Act does not exonerate the carrier from its obligation to share with the noncarrier one-half the damages paid by the noncarrier to the cargo owners. The Chattahoochee, supra, at pp. 551-552; see also Aktslsk. Cuzco v. The Sucarseco, 294 U. S. 394, 401-402.
Apparently it was not until about forty years after the passage of the Harter Act that shipowners first attempted by stipulation to deprive cargo owners of a part of their recovery against noncarrying ships. See The W. W. Bruce, 14 F. Supp. 894, rev’d on other grounds, 94 F. 2d 834. The present effort of shipowners appears to date from 1937 when the North Atlantic Freight Conference adopted the “Both-to-Blame” clause. So far as appears, this is the first test of the legality of the clause that has appeared in the courts. When Congress passed the Carriage of Goods by Sea Act in 1936, it indicated no purpose to bring about a change in the long-existing relationships and obligations between carriers and shippers which would be relevant to the validity of the “Both-to-Blame” clause. At that time all interested groups such as cargo owners, shipowners, and the representatives of interested insurance companies were before the congressional committees. Although petitioner and respondents both appear to find comfort in the language and the hearings of the 1936 Act, nothing in either persuades us that Congress intended to alter the Harter Act in any respect material to this controversy.
Petitioner argues that the clause does nothing more than remove an “anomaly” which arises from this Court’s construction of the Harter Act. It is said to be “anomalous” to hold a carrier not liable at all if it alone is guilty of negligent navigation but at the same time to hold it indirectly liable for one-half the cargo damages if another ship is jointly negligent with it. Assuming for the moment that all rules of law must be symmetrical, we think it would be “anomalous” to hold that a cargo owner, who has an unquestioned right under the law to recover full damages from a noncarrying vessel, can be compelled to give up a portion of that recovery to his carrier because of a stipulation exacted in a bill of lading. Moreover, there is no indication that either the Harter Act or the Carriage of Goods by Sea Act was designed to alter the long-established rule that the full burden of the losses sustained by both ships in a both-to-blame collision is to be shared equally. Yet the very purpose of exacting this bill of lading stipulation is to enable one ship to escape its equal share of such losses by shifting a part of its burden to its cargo owners.
Here, once more, “we think that legislative consideration and action can best bring about a fair accommodation of the diverse but related interests” of the varied groups who would be affected by permitting carriers to deviate from the controlling rule that without congressional authority they cannot stipulate against their own negligence or that of their agents or servants. If that rule is to be changed, the Congress, not the shipowners, should change it.
Affirmed.
Certain insurance companies are parties to this suit as subrogees of their insured cargo owners. Some cargo owners were not insured.
27 Stat. 445, 46 U. S. C. § 192. This section provides that if due diligence is exercised by the shipowner in making the ship seaworthy and properly manned, equipped, and supplied, then “neither the vessel, her owner or owners, agent, or charterers, shall become or be held responsible for damage or loss resulting from faults or errors in navigation or in the management of said vessel
49 Stat. 1210, 46 U. S. C. § 1304 (2). This section provides that “Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from — (a) Act, neglect, or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship; . . . .”
The shipowners have stipulated that in this case the Esso Belgium, is to bear two-thirds and the Nathaniel Bacon one-third of the total damages, although the normal admiralty rule requires an equal division of damages. Halcyon Lines v. Haenn Ship Corp., 342 U. S. 282, 284.
The clause reads as follows:
“If the ship comes into collision with another ship as a result of the negligence of the other ship and any act, neglect or default of the Master, mariner, pilot or the servants of the Carrier in the navigation or in the management of the ship, the owners of the goods carried hereunder will indemnify the Carrier against all loss or liability to the other or non-carrying ship or her owners in so far as such loss or liability represents loss of, or damage to, or any claim whatsoever of the owners of said goods, paid or payable by the other or non-carrying ship or her owners to the owners of said goods and set-off, recouped or recovered by the other or non-carrying ship or her owners as part'of their claim against the carrying ship or Carrier.”
See, e. g., Liverpool Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 438-444 (1889); Knott v. Botany Mills, 179 U. S. 69, 71 (1900); Railroad Co. v. Lockwood, 17 Wall. 357 (1873); Boston & Maine R. Co. v. Piper, 246 U. S. 439, 445 (1918); San Giorgio I v. Rheinstrom Co., 294 U. S. 494, 496 (1935). And see cases collected in 9 Am. Jur. 874-877.
Robinson, Admiralty, 872, 873; Knauth, Ocean Bills of Lading (3d ed. 1947), 95, 136, 175.
Hearings before Senate Committee on Commerce on S. 1152, 74th Cong., 1st Sess.
Halcyon Lines v. Haenn Ship Corp., 342 U. S. 282, 286.
We have not overlooked the argument that this bill of lading stipulation should be upheld because of this Court’s holding and opinion in The Jason, 225 U. S. 32. The Jason case upheld a stipulation that both shipowner and cargo owner should contribute in general average on account of sacrifices and expenses necessarily incurred by the master of the ship in order to preserve the cargo as a whole. Moreover, this general average clause “was sustained because it admitted the shipowner to share in general average only in circumstances where by the Harter Act he was relieved from responsibility.” Aktslsk. Cuzco v. The Sucarseco, 294 U. S. 394, 403. Here the shipowner attempted to relieve itself from responsibility for negligence of its employees in connection with damages inflicted on another ship — “circumstances where by the Harter Act he was [not] relieved from responsibility.” | What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations | What is the ideological direction of the decision reviewed by the Supreme Court? | [
"Conservative",
"Liberal",
"Unspecifiable"
] | [
1
] | sc_lcdispositiondirection |
COMMUNIST PARTY OF THE UNITED STATES v. SUBVERSIVE ACTIVITIES CONTROL BOARD.
No. 12.
Argued October 11-12, 1960.—
Decided June 5, 1961.
John J. Abt and Joseph Foret argued the cause and filed a brief for petitioner.
Solicitor General Rankin argued the cause for respondent. With him on the brief were Assistant Attorney General Yeagley, Bruce J. Terris, Kevin T. Maroney, George B. Searls, Lee B. Anderson and Frank R. Hunter, Jr.
Briefs of amici curiae, urging reversal, were filed by Nanette Dembitz for the American Civil Liberties Union; Thomas I. Emerson for the National Lawyers Guild; and Royal W. France for Rev. Edwin E. Aiken et al.
Mr. Justice Frankfurter
delivered the opinion of the Court.
This is a proceeding pursuant to §14 (a) of the Subversive Activities Control Act of 1950' to review an order of the Subversive Activities Control Board requiring the Communist Party of the United States to register as a Communist-action organization under § 7 of the Act. The United States Court of Appeals for the District of Columbia has affirmed the Board's registration order. Because important questions of construction and constitutionality of the statute were raised by the Party’s petition for certiorari, we brought the case here. 361 U. S. 951.
The Subversive Activities Control Act is Title I of the Internal Security Act of 1959, 64 Stat. 987, 50 U. S. C. § 781 et seg. It has been amended, principally by the Communist Control Act of 1954, 68 Stat. 775, and certain of its provisions have been carried forward in sections of the Immigration and Nationality Act adopted in 1952, 66 Stat. 163, 8 U. S. C. §§ 1182, 1251, 1424, 1451. A brief outline of its structure, in pertinent part, will frame the issues for decision.
Section 2 of the Act recites legislative findings based upon evidence adduced before various congressional committees. The first of these is:
“There exists a world Communist movement which, in its origins, its development, and its present practice, is a world-wide revolutionary movement whose purpose it is, by treachery, deceit, infiltration into other groups (governmental and otherwise), espionage, sabotage, terrorism, and any other means deemed necessary, to establish a Communist totalitarian dictatorship in the countries throughout the world through the medium of a world-wide Communist organization.”
The characteristics of a “totalitarian dictatorship,” as set forth in subsections (2) and (3) are the existence of a single, dictatorial political party substantially identified with the government of the country in which it exists, the suppression of all opposition to the party in power, the subordination of the rights of the individual to the state, and the denial of fundamental rights and liberties characteristic of a representative form of government. Subsection (4) finds that the direction and control of the “world Communist movement” is vested .in and exercised by the Communist dictatorship of a foreign country; and subsection (5), that the Communist dictatorship of this foreign country, in furthering the purposes of the world Communist movement, establishes and utilizes in various countries action organizations which are not free and independent organizations, but are sections of a world-wide Communist organization and are controlled, directed, and subject to the discipline of the Communist dictatorship of the same foreign country. Subsection (6) sets forth that
“The Communist action organizations so established and utilized in various countries, acting under such control, direction, and discipline, endeavor to carry out the objectives of the world Communist movement by bringing about the overthrow óf existing governments by any available means, including force if necessary, and setting up Communist totalitarian dictatorships which will be subservient to the most powerful existing Communist totalitarian dictatorship. Although such organizations usually designate themselves as political parties, they are in fact constituent elements of the world-wide Communist movement and promote the objectives of such movement by conspiratorial and coercive tactics, instead of through the democratic processes of a free elective system or through the freedom-preserving means employed by a political party which operates as an agency by which people govern themselves.”
In subsection (7) it is found that the Communist organizations thus described are organized on a secret conspiratorial basis and operate to a substantial extent through “Communist-front” organizations, in most instances created or used so as to conceal their true character and purpose, with the result that the “fronts” are able to obtain support from persons who would not extend their support if they knew the nature of the organizations with which they dealt. Congress makes other findings: that the most powerful existing Communist dictatorship has caused the establishment in numerous foreign countries of Communist totalitarian dictatorships, and threatens to establish such dictatorships in still other countries (10); that Communist agents have devised ruthless espionage and sabotage tactics successfully carried out in evasion of existing law (11); that the Communist network in the United States is inspired and controlled in large part by foreign agents who are sent in under various guises (12); that international travel is prerequisite for the carrying on of activities in furtherance of the Communist movement’s purposes (8); that Communists have infiltrated the United States by procuring naturalization for disloyal aliens (14); that under our present immigration laws, many deportable aliens of the subversive, criminal or immoral classes are free to roam the country without supervision or control (13). Subsection (9) finds that in the United States individuals who knowingly participate in the world Communist movement in effect transfer their allegiance to the foreign country in which is vested the direction and control of the world Communist movement. Finally, in § 2 (15), Congress concludes that
“The Communist movement in the United States is an organization numbering thousands of adherents, rigidly and ruthlessly disciplined. Awaiting and seeking to advance a moment when the United States may be so far extended by foreign engagements, so far divided in counsel, or so far in industrial or financial straits, that overthrow of the Government of the United States by force and violence may seem possible of achievement, it seeks converts far and wide by an extensive system of schooling and indoctrination. Such preparations by Communist organizations in other countries have aided in supplanting existing governments. The Communist organization in the United States, pursuing its stated objectives, the recent successes of Communist methods in other countries, and the nature and control of the world Communist movement itself, present a clear and present danger to the security of the United States and to the existence of free American institutions, and make it necessary that Congress, in order to provide for the common defense, to preserve the sovereignty of the United States as an independent nation, and to guarantee to each State a republican form of government, enact appropriate legislation recognizing the existence of such world-wide conspiracy and designed to prevent it from accomplishing its purpose in the United States.”
Pursuant to these findings, § 7 (a) of the Act requires the registration with the Attorney General, on a form prescribed by him by regulations, of all Communist-action organizations. A Communist-action organization is defined by § 3 (3) as
“(a) any organization in the United States (other than a diplomatic representative or mission of a foreign government accredited as such by the Department of State) which (i) is substantially directed, dominated, or controlled by the foreign government or foreign organization controlling the world Communist movement referred to in section 2 of this title, and (ii) operates primarily to advance the objectives of such world Communist movement as referred to in section 2 of this title; and
“(b) any section, branch, fraction, or cell of any organization defined in subparagraph (a) of this paragraph which has not complied with the registration requirements of this title.”
Registration must be made within thirty days after the enactment of the Act, or, in the case of an organization which becomes a Communist-action organization after enactment, within thirty days of the date upon which it becomes such an organization; in the case of an organization which is ordered to register by the Subversive Activities Control Board, registration must take place within thirty days of the date upon which the Board’s order becomes final. § 7 (c). Registration is to be accompanied by a registration statement, which must contain the name of the organization and the address of its principal office; the names and addresses of its present officers and of individuals who have been its officers within the past twelve months, with a designation of the office held by each and a brief statement of the functions and duties of each; an accounting of all moneys received and expended by the organization during the past twelve months, including the sources from which the moneys were received and the purposes for which they were expended; the name and address of each individual who was a member during the past twelve months; in the case of any officer or member required to be listed and who uses or has used more than one name, each name by which he is or has been known; and a listing of all printing presses and machines and all printing devices which are in the possession, custody, ownership, or control of the organization or its officers, members, affiliates, associates, or groups in which it or its officers or members have an interest. § 7 (d). Once an organization has registered, it must file an annual report containing the same information as is required in the registration statement. §7(e). A registered Communist-action organization must keep accurate records and accounts of all moneys received and expended, and of the names and addresses of its members and of persons who actively participate in its activities. § 7 (f).
Section 7 (b) requires the registration of Communist-front organizations, defined as those substantially directed, dominated, or controlled by a Communist-action organization and primarily operated for the purpose of giving aid and support to a Communist-action organization, a Communist foreign government, or the world Communist movement. §3(4). The procedures and requirements of registration for Communist fronts are identical with those for Communist-action organizations, except that fronts need not list their non-officer members. In case of the failure of any organization to register, or to file a registration statement or annual report as required by the Act, it becomes the duty of the executive officer, the secretary, and such other officers of the organization as the Attorney General by regulations prescribes, to register for the organization or to file the statement or report. § 7 (h). Any individual who is or becomes a member of a registered Communist-action organization which he knows to be registered as such but to have failed to list his name as a member is required to register himself within sixty days after he obtains such knowledge; and any individual who is or becomes a member of an organization concerning which there is in effect a final order of the Subversive Activities Control Board requiring that it register as a Communist-action organization, but which has not so registered although more than thirty days have elapsed since the order became final, is required to register himself within thirty days of becoming a member or within sixty days after the registration order becomes final, whichever is later. § 8. Criminal penalties are imposed upon organizations, officers and individuals who fail to register or to file statements as required: fine of not more than $10,000 for each offense by an organization; fine of not more than $10,000 or imprisonment for not more than five years or both for each offense by an officer or individual; each day of failure to register constituting a separate offense. Individuals who in a registration statement or annual report willfully make any false statement, or willfully omit any fact required to be stated or which is necessary to make any information given not misleading, are subject to a like penalty. § 15.
The Attorney General is required by § 9 to keep in the Department of Justice separate registers of Communist-action and Communist-front organizations, containing the names and addresses of such organizations, their registration statements and annual reports, and, in the case of Communist-action organizations, the registration statements of individual members. These registers are to be open for public inspection. The Attorney General must submit a yearly report to the President and to Congress including the names and addresses of registered organizations and their listed members. He is required to publish in the Federal Register the fact that any organization has registered as a Communist-action or Communist-front organization, and such publication constitutes notice to all members of the registration of the organization.
Whenever the Attorney General has reason to believe that any organization which has not registered is an organization of a kind required to register, or that any individual who has not registered is required t'o register, he shall petition the Subversive Activities Control Board for an order that the organization or individual register in the manner provided by the Act. §§ 12, 13 (a). Any organization or any individual registered, or any individual listed in any registration statement who denies that he holds office or membership in the registered organization and whom the Attorney General, upon proper request, has failed to strike from the register, may, pursuant to designated procedures, file with the Subversive Activities Control Board a petition for cancellation of registration or other appropriate relief. § 13 (b).
The Board, whose organization and procedure are prescribed, §§ 12, 13 (d), 16, is empowered to hold hearings (which shall be public), to examine witnesses and receive evidence, and to compel the attendance and testimony of witnesses and the production of documents relevant to the matter under inquiry. § 13 (c), (d). If after hearing the Board determines that an organization is a Communist-action or a Communist-front organization or that an individual is a member of a Communist-action organization, it shall make a report in writing and shall issue an order requiring the organization or individual to register or denying its or his petition for relief. § 13 (g), (j). If the Board determines that an organization is not a Communist-action or a Communist-front organization or that an individual is not a member of a Communist-action organization, it shall make a report in writing and issue an order denying the Attorney General’s petition for a registration order, or canceling the registration of the organization or the individual, or striking the name of the individual from a registration statement or annual report, as appropriate. § 13 (h), (i).
The party aggrieved by any such order of the Board may obtain review by filing in the Court of Appeals for the District of Columbia a petition praying that the order be set aside. The findings of the Board as to the facts, if supported by the preponderance of the evidence, shall be conclusive. 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, the court may order such additional evidence to be taken before the Board, and the Board may modify its findings as to the facts, and shall file such modified or new findings, which, if supported by the preponderance of the evidence, shall be conclusive. The court may enter appropriate orders. Its judgment and decree shall be final, except that they may be reviewed in this Court on writ of certiorari. § 14 (a). When an order of the Board requiring the registration of a Communist organization has become final upon the termination of proceedings for judicial review or upon the expiration of the time allowed for institution of such proceedings, the Board shall publish in the Pederal Register the fact that its order has become final, and that publication shall constitute notice to all members of the organization that the order has become final. §§ 13 (k), 14 (b).
Section 13 (e) of the Act provides that
“In determining whether any organization is a ‘Communist-action organization’, the Board shall take into consideration—
“(1) the extent to which its policies are formulated and carried out and its activities performed, pursuant to directives or to effectuate the policies of the foreign government or foreign organization in which is vested, or under the domination or control of which is exercised, the direction and control of the world Communist movement referred to in section 2 of this title; and
“(2) the extent to which its views and policies do not deviate from those of such foreign government or foreign organization; and
“(3) the extent to which it receives financial or other aid, directly or indirectly, from or at the direction of such foreign government or foreign organization; and
“(4) the extent to which it sends members or representatives to any foreign country for instruction or training in the principles, policies, strategy, or tactics of such world Communist movement; and
“(5) the extent to which it reports to such foreign government or foreign organization or to its representatives; and
“(6) the extent to which its principal leaders or a substantial number of its members are subject to or recognize the disciplinary power of such foreign government or foreign organization or its representatives; and
“(7) the extent to which, for the purpose of concealing foreign direction, domination, or control, or of expediting or promoting its objectives, (i) it fails to disclose, or resists efforts to obtain information as to, its membership (by keeping membership lists in code, by instructing members to refuse to acknowledge membership, or by any other method); (ii) its members refuse to acknowledge membership therein; (iii) it fails to disclose, or resists efforts to obtain information as to, records other than membership lists; (iv) its meetings are secret; and (v) it otherwise operates on a secret basis; and
“(8) the extent to which its principal leaders or a substantial number of its members consider the allegiance they owe to the United States as subordinate to their obligations to such foreign government or foreign organization.”
Similarly, § 13 (f) enumerates a set of evidentiary considerations to guide the inquiry and judgment of the Board in determining whether a given organization is or is not a Communist-front organization.
When an organization is registered under the Act, or when there is in effect with respect to it a final order of the Board requiring it to register, § 10 (1) prohibits it, or any person acting in behalf of it, from transmitting through the mails or by any means or instrumentality of interstate or foreign commerce any publication which is intended to be, or which it may be reasonably believed is intended to be, circulated or disseminated among two or more persons, unless that publication, and its envelope, wrapper or container, bear the writing: “Disseminated by [the name of the organization], a Communist organization.” Section 10 (2) prohibits the organization, or any person acting in its behalf, from broadcasting or causing to be broadcast any matter over any radio or television station unless the matter is preceded by the statement: “The following program is sponsored by [the name of the organization], a Communist organization.” Under § 11 of the Act, the organization is not entitled to exemption from federal income tax under § 101 of the 1939 Internal Revenue Code, and no deduction for federal income-tax purposes is allowed in the case of a contribution to it. It is unlawful for any officer or employee of the United States, or of any department or agency of the United States, or of any corporation whose stock is owned in a major part by the United States, to communicate to any other person who such officer or employee knows or has reason to believe is an officer or member of a Communist organization, any information classified by the President as affecting the security of the United States, knowing or having reason to know that such information has been classified. § 4 (b). It is unlawful for any officer or member of a Communist organization knowingly to obtain or receive, or attempt to obtain or receive, any classified information from any such government officer or employee. §4(c). When a Communist organization is registered or when there is in effect with respect to it a final registration order of the Subversive Activities Control Board, it is unlawful for any member of the organization, knowing or having notice that the organization is registered or the order final, to hold non-elective office or employment under the United States or to conceal or fail to disclose that he is a member of the organization in seeking, accepting, or holding such office or employment; and it is unlawful for him to conceal or fail to disclose that he is a member of the organization in seeking, accepting or holding employment in any defense facility, or, if the organization is a Communist-action organization, to engage in any employment in any defense facility. It is unlawful for such a member to hold office or employment with any labor organization, as that term is defined in § 2 (5) of the National Labor Relations Act, as amended, 29 U. S. C. § 152, or to represent any employer in any matter or proceeding arising or pending under that Act. § 5 (a) (1). It is unlawful for any officer or employee of the United States or of a defense facility, knowing or having notice that the organization is registered or a registration order concerning it is final, to advise or urge a member of the organization, with knowledge or notice that he is a member, to engage in conduct which constitutes any of the above violations of the Act, or for such an officer or employee to contribute funds or services to the organization. §5 (a)(2). When a Communist organization is registered or when there is in effect with respect to it a final registration order of the Subversive Activities Control Board, it is unlawful for a member of the organization, with knowledge or notice that it is registered or the order final, to apply for a passport, or the renewal of a passport, issued under the authority of the United States, or to use or to attempt to use a United States passport; and, in the case of a Communist-action organization, it is unlawful for any officer or employee of the United States to issue or renew a passport for any individual, knowing or having reason to believe that he is a member of the organization. § 6. Aliens who are members or affiliates of any organization during the time it is registered or required to be registered, unless they establish that they did not have knowledge or reason to believe that it was a Communist organization, are ineligible to receive visas, are excluded from admission to the United States, and, if in the United States, are subject to deportation upon the order of the Attorney General. Immigration and Nationality Act, §§ 212 (a)(28)(E), 241 (a)(6)(E), 66 Stat. 163, 185, 205, 8 U. S. C. §§ 1182 (a) (28) (E), 1251 (a)(6)(E). No person shall be naturalized as a citizen of the United States who is, or, with certain exceptions, has within ten years immediately preceding filing of his naturalization petition been, a member or affiliate of any Communist-action organization during the time it is registered or is required to be registered, or a member or affiliate of any Communist-front organization during the time it is registered or required to be registered unless he establishes that he did not have knowledge or reason to believe that it was a Communist-front organization. Immigration and Nationality Act, §313 (a)(2)(G), (H), (c), 66 Stat. 163, 240, 241, 8 U. S. C. § 1424 (a)(2)(G), (H), (c). If any person naturalized after the effective date of the Act becomes within five years following his naturalization a member or affiliate of any organization, membership in which or affiliation with which at the time of naturalization would have precluded his having been naturalized, it shall be considered prima facie evidence that such person was not attached to the principles of the Constitution and was not well disposed to the good order and happiness of the United States at the time of naturalization, and in the absence of countervailing evidence, this shall suffice to authorize the revocation of naturalization. Immigration and Nationality Act, § 340 (c), 66 Stat. 163, 261, 8 U. S. C. § 1451 (c). Service in the employ of any organization then registered or in connection with which a final registration order is then in effect is not “employment” for purposes of the Social Security Act, as amended, 70 Stat. 807, 839, 42 U. S. C. § 410 (a) (17), and Chapter 21 of the Internal Revenue Code of 1954, as amended, 70 Stat. 807, 839, 26 U. S. C. § 3121 (b)(17), if performed after June 30, 1956.
Section 4 (f) of the Subversive Activities Control Act of 1950 provides that neither the holding of office nor membership in any Communist organization by any person shall constitute per se a violation of penal provisions of the Act or of any other criminal statute, and the fact of registration of any person as an officer or member of such an organization shall not be received in evidence against the person in any prosecution for violations of penal provisions of the Act or any other criminal statute. Section 32 provides:
“If any provision of this title, or the application thereof to any person or circumstances, is held invalid, the remaining provisions of this title, or the application of such provision to other persons or circumstances, shall not be affected thereby.”
I.
This litigation has a long history. On November 22, 1950, the Attorney General petitioned the Subversive Activities Control Board for an order to require that the Communist Party register as a Communist-action organization. The Party thereupon brought suit in the District Court for the District of Columbia, seeking to have the proceedings of the Board enjoined. A statutory three-judge court denied preliminary relief, Communist Party of the United States v. McGrath, 96 F. Supp. 47, but stayed answer and hearings before the Board pending appeal. After this Court denied a petition for extension of the stay, 340 U. S. 950, the Party abandoned the suit. Hearings began on April 23, 1951, and ended on July 1, 1952. Twenty-two witnesses for the Attorney General and three for the Party presented oral testimony; 507 exhibits, many of book length, were received; the stenographic record, exclusive of these exhibits, amounted to more than 14,000 pages. On April 20, 1953, the Board issued its 137-page report concluding that the Party was a Communist-action organization within the meaning of the Subversive Activities Control Act, and its order requiring that the Party register in the manner prescribed by § 7. Pending disposition in the Court of Appeals for the District of Columbia of the Party’s petition for review of the registration order, the Party moved in that court, pursuant to § 14 (a), for leave to adduce additional evidence which it alleged would show that three witnesses for the Attorney General — Crouch, Johnson, and Matusow— had testified perjuriously before the Board. The Court of Appeals denied the motion and affirmed the order of the Board, one judge dissenting. Communist Party of the United States v. Subversive Activities Control Board, 96 U. S. App. D. C. 66, 223 F. 2d 531. Finding that the Party’s allegations of perjury had not been denied by the Attorney General, and concluding that the registration order based on a record impugned by a charge of perjurious testimony on the part of three witnesses whose evidence constituted a not insubstantial portion of the Government’s case could not stand, this Court remanded to the Board “to make certain that [it] bases its findings upon untainted evidence.” 351 U. S. 115, 125.
On remand the Party filed several motions with the Board seeking to reopen the record for the introduction of additional evidence. These were denied. A motion in the Court of Appeals for leave to adduce additional evidence was similarly denied, except that the Board was granted permission to entertain a motion concerning the Party’s offer to show that another of the Attorney General’s witnesses, Mrs. Markward, had committed perjury with regard to a specified aspect of her testimony. The Board granted the Party’s motion; hearings were reopened; Mrs. Markward was cross-examined. Motions by the Party for orders requiring the Government to produce certain documents relevant to the matter of her testimony were denied. On December 18, 1956, the Board issued its 240-page Modified Report. It found that Mrs. Markward was a credible witness, made new findings of fact, and, having expunged the testimony of Crouch, Johnson and Matusow, reaffirmed its conclusion that the Party was a Communist-action organization and recommended that the Court of Appeals affirm its registration order. That court, while affirming the Board’s actions in other regards, held that the Party was entitled to production of several documents relating to Mrs. Mark-ward’s testimony, and remanded. Communist Party of the United States v. Subversive Activities Control Board, 102 U. S. App. D. C. 395, 254 P. 2d 314. The scope of this remand was enlarged by subsequent orders requiring the production of recorded statements made to the F. B. I. by the Attorney General’s witness Budenz, the existence of these recordings having become known to government counsel and to the Board only at this time. These statements related to Budenz’s testimony at the original hearings concerning the “Starobin letter” and the “Childs-Weiner conversation.” Motions pursuant to § 14 (a) seeking the production of other government-held documents — memoranda furnished to the Government by the Attorney General’s witness Gitlow, and recordings made by the F. B. I. of interviews with Budenz — were denied.
On second remand, the documents specified orders of the Court of Appeals were made available to the Party. The hearing was reopened before a member of the Board sitting as an examiner. When the illness of Budenz made impossible his recall for cross-examination in connection with the documents produced, the examiner denied the Party’s motion to strike all of Budenz’s testimony, but did strike so much as related to the Starobin and Childs-Weiner matters. After re-evaluating the credibility of Budenz and Markward, and affirming the action of its examiner in striking only that portion of Budenz’s testimony which concerned the Starobin letter and the Childs-Weiner conversation, the Board re-examined the record as a whole and issued its Modified Report on Second Remand — its findings of fact consisting principally of the findings contained in its first Modified Report, with a few deletions — again concluding that the Communist Party of the United States was a Communist-action organization, and again recommending that its order to register be affirmed. The same panel of the Court of Appeals affirmed the order, at the same time denying the Party’s motion under § 14 (a) for an order requiring production of all statements made by government witnesses and now in the possession of the Government, 107 U. S. App. D. C. 279, 277 F. 2d 78, the dissenting judge again dissenting in part. It is this decision which is now before us for review.
II.
The Communist Party urges, at the outset, that procedural rulings by the Board and the Court of Appeals constitute prejudicial error requiring that this proceeding be remanded to the Board. Before reaching the statutory and constitutional issues which this case presents, we must consider these rulings.
A. The Board’s Refusal to Strike All Testimony of the Witness Budenz. At the original hearing before the Board, Budenz testified during almost two days on direct examination and five days on cross-examination. His testimony fills more than 700 pages. Of these, eight pages of direct and thirty pages of cross-examination relate to the Starobin letter; two pages of direct and ten pages of cross-examination relate to the Childs-Weiner conversation. Motions to require production of reports or statements by Budenz to the F. B. I. on these two subjects were denied at that time by the Board. After this Courtis remand, the motions were repeated and again denied. The Court of Appeals affirmed the denial of the motions on the ground that there did not then appear to be in the possession of the Government any such reports or statements. Subsequent to the court’s remand on other grounds, however, government counsel for the first time discovered in the F. B. I. files mechanical transcriptions of interviews with Budenz concerning the Starobin and Childs-Weiner matters. Counsel reported this discovery to the Court of Appeals, which thereupon enlarged the scope of remand to require the production of all “statements,” as defined in 18 U. S. C. § 3500, made by Budenz to the F. B. I. relating to these matters. The question of the propriety of these various rulings on the Party’s motions for production is not now before us.
After an inspection of the F. B. camera by a member of the Board sitting as an examiner, excerpts relating to the Starobin letter and Childs-Weiner conversation were furnished to the Party. The Party sought to recall Budenz for further cross-examination in light of these statements. Upon receipt of a letter from Budenz’s personal physician stating that, because of a serious heart condition, it would imperil Budenz’s health to appear, the member-examiner caused an independent physical examination of the witness by a heart specialist. The specialist confirmed that cross-examination might seriously affect Budenz’s health or cause his death, and counsel for the Government and the Party agreed that the witness was unavailable for recall. The Party then moved that all of Budenz’s testimony be stricken, on the grounds that its unreliability was shown by his prior statements and that cross-examination which, with the aid of the recordings produced, might permit the Party to discredit Budenz entirely, had been rendered impossible by delay for which the Government was responsible. The examiner denied the motion, but granted an alternative motion to strike so much of Budenz’s testimony as concerned the Starobin letter and the Childs-Weiner conversation. The Board and the Court of Appeals have affirmed these rulings. The Party argues that they are error.
The “Childs-Weiner conversation” concerns an interview in New York at which Budenz, Childs and Weiner discussed the financing of the Midwest Daily Record, a Party newspaper then edited by Budenz. At the hearing before the Board, Budenz testified that Childs had asked Weiner if money couldn’t be got from abroad, and that Weiner replied that normally it might, but that the channels of communication had been broken for the time being, that perhaps they might be re-established so that money could come. Budenz testified that although it was not definitely stated what Weiner meant by “abroad,” Budenz’s familiarity with the term as used by Party members led him to believe that it meant “from Moscow.” In the recordings produced by the Government made during a series of F. B. I. interviews in 1945, Budenz did not mention this incident, although he did advert to the financing problems of the Daily Record and to trips which he made to New York to seek funds for it. Asked whether he had seen any indication of funds coming from Russia, Budenz replied: “The only indication would be is that in addition to Krumbein as Treasurer, Weiner still maintains a certain general supervisory control over finances.” Budenz explained that Weiner was “trusted financially,” and again mentioned that Weiner’s being “a super financial person” was “indicative” of the source of money. He did not relate any specific conduct of Weiner’s which rendered his status “indicative.” In an interview in 1946, as reported in an office memorandum prepared by an F. B. I. agent, Budenz stated that he “could recall only one instance wherein it was indicated that the Soviet Union might be sending money”: this was the Childs-Weiner conversation in New York. Childs had asked Weiner, the memorandum stated, whether he didn’t expect a consignment “from across the sea.”
“. . . Weiner immediately changed the subject matter, indicating that he did not want to discuss the question of transmission of Soviet funds in the presence of Budenz, even though Budenz was a trusted Communist. Budenz concluded from the remark that was made that funds were actually being sent to this country at that time by the Soviet Union for propaganda purposes.”
An F. B. I. document based on an interview with Budenz in 1947 describes the incident as follows:
“. . . Childs suggested that Weiner try to get some money from Moscow to finance the paper. Weiner stated that he had temporarily lost his contacts in Moscow, hence, he could not do anything.”
Finally, in a 1950 interview, as recorded in an office memorandum, Budenz related:
“. . . Childs asked that funds be advanced him by Weiner from the reserve fund [large sums of money held in bank accounts “in reserve for Moscow” or earmarked for Communist organizations] and Weiner advised that he didn’t have any at that time as his communication system had temporarily broken down. Budenz took this to mean that Weiner’s source of supply was from foreign countries, particularly Russia.”
The “Starobin letter” was an alleged communication from Starobin, a Daily Worker correspondent at the United Nations Conference in San Francisco in 1945, which Budenz had opened and of which he had read only a part before it was taken from him and transmitted to certain higher-ups at the Daily Worker. The letter was purportedly received at about the time of the appearance in a French Communist journal of an article by Jacques Duelos, severely criticizing the reorganization of the Communist Party of the United States as the Communist Political Association under Earl Browder in 1944, a reorganization apparently marked by an ideological shift away from the more revolutionary Marxist-Leninist principles, and toward a doctrine of peaceful Soviet-American coexistence. At roughly the same time, Budenz was instructed to reprint the Duelos article in the Daily Worker; shortly thereafter, the Communist Political Association was reconstituted as the Communist Party U. S. A., Browder was ousted, and the Party, in the words of its new national chairman, William Z. Foster, “suddenly reverted to its basic Communist principles.” Budenz testified at the hearing that “In this letter Mr. Starobin stated that D. Z. Manuilsky [a Ukrainian delegate to the conference and an important Communist figure] . . . had expressed indignation at the fact that the American Party had not criticized the American leaders, that is, in the government, more severely, and that the American Party should observe more carefully the guidance and the counsel of the French Communists.” The F. B. I. recordings produced pursuant to the remand order of the Court of Appeals show that in 1945 interviews with the F. B. I., Budenz had spoken of “private communications sent from Starobin to us,” in connection with the ideological shift which marked the end of the Browder “collaborationist” policy. He did not then speak specifically of the Starobin letter as he described it in his testimony. In response to a question by his F. B. I. examiner, Budenz agreed that Starobin himself was not an important enough figure to inaugurate a change of policy. This colloquy followed:
"Q. Do you think then that the instructions relative to this change of policy that Starobin and Fields must have received came from the Russian delegation? Oh, you said maybe Manuilsky, the Ukrainian delegate? A. Sure, sure, I mean — after all, they got the atmosphere there. In fact I mentioned Manuilsky very much, because definitely he is a figure in the Cl.
“Q. He certainly is. A. He used to lay down the law like a general, you know, to his troops. . . .”
In 1946, Budenz reported to the F. B. I. that in a letter from the San Francisco Conference, Starobin advised that “ ‘the French comrades have the line and the support of the Soviet Union — and the French comrades blasted Stettinius and the United States Delegation, and therefore Starobin directed that the Party in this country should immediately blast Stettinius and the United States Delegation.’ Budenz stated that in this letter Starobin inferred [sic] that he and/or his associates at the Conference had conferred with Manuilsky regarding this question, and that the changed policy was predicated upon Manuilsky’s instructions as well as on advice received from French Communists at UNCIO.” Testifying in that same year before the House Committee on Un-Amer-ican Activities, Budenz quoted the Starobin letter as relating that the French Comrades asserted there should be more of an attack upon Stettinius by the American Communists, and that this was likewise the opinion of Comrade Manuilsky.
In ruling on the Party’s motion to strike all of Budenz’s testimony because of his unavailability for cross-examination in light of these earlier statements, the Board took account not only of the similarities and variations of the witness’s several accounts of the Starobin and Childs-Weiner matters, but also of Budenz’s responses under extensive cross-examination on all subjects of his testimony at the initial hearing; of the substantial corroboration of Budenz’s testimony by other evidence in the administrative record; and of the failure of the Party to attempt to rebut that testimony, which was specific and detailed. The Board found that the prior statements produced did not demonstrate, in the context of the “pertinent circumstances of record,” that Budenz’s Starobin and Childs-Weiner testimony was deliberately false, and also that, assuming arguendo such testimony were false, all of Budenz’s evidence would not thereby be discredited. It concluded that “the fair disposition of the question” was to strike Budenz’s testimony only on the two subjects as to which failure of timely production of prior statements had deprived the Party of effective cross-examination. The Court of Appeals, independently reviewing the record, affirmed the Board’s refusal to strike, finding that the discrepancies among the various versions of the Starobin-letter and Childs-Weiner-conversation incidents “are not such as to indicate perjury, much less the habit of perjury essential to be shown to taint all the witness’s testimony.” 107 U. S. App. D. C., at 283, 277 F. 2d, at 82.
The considerations relevant to the Party’s contention that all of Budenz’s testimony must be expunged are, first, the extent to which his prior- statements to the F. B. I., compared with his testimony in the present proceedings, discredit him as a witness and impugn his testimony in its entirety, and, second, the extent to which, on the whole record, it appears that the inability to cross-examine Budenz in light of those prior statements had prejudiced the Party. These are questions which can best be answered by those entrusted with ascertaining the fact; that is, the tribunal that conducts the hearing and passes judgment on the reliability of the witness in light of his total testimony and its relation to the more than 14,000 pages, exclusive of exhibits, of the administrative transcript. Wide discretion would be left to a trial judge and not less must be left to an agency like the Board in a matter of this kind — a matter of adjusting the process of inquiry to the exigencies of a particular situation as they appear to administrators immediately acquainted with the course of proceedings. On this record we cannot say that both the hearing examiner and the Board abused that discretion, or that the Court of Appeals erred in affirming their rulings. In saying this, we do not ignore the argument of the Party that the deprivation of its opportunity to cross-examine Budenz on the basis of his prior statements is the “fault” of government counsel. Suffice that we find no basis for overruling the determinations below that the Government is not to be charged with an attempt unfairly to hamper the Party’s presentation of its case. We would not, therefore, be justified in holding that evidence should have been struck which the Board found otherwise probative, inherently believable, and not discredited despite five days of cross-examination by the Party, and which the Court of Appeals found unexceptionable.
B. The Board’s Refusal to Order Production of the Git-low Memoranda. In 1940 Gitlow, who had been during the years prior to 1929 a high official of the Communist Party, turned over to the F. B. I. a quantity of documents and papers pertaining to the Party. Shortly thereafter he dictated a series of memoranda explaining and interpreting them. At the original hearing in the present proceeding, Gitlow, testifying for the Attorney General, identified a number of these documents, which were then put in evidence, and described their contents and significance. The Party moved the Board for an order requiring that the Attorney General produce the explanatory memoranda. The motion was denied. In its first petition in the Court of Appeals to review the order of the Board, the Party assigned the Board’s refusal to order the production of documentary evidence as error; but it did not mention the Gitlow memoranda in the argument portion of its brief, nor, apparently, in oral argument. The point was not among the questions presented in the petition for certiorari in this Court in 1955 and was not relied on in the briefs here. After our remand, the Party again moved the Board to order production of the memoranda. The Board again refused. The Court of Appeals, in its second opinion reviewing the Board proceedings, held that the ruling by the Board declining to order production could not be corrected on petition to review the Board’s order. Relying on Consolidated Edison Co. v. Labor Board, 305 U. S. 197, the court said that the Party’s exclusive remedy was to move the Court of Appeals, under § 14 (a) of the Act, for leave to adduce additional evidence, and that failure to make such a motion at the time when the Board refused to order the documents produced barred the Party from later challenging the action of the Board. After the second remand, the Party did make a motion pursuant to § 14 (a) seeking the Gitlow memoranda. This the court refused, holding that the Party’s procedural error could not be cured nunc -pro tunc.
We may assume arguendo, without deciding the point, that the Board erred in refusing to order the Gitlow memoranda produced at the original hearing. But we do not reach the question of the applicability of the Consolidated Edison case to this situation. It is too late now for the Party to raise this error of the Board. That error could have been raised here five years ago. Had it been raised then, we could have ordered it cured at the time of the first remand to the Board. The demands not only of orderly procedure but of due procedure as the means of achieving justice according to law require that when a case is brought here for review of administrative action, all the rulings of the agency upon which the party seeks reversal, and which are then available to him, be presented. Otherwise we would be promoting the “sporting theory” of justice, at the potential cost of substantial expenditures of agency time. To allow counsel to withhold in this Court and save for a later stage procedural error would tend to foist upon the Court constitutional decisions which could have been avoided had those errors been invoked earlier. We hold that the Communist Party abandoned its claim of error in the Board’s denial of its motion to require the Gitlow documents produced, by failing to raise that question in its previous petition for certiorari here. Of course, it could not resurrect that claim by repeating the same motion before the Board after our remand.
C. Denial by the Court of Appeals of the Party’s Motions for Orders Requiring Production of All Statements by the Witness Budenz, and of All Statements by All Witnesses for the Attorney General. On February 14, 1958, after this case had been remanded to the Board for the second time, and more than five and a half years after the termination of the initial hearings, the Party moved the Court of Appeals, under § 14 (a), for an order requiring production of all recordings, notes and memoranda made by the F. B. I. of interviews with Budenz, insofar as these related to his testimony at the hearings. On April 14, 1959, after the Board had considered the record for the third time and written its third opinion, the Party filed a second motion in the Court of Appeals, seeking production of all statements by all government witnesses relating to their testimony. A motion of similar scope had been made before the Board on second remand in December 1958. The court denied these motions as untimely. We cannot say that in doing so it abused its discretion.
With reference to the Budenz records, the Party seeks to excuse its delay by pointing out that not until early in February 1958 did it discover that the F. B. I. had made mechanical transcriptions of interviews with this witness. The Party was misled, it argues, at the time of the original Board hearings, into believing that no prior statements by Budenz were in the possession of the Government. The short answer to this may be found in the transcript of Budenz’s replies to questions of counsel for the Party during his testimony on cross-examination. Although the Party might not have known of the disc recordings made of the Budenz interviews, it knew that notes or records had been taken of those interviews by the P. B. I. Indeed the Party sought production of such reports, insofar as they related to the Starobin letter and the Childs-Weiner conversation, by motions made to the Board at the time Budenz testified. Had similar motions been made with regard to other aspects of Budenz’s testimony, or with regard to other witnesses, and had the Board denied those motions, this issue could have been brought here on review five years ago. If production had been ordered, presumably all statements by Budenz would have been found. Statements by others, if they existed, would have been found. We cannot say that the Court of Appeals was clearly wrong in holding that at the time these motions were made it was too late to remand to the Board and require production of documents in order to reopen cross-examination of witnesses who testified in 1951 and 1952.
III.
We come to the Communist Party’s contentions that the Board and the Court of Appeals erred in their construction of the Act and in their application of it, on the facts of this record, to the Party. It is argued that both elements of the statutory definition of a Communist-action organization in § 3 (3) of the Act — what have come in the course of this litigation to be known as the “control” and “objectives” components — were misinterpreted below; that the Board misconceived the nature of each of the eight evidentiary considerations directed to its attention by § 13 (e) as pertinent to its determination whether an organization is or is not a Communist-action organization ; that the Board misapplied the phrase “world Communist movement” in § 2; and that the Board erred in taking account, as relevant to that determination, of conduct of the Party prior to the date of the Act. The Court of Appeals is said to have erred in failing to remand to the Board after striking one of its subsidiary findings as unsupported by the evidence. Finally, it is contended, the record as a whole does not support by the preponderance of the evidence, as required by § 14 (a), the conclusion that the Party is a Communist-action organization within the correct meaning of that phrase.
A. The “Control Component.” Under § 3 (3) of the Act an organization cannot be found to be a Communist-action organization unless it is “substantially directed, dominated, or controlled by the foreign government or foreign organization controlling the world Communist movement . . . .” The Party asserts that this requirement is not satisfied by any lesser demonstration than that the foreign government or foreign organization controlling the world Communist movement exercises over the organization an enforceable, coercive power to exact compliance with its demands. The Court of Appeals disagreed, holding that in the circumstances of this record a consistent, undeviating dedication, over an extended period of time, to carrying out the programs of the foreign government or foreign organization, despite significant variations in direction of those programs, was sufficient. The Subversive Activities Control Board has not, in its reports, articulated any other understanding of the standard, and since its final factual determination was made after the Court of Appeals had put this definitive gloss on § 3 (3), we must attribute to it acceptance of the court’s interpretation.
We agree that substantial direction, domination, or control of one entity by another may exist without the latter’s having power, in the event of non-compliance, effectively to enforce obedience to its will. The issue which the Communist Party tenders as one of construction of statutory language is more sharply drawn in the abstract sphere of words than in the realm of fact. It is true that the Court of Appeals compendiously expressed its understanding of the Party’s conduct over a course of thirty years, as revealed by this record and as found by the Board, in terms of “voluntary compliance.” Opposing this phrase, the Party insists that the statute demands “enforceable control.” But neither of these verbalisms was used by Congress, and neither has an invariant content. Nor has the language of the statute: “substantially directed, dominated, or controlled.” Each of these notions carries meaning only as a situation in human relationships which arises and takes shape in different modes and patterns in the context of different circumstances.
The statute, as amended, uses the same phrase three times. A Communist-action organization must be one substantially directed, dominated, or controlled by a foreign government or foreign organization of a designated kind. A Communist-front organization must be one substantially directed, dominated, or controlled by a Communist-action organization. § 3 (4). A Communist-infiltrated organization must be one substantially directed, dominated, or controlled by an individual or individuals engaged in giving aid or support to a Communist-action organization, Communist foreign government, or the world Communist movement. § 3 (4) (A). Variations of this language also occur. Subsection 13 (e)(1) refers to “the foreign government or foreign organization in which is vested, or under the domination or control of which is exercised, the direction and control of the world Communist movement . . . .” Section 2 (5) relates that the action organizations established by the Communist dictatorship in which is vested the direction and control of the world Communist movement are sections of a world-wide Communist organization and are “controlled, directed, and subject to the discipline of [that] . . . Communist dictatorship . . . .” Manifestly, the various relationships among nations, organizations, movements and individuals of which the Act speaks will take a multiplicity of forms. A foreign government “dominates” or “controls” the “direction” of the world Communist movement through very different means and in very different ways than one organization “dominates” or “controls” another, or than an individual “dominates” or “controls” an organization. These differences do not deprive the concepts “domination” and “control” of ample meaning. Throughout various manifestations these concepts denote a relationship in which one entity so much holds ascendancy over another that it is predictably certain that the latter will comply with the directions expressed by the former solely by virtue of that relationship, and without reference to the nature and content of the directions. This is the sense we find in the opinions expounding the decisions of the Court of Appeals. The reports of the Board evidence a similar understanding.
Nothing in the Committee Reports pertinent to the Internal Security Act of 1950, or in what was said by Congressmen in charge of its passage, affords a gloss on “substantially directed, dominated, or controlled,” as used in § 3 (3). There is nothing to indicate that Congress meant that phrase to have any arcane, technical meaning. Its reach is suggested, however, by comparison with a cognate enactment, the so-called Yoorhis Act of 1940, 54 Stat. 1201, now 18 U. S. C. § 2386, requiring the registration with the Attorney General of, inter alia, certain organizations “subject to foreign control.” Section 1 (e) of that Act, 54 Stat. 1202, provided that
“An organization shall be deemed ‘subject to foreign control’ if (1) it solicits or accepts financial contributions, loans, or support of any kind, directly or indirectly, from, or is affiliated directly or indirectly with, a foreign government or a political subdivision thereof, or an agent, agency, or instrumentality of a foreign government or political subdivision thereof, or a political party in a foreign country, or an international political organization, or (2) its policies, or any of them, are determined by or at the suggestion of, or in collaboration with, a foreign government or political subdivision thereof, or an agent, agency, or instrumentality of a foreign government or a political subdivision thereof, or a political party in a foreign country, or an international political organization.”
The Committee Report on the House bill from which the Subversive Activities Control Act derived indicates that its enactment was occasioned, in part, by the inadequacy of existing legislation. Although the Voorhis Act had been directed “against both Nazis and Communists,” it had “proved largely ineffective against the latter, due in part to the skill and deceit which the Communists have used in concealing their foreign ties.” H. R. Rep. No. 2980, 81st Cong., 2d Sess. 2; see also H. R. Rep. No. 1844, 80th Cong., 2d Sess. 5. It is reasonable to infer that Congress intended the registration provisions of the 1950 Act to be applicable, at the very least, to organizations concerning which a showing of “control” was made which would have brought the organization under the registration provisions of the Voorhis Act. And the 1940 Act, by its explicit definitions, did not require what the Party signifies by “enforceable” control.
The subjection to foreign direction, domination, or control of which § 3 (3) speaks is a disposition unerringly to follow the dictates of a designated foreign country or foreign organization, not by the exercise of independent judgment on the intrinsic appeal that those dictates carry, but for the reason that they emanate from that country or organization. No more apt term than domination or control could be used to describe such a relationship. The nature of the circumstances which bind an organization to unwavering compliance may be diverse. They may consist, of course, of the sort of enforceable power over the organization’s members which an employer has over an employee — the power to compel obedience by threat of discharge. But they may also consist of other incidents which assure that the organization will unquestioningly adhere to the line of conduct appointed for it. Some of these incidents are suggested by the evidentiary considerations which Congress has enumerated in § 13 (e) of the Act — foreign financial or other aid whose menaced withdrawal may serve as an instrument of influence, § 13 (e)(3); subjection to, or recognition of, personal disciplinary power of the designated foreign organs by the leaders or a substantial number of the members of an organization, § 13 (e)(6); obligations in the nature of allegiance owed to those foreign organs by an organization’s leaders or a substantial number of its members. §13 (e)(8). Other incidents may involve other forces felt by individuals or groups to be compelling: a recognition of mastery, for example, which makes criticism itself a severe sanction. The existence of direction, domination, or control in each instance is an issue of particular fact. The question whether in the case of a given organization such a compulsion or impulsion arises from the complex of ties which link it to a foreign government or organization that it will, because of those ties alone, adhere in its conduct to decisions made for it abroad, is one which Congress has committed, in the first instance, to an expert trier of fact. Since the determination that an organization is or is not a Communist-action organization is largely a matter of the working out of legislative policy in multiform situations of potentially great variety, the “construction” of the statute which ensues from its application to particular circumstances by the administrative agency charged with its enforcement is to be given weight by a reviewing court. Cf. Labor Board v. Hearst Publications, Inc., 322 U. S. 111. Our decision in Rochester Telephone Corp. v. United States, 307 U. S. 125, is especially apposite here. The case involved the question whether one communications corporation controlled another for purposes of § 2 (b) of the Communications Act of 1934, 48 Stat. 1065, providing that the Federal Communications Commission should not have jurisdiction over any carrier “engaged in interstate or foreign communication solely through physical connection with the facilities of another carrier not directly or indirectly controlling or controlled by . . . such carrier.” Refusing to set aside an order based on the Commission’s finding that the New York Telephone Company controlled the Rochester Telephone Corporation, we said: “Investing the Commission with the duty of ascertaining ‘control’ of one company by another, Congress did not imply artificial tests of control. This is an issue of fact to be determined by the special circumstances of each case. So long as there is warrant in the record for the judgment of the expert body it must stand.” Id., at 145-146.
While under § 14 (a) of the Subversive Activities Control Act, providing that the findings of the Board as to facts shall be conclusive if supported by the preponderance of the evidence, a stricter standard of re-examination is set than that to which administrative findings are ordinarily subject, we cannot in this case say that the Board — and, in affirming its order, the Court of Appeals— have misapplied the Act. Neither its written report' nor the opinion of the court below supports the Party’s interpretation of them. They do not hold, as the Party suggests, that conformity which stems from nothing more than ideological agreement satisfies the requirements of § 3 (3). What they do hold is that “the definition of a Communist-action organization was not intended by the Congress to be restricted to organizations which are subject to enforceable demands of the Soviet Union. . . . An organization or a person may be substantially under the direction or domination of another person or organization by voluntary compliance as well as through compulsion. This is especially true if voluntary compliance is simultaneous in time with the direction and is undeviating over a period of time and under variations of direction. If the Soviet Union directs a line of policy and an organization voluntarily follows the direction, the terms of this statutory definition would be met.” 102 U. S. App. D. C. 395, 400, 254 F. 2d 314, 319.
This must be read in the context of the facts of record in this proceeding. Since the determinative issue of the meaning of “substantially directed, dominated, or controlled,” and the constitutional questions which the construction of this statutory language raises, are to be determined essentially on the basis of the assignment of legal significance to the Board’s findings of fact, those findings must be allowed to speak for themselves. They can neither be summarized nor fairly conveyed in bits and pieces. Their large scope and critical importance necessitates and justifies burdening this opinion with more extensive quotation than is customary in cases where summaries of the record may more meaningfully be made. The Board wrote:
“The present world Communist movement was first manifested organizationally by the formation in March of 1919 in Moscow, Russia, of the Third Communist International. As this event is recorded in the History of the Communist Party of the Soviet Union ... , it was 'on the initiative of the Bolsheviks, headed by Lenin,’ that the first Congress of Communist Parties was called in Moscow, the work of which ‘was guided by Lenin’; and, ‘Thus was founded an international revolutionary proletarian organization of a new type — the Communist International — the Marxist-Leninist International.’
“One year later, July 17-August 7, 1920, the Second Congress of the Communist International adopted and promulgated its Theses and Statutes, setting forth its aims and purposes as later herein detailed, and described itself as ‘a single universal Communist party, of which the parties operating in every country form individual sections.’ . . .
“A 'Statute’ of the Comintern insured that it would serve the interests of Russia by providing:
“ ‘The Communist International fully and unreservedly upholds the gains of the great proletarian revolution in Russia, the first victorious socialist revolution in the world’s history, and calls upon all workers to follow the same road. The Communist International makes it its duty to support with all the power at its disposal every Soviet Republic, wherever it may be formed.’. . .
“The Communist International was in fact a world Communist Party, organized and controlled as to policies and activities by the Soviet Union, consisting of the various Communist Parties of the countries throughout the world, which constituted its sections. With headquarters in Moscow, it embodied an elaborate organizational structure, related to implementing the basic strategy and tactics of Marxism-Leninism. . . . There was no North American Bureau, but the Political Bureau of respondent acted in that capacity, supervising the Communists in Canada, Cuba, Mexico, and others down to the Panama Canal.
“The Soviet Union was the leader of the Communist International, exercising control over its policies and activities. The Communist Party of the Soviet Union had five votes to one each for the other larger Parties in the Executive Committee of the Comintern (ECCI), which respondent in a 1934 resolution acknowledged to be 'the general staff of the world revolutionary movement giving unity and leadership to the Communist Parties of the world.’ . . . The Government of the Soviet Union financed the Comintern. All of the heads of the Comintern who were identified in the record were leading members of the Communist Party of the Soviet Union. . . .
“Respondent joined this international Communist organization shortly after it was constituted and admittedly until 1940 participated therein. . . . [R] espondent recognized that its membership therein subordinated any national interests ....
“Further, that complete and total allegiance and dedication was demanded in affiliation with the Comintern, and was acknowledged and in turn stressed by respondent, is also shown by its 'Program’:
'". . . The Communist International is an organization for waging class warfare for the liberation of the working class; there can be no reservations in endorsement and’ affiliation with it. Loyalty “with reservations” is treachery. Endorsement and defense of Soviets in Russia, with failure to advocate the Soviet form of proletarian dictatorship in the United States is hypocrisy.’. . .
“Fundamental to the world Communist movement were the 21 'Conditions of Admission to the Communist International’ promulgated in its Theses and Statutes in 1920 .... Uncontradicted testimony and documents establish that these ‘Conditions' were endorsed and accepted by respondent and were binding upon it.
“. . . Condition No. 12 required the party to be formed upon the basis of democratic centralism, stressing that only when possessed of an ‘iron discipline’ . . . will it be able to fully and thoroughly carry out its duty as part of the world Communist movement. Condition No. 20, in order to aid control, required that two-thirds of all committee members and members of central institutions consist of comrades who have made open declarations as to their desire to join the Comintern. Condition No. 11 required an inspection of personnel and the removal of unreliable elements from parliamentary party fractions, and Condition No. 13 required a systematic check of personnel to remove petty bourgeois elements which may have infiltrated a party. Condition No. 16 made binding upon the party all resolutions of the Comintern,.and Condition No. 21 made liable to exclusion from the party anyone who rejected the theses and conditions of the Third Communist International.
“As to specific policies and programs, Condition No. 15 required the maintenance of a program in accordance with the resolutions of the Comintern. . . .
“Another aspect of the ‘Conditions’ was to make the allegiance of a section party and its members to the Comintern, and hence to the Soviet Union, paramount to any other. For example, Condition No. 14 obligates every member party of the Comintern ‘to render every possible assistance to the Soviet Republics in their struggle against all counter-revolutionary forces.’... It directs the member parties to use legal and illegal means to obstruct military efforts against the Soviet Union. . . .
“These 21 ‘Conditions’ were never changed by the Communist International and were enforced and implemented by respondent and used to educate its members. Considerable documentary material of record also established that respondent fully complied with and fulfilled the requirements of membership in the Communist International and faithfully followed and carried out its instructions and directives.
“The Communist International was formally dissolved as such in 1943, at which time the United States and the Soviet Union were military allies. One reason given for this formal dissolution by Stalin was that it would remove the foundation for ‘fascist’ charges that the Soviet Union was meddling in the internal affairs of other nations. . . .
“The world Communist movement, under the hegemony of the Soviet Union, continued, notwithstanding the ‘dissolution’ of its organizational form embodied in the Communist International. . . . [T]he world Communist movement, intact in the basic orientation, policies and programs discussed above, continued via the Cominform and by Communist Parties not formally affiliated with it, such as respondent.
“Respondent, although never formally a member of the Cominform, has . . . remained dedicated to ‘proletarian internationalism/ Marxism-Leninism, and the policies and programs of the world Communist movement as continued by the Cominform.
“We have previously set forth that respondent joined the Communist International shortly after it was constituted and admittedly participated therein until 1940. Respondent offered no substantial evidence concerning this period of its activities, contending that this period is irrelevant, primarily because of an announced disaffiliation from the Communist International in 1940. The circumstances of the disaffiliation . . . show that there was no fundamental or significant change in respondent’s relationship to the world Communist movement. . . .
“The oral testimony and official documents of respondent and of the Comintern show that respondent was under the complete control and direction of the Comintern. Gitlow was a top official of respondent and in the late 1920’s a member of the Executive Committee of the Communist International. He stated unequivocally that the Comintern controlled all major policies of respondent. Kornfeder, also a functionary of respondent and who attended the Sixth Congress of the Comintern held in Moscow, corroborated this stating that he knew of no instance during his experience, which lasted until 1934, when respondent deviated from Comintern instructions. Nowell, based on personal experience as a member of respondent and personal contact with the Comintern, as well as what he was instructed while attending the Lenin School in Moscow in 1932, stated that the decisions of the Comintern were binding on respondent. Honig testified to Comintern directives which were carried out by respondent. . . .
“Among the specific instances of record, much of which is uncontroverted documentary material, showing the control exercised over respondent by the Comintern were: a Comintern decision in 1924 which resulted in the amalgamation of various Communist factions in the United States into the single Communist Party; a decision by Joseph Stalin in 1929, adopted by the Comintern, which expelled certain top officials of respondent and designated other individuals as leaders of respondent; advance approval by the Comintern for the holding of Communist Party conventions in the United States; Comintern instructions in 1927 that respondent charge the United States and Great Britain with intervention in Chinese affairs and to attack Chiang Kai-Shek; Comintern decision directing respondent to work for the formation of a farmer-labor party in the United States and a subsequent change directing respondent to go into elections with the Communist Party ticket ; and, advance approval by the Comintern of members of respondent who were sent to training schools in Moscow. . . .
“Respondent makes much of the fact that it 'disaffiliated’ from the Communist International in 1940. There was no dispute that respondent in 1940 announced its disaffiliation for the stated purpose of avoiding registration as a foreign agent under the Voorhis Act of October 17,1940. An issue is the effect of the disaffiliation.
“. . . The Browder report makes clear that the disaffiliation was but an expediency to avoid registration under the Voorhis Act and contains nothing which negatives an intent to continue as before the principle of 'proletarian internationalism.’ Various passages of Browder’s report indicate an intent to end only the ‘formal’ and ‘organizational’ connection with the Communist International but not to alter the preexisting fundamental relationship. Illustrative of this is that the report states the disaffiliation would not even be considered if it were thought that it would cause the Party to ‘waiver’ or ‘vacillate’ in carrying out ‘the internationalism founded by Marx and Engels, and brought to its great, historically decisive victories under the leadership of Lenin and Stalin,’ and to which ‘the life of every Communist is unconditionally consecrated.’. . . Also, the Brow-der report, by characterizing the Voorhis Act as ‘an extreme example of the most vicious and oppressive Exceptional Laws’. . . indicates that the organizational disaffiliation was in accord with a Comintern ‘Condition’ that ‘In every country where, in consequence of martial law or of other exceptional laws, the Communists are unable to carry on their work lawfully, a combination of lawful and unlawful work is absolutely necessary.’. . .
“The 1929 reorganization followed a solution dictated by Stalin, which was adopted by the Comintern, and accepted by respondent. Lovestone, Gitlow, and others were deposed as leaders of respondent and the leadership placed in a group which included William Z. Poster, present national chairman. The reorganization of respondent was due to a factional dispute which was a reflection of a struggle in the Communist Party of the Soviet Union and in the Communist International between forces led by Stalin and those led by Bukharin. The Foster faction in respondent, representing a minority of only about 10 per cent, supported Stalin whereas the Lovestone-Gitlow faction, representing about 90 per cent, sided with Bukharin. Notwithstanding this, respondent complied with the Stalin-dictated solution. The record contains no evidence of subsequent material organizational changes until May of 1944 when respondent's name was changed to the Communist Political Association then changed back in 1945 to the name Communist Party. The change to 'CPA' was in the year following the dissolution of the Comintern and, like the announcements on that dissolution, the change was assertedly to promote a peaceful co-existence of the United States and the Soviet Union. While operating under the name ‘Communist Political Association,' there was a deemphasis on the more militant principles of Marxism-Leninism and the current publications of the Party put forward the so-called ‘Teheran line.' No evidence was presented by respondent to show a break with the basic principles of the international Communist movement. The leadership of respondent remained the same.
“Relevant to the reconstitution of respondent under the name Communist Party, the record shows that in April of 1945 Jacques Duelos, a spokesman for the world Communist movement, issued a statement the substance and effect of which was that it was a mistake to dissolve the Communist Party of the United States. . . .
“After preparation throughout the Party, respondent was reconstituted as the Communist Party of the United States of America. Earl Browder, for departing from the orthodoxy of Marxism-Leninism, was branded a ‘revisionist’ and ‘deviationist’ and deposed as the leader. Foster took over as national chairman. Otherwise those who had been officials and leaders of the CPA and the Party before that, with a few minor exceptions, remained the officers and leaders of the reconstituted Communist Party. Upon taking over as national chairman, Foster pointed out the necessity for reemphasizing the revolutionary line of Marxism-Leninism. In a report to the reconstitution convention, subsequently published in Political Affairs, Foster declared ‘Our Party has suddenly reverted to its basic Communist principles’ and ‘As never before, we must train our Party in the fundamentals of Marxism-Leninism.’. . .
“As previously found, Foster became a leading officer in respondent in 1929 as a result of a Soviet Union directive. He has been national chairman since the 1945 reconstitution. A prior letter of his to respondent’s National Committee in which he opposed Browder’s policies had been suppressed from respondent’s membership but his position set forth in the letter was approved in the Duelos statement while Browder’s policies were condemned. For a number of years prior to respondent’s announced disaffiliation from the Communist International, Foster was an an [sic] official of the International. He has been to the Soviet Union on numerous occasions on Party business. . . .
“In addition to Foster, a number of respondent’s other present leaders have been functionaries of respondent since the time of the Communist International, have been to. the Soviet' Union on Party business, and have been indoctrinated and trained in the Soviet Union on Communist strategy and policies. These leaders have taught in Party schools, written for the Party press, and spoken at Party meetings, on various phases of Marxism-Leninism, including the leading position of the Soviet Union, proletarian internationalism, and the necessity of revolutionary overthrow of imperialist nations, particularly the United'States. . . .
“The continuance in office of Moscow-trained leaders of respondent who were functionaries during the period that respondent was an open member of the open, formal organization of the world Communist movement, and the absence of any substantial evidence showing a repudiation by respondent’s leaders of the program and policy of the world Communist movement, as well as the fact that Marxism-Leninism continues to be basic to respondent, are all probative of the issues herein. . . .
“The reorganization of respondent’s leadership pursuant to Stalin’s solution for the 1929 factional dispute, . . . was supervised by a Soviet Union representative sent to the United States for that purpose. A number of individuals were identified as having in the past been in the United States as representatives from the Soviet Union to supervise the carrying out of various policies, programs, and activities by respondent. Respondent’s acceptance of the authority of these foreign representatives was required by the rule of the Communist International that:
“ 'The E. C. C. I. [executive committee] and its Presidium have the right to send their representatives to the various Sections of the Communist International. Such representatives receive their instructions from the E. C. C. I. or from its Presidium, and are responsible to them for their activities. Representatives of the E. C. C. I. have the right to participate in meetings of the central Party bodies as well as of the local organizations of the Sections to which they are sent .... Representatives of the E. C. C. I. are especially obliged to supervise the carrying out of the decisions of the World Congresses and of the Executive Committee of the Communist International.’ . . .
“Eisler is the only foreign representative shown by the record to have been in the United States subsequent to the announced dissolution of the Communist International. Respondent ceased open affiliation with the Comintern to avoid identification as a foreign representative in the United States and the Comintern as an open organization was dissolved in 1943 for Soviet tactical reasons. The absence of further showing as to foreign representatives does not itself, in the context of the record, indicate any change in respondent’s nature or character.
“Respondent’s policies, programs, and activities were originally formulated and carried out pursuant to directives of the foreign leadership of the world Communist movement. Such policies, programs, and activities of respondent have been consistently applied throughout respondent’s existence in the United States without change or repudiation. Various tactical fluctuations in emphasis have followed those laid down by the world Communist movement. An examination of respondent’s current activities shows respondent is still pursuing policies enunciated by the Soviet Union through the Communist International. . . .
“. . . Respondent’s witnesses were unable to cite a single instance throughout its history where, in taking a position on a question which found the views or policies of the Soviet Union and the United States Government in conflict, the CPUSA had agreed with the announced position of the United States; nor could they show a single instance when the CPUSA had disagreed with the Soviet Union on any policy question where both respondent and the Soviet Union have announced a position.
“The testimony of Dr. Mosely and documents submitted through him embraced a tremendous area of international questions on which respondent and the Soviet Union have taken positions. . . . The uniformity is constant and on a wide variety of questions, and is corroborated by other evidence of record.
“It is a material consideration in viewing the spread of this evidence spanning thirty-odd years that respondent, for the first twenty such years in this area of activity, was required by the ‘Conditions’ for membership in the Communist International to conform to the ‘programme and decisions’ of the Comintern in its ‘propaganda and agitation’. . . ; that during the years since 1943 respondent has without a single exception, as before, continued to adhere to the views and policies of the Soviet Union; and that its witnesses when asked to do so were unable to show conflict in any of these policies. This is strong evidence that the preexisting relationship between respondent and the Soviet Union continued as before, notwithstanding the formal dissolution of the Comintern by the Soviet Union.” (Original emphasis throughout.)
It is on the basis of these detailed findings that the Board and the court below predicated their conclusion that the Communist Party was substantially directed, dominated, or controlled by the Soviet Union. We cannot hold that they erred in the construction of the statute and in finding that the facts shown bring the Party within it.
B. The “Objectives Component.” Section 3 (3), defining a Communist-action organization, requires a finding that the organization “operates primarily to advance the objectives of [the] . . . world Communist movement as referred to in section 2 of this title.” Although asserting that the reference to § 2 is unclear, the Party offered in the Court of Appeals a construction of this requirement which defines the objectives of the world Communist movement as (a) overthrow of existing government by any means necessary, including force and violence, (b) establishment of a Communist totalitarian dictatorship, (c) which will be subservient to the Soviet Union. See §2(1), (2), (3), (6). We need not now determine whether this interpretation, insofar as it implies that an organization must operate to advance all of these objectives in order to come within the Act, is correct. Certainly, the elements which the Party has isolated are, singly or collectively, the major “objectives” described in § 2. The Court of Appeals accepted the Party’s analysis arguendo, and its judgment affirming the order of the Board rests on its conclusion that the Party operates to advance all three of these objectives. This conclusion is supported by the findings of the Board. It adopts the interpretation most favorable to the Party.
Within the framework of these definitions, the Court of Appeals held sufficient to demonstrate the Communist Party’s objective to overthrow existing government the finding of the Board that the Party advocates the overthrow of the Government of the United States by force and violence if necessary. The Party argues that this finding is inadequate to satisfy the conception of overthrow embodied in §2(1) and (6); that under the compulsion of the First Amendment the Act must be read as reaching only organizations whose purpose to overthrow existing government is expressed in illegal action or incitement to illegal action; that advocacy of the use of violence “if necessary” amounts at most to the promulgation of abstract doctrine, not incitement. Section 2(1) recites that the purpose of the world Communist movement is “by treachery, deceit, infiltration . . . , espionage, sabotage, terrorism, and any other means deemed necessary, to establish a Communist totalitarian dictatorship in the countries throughout the world through the medium of a world-wide Communist organization.” Section 2 (6) recites that Communist-action organizations “endeavor to carry out the objectives of the world Communist movement by bringing about the overthrow of existing governments by any available means, including force if necessary . . . .” We think that an organization may be found to operate to advance objectives so defined although it does not incite the present use of force. Nor does the First Amendment compel any other construction. The Subversive Activities Control Act is a regulatory, not a prohibitory statute. It does not make unlawful pursuit of the objectives which § 2 defines. In this context, the Party misapplies Yates v. United States, 354 U. S. 298, and Dennis v. United States, 341 U. S. 494, on which it relies. See Barenblatt v. United States, 360 U. S. 109; Uphaus v. Wyman, 360 U. S. 72; American Communications Assn. v. Douds, 339 U. S. 382.
C. The Evidentiary Considerations of Section IS (e); the Striking by the Court of Appeals of a Subsidiary Finding Under Section 18(e)(7). Section 13(e) prescribes that in determining whether any organization is a Communist-action organization, the Board shall take into consideration the extent of its conduct in eight enumerated dimensions. Accordingly, the Board made basic findings of fact in each, and on them based conclusions. The Party attacks each conclusion as based upon a misinterpretation or misapplication of the statutory-considerations.
As to three of these considerations upon which the Board placed substantial reliance in its determination that the Communist Party is controlled by the Soviet Union and operates primarily to advance the objectives of the world Communist movement — the extent to which its policies are formulated and carried out and its activities performed pursuant to directives or to effectuate policies of the Soviet Union (§ 13 (e)(1)), the extent to which its principal leaders or a substantial number of its members are subject to or recognize the disciplinary power of the Soviet Union (§13 (e)(6)), and the extent to which its principal leaders or a substantial number of its members consider the allegiance they owe to the United States as subordinate to their obligations to the Soviet Union (§ 13 (e)(8))- — the Party contends that the conclusions of the Board are not supported by its findings of fact. We have considered the Board’s report and find the Party’s contention without merit.
As to three other considerations — the extent to which an organization receives financial or other aid from the foreign government or foreign organization controlling the world Communist movement (§13 (e)(3)), the extent to which it sends its members to a foreign country for instruction and training in the principles, tactics, etc., of the world Communist movement (§13 (e) (4)), and the extent to which it reports to the foreign government or foreign organization controlling the world Communist movement (§13 (e)(5)) — the Board found, respectively, that the Communist Party had received financial aid from the Soviet Union and the Comintern, and had sent its members to the Soviet Union -for training, prior to about 1940, but that there was no evidence that these activities continued after that time, and that the Communist Party “upon occasion” reports to the Soviet Union. From a reading of its Modified Report on Second Remand, it does not appear that the Board relied on these three findings to support its ultimate determination; rather it regarded them as inconclusive, except insofar as Soviet financial aid to the Party during the period before it became a going organization could be considered “a tile in the mosaic,” and insofar as foreign-trained Party members themselves served as instructors in Party schools in the United States at later times when there was no evidence of continued foreign training as such. The Party argues that the Board’s findings required it to conclude that evidence pertinent to the considerations of § 13 (e)(3), (4), and (5) tended to negate a finding that the Party was foreign-controlled. We cannot say that the basic findings of the Board compelled that conclusion and precluded its own. The Board, directed by Congress to consider “the extent to which” an organization engages in certain classes of conduct, was not, of course, obligated to make findings in each dimension which would be conclusive of the ultimate issues before it. It was required only to consider each of these dimensions — this it has painstakingly done— and, on the whole record before it, to appraise the probative force of the evidence in each dimension. See Secretary of Agriculture v. Central Roig Ref. Co., 338 U. S. 604; 96 Cong. Rec. 14530-14534; cf. id., at 13764, 15634. The Board has explained in detail the factors which urged it to take the view it has taken of the evidence concerning financial aid, foreign training and reporting. We cannot say that on the basis of all its findings it accorded inadmissible weight to these considerations.
By § 13 (e)(2), the Board is directed to consider, in determining whether a given organization is a Communist-action organization, “the extent to which its views and policies do not deviate from those of [the] . . . foreign government or foreign organization” directing the world Communist movement. In connection with this consideration, Dr. Philip Mosely, Professor of International Relations at Columbia University and Director of the University’s Russian Institute, appeared as an expert witness for the Attorney General. He enumerated some forty-five major international issues during thirty years with respect to which, his testimony indicated, there had been no substantial difference between the announced positions of the Soviet Union and the Communist Party. As to each issue, documents representative of the respective views of the Soviet and the Party were identified by Dr. Mosely and put into the record as exhibits. Both the Board and the Court of Appeals credited Dr. Mosely’s testimony and placed significant reliance on it in concluding that the Communist Party is substantially dominated by the Soviet Union.
The Party urges two contentions relating to this aspect of the case. The first is that the Mosely evidence has no tendency to prove non-deviation, within the meaning of § 13 (e)(2), and no rational relevance to the ultimate issue of Soviet domination of the Party, because Dr. Mosely did not establish that as to each of the international issues concerning which Soviet Union and Party views coincided, the announced Soviet position antedated that of the Party, nor did Dr. Mosely testify that the coincidence of views evidenced parroting of the Soviet position by the Party — indeed, he expressly declined, as a matter of expert judgment, to draw any inference from the coincidence alone with respect to the reasoning processes by which the Party arrived at its views. The Party contends that under § 13 (e) (2) the Board was not authorized to consider evidence merely of sameness of policy, but that sameness would become relevant only after the Attorney General had shown that the Party took its position subsequent to, and not independently of, the announced policy of the Soviet. Second, the Party argues that the Board erred in refusing to let it show, both by cross-examination of Dr. Mosely and by proffered original evidence, that many other, assertedly non-Communist groups and individuals also expressed, contemporaneously with the Soviet Union and the Party, views identical to those in which the two concurred — and, further, that the views were correct.
We do not agree that the Board wás not entitled to consider and evaluate evidence of a consistent identity of policies of an organization and the Soviet Union until the Government had shown the temporal antecedence of the Soviet’s position and negatived the possibility that independent reasoning processes brought about the identity. Here the Board found that the coincidence of policies extended over a vast area of subject-matter, was absolutely invariant during more than thirty years — the entire life of the Party — and was unbroken even in the face of sharp reversals in the Soviet’s views. Section 13 (e)(2), directing the Board to consider the extent of non-deviation, does not purport to establish a litmus test of domination or control, requiring some fixed minimum level of policy-parroting. This requirement is satisfied by consideration of whatever is logically relevant in this regard. Of course, the Government would have established a stronger case had it shown not only identity of views on more than forty issues, but also that the Soviet’s view had always led and the Party’s always followed, and that the similarity could not conceivably be the result of autonomous application of similar basic philosophical principles. But this is no reason to say that the Board could not consider/and form its judgment on, the showing that the Government did make in the present proceeding. Certainly, if the Act contained no § 13 (e), Dr. Mosely’s testimony would be both relevant and significantly probative with respect to the issue of Soviet domination of the Party. To hold that § 13 (e) (2) makes it a condition precedent to Board consideration of this long-continued, totally unwavering identity of policy lines, that the Attorney General also establish such elusive determinants as the dates of birth of the policies and the ratiocinative processes by which they came into being, we would have to find that by § 13 (e) (2) Congress meant to limit, and severely limit, the evidences of Soviet domination of which the Board could take account. The structure of § 13 (e) will not bear that construction.
With respect to the rulings precluding the Party from showing certain facts which would have tended to establish that the views in which it paralleled the Soviet Union were correct views, or were reached independently, or were also held by other persons, we do not think that the Board abused its discretion. The questions which the Party sought to ask Dr. Mosely on cross-examination relating to the correctness of the Party’s views were of two sorts. The first involved matters of value judgment or opinion, capable of interminable debate but incapable of proof, and which, the Board might reasonably have found, would have added little to the record beyond the witness’s personal views. The second sort called for answers of a more objective kind, but related in general to the truth or falsity of particular, detailed assertions of fact selected out of the various documents which the Attorney General had put in evidence as illustrative of the Party’s policies. Since in testifying as to the nature of those policies Dr. Mosely had relied on a wide background of study of Party writings, of which the exhibits put into the record were only exemplary, and since even with reference to those particular exhibits Dr. Mosely’s testimony rested upon an expert analysis of each article read as a whole — its general tenor, deriving from its use of language, its selection of facts reported, its argumentative and exhortative parts, if any — litigation of the truth vel non of individual statements of fact might well have been regarded by the Board as promising to lead into distracting inquiries regarding marginal or remote issues — what in a court would constitute res inter alios acta — incommensurate with the materiality of the evidence produced. Objections to both kinds of questions were, in the Board’s discretion, properly sustained. As for the question which the Party attempted to put to Dr. Mosely concerning approximately half of the international issues which he discussed, whether in each case an informed American observer, in the exercise of independent judgment and sensitive to the best interests of the United States, might not also reasonably have arrived at the view held by the Party and the Soviet, the question was not improperly disallowed as beyond the permissible scope of cross-examination. Dr. Mosely did not purport on direct examination to establish the thought processes or the political processes by which the Soviet and the Party arrived at their positions, but only that the positions were identical. The Party was permitted to show, and two of its witnesses testified, on both direct and cross-examination, that the policies of the Party were adopted in the autonomously reasoned belief, in each case, that a particular policy was sound and in the best interests of the American people. The Board, in its modified reports, took account of and evaluated this testimony. It was not prejudicial that the Party was not allowed to use the Government’s expert witness to negative causal connections which his testimony for the Government did not seek to show.
The Party also argues that it should have been permitted to demonstrate, by cross-examination of Dr. Mosely and by original evidence, that many other persons than the Soviet and the Party held views similar to those on which the two agreed. We cannot hold that the Board erred in excluding these showings. They took two forms. First, with respect to some twenty-five international issues, the question was put to Dr. Mosely whether many non-Communist commentators did not also support the view expounded by the Party. A similar question was asked of a witness for the Party concerning one more issue. Second, with respect to somewhat more than thirty issues, the Party offered to establish, by questioning Dr. Mosely and by documents proffered in evidence, that particular named individuals and groups had concurred in the views of the Party on each individual issue. The most that the Party could have proved, had it been allowed to make the offered showings, was that on the subject of each specific, isolated one among the forty-five international issues enumerated, a considerable number of persons not Soviet-dominated took positions parallel to those of the Soviet and the Party. This is only to be expected in the case of issues of this character. The Party never offered to show, despite wide latitude allowed by the hearing panel in making proffers after similar proffers had been previously disallowed, that a continuing, substantial body of independent groups and persons concurred with the Party on a significant aggregate number of policies among the forty-five. Of the particular sources mentioned in the Party’s separate questions and offers of proof, the greatest number of issues with reference to which a single source recurs — the New York Times, or individuals writing in the Times — is ten or less, and in most cases the agreement shown is with only a portion of the Party’s position. No other source occurs more than roughly half a dozen times; most, two or three times. On the basis of these proffers, the Board’s rulings did not amount to an abuse of the discretion which it must be allowed in the conduct of its hearings to avoid opening the sluices to litigation of the views of a multitude of third parties.
Section 13 (e) (7) requires the Board to consider the extent to which “for the purpose of concealing foreign direction, domination, or control, or of expediting or promoting its objectives,” an organization engages in specified secret practices or otherwise operates on a secret basis. In its original report the Board concluded that the Communist Party engages in secret practices for both these purposes. The Court of Appeals, in its first opinion, held that the finding of secret practices was warranted, but that the Government had not established by the preponderance of the evidence the purpose of the practices. Although no new evidence on the point was taken on remand, the Board again found in its two modified reports that the purpose of the practices was to promote the objectives of the Communist Party. In its third opinion the Court of Appeals again held the finding as to purpose unsupported by the preponderance of the evidence. Nevertheless, holding that the whole record supported the Board’s conclusion that the Communist Party was substantially directed, dominated, or controlled by the Soviet Union, it rejected the Party’s contention that the striking of this one subsidiary finding as to purpose of secret practices required remand of the proceeding to the Board.
We think that the Court of Appeals did not err in refusing to remand the case on that ground. Cf. Labor Board v. Newport News Shipbuilding & Dry Dock Co., 308 U. S. 241. In the summaries of its modified reports, the Board did not rely on, or even refer to, the finding of secret practices. Thus this case is unlike Securities & Exchange Comm’n v. Chenery Corp., 318 U. S. 80, and Labor Board v. Virginia Electric & Power Co., 314 U. S. 469, in which proceedings were remanded to administrative agencies when this Court found unsupportable the grounds upon which the agencies had expressly rested the orders reviewed. Where a Court of Appeals strikes as not sustained by the evidence a subsidiary administrative finding upon which the agency itself does not purport to rely, it would be an unwarranted exercise of reviewing power to remand for further proceedings. Labor Board v. Reed & Prince Mfg. Co., 205 F. 2d 131 (C. A. 1st Cir.). Remand would be called for only if there were a solid reason to believe that without that subsidiary finding the agency would not have arrived at the conclusion at which it did arrive. Reading the modified reports of the Board in the present case — reports written after the Court of Appeals had once held the finding as to the purpose of the Party’s secret practices unsupported — this Court cannot conclude that the Court of Appeals was wrong in regarding the finding stricken as one to which the Board did not attach weight and which did not influence its determination.
D. The Board Findings as to the World Communist Movement; Evidence of Past Practices; the Preponderance of the Evidence. Under the Act an organization may be found to be a Communist-action organization only if the relations specified in the “control” and “objectives” components of § 3 (3) exist between it and the “world Communist movement referred to in section 2 In the present proceeding, the Board, after recognizing that “in section 2 of the Act Congress has found the existence of a world Communist movement and has described its characteristics,” set forth its own description, based on the evidence presented in this record, of contemporary Communist institutions in their international aspect, and particularly of the role of the Soviet Union in those institutions. The Party argues that because this description does not duplicate in all details that of § 2 of the Act, the world Communist movement to which the Board found that the Communist Party bore the required statutory relationship is not the world Communist movement referred to in § 2.
But the attributes of the world Communist movement which are detailed in the legislative findings are not in the nature of a requisite category of characteristics comprising a definition of an entity whose existence vel non must be established, by proving those characteristics, in each administrative proceeding under the Act. Congress has itself found that that movement exists. The legislative description of its nature is not made a subject of litigation for the purpose of ascertaining the status of a particular organization under the Act. The Attorney General need not prove, in the case of each organization against whom a petition for a registration order is filed, that the international institutions to which the organization can be •shown to be related fit the picture in every precise detail set forth in § 2. The only question, once an organization is found to have certain international relations, is one of statutory interpretation — of identifying the statutory referent. Are the institutions involved in those relations the “world Communist movement” to which Congress referred? We are satisfied from the Board’s report that the “world Communist movement” to which its findings related the Communist Party was the same “world Communist movement” meant by Congress.
The Party contends that the Board and the court below erred in relying on evidence of conduct in which it engaged prior to the enactment of the Act to support their conclusion that it is presently a Communist-action organization. This must be rejected. Where the current character of an organization and the nature of its connections with others is at issue, of course past conduct is pertinent. Institutions, like other organisms, are predominantly what their past has made them. History provides the illuminating context within which the implications of present conduct may be known.
Finally, the Party asks that we re-examine the evidence adduced before the Board and review the Board’s findings of fact. The Court of Appeals, made thoroughly familiar with this record by three such re-examinations, has held that the Board’s conclusions, as expressed in its Modified Report on Second Remand, are supported by a preponderance of the evidence. We see no reason why still another court should independently reappraise the record. We have declined to do this in the case of other agencies as to whom reviewing power on the facts has been vested in the Courts of Appeals, and we find no purpose to be served in departing now from this settled policy of appellate review. Labor Board v. Pittsburgh Steamship Co., 340 U. S. 498; Labor Board v. American National Ins. Co., 343 U. S. 395; Federal Trade Comm’n v. Standard Oil Co., 355 U. S. 396.
IV.
The Party’s constitutional attack on the Subversive Activities Control Act of 1950 assails virtually every provision of this extended and intricate regulatory statute. The registration requirement of § 7, by demanding self-subjection to what may be deemed a defamatory characterization and, in addition, disclosure of the identity of all rank-and-file members, is said to abridge the First Amendment rights of free expression and association of the Communist Party and its adherents. See N. A. A. C. P. v. Alabama, 357 U. S. 449; Bates v. Little Rock, 361 U. S. 516; cf. Thomas v. Collins, 323 U. S. 516; Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123. The Party’s officers, it is asserted, who by filing a registration statement in its behalf evidence their status as active members of the Party, are required to incriminate themselves in violation of the Fifth Amendment, as are the individual members who must register themselves under § 8 if the Party fails to register or fails to list them. Cf. Blau v. United States, 340 U. S. 159; Quinn v. United States, 349 U. S. 155. The provision that Communist organizations label their publications is attacked as a prior restraint on, and such sanctions as denial of tax exemption are attacked as a penalty on the exercise of, the Party’s constitutionally protected freedom of speech. Cf. Talley v. California, 362 U. S. 60; Speiser v. Randall, 357 U. S. 513. The various consequences of the Party’s registration for its individual members — prohibition of application for and use of passports, disqualification from government or defense-facility employment, disqualification from naturalization, subjection to denaturalization, proscription of officership or employment in labor organizations — are said to deny those members due process of law by, in effect, attainting them by association, cf. De Jonge v. Oregon, 299 U. S. 353; Wieman v. Updegraff, 344 U. S. 183, and by subjecting them to potential criminal proceedings in which the nature of the organization, membership in which is an element of various offenses, may not be judicially tried. Many of the statute’s provisions are challenged as unconstitutionally vague, and it is said that the establishment of an agency, the Subversive Activities Control Board, whose continued existence depends upon its finding the Communist Party a Communist-action organization within the meaning of the Act, necessarily biases the agency and deprives the Party of a fair hearing. In fact, the Party asserts, the statute as written so particularly designates the Communist Party as the organization at which it is aimed, that it constitutes an abolition of the Party by legislative fiat, in the nature of a bill of attainder. The provisions must be read as a whole, it is said; and when so read, they are seen to envisage not the registration and regulation of the Party, but the imposition of impossible requirements whose only purpose is to lay a foundation for criminal prosecution of the Party and its officers and members, in effect “outlawing” the Party.
Many of these questions are prematurely raised in this litigation. Merely potential impairment of constitutional rights under a statute does not of itself create a justiciable controversy in which the nature and extent of those rights may be litigated. United Public Workers v. Mitchell, 330 U. S. 75; International Longshoremen’s Union v. Boyd, 347 U. S. 222. Even where some of the provisions of a comprehensive legislative enactment are ripe for adjudication, portions of the enactment not immediately involved are not thereby thrown open for a judicial determination of constitutionality. “Passing upon the possible significance of the manifold provisions of a broad statute in advance of efforts to apply the separate provisions is analogous to rendering an advisory opinion upon a statute or a declaratory judgment upon a hypothetical case.” Watson v. Buck, 313 U. S. 387, 402. No rule of practice of this Court is better settled than “never to anticipate a question of constitutional law in advance of the necessity of deciding it.” Liverpool, New York & Philadelphia S. S. Co. v. Commissioners, 113 U. S. 33, 39; Arizona v. California, 283 U. S. 423; Mr. Justice Brandeis, concurring, in Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 341. In part, this principle is based upon the realization that, by the very nature of the judicial process, courts can most wisely determine issues precisely defined by the confining circumstances of particular situations. See Parker v. County of Los Angeles, 338 U. S. 327; Rescue Army v. Municipal Court, 331 U. S. 549. In part it represents a conception of the role of the judiciary in a government premised upon a separation of powers, a role which precludes interference by courts with legislative and executive functions which have not yet proceeded so far as to affect individual interests adversely. See the Note to Hayburn’s Case, 2 Dall. 409; Massachusetts v. Mellon, 262 U. S. 447. These considerations, crucial as they are to this Court’s power and obligation in constitutional cases, require that we delimit at the outset the issues which are properly before us in the present litigation.
This proceeding was brought by the Attorney General under § 13 (a) of the Subversive Activities Control Act, seeking an order of the Board that the Communist Party register as a Communist-action organization pursuant to § 7. The Board has issued such an order, in accordance with § 13 (g)(1), which is here reviewed, under § 14 (a). The effect of that order is to require the Party to register and to file a registration statement within thirty days after the order becomes final, § 7 (c) (3), upon pain of fine up to $10,000 for each day of failure to register. When the order becomes final, other consequences also ensue, for the Party, for its members and for other persons. Certain acts of the Party — distributing its publications through the mails or through the instrumentalities of interstate or foreign commerce, or causing matter to be broadcast by radio or television, without the required identification — are prohibited, § 10, and tax exemption is denied it, § 11. Specified acts of its members — e. g., applying for or using a United States passport, holding government or defense-facility employment, holding labor union office or employment — are forbidden, §§ 5, 6, and those members are definitively subject to certain disqualifications — if aliens, they may not enter the United States, may be deported, may not be naturalized, may in some circumstances be denaturalized, with qualifications. 8 U. S. C. §§ 1182, 1251, 1424, 1451. Employment by the Party is not “employment” for purposes of the Social Security Act, as amended, 42 U. S. C. § 410; contributions to the Party are not tax deductible, Subversive Activities Control Act of 1950, § 11. Acts by third parties with regard to the Party or its members — -the contributing of funds or services to the Party by government or defense-facility personnel, issuance of passports to Party members — are, under specified circumstances, prohibited, §§ 5, 6. All of these consequences depend upon action taken subsequent to the time when the registration order becomes final. Some depend upon action which is, at best, highly contingent. The question is which, if any, of these consequences are now before us for constitutional adjudication, as necessarily involved in the determination of the constitutionality of the Board’s registration order.
A closely similar issue was presented to this Court in Electric Bond & Share Co. v. Securities & Exchange Comm’n, 303 U. S. 419. That was a statutory suit brought by the Securities and Exchange Commission to enforce against certain utility holding companies the provisions of §§ 4 (a) and 5 of the Public Utility Holding Company Act of 1935, 49 Stat. 803. The Act, like the Subversive Activities Control Act, was a statute of many intricate and interlocking sections, with a severability clause. Its fifth section provided that holding companies, as defined, might register with the Commission and file a registration statement containing specified information: unless such a company registered within the time fixed, § 4 (a) subjected it to what the Court referred to as the “penalty for failure to register”: criminal liability for engaging in business in interstate commerce; or for selling, transporting, owning or operating utility assets for the transportation of gas or electricity in interstate commerce; or for using the mails or instrumentalities of interstate commerce to distribute or acquire utility securities, or to negotiate, make, or take any step in performing, service,' sales or construction contracts for public utility or holding companies; or for owning, controlling or holding voting stock in any subsidiary engaging in any of these activities. Once a holding company registered, prescribed consequences ensued, some automatic, some requiring the initiation of further proceedings by the Commission. It was unlawful for any registered holding company or any subsidiary company of a registered holding company to sell or offer for sale any security of the holding company from house to house, or to cause any officer or employee of a subsidiary company to sell such a security; it was unlawful for any registered holding company to borrow or to receive any extension of credit from any public utility company in the same holding-company system; it was unlawful for any registered holding company or any subsidiary of such a holding company to make any contribution in connection with the candidacy, nomination, election or appointment of any person for or to any office or position in federal, state or municipal government or to make any contribution to any political party; all contracts made in violation of any provision of the Act were void. Other transactions of registered companies were prohibited unless approved by the Commission, and under the "simplification” provisions of § 11, the Commission was required to take steps to break up the holding-company systems of registered holding companies.
The Commission sued for, and the District Court granted, an injunction restraining companies of the Electric Bond and Share system from operating in violation of § 4 (a) until they had either registered under § 5 or ceased to be holding companies. A cross bill by the companies seeking a declaratory judgment that the Act was unconstitutional in its entirety was dismissed. When the case came here, the companies argued that the scheme of the Act was a single, integrated whole; that the registration sections, which were the mechanism by which holding companies were subjected to the statute’s various regulatory provisions, could not be separately considered; and that the unconstitutionality of the regulatory provisions invalidated the registration requirement. The Court affirmed the decree, but on the basis of a deliberate abstention from consideration of any but the registration section, §5, as enforced by the sanctions of §4 (a). Noting that if the statute’s severability clause were given effect, the registration obligation could be validly enforced even though any or all of the “control” provisions applicable to registered companies were unconstitutional, and finding in the legislative history nothing to indicate that the various regulatory sections “were intended to constitute a unitary system, no part of which can fail without destroying the rest,” 303 U. S., at 438-439, the Court declined to decide the broad constitutional questions pressed upon it. Likewise, the District Court’s dismissal of the cross bill was sustained:
“. . . By the cross bill, defendants seek a judgment that each and every provision of the Act is unconstitutional. It presents a variety of hypothetical controversies which may never become real. We are invited to enter into a speculative inquiry for the purpose of condemning statutory provisions the effect of which in concrete situations, not yet developed, cannot now be definitely perceived. We must decline that invitation,” Id., at 443.
Not until eight years later were some of these other related, important questions, at last properly presented, decided.
The decision in Electric Bond & Share controls the present case. This Act, like the one involved there, has a section directing that if any of its provisions, or any of its applications, is held invalid, the remaining provisions and other possible applications shall not be affected. The authoritative legislative history clearly demonstrates that a major purpose of the enactment was to regulate Communist-action organizations by means of the public disclosure effected by registration, apart from the other regulatory provisions of the Act. Such is, of course, the very purpose of the severability clause. This being so, our consideration of any other provisions than those of § 7, requiring Communist-action organizations to register and file a registration statement, could in no way affect our decision in the present case. Were every portion of the Act purporting to regulate or prohibit the conduct of registered organizations (or organizations ordered to register) and of their members, as such, unconstitutional, we would still have to affirm the judgment below. Expatiation on the validity of those portions would remain mere pronouncements, addressed to future and hypothetical controversies. This is true with regard to those sections of the Act which prescribe consequences legally enforceable against the Communist Party once a final registration order is in effect against it — the “labeling” and tax-exemption denial provisions of §§10 and 11. These are analogous to the proscription of specified credit transactions, or specified security sales, or specified political contributions, by the Public Utility Holding Company Act considered in Electric Bond & Share. Although they become operative as soon as a registration order is made final, their application remains in a very real sense problematical. We cannot now foresee what effect, if any, upon the Party the denial of tax exemption will have. We do not know whether the Party now has, or whether it will have at any time after a Board order goes into effect, any taxable income, or, indeed, any income whatever. We do not know that, after such an order is in effect, the Party will wish to utilize the mails or any instrumentality of interstate commerce for the circulation of its publications. We cannot guess the nature of whatever publications it may wish to circulate or their relation to the purposes and functions of the Party. These circumstances may be critical for constitutional determination. It will not do to discount their significance by saying, now, that no difference in circumstances will effect a different constitutional result — that the principles relevant to a determination of the validity of these statutory provisions do not depend upon the variations in circumstances in which they are potentially applicable. For this analysis presupposes that we now understand what are the relevant constitutional principles, whereas the reason of postponing decision until a constitutional issue is more clearly focused by, and receives the impact from, occurrence in particular circumstances is precisely that those circumstances may reveal relevancies that abstract, prospective supposition may not see or adequately assess.
These considerations are equally appropriate in the case of those sections of the Act which proscribe specified conduct by members of an organization concerning which a final registration order is in effect, or which impose obligations upon them, or which subject them to described disabilities under certain circumstances. It is wholly speculative now to foreshadow whether, or under what conditions, a member of the Party may in the future apply for a passport, or seek government or defense-facility or labor-union employment, or, being an alien, become a party to a naturalization or a denaturalization proceeding. None of these things may happen. If they do, appropriate administrative and judicial procedures will be available to test the constitutionality of applications of particular sections of the Act to particular persons in particular situations. Nothing justifies previsioning those issues now.
But the Party argues that the threat, however indefinite, of future application of these provisions to penalize individuals who are or become its members, affiliates or contributors, will effectively deter persons from associating with it or from aiding and supporting it. Thus, the provisions exercise a present effect upon the Party sufficiently prejudicial to justify its challenging them in this proceeding. In support of this contention, the Party cites cases in which we have held that litigants had “standing” to attack a statute or regulation which operated to coerce other persons to withdraw from profitable relations or associations with the litigants. See, e. g., Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123; Pierce v. Society of Sisters, 268 U. S. 510; Buchanan v. Warley, 245 U. S. 60; Truax v. Raich, 239 U. S. 33; cf. N. A. A. C. P. v. Alabama, 357 U. S. 449; Bates v. Little Rock, 361 U. S. 516. But these cases purported only to discuss what issues a litigant might raise, not when he might raise them. That a proper party is before the court is no answer to the objection that he. is there prematurely. In none of the cases cited was the constitutional issue decided on a record which showed only potential deterrence of association with the litigant on the part of an unnamed and uncounted number of persons. In the Refugee Committee case, three organizations sued for injunctive or declaratory relief, challenging their inclusion on the Attorney General’s list as Communist organizations. Each alleged that it had already suffered injury as a result of the listing: that contributors had withdrawn support, that persons had refused to take part in fund-raising activities, that members had resigned. The case came here on the pleadings, and we held such allegations sufficient as against a motion to dismiss. In Pierce v. Society of Sisters, supra, private schools were permitted to attack a state compulsory public-education statute: their complaints had alleged that because of the law, students who otherwise would have continued in attendance at the schools had withdrawn. In Buchanan v. Warley, supra, a contract had been made, performance refused, and the state courts had denied enforcement on the ground of the challenged ordinance; and in Truax v. Raich, supra, in which an alien employee sued to enjoin enforcement of a statute requiring certain classes of employers to retain not less than eighty per cent native-born citizens or qualified electors, Raich’s employer had been arrested for violation of the statute and Raich had been threatened with immediate discharge. In Terrace v. Thompson, 263 U. S. 197, both landowners and a prospective tenant brought suit to enjoin enforcement of a state statute forbidding aliens to hold land and providing that land transferred to aliens should be forfeit to the State. The complainants alleged that they were prepared to enter into a lease and would have done so but for the statute.
The present proceeding differs from all of these. The record here does not show that any present members, affiliates, or contributors of the Party have withdrawn because of the threatened consequences to them of its registration under the Subversive Activities Control Act, or that any prospective members, affiliates, or contributors have been deterred from joining the Party or giving it their support. We cannot know how many, if any, members or prospective members of the Party are also employees or prospective employees of the Government or of defense facilities or labor unions, or how many, if any, contributors to the Party hold government or defense-facility employment. It is thus impossible to say now what effect the provisions of the Act affecting members of a registered organization will have on the Party. Cf. New Jersey v. Sargent, 269 U. S. 328. To pass upon the validity of those provisions would be to make abstract assertions of possible future injury, indefinite in nature and degree, the occasion for constitutional decision. If we did so, we would be straying beyond our judicial bounds. Of course, the Party may now assert those rights of its members, such as that of anonymity, which are allegedly infringed by the very act of its filing a registration statement, and which could not be otherwise asserted than by raising them here. N. A. A. C. P. v. Alabama, supra; Bates v. Little Rock, supra. But the rights of its members, as potentially affected by the Act, to receive and use passports, seek and hold certain employment, be naturalized and preserve their citizenship once naturalized, are not of this category. We limit our consideration to the constitutionality of § 7 as applied in this proceeding.
Y.
The constitutional contentions raised by the Party with respect to the registration requirement of § 7 are (A) that that requirement, in the context of the Act, in effect “outlaws” the Party and is in the nature of a bill of attainder; (B) that compelling organizations to register and to list their members on a showing merely that they are foreign-dominated and operate primarily to advance the objectives of the world Communist movement constitutes a restraint on freedom of expression and association in violation of the First Amendment; (C) that requiring Party officers to file registration statements for the Party subjects them to self-incrimination forbidden by the Fifth Amendment; (D) that the Act violates due process by legislative predetermination of facts essential to bring the Communist Party within the definition of a Communist-action organization, and that the evidentiary elements prescribed for consideration by the Board bear no rational relation to that definition; (E) that in several aspects the Act is unconstitutionally vague; and (F) that the Subversive Activities Control Board is so necessarily biased against the Communist Party as to deprive it of a fair hearing.
A. “Outlawry” and Attainder. Our determination that in the present proceeding all questions are premature which regard only the constitutionality of the various particular consequences of a registration order to a registered organization and its members, does not foreclose the Party from arguing — and it does argue — that in light of the cumulative effect of those consequences the registration provisions of § 7 are not what they seem, but represent a legislative attempt, by devious means, to "outlaw” the Party. The registration requirement, the Party contends, was designed not with the purpose of having Communist-action organizations register, but with a purpose to make it impossible to register, because of the onerous consequences of registration, and thus to establish a pretext for criminal prosecution of the organization and' its members. The Act is said to be aimed particularly at the Communist Party as an identifiable entity, intending to punish it, and in this aspect to constitute a bill of attainder prohibited by Art. I, § 9, cl. 3 of the Constitution.
Of course, “only the clearest proof could suffice to establish the unconstitutionality of a statute on such a ground.” Flemming v. Nestor, 363 U. S. 603, 617. No such proof is offered here. The Act on its face gives no indication that the registration provisions were not intended to be complied with. None of the consequences which attach to registration, whatever may be their validity when weighed separately in the constitutional balance, is so devoid of rational relation to the purposes of the Act as expressed in its second section that it appears a mere pressuring device meant to catch an organization between two fires. Section 2 recites that the world Communist movement, whose purpose is to employ deceit, secrecy, infiltration, and sabotage as means to establish a Communist totalitarian dictatorship, establishes and utilizes action organizations. The Act requires such organizations to register and to label their communications, and prohibits their members from government, defense-facility and certain labor-organization employment. Section 2 sets forth that Communist-action organizations are sections of a world-wide Communist movement and that international travel of its members and agents facilitates the purposes of the movement. The Act restricts the ingress and access to United States citizenship of alien members of Communist-action organizations and deprives all members of the use of United States passports. Section 2 finds that Communist-action organizations purpose to overthrow the Government of the United States by any available, necessary means. The Act forbids government and defense-facility employees to support such organizations, and withdraws from the organizations and their contributors certain tax exemptions. None of this is so lacking in consonance as to suggest a clandestine purpose behind the registration provisions. Nor does the legislative history contain any such suggestion. Rather, the Committee reports on the bills from which the Act derived express an object “to require the Communist movement in the United States to operate in the open, rather than underground,” and “to expose the Communist movement and protect the public against innocent and unwitting collaboration with it.”
It is true, as the Party asserts, that bills had been introduced in Congress that would have applied to the Communist Party by name, and it is no doubt also true that the form which the Subversive Activities Control Act finally took was dictated in part by constitutional scruples against outlawing of the Party by “legislative fiat.” It is probable, too, that the legislators who voted for the Act in its final form expected that the Communist Party, if it continued to engage in the activities which had been reported to Congress as characterizing its past conduct, would be required to register under § 7. From this the Party would have us conclude that the Act is only an instrument serving to abolish the Communist Party by indirection. But such an analysis ignores our duty of respect for the exercise of the legislative power of Congress, and, 'more specifically, ignores the crucial constitutional significance of what Congress did when it rejected the approach of outlawing the Party by name and accepted instead a statutory program regulating not enumerated organizations but designated activities. We would be indulging in a revisory power over enactments as they come from Congress — a power which the Framers of the Constitution withheld from this Court — if we so interpreted what Congress refused to do and what in fact Congress did; that is, if we treated this Act as merely a ruse by Congress to evade constitutional safeguards. Congress deemed it an attempt to achieve its legislative purpose consistently with constitutional safeguards. Whether it has done so — the issue which is now before us — is to be determined by the manner in which the enactment works in its practical application. “So long as Congress acts in pursuance of its constitutional power, the Judiciary lacks authority to intervene on the basis of the motives which spurred the exercise of that power.” Barenblatt v. United States, 360 U. S. 109, 132. Oklahoma ex rel. Phillips v. Atkinson Co., 313 U. S. 508; Sonzinsky v. United States, 300 U. S. 506; McCray v. United States, 195 U. S. 27. The true and sole question before us is whether the effects of the statute as it was passed and as it operates are constitutionally permissible.
The Act is not a bill of attainder. It attaches not to specified organizations but to described activities in which an organization may or may not engage. The singling out of an individual for legislatively prescribed punishment constitutes an attainder whether the individual is called by name or described in terms of conduct which, because it is past conduct, operates only as a designation of particular persons. See Cummings v. Missouri, 4 Wall. 277; Ex parte Garland, 4 Wall. 333. The Subversive Activities Control Act is not of that kind. It requires the registration only of organizations which, after the date of the Act, are found to be under the direction, domination, or control of certain foreign powers and to operate primarily to advance certain objectives. This finding must be made after full administrative hearing, subject to judicial review which opens the record for the reviewing court’s determination whether the administrative findings as to fact are supported by the preponderance of the evidence. Present activity constitutes an operative element to which the statute attaches legal consequences, not merely a point of reference for the ascertainment of particular persons ineluctably designated by the legislature.
The fact that activity engaged in prior to the enactment of the legislation may be regarded administratively and judicially as relevant to a determination that an organization is presently foreign-controlled and presently works to advance the objectives of the world Communist movement, does not alter the operative structure of the Act. The incidents which it reaches are nonetheless present incidents. The past is pertinent only as probative of these. In this proceeding the Board has found, and the Court of Appeals has sustained its conclusion, that the Communist Party, by virtue of the activities in which it now engages, comes within the terms of the Act. If the Party should at any time choose to abandon these activities, after it is once registered pursuant to § 7, the Act provides adequate means of relief. As often as once a year it may apply to the Attorney General for cancellation of registration, and, in the event of his refusal to remove it from the register and to relieve it from the duty of filing annual statements, it may petition the Board for a redetermination of its amenability to the registration requirements of the Act, pursuant to a hearing which, again, is subject to judicial review. §§13 (b), (i), (j), 14 (a). Far from attaching to the past and ineradicable actions of an organization, the application of the registration section is made to turn upon continuingly contemporaneous fact; its obligations arise only because, and endure only so long as, an organization presently conducts operations of a described character.
Nor is the statute made an act of “outlawry” or of attainder by the fact that the conduct which it regulates is described with such particularity that, in probability, few organizations will come within the statutory terms. Legislatures may act to curb behavior which they regard as harmful to the public welfare, whether that conduct is found to be engaged in by many persons or by one. So long as the incidence of legislation is such that the persons who engage in the regulated conduct, be they many or few, can escape regulation merely by altering the course of their own present activities, there can be no complaint of an attainder. It would be ingenuous to refuse to recognize that the Subversive Activities Control Act of 1950 was designed to reach the Communist Party’s operations as then reported to Congress — operations in which, the Board has found, the Party persists. But to base a determination of constitutionality on this design would be to confuse the occasion of legislation with its operative effect and consequently to mistake decisive constitutional determinants. No doubt, the activity whose regulation the Act seeks to achieve is activity historically associated with the Communist Party. From its legislative study of the Communist Party, Congress concluded that that kind of activity was potentially dangerous to the national interest and that it must be subjected to control. But whatever the source from which the legislative experience and instruction derived, the Act applies to a class of activity only, not to the Communist Party as such. Nothing in this offends the constitutional prohibition of attainder.
B. The Freedoms of Expression and Association Protected by the First Amendment. The Communist Party would have us hold that the First Amendment prohibits Congress from requiring the registration and filing of information, including membership lists, by organizations substantially dominated or controlled by the foreign powers controlling the world Communist movement and which operate primarily to advance the objectives of that movement: the overthrow of existing government by any means necessary and the establishment in its place of a Communist totalitarian dictatorship (§§ 3 (3), 2 (1) and (6)). We cannot find such a prohibition in the First Amendment. So to find would make a travesty of that Amendment and the great ends for the well-being of our democracy that it serves.
No doubt, a governmental regulation which requires registration as a condition upon the exercise of speech may in some circumstances affront the constitutional guarantee of free expression. Thomas v. Collins, 323 U. S. 516. In that case, the Court held that a State could not constitutionally punish for contempt a public speaker who had addressed a labor-organization meeting in violation of a restraining order prohibiting him from soliciting memberships in a labor union without having first registered as a paid labor organizer and secured an organizer’s card. The decision was a narrow one, striking down the registration requirement only as applied to the particular circumstances of the case, id., at 541-542— that is, to an individual who, as the Court several times insisted, had come into the State “for one purpose and one only — to make the speech in question.” Id., at 533; see also id., at 521, 526. Since this speech was the sole incident of Thomas' conduct upon which the State relied in asserting that he was an “organizer” and thus required to register as such, the Court regarded the statute, in this application, as basing the obligation to register upon speech activity alone. “So long as no more is involved than exercise of the rights of free speech and free assembly,” the Court said, “it is immune to such a restriction.” Id., at 540. The present statute does not, of course, attach the registration requirement to the incident of speech, but to the incidents of foreign domination and of operation to advance the objectives of the world Communist movement — operation which, the Board has found here, includes extensive, long-continuing organizational, as well as “speech,” activity. Thus the Thomas case is applicable here only insofar as it establishes that subjection to registration requirements may be a sufficient restraint upon the exercise of liberties protected by the First Amendment to merit that it be weighed in the constitutional balance.
Similarly, we agree that compulsory disclosure of the names of an organization’s members may in certain instances infringe constitutionally protected rights of association. N. A. A. C. P. v. Alabama, 357 U. S. 449; Bates v. Little Rock, 361 U. S. 516; Shelton v. Tucker, 364 U. S. 479. But to say this much is only to recognize one of the points of reference from which analysis must begin. To state that individual liberties may be affected is to establish the condition for, not to arrive at the conclusion of, constitutional decision. Against the impediments which particular governmental regulation causes to entire freedom of individual action, there must be weighed the value to the public of the ends which the regulation may achieve. Schenck v. United States, 249 U. S. 47; Dennis v. United States, 341 U. S. 494; American Communications Assn. v. Douds, 339 U. S. 382.
In the N. A. A. C. P. and Bates cases, this Court examined the circumstances under which disclosure was demanded, and concluded that “whatever interest the State may have in obtaining names of ordinary members has not been shown to be sufficient to overcome [the] . . . constitutional objections to the production order.” N. A. A. C. P. v. Alabama, 357 U. S., at 465. In the N. A. A. C. P. case, the Attorney General of Alabama had brought an equity suit to enjoin the Association from conducting further activities within, and to oust it from, the State on the grounds of its non-compliance with Alabama’s foreign-corporation registration statute. The Attorney General sought, and the state court ordered, production of lists of .the Association’s rank-and-file members as pertinent to the issues whether the N. A. A. C. P. was conducting intrastate business in violation of the statute, and whether the extent of that business justified its permanent ouster from the State. Noting that the Association had admitted its presence and conduct of activities in Alabama during almost forty years and that it had offered to comply in all respects with the qualification statute, we said that “we are unable to perceive that the disclosure of the names of [N. A. A. C. P.’s] . . . rank-and-file members has a substantial bearing” upon any issue presented to the Alabama courts. Id., at 464. Bates v. Little Rock, supra, involved the conviction of custodians of records of branches of the N. A. A. C. P. for failure to comply with provisions of local regulations which required organizations operating within the municipality to file with a municipal official, inter alia, financial statements showing the names of all contributors to the organizations. These regulations were amendments to ordinances levying license taxes on persons engaging in businesses, occupations or professions within municipal limits. Finding that the occupation taxes were based on the nature of the activity or enterprise conducted, not upon earnings or income, and, moreover, that there had been no showing that the N. A. A. C. P. branches were engaged in activity taxable under the ordinances, or had ever been regarded by tax authorities as subject to taxation under the ordinances, the Court concluded that: “In this record we can find no relevant correlation between the power of the municipalities to impose occupational license taxes and the compulsory disclosure and publication of the membership lists of the local branches of the National Association for the Advancement of Colored People.” 361 U. S., at 525. Thus, these cases hold that where the required making public of an organization’s membership lists bears no rational relation to the interest which is asserted by the State to justify disclosure, and where because of community temper publication might prejudice members whose names were revealed, disclosure cannot constitutionally be compelled.
Shelton v. Tucker, supra, did not involve legislation which, as a means of regulating an appropriately defined class of organizations whose activities menaced the public welfare, required those organizations to reveal their members. It involved an Arkansas statute which, conversely, as an incident of the State’s attempt to control the activities of a class of individuals — the teachers in its public schools and publicly supported institutions of higher learning — required the individuals to disclose the associations to which they belonged. The statute’s purported justification lay in its furtherance of the State’s effective selection of teaching personnel; to subserve this end, it attempted to “ask every one of its teachers to disclose every single organization with which he has been associated over a five-year period.” 364 U. S., at 487-488. The Court, finding that “Many such relationships could have no possible bearing upon the teacher’s occupational competence or fitness,” id., at 488, and hence that “The statute’s comprehensive interference with associational freedom goes far beyond what might be justified in the exercise of the State’s legitimate inquiry into the fitness and competency of its teachers,” id., at 490, struck the legislation down. Again, the ratio decidendi of the decision was the absence of substantial connection between the breadth of disclosure demanded and the purpose which disclosure was asserted to serve.
The present case differs from Thomas v. Collins and from N. A. A. C. P., Bates, and Shelton in the magnitude of the public interests which the registration and disclosure provisions are designed to protect and in the pertinence which registration and disclosure bear to the protection of those interests. Congress itself has expressed in § 2 of the Act both what those interests are and what, in its view, threatens them. On the basis of its detailed investigations Congress has found that there exists a world Communist movement, foreign-controlled, whose purpose it is by whatever means necessary to establish Communist totalitarian dictatorship in the countries throughout the world, and which has already succeeded in supplanting governments in other countries. Congress has found that in furthering these purposes, the foreign government controlling the world Communist movement establishes in various countries action organizations which, dominated from abroad, endeavor to bring about the overthrow of existing governments, by force if need be, and to establish totalitarian dictatorships subservient to that foreign government. And Congress has found that these action organizations employ methods of infiltration and secretive and coercive tactics; that by operating in concealment and through Communist-front organizations they are able to obtain the support of persons who would not extend such support knowing of their true nature; that a Communist network exists in the United States; and that the agents of communism have devised methods of sabotage and espionage carried out in successful evasion of existing law. The purpose of the Subversive Activities Control Act is said to be to prevent the world-wide Communist conspiracy from accomplishing its purpose in this'country.
It is not for the courts to re-examine the validity of these legislative findings and reject them. See Harisiades v. Shaughnessy, 342 U. S. 580, 590. They are the product of extensive investigation by Committees of Congress over more than a decade and a half. Cf. Nebbia v. New York, 291 U. S. 502, 516, 530. We certainly cannot dismiss them as unfounded or irrational imaginings. See Galvan v. Press, 347 U. S. 522, 529; American Communications Assn. v. Douds, 339 U. S. 382, 388-389. And if we accept them, as we must, as a not unentertainable appraisal by Congress of the threat which Communist organizations pose not only to existing government in the United States, but to the United States as a sovereign, independent nation — if we accept as not wholly unsupportable the conclusion that those organizations “are not free and independent organizations, but are sections of a worldwide Communist organization and are controlled, directed, and subject to the discipline of the Communist dictatorship of [a] . . . foreign country,” § 2 (5) — we must recognize that the power of Congress to regulate Communist organizations of this nature is extensive. “Security against foreign danger is one of the primitive objects of civil society,” James Madison wrote in The Federalist (No. 41). “It is an avowed and essential object of the American Union. The powers requisite for attaining it must be effectually confided to the federal councils.” The Federalist (Wright ed. 1961) 295. See also The Federalist (Nos. 2-5), id., at 93 et seq. Means for effective resistance against foreign incursion — whether in the form of organizations which function, in some technical sense, as “agents” of a foreign power, or in the form of organizations which, by complete dedication and obedience to foreign directives, make themselves the instruments of a foreign power — may not be denied to the national legislature. “To preserve its independence, and give security against foreign aggression and encroachment, is the highest duty of every nation, and to attain these ends nearly all other considerations are to be subordinated. It matters not in what form such aggression and encroachment come . . . .” The Chinese Exclusion Case, 130 U. S. 581, 606. See also Perez v. Brownell, 356 U. S. 44; Ex parte Quirin, 317 U. S. 1; Hines v. Davidowitz, 312 U. S. 52; United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 315-322; Mackenzie v. Hare, 239 U. S. 299, 311; Fong Yue Ting v. United States, 149 U. S. 698; Mr. Justice Bradley, concurring in the Legal Tender Cases, 12 Wall. 457, 554, 556.
Of course, congressional power in this sphere, as in all spheres, is limited by the First Amendment. Individual liberties fundamental to American institutions are not to be destroyed under pretext of preserving those institutions, even from the gravest external dangers. But where the problems of accommodating the exigencies of self-preservation and the values of liberty are as complex and intricate as they are in the situation described in the findings of § 2 of the Subversive Activities Control Act— when existing government is menaced by a world-wide integrated movement which employs every combination of possible means, peaceful and violent, domestic and foreign, overt and clandestine, to destroy the government itself — the legislative judgment as to how that threat may best be met consistently with the safeguarding of personal freedom is not to be set aside merely because the judgment of judges would, in the first instance, have chosen other methods. Especially where Congress, in seeking to reconcile competing and urgently demanding values within our social institutions, legislates not to prohibit individuals from organizing for the effectuation of ends found to be menacing to the very existence of those institutions, but only to prescribe the conditions under which such organization is permitted, the legislative determination must be respected. United Public Workers v. Mitchell, 330 U. S. 75; American Communications Assn. v. Douds, supra.
In a number of situations in which secrecy or the concealment of associations has been regarded as a threat to public safety and to the effective, free functioning of our national institutions Congress has met the threat by requiring registration or disclosure. The Federal Corrupt Practices Act, enacted in 1925, 43 Stat. 1070, 2 U. S. C. §§ 241-245, requires all political committees (organizations accepting contributions or making expenditures to influence the election of candidates for designated national offices in two or more States, or branches of national committees) to have a chairman and a treasurer, and makes it the duty of the treasurer' to keep detailed financial accounts and to file with the Clerk of the House of Representatives periodic statements containing, inter alia, the names and addresses of all persons contributing more than 1100 to the committee during any year. Burroughs v. United States, 290 U. S. 534, sustained that statute against the claim that Congress lacked constitutional power to regulate such political organizations; the Court found ample authority in congressional power “to preserve the departments and institutions of the general government from impairment or destruction, whether threatened by force or by corruption.” Id., at 545. The Federal Regulation of Lobbying Act, 60 Stat. 839, 2 U. S. C. §§ 261-270, applies to any person who solicits or receives money or anything of value to be used principally, or if the person’s principal purpose is, to influence the passage or defeat of legislation by Congress. It requires any person receiving any contributions or expending any money for the purposes of influencing the passage or defeat of legislation to file with the Clerk of the House quarterly statements which set out the name and address of each person who has made a contribution of $500 or more not mentioned in the preceding report. It also requires that any person who engages himself for pay for the purpose of attempting to influence the passage or defeat of legislation, before doing anything in furtherance of that objective, register with the Clerk of the House and the Secretary of the Senate, and state in writing, inter alia, his name and address and the name and address of the person by whom he is employed, and in whose interest he works. These paid lobbyists must file quarterly reports of all money received and expended in carrying on their work, to whom paid, for what purposes, the names of publications in which they have caused any articles to be published, and the proposed legislation they are employed to support or oppose; this information is to be printed in the Congressional Record. In United States v. Harriss, 347 U. S. 612, we held that the First Amendment did not prohibit the prosecution of criminal informations charging violation of the registration and reporting provisions of the Act. We said:
“Present-day legislative complexities are such that individual members of Congress cannot be expected to explore the myriad pressures to which they are regularly subjected. Yet full realization of the American ideal of government by elected representatives depends to no small extent on their ability to properly evaluate such pressures. Otherwise the voice of the people may all too easily be drowned out by the voice of special interest groups seeking favored treatment while masquerading as proponents of the public weal. This is the evil which the Lobbying Act was designed to help prevent.
“Toward that end, Congress has not sought to prohibit these pressures. It has merely provided for a modicum of information from those who for hire attempt to influence legislation or who collect or spend funds for that purpose. It wants only to know who is being hired, who is putting up the money, and how much. . . .” Id., at 625.
The Foreign Agents Registration Act, first enacted in 1938, 52 Stat. 631, and since several times amended, provides, as now set forth in 22 U. S. C. §§ 611-621, that agents of foreign principals must register with the Attorney General and file periodic registration statements (which are to be held by the Attorney General open to public inspection) containing, among other information, the registrant’s name, a comprehensive statement of the nature of the registrant’s business, a complete list of the registrant’s employees and a statement of the nature of the work of each (unless this requirement is waived by the Attorney General), the name and address of the registrant’s foreign principals, with further information as to the principals’ character, ownership and control, the names and addresses of all persons other than a registrant’s foreign principal who contribute to the registrant in connection with specified activities of the registrant, and detailed financial accounts. Such agents must also file with the Attorney General and the Librarian of Congress, and must label as emanating from a registered agent of a foreign principal, and mark with the name of the agent and the principal, any political propaganda transmitted in the United States mails or through'any instrumentality of interstate or foreign commerce. In addition, Title 18 U. S. C. § 2386, derived from the so-called Voorhis Act of 1940, 54 Stat. 1201, requires the registration with the Attorney General of organizations subject to foreign control which engage in political or civilian military activity (as those terms are defined in the section), organizations which engage in both political and civilian military activity (as defined), and organizations whose purpose is the overthrow of government by the use or threat of force or violence or military measures. Organizations required to register must report, inter alia, the names and addresses of their officers, branch officers and contributors, a detailed description of their activities, and a detailed statement of assets, and must file copies of publications which they issue or distribute; registration statements must be kept up to date and are to be open for public examination. Committee reports pertinent to the Subversive Activities Control Act of 1950 state that the necessity for the legislation derived in part from the difficulty of enforcing the Foreign Agents Registration and Voorhis Acts against Communist organizations “due in part to the skill and deceit which the Communists have used m concealing their foreign ties.”
Certainly, as the Burroughs and Harriss cases abundantly recognize, secrecy of associations and organizations, even among groups concerned exclusively with political processes, may under some circumstances constitute a danger which legislatures do not lack constitutional power to curb. In New York ex rel. Bryant v. Zimmerman, 278 U. S. 63, this Court held that the Due Process Clause of the Fourteenth Amendment was not- offended by a state statute requiring filing with the Secretary of State of the constitution and by-laws, rules and regulations, membership oath, roster of members and list of officers of every association of twenty or more members having as a condition of membership an oath. The statute made it unlawful to become or remain a member of such an association with knowledge that it had failed to comply with the filing requirement. Exceptions for labor unions and benevolent orders indicated that the measure was directed primarily at the Ku Klux Klan. Compelling disclosure of membership lists and other information by organizations of the character of the Klan, the Court found, was reasonable both as a means for providing the government of the State with knowledge of the activities of those organizations within its borders, and because “requiring this information to be supplied for the public files will operate as an effective or substantial deterrent from the violations of public and private right to which the association might be tempted if such a disclosure were not required.” Id., at 72. It was the nature of the organization regulated, and hence the danger involved in its covert operation, which justified the statute and caused us to distinguish the Bryant case in N. A. A. C. P. v. Alabama, supra, 357 U. S., at 465. In N. A. A. C. P. and Bates v. Little Rock, supra, as we have said, there was no showing of any danger inherent in concealment, no showing that the State, in seeking disclosure, was attempting to cope with any perceived danger. Nor was this kind of danger — arising when secrecy itself is made an active instrument of public harm — put forth to justify the statute which was held invalid in Shelton v. Tucker, supra.
Congress, when it enacted the Subversive Activities Control Act, did attempt to cope with precisely such a danger. In light of its legislative findings, based on voluminous evidence collected during years of investigation, we cannot say that that danger is chimerical, or that the registration requirement of § 7 is an ill-adjusted means of dealing with it. In saying this, we are not insensitive to the fact that the public opprobrium and obloquy which may attach to an individual listed with the Attorney General as a member of a Communist-action organization is no less considerable than that with which members of the National Association for the Advancement of Colored People were threatened in N. A. A. C. P. and Bates. But while an angry public opinion, and the evils which it may spawn, are relevant considerations in adjudging, in light of the totality of relevant considerations, the validity of legislation that, in effecting disclosure, may thereby entail some restraints on speech and association, the existence of an ugly public temper does not, as such and without more, incapacitate government to require publicity demanded by rational interests high in the scale of national concern. Where the mask of anonymity which an organization’s members wear serves the double purpose of protecting them from popular prejudice and of enabling them to cover over a foreign-directed conspiracy, infiltrate into other groups, and enlist the support of persons who would not, if the truth were revealed, lend their support, see § 2 (1), (6), (7), it would be a distortion of the First Amendment to hold that it prohibits Congress from removing the mask.
These considerations lead us to sustain the registration provisions of § 7, as not repugnant to the First Amendment, insofar as they require Communist-action organizations to file a registration statement containing the names and addresses of its present officers and members. The requirement that persons who were officers or members at any time during the year preceding registration must be listed, see § 7 (d) (2), (4), is a reasonable means of assuring that the obligation to list present members and officers will not be evaded. For reasons which do not require elaboration, the requirement that a registering organization list the aliases of officers and members, see §7 (d)(5), must also be sustained. Nor do we find that § 7 (d) (3), requiring a financial accounting, or § 7 (d) (6), requiring a listing of all printing presses in the possession or control of the organization or its members violates First Amendment rights. Disclosure both of the financial transactions of a Communist-action organization and of the identity of the organs of publication which it controls might not unreasonably have been regarded by Congress as necessary to the objective which the Act seeks to achieve: to bring foreign-dominated organizations out into the open where the public can evaluate their activities informedly against the revealed background of their character, nature, and connections. Of course, printing presses may not be regulated like guns. That generalization gets us nowhere. On the concrete, specific issue before us, we hold that the obligation to give information identifying presses, without more and as applied to foreign-dominated organizations, does not fetter constitutionally protected free expression. No other kind of regulation is involved here. As to the penalties for failure to register, see § 15 (a), which the Party attacks as exorbitant and oppressive, these are not now before us. They have not yet been imposed on the Party and may never be. United States v. Harriss, 347 U. S. 612; United States v. Wurzbach, 280 U. S. 396.
It is argued that if Congress may constitutionally enact legislation requiring the Communist Party to register, to list its members, to file financial statements, and to identify its printing presses, Congress may impose similar requirements upon any group which pursues unpopular political objectives or which expresses an unpopular political ideology. Nothing which we decide here remotely carries such an implication. The Subversive Activities Control Act applies only to foreign-dominated organizations which work primarily to advance the objectives of a world movement controlled by the government of a foreign country. See §§ 3 (3), 2 (4). It applies only to organizations directed, dominated, or controlled by a particular foreign country, the leader of a movement which, Congress has found, is “in its origins, its development, and its present practice, ... a world-wide revolutionary movement whose purpose it is, by treachery, deceit, infiltration into other groups . . . , espionage, sabotage, terrorism, and any other means deemed necessary, to establish a Communist totalitarian dictatorship in the countries throughout the world through the medium of a world-wide Communist organization.” §2(1). This is the full purported reach of the statute, and its fullest effect. There is no attempt here to impose stifling obligations upon the proponents of a particular political creed as such, or even to check the importation of particular political ideas from abroad for propagation here. The Act compels the registration of organized groups which have been made the instruments of a long-continued, systematic, disciplined activity directed by a foreign power and purposing to overthrow existing government in this country. Organizations are subject to it only when shown, after administrative hearing subject to judicial review, to be dominated by the foreign power or its organs and to operate primarily to advance its purposes. That a portion of the evidence upon which such a showing is made may consist in the expression of political views by the organization does not alter the character of the Ac't or of the incidents to which it attaches. Such expressions are relevant only as probative of foreign control and of the purposes to which the organization’s actions are directed. The Board, in the present proceeding, so understood the Act. The registration requirement of § 7, on its face and as here applied, does not violate the First Amendment.
C. Self-Incrimination of the Party’s Officers. Section 7 (a) and (c) requires that organizations determined to be Communist-action organizations by the Subversive Activities Control Board register within thirty days after the Board’s registration order becomes final. Registration is to be accompanied by a registration statement, prepared in such manner and form as the Attorney General, by regulations, prescribes. § 7 (d). The form which, pursuant to this authority, the Attorney General has prescribed requires that registration statements “shall be signed by the partners, officers, and directors, including the members of the governing body of the organization.” 28 CFR § 11.200; Dept. Justice Form ISA-1. If the organization fails to register or to file a registration statement, it is the duty of the executive officer, the secretary, the president or chairman, the vice-president or vice-chairman, the treasurer, and the members of the governing board, council, or body, to register the organization by filing a registration statement for it within ten days after the expiration of the thirty-day registration period allowed the organization. See 28 CFR § 11.205, issued pursuant to § 7 (h) of the Act. The Party contends that these requirements cannot be imposed and exacted consistently with the Self-Incrimination Clause of the Fifth Amendment. Officers of the Party, it is argued, are compelled, in the very act of filing a signed registration statement, to admit that they are Party officers — an admission which we have held incriminating. Blau v. United States, 340 U. S. 159; cf. Quinn v. United States, 349 U. S. 155. What is required is said to be not merely the production of documents kept in an official capacity for the Party, see McPhaul v. United States, 364 U. S. 372; United States v. White, 322 U. S. 694; Wilson v. United States, 221 U. S. 361, but individual action by the officers which, by establishing a connection between the officers and the documents, in effect convicts the officers out of their own mouths. Cf. Curcio v. United States, 354 U. S. 118.
Manifestly, insofar as this contention is directed against the provisions of § 7 (h) and 28 CFR § 11.205, requiring that designated officers file registration statements in default of registration by an organization, it is prematurely raised in the present proceeding. The duties imposed by those provisions will not arise until and unless the Party fails to register. At this time their application is wholly contingent and conjectural. Cf. Alabama State Federation of Labor v. McAdory, 325 U. S. 450.
We find that the self-incrimination challenge to § 7 (a) and (d), as implemented by the Attorney General’s regulations and forms, is also premature at this time. The privilege against self-incrimination is one which normally must be claimed by the individual who seeks to avail himself of its protection. Vajtauer v. Commissioner of Immigration, 273 U. S. 103; United States v. Murdock, 284 U. S. 141; Rogers v. United States, 340 U. S. 367; see also Smith v. United States, 337 U. S. 137, 147-148; United States v. Monia, 317 U. S. 424, 427. We cannot know now that the Party’s officers will ever claim the privilege. There is no indication that in the past its high-ranking officials have sought to conceal their identity, and no reason to believe that in the future they will decline to file a registration statement whose whole effect, in this regard, is further to evidence a fact which, traditionally, has been one of public notice. Within thirty days after the Board’s registration order becomes final, the Party’s officers may file signed registration statements in the form required by Form ISA-1. Or they may file, statements claiming the privilege in lieu of furnishing the required information. If a claim of privilege is made, it may or may not be honored by the Attorney General. We cannot, on the basis of supposition that privilege will be claimed and not honored, proceed now to adjudicate the constitutionality under the Fifth Amendment of the registration provisions. Whatever proceeding may be taken after and if the privilege is claimed will provide an adequate forum for litigation of that issue.
The Party contends, however, that under the Subversive Activities Gontrol Act there will be no opportunity for its officers to claim the Fifth Amendment privilege without, at the same time, giving up all the protection which the Fifth Amendment secures them. Persons who come forward to make the claim, it is said, will as much reveal themselves to the Attorney General as officers of the Party as if they had in fact filed a registration statement. But it is always true that one who is required to assert the privilege against self-incrimination may thereby arouse the suspicions of prosecuting authorities. Nevertheless, it is not and has never been the law that the privilege disallows the asking of potentially'incriminatory questions or authorizes the person of whom they are asked to evade them without expressly asserting that his answers may tend to incriminate him. State v. Kemp, 126 Conn. 60, 9 A. 2d 63; O’Connell v. United States, 40 F. 2d 201 (C. A. 2d Cir.); In re Knickerbocker Steamboat Co., 139 F. 713 (D. C. S. D. N. Y.); In re Groban, 99 Ohio App. 512, 135 N. E. 2d 477, aff’d, 164 Ohio St. 26, 128 N. E. 2d 106, aff’d, 352 U. S. 330; Allhusen v. Labouchere, L. R. 3 Q. B. D. 654; Fisher v. Owen, L. R. 8 Ch. D. 645. And see United States v. Hiss, 185 F. 2d 822 (C. A. 2d Cir.); Commonwealth v. Granito, 326 Mass. 494, 95 N. E. 2d 539. In United States v. Sullivan, 274 U. S. 259, this Court sustained a conviction for failure to file an income tax return, despite the defendant’s objection that answers called for on the return would have incriminated him. Mr. Justice Holmes, for a unanimous Court, wrote that “If the form of return provided called for answers that the defendant was privileged. from making he could have raised the objection in the return, but could not on that account refuse to make any return at all. ... [I] f the defendant desired to test that or any other point he should have tested it in the return so that it could be passed upon. He could not draw a conjurer’s circle around the whole matter by his own declaration that to write any word upon the government blank would bring him into danger of the law.” Id., at 263-264. This would, of course, be the normal rule. Perhaps Sullivan is distinguishable, however, from the situation of registration under the Subversive Activities Control Act. Tax returns must be filed generally, and answers to tax return questions may involve any of a wide variety of activities, whereas the obligation to file a registration statement compels a few particular individuals to come forward, to identify themselves, and to suggest, at least, their connection with a relatively limited potential sphere of criminal conduct. Then, too, in Sullivan, Mr. Justice Holmes assumed that some, at least, of the answers to the questions on the tax return would not have been incriminating, whereas in the case of the registration statement, any claim of the privilege would involve the withholding of all information; thus, there is, presumably, a greater governmental interest in having the privilege claimed specifically on the form in the tax-return circumstances. To suggest these possible distinctions is to recognize that the applicability of the Sullivan principle here may raise novel and difficult questions as to the reach of the Fifth Amendment — questions which should not be discussed in advance of the necessity of deciding them. See Peters v. Hobby, 349 U. S. 331, 338. The stage at which that decision will become necessary, if at all, is the stage at which Sullivan itself was decided: when enforcement proceedings for failure to register are instituted against the Party or against its officers. See People v. McCormick, 102 Cal. App. 2d Supp. 954, 228 P. 2d 349.
In arguing that the issue is not now premature, the Party cites Boyd v. United States, 116 U. S. 616, for the proposition that, where a statute compelling the production of potentially incriminating information allows the exercise of the Fifth Amendment privilege only under circumstances which effectively nullify the Amendment’s protection, the statute may be held “unconstitutional and void,” not merely unenforceable in cases in which a proper claim of privilege is made. Assuming arguendo that this proposition is correct, the most that can be drawn from it of pertinence to the present case is that, in a prosecution of the Party for failure to register, or in a prosecution of its officers for failure to register the Party, the Court would have to determine whether the Subversive Activities Control Act is a statute which, like the statute in Boyd, unconstitutionally circumscribes the effectual exercise of the privilege. Obviously, such a determination would never have to be made if an enforcement proceeding were never brought — either because Party officials registered pursuant to § 7 (a) and (d) without complaint, or because they did choose to assert the privilege in some form in which it could be recognized. The Boyd case involved a statute providing that in proceedings other than criminal arising under the revenue laws, the Government could secure an order of the court requiring the production by an opposing claimant or defendant of any documents under his control which, the Government asserted, might tend to prove any of the Government’s, allegations. If production were not made, the allegations were to be taken as confessed. On the Government’s motion, the District Court had entered such an order, requiring the claimants in a forfeiture proceeding to produce a specified invoice. Although the claimants objected that the order was improper and the statute unconstitutional in coercing self-incriminatory disclosures and permitting unreasonable searches and seizures, they did, under protest, produce the invoice, which was, again over their constitutional objection, admitted into evidence. This Court held that on such a record a judgment for the United States could not stand, and that the statute was invalid as repugnant to the Fourth and Fifth Amendments. In Boyd, production had been ordered, objected to, and, the Court held, unconstitutionally compelled. There is nothing in the case which justifies advisory adjudication of self-incrimination questions prior to the time when a demand for information has been, at the least, made and resisted.
D. Legislative Predetermination of Adjudicative Pact. It is next asserted that the Act offends the Due Process Clause of the Fifth Amendment by predetermining legislatively facts upon which the application of the registration provisions to the Communist Party depends. Two arguments are made in this regard. The first is that although § 3 (3), defining a “Communist-action organization,” purports to require findings that an organization is controlled by “the foreign government or foreign organization controlling the world Communist movement referred to in section 2 . . .” and operates primarily to advance the objectives “of such world Communist movement as referred to in section 2 ... ,” the existence of a world Communist movement, its direction by the government of a foreign country, and the nature of its objectives are “found” by Congress in § 2, and may not be litigated in proceedings before the Board. Thus, an organization is precluded from showing operative facts which would take it out of § 3 (3): viz., that there is no world Communist movement, or that, if there is, it is, not controlled by a foreign government, or that it does not have the objectives attributed to it by § 2. The second argument is that the Board was in effect foreclosed from finding that the Party was not a Communist-action organization by the declarations, in § 2 (9), (12), and (15), that there are in the United States individuals who knowingly and willfully participate in the world Communist movement, that there is a Communist network in the United States, and that the “Communist movement in the United States is an organization . . . .” Given these “facts,” it is asserted, nothing is left to the Board but to supply the name of the organization — a name which, the Party contends, is obvious. Further, it is pointed out, Congress in 1954, prior to the Board’s final determination in this proceeding, enacted the Communist Control Act, 68 Stat. 775, 50 U. S. C. § 841 et seq., which declares in its second section:
“The Congress hereby finds and declares that the Communist Party of the United States, although purportedly a political party, is in fact an instrumentality of a conspiracy to overthrow the Government of the United States. . . . [T]he policies and programs of the Communist Party are secretly prescribed for it by the foreign leaders of the world Communist movement. ... [I]ts role as the agency of a hostile foreign power renders its existence a clear present and continuing danger to the security of the United States. . .
The Board could not, therefore, the Party argues, find that the Communist Party was not a Communist-action organization without contradicting Congress.
First: We have held, supra, that the congressional findings that there exists a world Communist movement, that it is directed by the Communist dictatorship of a foreign country, and that it has certain designated objectives, inter alia, the establishment of a Communist totalitarian dictatorship throughout the world through the medium of a world-wide Communist organization, §2(1), (4), are not open to re-examination by the Board. We find that nothing in this violates due process. Under § 3 (3) of the Act, an organization may not be found to be a Communist-action organization unless it is shown to be, first, “substantially directed, dominated, or controlled by the foreign government or foreign organization controlling the world Communist movement referred to in section 2 The only operative function of § 2 in this respect is to designate what Congress meant by “world Communist movement,” “the foreign government,” etc. The characteristics of the movement and the source of its control are not to be established by the Attorney General in proceedings before the Board, nor may they be disproved. But this is because they are merely defining terms whose truth, as such, is irrelevant to the issues in such proceedings. They are referents which identify “the foreign .government” to which § 3 (3) adverts. The Board, construing the statute, concluded that that foreign government was the Soviet Union. We affirm that construction. The statute, then, defines a Communist-action organization in terms of substantial direction, domination, or control by the Soviet Union. The Government offered evidence to show that the Soviet Union substantially directed, dominated, or controlled the Communist Party. The Party had an opportunity to rebut this showing, and it attempted to do so. The Board found that the Government’s showing was persuasive; it issued a 240-page report so concluding; and the Court of Appeals affirmed. None of the operative facts were “predetermined,” except in the sense in which any statute, as construed, designates the nature of the facts pertinent to issues which may be litigated under it. If, in future years, in a future world situation, the Soviet Union is no longer the foreign country to which § 2 (1) and (4), fairly read in their context, refer — so that substantial domination by the Soviet Union would not bring an organization within the terms of § 3 (3) — that, too, will be a matter of statutory construction which no “findings” in the statute foreclose. The Board or a reviewing court will be able to say that the “world Communist movement,” as Congress meant the term in 1950 (and whether or not there really existed, in 1950, a movement having all the characteristics described in § 2), no longer exists, or that Country X or Y, not the Soviet Union, now directs it. A similar process of adjudication is required under § 3 (3)(a)(ii), the “objectives” component of the definition of a Communist-action organization. It provides that, in order to be found a Communist-action organization, an organization must be shown to operate “primarily to advance the objectives of such world Communist movement as referred to in section 2 What those objectives are is made clear by the terms of § 2 itself. They are there described in detail. Whether they are in fact the objectives of some “world Communist movement” which in fact exists may not be litigated, because the question is irrelevant. Whether the particular organization against whom the Attorney General files a petition for a registration order operates primarily to advance those objectives is the pertinent issue under the statute, and this issue may be litigated. That is all that due process requires.
The decisions cited by the Party, Tot v. United States, 319 U. S. 463; McFarland v. American Sugar Ref. Co., 241 U. S. 79; Manley v. Georgia, 279 U. S. 1; Western & Atlantic R. Co. v. Henderson, 279 U. S. 639; and see Bailey v. Alabama, 219 U. S. 219, have no application here. These cases involved statutes which, purporting to attach legal consequences to one set of facts, created a rebuttable presumption of the existence of that set of facts which arose upon proof of other facts having, this Court found, no rational relation to the facts upon which the statutory consequences turned. The Subversive Activities Control Act, however, does not define a Communist-action organization as one which operates primarily to advance whatever objectives are actually held by the world Communist movement, leaving these objectives as facts to be proved. It finds that the particular objectives set out in § 2 are those of the world Communist movement and requires the registration of certain foreign-dominated organizations which operate primarily to advance those objectives. One, and only one, set of facts is in issue under § 3 (3) (a) (ii): whether a particular organization does or does not operate primarily to advance those objectives; and, as to this, the legislation “predetermines” nothing.
Second: We do not find that the congressional assertions in § 2 (9), (12) and (15), that there exist in the United States individuals dedicated to communism, a “Communist network,” a “Communist movement,” and a Communist “organization,” deprive the Party of the fair hearing which due process of law requires. Fairly read, these findings neither compel nor suggest the outcome in any particular litigation before the Board. They do not create the impression that there is a single Communist-action organization in the United States, still less that the Communist Party is “it.” Nor can we hold that the findings of § 2 of the Communist Control Act of 1954 unconstitutionally prejudice the Party. It is not suggested that these were enacted with a purpose to influence the then-pending proceedings in the present case. Rather, they are a portion of legislation deemed necessary by Congress pursuant to its continuing duty to protect the national welfare. Nowhere in the extensive modified reports of the Board nor in the opinions of the Court of Appeals are the 1954 legislative findings considered. While we must, of course, assume that the Board was aware of them, we cannot say that their very annunciation by Congress — in the absence of any showing that the Board took them into account — foreclosed or impaired a fair administrative determination.
The other constitutional questions raised by the Party have been carefully considered, but do not call for detailed discussion. And we must decline, of course, to enter into discussion of the wisdom of this legislation. The Constitution does not prohibit the requirement that the Communist Party register with the Attorney General as a Communist-action organization pursuant to § 7.
The judgment of the Court of Appeals is
Affirmed.
By the Communist Control Act of 1954, 68 Stat. 775, the Subversive Activities Control Board is given jurisdiction to determine, in proper proceedings, whether any organization is a Communist-infiltrated organization, defined as (A) an organization substantially directed, dominated, or controlled by an individual or individuals who are, or who within three years have been actively engaged in, giving aid or support to a Communist-action organization, a Communist foreign government, or the world Communist movement, (B) which organization is serving or within three years has served as a means for giving aid or support to any such organization, government or movement, or for the impairment of the military strength of the United States or its industrial capacity to furnish logistical or other material support required by its armed forces. Evidentiary matters relevant to this determination are prescribed for the consideration of the Board. Communist-infiltrated organizations are not required to register with the Attorney General, but are required to label their publications mailed or transmitted through instrumentalities of interstate or foreign commerce, and their communications broadcasts, and are deprived of federal income-tax exemption, of certain benefits under the National Labor Relations Act as amended, etc.
Under § 13A (h), added to the Subversive Activities Control Act of 1950 by the Communist Control Act of 1954, 68 Stat. 775, 779, the provisions depriving labor organizations of National Labor Relations Act labor-union benefits apply to labor organizations determined by the Board to be Communist-action or Communist-front, as well as Communist-infiltrated, organizations. 50 U. S. C. § 792a (h).
Under § 5 (b) the Secretary of Defense is authorized and directed to designate and proclaim a list of facilities with respect to the operation of which he finds that the security of the United States requires the application of the controls prescribed by the Act.
The proviso respecting alien members of Communist fronts is:
“. . . unless such aliens establish that they did not have knowledge or reason to believe at the time they became members of or affiliated with such an organization (and did not thereafter and prior to the date upon which such organization was so registered or so required to be registered have such knowledge or reason to believe) that such organization was a Communist organization.”
The provisions of § 212 (a) (29) (C) of the Immigration and Nationality Act, 66 Stat. 163, 186, 8 U. S. C. §1182 (a)(29)(C), also exclude aliens who the consular officer or the Attorney General knows or has reasonable ground to believe probably would, after entry, join, affiliate with, or participate in the activities of an organization registered or required to be registered.
Section 25 of the Subversive Activities Control Act of 1950 provided: “If a person who shall have been naturalized after January 1, 1951,” etc.
During the course of proceedings before the Board, the Party had again instituted suit in the District Court to enjoin continuation of the hearings because of alleged bias of the hearing panel and because of the Senate’s failure before adjournment to confirm the nomination of one member of the Board, who consequently withdrew from the panel. This second injunction suit was dismissed on motion of the Board on February 15, 1952.
S. Doc. No. 41, 83d Cong., 1st Sess.
Section 14 (a) provides: “. . . 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, the court may order such additional evidence to be taken before the Board and to be adduced upon the proceeding in such manner and upon such terms and conditions as to the court may seem proper. The Board may modify its findings as to the facts, by reason of the additional evidence so taken, and it shall file such modified or new findings
A totally different situation was presented in Ballard v. United States, 329 U. S. 187, in which it was held that a litigant who had been a party respondent in a case previously here on certiorari had not lost his right to complain of error in the selection of a jury by failing to argue the error as an independent ground for sustaining the first decision of the Court of Appeals, holding in his favor on other grounds.
Reference is also made to eases in which this Court has exercised its power to control the course of litigation immediately before it — a power which finds an appropriate exercise in the avoidance of premature constitutional adjudication. But the rule which petitioner urges, which would permit saving for a possible later stage in the proceedings errors available but not raised in this Court on review of administrative action, far from enhancing the Court’s ability to give effect to the policy of deferring unnecessary constitutional decision, would impede that policy. For it would allow the agencies and lower courts, after our remand, to consider potentially dispositive contentions which, had they been brought to our attention, might have derailed issues on which decision turned.
The reason for demanding that all available issues be raised in the orderly course of administrative review proceedings is made particularly evident by the circumstances of this case. This was a litigation already five years old when it first came here. Unusually extensive hearings and argument had been had before the Board and exhaustive briefing and argument before the Court of Appeals. The petition for certiorari, a document of ninety-three pages plus appendices, presented ten major questions and innumerable subsidiary points. Yet the matter of the Gitlow memoranda, which it is now argued looms so large in the context of this extraordinarily lengthy and complex proceeding, was not raised, and not raised by highly experienced lawyers who vigorously contended every step of the litigation. We remanded on other grounds and now — after five-more years have passed, after the Board and the Court of Appeals have each twice more reconsidered this steadily growing record — we are asked to reverse on a ground which the Party had every opportunity to bring here but which it abandoned. To ignore the abandonment would be a most artificial, decision-shrinking abuse of the wise rule of putting off decisions of constitutional scope. Avoidance of such decisions, however compelling a policy within the limitations of ordered judicial regularity, ought not to be countenanced by grafting an ad hoc exception onto a generally applicable rule of appellate procedure and permitting particular litigants to avail themselves of otherwise uncog-nizable points. No decision of this Court can be found which in similar circumstances authorizes disregard of all that has transpired over ten years of litigation so as to allow petitioner to make waste the half of it by resuscitating a long-stale claim.
“Q: Did you give [the Starobin letter incident] to . . . the FBI.
“A: I am satisfied I gave it to the FBI. I couldn’t say definitely, but the FBI question me about everything I write and say, and also about many other things. They question me, and I answer their questions.
“Q: Were your answers reduced in writing?
“A: As a matter of fact, I do know now, since you mention it, that I did give this to the FBI.
“Q: In writing?
“A: No, not in writing.
“Q: Was it taken down by a stenographer?
“A: No, not by a stenographer. They never do that, except in rare cases.
“Q: Was a report written up and then shown to you afterwards?
“A: No. That never happens.
“Q: So all you did was simply have an oral conversation about this incident?
“A: Yes, that is all.
“Q: Was it recorded?
“A: I judge so. It was taken down.
“Q: It was taken down?
“A: Yes. I mean, it wasn’t by a stenographer, but by an FBI agent.
“Q: It was taken down by an agent?
“A: Right.
“Q: Was it taken down in shorthand or longhand, or what?
“A: Longhand.
“Q: When?
“A: That I don’t know. The reason I recall it, counselor, if I may say so, is because in connection with my book, everything that was in my book was gone over by the FBI, either before or after its publication ....
“When I say ‘gone over,’ I mean the information was given to them.”
The Party did move, at the original Board hearing, for the production of certain reports by particular government witnesses which, it may be, would be comprehended among those sought by its 1959 motion for “All statements . . . which were made by witnesses who testified for the Attorney General at the administrative hearing and which relate to the subject matters of their testimony.” As in the case of the Gitlow memoranda, the question of the Board’s denials of these motions was not raised in the petition for certiorari here in 1955, and has thus been waived. We note that one such motion was adverted to in a footnote in the Party’s brief in this Court at that time, in connection with its argument that the Board erred in relying on the testimony of Scarletto; this and a similar footnote reference to denial of the Party’s motion for production of statements of Budenz concerning the Starobin letter were the only mentions in the Party’s 224-page brief of motions for production denied by the Board. These were plainly insufficient to raise the issue here. Supreme Court Rules 23, subd. 1 (c), 40, subd. 1 (d)(2).
Nor can we agree that the Party was excused from the necessity of making appropriate motions before the Board respecting documents which it wanted produced, because similar motions with respect to other documents had previously been denied. Especially in administrative proceedings of this length and complexity, it is important that a party bring his particular requests explicitly to the attention of the agency and the reviewing courts.
A Committee Report pertinent to that Act, H. R. Rep. No. 2582, 76th Cong., 3d Sess. 1, described the organizations at which it was directed as those “substantially controlled or directed by a foreign power . . . .”
Among these were the League of Nations; the Russo-Finnish War, 1939; the Hitler-Stalin non-aggression pact, 1939; attitude toward World War II before and after the German attack on the Soviet Union; dissolution of the Communist International, 1943; West Germany; the Italian election of 1948; North Atlantic Pact; control of atomic energy; election of Yugoslavia to the United Nations Security Council, 1949; Cardinal Mindszenty case, 1949; United Nations action in Korea; Communist China’s intervention in Korea, 1950; seating of Communist China in the United Nations; Peace Treaty with Japan, 1951; peace in Korea.
The Party points out that with respect to a major portion of the paired sets of exhibits put in through Dr. Mosely, the documents demonstrating the Communist Party’s position bear earlier dates than those demonstrating the Soviet Union’s position. These exhibits were offered only as illustrative of the views which Dr. Mosely testified— his expert opinion being based on a far wider selection of readings — were those taken approximately contemporaneously by the Soviet and the Party in each instance. The Government expressly disclaimed any attempt to establish chronological sequence between the announced positions of the two.
The committee reports and other authoritative legislative history pertinent to § 13 (e) (2) are unilluminating in this connection. It is significant that on the occasion of a proposed House amendment which would have deleted the similar non-deviation consideration now found in § 13 (f) (4) of the Act (pertaining to Communist-front organizations) , Mr. Nixon, who had been a leading proponent of the legislation in its several forms, argued that “if this particular standard is stricken out, it would be virtually impossible in many cases to get sufficient evidence before the Subversive Activities Control Board to justify a finding that an organization was a Communist front.” 96 Cong. Rec. 13764. The implication is that Mr. Nixon, and presumably other proponents of the enactment, regarded the § 13 (e) and (f) eviden-tiary considerations as expanding the scope of evidentiary matters of which the Board might take account in determining whether organizations met the definitions of § 3 (3) and (4). The proposed amendment was defeated after debate in the course of which all Congressmen seemed tacitly to assume that non-deviation involved a question of identity of policies, not of causal connection between policies. Id., at 13765-13768. And see id., at 14531-14533, 15194.
E. g., “The article denounces the Japanese invasion of Manchuria as a clear and unprovoked act of aggression against China, does it not? . . . Was [that] . . . not the opinion of every right-thinking person at that time?” “Is it not the universal opinion of every informed observer that the Greek monarchy is a reactionary, fascist and corrupt regime?” “Is it not true that virtually every Commentator on an analysis of the Italian elections in 1948 has expressed the opinion that there was widespread American intervention and interference in these elections? . . . Was there not widespread interference on the part of the United-States in that election?” “Was not this United States intervention in Formosa a violation of the Cairo Agreement on Formosa?” “Did not this policy [sending American troops beyond the 38th parallel in Korea] prove to be disastrous both militarily and politically? . . . And was it not paid for in thousands of United States lives?”
E.g., concerning Attorney General’s Exhibit No. 284, a thirteeen-page editorial:
“Q: Petitioner’s Exhibit 284 is an article . . . entitled, ‘Wall Street’s War Against the Korean People,’... is that not correct?
“A: Yes, it is the subtitle of an editorial article. ^
“Q: Now, I call your attention to page 11. Does not the author there say that broad democratic reforms were introduced in North Korea including universal sufferage [sic], the secret ballot, and equal status for women, and that the land was distributed to the peasants and that industry was nationalized and that the 8 hour day and social insurance were introduced, and child labor abolished and a system of public education introduced? . . . Are these not correct statements of fact?”
This question was put in a number of forms. The most typical is the following:
“In your opinion, could an informed American observer basing his views on what is the best interest of the American people reasonably and sincerely conclude, one, that Mr. Malik’s proposal was a great service to the cause of peace and in the best interests of the American people as well as all of the people of the world; two, that the representatives of the American government attempted to frustrate Mr. Malik’s proposal but were forced into truce negotiations by the overwhelming desire of the people; and three, that American representatives by provocative conduct and various pretexts attempted to cause the breakdown of armistice negotiations in Korea?”
E. g., “Professor, is it not a fact that many non-communist commentators and observers have expressed the view that the American proposals for international control of atomic energy were designed to make it impossible for the Soviet Union to accept them and that the American plan had no real chance of adoption?” “Would it not be accurate to state, Professor, that there was a very large and broad measure of agreement among the people and many of the leaders of both the Soviet Union and the United States on the need for the prompt establishment of a second front in Europe?”
E. g., “Is it not a fact, Professor, that the Federation of American Atomic Scientists urged that the United States abandon its proposal for the international ownership of atomic raw materials in the bulletin published by that organization in March 1950?”
One name appears in connection with six issues, writers in the New York Herald Tribune in connection with seven, President Franklin Roosevelt and George Bernard Shaw three each, etc. Instances in which the New York Times and the New York Herald Tribune are referred to merely as sources for the printed texts of speeches or statements by statesmen, officials, etc., are not included in this count.
It expressly declined to find a purpose to conceal foreign control.
For example, before an individual may be subjected to the penalties of §§ 8 and 15 (a) (2), the Party must have failed to register, or failed to list him as a member, and he must subsequently have failed, within the allotted time, to register himself.
It was evident that the prohibitions of § 4 (a) were so comprehensive that, as pointed out in the brief for the holding companies, “it [was] . . . quite impossible for holding companies to continue in business, unregistered, in the face of these prohibitions.” Nor could the companies cease to be holding companies, since § 4 (a) made unlawful, under penalty up to $200,000, the distribution or public offering of utility securities by unregistered holding companies through the mails or instrumentalities of interstate commerce, or the sale of securities by such companies with reason to believe that those securities would be distributed or made the subject of public offering through the mails or instrumentalities of interstate commerce. No doubt for this reason the Court regarded § 4 (a) as a “penalty” for failure to register, rather than as an independent regulatory scheme for unregistered holding companies. See 303 U. S., at 439, 442, 443. A decree requiring the holding companies to comply with §§ 4 (a) and 5 was, in effect, a decree compelling it to register.
Section 3 of the Act authorized the Commission to exempt from any provision or provisions of the Act certain described classes of holding companies. It was evident from the nature of Electric Bond and Share, as developed in that litigation, that it did not come within any of these categories, and the Court did not mention § 3 in its opinion.
The decree was without prejudice to any rights which the companies might have at law or in equity after registration, and left the companies free to challenge the validity of any provisions of the Act other than §§ 4 (a) and 5. In the present proceeding, of course, the Board’s order does not operate to foreclose the Communist Party, or any other person adversely affected by provisions of the Subversive Activities Control Act, from subsequently challenging in appropriate proceedings other of the Act’s provisions than those requiring the registration of Communist-action organizations.
See North American Co. v. Securities & Exchange Comm’n, 327 U. S. 686.
See S. Rep. No. 2369, 81st Cong., 2d Sess. 4; H. R. Rep. No. 2980, 81st Cong., 2d Sess. 3; H. R. Rep. No. 1844, 80th Cong., 2d Sess. 2, 5; see also 96 Cong. Rec. 14174, 14237, 14256-14257, 14297, 14598.
See also Columbia Broadcasting System, Inc., v. United States, 316 U. S. 407; Truax v. Corrigan, 257 U. S. 312.
S. Rep. No. 2369, 81st Cong., 2d Sess. 4. See note 27, supra.
See H. R. 1884, 80th Cong., 1st Sess. (prohibiting Party members from filing as candidates for elective office); H. R. 2122, 80th Cong., 1st Sess. (making Party membership unlawful); H. R. 4422, 80th Cong., 1st Sess. (requiring registration of Party members as agents of a foreign principal); H. R. 4482, 80th Cong., 1st Sess. (disqualifying political parties affiliated with the Communist Party from the ballot) ; H. R. 5852, 80th Cong., 2d Sess. (requiring the registration of “Communist-front” organizations; defining “Communist-front” as including the Communist Party).
H. R. Rep. No. 2980, 81st Cong., 2d Sess. 5; H. R. Rep. No. 1844, 80th Cong., 2d Sess. 6; S. Rep. No. 1358, 81st Cong., 2d Sess. 9.
See H. R. Rep. No. 2980, 81st Cong., 2d Sess. 1-2; S. Rep. No. 1358, 81st Cong., 2d Sess. 5; cf. H. R. Rep. No. 1844, 80th Cong., 2d Sess. 1; 96 Cong. Rec. 13765, 14233, 14585.
See, e. g., S. Rep. No. 1358, 81st Cong., 2d Sess. 9:
“The committee gave serious consideration to the many well-intentioned proposals which were before it which attempted to meet the problems by outlawing the Communist Party. Proponents of this approach differed as to what they desired. Some wanted to bar the Communist Party from the ballot in the elections. Others would have made membership in the Communist Party illegal per se.
“The committee believes that there are several compelling arguments against the outlawing approach. There are grave constitutional questions involved in attempting to interfere with the rights of the States to declare what parties and individuals may qualify for appearance on the ballot. To make membership in a specifically designated existing organization illegal per se would run the risk of being held unconstitutional on the grounds that such an action was legislative fiat.
“Among other policy considerations which militate against this type of approach are the following:
“(1) legalization of the party might drive the Communist movement further underground, whereas exposure of its activities is the primary need.
“(2) legalization has not proved effective in Canada and other countries which have tried it.
“(3) If the present Communist Party severs the puppet strings by which it is manipulated from abroad, if it gives up its undercover methods, there is no reason for denying it the privilege of openly advocating its beliefs in the way in which true political parties advocate theirs. In politics as well as sports, there are certain rules of the game which must be obeyed. Daggers are out of order on the American playing field. Undercover methods and foreign direction cannot be tolerated on the political field.
“This legislation does not constitute, therefore, a fiat. The Communist Party of the United States is not made guilty of any offense by reason of the enactment of the provisions of this act. If, however, the Communist Party of the United States or any other party now in existence or to be formed operates in such a way that it comes within the definitions and performs activities which are proscribed under the act, then the legislation will apply to it. . . . If such a party changes its characteristics, then the objectives sought by the committee will have been accomplished.”
We need not consider now the decisions in which this Court has struck down regulations requiring not merely registration but the securing of a license, issued either at the arbitrary discretion of licensing officials or by the application of licensing standards so broad or uncertain as to permit arbitrary action by officials, as prerequisite to the right to speak. E. g., Staub v. Baxley, 355 U. S. 313; Superior Films, Inc., v. Department of Education, 346 U. S. 587; Gelling v. Texas, 343 U. S. 960; Joseph Burstyn, Inc., v. Wilson, 343 U. S. 495; Niemotko v. Maryland, 340 U. S. 268; Kunz v. New York, 340 U. S. 290; Largent v. Texas, 318 U. S. 418; Cantwell v. Connecticut, 310 U. S. 296; Schneider v. State, 308 U. S. 147; Hague v. C. I. O., 307 U. S. 496; Lovell v. Griffin, 303 U. S. 444. The present statute has no such licensing provision.
After the speech, Thomas had also solicited one individual, by name, to join the union. The Court declined to decide whether such a solicitation, apart, from the speech, might constitutionally have been made the basis of punishment for contempt. 323 U. S., at 541. The state court’s order adjudging Thomas in contempt imposed a single sentence for both “solicitations,” and the Court therefore regarded the statute, in this application, as restraining and punishing Thomas "for uttering, in the course of his address, the general as well as the specific invitation.” Id., at 529.
This is clear from the Court’s reliance on De Jonge v. Oregon, 299 U. S. 353.
Among the Committee reports, see the following: Investigation of Communist Propaganda, H. R. Rep. No. 2290, 71st Cong., 3d Sess.; Investigation of Nazi and Other Propaganda, H. R. Rep. No. 153, 74th Cong., 1st Sess.; Investigation of Un-American Activities and Propaganda, H. R. Rep. No. 2, 76th Cong., 1st Sess.; Investigation of Un-American Propaganda Activities in the United States, H. R. Rep. No. 1476, 76th Cong., 3d Sess.; Investigation of Un-American Propaganda Activities in the United States, H. R. Rep. No, 1, 77th Cong., 1st Sess.; Special Report on Subversive Activities Aimed at Destroying Our Representative Form of Government, H, R. Rep. No. 2748, 77th Cong., 2d Sess,; Sources of Financial Aid for Subversive and Un-American Propaganda, H. R. Rep. No, 1996, 79th Cong., 2d Sess.; Investigation of Un-American Activities and Propaganda, H. R. Rep. No. 2233, 79th Cong., 2d Sess.; Investigation of Un-American Activities and Propaganda, H. R. Rep. No. 2742, 79th Cong., 2d Sess.; The Communist Party of the United States as an Agent of a Foreign Power, H. R. Rep. No. 209, 80th Cong., 1st Sess.; Report on the Communist Party of the United States as an Advocate of Overthrow of Government by Force and Violence, H, R. Comm. Print, 80th Cong., 2d Sess.; Report of the Committee on Un-American Activities to the United States House of Representatives, Eightieth Congress, H. R. Comm. Print, 80th Cong., 2d Sess.; Soviet Espionage Within the United States Government (second report), H. R. Comm. Print, 80th Cong., 2d Sess.; The Strategy and Tactics of World Communism, H. R. Doc. No. 619, 80th Cong., 2d Sess., and (Country Studies), H. R. Doc. No. 154, 81st Cong., 1st Sess.; Annual Report of the Committee on Un-American Activities For the Year 1949, H. R. Rep. No. 1950, 81st Cong., 2d Sess.; Report on Atomic Espionage, H. R. Rep. No. 1952, 81st Cong., 2d Sess. For a bibliography of published committee hearings during this period, see Internal Security Manual, S. Doc. No. 47, 83d Cong., 1st Sess. 216-223.
See the Foreign Agents Registration Act, 52 Stat. 631, as amended, 22 U. S. C. §§ 611-621.
Compare 18 U. S. C. § 612 (prohibiting the publication or distribution of written statements concerning candidates for designated national elective offices unless such statements contain the names of the persons or associations responsible for the publication or distribution and, in the case of associations, the names of their officers); 37 Stat. 553, as amended, 39 U. S. C. §§ 233-234 (prescribing the withdrawal of second-class mailing privileges from publications which do not file with the Postmaster General, and publish in the second issue of the publication printed after filing, a statement setting forth the names of the publication’s editors, publishers, managers and owners, and, if the owners are corporations, the names of stockholders and other security holders; and prohibiting the printing, by publications enjoying second-class privileges, of paid advertisements not marked as such), sustained against First Amendment challenge in Lewis Publishing Co. v. Morgan, 229 U. S. 288; Communications Act of 1934, § 317, 48 Stat. 1089, 47 U. S. C. § 317 (requiring, in the case of all matter broadcast by radio for which a valuable consideration is paid by any person, an announcement that the matter has been paid for by such person).
H. It. Rep. No. 2980, 81st Cong., 2d Sess. 2; H. R. Rep. No. 1844, 80th Cong., 2d Sess. 5.
One aspect of the constitutional attack on the New York statute in the Bryant case was that the “liberty” protected by the Due Process Clause comprehended freedom to form harmless associations and engage in non-violent associational activity.
Added by an Act of July 29, 1954, 68 Stat. 586.
See S. Rep. No. 2369, 81st Cong., 2d Sess. 4; H. R. Rep. No. 2980, 81st Cong., 2d Sess. 3; S. Rep. No. 1358, 81st Cong., 2d Sess. 3, 5, 8; H. R. Rep. No. 1844, 80th Cong., 2d Sess. 2; 96 Cong. Rec. 13731, 14171-14173.
A fortiori we do not reach at this time the question of the validity of § 8 of the Act. See note 22 supra. | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. | What is the issue of the decision? | [
"First Amendment, miscellaneous (cf. comity: First Amendment)",
"commercial speech, excluding attorneys",
"libel, defamation: defamation of public officials and public and private persons",
"libel, privacy: true and false light invasions of privacy",
"legislative investigations: concerning internal security only",
"federal or state internal security legislation: Smith, Internal Security, and related federal statutes",
"loyalty oath or non-Communist affidavit (other than bar applicants, government employees, political party, or teacher)",
"loyalty oath: bar applicants (cf. admission to bar, state or federal or U.S. Supreme Court)",
"loyalty oath: government employees",
"loyalty oath: political party",
"loyalty oath: teachers",
"security risks: denial of benefits or dismissal of employees for reasons other than failure to meet loyalty oath requirements",
"conscientious objectors (cf. military draftee or military active duty) to military service",
"campaign spending (cf. governmental corruption):",
"protest demonstrations (other than as pertains to sit-in demonstrations): demonstrations and other forms of protest based on First Amendment guarantees",
"free exercise of religion",
"establishment of religion (other than as pertains to parochiaid:)",
"parochiaid: government aid to religious schools, or religious requirements in public schools",
"obscenity, state (cf. comity: privacy): including the regulation of sexually explicit material under the 21st Amendment",
"obscenity, federal"
] | [
5
] | sc_issue_3 |
NEW YORK TIMES CO., INC., et al. v. TASINI et al.
No. 00-201.
Argued March 28, 2001
Decided June 25, 2001
Ginsburg, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Scalia, Kennedy, Souter, and Thomas, JJ., joined. Stevens, J., filed a dissenting opinion, in which Breyer, J., joined, post, p. 506.
Laurence H. Tribe argued the cause for petitioners. With him on the briefs were Jonathan S. Massey, Bruce P. Keller, Jeffrey P. Cunará, Michael R. Potenza, Peter C. Johnson, and Thomas C. Goldstein.
Laurence Gold argued the cause for respondents Tasini et al. With him on the brief were Patricia A. Fetch, Daniel W. Sherrick, Michael H. Gottesman, and Leon Dayan. Emily Maruja Bass filed a brief for respondents Garson et al.
Briefs of amici curiae urging reversal were filed for Advance Publications, Inc., et al. by Charles S. Sims, Jerry S. Birenz, Harold W. Fuson, Jr., Andrew A Merdek, Barbara W. Wall, Katherine Hatton, Barbara Cohen, and Clifford M. Sloan; for the National Geographic Society by Kenneth W. Starr, Christopher Landau, Terrence B. Adamson, and Robert G. Sugarman; for the Software & Information Industry Association et al. by Henry B. Gutman, Arthur R. Miller, and James F. Rittinger; and for Ken Burns et al. by Michael F Clayton and Brett I. Miller.
Briefs of amici curiae urging affirmance were filed for the American Library Association et al. by Arnold P. Lutzker; for the Authors Guild, Inc., et al. by Leon Friedman; for the International Federation of Journalists by Thomas M. Peterson and Brett M. Schuman; and for Ellen Schrecker et al. by Theodore M. Lieverman.
Briefs of amici curiae were filed for the American Intellectual Property Law Association by Paul E. Lacy and Daniel W. McDonald; and for the American Society of Media Photographers, Inc., et al. by L. Donald Prutz-man and Victor S. Perlman.
Justice Ginsburg
delivered the opinion of the Court.
This copyright case concerns the rights of freelance authors and a presumptive privilege of their publishers. The litigation was initiated by six freelance authors and relates to articles they contributed to three print periodicals (two newspapers and one magazine). Under agreements with the periodicals’ publishers, but without the freelancers’ consent, two computer database companies placed copies of the freelancers’ articles — along with all other articles from the periodicals in which the freelancers’ work appeared — into three databases. Whether written by a freelancer or staff member, each article is presented to, and retrievable by, the user in isolation, clear of the context the original print publication presented.
The freelance authors’ complaint alleged that their copyrights had been infringed by the inclusion of their articles in the databases. The publishers, in response, relied on the privilege of reproduction and distribution accorded them by § 201(c) of the Copyright Act, which provides:
“Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.” 17 U. S. C. § 201(c).
Specifically, the publishers maintained that, as copyright owners of collective works, i. e., the original print publications, they had merely exercised “the privilege” § 201(c) accords them to “reproduc[e] and distributee]” the author’s discretely copyrighted contribution.
In agreement with the Second Circuit, we hold that § 201(c) does not authorize the copying at issue here. The publishers are not sheltered by § 201(e), we conclude, because the databases reproduce and distribute articles standing alone and not in context, not “as part of that particular collective work” to which the author contributed, “as part of. . . any revision” thereof, or “as part of... any later collective work in the same series.” Both the print publishers and the electronic publishers, we rule, have infringed the copyrights of the freelance authors.
I
A
Respondents Jonathan Tasini, Mary Kay Blakely, Barbara Garson, Margot Mifflin, Sonia Jaffe Robbins, and David S. Whitford are authors (Authors). Between 1990 and 1993, they wrote the 21 articles (Articles) on which this dispute centers. Tasini, Mifflin, and Blakely contributed 12 Articles to The New York Times, the daily newspaper published by petitioner The New York Times Company (Times). Tasini, Garson, Robbins, and Whitford wrote eight Articles for Newsday, another New York daily paper, published by petitioner Newsday, Inc. (Newsday). Whitford also contributed one Article to Sports Illustrated, a weekly magazine published by petitioner Time, Inc. (Time). The Authors registered copyrights in each of the Articles. The Times, News-day, and Time (Print Publishers) registered collective work copyrights in each periodical edition in which an Article originally appeared. The Print Publishers engaged the Authors as independent contractors (freelancers) under contracts that in no instance secured consent from an Author to placement of an Article in an electronic database.
At the time the Articles were published, all three Print Publishers had agreements with petitioner LEXIS/NEXIS (formerly Mead Data Central Corp.), owner and operator of NEXIS, a computerized database that stores information in a text-only format. NEXIS contains articles from hundreds of journals (newspapers and periodicals) spanning many years. The Print Publishers have licensed to LEXIS/ NEXIS the text of articles appearing in the three periodicals. The licenses authorize LEXIS/NEXIS to copy and sell any portion of those texts.
Pursuant to the licensing agreements, the Print Publishers regularly provide LEXIS/NEXIS with a batch of all the articles published in each periodical edition. The Print Publisher codes each article to facilitate computerized retrieval, then transmits it in a separate file. After further coding, LEXIS/NEXIS places the article in the central discs of its database.
Subscribers to NEXIS, accessing the system through a computer, may search for articles by author, subject, date, publication, headline, key term, words in text, or other criteria. Responding to a search command, NEXIS scans the database and informs the user of the number of articles meeting the user’s search criteria. The user then may view, print, or download each of the articles yielded by the search. The display of each article includes the print publication (e. g., The New York Times), date (September 23, 1990), section (Magazine), initial page number (26), headline or title (“Remembering Jane”), and author (Mary Kay Blakely). Each article appears as a separate, isolated “story” — without any visible link to the other stories originally published in the same newspaper or magazine edition. NEXIS does not contain pictures Or advertisements, and it does not reproduce the original print publication’s formatting features such as headline size, page placement (e. g., above or below the fold for newspapers), or location of continuation pages.
The Times (but not Newsday or Time) also has licensing agreements with petitioner University Microfilms International (UMI). The agreements authorize reproduction of Times materials on two CD-ROM products, the New York Times OnDisc (NYTO) and General Periodicals OnDisc (GPO).
Like NEXIS, NYTO is a text-only system. Unlike NEXIS, NYTO, as its name suggests, contains only the Times. Pursuant to a three-way agreement, LEXIS/ NEXIS provides UMI with computer files containing each article as transmitted by the Times to LEXIS/NEXIS. Like LEXIS/NEXIS, UMI marks each article with special codes. UMI also provides an index of all the articles in NYTO. Articles appear in NYTO in essentially the same way they appear in NEXIS, i. e., with identifying information (author, title, etc.), but without original formatting or accompanying images.
GPO contains articles from approximately 200 publications or sections of publications. Unlike NEXIS and NYTO, GPO is an image-based, rather than a text-based, system. The Times has licensed GPO to provide a facsimile of the Times’ Sunday Book Review and Magazine. UMI “burns” images of each page of these sections onto CD-ROMs. The CD-ROMs show each article exactly as it appeared on printed pages, complete with photographs, captions, advertisements, and other surrounding materials. UMI provides an index and abstracts of all the articles in GPO.
Articles are. accessed through NYTO and GPO much as they are accessed through NEXIS. The user enters a search query using similar criteria (e. g., author, headline, date). The computer program searches available indexes and abstracts, and retrieves a list of results matching the query. The user then may view each article within the search result, and may print the article or download it to a disc. The display of each article provides no links to articles appearing on other pages of the original print publications.
B
On December 16, 1993, the Authors filed this civil action in the United States District Court for the Southern District of New York. The Authors alleged that their copyrights were infringed when, as permitted and facilitated by the Print Publishers, LEXIS/NEXIS and UMI (Electronic Publishers) placed the Articles in the NEXIS, NYTO, and GPO databases (Databases). The Authors sought declaratory and injunctive relief, and damages. In response to the Authors’ complaint, the Print and Electronic Publishers raised the reproduction and distribution privilege accorded collective work copyright owners by 17 U. S. C. § 201(c). After discovery, both sides moved for summary judgment.
The District Court granted summary judgment for the Publishers, holding that § 201(c) shielded the Database reproductions. 972 F. Supp. 804, 806 (1997). The privilege conferred by § 201(c) is transferable, the court first concluded, and therefore could be conveyed from the original Print Publishers to the Electronic Publishers. Id., at 816. Next, the court determined, the Databases reproduced and distributed the Authors’ works, in §201(c)’s words, “as part of . . . [a] revision of that collective work” to which the Authors had first contributed. To qualify as “revisions,” according to the court, works need only “preserve some significant original aspect of [collective works] — whether an original selection or an original arrangement.” Id., at 821. This criterion was met, in the District Court’s view, because the Databases preserved the Print Publishers’ “selection of articles” by copying all of the articles originally assembled in the periodicals’ daily or weekly issues. Id., at 823. The Databases “highlighted] ” the connection between the articles and the print periodicals, the court observed, by showing for each article not only the author and periodical, but also the print publication’s particular issue and page numbers. Id., at 824 (“[T]he electronic technologies not only copy the publisher defendants’ complete original ‘selection’ of articles, they tag those articles in such a way that the publisher defendants’ original selection remains evident online.”).
The Authors appealed, and the Second Circuit reversed. 206 F. 3d 161 (1999). The Court of Appeals granted summary judgment for the Authors on the ground that the Databases were not among the collective works covered by § 201(c), and specifically, were not “revisions” of the periodicals in which the Articles first appeared. Id., at 167-170. Just as § 201(c) does not “permit a Publisher to sell a hard copy of an Author’s article directly to the public even if the Publisher also offered for individual sale all of the other articles from the particular edition,” the court reasoned, so § 201(c) does not allow a Publisher to “achieve the same goal indirectly” through computer databases. Id., at 168. In the Second Circuit’s view, the Databases effectively achieved this result by providing multitudes of “individually retrievable” articles. Ibid. As stated by the Court of Appeals, the Databases might fairly be described as containing “new anthologies] of innumerable” editions or publications, but they do not qualify as “revisions” of particular editions of periodicals in th^ Databases. Id., at 169. Having concluded that § 201(c) “does not permit the Publishers,” acting without the author’s consent, “to license individually copyrighted works for inclusion in the electronic databases,” the court did not reach the question whether the § 201(c) privilege is transferable. Id., at 165, and n. 2.
We granted certiorari to determine whether the copying of the Authors’ Articles in the Databases is privileged by 17 U. S. C. § 201(c). 531 U. S. 978 (2000). Like the Court of Appeals, we conclude that the § 201(c) privilege does not override the Authors’ copyrights, for the Databases do not reproduce and distribute the Articles as part of a collective work privileged by § 201(c). Accordingly, and again like the Court of Appeals, we find it unnecessary to determine whether the privilege is transferable.
II
Under the Copyright Act, as amended in 1976, “[cjopyright protection subsists ... in original works of authorship fixed in any tangible medium of expression . . . from which they can be perceived, reproduced, or otherwise communicated.” 17 U. S. C. § 102(a). When, as in this case, a freelance author has contributed an article to a “collective work” such as a newspaper or magazine, see §101 (defining “collective work”), the statute recognizes two distinct copyrighted works: “Copyright in each separate contribution to a collec tive work is distinct from copyright in the collective work as a whole ....” § 201(c) (emphasis added). Copyright in the separate contribution “vests initially in the author of the contribution” (here, the freelancer). Ibid. Copyright in the collective work vests in the collective author (here, the newspaper or magazine publisher) and extends only to the creative material contributed by that author, not to “the preexisting material employed in the work,” § 103(b). See also Feist Publications, Inc. v. Rural Telephone Service Co., 499 U. S. 340, 358 (1991) (copyright in “compilation” — a term that includes “collective works,” 17 U. S. C. § 101 — is limited to the compiler’s original “selection, coordination, and arrangement”).
Prior to the 1976 revision, as the courts below recognized, see 206 F. 3d, at 168; 972 F. Supp., at 815, authors risked losing their rights when they placed an article in a collective work. Pre-1976 copyright law recognized a freelance author’s copyright in a published article only when the article was printed with a copyright notice in the author’s name. See Copyright Act of 1909, § 18, 35 Stat. 1079. When publishers, exercising their superior bargaining power over authors, declined to print notices in each contributor’s name, the author’s copyright was put in jeopardy. See Kaminstein, Divisibility of Copyrights, Study No. 11, in Copyright Law Revision Studies Nos. 11-13, prepared for the Senate Committee on the Judiciary, 86th Cong., 2d Sess., 18 (1960). The author did not have the option to assign only the right of publication in the periodical; such a partial assignment was blocked by the doctrine of copyright “indivisibility.” See id., at 11. Thus, when a copyright notice appeared only in the publisher’s name, the author’s work would fall into the public domain, unless the author’s copyright, in its entirety, had passed to the publisher. See id., at 18. Such complete transfer might be accomplished by a contract, perhaps one with a provision, not easily enforced, for later retransfer of rights back to the author. See id., at 20-22. Or, absent a specific contract, a court might find that an author had tacitly transferred the entire copyright to a publisher, in turn deemed to hold the copyright in “trust” for the author’s benefit. See id., at 18 — 19; see generally 3 M. Nimmer & D. Nimmer, Copyright § 10.01[C][2], pp. 10-12 to 10-14 (2000).
In the 1976 revision, Congress acted to “clarify and improve [this] confused and frequently unfair legal situation with respect to rights-in contributions.” H. R. Rep. No. 94-1476, p. 122 (1976) (hereinafter H. R. Rep.). The 1976 Act rejected the doctrine of indivisibility, recasting the copyright as a bundle of discrete “exclusive rights,” 17 U. S. C. § 106 (1994 ed. and Supp. V), each of which “may be transferred . . . and owned separately,” § 201(d)(2). Congress also provided, in § 404(a), that “a single notice applicable to the collective work as a whole is sufficient” to protect the rights of freelance contributors. And in § 201(c), Congress codified the discrete domains of “[c]opyright in each separate contribution to a collective work” and “copyright in the collective work as a whole.” Together, § 404(a) and § 201(c) “preserve the author’s copyright in a contribution even if the contribution does not bear a separate notice in the author’s name, and without requiring any unqualified transfer of rights to the owner of the collective work.” H. R. Rep. 122.
Section 201(c) both describes and circumscribes the “privilege” a publisher acquires regarding an author’s contribution to a collective work:
“In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.” (Emphasis added.)
A newspaper or magazine publisher is thus privileged to reproduce or distribute an article contributed by a freelance author, absent a contract otherwise providing, only “as part of” any (or all) of three categories of collective works: (a) “that collective work” to which the author contributed her work, (b) “any revision of that collective work,” or (c) “any later collective work in the same series.” In accord with Congress’ prescription, a “publishing company could reprint a contribution from one issue in a later issue of its magazine, and could reprint an article from a 1980 edition of an encyclopedia in a 1990 revision of it; the publisher could not revise the contribution itself or include it in a new anthology or an entirely different magazine or other collective work.” H. R. Rep. 122-123.
Essentially, § 201(c) adjusts a publisher’s copyright in its collective work to accommodate a freelancer’s copyright in her contribution. If there is demand for a freelance article standing alone or in a new collection, the Copyright Act allows the freelancer to benefit from that demand; after authorizing initial publication, the freelancer may also sell the article to others. Cf. Stewart v. Abend, 495 U. S. 207, 229 (1990) (“[w]hen an author produces a work which later commands a higher price in the market than the original bargain provided, the copyright statute [1 e., the separate renewal term of former 17 U. S. C. § 24] is designed to provide the author the power to negotiate for the realized value of the work”); id., at 230 (noting author’s “inalienable termination right” trader current 17 U. S. C. §§203, 302 (1994 ed. and Supp. V)). It would scarcely “preserve the author’s copyright in a contribution” as contemplated by Congress, H. R. Rep. 122, if a newspaper or magazine publisher were permitted to reproduce or distribute copies of the author’s contribution in isolation or within new collective works. See Gordon, Fine-Tuning Tasini: Privileges of Electronic Distribution and Reproduction, 66 Brooklyn L. Rev. 473, 484 (2000).
III
In the instant case, the Authors wrote several Articles and gave the Print Publishers permission to publish the Articles in certain newspapers and magazines. It is undisputed that the Authors hold copyrights and, therefore, exclusive rights in the Articles. It is clear, moreover, that the Print and Electronic Publishers have exercised at least some rights that §106 initially assigns exclusively to the Authors: LEXIS/NEXIS’ central discs and UMI’s CD-ROMs “reproduce . . . copies” of the Articles, §106(1); UMI, by selling those CD-ROMs, and LEXIS/NEXIS, by selling copies of the Articles through the NEXIS Database, “distribute copies” of the Articles “to the public by sale,” § 106(3); and the Print Publishers, through contracts licensing the production of copies in the Databases, “authorize” reproduction and distribution of the Articles, § 106.
Against the Authors’ charge of infringement, the Publishers do not here contend the Authors entered into an agreement authorizing reproduction of the Articles in the Databases. See supra, at 489, n. 1. Nor do they assert that the copies in the Databases represent “fair use” of the Authors’ Articles. See 17 U. S. C. § 107 (“fair use of a copyrighted work ... is not an infringement”; four factors identified among those relevant to fair use determination). Instead, the Publishers rest entirely on the privilege described in § 201(c). Each discrete edition of the periodicals in which the Articles appeared is a “collective work,” the Publishers agree. They contend, however, that reproduction and distribution of each Article by the Databases lie within the “privilege of reproducing and distributing the [Articles] as part of... [a] revision of that collective work,” § 201(c). The Publishers’ encompassing construction of the § 201(c) privilege is unacceptable, we conclude, for it would diminish the Authors’ exclusive rights in the Articles.
In determining whether the Articles have been reproduced and distributed “as part of” a “revision” of the collective works in issue, we focus on the Articles as presented to, and perceptible by, the user of the Databases. See § 102 (copyright protection subsists in original works fixed in any medium “from which they can be perceived, reproduced, or otherwise communicated”); see also § 101 (1994 ed., Supp. V) (definitions of “copies” and “fixed”); Haemmerli, Commentary: Tasini v. New York Times Co., 22 Colum.-VLA. J. L. & Arts 129, 142-143 (1998). In this case, the three Databases present articles to users clear of the context provided either by the original periodical editions or by any revision of those editions. The Databases first prompt users to search the universe of their contents: thousands or millions of files containing individual articles from thousands of collective works (i. e., editions), either in one series (the Times, in NYTO) or in scores of series (the sundry titles in NEXIS and GPO). When the user conducts a search, each article appears as a separate item within the search result. In NEXIS and NYTO, an article appears to a user without the graphics, formatting, or other articles with which the article was initially published. In GPO, the article appears with the qther materials published on the same page or pages, but without any material published on other pages of the original periodical. In either circumstance, we cannot see how the Database perceptibly reproduces and distributes the article “as part of” either the original edition or a “revision” of that edition.
One might view the articles as parts of a new compendium — namely, the entirety of works in the Database. In that compendium, each edition of each periodical represents only a miniscule fraction of the ever-expanding Database. The Database no more constitutes a “revision” of each constituent edition than a 400-page novel quoting a sonnet in passing would represent a “revision” of that poem. “Revision” denotes a new “version,” and a version is, in this setting, a “distinct form of something regarded by its creator or others as one work.” Webster’s Third New International Dictionary 1944, 2545 (1976). The massive whole of the Database is not recognizable as a new version of its every small part.
Alternatively, one could view the Articles in the Databases “as part of” no larger work at all, but simply as individual articles presented individually. That each article bears marks of its origin in a particular periodical (less vivid marks in NEXIS and NYTO, more vivid marks in GPO) suggests the article was previously part of that periodical. But the markings do not mean the article is currently reproduced or distributed as part of the periodical. The Databases’ reproduction and distribution of individual Articles — simply as individual Articles — would invade the core of the Authors’ exclusive rights under § 106.
The Publishers press an analogy between the Databases, on the one hand, and microfilm and microfiche, on the other. We find the analogy wanting. Microforms typically contain continuous photographic reproductions of a periodical in the medium of miniaturized film. Accordingly, articles appear on the microforms, writ very small, in precisely the position in which the articles appeared in the newspaper. The Times, for example, printed the beginning of Blakely’s “Remembering Jane” Article on page 26 of the Magazine in the September 23, 1990, edition; the microfilm version of the Times reproduces that same Article on film in the very same position, within a film reproduction of the entire Magazine, in turn within a reproduction of the entire September 23, 1990, edition. True, the microfilm roll contains multiple editions, and the microfilm user can adjust the machine lens to focus only on the Article, to the exclusion of surrounding material. Nonetheless, the user first encounters the Article in context. In the Databases, by contrast, the Articles appear disconnected from their original context. In NEXIS and NYTO, the user sees the “Jane” Article apart even from the remainder of page 26. In GPO, the user sees the Article within the context of page 26, but clear of the context of page 25 or page 27, the rest of the Magazine, or the remainder of the day’s newspaper. In short, unlike microforms, the Databases do not perceptibly reproduce articles as part of the collective work to which the author contributed or as part of any “revision” thereof.
Invoking the concept of “media neutrality,” the Publishers urge that the “transfer of a work between media” does not “alte[r] the character of” that work for copyright purposes. Brief for Petitioners 23. That is indeed true. See 17 U. S. C. § 102(a) (copyright protection subsists in original works “fixed in any tangible medium of expression”). But unlike the conversion of newsprint to microfilm, the transfer of articles to the Databases does not represent a mere conversion of intact periodicals (or revisions of periodicals) from one medium to another. The Databases offer users individual articles, not intact periodicals. In this case, media neutrality should protect the Authors’ rights in the individual Articles to the extent those Articles are now presented individually, outside the collective work context, within the Databases’ new media.
For the purpose at hand — determining whether the Authors’ copyrights have been infringed — an analogy to an imaginary library may be instructive. Rather than maintaining intact editions of periodicals, the library would contain separate copies of each article. Perhaps these copies would exactly reproduce the periodical pages from which the articles derive (if the model is GPO); perhaps the copies would contain only typescript characters, but still indicate the original periodical’s name and date, as well as the article’s headline and page number (if the model is NEXIS or NYTO). The library would store the folders containing the articles in a file room, indexed based on diverse criteria, and containing articles from vast numbers of editions. In response to patron requests, an inhumanly speedy librarian would search the room and provide copies of the articles matching patron-specified criteria.
Viewing this strange library, one could not, consistent with ordinary English usage, characterize the articles “as part of” a “revision” of the editions in which the articles first appeared. In substance, however, the Databases differ from the file room only to the extent they aggregate articles in electronic packages (the LEXIS/NEXIS central discs or UMI CD-ROMs), while the file room stores articles in spatially separate files. The crucial fact is that the Databases, like the hypothetical library, store and retrieve articles separately within a vast domain of diverse texts. Such a storage and retrieval system effectively overrides the Authors’ ex-elusive right to control the individual reproduction and distribution of each Article, 17 U. S. C. §§ 106(1), (3). Cf. Ryan v. Carl Corp., 23 F. Supp. 2d 1146 (ND Cal. 1998) (holding copy shop in violation of § 201(c)).
The Publishers claim the protection of § 201(c) because users can manipulate the Databases to generate search results consisting entirely of articles from a particular periodical edition. By this logic, § 201(c) would cover the hypothetical library if, in response to a request, that library’s expert staff assembled all of the articles from a particular periodical edition. However, the fact that a third party can manipulate a database to produce a noninfringing document does not mean the database is not infringing. Under § 201(c), the question is not whether a user can generate a revision of a collective work from a database, but whether the database itself perceptibly presents the author’s contribution as part of a revision of the collective work. That result is not accomplished by these Databases.
The Publishers finally invoke Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417 (1984). That decision, however, does not genuinely aid their argument. Sony held that the “sale of copying equipment” does not constitute contributory infringement if the equipment is “capable of substantial noninfringing uses.” Id., at 442. The Publishers suggest that their Databases could be liable only under a theory of contributory infringement, based on end-user conduct, which the Authors did not plead. The Electronic Publishers, however, are not merely selling “equipment”; they are selling copies of the Articles. And, as we have explained, it is the copies themselves, without any manipulation by users, that fall outside the scope of the § 201(c) privilege.
IV
The Publishers warn that a ruling for the Authors will have “devastating” consequences. Brief for Petitioners 49. The Databases, the Publishers note, provide easy access to complete newspaper texts going back decades. A ruling for the Authors, the Publishers suggest, will punch gaping holes in the electronic record of history. The Publishers’ concerns are echoed by several historians, see Brief for Ken Burns et al. as Amici Curiae, but discounted by several other historians, see Brief for Ellen Schrecker et al. as Amici Curiae; Brief for Authors’ Guild, Inc., Jacques Barzun et al. as Amici Curiae.
Notwithstanding the dire predictions from some quarters, see also post, at 520 (Stevens, J., dissenting), it hardly follows from today’s decision that an injunction against the inclusion of these Articles in the Databases (much less all freelance articles in any databases) must issue. See 17 U. S. C. § 502(a) (court “may” enjoin infringement); Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569, 578, n. 10 (1994) (goals of copyright law are “not always best served by automatically granting injunctive relief”). The parties (Authors and Publishers) may enter into an agreement allowing continued electronic reproduction of the Authors’ works; they, and if necessary the courts and Congress, may draw on numerous models for distributing copyrighted works and remunerating authors for their distribution. See, e. g., 17 U. S. C. § 118(b); Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U. S. 1, 4-6, 10-12 (1979) (recounting history of blanket music licensing regimes and consent decrees governing their operation). In any event, speculation about future harms is no basis for this Court to shrink authorial rights Congress established in § 201(c). Agreeing with the Court of Appeals that the Publishers are liable for infringement, we leave remedial issues open for initial airing and decision in the District Court.
* * *
We conclude that the Electronic Publishers infringed the Authors’ copyrights by reproducing and distributing the Articles in a manner not authorized by the Authors and not privileged by § 201(c). We further conclude that the Print Publishers infringed the Authors’ copyrights by authorizing the Electronic Publishers to place the Articles in the Databases and by aiding the Electronic Publishers in that endeavor. We therefore affirm the judgment of the Court of Appeals.
It is so ordered.
In the District Court, Newsday and Time contended that the freelancers who wrote for their publications had entered into agreements authorizing reproduction of the Articles in the databases. The Court of Appeals ruled that Newsday’s defense was waived, and rejected Time’s argument on the merits. Neither petitioner presses the contention here.
For example, the GPO user who retrieves Blakely’s “Remembering Jane” article will see the entirety of Magazine page 26, where the article begins, and Magazine page 78, where the article continues and ends. The NYTO user who retrieves Blakely’s article will see only the text of the article and its identifying information (author, headline, publication, page number, etc.). Neither the GPO retrieval nor the NYTO retrieval produces any text on page 27, page 79, or any other page. The user who wishes to see other pages may not simply “flip” to them. She must conduct a new search.
Two Registers of Copyrights have observed that the 1976 revision of the Copyright Act represented “a break with a two-hundred-year-old tradition that has identified copyright more closely with the publisher than with the author.” Letter from M. Peters to Rep. McGovern, reprinted in 147 Cong. Rec. E182 (Feb. 14, 2001) (hereinafter Peters Letter) (quoting Ringer, First Thoughts on the Copyright Act of 1976, 22 N. Y. L. S. L. Rev. 477, 490 (1977)). The intent to enhance the author’s position vis-á-vis the patron is also evident in the 1976 Act’s work-for-hire provisions. See Community for Creative Non-Violence v. Reid, 490 U. S. 730, 742-750 (1989); see also 17 U. S. C. § 203(a)(5) (inalienable authorial right to revoke a copyright transfer). Congress’ adjustment of the author/publisher balance is a permissible expression of the “economic philosophy behind the [Copyright Clause],” i. e., “the conviction that encouragement of individual effort [motivated] by personal gain is the best way to advance public welfare.” Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U. S. 539, 558 (1985) (quoting Mazer v. Stein, 347 U. S. 201, 219 (1954)).
As amended, § 106 now provides: “Subject to sections 107 through 121, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
“(1) to reproduce the copyrighted work in copies or phonorecords;
“(2) to prepare derivative works based upon the copyrighted work;
“(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
“(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
“(5) in the case of literary, musical, dramatic, and choreographic' works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
“(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.”
It bears repetition here, see supra, at 493, that we neither decide nor express any view on whether the § 201(c) “privilege” may be transferred.
The dissenting opinion suggests that a ruling for the Publishers today would maintain, even enhance, authors’ “valuable copyright protection.” Post, at 521 (opinion of Stevens, J.). We are not so certain. When the reader of an article in a periodical wishes to obtain other works by the article’s author, the Databases enable that reader simply to print out the author’s articles, without buying a “new anthology ... or other collective work,” H. R. Rep. 122-123. In years past, books compiling stories by journalists such as Janet Flanner and Ernie Pyle might have sold less well had the individual articles been freely and permanently available on line. In the present, print collections of reviews, commentaries, and reportage may prove less popular because of the Databases. The Register of Copyrights reports that “freelance authors have experienced significant economic loss” due to a “digital revolution that has given publishers [new] opportunities to exploit authors’ works.” Peters Letter E182.
More to the point, even if the dissent is correct that some authors, in the long run, are helped, not hurt, by Database reproductions, the fact remains that the Authors who brought the case now before us have asserted their rights under § 201(c). We may not invoke our conception of their interests to diminish those rights.
The Publishers do not claim that the Articles are “work[s] made for hire.” 17 U. S. C. §201(b). As to such works, the employer or person for whom a work was prepared is treated as the author. Ibid. The Print Publishers, however, neither engaged the Authors to write the Articles as “employee[s]” nor “commissioned” the Articles through “a written instrument signed by [both parties]” indicating that the Articles shall be considered “work[s] made for hire.” § 101 (1994 ed., Supp. V) (defining “work made for hire”).
Satisfied that the Publishers exercised rights § 106 initially assigns exclusively to the Author, we need resolve no more on that score. Thus, we do not reach an issue the Register of Copyrights has argued vigorously. The Register maintains that the Databases publicly “display” the Articles, § 106(5); because § 201(c) does not privilege “display,” the Register urges, the § 201(c) privilege does not shield the Databases. See Peters Letter E182-E183.
The dissenting opinion takes as its starting point “what is sent from the New York Times to the Electronic Databases.” See post, at 512-516. This case, however, is not ultimately about what is sent between Publishers in an intermediate step of Database production; it is about what is presented to the general public in the Databases. See supra, at 499-500. Those Databases simply cannot bear characterization as a “revision” of any one periodical edition. We would reach the same conclusion if the Times sent intact newspapers to the Electronic Publishers.
The Court of Appeals concluded NEXIS was infringing partly because that Database did “almost nothing to preserve the copyrightable aspects of the [Print] Publishers’ collective works,” i. e., their original “selection, coordination, and arrangement.” 206 F. 3d 161, 168 (CA2 1999). We do not pass on this issue. It suffices to hold that the Databases do not contain “revisions” of the Print Publishers’ works “as part of” which the Articles are reproduced and distributed.
The dissenting opinion apparently concludes that, under the banner of “media neutrality,” a copy of a collective work, even when considerably changed, must constitute a “revision” of that collective work so long as the changes were “necessitated by the . .. medium.” Post, at 514. We lack the dissent’s confidence that the current form of the Databases is entirely attributable to the nature of the electronic media, rather than the nature of the economic market served by the Databases. In any case, we see no grounding in § 201(c) for a “medium-driven” necessity defense, post, at 514, n. 11, to the Authors’ infringement claims. Furthermore, it bears reminder here and throughout that these Publishers and all others can protect their interests by private contractual arrangement.
The Publishers have frequently referred to their products as “electronic libraries.” We need not decide whether the Databases come within the legal coverage of the term “libraries” as used in the Copyright Act. For even if the Databases are “libraries,” the Copyright Act’s special authorizations for libraries do not cover the Databases’ reproductions. See, e. g., 17 U. S. C. § 108(a)(1) (reproduction authorized “without any purpose of direct or indirect commercial advantage”); § 108(b) (1994 ed., Supp. V) (reproduction authorized “solely for purposes of preservation and security or for deposit for research use”); § 108(c) (1994 ed., Supp. V) (reproduction “solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete”).
Courts in other nations, applying their domestic copyright laws, have also concluded that Internet or CD-ROM reproduction and distribution of freelancers’ works violate the copyrights of freelancers. See, e. g., Union Syndicate des Journalistes Frangais v. SDV Plurimédia (T. G. I., Strasbourg, Fr., Feb. 3, 1998), in Lodging of International Federation of Journalists (IFJ) as Amicus Curiae; S. C. R. L. Central Station v. Association Generate des Journalistes Professionnels de Belgique (CA, Brussels, Belg., 9e ch., Oct. 28, 1997), transí, and ed. in 22 Colum.-VLA J. L. & Arts 195 (1998); Heg v. De Volskrant B. V. (Dist. Ct., Amsterdam, Neth., Sept. 24, 1997), transl. and ed. in 22 Colum.-VLA J. L. & Arts, at 181. After the French Plurimedia decision, the journalists’ union and the newspaper-defendant entered into an agreement compensating authors for the continued electronic reproduction of their works. See FRS v. Syndicats de Journalistes (CA, Colmar, Sept. 15, 1998), in Lodging of IFJ as Amicus Curiae. In Norway, it has been reported, a similar agreement was reached. See Brief for IFJ as Amicus Curiae 18. | What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations | What is the ideological direction of the decision reviewed by the Supreme Court? | [
"Conservative",
"Liberal",
"Unspecifiable"
] | [
1
] | sc_lcdispositiondirection |
UNITED STATES v. RODGERS
No. 83-620.
Argued March 27, 1984
Decided April 30, 1984
Rehnquist, J., delivered the opinion for a unanimous Court.
Barbara E. Etkind argued the cause for the United States. With her on the briefs were Solicitor General Lee, Assistant Attorney General Trott, Deputy Solicitor General Frey, and JoelM. Gershowitz.
Albert N. Moskowitz, by appointment of the Court, 464 U. S. 1067, argued the cause for respondent. With him on the brief was Raymond C. Conrad, Jr.
Justice Rehnquist
delivered the opinion of the Court.
Respondent Larry Rodgers was charged in a two-count indictment with making “false, fictitious or fraudulent statements” to the Federal Bureau of Investigation (FBI) and the United States Secret Service, in violation of 18 U. S. C. § 1001. Rodgers allegedly lied in telling the FBI that his wife had been kidnaped and in telling the Secret Service that his wife was involved in a plot to kill the President. Rodgers moved to dismiss the indictment for failure to state an offense on the grounds that the investigation of kidnapings and the protection of the President are not matters “within the jurisdiction” of the respective agencies, as that phrase is used in § 1001. The District Court for the Western District of Missouri granted the motion, and the United States Court of Appeals for the Eighth Circuit affirmed. We now reverse. The statutory language clearly encompasses criminal investigations conducted by the FBI and the Secret Service, and nothing in the legislative history indicates that Congress intended a more restricted reach for the statute.
On June 2, 1982, Larry Rodgers telephoned the Kansas City, Missouri, office of the FBI and reported that his wife had been kidnaped. The FBI spent over 100 agent hours investigating the alleged kidnaping only to determine that Rodgers’ wife had left him voluntarily. Two weeks later, Rodgers contacted the Kansas City office of the Secret Service and reported that his “estranged girlfriend” (actually his wife) was involved in a plot to assassinate the President. The Secret Service spent over 150 hours of agent and clerical time investigating this threat and eventually located Rodgers’ wife in Arizona. She stated that she left Kansas City to get away from her husband. Rodgers later confessed that he made the false reports to induce the federal agencies to locate his wife.
In granting Rodgers’ motion to dismiss the indictment, the District Court considered itself bound by a prior decision of the Eighth Circuit in Friedman v. United States, 374 F. 2d 363 (1967). Friedman also involved false statements made to the FBI to initiate a criminal investigation. In that case, the Court of Appeals reversed the defendant’s conviction under § 1001, holding that the phrase “within the jurisdiction,” as used in that provision, referred only to “the power to make final or binding determinations.” Id., at 367.
The Friedman court noted that the current statutory language was first passed in 1934 at the urging of some of the newly created regulatory agencies. See S. Rep. No. 1202, 73d Cong., 2d Sess. (1934). A predecessor provision punished false statements only when made “for the purpose and with the intent of cheating and swindling or defrauding the Government of the United States.” Act of Oct. 23, 1918, ch. 194, 40 Stat. 1015. In 1934, Congress deleted the requirement of a specific purpose and enlarged the class of punishable false statements to include false statements made “in any matter within the jurisdiction of any department or agency of the United States.” Act of June 18,1934, ch. 587, 48 Stat. 996. The “immediate and primary purpose” of this amendment, the Eighth Circuit surmised, was to curtail the flow of false information to the new agencies, which was interfering with their administrative and regulatory functions.
“Though the statute was drafted in broad inclusive terms, presumably due to the numerous agencies and the wide variety of information needed, there is nothing to indicate that Congress intended this statute to have application beyond the purposes for which it was created.” 374 F. 2d, at 366.
Reading the term “jurisdiction” in this restrictive light, the Court of Appeals included within its scope the “power to make monetary awards, grant governmental privileges, or promulgate binding administrative and regulative determinations,” while excluding “the mere authority to conduct an investigation in a given area without the power to dispose of the problems or compel action.” Id., at 367. The court concluded that false statements made to the FBI were not covered by § 1001 because the FBI “had no power to adjudicate rights, establish binding regulations, compel the action or finally dispose of the problem giving rise to the inquiry.” Id., at 368.
In the present case, the Court of Appeals adhered to its decision in Friedman and affirmed the dismissal of the indictment. The court acknowledged that two other Courts of Appeals had expressly rejected the reasoning of Friedman. See United States v. Adler, 380 F. 2d 917, 922 (CA2), cert. denied, 389 U. S. 1006 (1967); United States v. Lambert, 501 F. 2d 943, 946 (CA5 1974) (en banc). But the Eighth Circuit found its own analysis more persuasive. We granted certio-rari to resolve this conflict. 464 U. S. 1007 (1983).
It seems to us that the interpretation of § 1001 adopted by the Court of Appeals for the Eighth Circuit is unduly strained. Section 1001 expressly embraces false statements made “in any matter within the jurisdiction of any department or agency of the United States.” (Emphasis supplied.) A criminal investigation surely falls within the meaning of “any matter,” and the FBI and the Secret Service equally surely qualify as “department[s] or agencies] of the United States.” The only possible verbal vehicle for narrowing the sweeping language Congress enacted is the word “jurisdiction.” But we do not think that that term, as used in this statute, admits of the constricted construction given it by the Court of Appeals.
“Jurisdiction” is not defined in the statute. We therefore “start with the assumption that the legislative purpose is expressed by the ordinary meaning of the words used.” Richards v. United States, 369 U. S. 1, 9 (1962). The most natural, nontechnical reading of the statutory language is that it covers all matters confided to the authority of an agency or department. Thus, Webster’s Third New International Dictionary 1227 (1976) broadly defines “jurisdiction” as, among other things, “the limits or territory within which any particular power may be exercised: sphere of authority.” A department or agency has jurisdiction, in this sense, when it has the power to exercise authority in a particular situation. See United States v. Adler, supra, at 922 (“the word ‘jurisdiction’ as used in the statute must mean simply the power to act upon information when it is received”). Understood in this way, the phrase “within the jurisdiction” merely differentiates the official, authorized fimctions of an agency or department from matters peripheral to the business of that body.
There are of course narrower, more technical meanings of the term “jurisdiction.” For example, an alternative definition provided by Webster’s is the “legal power to interpret and administer the law.” See also Black’s Law Dictionary 766 (5th ed. 1979). But a narrow, technical definition of this sort, limiting the statute’s protections to judicial or quasi-judicial activities, clashes strongly with the sweeping, everyday language on either side of the term. It is also far too restricted to embrace some of the myriad governmental activities that we have previously concluded §1001 was designed to protect. See, e. g., Bryson v. United States, 396 U. S. 64 (1969) (affidavit filed by union officer with National Labor Relations Board falsely denying affiliation with Communist Party); United States v. Bramblett, 348 U. S. 503 (1955) (fraudulent representations by Member of Congress to Disbursing Office of House of Representatives); United States v. Gilliland, 312 U. S. 86 (1941) (false reports filed with Secretary of Interior on amount of petroleum produced from certain wells).
In all our prior cases interpreting this statutory language we have stressed that “the term ‘jurisdiction’ should not be given a narrow or technical meaning for purposes of § 1001.” Bryson v. United States, supra, at 70 (citing United States v. Adler, supra). For example, in United States v. Gilliland, supra, at 91, we rejected a defendant’s contention that the reach of the statute was confined “to matters in which the Government has some financial or proprietary interest.” We noted that the 1934 amendment, which added the current statutory language, was not limited by any specific set of circumstances that may have precipitated its passage.
“The amendment indicated the congressional intent to protect the authorized functions of governmental departments and agencies from the perversion which might result from the deceptive practices described. We see no reason why this apparent intention should be frustrated by construction.” 312 U. S., at 93.
Discussing the same amendment in United States v. Bramblett, supra, at 507, we concluded: “There is no indication in either the committee reports or in the congressional debates that the scope of the statute was to be in any way restricted.” And in Bryson v. United States, supra, at 70-71, we noted the “valid legislative interest in protecting the integrity of official inquiries” and held that a “statutory basis for an agency’s request for information provides jurisdiction enough to punish fraudulent statements under §1001.”
There is no doubt that there exists a “statutory basis” for the authority of the FBI and the Secret Service over the investigations sparked by respondent Rodgers’ false reports. The FBI is authorized “to detect and prosecute crimes against the United States,” including kidnaping. 28 U. S. C. §533(1). And the Secret Service is authorized “to protect the person of the President.” 18 U. S. C. §3056. It is a perversion of these authorized functions to turn either agency into a Missing Person’s Bureau for domestic squabbles. The knowing filing of a false crime report, leading to an investigation and possible prosecution, can also have grave consequences for the individuals accused of crime. See United States v. Adler, 380 F. 2d, at 922; Friedman v. United States, 374 F. 2d, at 377 (Register, J., dissenting). There is, therefore, a “valid legislative interest in protecting the integrity of [such] official inquiries,” an interest clearly embraced in, and furthered by, the broad language of § 1001.
Limiting the term “jurisdiction” as used in this statute to “the power to make final or binding determinations,” as the Court of Appeals thought it should be limited, would exclude from the coverage of the statute most, if not all, of the authorized activities of many “departments” and “agencies” of the Federal Government, and thereby defeat the purpose of Congress in using the broad inclusive language which it did. If the statute referred only to courts, a narrower construction of the word “jurisdiction” might well be indicated; but referring as it does to “any department or agency” we think that such a narrow construction is simply inconsistent with the rest of the statutory language.
The Court of Appeals supported its failure to give the statute a “literal interpretation” by offering several policy arguments in favor of a more limited construction. For example, the court noted that § 1001 carries a penalty exceeding the penalty for perjury and argued that Congress could not have “considered it more serious for one to informally volunteer an untrue statement to an F. B. I. agent than to relate the same story under oath before a court of law.” Friedman v. United States, supra, at 366. A similar argument was made and rejected in United States v. Gilliland, 312 U. S., at 95. The fact that the maximum possible penalty under § 1001 marginally exceeds that for perjury provides no indication of the particular penalties, within the permitted range, that Congress thought appropriate for each of the myriad violations covered by the statute. Section 1001 covers “a variety of offenses and the penalties prescribed were maximum penalties which gave a range for judicial sentences according to the circumstances and gravity of particular violations.” Ibid.
Perhaps most influential in the reasoning of the court below was its perception that “the spectre of criminal prosecution” would make citizens hesitant to report suspected crimes and thereby thwart “the important social policy that is served by an open line of communication between the general public and law enforcement agencies.” Friedman v. United States, supra, at 369. But the justification for this concern is debatable. Section 1001 only applies to those who “knowingly and willfully” lie to the Government. It seems likely that “individuals acting innocently and in good faith, will not be deterred from voluntarily giving information or making complaints to the F. B. I.” United States v. Adler, supra, at 922. See also United States v. Lambert, 501 F. 2d, at 946; Friedman v. United States, supra, at 377 (Register, J., dissenting).
Even if we were more persuaded than we are by these policy arguments, the result in this case would be unchanged. Resolution of the pros and cons of whether a statute should sweep broadly or narrowly is for Congress. Its decision that the perversion of agency resources and the potential harm to those implicated by false reports of crime justifies punishing those who “knowingly and willfully” make such reports is not so “absurd or glaringly unjust,” Sorrells v. United States, 287 U. S. 435, 450 (1932), as to lead us to question whether Congress actually intended what the plain language of § 1001 so clearly imports.
Finally, respondent urges that the rule of lenity in construing criminal statutes should be applied to § 1001, and that because the Friedman case has been on the books in the Eighth Circuit for a number of years a contrary decision by this Court should not be applied retroactively to him. The rule of lenity is of course a well-recognized principle of statutory construction, see, e. g., Williams v. United States, 458 U. S. 279, 290 (1982), but the critical statutory language of § 1001 is not sufficiently ambiguous, in our view, to permit the rule to be controlling here. See United States v. Bramblett, 348 U. S., at 509-510. And any argument by respondent against retroactive application to him of our present decision, even if he could establish reliance upon the earlier Friedman decision, would be unavailing since the existence of conflicting cases from other Courts of Appeals made review of that issue by this Court and decision against the position of the respondent reasonably foreseeable.
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Title 18 U. S. C. § 1001 provides:
“Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.”
Both respondent and the court below attempt to distinguish Bryson on the ground that the NLRB, unlike the FBI or the Secret Service, “is an agency with the power to adjudicate rights and establish regulations. . . App. to Pet. for Cert. 4a. See Brief for Respondent 16. But it is undisputed that in the matter at issue in Bryson, the NLRB was neither adjudicating rights nor establishing regulations. It was conducting an “official inquiry” or investigation, just as the FBI and the Secret Service were doing in the instant case. Unless one is simply to read the phrase “any department or agency of the United States” out of the statute, there is no justification for treating the investigatory activities of one agency as within the scope of § 1001 while excluding the same activities performed by another agency.
In fact, the only difference between the two penalties lies in the maximum possible fine. Title 18 U. S. C. § 1621 sets the general penalty for peijury at a fine of not more than $2,000 or imprisonment for not more than five years, or both. Section 1001 provides a fine of not more than $10,000 or imprisonment for not more than five years, or both. Congress has also provided a penalty identical to that of § 1001 for the more specific crime of peijury “in any proceedings before . . . any court or grand jury of the United States.” 18 U. S. C. § 1623(a).
The Eighth Circuit also expressed concern that a literal application of the statute would obviate the taking of oaths in judicial proceedings. “Since the Judiciary is an agency of the United States Government, a strict application of this statute would remove the time-honored and now necessary formality of requiring witnesses to testify under oath.” Friedman v. United States, 374 F. 2d, at 367. Several courts faced with that question have in fact held that § 1001 does not reach false statements made under oath in a court of law. See, e. g., United States v. Abrahams, 604 F. 2d 386 (CA5 1979); United States v. D’Amato, 507 F. 2d 26 (CA2 1974) (holding limited to private civil actions); United States v. Erhardt, 381 F. 2d 173 (CA6 1967) (per curiam). But they have mostly relied, not on a restricted construction of the term “jurisdiction,” but rather on the phrase “department or agency.” These courts have held that, although the federal judiciary is a “department or agency” within the meaning of § 1001 with respect to its housekeeping or administrative functions, the judicial proceedings themselves do not so qualify. Abrahams, supra, at 392-393; Erhardt, supra, at 175. See also Morgan v. United States, 114 U. S. App. D. C. 13, 16, 309 F. 2d 234, 237, cert. denied, 373 U. S. 917 (1962). We express no opinion on the validily of this line of cases. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari. | What reason, if any, does the court give for granting the petition for certiorari? | [
"case did not arise on cert or cert not granted",
"federal court conflict",
"federal court conflict and to resolve important or significant question",
"putative conflict",
"conflict between federal court and state court",
"state court conflict",
"federal court confusion or uncertainty",
"state court confusion or uncertainty",
"federal court and state court confusion or uncertainty",
"to resolve important or significant question",
"to resolve question presented",
"no reason given",
"other reason"
] | [
1
] | sc_certreason |
C & A CARBONE, INC., et al. v. TOWN OF CLARKSTOWN, NEW YORK
No. 92-1402.
Argued December 7, 1993
Decided May 16, 1994
Kennedy, J., delivered the opinion of the Court, in which Stevens, Scalia, Thomas, and Ginsbukg, JJ., joined. O’Connor, J., filed an opinion concurring in the judgment, post, p. 401. Souter, J., filed a dissenting opinion, in which Rehnquist, C. J., and Blackmun, J., joined, post, p. 410.
Betty Jo Christian argued the cause for petitioners. With her on the briefs were Paul J. Ondrasik, Jr., David Silverman, Kenneth Resnik, and Charles G. Cole.
William C. Brashares argued the cause for respondent. With him on the brief were Murray N. Jacobson and Richard A. Glickel
Briefs of amici curiae urging reversal were filed for Incorporated Villages of Westbury, Mineóla, and New Hyde Park et al. by Lawrence W. Boes, Jerome F. Matedero, John M. Spellman, and Donna M. C. Giliberto; for the Chemical Manufacturers Association et al. by Theodore L. Garrett; and for the National Solid Wastes Management Association by Bruce L. Thall and Bruce J. Parker.
Briefs of amici curiae urging affirmance were filed for the State of New Jersey by Robert J. Del Tufo, Attorney General, Mary C. Jacobson, Assistant Attorney General, and Carla Vivian Bello, Senior Deputy Attorney General; for the State of Ohio et al. by Lee Fisher, Attorney General, and Susan E. Ashbrook and Bryan F. Zima, Assistant Attorneys General; and by the Attorneys General and other officials for their respective jurisdictions as follows: Charles E. Cole, Attorney General of Alaska, Grant Woods, Attorney General of Arizona, Richard Blurmnthal, Attorney General of Connecticut, Charles M. Oberly III, Attorney General of Delaware, Robert A. Butterworth, Attorney General of Florida, Robert A. Marks, Attorney General of Hawaii, Roland W Burris, Attorney General of Illinois, Pamela Carter, Attorney General of Indiana, Bonnie J. Campbell, Attorney General of Iowa, Michael E. Carpenter, Attorney General of Maine, Scott Harshbarger, Attorney General of Massachusetts, Frank J. Kelley, Attorney General of Michigan, Hubert H. Humphrey III, Attorney Genera] of Minnesota, and Beverly Connerton and Stephen Shakman, Assistant Attorneys General, Joseph P. Mazurek, Attorney General of Montana, Michael F. Easley, Attorney General of North Carolina, Theodore R. Kulongoski, Attorney General of Oregon, Ernest D. Preate, Jr., Attorney General of Pennsylvania, Pedro R. Pierluisi, Attorney General of Puerto Rico, T. Travis Medlock, Attorney General of South Carolina, Stephen D. Rosenthal, Attorney General of Virginia, and James E. Doyle, Attorney General of Wisconsin; for the State of New York et al. by Robert Abrams, Attorney General, Jerry Boone, Solicitor General, Andrea Green, Deputy Solicitor General, John J. Sipos and Gordon J. Johnson, Assistant Attorneys General, O. Peter Sherwood, Leonard J. Koemer, and Martin Gold; for Prince George’s County, Maryland, et al. by Lewis A. Noonberg, Charles W. Thompson, Jr., and Michael P. Whalen; for Rockland County, New York, by Han S. Schoenberger, for the County of San Diego, California, by Lloyd M. Harmon, Jr., Diane Bardsley, Scott H. Peters, W. Cullen MacDonald, Eric S. Petersen, and Jerome A. Barron; for the City of Indianapolis, Indiana, et al. by Scott M. DuBoff, Pamela K. Akin, Felshaw King, Mary Anne Wood, Michael F. X. Gillin, John D. Pirich, David P. Bobzien, Robert C. Cannon, and Patrick T. Boulden; for the City of Springfield, Missouri, by Stuart H. Newberger, Jeffrey H. How ard, and Clifton S. Elgarten; for the Town of Smithtown, New York, et al. by W. Cullen MacDonald, Richard L. Sigal, Eric S. Petersen, and Jon A. Gerber; for the Solid Waste Disposal Authority of the city of Huntsville, Alabama, by Charles H. Younger; for the Clarendon Foundation by Ronald D. Maines; for the National Association of Bond Lawyers by C. Baird Brown, Robert B. McKinstry, Jr., and Brendan K. Collins; for the National Association of Counties et al. by Richard Ruda; for Ogden Projects, Inc., by Robert C. Bernius and Jeffrey R. Horowitz; and for the Solid Waste Association of North America et al. by Barry S. Shanoff, B. Richard Marsh, and Robert D. Thorington.
Justice Kennedy
delivered the opinion of the Court.
As solid waste output continues apace and landfill capacity becomes more costly and scarce, state and local governments are expending significant resources to develop trash control systems that are efficient, lawful, and protective of the environment. The difficulty of their task is evident from the number of recent cases that we have heard involving waste transfer and treatment. See Philadelphia v. New Jersey, 437 U. S. 617 (1978); Chemical Waste Management, Inc. v. Hunt, 504 U. S. 334 (1992); Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept, of Natural Resources, 504 U. S. 353 (1992); Oregon Waste Systems, Inc. v. Department of Environmental Quality of Ore., ante, p. 93. The case decided today, while perhaps a small new chapter in that course of decisions, rests nevertheless upon well-settled principles of our Commerce Clause jurisprudence.
We consider a so-called flow control ordinance, which requires all solid waste to be processed at a designated transfer station before leaving the municipality. The avowed purpose of the ordinance is to retain the processing fees charged at the transfer station to amortize the cost of the facility. Because it attains this goal by depriving competitors, including out-of-state firms, of access to a local market, we hold that the flow control ordinance violates the Commerce Clause.
The town of Clarkstown, New York, lies in the lower Hudson River Valley, just upstream from the Tappan Zee Bridge and by highway minutes from New Jersey. Within the town limits are the village of Nyack and the hamlet of West Nyack. In August 1989, Clarkstown entered into a consent decree with the New York State Department of Environmental Conservation. The town agreed to close its landfill located on Route 303 in West Nyack and build a new solid waste transfer station on the same site. The station would receive bulk solid waste and separate recyclable from nonrecyclable items. Recyclable waste would be baled for shipment to a recycling facility; nonrecyclable waste, to a suitable landfill or incinerator.
The cost of building the transfer station was estimated at $1.4 million. A local private contractor agreed to construct the facility and operate it for five years, after which the town would buy it for $1. During those five years, the town guaranteed a minimum waste flow of 120,000 tons per year, for which the contractor could charge the hauler a so-called tipping fee of $81 per ton. If the station received less than 120,000 tons in a year, the town promised to make up the tipping fee deficit. The object of this arrangement was to amortize the cost of the transfer station: The town would finance its new facility with the income generated by the tipping fees.
The problem, of course, was how to meet the yearly guarantee. This difficulty was compounded by the fact that the tipping fee of $81 per ton exceeded the disposal cost of unsorted solid waste on the private market. The solution the town adopted was the flow control ordinance here in question, Local Laws 1990, No. 9 of the Town of Clarkstown (full text in Appendix). The ordinance requires all nonhazardous solid waste within the town to be deposited at the Route 303 transfer station. Id., §3.C (waste generated within the town), § 5.A (waste generated outside and brought in). Noncompliance is punishable by as much as a $1,000 fine and up to 15 days in jail. § 7.
The petitioners in this case are C & A Carbone, Inc., a company engaged in the processing of solid waste, and various related companies or persons, all of whom we designate Carbone. Carbone operates a recycling center in Clarkstown, where it receives bulk solid waste, sorts and bales it, and then ships it to other processing facilities — much as occurs at the town’s new transfer station. While the flow control ordinance permits recyclers like Carbone to continue receiving solid waste, §3.C, it requires them to bring the nonrecyclable residue from that waste to the Route 303 station. It thus forbids Carbone to ship the nonrecyclable waste itself, and it requires Carbone to pay a tipping fee on trash that Carbone has already sorted.
In March 1991, a tractor-trailer containing 23 bales of solid waste struck an overpass on the Palisades Interstate Parkway. When the police investigated the accident, they discovered the truck was carrying household waste from Carbone’s Clarkstown plant to an Indiana landfill. The Clarkstown police put Carbone’s plant under surveillance and in the next few days seized six more tractor-trailers leaving the facility. The trucks also contained nonrecyclable waste, originating both within and without the town, and destined for disposal sites in Illinois, Indiana, West Virginia, and Florida.
The town of Clarkstown sued Carbone in New York Supreme Court, Rockland County, seeking an injunction requiring Carbone to ship all nonrecyclable waste to the Route 303 transfer station. Carbone responded by suing in United States District Court to enjoin the flow control ordinance. On July 11, the federal court granted Carbone’s injunction, finding a sufficient likelihood that the ordinance violated the Commerce Clause of the United States Constitution. C. & A. Carbone, Inc. v. Clarkstown, 770 F. Supp. 848 (SDNY 1991).
Four days later, the New York court granted summary judgment to respondent. The court declared the flow control ordinance constitutional and enjoined Carbone to comply with it. The federal court then dissolved its injunction.
The Appellate Division affirmed. 182 App. Div. 2d 213, 587 N. Y. S. 2d 681 (2d Dept. 1992). The court found that the ordinance did not discriminate against interstate commerce because it “applies evenhandedly to all solid waste processed within the Town, regardless of point of origin.” Id., at 222, 587 N. Y. S. 2d, at 686. The New York Court of Appeals denied Carbone’s motion for leave to appeal. 80 N. Y. 2d 760, 605 N. E. 2d 874 (1992). We granted certiorari, 508 U. S. 938 (1993), and now reverse.
At the outset we confirm that the flow control ordinance does regulate interstate commerce, despite the town’s position to the contrary. The town says that its ordinance reaches only waste within its jurisdiction and is in practical effect a quarantine: It prevents garbage from entering the stream of interstate commerce until it is made safe. This reasoning is premised, however, on an outdated and mistaken concept of what constitutes interstate commerce.
While the immediate effect of the ordinance is to direct local transport of solid waste to a designated site within the local jurisdiction, its economic effects are interstate in reach. The Carbone facility in Clarkstown receives and processes waste from places other than Clarkstown, including from out of State. By requiring Carbone to send the nonrecyclable portion of this waste to the Route 303 transfer station at an additional cost, the flow control ordinance drives up the cost for out-of-state interests to dispose of their solid waste. Furthermore, even as to waste originant in Clarkstown, the ordinance prevents everyone except the favored local operator from performing the initial processing step. The ordinance thus deprives out-of-state businesses of access to a local market. These economic effects are more than enough to bring the Clarkstown ordinance within the purview of the Commerce Clause. It is well settled that actions are within the domain of the Commerce Clause if they burden interstate commerce or impede its free flow. NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 31 (1937).
The real question is whether the flow control ordinance is valid despite its undoubted effect on interstate commerce. For this inquiry, our case law yields two lines of analysis: first, whether the ordinance discriminates against interstate commerce, Philadelphia, 437 U. S., at 624; and second, whether the ordinance imposes a burden on interstate commerce that is “clearly excessive in relation to the putative local benefits,” Pike v. Bruce Church, Inc., 397 U. S. 137,142 (1970). As we find that the ordinance discriminates against interstate commerce, we need not resort to the Pike test.
The central rationale for the rule against discrimination is to prohibit state or municipal laws whose object is local economic protectionism, laws that would excite those jealousies and retaliatory measures the Constitution was designed to prevent. See The Federalist No. 22, pp. 143-145 (C. Rossiter ed. 1961) (A. Hamilton); Madison, Vices of the Political System of the United States, in 2 Writings of James Madison 362-363 (G. Hunt ed. 1901). We have interpreted the Commerce Clause to invalidate local laws that impose commercial barriers or discriminate against an article of commerce by reason of its origin or destination out of State. See, e. g., Philadelphia, supra (striking down New Jersey statute that prohibited the import of solid waste); Hughes v. Oklahoma, 441 U. S. 322 (1979) (striking down Oklahoma law that prohibited the export of natural minnows).
Clarkstown protests that its ordinance does not discriminate because it does not differentiate solid waste on the basis of its geographic origin. All solid waste, regardless of origin, must be processed at the designated transfer station before it leaves the town. Unlike the statute in Philadelphia, says the town, the ordinance erects no barrier to the import or export of any solid waste but requires only that the waste be channeled through the designated facility.
Our initial discussion of the effects of the ordinance on interstate commerce goes far toward refuting the town’s contention that there is no discrimination in its regulatory scheme. The town’s own arguments go the rest of the way. As the town itself points out, what makes garbage a profitable business is not its own worth but the fact that its possessor must pay to get rid of it. In other words, the article of commerce is not so much the solid waste itself, but rather the service of processing and disposing of it.
With respect to this stream of commerce, the flow control ordinance discriminates, for it allows only the favored operator to process waste that is within the limits of the town. The ordinance is no less discriminatory because in-state or in-town processors are also covered by the prohibition. In Dean Milk Co. v. Madison, 340 U. S. 349 (1951), we struck down a city ordinance that required all milk sold in the city to be pasteurized within five miles of the city lines. We found it “immaterial that Wisconsin milk from outside the Madison area is subjected to the same proscription as that moving in interstate commerce.” Id., at 354, n. 4. Accord, Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept, of Natural Resources, 504 U. S., at 361 (“[0]ur prior cases teach that a State (or one of its political subdivisions) may not avoid the strictures of the Commerce Clause by curtailing the movement of articles of commerce through subdivisions of the State, rather than through the State itself”).
In this light, the flow control ordinance is just one more instance of local processing requirements that we long have held invalid. See Minnesota v. Barber, 136 U. S. 313 (1890) (striking down a Minnesota statute that required any meat sold within the State, whether originating within or without the State, to be examined by an inspector within the State); Foster-Fountain Packing Co. v. Haydel, 278 U. S. 1 (1928) (striking down a Louisiana statute that forbade shrimp to be exported unless the heads and hulls had first been removed within the State); Johnson v. Haydel, 278 U. S. 16 (1928) (striking down analogous Louisiana statute for oysters); Toomer v. Witsell, 334 U. S. 385 (1948) (striking down South Carolina statute that required shrimp fishermen to unload, pack, and stamp their catch before shipping it to another State); Pike v. Bruce Church, Inc., supra (striking down Arizona statute that required all Arizona-grown cantaloupes to be packaged within the State prior to export); South-Central Timber Development, Inc. v. Wunnicke, 467 U. S. 82 (1984) (striking down an Alaska regulation that required all Alaska timber to be processed within the State prior to export). The essential vice in laws of this sort is.that they bar the import of the processing service. Out-of-state meat inspectors, or shrimp hullers, or milk pasteurizers, are deprived of access to local demand for their services. Put another way, the offending local laws hoard a local resource— be it meat, shrimp, or milk — for the benefit of local businesses that treat it.
The flow control ordinance has the same design and effect. It hoards solid waste, and the demand to get rid of it, for the benefit of the preferred processing facility. The only conceivable distinction from the cases cited above is that the flow control ordinance favors a single local proprietor. But this difference just makes the protectionist effect of the ordinance more acute. In Dean Milk, the local processing requirement at least permitted pasteurizers within five miles of the city to compete. An out-of-state pasteurizer who wanted access to that market might have built a pasteurizing facility within the radius. The flow control ordinance at issue here squelches competition in the waste-processing service altogether, leaving no room for investment from outside.
Discrimination against interstate commerce in favor of local business or investment is per se invalid, save in a narrow class of cases in which the municipality can demonstrate, under rigorous scrutiny, that it has no other means to advance a legitimate local interest. Maine v. Taylor, 477 U. S. 131 (1986) (upholding Maine’s ban on the import of baitfish because Maine had no other way to prevent the spread of parasites and the adulteration of its native fish species). A number of amici contend that the flow control ordinance fits into this narrow class. They suggest that as landfill space .diminishes and environmental cleanup costs escalate, measures like flow control become necessary to ensure the safe handling and proper treatment of solid waste.
The teaching of our cases is that these arguments must be rejected absent the clearest showing that the unobstructed flow of interstate commerce itself is unable to solve the local problem. The Commerce Clause presumes a national market free from local legislation, that discriminates in favor of local interests. Here Clarkstown has any number of nondiscriminatory alternatives for addressing the health and environmental problems alleged to justify the ordinance in question. The most obvious would be uniform safety regulations enacted without the object to discriminate. These regulations would ensure that competitors like Carbone- do not underprice the market by cutting corners on. environmental safety.
Nor may Clarkstown justify the flow control ordinance as a way to steer solid waste away from out-of-town' disposal sites that it might deem harmful to the environment. To do so would extend the town’s police power beyond its jurisdictional bounds. States and localities may not attach restrictions to exports or imports in order to control commerce in other States. Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511 (1935) (striking down New York law that prohibited the sale of milk unless the price paid to the original milk producer equaled the minimum required by New York).
The flow control ordinance does serve a central purpose that a nonprotectionist regulation would not: It ensures that the town-sponsored facility will be profitable, so that the local contractor can build it and Clarkstown can buy it back at nominal cost in five years. In other words, as the most candid of amici and even Clarkstown admit, the flow control ordinance is a financing measure. By itself, of course, revenue generation is not a local interest that can justify discrimination against interstate commerce. Otherwise States could impose discriminatory taxes against solid waste originating outside the State. See Chemical Waste Management, Inc. v. Hunt, 504 U. S. 334 (1992) (striking down Alabama statute that imposed additional fee on all hazardous waste generated outside the State and disposed of within the State); Oregon Waste Systems, Inc. v. Department of Environmental Quality of Ore., ante, p. 93 (striking down Oregon statute that imposed additional fee on solid waste generated outside the State and disposed of within the State).
Clarkstown maintains that special financing is necessary to ensure the long-term survival of the designated facility. If so, the town may subsidize the facility through general taxes or municipal bonds. New Energy Co. of Ind. v. Limbach, 486 U. S. 269, 278 (1988). But having elected to use the open market to earn revenues for its project, the town may not employ discriminatory regulation to give that project an advantage over rival businesses from out of State.
Though the Clarkstown ordinance may not in explicit terms seek to regulate interstate commerce, it does so nonetheless by its practical effect and design. In this respect the ordinance is not far different from the state law this Court found invalid in Buck v. Kuykendall, 267 U. S. 307 (1925). That statute prohibited common carriers from using state highways over certain routes without a certificate of public convenience. Writing for the Court, Justice Brandéis said of the law: “Its primary purpose is not regulation with a view to safety or to conservation of the highways, but the prohibition of competition. It determines not the manner of use, but the persons by whom the highways may be used. It prohibits such use to some persons while permitting it to others for the same purpose and in the same manner.” Id., at 315-316.
State and local governments may not use their regulatory power to favor local enterprise by prohibiting patronage of out-of-state competitors or their facilities. We reverse the judgment and remand the case for proceedings not inconsistent with this decision.
It is so ordered.
APPENDIX TO OPINION OF THE COURT
Town of Clarkstown
Local Law No. 9 of the year 1990
A local law entitled, “SOLID WASTE TRANSPORTATION AND DISPOSAL.”
Be it enacted by the TOWN BOARD of the Town of CLARKSTOWN as follows:
Section 1. Definitions
Unless otherwise stated expressly, the following words and expressions, where used in this chapter, shall have the meanings ascribed to them by this section:
ACCEPTABLE WASTE — All residential, commercial and industrial solid waste as defined in New York State Law, and Regulations, including Construction and Demolition Debris. Acceptable Waste shall not include Hazardous Waste, Pathological Waste or sludge.
CONSTRUCTION AND DEMOLITION DEBRIS — Uncontaminated solid waste resulting from the construction, remodeling, repair and demolition of structures and roads; and uncontaminated solid waste consisting of vegetation resulting from land clearing and grubbing, utility line maintenance and seasonal and storm related cleanup. Such waste includes, but is not limited to bricks, concrete and other masonry materials, soil, rock, wood, wall coverings, plaster, drywall, plumbing fixtures, non-asbestos insulation, roofing shingles, asphaltic pavement, electrical wiring and components containing no hazardous liquids, metals, brush grass clippings and leaves that are incidental to any of the above.
HAZARDOUS WASTE — All solid waste designated as such under the Environmental Conservation Law, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, the Resource Conservation and Recovery Act of 1976 or any other applicable law.
PATHOLOGICAL WASTE — Waste material which may be considered infectious or biohazardous, originating from hospitals, public or private medical clinics, departments or research laboratories, pharmaceutical industries, blood banks, forensic medical departments, mortuaries, veterinary facilities and other similar facilities and includes equipment, instruments, utensils, fomites, laboratory waste (including pathological specimens and fomites attendant thereto), surgical facilities, equipment, bedding and utensils (including pathological specimens and disposal fomites attendant thereto), sharps (hypodermic needles, syringes, etc.), dialysis unit waste, animal carcasses, offal and body parts, biological materials, (vaccines, medicines, etc.) and other similar materials, but does not include any such waste material which is determined by evidence satisfactory to the Town to have been rendered non-infectious and non-biohazardous.
PERSONS — Any individual, partnership, corporation, association, trust, business trust, joint venturer, governmental body or other entity, howsoever constituted.
UNACCEPTABLE WASTE — Hazardous Waste, Pathological Waste and sludge.
SLUDGE — Solid, semi-solid or liquid waste generated from a sewage treatment plant, wastewater treatment plant, water supply treatment plant, or air pollution control facility.
TOWN — When used herein, refers to the Town of Clarkstown.
Section 2. General Provisions
A. Intent; Purpose.
I. The intent and purpose of this chapter is to provide for the transportation and disposition of all solid waste within or generated within the Town of Clarkstown so that all acceptable solid waste generated within the Town is delivered to the Town of Clarkstown solid waste facility situate at Route 303, West Nyack, New York and such other sites, situate in the Town, as may be approved by the Town for recycling, processing or for other disposition or handling of acceptable solid waste.
II. The powers and duties enumerated in this law constitute proper town purposes intended to benefit the health, welfare and safety of Town residents. Additionally, it is hereby found that, in the exercise of control over the collection, transportation and disposal of solid waste, the Town is exercising essential and proper governmental functions.
B. Supervision and Regulation.
The Town Board hereby designates the Director of the Department of Environmental Control to be responsible for the supervision and regulation of the transportation and disposition of all acceptable waste generated within the Town of Clarkstown. The Director of the Department of Environmental Control shall be responsible for and shall supervise the Town’s activities in connection with any waste collection and disposal agreements entered into between the Town and third parties and shall report to the Town Board with respect thereto.
C. Power to Adopt Rules and Regulations.
The Town Board may, after a public hearing, adopt such rules and regulations as may be necessary to effectuate the purposes of this chapter. At least seven (7) business days’ prior notice of such public hearing shall be published in the official newspaper of the Town. A copy of all rules and regulations promulgated hereunder and any amendments thereto shall be filed in the office of the Town Clerk upon adoption and shall be effective as provided therein.
Section 3. Collection and Disposal of Acceptable Waste.
A. The removal, transportation and/or disposal of acceptable waste within or generated within the Town of Clarkstown shall be exclusively disposed of, controlled and regulated by the Town under this chapter and Chapter 50 and Chapter 82 of the Clarkstown Town Code, together with such rules and regulations as the Town has or may from time to time adopt.
B. All acceptable waste, as defined herein, except for construction and demolition debris, shall be removed, transported and/or disposed of only by carters licensed pursuant to the requirements of Chapter 50 of the Clarkstown Town Code and any amendments thereto. All other persons are hereby prohibited from removing, transporting or disposing of acceptable waste, except for construction and demolition debris generated within the Town of Clarkstown, and except as may be provided for herein or in the rules and regulations adopted pursuant to this chapter and/or Chapter 50 of the Clarkstown Town Code.
C. All acceptable waste generated within the territorial limits of the Town of Clarkstown is to be transported and delivered to the Town of Clarkstown solid waste facility located at Route 303, West Nyack, New York or to such other disposal or recycling facilities operated by the Town of Clarkstown, or to recycling centers established by special permit pursuant to Chapter 106 of the Clarkstown Town Code, except for recyclable materials which are separated from solid waste at the point of origin or generation of such solid waste, which separated recyclable materials may be transported and delivered to facilities within the Town as aforesaid, or to sites outside the town. As to acceptable waste brought to said recycling facilities, the unrecycled residue shall be disposed of at a solid waste facility operated by the Town of Clarkstown.
D. It shall be unlawful to dispose of any acceptable waste generated or collected within the Town at any location other than the facilities or sites set forth in Paragraph “C” above.
Section 4. Disposal of Unacceptable Waste.
A. No unacceptable waste shall be delivered to the Town of Clarkstown solid waste facility situate at Route 303, West Nyack, New York or other solid waste facility operated by the Town of Clarkstown or recycling centers established by special permit pursuant to Chapter 106 of the Clarkstown Town Code by any person, including, without limitation, any licensed carter or any municipality. Failure to comply with the provisions of this section shall be subject to the provisions with respect to such penalties and enforcement, including the suspension or revocation of licenses and the imposition of fines, in accordance with the provisions of this chapter and/or Chapter 50 of the Clarkstown Town Code and any amendments thereto. The Town Board of Clarkstown may, by resolution, provide for the disposal of sewer sludge, generated by a municipal sewer system or the Rockland County sewer district, at a disposal facility situate within the Town of Clarkstown.
B. It shall be unlawful, within the Town, to dispose of or attempt to dispose of unacceptable waste of any kind generated within the territorial limits of the Town of Clarkstown, except for sewer sludge as provided for in Section “A” above.
Section 5. Acceptable and Unacceptable Waste Generated Outside the Town of Clarkstown.
A. It shall be unlawful, within the Town, to dispose of or attempt to dispose of acceptable or unacceptable waste of any kind generated or collected outside the territorial limits of the Town of Clarkstown, except for acceptable waste disposed of at a Town operated facility, pursuant to agreement with the Town of Clarkstown and recyclables, as defined in Chapter 82 of the Clarkstown Town Code, brought to a recycling center established by special permit pursuant to Chapter 106 of the Clarkstown Town Code.
B. It shall be unlawful for any person to import acceptable waste or unacceptable waste from outside the Town of Clarkstown and dump same on any property located within the Town of Clarkstown and to proceed to sift, sort, mulch or otherwise mix the said material with dirt, water, garbage, rubbish or other substance, having the effect of concealing the contents or origin of said mixture. This provision shall not apply to composting of acceptable waste carried out by the Town of Clarkstown.
Section 6. Fees for Disposal of Acceptable Waste at Town Operated Facilities.
There shall be separate fees established for disposal of acceptable waste at Town operated disposal facilities. The Town Board, by resolution adopted from time to time, shall fix the various fees to be collected at said facilities. The initial fees to be collected are those adopted by the Town Board on December 11, 1990 by Resolution Number 1097.
Section 7. Penalties for Offenses.
Notwithstanding any other provision of this chapter, the violation of any provision of this chapter shall be punishable by a fine of not more than one thousand dollars ($1,000.00) or by imprisonment for a period not exceeding fifteen (15) days for each offense, or by both fine and imprisonment, and each day that such violation shall be permitted to continue shall constitute a separate offense hereunder.
Section 8. Repealer; Severability.
Ordinances and local laws or parts of ordinances or local laws heretofore enacted and inconsistent with any of the terms or provisions of this chapter are hereby repealed. In the event that any portion of this chapter shall be declared invalid by a court of competent jurisdiction, such invalidity shall not be deemed to affect the remaining portions hereof.
Section 9. When Effective.
This chapter shall take effect immediately upon filing in the office of the Secretary of State.
In a separate zoning ordinance, the Town declared that it shall have only one designated transfer station. Town of Clarkstown Zoning Code §106-3. | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases. | What is the ideological direction of the decision? | [
"Conservative",
"Liberal",
"Unspecifiable"
] | [
0
] | sc_decisiondirection |
ATTORNEY GENERAL OF NEW YORK v. SOTO-LOPEZ et al.
No. 84-1803.
Argued January 15, 1986
Decided June 17, 1986
Brennan, J., announced the judgment of the Court and delivered an opinion, in which Marshall, Blackmun, and Powell, JJ., joined. Burger, C. J., post, p. 912, and White, J., post, p. 916, filed opinions concurring in the judgment. Stevens, J., filed a dissenting opinion, post, p. 916. O’Connor, J., filed a dissenting opinion, in which Rehnquist and Stevens, JJ., joined, post, p. 918.
Robert Hermann, Solicitor General of New York, argued the cause for appellant. With him on the brief were Robert Abrams, Attorney General, pro se, 0. Peter Sherwood, Deputy Solicitor General, and Christopher Keith Hall, Assistant Attorney General.
Kenneth Kimerling argued the cause for appellees. With him on the brief was Juan Cartagena.
M. Carolyn Cox and Barton F. Stichman filed a brief for Vietnam Veterans of America as amicus curiae urging affirmance.
Justice Brennan
announced the judgment of the Court and delivered an opinion,
in which Justice Marshat,t,, Justice Blackmun, and Justice Powell join.
The question presented by this appeal is whether a preference in civil service employment opportunities offered by the State of New York solely to resident veterans who lived in the State at the time they entered military service violates the constitutional rights of resident veterans who lived outside the State when they entered military service.
I
The State of New York, through its Constitution, N. Y. Const., Art. V, §6, and its Civil Service Law, N. Y. Civ. Serv. Law §85 (McKinney 1983 and Supp. 1986), grants a civil service employment preference, in the form of points added to examination scores, to New York residents who are honorably discharged veterans of the United States Armed Forces, who served during time of war, and who were residents of New York when they entered military service. This preference may be exercised only once, either for original hiring or for one promotion. N. Y. Const., Art. V, §6.
Appellees, Eduardo Soto-Lopez and Eliezer Baez-Hernandez, are veterans of the United States Army and long-time residents of New York. Both men claim to have met all the eligibility criteria for the New York State civil service preference except New York residence when they entered the Army. Both Soto-Lopez and Baez-Hernandez passed New York City civil service examinations, but were denied the veterans’ preference by the New York City Civil Service Commission because they were residents of Puerto Rico at the time they joined the military. Appellees sued the city in Federal District Court, alleging that the requirement of residence when they joined the military violated the Equal Protection Clause of the Fourteenth Amendment and the constitutionally protected right to travel. The Attorney General of the State of New York intervened as a defendant.
The District Court dismissed appellees’ complaint, holding that this Court’s summary affirmance in August v. Bronstein, 417 U. S. 901 (1974), aff’g 369 F. Supp. 190 (SDNY), a case in which a three-judge panel upheld against equal protection and right-to-travel challenges the same sections of the New York State Constitution and Civil Service Law at issue in the instant action, compelled that result. The Court of Appeals for the Second Circuit reversed. Soto-Lopez v. New York City Civil Service Comm’n, 755 F. 2d 266 (1985). It concluded that August, supra, had implicitly been overruled by our more recent decision in Zobel v. Williams, 457 U. S. 55 (1982), and held that the prior residence requirement of the New York civil service preference offends both the Equal Protection Clause and the right to travel. The Court of Appeals remanded with various instructions, including the direction that the District Court permanently enjoin the defendants from denying bonus points to otherwise qualified veterans who were not residents of New York at the time they entered the military service. We noted probable jurisdiction of this appeal of the Attorney General of New York. 473 U. S. 903 (1985). We affirm.
II
“‘[F]reedom to travel throughout the United States has long been recognized as a basic right under the Constitution.’” Dunn v. Blumstein, 405 U. S. 330, 338 (1972) (quoting United States v. Guest, 383 U. S. 745, 758 (1966)). See, e. g., Passenger Cases, 7 How. 283, 492 (1849) (Taney, C. J., dissenting); Crandall v. Nevada, 6 Wall. 35, 43-44 (1868); Paul v. Virginia, 8 Wall. 168, 180 (1869); Edwards v. California, 314 U. S. 160 (1941); Kent v. Dulles, 357 U. S. 116, 126 (1958); Shapiro v. Thompson, 394 U. S. 618, 629-631, 634 (1969); Oregon v. Mitchell, 400 U. S. 112, 237 (1970) (separate opinion of Brennan, White, and Marshall, JJ.); id., at 285-286 (Stewart, J., concurring in part and dissenting in part, with whom Burger, C. J., and Blackmun, J., joined); Memorial Hospital v. Maricopa County, 415 U. S. 250, 254 (1974). And, it is clear that the freedom to travel includes the “‘freedom to enter and abide in any State in the Union.’” Dunn, supra, at 338 (quoting Mitchell, supra, at 285).
The textual source of the constitutional right to travel, or, more precisely, the right of free interstate migration, though, has proved elusive. It has been variously assigned to the Privileges and Immunities Clause of Art. IV, see, e. g., Zobel, supra, at 71 (O’Connor, J., concurring in judgment), to the Commerce Clause, see Edwards v. California, 314 U. S., at 173-174, and to the Privileges and Immunities Clause of the Fourteenth Amendment, see, e. g., id., at 177-178 (Douglas, J., concurring). The right has also been inferred from the federal structure of government adopted by our Constitution. Zobel, supra, at 67 (Brennan, J., concurring); Shapiro, supra, at 631; United States v. Guest, supra, at 757-758. However, in light of the unquestioned historic acceptance of the principle of free interstate migration, and of the important role that principle has played in transforming many States into a single Nation, we have not felt impelled to locate this right definitively in any particular constitutional provision. Shapiro, supra, at 630. Whatever its origin, the right to migrate is firmly established and has been repeatedly recognized by our cases. See, e. g., Hooper v. Bernalillo County Assessor, 472 U. S. 612, 618, n. 6 (1985); Zobel, supra, at 60, n. 6; Jones v. Helms, 452 U. S. 412, 418 (1981); Memorial Hospital v. Maricopa County, supra; Dunn, supra; Shapiro, supra; United States v. Guest, supra, at 757-759.
A state law implicates the right to travel when it actually deters such travel, see, e. g., Crandall v. Nevada, supra, at 46; see also Shapiro, supra, at 629, when impeding travel is its primary objective, see Zobel, supra, at 62, n. 9; Shapiro, supra, at 628-631, or when it uses “‘any classification which serves to penalize the exercise of that right. ’ ” Dunn, supra, at 340 (quoting Shapiro, supra, at 634). Our right-to-migrate cases have principally involved the latter, indirect manner of burdening the right. More particularly, our recent cases have dealt with state laws that, by classifying residents according to the time they established residence, resulted in the unequal distribution of rights and benefits among otherwise qualified bona fide residents. Hooper, supra; Zobel v. Williams, 457 U. S. 55 (1982); Sosna v. Iowa, 419 U. S. 393 (1975); Memorial Hospital, supra; Dunn v. Blumstein, 405 U. S. 330 (1972); Shapiro, supra.
Because the creation of different classes of residents raises equal protection concerns, we have also relied upon the Equal Protection Clause in these cases. Whenever a state law infringes a constitutionally protected right, we undertake intensified equal protection scrutiny of that law. See, e. g., Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 440 (1985); Martinez v. Bynum, 461 U. S. 321, 328, n. 7 (1983); Plyler v. Doe, 457 U. S. 202, 216-217, and n. 15 (1982); Memorial Hospital, supra, at 258, 262; San Antonio Independent School District v. Rodriguez, 411 U. S. 1, 16, and n. 39, 30-32, 40 (1973); Police Dept. of Chicago v. Mosley, 408 U. S. 92, 101 (1972); Dunn, supra, at 335, 342; Shapiro, supra, at 634. Thus, in several cases, we asked expressly whether the distinction drawn by the State between older and newer residents burdens the right to migrate. Where we found such a burden, we required the State to come forward with a compelling justification. See, e. g., Shapiro v. Thompson, supra; Dunn, supra; Memorial Hospital v. Maricopa County, 415 U. S. 250 (1974). In other cases, where we concluded that the contested classifications did not survive even rational-basis scrutiny, we had no occasion to inquire whether enhanced scrutiny was appropriate. Hooper, supra; Zobel, supra. The analysis in all of these cases, however, is informed by the same guiding principle — the right to migrate protects residents of a State from being disadvantaged, or from being treated differently, simply because of the timing of their migration, from other similarly situated residents. Hooper, supra, at 618, n. 6; Zobel, supra, at 60, n. 6; Memorial Hospital, supra, at 261; Shapiro, supra, at 629-631.
New York’s eligibility requirements for its civil service preference conditions a benefit on New York residence at a particular past time in an individual’s life. It favors those veterans who were New York residents at a past fixed point over those who were not New York residents at the same point in their lives. Our cases have established that similar methods of favoring “prior” residents over “newer” ones, such as limiting a benefit to those who resided in the State by a fixed past date, Hooper, supra; granting incrementally greater benefits for each year of residence, Zobel, supra; and conditioning eligibility for certain benefits on completion of a fixed period of residence, see, e. g., Memorial Hospital, supra; Dunn v. Blumstein, supra; Shapiro, supra, warrant careful judicial review. But, our cases have also established that only where a State’s law “‘operates to penalize those persons . . . who have exercised their constitutional right of interstate migration’” is heightened scrutiny triggered. Memorial Hospital, supra, at 258, quoting Oregon v. Mitchell, 400 U. S., at 238 (separate opinion of Brennan, White, and Marshall, JJ.).
Our task in this case, then, is first to determine whether New York’s restriction of its civil service preference to veterans who entered the Armed Forces while residing in New York operates to penalize those persons who have exercised their right to migrate. If we find that it does, appellees must prevail unless New York can demonstrate that its classification is necessary to accomplish a compelling state interest. Memorial Hospital, supra, at 262; Dunn, supra, at 342; Shapiro, 394 U. S., at 634.
Ill
A
In previous cases, we have held that even temporary deprivations of very important benefits and rights can operate to penalize migration. For example, in Shapiro and in Memorial Hospital, we found that recently arrived indigent residents were deprived of life’s necessities by durational residence requirements for welfare assistance and for free, non-emergency medical care, respectively, which were available to other poor residents. In Dunn, we held that new residents were denied a basic right by a durational residence requirement for establishing eligibility to vote. The fact that these deprivations were temporary did not offset the Court’s conclusions that they were so severe and worked such serious inequities among otherwise qualified residents that they effectively penalized new residents for the exercise of their rights to migrate.
More recently, in Hooper v. Bernalillo, 472 U. S. 612 (1985), and Zobel v. Williams, 457 U. S. 55 (1982), we struck down state laws that created permanent distinctions among residents based on the length or timing of their residence in the State. At issue in Hooper was a New Mexico statute that granted a tax exemption to Vietnam veterans who resided in the State before May 8, 1976. Zobel concerned an Alaska statute granting residents one state mineral income dividend unit for each year of residence subsequent to 1959. Because we employed rational-basis equal protection analysis in those cases, we did not face directly the question whether the contested laws operated to penalize interstate migration. Nonetheless, the conclusion that they did penalize migration may be inferred from our determination that “the Constitution will not tolerate a state benefit program that ‘creates fixed, permanent distinctions . . . between. . . classes of concededly bona fide residents, based on how long they have been in the State.’” Hooper, supra, at 623 (quoting Zobel, supra, at 59). See also Zobel, supra, at 64.
Soto-Lopez and Baez-Hernandez have been denied a significant benefit that is granted to all veterans similarly situated except for State of residence at the time of their entry into the military. While the benefit sought here may not rise to the same level of importance as the necessities of life and the right to vote, it is unquestionably substantial. The award of bonus points can mean the difference between winning or losing civil service employment, with its attendant job security, decent pay, and good benefits. Brief for Appellees 27-28. See also Guardians Assn. of New York City Police Dept., Inc. v. Civil Service Comm’n, 630 F. 2d 79, 85 (CA2 1980), cert. denied, 452 U. S. 940 (1981); Andrade v. Nadel, 477 F. Supp. 1275, 1279 (SDNY 1979). Furthermore, appellees have been permanently deprived of the veterans’ credits that they seek. As the Court of Appeals observed: “The veteran’s ability to satisfy the New York residence requirement is . . . fixed. He either was a New York resident at the time of his initial induction or he was not; he cannot earn a change in status.” 755 F. 2d, at 275. Such a permanent deprivation of a significant benefit, based only on the fact of nonresidence at a past point in time, clearly operates to penalize appellees for exercising their rights to migrate.
B
New York offers four interests in justification of its fixed point residence requirement: (1) the encouragement of New York residents to join the Armed Services; (2) the compensation of residents for service in time of war by helping these veterans reestablish themselves upon coming home; (3) the inducement of veterans to return to New York after wartime service; and (4) the employment of a “uniquely valuable class of public servants” who possess useful experience acquired through their military service. Brief for Appellant 15. All four justifications fail to withstand heightened scrutiny on a common ground — each of the State’s asserted interests could be promoted fully by granting bonus points to all otherwise qualified veterans. New York residents would still be encouraged to join the services. Veterans who served in time of war would be compensated. And, both former New Yorkers and prior residents of other States would be drawn to New York after serving the Nation, thus providing the State with an even larger pool of potentially valuable public servants.
As we held in Dunn: “[I]f there are other, reasonable ways to achieve [a compelling state purpose] with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference. If it acts at all, it must choose ‘less drastic means.’” 405 U. S., at 343 (quoting Shelton v. Tucker, 364 U. S. 479, 488 (1960)). See also Memorial Hospital, 415 U. S., at 263. Because New York could accomplish its purposes without penalizing the right to migrate by awarding special credits to all qualified veterans, the State is not free to promote its interests through a preference system that incorporates a prior residence requirement.
Two of New York’s asserted interests have additional weaknesses. First, the availability of the preference to inductees as well as enlistees undercuts the State’s contention that one of the most important purposes of the veterans’ credit is to encourage residents to enlist in the services. Second, the fact that eligibility for bonus points is not limited to the period immediately following a veteran’s return from war casts doubt on New York’s asserted purpose of easing the transition from wartime military conditions to civilian life, for, presumably, a veteran of the Korean War could take a civil service examination and receive the bonus points tomorrow, 30 years after his homecoming. Cf. Hooper, 472 U. S., at 621. The State’s failure to limit the credit to enlistees recently returned to New York from war strongly suggests that the State’s principal interest is simply in rewarding its residents for service to their country.
Compensating veterans for their past sacrifices by providing them with advantages over nonveteran citizens is a longstanding policy of our Federal and State Governments. See, e. g., Hooper, supra; Regan v. Taxation with Representation of Washington, 461 U. S. 540, 551 (1983); Personnel Administrator of Massachusetts v. Feeney, 442 U. S. 256, 279, n. 25 (1979). Nonetheless, this policy, even if deemed compelling, does not support a distinction between resident veterans based on their residence when they joined the military. Members of the Armed Forces serve the Nation as a whole. While a serviceperson’s home State doubtlessly derives indirect benefit from his or her service, the State benefits equally from the contributions to our national security made by other service personnel. “Permissible discriminations between persons” must be correlated to “their relevant characteristics.” Zobel, 457 U. S., at 70 (Brennan, J., concurring). Because prior residence has only a tenuous relation, if any, to the benefit New York receives from all Armed Forces personnel, the goal of rewarding military service offers no support for New York’s fixed point residence requirement.
IV
In sum, the provisions of New York’s Constitution, Art. V, § 6, and Civil Service Law § 85, which limit the award of a civil service employment preference to resident veterans who lived in New York at the time they entered the Armed Forces, effectively penalize otherwise qualified resident veterans who do not meet the prior residence requirement for their exercise of the right to migrate. The State has not met its heavy burden of proving that it has selected a means of pursuing a compelling state interest which does not impinge unnecessarily on constitutionally protected interests. Consequently, we conclude that New York’s veterans’ preference violates appellees’ constitutionally protected rights to migrate and to equal protection of the law.
Once veterans establish bona fide residence in a State, they “become the State’s ‘own’ and may not be discriminated against solely on the basis of [the date of] their arrival in the State.” Hooper, supra, at 623. See also Vlandis v. Kline, 412 U. S. 441, 449-450, and n. 6 (1973); Shapiro, 394 U. S., at 632-633; Passenger Cases, 7 How., at 492 (Taney, C. J., dissenting). For as long as New York chooses to offer its resident veterans a civil service employment preference, the Constitution requires that it do so without regard to residence at the time of entry into the services. Accordingly, the judgment of the Court of Appeals is
Affirmed.
New York Constitution, Art. V, §6, provides:
“Appointments and promotions in the civil service of the state and of all the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, as far as practicable, by examination, which, as far as practicable, shall be competitive; provided, however, that any member of the armed forces of the United States who served therein in time of war, who is a citizen and resident of this state and was a resident at the time of his entrance into the armed forces of the United States and was honorably discharged or released under honorable circumstances from such service, shall be entitled to receive five points additional credit in a competitive examination for original appointment and two and one-half points additional credit in an examination for promotion or, if such member was disabled in the actual performance of duty in any war... he shall be entitled to receive ten points additional credit in a competitive examination for original appointment and five points additional credit in an examination for promotion. ... No such member shall receive the additional credit granted by this section after he has received one appointment, either original entrance or promotion, from an eligible list on which he was allowed the additional credit granted by this section.”
New York Civ. Serv. Law §85 essentially restates the substance of the constitutional provision and defines the relevant terms.
As was observed in Zobel v. Williams, 457 U. S. 55, 67 (1982) (Brennan, J., concurring):
“[It] is clear from our cases [that] the right to travel achieves its most forceful expression in the context of equal protection analysis. But if, finding no citable passage in the Constitution to assign as its source, some might be led to question the independent vitality of the principle of free interstate migration, I find its unmistakable essence in that document that transformed a loose confederation of States into one Nation.”
We have always carefully distinguished between bona fide residence requirements, which seek to differentiate between residents and nonresidents, and residence requirements, such as durational, fixed date, and fixed point residence requirements, which treat established residents differently based on the time they migrated into the State. See, e. g., Martinez v. Bynum, 461 U. S. 321, 325-330 (1983); Memorial Hospital v. Maricopa County, 415 U. S. 250, 255, 267 (1974); Dunn v. Blumstein, 405 U. S. 330, 343 (1972); Shapiro v. Thompson, 394 U. S. 618, 636, 638, n. 21 (1969). As we explained in Martinez:
“A bona fide residence requirement, appropriately defined and uniformly applied, furthers the substantial state interest in assuring that services provided for its residents are enjoyed only by residents. Such a requirement . . . [generally] does not burden or penalize the constitutional right of interstate travel, for any person is free to move to a State and to establish residence there. A bona fide residence requirement simply requires that the person does establish residence before demanding the services that are restricted to residents.” 461 U. S., at 328-329.
Of course, regardless of the label we place on our analysis — right to migrate or equal protection — once we find a burden on the right to migrate the standard of review is the same. Laws which burden that right must be necessary to further a compelling state interest. See, e. g., Memorial Hospital, supra; Dunn, supra; Shapiro, supra.
We have cautioned, however, that not all waiting periods are impermissible. See, e. g., Memorial Hospital, supra, at 258-259; Shapiro, supra, at 638, n. 21. Indeed, in Sosna v. Iowa, 419 U. S. 393 (1975), we upheld a 1-year residency condition for maintaining an action for divorce. We noted the State’s strong, traditional interest in setting the terms of and procedures for marriage and divorce. Weighing the fact that appellant’s access to the desired state procedure was only temporarily delayed, against the State’s important interest, we concluded that her right to migrate was not violated.
We have also sustained domicile requirements, which incorporated 1-year waiting periods, for resident tuition at state universities. Starns v. Malkerson, 401 U. S. 985 (1971), summarily aff’g 326 F. Supp. 234 (Minn. 1970) (three-judge court); Sturgis v. Washington, 414 U. S. 1057 (1973), summarily aff’g 368 F. Supp. 38 (WD Wash.) (three-judge court). See also Vlandis v. Kline, 412 U. S. 441, 452-454 (1973).
In his concurrence, The Chief Justice takes us to task for asking in the first instance what is the appropriate standard of review to employ in evaluating New York’s laws. The Chief Justice argues that we should initially run the laws through a rational-basis analysis and then, if they survive that level of scrutiny, ask whether a higher level is appropriate.
We disagree. The logical first question to ask when presented with an equal protection claim, and the one we usually ask first, is what level of review is appropriate. See, e. g., Dunn, 405 U. S., at 335 (“In considering laws challenged under the Equal Protection Clause . . . [f]irst... we must determine what standard of review is appropriate”). See also, Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432 (1985); Mississippi University for Women v. Hogan, 458 U. S. 718 (1982); Plyler v. Doe, 457 U. S. 202 (1982); Memorial Hospital v. Maricopa County, 415 U. S. 250 (1974); San Antonio Independent School District v. Rodriguez, 411 U. S. 1 (1973); Police Dept. of Chicago v. Mosley, 408 U. S. 92 (1972); Shapiro v. Thompson, 394 U. S. 618 (1969). It is well established that where a law classifies by race, alienage, or national origin, and where a law classifies in such a way as to infringe constitutionally protected fundamental rights, heightened scrutiny under the Equal Protection Clause is required. See, e. g., Cleburne, supra, at 440; Martinez, 461 U. S., at 328, n. 7; Plyler v. Doe, supra, at 216-217, and n. 15; Memorial Hospital, supra, at 258, 262; San Antonio Independent School District, supra, at 16, and nn. 39, 30-32, 40; Mosley, supra, at 101; Dunn, supra, at 335, 342; Shapiro, supra, at 634. In the instant case, appellees contend not only that the laws in question treat them differently from another class of state residents, they also maintain that by treating them differently, the laws burden their constitutionally protected right to travel. Therefore, in order to ascertain the appropriate level of scrutiny, we must, as an initial matter, determine whether or not the State’s laws actually burden appellees’ right to travel.
It is true, as The Chief Justice suggests, that in Hooper v. Bernalillo County Assessor, 472 U. S. 612 (1985), and Zobel v. Williams, 457 U. S. 55 (1982), the Court did not follow this same logical sequence of analysis. We think that the better approach is that which the Court has employed in other equal protection cases — to inquire first as to the proper level of scrutiny and then to apply it.
In Andrade v. Nadel, 477 F. Supp. 1275, 1279 (SDNY 1979), the Deputy Director of the New York City Department of Personnel testified:
“[O]n most civil service examinations, there is a pronounced ‘bunching’ (i. e., a large percentage of the test takers obtain very similar scores). [I]t can be assumed that rescission of the five or 10 point veterans’ preference in the case of most of 1,300 employee [veterans receiving probationary appointments in New York City in a specific year would] result in their receiving a list number that has not yet been reached for appointment, and . . . consequently [in their losing] their jobs.”
Appellees contend that this “bunching” phenomenon adversely affected their employment opportunities with the City of New York. For example, after passing a New York City civil service examination, Baez-Hernandez was preliminarily awarded 10 veterans’ bonus points — 5 for veteran status, and 5 for his service-related disability, bringing his total score to 87.3. Based on this adjusted score, he received an appointment with the city in June 1981. The award of the 10 bonus points was rescinded two days later, however, and the appointment withdrawn when it was discovered that Baez-Hernandez was not a New York resident at the time of his entry into the Army. Soto-Lopez v. New York City Civil Service Comm’n, 755 F. 2d 266, 268-269 (CA2 1985).
Moreover, it is difficult to understand why veterans who joined the military as New York residents would have so much more trouble effecting this transition than other veterans that New York is justified in reserving “the benefits [it] bestows for national military service” for only one class of resident veterans. Hooper v. Bernalillo County Assessor, 472 U. S., at 621.
Our summary affirmance in August v. Bronstein, 417 U. S. 901 (1974), is hereby overruled. | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded. | What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed? | [
"stay, petition, or motion granted",
"affirmed",
"reversed",
"reversed and remanded",
"vacated and remanded",
"affirmed and reversed (or vacated) in part",
"affirmed and reversed (or vacated) in part and remanded",
"vacated",
"petition denied or appeal dismissed",
"modify",
"remand",
"unusual disposition"
] | [
2
] | sc_lcdisposition |
No. 128.
County Board of Arlington County et al. v. State Milk Commission.
Argued January 4, 1954.
Decided January 18, 1954.
Malcolm D. Miller argued the cause and filed a brief for appellants. Roger J. Whitejord argued the cause for appellee. With him on the brief were J. Lindsay Almond, Jr., Attorney General of Virginia, and Thomas M. Miller, Assistant Attorney General.
Appeal from the Supreme Court of Appeals of Virginia.
Per Curiam:
The judgment is affirmed. Milk Control Board v. Eisenberg Farm Products, 306 U. S. 346.
Mr. Justice Black dissents. | What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations | What is the ideological direction of the decision reviewed by the Supreme Court? | [
"Conservative",
"Liberal",
"Unspecifiable"
] | [
1
] | sc_lcdispositiondirection |
WALDER v. UNITED STATES.
No. 121.
Argued November 30, 1953.
Decided February 1, 1954.
Paul A. Porter, acting under appointment by the Court, argued the cause and filed a brief for petitioner.
Robert S. Erdahl argued the cause for the United States. With him on the brief were Acting Solicitor General Stern, Assistant Attorney General Olney and Edward S. Szukelewicz.
Mr. Justice Frankfurter
delivered the opinion of the Court.
In May 1950, petitioner was indicted in the United States District Court for the Western District of Missouri for purchasing and possessing one grain of heroin. Claiming that the heroin capsule had been obtained through an unlawful search and seizure, petitioner moved to suppress it. The motion was granted, and shortly thereafter, on the Government’s motion, the case against petitioner was dismissed.
In January of 1952, petitioner was again indicted, this time for four other illicit transactions in narcotics. The Government’s case consisted principally of the testimony of two drug addicts who claimed to have procured the illicit stuff from petitioner under the direction of federal agents. The only witness for the defense was the defendant himself, petitioner here. He denied any narcotics dealings with the two Government informers and attributed the testimony against him to personal hostility.
Early on his direct examination petitioner testified as follows:
“Q. Now, first, Mr. Walder, before we go further in your testimony, I want to you [sic] tell the Court and jury whether, not referring to these informers in this case, but whether you have ever sold any narcotics to anyone.
“A. I have never sold any narcotics to anyone in my life.
“Q. Have you ever had any narcotics in your possession, other than what may have been given to you by a physician for an ailment?
“A. No.
“Q. Now, I will ask you one more thing. Have you ever handed or given any narcotics to anyone as a gift or in any other manner without the receipt of any money or any other compensation?
“A. I have not.
“Q. Have you ever even acted as, say, have you acted as a conduit for the purpose of handling what you knew to be a narcotic from one person to another?
“A. No, sir.”
On cross-examination, in response to a question by Government counsel making reference to this direct testimony, petitioner reiterated his assertion that he had never purchased, sold or possessed any narcotics. Over the defendant’s objection, the Government then questioned him about the heroin capsule unlawfully seized from his home in his presence back in February 1950. The defendant stoutly denied that any narcotics were taken from him at that time. The Government then put on the stand one of the officers who had participated in the unlawful search and seizure and also the chemist who had analyzed the heroin capsule there seized. The trial judge admitted this evidence, but carefully charged the jury that it was not to be used to determine whether the defendant had committed the crimes here charged, but solely for the purpose of impeaching the defendant’s credibility. The defendant was convicted, and the Court of Appeals for the Eighth Circuit affirmed, one judge dissenting. 201 F. 2d 715. The question which divided that court, and the sole issue here, is whether the defendant’s assertion on direct examination that he had never possessed any narcotics opened the door, solely for the purpose of attacking the defendant’s credibility, to evidence of the heroin unlawfully seized in connection with the earlier proceeding. Because this question presents a novel aspect of the scope of the doctrine of Weeks v. United States, 232 U. S. 383, we granted certiorari. 345 U. S. 992.
The Government cannot violate the Fourth Amendment — in the only way in which the Government can do anything, namely through its agents — and use the fruits of such unlawful conduct to secure a conviction. Weeks v. United States, supra. Nor can the Government make indirect use of such evidence for its case, Silverthorne Lumber Co. v. United States, 251 U. S. 385, or support a conviction on evidence obtained through leads from the unlawfully obtained evidence, cf. Nardone v. United States, 308 U. S. 338. All these methods are outlawed, and convictions obtained by means of them are invalidated, because they encourage the kind of society that is obnoxious to free men.
It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the' Government’s possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths. Such an extension of the Weeks doctrine would be a perversion of the Fourth Amendment.
Take the present situation. Of his own accord, the defendant went beyond a mere denial of complicity in the crimes of which he was charged and made the sweeping claim that he had never dealt in or possessed any narcotics. Of course, the Constitution guarantees a defendant the fullest opportunity to meet the accusation against him. He must be free to deny all the elements of the case against him without thereby giving leave to the Government to introduce by way of rebuttal evidence illegally secured by it, and therefore not available for its case in chief. Beyond that, however, there is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government’s disability to challenge his credibility.
The situation here involved is to be sharply contrasted with that presented by Agnello v. United States, 269 U. S. 20. There the Government, after having failed in its efforts to introduce the tainted evidence in its case in chief, tried to smuggle it in on cross-examination by asking the accused the broad question “Did you ever see narcotics before?” After eliciting the expected denial, it sought to introduce evidence of narcotics located in the defendant’s home by means of an unlawful search and seizure, in order to discredit the defendant. In holding that the Government could no more work in this evidence on cross-examination than it could in its case in chief, the Court foreshadowed, perhaps unwittingly, the result we reach today:
“And the contention that the evidence of the search and seizure was admissible in rebuttal is without merit. In his direct examination, Agnello was not asked and did not testify concerning the can of cocaine. In cross-examination, in answer to a question permitted over his objection, he said he had never seen it. He did nothing to waive his constitutional protection or to justify cross-examination in respect of the evidence claimed to have been obtained by the search. . . .” 269 U. S., at 35.
The judgment is
Affirmed.
Mr. Justice Black and Mr. Justice Douglas dissent.
This denial squarely contradicted the affidavit filed by the defendant in the earlier proceeding, in connection with his motion under Rule 41 (e) to suppress the evidence unlawfully seized.
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .”
Cf. Michelson v. United States, 335 U. S. 469, 479: “The price a defendant must pay for attempting to prove his good name is to throw open the entire subject which the law has kept closed for his benefit and to make himself vulnerable where the law otherwise shields him.”
The underlying rationale of the Michelson case also disposes of the evidentiary question raised by petitioner, to wit, “whether defendant’s actual guilt under a former indictment which was dismissed may be proved by extrinsic evidence introduced to impeach him in a prosecution for a subsequent offense.”
Transcript of Record, p. 476, Agnello v. United States, 269 U. S. 20. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent. | Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented? | [
"Yes",
"No"
] | [
0
] | sc_lcdisagreement |
FONTAINE v. CALIFORNIA.
No. 854,
Misc.
Decided April 8, 1968.
Thomas C. Lynch, Attorney General of California, and Deraid E. Granberg and Louise H. Renne, Deputy Attorneys General, for respondent.
Per Curiam.
The petitioner allegedly made two sales of marihuana to an informer in June and July 1963. He was not indicted until mid-October 1963. According to the State, the delay was due to the State’s desire to use the informer in other narcotics cases. By the time the case came to trial, the informer had disappeared. Evidence as to the alleged purchases from petitioner consisted of taped telephone conversations which petitioner claims are ambiguous, and the testimony of police officials. Some of the police observed the transactions between petitioner and the informer, but under circumstances which petitioner argues leave substantial doubt that the seller was in fact the petitioner.
The jury found petitioner guilty, but the trial judge ordered a new trial because of the State’s delay which had made the informer unavailable. The California District Court of Appeal reversed the trial judge’s ruling, 237 Cal. App. 2d 320, 46 Cal. Rptr. 855 (1965). It held that the failure to produce the informer did not deny a fair trial.
At the trial, which took place before our decision in Griffin v. California, 380 U. S. 609 (1965), the prosecutor had commented upon petitioner’s failure to take the stand. His comment was as follows:
“How do we know the defendant knew it was marijuana? Well, I guess if he didn’t know it was marijuana he could have taken the stand and told us that he didn’t know it was marijuana and thereby subject himself to cross-examination, if he chose not to.
“His Honor will instruct you then on the effect that it may have, any conclusions or inferences you may draw from the fact that he wouldn’t take the stand and testify ....
“Well, Ladies and Gentlemen, that is the case. You heard the evidence. You heard the arguments of counsel. You haven’t heard from the defendant. I will ask you to take that into consideration, take into consideration the inference which you may draw because he didn’t choose to defend himself and what he may have said in that respect.”
The trial judge had instructed the jury that it could draw adverse inferences from petitioner’s silence. Griffin was decided between the time of trial and the appellate decision. The District Court of Appeal held that the prosecutor’s argument and the judge’s comment violated petitioner’s privilege against self-incrimination under Griffin. However, the Court of Appeal found the constitutional error harmless under the California harmless-error rule prevailing at that time. The State Supreme Court declined to review the case.
Subsequently, we decided Chapman v. California, 386 U. S. 18 (1967), which disapproved of California’s harmless-error rule as applied to federal constitutional errors. Thereafter, we granted a petition for a writ of certiorari in the instant case, vacated the judgment below, and remanded for further consideration in light of Chapman. 386 U. S. 263 (1967). On remand, the District Court of Appeal reinstated its former opinion except that it rewrote the portion dealing with harmless error. This time it recited that the constitutional error in this case was harmless “beyond a reasonable doubt” — the standard announced in Chapman. People v. Fontaine, 252 Cal. App. 2d 73, 60 Cal. Rptr. 325.
The disputed issues at the trial centered principally upon whether the petitioner knowingly transferred wax bags of marihuana to the informer. The petitioner claimed prejudice as a result of the unavailability of the informer. We need not decide whether this, standing alone, would entitle the petitioner to reversal of the decision below because it is clear that in the absence of testimony of the informer supporting the State’s version of the disputed issues, it was error for the court below to hold that the comments of the prosecutor and the trial judge were harmless “beyond a reasonable doubt.”
These comments upon petitioner’s failure to take the stand violated his constitutional privilege against self-incrimination. Griffin v. California, supra. The jury had been asked to convict petitioner on the basis of circumstantial evidence, in the absence of testimony from' the State’s agent who allegedly made the purchases from' petitioner. In these circumstances, the State has not met its burden of proving beyond a reasonable doubt that the erroneous comments and instruction did not contribute to petitioner’s conviction. Chapman v. California, 386 U. S., at 24, 25-26.
Accordingly, the motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted and the judgment is
Reversed.
Mr. Justice Black and Mr. Justice Harlan would affirm the judgment of the state court.
“It is a Constitutional right of a defendant in a criminal trial that he may not be compelled to testify. Thus, whether or not he does testify rests entirely in his own decision. As to any evidence or facts against him which the defendant can reasonably be expected to deny or explain because of facts within his knowledge, if he does not testify or if, though he does testify, he fails to deny or explain such evidence, the jury may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may be reasonably drawn therefrom those unfavorable to the defendant are the more probable.” | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion. | What type of decision did the court make? | [
"opinion of the court (orally argued)",
"per curiam (no oral argument)",
"decrees",
"equally divided vote",
"per curiam (orally argued)",
"judgment of the Court (orally argued)",
"seriatim"
] | [
1
] | sc_decisiontype |
UNITED STATES v. HENNING et al.
No. 10.
Argued April 1, 1952.
Reargued October 14, 1952.
Decided November 17, 1952.
Morton Lijtin argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Baldridge and Samuel D. Slade.
Richard H. Lee argued the cause for Kennedy, Administrator, respondent. With him on the brief was Arthur V. Getchell.
Mr. Justice Clark
delivered the opinion of the Court.
Conflicting claims to the proceeds of a policy of National Service Life Insurance frame the controversy before us. Disposition of the cause depends on our interpretation of the National Service Life Insurance Act of 1940, as amended, 38 U. S. C. § 801 et seq., which in pertinent part provides:
§ 602 (g). “The insurance shall be payable only to a widow, widower, child . . ., parent, brother or sister of the insured. The insured shall have the right to designate the beneficiary or beneficiaries of the insurance, but only within the classes herein provided . . .
§ 601(f). “The terms 'parent’, 'father’, and ‘mother’ include a father, mother, father through adoption, mother through adoption [and] persons who have stood in loco parentis to a member of the military or naval forces at any time prior to entry into active service for a period of not less than one year . . . .”
§ 602 (i). “If no beneficiary is designated by the insured or if the designated beneficiary does not survive the insured, the beneficiary shall be determined in accordance with the order specified in subsection (h) (3) of this section and the insurance shall be payable in equal monthly installments in accordance with subsection (h) . . . . The right of any beneficiary to payment of any installments shall be conditioned upon his or her being alive to receive such payments. No person shall have a vested right to any installment or installments of any such insurance and any installments not paid to a beneficiary during such beneficiary’s lifetime shall be paid to the beneficiary or beneficiaries within the permitted class next entitled to priority, as provided in subsection (h) . . . .”
§ 602 (h)(3). “Any installments certain of insurance remaining unpaid at the death of any beneficiary shall be paid in equal monthly installments in an amount equal to the monthly installments paid to the first beneficiary, to the person or persons then in being within the classes hereinafter specified and in the order named, unless designated by the insured in a different order—
“(C) if no widow, widower, or child, to the parent or parents of the insured who last bore that relationship, if living, in equal shares; . . . .”
§ 602 (j). “No installments of such insurance shall be paid to the heirs or legal representatives as such of the insured or of any beneficiary, and in the event that no person within the permitted class survives to receive the insurance or any part thereof no payment of the unpaid installments shall be made. . .
The material facts are not disputed. Eugene C. Hen-ning, a Naval Reservist insured under a $10,000 term policy of National Service Life Insurance which named his father as sole beneficiary, died on July 4, 1945, in his country’s service. Otto F. Henning, the father, died five months later, without having received any part of the policy’s proceeds. Bessie, his second wife and the insured’s stepmother, and Clara Belle, his former wife and the insured’s natural mother, survived. Both survivors subsequently filed claims to the proceeds of the serviceman’s policy. On June 30, 1949, during the pendency of an interpleader action for a judicial determination of the proper taker, Bessie died, leaving the natural mother as sole surviving claimant. The Government thereupon asserted that Bessie had last borne the parental relationship to the insured; that consequently Clara Belle could not come within the statutory class of devolutionary takers; and that, in the absence of cognizable claims to the proceeds, they escheat to the National Service Life Insurance Fund.
The District Court’s judgment, however, divided the proceeds, payable in installments, among three parties. The court read the statute as imposing no bar to the award of matured but unpaid installments to the estates of deceased beneficiaries. It therefore awarded to the father’s estate the installments which had matured during his lifetime but remained unpaid. And, finding that Bessie, the stepmother, had stood in loco parentis to the insured for at least one year prior to his entry into active service, it concluded that both she and Clara Belle, the natural mother, were parents who “last bore that relationship” and thus qualified to take the remaining proceeds by devolution under § 602 (h) (3) (C) of the Act. The installments which had matured during the stepmother’s lifetime were shared equally between her estate and Clara Belle; installments thereafter maturing were awarded to the latter alone.
The Court of Appeals agreed. Conceding that the literal wording of the statute went “a long way” toward sustaining the Government’s opposing contentions, the court, fearful of unfortunate consequences that might flow from strict adherence to the text of the Act, nevertheless ruled that estates of deceased beneficiaries might take. And, noting its disagreement with the Second Circuit’s ruling in Baumet v. United States, it further held that one in loco parentis who qualified as a beneficiary under § 602 (h)(3)(C) of the Act did not necessarily exclude from participation in policy proceeds a natural parent of the same sex who also “last bore” the parental relationship to the insured.
We granted certiorari to settle problems important in the administration of the National Service Life Insurance Act and to resolve conflicting statutory interpretations by the Courts of Appeals. 342 U. S. 917.
Congress through war risk insurance legislation has long sought to protect from financial hardship the surviving families of those who had served under the nation’s flag. Comprehensive insurance programs enacted in 1917, 1940, and 1951 reflect this consistent legislative concern in times of crisis. Since public funds were to meet a large part of the programs’ cost, the statutes closely circumscribed the class of permissible takers to preclude those not the object of congressional concern from draining the treasury when hazards of war service multiplied policy maturities. The War Risk Insurance Act of 1917 enumerated only the serviceman’s spouse and immediate blood relatives as permissible beneficiaries of policy proceeds; a beneficiary’s interest was extinguished by death. The National Service Life Insurance Act of 1940, again constricting the class of permissible takers, restates the legislative purpose of the prior Act. In the Servicemen’s Indemnity Act of 1951 the previous restrictions once more appear, reiterated in a flat proviso: "No payment shall be made to the estate of any deceased person.” Accenting these wartime limitations is the liberalizing legislation by which Congress after cessation of hostilities in World Wars I and II placed its insurance programs on more nearly a commercial basis. Amendments to the War Risk Insurance Act in 1919 expanded the permitted beneficiary class to include more distant relatives of the insured, and, significantly, provided that installments payable but unpaid upon a beneficiary’s death might go to his estate. This broadening legislation was substantially reenacted in the World War Veterans’ Act of 1924. And after World War II, Congress in 1946 once more liberalized the benefits of the National Service Life Insurance Act. As to policies maturing after August 1946 it removed the restrictions on the insured’s choice of beneficiary, and in certain instances permitted the payment of installment proceeds to deceased beneficiaries’ estates. From this course of legislation an unmistakable pattern of congressional policy emerges: Statutes enacted in time of war crisis narrow the range of beneficiaries; post-war legislation broadens it.
Section 602 of the N. S. L. I. Act of 1940, governing the distribution of the policy proceeds here in controversy, must take meaning from its historical setting. Cf. United States v. Zazove, 334 U. S. 602 (1948). Subsection (i) conditions the right of a beneficiary to the payment of any installments “upon his or her being alive to receive such payments”; it adds that “no person shall have a vested right to any installment . . . and any installments not paid to a beneficiary during such beneficiary’s lifetime shall be paid to the beneficiary or beneficiaries within the permitted class next entitled to priority . . . .” And subsection (j), so as to disclaim any possible analogy to prior peacetime legislation which at one time had been construed to confer such rights, emphasizes that “no installments of such insurance shall be paid to the heirs or legal representatives as such of the insured or of any beneficiary.” On the contrary, the subsection directs “in the event that no person within the permitted class survives to receive the insurance or any part thereof no payment of the unpaid installments shall be made.”
In the face of this clear statutory language we are nevertheless urged to distinguish installments neither accrued nor paid from accrued installments that an intended beneficiary for some reason has not received. Whereas the former concededly may not pass to the estate of a deceased beneficiary, it is argued that the latter may. For to hold otherwise, the argument runs, might result in “amazing consequences”; the government, for example, by simply withholding payments until one beneficiary died might unjustly enrich another in a lower priority, or, if none survived, favor the public purse; moreover, a low-priority beneficiary by litigating a specious claim might profitably suspend payment until the higher-priority takers died.
We reject the conclusion and its premises. The asserted distinction assumes that when Congress in § 602 (i) conditioned payment to beneficiaries on their “being alive to receive such payments” it meant something else; that it exempted, without words or other indication, installments accrued but not yet paid. But to read such language into subsection (i) strips it of significance; if limited in application to unmatured installments the strictures of that subsection would be mere surplusage, forbidding what the priority ladder of § 602 (h) (3) in any event could not logically permit. We cannot so nullify the clear import of subsection (i). In drafting the 1940 statute, Congress must have been fully cognizant of insurance legislation of the prior war. The 1917 War Risk Insurance Act was well understood to prohibit payment of accrued installments to the estates of beneficiaries who did not live to take their intended shares; the very contention made here today was then examined and rejected. No peacetime amendments, as those which in 1919 and 1924 specifically altered the deliberate wartime result, can aid the contention presented today. The conclusion is irresistible that when in 1940 the law conditioned payments on the beneficiary’s being alive to receive them, Congress said what it meant and meant what it said. Were more needed, the consistent course of administrative practice under the Acts of 1917 and 1940 applied the statutes to bar payments to deceased beneficiaries’ estates; that factor, too, must be accorded weight. United States v. Zazove, supra; United States v. Citizens Loan & Trust Co., 316 U. S. 209 (1942); United States v. Madigan, 300 U. S. 500 (1937). We are not unmindful of the fact that unanticipated delay in the payment of policy proceeds may withhold from a beneficiary the funds that Congress intended him to get; seven years and three deaths have not yet brought this litigation to an end. But we cannot apportion the blame for this cruel delay. And we may surely not speculate that the officials entrusted with the administration of the Act would attempt to enrich other beneficiaries or the treasury itself by a sardonic waiting game.
We conclude that in this crisis legislation Congress, fully aware of the sometimes inevitable delays in payment, preferred the occasionally harsh result to a course of action which would permit funds intended for living members of the narrow statutory class of permissible takers to seep down to an enlarged class of sub-beneficiaries created not by the Act itself but by intended beneficiaries’ testamentary plans. Courts may not flout so unmistakable a legislative purpose, expressed in so clear a congressional command. United States v. Citizens Loan & Trust Co., supra; Wissner v. Wissner, 338 U. S. 655 (1950). We hold that the award of accrued installments to the estates of deceased beneficiaries cannot stand.
There remains the controversy between the natural mother and the United States. The Government contends that because Bessie, the stepmother, had stood in loco parentis to the insured at the time of his death, she was the maternal parent “who last bore that relationship” within the meaning of § 602 (h) (3) (C) ; consequently Clara Belle, the natural mother, despite a District Court finding that she, too, “last bore that relationship,” was displaced and forever lost any right to take by devolution under the Act. In essence, the argument is that no more than one parent of each sex may contemporaneously meet the test imposed by the Act; the “last” parent takes all, to the exclusion of others. And since the “last” parent is now dead, no one may take.
We cannot agree. While the contention has the merit of simplicity, simplicity cannot supplant statutory interpretation. Section 602 (h)(3)(C), too, has a historical setting. The National Service Life Insurance Act as enacted in 1940 confined the class of devolutionary takers to the spouse and blood relatives of the insured. So written the legislation proved unsatisfactory in practice. As construed, that provision required payment of proceeds to an insured’s natural parents though they had abandoned him to be raised and supported wholly by foster parents, the latter being excluded from participation by the Act. Upon recommendation of the Veterans’ Administrator, Congress in 1942 amended the Act to foreclose that result. Persons who stood in loco parentis to the insured for at least one year prior to his entry into active military service were included within the Act’s definition of “parent.” And they qualified as takers by devolution if they “last bore that relationship” to the insured, an essential statutory condition to preclude the parceling out of proceeds among a series of transient hosts and to assure full benefits to those most likely to merit the insured’s financial support. The thrust of the amendment thus was directed at the inclusion of worthy foster parents, not the exclusion of nátural parents however deserving.
It may well be that ordinarily a foster relationship does not begin until natural parental ties, realistically viewed, are severed; if so, the foster parent bears the parental relationship when the natural parent has ceased to be such in truth and fact. And in that case, the clear intent of the 1942 amendments would demand the exclusion, of the natural parent from participation in the proceeds. But since that determination, based on realities, not status, necessarily must depend on the facts of a particular case, it is peculiarly within the competence of others who are closer to the living facts. Here the District Court found that the parental relationship continued until the insured’s death, and the Court of Appeals observed that “there is no finding or evidence of any estrangement, to say nothing of abandonment, or even any lack of parental feeling, between [the insured] and his mother, Clara Belle.” Unable to freeze into formula the subtle family relations that may constitute a genuine parental bond, we must accept what the courts below deemed a continuing parental relationship between mother and son.
Since we hold that Clara Belle Henning, the insured’s natural mother, is a surviving beneficiary entitled to take by devolution under § 602 (h) (3) (C), the Government may of course not invoke the provisions of § 602 (j) to withhold, for the benefit of the National Service Life Insurance Fund, payment of the installments accrued from the date of the insured’s death. It equally follows that the method of distribution of installments to Clara Belle, as “the beneficiary to whom payment is first made,” must depend on her age at the date of policy maturity, subject to her election of an optional settlement as provided by § 602 (h) (1) and (2) and applicable administrative regulations under the Act.
Reversed.
In 1946, the Act was amended prospectively in several material respects. 60 Stat. 781 et seq. Since the policy before us matured in 1945, the 1946 amendments do not govern the distribution of the proceeds here in issue.
The insured at one time had designated his wife as beneficiary and his father as contingent beneficiary. Subsequently he properly changed this designation and named his father as sole beneficiary. The marriage was dissolved prior to the insured’s death. The earlier designation is thus not material here.
93 F. Supp. 380 (D. Mass. 1950).
191 F. 2d 588 (1st Cir. 1951). The Court of Appeals reversed and remanded for proper computation of the installments which it found due the various parties. In view of our disposition of the case, we are not now concerned with that part of its holding.
191 F. 2d 194 (1951), cert. granted, 343 U. S. 925, decided this day, post, p. 82.
E. g., §403, W. R. I. A. of 1917, 40 Stat. 410; §602 et seq., N. S. L. I. Act of 1940, 38 U. S. C. § 802 et seq., see United States v. Zazove, 334 U. S. 602, 616 (1948); Servicemen’s Indemnity Act of 1951, 38 U. S. C. (Supp. V) § 851 et seq.; S. Rep. No. 91, 82d Cong., 1st Sess.; H. R. Rep. No. 6, 82d Cong., 1st Sess.
§ 402; 40 Stat. 409.
Cassarello v. United States, 271 F. 486; Salzer v. United States, 300 F. 764.
§602 (g); 38 U. S. C. § 802 (g).
§ 3; 38 U. S. C. (Supp. V) § 852.
§§ 4,13,19; 41 Stat. 371, 375, 376.
§§ 3, 26; 43 Stat. 607, 614; 38 U. S. C. §§424, 451.
§§ 4, 9; 60 Stat. 782, 785; 38 U. S. C. §§802 (g), (u).
As to the 1946 amendments, see testimony of Mr. Harold W. Breining, Assistant Administrator for Insurance, Veterans’ Administration, Hearings before the Subcommittee on Insurance of the Committee on World War Veterans’ Legislation, House of Representatives, 79th Cong., 2d Sess., on H. R. 5772 and H. R. 5773 (p. 1):
“The fundamental reasons for liberalization are that during the war the bulk of losses all came from the National Treasury. Through this method the Government assumed the losses due to the extra hazards of military and naval services. Since the Government during the war bore the major part of the losses it was not felt that the Government would want to pay, indirectly through this channel, large sums of money to persons who might be beneficiaries only because of some speculation, or because the insured might wish to give it to them as distinguished from persons who were likely to be dependent or to whom the insured might owe some semblance of a moral obligation. These restrictions originally were placed in the law with the clear intent that they would be eliminated when the period of the emergency was over.”
For congressional attitudes in enacting the W. R. I. A. of 1917, see, e. g., 55 Cong. Rec. 6761, 7690, and H. R. Rep. No. 130, 65th Cong., 1st Sess., Pt. 3, p. 5. The legislative history of the 1940 Act contains little expression of congressional intent. The Act was presented while a controversial revenue measure was under consideration. The Committee reports accompanying the revenue bill of which the N. S. L. I. Act became part contain no reference to the insurance legislation. A Conference Committee Report devoted less than a page to the Insurance Act. See H. R. Rep. No. 2894, S. Rep. No. 2114, H. R. Rep. No. 3002, all of the 76th Cong., 3d Sess.
McCullough v. Smith, 293 U. S. 228 (1934); cf. United States v. Citizens Loan & Trust Co., 316 U. S. 209 (1942), both cases involving the 1925 amendments to the World War Veterans’ Act. 43 Stat. 1310, 38 U. S. C. § 514.
Treasury Dept., Bureau of War Risk Insurance, Division of Military and Naval Insurance, Bulletin No. 1, p. 4 (1917); Cassarello v. United States, 271 F. 486 (1919).
24 Comp. Dec. 733 (1918). Cf. American National Bank & Trust Co. v. United States, 77 U. S. App. D. C. 243, 134 F. 2d 674 (1943); United States v. Lee, 101 F. 2d 472 (1939), which interpreted 38 U. S. C. § 516, providing for reinstatement of lapsed World War I policies, as forbidding the payment of installments to the estates of deceased beneficiaries. These holdings turned on the section’s enumeration of a restricted class of permissible takers; estates of deceased persons were held not to fall within that class. The pertinent terms of that enactment are almost identical with portions of §§ 602 (g) and (h) of the National Service Life Insurance Act we must construe today.
Since this policy matured in 1945, we are not here concerned with whatever effects the 1946 amendments to the National Service Life Insurance Act might have on this or similar cases.
See 24 Comp. Dec. 733 (1918); Bulletin, note 16, swpra; Communication to the Solicitor General of the United States from the Solicitor, Veterans’ Administration, dated March 12, 1952, reprinted as Appendix B, Brief for the United States.
§§ 602 (g) and (h)(3)(C), 54 Stat. 1010. The insured, however, was permitted to designate persons in loco parentis as beneficiaries.
S. Rep. No. 1430, 77th Cong., 2d Sess., p. 2; H. R. Rep. No. 2312, 77th Cong., 2d Sess., p. 4. Cf. S. Rep. No. 91, 82d Cong., 1st Sess., p. 12; H. R. Rep. No. 6, 82d Cong., 1st Sess., p. 14.
§§ 7 to 9, 56 Stat. 659; 38 U. S. C. §§801 (f), (g), and (h) (3) (C). Cf. § 3 of the Servicemen’s Indemnity Act of 1951, 38 U. S. C. (Supp. V) § 852.
191 F. 2d, at 593.
38 U. S. C. §802 (h)(1) and (2); 38 CFR, 1944 Supp., § 10.3475 et seq., applicable to this policy which matured in 1945. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them.
Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. | Who is the respondent of the case? | [
"attorney general of the United States, or his office",
"specified state board or department of education",
"city, town, township, village, or borough government or governmental unit",
"state commission, board, committee, or authority",
"county government or county governmental unit, except school district",
"court or judicial district",
"state department or agency",
"governmental employee or job applicant",
"female governmental employee or job applicant",
"minority governmental employee or job applicant",
"minority female governmental employee or job applicant",
"not listed among agencies in the first Administrative Action variable",
"retired or former governmental employee",
"U.S. House of Representatives",
"interstate compact",
"judge",
"state legislature, house, or committee",
"local governmental unit other than a county, city, town, township, village, or borough",
"governmental official, or an official of an agency established under an interstate compact",
"state or U.S. supreme court",
"local school district or board of education",
"U.S. Senate",
"U.S. senator",
"foreign nation or instrumentality",
"state or local governmental taxpayer, or executor of the estate of",
"state college or university",
"United States",
"State",
"person accused, indicted, or suspected of crime",
"advertising business or agency",
"agent, fiduciary, trustee, or executor",
"airplane manufacturer, or manufacturer of parts of airplanes",
"airline",
"distributor, importer, or exporter of alcoholic beverages",
"alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked",
"American Medical Association",
"National Railroad Passenger Corp.",
"amusement establishment, or recreational facility",
"arrested person, or pretrial detainee",
"attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association",
"author, copyright holder",
"bank, savings and loan, credit union, investment company",
"bankrupt person or business, or business in reorganization",
"establishment serving liquor by the glass, or package liquor store",
"water transportation, stevedore",
"bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines",
"brewery, distillery",
"broker, stock exchange, investment or securities firm",
"construction industry",
"bus or motorized passenger transportation vehicle",
"business, corporation",
"buyer, purchaser",
"cable TV",
"car dealer",
"person convicted of crime",
"tangible property, other than real estate, including contraband",
"chemical company",
"child, children, including adopted or illegitimate",
"religious organization, institution, or person",
"private club or facility",
"coal company or coal mine operator",
"computer business or manufacturer, hardware or software",
"consumer, consumer organization",
"creditor, including institution appearing as such; e.g., a finance company",
"person allegedly criminally insane or mentally incompetent to stand trial",
"defendant",
"debtor",
"real estate developer",
"disabled person or disability benefit claimant",
"distributor",
"person subject to selective service, including conscientious objector",
"drug manufacturer",
"druggist, pharmacist, pharmacy",
"employee, or job applicant, including beneficiaries of",
"employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan",
"electric equipment manufacturer",
"electric or hydroelectric power utility, power cooperative, or gas and electric company",
"eleemosynary institution or person",
"environmental organization",
"employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.",
"farmer, farm worker, or farm organization",
"father",
"female employee or job applicant",
"female",
"movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of",
"fisherman or fishing company",
"food, meat packing, or processing company, stockyard",
"foreign (non-American) nongovernmental entity",
"franchiser",
"franchisee",
"lesbian, gay, bisexual, transexual person or organization",
"person who guarantees another's obligations",
"handicapped individual, or organization of devoted to",
"health organization or person, nursing home, medical clinic or laboratory, chiropractor",
"heir, or beneficiary, or person so claiming to be",
"hospital, medical center",
"husband, or ex-husband",
"involuntarily committed mental patient",
"Indian, including Indian tribe or nation",
"insurance company, or surety",
"inventor, patent assigner, trademark owner or holder",
"investor",
"injured person or legal entity, nonphysically and non-employment related",
"juvenile",
"government contractor",
"holder of a license or permit, or applicant therefor",
"magazine",
"male",
"medical or Medicaid claimant",
"medical supply or manufacturing co.",
"racial or ethnic minority employee or job applicant",
"minority female employee or job applicant",
"manufacturer",
"management, executive officer, or director, of business entity",
"military personnel, or dependent of, including reservist",
"mining company or miner, excluding coal, oil, or pipeline company",
"mother",
"auto manufacturer",
"newspaper, newsletter, journal of opinion, news service",
"radio and television network, except cable tv",
"nonprofit organization or business",
"nonresident",
"nuclear power plant or facility",
"owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels",
"shareholders to whom a tender offer is made",
"tender offer",
"oil company, or natural gas producer",
"elderly person, or organization dedicated to the elderly",
"out of state noncriminal defendant",
"political action committee",
"parent or parents",
"parking lot or service",
"patient of a health professional",
"telephone, telecommunications, or telegraph company",
"physician, MD or DO, dentist, or medical society",
"public interest organization",
"physically injured person, including wrongful death, who is not an employee",
"pipe line company",
"package, luggage, container",
"political candidate, activist, committee, party, party member, organization, or elected official",
"indigent, needy, welfare recipient",
"indigent defendant",
"private person",
"prisoner, inmate of penal institution",
"professional organization, business, or person",
"probationer, or parolee",
"protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer",
"public utility",
"publisher, publishing company",
"radio station",
"racial or ethnic minority",
"person or organization protesting racial or ethnic segregation or discrimination",
"racial or ethnic minority student or applicant for admission to an educational institution",
"realtor",
"journalist, columnist, member of the news media",
"resident",
"restaurant, food vendor",
"retarded person, or mental incompetent",
"retired or former employee",
"railroad",
"private school, college, or university",
"seller or vendor",
"shipper, including importer and exporter",
"shopping center, mall",
"spouse, or former spouse",
"stockholder, shareholder, or bondholder",
"retail business or outlet",
"student, or applicant for admission to an educational institution",
"taxpayer or executor of taxpayer's estate, federal only",
"tenant or lessee",
"theater, studio",
"forest products, lumber, or logging company",
"person traveling or wishing to travel abroad, or overseas travel agent",
"trucking company, or motor carrier",
"television station",
"union member",
"unemployed person or unemployment compensation applicant or claimant",
"union, labor organization, or official of",
"veteran",
"voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)",
"wholesale trade",
"wife, or ex-wife",
"witness, or person under subpoena",
"network",
"slave",
"slave-owner",
"bank of the united states",
"timber company",
"u.s. job applicants or employees",
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration",
"War Production Board",
"Wage Stabilization Board",
"General Land Office of Commissioners",
"Transportation Security Administration",
"Surface Transportation Board",
"U.S. Shipping Board Emergency Fleet Corp.",
"Reconstruction Finance Corp.",
"Department or Secretary of Homeland Security",
"Unidentifiable",
"International Entity"
] | [
94
] | sc_respondent |
NELSON, WARDEN v. GEORGE
No. 595.
Argued March 31, 1970
Decided June 29, 1970
Louise H. Renne, Deputy Attorney General of California, argued the cause for petitioner. With her on the briefs were Thomas C. Lynch, Attorney General, Albert W. Harris, Jr., Assistant Attorney General, and Edward P. O’Brien, Deputy Attorney General.
George A. Gumming, Jr., by appointment of the Court, 397 U. S. 901, argued the cause and filed a brief for respondent.
Mr. Chief Justice Burger
delivered the opinion of the Court.
We granted the writ in this case to consider whether the respondent, presently confined in California under a state conviction, may utilize the federal courts in California to test the validity of a North Carolina sentence before beginning to serve that sentence and while under a detainer filed by North Carolina. Respondent claims the sentence yet to be served in North Carolina is “consecutive” under Peyton v. Rowe, 391 U. S. 54 (1968). However, since his petition challenges the present effect being given the North Carolina detainer by the California authorities, particularly with respect to granting him parole, we have concluded that as to that claim respondent failed to exhaust his state remedies and accordingly do not reach the question for which the writ was granted.
The record discloses that on April 27, 1964, John Edward George was convicted on a plea of guilty in a California court of first-degree robbery. He began serving his sentence of five years to life at San Quentin. Following his conviction, detainers were filed in California by the States of Kansas, Nevada, and North Carolina, on June 4, 10, and 11, 1964, respectively.
Exercising his right under Article III (a) of the interstate “Agreement on Detainers,” George requested temporary release to stand trial on the underlying robbery charge pending in North Carolina. Accordingly, on July 20, 1966, he was released to North Carolina authorities and transported there to stand trial. The North Carolina trial was held, and on February 8, 1967, George was convicted and sentenced to imprisonment for 12 to 15 years. The conviction was thereafter affirmed, State v. George, 271 N. C. 438, 156 S. E. 2d 845 (1967).
Following the North Carolina trial George was returned to San Quentin to complete service of his California sentence. On April 14, 1967, the clerk of the Gaston County Superior Court addressed a letter to the Records Officer at San Quentin advising that George was “wanted at the termination of his imprisonment there for return to this jurisdiction to serve the sentence imposed in the Superior Court of Gaston County, North Carolina.” The Warden of San Quentin acknowledged the detainer, indicating that it was “noted in our records.”
George then brought a petition for habeas corpus in the United States District Court for the Northern District of California in which he sought to attack not his California conviction, for which he was then incarcerated, but the North Carolina conviction for which the detainer had been filed. The District Court denied the application by order dated March 1, 1968, on the ground that McNally v. Hill, 293 U. S. 131 (1934), foreclosed habeas corpus relief on the North Carolina conviction while George was still in custody under the prior California judgment.
George filed a petition for rehearing in the District Court in which he argued that even though he was actually serving time in a California jail and thus not technically serving his North Carolina sentence, habeas corpus was not foreclosed since the North Carolina detainer operated as a form of constructive custody. In support of his contention he drew upon the language in Arketa v. Wilson, 373 F. 2d 582 (C. A. 9th Cir. 1967), to the effect that the strict rule of McNally v. Hill had been somewhat eroded by this Court’s subsequent decisions in Ex parte Hull, 312 U. S. 546 (1941), and Jones v. Cunningham, 371 U. S. 236 (1963), and that “it appears that there are situations in which the writ can be used to free a petitioner from a certain type of custody, rather than from all custody.” Arketa v. Wilson, supra, at 584. George argued that the North Carolina warrant was “a form of custody” since it affected his custodial classification and probability of parole on his California sentence. On March 20, 1968, the District Court denied the petition for rehearing and George appealed to the Court of Appeals for the Ninth Circuit.
Our decision in Peyton v. Rowe intervened. In that case we overruled McNally v. Hill, 293 U. S. 131 (1934), and held that a state prisoner serving consecutive sentences in the forum state is “in custody” under each sentence for purposes of jurisdiction for collateral attack under 28 U. S. C. § 2241 (c)(3), thus permitting a federal habeas corpus action to test a future state sentence while he is serving an earlier sentence. In Peyton v. Rowe the consecutive sentences were imposed by the forum State, and the sentences were being served in that State’s prison. Unlike the case now before us, in such a single-state situation the challenge to the continuing vitality of Ahrens v. Clark, 335 U. S. 188 (1948), does not arise. See Word v. North Carolina, 406 F. 2d 352 (C. A. 4th Cir. 1969).
As we have noted, having named the Warden of San Quentin as the respondent in his amended petition to the Federal District Court in California and having had his petition refused, George sought rehearing. In that application George alleged that the California authorities had imposed upon him a “form of custody” because of the North Carolina detainer. Specifically, he alleged that the mere presence of the detainer adversely affected the probability of his securing parole and the degree of security in which he was detained by state authorities. California denies that the existence of the detainer has any consequences affecting his parole potential or custodial status.
Since the Full Faith and Credit Clause does not require that sister States enforce a foreign penal judgment, Huntington v. AttrilL, 146 U. S. 657 (1892); cf. Milwaukee County v. M. E. White Co., 296 U. S. 268, 279 (1935), California is free to consider what effect, if any, it will give to the North Carolina detainer in terms of George’s present “custody.” Because the petition for rehearing raised precisely such a challenge to the California “custody,” a matter that has not yet been presented to the California courts, we conclude that respondent George has not yet exhausted his California remedies. See Ex parte Royall, 117 U. S. 241 (1886).
Respondent insists that the very presence of the North Carolina detainer has and will continue to have an adverse impact on California’s consideration of his claim for parole. Therefore, the United States District Court in California should retain jurisdiction of the petition for habeas corpus relief pending respondent’s further application to the California courts for whatever relief, if any, may be available and appropriate if he establishes his claim that North Carolina’s detainer interferes with relief that might, in the absence of the detainer, be granted by California. We affirm the judgment of the Court of Appeals to the extent it finds jurisdiction in the District Court to consider respondent’s claims with respect to the impact of the detainer if respondent elects to press those claims after he exhausts his remedies in the California courts.
Affirmed.
Mr. Justice Blackmun took no part in the consideration or decision of this case.
Under California law the sentence for first-degree robbery is an indeterminate five years to life sentence in the discretion of the California Adult Authority. Cal. Pen. Code § 213.
Cal. Pen. Code § 1389 (Supp. 1968).
App. 26.
Ҥ 2241. Power to grant writ.
“(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions. The order of a circuit judge shall be entered in the records of the district court of the district wherein the restraint complained of is had.
“(e) The writ of habeas corpus shall not extend to a prisoner unless—
“(3) He is in custody in violation of the Constitution or laws or treaties of the United States . . .
In that case Chief Judge Haynsworth, expressing the views of the majority of the Court of Appeals for the Fourth Circuit sitting en banc, concluded that Ahrens v. Clark was a venue decision, and that the physical presence of the petitioner within the district was not an invariable requirement if rigid adherence to the rule would leave one in prison without an effective remedy. .The legislative history of the 1966 amendments to 28 U. S. C. § 2241 (d) (1964 ed., Supp. V) suggests that Congress may have intended to endorse and preserve the territorial rule of Ahrens to the extent that it was not altered by those amendments. See H. R. Rep. No. 1894, 89th Cong., 2d Sess., 1-2 (1966). See also S. Rep. No. 1502, 89th Cong., 2d Sess. (1966). Those changes were made by Congress, of course, prior to our decision in Peyton v. Rome; necessarily Congress could not have had the multistate problem with which we are now confronted in mind. Whether, in light of the legislative history of § 2241 (d) and the changed circumstances brought about by Peyton v. Rowe, the rigor of our Ahrens holding may be reconsidered is an issue upon which we reserve judgment.
However, we note that prisoners under sentence of a federal court are confronted with no such dilemma since they may bring a challenge at any time in the sentencing court irrespective of where they may be incarcerated. 28 U. S. C. § 2255, It is anomalous that the federal statutory scheme does not contemplate affording state prisoners that remedy. The obvious, logical, and practical solution is an amendment to § 2241 to remedy the shortcoming that has become apparent following the holding in Peyton v. Rowe. Sound judicial administration calls for such an amendment.
We are not here concerned with the scope of California’s ultimate duty, imposed by Art. IV, § 2, cl. 2, of the Constitution, to extradite persons wanted for trial or execution of sentence in a sister State. We note only that, until the obligation to extradite matures, the Full Faith and Credit Clause does not require California to enforce the North Carolina penal judgment in any way. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari. | What reason, if any, does the court give for granting the petition for certiorari? | [
"case did not arise on cert or cert not granted",
"federal court conflict",
"federal court conflict and to resolve important or significant question",
"putative conflict",
"conflict between federal court and state court",
"state court conflict",
"federal court confusion or uncertainty",
"state court confusion or uncertainty",
"federal court and state court confusion or uncertainty",
"to resolve important or significant question",
"to resolve question presented",
"no reason given",
"other reason"
] | [
10
] | sc_certreason |
DRESNER et al. v. CITY OF TALLAHASSEE.
No. 35.
Argued October 23, 1963.
Questions certified to Supreme Court of Florida December 2, 1963.
Decided June 22, 1964.
Howard Dixon and Carl Rachlin argued the cause for petitioners. With them on the briefs were Alfred I. Hopkins and Tobias Simon.
Edward J. Hill and Roy T. Rhodes argued the cause for respondent. With them on the brief was Rivers Buford, Jr.
Per Curiam.
The questions which this Court certified to the Supreme Court of Florida, 375 U. S. 136, having been answered in the affirmative, 164 So. 2d 208, the writ of certiorari is dismissed as improvidently granted. 28 U. S. C. § 1257. | What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations | What is the ideological direction of the decision reviewed by the Supreme Court? | [
"Conservative",
"Liberal",
"Unspecifiable"
] | [
0
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GENERAL MOTORS CORP. v. TRACY, TAX COMMISSIONER OF OHIO
No. 95-1232.
Argued October 7, 1996
Decided February 18, 1997
Timothy B. Dyk argued the cause for petitioner. With him on the briefs were Gregory A. Castanias and John C. Duffy, Jr.
Jeffrey S. Sutton, State Solicitor of Ohio, argued the cause for respondent. With him on the brief were Betty D. Montgomery, Attorney General, and Barton A. Hubbard, Robert C. Maier, Paul A. Colbert, and Thomas McNamee, Assistant Attorneys General.
Briefs of amici curiae urging reversal were filed for the Chamber of Commerce of the United States et al. by Walter Hellerstein, Carter G. Phillips, Rebecca H. Noecker, Karen L. Pauley, Robin S. Conrad, and Jan S. Amundson; and for the Process Gas Consumers Group et al. by Jerome B. Libin and William H. Penniman.
Briefs of amici curiae urging affirmance were filed for the State of Kansas et al. by Carla J. Stovall, Attorney General of Kansas, and Stephen R. McAllister, Special Assistant Attorney General, and by the Attorneys General for their respective States as follows: Daniel E. Lungren of California, Richard Blumenthal of Connecticut, James E. Ryan of Illinois, Frankie Sue Del Papa of Nevada, Heidi Heitkamp of North Dakota, James S. Gilmore III of Virginia, and Darrell V. McGraw, Jr., of West Virginia; for the National Association of Regulatory Utility Commissioners by William Paul Rodgers, Jr.; and for Columbia Gas of Ohio, Inc., by Kenneth W. Christman.
Pauli Mines and Richard D. Pomp filed a brief for the Multistate Tax Commission as amicus curiae.
Justice Souter
delivered the opinion of the Court.
The State of Ohio imposes its general sales and use taxes on natural gas purchases from all sellers, whether in-state or out-of-state, except regulated public utilities that meet Ohio’s statutory definition of a “natural gas company.” The question here is whether this difference in tax treatment between sales of gas by domestic utilities subject to regulation and sales of gas by other entities violates the Commerce Clause or Equal Protection Clause of the Constitution. We hold that it does not.
I
During the tax period at issue, Ohio levied a 5% tax on the in-state sales of goods, including natural gas, see Ohio Rev. Code Ann. §§5739.02, 5739.025 (Supp. 1990), and it imposed a parallel 5% use tax on goods purchased out-of-state for use in Ohio. See §5741.02 (1986). Local jurisdictions were authorized to levy certain additional taxes that increased these sales and use tax rates to as much as 7% in some municipalities. See §5739.025 (Supp. 1990); Reply Brief for Petitioner 13, n. 11.
Since 1935, when Ohio’s first sales and use taxes were imposed, the State has exempted natural gas sales by “natural gas companies]” from all state and local sales taxes. § 5739.02(B)(7). Under Ohio law, “[a]ny person . . . [i]s a natural gas company when engaged in the business of supplying natural gas for lighting, power, or heating purposes to consumers within this state.” § 5727.01(D)(4) (1996); see also § 5727.01(E)(4) (Supp. 1990); § 5727.01(E)(8) (1986). It is undisputed that natural gas utilities (generally termed “local distribution companies” or LDC’s) located in Ohio satisfy this definition of “natural gas company.” The Supreme Court of Ohio has, however, interpreted the statutory term to exclude non-LDC gas sellers, such as producers and independent marketers, see Chrysler Corp. v. Tracy, 73 Ohio St. 3d 26, 652 N. E. 2d 185 (1995), and the State has accordingly treated their sales as outside the exemption and so subject to the tax.
The very question of such an exclusion, and consequent taxation of gas sales or use, reflects a recent stage of evolution in the structure of the natural gas industry. Traditionally, the industry was divisible into three relatively distinct segments: producers, interstate pipelines, and LDC’s. This market structure was possible largely because the Natural Gas Act of 1938 (NGA), 52 Stat. 821,15 U. S. C. § 717 et seq., failed to require interstate pipelines to offer transportation services to third parties wishing to ship gas. As a result, “interstate pipelines [were able] to use their monopoly power over gas transportation to create and maintain monopsony power in the market for the purchase of gas at the wellhead and monopoly power in the market for the sale of gas to LDCs.” Pierce, The Evolution of Natural Gas Regulatory Policy, 10 Nat. Resources & Env’t 53, 53-54 (Summer 1995) (hereinafter Pierce). For the most part, then, producers sold their gas to the pipelines, which resold it to utilities, which in turn provided local distribution to consumers. See, e. g., Associated Gas Distributors v. FERC, 824 F. 2d 981, 993 (CADC 1987), cert. denied, 485 U. S. 1006 (1988); Mogel & Gregg, Appropriateness of Imposing Common Carrier Status on Interstate Natural Gas Pipelines, 4 Energy L. J. 155, 157 (1983).
Congress took a first step toward increasing competition in the natural gas market by enacting the Natural Gas Policy Act of 1978, 92 Stat. 3350, 15 U. S. C. § 3301 et seq., which was designed to phase out regulation of wellhead prices charged by producers of natural gas, and to “promote gas transportation by interstate and intrastate pipelines” for third parties. 57 Fed. Reg. 13271 (1992). Pipelines were reluctant to provide common carriage, however, when doing so would displace their own sales, see Associated Gas Distributors v. FERC, supra, at 993, and in 1985, the Federal Energy Regulatory Commission (FERC) took the further step of promulgating Order No. 436, which contained an “open access” rule providing incentives for pipelines to offer gas transportation services, see 50 Fed. Reg. 42408. In 1992, this evolution culminated in FERC’s Order No. 636, which required all interstate pipelines to “unbundle” their transportation services from their own natural gas sales and to provide common carriage services to buyers from other sources that wished to ship gas. See 57 Fed. Reg. 13267.
Although FERC did not intrastate pipelines to provide local transportation services to ensure that gas sold by producers and independent marketers could get all the way to the point of consumption, under the system of open access to interstate pipelines that had emerged in the mid-1980’s “larger industrial end-users” began increasingly to bypass utilities’ local distribution networks by “constructing] their own pipeline spurs to [interstate] pipelined]....” Fagan, From Regulation to Deregulation: The Diminishing Role of the Small Consumer Within the Natural Gas Industry, 29 Tulsa L. J. 707,723 (1994). Bypass posed a problem for LDC’s, since the departure of large end users from the system left the same fixed costs to be spread over a smaller customer base. The State of Ohio consequently took steps in 1986 to keep some income from large industrial customers within the utility system by adopting regulations that allowed industrial end users in Ohio to buy natural gas from producers or independent marketers, pay interstate pipelines for interstate transportation, and pay LDC’s for local transportation. See In re Commis sion Ordered Investigation of the Availability of Gas Transportation Service Provided by Ohio Gas Distribution Utilities to End-Use Customers, No. 85-800-GA-COI (Ohio Pub. Util. Comm’n, Apr. 15,1986); see generally Natural Gas Marketing and Transportation Committee, 1990 Annual Report, in Natural Resources Energy and Environmental Law, 1990 Year in Review 57, 91-92, and n. 207 (1991).
This new market structure led to the question whether purchases from non-LDC sellers of natural gas qualified for the state sales tax exemption under Ohio Rev. Code Ann. § 5739.02(B)(7) (Supp. 1990). In Chrysler Corp. v. Tracy, the Ohio Supreme Court held that they do not. The court reasoned that independent marketers do not “suppl[y]” natural gas as required by § 5727.01(D)(4), because they do “not own or control any physical assets to .. . distribute natural gas.” 73 Ohio St. 3d, at 28, 652 N. E. 2d, at 187. This determination of state law led in turn to the case before us now.
During the tax period in question here, petitioner General Motors Corporation (GMC) bought virtually all the natural gas for its Ohio plants from out-of-state marketers, not LDC’s. Respondent Tax Commissioner of Ohio applied the State’s general use tax to GMC’s purchases, and the State Board of Tax Appeals sustained that action. GMC appealed to the Supreme Court of Ohio on two grounds. GMC first contended that its purchases should be exempt from the sales tax because independent marketers fell within the statutory definition of “natural gas company.” The State Supreme Court, citing its decision the same day in Chrysler, rejected this argument. See General Motors Corp. v. Tracy, 73 Ohio St. 3d 29, 30, 652 N. E. 2d 188, 189 (1995). GMC also argued that denying the tax exemption to sales by marketers violated the Commerce and Equal Protection Clauses. The Ohio court initially concluded that the State’s regime did not violate the Commerce taxes sales by “companies] that d[o] not own any production, transportation, or distribution equipment” at the same rate regardless of “whether [the companies sell] natural gas instate or out-of-state.” Id., at 31, 652 N. E. 2d, at 190. The court then stepped back to rule, however, that GMC lacked standing to bring its Commerce Clause challenge:
“On close inspection, GM actually argues that the commissioner’s application burdens out-of-state vendors of natural gas. However, GM is not a member of that class and lacks standing to challenge the constitutionality of this application on that basis; our further comment on this question is inappropriate.” Ibid.
Finally, the court dismissed GMC’s equal protection claim as “submerged in its Commerce Clause argument.” Id., at 81-32, 652 N. E. 2d, at 190. We granted GMC’s petition for certiorari to address the question of standing as well as the Commerce and Equal Protection Clause issues. 517 U. S. 1118 (1996).
II
The Supreme Court of Ohio held GMC to be without standing to raise this Commerce Clause challenge because the company is not one of the sellers said to suffer discrimination under the challenged tax laws. But cognizable injury from unconstitutional discrimination against interstate commerce does not stop at members of the class against whom a State ultimately discriminates, and customers of that class may also be injured, as in this case where the customer is liable for payment of the tax and as a result presumably pays more for the gas it gets from out-of-state producers and marketers. Consumers who suffer this sort of injury from regulation forbidden under the Commerce Clause satisfy the standing requirements of Article III. See generally Lujan v. Defenders of Wildlife, 504 U. S. 555, 560-561 (1992).
On similar facts, we held in Bacchus Imports, Ltd. v. Dias, 468 U. S. 263 (1984), that in-state liquor wholesalers had standing to raise a Commerce Clause challenge to a Hawaii tax regime exempting certain alcohols produced in-state from liquor taxes. Although the wholesalers were not among the class of out-of-state liquor producers allegedly burdened by Hawaii’s law, we reasoned that the wholesalers suffered economic injury both because they were directly liable for the tax and because the tax raised the price of their imported goods relative to the exempted in-state beverages. Id., at 267; see also Fulton Corp. v. Faulkner, 516 U. S. 325 (1996) (in-state stockholder challenged tax regime imposing higher taxes on sto'ck from issuers with out-of-state operations than on stock from purely in-state issuers); West Lynn Creamery, Inc. v. Healy, 512 U. S. 186 (1994) (in-state milk dealers challenged tax and subsidy scheme discriminating against out-of-state milk producers). Bacchus applies with equal force here, and GMC “plainly ha[s] standing to challenge the tax in this Court,” Bacchus Imports v. Dias, supra, at 267. We therefore turn to the merits.
h — I I — I
I
The negative or dormant implication of the Commerce Clause prohibits state taxation, see, e. g., Quill Corp. v. North Dakota, 504 U. S. 298, 312-313 (1992), or regulation, see, e. g., Brown-Forman Distillers Corp. v. New York State Liquor Authority, 476 U. S. 573, 578-579 (1986), that discriminates against or unduly burdens interstate commerce and thereby “imped[es] free private trade in the national marketplace,” Reeves, Inc. v. Stake, 447 U. S. 429, 437 (1980). GMC claims that Ohio’s differential tax treatment of natural gas sales by marketers and regulated local utilities constitutes “facial” or “patent” discrimination in violation of the Commerce Clause, and it argues that differences in the nature of the businesses of LDC’s and interstate marketers cannot justify Ohio’s differential treatment of these in-state and out-of-state entities. Although the claim is not that the Ohio tax scheme distinguishes in express terms between instate and out-of-state entities, GMC argues that by granting the tax exemption solely to LDC’s, which are in fact all located in Ohio, the State has “favor[ed] some in-state commerce while disfavoring all out-of-state commerce,” Brief for Petitioner 16. That is, because the favored entities are all located within the State, “the tax exemption did not need to be drafted explicitly along state lines in order to demonstrate its discriminatory design,” Amerada Hess Corp. v. Director, Div. of Taxation, N. J. Dept. of Treasury, 490 U. S. 66, 76 (1989). Assessing these arguments requires an understanding of the historical development of the contemporary retail market for natural gas, to which we referred before and now turn in greater detail.
B
Since before the Civil War, gas manufactured from coal and other commodities had been used for lighting purposes, and of course it was understood that natural gas could be used, the same way. See Dorner, Initial Phases of Regulation of the Gas Industry, in 1 Regulation of the Gas Industry §§ 2.03-2.06 (American Gas Assn. 1996) (hereinafter Dorner). By the early years of this century, areas in “proximity to the gas field[s],” West v. Kansas Natural Gas Co., 221 U. S. 229, 246 (1911), did use natural gas for fuel, but it was not until the 1920’s that the development of high-tensile steel and electric welding permitted construction of high-pressure pipelines to transport natural gas from gas fields for distant consumption at relatively low cost. Pierce 53. By that time, the States’ then-recent experiments with free market competition in the manufactured gas and electricity industries had dramatically underscored the need for comprehensive regulation of the local gas market. Companies supplying manufactured gas proliferated in the latter half of the 19th century and, after initial efforts at regulation by statute at the state level proved unwieldy, the States generally left any regulation of the industry to local governments. See Dorner §§2.03, 2.04. Many of those municipalities honored the tenets of laissez-faire to the point of permitting multiple gas franchisees to serve a single area and relying on competition to protect the public interest. Ibid. The results were both predictable and disastrous, including an initial period of “wasteful competition,” followed by massive consolidation and the threat of monopolistic pricing. The public suffered through essentially the same evolution in the electric industry. Thus, by the time natural gas became a widely marketable commodity, the States had learned from chastening experience that public streets could not be continually torn up to lay competitors’ pipes, that investments in parallel delivery systems for different fractions of a local market would limit the value to consumers of any price competition, and that competition would simply give over to monopoly in due course. It seemed virtually an economic necessity for States to provide a single, local franchise with a business opportunity free of competition from any source, within or without the State, so long as the creation of exclusive franchises under state law could be balanced by regulation and the imposition of obligations to the consuming public upon the franchised retailers.
Almost as soon as the States began regulating natural gas retail monopolies, their power to do so was challenged by interstate vendors as inconsistent with the dormant Commerce Clause. While recognizing the interstate character of commerce in natural gas, the Court nonetheless affirmed the States’ power to regulate, as a matter of local concern, all direct sales of gas to consumers within their borders, absent congressional prohibition of such state regulation. See, e. g., Pennsylvania Gas Co. v. Public Serv. Comm’n of N. Y., 252 U. S. 23, 28-31 (1920); Public Util. Comm’n of Kan. v. Landon, 249 U. S. 236, 245-246 (1919). At the same time, the Court concluded that the dormant Commerce Clause prevents the States from regulating interstate transportation or sales for resale of natural gas. See, e. g., Missouri ex rel. Barrett v. Kansas Natural Gas Co., 265 U. S. 298, 307-310 (1924); Pennsylvania v. West Virginia, 262 U. S. 553, 596-600, reaffirmed on rehearing, 263 U. S. 350 (1923). See generally Illinois Natural Gas Co. v. Central Ill. Public Service Co., 314 U. S. 498, 504-505 (1942) (summarizing prior cases distinguishing between permissible and impermissible state regulation of commerce in natural gas). Thus, the Court never questioned the power of the States to regulate retail sales of gas within their respective jurisdictions. Dorner § 2.06.
When federal regulation of the natural gas industry finally began in 1938, Congress, too, clearly recognized the value of such state-regulated monopoly arrangements for the sale and distribution of natural gas directly to local consumers. Thus, § 1(b) of the NGA, 15 U.S.C. § 717(b), explicitly exempted “local distribution of natural gas” from federal regulation, even as the NGA authorized the Federal Power Commission (FPC) to begin regulating interstate pipelines. Congress’s purpose in enacting the NGA was to fill the regulatory void created by the Court’s earlier decisions prohibiting States from regulating interstate transportation and sales for resale of natural gas, while at the same time leaving undisturbed the recognized power of the States to regulate all in-state gas sales directly to consumers. Panhandle Eastern Pipe Line Co. v. Public Serv. Comm’n of Ind., 332 U. S. 507, 516-522 (1947). Thus, the NGA “was drawn with meticulous regard for the continued exercise of state power, not to handicap or dilute it in any way,” id., at 517-518; “the scheme was one of cooperative action between federal and state agencies” to “protect consumers against exploitation at the hands of natural gas companies,” id., at 520 (internal quotation marks omitted); and “Congress’ action . . . was an unequivocal recognition of the vital interests of the states and their people, consumers and industry alike, in the regulation of rates and service,” id., at 521; see also Panhandle Eastern Pipe Line Co. v. Michigan Pub. Serv. Comm’n, 341 U. S. 329, 334 (1951) (“Direct sales [of natural gas] for consumptive use were designedly left to state regulation” by the NGA). Indeed, the Court has construed §l(b) of the NGA as altogether exempting state regulation of in-state retail sales of natural gas from attack under the dormant Commerce Clause:
“The declaration [in the NGA], though not identical in terms with the one made by the McCarran Act, 59 Stat. 33,15 U. S. C. § 1011, concerning continued state regulation of the insurance business, is in effect equally clear, in view of the [NGA’s] historical setting, legislative history and objects, to show intention for the states to continue with regulation where Congress has not expressly taken over. Cf. Prudential Ins. Co. v. Benjamin, 328 U. S. 408 [(1946) (upholding discriminatory state taxation of out-of-state insurance companies as authorized by the McCarran Act)].” Panhandle-Indiana, supra, at 521.
And Congress once again acknowledged the important role of the States in regulating intrastate transportation and distribution of natural gas in 1953 when, in the wake of a decision of this Court permitting the FPC to regulate intrastate gas transportation by LDC’s, see FPC v. East Ohio Gas Co., 338 U. S. 464 (1950), Congress amended the NGA to “leav[e] jurisdiction” over “companies engaged in the distribution” of natural gas “exclusively in the States, as always has been intended.” S. Rep. No. 817, 83d Cong., 1st Sess., 1-2 (1953); see 15 U.S. C. § 717(c).
For 40 years, the complementary federal regulation of the interstate market and congressionally approved state regulation of the intrastate gas trade thus endured unchanged in any way relevant to this case. The resulting market structure virtually precluded competition between LDC’s and other potential suppliers of natural gas for direct sales to consumers, including large industrial consumers. The simplicity of this dual system of federal and state regulation began to erode in 1978, however, when Congress first encouraged interstate pipelines to provide transportation services to end users wishing to ship gas, and thereby moved toward providing a real choice, to those consumers who were able to buy gas on the open market and were willing to take it free of state-created obligations to the buyer. The upshot of congressional and regulatory developments over the next 15 years was increasing opportunity for a consumer in that class to choose between gas sold by marketers and gas bundled with rights and benefits mandated by state regulators as sold by LDC’s. But amidst such changes, two things remained the same throughout the period involved in this case. Congress did nothing to limit the States’ traditional autonomy to authorize and regulate local gas franchises, and the local franchised utilities (though no longer guaranteed monopolies as to all natural gas demand) continued to provide bundled gas to the vast majority of consumers who had neither the capacity to buy on the interstate market nor the resilience to forgo the reliability and protection that state regulation provided.
To this day, all 50 States recognize the need to regulate utilities engaged in local distribution of natural gas. Ohio’s treatment of its gas utilities has been a typical blend of limitation and affirmative obligation. Its natural gas utilities, during the period in question, bore with a variety of requirements: they had to submit annual forecasts supply and demand for gas, Ohio Rev. Code Ann. §4905.14 (Supp. 1990), comply with a range of accounting, reporting, and disclosure rules, §§4905.14, 4905.15 (1977 and Supp. 1990), and get permission from the state Public Utilities Commission to issue securities and even to enter certain contracts, §§4905.40, 4905.41, 4905.48. The “just and reasonable” rates to which they were restricted, see §§4905.22, 4905.32, 4909.15, 4909.17, included a single average cost of gas, see Ohio Admin. Code 4901:1-14, Ohio Monthly Record (Nov. 1991), together with a limited return on investment. The LDC’s could not exact “a greater or lesser compensation for any services rendered . . . than [exacted] . . . from any other [customer] for doing a like and contemporaneous service under substantially the same circumstances and conditions.” Ohio Rev. Code Ann. § 4905.33 (Supp. 1990).
The State also required LDC’s to serve all members of the public, without discrimination, throughout their fields of operations. See, e. g., Industrial Gas Co. v. Public Utilities Comm’n of Ohio, 135 Ohio St. 408, 21 N. E. 2d 166 (1939). They could not “pick out good portions of a particular territory, serve only select customers under private contract, and refuse service ... to ... other users,” id., at 413, 21 N. E. 2d, at 168, or terminate service except for reasons defined by statute and by following statutory procedures, Ohio Rev. Code Ann. §§4933.12, 4933.121 (Supp. 1990). When serving “human needs” consumers including “residential [and] other customers ... where the element of human welfare [was] the predominant factor,” In re Commission Ordered Investigation of the Availability of Gas Transportation Service Provided by Ohio Gas Distribution Utilities to End-Use Customers, No. 85-800-GA-COI (Ohio Pub. Util. Comm’n, Aug. 1,1989), Ohio LDC’s were required to provide a firm backup supply of gas, see ibid., and administer specific protective schemes, as by helping to assure a degree of continued service to low-income customers despite unpaid bills. See, e. g., Ohio Admin. Code 4901:1-18 (Ohio Monthly Record Nov. 1991).
IV
The fact that the local utilities continue to provide a product consisting of gas bundled with the services and protections summarized above, a product thus different from the marketer’s unbundled gas, raises a hurdle for GMC’s claim that Ohio’s differential tax treatment of natural gas and independent marketers violates our “‘virtually per se rule of invalidity,’ ” Associated Industries of Mo. v. Lohman, 511 U. S. 641, 647 (1994) (quoting Philadelphia v. New Jersey, 437 U. S. 617, 624 (1978)), prohibiting facial discrimination against interstate commerce.
A
Conceptually, of course, any notion of discrimination assumes a comparison of substantially similar entities. Although this central assumption has more often than not itself remained dormant in this Court’s opinions on state discrimination subject to review under the dormant Commerce Clause, when the allegedly competing entities provide different products, as here, there is a threshold question whether the companies are indeed similarly situated for constitutional purposes. This is so for the simple , reason that the difference in products may mean that the different entities serve different markets, and would continue to do so even if the supposedly discriminatory burden were removed. If in fact that should be the case, eliminating the tax or Other regulatory differential would not serve the dormant Commerce Clause’s fundamental objective of preserving a national market for competition undisturbed by preferential advantages conferred by a State upon its residents or resident competitors. In Justice Jackson’s now-famous words:
“Our system, fostered by the Commerce Clause, is that every farmer and every craftsman shall be encouraged to produce by the certainty that he will have free access to every market in the Nation, that no home embargoes will withhold his exports, and no foreign state will by customs duties or regulations exclude them. Likewise, every consumer may look to the free competition from every producing area in the Nation to protect him from exploitation by any. Such was the vision of the Founders; such has been the doctrine of this Court which has given it reality.” H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 539 (1949).
See also, e. g., Wyoming v. Oklahoma, 502 U. S. 437, 469 (1992) (Scalia, J., dissenting) (“Our negative Commerce Clause jurisprudence grew out of the notion that the Constitution implicitly established a national free market . . .”); Reeves, Inc. v. Stake, 447 U. S., at 437 (The dormant Commerce Clause prevents “state taxes and regulatory measures impeding free private trade in the national marketplace”); Hunt v. Washington State Apple Advertising Comm’n, 432 U. S. 333, 350 (1977) (referring to “the Commerce Clause’s overriding requirement of a national ‘common market’”). Thus, in the absence of actual or prospective competition between the supposedly favored and disfavored entities in a single market there can be no local preference, whether by express discrimination against interstate commerce or undue burden upon it, to which the dormant Commerce Clause may apply. The dormant Commerce Clause protects markets and participants in markets, not taxpayers as such.
Our cases have, however, rarely discussed the comparability of taxed or regulated entities as operators in arguably distinct markets; the closest approach to the facts here occurred in Alaska v. Arctic Maid, 366 U. S. 199 (1961). In Arctic Maid, a 4% tax on the value of salmon taken from territorial waters by so-called freezer ships and frozen for transport and later canning outside the State was challenged as discriminatory in the face of a 1% tax on the value of fish taken from territorial waters and frozen by on-shore cold storage facilities for later sale on the domestic fresh-frozen fish market. The State prevailed on the Court’s holding that the claimants and cold storage facilities served separate markets, did not compete with one another, and thus could not properly be compared for Commerce Clause purposes. The proper comparison, the Court held, was between the freezer ships and domestic salmon canners, who shipped interstate into the same markets served by the freezer ships. Since the canners were taxed even more heavily than the freezer ships, there was no unfavorable burden upon the latter. Id., at 204. Although the Court’s opinion did not discuss the possibility that competition in the domestic fresh-frozen market might have occurred in the absence of the tax disparity between the two types of salmon freezers, the freezer ships had made no attempt to compete in that market and neither claimed nor demonstrated an interest in entering it. See Brief for Respondents in Alaska v. Arctic Maid, O. T. 1960, No. 106, pp. 27-33.
Arctic Maid provides a partial analogy to this case. Here, natural gas marketers did not serve the Ohio LDCs’ core market of small, captive users, typified by residential consumers who want and need the bundled product. See, e. g., Darr, A State Regulatory Strategy for the Transitional Phase of Gas Regulation, 12 Yale J. Reg. 69, 99 (1995) (“[T]he large core residential customer base is bound to the LDC in what currently appears to be a natural-monopoly relationship”); App. 199 (a marketer from which GMC purchased gas does not hold itself out to the general public as a gas supplier, but rather selectively contacts industrial end users that it has identified as potentially profitable customers). While this captive market is not geographically distinguished from the area served by the independent marketers, it is defined economically as comprising consumers who are captive to the need for bundled benefits. These are buyers who live on sufficiently tight budgets to make the stability of rate important, and who cannot readily bear the risk of losing a fuel supply in harsh natural or economic weather. See, e. g., Consolidated Edison Co. of N. Y. v. FERC, 676 F. 2d 763, 766, n. 5 (CADC 1982) (“[Residential users [of natural gas cannot] switch temporarily to other fuels and so they must endure cold homes” if their gas supply is interrupted); Samuels, Reliability of Natural Gas Service for Captive End-Users Under the Federal Energy Regulatory Commission’s Order No. 636, 62 Geo. Wash. L. Rev. 718, 749 (1994) (“Gas service disruptions lasting just a few days can cause severe health risks to captive end-users"). They are also buyers without the high volume requirements heeded to make investment in the transaction costs of individual purchases on the open market economically feasible. Pierce, Intrastate Natural Gas Regulation: An Alternative Perspective, 9 Yale J. Reg. 407, 409-410 (1992) (“Purchasing gas service [from marketers] requires considerable time and expertise. Its benefits are likely to exceed its costs only for consumers who purchase very large quantities of gas”). The demands of this market historically arose free of any influence of differential taxation (since there was none during the pre-1978 period when only LDC’s generally served end users), and because the market’s economic characteristics appear to be independent of any effect attributable to.the State’s sales taxation as imposed today, there is good reason to assume that any pricing changes that could result from eliminating the sales tax differential challenged here would be inadequate to create competition between LDC’s and marketers for the business of the utilities’ core home market.
On the other hand, one circumstance of this case is unlike what Arctic Maid assumed, for there is a possibility of competition between LDC’s and marketers for the noncaptive market. Although the record before this Court reveals virtually nothing about the details of that competitive market, in the period under examination it presumably included bulk buyers like GMC, which have no need for bundled protection, see, e. g., State Issue: Atlanta Gas Light Takes Step to Abandon Gas Sales by Unbundling Services for Non-Core Customers, Foster Natural Gas Report, June 20, 1996, p. 22 (indicating that prior to “unbundling” marketers accounted for 80% of sales to large commercial and industrial users in Georgia), and consumers of middling volumes of natural gas who found some value in Ohio’s state-imposed protections but not enough to offset lower price at some point, see, e. g., Piero-bon, Small Customers: The Yellow Brick Road to Deregulation?, 134 Pub. Utils. Fortnightly, No. 6, pp. 14, 15 (1996) (marketers’ efforts in California are increasingly directed to attracting consumers in the “small commercial sector,” including “schools, hospitals, hotels, restaurants, laundromats, and master-metered apartments,” which currently purchase bundled gas from utilities); Salpukas, New Choices for Natural Gas: Retailers Find Users Puzzled as Industry Deregulates, N. Y. Times, Oct. 23, 1996, pp. DI, D4 (indicating that some natural gas marketers in New York City are attempting to lure “mom-and-pop businesses like restaurants and dry-cleaners” away from LDC’s, with mixed success). Eliminating the sales tax' differential at issue here might well intensify competition between LDC’s and marketers for customers in this noneaptive market.
B
In sum, the LDCs’ bundled product reflects the demand of a market neither susceptible to competition by the interstate sellers nor likely to be served except by the regulated natural monopolies that have historically supplied its needs. So far as this market is concerned, competition would not be served by eliminating any tax differential as between sellers, and the dormant Commerce Clause has no job to do. There is, however, a further market where the respective sellers of the bundled and unbundled products apparently do compete and may compete further. Thus, the question raised by this case is whether the opportunities for competition between marketers and LDC’s in the noncaptive market requires treating marketers and utilities as alike for dormant Commerce Clause purposes. Should we accord controlling significance to the noncaptive market in which they compete, or to the noncompetitive, captive market in which the local utilities alone operate? Although there is no a priori answer, a number of reasons support a decision to give the greater weight to the captive market and the local utilities’ singular role in serving it, and hence to treat marketers and LDC’s as dissimilar for present purposes. First and most important, we must recognize an obligation to proceed cautiously lest we imperil the delivery by regulated LDC’s of bundled gas to the noncompetitive captive market. Second, as a Court we lack the expertness and the institutional resources necessary to predict the effects of judicial intervention invalidating Ohio’s tax scheme on the utilities’ capacity to serve this captive market. Finally, should intervention by the National Government be necessary, Congress has both the resources and the power to strike the balance between the needs of the competitive and captive markets.
1
Where a choice is possible, as it is here, the importance of traditional regulated service to the captive market makes a powerful case against any judicial treatment that might jeopardize LDCs’ continuing capacity to serve the captive market. Largely as a response to the monopolistic shakeout that brought an end to the era of unbridled competition among gas utilities, regulation of natural gas for the principal benefit of householders and other consumers of relatively small quantities is the rule in every State in the Union. Congress has also long recognized the desirability of these state regulatory regimes. Supra, at 291-293. Indeed, half a century ago we concluded that the NGA altogether exempts state regulation of retail sales of natural gas (including in-state sales to large industrial customers) from the strictures of the dormant Commerce Clause, see Panhandle Eastern Pipe Line Co. v. Public Serv. Comm’n of Ind., 332 U. S. 507 (1947), and to this day, notwithstanding the national regulatory revolution, Congress has done nothing to limit its unbroken recognition of the state regulatory authority that has created and preserved the local monopolies. The clear implication is that Congress finds the benefits of the bundled product for captive local buyers well within the realm of what the States may reasonably promote and preserve.
This Court has also recognized the importance of avoiding any jeopardy to service of the state-regulated captive market, and in circumstances remarkably similar to those of the present case. In Panhandle Eastern Pipe Line Co. v. Michigan Pub. Serv. Comm’n, 341 U. S. 329 (1951), Ford Motor Company had entered a contract with an interstate pipeline for supply of gas at Ford’s plant in Dearborn, Michigan, thus bypassing the local distribution company. The Michigan Public Service Commission ordered the pipeline to cease and desist from making direct sales of natural gas to the State’s industrial customers without a certificate of public convenience and necessity, and the pipeline brought a Commerce Clause challenge to the commission’s action. The Court observed that
“[a]ppellant asserts a right to compete for the cream of the volume business without regard to the local public convenience or necessity. Were appellant successful in this venture, it would no doubt be reflected adversely in [the LDC’s] over-all costs of service and its rates to customers whose only source of supply is [the LDC]. This clearly presents a situation of. . . vital interest to the State of Michigan.” Id., at 334.
In view of the economic threat that competition for large industrial consumers posed to gas service to small captive users, the Court again upholding the States’ power to regulate all direct in-state sales to consumers, even if such regulation resulted in an outright prohibition of competition for even the largest end users. Id., at 336-337; see also Panhandle-Indiana, supra (upholding state regulation of direct sales to large industrial users as not pre-empted by the NGA or precluded by the dormant Commerce Clause).
The continuing importance of the States’ interest in protecting the captive market from the effects of competition for the largest consumers is underscored by the common sense of our traditional recognition of the need to accommodate state health and safety regulation in applying dormant Commerce Clause principles. State regulation of natural gas sales to consumers serves important interests in health and safety in fairly obvious ways, in that requirements of dependable supply and extended credit assure that individual buyers of gas for domestic purposes are not frozen out of their houses in the cold months. We have consistently recognized the legitimate state pursuit of such interests as compatible with the Commerce Clause, which was ‘“never intended to cut the States off from legislating on all subjects relating to the health, life, and safety of their citizens, though the legislation might indirectly affect the commerce of the country.’ ” Huron Portland Cement Co. v. Detroit, 362 U. S. 440, 443-444 (1960) (quoting Sherlock v. Alling, 93 U. S. 99, 103 (1876)). Just so may health and safety considerations be weighed in the process of deciding the threshold question whether the conditions entailing application of the dormant Commerce Clause are present.
2
The size of the captive market, its noncompetitive character, the values served by its traditional regulation: all counsel caution before making a choice that could strain the capacity of the States to continue to demand the regulatory benefits that have served the home market of low-volume users since natural gas became readily available. Here we have to assume that any decision to treat the LDC’s as similar to the interstate marketers would change the LDCs’ position in the noncaptive market in which (we are assuming) they compete, at least at the margins, by affecting the overall size of the LDCs’ customer base. As we recognized in Panhandle, a change in the customer base could affect the LDCs’ ability to continue to serve the captive market where there is no such competition.
To be sure, what in fact would happen as a result of treating the marketers and LDC’s alike we do not know. We might assume that eliminating the tax on marketers’ sales would leave those sellers stronger competitors in the noncap-tive market, especially at the market’s boundaries, and that any resulting contraction of the LDCs’ total customer base would increase the unit cost of the bundled product. We might also suppose that the State would not respond to our decision by subjecting the LDC’s and marketers both to the same sales tax now imposed on marketers alone, since utilities are already subject to a complicated scheme of property taxation quite different from the tax treatment of the marketers. It seems, in fact, far more likely that eliminating the tax challenged here would portend, among other things, some reduction of the total taxes levied against LDC’s, in order to strengthen their position in trying to compete with marketers in the noncaptive market.
The degree to which these very general suggestions might prove right or wrong, however, is not really significant; the point is simply that all of them are nothing more than suggestions, pointedly couched in terms of assumption or supposition. This is necessarily so, simply because the Court is institutionally unsuited to gather the facts upon which economic predictions can be made, and professionally untrained to make them. See, e. g., Fulton Corp. v. Faulkner, 516 U. S., at 341-342, and authorities cited therein; Hunter, Federalism and State Taxation of Multistate Enterprises, 32 Emory L. J. 89, 108 (1983) (“It is virtually impossible for a court, with its limited resources, to determine with any degree of accuracy the costs to a town, county, or state of a particular industry”); see also Smith, State Discriminations Against Interstate Commerce, 74 Calif. L. Rev. 1203, 1211 (1986) (noting that “[e]ven expert economists” may have difficulty determining “whether the overall economic benefits and burdens of a regulation favor local inhabitants against outsiders”). We are consequently ill qualified to develop Commerce Clause doctrine dependent on any such predictive judgments, and it behooves us to be as reticent about projecting the effect of applying the Commerce Clause here, as we customarily are in declining to engage in elaborate analysis of real-world economic effects, Fulton Corp., supra, at 341-342, or to consider subtle compensatory tax defenses, Oregon Waste Systems, Inc. v. Department of Environmental Quality of Ore., 511 U. S. 93, 105 (1994). The most we can say is that modification of Ohio’s tax scheme could subject LDC’s to economic pressure that in turn could threaten the preservation of an adequate customer base to support continued provision of bundled services to the captive market. The conclusion counsels against taking the step of treating the bundled gas seller like any other, with the consequent necessity of uniform taxation of all gas sales.
3
Prudence thus counsels against running the risk of weakening or destroying a regulatory scheme of public service and protection recognized by Congress despite its noncompetitive, monopolistic character. Still less is that risk justifiable in light of Congress’s own power and institutional competence to decide upon and effectuate any desirable changes in the scheme that has evolved. Congress has the capacity to investigate and analyze facts beyond anything the Judiciary could match, joined with the authority of the commerce power to run economic risks that the Judiciary should confront only when the constitutional or statutory mandate for judicial choice is clear. See, e. g., Bush v. Lucas, 462 U. S. 367, 389 (1983) (Congress “may inform itself through fact-finding procedures such as hearings that are not available to the courts”). One need not adopt Justice Black’s extreme reticence in Commerce Clause jurisprudence to recognize in this instance the soundness of his statement that a challenge like the one before us “call[s] for Congressional investigation, consideration, and action. The Constitution gives that branch of government the power to regulate commerce among the states, and until it acts I think we should enter the field with extreme caution.” Northwest Airlines, Inc. v. Minnesota, 322 U. S. 292, 302 (1944) (concurring opinion). This conclusion applies a fortiori here, because for a half century Congress has been aware of our conclusion in Panhandle Eastern Pipe Line Co. v. Public Serv. Comm’n of Ind., 332 U. S. 507 (1947), that the NGA exempts state regulation of in-state retail natural gas sales from the dormant Commerce Clause and in the years following that decision has only reaffirmed the power of the States in this regard.
* * *
Accordingly, we conclude that Ohio’s regulatory response to the needs of the local natural gas market has resulted in a noncompetitive bundled gas product that distinguishes its regulated sellers from independent marketers to the point that the enterprises should not be considered “similarly situated” for purposes of a claim of facial discrimination under the Commerce Clause. GMC’s argument that the State discriminates between regulated local gas utilities and unregulated marketers must therefore fail.
C
GMC also suggests that Ohio’s tax regime “facially discriminates” because the State’s sales and use tax exemption would not apply to sales by out-of-state LDC’s. See, e. g., Reply Brief for Petitioner 2, n. 1. As respondent points out, however, the Ohio courts might well extend the challenged exemption to out-of-state utilities if confronted with the question. Indeed, in Carnegie Natural Gas Co. v. Tracy, No. 94-K-526 (Ohio Bd. Tax App., Nov. 17, 1995), reported in CCH Ohio Tax Rep. ¶ 402-254, the Ohio Board of Tax Appeals accepted the argument of a Pennsylvania public utility that insofar as the out-of-state utility sold natural gas to Ohio consumers it qualified as a utility under Ohio Rev. Code Ann. §5727.01 and was therefore exempt from the State’s corporate franchise tax. Out-of-state public utilities may therefore also qualify for Ohio’s sales and use tax exemption. Because “we have never deemed a hypothetical possibility of favoritism to constitute discrimination that transgresses constitutional commands,” Associated Industries of Mo. v. Lohman, 511 U. S., at 654, this argument, too, must be rejected.
V
Finally, GMC claims that Ohio’s tax regime violates the Equal Protection Clause by treating LDCs’ natural gas sales differently from those of producers and marketers. Once again, the hurdle facing GMC is a high one, since state tax classifications require only a rational basis to satisfy the Equal Protection Clause. See, e. g., Amerada Hess Corp. v. Director, Div. of Taxation, N. J. Dept. of Treasury, 490 U. S., at 80. Indeed, “in taxation, even more than in other fields, legislatures possess the greatest freedom in classification.” Madden v. Kentucky, 309 U. S. 83, 88 (1940).
It is true, of course, that in some peculiar circumstances state tax classifications facially discriminating against interstate commerce may violate the Equal Protection Clause even when they pass muster under the Commerce Clause. See Metropolitan Life Ins. Co. v. Ward, 470 U. S. 869, 874-883 (1985). But as we explain in Part IV, supra, Ohio’s differential tax treatment of LDC and independent marketer sales does not facially discriminate against interstate commerce. And in any event, there is unquestionably a rational basis for Ohio’s distinction between these two kinds of entities.
* * *
We conclude that Ohio’s differential tax treatment of public utilities and independent marketers violates neither the Commerce Clause nor the Equal Protection Clause and that petitioner’s claims are without merit otherwise. The judgment of the Supreme Court of Ohio is affirmed.
It is so ordered.
The natural gas purchases that gave rise to petitioner’s challenge were made during the period from October 1,1986, to June 80, 1990.
The exemption was originally codified at Ohio Gen. Code Ann. § 5546-2(6) (Baldwin 1952). As part of a general recodification in 1953, it was moved to Ohio Rev. Code Ann. § 5739.02(B)(7), where it remains today.
Section 1(b) of the NGA, 52 Stat. 821, 15 U. S. C. § 717(b), explicitly exempts “local distribution of natural gas” from federal regulation. In addition, the Hinshaw Amendment to the NGA, 15 U. S. C. § 717(c), exempts from FERC regulation intrastate pipelines that operate exclusively in one State and with rates and service regulated by the State. See ANR Pipeline Co. v. FERC, 71 F. 3d 897, 898, n. 2 (CADC 1995). See also infra, at 293.
App. 156. Pursuant to Ohio’s regulations authorizing LDC’s to provide local transportation services, GMC took delivery of much of this gas from local utilities. Id,., at 156-157.
During this period, “ ‘[t]he public grew weary of the interminable rate wars which were invariably followed by a period of recoupment during which the victorious would attempt to make the price of the battle of the consumers by way of increased rates. Investors suffered heavy losses through the manipulation of fly-by-night paper concerns operating with ‘nuisance’ franchises. . . . Everybody suffered the inconvenience of city streets being constantly torn up and replaced by installation and relocation of duplicate facilities. The situation in New York City alone, prior to the major gas company consolidations, threatened municipal chaos.’” Dorner § 2.03 (quoting Welch, The Odyssey of Gas — A Record of Industrial Courage, 24 Pub. Utils. Fortnightly 500, 501-502 (1939)).
Reticence was not the order of the day. When, for example, the last two surviving gas companies supplying the citizens of Brooklyn announced their merger in October 1883, they also announced that gas prices would immediately double. Dorner §2.03.
The electric industry burgeoned following Thomas Edison’s patent on the first incandescent electric lamp in 1878. Dorner, Beginnings of the Gas Industry, in 1 Regulation of the Gas Industry § 1.06 (American Gas Assn. 1996). Again, after an initial period of unsuccessful regulation by state statute, States mostly left regulation of the electric industry to municipal or local government. Swartwout, Current Utility Regulatory Practice from a Historical Perspective, 32 Nat. Res. J. 289, 298 (1992). “[M]ultiple franchises were handed out, and duplicative utility systems came into being.” Id., at 299. The results were “ruinous and short lived.” Ibid. For example, 45 mostly overlapping franchises were granted for electric utility operation in Chicago between 1882 and 1905. By 1905, however, a single monopoly entity had emerged from the chaos, and customers ended up paying monopoly prices. Id., at 300.
In Arkansas Elec. Cooperative Corp. v. Arkansas Pub. Serv. Comm’n, 461 U. S. 375 (1983), we rejected the bright-line distinction between wholesale and retail sales drawn by these older cases and concluded that state regulation of wholesale sales of electricity transmitted in interstate commerce is not precluded by the Commerce Clause. Reasoning that utilities should not be insulated from our contemporary dormant Commerce Clause jurisprudence by formalistic judge-made rules, id., at 391, we looked instead to “ ‘the nature of the state regulation involved, the objective of the state, and the effect of the regulation upon the national interest in the commerce,’” id., at 390 (quoting Illinois Natural Gas Co. v. Central Ill. Public Service Co., 314 U. S. 498, 505 (1942)), to determine whether States have a sufficient interest in regulating wholesale rates within their borders, and had no problem concluding that States do indeed have such an interest, with the result that state regulation of wholesale rates is not precluded by the Commerce Clause (in the absence of pre-emptive congressional action), id., at 394-395. While the holding of Arkansas Electric thereby expanded both the permissible scope of state utility regulation and judicial recognition of the important state interests in such regulation, the reasoning of the case equally implies that state regulation of retail sales is hot, as a constitutional matter, immune from our ordinary Commerce Clause jurisprudence, and to the extent that our earlier cases may have implied such immunity they are no longer good law. Nothing in Arkansas Electric undermines the earlier cases’ recognition of the powerful state interest in regulating sales to domestic consumers buying at retail, however, which we reaffirm here. In addition, Arkansas Electric does not disturb the relevance of the wholesale/retail distinction for construing the jurisdictional provisions of statutes such as the NGA, which we discuss immediately below. See id., at 380, and n. 3; see also Schneidewind v. ANR Pipeline Co., 485 U. S. 293, 300-301 (1988) (“The NGA confers upon FERC exclusive jurisdiction over the transportation and sale of natural gas in interstate commerce for resale”).
For a more complete description of these changes in federal regulatory-policy, and the relevant modifications of Ohio, regulation of loeal utilities that they prompted, see supra, at 283-285.
Alabama: Ala. Code §37-4-l(7)(b) (Supp. 1996); see generally §§37— 1-80 through 37-1-105 (1992 and Supp. 1996); Alaska: Alaska Stat. Ann. §§42.05.141, 42.05.291, 42.05.990(4)(D) (1989 and Supp. 1995); see generally §§42.05.010-42.05.995; Arizona: Ariz. Rev. Stat. Ann. §§40-201.4, 40-203 (1996); see generally §§40-201 through 40-495; Arkansas: Ark. Code Ann. §§ 23-l-101(4)(A)(i), 23-4-101 (1987 and Supp. 1995); see generally §§23-1-101 through 23-4-637; California: Cal. Pub. Util. Code Ann. §§216, 701 (West 1975 and Supp. 1996); see generally §§201 through 882 (West 1975 and Supp. 1996), §§1001 through 1906 (West 1994 and Supp. 1996); Colorado: Colo. Rev. Stat. §§ 40-l-103(l)(a), 40-3-101 (1993); see generally §§40-1-101 through 40-8.5-107 (1993 and Supp. 1996); Connecticut: Conn. Gen. Stat. Ann. §§ 16-l(a)(4), (9), 16-6b (West 1988 and Supp. 1996); see generally §§16-1 through 16-50f; Delaware: Del. Code Ann., Tit. 26, § 102(2) (Supp. 1996); see generally Tit. 26, §§ 101 through oil (1989 and Supp. 1996); District of Columbia: D. C. Code Ann. §§43-203, 43-212 (1990); see generally §§43-101 through 43-1107 (1990 and Supp. 1996); Florida: Fla. Stat. Ann. §§366.02(1), 366.03 (West Supp. 1997); see generally §§366.01 through 366.14 (West 1968 and Supp. 1997); Georgia: Ga. Code Ann. § 46-2~20(a) (1992); see generally §§ 46-2-20 through 46-2-94 (1992 and Supp. 1996); Hawaii: Haw. Rev. Stat. Ann. §§269-1, 269-6, 269-16 (Michie 1992 and Supp. 1996); see generally §§269-1 through 269-32; Idaho: Idaho Code §§61-129, 61-501, 61-502 (1994); see generally §§61-101 through 61-714; Illinois: Ill. Comp. Stat., ch. 220, §§5/3-105, 5/ 4-101, 5/9-101 (1994); see generally ch. 220, §§5/1-101 through 5/10-204; Indiana: Ind. Code §§8-l-2-l, 8-1-2-4, 8-1-2-87 (West Supp. 1996); see generally §§ 8 — 1—2—1 through 8-1-2-127; Iowa: Iowa Code Ann. §476.1 (West Supp. 1996); see generally §§476.1 through 476.66 (West 1991 and Supp. 1996); Kansas: Kan. Stat. Ann. §§ 66-104, 66-1,200 through 66-1,208 (1985 and Supp. 1995); Kentucky: Ky. Rev. Stat. Ann. § 278.010(3)(c) (Baldwin 1992); see generally §§278.010 through 278.450; Louisiana: La. Rev. Stat. Ann. § 33:4161 (West 1988); see generally §§ 33:4161 through 33:4174, 33:4301 through 33:4308, 33:4491 through 33:4496 (West 1988 and Supp. 1996); Maine: Me. Rev. Stat. Ann., Tit. 35-A, §§ 102, 103, '301 (1988 and Supp. 1996-1997); see generally Tit. 35-A, §§101-1210; Maryland: Md. Ann. Code, Art. 78, §§ 1, 2(o) (1991); see generally Art. 78, §§ 1 through 2, 23 through 27A, 51 through 54K, 68 through 88 (1991 and Supp. 1994); Massachusetts: Mass. Gen. Laws §§ 164:1,164:93, 164:94 (1994); see generally eh. 164, §§1 through 128; Michigan: Mich. Comp. Laws Ann. §§460.6-460.6b (West 1991 and Supp. 1996-1997); see generally §§460.1 through 460.8; Minnesota: Minn. Stat. Ann. §§ 216B.02(4), 216B.03 (West 1992); see generally §§216B.01 through 216B.67 (1994 and Supp. 1995); Mississippi: Miss. Code Ann. §§ 77 — 3—3(d)(ii), 77-3-5 (1991 and Supp. 1996); see generally §§77-3-1 through 77-3-307; Missouri: Mo. Rev. Stat. §§386.020, 393.130 (1994); see generally §§386.010 through 386.710, 393.010 through 393.770; Montana: Mont. Code Ann. §§69-3-101, 69-3-102, 69-3-201 (1995); see generally §§69-3-101 through 69-3-713; Nebraska: Neb. Rev. Stat. §14-2119 (Supp. 1996); see generally §§19-4601 through 19-4623 (1991 and Supp. 1996); Nevada: Nev. Rev. Stat. Ann. § 704.020(2)(a) (1995); see generally §§704.001 through 704.320, 704.755; New Hampshire: N. H. Rev. Stat. Ann. §§362:2,374:1, 374:2 (1995); see generally §§378:1 through 378:42; New Jersey: N. J. Stat. Ann. § 48:2-13 (West Supp. 1996); see generally §§48:2-13 through 48:2-91, 48:9-5 through 48:9-32 (West 1969 and Supp. 1996-1997); New Mexico: N. M. Stat. Ann. §§62-3-3,62-6-4,62-8-1 (1993 and Supp. 1996); see generally §§62-1-1 through 62 — 13—14; New York: N. Y. Pub. Serv. Law §65 (McKinney 1989); see generally §§30 through 52, 64 through 77 (McKinney 1989 and Supp. 1996); North Carolina: N. C. Gen. Stat. §§ 62-3(23), 62-30 (1989 and Supp. 1996); see generally §§62-1 through 62-171; North Dakota: N. D. Cent. Code §§49-02-01, 49-02-02, 49-04-02 (1978 and Supp. 1995); see generally §§49-02-01 through 49-07-06; Ohio: Ohio Rev. Code Ann. §§ 4905.03(A)(6), 4905.04, 4905.22 (1991); see generally §§4901.01-4909.99 (Baldwin 1991 and Supp. 1995); Oklahoma: Okla. Stat., Tit. 17, §§ 15,152,160.1 (West 1986 and Supp. 1997); Oregon: Ore. Rev. Stat. §§ 757.005,757.020,756.040 (1991); see generally §§756.010 through 757.991; Pennsylvania: Pa. Stat. Ann., Tit. 66, §§102, 501,1301 (Purdon 1979 and Supp. 1996-1997); see generally Tit. 66, §§ 101 through 2107; Rhode Island: R. I. Gen. Laws §§ 39-1-2(7), 39-l-3(a) (Supp. 1996); see generally §§39-1-1 through 39-2-19 (1990 and Supp. 1996); South Carolina: S. C. Code Ann. §§58-5-10(3), 58-5-210 (1976 and Supp. 1995); see generally §§58-5-10 through 58-5-1070; South Dakota: S. D. Codified Laws §§49-34A-l, 49-34A-4, 49-34A-6 (1993 and Supp. 1996); see generally §§49-34A-l through 49-34A-78; Tennessee: Tenn. Code Ann. §§65-4-101, 65-5-201 (Supp. 1996); see generally §§65-4-101 through 65-5-205 (1993 and Supp. 1996); Texas: Tex. Rev. Civ. Stat. Ann., Art. 6050, § 1(a)(4), Art. 6053 (Vernon Supp. 1996-1997); see generally Arts. 6050 through 6066g (Vernon 1962 and Supp. 1996-1997); Utah: Utah Code Ann. §§ 54-2-1(8), 54-3-1, 54-4-1 (1994 and Supp. 1996); see generally §§54-2-1 through 54-4-30; Vermont: Vt. Stat. Ann., Tit. 30, §215 (1986); Virginia: Va. Code Ann. §§56-232, 56-234 (1995); see generally §§ 56-232 through 56-260.1 (1995 and Supp. 1996); Washington: Wash. Rev. Code §§80.04.010, 80.28.020 (West 1991 and Supp. 1996-1997); see generally §§ 80.04.010 through 80.04.520, 80.28.010 through 80.28.260; West Virginia: W. Va. Code §24-2-1 (1992); see generally §§24-1-1 through 24-5-1 (1992 and Supp. 1996); Wisconsin: Wis. Stat. Ann. §§196.01(5), 196.02, 196.03 (West 1992 and Supp. 1996-1997); see generally §§ 196.01 through 196.98; Wyoming: Wyo. Stat. §§ 37-l-101(a)(vi)(D), 37-2-112 (1996); see generally §§ 37-1-101 through 37-6-107. into law in 1996,
Ohio’s Amended Substitute House Bill 476, signed into law in 1996, requires the state Public Utilities Commission to exempt certain sales of natural gas and/or related services by an LDC from this rate regulation if the commission finds that the LDC is subject to effective competition with respect to such service and that the customers for such service have reasonably available alternatives, Ohio Rev. Code Ann. §4929.04, as amended by H. R. 476, §1, effective Sept. 17, 1996. Although this law had not been enacted at the time of the purchases involved in this case, petitioner contended at oral argument that during the tax period in question here, Ohio permitted some natural gas sales by public utilities at unregulated, negotiated rates, and that those sales were not subject to sales tax. The record provides no support for this contention, and the constitutionality of Ohio exempting from state sales tax utility sales that are not price regulated is therefore not before the Court in this case.
Although GMC raises only a “facial discrimination” challenge to Ohio’s tax scheme, our cases have indicated that even nondiscriminatory state legislation may be invalid under the dormant Commerce Clause, when, in the words of the so-called Pike undue burden test, “the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits,” Pike v. Bruce Church, Inc., 397 U. S. 137, 142 (1970). There is, however, no clear line between these two strands of analysis, Brown-Forman Distillers Corp. v. New York State Liquor Authority, 476 U. S. 573, 579 (1986), and several eases that have purported to apply the undue burden test (including Pike itself) arguably turned in whole or in part on the discriminatory character of the challenged state regulations, see, e. g., Pike, supra, at 145 (declaring packing order “virtually per se illegal” because it required business operation to be performed in-state); Kassel v. Consolidated Freightways Corp. of Del., 450 U. S. 662, 677 (1981) (plurality opinion of Powell, J.) (noting that in adopting invalidated truck-length regulation the State “seems to have hoped to limit the use of its highways by deflecting some through traffic”); id., at 679-687 (Brennan, J., concurring in judgment) (emphasizing that truck-length regulation should be invalidated solely in view of its protectionist purpose); see generally Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 Mich. L. Rev. 1091 (1986). Nonetheless, a small number of our cases have invalidated state laws under the dormant Commerce Clause that appear to have been genuinely nondis-eriminatory, in the sense that they did not impose disparate treatment on similarly situated in-state and out-of-state interests, where such laws undermined a compelling need for national uniformity in regulation. See Bibb v. Navajo Freight Lines, Inc., 359 U. S. 520 (1959) (conflict in state laws governing truck mud flaps); Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S. 761 (1945) (train lengths); see also GTS Corp. v. Dynamics Corp. of America, 481 U. S. 69, 88 (1987) (“This Court’s recent Commerce Clause cases also have invalidated statutes that may adversely affect interstate commerce by subjecting activities to inconsistent regulations”); L. Brilmayer, Conflict of Laws §3.2.3, pp. 144-148 (2d ed. 1995) (discussing Court’s review of conflicting state laws under the dormant Commerce Clause). In the realm of taxation, the requirement of apportionment plays a similar role by assuring that interstate activities are not unjustly burdened by multistate taxation. See generally Oklahoma Tax Comm’n v. Jefferson Lines, Inc., 514 U. S. 175, 184-185 (1995) (discussing “internal” and “external” consistency tests for apportionment of state taxes). Of course, the fact that Ohio exempts local utilities from its sales and use taxes could not support any claim of undue burden in this nondis-eriminatory sense, since the exemption itself does not give rise to conflicting regulation of any transaction or result in malapportionment of any tax.
In the present ease, the parties have not briefed the question whether the present amended version of the NGA and related federal legislation continues the express Commerce Clause exemption for state regulation and taxation of retail natural gas sales recognized in Panhandle-Indiana, and we do not decide this issue. We note, however, that the language of § 1(b) of the NGA, which the Panhandle-Indiana Court construed as creating the exemption, itself remains unchanged. (Compare 52 Stat. 821 with 15 U. S. C. § 717(b) (1994).)
Under today’s altered market structure, see supra, at 283-285, several Courts of Appeals have held that the NGA confers jurisdiction on FERC, rather than the States, to regulate such bypass arrangements for supplying gas to large industrial consumers when the sale of gas itself occurs outside the State and an interstate pipeline merely transports the gas to the industrial consumer for delivery in-state. See Cascade Natural Gas Corp. v. FERC, 955 F. 2d 1412, 1414-1422 (CA10 1992); Michigan Consolidated Gas Co. v. Panhandle Eastern Pipe Line Co., 887 F. 2d 1295, 1299-1301 (CA6 1989), cert. denied, 494 U. S. 1079 (1990); Michigan Consolidated Gas Co. v. FERC, 883 F. 2d 117, 121-122 (CADC 1989), cert. denied, 494 U. S. 1079 (1990). We express no view on the correctness of these decisions.
Of course, if a State discriminates against out-of-state interests by drawing geographical distinctions between entities that are otherwise similarly situated, such facial discrimination will be subject to a high level of judicial scrutiny even if it is directed toward a legitimate health and safety goal. See, e. g., Philadelphia v. New Jersey, 437 U. S. 617, 626-628 (1978); Dean Milk Co. v. Madison, 340 U. S. 349, 353-354 (1951).
For example, public utilities pay personal property tax on 88% of true value, Ohio Rev. Code Ann. §5727.111 (1996), while marketers pay personal property tax on 25% of their true value, § 5711.22(D). Public utilities also pay a special tax assessment for the expenses of the Public Utility Commission, § 4905.10 (1991), and for the expenses of the Ohio Consumer Counsel, §4911.18. Moreover, natural gas utilities must pay a gross receipts tax of 4.75% on gas sales, §5727.38 (1996), while marketers pay none. Independent marketers, for their part, are subject to a franchise tax, § 5733.01, that does not apply to utilities, § 5733.09(a). Thus, this sales and use tax challenge would not be the last available to marketers and their customers; the franchise tax, which also does not apply to utilities, is presumably next in line.
Ward involved an Alabama statute that facially discriminated against interstate commerce by imposing a lower gross premiums tax on in-state than out-of-state insurance companies. The case did not present a Commerce Clause violation only because Congress, in enacting the McCarran-Ferguson Act, 15 U. S. C. §§ 1011-1015, intended to authorize States to impose taxes that burden interstate commerce in the insurance field. Ward, 470 U. S., at 880. We nonetheless invalidated Alabama’s classification because “neither of the two purposes furthered by the [statute]... is legitimate under the Equal Protection Clause ....” Id., at 883. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state of the court in which the case originated. Consider the District of Columbia as a state. | What is the state of the court in which the case originated? | [
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] | [
40
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WASHINGTON et al. v. CONFEDERATED BANDS AND TRIBES OF THE YAKIMA INDIAN NATION
No. 77-388.
Argued October 2, 1978
Decided January 16, 1979
Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and White, BlaoicmuN, Powell, RehNquist, and SteveNS, JJ., joined. Marshall, J., filed a dissenting opinion, in which BrenNan, J., joined, post, p. 502.
Slade Gorton, Attorney General of Washington, argued the cause for appellants. With him on the briefs were Malachy R. Murphy, Deputy Attorney General, and Jeffrey C. Sullivan.
James B. Hovis argued the cause and filed a brief for appellee.
Louis F. Claiborne argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General McCree, Assistant Attorney General Moorman, Peter R. Steenland, Jr., Carl Strass, and Neil T. Proto.
Michael Taylor, Robert L. Pirtle, and Robert D. Dellwo filed a brief for the Confederated Tribes of the Colville Reservation et al. as amici curiae.
Me. Justice Stewaet
delivered the opinion of the Court.
In this case we are called upon to resolve a dispute between the State of Washington and the Yakima Indian Nation over the validity of the State’s exercise of jurisdiction on the Yakima Reservation. In 1963 the Washington Legislature obligated the State to assume civil and criminal jurisdiction over Indians and Indian territory within the State, subject only to the condition that in all but eight subject-matter areas jurisdiction would not extend to Indians on trust or restricted lands without the request of the Indian tribe affected. Ch. 36, 1963 Wash. Laws. The Yakima Nation did not make such a request. State authority over Indians within the Yakima Reservation was thus made by Chapter 36 to depend on the title status of the property on which the offense or transaction occurred and upon the nature of the subject matter.
The Yakima Nation brought this action in a Federal District Court challenging the statutory and constitutional validity of the State’s partial assertion of jurisdiction on its Reservation. The Tribe contended that the federal statute upon which the State based its authority to assume jurisdiction over the Reservation, Pub. L. 280, imposed certain procedural requirements, with which the State had not complied — most notably, a requirement that Washington first amend its own constitution — and that in any event Pub. L. 280 did not authorize the State to assert only partial jurisdiction within an Indian reservation. Finally, the Tribe contended that Chapter 36, even if authorized by Congress, violated the equal protection and due process guarantees of the Fourteenth Amendment.
The District Court rejected both the statutory and constitutional claims and entered judgment for the State. On appeal, the contention that Washington’s assumption of only partial jurisdiction was not authorized by Congress was rejected by the Court of Appeals for the Ninth Circuit, sitting en banc. The en banc court then referred the ease to the original panel for consideration of the remaining issues. Confederated Bands and Tribes of the Yakima Indian Nation v. Washington, 550 F. 2d 443 (Yakima 7) The three-judge panel, confining itself to consideration of the constitutional validity of Chapter 36, concluded that the “checkerboard” jurisdictional system it produced was without any rational foundation and therefore violative of the Equal Protection Clause of the Fourteenth Amendment. Finding no basis upon which to sever the offending portion of the legislation, the appellate court declared Chapter 36 unconstitutional in its entirety, and reversed the judgment of the District Court. Confederated Bands and Tribes of the Yakima Indian Nation v. Washington, 552 F. 2d 1332 (Yakima II).
The State then brought an appeal to this Court. In noting probable jurisdiction of the appeal, we requested the parties to address the issue whether the partial geographic and subject-matter jurisdiction ordained by Chapter 36 is authorized by federal law, as well as the Equal Protection Clause issue. 435 U. S. 903:
I
The Confederated Bands and Tribes of the Yakima Indian Nation comprise 14 originally distinct Indian tribes that joined together in the middle of the 19th century for purposes of their relationships with the United States. A treaty was signed with the United States in 1855, under which it was agreed that the various tribes would be considered “one nation” and that specified lands located in the Territory of Washington would be set aside for their exclusive use. The treaty was ratified by Congress in 1859. 12 Stat. 951. Since that time, the Yakima Nation has without interruption maintained its tribal identity.
The Yakima Reservation is located in the southeastern part of the State of Washington and now consists of approximately 1,387,505 acres of land, of which some 80% is held in trust by the United States for the Yakima Nation or individual members of the Tribe. The remaining parcels of land are held in fee by Indian and non-Indian owners. Much of the trust acreage on the Reservation is forest. The Tribe receives the bulk of its income from timber, and over half of the Reservation is closed to permanent settlement in order to protect the forest area. The remaining lands are primarily agricultural. There are three incorporated towns on the Reservation, the largest being Toppenish, with a population of under 6,000.
The land held in fee is scattered throughout the Reservation, but most of it is concentrated in the northeastern portion close to the Yakima River and within the three towns of Toppenish, Wapato, and Harrah. Of the 25,000 permanent residents of the Reservation, 3,074 are members of the Yakima Nation, and tribal members live in all of the inhabited areas of the Reservation. In the three towns — where over half of the non-Indian population resides — members of the Tribe are substantially outnumbered by non-Indian residents occupying fee land.
Before the enactment of the state law here in issue, the Yakima Nation was subject to the general jurisdictional principles that apply in Indian country in the absence of federal legislation to the contrary. , Under those principles, which received their first and fullest expression in Worcester v. Georgia, 6 Pet. 515, 517, state law reaches within the exterior boundaries of an Indian reservation only if it would not infringe "on the right of reservation Indians to make their own laws and be ruled by them.” Williams v. Lee, 358 U. S. 217, 219-220. As a practical matter, this has meant that criminal offenses by or against Indians have been subject only to federal or tribal laws, Moe v. Salish & Kootenai Tribes, 425 U. S. 463, except where Congress in the exercise of its plenary and exclusive power over Indian affairs has "expressly provided that State laws shall apply.” McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164, 170-171.
Public Law 280, upon which the State of Washington relied for its authority to assert jurisdiction over the Yakima Reservation under Chapter 36, was enacted by Congress in 1963 in part to deal with the “problem of lawlessness on certain Indian reservations, and the absence of adequate tribal institutions for law enforcement.” Bryan v. Itasca County, 426 U. S. 373, 379; H. R. Rep. No. 848, 83d Cong., 1st Sess., 6-6 (1963). The basic terms of Pub. L. 280, which was the first federal jurisdictional statute of general applicability to Indian reservation lands, are well known. To five States it effected an immediate cession of criminal and civil jurisdiction over Indian country, with an express exception for the reservations of three tribes. Pub. L. 280, §§ 2 and 4. To the remaining States it gave an option to assume jurisdiction over criminal offenses and civil causes of action in Indian country without consulting with or securing the consent of the tribes that would be affected. States whose constitutions or statutes contained organic law disclaimers of jurisdiction over Indian country were dealt with in § 6. The people of those States were given permission to amend “where necessary” their state constitutions or existing statutes to remove any legal impediment to the assumption of jurisdiction under the Act. All others were covered in § 7.
The Washington Constitution contains a disclaimer of authority over Indian country, and the State is, therefore, one of those covered by § 6 of Pub. L. 280. The State did not take any action under the purported authority of Pub. L. 280 until 1957. In that year its legislature enacted a statute which obligated the State to assume criminal and civil jurisdiction over any Indian reservation within the State at the request of the tribe affected. Under this legislation state jurisdiction was requested by and extended to several Indian tribes within the State.
In one of the first prosecutions brought under the 1957 jurisdictional scheme, an Indian defendant whose tribe had consented to the extension of jurisdiction challenged its validity on the ground that the disclaimer clause in the state constitution had not been amended in the manner allegedly required by § 6 of Pub. L. 280. State v. Paul, 53 Wash. 2d 789, 337 P. 2d 33. The Washington Supreme Court rejected the argument, construing the state constitutional provision to mean that the barrier posed by the disclaimer could be lifted by the state legislature.
In 1963, Washington enacted Chapter 36, the law at issue in this litigation. The most significant feature of the new statute was its provision for the extension of at least some jurisdiction over all Indian lands within the State, whether or not the affected tribe gave its consent. Full criminal and civil jurisdiction to the extent permitted by Pub. L. 280 was extended to all fee lands in every Indian reservation and to trust and allotted lands therein when non-Indians were involved. Except for eight categories of law, however, state jurisdiction was not extended to Indians on allotted and trust lands unless the affected tribe so requested. The eight jurisdictional categories of state law that were thus extended to all parts of every Indian reservation were in the areas of compulsory school attendance, public assistance, domestic relations, mental illness, juvenile delinquency, adoption proceedings, dependent children, and motor vehicles.
The Yakima Indian Nation did not request the full measure of jurisdiction made possible by Chapter 36, and the Yakima Reservation thus became subject to the system of jurisdiction outlined at the outset of this opinion. This litigation followed.
II
The Yakima Nation relies on three separate and independent grounds in asserting that Chapter 36 is invalid. First, it argues that under the terms of Pub. L. 280 Washington was not authorized to enact Chapter 36 until the state constitution had been amended by “the people” so as to eliminate its Art. XXVI which disclaimed state authority over Indian lands. Second, it contends that Pub. L. 280 does not authorize a State to extend only partial jurisdiction over an Indian reservation. Finally, it asserts that Chapter 36, even if authorized by Pub. L. 280, violates the Fourteenth Amendment of the Constitution. We turn now to consideration of each of these arguments.
Ill
We first address the contention that Washington was required to amend its constitution before it could validly legislate under the authority of Pub. L. 280. If the Tribe is correct, we need not consider the statutory and constitutional questions raised by the system of partial jurisdiction established in Chapter 36. The Tribe, supported by the United States as amicus curiae, argues that a requirement for popular amendatory action is to be found in the express terms of § 6 of Pub. L. 280 or, if not there, in the terms of the Enabling Act that admitted Washington to the Union. The argument can best be understood in the context of the specific statutory provisions involved.
A
The Enabling Act under which Washington, along with the States of Montana, North Dakota, and South Dakota, gained entry into the Union, was passed in 1889.' Section 4 of that Act required the constitutional conventions of the prospective new States to enact provisions by which the people disclaimed title to lands owned by Indians or Indian tribes and acknowledged that those lands were to remain “under the absolute jurisdiction and control of” Congress until the Indian or United States title had been extinguished. The disclaimers were to be made “by ordinances irrevocable without the consent of the United States and the people of said States.” Washington’s constitutional convention enacted the disclaimer of authority over Indian lands as part of Art. XXVI of the state constitution. That Article, captioned “Compact with the United States,” is prefaced with the statement — precisely tracking the language of the admitting statute — that “the following ordinance shall be irrevocable without the consent of the United States and the people of [the State of Washington].” Its substantive terms mirror the language used in the enabling legislation..
We have already noted that two distinct provisions of Pub. L. 280 are potentially applicable to States not granted an immediate cession of jurisdiction. The first, § 6, without question applies to Washington and the seven other States admitted into the Union under enabling legislation requiring organic law disclaimers similar to that just described. This much is clear from the legislative history of Pub. L. 280, as well as from the express language of § 6. That section provides
“Notwithstanding the provisions of any Enabling Act for the admission of a State, the consent of the United States is hereby given to the people of any State to amend, where necessary, their State constitution or existing statutes, as the case may be, to remove any legal impediment to the assumption of civil and criminal jurisdiction in accordance with the provisions of this Act: Provided, That the provisions of this Act shall not become effective with respect to such assumption of jurisdiction by any such State until the people thereof have appropriately amended their State constitution or statutes as the case may be.”
All other States were covered by § 7. In that section Congress gave the consent of the United States
“to any other State ... to assume jurisdiction at such time and in such manner as the people of the State shall, by affirmative legislative action, obligate and bind the State to assumption thereof.”
These provisions appear to establish different modes of procedure by which an option State, depending on which section applies to it, is to accept the Pub. L. 280 jurisdictional offer. The procedure specified in § 7 is straightforward: affirmative legislative action by which the State obligates and binds itself to assume jurisdiction. Section 6, in contrast, is delphic. The only procedure mentioned is action by the people “to amend . . . their State constitutions or existing statutes, as the case may be” to remove any legal impediments to the assumption of jurisdiction. The phrase “where necessary” in the main clause suggests that a requirement for popular — as opposed to legislative — action must be found if at all in some source of law independent of Pub. L. 280. The proviso, however, has a different import.
B
The proper construction to be given to the single inartful sentence in § 6 has provoked chapters of argument from the parties. The Tribe and the United States urge that notwithstanding the phrase “where necessary,” § 6 should be construed to mandate constitutional amendment by disclaimer States. It is their position that § 6 operates not only to grant the consent of the United States to state action inconsistent with the terms of the enabling legislation but also to establish a distinct procedure to be followed by Enabling Act States. To support their position, they rely on the language of the proviso and upon certain legislative history of § 6.
In the alternative, the Tribe and the United States argue that popular amendatory action, if not compelled by the terms of § 6, is mandated by the terms of the Enabling Act of Feb. 22, 1889, ch. 180, § 4. Although they acknowledge that Congress in § 6 did grant the “consent of the United States” required under the Enabling Act before the State could remove the disclaimer, they contend that § 6 did not eliminate the need for the “consent of the people” specified in the Enabling Act. In their view, the 1889 Act — if not Pub. L. 280 — dictates that constitutional amendment is the only valid procedure by which that consent can be given.
The State draws an entirely different message from § 6. It contends that the section must be construed in light of the overall congressional purpose to facilitate a transfer of jurisdiction to those option States willing to accept the responsibility. Section 6 was designed, it says, not to establish but to remove legal barriers to state action under the authority of Pub. L. 280. The phrase “where necessary” in its view is consistent with this purpose. It would construe the word “appropriately” in the proviso to be synonymous with “where necessary” and the entire section to mean that constitutional amendment is required only if “necessary” as a matter of state law. The Washington Supreme Court having found that legislative action is sufficient to grant the “consent of the people” to removal of the disclaimer in Art. XXVI of the state constitution, the State argues that the procedural requirements of § 6 have been fully satisfied. It finds the Enabling Act irrelevant since in its view § 6 effectively repealed any federal-law impediments in that Act to state assertion of jurisdiction under Pub. L. 280.
C
From our review of the statutory, legislative, and historical materials cited by the parties, we are persuaded that Washington’s assumption of jurisdiction by legislative action fully complies with the requirements of § 6. Although we adhere to the principle that the procedural requirements of Pub. L. 280 must be strictly followed, Kennerly v. District Court of Montana, 400 U. S. 423, 427; McClanahan v. Arizona State Tax Comm’n, 411 U. S., at 180, and to the general rule that ambiguities in legislation affecting retained tribal sovereignty are to be construed in favor of the Indians, see, e. g., Bryan v. Itasca County, 426 U. S., at 392, those principles will not stretch so far as to permit us to find a federal requirement affecting the manner in which the States are to modify their organic legislation on the basis of materials that are essentially speculative. Cf. Board of County Comm’rs v. United States, 308 U. S. 343, 350-351. The language of § 6, its legislative history, and its role in Pub. L. 280 all clearly point the other way.
We turn first to the language of § 6. The main clause is framed in permissive, not mandatory, terms. Had the drafters intended by that clause to require popular amendatory action, it is unlikely that they would have included the words “where necessary.” As written, the clause suggests that the substantive requirement for constitutional amendment must be found in some source of law independent of § 6. The basic question, then, is whether that requirement can be found in the language of the proviso to § 6 or alternatively in the terms of the Enabling Act.
We are unable to find the procedural mandate missing from the main clause of § 6 in the language of the proviso. That language in the abstract could be read to suggest that constitutional amendment is a condition precedent to a valid assumption of jurisdiction by disclaimer States. When examined in its context, however, it cannot fairly be read to impose such a condition. Two considerations prevent this reading. First, it is doubtful that Congress — in order to compel disclaimer States to amend their constitutions by popular vote— would have done so in a provision the first clause of which consents to that procedure “where necessary” and the proviso to which indicates that the procedure is to be followed if “appropriate.” Second, the reference to popular amendatory action in the proviso is not framed as a description of the procedure the States must follow to assume jurisdiction, but instead is written as a condition to the effectiveness of “the provisions of” Pub. L. 280. When it is recalled that the only substantive provisions of the Act — other than those arguably to be found in § 7 — accomplish an immediate transfer of jurisdiction to specifically named States, it seems most likely that the proviso was included to ensure that § 6 would not be construed to effect an immediate transfer to the disclaimer group of option States. The main clause removes a federal-law bar-. rier to any new state jurisdiction over Indian country. The proviso suggests that disclaimer States are not automatically to receive jurisdiction by virtue of that removal. Without the proviso, in the event that state constitutional amendment were not found “necessary,” § 6 could be construed as effecting an immediate cession. Congress clearly wanted all the option States to “obligate and bind” themselves to assume the jurisdiction offered in Pub. L. 280. To be sure, constitutional amendment was referred to as the process by which this might be accomplished in disclaimer States. But, given the distinction that Congress clearly drew between those States and automatic-transfer States, this reference can hardly be construed to require that process.
Before turning to the legislative history, which, as we shall see, accords with this interpretation of § 6, we address the argument that popular amendatory action, if not a requirement of Pub. L. 280, is mandated by the legislation admitting Washington to the Union. This argument requires that two assumptions be made. The first is that § 6 eliminated some but preserved other Enabling Act barriers to a State’s assertion of jurisdiction over Indian country. The second is that the phrase “where necessary” in the main clause of § 6 was intended to refer to those federal-law barriers that had been preserved. Only if each of these premises is accepted does the Enabling Act have any possible application.
Since we find the first premise impossible to accept, we proceed no further. Admitting legislation is, to be sure, the only source of law mentioned in the main clause of § 6 and might therefore be looked to as a referent for the phrase “where necessary” in the clause. This reading, however, is not tenable. It supplies no satisfactory answer to the question why Congress — in order to give the consent of the United States to the removal of state organic law disclaimers — would not also have by necessary implication consented to the removal of any procedural constraints on the States imposed by the Enabling Acts. The phrase “ [n] otwithstanding the provisions of any Enabling Act” in § 6 is broad — broad enough to suggest that Congress when it referred to a possible necessity for state constitutional amendment did not intend thereby to perpetuate any such requirement in an Enabling Act. Even assuming that the phrase “consent of the people” in the Enabling Act must be construed to preclude consent by legislative action — and the Tribe and the United States have offered no concrete authority to support this restrictive reading of the phrase — we think it obvious that in the “notwithstanding” clause of § 6 Congress meant to remove any federal impediments to state jurisdiction that may have been created by an Enabling Act.
The legislative history of Pub. L. 280 supports the conclusion that § 6 did not of its own force establish a state constitutional amendment requirement and did not preserve any such requirement that might be found in an Enabling Act. Public Law 280 was the first jurisdictional bill of general applicability ever to be enacted by Congress. It reflected congressional concern over the law-and-order problems on Indian reservations and the financial burdens of continued federal jurisdictional responsibilities on Indian lands, Bryan v. Itasca County, 426 U. S. 373. It was also, however, without question reflective of the general assimilationist policy followed by Congress from the early 1950’s through the late 1960’s. See H. R. Rep. No. 848, 83d Cong., 1st Sess. (1953). See also Hearings on H. R. 459, H. R. 3235, and H. R. 3624 before the Subcommittee on Indian Affairs of the House Committee on .Interior and Insular Affairs, 82d Cong., 2d Sess. (1952) (hereinafter 1952 Hearings). The failure of Congress to write a tribal-consent provision into the transfer provision applicable to option States as well as its failure to consult with the tribes during the final deliberations on Pub. L. 280 provide ample evidence of this.
Indeed, the circumstances surrounding the passage of Pub. L. 280 in themselves fully bear out the State’s general thesis that Pub. L. 280 was intended to facilitate, not to impede, the transfer of jurisdictional responsibility to the States. Public Law 280 originated in a series of individual bills introduced in the 83d Congress to transfer jurisdiction to the five willing States which eventually were covered in §§ 2 and 4. H. R. Rep. No. 848, supra. Those bills were consolidated into H. R. 1063, which was referred to the House Committee on Interior and Insular Affairs for consideration. Closed hearings on the bills were held before the Subcommittee on Indian Affairs on June 29 and before the Committee on July 15, 1953. During the opening session on June 29, Committee Members, counsel, and representatives of the Department of the Interior discussed various proposals designed to give H. R. 1063 general applicability. June 29 Hearings 1-22. It rapidly became clear that the Members favored a general bill. Ibid. At this point, Committee counsel noted that several States “have constitutional prohibitions against jurisdiction.” Id., at 23. There followed some discussion of the manner in which these States should be treated. On July 15, a version of § 6 was proposed. July 15 Hearings 6. After further discussion of the disclaimer problem, the “notwithstanding” clause was added, id., at 9, and the language eventually enacted as § 6 was approved by the Committee that day. The speed and the context alone suggest that § 6 was designed to remove an obstacle to state jurisdiction, not to create one. And the discussion at the hearings, which in essence were markup sessions, makes this clear.
While some Committee Members apparently thought that § 6 States, as a matter of state law, would have to amend their constitutions in order to remove the disclaimers found there, there is no indication that the Committee intended to impose any such requirement.
We conclude that § 6 of Pub. L. 280 does not require disclaimer States to amend their constitutions to make an effective acceptance of jurisdiction. We also conclude that any Enabling Act requirement of this nature was effectively repealed by § 6. If as a matter of state law a constitutional amendment is required, that procedure must — as a matter of state law — be followed. And if under state law a constitutional amendment is not required, disclaimer States must still take positive action before Pub. L. 280 jurisdiction can become effective. The Washington Supreme Court having determined that for purposes of the repeal of Art. XXVI of the Washington Constitution legislative action is sufficient, and appropriate state legislation having been enacted, it follows that the State of Washington has satisfied the procedural requirements of § 6.
IV
We turn to the question whether the State was authorized under Pub. L. 280 to assume only partial subject-matter and geographic jurisdiction over Indian reservations within the State.
The argument that Pub. L. 280 does not permit this scheme of partial jurisdiction relies primarily upon the text of the federal law. The main contention of the Tribe and the United States is that partial jurisdiction, because not specifically authorized, must therefore be forbidden. In addition, they assert that the interplay between the provisions of Pub. L. 280 demonstrates that § 6 States are required, if they assume any jurisdiction, to assume as much jurisdiction as was transferred to the mandatory States. Pointing out that 18 U. S. C. § 1151 defines Indian country for purposes of federal jurisdiction as including an entire reservation notwithstanding “the .issuance of any patent,” they reason that when Congress in § 2 transferred to' the mandatory States “criminal jurisdiction” over “offenses committed by or against Indians in the Indian country,” it meant that all parts of Indian country were to be covered. Similarly, they emphasize that civil jurisdiction of comparable scope was transferred to the mandatory States. They stress that in both §§ 2 and 4, the consequence of state assumption of jurisdiction is that the state “criminal laws” and “civil laws of . . . general application” are henceforth to “have the same force and effect within . . . Indian country as they have elsewhere within the State.” Finally, the Tribe and the United States contend that the congressional purposes of eliminating the jurisdictional hiatus thought to exist on Indian reservations, of reducing the cost of the federal responsibility for jurisdiction on tribal lands, and of assimilating the Indian tribes into the general state population are dis-served by the type of checkerboard arrangement permitted by Chapter 36.
We agree, however, with the State of Washington that statutory authorization for the state jurisdictional arrangement is to be found in the very words of § 7. That provision permits option States to assume jurisdiction “in such manner” as the people of the State shall “by affirmative legislative action, obligate and bind the State to assumption thereof.” Once the requirements of § 6 have been satisfied, the terms of § 7 appear to govern the scope of jurisdiction conferred upon disclaimer States. The phrase “in such manner” in § 7 means at least that any option State can condition the assumption of full jurisdiction on the consent of an affected tribe. And here Washington has done no more than refrain from exercising the full measure of allowable jurisdiction without consent of the tribe affected.
Section 6, as we have seen, was placed in' the Act to eliminate possible organic law barriers to the assumption of jurisdiction by disclaimer States. The Tribe and the United States acknowledge that it is a procedural, not a substantive, section. The clause contains only one reference of relevance to the partial-jurisdiction question.. This is the phrase “assumption of civil and criminal jurisdiction in accordance with the provisions of this Act.” As both parties recognize, this phrase necessarily leads to other “provisions” of the Act for clarification of the substantive scope of the jurisdictional grant. The first question then is which other “provisions” of the Act govern. The second is what constraints those “provisions” place on the jurisdictional arrangements made by-option States.
The Tribe argues as an initial matter that § 7 is not one of the “provisions” referred to by § 6. It relies in part upon the contrast between the phrase “assumption of civil and criminal jurisdiction” in § 6 and the disjunctive phrase “criminal offenses or civil causes of action” in § 7. From this distinction between the “civil and criminal jurisdiction” language of § 6 and the optional language in § 7, we are asked to conclude that § 6 States must assume full jurisdiction in accord with the terms applicable to the mandatory States even though § 7 States are permitted more discretion. We are unable to accept this argument, not only because the statutory language does not fairly support it, but also because the legislative history is wholly to the contrary. It is clear from the Committee hearings that the States covered by § 6 were, except for the possible impediments contained in their organic laws, to be treated on precisely the same terms as option States.
Section 6, as we have seen, was essentially an afterthought designed to accomplish the limited purpose of removing any barrier to jurisdiction posed by state organic law disclaimers of jurisdiction over Indians. All option States were originally treated under the aegis of § 7. The record of the Committee hearings makes clear that the sole purpose of § 6 was to resolve the disclaimer problem. Indeed, to the extent that the Tribe and the United States suggest that disclaimer States stand on a different footing from all other option States, their argument makes no sense. It would ascribe to Congress an intent to require States that by force of organic law barriers may have had only a limited involvement with Indian country to establish the most intrusive presence possible on Indian reservations, if any at all, and at the same time an intent to allow States with different traditions to exercise more restraint in extending the coverage of their law.
The Tribe and the United States urge that even if, as we have concluded, all option States are ultimately governed by § 7, the reference in that section to assumption of jurisdiction “as provided for in [the] Act” should be construed to mean that the automatic-transfer provisions of §§ 2 and 4 must still apply. The argument would require a conclusion that the option States stand on the same footing as the mandatory States. This view is not persuasive. The mandatory States were consulted prior to the introduction of the single-state bills that were eventually to become Pub. L. 280. All had indicated their willingness to accept whatever jurisdiction Congress was prepared to transfer. This, however, was not the case with the option States. Few of those States had been consulted, and from the June 29 and July 15 hearings it is apparent that the drafters were primarily concerned with establishing a general transfer scheme that would facilitate, not impede, future action by other States willing to accept jurisdiction. It is clear that the all-or-nothing approach suggested by the Tribe would impede even the most responsible and sensitive jurisdictional arrangements designed by the States. To find that under Pub. L. 280 a State could not exercise partial jurisdiction, even if it were willing to extend full jurisdiction at tribal request, would be quite inconsistent with this basic history.
The language of § 7, which we have found applicable here, provides, we believe, surer guidance to the issue before us. The critical language in § 7 is the phrase permitting the assumption of jurisdiction “at such time and in such manner as the people of the State shall . . . obligate and bind the State to assumption thereof.” Whether or not “in such manner” is fully synonymous with “to such extent,” the phrase is at least broad enough to authorize a State to condition the extension of full jurisdiction over an Indian reservation on the consent of the tribe affected.
The United States argues that a construction of Pub. L. 280 which permits selective extension of state jurisdiction allows a State to “pick and choose” only those subject-matter areas and geographical parts of reservations over which it would like to assume responsibility. Congress, we are told, passed Pub. L. 280 not as a measure to benefit the States, but to reduce the economic burdens associated with federal jurisdiction on reservations, to respond to a perceived hiatus in law enforcement protections available to tribal Indians, and to achieve an orderly assimilation of Indians into the general population. That these were the major concerns underlying the passage of Pub. L. 280 cannot be doubted. See Bryan v. Itasca County, 426 U. S., at 379.
But Chapter 36 does not reflect an attempt to reap the benefits and to avoid the burdens of the jurisdictional offer made by Congress. To the contrary, the State must assume total jurisdiction whenever a tribal request is made that it do so. Moreover, the partial geographic and subject-matter jurisdiction that exists in the absence of tribal consent is responsive to the law enforcement concerns that underlay the adoption of Pub. L. 280. State jurisdiction is complete as to all non-Indians on reservations and is also complete as to Indians on nontrust lands. The law enforcement hiatus that preoccupied the 83d Congress has to that extent been eliminated. On trust and restricted lands within the reservations whose tribes have not requested the coverage of state law, jurisdiction over crimes by Indians is, as it was when Pub. L. 280 was enacted, shared by the tribal and Federal Governments. To the extent that this shared federal and tribal responsibility is inadequate to preserve law and order, the tribes need only request and they will receive the protection of state law.
The State of Washington in 1963 could have unilaterally extended full jurisdiction over crimes and civil causes of action in the entire Yakima Reservation without violating the terms of Pub. L. 280. We axe unable to conclude that the State, in asserting a less intrusive presence on the Reservation while at the same time obligating itself to assume full jurisdictional responsibility upon request, somehow flouted the will of Congress. A State that has accepted the jurisdictional offer in Pub. L. 280 in a way that leaves substantial play for tribal self-government, under a voluntary system of partial jurisdiction that reflects a responsible attempt to accommodate the. needs of both Indians and non-Indians within a reservation, has plainly taken action within the terms of the offer made by Congress to the States in 1953. For Congress surely did not deny an option State the power to condition its offer of full jurisdiction on tribal consent.
Y
Having concluded that Chapter 36 violates neither the procedural nor the substantive terms of Pub. L. 280, we turn, finally, to the question whether the “checkerboard” pattern of jurisdiction applicable on the reservations of nonconsent-ing tribes is on its face invalid under the Equal Protection Clause of the Fourteenth Amendment. The Court of Appeals for the Ninth Circuit concluded that it is, reasoning that the land-title classification is too bizarre to meet “any formulation of the rational basis test.” 552 F. 2d, at 1335. The Tribe advances several different lines of argument in defense of this ruling.
First, it argues that the classifications implicit in Chapter 36 are racial classifications, “suspect” under the test enunciated in McLaughlin v. Florida, 379 U. S. 184, and that they cannot stand unless justified by a compelling state interest. Second, it argues that its interest in self-government is a fundamental right, and that Chapter 36 — as a law abridging this right — is presumptively invalid. Finally, the Tribe argues that Chapter 36 is invalid even if reviewed under the more traditional equal protection criteria articulated in such cases as Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307.
We agree with the Court of Appeals to the extent that its opinion rejects the first two of these arguments and reflects a judgment that Chapter 36 must be sustained against an Equal Protection Clause attack if the classifications it employs “rationally furthe[r] the purpose identified by the State.” Massachusetts Bd. of Retirement v. Murgia, supra, at 314. It is settled that “the unique legal status of Indian tribes under federal law” permits the Federal Government to enact legislation singling out tribal Indians, legislation that might otherwise be constitutionally offensive. Morton v. Mancari, 417 U. S. 535, 551-552. States do not enjoy this same unique relationship with Indians, but Chapter 36 is not simply another state law. It was enacted in response to a federal measure explicitly designed to readjust the allocation of jurisdiction over Indians. The jurisdiction permitted under Chapter 36 is, as we have found, within the scope of the authorization of Pub. L. 280. And many of the classifications made by Chapter 36 are also made by Pub. L. 280. Indeed, classifications based on tribal status and land tenure inhere in many of the decisions of this Court involving jurisdictional controversies between tribal Indians and the States, see, e. g., United States v. McBratney, 104 U. S. 621. For these reasons, we find the argument that such classifications are “suspect” an untenable one. The contention that Chapter 36 abridges a “fundamental right” is also untenable. It is well established that Congress, in the exercise of its plenary power over Indian affairs, may restrict the retained sovereign powers of the Indian tribes. See, e. g., United States v. Wheeler, 435 U. S. 313. In enacting Chapter 36, Washington was legislating under explicit authority granted by Congress in the exercise of that federal power.
The question that remains, then, is whether the lines drawn by Chapter 36 fail to meet conventional Equal Protection Clause criteria, as the Court of Appeals held. Under those criteria, legislative classifications are valid unless they bear no rational relationship to the State’s objectives. Massachusetts Bd. of Retirement v. Murgia, supra, at 314. State legislation “does not violate the Equal Protection Clause merely because the classifications [it makes] are imperfect.” Dandridge v. Williams, 397 U. S. 471, 485. Under these standards we have no difficulty in concluding that Chapter 36 does not offend the Equal Protection Clause.
The lines the State has drawn may well be difficult to administer. But they are no more or less so than many of the classifications that pervade the law of Indian jurisdiction. See Seymour v. Superintendent, 368 U. S. 351; Moe v. Salish & Kootenai Tribes, 425 U. S. 463. Chapter 36 is fairly calculated to further the State’s interest in providing protection to non-Indian citizens living within the boundaries of a reservation while at the same time allowing scope for tribal self-government on trust or restricted lands. The land-tenure classification made by the State is neither an irrational nor arbitrary means of identifying those areas within a reservation in which tribal members have the greatest interest in being free of state police power. Indeed, many of the rules developed in this Court’s decisions in cases accommodating the sovereign rights of the tribes with those of the States are strikingly similar. See, e. g., United States v. McBratney, supra; Draper v. United States, 164 U. S. 240; Williams v. Lee, 358 U. S. 217; McClanahan v. Arizona State Tax Common, 411 U. S. 164. In short, checkerboard jurisdiction is not novel in Indian law, and does not, as such, violate the Constitution.
For the reasons set out in this opinion, the judgment of the Court of Appeals is reversed.
It is so ordered.
The statute, codified as Wash. Rev. Code § 37.12.010 (1976), provides:
“Assumption of criminal and civil jurisdiction by state. The State of Washington hereby obligates and binds itself to assume criminal and civil jurisdiction over Indians and Indian territory, reservations, country, and lands within this state in accordance with the consent of the United States given by the act of August 15, 1953 (Public Law 280, 83rd Congress, 1st Session), but such assumption of jurisdiction shall not apply to Indians when on their tribal lands or allotted lands within an established Indian reservation and held in trust by the United States or subject to a restriction against alienation imposed by the United States, unless the provisions of R. C. W. 37.12.021 [tribal consent] have been invoked, except for the following:
“(1) Compulsory school attendance;
“(2) Public assistance;
“(3) Domestic relations;
“(4) Mental illness;
“(5) Juvenile delinquency;
“(6) Adoption proceedings;
"(7) Dependent children; and
“(8) Operation of moter vehicles upon the public streets, alleys, roads and highways: Provided further, That Indian tribes that petitioned for, were granted and became subject to state jurisdiction pursuant to this chapter on or before March 13, 1963 shall remain subject to state civil and criminal jurisdiction as if chapter 36, Laws of 1963 had not been enacted.”
The statute will be referred to in this opinion as Chapter 36.
Act of Aug. 15, 1953, 67 Stat. 588-590. For the 'full text of the Act, see n. 9, infra.
The complaint also contained other claims that were decided adversely to the plaintiff by the District Court. After extensive discovery and the entry of a pretrial order, the District Court granted partial summary judgment in favor of the State on several of these claims. On the question of compliance with Pub. L. 280, the District Court held that it was bound by the decision of the Court of Appeals for the Ninth Circuit in Quinault Tribe of Indians v. Gallagher, 368 F. 2d 648, 655-658, which had determined that the State of Washington could accept jurisdiction under Pub. L. 280 without first amending its constitution and that Washington’s jurisdictional arrangement did not constitute an unauthorized partial assumption of jurisdiction. The District Court also rejected the claim that Chapter 36 was facially invalid under the Equal Protection and Due Process Clauses of the Fourteenth Amendment. The question of the constitutional validity of Chapter 36 as applied to the Yakima Reservation was reserved for a hearing and factual determination. After a one-week trial, the District Court found that the appellee had not proved “that the state or county have discriminated ... to deprive any Indian or the plaintiff Tribe of any service or protection, resource or asset afforded under the same state law to other citizens or similar geographic location.” The complaint was then dismissed.
The opinion of the District Court is unreported.
The en banc hearing was ordered by the Court of Appeals sua sponte after the original panel had heard argument. This hearing was limited to the question whether that court’s earlier partial-jurisdiction holding in Quinault Tribe of Indians v. Gallagher, supra, should be overruled. A majority of the en banc panel agreed with the result in Quinault, finding no statutory impediment to the assumption of partial geographic and subject-matter jurisdiction. 550 F. 2d, at 448. Five judges dissented. Id., at 449.
The three-judge appellate court’s equal protection decision was based upon the disparity created by Chapter 36 in making criminal jurisdiction over Indians depend upon whether the alleged offense occurred on fee or nonfee land. 552 F. 2d, at 133A-1335. The court found this criterion for the exercise of state criminal jurisdiction facially unconstitutional. The appellate court found it unnecessary, therefore, to reach the Tribe’s contention that the eight statutory categories of subject-matter jurisdiction are vague or its further contention that the application of Chapter 36 deprived it of equal protection of the laws. 552 F. 2d, at 1334.
In its motion to affirm, filed here in response to the appellants’ jurisdictional statement, the Yakima Nation invoked in support of the judgment “each and every one” of the contentions it had made in the District Court and Court of Appeals, but limited its discussion to the equal protection rationale relied upon by the appellate court. In its brief on the merits the Tribe has addressed — in addition to those subjects implicit in our order noting probable jurisdiction, see n. 20, infra, one issue that merits brief discussion. The Tribe contends that Chapter 36 is void for failure to meet the standards of definiteness required by the Due Process Clause of the Fourteenth Amendment, asserting that the eight subject-matter categories over which the State has extended full jurisdiction are too vague to give tribal members adequate notice of what conduct is punishable under state law. This challenge is without merit. As the District Court observed, Chapter 36 creates no new criminal offenses but merely extends jurisdiction over certain classes of offenses defined elsewhere in state law. If those offenses are not sufficiently defined, individual tribal members may defend against any prosecutions under them at the time such prosecutions are brought. See Younger v. Harris, 401 U. S. 37. The eight subject-matter areas are themselves defined with reasonable clarity in language no less precise than that commonly accepted in federal jurisdictional statutes in the same field. See United, States v. Mazurie, 419 U. S. 544. The District Court’s ruling that Chapter 36 is not void for vagueness under the Due Process Clause of the Fourteenth Amendment was therefore correct.
These are the membership figures given by the District Court. The United States, in its amicus curiae brief, has indicated that more than 5,000 tribal members live permanently on the Reservation and that the number increases during the summer months.
These abstract principles do not and could not adequately describe the complex jurisdictional rules that have developed over the years in cases involving jurisdictional clashes between the States and tribal Indians since Worcester v. Georgia was decided. For a full treatment of the subject, see generally M. Price, Law and the American Indian (1973); U. S. Dept. of Interior, Federal Indian Law (1958).
See Price, supra n. 7, at 210. Before 1953, there had been other surrenders of authority to some States. See, e. g., 62 Stat. 1224, 25 U. S. C. § 232 (New York), 64 Stat. 845, 25 U. S. C. § 233 (New York); 54 Stat. 249 (Kansas); 60 Stat. 229 (North Dakota); and 62 Stat. 1161 (Iowa). Public Law 280, however, was the first federal statute to attempt an omnibus transfer.
The Act provides in full:
“AN ACT
“To confer jurisdiction on the States of California, Minnesota, Nebraska, Oregon, and Wisconsin, with respect to criminal offenses and civil causes of-action committed or arising on Indian reservations within such States, and for other purposes.
“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That chapter 53 of title 18, United States Code, is hereby amended by inserting at the end of the chapter analysis preceding section 1151 of such title the following new item:
“ ‘1162. State jurisdiction over offenses committed by or against Indians in the Indian country.’
“Sec. 2. Title 18, United States Code, is hereby amended by inserting in chapter 53 thereof immediately after section 1161 a new section, to be designated .as section 1162, as follows:
“ ‘§ 1162. State jurisdiction over offenses committed by or against Indians in the Indian country
“ ‘(a) Each of the States listed in the following table shall have jurisdiction over offenses committed by or against Indians in the areas of Indian country listed opposite the name of the State to the same extent that such State has jurisdiction over offenses committed elsewhere within the State, and the criminal laws of such State shall have the same force and effect within such Indian country as they have elsewhere within the State:
" 'State of Indian country affected
California All Indian country within the State
Minnesota All Indian country within the State, except the Red Lake Reservation
Nebraska All Indian country within the State
Oregon All Indian country within the State, except the Warm Springs Reservation
Wisconsin AH Indian country within the State, except the Menominee Reservation
“ ‘(b) Nothing in this section shall authorize the alienation, encumbrance, or taxation of any real or personal property, including water rights, belonging to any Indian or any Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States; or shall authorize regulation of the use of such property in a manner inconsistent with any Federal treaty, agreement, or statute or with any regulation made pursuant thereto; or shall deprive any Indian or any Indian tribe, band, or community of any right, privilege, or immunity afforded under Federal treaty, agreement, or statute with respect to hunting, trapping, or fishing or the control, licensing, or regulation thereof.
“ ‘(c) The provisions of sections 1162 and 1153 of this chapter shall not be applicable within the areas of Indian country listed in subsection (a) of this section.’
“Sec. 3. Chapter 85 of title 28, United States Code, is hereby amended by inserting at the end of the chapter analysis preceding section 1331 of such title the following new item:
“ ‘1360. State civil jurisdiction in actions to which Indians are parties.’
“Sec. 4. Title 28, United States Code, is hereby amended by inserting in chapter 85 thereof immediately after section 1359 a new section, to be designated as section 1360, as follows:
“ ‘§ 1360. State civil jurisdiction in actions to which Indians are parties
“ ‘(a) Each of the States listed in the following table shall have jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country listed opposite the name of the State to the same extent that such State has jurisdiction over other civil causes of action, and those civil laws of such State that are of general application to private persons or private property shall have the same force and effect within such Indian country as they have .elsewhere within the State:
“ 'State of Indian country affected
California All Indian country within the State
Minnesota All Indian country within the State, except the Red Lake Reservation
Nebraska All Indian country within the State
Oregon All Indian country within the State, except the Warm Springs Reservation
Wisconsin All Indian country within the State, except the Menominee Reservation
“'(b) Nothing in this section shall authorize the alienation, encumbrance, or taxation of any real or personal property, including water rights, belonging to any Indian or any Indian tribe, band^or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States; or shall authorize regulation of the use of such property in a manner inconsistent with any Federal treaty, agreement, or statute or with any regulation made pursuant thereto; - or shall confer jurisdiction upon the State to adjudicate, in probate proceedings or otherwise, the ownership or right to possession of such property or any interest therein.
“‘(c) Any tribal ordinance or custom heretofore or hereafter adopted by an Indian tribe, band, or community in the exercise of any authority which it may possess shall, if not inconsistent with any applicable civil law of the State, be given full force and effect in the determination of civil causes of action pursuant to this section.’
“Sec. 5. Section 1 of the Act of October 5, 1949 (63 Stat. 705, ch. 604), is hereby repealed, but such repeal shall not affect any proceedings heretofore instituted under that section.
“Sec. 6. Notwithstanding the provisions of any Enabling Act for the admission of a State, the consent of the United States is hereby given to the people of any State to amend, where necessary, their State constitution or existing statutes, as the case may be, to remove any legal impediment to the assumption of civil and criminal jurisdiction in accordance with the provisions of this Act: Provided, That the provisions of this Act shall not become effective with respect to such assumption of jurisdiction by any such State until the people thereof have appropriately amended their State constitution or statutes as the case may be.
“Sec. 7. The consent of the United States is hereby given to any other State not having jurisdiction with respect to criminal offenses or civil causes of action, or with respect to both, as provided for in this Act, to assume jurisdiction at such time and in such manner as the people of the State shall, by affirmative legislative action, obligate and bind the State to assumption thereof.”
See n. 9, swpra. The five States given immediate jurisdiction were California, Minnesota, Nebraska, Oregon, and Wisconsin. Alaska was added to this group in 1958. Act of Aug. 8, 1958, 72 Stat. 545, codified at 18 U. S. C. § 1162, 28 U. S. C. § 1360.
See n. 9, supra.
See n. 9, supra.
Wash. Const., Art. XXVI, ¶ 2.
Wash. Rev. Code, ch. 37.12 (1976).
For a detailed discussion of the Washington history under Pub. L. 280, see 1 National American Indian Court Judges Assn., Justice and the American Indian: The Impact of Public Law 280 upon the Administration of Justice on Indian Reservations (1974).
The Washington Supreme Court relied upon a previous decision in which it had rejected a challenge to Washington legislation permitting taxation of property leased from the Federal Government. Boeing Aircraft Co. v. Reconstruction Finance Corp., 25 Wash. 2d 652, 171 P. 2d 838. The Boeing legislation was challenged on the ground that the State had failed to remove by amendment a constitutional disclaimer of authority to tax federal property, and the Washington court held in Bo.eing that legislative action was sufficient.
See n. 1, supra.
See nn. 1 and 5, swpra.
Those tribes that had consented to state jurisdiction under the 1957 law remained fully subject to such jurisdiction. Wash. Rev. Code §37.12.010 (1976). Since 1963 only one tribe, the Colville, has requested the extension of full state jurisdiction. 1 National American Indian Court Judges, supra n. 15, at 77-81. The Yakima Nation, ever since 1952 when its representatives objected before a congressional committee to a predecessor of Pub. L. 280, see n. 33, infra, has consistently contested the wisdom and the legality of attempts by the State to exercise jurisdiction over its Reservation lands. See ibid.
Washington strenuously argues that this question is not properly before the Court. We think that it is. The Yakima Indian Nation has pressed this issue throughout the litigation. In its motion to dismiss or affirm, the alleged invalidity of Washington’s legislative assumption of jurisdiction was presented as a basis upon which the judgment below should be sustained. See n. 5, supra. As the prevailing party, the appel-lee was of course free to defend its judgment on any ground properly raised below whether or not that ground was relied upon, rejected, or even considered by the District Court or the Court of Appeals. United States v. American Ry. Express Co., 265 U. S. 425, 435-436; Dandridge v. Williams, 397 U. S. 471, 475, and n. 6. Moreover, the disclaimer issue was implicit in the subjects the parties were requested to address in our order noting probable jurisdiction of this appeal. 435 U. S. 903. Cf. Cent v. Arkansas, 384 U. S. 937; Zicarelli v. New Jersey State Comm’n, 401 U. S. 933.
Washington also contends that this Court’s summary dismissals in Makah Indian Tribe v. State, 76 Wash. 2d 485, 457 P. 2d 590, appeal dismissed, 397 U. S. 316; Tonasket v. State, 84 Wash. 2d 164, 525 P. 2d 744, appeal dismissed, 420 U. S. 915; and Comenout v. Burdman, 84 Wash. 2d 192, 525 P. 2d 217, appeal dismissed, 420 U. S. 915, should preclude reconsideration of the disclaimer issue here. In those cases, it had been argued that Washington’s statutory assumption of jurisdiction was ineffective under Pub. L. 280 and invalid under the state constitution because of the absence of a constitutional amendment eliminating Art. XXVI. In each case, the Washington Supreme Court rejected both the state constitutional and the federal arguments. On appeal from each, the appellants questioned the validity of the state court’s conclusion that under the federal statute no constitutional amendment was required. Our summary dismissals are, of course, to be taken as rulings on the merits, Hicks v. Miranda, 422 U. S. 332, 343-345, in the sense that they rejected the “specific challenges presented in the statement of jurisdiction” and left “undisturbed the judgment appealed from.” Mandel v. Bradley, 432 U. S. 173, 176. They do not, however, have the same precedential value here as does an opinion of this Court after briefing and oral argument on the merits, Edelman v. Jordan, 415 U. S. 651, 670-671; Richardson v. Ramirez, 418 U. S. 24, 53. A summary dismissal of an appeal represents no more than a view that the judgment appealed from was correct as to those federal questions raised and necessary to the decision. It does not, as we have continued to stress, see, e. g., Mandel v. Bradley, supra, necessarily reflect our agreement with the opinion of the court whose judgment is appealed. It is not at all unusual for the Court to find it appropriate to give full consideration to a question that has been the subject of previous summary action. Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307, 309 n. 1; Usery v. Turner Elkhorn Mining Co., 428 U. S. 1, 14. We do so in this case. The question that Washington asks us to avoid or to resolve on the basis of stare decisis has never received full plenary attention here. It has been the subject of extensive briefing and argument by the parties. It has provoked several, somewhat uncertain, opinions from the Washington courts, see n. 27, infra, whose ultimate judgments were the subjects of summary dismissals here. Finally, it is an issue upon which the Executive Branch of the United States Government has recently changed its position diametrically, as explained in its amicus brief and oral argument in this case.
The United States has fully briefed the constitutional amendment question and the question whether partial jurisdiction is authorized by Pub. L. 280. Its position on the equal protection holding of the Court of Appeals is equivocal.
The Tribe also contends that under its 1855 Treaty with the United States, 12 Stat. 951, it was guaranteed a right of self-government that was not expressly abrogated by Pub. L. 280. The argument assumes that under our cases, see, e. g., Menominee Tribe v. United States, 391 U. S. 404, treaty rights are preserved unless Congress has shown a specific intent to abrogate them. Although we have stated that the intention to abrogate or modify a treaty is not to be lightly imputed, id., at 413; Pigeon River Co. v. Cox Co., 291 U. S. 138, 160, this rule of construction must be applied sensibly. In this context, the argument made by the Tribe is tendentious. The treaty right asserted by the Tribe is jurisdictional. So also is the entire subject matter of Pub. L. 280. To accept the Tribe’s position would be to hold that Congress could not pass a jurisdictional law of general applicability to Indian country unless in so doing it itemized all potentially conflicting treaty rights that it -wished to affect. This we decline to do. The intent to abrogate inconsistent treaty rights is clear enough from the express terms of Pub. L. 280.
Act of Feb. 22, 1889, ch. 180, §4, 25 Stat. 676. The Act provides:
“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the inhabitants of all that part of the area of the United States now constituting the Territories of Dakota, Montana, and Washington, as at present described, may become the States of North Dakota, South Dakota, Montana, and Washington, respectively, as hereinafter provided.
“Seo. 4. That the delegates to the conventions elected as provided for in this act shall meet at the seat of government of each of said Territories . . . after organization, shall declare, on behalf of the people of said proposed States, that they adopt the Constitution of the United States; whereupon the said conventions shall be, and are hereby, authorized to form constitutions and States governments for said proposed States, respectively. The constitutions shall be republican in form, and make no distinction in civil or political rights on account of race or color, except as to Indians not taxed, and not be repugnant to the Constitution of the United States and the principles of the Declaration of Independence. And said conventions shall provide, by ordinances irrevocable without the consent of the United States and the people of said States:
“Second. That the people inhabiting said proposed States do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shaE have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States . . .
Other admitting Acts requiring a disclaimer of authority- over Indian lands are Act of July 16, 1894, ch. 138, 28 Stat. 107 (Utah); Act of June 16, 1906, ch. 3335, 34 Stat. 267 (Oklahoma); Act of June 20, 1910, ch. 310, 36 Stat. 557 (Arizona and New Mexico). The language of these Acts is virtually the same as that of 25 Stat. 676.
Article XXVI reads as follows:
“COMPACT WITH THE UNITED STATES
“The following ordinance shall be irrevocable without the consent of the United States and the people of this state:
“Second. That the people inhabiting this state do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries of this state, and to all lands lying within said limits owned or held by any Indian or Indihn tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the congress of the United States and that the lands belonging to citizens of the United States residing without the limits of this state shall never be taxed at a higher rate than the lands belonging to residents thereof; and that no taxes shall be imposed by the state on lands or property therein, belonging to or which may be hereafter purchased by the United States or reserved for use: Provided, That nothing in this ordinance shall preclude the state from taxing as other lands are taxed any lands owned or held.by any Indian who has severed his tribal relations, and has obtained from the United States or from any person a title thereto by patent or other grant, save and except such lands as have been or may be granted to any Indian or Indians under any act of congress containing a provision exempting the lands thus granted from taxation, which exemption shall continue so long and to such an extent as such act of congress may prescribe.”
See H. R. Rep. No. 848, 83d Cong., 1st Sess. (1953). According to this report accompanying H. R. 1063 (the House version of Pub. L. 280) “ [examination of the Federal statutes and State constitutions has revealed that enabling acts for eight States, and in consequence the constitutions of those States, contain express disclaimers of jurisdiction. Included are Arizona, Montana, New Mexico, North Dakota, Oklahoma, South Dakota, Utah, and Washington.” H. R. Rep. No. 848, at 6.
See n. 35, infra, and accompanying text.
The validity of Chapter 36 was first challenged in the federal courts in Quinault Tribe of Indians v. Gallagher, 368 F. 2d 648 (CA9). In Quinault, the Court of Appeals for the Ninth Circuit held that under § 6 and the Enabling Act the consent of the people to removal of the disclaimer need only be made in some manner “valid and binding under state law.” Id., at 657. Relying on the Washington Supreme Court’s holding in State v. Paul, 53 Wash. 2d 789, 337 P. 2d 33, that legislative action would suffice, it concluded that Washington’s assumption of jurisdiction was valid. When Chapter 36 was first challenged in the state courts, the Washington Supreme Court reaffirmed its holding in State v. Paul. See Makah Indian Tribe v. State, 76 Wash. 2d 485, 457 P. 2d 590; Tonasket v. State, 84 Wash. 2d 164, 525 P. 2d 744. See also n. 16, supra. In Makah, the Court reasoned, as it had in Paul, that the makers of the Washington Constitution intended that for purposes of Art. XXVI “the people would speak through the mouth of the legislature.” 76 Wash. 2d, at 490, 457 P. 2d, at 593. In addition, it relied on Quinault 'for the proposition that under § 6 the constitutional disclaimer need be removed only by a method binding under state law. In Tonasket, the Washington court reaffirmed this reasoning. It also relied on the alternative ground that the disclaimer in Art. XXVI could be construed not to preclude “criminal and civil regulation” on Indian lands and therefore would not stand as a barrier to state jurisdiction. 84 Wash. 2d, at 177, 525 P. 2d, at 752.
The State asserts as well that the Washington constitutional disclaimer does not pose any substantive barrier to state assumption of jurisdiction over fee and unrestricted lands within the reservation. In light of our holding that Washington has satisfied the procedural requirements for repealing the disclaimer, we need not consider the scope of this state constitutional provision.
Disclaimer States have responded in diverse ways to the Pub. L. 280 offer of jurisdiction. See Goldberg, Pub. L. 280: The Limits of State Jurisdiction over Reservation Indians, 22 UCLA L. Rev. 535, 546-548, 567-575 (1975). Only one — North Dakota — has amended its constitution. Art. 16, N. D. Const., amended by Art. 68, June 24, 1958 (1957 N. D. Laws, ch. 403; 1959 N. D. Laws, ch. 430).
In Kennedy v. District Court of Montana, 400 U. S. 423, we emphasized the need for the responsible jurisdictions to “manifes[t] by political action their willingness and ability to discharge their new responsibilities.” Id,., at 427. Kennedy involved an attempt by the state courts of Montana to assert civil jurisdiction over a transaction that occurred within reservation boundaries. The tribe had requested state jurisdiction, but the State had not obligated itself to assume it. The ease was litigated on the theory that § 7 was applicable. We held that the State must comply with the § 7 requirement of “affirmative legislative action.” 400 U. S., at 427. Two of our other cases involving Pub. L. 280 also illustrate the need for responsible action under the federal statute. In Williams v. Lee, 358 U. S. 217, we held that the State of Arizona — one of the disclaimer States— could not validly exercise jurisdiction over a civil action brought by a non-Indian against an Indian for a transaction that occurred on the Navaho Reservation. We relied on the traditional principle that a State may not infringe the right of reservation Indians “to make their own laws and be ruled by them” without an express authorization by Congress. Id., at 220. In Williams, the State had not attempted to comply with § 6: the state court had taken jurisdiction without state statutory or constitutional authorization. A similar situation obtained in McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164. There we held that Arizona could not, by simple legislative enactment, tax income earned by a Navaho from reservation sources. The tax statute at issue was not framed as a measure obligating the State to assume responsibility under Pub. L. 280.
There is, for example, nothing in the legislative history of the Enabling Act to indicate that the “consent of the people” could be given only by a process of constitutional amendment. The scant legislative record of the Enabling Act is devoted to a debate over the wisdom of splitting the Dakota Territory into two States and of admitting both immediately to the Union. In none of these debates was there any extended discussion of the Indian land disclaimer or any indication that the “consent of the people” to removal of the disclaimer could not be given by the people’s representatives in the legislature. See Adverse Reports of the House Committee on the Territories, May 1886 and Feb. 1888, annexed to H. R. Rep. No. 1025, 50th Cong., 1st Sess., 19-25 (1888). See also, e. g., 19 Cong. Rec. 2804, 2883, 3001, 3117 (1888); 20 Cong. Rec. 801, 869 (1889). The only explicit references to the disclaimer of authority over Indian lands are found in H. R. Rep. No. 1025, supra, at 8-9 (calling attention to fact that by the terms of the bill large Indian reservations in the Dakota Territory “remain within the exclusive control and jurisdiction of the United States”) and in 19 Cong. Rec. 2832 (1888) (Oklahoma Delegate objecting to the disclaimer).
That policy was formally announced in H. R. Con. Res. 108, 67 Stat. B132, approved on July 27, 1953, the same day that Pub. L. 280 was passed by the House. 99 Cong. Ree. 9968 (1953). As stated in H. It. Con. Res. 108, the policy of Congress was “as rapidly as possible, to make the Indians within the territorial limits of the United States subject to the same laws and entitled to the same privileges and responsibilities as are applicable to other citizens of the United States, to end their status as wards of the United States, and to grant them all of the rights and prerogatives pertaining to American citizenship . . . .”
This policy reflected a return to the philosophy of the General Allotment Act of 1887, ch. 119, § 1,24 Stat. 388, as amended, 25 U. S. C. § 331, popularly known as the Dawes Act, a philosophy which had been rejected with the passage of the Indian Reorganization Act of 1934, 48 Stat. 984.
In Bryan v. Itasca County, 426 U. S. 373, the Court emphasized that Pub. L. 280 was not a termination measure and should not be construed as such. Our discussion here is not to the contrary. The parties agree that Pub. L. 280 reflected an assimilationist philosophy. That Congress intended to facilitate assimilation when it authorized a transfer of jurisdiction from the Federal Government to the States does not necessarily mean, however, that it intended in Pub. L. 280 to terminate tribal self-government. Indeed, the Tribe has argued that even after the transfer tribal courts retain concurrent jurisdiction in areas in which they formerly shared jurisdiction' with the Federal Government. This issue, however, is not within the scope of our order noting probable jurisdiction, see n. 20, supra, and we do not decide it here.
These features of Pub. L. 280 have attracted extensive criticism. See generally Goldberg, supra n. 29. Indeed, the experience of the Yakima Nation is in itself sufficient to demonstrate why the Act has provoked so much criticism. In 1952, in connection with the introduction of bills that proposed a general jurisdictional transfer, see 1952 Hearings, a representative of the Yakimas testified that the Tribe was opposed to the extension of state jurisdiction on the Yakima Reservation. He stated:
“The Yakima Indians . . . feel that in the State Courts they will not be treated as well as they are in the Federal courts, because they believe that many of the citizens of the State are still prejudiced against the Indians.
“They are now under the Federal laws and have their own tribal laws, customs, and regulations. This system is working well and the Yakima Tribe believes that it should be continued and not changed at this time.” Id., at 84-85.
In 1953, when the Indian Affairs Subcommittee of the House Committee on Indian Affairs considered the final version of Pub. L. 280, the Committee was again aware that the Yakima Nation opposed state jurisdiction. The House Report accompanying H. R. 1063 contains a letter from the Department of the Interior listing the Tribe as among those opposed to “being subjected to State jurisdiction” and having a “tribal law-and-order organization that functions in a reasonably satisfactory manner.” H. R. Rep. No. 848, 83d Cong., 1st Sess., 7 (1953). Had Washington been included among the mandatory States, it is thus quite possible that the Yakima Reservation would have been excepted.
Similar bills had been introduced in the 82d Congress, and in public hearings held on those the idea of a general transfer was discussed at length. See 1952 Hearings.
See unpublished transcript of Hearings on H. R. 1063 before the Subcommittee on Indian Affairs of the House Committee on Interior and Insular Affairs, 83d Cong., 1st Sess. (June 29, 1953), and unpublished transcript of Hearings on H. R. 1063 before the House Committee on Interior and Insular Affairs, 83d Cong., 1st Sess. (July 15, 1953) (hereinafter cited as June 29 Hearings and July 15 Hearings, respectively). The transcripts of these hearings were first made available to this Court by the United States during the briefing of Tonasket v. Washington, 411 U. S. 451. They were again supplied in Bryan v. Itasca County, supra, and for this appeal have been reproduced in full in the Appendix to Brief for Appellee. These hearings, along with the House Report on H. R. 1063 as amended, H. R. Rep. No. 848, supra, and the Senate Report, which is virtually identical, S. Rep. No. 699, 83d Cong., 1st Sess. (1953), constitute the primary legislative materials on Pub. L. 280.
On July 15, Committee counsel presented an amendment which was eventually to become § 6. He explained the effect of the amendment as follows:
“[T]he legislation as acted upon by the committee would apply to only five states. The two additional section amendments would apply first to the eight states having constitutional or organic law impediments and would grant consent of the United States for them to remove such impediments and thus to acquire jurisdiction.
“The other amendment would apply to any other Indian states . . . who would acquire jurisdiction at such time as the legislative body affirmatively indicated their desire to so assume jurisdiction.” July 15 Hearings 4.
Immediately after the proposed § 6 was read to the Subcommittee, the Chairman, Congressman D’Ewart, commented:
“I do not think we have to grant permission to a state to amend its own statutes.” July 15 Hearings 7.
Committee counsel replied:
“Mr. D’Ewart, I believe the reason for this is that in some instances it is spelled out both in the constitution and the statutory provisions as a result of the Act and it may be unnecessary, but by some state courts it may be interpreted as being necessary.” Ibid.
The version of § 6 read to the Committee Members by counsel contained no reference to the Enabling Acts but merely granted consent for the States to remove existing impediments to the assertion of jurisdiction over Indians. It was suggested that in order effectively to authorize the States to modify their organic legislation the clause should be more specific. This suggestion resulted in the proposal of the “notwithstanding” clause. The following exchange then took place:
“[Committee counsel]: I believe that clause ‘notwithstanding any provisions of the Enabling Act’ for such states might well be included. It would make clear that Congress was repealing the Enabling Act.
“[Congressman Dawson]: To give permission to amend their constitution.
“ [Committee counsel]: I think that would help clarify the intent of the committee at the present time and of Congress if they favorably acted on the legislation.” Id., at 9.
The next day, July 16, the Committee filed its report on the substitute bill. H. R. Rep. No. 848, supra. The Report explains that § 6 would
“give consent of the United States to those States presently having organic laws expressly disclaiming jurisdiction to acquire jurisdiction subsequent to enactment by amending or repealing such disclaimer laws.”
The Committee hearings thus make clear an intention to remove any federal barriers to the assumption of jurisdiction by Enabling Act States. They also make clear that that consent was not to effect an immediate transfer of jurisdiction.
See June 29 Hearings 23; July 15 Hearings 6-11.
The House passed the bill without debate on July 27, 1953. 99 Cong. Rec. 9962-9963. In the Senate, the bill was referred to the Committee on Interior and Insular Affairs. Id., at 10065. That Committee held no hearings of its own, and it reported out the bill two days later without amendment. Id., at 10217. The bill received only brief consideration on the Senate floor before it was passed on August 1, 1953. Id., at 10783-10784.
The Tribe has intimated that the Washington Supreme Court’s holding is incorrect. However, the procedure by which the disclaimer might, be removed or repealed — Congress having given its consent — is as we have held a question of state law.
Both parties find support for their positions on this issue in the legislative history of the amendments to Pub. L. 280 in Title IY of the Indian Civil Rights Act of 1968, 82 Stat. 73. The 1968 legislation provides that States that have not extended criminal or civil jurisdiction to Indian country can make future extensions only with the consent of the tribes affected. 26 U. S. C. §§ 1321 (a), 1322 (a). The amendments also provide explicitly for partial assumption of jurisdiction. Ibid. In addition, they authorize the United States to accept retrocessions of jurisdiction, full or partial, from the mandatory and the § 7 States. 25 U. S. C. § 1323 (a). Section 7 itself was repealed with the proviso that the repeal was not intended to affect any cession made prior to the repeal. 25 U. S. C. § 1323 (b). Section 6 was re-enacted without change. 25 U. S. C. § 1324.
We do not rely on the 1968 legislation or its history, finding the latter equivocal, and mindful that the issues in this case are to be determined in accord with legislation enacted by Congress in 1953.
Since entire reservations were exempted from coverage in three of the mandatory States, the Tribe and the United States concede that the option States could probably assume jurisdiction on a reservation-by-reservation basis. The United States also concedes that the word “or” in § 7S might be construed to mean that option States need not extend both civil and criminal jurisdiction.
See June 29 and July 15 Hearings.
See ibid.
See, e. g., July 15 Hearings 4.
The 1968 amendments, which re-enacted § 6 without change as 25 U. S. C. § 1324 but repealed § 7, 25 U. S. C. § 1323 (b), and added substantive jurisdictional provisions covering “any State,” see 25 U. S. C. §§ 1321, 1322, suggest that in the future the scope of jurisdiction for all States is to be the same.
The Court of Appeals did not disturb the finding of the District Court that Chapter 36 had not been applied on the Yakima Reservation to discriminate against the Tribe or any of its members. The District Court found that the governmental legal services available to the Tribe and its members were not significantly different from those offered to other rural and city residents of Yakima County. It also concluded that the distinctions drawn between non-Indians and Indians in the statute were not motivated by a discriminatory purpose. In view of these findings, our inquiry here is limited to the narrow question whether the distinctions drawn in Chapter 36 on their face violate the Equal Protection Clause of the Fourteenth Amendment.
The Court of Appeals limited its holding to the land-tenure classification. The Tribe, in support of the judgment, has argued that the Chapter 36 classifications based on the tribal status of the offender and on whether a juvenile is involved are also facially invalid. In our view these status classifications of Chapter 36 are indistinguishable from the interrelated land-tenure classification so far as the Equal Protection Clause is concerned.
This is not to hold that Pub. L. 280 was a termination measure. Whether there is concurrent tribal and state jurisdiction on some areas of the Reservation is an issue we do not decide. See n, 32, supra. | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded. | What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed? | [
"stay, petition, or motion granted",
"affirmed",
"reversed",
"reversed and remanded",
"vacated and remanded",
"affirmed and reversed (or vacated) in part",
"affirmed and reversed (or vacated) in part and remanded",
"vacated",
"petition denied or appeal dismissed",
"modify",
"remand",
"unusual disposition"
] | [
2
] | sc_lcdisposition |
UNITED STATES et al. v. SASKATCHEWAN MINERALS.
No. 525.
Decided November 14, 1966.
Solicitor General Marshall, Assistant Attorney General Turner, Howard E. Shapiro, Robert W. Ginnane, Fritz R. Kahn and Betty Jo Christian for the United States et al. in No. 625.
Charles W. Burkett, W. Harney Wilson, Arthur A. Arsham and Willard P. Scott for appellants in No. 526.
Wayne W. Wright for appellee in both cases.
Together with No. 526, Great Northern Railway Co. et al. v. Saskatchewan Minerals, also on appeal from the same court.
Per Curiam.
These appeals are from an amended judgment of a three-judge district court, 253 F. Supp. 504, which set aside an order of the Interstate Commerce Commission dismissing appellee’s complaint, 325 I. C. C. 621, and remanded the case to the Commission “for further proceedings with instructions to grant relief” to the appellee “in accordance with the opinion heretofore entered by this court on December 8, 1965, and the Supplemental Memorandum Decision entered by this Court on March 3, 1966.” Accepting the District Court’s decision to set aside the Commission’s order on the merits, appellants challenge that portion of the judgment which instructs the Commission to grant relief to the appellee and precludes the Commission from reopening the proceedings for the receipt of additional evidence relevant to the question whether the rates challenged by the appellee are in fact unreasonably preferential in violation of § 3 (1) of the Interstate Commerce Act, 49 U. S. C. § 3 (1). We agree with the appellants that, under the circumstances present here, this restriction is an improper limitation on the Commission’s duty to reconsider the entire case. Arrow Transp. Co. v. Cincinnati, N. O. & T. P. R. Co., 379 U. S. 642. Accordingly, the. judgment of the District Court is vacated and the cases are remanded to the District Court with instructions to enter an order remanding the case to the Commission for further proceedings consistent with the District Court’s opinion of December 8, 1965.
It is so ordered. | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases. | What is the ideological direction of the decision? | [
"Conservative",
"Liberal",
"Unspecifiable"
] | [
0
] | sc_decisiondirection |
AMERICAN SHIP BUILDING CO. v. NATIONAL LABOR RELATIONS BOARD.
No. 255.
Argued January 21, 1965.
Decided March 29, 1965.
William, 8. Tyson argued the cause for petitioner. With him on the brief was Charles Cavano.
Norton J. Come argued the cause for respondent. With him on the brief were Solicitor General Cox, Frank Goodman, Arnold Ordman and Dominick L. Manoli.
William B. Barton filed a brief for the Chamber of Commerce of the United States, as amicus curiae, urging reversal.
Briefs of amici curiae, urging affirmance, were filed by J. Albert Woll, Robert C. Mayer, Theodore J. St. Antoine and Thomas E. Harris for the American Federation of Labor and Congress of Industrial Organizations, and by Bernard M. Mamet for Local 374, International Brotherhood of Boilermakers.
Mr. Justice Stewart
delivered the opinion of the Court.
The American Ship Building Company seeks review of a decision of the United States Court of Appeals for the District of Columbia Circuit enforcing an order of the National Labor Relations Board which found that the company had committed an unfair labor practice under §§8(a)(1) and (3) of the National Labor Relations Act. The question presented is that expressly reserved in Labor Board v. Truck Drivers Local Union, 353 U. S. 87, 93; namely, whether an employer commits an unfair labor practice under these sections of the Act when he temporarily lays off or “locks out” his employees during a labor dispute to bring economic pressure in support of his bargaining position. To resolve an asserted conflict among the circuits upon this important question of federal labor law we granted certiorari, 379 U. S. 814.
The American Ship Building Company operates four shipyards on the Great Lakes — at Chicago, at Buffalo, and at Toledo and Lorain, Ohio. The company is primarily engaged in the repairing of ships, a highly seasonal business concentrated in the winter months when the freezing of the Great Lakes renders shipping impossible. What limited business is obtained during the shipping season is frequently such that speed of execution is of the utmost importance to minimize immobilization of the ships.
Since 1952 the employer has engaged in collective bargaining with a group of eight unions. Prior to the negotiations here in question, the employer had contracted with the unions on five occasions, each agreement having been preceded by a strike. The particular chapter of the collective bargaining history with which we are concerned opened shortly before May 1, 1961, when the unions notified the company of their intention to seek modification of the current contract, due to expire on August 1.
At the initial bargaining meeting on June 6, 1961, the company took the position that its competitive situation would not allow increased compensation. The unions countered with demands for increased fringe benefits and some unspecified wage increase. Several meetings were held in June and early July during which negotiations focussed upon the fringe benefit questions without any substantial progress. At the last meeting, the parties resolved to call in the Federal Mediation and Conciliation Service, which set the next meeting for July 19. At this meeting, the unions first unveiled their demand for a. 20-cents-an-hour wage increase and proposed a six-month extension of the contract pending continued negotiations. The employer rejected the proposed extension because it would have led to expiration during the peak season.
Further negotiations narrowed the dispute to five or six issues, all involving substantial economic differences. On July 31, the eve of the contract’s expiration, the employer made a proposal; the unions countered with another, revived their proposal for a six-month extension, and proposed in the alternative that the existing contract, with its no-strike clause, be extended indefinitely with the terms of the new contract to be made retroactive to August 1. After rejection of the proposed extensions, the employer’s proposal was submitted to the unions’ membership; on August 8 the unions announced that this proposal had been overwhelmingly rejected. The following day, the employer made another proposal which the unions refused to submit to their membership; the unions made no counteroffer and the parties separated without setting a date for further meetings, leaving this to the discretion of the conciliator.
Thus on August 9, after extended negotiations, the parties separated without having resolved substantial differences on the central issues dividing them and without having specific plans for further attempts to resolve them — a situation which the trial examiner found was an impasse. Throughout the negotiations, the employer displayed anxiety as to the unions’ strike plans, fearing that the unions would call a strike as soon as a ship entered the Chicago yard or delay negotiations into the winter to increase strike leverage. The union negotiator consistently insisted that it was his intention to reach an agreement without calling a strike; however, he did concede incomplete control over the workers — a fact borne out by the occurrence of a wildcat strike in February 1961. Because of the danger of an unauthorized strike and the consistent and deliberate use of strikes in prior negotiations, the employer remained apprehensive of the possibility of a work stoppage.
In light of the failure to reach an agreement and the lack of available work, the employer decided to lay off certain of its workers. On August 11 the employees received a notice which read: “Because of the labor dispute which has been unresolved since August 1, 1961, you are laid off until further notice.” The Chicago yard was completely shut down and all but two employees laid off at the Toledo yard. A large force was retained at Lorain to complete a major piece of work there and the employees in the Buffalo yard were gradually laid off as miscellaneous tasks were completed. Negotiations were resumed shortly after these layoffs and continued for the following two months until a two-year contract was agreed upon on October 27. The employees were recalled the following day.
Upon claims filed by the unions, the General Counsel of the Board issued a complaint charging the employer with violations of §§8 (a)(1), (3), and (5). The trial examiner found that although there had been no work in the Chicago yard since July 19, its closing was not due to lack of work. Despite similarly slack seasons in the past, the employer had for 17 years retained a nucleus crew to do maintenance work and remain ready to take such work as might come in. The examiner went on to find that the employer was reasonably apprehensive of a strike at some point. Although the unions had given assurances that there would be no strike, past bargaining history was thought to justify continuing apprehension that the unions would fail to make good their assurances. It was further found that the employer’s primary purpose in locking out its employees was to avert peculiarly harmful economic consequences which would be imposed on it and its customers if a strike were called either while a ship was in the yard during the shipping season or later when the yard was fully occupied. The examiner concluded that the employer:
“was economically justified and motivated in laying off its employees when it did, and that the fact that its judgment was partially colored by its intention to break the impasse which existed is immaterial in the peculiar and special circumstances of this case. Respondent, by its actions, therefore, did not violate Section 8 (a)(1), (3), and (5) of the Act.”
A three-to-two majority of the Board rejected the trial examiner’s conclusion that the employer could reasonably anticipate a strike. Finding the unions’ assurances sufficient to dispel any such apprehension, the Board was able to find only one purpose underlying the layoff: a desire to bring economic pressure to secure prompt settlement of the dispute on favorable terms. The Board did not question the examiner’s finding that the layoffs had not occurred until after a bargaining impasse had been reached. Nor did the Board remotely suggest that the company’s decision to lay off its employees was based either on union hostility or on a desire to avoid its bargaining obligations under the Act. The Board concluded that the employer “by curtailing its operations at the South Chicago yard with the consequent layoff of the employees, coerced employees in the exercise of their bargaining rights in violation of Section 8 (a)(1) of the Act, and discriminated against its employees within the meaning of Section 8 (a) (3) of the Act.” 142 N. L. R. B., at 136A-1365.
The difference between the Board and the trial examiner is thus a narrow one turning on their differing assessments of the circumstances which the employer claims gave it reason to anticipate a strike. Both the Board and the examiner assumed, within the established pattern of Board analysis, that if the employer had shut down its yard and laid off its workers solely for the purpose of bringing to bear economic pressure to break an impasse and secure more favorable contract terms, an unfair labor practice would be made out. “The Board has held that, absent special circumstances, an employer may not during bargaining negotiations either threaten to lock out or lock out his employees in aid of his bargaining position. Such conduct the Board has held presumptively infringes upon the collective-bargaining rights of employees in violation of Section 8 (a)(1) and the lockout, with its consequent layoff, amounts to discrimination within the meaning of Section 8 (a) (3). In addition, the Board has held that such conduct subjects the Union and the employees it represents to unwarranted and illegal pressure and creates an atmosphere in which the free opportunity for negotiation contemplated by Section 8 (a) (5) does not exist.” Quaker State Oil Refining Corp., 121 N. L. R. B. 334, 337.
The Board has, however, exempted certain classes of lockouts from proscription. “Accordingly, it has held that lockouts are permissible to safeguard against . . . loss where there is reasonable ground for believing that a strike was threatened or imminent.” Ibid. Developing this distinction in its rulings, the Board has approved lockouts designed to prevent seizure of a plant by a sitdown strike, Link-Belt Co., 26 N. L. R. B. 227; to forestall repetitive disruptions of an integrated operation by “quickie” strikes, International Shoe Co., 93 N. L. R. B. 907; to avoid spoilage of materials which would result from a sudden work stoppage, Duluth Bottling Assn., 48 N. L. R. B. 1335; and to avert the immobilization of automobiles brought in for repair, Betts Cadillac Olds, Inc., 96 N. L. R. B. 268. In another distinct class of cases the Board has sanctioned the use of the lockout by a multiemployer bargaining unit as a response to a whipsaw strike against one of its members. Buffalo Linen Supply Co., 109 N. L. R. B. 447, rev’d sub nom. Truck Drivers Union v. Labor Board, 231 F. 2d 110, rev’d, 353 U. S. 87.
In analyzing the status of the bargaining lockout under §§ 8 (a) (1) and (3) of the National Labor Relations Act, it is important that the practice with which we are here concerned be distinguished from other forms of temporary separation from employment. No one would deny that an employer is free to shut down his enterprise temporarily for reasons of renovation or lack of profitable work unrelated to his collective bargaining situation. Similarly, we put to one side cases where the Board has concluded on the basis of substantial evidence that the employer has used a lockout as a means to injure a labor organization or to evade his duty to bargain collectively. Hopwood Retinning Co., 4 N. L. R. B. 922; Scott Paper Box Co., 81 N. L. R. B. 535. What we are here concerned with is the use of a temporary layoff of employees solely as a means to bring economic pressure to bear in support of the employer’s bargaining position, after an impasse has been reached. This is the only issue before us, and all that we decide.
To establish that this practice is a violation of § 8 (a) (1), it must be shown that the employer has interfered with, restrained, or coerced employees in the exercise of some right protected by § 7 of the Act. The Board’s position is premised on the view that the lockout interferes with two of the rights guaranteed by § 7: the right to bargain collectively and the right to strike. In the Board’s view, the use of the lockout “punishes” employees for the presentation of and adherence to demands made by their bargaining representatives and so coerces them in the exercise of their right to bargain collectively. It is important to note that there is here no allegation that the employer used the lockout in the service of designs inimical to the process of collective bargaining. There was no evidence and no finding that the employer was hostile to its employees’ banding together for collective bargaining or that the lockout was designed to discipline them for doing so. It is therefore inaccurate to say that the employer’s intention was to destroy or frustrate the process of collective bargaining. What can be said is that it intended to resist the demands made of it in the negotiations and to secure modification of these demands. We cannot see that this intention is in any way inconsistent with the employees’ rights to bargain collectively.
Moreover, there is no indication, either as a general matter or in this specific case, that the lockout will necessarily destroy the unions’ capacity for effective and responsible representation. The unions here involved have vigorously represented the employees since 1952, and there is nothing to show that their ability to do so has been impaired by the lockout. Nor is the lockout one of those acts which are demonstrably so destructive of collective bargaining that the Board need not inquire into employer motivation, as might be the case, for example, if an employer permanently discharged his unionized staff and replaced them with employees known to be possessed of a violent antiunion animus. Cf. Labor Board v. Erie Resistor Corp., 373 U. S. 221. The lockout may well dissuade employees from adhering to the position which they initially adopted in the bargaining, but the right to bargain collectively does not entail any “right” to insist on one’s position free from economic disadvantage. Proper analysis of the problem demands that the simple intention to support the employer’s bargaining position as to compensation and the like be distinguished from a hostility to the process of collective bargaining which could suffice to render a lockout unlawful. See Labor Board v. Brown, ante, p. 278.
The Board has taken the complementary view that the lockout interferes with the right to strike protected under §§ 7 and 13 of the Act in that it allows the employer to pre-empt the possibility of a strike and thus leave the union with “nothing to strike against.” Insofar as this means that once employees are locked out, they are deprived of their right to call a strike against the employer because he is already shut down, the argument is wholly specious, for the work stoppage which would have been the object of the strike has in fact occurred. It is true that recognition of the lockout deprives the union of exclusive control of the timing and duration of work stoppages calculated to influence the result of collective bargaining negotiations, but there is nothing in the statute which would imply that the right to strike “carries with it” the right exclusively to determine the timing and duration of all work stoppages. The right to strike as commonly understood is the right to cease work — nothing more. No doubt a union’s bargaining power would be enhanced if it possessed not only the simple right to strike but also the power exclusively to determine when work stoppages should occur, but the Act’s provisions are not indefinitely elastic, content-free forms to be shaped in whatever manner the Board might think best conforms to the proper balance of bargaining power.
Thus, we cannot see that the employer’s use of a lockout solely in support of a legitimate bargaining position is in any way inconsistent with the right to bargain collectively or with the right to strike. Accordingly, we con-elude that on the basis of the findings made by the Board in this ease, there has been no violation of § 8 (a)(1).
Section 8 (a)(3) prohibits discrimination in regard to tenure or other conditions of employment to discourage union membership. Under the words of the statute there must be both discrimination and a resulting discouragement of union membership. It has long been established that a finding of violation under this section will normally turn on the employer’s motivation. See Labor Board v. Brown, ante, p. 278; Radio Officers’ Union v. Labor Board, 347 U. S. 17, 43; Labor Board v. Jones & Laughlin Steel Corp., 301 U. S. 1, 46. Thus when the employer discharges a union leader who has broken shop rules, the problem posed is to determine whether the employer has acted purely in disinterested defense of shop discipline or has sought to damage employee organization. It is likely that the discharge will naturally tend to discourage union membership in both cases, because of the loss of union leadership and the employees’- suspicion of the employer’s true intention. But we have consistently construed the section to leave unscathed a wide range of employer actions taken to serve legitimate lousiness interests in some significant fashion, even though the act committed may tend to discourage union membership. See, e. g., Labor Board v. Mackay Radio & Telegraph Co., 304 U. S. 333, 347. Such a construction of § 8 (a)(3) is essential if due protection is to be accorded the employer’s right to manage his enterprise. See Textile Workers v. Darlington Mfg. Co., ante, p. 263.
This is not to deny that there are some practices which are inherently so prejudicial to union interests and so devoid of significant economic justification that no specific evidence of intent to discourage union membership or other antiunion animus is required. In some cases, it may be that the employer’s conduct carries with it an inference of unlawful intention so compelling that it is justifiable to disbelieve the employer’s protestatiQns of innocent purpose. Radio Officers’ Union v. Labor Board, supra, at 44-45; Labor Board v. Erie Resistor Corp., supra. Thus where many have broken a shop rule, but only union leaders have been discharged, the Board need not listen too long to the plea that shop discipline was simply being enforced. In other situations, we have described the process as the “far more delicate task . . . of weighing the interests of employees in concerted activity against the interest of the employer in operating his business in a particular manner . . . .” Labor Board v. Erie Resistor Corp., supra, at 229.
But this lockout does not fall into that category of cases arising under §8 (a)(3) in which the Board may truncate its inquiry into employer motivation. As this case well shows, use of the lockout does not carry with it any necessary implication that the employer acted to discourage union membership or otherwise discriminate against union members as such. The purpose and effect of the lockout were only to bring pressure upon the union to modify its demands. Similarly, it does not appear that the natural tendency of the lockout is severely to discourage union membership while serving no significant employer interest. In fact, it is difficult to understand what tendency to discourage union membership or otherwise discriminate against union members was perceived by the Board. There is no claim that the employer locked out only union members, or locked out any employee simply because he was a union member; nor is it alleged that the employer conditioned rehiring upon resignation from the union. It is true that the employees suffered economic disadvantage because of their union’s insistence on demands unacceptable to the employer, but this is also true of many steps which an employer may take during a bargaining conflict, and the existence of an arguable possibility that someone may feel himself discouraged in his union membership or discriminated against by reason of that membership cannot suffice to label them violations of § 8 (a) (3) absent some unlawful intention. The employer’s permanent replacement of strikers (Labor Board v. Mackay Radio & Telegraph Co., supra), his unilateral imposition of terms (Labor Board v. Tex-Tan, Inc., 318 F. 2d 472, 479-482), or his simple refusal to make a concession which would terminate a strike — all impose economic disadvantage during a bargaining conflict, but none is necessarily a violation of 18(a)(3).
To find a violation of § 8 (a) (3), then, the Board must find that the employer acted for a proscribed purpose. Indeed, the Board itself has always recognized that certain “operative” or “economic” purposes would justify a lockout. But the Board has erred in ruling that only these purposes will remove a lockout from the ambit of § 8 (a)(3), for that section requires an intention to discourage union membership or otherwise discriminate against the union. There was not the slightest evidence and there was no finding that the employer was actuated by a desire to discourage membership in the union as distinguished from a desire to affect the outcome of the particular negotiations in which it was involved. We recognize that the “union membership” which is not to be discouraged refers to more than the payment of dues and that measures taken to discourage participation in protected union activities may be found to come within the proscription. Radio Officers’ Union v. Labor Board, supra, at 39-40. However, there is nothing in the Act which gives employees the right to insist on their contract demands, free from the sort of economic disadvantage which frequently attends bargaining disputes. Therefore, we conclude that where the intention proven is merely to bring about a settlement of a labor dispute on favorable terms, no violation of § 8 (a)(3) is shown.
The conclusions which we draw from analysis of §§8 (a)(1) and (3) are consonant with what little of relevance can be drawn from the balance of the statute and its legislative history. In the original version of the Act, the predecessor of § 8 (a)(1) declared it an unfair labor practice “[t]o attempt, by interference, influence, restraint, favor, coercion, or lockout, or by any other means, to impair the right of employees guaranteed in section 4.” Prominent in the criticism leveled at the bill in the Senate Committee hearings was the charge that it did not accord even-handed treatment to employers and employees because it prohibited the lockout while protecting the strike. In the face of such criticism, the Committee added a provision prohibiting employee interference with employer bargaining activities and deleted the reference to the lockout. A plausible inferenee to be drawn from this history is that the language was deleted to mollify those who saw in the bill an inequitable denial of resort to the lockout, and to remove any language which might give rise to fears that the lockout was being proscribed per se. It is in any event clear that the Committee was concerned with the status of the lockout and that the bill, as reported and as finally enacted, contained no prohibition on the use of the lockout as such.
Although neither § 8 (a)(1) nor § 8 (a)(3) refers specifically to the lockout, various other provisions of the National Labor Relations Act do refer to the lockout, and these references can be interpreted as a recognition of the legitimacy of the device as a means of applying economic pressure in support of bargaining positions. Thus 29 U. S. C. § 158 (d)(4) (1958 ed.) prohibits the use of a strike or lockout unless requisite notice procedures have been complied with; 29 U. S. C. § 173 (c) (1958 ed.) directs the Federal Mediation and Conciliation Service to seek voluntary resolution of labor disputes without resort to strikes or lockouts; and 29 U. S. C. §§ 176, 178 (1958 ed.), authorize procedures whereby the President can institute a board of inquiry to forestall certain strikes or lockouts. The correlative use of the terms "strike” and “lockout” in these sections contemplates that lockouts will be used in the bargaining process in some fashion. This is not to say that these provisions serve to define the permissible scope of a lockout by an employer. That, in the context of the present case, is a question ultimately to be resolved by analysis of §§ 8 (a)(1) and (3).
The Board has justified its ruling in this case and its general approach to the legality of lockouts on the basis of its special competence to weigh the competing interests of employers and employees and to accommodate these interests according to its expert judgment. "The Board has reasonably concluded that the availability of such a weapon would so substantially tip the scales in the employer’s favor as to defeat the Congressional purpose of placing employees on a par with their adversary at the bargaining table.” To buttress its decision as to the balance struck in this particular case, the Board points out that the employer has been given other weapons to counterbalance the employees’ power of strike. The employer may permanently replace workers who have gone out on strike, or, by stockpiling and subcontracting, maintain his commercial operations while the strikers bear the economic brunt of the work stoppage. Similarly, the employer can institute unilaterally the working conditions which he desires once his contract with the union has expired. Given these economic weapons, it is argued, the employer has been adequately equipped with tools of economic self-help.
There is of course no question that the Board is entitled to the greatest deference in recognition of its special competence in dealing with labor problems. In many areas its evaluation of the competing interests of employer, and employee should unquestionably be given conclusive effect in determining the application of §§ 8 (a)(1), (3), and (5). However, we think that the Board construes its functions too expansively when it claims general authority to define national labor policy by balancing the competing interests of labor and management.
While a primary purpose of the National Labor Relations Act was to redress the perceived imbalance of economic power between labor and management, it sought to accomplish that result by conferring certain affirmative rights on employees and by placing certain enumerated restrictions on the activities of employers. The Act prohibited acts which interfered with, restrained, or coerced employees in the exercise of their rights to organize a union, to bargain collectively, and to strike; it proscribed discrimination in regard to tenure and other conditions of employment to discourage membership in any labor organization. The central purpose of these provisions was to protect employee self-organization and the process of collective bargaining from disruptive interferences by employers. Having protected employee organization in countervailance to the employers’ bargaining power, and having established a system of collective bargaining whereby the newly coequal adversaries might resolve their disputes, the Act also contemplated resort to economic weapons should more peaceful measures not avail. Sections 8(a)(1) and (3) do not give the Board a general authority to assess the relative economic power of the adversaries in the bargaining process and to deny weapons to one party or the other because of its assessment of that party’s bargaining power. Labor Board v. Brown, ante, p. 278. In this case the Board has, in essence, denied the use of the bargaining lockout to the employer because of its conviction that use of this device would give the employer “too much power.” In so doing, the Board has stretched §§ 8 (a)(1) and (3) far beyond their functions of protecting the rights of employee organization and collective bargaining. What we have recently said in a closely related context is equally applicable here:
“•[W]hen the Board moves in this area ... it is functioning as an arbiter of the sort of economic weapons the parties can use in seeking to gain acceptance of their bargaining demands. It has sought to introduce some standard of properly ‘balanced’ bargaining power, or some new distinction of justifiable and unjustifiable, proper and ‘abusive’ economic weapons into . . . the Act. ... We have expressed our belief that this amounts to the Board’s entrance into the substantive aspects of the bargaining process to an extent Congress has not countenanced.” Labor Board v. Insurance Agents’ International Union, 361 U. S. 477, 497-498.
We are unable to find that any fair construction of the provisions relied on by the Board in this case can support its finding of an unfair labor practice. Indeed, the role assumed by the Board in this area is fundamentally inconsistent with the structure of the Act and the function of the sections relied upon. The deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia which results in the unauthorized assumption by an agency of major policy decisions properly made by Congress. Accordingly, we hold that an employer violates neither § 8 (a)(1) nor § 8 (a) (3) when, after a bargaining impasse has been reached, he temporarily shuts down his plant and lays off his employees for the sole purpose of bringing economic pressure to bear in support of his legitimate bargaining position.
Reversed.
142 N. L. R. B. 1362, enforced, 118 U. S. App. D. C. 78, 331 F. 2d 839 (1964).
National Labor Relations Act, as amended, § 8 (a), 61 Stat 140, 29 U. S. C. § 158 (a) (1958 ed.): “It shall be an unfair labor practice for an employer—
“(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;
“(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization
National Labor Relations Act, as amended, §7, 61 Stat. 140, 29 U. S. C. § 157 (1958 ed.): “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment
Compare Labor Board v. Dalton Brick & Tile Corp., 301 F. 2d 886 (C. A. 5th Cir. 1962); Morand Bros. Beverage Co. v. Labor Board, 190 F. 2d 576 (C. A. 7th Cir. 1951), 204 F. 2d 529 (1953), with Quaker State Oil Refining Corp. v. Labor Board, 270 F. 2d 40 (C. A. 3d Cir. 1959); Utah Plumbing & Heating Contractors Assn. v. Labor Board, 294 F. 2d 165 (C. A. 10th Cir. 1961).
The dissenting members of the Board took the view that the indefinite extension would not have afforded the employer enforeible protection against a strike. 142 N. L. R. B., at 1368.
The complaint was limited to the Chicago yard.
Although the complaint stated a violation of § 8 (a) (5) as well, the Board made no findings as to this claim, believing that there would have been no point in entering a bargaining order because the parties had long since executed an agreement. The passage quoted below in the text of this opinion from Labor Board v. Insurance Agents’ International Union, 361 U. S. 477 (see pp. 317-318, infra), has even more direct application to the § 8 (a) (5) question. See also Labor Board v. Dalton Brick & Tile Corp., 301 F. 2d 886, 89A-895 (C. A. 5th Cir. 1962).
E. g., Utah Plumbing & Heating Contractors Assn., 126 N. L. R. B. 973; Quaker State Oil Refining Corp., 121 N. L. R. B. 334.
The Board’s initial view was that such lockouts are unlawful. Morand Bros. Beverage Co., 91 N. L. R. B. 409; Davis Furniture Co., 100 N. L. R. B. 1016. The Board later embraced the contrary view, Buffalo Linen Supply Co., supra, a position earlier taken by the Ninth Circuit in reversing the Davis Furniture case sub nom. Leonard v. Labor Board, 205 F. 2d 355 (1953).
Contrary to the views expressed in a concurring opinion filed in this case, we intimate no view whatever as to the consequences which would follow had the employer replaced its employees with permanent replacements or even temporary help. Cf. Labor Board v. Mackay Radio & Telegraph Co., 304 U. S. 333.
National Labor Relations Act, as amended, § 13, 61 Stat. 151, 29 U. S. C. § 163 (1958 ed.): “Nothing in this subchapter, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right.”
Of course to the extent that the employer-induced work stoppage did not accomplish objectives which could be achieved by ancillary measures, such as picketing, the union would not be precluded from employing those measures.
1 Legislative History of the National Labor Relations Act, 1935, 3 (hereafter Leg. Hist.). Section 4 of the bill provided:
“Employees shall have the right to organize and join labor organizations, and to engage in concerted activities, either in labor organizations or otherwise, for the purposes of organizing and bargaining collectively through representatives of their own choosing or for other purposes of mutual aid or protection.” Ibid.
1 Leg. Hist. 406, 545, 570, 946.
S. 2926, § 3 (2):
“It shall be an unfair labor practice [¶] or employees to attempt, by interference or coercion, to impair the exercise by employers of the right to join or form employer organizations and to designate representatives of their own choosing for the purpose of collective bargaining.” 1 Leg. Hist. 1087.
S. 2926, §3 (1):
“It shall be an unfair labor practice [f]or an employer to attempt, by interference or coercion, to impair the exercise by employees of the right to form or join labor organizations, to designate representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Ibid.
Respondent’s Brief 17. | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. | What is the issue of the decision? | [
"arbitration (in the context of labor-management or employer-employee relations) (cf. arbitration)",
"union antitrust: legality of anticompetitive union activity",
"union or closed shop: includes agency shop litigation",
"Fair Labor Standards Act",
"Occupational Safety and Health Act",
"union-union member dispute (except as pertains to union or closed shop)",
"labor-management disputes: bargaining",
"labor-management disputes: employee discharge",
"labor-management disputes: distribution of union literature",
"labor-management disputes: representative election",
"labor-management disputes: antistrike injunction",
"labor-management disputes: jurisdictional dispute",
"labor-management disputes: right to organize",
"labor-management disputes: picketing",
"labor-management disputes: secondary activity",
"labor-management disputes: no-strike clause",
"labor-management disputes: union representatives",
"labor-management disputes: union trust funds (cf. ERISA)",
"labor-management disputes: working conditions",
"labor-management disputes: miscellaneous dispute",
"miscellaneous union"
] | [
7
] | sc_issue_7 |
WILLIAMS v. ILLINOIS
No. 1089.
Argued April 22, 1970
Decided June 29, 1970
Stanley A. Bass argued the cause for appellant. With him on the brief were Jack Greenberg, Michael Meltsner, and Anthony G. Amsterdam.
James R. Thompson, Assistant Attorney General of Illinois, argued the cause for appellee. With him on the brief were William J. Scott, Attorney General, and Joel M. Flaum, Assistant Attorney General.
The National Legal Aid and Defender Assn, filed a brief as amicus curiae urging reversal.
Richard L. Curry, Marvin E. Aspen, and Edmund Hatfield, filed a brief for the City of Chicago as amicus curiae urging affirmance.
Mr. Chief Justice Burger
delivered the opinion of the Court.
This appeal from Illinois presents an important question involving a claim of discriminatory treatment based upon financial inability to pay a fine and court costs imposed in a criminal case. The narrow issue raised is whether an indigent may be continued in confinement beyond the maximum term specified by statute because of his failure to satisfy the monetary provisions of the sentence. We noted probable jurisdiction and set the case for oral argument with No. 782, Morris v. Schoonfield, post, p. 508, also decided today.
On August 16, 1967, appellant was convicted of petty theft and received the maximum sentence provided by state law: one year imprisonment and a $500 fine. Appellant was also taxed $5 in court costs. The judgment directed, as permitted by statute, that if appellant was in default of the payment of the fine and court costs at the expiration of the one year sentence, he should remain in jail pursuant to § 1-7 (k) of the Illinois Criminal Code to “work off” the monetary obligations at the rate of $5 per day. Thus, whereas the maximum term of imprisonment for petty theft was one year, the effect of the sentence imposed here required appellant to be confined for 101 days beyond the maximum period of confinement fixed by the statute since he could not pay the fine and costs of $505.
On November 29, 1967, appellant, while still an inmate in the county jail, petitioned the sentencing judge to vacate that portion of the order requiring that he remain imprisoned upon expiration of his one year sentence because of nonpayment of the fine and court costs. Appellant alleged that he was indigent at all stages of the proceedings, was without funds or property to satisfy the money portion of the sentence, and that he would “be able to get a job and earn funds to pay the fine and costs, if . . . released from jail upon expiration of his one year sentence.” The State did not dispute the factual allegations and the trial court granted the State’s motion to dismiss the petition
“for the reason that [appellant] was not legally entitled at that time to the relief requested . . . because he still has time to serve on his jail sentence, and when that sentence has been served his financial ability to pay a fine might not be the same as it is of the date [of sentencing].”
Appeal was taken directly to the Supreme Court of Illinois, which appears to have rejected any suggestion by the trial court that the petition was premature and went on to decide appellant’s constitutional claim on the merits. It held that “there is no denial of equal protection of the law when an indigent defendant is imprisoned to satisfy payment of the fine.” People v. Williams, 41 Ill. 2d 511, 517, 244 N. E. 2d 197, 200 (1969).
In addition to renewing the constitutional argument rejected by the state courts, appellant advances a host of other claims which, in light of our disposition, we find unnecessary to reach or decide. Appellant challenges the constitutionality of § 1-7 (k) of the Illinois Criminal Code and argues primarily that the Equal Protection Clause of the Fourteenth Amendment prohibits imprisonment of an indigent beyond the maximum term authorized by the statute governing the substantive offense when that imprisonment flows directly from h.is present inability to pay a fine and court costs. In response the State asserts its interest in the collection of revenues produced by payment of fines and contends that a “work off” system, as provided by § 1-7 (k), is a rational means of implementing that policy. That interest is substantial and legitimate but for present purposes it is not unlike the State’s interest in collecting a fine from an indigent person in circumstances where no .imprisonment is included in the judgment. The State argues further that the statute is not constitutionally infirm simply because the legislature could have achieved the same result by some other means. With that general proposition we have no quarrel but that generality does not resolve the issue.
As noted earlier, appellant’s incarceration beyond the statutory maximum stems from separate albeit related reasons: nonpayment of a fine and nonpayment of court costs. We find that neither of those grounds can constitutionally support the type of imprisonment imposed here, but we treat the fine and costs together because disposition of the claim on fines governs our disposition on costs.
The custom of imprisoning a convicted defendant for nonpayment of fines dates back to medieval England and has long been practiced in this country. At the present time almost all States and the Federal Government have statutes authorizing incarceration under such circumstances. Most States permit imprisonment beyond the maximum term allowed by law, and in some there is no limit on the length of time one may serve for nonpayment. While neither the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack, these factors should be weighed in the balance. Indeed, in prior cases this Court seems to have tacitly approved incarceration to “work off” unpaid fines. See Hill v. Wampler, 298 U. S. 460 (1936); Ex parte Jackson, 96 U. S. 727 (1878).
The need to be open to reassessment of ancient practices other than those explicitly mandated by the Constitution is illustrated by the present case since the greatly increased use of fines as a criminal sanction has made nonpayment a major cause of incarceration in this country. Default imprisonment has traditionally been justified on the ground that it is a coercive device to ensure obedience to the judgment of the court. Thus, commitment for failure to pay has not been viewed as a part of the punishment or as an increase in the penalty; rather, it has been viewed as a means of enabling the court to enforce collection of money that a convicted defendant was obligated by the sentence to pay. The additional imprisonment, it has been said, may always be avoided by payment of the fine.
We conclude that when the aggregate imprisonment exceeds the maximum period fixed by the statute and results directly from an involuntary nonpayment of a fine or court costs we are confronted with an impermissible discrimination that rests on ability to pay, and accordingly, we vacate the judgment below.
Griffin v. Illinois, 351 U. S. 12 (1956), marked a significant effort to alleviate discrimination against those who are unable to meet the costs of litigation in the administration of criminal justice. In holding that the failure to provide an indigent criminal defendant with a trial transcript at public expense in order to prosecute an appeal was a violation of the Equal Protection Clause, this Court declared that “[t]here can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” Id., at 19. In the years since the Griffin case the Court has had frequent occasion to reaffirm allegiance to the basic command that justice be applied equally to all persons. Subsequent decisions of this Court have pointedly demonstrated that the passage of time has heightened rather than weakened the attempts to mitigate the disparate treatment of indigents in the criminal process. Applying the teaching of the Griffin case here, we conclude that an indigent criminal defendant may not be imprisoned in default of payment of a fine beyond the maximum authorized by the statute regulating the substantive offense.
A State has wide latitude in fixing the punishment for state crimes. Thus, appellant does not assert that Illinois could not have appropriately fixed the penalty, in the first instance, at one year and 101 days. Nor has the claim been advanced that the sentence imposed was excessive in light of the circumstances of the commission of this particular offense. However, once the State has defined the outer limits of incarceration necessary to satisfy its penological interests and policies, it may not then subject a certain class of convicted defendants to a period of imprisonment beyond the statutory maximum solely by reason of their indigency.
It is clear, of course, that the sentence was not imposed upon appellant because of his indigency but because he had committed a crime. And the Illinois statutory scheme does not distinguish between defendants on the basis of ability to pay fines. But, as we said in Griffin v. Illinois, sura, “a law nondiscriminatory on its face may be grossly discriminatory in its operation.” Id., at 17 n. 11. Here the Illinois statute as applied to Williams works an invidious discrimination solely because he is unable to pay the fine. On its face the statute extends to all defendants an apparently equal opportunity for limiting confinement to the statutory maximum simply by satisfying a money judgment. In fact, this is an illusory choice for Williams or any indigent who, by definition, is without funds. Since only a convicted person with access to funds can avoid the increased imprisonment, the Illinois statute in operative effect exposes only indigents to the risk of imprisonment beyond the statutory maximum. By making the maximum confinement contingent upon one’s ability to pay, the State has visited different consequences on two categories of persons since the result is to make incarceration in excess of the statutory maximum applicable only to those without the requisite resources to satisfy the money portion of the judgment.
The mere fact that an indigent in a particular case may be imprisoned for a longer time than a non-indigent convicted of the same offense does not, of course, give rise to a violation of the Equal Protection Clause. Sentencing judges are vested with wide discretion in the exceedingly difficult task of determining the appropriate punishment in the countless variety of situations that appear., The Constitution permits qualitative differences in meting out punishment and there is no requirement that two persons convicted of the same offense receive identical sentences. Thus it was that in Williams v. New York, 337 U. S. 241, 247 (1949), we said: “The belief no longer prevails that every offense in a like legal category calls for an identical punishment without regard to the past life and habits of a particular offender.”
Nothing in today’s decision curtails the sentencing prerogative of a judge because, as noted previously, the sovereign’s purpose in confining an indigent beyond the statutory maximum is to provide a coercive means of collecting or “working out” a fine. After having taken into consideration the wide range of factors underlying the exercise of his sentencing function, nothing we now hold precludes a judge from imposing on an indigent, as on any defendant, the maximum penalty prescribed by law.
It bears emphasis that our holding does not deal with a judgment of confinement for nonpayment of a fine in the familiar pattern of alternative sentence of “$30 or 30 days.” We hold only that a State may not constitutionally imprison beyond the maximum duration fixed by statute a defendant who is financially unable to pay a fine. A statute permitting a sentence of both imprisonment and fine cannot be parlayed into a longer term of imprisonment than is fixed by the statute since to do so would be to accomplish indirectly as to an indigent that which cannot be done directly. We have no occasion to reach the question whether a State is precluded in any other circumstances from holding an indigent accountable for a fine by use of a penal sanction. We hold only that the Equal Protection Clause of the Fourteenth Amendment requires that the statutory ceiling placed on imprisonment for any substantive offense be the same for all defendants irrespective of their economic status.
The State is not powérless to enforce judgments against those financially unable to pay a fine; indeed, a different result would amount to inverse discrimination since it would enable an indigent to avoid both the fine and imprisonment for nonpayment whereas other defendants must always suffer one or the other conviction.
It is unnecessary for us to canvass the numerous alternatives to which the State by legislative enactment — or judges within the scope of their authority — may resort in order to avoid imprisoning an indigent beyond the statutory maximum for involuntary nonpayment of a fine or court costs. Appellant has suggested several plans, some of which are already utilized in some States, while others resemble those proposed by various studies. The State is free to choose from among the variety of solutions already proposed and, of course, it may devise new ones.
We are not unaware that today’s holding may place a further burden on States in administering criminal justice. Perhaps a fairer and more accurate statement would be that new cases expose old infirmities which apathy or absence of challenge has permitted to stand. But the constitutional imperatives of the Equal Protection Clause must have priority over the comfortable convenience of the status quo. “Any supposed administrative inconvenience would be minimal, since . . . [the unpaid portion of the judgment] could be reached through the ordinary processes of garnishment in the event of default.” Rinaldi v. Yeager, 384 U. S. 305, 310 (1966).
Nothing we hold today limits the power of the sentencing judge to impose alternative sanctions permitted by Illinois law; the definition of such alternatives, if any, lies with the Illinois courts. We therefore vacate the judgment appealed from and remand to the Supreme Court of Illinois for further proceedings not inconsistent with this opinion.
It is so ordered.
Mr. Justice Blackmun took no part in the consideration or decision of this case.
APPENDIX TO OPINION OP THE COURT
State Statutory Provisions Concerning Incarceration For Failure To Pay Fine
Alabama
If the fine is not paid defendant is imprisoned in the county jail, possibly at hard labor. The statute is so worded that defendants who have been fined differing amounts may be imprisoned for the same amount of time in satisfaction of the fine. There is no provision in the statute for payment by installment. Ala. Code Tit. 15, Sec. 341 (1958).
Alaska
The judgment that defendant pay a fine shall also direct imprisonment until the fine is satisfied. Rate of credit: $5 per day (additional $5 if prisoner works.) Alas. Stat. Sec. 12.55.010 (1962).
When an indigent defendant has been confined in prison 30 days solely for the nonpayment of the fine, the defendant may petition the magistrate for discharge if certain conditions are met. Id. 12.55.030.
Arizona
The sentence of fine may also direct that defendant be imprisoned until the fine is satisfied, but the imprisonment shall not extend beyond the term for which defendant might be sentenced to imprisonment for the offense of which he has been convicted. Rate of credit: $1 per day. Ariz. Rev. Ann. Sec. 13-1648 (1956).
Arkansas
If the punishment of an offense is a fine, the judgment shall direct that defendant be imprisoned until fine and costs are paid. Rate of credit: $1 per day. Ark. Stat. Ann. Sec. 43-2315 (1964).
Specifically applying to convictions of misdemeanor and also providing for imprisonment at the rate of $1 per day. Id. Sec. 46-510.
Providing that confinement shall not discharge the fine which can only be collected by proceeding against the defendant’s property. Id. Sec. 43-2606.
California
Judgment that defendant pay a fine may also direct that he be imprisoned until the fine is satisfied. Rate of credit: not less than $2 per day. When defendant is convicted of a misdemeanor, the judgment may provide for payment of the fine in installments with imprisonment in the event of default. Cal. Pen. Code Sec. 1205 (1968).
But imprisonment for nonpayment of a fine may not exceed in any case the term for which the defendant might be sentenced for the offense of which he has been convicted. Id.
Colorado
Court shall have power as part of its judgment to order that the offender be committed to jail until the fine is paid or otherwise legally discharged. Colo. Rev. Stat. Ann. Sec. 39-10-10 (1964).
Persons confined in jail for fines who have no estate with which to pay such fines may be discharged from imprisonment. Id. Sec. 39-10-9.
Connecticut
If a convict fails to pay a fine lawfully imposed, he shall be committed to jail until the fine is paid. Conn. Gen. Stat. Ann. Sec. 18-63 (1968).
Rate of credit: $3 per day. Id. Sec. 18-50.
When a person is convicted of a crime punishable by a fine or imprisonment, the court may impose upon the offender a conditional sentence and order him to pay a fine within a limited time and in default of so doing, to be imprisoned. Id. Sec. 54-119.
Delaware
When a person is sentenced to pay a fine, the courts named in this section may order imprisonment up to one year, if no term for such nonpayment is otherwise fixed by law. Del. Code Ann. Tit. 11, Sec. 4103 (a), (Supp. 1968).
In the same situation, justices of the peace and other named courts may order the person defaulting imprisoned for no longer than 90 days. Id. Tit. 11, Sec. 4103 (b).
Florida
When a court sentences a person to pay a fine, the court shall also provide in the sentence a period of time of imprisonment in case of default. Fla. Stat. Ann. Sec. 921.14 (Supp. 1969).
In cases of convictions for misdemeanor, the court may order the defendant to serve not exceeding sixty days in default of payment of a fine. Id. Sec. 775.07.
Rate of credit: Id. Sec. 951.16.
Georgia
Fines imposed by the court shall be paid immediately or within such reasonable time as the court may grant. Ga. Code Ann. Sec. 27-2901 (1969 Supp.).
Judge may provide as a means of enforcing payment of a fine that the defendant be imprisoned until the fine is paid. R. E. Lee v. State, 118 S. E. 2d 599 (1961).
Hawaii
When a judgment to pay a fine is not satisfied by immediate payment, the offender shall be committed to prison until the judgment is satisfied. Hawaii Rev. Stat. Sec. 712-4 (1968).
A poor person, after having been confined for thirty days, solely for the nonpayment of a fine, may make application to the circuit court for the circuit in which he is imprisoned for release. The person may then be discharged upon the taking of an oath. Id.
Idaho
A judgment that defendant pay a fine may also direct that the defendant be imprisoned until the fine has been satisfied. Rate of credit: $5 per day. Idaho Code Ann. Sec. 19-2517 (1969 Supp.).
Substantially the same is provided, for both felonies and misdemeanors, by Id. See. 18-303.
Illinois
In a judgment imposing a fine, the court may order that upon nonpayment of the fine the offender may be imprisoned. Rate of credit: $5 per day. But no person may be imprisoned in this fashion for longer than six months. Ill. Rev. Stat. (1969) ch. 38, See. 1-7 (k).
If a person confined in jail for failure to pay a fine has no estate with which, to pay the fine, the court may release that person. Id. ch. 38, Sec. 180-6.
Indiana
Whenever a person is fined for a felony or a misdemeanor, the judgment shall be that he is committed until the fine is paid. Ind. Ann. Stat. Sec. 9-2228 (1956).
Rate of credit: $5 per day. Id. Sec. 9-2227a (Supp. 1969).
Iowa
The judgment that defendant pay a fine may also direct that he be imprisoned until the fine is satisfied. Iowa Code Ann. Sec. 762.32 (1950).
Rate of credit: $3% per day. Id. Sec. 789.17.
Kansas
Defendant to be ordered committed to county jail until fine is paid. Kan. Gen. Stat. Ann. Sec. 62-1513 (1964).
Rate of credit: $2 per day. Id. Sec. 62-2109.
A person imprisoned for failure to pay a fine may be discharged from imprisonment if found to be unable to pay. Id. Sec. 62-1515.
Kentucky
Judgment shall be rendered directing that the defendant shall work at hard labor until the fine and costs are satisfied. Ky. Rev. Stat. Sec. 431.140 (1969).
Rate of credit: $2 per day. Id.
Louisiana
If a fine is imposed, the sentence shall provide that in default the defendant shall be imprisoned for a specified period not to exceed one year. But: where the maximum prison sentence which may be imposed as a penalty for a misdemeanor is six months or less, the total period of imprisonment upon conviction of the offense, including imprisonment for default, shall not exceed six months for that offense. La. Crim. Pro. Code Ann. Art. 884 (1970 Pocket part).
Maine
Convict sentenced to pay fine may be committed or confined for default thereof, but not longer than 11 months for any single fine. Me. Rev. Stat. Ann. Tit. 15, Sec. 1904 (Supp. 1970).
Rate of credit: $5 per day. Id.
Maryland
In default of payment of a fine, a person adjudged guilty shall be committed to jail until discharged by due course of law. Md. Ann. Code Art. 38, Sec. 1 (1965).
[This provision has been amended by Chapter 147 of the 1970 Laws of Maryland (approved April 15, 1970). See Morris v. Schoonfield, post, p. 508.]
Installment payments in some counties are provided for. Id. Art. 52, Sec. 18 (1969 Supp.).
Rate of credit: $2 per day (with some modifications resulting in shorter periods of confinement in some cases than would result at $2 per day). Id. Art. 38, Sec. 4 (1969 Supp.).
Massachusetts
When a person convicted is sentenced to pay a fine, he may also be sentenced to be committed until it is paid. Mass. Ann. Laws, ch. 279, Sec. 1; ch. 127, Sec. 144 (1969).
Rate of credit: $1 per day. Id. ch. 127, Sec. 144.
The execution of the sentence of confinement may be suspended and the defendant placed on probation on condition that he pay the fine within a certain time, either in one payment or in installments. In case of default, the court may revoke the suspension of the execution of the sentence. Id. ch. 279, Sec. 1.
Discharge of poor prisoners incarcerated for failure to pay fines. Id. ch. 127, Sec. 145, (when fine is less than ten dollars); Sec. 146, (when the prisoner has been confined for three months).
Michigan
The court may impose upon the offender a conditional sentence and order him to pay a fine within a limited time and in default of so doing to be imprisoned. The court may also place the offender on probation with a condition that he pay a fine in installments and in default of such payments be imprisoned. Mich. Comp. Laws Ann. Sec. 769.3 (1968).
Execution may issue for the collection of fines in cases where no alternative sentence or judgment of imprisonment has been rendered, but no one may be imprisoned under such execution for longer than 90 days. Id. Sec. 600.4815.
Minnesota
If a defendant’s fine exceeds the amount of his bail, the defendant shall be committed until the balance is paid. Minn. Stat. Ann. Sec. 629.53 (1947).
Rate of credit: $3 per day. Id. Sec. 641.10 (Supp. 1969).
Mississippi
Convicts to be imprisoned until fine is fully paid. However, no convict may be held for more than two years for failure to pay the fine for any one offense. Miss. Code Ann. Sec. 7899 (1957).
Rate of credit: $3 per day. Id. Sec. 7906.
Missouri
When a defendant is sentenced to pay a fine, he shall be imprisoned until the sentence is fully complied with. Mo. Ann. Stat. Sec. 546.830 (1953).
The judge, on petition of the prisoner, may sentence him to imprisonment for a limited time in lieu of the fine. Id. Sec. 546.840.
Rate of credit: $2 per day. Id. Sec. 551.010. Magistrates’ courts have similar powers but the rate of credit may vary from $2 to $10 for each day of confinement. Id. Secs. 543.260 and 543.270.
Montana
The judgment may be for fine and imprisonment until the fine is paid. Mont. Rev. Codes Ann. Sec. 95-2302 (b) (1969).
Rate of credit: $10 per day. Id.
Nebraska
In cases where courts or magistrates have power to sentence an offender to pay a fine, those courts or magistrates may make it a part of the sentence that the party be committed until the fine is paid. Neb. Rev. Stat. Sec. 29-2206 (1965).
Rate of credit: $6 per day. Id. Sec. 29-2412.
In cases of misdemeanor, offenders may be committed to the county jail until the fine is paid. Id. Sec. 29-2404.
Nevada
A person sentenced to pay a fine may be confined until the fine is satisfied. Nev. Rev. Stat. Sec. 176.065 (1967). Rate of credit: $4 per day. Id.
New Hampshire
A person sentenced to pay a fine shall be ordered to be imprisoned until sentence is performed. N. H. Rev. Stat. Ann. Sec. 618.6 (1969 Supp.).
Rate of credit: $5 per day. Id. Sec. 618.9.
New Jersey
Defendant may be placed at labor in a county jail or penitentiary until the fine is paid. N. J. Stat. Ann. Sec. 2A:166-14 (1953).
Defendant may also be permitted to remain at large for a fixed time to enable him to pay the fine. If defendant fails to pay, the court may then order him into custody. Id. Sec. 2A: 166-15.
Rate of credit: $5 per day. Id. Sec. 2A: 166-16 (Supp. 1969).
A disorderly person who defaults in the payment of a fine may be committed by the court. Id. Sec. 2A: 169-5 (Supp. 1969).
New Mexico
A person may be committed to prison for nonpayment of a fine. N. M. Stat. Ann. Sec. 42-2-9 (Supp. 1969). (Applies to both county jails and the state penitentiary— Compiler’s Note).
Rate of credit: $5 per day. Id.
If a person so confined makes an affidavit that he has no property out of which to pay the fine, he must be released after three months of confinement. Id. sub. B.
But convicts sentenced to the state penitentiary may not be required to serve more than thirty days for a fine. Id. Sec. 42-1-60 (1964).
New York
In the event the defendant fails to pay a fine as directed, the court may direct that he be imprisoned until the fine is satisfied (limitations: for a felony, the imprisonment may not exceed one year; for a misdemeanor, it may not exceed one third of the maximum authorized sentence.) N. Y. Code Crim. Proc. Sec. 470-d (Supp. 1969).
Sec. 470-d has been limited by People v. Saffore, 18 N. Y. 2d 101, 218 N. E. 2d 686 (1966).
North Carolina
If a guilty party is sentenced to pay a fine and it is not immediately paid, the guilty person may be committed to the county jail until the fine is paid. N. C. Gen. Stat. Sec. 6-65 (Supp. 1970).
Persons committed for fines may be discharged from imprisonment upon taking an insolvent debtor’s oath. Id. Secs. 23-23 and 23-24 (1965).
North Dakota
A judgment that the defendant pay a fine also may direct that he be imprisoned until the fine is satisfied. N. D. Cent. Code Sec. 29-26-21 (1960).
Rate of credit: $2 per day (but such imprisonment does not discharge the judgment for the fine.) Id.
Ohio
When a fine is the whole or part of a sentence, the court or magistrate may order that the person sentenced remain in jail until the fine is paid but no commitment may exceed six months. Ohio Rev. Code Ann. Sec. 2947.14 (1954).
Rate of credit: $3 per day. Id.
In a case of conviction for a misdemeanor, the judge or magistrate has the same power as above, but there is no limit of six months. Id. Sec. 2947.20.
Oklahoma
Persons sentenced to pay a fine who refuse or fail to pay it, may be imprisoned. Okla. Stat. Tit. 11, Sec. 794 (Supp. 1969).
Rate of credit: $2 per day. Id.
A poor convict who has been imprisoned for nonpayment of a fine may be discharged after serving six months if two justices of the peace are satisfied that the convict has not had since his conviction any estate with which he might have paid the fine. Id. Tit. 57, Sec. 15 (1969).
Oregon
A judgment that the defendant pay a fine shall also direct that he be imprisoned in the county jail until the fine is satisfied. Ore. Rev. Stat. Sec. 137.150 (1963).
Rate of credit: $5 per day. Id.
Indigents imprisoned for nonpayment of fine may be discharged after serving thirty days solely for such nonpayment if in the opinion of a magistrate or court it appears that the prisoner is unable to pay the fine. Ore. Rev. Stat. Sec. 169.160 (1967).
Pennsylvania
Persons may be imprisoned in an action for fines or penalties. Pa. Stat. Ann. Tit. 12, Sec. 257 (1953). A person confined for nonpayment of a fine may be discharged if he conforms to the provisions for insolvent debtors, but no application is allowed until the prisoner has served at least three months. Id. Tit. 39, Sec. 323 (1954).
The sentencing authority may allow payment of a fine by installments, but upon default the defendant may be committed. Id. Tit. 19, Secs. 953 and 956 (1964).
Rhode Island
Persons may be committed to the adult correctional institutions for the nonpayment of fines. R. I. Gen. Laws Ann. Sec. 13-2-36 (1957).
Rate of credit: $5 per day. Id.
The director of social welfare may recommend the release of persons so confined, but no guidelines are set out in the statute. Id.
South Carolina
Offenders may be committed to jail, if they are unable to pay forfeitures, until the amount is satisfied. S. C. Code Ann. Sec. 17-574 (1962).
Offenders so committed are entitled to the privilege of insolvent debtors. Id.
Installment payments as a condition of probation. Id. Sec. 55-593.
South Dakota
A judgment that the offender pay a fine may also direct that he be imprisoned until the fine is satisfied. S. D. Comp. Laws Ann. Sec. 23-48-23 (1969).
Rate of credit: $2 per day. Id.
Tennessee
If a fine is not paid, the defendant shall be imprisoned until it is paid. Tenn. Code Ann. Sec. 40-3203 (1955).
Rate of credit: $5 per day. Id. Sec. 41-1223 (1956).
Texas
When a defendant convicted of a misdemeanor is unable to pay the fine adjudged against him, he may be put to work or imprisoned for a sufficient length of time to discharge the amount. Tex. Code Crim. Proc. Art. 43.09 (1966).
Utah
A judgment that a defendant pay a fine may also direct that he be imprisoned until the fine is satisfied. Utah Code Ann. Sec. 77-35-15 (1953).
Rate of credit: $2 per day. Id.
Vermont
When a person is sentenced to imprisonment and also ' to pay a fine, the court may order him imprisoned for failure to pay the fine, the term of imprisonment to begin at the end of the term in the original sentence. Vt. Stat. Ann. Tit. 13, Sec. 7222 (Supp. 1969).
When a person is sentenced only to pay a fine, the court shall order that if the sentence is not complied with within twenty-four hours the person may be imprisoned. Id. Sec. 7223.
Rate of credit: $1 per day. Id. Secs. 7222 and 7223.
Virginia
The circuit or corporation court in which any judgment for a fine is rendered may commit the defendant to jail until the fine is paid. Va. Code Ann. Sec. 19.1-339 (Supp. 1968).
In any misdemeanor case tried before a court not of record in which a fine is imposed on a defendant, if no security is given, the defendant may be committed to jail until the fine is paid. Id. Sec. 19.1-338.
Washington
If a person does not pay the fine adjudged against him within five days, that person may be imprisoned in the county jail until the fine is paid. Wash. Rev. Code Ann. Sec. 10.82.030 (Supp. 1969).
Installment payments permitted. Id. (1961).
West Virginia
When a judgment for a fine is rendered by a court of record having jurisdiction in criminal cases, the court may also provide, as a part of the judgment, that the defendant be imprisoned until the fine is paid. W. Va. Code Ann. Sec. 62-4-9 (1966).
Rate of credit: $1.50 per day. Id. Sec. 62-4-10.
Confinement for failure to pay a fine shall not exceed the term of six months. Id.
Wisconsin
When a fine is imposed, the court shall also sentence the defendant to be committed to the county jail until the fine and costs are paid or discharged. Wis. Stat. Ann. Sec. 959.055 (Supp. 1969).
The court may grant a reasonable time not exceeding one stay of 30 days based on the defendant’s circumstances in which to make payment before committing him to the county jail. Id.
The time of imprisonment, in addition to any other imprisonment, shall not exceed six months. Id.
Installment payments permitted. Id. Sec. 57.04.
Wyoming
Any court shall have power, in cases of conviction where a fine is inflicted, to order as part of its judgment that the offender shall be committed to jail until the fine is paid or otherwise legally discharged. Wyo. Stat. Ann. Sec. 7-280 (1959).
Rate of credit: $1 per day. Id. Sec. 6-8.
396 U. S. 1036.
Ill. Rev. Stat., c. 38, § 16 — 1 (1967), which proscribes theft of property not from the person and not exceeding $150 in value.
Section 1-7 (k) of the Criminal Code of 1961 provides:
“Working out Fines.
“A judgment of a fine imposed upon an offender may be enforced in the same manner as a judgment entered in a civil action; Provided, however, that in such judgment imposing the fine the court-may further order that upon non-payment of such fine, the offender may be imprisoned until the fine is paid,, or satisfied at the rate of $5.00 per day of imprisonment; Provided, further, however, that no person shall be imprisoned under the first proviso hereof for a longer period than 6 months.”
The post-conviction petition was filed pursuant to § 72 of the Illinois Civil Practice Act.
Parenthetically we note that appellant was unable to post pretrial bail of $2„000 and was therefore required to remain in custody.
On May 23, 1968, appellant completed service of his one year sentence, less time off for time spent in custody prior to trial. He then began serving the period of incarceration required to satisfy the $505 fine and costs. On May 28, 1968, however, the Supreme Court of Illinois, on motion of appellant’s counsel, set bail pending appeal at $500; the 10% deposit was posted by the Civil Legal Aid Service. Appellant is free on bond, and since he has not yet served the full period of incarceration to satisfy the fine and costs the case is not moot.
The Supreme Court of Illinois dealt exclusively with that portion of the unpaid sum stemming from the fine. Its opinion contains no discussion of the constitutionality of incarceration arising from failure to pay court costs even though the issue was tendered.
Appellant also argues that every instance of default imprisonment violates either the Equal Protection and/or Due Process Clause (s) of the Eourteenth Amendment. He also asserts that the $5 per diem figure is unreasonable and irrational.
See n. 20, infra.
See generally 2 W. Holdsworth, A History of English Law 43-44 (3d ed. 1927); 1 J. Bishop on Criminal Law § 940, p. 693 (9th ed. 1923); 1 J. Stephen, A History of the Criminal Law of England 57 (1883). See also, Comment, Fines, Imprisonment, and the Poor: “Thirty Dollars or Thirty Days,” 57 Calif. L. Rev. 778, 780-787 (1969).
The National Legal Aid and Defender Association, as Amicus Curiae, has filed a brief containing an extensive appendix which includes state statutes with helpful annotations. We have reproduced this portion of its brief as an appendix to this opinion. The corresponding federal statutes are 18 U. S. C. §§ 3565, 3569. See also Note, The Equal Protection Clause and Imprisonment of the Indigent for Nonpayment of Fines, 64 Mich. L. Rev. 938 (1966).
See Walz v. Tax Comm’n, decided May 4, 1970, 397 U. S. 664, 678, where we noted that, “Nearly 60 years ago Mr. Justice Holmes stated:
“ ‘If a thing has been practised for two hundred years by common consent, it will need a strong case for the Fourteenth Amendment to affect it. . . Jackman v. Rosenbaum Co., 260 U. S. 22, 31 (1922).”
We note, however, that neither in those cases, nor at any other time, were the constitutional issues flowing from lack of funds presented to this Court for resolution.
See, e. g., American Bar Foundation, L. Silverstein, Defense of the Poor in Criminal Cases in American State Courts 123 (1965) ; S. Rubin, The Law of Criminal Correction 253 (1963).
See, e. g., Chief Judge Desmond’s excellent treatment of the historical development in People v. Saffore, 18 N. Y. 2d 101, 218 N. E. 2d 686 (1966).
See, e. g., Peeples v. District of Columbia, 75 A. 2d 845, 847 (D. C. Mun. Ct. App. 1950).
See Note, Discriminations Against the Poor and the Fourteenth Amendment, 81 Harv. L. Rev. 435 (1967).
See, e. g., Rinaldi v. Yeager, 384 U. S. 305 (1966); Douglas v. California, 372 U. S. 353 (1963); Smith v. Bennett, 365 U. S. 708 (1961).
See, e. g., Goldberg, Equality and Governmental Action, 39 N. Y. U. L. Rev. 205,221 (1964).
We wish to make clear that nothing in our decision today precludes imprisonment for willful refusal to pay a fine or court costs. See Ex parte Smith, 97 Utah 280, 92 P. 2d 1098 (1939). Cf. Illinois v. Allen, 397 U. S. 337 (1970).
What we have said regarding imprisonment for involuntary nonpayment of fines applies with equal force to imprisonment for involuntary nonpayment of court costs. Although the actual amounts prescribed for fines and court costs reflect quite different considerations, see generally Note, Litigation Costs: The Hidden Barrier to the Indigent, 56 Geo. L. J. 516 (1968), the purpose of incarceration appears to be the same in both instances: ensuring compliance with a judgment. Thus inability to pay court costs cannot justify imprisoning an indigent beyond the maximum statutory term since the Equal Protection Clause prohibits expanding the maximum term specified by the statute simply because of inability to pay.
Appellant has suggested that the fine and costs could be collected through an installment plan as is currently used in several States. E. g., Cal. Penal Code § 1205; Mich. Comp. Laws §769.3 (1948); Pa. Stat. Ann., Tit. 19, §§ 953-956 (1964). See also American Bar Association Project, Standards for Criminal Justice, Sentencing Alternatives and Procedures §2.7 (b), pp. 117-123 (Approved Draft 1968).
Appellant also suggests that the trial judge could impose a parole requirement on an indigent that he do specified work during the day to satisfy the fine. Cf. 50 U. S. C. App. § 456.
See also Model Penal Code § 7.02 (3) (a) (Proposed Official Draft 1962).
Cf. United States v. Wade, 388 U. S. 218, 239 (1967). | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the respondent. If the respondent is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials. | What state is associated with the respondent? | [
"Alabama",
"Alaska",
"American Samoa",
"Arizona",
"Arkansas",
"California",
"Colorado",
"Connecticut",
"Delaware",
"District of Columbia",
"Federated States of Micronesia",
"Florida",
"Georgia",
"Guam",
"Hawaii",
"Idaho",
"Illinois",
"Indiana",
"Iowa",
"Kansas",
"Kentucky",
"Louisiana",
"Maine",
"Marshall Islands",
"Maryland",
"Massachusetts",
"Michigan",
"Minnesota",
"Mississippi",
"Missouri",
"Montana",
"Nebraska",
"Nevada",
"New Hampshire",
"New Jersey",
"New Mexico",
"New York",
"North Carolina",
"North Dakota",
"Northern Mariana Islands",
"Ohio",
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"Oregon",
"Palau",
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"United States",
"Interstate Compact",
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] | [
16
] | sc_respondentstate |
GREEN v. UNITED STATES.
No. 46.
Argued April 25, 1957. — Restored to the calendar for reargument June 24, 1957. — Reargued October 15, 1957.
Decided December 16, 1957.
George Blow argued the cause on the original argument. George Rublee, II, was with him on the reargument. With them on the briefs was Charles E. Ford.
Leonard B. Sand argued the cause for the United States. With him on the briefs were Solicitor General Rankin, Assistant Attorney General Olney and Beatrice Rosenberg. Carl H. Imlay was also on the brief on the original argument.
Opinion of the Court by
Mr. Justice Black,
announced by Mr. Justice Douglas.
This case presents a serious question concerning the meaning and application of that provision of the Fifth Amendment to the Constitution which declares that no person shall
“. . . be subject for the same offence to be twice put in jeopardy of life or limb . . .
The petitioner, Everett Green, was indicted by a District of Columbia grand jury in two counts. The first charged that he had committed arson by maliciously setting fire to a house. The second accused him of causing the death of a woman by this alleged arson which if true amounted to murder in the first degree punishable by death. Green entered a plea of not guilty to both counts and the case was tried by a jury. After each side had presented its evidence the trial judge instructed the jury that it could find Green guilty of arson under the first count and of either (1) first degree murder or (2) second degree murder under the second count. The trial judge treated second degree murder, which is defined by the District Code as the killing of another with malice aforethought and is punishable by imprisonment for a term of years or for life, as an offense included within the language charging first degree murder in the second count of the indictment.
The jury found Green guilty of arson and of second degree murder but did not find him guilty on the charge of murder in the first degree. Its verdict was silent on that charge. The trial judge accepted the verdict, entered the proper judgments and dismissed the jury. Green was sentenced to one to three years’ imprisonment for arson and five to twenty years’ imprisonment for murder in the second degree. He appealed the conviction of second degree murder. The Court of Appeals reversed that conviction because it was not supported by evidence and remanded the case for a new trial. 95 U. S. App. D. C. 45, 218 F. 2d 856.
On remand Green was tried again for first degree murder under the original indictment. At the outset of this second trial he raised the defense of former jeopardy but the court overruled his plea. This time a new jury found him guilty of first degree murder and he was given the mandatory death sentence. Again he appealed. Sitting en banc, the Court of Appeals rejected his defense of former jeopardy, relying on Trono v. United States, 199 U. S. 521, and affirmed the conviction. 98 U. S. App. D. C. 413, 236 F. 2d 708. One judge concurred in the result, and three judges dissented expressing the view that Green had twice been placed in jeopardy in violation of the Constitution. We granted certiorari, 352 U. S. 915. Although Green raises a number of other contentions here we find it necessary to consider only his claim of former jeopardy.
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. In his Commentaries, which greatly influenced the generation that adopted the Constitution, Blackstone recorded:
“. . . the plea of auterjoits acquit, or a former acquittal, is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offence.”
Substantially the same view was taken by this Court in Ex parte Lange, 18 Wall. 163, at 169:
“The common law not only prohibited a second punishment for the same offence, but it went further and forbid a second trial for the same offence, whether the accused had suffered punishment or not, and whether in the former trial he had been acquitted or convicted.”
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.
In accordance with this philosophy it has long been settled under the Fifth Amendment that a verdict of acquittal is final, ending a defendant’s jeopardy, and even when “not followed by any judgment, is a bar to a subsequent prosecution for the same offence.” United States v. Ball, 163 U. S. 662, 671. Thus it is one of the elemental principles of our criminal law that the Government cannot secure a new trial by means of an appeal even though an acquittal may appear to be erroneous. United States v. Ball, supra; Peters v. Hobby, 349 U. S. 331, 344-345. Cf. Kepner v. United States, 195 U. S. 100; United States v. Sanges, 144 U. S. 310.
Moreover it is not even essential that a verdict of guilt or innocence be returned for a defendant to have once been placed in jeopardy so as to bar a second trial on the same charge. This Court, as well as most others, has taken the position that a defendant is placed in jeopardy once he is put to trial before a jury so that if the jury is discharged without his consent he cannot be tried again. Wade v. Hunter, 336 U. S. 684; Kepner v. United States, 195 U. S. 100, 128. In general see American Law Institute, Administration of The Criminal Law: Double Jeopardy 61-72 (1935). This prevents a prosecutor or judge from subjecting a defendant to a second prosecution by discontinuing the trial when it appears that the jury might not convict. At the same time jeopardy is not regarded as having come to an end so as to bar a second trial in those cases where “unforeseeable circumstances . . . arise during [the first] trial making its completion impossible, such as the failure of a jury to agree on a verdict.” Wade v. Hunter, 336 U. S. 684, 688-689.
At common law a convicted person could not obtain a new trial by appeal except in certain narrow instances. As this harsh rule was discarded courts and legislatures provided that if a defendant obtained the reversal of a conviction by his own appeal he could be tried again for the same offense. Most courts regarded the new trial as a second jeopardy but justified this on the ground that the appellant had “waived” his plea of former jeopardy by asking that the conviction be set aside. Other courts viewed the second trial as continuing the same jeopardy which had attached at the first trial by reasoning that jeopardy did not come to an end until the accused was acquitted or his conviction became final. But whatever the rationalization, this Court has also held that a defendant can be tried a second time for an offense when his prior conviction for that same offense had been set aside on appeal. United States v. Ball, 163 U. S. 662.
In this case, however, we have a much different question. At Green's first trial the jury was authorized to find him guilty of either first degree murder (killing while perpetrating a felony) or, alternatively, of second degree murder (killing with malice aforethought). The jury found him guilty of second degree murder, but on his appeal that conviction was reversed and the case remanded for a new trial. At this new trial Green was tried again, not for second degree murder, but for first degree murder, even though the original jury had refused to find him guilty on that charge and it was in no way involved in his appeal. For the reasons stated hereafter, we conclude that this second trial for first degree murder placed Green in jeopardy twice for the same offense in violation of the Constitution.
Green was in direct peril of being convicted and punished for first degree murder at his first trial. He was forced to run the gantlet once on that charge and the jury refused to convict him. When given the choice between finding him guilty of either first or second degree murder it chose the latter. In this situation the great majority of cases in this country have regarded the jury’s verdict as an implicit acquittal on the charge of first degree murder. But the result in this case need not rest alone on the assumption, which we believe legitimate, that the jury for one reason or another acquitted Green of murder in the first degree. For here, the jury was dismissed without returning any express verdict on that charge and without Green’s consent. Yet it was given a full opportunity to return a verdict and no extraordinary circumstances appeared which prevented it from doing so. Therefore it seems clear, under established principles of former jeopardy, that Green’s jeopardy for first degree murder came to an end when the jury was discharged so that he could not be retried for that offense. Wade v. Hunter, 336 U. S. 684. In brief, we believe this case can be treated no differently, for purposes of former jeopardy, than if the jury had returned a verdict which expressly read: “We find the defendant not guilty of murder in the first degree but guilty of murder in the second degree.”
After the original trial, but prior to his appeal, it is indisputable that Green could not have been tried again for first degree murder for the death resulting from the fire. A plea of former jeopardy would have absolutely barred a new prosecution even though it might have been convincingly demonstrated that the jury erred in failing to convict him of that offense. And even after appealing the conviction of second degree murder he still could not have been tried a second time for first degree murder had his appeal been unsuccessful.
Nevertheless the Government contends that Green “waived” his constitutional defense of former jeopardy to a second prosecution on the first degree murder charge by making a successful appeal of his improper conviction of second degree murder. We cannot accept this paradoxical contention. “Waiver” is a vague term used for a great variety of purposes, good and bad, in the law. In any normal sense, however, it connotes some kind of voluntary knowing relinquishment of a right. Cf. Johnson v. Zerbst, 304 U. S. 458. When a man has been convicted of second degree murder and given a long term of imprisonment it is wholly fictional to say that he “chooses” to forego his constitutional defense of former jeopardy on a charge of murder in the first degree in order to secure a reversal of an erroneous conviction of the lesser offense. In short, he has no meaningful choice. And as Mr. Justice Holmes observed, with regard to this same matter in Kepner v. United States, 195 U. S. 100, at 135: “Usually no such waiver is expressed or thought of. Moreover, it cannot be imagined that the law would deny to a prisoner the correction of a fatal error, unless he should waive other rights so important as to be saved by an express clause in the Constitution of the United States.”
It is true that in Kepner, a case arising in the Philippine Islands under a statutory prohibition against double jeopardy, Mr. Justice Holmes dissented from the Court’s holding that the Government could not appeal an acquittal in a criminal prosecution. He argued that there was only one continuing jeopardy until the “case” had finally been settled, appeal and all, without regard to how many times the defendant was tried, but that view was rejected by the Court. The position taken by the majority in Kepner is completely in accord with the deeply entrenched principle of our criminal law that once a person has been acquitted of an offense he cannot be prosecuted again on the same charge. This Court has uniformly adhered to that basic premise. For example, in United States v. Ball, 163 U. S. 662, 671, a unanimous Court held:
“The verdict of acquittal was final, and could not be reviewed, on error or otherwise, without putting [the defendant] twice in jeopardy, and thereby violating the Constitution.”
And see Peters v. Hobby, 349 U. S. 331, 344-345; United States v. Sanges, 144 U. S. 310.
Using reasoning which purports to be analogous to that expressed by Mr. Justice Holmes in Kepner, the Government alternatively argues that Green, by appealing, prolonged his original jeopardy so that when his conviction for second degree murder was reversed and the case remanded he could be tried again for first degree murder without placing him in new jeopardy. We believe this argument is also untenable. Whatever may be said for the notion of continuing jeopardy with regard to an offense when a defendant has been convicted of that offense and has secured reversal of the conviction by appeal, here Green was not convicted of first degree murder and that offense was not involved in his appeal. If Green had only appealed his conviction of arson and that conviction had been set aside surely no one would claim that he could have been tried a second time for first degree murder by reasoning that his initial jeopardy on that charge continued until every offense alleged in the indictment had been finally adjudicated.
Reduced to plain terms, the Government contends that in order to secure the reversal of an erroneous conviction of one offense, a defendant must surrender his valid defense of former jeopardy not only on that offense but also on a different offense for which he was not convicted and which was not involved in his appeal. Or stated in the terms of this case, he must be willing to barter his constitutional protection against a second prosecution for an offense punishable by death as the price of a successful appeal from an erroneous conviction of another offense for which he has been sentenced to five to twenty years’ imprisonment. As the Court of Appeals said in its first opinion in this case, a defendant faced with such a “choice” takes a “desperate chance” in securing the reversal of the erroneous conviction. The law should not, and in our judgment does not, place the defendant in such an incredible dilemma. Conditioning an appeal of one offense on a coerced surrender of a valid plea of former jeopardy on another offense exacts a forfeiture in plain conflict with the constitutional bar against double jeopardy.
The Government argues, however, that we should accept Trono v. United States, 199 U. S. 521, as a conclusive precedent against Green’s claim of former jeopardy. The Trono case arose in the Philippine Islands, shortly after they had been annexed by the United States, under a statutory prohibition against double jeopardy. At that time a sharply divided Court took the view that not all constitutional guarantees were “applicable” in the insular possessions, particularly where the imposition of these guarantees would disrupt established customs. Downes v. Bidwell, 182 U. S. 244. In Trono the defendants had been charged with murder but were acquitted by the trial court which instead found them guilty of the lesser offense of assault. They appealed the assault conviction to the Philippine Supreme Court. That court, acting under peculiar local procedures modeled on pre-existing Spanish practices, which allowed it to review the facts and law and to substitute its findings for those of the trial judge, set aside their acquittal, found them guilty of murder and increased their sentences.
On review by this Court, Mr. Justice Peckham, writing for himself and three other Justices, took the position that by appealing the conviction for assault the defendants waived their plea of former jeopardy with regard to the charge of murder. He said:
“We do not agree to the view that, the accused has the right to limit his waiver as to jeopardy, when he appeals from a judgment against him. As the judgment stands before he appeals, it is a complete bar to any further prosecution for the offense set forth in the indictment .... No power can wrest from him the right to so use that judgment, but if he chooses to appeal from it ... he thereby waives, if successful, his right to avail himself of the former acquittal of the greater offense . . . .” 199 U. S., at 533.
Mr. Justice Holmes refused to join the Peckham opinion but concurred in the result. Just the year before, in Kepner v. United States, 195 U. S. 100, 135, he had sharply denounced the notion of “waiver” as indefensible. There is nothing which indicates that his views had changed in the meantime. As pointed out above, he did dissent from the holding in Kepner — that the Government could not appeal an acquittal — on the ground that a new trial after an appeal by the Government was part of a continuing jeopardy rather than a second jeopardy. But that contention has been consistently rejected by this Court.
Chief Justice Fuller and Justices Harlan, White, and McKenna dissented in Trono. Mr. Justice McKenna wrote a dissent which was concurred in by Justices White and Harlan. During the course of this opinion he stated:
“It is, in effect, held that because the defendants . . . appealed and sought a review, as authorized by the statute, of the minor offense for which they were convicted, the United States was given the right to try them for the greater offense for which they were acquitted. ... I think that the guarantees of constitutions and laws should not be so construed. . . . I submit that the State seeks no convictions except in legal ways, and because it does not it affords means of review of erroneous rulings and judgments, and freély affords such means. It does not clog them with conditions or forfeit by their exercise great and constitutional rights.
“Here and there may be found a decision which supports the exposition of once in jeopardy expressed in the [Peckham] opinion. Opposed to it is the general consensus of opinion of American text books on criminal law and the overwhelming weight of American decided cases.” 199 U. S., at 538-539, 540.
We do not believe that Trono should be extended beyond its peculiar factual setting to control the present case. All that was before the Court in Trono was a statutory provision against double jeopardy pertaining to the Philippine Islands — a territory just recently conquered with long-established legal procedures that were alien to the common law. Even then it seems apparent that a majority of the Court was unable to agree on any common ground for the conclusion that an appeal of a lesser offense destroyed a defense of former jeopardy on a greater offense for which the defendant had already been acquitted. As a matter of fact, it appears that each of the rationalizations advanced to justify this result was rejected by a majority of the Court. As Mr. Justice Holmes, who concurred in the result, effectively demonstrated, the “waiver theory” is totally unsound and indefensible. On the other hand Mr. Justice Holmes’ theory of continuing jeopardy has never outwardly been adhered to by any other Justice of this Court.
We believe that if either of the rationales offered to support the Trono result were adopted here it would unduly impair the constitutional prohibition against double jeopardy. The right not to be placed in jeopardy more than once for the same offense is a vital safeguard in our society, one that was dearly won and one that should continue to be highly valued. If such great constitutional protections are given a narrow, grudging application they are deprived of much of their significance. We do not feel that Trono or any other decision by this Court compels us to forego the conclusion that the second trial of Green for first degree murder was contrary to both the letter and spirit of the Fifth Amendment.
Reversed.
D. C. Code, 1951, §22-401.
D. C. Code, 1951, § 22-2401. “Whoever, being of sound memory and discretion . . . without purpose so to do kills another in perpetrating or in attempting to perpetrate any arson, as defined in section 22-401 ... is guilty of murder in the first degree.”
Section 22-2404 provides that the “punishment of murder in the first degree shall be death by electrocution.”
D. C. Code, 1951, § 22-2403. “Whoever with malice aforethought except as provided in [§] 22-2401 . . . kills another, is guilty of murder in the second degree.”
§ 22-2404. “The punishment of murder in the second degree shall be imprisonment for life, or for not less than twenty years.”
4 Blackstone’s Commentaries 335.
And see United States v. Ball, 163 U. S. 662, 669:
“The prohibition is not against being twice punished, but against being twice put in jeopardy; and the accused, whether convicted or acquitted, is equally put in jeopardy at the first trial.”
See 1 Stephen, History of the Criminal Law of England, c. x; United States v. Gibert, 25 Fed. Cas. 1287.
Under English law the appellate court has no power to order a new trial after any appeal except in certain cases where the first trial was a complete “nullity,” as for example when the trial court was without jurisdiction over the person or subject matter. See 4 Stephen, Commentaries on the Laws of England (21st ed. 1950), 284. The English appellate court does have power to substitute a finding of guilt of a lesser offense if the evidence warrants, but it cannot find the defendant guilty of an offense for which he was acquitted or increase his sentence. See 10 Halsbury, Laws of England (Simonds ed. 1955), 539-541, and the cases cited there.
See, e. g., Brewster v. Swope, 180 F. 2d 984; State v. McCord, 8 Kan. 232, 12 Am. Rep. 469; Cross v. Commonwealth, 195 Va. 62, 77 S. E. 2d 447; Smith v. State, 196 Wis. 102, 219 N. W. 270.
See, e. g., State v. Aus, 105 Mont. 82, 69 P. 2d 584. Cf. Griffin v. Illinois, 351 U. S. 12, 18.
In substance the situation was the same as though Green had been charged with these different offenses in separate but alternative counts of the indictment. The constitutional issues at stake here should not turn on the fact that both offenses were charged to the jury under one count.
It should be noted that Green’s claim of former jeopardy is not based on his previous conviction for second degree murder but instead on the original jury's refusal to convict him of first degree murder.
Many of the state courts which have considered the problem have concluded that under circumstances similar to those of this case a defendant cannot be tried a second time for first degree murder. Other state cases take a contrary position. In general see the Annotations at 59 A. L. R. 1160, 22 L. R. A. (N. S.) 959, and 5 L. R. A. (N. S.) 571. Of course, many of the state decisions rest on local constitutional or statutory provisions.
See cases collected in the Annotations cited in n. 12, supra, and the Annotation at 114 A. L. R. 1406.
The suggestion is made that under the District Code second degree murder is not an offense included in a charge of first degree murder for causing a death in the course of perpetrating a felony (commonly referred to as “felony murder”) because it involves elements different from those necessary to establish the felony murder, and that therefore Green could not legally have been convicted of second degree murder under the indictment. We fail to comprehend how this suggestion aids the Government. In the first place, the District of Columbia Court of Appeals has expressly held that second degree murder is a lesser offense which can be proved under a charge of felony murder. Goodall v. United States, 86 U. S. App. D. C. 148, 180 F. 2d 397; Green v. United States, 95 U. S. App. D. C. 45, 218 F. 2d 856. Even more important, Green’s plea of former jeopardy does not rest on his conviction for second degree murder but instead on the first jury’s refusal to find him guilty of felony murder.
It is immaterial whether second degree murder is a lesser offense included in a charge of felony murder or not. The vital thing is that it is a distinct and different offense. If anything, the fact that it cannot be classified as “a lesser included offense” under the charge of felony murder buttresses our conclusion that Green was unconstitutionally twice placed in jeopardy. American courts have held with uniformity that where a defendant is charged with two offenses, neither of which is a lesser offense included within the other, and has- been found guilty on one but not on the second he cannot be tried again on the second even though he secures reversal of the conviction and even though the- two offenses are related offenses charged in the same indictment. See, e. g., Annotation, 114 A. L. R. 1406.
With the exception of Trono, the Government appears to concede in its brief, pp. 38-39, that the double jeopardy problem raised in this case has not been squarely before this Court. Palko v. Connecticut, 302 U. S. 319, Brantley v. Georgia, 217 U. S. 284, and Kring v. Missouri, 107 U. S. 221, are not controlling here since they involved trials in state courts. Stroud v. United States, 251 U. S. 15, is clearly distinguishable. In that case a defendant was retried for first degree murder after he had successfully asked an appellate court to set aside a prior conviction for that same offense.
In the course of his opinion Mr. Justice Peckham made some' general observations to the effect that he regarded the statutory provision as having the same effect as the Fifth Amendment. Those remarks were not essential to the decision so that even if they had been accepted by the full Court they would not be conclusive in this case where the interpretation of the Fifth Amendment is necessarily decisive. Cf. Cohens v. Virginia, 6 Wheat. 264, 399; Humphrey’s Executor v. United States, 295 U. S. 602, 626-627.
Mr. Justice White and Mr. Justice McKenna who dissented with Mr. Justice Holmes in Kepner refused to agree with the Court in Trono. In his dissent in the latter case Mr. Justice McKenna attributed his vote in Kepner to the fact that the Philippine Islands had a system of jurisprudence which was totally different from ours in that it provided no trial by jury and traditionally had permitted appellate courts to review both the law and the facts in criminal cases and to substitute their findings for those made by the trial judge. Justice Peckham, in his opinion, also recognized the peculiar nature of these Philippine procedures. | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. | What is the issue of the decision? | [
"involuntary confession",
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"Federal Rules of Criminal Procedure",
"statutory construction of criminal laws: assault",
"statutory construction of criminal laws: bank robbery",
"statutory construction of criminal laws: conspiracy (cf. subconstitutional fair procedure: conspiracy)",
"statutory construction of criminal laws: escape from custody",
"statutory construction of criminal laws: false statements (cf. statutory construction of criminal laws: perjury)",
"statutory construction of criminal laws: financial (other than in fraud or internal revenue)",
"statutory construction of criminal laws: firearms",
"statutory construction of criminal laws: fraud",
"statutory construction of criminal laws: gambling",
"statutory construction of criminal laws: Hobbs Act; i.e., 18 USC 1951",
"statutory construction of criminal laws: immigration (cf. immigration and naturalization)",
"statutory construction of criminal laws: internal revenue (cf. Federal Taxation)",
"statutory construction of criminal laws: Mann Act and related statutes",
"statutory construction of criminal laws: narcotics includes regulation and prohibition of alcohol",
"statutory construction of criminal laws: obstruction of justice",
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] | [
16
] | sc_issue_1 |
COOPER v. CALIFORNIA.
No. 103.
Argued December 8, 1966.
Decided February 20, 1967.
Michael Traynor, by appointment of the Court, 384 U. S. 948, argued the cause and filed briefs for petitioner.
Albert W. Harris, Jr., Assistant Attorney General of California, argued the cause for respondent. With him bn the brief were Thomas C. Lynch, Attorney General, and Edward P. O’Brien, Deputy Attorney General.
Mr. Justice Black
delivered the opinion of the Court.
Petitioner was convicted in a California state court of selling heroin to a police informer. The conviction rested in part on the introduction in evidence of a small piece of a brown paper sack seized by police without a warrant from the glove compartment of an automobile which police, upon petitioner’s arrest, had impounded and were holding in a garage. The search occurred a week after the arrest of petitioner. Petitioner appealed his conviction to the California District Court of Appeal which, considering itself bound by our holding and opinion in Preston v. United States, 376 U. S. 364, held that the search and seizure violated the Fourth Amendment’s ban of unreasonable searches and seizures. That court went on, however, to determine that this was harmless error under Art. VI, § 4½, of California’s Constitution which provides that judgments should not be set aside or reversed unless the court is of the opinion that the error “resulted in a miscarriage of justice.” 234 Cal. App. 2d 587, 44 Cal. Rptr. 483. The California Supreme Court declined to hear the case. We granted certiorari along with Chapman v. California, ante, p. 18, to consider whether the California harmless-error constitutional provision could' be used in this way to ignore the alleged federal constitutional error. 384 U. S. 904. We have today passed upon the question in Chapman, but do not reach it in this case because we are satisfied that the lower court erroneously decided that our Preston case required that this, search be held- an unreasonable one within the meaning of the Fourth Amendment.
We made it clear in Preston that whether a search and seizure is unreasonable within the meaning of the Fourth Amendment depends upon the facts and circumstances of each case and pointed out, in particular, that searches of cars that are constantly movable may make the search of a car without a warrant a reasonable one although the result might be the opposite in a search of a home, a store, or other fixed piece of property. 376 U. S., at 366-367. In Preston the search was sought to be justified primarily on the ground that it was incidental to and part of a lawful arrest. There we said that “[o]nce an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest.” Id., at -367. In the Preston case, it was alternatively argued that the warrantless search, after the arrest was over and while Preston’s car was being held for him by the police, was justified because the officers had probable cause to believe the car was stolen. But the police arrested Preston for vagrancy, not theft, and no claim was made that the police had Authority to hold his car on that charge. The search was therefore to be treated as though his car was in his own or his agent’s possession, safe from intrusions by the police or anyone else. The situation involving petitioner’s car is quite different.
Here, California’s Attorney General concedes that the search was not incident to an arrest. It is argued, however, that the search was reasonable on other grounds. Section 11611 of the California Health & Safety Code provides that any officer making an arrest for ⅝ narcotics violation shall seize and deliver to the State Division of Narcotic Enforcement any vehicle used to store, conceal, transport, sell or facilitate the possession of. narcotics, such vehicle “to be held as evidence until a forfeiture has been declared or a release ordered.” (Emphasis supplied.) Petitioner’s vehicle, which evidence showed had been used to carry oh his narcotics possession and transportation, was impounded by the officers and their duty required that it be kept “as evidence” until forfeiture proceedings were carried to a conclusion. The lower court concluded, as a matter of state law, that the state forfeiture statute did not by “clear and express language” authorize the officers to search petitioner’s car. 234 Cal. App. 2d, at 598, 44 Cal. Rptr., at 491. But the question here is not whether the search was authorized by state "law. The question is rather whether the search was reasonable under the Fourth Amendment. Just as a search authorized by state law may be an unreasonable one under that amendment, so may a search not expressly authorized by state law be justified as a constitutionally reasonable one. While it is true, as the lower court said, that “lawful custody of an automobile does not of itself dispense with constitutional requirements of searches thereafter made of it,” ibid., the reason for and nature of the custody may constitutionally justify the search. Preston was arrested for vagrancy. An arresting officer took his car to the station rather than just leaving it on the street. It was not suggested that this was done other than for Preston’s convenience or that the police had any right to impound the car and keep it from Preston or whomever he might send for it. The fact that the police had custody of Preston’s car was totally'unrelated to the vagrancy charge for which they arrested him. So was their subsequent search of the car.* This case is not Preston, nor is it controlled by it. Here the officers seized petitioner’s car because they were required, to do so by state law. They seized it because of the crime for which they arrested petitioner. They seized it to impound it' and they had to keep it until forfeiture proceedings were concluded. Their subsequent search of the car — whether the State had “legal title” to it or not— was closely related to the reason petitioner was arrested, the reason his car had been impounded, and the reason it was being retained. The forfeiture of petitioner’s car did not take place until over four months after it was lawfully seized. It would be unreasonable to hold that the police, having to retain the car in their custody for such a length of time, had no right, even for their own protection, to search it. It is rio answer to say that the police could have obtained a search warrant, for “[t]he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.” United States v. Rabinowitz, 339 U. S. 56, 66. Under the circumstances of this case, we cannot hold unreasonable under the Fourth Amendment the examination or search of a car validly held by officers for use as evidence in a forfeiture proceeding.
Our holding, of course, does not affect the State’s power to impose higher standards on searches and seizures than required by the Federal Constitution if it chooses to do so. And when such state standards alone have been violated, the State is free, without review by us, to apply its own state harmless-error rule to such errors of state law. There being no federal constitutional error her.e, there is no need for us to determine whether the lower court properly applied its state harmless-error rule.
Affirmed.
Cal. Health &'Safety Code §11610 provides:
"The interest of any registered owner of a vehicle used to unlawfully transport or facilitate the unlawful transportation of any narcotic, or in which any narcotic is unlawfully kept, deposited, or concealed or which is used to facilitate the unlawful keeping, depositing or concealment of any narcotic, or in which any narcotic is unlawfully possessed -by ah occupant thereof or which is used to facilitate the unlawful possession of any narcotic by an occupant thereof, shall be forfeited to the State.”
Petitioner also presents the contention here that he was unconstitutionally deprived of the right to confront a witness against him, because, the State did not produce the informant to testify against him. This contention we consider absolutely devoid of merit. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state. | What is the court whose decision the Supreme Court reviewed? | [
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"Court of Private Land Claims"
] | [
158
] | sc_casesource |
WHITCOMB, GOVERNOR OF INDIANA v. CHAVIS et al.
No. 92.
Argued December 8, 1970
Decided June 7, 1971
White, J., announced the Court’s judgment and delivered an opinion, of the Court with respect to Parts I-VT, in which Burger, C. J., and Black, Stewart, and Blackmun, JJ., joined, and in which, as to Part VII, Burger, C. J., and Black and Blackmun, JJ., joined. Stewart, J., filed a statement joining in Parts I-VI and dissenting from Part VII, post, p. 163. Harlan, J., filed a separate opinion, post, p. 165. Douglas, J., filed an opinion dissenting in part and concurring in the result in part, in which Brennan and Marshall, JJ., joined, post, p. 171.
William F. Thompson, Assistant Attorney General of Indiana, argued the cause for appellant. With him on the briefs were Theodore L. Sendak, Attorney General, and Richard C. Johnson, Chief Deputy Attorney General.
James Manaban argued the cause for appellees. With him on the brief were James Beatty and John Banzhaf III.
William J. Scott, Attorney General, and Francis C. Crowe and Herman Tavins, Assistant Attorneys General, filed a brief for the State of Illinois as amicus curiae urging reversal, joined by the following Attorneys General: MacDonald Gallion of Alabama, G. Kent Edwards of Alaska, Gary K. Nelson of Arizona, Duke W. Dunbar of Colorado, Richard C. Turner of Iowa, A. F. Summer of Mississippi, Robert L. Woodahl of Montana, Gordon Mydland of South Dakota, Crawford C. Martin of Texas,. Vernon B. Romney of Utah, and Chaúncey H. Browning of West Virginia.
Charles Morgan, Jr., Reber F. Boult, Jr., David J. . Vann, and Melvin L. Wulf filed' a brief for the ACLU Foundation, Inc., et al. as amici curiae urging affirmance.
Me. Justice White
delivered the opinion of the Court with respéct to the validity of the multi-member election district in Marion County, Indiana (Parts I-VI), together with an opinion (Part VII), in which The Chief Justice, Mr. Justice Black, and Me. Justice Black-mun joined, on the propriety of ordering redistricting of the entire State of Indiana, and announced the judgment of the Court.
We have before us in this case the validity under the Equal Protection Clause of the statutes districting and apportioning the State of Indiana for its general assembly elections. The principal issue centers on those provisions constituting Marion County, which includes the city of Indianapolis, a multi-member district for electing state senators and representatives.
I
Indiana has a bicameral general assembly consisting of a house of representatives of 100 members and a senate of 50 members. Eight of the 31 senatorial districts and 25 of the 39 house districts are multi-member districts, that is, districts that are represented by two or more legislators elected at large by the voters of the district. Under the statutes here challenged, Marion County is a multi-member district electing eight senators and 15 members of the house.
On January 9, 1969,. six residents of Indiana, five of whom were residents of Marion County, filed a suit described by them as “attacking the constitutionality of two statutes of the State of Indiana which provide for multi-member districting at large of General Assembly seats in Marion County, Indiana- . . . Plaintiffs Chavis, Ramsey, and Bryant alleged that the two statutes invidiously diluted the force and .effect of the vote of Negroes and poor persons living within certain Marion .County census tracts constituting what was termed “the ghetto area.” Residents of the area were alleged to have particular demographic characteristics rendering them cognizable as a minority interest group with distinctive interests in specific areas of the substantive law. With single-member districting, it was said, the ghetto area would elect three members of the house and one senator, whereas under the present districting voters in the area “have almost no. political force or control over législators because the effect of their vote is cancelled out by other contrary interest groups” in Marion County. The mechanism of political party organization and the influence of party chairmen in nominating candidates were additional factors alleged to frustrate the exercise of power by .residents of the ghetto area.
Plaintiff Walker, a Negro resident of Lake County, also a multi-member district but a smaller one, alleged an invidious discrimination against Lake County Negroes because-Marion County Negroes, although no greater in number than Lake County Negroes, had the opportunity to influence the election of more legislators than Lake Gounty Negroes. The claim was that Marion County was one-third larger in population and thus had approximately one-third more assembly seats than Lake County, but that voter influence does not vary inversely with’ population and that permitting Marion County voters to elect 23 assemblymen at large gave them a disproportionate advantage over voters in Lake County. The. : two remaining plaintiffs presented claims not at issue here.
A three-judge court convened and tried the case on June 17 and 18, 1969. Both documentary evidence and oral testimony were taken concerning the composition and characteristics of the alleged ghetto area, the manner in which legislative candidates were chosen and their residence and tenure, and the performance of Marion County’s delegation in the Indiana general assembly.
The three-judge court filed its opinion containing its findings and conclusions on July 28, 1969, holding for plaintiffs. Chavis v. Whitcomb, 305 F. Supp. 1364 (SD Ind. 1969). See also 305 F. Supp. 1359 (1969) (pre-trial orders) and 307 F. Supp. 1362 (1969) (statewide reapportionment plan and implementing order). . In sum, it concluded that Marion County’s multi-member district must be disestablished and, because of population disparities not directly related to the phenomena alleged in the complaint, the entire State must be redistricted. More particularly, it first determined that a racial minority group inhabited an identifiable ghetto area in Indianapolis. That area, located in the northern half of Center Township and termed the “Center Township ghetto,” comprised 28'contiguous census tracts and parts of four others. The area contained a 1967 population of 97,000 nonwhites, over 99% of whom were Negro, and 35,000 whites. The court proceeded to compare six of these tracts, representative of the area, with tract 211, a predominantly white, relatively wealthy suburban census tract in Washington Township contiguous to the northwest corner of the court’s ghetto area and with tract 220, also in Washington Township, a contiguous tract inhabited by middle class Negroes. Strong differences were found in terms of housing conditions, income and educational levels, rates of unemployment, juvenile crime, and welfare assistance. The contrasting characteristics between the court’s ghetto area, and its inhabitants on the one hand and tracts 211 and 220 on the other indicated the ghetto’s “compelling interests in such legislative areas as urban renewal and rehabilitation, health care, employment training and opportunities, welfare, and relief of the poor, law enforcement, quality of education, and anti-discrimination measures.” 305 F. Supp., at 1380. These interests were in addition to those the ghetto shared with the rest of the county, such as metropolitan transportation, flood control, sewage disposal, and education
The court then turned to evidence showing the residences of Marion County’s representatives and senators in each of the five general assemblies elected during the period 1960 through 1968. Excluding tract 220, the middle class Negro district, Washington Township, the relatively wealthy suburban area in which tract 211 was located, with an average of 13.98% of Marion County’s population, was the residence of 47.52% of its senators and - 34.33% of its representatives. The court’s Center Township ghetto area, with 17.-8% of the population, had 4.75% of the senators and 5.97% of the representatives. The nonghetto area of Center Township, with 23.32% of the population, had done little better. Also, tract 220 alone, the middle class Negro district, had only 0.66% of the county’s population but had been the residence of more representatives than had the ghetto area. The ghetto area had been represented in the senate only once — -in 1964 by one senator — and the. house three times — with one representative in 1962 and 1964 and by two representatives in the 1968 general assembly. The court found, the “Negro Center Township Ghetto population” to be sufficiently large to elect two representatives and one senator if the ghetto tracts “were specific single-member legislative districts” in Marion County. 305 F. Supp., at 1385. From these data the court found gross inequity of representation, as determined by residence of legislators, between Washington Township and tract 220 on the one hand and Center Township and the Center Township ghetto area on the other.
The court also characterized Marion County’s general assembly delegation as tending to coalesce and take common positions on proposed legislation. This was “largely the result of election at large from a common constituency, and obviates representation of a substantial, though minority, interest group within that common constituency.” Ibid. Related findings were that, as a rule, a candidate could not be elected in Marion County unless his party carried the election; county political organizations had substantial influence on the selection and election of assembly candidates (an influence that would be diminished by single-member districting), as well as upon the actions of the county’s delegation in the assembly; and that at-large elections made it difficult for the conscientious voter to make a rational selection.
The court’s conclusions of law on- the merits may be summarized as follows:
1. There exists within Marion County an identifiable racial element, “the Negro residents of the Center Township Ghetto,” with special interests in various areas of substantive law, diverging significantly from interests of nonresidents of the ghetto.
2. The voting strength of this racial group has been minimized by Marion County’s multi-member senate and house district because of the strong control exercised by political parties over the selection of candidates, the inability of the Negro voters to assure themselves the opportunity to vote for prospective legislators of their choice and- the absence of any particular legislators who were accountable for their legislative record to Negro voters.
3. Party control of nominations, the inability of voters to know the candidate and the responsibility of legislators to their party and the county at large make it diffi-, cult for any legislator to diverge from the majority of his delegation and to be an effective representative of minority ghetto interests.
4. Although each legislator in Marion County is arguably responsible to all the voters, including those in the ghetto, “[p]artial responsiveness of all legislators is [not] . . . equal [to] total responsiveness and the informed concern of a few specific legislators.”
5. The apportionment statutes of Indiana ■ as they relate to Marion County operate to minimize and cancel out the voting strength óf a minority racial group, namely Negroes residing in the Center Township ghetto, and to deprive them of the equal protection- of the laws.
6. As a legislative district, Marion County is large as compared with the total number of legislators, it is not. subdistricted to insure distribution of the legislators over the county and comprises a multi-member district for both the house and the senate. (See Burns v. Richardson, 384 U. S. 73, 88 (1966).)
7. To redistrict Marion County alone would leave impermissible variations between Marion County districts, and other districts in the State. Statewide redistricting was required, and it could not await the 1970 census figures estimated to be available within a year.
8. It may not be possible for the Indiana general assembly to comply with the state constitutional require^ ment prohibiting crossing or dividing counties for sena-, torial apportionment and still meet the requirements of the Equal Protection Clause adumbrated in recent cases.
9. Plaintiff Walker’s claim as a Negro voter resident of Lake County that he was discriminated against because Lake County Negroes could vote for only 16 assemblymen while Marion County Negroes could vote for 23 was deemed untenable. In his second'capacity, as a. general voter in Lake County, Walker “probably has received less effective representation” than Marion County voters because “he votes for fewer legislators and, therefore, has fewer legislators to speak for him,” and, since in theory voting power in multi-member districts does not vary inversely to the number of voters, Marion County voters had greater opportunity to cast tie-breaking or “critical” votes. But the court declined to hold that the latter ground had been proved, absent , more evidence concerning Lake County. In this respect consideration of Walker’s claim was limited to that to be given the uniform districting principle in reapportioning the Indiana general assembly.
Turning to the proper remedy, the court found redistricting of. Marion County essential. Also, although recognizing the complaint was directed only to Marion County, the court thought it must act on the evidence indicating that the entire State required reapportionment. Judgment was withheld in all respects, however, to give the State until October 1, 1969, to enact legislation remedying the improper districting and malappor-tionment found to exist by the court. In so doing the court thought the State “might wish to give consideration to certain principles of legislative apportionment brought out at the trial in these proceedings.” Id., at 1391. First, the court eschewed any indication that Negroes living in the ghetto were entitled to any certain number of legislators-^districts should be drawn with an eye that is color blind, and sophisticated gerrymandering would not be countenanced. Second, the legislature was advised to keep in mind the theoretical advantage inhering in voters in multi-member districts, that is, their theoretical opportunity to cast more deciding votes in any legislative election. Referring to the testimony that bloc-voting, multi-member delegations have disproportionately more power than single-member districts, the court thought that “the testimony has application here.” Also,< “as each member of the bloc delegation is responsible to the voter majority who elected the whole, each Marion County voter has a greater voice in the legislature, having more legislators to speak for him than does a comparable voter” in a single-member district. Single-member districts, the court thought, would equalize voting power among the districts as well as avoiding diluting political or racial groups located in multi-member districts. The court therefore recommended that the general assembly give consideration to the uniform district principle in making its apportionment.
On October 15, the court judicially noticed that the Indiana general assembly had not been called to redistrict and reapportion the State. Following further hearings and examination of various plans submitted by the parties, the court drafted and adopted a plan based on the 1960 census figures. With respect to Marion County, the court followed plaintiffs’ suggested scheme, which was said to protect “the legally cognizable racial minority group against dilution of its voting strength.” 307 F. Supp. 1362, 1365 (SD Ind. 1969). Single-member districts were employed throughout the State, county lines were • .crossed where necessary, judicial notice was taken of the location of the nonwhite population in establishing district lines in metropolitan areas of the State and the court’s plan expressly aimed at giving “recognition to the cognizable racial minority group whose grievance lead [sic] to this litigation.” Id., at 1366.
The court enjoined state officials from conducting any elections under the existing apportionment statutes and ordered that the 1970 elections be held in accordance with the plan prepared by the court. Jurisdiction was retained to pass upon any future claims of unconstitutionality .with respect to any future legislative apportionments adopted by the State.
Appeal was taken following the final judgment by the three-judge court, we noted probable jurisdiction, 397 U. S. 984 (1970), and the State’s motion for stay of judgment was granted pending our final action on this case, 396 U. S. 1055 (1970), thus permitting.the 1970 elections to. be held under the existing apportionment statutes declared unconstitutional by the District Court. On June 1, 1971, wé were advised by the parties that the Indiana Legislature had passed, and the Governor had signed, new apportionment legislation soon to become effective for the 1972 elections and that the new legislation provides for single-member house and senate districts throughout" the State, including Marion County.’
II
With the 1970 elections long past and the appearance of new legislation abolishing multi-member districts in Indiana,’ the issue of mootness emerges, ’ Neither party deems the case mooted by recent events. Appellees, plaintiffs below, urge that if the appeal is dismissed as moot and the judgment of the District Court is vacated, as is our practice in such cases, there would be no outstanding judgment invalidating the Marion County multi-member district and that the new apportionment legislation would be in conflict with the state constitutional provision forbidding the division of Marion County for the purpose.of electing senators. If the new sena-’ torial districts were invalidated in the state courts in this respect, it is argued that the issue involved in the present litigation would simply reappear for decision. The attorney general for the State of Indiana, for the appellant, taking a somewhat different tack, urges that the issue of the Marion County multi-member district is not moot since the District Court has retained jurisdiction to pass on the legality of subsequent apportionment statutes for the purpose, among others, of determining whether the alleged discriminátion against a cognizable minority group hgs been remedied, an issue that would not arise if the District Court erred in invalidating multi-member districts in Indiana.
We agree that the case is not moot and that the central issues before us must be decided. We do not, however, pass upon the details of the plan, adopted by the District Court, since that plan in any event would, have required revision in light of the 1970 census figures.
HI
The line of cases from Gray v. Sanders, 372 U. S. 368 (1963), and Reynolds v. Sims, 377 U. S. 533 (1964), to Kirkpatrick v. Preisler, 394 U. S. 526 (1969), and Wells v. Rockefeller, 394 U. S. 542 (1969), recognizes that “representative government is in essence self-government through the medium of elected representatives of the' people, and each and every citizen has ah inalienable right to full and effective participation in the political processes of his State’s legislative bodies.”- ' Reynolds v. Sims, 377 U. S., at 565. Since most citizens find it possible to participate only as qualified voters in electing their representatives, “[f]ull and effective participation- by all citizens in state.government requires, therefore, that each citizen have an equally effective voice in the election of members of his state legislature.” Ibid. Hence,- apportionment schemes “which give the same number of representatives to unequal numbers of constituents,” 377 U. S., at 563, unconstitutionally dilute the value of the votes in the larger districts. And hence the requirement that, “the seats in both Jiouses of a bicameral state legislature must be apportioned on a population basis.” 377 U. S., at 568.
The question of the constitutional validity of multi-member districts has been pressed in this Court since the first of the modern reapportionment cases. These questions have focused not on population-based apportionment but on the quality of representation afforded by the multi-member district as compared with single-member districts. In Lucas v. Colorado General Assembly, 377 U. S. 713 (1964), decided with Reynolds v. Sims, we noted certain undesirable features of the multi-member district but expressly, withheld any intimation “that apportionment schemes which provide for the at-large election of a number of legislators from a county, or any political subdivision, are constitutionally defective.” 377 U. S., at 731 n. 21. Subsequently, when the validity of the multi-member district, as such, was squarely presented, we held that such a district is not per se illegal under the Equal Protection Clause. Fortson v. Dorsey, 379 U. S. 433 (1965); Burns v. Richardson, 384 U. S. 73 (1966); Kilgarlin v. Hill, 386 U. S. 120 (1967). .See also Bur-nette v. Davis, 382 U. S. 42 (1965); Harrison v. Schaefer, 383 U. S. 269 (1966). That voters in multi-member districts vote for and are represented by more legislators than voters in single-member districts has so far not demonstrated an invidious discrimination against the latter. But w,e have deemed the validity of multi-mem-ber district systems justiciable, recognizing also that they may be subject to challenge where the circumstances of a particular case may “operate to minimize or cancel out the voting strength of racial or political elements of the voting population.” Fortson, 379 U. S., at 439, and Burns, 384 U. S., at 88. Such a tendency, we have said, is enhanced when the district is large and elects a substantial proportion of the seats in éither hoüse of a bicameral legislature, if it is multi-member for both houses of the legislature or if it lacks provision for at-large candidates running from particular geographical sub-districts, as in Fortson. Burns, 384 U. S., at 88. But we have insisted that the challenger carry the Burden of proving that multi-member districts unconstitutionally operate to dilute or cancel the voting strength of racial or political elements. We have not yet sustained .such an attack.
IV
Plaintiffs level two quite distinct challenges .to the Marion County district. The first charge is that any multi-member district bestows on its voters several unconstitutional advantages over voters, in single-member districts or smaller multi-member districts. The other allegation is that the Maripn County district, on the record of this case, illegally minimizes and cancels out the voting power of a cognizable racial minority in Marion County. The District Court sustained the latter claim and considered the former sufficiently persuasive to be a substantial factor in prescribing uniform, single-member districts as the basic scheme of the court’s own plan. See 307 F. Supp., at 1366.
In asserting discrimination against-, voters outside Marion County, plaintiffs recognize that Fortson, Burns, and Kilgarlin proceeded on the assumption that the dilution of voting power suffered by a voter who is placed in a district 10 times the population of another is cured by allocating 10 legislators to the larger district instead of the one assigned to the smaller district. Plaintiffs challenge this assumption at both the voter and legislator level. They demonstrate mathematically that in theory voting power does not vary inversely with the size of the district and that to increase legislative seats in proportion to increased population gives undue voting power, to the voter in the multi-member district since he has more chances to determine election outcomes than does the voter in the single-member district. This consequence obtains wholly aside from the quality or effectiveness of representation later furnished by the successful candidates. The District Court did -not quarrel with plaintiffs’ mathematics, nór do we. But like the District Court we note that the position remains a theoretical one and, as plaintiffs’ witness conceded, knowingly avoids and does “not take into account any political or other factors which might affect the actual voting power of the' residents, which might include party affiliation, race, previous voting characteristics or any other factors which go into the entire political voting situation.” The real-life impact of' multi-memb.er districts on individual voting power has not been sufficiently demonstrated, at least on this record, to warrant departure from prior cases.
The District Court was more impressed with the other branch of the claim that multi-member districts inherently discriminate against other districts. This, was the assertion that whatever the individual voting power of Marion County voters in choosing legislators may be, they nevertheless have more effective representation in the Indiana general assembly for two reasons. First, each voter is represented by more legislators and therefore, in theory at least, has more chances to influence critical legislative votes. Second, since multi-member delegations are elected at large and' represent the voters of the entire district, they tend to vote as a bloc, which is tantamount to the district having one representative with several votes. The District Court did not squarely sustain this position, but it appears to have found it sufficiently persuasive to have suggested uniform district-ing to the Indiana Legislature and to have eliminated multi-metiiber districts in the court’s own plan redistricting the State. See 307 F. Supp., at 1368-1383.
We are not ready, however, to agree that multi-member districts, wherever they exist, overrepresent their voters as compared with voters in single-member districts, even if the multi-member delegation tends to bloc voting. The theory that plural representation itself unduly enhances a district’s power and the influence of its voters remains to be demonstrated in practice and in the day-today operation of the legislature. Neither the findings of the trial court nor the record before us sustains it, even where bloc voting is posited.
In fashioning relief, the three-judge court appeared to embrace the idea that each member of a bloc-voting delegation has more influence than legislators, from a single-member district. But its findings of fact fail to deal with the actual influence of Marion County’s delegation in the' Indiana Legislature. Nor did plaintiffs’ evidence make such a showing. That bloc voting tended to occur is sustained by the record, and defendants’ own witness thought- it was advantageous for Marion County’s delegation to stick together. But nothing demonstrates that senators and representatives from Marion County counted for more in the legislature than members from single-member "districts or from smaller multi-member districts. Nor is there any thing, in the court’s findings indicating that what might be true of Marion County is also true of other multi-member districts in Indiana or is true of multi-member districts generally. Moreover, Marion County would have no less advantage, if advántage there is, if it elected from individual districts and the elected representatives demonstrated the same bloc-voting tendency, which may also develop among legislators representing single-member districts widely , scattered throughout the State. Of course it is advantageous to start with more than one vote for a bill. But nothing before us shows dr suggests that any legislative skirmish affecting the State of Indiana or Marion County ip particular would have come out differently had Marion County been subdistricted and its delegation elected from single-member districts.
Rather than squarely finding unacceptable discrimination against out-state voters in favor of Marion County voters, the trial court struck "down Marion County’s multi-member district because it found the scheme worked invidiously against a specific segment of the county’s voters as compared with others. The court identified an area of the city as a ghetto, found it predominantly inhabited, by poor Negroes with distinctive substantive-láw interests and thought this group unconstitutionally underrepresented because the proportion of legislators with residences in the ghetto elected from 1960 to 1968 was less than the ghetto’s proportion of the population, léss than the proportion of legislators elected from Washington Township, a less populous district, and less than the ghetto would likely have elected had the county consisted of single-member districts. We find major deficiencies in this approach.
First, it needs no emphasis here that the Civil War Amendments were designed to protect the civil rights of Negroes and that the courts have been vigilant in scrutinizing schemes allegedly conceived or operated as purposeful devices to further racial discrimination. There has been no hesitation in striking down those contrivances that can fairly be said to infringe on Fourteenth Amendment rights. Sims v. Baggett, 247 F. Supp. 96 (MD Ala. 1965); Smith v. Paris, 257 F. Supp. 901 (MD Ala. 1966), aff’d, 386 F. 2d 979 (CA5 1967); and see Gomillion v. Lightfoot, 364 U. S. 339 (1960). See also Allen v. State Board of Elections, 393 U. S. 544 (1969). But there is no suggestion here that Marion County’s multi-member district, or similar districts throughout the State, were conceived or operated as purposeful devices to further racial or economic discrimination. As plaintiffs concede, “there was no basis for asserting that the legislative districts in' Indiana were designed to dilute the vote of minorities.” Brief of Appellees (Plaintiffs) 28-29. Accordingly, the circumstances here lie outside the reach of decisions such as Sims v. Baggett, supra.
Nor does the fact that the number of ghetto residents who were legislators was not in proportion to ghetto, population satisfactorily prove invidious discrimination absent evidence and findings that ghetto residents had less opportunity than did other Marion County residents to participate in the political processes and to elect legislators of their choice.- We have discovered nothing in the record or in the court’s findings indicating that poor Negroes were not allowed to register or vote, to choose the political party they desired to support, to participate in its affairs or to be equally represented on those occasions when legislative candidates were chosen. Nor did the evidence purport to show or the court find that inhabitants of the ghetto were regularly excluded from the slatés of both major parties, thus denying them the chance of occupying legislative seats. It appears reasonably clear that the Republican Party won four of the five elections from 1960 to 1968, that Center Township ghetto voted heavily Democratic and . that ghetto votes were critical to Democratic Party success. Although we cannot-be sure of the facts since the court ignored the question, it seems unlikely that the Democratic Party could afford to overlook.the ghetto in slating its candidates. Clearly, in 1964 — the one election that the Democrats won— the party slated and elected one senator and one representative from Center Township ghetto as well as one senator and four representatives from other parts of Center Township and two representatives from census tract 220, which was- within the ghetto area described by plaintiff. Nor is there any indication that, the party failed to slate candidates satisfactory to the ghetto in. other years. Absent evidence or findings we are not sure, but it seems reasonable to infer that had the Democrats won all of the elections or even most of them, the ghetto would have had no justifiable complaints about representation. The fact is, however, that four of the five elections were won by Republicans, which was not the party of the ghetto and which would not always slate ghetto candidates — although in 1962 it nominated and elected one representative and in 1968 two representatives from that area. If this is the proper view of this case, the failure of the ghetto to have legislative seats in proportion to its population emerges more as a function of losing elections than of built-in bias against poor Negroes. The voting power of ghetto residents may have been "cancelled out” as the District Court held, but this seems a mere euphemism for political defeat at the polls.
On the record before us plaintiffs’ position comes to' this: that although they have equal opportunity to participate in and influence the selection of candidates and legislators, and although the ghetto votes predominantly Democratic and that party slates candidates satisfactory to the ghetto, invidious discrimination nevertheless results when the ghetto, along with all other Democrats, suffers the disaster of losing too many elections. But typical American legislative elections are district-oriented, head-on races between candidates of two or more parties. As our system has it,- one candidate wins, the others lose. Arguably the losing candidates’ supporters are without representation since the men they voted for have been defeated; arguably they have been denied equal protection of the laws since they have no legislative voice of their own. This is true of both single-member and multi-member districts. But we have not yet deemed it a denial of equal protection to deny legislative seats to losing candidates, even in those so-called “safe” districts where the same party wins year after year.
Plainly, the District Court saw nothing unlawful about the impact of typical single-member district elections. The court’s own plan created districts giving both Rer publicans and Democrats several predictably safe general assembly seats, with political, racial or economic minorities in those districts being “unrepresented” year after year. But similar consequences flowing from Marion County multi-member district elections were viewed differéntly. Conceding that all Marion County voters could fairly be said to be represented by the entire delegation, just as is each voter in a single-member district by the winning candidate, the District Court thought the ghetto voters’ claim to the partial allegiance of eight senators and 15 representatives was not equivalent to the undivided allegiance of one senator and two representative's; nor was the ghetto voters’ chance of influencing the election of an entire slate as significant as the guarantee of one ghetto, senator and' two ghetto representatives. As the trial court saw it, ghetto voters could ñot be ade--quately and equally represented unless some of Marion County’s general assembly seats were reserved for ghetto residents serving the interests of the ghetto majority. But are poor Negroes of the ghetto any more underrepresented than poor ghetto whites who also voted Democratic and lost, or any more discriminated against than other interest groups or voters in Marion County with allegiance to the Democratic Party, or, conversely, any less represented than Republican areas or voters in years of Republican defeat? We think not. The mere fact that one interest group or another concerned with the outcome of Marion County elections has found itself outvoted and without legislative seats of its own provides no basis for invoking constitutional remedies where, as here, there is no indication that this segment of the population is being denied access to the political system.
There is another gap in the trial court’s reasoning. As noted by the court, the interest of ghetto residents in certain issues did not measurably differ from that of other voters. Presumably in these respects Marion County’s assemblymen were satisfactorily representative of the ghetto. As to other matters, ghetto residents had unique interests not necessarily shared by others in the community and on these issues the ghetto residents were invidiously underrepresented absent their own legislative voice to further their own policy views.
Part of the difficulty with this conclusion is that the findings failed to support it. Plaintiffs’ evidence purported to show disregard for the ghetto’s distinctive interests.; r defendants claimed quite the contrary. We see nothing in the findings of the District Court indicating recurring poor performance by Marion County’s delegation with respect to Center Township ghetto, nothing to show what the ghetto’s interests were in particular legislative situations and nothing to indicate that the outcome would have been any different if the 23 assemblymen had been chosen from single-member districts.' Moreover, even assuming bloc voting by the delegation contrary to the wishes of the ghetto majority, it would not follow that the Fourteenth Amendment had been violated unless it is invidiously discriminatory for a county to elect its delegation by majority vote based on party or candidate platforms and so to some extent predetermine legislative votes on particular issues. Such tendencies are inherent in government by elected representatives; and surely elections in single-member districts visit precisely the same consequences on the supporters of losing candidates whose views are rejected at the polls.
. Y
The District Court’s holding, although on the facts of this case limited to guaranteeing one racial group representation, is not. easily contained. It is expressive of the more general proposition that any group with distinctive interests must be represented in legislative halls if it is numerous enough to command at least, one seat and represents a majority living in an area sufficiently compact to constitute a single-member district. This approach would make it difficult to reject claims of Democrats, Republicans, or members of any political organization in Marion County who live in what would be safe districts in a single-member district system but who in one year or another, or year after year, are submerged in a one-sided multi-member district vote. There are also union oriented workers, the university community, religious or ethnic groups occupying identifiable areas of our heterogeneous cities and urban areas. Indeed, it would be difficult for a great many, if not most; multi-member districts to survive analysis under the District Court’s view unless combined with some voting arrangement such as proportional representation or cumulative voting aimed at providing representation for minority parties or interests. At the very least, affirmance of the District Court would spawn endless litigation concerning the multi-member district systems now widely employed in this country.
We are not insensitive to the objections long voiced to multi-member district plans. Although not as prevalent as they were in our early history, they have been with us since colonial times and were much in evidence both before and after the adoption of the Fourteenth Amendment. Criticism is rooted in their winner-take-all aspects, their tendency to submerge minorities and to overrepresent the winning party as compared with the party’s statewide electoral position, a general preference for legislatures reflecting community interests as closely as possible and disenchantment with political parties and elections as devices to settle policy differences between contending interests. The chance of winning or significantly influencing intraparty fights and issue-oriented elections has seemed to some inadequate protection to minorities, political, racial, or economic; rather, their voice, it is said, should also be heard in the legislative forum where public policy is finally fashioned. In our view, however, experience and insight have not yet demonstrated that multi-member districts are inherently invidious and violative of the Fourteenth Amendment. Surely the findings of the District Court do not demonstrate it. Moreover, if the problems of multi-member districts are unbearable or even unconstitutional it is not at all clear that the remedy is a single-member district system with its lines carefully drawn to ensure representation to sizable racial, ethnic, economic, or religious groups and with its. own capacity for overrepresenting and underrepresenting parties and interests and even for permitting a minority of the voters to control the legislature and government of a State. The short of it is that we are unprepared to hold that district-based elections decided by plurality vote are unconstitutional in either single- or multi-member districts simply because the supporters of losing candidates have no legislative seats assigned to them. As presently advised we hold that the District Court misconceived the Equal Pro tec-, tion Clause in applying it to invalidate the Marion County multi-member district.
VI
Even if the District Court was correct in finding, unconstitutional discrimination against poor inhabitants of the ghetto, it did not explain why it was constitutionally compelled to disestablish the entire county district and to intrude upon state policy any more than necessary to ensure representation of ghetto interests. The court entered judgment without expressly putting aside on supportable grounds the alternative of creating single-member districts in the ghetto and leaving the district otherwise intact, as well as the possibility that the Fourteenth Amendment could be satisfied by a simple requirement that some of the at-large candidates each year must reside in the ghetto.. Cf. Fortson v. Dorsey, supra.
We are likewise at a loss to understand how on; the court’s own findings of fact and conclusion^ of law it was justified in eliminating every multi-member district in the State óf Indiana.. It did not forthrightly sustain the theory that multi-member districts always overr represent their voters to the invidious detriment of single-member residents. Nor did it examine any multi-mem-ber district aside> from Marion County for possible intradistrict discrimination.
The remedial powers of an equity court must be adequate to the task, but they are not unlimited. Here the District Court erred in so broadly brushing aside state apportionment policy without solid constitutional or equitable grounds for doing so.
VII
At the same time, however, we reject defendant’s suggestion that the court was wrong- in ordering statewide reapportionment. After determining that Marion County required reapportionment, the court concluded that “it becomes clear beyond question that the evidence adduced in this case and the additional apportionment requirements set forth by the Supreme Court call for a redistricting of the entire state as to both houses of the General Assembly.” 305 F. Supp., at 1391. This evidence, based on 1960 census figures, showed that Senate district 20, with one senator for 80,496, was overrepresented by 13.68% while district 5, with one senator for 106,790, was underrepresented by 14:52%, for a total variance of 28.20% and a ratio between the largest and smallest districts of 1.327 to 1. The house figures were similar. The variation ranged from one representative for 41,449 in district 39 to one for 53,003 in district 35, for a variance of 24.78% and a ratio of 1.279 to l. These variations were in excess of, or very nearly equal to, the variation of 25.65% and the ratio of 1.30 to 1 which we held excessive for state legislatures in Swann v. Adams, 385 U. S. 440 (1967). Even with this convincing showing of malapportionment, the court refrained from action in .order to allow the Indiana Legislature to call a special session for the purpose of redistricting. ' When the legislature ignored the court’s findings and suggestion, it was not improper for the court to order, statewide redistricting, as district courts have done from the time Reynolds v. Sims, 377 U. S. 533 (1964), and its companion cases were decided. And see Maryland Committee for Fair Representation v. Tawes, 377 U. S. 656, 673 (1964).
Nor can we accept defendant’s argument |hat the statutory plan was beyond attack because the District Court had held in 1965 that at that time the plan met the “substantial equality” test of Reynolds. Stout v. Bot- torff, 249 F. Supp. 488 (SD Ind. 1965).. Defendant does not argue that the 1969 variances were acceptable under the Reynolds test, which has been considerably refined since that decision, see Swann v. Adams, supra. Rather, he contends that because Reynolds indicated that decennial reapportionment would be a “rational approach” to the problem, a State cannot be compelled to reapportion itself more than once in a 10-year period. Such a reading misconstrues the. thrust of Reynolds in this respect. Decennial reapportionment was suggested as a presumptively rational method to avoid “daily, monthly, annual or biennial reapportionment” as population shifted throughout the State. Here, the District Court did not order reapportionment as a result of population shifts since the 1965 Stout decision, but only because the disparities among districts which were thought to be permissible at the time of that decision had been shown by intervening decisions of this Court to be excessive.
We therefore reverse the judgment of the District Court and remand the case to that court for further proceedings consistent with this opinion.
It is so ordered.
[For Appendix to opinion of the Court, see post, p. 164.]
Mr. Justice Stewart joins in Part I through VI of the Court’s opinion, holding that the multi-member district-ing scheme here in issue did not violate the Equal Protection Clause of the Fourteenth Amendment. He dissents from Part VII of the opinion for the reasons expressed in his dissenting opinion in Lucas v. Colorado General Assembly, 377 U. S. 713, 744.
Separate opinion of
Me. Justice Hablan.
Earlier this Term I remarked on “the evident malaise among the members of the Court” with prior, decisions in the field of voter qualifications and reapportionment. Oregon v. Mitchell, 400 U. S. 112, 218 (1970) (separate opinion of this writer).
Today’s opinions in this and two other voting cases now decided confirm that diagnosis.
I
Past decisions have held that districting in local governmental units must approach equality of voter population “as far as is practicable,” Hadley v. Junior College District, 397 U. S. 50, 56 (1970), and that the “as nearly as is practicable” standard of Wesberry v. Sanders, 376 U. S. 1, 7-8 (1964), for congressional districting forbade a maximum variation of 6%'. Kirkpatrick v. Preisler, 394 U. S. 526 (1969). Today the Court sustains a local governmental apportionment scheme with a 12% variation. Abate v. Mundt, post, p. 182.
Other past decisions have suggested that multi-member constituencies would be unconstitutional-if they could be shown “under the circumstances of a particular case . . . to minimize or cancel out the voting strength of racial or political elements of the voting population.” Fortson v. Dorsey, 379 U. S. 433, 439 (1965); Burns v. Richardson, 384 U. S. 73, 88 (1966). Today the Court holds that a three-judge District Court, which struck down an apportionment scheme for just this reason, “misconceived the Equal Protection Clause.” Ante, at 160.
Prior opinions stated that “once the class of voters is chosen and their qualifications specified, we see no constitutional way by which equality of voting power may be evaded.” Gray v. Sanders, 372 U. S. 368, 381 (1963); Hadley v. Junior College District, 397 U. S. 50, 59 (1970). Today the Court sustains a" provision that gives opponents of school bond issues half again the voting power of proponents. Gordon v. Lance, ante, p. 1.
II
The Court justifies the wondrous results in these cases by relying on different combinations of factors. Abate v. Mundt relies on the need for flexibility in local governmental arrangements, the interest in preserving the integrity of political subdivisions, and the longstanding tradition behind New York's practice in the latter respect. This case finds elementary probability theory too simplistic as a guide to resolution of what is essentially-a practical question of political power; the opinion relies on the long history of multi-member districts in this country and the fear that “affirmance of the District Court would spawn endless .litigation.” Ante, at 157. Gordon v. Lance relies heavily on the “federal analogy” and the prevalence of similar, anti-majoritarian elements in the constitutions of, the several States;
To my mind the relevance of such considerations as the foregoing is undeniable and their cumulative' effect is unanswerable. I can only marvel, therefore, that they were dismissed, singly and in combination, in a line of cases which began with Gray v. Sanders, 372 U. S. 368 (1963), and ended with Hadley v. Junior College District, 397 U. S. 50 (1970).
That line of cases can best be understood, I think, as reflections of deep personal commitments by some members of the Court to the principles of pure majoritarian democracy. This majoritarian strain and its nonconsti-tutional soürces aré most clearly revealed in Gray v. Sanders, supra, at 381, where my Brother Douglas, speaking for the Court, said: “The conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing — one person, one vote.” If this philosophy of majoritarianism had been given jits head, it would have led to different results in each of the cases decided today, for it is in the very nature of the principle that it regards majority rule as an imperative of social organization, not subject to compromise in furtherance of merely political ends. It is a philosophy which ignores or overcomes the fact that the scheme of the Constitution' is one not of majoritarian democracy, but of federal republics, with equality of representation a value subordinate to many others, as both the body of the Constitution, and the Fourteenth Amendment itself show on their face. See generally Baker v. Carr, 369 U. S. 186, 297-324 (1962) (Frankfurter, J., dissenting).
Ill
If majoritarianism is to be rejected as a rule of decision, as the Court implicitly rejects it today, then an alternative principle must be supplied if this earlier line ■ of cases just referred to is still to be regarded as good law. The reapportionment opinions of this Court provide little help. They speak in conclusory terms of “debasement” or “dilution” of the “voting power” or “representation” of citizens without explanation of what these concepts are. The answers are hardly apparent, for as the Court observes today:
“As our. system has it, one candidate wins, the others lose. Arguably the losing candidates’ supporters are without representation since the men they voted for have been defeated; arguably they have been denied equal protection of the laws since they have no legislative voice of their own. . . . But we have-not yet deemed it a denial of- equal protection to deny legislative seats to losing candidates,even in those so-called 'safe’ districts where the same party wins year after year.” Ante, at 153.
A coherent and realistic notion of what is meant by “voting power” might have restrained some of the extreme lengths to which this Court has gone in pursuit of the will-o’-the-wisp of “one man, one vote.”
An interesting illustration of the light. which a not, implausible definition of “voting power” can shed on reapportionment doctrine is provided by the theoretical model created by Professor Banzhaf, to which the Court refers, ante, at 144-146. This model uses as a measure of voting power the probability that a given voter will cast a tie-breaking ballot in an election. Two further assumptions are made: first, that the voting habits of. all members of the electorate are alike; and second, that each voter is equally likely to vote for' either candidate beforé him. On these assumptions, and taking the voting population in Marion County as roughly 300,000, it can be shown that the probability of an individual voter’s casting a decisive vote in a given election is approximately .00146. This provides a standard to which “voting-power” of residents in other districts may be compared. See generally Banzhaf, Multi-Mem-ber Electoral restricts — Do They Violate the “One Man, One Vote”, Principle, 75 Yale L. J. 1309 (1966).
However, Professor Banzhaf’s model also reveals that minor variations in assumptions can lead to major variations in-results. For instance, if the temper of the electorate changes by one-half of one percent, each individual’s voting power is reduced by a factor of approximately 1,000,000. Or if . a few of the 300,000 voters are committed — say 15,000 to candidate A and 10,000 to candidate B — the probability of any individual’s casting a tie-breaking vote is reduced by a factor on' the rough order of 120,000,000,000,000,000,000. Obviously in comparison with the astronomical differences in voting power which can result from such minor variations in political characteristics, the effects of the 12% and 28% population variations considered in Abate v. Mundt and in this case are de minimis, and even' the extreme deviations from the norm, presented in Baker v. Carr, 369 U. S. 186 (1962), and Avery v. Midland County, 390 U. S. 474 (1968), pale into insignificance.
It is not surprising therefore that the Court, in this case declines to embrace the measure of voting power suggested by Professor Banzhaf; .But it neither suggests an alternative nor considers the consequences of its inability to measure what it purports to be equalizing. See n. 2, supra. Instead it becomes enmeshed in the haze of slogans and numerology which for. 10 years has obscured its vision in this field, and finally remands the case “for further proceedings consistent with [its] opinion.” Ante, at 163. This inexplicit mandate is at least subject to the interpretation that the court below is to inquire into such matters as “the actual influence of Marion County’s delegation in the Indiana Legislature,” ante, at 147, and the possibility of “recurring poor performance by Marion County’s delegation with respect to Center Township ghetto,” ante, at 155, with a view to determining whether “any legislative skirmish affecting the State of Indiana or Marion County in particular would have come out differently had Marion County been subdistricted and its delegation elected from single-member districts.” Ante, at 148. If there are less appropriate subjects for federal judicial inquiry, they do not come readily to mind. The suggestion implicit in the Court’s opinion that appellees may ultimately prevail if they can make their record in these and other like respects should be recognized for what it is!: a manifestation of frustration by a Court that has become trapped in the “political thicket” and is looking for the way out.
This case is nothing short of a complete vindication of Mr. Justice Frankfurter’s warning nine years ago “of the mathematical quagmire (apart from divers judicially inappropriate and elusive determinants) into which this Court today catapults- the lower courts of the country.” Baker v. Carr, 369 U. S. 186, 268 (1962) (dissenting opinion). With all respect, it also bears witness to the morass into, which the Court has gotten itself by departing from sound constitutional'principle in the electoral field. See the dissenting opinion of Mr. Justice Frankfurter in Baker v. Carr, supra, and my separate opinions in Reynolds v. Sims, 377 U. S. 533, 589 (1964), and in Oregon v. Mitchell, 400 U. S. 112, 152 (1970). I hope the day will come when the Court will frankly recognize the. error of its ways in ever having undertaken to restructure state electoral processes.
I would reverse the judgment below and remand the case to the District Court with directions to dismiss the complaint.
As later indicated, shortly before announcement of this opinion, the Court was informed that the statutes at issue here will soon be superseded by new apportionment legislation recently adopted by the Indiana Legislature and' signed by the Governor. That legislation provides for single-member districts throughout the State including Marion County.- For the reasons stated below the controversy is not moot, and, as will be evident, this opinion proceeds ' as though the state statutes before us remain undisturbed by new legislation.
The provisions attacked, contained in Acts 1965 (2d Spec. Sess.), c. 5, § 3, and c. 4, § 3, and appearing in Ind. Ann. Stat. §§ 34 — 102 and 34-104 (1969) were as follows:
“34-102. Apportionment of representatives. — Representatives shall be elected from districts comprised of one [1] or more counties and having one [1] or more representatives, as follows: . . , Twenty-sixth District Marion County: fifteen [15] representatives . . . .”
“34-104. Apportionment of senators. — Senators shall be elected from districts, comprised of one or more counties and having one or inore senators; as follows: . . . Nineteenth District — Marion County: eight [8] senators, two [2] to be elected in 1966.”
The District Court denied plaintiffs’ motion to have the suit declared a class action under Fed. Rule Civ. Proc. 23 (b). 305 F. Supp. 1359, 1363 (SD Ind. 1969). See n. 17, infra.
Plaintiffs in the trial court are appellees here and defendant Whitcomb is the appellant. We shall refer to the parties in this opinion as they-stood in the trial court.
Walker also alleged that “in both Lake and Marion County, Indiana there are. a sufficient number of negro [sic] voters and inhabitants for a bloc vote by 'the said inhabitants to change the result of any election recently held.”
The mathematical basis- for the assertion was set out in detail in the complaint. See also n. 23, infra. It was also alleged that “[b]oth Marion County . . . and Lake County . -. . are the sole matter for consideration before two separate state legislative committees, one directed .to the affairs of each county. The laws enacted . . . which directly effect [sic] Marion or Lake County typically apply to only <Jne county or the other.” App. 15.
Plaintiff Marilyn Hotz, a Republican and a resident of what she described as the white suburban belt of Marion County lying outside the city of Indianapolis, alleged that malapportionment of precincts in party organization together with multi-member district-ing invidiously diluted her vote.
Plaintiff Rowland Allan (spelled “Allen” in the District Court’s opinion), an independent voter, alleged that multi-member districting deprived him of any chance to make meaningful judgments on the merits of individual candidates because he was confronted with a list of 23 candidates of each party.
In their final arguments and proposed findings of fact and conclusions Of law plaintiffs urged that the Center Township ghetto was largely inhabited by Negroes who had distinctive interests and whose bloc voting potential was canceled out by opposing interest groups in the at-large elections held in Marion County’s multi-member district, that the few Negro legislators, including the three then serving the general assembly from Marion County, were chosen by white voters and were unrepresentative of ghetto Negroes, and that Negroes should be given the power and opportunity to choose their own assemblymen. It was also urged that the power of political as well as racial elements was canceled out in that in every assembly election since 1922, one party or the other had won all the seats with two minor exceptions; hence many voters, in numbers large enough and geographically so located as to command control over one or more general assembly seats if Marion County were subdistricted, were wholly without representation whichever - way an assembly election turned out.
The defendants argued that Marion County’s problems were countywide and that its delegation could better represent the various interests in the county if elected at large and responsible to the county as a whole rather than being elected in single-member districts and thus fragmented by parochial interests and jealousies. They also urged that the 1960 census figures were an unreliable basis for redistricting Marion County and opposed the court’s suggestion that the apportionment of the whole State was an issue properly before the court on the pleadings and the evidence.
A ghetto was defined as a residential area with a higher density of population and greater proportion of. substandard housing than in the overall metropolitan area and inhabited primarily by racial or other minority groups with lower than average socioeconomic status and whose residence in the area is often the result of a social, legal, or economic restriction or custom. 305 F. Supp., at 1373.
The court's ghetto area was not congruent with that alleged in the complaint. It included five census tracts and parts of four others not within the ghetto area alleged in the complaint, but it omitted census tract 220 which the complaint had included. 305 F. Supp., at 1379-1381. That district, which was contiguous to both tract 211 and the ghetto area, was inhabited primarily by Negroes but was found to be a middle class district differing substantially in critical elements from the remainder of the ghetto. The court also made it unmistakably clear that its ghetto 'area “does not represent the entire ghettoized portion of Center Township but only the portion which is predominantly inhabited by Negroes and which was alleged in the complaint.” 305 F. Supp., at 1380-1381. Although census tract 563, a tract “randomly selected to typify tracts . . . within the predominantly white ghetto portion of Center Township,” id., at 1374, was shown to have characteristics very similar to the tracts in the court’s ghetto area except for the race of its inhabitants, the size and configuration of the white ghetto area were not revealed by the findings.
See Appendix to opinion, post, p. 164.
A striking but typical example of the importance of party affiliation and the “winner take all” effect is shown by the 1964 House of Representatives election. .
Democrats Votes
Neff .'. 151,822
Bridwell. 151,756
Murphy. 151,746
Dean . 151,702
Creedon .151,573
Jones . 151,481
DeWitt. 151,449
Logan. 151,360
Roland. 151,343
Walton. 151,282
Huber. 151,268
Costeño . 151,153
Fruits. 151,079
Lloyd . 150,862
Ricketts. 150,797
Republicans Votes
Cox .;. 144,336
Hadley. 144,235
Baker. 144,032
Burke. 143,989
Borst . 143,972
Madinger. 143,918
Clark .'. 143,853
Bosma . 143,810
Brown . 143,744
Durnil . 143,588
Gallagher. 143,553
Cope.:. 143,475
Elder . 143,436
Zerfas. 143,413
Allen . 143,369
Though nearly 300,000 Marion County voters cast nearly 4% million votes for the House, the high and low candidates within each party varied by only about a thousand votes. ' And, as these figures show, the Republicans lost every seat though they received 48.69% of the vote. Plaintiffs’ Exhibit 10.
“The first requirement implicit in Fortson v. Dorsey and Burns v. Richardson, that of an identifiable racial or political element within the multi-member district, is met by the Negro residents of the Cénter Township Ghetto. These Negro residents have .interests in areas of substantive law such as housing regulations, sanitation, welfare programs (aid to families with dependent children, medical care, etc.),, garnishment statutes, and unemployment compensation, among others, which diverge significantly from the interests of nonresidents of the Ghetto.” 305 F. Supp., at 1386.
Ibid. The District Court implicitly, if not expressly, rejected the testimony of defendants’ witnesses, including a professor of political science, to the effect that Marion County’s problems and all its voters would be better served by a delegation sitting and voting as a team and responsible to the district at large, than by a delegation elected from single-member districts and split into groups representing special interests.
Article 4, § 6, of the Indiana Constitution provides:
“A Senatorial or Representative district, where more than one county shall constitute a district, shall be composed of contiguous counties; and no county, for Senatorial apportionment, shall ever be divided.” (Emphasis added.)
See part VII, infra. ,
“In his second status, we find that plaintiff Walker is a voter of Indiana who resides outside Marion County. Applying the uniform district principle, discussed infra in the remedy section, we find that he probably has received less effective representation than Marion County voters. It has been shown that he votes for fewer legislators and, therefore, has fewer legislators to speak for him. He also, theoretically, casts fewer critical votes than Marion County voters, but we decline to so hold in the absence of sufficient evidence as to other factors such as bloc and party voting in Lake County. We hold that, in the absence of stronger evidence of dilution, his remedy is limited to the consideration which should be given to the uniform district principle in any subsequent reapportionment of the Indiana General Assembly.” 305 F. Supp., at 1390.
The court found a failure of proof on behalf of plaintiff Hotz, a resident of the white suburban belt, and on behalf of plaintiff Allan, an independent voter. • Two other plaintiffs • were entitled to no relief, plaintiff Chavis because he resided outside the Center Township ghetto and. plaintiff Ramsey because he failed to show that he was a resident of that area. Only plaintiff Bryant, in addition to the qualified recognition given Walker, was found to have standing to sue and to be entitled to the relief prayed for.
See part VII, infra.
The Governor appealed here following this opinion. Since at that time no judgment had been entered and no injunction had been granted or denied, we do not have jurisdiction of that appeal and it is therefore dismissed. Gunn v. University Committee, 399 U. S. 383 (1970).
The trial court’s discussion of this subject may be fqund in 305 F. Supp., at 1391-1392. ■
The court also provided for the possibility that the legislature would fail to redistrict in time for the 1972 elections:
“The Indiana constitutional provision for staggering the terms of senators, so that one-half of the Senate terms expire every two years, is entirely proper and valid and would be mandatory in a legislatively devised redistricting plan.
“However, the plan adopted herein is provisional in nature and probably will be applicable for only the 1970 election and the subsequent 2-year period. This is true since the 1970 census will have been completed in the interim, and the legislature can very well redistrict itself prior to the 1972 election. On the other hand, it is conceivable that the legislature may fail to redistrict before the 1972 elections. In such event, all fifty senatorial seáts shall be up for election- every two years until such time as the legislature properly redistricts itself. It will then properly be the province of the legislature in redistrieting to determine which senatorial districts shall elect senators to 4-year terms.and which shall elect senators to 2-year terms to reinstate the staggering of terms.” 307 F. Supp., at 1367.
In Fortson, the' Court reversed a three-judge District Court which found a violation of the Equal Protection Clause in that voters in single-member districts were allowed to “select their own senator” but that voters in multi-member districts were not. The statutory scheme in Fortson provided for subdistricting within the county, so that each subdistrict was the residence of exactly one senator. However, each. senator was elected by the county at large. The Court said, “Each [sub] district’s senator must be a resident of that [sub] district, but since his tenure depends upon the county-wide electorate he must be vigilant to serve the interests of all the people in the county, and not meiely those of people in his home [sub]district; thus in fact he is the county’s and not merely the [sub] district’s senator.” 379 U. S., at 438. The question of whether the scheme “operate[d] te minimize or cancel out the voting ■strength of racial or political elements of the voting population!’ was hot presented.
In Burnette, we summarily affirmed a three-judge District Court ruling, Mann v. Davis, 245 F. Supp. 241 (ED Va. 1965),' which upheld a multi-member district consisting of the city of Richmond; Va., and suburban Henrico-County over the objections of both urban Negroes and suburban whites. Since the urban Negroes did not appeal here, the affirmance is of no weight as to them, but as to the suburbanites it represents an adherence to Fortson. Similarly, Harrison summarily affirmed a District Court reapportionment plan, Schaefer v. Thomson, 251 F. Supp. 450 (Wyo. 1965), where multi-member districts in Wyoming were held necessary to keep county splitting at a minimum.
Burns vacated a three-judge court decree which required single-member districts except in extraordinary circumstances. The Court in Burns noted that “the demonstration that a particular multi-member scheme effects an invidious result must appear from evidence in the record.” 384 U. S., at 88.
In Kilgarlin, the Court affirmed, per curiam, a district court ruling
“insofar as it held that appellants had not proved their allegations that [the Texas House of Representatives reapportionment plan] was a racial or political gerrymander violating the Fourteenth Amendment, that it unconstitutionally deprived Negroes of their franchise and that because of its utilization of single-member, multi-member- and floterial districts it was an unconstitutional ‘crazy quilt.’ ” 386 U. S., at 121.
The mathematical backbone of this theory is as follows: In a . population of n voters, where each voter has a choice between .two alternatives (candidates), there are 2n possible voting combinations. For example, with a population of three voters, A, B, and C, and two candidates, X and Y, there áre eight combinations:
ABC
#1. X X X
#2. X X Y
#3. X Y X
#4. X Y Y
#5. Y X X
#6. Y -X Y
#7. Y Y X
#8. Y Y Y
The theory hypothesizes that the true test of voting power is the ability to cast a tie-breaking, or “critical” Vote. In . the population of three voters as shown above, any voter can cast a critical vote in four situations; in the other four situations, the vote is not critical since it cannot change the outcome of the election: For example, C can cast a tie-breaking vote only in situations 3, 4, 5, and 6. The number of- combinations in which a voter can
(« — 1)!
cast a tie-breaking vote is 2 • -:-, where n is
n— 1 ■ 7i — 1
-• |-j '
2 ' 2
the number of voters. Dividing this result (critical votes) by 2n (possible combinations), one arrives at that fraction of possible combinations in which a voter can cast a critical vote. This is the theory’s measure of voting power. In District K with three voters, the fraction is Vs, or 50%. In District L with nine voters, the fraction is.14%i2, or 28%. Conventional wisdom would give District K one representative and District L three. But under the theory, a voter in District L is not % as powerful as the voter in District K, but more than half' as powerful. District L deserves only two representatives, and by giving it three the State causes •voters therein to be overrepresented. For a fuller explanation of this theory, see Banzhaf, Multi-Member Electoral Districts — Do They Violate the “One Man, One Vote” Principle, 75 Yale L. J. 1309 (1966).
Tr. 39. Plaintiffs’ brief in this Court recognizes the issue: “The obvious question which the foregoing presentation gives rise to is that of whether the fact that a voter in a large multi-member district has a greater mathematical chance to cast a crucial vote has any practical significance.” Brief of Appellees' (Plaintiffs) 14.
Cf. Banzhaf, Weighted Voting Doesn’t Work: A Mathematical Analysis, 19 Rutgers L. Rev. 317 (1965).
It is apparent that the District Court declined to rule as a matter of law that a multi-member district, was per se illegal as giving an invidious advantage to multi-member district voters over voters in single-member districts or smaller multi-member districts. See 305 F. Supp., at 1391-1392.
The so-called urban-rural division has been much talked about. . Antagonistic bloc voting .by the two Camps may occur but it has perhaps been overemphasized. See White & Thomas, Urban and Rural Representation and State Legislative Apportionment, 17 W. Pol. Q. 724 (1964). Legislation dealing with uniquely urban problems may be routinely approved when urban delegations are in agreement but encounter insuperable difficulties when the delegations are split internally. See Kovach, Some Lessons of Reapportionment, 37 Reporter 26, 31 (Sept. 21, 1967).
See Appendix to opinion, post, p. 164.
It does not appear that the Marion County multi-member district always operated to exclude Negroes or the poor from the legislature. In the five general assemblies' from 1960-1968, the county’s Center Township ghetto had one senator and four representatives. The remainder of the township, which includes a white ghetto, elected one senator and eight representatives. Census tract 220, inhabited predominantly by Negroes but having different economic and social characteristics according to the trial court, elected one senator and- five representatives. Ibid. Plaintiffs’ evidence indicated that Marion County as a whole elected two Negro senators and seven representatives in those years. Plantiffs’ Exhibit 10.
Plaintiffs’ Exhibit 10 purported to list the names and race- of both parties’ general assembly candidates from 1920 through 1968. .For the 1960-1968 period whieh concerned the District Court, the exhibit purported to show that the Democratic Party slated one Negro representative in I960; one in 1962; one senator and two representatives in 1964; three representatives in 1966; and one senator and two representatives in 1968. The Republican Party slated one Negro senator in 1960; two representatives in 1966; and three representatives in 1968. The racial designations on the exhibit, however, were excluded as hearsay.
The Brief of Appellees (Plaintiffs), at 23 n. 7, indicates that in. the 1970 elections:
“[O]ne of the .major political parties in Marion County held district ‘mini-slating conventions’ for purposes of determining its legislative candidates.- All of the slated candidates were subsequently nominated in the primary. Black candidates filed in .the slating conventions in six of the fifteen Marion County ‘districts’ including the five that contain parts of the ghetto area. Only two black candidates were slated and nominated including one in the district that contains only a very small part of the ghetto area where the black candidate overwhelmingly defeated the white candidate in a head-on race notwithstanding a very substantial white voting majority. In a district that was almost entirely ghetto a white candidate won almost all. of the vote in a head-on race against a black candidate who campaigned primarily on the basis of skin-color. All five of the candidates in the ‘ghetto districts,’ however, avowed a substantial commitment to the substantive interests of black people and the' poor.”
The record shows that plaintiff Chavis was slated by the Democratic Party and elected to the state senate in 1964. Exhibit 10. Also, plaintiffs Ramsey and Bryant were both slated by the same party as candidates for the House of Representatives in 1968 but were defeated in the general election. Ibid.; see also Tr. 131 (Ramsey) ,Tr. 133 (Bryant).
One of plaintiffs’ witnesses, an attorney and political figure in the Republican Party, testified as follows:
■ “Q. In your experience, Mrs. Allen, aren’t tickets put together by party organization to appeal [to] the various interest groups throughout Marion County?
“A. Yes.
“Q. Among these interest groups are economic groups, racial groups and others?
. “A. Yes.
“Q. I show you exhibit 5B that is in evidence, showing the location of the elected Republican representatives’ homes at the time they filed in the party primary, does it to you somehow reflect an interest in making an appeal .to each conceivable faction in the family, in the county area, each geographical interest?
“A. Yes, it does, if I can explain.
“Q. Yes, you may.
“A. Back in 1966, as I stated, we had a.real primary fight and at the time we selected our candidates in the primary Republican Action Committee was not real, real strong in some, geographical areas, and we felt that necessary to come up with a 15 man slate, many of the people who lived in Center Township including myself did not feel ready to run for public office and therefore there was a hiatus in Center Township residents. However, many of the Washington Township residents, I believe at least two Washington Township residents had a number of family and historical ties in , this Center Township Area, even though they did not live there and' to the best of the Committee’s ability they tried to achieve racial, geographical, economical and social diversity on the ticket. • I can’t say they were entirely successful, but they made a real good ' attempt and this is a result of their attempts.'
“Q. And the real hard driving effort to put the Action Committees through did take place by the residents of Center Township; did it not?
“A. It was an over-all drive. Center Township, having the population it has, could not be ignored.” Tr. 145-148.
Plaintiffs’ lawyer was at. the time of the- trial the Marion County Democratic chairman, Tr. 256; plaintiff Chavis was a ward chairman and a longtime precinct committeeman, Tr. 77.
See Appendix to opinion, p. 164.
See ibid. In addition, the Republicans nominated and elected one senator (1960), and three representatives (1960, 1966, 1968) from census tract 220, and four representatives (three in 1962, one in 1966) from the nonghetto area of Center Township. Ibid.
Although plaintiffs asserted it, there was no finding by the. District Court that Republican legislators residing in the ghetto were not representative of the area or had failed properly to represent ghetto interests in the general assembly.
The comparative merits of the two approaches to metropolitan representation has been much mooted and is still in contention. See the authorities, cited in n. 38, infra, particularly the piece by Kovach • and the series of studies by Collins, Dauer, David, Lacy, & Mauer. And, of course, witnesses in the trial court differed on this very issue. E. g., Tr. 209-214, 223-229, 235-238, 256-258. David & Eisenberg in their study, infra, n: 38, concluded that the case for rigid insistence on single-member districting has not been proved. They would prefer á system of small multi-member districts in metropplitan areas to either the larger multi-member district or the single-member district, thereby minimizing the acknowledged shortcomings of each. More generally, still in suspense is definitive judgment about the long-range impact of voting systems and malapportionment on legislative output. Sokolow, After Reapportionment: Numbers or Policies?, 19 W. Pol. Q. Supp. 21 (1966); T. Dye, Politics, Economies, and the Public 260-277 (1966); D. Lockard, The Politics of State and Local Government 290-293 (2d ed. 1969).
Interestingly enough,- in Wright v. Rockefeller, 376 U. S. 52 (1964), challenge was to a single-member district plan with districts allegedly drawn on racial lines and designed to limit Negroes to voting for their own candidates in safe Negro districts. We rejected the challenge for failure of proof, but noted in passing.that “some of these voters . . . would prefer a more even distribution of minority groups among the four congressional districts,, but others, like the intervenors in this case, would argue strenuously that the kind of districts for which appellants contended would be undesirable, and, because based on race or place of origin, would themselves be unconstitutional.” 376 U. S., at 57-58.
Plaintiffs’ final arguments in the District Court asserted political ■ as well as racial and economic discrimination in the workings of the Marion County district, iri that the “political minority,” whether Republicans or Democrat, is "always shut out” when the opposing party wins. Tr. 254. See n. 11, supra.
For discussions of voting systems designed to achieve minority representation, see Dixon, infra, n. 38, at 516-527; Black, The Theory of Elections in Single-member Constituencies, 15 Can. J. of Economics and Pol. Sci. 158 (1949); Silva, Relation of Representation and the Party System to the Number of Seats Apportioned to a Legislative District, 17 W. Pol. Q. 742, 744 et seq. (1964); S. Bedford, The Faces of Justice (1961); E. Lakeman & J. Lambert, Voting in Democracies (1959); Blair, Cumulative Voting: An Effective Electoral Device in Illinois Politics, 45 Ill. Studies in the Social Sciences (1960).
As of November 1970, 46% of the upper houses and 62% of the lower houses in the States contained some multi-member districts. National Municipal League, Apportionment in the Nineteen Sixties (Rev. Nov. 1970). In 1955, it was reported that the figures were 33% and 75%, respectively.' Klain, A New Look at the Constituencies: The Need for a Recount and a Reappraisal, 49 Am. Pol. Sci. Rev. 1105 (1955). Though the overall effect of the reapportionment eases on this phenomenon is necessarily somewhat speculative, there is no doubt that some States switched to multi-member districts ■ as ' a result of those decisions. Prior to the decisions, for example', Vermont’s lower house was composed entirely of single-member districts. Id., at 1109. This resulted in the colorful situation of one representative for a town of 33,155 and another for a town of 38. in 1962. National Municipal League, Apportionment in the Nineteen Sixties, pt. I (b). Reapportioned and redistrieted in light of Reynolds, Vermont’s lower house now has 36 multi-member and .36 single-member districts. Buckley v. Hoff, 243 F. Supp. 873 (Vt. 1965). Reapportionment has also been credited with abolishing Maryland’s tradition of single-member districts in its senate. Burdette, Maryland Reapportionment, in Apportionment in the Nineteen Sixties, supra.
The relative merits of multi-member and single-member plans have been much debated and the general- preference for single-member districts has not gone unchallenged. For representative treatment of the subject see:
R. Dixon, Democratic Representation: Reapportionment in Law and Politics 461-463, 470-472, 476-490, 503-507 (1968); P. David & R. Eisenberg, State Legislative Redistricting: Major Issues in the Wake of Judicial Decision (1962); Barnett, Unitary-Multiple Election Districts, 39 Am. Pol. Sci. Rev. 65 (1945); Silva, Compared Values of the Single- and the Multi-member Legislative District, 17 W. Pol. Q. 504 (1964); Hamilton, Legislative Constituencies: Single-member Districts, Multi-member Districts, and Floterial Districts, 20 W. Pol. Q. 321 (1967) (includes a discussion of districting in Indiana); Silva, Relation of Representation and the Party System to the Number of Seats Apportioned to a Legislative District, 17 W. Pol. Q. 742 (1964); Lindquist, Socioeconomic Status and Political Participation, 17 W. Pol. Q. 608 (1964); Klain, A New Look at the Constituencies: The Need for a Recount and. a Reappraisal, 49 Am. Pol. Sci. Rev. 1105 (1955); Kovach, Some Lessons of Reapportionment, 37 Reporter 26 (Sept. 21, 1967); and M. Collins, M. Dauer, P. David, A. Lacy, & G. Mauer, Evolving Issues and Patterns of State Legislative Redistricting in Large Metropolitan Areas (1966).
Interesting material with respect to the relative merits of single- and multi-member districts may be found in the congressional debates surrounding the passage in 1842 of the statute requiring representatives to be elected in single-member districts. See n. 39, infra. Though the racial considerations present here were, not surprisingly, absent in these pre-Civil War Amendments debates, the concern voiced by congressmen over the submergence of minorities, bloc voting, and party control shows, at least, that the plaintiffs’ apprehensions are not entirely new ones. See, e. g., Cong. Globe, 27th Cong., 2d Sess., 445-448, 452-453, 463-464.
In colonial days, “[mjultiple districts were the rule, single ones the exception,” and “[f]or nearly a century and a half after the Declaration of Independence the American states elected by far the greater part of their lawmakers in multiple constituencies.” Klain, supra, n. 38, at 1112, 1113. Although a trend toward single-member districts began long ago, multiple districts are still much in evidence. See n. 37, supra. See also David & Eisenberg, supra, n. 38, at 20; Dixon, supra, n. 38, at 504.
In 1842, Congress by statute required single-member districts for congressional elections. Act of June 25, 1842, § 2, 5 Stat. 491. The substance of the restriction was continued in Rev. Stat. § 23 and in apportionment legislation in this century until 1929. In 1941, Congress enacted a law that required that until a State is redistricted in a manner provided by law after decennial reapportionment of the House, representatives were to be elected from the districts prescribed by the law'of-the State, and that “if any of them are elected from the State at large they shall continue to be so elected,” provided that if reapportionment of the House following a census shows that a State is entitled to an increase in the number of representatives, the additional representatives shall be elected at large until the State is redistricted, and if there is a decrease in the number of representatives and the number of districts in the State exceeds the number of representatives newly apportioned, all representatives shall be elected at large. Act of Nov. 15, 1941, 55 Stat. 762, amending § 22 (c) of the Act of June 18, 1929, 46 Stat. 27, 2 U. S. C. § 2a (c). In 1967, Congress reinstated the single-member district requirement, “except that a State which is entitled to more than one Representative and which has .in all previous elections elected its Representatives at Large may elect its Representatives at Large to the Ninety-first Congress.” 81 Stat. 581, 2 U. S. C. § 2c (1964 ed., Supp. V). Hawaii was the only State to take advantage of this exception. It has districted for the 92d Congress. Hawaii Rev. Stat. § 12-32.5 (Supp. 1969).
Congress has not purported to exercise Fourteenth Amendment powers to regulate or prohibit multi-member districts in state elections.
The. court was also impressed by the 1967 Indiana Board of Health Vital Statistics population estimates which showed a senate variance of 36.83% and a house variance of 37.30%. It did not base its order on these interim figures, however. See 307 F. Supp. 1362, 1366.
See also Kirkpatrick v. Preisler, 394 U. S. 526 (1969), and Wells v. Rockefeller, 394 U. S. 542 (1969), in which the Court held that variances of 5.97% and 13.096%, respectively, were impermissible for congressional redistricting.
In redistricting the State, the District Court divided some counties into several districts, and defendant attacks this as an unwarranted violation of Indiana Const., Art. 4, § 6, which says “no county, for Senatorial apportionment, shall ever be divided.” Defendant concedes that “[t]he error ... is not the per se violation” of the constitution, but rather that the court drew its plan “without having meaningfully considered” the dictates of the constitution. Brief for Appellant (Defendant) 49. But the contrary appears to us to be true. The court announced that it “would strive to preserve the integrity of county and township lines” wherever possible, 307 F. Supp., at 1364, though it ultimately concluded that the “difficulty of devising . . . compact and contiguous . . . districts within that framework [of mathematical equality] has in large part precluded preservation of county lines.” Id., at 1366. We note that none of the statewide redistricting plans that were submitted for the court’s consideration, including those of the house and senate minority leaders and the chairman of the senate majority caucus committee, followed the state constitution in this respect. R. 57-137, 198-228.
In any event, the Court was careful to note that “we do not mean to intimate that more frequent reapportionment would not be constitutionally permissible, or practicably desirable.” 377 U. S., at 584.
Abate v. Mundt, post, p. 182; Gordon v. Lance, ante, p. 1.
The Court, though stating that it does “not quarrel with plaintiffs’ mathematics,” nevertheless implies that it may be ignored because “the position remains a theoretical one . . . and does ‘not take into account any -political or other factors which might affect the actual. voting power of the residents, which might include party affiliation, race, previous voting characteristics or any other factors which go into the entire political voting situation.’ ” Ante, at 145, 146. Precisely the same criticism applies, with even greater force, to the “one man, one vote” opinions of this Court. The only relevant difference between the elementary arithmetic on which the Court relies and the elementary probability theory on which Professor Banzhaf relies is that calculations in the latter field cannot be done on one’s fingers.
More precisely, the result follows if the second of Professor Banzhaf’s assumptions is altered so that the probability of each voter’s selecting candidate A over candidate B is 50.5% rather than 50%.
The text assumes that- each of the remaining. 275,000 voters is equally likely to vote for A or. for IS.
“There is something fascinating about science. One gets such wholesale returns of conjecture out of such a trifling investment of fact:” "Mark Twain, Life on the Mississippi 109 (Harper & Row, 1965). | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. | What is the issue of the decision? | [
"voting",
"Voting Rights Act of 1965, plus amendments",
"ballot access (of candidates and political parties)",
"desegregation (other than as pertains to school desegregation, employment discrimination, and affirmative action)",
"desegregation, schools",
"employment discrimination: on basis of race, age, religion, illegitimacy, national origin, or working conditions.",
"affirmative action",
"slavery or indenture",
"sit-in demonstrations (protests against racial discrimination in places of public accommodation)",
"reapportionment: other than plans governed by the Voting Rights Act",
"debtors' rights",
"deportation (cf. immigration and naturalization)",
"employability of aliens (cf. immigration and naturalization)",
"sex discrimination (excluding sex discrimination in employment)",
"sex discrimination in employment (cf. sex discrimination)",
"Indians (other than pertains to state jurisdiction over)",
"Indians, state jurisdiction over",
"juveniles (cf. rights of illegitimates)",
"poverty law, constitutional",
"poverty law, statutory: welfare benefits, typically under some Social Security Act provision.",
"illegitimates, rights of (cf. juveniles): typically inheritance and survivor's benefits, and paternity suits",
"handicapped, rights of: under Rehabilitation, Americans with Disabilities Act, and related statutes",
"residency requirements: durational, plus discrimination against nonresidents",
"military: draftee, or person subject to induction",
"military: active duty",
"military: veteran",
"immigration and naturalization: permanent residence",
"immigration and naturalization: citizenship",
"immigration and naturalization: loss of citizenship, denaturalization",
"immigration and naturalization: access to public education",
"immigration and naturalization: welfare benefits",
"immigration and naturalization: miscellaneous",
"indigents: appointment of counsel (cf. right to counsel)",
"indigents: inadequate representation by counsel (cf. right to counsel)",
"indigents: payment of fine",
"indigents: costs or filing fees",
"indigents: U.S. Supreme Court docketing fee",
"indigents: transcript",
"indigents: assistance of psychiatrist",
"indigents: miscellaneous",
"liability, civil rights acts (cf. liability, governmental and liability, nongovernmental; cruel and unusual punishment, non-death penalty)",
"miscellaneous civil rights (cf. comity: civil rights)"
] | [
9
] | sc_issue_2 |
WIRTZ, SECRETARY OF LABOR v. LOCAL 153, GLASS BOTTLE BLOWERS ASSOCIATION OF THE UNITED STATES AND CANADA, AFL-CIO.
No. 57.
Argued November 8, 1967.
Decided January 15, 1968.
Louis F. Claiborne argued the cause for petitioner. With him on the brief were Solicitor General Marshall, Acting Assistant Attorney General Eardley, Richard A. Posner, Alan S. Rosenthal, Robert V. Zener, Charles Donahue, James R. Beaird and Beate Bloch.
Albert K. Plone argued the cause and filed a brief for respondent.
/. Albert Woll, Laurence Gold and Thomas E. Harris filed a brief for the American Federation of Labor and Congress of Industrial Organizations, as amicus curiae-, urging affirmance.
Mr. Justice Brennan
delivered the opinion of the Court.
Petitioner, the Secretary of Labor, filed this action in the District Court for the Western District of Pennsylvania seeking a judgment declaring void the election of officers conducted by respondent Local Union on October 18, 1963, and directing that a new election be conducted under the Secretary’s supervision.
Section 402 (b) of the Labor-Management Reporting and Disclosure Act of 1959, 29 U. S. C. §482 (b), authorizes the Secretary of Labor, upon complaint by a union member who has exhausted his internal union remedies, to file the suit when an investigation of the complaint gives the Secretary probable cause to believe that the union election was not conducted in compliance with the standards prescribed in § 401 of the Act, 29 U. S. C. § 481. If the court finds that a violation of § 401 occurred which “may have affected the outcome of an election,” it “shall declare the election, if any, to be void and direct the conduct of a new election under supervision of the Secretary.” The alleged illegality in the election was a violation of the provision of §401 (e), 29 U. S. C. §481 (e), that in a union election subject to the Act every union member “in good standing shall be eligible to be a candidate and to hold office (subject to . . . reasonable qualifications uniformly imposed) . ...” A Local bylaw provided that union members had to have attended 75% of the Local’s regular meetings in the two years preceding the election to be eligible to stand for office. The union member whose complaint invoked the Secretary’s investigation had not been allowed to stand for President at the 1963 election because he had attended only 17 of the 24 regular monthly meetings, one short of the requisite 75%; under the bylaws, working on the night shift was the only excusable absence and none of his absences was for this reason.
The District Court held that the meeting-attendance requirement was an unreasonable restriction upon the eligibility of union members to be candidates for office and therefore violated § 401 (e), but dismissed the suit on the ground that it was not established that the violation “may have affected the outcome” of the election. 244 F. Supp. 745. The Secretary appealed to the Court of Appeals for the Third Circuit. The appeal was pending when the Local conducted its next regular biennial election in October 1965. The Court of Appeals held that the Secretary’s challenge to the 1963 election was mooted by the 1965 election, and therefore vacated the District Court judgment with the direction to dismiss the case as moot. In consequence, the court did not reach the merits of the question whether the unlawful meeting-attendance qualification may have affected the outcome of the 1963 election. 372 F. 2d 86. Because the question whether the intervening election mooted the Secretary’s action is important in the administration of the LMRDA, we granted certiorari, 387 U. S. 904, and set the case for oral argument with No. 58, Wirtz v. Local 125, Laborers’ Int’l Union, post, p. 477. We reverse.
The holding of the Court of Appeals did not rest on any explicit statutory provision that on the happening of another unsupervised election the Secretary’s cause of action should be deemed to have “ceased to exist.” California v. San Pablo & T. R. Co., 149 U. S. 308, 313. Indeed a literal reading of § 402 (b) would more reasonably compel the contrary conclusion. For no exceptions are admitted by the unambiguous wording that when “the violation of § 401 may have affected the outcome of an election, the court shall declare the election, if any, to be void and direct the conduct of a new election under supervision of the Secretary . . . .” (Emphasis supplied.)
Nonetheless, this does not end the inquiry. We have cautioned against a literal reading of congressional labor legislation; such legislation is often the product of conflict and compromise between strongly held and opposed views, and its proper construction frequently requires consideration of its wording against the background of its legislative history and in the light of the general objectives Congress sought to achieve. See, e. g., National Woodwork Mfrs. Assn. v. NLRB, 386 U. S. 612, 619. The LMRDA is'no exception.
A reading of the legislative history of the LMRDA, and of Title IV in particular, reveals nothing to indicate any consideration of the possibility that another election might intervene before a final judicial decision of the Secretary’s challenge to a particular election. The only reasonable inference is-that the possibility did not occur to the Congress. We turn therefore to the question whether, in light of the objectives Congress sought to achieve, the statute may properly be construed to terminate the Secretary’s cause of action upon the fortuitous event of another unsupervised election before final judicial decision of the suit.
The LMRDA has seven subdivisions dealing with various facets both of internal union affairs and of labor-management relations. The enactment of the statute was preceded by extensive congressional inquiries upon which Congress based the findings, purposes, and policy expressed in § 2 of the Act, 29 U. S. C. § 401. Of special significance in this case are the findings that “in the public interest” remedial legislation was necessary to further the objective “that labor organizations . . . and their officials adhere to the highest standards of responsibility and ethical conduct in administering the affairs of their organizations . . . 29 U. S. C. § 401 (a), this because Congress found, “from recent investigations in the labor and management fields, that there have been a number of instances of breach of trust, corruption, disregard of the rights of individual employees, and other failures to observe high standards of responsibility and ethical conduct . . requiring “supplementary legislation that will afford necessary protection of the rights and interests of employees and the public generally as they relate to the activities of labor organizations . . . and their officers and representatives.” 29 U. S. C. §401 (b).
Title IV’s special function in furthering the overall goals of the LMRDA is to insure “free and democratic” elections. The legislative history shows that Congress weighed how best to legislate against revealed abuses in union elections without departing needlessly from its long-standing policy against unnecessary governmental intrusion into internal union affairs. The extensive and vigorous debate over Title IV manifested a conflict over the extent to which governmental intervention in this most crucial aspect of internal union affairs was necessary or desirable. In the end there emerged a “general congressional policy to allow unions great latitude in resolving their own internal controversies, and, where that fails, to utilize the agencies of Government most familiar with union problems to aid in bringing about a settlement through discussion before resort to the courts.” Calhoon v. Harvey, 379 U. S. 134, 140.
But the freedom allowed unions to run their own elections was reserved for those elections which conform to the democratic principles written into § 401. International union elections must be held not less often than once every five years and local union elections not less often than once every three years. Elections must be by secret ballot among the members in good standing except that international unions may elect their officers at a convention of delegates chosen by secret ballot. 29 U. S. C. §§ 481 (a), (b). Specific provisions insure equality of treatment in the mailing of campaign literature; require adequate safeguards to insure a fair election, including the right of any candidate to have observers at the polls and at the counting of ballots; guarantee a “reasonable opportunity” for the nomination of candidates, the right to vote without fear of reprisal, and, pertinent to the case before us, the right of every member in good standing to be a candidate, subject to “reasonable, qualifications uniformly imposed.” 29 U. S. C. §§481 (c), (e).
Even when an election violates these standards, the stated commitment is to postpone governmental intervention until the union is afforded the opportunity to redress the violation. This is the effect of the requirement that a complaining union member must first exhaust his internal union remedies before invoking the aid of the Secretary. 29 XJ. S. C. § 482 (a). And if the union denies the member relief and he makes a timely complaint to the Secretary, the Secretary may not initiate an action until his own investigation confirms that a violation of § 401 probably infected the challenged election. Moreover, the Secretary may attempt to settle the matter without any lawsuit; the objective is not a lawsuit but to “aid in bringing about a settlement through discussion before resort to the courts.” Calhoon v. Harvey, supra. And if the Secretary must finally initiate an action, the election is presumed valid until the court has adjudged it invalid. 29 U. S. C. § 482 (a). Congress has explicitly told us that these provisions were designed to preserve a “maximum amount of independence and self-government by giving every international union the opportunity to correct improper local elections.” S. Rep. No. 187, 86th Cong., 1st Sess., 21, I Leg. Hist. 417.
But it is incorrect to read these provisions circumscribing the time and basis for the Secretary’s intervention as somehow conditioning his right to relief once that intervention has been properly invoked. Such a construction would ignore the fact that Congress, although committed to minimal intervention, was obviously equally committed to making that intervention, once warranted, effective in carrying out the basic aim of Title IV. Congress deliberately gave exclusive enforcement authority to the Secretary, having “decided to utilize the special knowledge and discretion of the Secretary of Labor in order best to serve the public interest.” Calhoon v. Harvey, supra. In so doing, Congress rejected other proposals, among them plans that would have authorized suits by complaining members in their own right. And Congress unequivocally declared that once the Secretary establishes in court that a violation of § 401 may have affected the outcome of the challenged election, “the court shall declare the election . . . to be void and direct the conduct of a new election under supervision of the Secretary . . . 29 U. S. C. § 482 (c). (Emphasis supplied.)
We cannot agree that this statutory scheme is satisfied by the happenstance intervention of an unsupervised election. The notion that the unlawfulness infecting the challenged election should be considered as washed away by the following election disregards Congress’ evident conclusion that only a supervised election could offer assurance that the officers who achieved office as beneficiaries of violations of the Act would not by some means perpetuate their unlawful control in the succeeding election. That conclusion was reached in light of the abuses surfaced by the extensive congressional inquiry showing how incumbents’ use of their inherent advantage over potential rank and file challengers established and perpetuated dynastic control of some unions. See S. Rep. No. 1417, 85th Cong., 2d Sess. These abuses were among the “number of instances of breach of trust . . . [and] disregard of the rights of individual employees . . .” upon which Congress rested its decision that the legislation was required in the public interest. Congress chose the alternative of a supervised election as the remedy for a § 401 violation in the belief that the protective presence of a neutral Secretary of Labor would best prevent the unfairness in the first election from infecting, directly or indirectly, the remedial election. The choice also reflects a conclusion that union members made aware of unlawful practices could not adequately protect their own interests through an unsupervised election. It is clear, therefore, that the intervention of an election in which the outcome might be as much a product of unlawful circumstances as the challenged election cannot bring the Secretary’s action to a halt. Aborting the exclusive statutory remedy would immunize a proved violation from further attack and leave unvindicated the interests protected by § 401. Title IV was not intended to be so readily frustrated.
Respondent argues that granting the Secretary relief after a supervening election would terminate the new officers’ tenure prematurely on mere suspicion. But Congress, when it settled on the remedy of a supervised election, considered the risk of incumbents’ influence to be substantial, not a mere suspicion. The only assurance that the new officers do in fact hold office by reason of a truly fair and a democratic vote is to do what the Act requires, rerun the election under the Secretary’s supervision.
The Court of Appeals concluded that it would serve “no practical purpose” to void an old election once the terms of office conferred have been terminated by a new election. We have said enough to demonstrate the fallacy of this reasoning: First, it fails to consider the incumbents’ possible influence on the new election. Second, it seems to view the Act as designed merely to protect the right of a union member to run for a particular office in a particular election. But the Act is not so limited, for Congress emphatically asserted a vital public interest in assuring free and democratic union elections that transcends the narrower interest of the complaining union member.
We therefore hold that when the Secretary of Labor proves the existence of a § 401 violation that may have affected the outcome of a challenged election, the fact that the union has already conducted another unsupervised election does not deprive the Secretary of his right to a court order declaring the challenged election void and directing that a new election be conducted under his supervision.
The judgment of the Court of Appeals is reversed and the case remanded to that court with direction to decide the merits of the Secretary’s appeal.
It is so ordered.
Mr. Justice Marshall took no part in the consideration or decision of this case.
LMRDA § 402, 29 U. S. C. § 482:
“(a) A member of a labor organization—
“(1) who has exhausted the remedies available under the constitution and bylaws of such organization and of any parent body, or
“(2) who has invoked such available remedies without obtaining a final decision within three calendar months after their invocation, may file a complaint with the Secretary within one calendar month thereafter alleging the violation of any provision of section 401 (including violation of the constitution and bylaws of the labor organization pertaining to the election and removal of officers). The challenged election shall be presumed valid pending a final decision thereon (as hereinafter provided) and in the interim the affairs of the organization shall be conducted by the officers elected or in such other manner as its constitution and bylaws may provide.
“(b) The Secretary shall investigate such complaint and, if he finds probable cause to believe that a violation of this title has occurred and has not been remedied, he shall, within sixty days after the filing of such complaint, bring a civil action against the labor organization as an entity in the district court of the United States in which such labor organization maintains its principal office to set aside the invalid election, if any, and to direct the conduct of an election or hearing and vote upon the removal of officers under the supervision of the Secretary and in accordance with the provisions of this title and such rules and regulations as the Secretary may prescribe. . . .
“(c) If, upon a preponderance of the evidence after a trial upon the merits, the court finds—
“(2) that the violation of section 401 may have affected the outcome of an election,
the court shall declare the election, if any, to be void and direct the conduct of a new election under supervision of the Secretary and, so far as lawful and practicable, in conformity with the constitution and bylaws of the labor organization. . . .
“(d) An order directing an election, dismissing a complaint, or designating elected officers of a labor organization shall be appeal-able in the same manner as the final judgment in a civil action, but an order directing an election shall not be stayed pending appeal.”
The complaining union member invoked his internal union remedies on October 24, 1963, and, not having received a final decision within three calendar months, filed a timely complaint with the Secretary.
Article IX, § 1, of the International Constitution provided that:
“All candidates for office, before nomination, must have attended 75 per cent of the meetings for at least two years prior to the election.”
Article 4, § 12, of the Local’s bylaws provided:
“No member may be a candidate unless said member is in good standing and has attended seventy-five per cent (75%) of the regular local meetings since the last local election.”
And § 13 further provided:
"In cases where members have to work at the time of meetings, and so notify the Recording Secretary, they shall be marked present at such meetings, provided they notify the Secretary in writing within seventy-two (72) hours following the meeting. . . .”
As a consequence of the meeting-attendance requirement, only 11 of the 500-member Local were eligible to run for office in 1963. The Vice President and Financial Secretary ran for re-election unopposed and there were no candidates for Recording Secretary and for three Trustee positions. These positions were filled by appointment of members who could not have qualified as candidates under the meeting-attendance requirement.
Pending decision on the appeal, the Court of Appeals, on the Secretary’s application, remanded the case to the District Court to permit the Secretary to make a post-judgment motion to have the 1965 election declared invalid. The District Court denied the motion. That denial was also appealed to the Court of Appeals, which affirmed on the ground that “absent a complaint by a union member challenging the 1965 election, the Secretary had no authority to sue to establish the invalidity of that election.” 372 F. 2d, at 88. Our decision makes unnecessary any consideration of the correctness of that holding.
The Court of Appeals adopted the holding of the Court of Appeals for the Second Circuit in Wirtz v. Local 410, IUOE, 366 F. 2d 438. The Court of Appeals for the Sixth Circuit in No. 58, Wirtz v. Local 125, Laborers’ Int’l Union, supra, also followed the Second Circuit.
Archibald Cox, who actively participated in shaping much of the LMRDA, has remarked:
“The legislation contains more than its share of problems for judicial interpretation because much of the bill was written on the floor of the Senate or House of Representatives and because many sections contain calculated ambiguities or political compromises essential to secure a majority. Consequently, in resolving them the courts would be well advised to seek out the underlying rationale without placing great emphasis upon close construction of the words.” Cox, Internal Affairs of Labor Unions Under the Labor Reform Act of 1959, 58 Mich. L. Rev. 819, 852 (1960).
There are references to the desirability of expeditious determinations of the Secretary’s suits, but it is clear from the contexts in which they appear that the concern was to settle as quickly as practicable the cloud on the incumbents’ titles to office and not to avoid possible intervention of another election. See S. Rep. No. 187, 86th Cong., 1st Sess., 21, I Leg. Hist. 417; 104 Cong. Rec. 7954, Leg. Hist. 699 (Dept. Labor 1964) (hereafter cited D. L. Leg. Hist.) (Senator Kennedy); 104 Cong. Rec. 11003, D. L. Leg. Hist. 710 (Senator Smith); cf. Cox, The Role of Law in Preserving Union Democracy, 72 Harv. L. Rev. 609, 631-634 (1959). The provision of §402 (d), 29 U. S. C. §482 (d), that “an order directing an election shall not be stayed pending appeal” is consistent with the concern that challenges to incumbents’ titles to office be resolved as quickly as possible.
The background and legislative history of the 1959 Act are discussed in Aaron, The Labor-Management Reporting and Disclosure Act of 1959, 73 Harv. L. Rev. 851 (1960); Cox, Internal Affairs of Labor Unions, supra, n. 6; Levitan & Loewenberg, The Politics and Provisions of the Landrum-Griffin Act, in Regulating Union Government 28 (Estey, Taft & Wagner eds. 1964); Rezler, Union Elections: The Background of Title IV of LMRDA, in Symposium on LMRDA 475 (Slovenko ed. 1961). And see Cox, Preserving Union Democracy, supra, n. 7, at 628-634.
Although Senator Kennedy, a principal sponsor of the legislation, counseled against mixing up the interests of providing for internal union democracy and of enacting measures concerned with relations between labor and management, see 105 Cong. Rec. 883-885, II Leg. Hist. 968-969; cf. S. Rep. No. 187, supra, n. 7, at 5-7, I Leg. Hist. 401-403, neither the debates nor the Act itself reveals unwavering adherence to this principle. See, e. g., Cox, Internal Affairs of Labor Unions, supra, n. 6, at 831-833.
“It needs no argument to demonstrate the importance of free and democratic union elections. Under the National Labor Relations and Railway Labor Acts the union which is the bargaining representative has power, in conjunction with the employer, to fix a man’s wages, hours, and conditions of employment. The individual employee may not lawfully negotiate with his employer. He is bound by the union contract. In practice, the union also has a significant role in enforcing the grievance procedure where a man’s contract rights are enforced. The Government which gives unions this power has an obligation to insure that the officials who wield it are responsive to the desires of the men and women whom they represent. The best assurance which can be given is a legal guaranty of free and periodic elections. The responsiveness of union officers to the will of the members depends upon the frequency of elections, and an honest count of the ballots. Guaranties of fairness will preserve the confidence of the public and the members in the integrity of union elections.” S. Rep. No. 187, supra, n. 7, at 20; and H. R. Rep. No. 741, 86th Cong., 1st Sess., 15-16, I Leg. Hist. 416, 773-774. See S. Rep. No. 187, supra, at 2-5, H. R. Rep. No. 741, supra, at 1-7, I Leg. Hist. 398-401, 759-765.
See S. Rep. No. 187, swpra, n. 7, at 7, I Leg. Hist. 403:
“In acting on this bill [S. 1555] the committee followed three principles: 1. The committee recognized the desirability of minimum interference by Government in the internal affairs of any private organization. . . . [I]n establishing and enforcing statutory standards great care should be taken not to undermine union self-government or weaken unions in their role as collective-bargaining agents. 2. Given the maintenance of minimum democratic safeguards and detailed essential information about the union, the individual members are fully competent to regulate union affairs. ... 3. Remedies for the abuses should be direct. . . . [T]he legislation should provide an administrative or judicial remedy appropriate for each specific problepi.”
See also ibid.: “The bill reported by the committee, while it carries out all the major recommendations of the [McClellan] committee, does so within a general philosophy of legislative restraint.”
The election title of the Senate bill referred to in the Committee Report was enacted virtually as drafted by the Senate.
See, e. g., S. Rep. No. 187, supra, n. 7, at 34, I Leg. Hist. 430:
“The committee bill places heavy reliance upon reporting and disclosure to union members, the Government and the public to effect correction of abuses where they have occurred. However, the bill also endows the Secretary oj Labor with broad power to insure effectuation of its objectives. . . .
“ ... He has power to— . . . (e) investigate violations of the election provisions and bring court actions to overturn improperly held elections and supervise conduct of new elections ....
“The committee believes that the broad powers granted to the Secretary by this bill combined with full reporting and disclosure to union members and the public provides a most effective combination of devices by which abuses can be remedied.” (Emphasis supplied.)
S. 748, 86th Cong., 1st Sess., I Leg. Hist. 84, 118-134; H. R. 8342, 86th Cong., 1st Sess., I Leg. Hist. 687, 727-729. See H. R. Conf. Rep. No. 1147, 86th Cong., 1st Sess., 35, I Leg. Hist. 939.
See, supra, at 469-470.
There is much discussion in the briefs of possible alternatives to our conclusion, such as expediting proceedings under § 402 to bring about their final decision before the next regular election, or injunc-tive relief against the conduct of that election pending final decision in the Secretary’s suit. That discussion, however, assumes a construction of the statute contrary to that which we have reached and therefore requires no comment. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. | Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case? | [
"Yes",
"No"
] | [
0
] | sc_partywinning |
No. 125.
Harsh v. Illinois Terminal Railroad Co.
Argued February 8, 1955.
Decided February 14, 1955.
Morris B. Chapman argued the cause and filed a brief for petitioner.
Fred P. Schuman and Harold G. Talley argued the cause for respondent. With them on the brief were George D. Burroughs and Gordon Burroughs.
Certiorari, 348 U. S. 809, to the Supreme Court of Illinois.
Per Curiam:
Judgment reversed. Lavender v. Kurn, 327 U. S. 645. | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. | What is the issue of the decision? | [
"comity: civil rights",
"comity: criminal procedure",
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"comity: habeas corpus",
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"comity: obscenity",
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"comity: miscellaneous",
"comity primarily removal cases, civil procedure (cf. comity, criminal and First Amendment); deference to foreign judicial tribunals",
"assessment of costs or damages: as part of a court order",
"Federal Rules of Civil Procedure including Supreme Court Rules, application of the Federal Rules of Evidence, Federal Rules of Appellate Procedure in civil litigation, Circuit Court Rules, and state rules and admiralty rules",
"judicial review of administrative agency's or administrative official's actions and procedures",
"mootness (cf. standing to sue: live dispute)",
"venue",
"no merits: writ improvidently granted",
"no merits: dismissed or affirmed for want of a substantial or properly presented federal question, or a nonsuit",
"no merits: dismissed or affirmed for want of jurisdiction (cf. judicial administration: Supreme Court jurisdiction or authority on appeal from federal district courts or courts of appeals)",
"no merits: adequate non-federal grounds for decision",
"no merits: remand to determine basis of state or federal court decision (cf. judicial administration: state law)",
"no merits: miscellaneous",
"standing to sue: adversary parties",
"standing to sue: direct injury",
"standing to sue: legal injury",
"standing to sue: personal injury",
"standing to sue: justiciable question",
"standing to sue: live dispute",
"standing to sue: parens patriae standing",
"standing to sue: statutory standing",
"standing to sue: private or implied cause of action",
"standing to sue: taxpayer's suit",
"standing to sue: miscellaneous",
"judicial administration: jurisdiction or authority of federal district courts or territorial courts",
"judicial administration: jurisdiction or authority of federal courts of appeals",
"judicial administration: Supreme Court jurisdiction or authority on appeal or writ of error, from federal district courts or courts of appeals (cf. 753)",
"judicial administration: Supreme Court jurisdiction or authority on appeal or writ of error, from highest state court",
"judicial administration: jurisdiction or authority of the Court of Claims",
"judicial administration: Supreme Court's original jurisdiction",
"judicial administration: review of non-final order",
"judicial administration: change in state law (cf. no merits: remand to determine basis of state court decision)",
"judicial administration: federal question (cf. no merits: dismissed for want of a substantial or properly presented federal question)",
"judicial administration: ancillary or pendent jurisdiction",
"judicial administration: extraordinary relief (e.g., mandamus, injunction)",
"judicial administration: certification (cf. objection to reason for denial of certiorari or appeal)",
"judicial administration: resolution of circuit conflict, or conflict between or among other courts",
"judicial administration: objection to reason for denial of certiorari or appeal",
"judicial administration: collateral estoppel or res judicata",
"judicial administration: interpleader",
"judicial administration: untimely filing",
"judicial administration: Act of State doctrine",
"judicial administration: miscellaneous",
"Supreme Court's certiorari, writ of error, or appeals jurisdiction",
"miscellaneous judicial power, especially diversity jurisdiction"
] | [
12
] | sc_issue_9 |
HAYNES v. UNITED STATES.
No. 236.
Argued October 11, 1967.
Decided January 29, 1968.
Charles Alan Wright argued the cause for petitioner. With him on the brief was Ernest E. Figari, Jr.
Harris Weinstein argued the cause for the United States. With him on the brief were Acting Solicitor General Spritzer, Assistant Attorney General Vinson, Beatrice Rosenberg and Kirby W. Patterson.
Mr. Justice Harlan
delivered the opinion of the Court.
Petitioner was charged by a three-count information filed in the United States District Court for the Northern District of Texas with violations of the National Firearms Act. 48 Stat. 1236. Two of the counts were •subsequently dismissed upon motion of the United States Attorney. The remaining count averred that petitioner, in violation of 26 U. S. C. § 5851, knowingly possessed a firearm, as defined by 26 U. S. C. § 5848 (1), which had not been registered with the Secretary of the Treasury or his delegate, as required by 26 U. S. C. § 5841. Petitioner moved before trial to dismiss this count, evidently asserting that § 5851 violated his privilege against self-incrimination, as guaranteed by the Fifth Amendment. The motion was denied, and petitioner thereupon entered a plea of guilty. The judgment of conviction was affirmed by the Court of Appeals for the Fifth Circuit. 372 F. 2d 651. We granted certiorari to examine the constitutionality under the Fifth Amendment of petitioner’s conviction. 388 U. S. 908. For reasons which follow, we reverse.
I.
Section 5851 forms part of the National Firearms Act, an interrelated statutory system for the taxation of certain classes of firearms. The Act’s requirements are applicable only to shotguns with barrels less than 18 inches long; rifles with barrels less than 16 inches long; other weapons, made from a rifle or shotgun, with an overall length of less than 26 inches; machine guns and other automatic firearms; mufflers and silencers; and other firearms, except pistols and revolvers, “if such weapon is capable of being concealed on the person ....” 26 U. S. C. §5848 (1); Treas. Reg. § 179.20, 26 CFR § 179.20. These limitations were apparently intended to guarantee that only weapons used principally by persons engaged in unlawful activities would be subjected to taxation.
Importers, manufacturers, and dealers in such firearms are obliged each year to pay special occupational taxes, and to register with the Secretary of the Treasury or his delegate. 26 U. S. C. §§ 6801, 5802. Separate taxes are imposed on the making and transfer of such firearms by persons other than those obliged to pay the occupational taxes. 26 U. S. C. §§ 5811, 5821. For purposes of these additional taxes, the acts of making and transferring firearms are broadly defined. Section 5821 thus imposes a tax on the making of a firearm “whether by manufacture, putting together, alteration, any combination thereof, or otherwise.” Similarly, to transfer encompasses “to sell, assign, pledge, lease, loan, give away, or otherwise dispose of” a firearm. 26 U. S. C. § 5848 (10).
All these taxes are supplemented by comprehensive requirements calculated to assure their collection. Any individual who wishes to make a weapon, within the meaning of § 5821 (a), is obliged, “prior to such making,” to declare his intention to the Secretary, and to provide to the Treasury his fingerprints and photograph. 26 U. S. C. § 5821 (e); Treas. Reg. § 179.78. The declaration must be “supported by a certificate of the local chief of police ... or such other person whose certificate may . .. be acceptable_” Treas. Reg. § 179.78. The certificate must indicate satisfaction that the fingerprints and photograph are those of the declarant, and that the firearm is intended “for lawful purposes.” Ibid. Any person who wishes to transfer such a weapon may lawfully do so only if he first obtains a written order from the prospective transferee on an “application form issued ... for that purpose by the Secretary.” 26 U. S. C. § 5814 (a). The application, supported by a certificate of the local chief of police, and accompanied by the transferee’s fingerprints and photograph, must be approved by the Secretary prior to the transfer. Treas. Reg. §§ 179.98, 179.99. Finally, every person possessing such a firearm is obliged to register his possession with the Secretary, unless he made the weapon, or acquired it by transfer or importation, and the Act’s requirements as to transfers, makings, and importations “were complied with.” 26 U. S. C. § 5841.
Failure to comply with any of the Act’s requirements is made punishable by fines and imprisonment. 26 U. S. C. § 5861. In addition, § 5851 creates a series of supplementary offenses; it declares unlawful the possession of any firearm which has “at any time” been transferred or made in violation of the Act’s provisions, or which “has not been registered as required by section 5841.” Finally, § 5851 provides that in prosecutions conducted under that section “possession shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such possession to the satisfaction of the jury.”
II.
At the outset, it must be emphasized that the issue in this case is not whether Congress has authority under the Constitution to regulate the manufacture, transfer, or possession of firearms; nor is it whether Congress may tax activities which are, wholly or in part, unlawful. Rather, we are required to resolve only the narrow issue of whether enforcement of § 5851 against petitioner, despite his assertion of the privilege against self-incrimination, is constitutionally permissible. • The questions necessary for decision are two: first, whether petitioner’s conviction under § 5851 is meaningfully distinguishable from a conviction under § 5841 for failure to register possession of a firearm; and second, if it is not, whether satisfaction of petitioner’s obligation to register under § 5841 would have compelled him to provide information incriminating to himself. If, as petitioner urges, his conviction under § 5851 is essentially indistinguishable from a conviction premised directly upon a failure to register under § 5841, and if a prosecution under § 5841 would have punished petitioner for his failure to incriminate himself, it would follow that a proper claim of privilege should have provided a full defense to this prosecution. To these questions we turn.
III.
The first issue is whether the elements of the offense under § 5851 of possession of a firearm “which has not been registered as required by section 5841” differ in any significant respect from those of the offense under § 5841 of failure to register possession of a firearm. The United States contends that the two offenses, despite the similarity of their statutory descriptions, serve entirely different purposes, in that the registration clause of § 5851 is intended to punish acceptance of the possession of a firearm which, despite the requirements of § 5841, was never registered by any prior possessor, while § 5841 punishes only a present possessor who has failed to register the fact of his own possession. If this construction is correct, nothing in a prosecution under § 5851 would turn on whether the present possessor had elected to register; his offense would have been complete when he accepted possession of a firearm which no previous possessor had registered. We need not determine whether this construction would be free from constitutional difficulty under the Fifth Amendment, for we have concluded that § 5851 cannot properly be construed as the United States has urged.
The United States finds support for its construction of § 5851 chiefly in the section’s use of the past tense: the act stated to be unlawful is “to possess any firearm which has not been registered as required by section 5841.” (Emphasis added.) It is contended that we may infer from this choice of tense that the failure to register must necessarily precede the accused’s acquisition of possession. We cannot derive so much from so little. We perceive no more in the draftsman’s choice of tense than the obvious fact that the failure to register must precede the moment at which the accused is charged; we find nothing which confines the clause’s application to failures to register which have occurred before a present possessor received the firearm. It follows that the phrase fastened upon by the United States is, at the least, equally consistent with the construction advanced by petitioner.
If, however, nothing further were available, it might be incumbent upon us to accept the Government’s construction in order to avoid the adjudication of a serious constitutional issue. See, e. g., Ashwander v. Valley Authority, 297 U. S. 288, 348 (concurring opinion); Crowell v. Benson, 285 U. S. 22, 62. But there are persuasive indications at hand which, in our view, preclude adoption of the position urged by the United States. Initially, we must note that each of the other two offenses defined by § 5851 indicates very specifically that the violations of the making or transfer provisions, on which the § 5851 offenses are ultimately premised, can have occurred “at any time.” An analogous phrase in the registration clause would have made plain beyond all question that the construction now urged by the United States should be accepted; if this was indeed Congress’ purpose, it is difficult to see why it did not, as it did in the other clauses, insert the few additional words necessary to make clear its wishes. The position suggested by the United States would thus oblige us, at the outset, to assume that Congress has, in this one clause, chosen a remarkably oblique and unrevealing phrasing.
Similarly, it is pertinent to note that the transfer and making clauses of § 5851 punish the receipt, as well as the possession, of firearms; the registration clause, in contrast, punishes only possession. Under the construction given § 5851 by the United States, Congress might have been expected to declare unlawful, in addition, the receipt of firearms never previously registered; indeed, the receipt of the firearm is, under that construction, the central element of the offense. Congress’ preference in the registration clause for “possession,” rather than “receipt,” is satisfactorily explicable only if petitioner’s construction of § 5851 is adopted.
Third, and more important, we find it significant that the offense defined by § 5851 is the possession of a firearm which has not been registered “as required by section 5841.” In the absence of persuasive evidence to the contrary, the clause’s final words suggest strongly that the perimeter of the offense which it creates is to be marked by the terms of the registration requirement imposed by § 5841. In turn, § 5841 indicates quite precisely that “[e]very person possessing a firearm” must, unless excused by the section’s exception, register his possession with the Secretary or his delegate. Moreover, the Treasury regulations are entirely unequivocal; they specifically provide that “[e]very person in the United States possessing a firearm (a) not registered to him,.. . must execute an application for the registration of such firearm . ...” Treas. Reg. § 179.120. (Emphasis added.)
The pertinent legislative history offers additional assistance, and points against the Government’s construction. The registration clause was inserted into § 5851 by the Excise Tax Technical Changes Act of 1958. 72 Stat. 1428. The two committee reports indicate, in identical terms, that the existing section was thought inadequate because, although it defined as an unlawful act the possession of any firearm which had been made or transferred in violation of the Firearms Act, it failed “to so define the possession of an unregistered firearm.” H. R. Rep. No. 481, 85th Cong., 1st Sess., 195; S. Rep. No. 2090, 85th Cong., 2d Sess., 212. The section as amended “specifically defines such possession of an unregistered firearm as an unlawful act.” Ibid. It is useful to note that the committees did not suggest that the failure to register must have preceded the acquisition of possession. Further, the reports indicate that the proposed amendment was intended to make available in prosecutions for possession of an unregistered firearm the presumption already contained in §5851; they conclude that the “primary purpose of this change is to simplify and clarify the law and to aid in prosecution.” H. R. Rep. No. 481, supra, at 196; S. Rep. No. 2090, supra, at 212.
We infer that the amendment was thought to have two purposes. First, it would complete the series of supplementary offenses created by § 5851, by adding to those premised on a making or transfer one bottomed on a failure to register. Second, it would facilitate the prosecution of failures to register by permitting the use of the presumption included in § 5851. It would thus “aid in prosecution” of conduct also made unlawful by § 5841. Both these purposes are fully consistent with the construction of § 5851 urged by petitioner; but only the first offers any support to the position suggested by the United States.
We are unable to escape the conclusion that Congress intended the registration clause of § 5851 to incorporate the requirements of § 5841, by declaring unlawful the possession of any firearm which has not been registered by its possessor, in circumstances in which § 5841 imposes an obligation to register. The elements of the offenses created by the two sections are therefore identical. This does not, however, fully resolve the question of whether any hazards of incrimination which stem from the registration requirement imposed by § 5841 must be understood also to inhere in prosecutions under § 5851. Two additional distinctions between the offenses have been suggested, and we must examine them.
First, it has been said that the offenses differ in emphasis, in that § 5851 chiefly punishes possession, while § 5841 punishes a failure to register. Cf. Frye v. United States, 315 F. 2d 491, 494; Castellano v. United States, 350 F. 2d 852, 854. We find this supposed distinction entirely unpersuasive, for, as we have found, the possession of a firearm and a failure to register are equally fundamental ingredients of both offenses. Second, it has been suggested that § 5841 creates a “status of unlawful possession” which, if assumed by an individual, denies to him the protection of the constitutional privilege. Castellano v. United States, supra, at 854. It has evidently been thought to follow that the privilege may be claimed in prosecutions under § 5841, but not in those under § 5851. This is no less unpersuasive; for reasons discussed in Marchetti v. United States, decided today, ante, at 51-52, we decline to hold that the performance of an unlawful act, even if there exists a statutory condition that its commission constitutes a waiver of the constitutional privilege, suffices to deprive an accused of the privilege’s protection. We hold that petitioner’s conviction under the registration clause of § 5851 is not properly distinguishable from a conviction under § 5841 for failure to register, and that both offenses must be deemed subject to any constitutional deficiencies arising under the Fifth Amendment from the obligation to register.
IY.
We must now consider whether, as petitioner contends, satisfaction of his obligation to register would have compelled him to provide information incriminating to himself. We must first mark the terms of the registration requirement. The obligation to register is conditioned simply upon possession of a firearm, within the meaning of § 6848 (1). Not every possessor of a firearm must, however, register; one who made the firearm, or acquired it by transfer or importation, need not register if the Act’s provisions as to transfers, makings, and importations “were complied with.” If those requirements were not met, or if the possessor did not make the firearm, and did not acquire it by transfer or importation, he must furnish the Secretary of the Treasury with his name, address, the place where the firearm is usually kept, and the place of his business or employment. Further, he must indicate his date of birth, social security number, and whether he has ever been convicted of a felony. Finally, he must provide a full description of the firearm. See 26 U. S. C. §5841; Treas. Reg. § 179.120; Internal Revenue Service Form 1 (Firearms).
The registration requirement is thus directed principally at those persons who have obtained possession of a firearm without complying with the Act’s other requirements, and who therefore are immediately threatened by criminal prosecutions under §§ 5861 and 5861. They are unmistakably persons “inherently suspect of criminal activities.” Albertson v. SACB, 382 U. S. 70, 79. It is true, as the United States emphasizes, that registration is not invariably indicative of a violation of the Act’s requirements; there are situations, which the United States itself styles “uncommon,” in which a possessor who has not violated the Act’s other provisions is obliged to register. Nonetheless, the correlation between obligations to register and violations can only be regarded as exceedingly high, and a prospective registrant realistically can expect that registration will substantially increase the likelihood of his prosecution. Moreover, he can reasonably fear that the possession established by his registration will facilitate his prosecution under the making and transfer clauses of § 5851. In these circumstances, it can scarcely be said that the risks of criminal prosecution confronted by prospective registrants are “remote possibilities out of the ordinary course of law,” Heike v. United States, 227 U. S. 131, 144; yet they are compelled, on pain of criminal prosecution, to provide to the Secretary both a' formal acknowledgment of their possession of firearms, and supplementary information likely to facilitate their arrest and eventual conviction. The hazards of incrimination created by the registration requirement can thus only be termed “real and appreciable.” Reg. v. Boyes, 1 B. & S. 311, 330; Brown v. Walker, 161 U. S. 591, 599-600.
We are, however, urged by the United States, for various disparate reasons, to affirm petitioner’s conviction. It is first suggested that the registration requirement is a valid exercise of the taxing powers, in that it is calculated merely to assure notice to the Treasury of all taxable firearms. We do not doubt, as we have repeatedly indicated, that this Court must give deference to Congress’ taxing powers, and to measures reasonably incidental to their exercise; but we are no less obliged to heed the limitations placed upon those powers by the Constitution’s other commands. We are fully cognizant of the Treasury’s need for accurate and timely information, but other methods, entirely consistent with constitutional limitations, exist by which such information may be obtained. See generally Counselman v. Hitchcock, 142 U. S. 547, 585. See also Adams v. Maryland, 347 U. S. 179; Murphy v. Waterfront Commission, 378 U. S. 52. Accordingly, nothing we do today will prevent the effective regulation or taxation by Congress of firearms.
Nonetheless, these statutory provisions, as now written, cannot be brought within any of the situations in which the Court has held that the constitutional privilege does not prevent the use by the United States of information obtained in connection with regulatory programs of general application. See United States v. Sullivan, 274 U. S. 259; Shapiro v. United States, 335 U. S. 1. For reasons given in Marchetti v. United States, supra, and Grosso v. United States, ante, p. 62, we have concluded that the points of significant dissimilarity between these circumstances and those in Shapiro and Sullivan preclude any proper application of those cases here. The questions propounded by § 5841, like those at issue in Albert-son, supra, are “directed at a highly selective group inherently suspect of criminal activities”; they concern, not “an essentially non-criminal and regulatory area of inquiry,” but “an area permeated with criminal statutes.” 382 U. S., at 79. There are, moreover, no records or other documents here to which any “public aspects” might reasonably be said to have attached. Compare Shapiro v. United States, supra, at 34; and Marchetti v. United States, supra.
The United States next emphasizes that petitioner has consistently contended that §§ 5841 and 5851 are unconstitutional on their face; it urges that this contention is foreclosed by the inclusion in the registration requirement of situations in which the obligation to register cannot produce incriminating disclosures. We recognize that there are a number of apparently uncommon circumstances in which registration is required of one who has not violated the Firearms Act; the United States points chiefly to the situation of a finder of a lost or abandoned firearm. Compare United States v. Forgett, 349 F. 2d 601. We agree that the existence of such situations makes it inappropriate, in the absence of evidence that the exercise of protected rights would otherwise be hampered, to declare these sections impermissible on their face. Instead, it appears, from the evidence now before us, that the rights of those subject to the Act will be fully protected if a proper claim of privilege is understood to provide a full defense to any prosecution either for failure to register under § 5841 or, under § 5851, for possession of a firearm which has not been registered.
Finally, we are asked to avoid the constitutional difficulties which we have found in §§ 5841 and 5851 by imposing restrictions upon the use by state and federal authorities of information obtained as a consequence of the registration requirement. We note that the provisions of 26 U. S. C. § 6107 are applicable to the special occupational taxes imposed by § 5801, although not, apparently, to the making and transfer taxes imposed by §§ 5811 and 5821. In these circumstances, we decline, for reasons indicated in Marchetti, supra, and Grosso, supra, to impose the restrictions urged by the United States.
We hold that a proper claim of the constitutional privilege against self-incrimination provides a full defense to prosecutions either for failure to register a firearm under § 5841 or for possession of an unregistered firearm under § 5851.
V.
It remains only to determine the appropriate disposition of this case. Petitioner has seasonably and consistently asserted a claim of privilege, but the courts below, believing the privilege inapplicable to prosecutions under § 5851, evidently did not assess the claim’s merits. It would therefore ordinarily be necessary to remand the cause to the District Court, with instructions to examine the merits of the claim. We note, however, that there can be no suggestion here that petitioner has waived his privilege, and that, moreover, the United States has conceded that petitioner’s privilege against self-incrimination must be found to have been imper-missibly infringed if his contentions as to the proper construction of §§ 5851 and 5841 are accepted. Brief for the United States 8. Accordingly, the District Court would be obliged in any additional proceeding to conclude that “there is reasonable ground to apprehend danger to the witness from his being compelled to answer.” Reg. v. Boyes, supra, at 330. It follows that any proceeding in the District Court must inevitably result in the reversal of petitioner’s conviction. We have plenary authority under 28 U. S. C. § 2106 to make such disposition of the case “as may be just under the circumstances.” See Yates v. United States, 354 U. S. 298, 327-331; Grosso v. United States, supra. It would be neither just nor appropriate to require the parties and the District Court to commence an entirely needless additional proceeding. Accordingly, the judgment of the Court of Appeals is
Reversed.
Mr. Justice Marshall took no part in the consideration or decision of this case.
Petitioner’s motion asserted merely that § 5851 was “unconstitutional,” and the order denying the motion, does not indicate more precisely the substance of petitioner’s contentions. His subsequent arguments, both in the courts below and here, have, however, consistently asserted a claim of the constitutional privilege. No suggestion is made by the Government that the claim of privilege was not sufficiently made.
Petitioner’s plea of guilty did not, of course, waive his previous claim of the constitutional privilege. See, e. g., United States v. Ury, 106 F. 2d 28.
The section provides that “It shall be unlawful for any person to receive or possess any firearm which has at any time been transferred in violation of sections 5811, 5812 (b), 5813, 5814, 5844, or 5846, or which has at any time been made in violation of section 5821, or to possess any firearm which has not been registered as required by section 5841. Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of such firearm, such possession shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such possession to the satisfaction of the jury.”
The views of a subsequent Congress of course provide no controlling basis from which to infer the purposes of an earlier Congress. See Rainwater v. United States, 356 U. S. 590, 593; United States v. Price, 361 U. S. 304, 313. Nonetheless, it is pertinent to note that the Committee on Ways and Means of the House of Representatives, while reporting in 1959 on certain proposed amendments to the Act, stated that the “primary purpose of [the Firearms Act] was to make it more difficult for the gangster element to obtain certain types of weapons. The type of weapon with which these provisions are concerned are the types it was thought would be used primarily by the gangster-type element.” H. R. Rep. No. 914, 86th Cong., 1st Sess., 2.
The section provides that “Every person possessing a firearm shall register, with the Secretary or his delegate, the number or other mark identifying such firearm, together with his name, address, place where such firearm is usually kept, and place of business or employment, and, if such person is other than a natural person, the name and home address of an executive officer thereof. No person shall be required to register under this section with respect to a firearm which such person acquired by transfer or importation or which such person made, if provisions of this chapter applied to such transfer, importation, or making, as the case may be, and if .the provisions which applied thereto were complied with.”
Indeed, so much is recognized by the Government; it has stated that “[w]e concede that if petitioner’s reading of the two provisions were right . . . petitioner’s conviction under Section 5851 would not be valid.” Brief for the United States 8.
The Government’s position is generally supported by several cases in the courts of appeals. See, in addition to the opinion below, Frye v. United States, 315 F. 2d 491; Starks v. United States, 316 F. 2d 45; Mares v. United States, 319 F. 2d 71; Sipes v. United States, 321 F. 2d 174; Taylor v. United States, 333 F. 2d 721; Castellano v. United States, 350 F. 2d 852; Pruitt v. United States, 364 F. 2d 826; Decker v. United States, 378 F. 2d 245. None of these cases, however, undertook an extended examination of the relationship between §§ 5851 and 5841. Compare Lovelace v. United States, 357 F. 2d 306, 309; and Mansfield, The Albertson Case: Conflict Between the Privilege Against Self-Incrimination and the Government’s Need for Information, 1966 Sup. Ct. Rev. 103, 158-159, n. 95.
The language in the reports was evidently taken without change or elaboration from the recommendations submitted to the House Committee on Ways and Means by the Treasury. See Hearings before House Committee on Ways and Means on Excise Tax Technical and Administrative Problems, 84th Cong., 1st Sess., 185, 211.
We note that § 5841 has several times been held to require incriminating disclosures, in violation of the Fifth Amendment privilege against self-incrimination. See Russell v. United States, 306 F. 2d 402; Dugan v. United States, 341 F. 2d 85; McCann v. United States, 217 F. Supp. 751; United States v. Fleish, 227 F. Supp. 967. See also Lovelace v. United States, supra, at 309.
In particular, the United States emphasizes the position of a finder of a lost or abandoned firearm. Brief for the United States 20.
We must note, however, that certain of these prospective registrants might be threatened by prosecution under state law for possession of firearms, or similar offenses. It is possible that such persons would be obliged, if they registered in compliance with § 5841, to provide information incriminating to themselves. Such hazards would, of course, support a proper claim of privilege. See Malloy v. Hogan, 378 U. S. 1. For illustrations of state statutes under which such prosecutions might occur, see Conn. Gen. Stat. Rev. § 53-202 (1958); Del. Code Ann., Tit. 11, § 465 (1953); Hawaii Rev. Laws § 157-8 (1955); l'owa Code §696.1 (1966); Kan. Stat. Ann. §21-2601 (1964); La. Rev. Stat. §40:1752 (1950); Minn. Stat. § 609.67 (1965); N. J. Rev. Stat., Tit. 2A, §151-50 (1953). We have discovered no state statute under which the present petitioner might have been subject to prosecution for acts registrable under § 5841, and he has not contended that registration would have incriminated him under state law.
See, for example, Sonzinsky v. United States, 300 U. S. 506; Marchetti v. United States, supra.
Again, we note that these registrants might be confronted by hazards of prosecution under state law, and that those hazards might support a proper claim of privilege. See supra, n. 11.
Section 6107 provides that “In the principal internal revenue office in each internal revenue district there shall be kept, for public inspection, an alphabetical list of the names of all persons who have paid special taxes under subtitle D or E within such district. Such list shall be prepared and kept pursuant to regulations prescribed by the Secretary or his delegate, and shall contain the time, place, and business for which such special taxes have been paid, and upon application of any prosecuting officer of any State, county, or municipality there shall be furnished to him a certified copy thereof, as of a public record, for which a fee of $1 for each 100 words or fraction thereof in the copy or copies so requested may be charged.” The special taxes to which the section refers include those imposed by 26 U. S. C. § 5801. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York. | What is the court in which the case originated? | [
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] | [
110
] | sc_caseorigin |
UNITED STATES v. LOUISIANA et al.
No. 9,
Orig.
Argued October 9, 1967.
Decided December 4, 1967.
Louis F. Claiborne argued the cause for the United States. On the brief were Solicitor General Marshall, Assistant Attorney General Weisl, Richard A. Posner and George S. Swarth.
Victor A. Sachse, Special Assistant Attorney General of Louisiana, argued the cause for defendant State of Louisiana. With him on the brief were Jack P. F. Gremillion, Attorney General, John L. Madden, Assistant Attorney General, and Paul M. Hebert, Thomas W. Leigh, W. Scott Wilkinson, J. B. Miller, Oliver P. Stock-well, J. J. Davidson and Frederick W. Ellis, Special Assistant Attorneys General.
Crawford C. Martin, Attorney General of Texas, and Houghton Brownlee, Jr., Assistant Attorney General, argued the cause for defendant State of Texas. With them on the brief were George Cowden, First Assistant Attorney General, /. Arthur Sandlin, Assistant Attorney General, A. J. Carrubi, Jr., and Price Daniel.
Mr. Justice Black
delivered the opinion of the Court.
In United States v. California (the first California case), 332 U. S. 19 (1947), we held that the States did not own the submerged lands off their coastlines and that the United States had paramount rights in these lands. Some States violently objected to this decision claiming that they had historically owned at least out to a distance of three geographical miles from their coastlines; others asserted a historical claim out to three marine leagues from their coastlines. Responding to these objections, Congress in 1953 passed the Submerged Lands Act, 67 Stat. 29, 43 U. S. C. §§ 1301-1315, which makes two entirely separate types of grants of submerged land to the States. The first is an unconditional grant allowing each coastal State to claim a seaward boundary out to a line three geographical miles distant from its “coast line.” The second is a grant conditioned upon a State’s prior history. It allows those States bordering on the Gulf of Mexico, which at the time of their entry into the Union had a seaward boundary beyond three miles, to claim this historical boundary “as it existed at the time such State became a member of the Union,” but with the maximum limitation that no State may claim more than “three marine leagues” (approximately nine miles). In United States v. Louisiana, 363 U. S. 1 (1960), we held that Texas qualified for this conditional three-league grant. We did not decide, however, what is the “coast line” from which this three-league grant is measured. That question was specifically reserved. Texas now claims that, for purposes of the three-league grant, its coastline extends to the seaward edge of artificial jetties constructed by it in the Gulf of Mexico and that it is entitled to lease certain submerged lands, portions of which lie more than three leagues from any part of the natural shoreline of Texas, but within three leagues of these jetties. The United States claims these portions for itself and invokes our original jurisdiction for a supplemental decree to that effect. The question we must decide is whether Congress intended that this grant, based as it is on the historical boundaries of the State, be measured from artificial jetties constructed many years after the State’s entry into the Union. For reasons to be stated we reject Texas’ contention and hold, as the Act clearly says, that its three-league claim must be measured to “such boundary as it existed at the time such State became a member of the Union.”
Texas relies heavily on this Court’s prior decision in the second California case, United States v. California, 381 U. S. 139 (1965). Our opinion there, however, dealt, not with the conditional statutory grant we have here, but with the other unconditional grant — the congressional creation of a new and standard three-mile seaward boundary for all coastal States. While some States in the past had claimed three-mile seaward boundaries — a claim explicitly rejected by this Court in the first California case, supra — Congress made it clear by the following wording in § 4 of the Submerged Lands Act that it was establishing a new standard boundary for all coastal States: “Any State admitted subsequent to the formation of the Union which has not already done so may extend its seaward boundaries to a line three geographical miles distant from its coast line . . . 67 Stat. 31, 43 U. S. C. § 1312. The decision in the second California case, supra, held that Congress had left it up to this Court to define the “coast line” from which the standard three-mile grant was to be measured. The Court then borrowed the international definition of coastline in the Convention on the Territorial Sea and the Contiguous Zone, [1964] 15 U. S. T. (Pt. 2) 1607, T. I. A. S. No. 5639, used by the United States in its foreign relations with other countries, reasoning that “[t]his establishes a single coastline for both the administration of the Submerged Lands Act and the conduct of our future international relations .... Furthermore the comprehensiveness of the Convention provides answers to many of the lesser problems related to coastlines which, absent the Convention, would be most troublesome.” United States v. California, 381 U. S. 139, 165 (1965).
Article 8 of this Convention makes the following provision for artificially constructed extensions into the sea: “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.” [1964] 15 U. S. T. (Pt. 2) 1607, 1609. Thus, it is clear that in the case of the three-mile unconditional grant artificial jetties are a part of the coastline for measurement purposes, and if Texas were claiming under the standard three-mile grant, its argument regarding the jetties would be far more persuasive.
Texas has not claimed the standard three-mile grant, however, but has asserted ownership over three marine leagues or approximately nine miles of submerged land, and this Court has sustained that claim. United States v. Louisiana, supra. This it was allowed to do under that part of the Act providing the special conditional historical grant. There is a critical distinction, however, between this historical grant and the unconditional three-mile grant. The three-mile grant involved in the second California case is not keyed to the State’s boundary as of any particular date, but the three-league grant is keyed to a State’s boundary as of the date it entered the Union. This is clear from the words of § 2 (a) of the Act which state that the historical grant extends “to the boundary line of each such State where in any case such boundary as it existed at the time such State became a member of the Union . . . extends seaward (or into the Gulf of Mexico) beyond three geographical miles_” 67 Stat. 29, 43 U. S. C. § 1301. (Emphasis added.) This meaning is reinforced by the wording of § 4 which states that “[n]othing in this section is to be construed as questioning or in any manner prejudicing the existence of any State’s seaward boundary beyond three geographical miles if it was so provided by its constitution or laws prior to or at the time such State became a member of the Union . . . .” 43 U. S. C. § 1312. (Emphasis added.) This historical grant of three marine leagues is, through § 2 (b) of the Act, made to apply only to those States bordering the Gulf of Mexico. 43 U. S. C. § 1301.
In effect what Congress has done is to take into consideration the special historical situations of a few Gulf States and provide that where they can prove ownership to submerged lands in excess of three miles at the time they entered the Union, these historical lands will be granted to them up to a limitation of three marine leagues. No new state boundary is being created, but a State which qualifies simply is being given the same area it had when it entered the Union. Unlike the three-mile grant where this Court held that Congress left boundary definitions up to it, here Congress granted land the boundaries of which are determined by fixed historical facts. This is clear from the wording of the statute itself. In making the three-mile grant Congress speaks in terms of “three geographical miles distant from its coast line.” 43 U. S. C. § 1312. (Emphasis added.) In the three-league grant, however, the term “coast line” is omitted and in its place the word “boundary” is used with the following express qualification: “as it existed at the time such State became a member of the Union . . . ,” No definitions are required by this Court and there is no need to resort to international law; Texas has simply been given that amount of submerged land it owned when it entered the Union.
Thus, the State of Texas, which has been allowed by the United States to claim a larger portion of submerged lands because of its historical situation, is limited in its claim by fixed historical boundaries. It may not combine the best features of both grants in order to carve out the largest possible area for itself. If it wishes to take advantage of the present three-mile grant then it may use its present coastline as defined by Article 8 of the Convention on the Territorial Sea and the Contiguous Zone, supra, to include artificial jetties. But if Texas wishes to take under the more expansive historical grant, it must use boundaries as they existed in 1845 when Texas was admitted to the Union. At that time there were no artificial jetties in existence so obviously they are not considered.
It cannot be ignored that the application of the Convention to Texas here would allow Texas, unlike all other States except Florida, to expand its own state boundaries beyond the congressional limitation simply because of a rule governing the relationships between maritime nations of the world. This is a domestic dispute which must be governed by the congressional grant. There is no reason why an international treaty should be applied when it simply works to take away land from the United States in order to give to Texas more land than it ever claimed historically. We cannot believe that Congress intended such a result.
Thus, we hold today that the congressional grant to Texas of three marine leagues of submerged land is measured by the historical state boundaries “as they existed” in 1845 when Texas was admitted into the Union. The United States is entitled to a supplemental decree to this effect, and we grant 60 days to each of the parties in which to submit proposed supplemental decrees for our consideration.
The Chief Justice and Mr. Justice Marshall took no part in the consideration or decision of this case.
Louisiana was the only State to raise the question and our answer was as follows: “We decide now only that Louisiana is entitled to submerged-land rights to a distance no greater than three geographical miles from its coastlines, wherever those lines may ultimately be shown to be.” 363 U. S., at 79. (Emphasis added.)
In United States v. Florida, 363 U. S. 121 (1960), we held that Florida also was entitled to the historical three-league grant. Since historical claims by the other Gulf States of Louisiana, Mississippi, and Alabama were rejected in United States v. Louisiana, 363 U. S. 1 (1960), Texas and Florida are the only two States which qualify for the expansive grant of three marine leagues instead of the grant of three miles. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent. | Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented? | [
"Yes",
"No"
] | [
1
] | sc_lcdisagreement |
NEW HAMPSHIRE v. MAINE
No. 64,
Orig.
Decided June 14, 1976
Decree entered October 3, 1977
DECREE
The joint motion for entry of a final decree is granted.
It Is Ordered, Adjudged, and Decreed as Follows:
1. The Report of the Special Master is hereby approved, and the motion for entry of judgment by consent of plaintiff and defendant is granted.
2. This judgment determines the lateral marine boundary line between New Hampshire and Maine from the inner Portsmouth Harbor to the breakwater at the end of the inner Gosport Harbor in the Isles of Shoals.
3. The Order of the King in Council of April 9, 1740, in pertinent part, provided:
“And as to the Northern Boundary between the said Provinces, the Court Resolve and Determine, That the Dividing Line shall pass up thro the Mouth of Piscataqua Harbour and up the Middle of the River into the River of Newichwannock (part of which is now called Salmon Falls) and thro the Middle of the same to the furthest Head thereof and from thence North two Degrees Westerly until One Hundred and Twenty Miles be finished from the Mouth of Piscataqua Harbour aforesaid or until it meets with His Majestys other Governments And That the Dividing Line shall part the Isles of Shoals and run thro the Middle of the Harbour between the Islands to the Sea on the Southerly Side; and that the Southwesterly part of the said Islands shall lye in and be accounted part of the Province of New Hampshire And that the North Easterly part thereof shall lye in, and be accounted part of the Province of the Massachusets Bay and be held and enjoyed by the said Provinces respectively in the same manner as they now do and have heretofore held and enjoyed the same . . .
4. The terms “Middle of the River” and “Middle of the Harbour,” as used in the above-quoted Order, mean the middle of the main channel of navigation of the Piscataqua River and the middle of the main channel of navigation o-f Gosport Harbor.
5. The middle of the main channel of navigation of the Piscataqua River, commencing in the vicinity of Fort Point, New Hampshire, and Fishing Island, Maine, proceeding southward, is as indicated by the range lights located in the vicinity of Pepperrell Cove, Kittery Point, Maine, and it follows the range line as marked on the Coast and Geodetic Survey Chart 211, 8th Edition, Dec. 1, 1973.
6. The main channel of navigation of the Piscataqua River terminates at a point whose position is latitude 43°02/42.5// North and longitude 70°42/06// West. Said point has a computed bearing of 194°44'47.47" true and a computed distance of 1,554.45 metres (1,700 yards) from the Whaleback Lighthouse, No. 19, USCG-158, whose position is latitude 43°03'31.213" North and longitude 70°41/48.515// West (reference National Geodetic Survey).
7. The middle of the main channel of navigation of Gosport Harbor passes through a point indicated by the bottom of the BW “IS” Bell Buoy symbol as shown on Coast and Geodetic Survey Chart 211, 8th Edition, Dec. 1, 1973. The position of this point is latitude 42°58/51.6" North and longitude 70o37'17.5" West as scaled from the above-described chart.
8. The main channel of navigation of Gosport Harbor terminates at a point whose position is latitude 42°58/55" North and longitude 70°37/39.5" West. Said point has a computed bearing of 394°08/52.81" true and a computed distance of 1,674.39 metres (1,831 yards) from the Isles of Shoals Lighthouse, No. 20, USCG-158, whose position is latitude 42o58'01.710" North and longitude 70°37/25.590,/ West (reference National Geodetic Survey).
9. The lateral marine boundary between New Hampshire and Maine connecting the channel termination points described in paragraphs (6) and (8) above has been determined on the basis of the “special circumstances” exception to Article 12 of the Convention on the Territorial Sea and the Contiguous Zone (15 U. S. Treaties 1608) and of the location of the Isles of Shoals which were divided between the two States in their colonial grants and charters.
10. The lateral marine boundary line between New Hampshire and Maine connecting the channel termination points described above is the arc of a great circle (appears as a straight line on a Mercator projection) whose computed length is 9,257.89 metres (10,124.53 yards).
11. The lateral marine boundary line between New Hampshire and Maine from the Piscataqua River channel termination point proceeds toward Gosport Harbor channel termination point on a computed bearing of 139°20/27.22" true.
12. The lateral marine boundary line between New Hampshire and Maine from the Gosport Harbor channel termination point proceeds toward Piscataqua River channel termination point on a computed bearing of 319°17'25.43" true.
13. All positions in the preceding paragraphs are referred to the North American Datum of 1927.
14. The boundary line delimited hereinabove is depicted by a heavy black line with the words “Maine” and “New Hampshire” above and below that line on the Coast and Geodetic Survey Chart 211, 8th Edition, Dec. 1, 1973, filed with the Motion for Entry of Judgment by Consent.
15. The State of Maine, its officers, agents, representatives and citizens, are perpetually enjoined from disputing the sovereignty, jurisdiction and dominion of New Hampshire over the area adjudged to her by this decree; and the State of New Hampshire, its officers, agents, representatives and citizens, are perpetually enjoined from disputing the sovereignty, jurisdiction and dominion of Maine over the area adjudged to her by this decree.
16. The costs of this action shall be equally divided between the two States, and this case is retained on the docket for further orders, in fulfillment of the provisions of this decree. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the petitioner. If the petitioner is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials. | What state is associated with the petitioner? | [
"Alabama",
"Alaska",
"American Samoa",
"Arizona",
"Arkansas",
"California",
"Colorado",
"Connecticut",
"Delaware",
"District of Columbia",
"Federated States of Micronesia",
"Florida",
"Georgia",
"Guam",
"Hawaii",
"Idaho",
"Illinois",
"Indiana",
"Iowa",
"Kansas",
"Kentucky",
"Louisiana",
"Maine",
"Marshall Islands",
"Maryland",
"Massachusetts",
"Michigan",
"Minnesota",
"Mississippi",
"Missouri",
"Montana",
"Nebraska",
"Nevada",
"New Hampshire",
"New Jersey",
"New Mexico",
"New York",
"North Carolina",
"North Dakota",
"Northern Mariana Islands",
"Ohio",
"Oklahoma",
"Oregon",
"Palau",
"Pennsylvania",
"Puerto Rico",
"Rhode Island",
"South Carolina",
"South Dakota",
"Tennessee",
"Texas",
"Utah",
"Vermont",
"Virgin Islands",
"Virginia",
"Washington",
"West Virginia",
"Wisconsin",
"Wyoming",
"United States",
"Interstate Compact",
"Philippines",
"Indian",
"Dakota"
] | [
33
] | sc_petitionerstate |
SWENSON, WARDEN v. BOSLER.
No. 759.
Decided March 13, 1967.
Norman H. Anderson, Attorney General of Missouri, and J. Gordon Siddens and Howard L. McFadden, Assistant Attorneys General, for petitioner.
Per Curiam.
Petitioner seeks certiorari from a judgment of the Court of Appeals holding invalid under the doctrine of Douglas v. California, 372 U. S. 353, the State of Missouri’s former practice of deciding direct criminal appeals by convicted indigent defendants without the appointment of appellate counsel. We grant the writ of certiorari and, for the reasons below, we affirm.
Under Missouri criminal practice, a convicted defendant’s motion for new trial must set forth in detail his specific' grounds for relief; and in general, a Missouri appellate court may not consider on appeal questions which were not first presented to the trial court in a motion, for new trial. See State v. Mallory, 336 S. W. 2d 383 (Mo. Sup. Ct.), cert. denied, 364 U. S. 852; State v. Davis, 251 S. W. 2d 610, 615-616 (Mo. Sup. Ct.); Mo. Sup. Ct. Rule Crim. Proc. 27.20. Prior to March 1,1964, Missouri had no rule requiring appointment of appellate counsel for indigent defendants. If trial counsel filed a motion for new trial and ñotice of appeal and then withdrew from the case, the Supreme Court of Missouri would require preparation of. the transcript for appeal and then would consider the questions raised by the motion for new trial on the basis of pro se briefs by the defendant-appellant, or on no briefs at all. This is what occurred in this case. We agree with the Court of Appeals that this procedure violated respondent’s Fourteenth Amendment rights, as defined in Douglas, even though respondent’s trial counsel filed the notice of appeal and a motion for new trial which specifically designated the issues which could be considered on direct appeal. The assistance of appellate counsel in preparing and submitting a brief to the appellate court which defines the legal principles upon which the claims of error are based and which designates and interprets the relevant portions of the trial transcript may well be of substantial benefit to the defendant. This .advantage may not be denied to a criminal defendant, solely because of his indigency, on the only appeal which the State affords him as a matter of right.
Petitioner contends that, since the District Court did not hold a hearing to determine whether respondent actually requested the appointment of appellate counsel, the record as it presently exists does not support the Court of Appeals’ express conclusion that respondent did make such a request. Respondent included in the appendix to his petition to the District Court a copy of the full transcript of his.Missouri trial, the accuracy of which petitioner does not contest. We think the documents contained in this transcript demonstrate that respondent did indicate to the Missouri courts his desire for counsel on appeal. But even if such a request had not been made, we do not think its absence would amount, to a waiver of respondent’s rights. It is now settled “that where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request.” Carnley v. Cochran, 369 U. S. 506, 513. When a defendant whose indigency and desire to appeal are manifest does not have the services of his trial counsel on appeal, it simply cannot be inferred from defendant’s failure specifically to request appointment of appellate counsel that he has knowingly and intelligently waived his right to the appointment of appellate counsel.
Affirmed..
On July 9, 1963, after the Douglas decision, Missouri altered its appellate practice by adding Subsection (c) to Rule 29.01' of the. Supreme Court’s Rules of Criminal Procedure, effective March 1, 1964:
■ “(c) When a defendant is convicted of a felony, is sentenced therefor and desires to appeal, if it appears from a showing of indigency that the defendant is unable to employ counsel the trial court shall appoint counsel to represent him upon such appeal; such counsel may, in the discretion of the court, be the same counsel who represented the defendant at the trial or other counsel.” | What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations | What is the ideological direction of the decision reviewed by the Supreme Court? | [
"Conservative",
"Liberal",
"Unspecifiable"
] | [
1
] | sc_lcdispositiondirection |
POE et al. v. GERSTEIN et al.
No. 73-1283.
Decided June 3, 1974
Per Curiam.
A three-judge District Court entered a declaratory judgment holding unconstitutional a Florida statute, Fla. Stat. Ann. §458.22 (3) (Supp. 1974-1975), which forbids an abortion without the consent of the husband, if the woman is married, and if unmarried and under the age of 18, without the consent of a parent. Because it was anticipated that the State would respect the declaratory judgment, the court declined to issue an injunction against the enforcement of the statute. The plaintiffs in the District Court are appellants here and challenge the refusal to issue the injunction. The judgment of the District Court is affirmed in this respect. Whether or not the declaratory judgment was itself properly issued, a question on which we intimate no opinion, the District Court properly refused to issue the injunction; for there was “no allegation here and no proof that respondents would not, nor can we assume that they will not, acquiesce in the decision . . . holding the challenged ordinance unconstitutional.” Douglas v. City of Jeannette, 319 U. S. 157, 165 (1943). This aspect of Douglas v. City of Jeannette has been repeatedly recognized in later cases. Dombrowski v. Pfister, 380 U. S. 479, 484-485 (1965); Zwickler v. Koota, 389 U. S. 241, 253-254 (1967); Roe v. Wade, 410 U. S. 113, 166-167 (1973). It is unnecessary to deal separately with the question whether the District Court was correct in denying intervention in the District Court to other parties who are appellants here; for assuming they are to be considered proper parties in the District Court and in this Court, we would affirm the denial of the injunction as to them for the same reasons we affirm the denial of such relief to appellants who were plaintiffs below.
So ordered. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. | Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case? | [
"Yes",
"No"
] | [
1
] | sc_partywinning |
REES v. PEYTON, PENITENTIARY SUPERINTENDENT.
No. 321,
Misc.
Decided May 31, 1966.
S. White Rhyne, Jr., and Charles A. Dukes, Jr., for petitioner.
Reno S. Harp III, Assistant Attorney General of Virginia, for respondent.
Monroe H. Freedman and Melvin L. Wulf for the American Civil Liberties Union et al., as amici curiae, in support of the petition.
Per Curiam.
Following a related federal conviction and life sentences for kidnapping, United States v. Rees, 193 F. Supp. 849, Melvin Davis Rees, Jr., was convicted of murder and sentenced to death by a state court in Virginia, and the judgment was affirmed on appeal in 1962. Rees v. Commonwealth, 203 Va. 850, 127 S. E. 2d 406, cert. denied, 372 U. S. 964. Thereafter, a habeas corpus petition was filed in the United States District Court for the Eastern District of Virginia, alleging that the state court conviction had violated federal constitutional rights of Rees. The District Court rejected these claims, 225 F. Supp. 507, and the Court of Appeals for the Fourth Circuit affirmed, 341 F. 2d 859. With Rees’ consent, his counsel then filed in this Court on June 23, 1965, the present petition for certiorari to review the Court of Appeals’ decision, and the petition is therefore properly before us for disposition.
Nearly one month after this petition had been filed, Rees directed his counsel to withdraw the petition and forgo any further legal proceedings. Counsel advised this Court that he could not conscientiously accede to these instructions without a psychiatric evaluation of Rees because evidence cast doubt on Rees’ mental competency. After further letters from Rees to his counsel and to this Court maintaining his position, counsel had Rees examined by a psychiatrist who filed a detailed report concluding that Rees was mentally incompetent. Psychiatrists selected by the State who sought to examine Rees at the state prison found themselves thwarted by his lack of cooperation, but expressed doubts that he was insane.
Whether or not Rees shall be allowed in these circumstances to withdraw his certiorari petition is a question which it is ultimately the responsibility of this Court to determine, in the resolution of which Rees’ mental competence is of prime importance. We have therefore determined that, in aid of the proper exercise of this Court’s certiorari jurisdiction, the Federal District Court in which this proceeding commenced should upon due notice to the State and all other interested parties make a judicial determination as to Rees’ mental competence and render a report on the matter to us. While other courses have been suggested, cf. Anderson v. Kentucky, 376 U. S. 940, we think that all things considered the initial step should be the one just indicated. Until that step has been taken, we do not consider ourselves in a position to determine what disposition should be made of Rees’ petition for certiorari.
Accordingly, we shall retain jurisdiction over the cause in this Court and direct the District Court to determine Rees’ mental competence in the present posture of things, that is, whether he has capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises. To that end, it will be appropriate for the District Court to subject Rees to psychiatric and other appropriate medical examinations and, so far as necessary, to temporary federal hospitalization for this purpose. Cf. 18 U. S. C. §§4244-4245 (1964 ed.). If the State wishes to obtain additional evidence for the federal inquiry by examining Rees in its own facilities, we do not foreclose such a supplemental course of action. The District Court will hold such hearings as it deems suitable, allowing the State and all other interested parties to participate should they so desire, and will report its findings and conclusions to this Court with all convenient speed.
It is so ordered. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state. | What is the court whose decision the Supreme Court reviewed? | [
"U.S. Court of Customs and Patent Appeals",
"U.S. Court of International Trade",
"U.S. Court of Claims, Court of Federal Claims",
"U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces",
"U.S. Court of Military Review",
"U.S. Court of Veterans Appeals",
"U.S. Customs Court",
"U.S. Court of Appeals, Federal Circuit",
"U.S. Tax Court",
"Temporary Emergency U.S. Court of Appeals",
"U.S. Court for China",
"U.S. Consular Courts",
"U.S. Commerce Court",
"Territorial Supreme Court",
"Territorial Appellate Court",
"Territorial Trial Court",
"Emergency Court of Appeals",
"Supreme Court of the District of Columbia",
"Bankruptcy Court",
"U.S. Court of Appeals, First Circuit",
"U.S. Court of Appeals, Second Circuit",
"U.S. Court of Appeals, Third Circuit",
"U.S. Court of Appeals, Fourth Circuit",
"U.S. Court of Appeals, Fifth Circuit",
"U.S. Court of Appeals, Sixth Circuit",
"U.S. Court of Appeals, Seventh Circuit",
"U.S. Court of Appeals, Eighth Circuit",
"U.S. Court of Appeals, Ninth Circuit",
"U.S. Court of Appeals, Tenth Circuit",
"U.S. Court of Appeals, Eleventh Circuit",
"U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)",
"Alabama Middle U.S. District Court",
"Alabama Northern U.S. District Court",
"Alabama Southern U.S. District Court",
"Alaska U.S. District Court",
"Arizona U.S. District Court",
"Arkansas Eastern U.S. District Court",
"Arkansas Western U.S. District Court",
"California Central U.S. District Court",
"California Eastern U.S. District Court",
"California Northern U.S. District Court",
"California Southern U.S. District Court",
"Colorado U.S. District Court",
"Connecticut U.S. District Court",
"Delaware U.S. District Court",
"District Of Columbia U.S. District Court",
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] | [
22
] | sc_casesource |
ALFRED DUNHILL OF LONDON, INC. v. REPUBLIC OF CUBA et al.
No. 73-1288.
Argued December 10, 1974
Reargued January 19, 1976
Decided May 24, 1976
White, J., delivered the opinion of the Court, in which Burger, C. J., and Powell, Rehnquist, and Stevens (except for Part III), JJ., joined. Powell, J., filed a concurring opinion, post, p. 715. Stevens, J., filed a concurring statement, post, p. 715. Marshall, J., filed a dissenting opinion in which Brennan, Stewart, and Blackmun, JJ., joined, post, p. 715.
Victor 8. Friedman reargued the cause and filed a supplemental brief for the petitioner. With him on the brief on the original argument was Peter D. Ehrenhaft.
Victor Rabinowitz reargued the cause for respondents. With him on the briefs on reargument were Michael Krinsky and Dorian Bowman. With him on the brief on the original argument was Mr. Bowman.
Antonin Scalia argued the cause for the United States as amicus curiae urging reversal. On the brief were Solicitor General Bork, Assistant Attorney General Lee, Deputy Solicitor General Jones, and Bruno A. Ristau.
Robert B. Fiske, Jr., and Wilmot B. Hastings filed a brief for the Bank of Boston International as amicus curiae urging reversal.
Mr. Justice White
delivered the opinion of the Court.
The issue in this case is whether the failure of respondents to return to petitioner Alfred Dunhill of London, Inc. (Dunhill), funds mistakenly paid by Dun-hill for cigars that had beén sold to Dunhill by certain expropriated Cuban cigar businesses was an “act of state” by Cuba precluding an affirmative judgment against respondents.
I
The rather involved factual and legal context in which this litigation arises is fully set out in the District Court’s opinion in this ease, Menendez v. Faber, Coe & Gregg, Inc., 345 F. Supp. 527 (SDNY 1972), and in closely related litigation, F. Palicio y Compania, S. A. v. Brush, 256 F. Supp. 481 (SDNY 1966), aff’d, 375 F. 2d 1011 (CA2), cert. denied, 389 U. S. 830 (1967). For present purposes, the following recitation will suffice. In 1960, the Cuban Government confiscated the business and assets of the five leading manufacturers of Havana cigars. These companies, three corporations and two partnerships, were organized under Cuban law. Virtually all of their owners were Cuban nationals. None were American, These companies sold large quantities of cigars to customers in other countries, including the United States, where the three principal importers were Dunhill, Saks & Co. (Saks), and Faber, Coe & Gregg, Inc. (Faber). The Cuban Government named “interventors” to take possession of and operate the business of the seized Cuban concerns. Interventors continued to ship cigars to foreign purchasers, including the United States importers.
This litigation began when the former owners of the Cuban companies, most of whom had fled to the United States, brought various actions against the three American importers for trademark infringement and for the purchase price of any cigars that had been shipped to importers from the seized Cuban plants and that bore United States trademarks claimed by the former owners to be their property. Following the conclusion of the related litigation in F. Palicio y Compania, S. A. v. Brush, supra, the Cuban interventor and the Republic of Cuba were allowed to intervene in these actions, which were consolidated for trial. Both the former owners and the interventora had asserted their right to some $700,000 due from the three importers for postintervention shipments: Faber, $582,588.86; Dunhill, $92,949.70; and Saks, $24,250. It also developed that as of the date of intervention, the three importers owed sums totaling $477,200 for cigars shipped prior to intervention: Faber, $322,000; Dunhill, $148,600; and Saks, $6,600. These latter sums the importers had paid to interventora subsequent to intervention on the assumption that inter-ventora were entitled to collect the accounts receivable of the intervened businesses. The former owners claimed title to and demanded payment of these accounts.
Based on the “act of state” doctrine which had been reaffirmed in Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398 (1964), the District Court held in F. Palicio y Compania, S. A. v. Brush, supra, and here, that it was required to give full legal effect to the 1960 confiscation of the five cigar companies insofar as it purported to take the property of Cuban nationals located within Cuba. Interventora were accordingly entitled to collect from the importers all amounts due and unpaid with respect to shipments made after the date of intervention. The contrary conclusion was reached as to the accounts owing at the time of intervention: Because the United States courts will not give effect to foreign government confiscations without compensation of property located in the United States and because under Republic of Iraq v. First Nat. City Bank, 353 F. 2d 47 (CA2 1965), cert. denied, 382 U. S. 1027 (1966), the situs of the accounts receivable was with the importer-debtors, the 1960 seizures did not reach the preintervention accounts, and the former owners, rather than the interventors, were entitled to collect them from the importers — even though the latter had already paid them to interventors in the mistaken belief that they were fully discharging trade debts in the ordinary course of their business.
This conclusion brought to the fore the importers’ claim that their payment of the preintervention accounts had been made in error and that they were entitled to recover these payments from interventors by way of set-off and counterclaim. Although their position that the 1960 confiscation entitled them to the sums due for pre-intervention sales had been rejected and the District Court had ruled that they "had no right to receive or retain such payment,” interventors claimed those payments on the additional ground that the obligation, if any, to repay was a quasi-contractual debt having a situs in Cuba and that their refusal to honor the obligation was an act of state not subject to question in our courts. The District Court rejected this position for two reasons. First, the repayment obligated was more properly deemed situated in the United States and hence remained unaffected by any purported confiscatory act of the Cuban Government. Second, in the District Court’s view, nothing had occurred which qualified for recognition as an act of state:
“[TJhere was no formal repudiation of these obligations by Cuban Government decree of general application or otherwise. . . . Here, all that occurred was a statement by counsel for the interventors, during trial, that the Cuban Government and the inter-ventors denied liability and had refused to make repayment. This statement was made after the interventors had invoked the jurisdiction of this Court in order to pursue their claims against the importers for post-intervention shipments. It is hard to conceive how, if such a statement can be elevated to the status of an act of state, any refusal by any state to honor any obligation at any time could be considered anything else.” 345 F. Supp., at 545.
The importers were accordingly held entitled to set off their mistaken payments to interventors for preintervention shipments against the amounts due from them for their post-intervention purchases. Faber and Saks, because they owed more than interventors were obligated to return to them, were satisfied completely by the right to setoff. But Dunhill — and at last we arrive at the issue in this case — was entitled to more from interven-tors — $148,000—than it owed for postintervention shipments — $93,000—and to be made whole, asked for and was granted judgment against interventors for the full amount of its claim, from which would be deducted the smaller judgment entered against it.
The Court of Appeals, Menendez v. Saks & Co., 485 F. 2d 1355 (CA2 1973), agreed that the former owners were entitled to recover from the importers the full amount of preintervention accounts receivable. It also held that the mistaken payments by importers to inter-ventors gave rise to a quasi-contractual obligation to repay these sums. But, contrary to the District Court, the Court of Appeals was of the view that the obligation to repay had a situs in Cuba and had been repudiated in the course of litigation by conduct that was sufficiently official to be deemed an act of state: “[I]n the absence of evidence that the interventors were not acting within the scope of their authority as agents of the Cuban government, their repudiation was an act of state even though not embodied in a formal decree.” Id., at 1371. Although the repudiation of the interventors' obligation was considered an act of state, the Court of Appeals went on to hold that First Nat. City Bank v. Banco Nacional de Cuba, 406 U. S. 759 (1972), entitled importers to recover the sums due them from interventors by way of set-off against the amounts due from them for postintervention shipments. The act of state doctrine was said to bar the affirmative judgment awarded Dunhill to the extent that its claim exceeded its debt. The judgment of the District Court was reversed in this respect, and it is this action which was the subject of the petition for certio-rari filed by Dunhill. In granting the petition, 416 U. S. 981 (1974), we requested the parties to address certain questions, the first being whether the statement by counsel for the Republic of Cuba that Dunhill’s unjust-enrichment claim would not be honored constituted an act of state. The case was argued twice in this Court. We have now concluded that nothing in the record reveals an act of state with respect to interventors’ obligation to return monies mistakenly paid to them. Accordingly we reverse the judgment of the Court of Appeals.
II
The District Court and the Court of Appeals held that for purposes of this litigation interventors were not entitled to the preintervention accounts receivable by virtue of the 1960 confiscation and that, despite other arguments to the contrary, nothing based on their claim to those accounts entitled interventors to retain monies mistakenly paid on those accounts by importers. We do not disturb these conclusions. The Court of Appeals nevertheless observed that interventors had “ignored” demands for the return of the monies and had “fail[ed] to honor the importers’ demand (which was confirmed by the Cuban government’s counsel at trial).” This conduct was considered to be “the Cuban government’s repudiation of its obligation to return the funds” and to constitute an act of state not subject to question in our courts. Menendez v. Saks & Co., 485 F. 2d; at 1369, 1371. We cannot agree.
If interventors, having had their liability adjudicated and various defenses rejected, including the claimed act of state, with respect to preintervention accounts, represented by the Cuban confiscation in 1960, were nevertheless to escape repayment by claiming a second and later act of state involving the funds mistakenly paid them, it was their burden to prove that act., Concededly, they declined to pay over the funds; but refusal to repay does not necessarily assert anything more than what interventors had claimed from the outset and what they have continued to claim in this Court — that the pre-intervention accounts receivable were theirs and that they had no obligation to return payments on those accounts. Neither does it demonstrate that in addition to authority to operate commercial businesses, to pay their bills and to collect their accounts receivable, inter-ventors had been invested with sovereign authority to repudiate all or any part of the debts incurred by those businesses. Indeed, it is difficult to believe that they had the power selectively to refuse payment of legitimate debts arising from the operation of those commercial enterprises.
In The “Gul Djemal,” 264 U. S. 90 (1924), a supplier libeled and caused the arrest of the Gul Djemal, a steamship owned and operated for commercial purposes by the Turkish Government, in an effort to recover for supplies and services sold to and performed for the ship. The ship’s master, “a duly commissioned officer of the Turkish Navy,” id., at 94-95, appeared in court and asserted sovereign immunity, claiming that such an assertion defeated the court’s' jurisdiction. A direct appeal was taken to this Court, where it was held that the master’s assertion of sovereign immunity was insufficient because his mere representation of his government as master of a commercial ship furnished no basis for assuming he was entitled to represent the sovereign in other capacities. Here there is no more reason to suppose that the inter-ventors possess governmental, as opposed to commercial, authority than there was to suppose that the master of the Gul Djemal possessed such authority. The master of the Gul Djemal claimed the authority to assert sovereign immunity while the interventors claim that they had the authority to commit an act of state, but the difference is unimportant. In both cases, a party claimed to have had the authority to exercise sovereign power. In both, the only authority shown is commercial authority.
We thus disagree with the Court of Appeals that the mere refusal of the interventors to repay funds followed by a failure to prove that interventors “were not acting within the scope of their authority as agents of the Cuban government” satisfied respondents’ burden of establishing their act of state defense. Menendez v. Saks & Co., 485 F. 2d, at 1371. Nor do we consider Underhill v. Hernandez, 168 U. S. 250 (1897), heavily relied upon by the Court of Appeals, to require a contrary conclusion. In that case and in Oetjen v. Central Leather Co., 246 U. S. 297 (1918), and Ricaud v. American Metal Co., 246 U. S. 304 (1918), it was apparently concluded that the facts were sufficient to demonstrate that the conduct in question was the public act of those with authority to exercise sovereign powers and was entitled to respect in our courts. We draw no such conclusion from the facts of the case before us now. As the District Court found, the only evidence of an act of state other than the act of nonpayment by interventors was “a statement by counsel for the interventors, during trial, that the Cuban Government and the interventors denied liability and had refused to make repayment.” Menendez v. Faber, Coe & Gregg, Inc., 345 F. Supp., at 545. But this merely restated respondents’ original legal position and adds little, if anything, to the proof of an act of state. No statute, decree, order, or resolution of the Cuban Government itself was offered in evidence indicating that Cuba had repudiated its obligations in general or any class thereof or that it had as a sovereign matter determined to confiscate the amounts due three foreign importers.
Ill
If we assume with the Court of Appeals that the Cuban Government itself had purported to exercise sovereign power to confiscate the mistaken payments belonging to three foreign creditors and to repudiate interventors’ adjudicated obligation to return those funds, we are nevertheless persuaded by the arguments of petitioner and by those of the United States that the concept of an act of state should not be extended to include the repudiation of a purely commercial obligation owed by a foreign sovereign or by one of its commercial instrumentalities. Our cases have not yet gone so far, and we decline to expand their reach to the extent necessary to affirm the Court of Appeals.
Distinguishing between the public and governmental acts of sovereign states on the one hand and their private and commercial acts on the other is not a novel approach. As the Court stated through Mr. Chief Justice Marshall long ago in Bank of the United States v. Planters’ Bank of Georgia, 9 Wheat. 904, 907 (1824):
“It is, we think, a sound principle, that when a government becomes a partner in any trading company, it divests itself, so far as concerns the transactions of that company, of its sovereign character, and takes that of a private citizen. Instead of communicating to the company its privileges and its prerogatives, it descends to a level with those with whom it associates itself, and takes the character which belongs to its associates, and to the business which is to be transacted.”
Cf. Sloan Shipyards v. United States Fleet Corp., 258 U. S. 549, 567-568 (1922). In this same tradition, South Carolina v. United States, 199 U. S. 437 (1905), drew a line for purposes of tax immunity between the historically recognized governmental functions of a State and businesses engaged in by a State of the kind which theretofore had been pursued by private enterprise. Similarly, in Ohio v. Helvering, 292 U. S. 360, 369 (1934), the Court said: “If a state chooses to go into the business of buying and selling commodities, its right to do so may be conceded so far as the Federal Constitution is concerned; but the exercise of the right is not the performance of a governmental function .... When a state enters the market place seeking customers it divests itself of its quasi sovereignty pro tanto, and takes on the character of a trader .. . .” It is thus a familiar concept that “there is a constitutional line between the State as government and the State as trader . . . .” New York v. United States, 326 U. S. 572, 579 (1946). See also Parden v. Terminal R. Co., 377 U. S. 184, 189-190 (1964); California v. Taylor, 353 U. S. 553, 564 (1957); United States v. California, 297 U. S. 175, 183 (1936).
It is the position of the United States, stated in an amicus brief filed by the Solicitor General, that such a line should be drawn in defining the outer limits of the act of state concept and that repudiations by a foreign sovereign of its commercial debts should not be considered to be acts of state beyond legal question in our courts. Attached to the brief of the United States and to this opinion as Appendix 1 is the letter of November 26, 1975, in which the Department of State, speaking through its Legal Adviser agrees with the brief filed by the Solicitor General and, more specifically, declares that “we do not believe that the Dunhill ease raises an act of state question because the case involves an act which is commercial, and not public, in nature.”
The major underpinning of the act of state doctrine is the policy of foreclosing court adjudications involving the legality of acts of foreign states on their own soil that might embarrass the Executive Branch of our Government in the conduct of our foreign relations. Banco Nacional de Cuba v. Sabbatino, 376 U. S., at 427-428, 431-433. But based on the presently expressed views of those who conduct our relations with foreign countries, we are in no sense compelled to recognize as an act of state the purely commercial conduct of foreign governments in order to avoid embarrassing conflicts with the Executive Branch. On the contrary, for the reasons to which we now turn, we fear that embarrassment and conflict would more likely ensue if we were to require that the repudiation of a foreign government’s debts arising from its operation of a purely commercial business be recognized as an act of state and immunized from question in our courts.
Although it had other views in years gone by, in 1952, as evidenced by Appendix 2 (the Tate letter) attached to this opinion, the United States abandoned the absolute theory of sovereign immunity and embraced the restrictive view under which immunity in our courts should be granted only with respect to causes of action arising out of a foreign state’s public or governmental actions and not with respect to those arising out of its commercial or proprietary actions. This has been the official policy of our Government since that time as the attached letter of November 26,1975, confirms:
“Moreover, since 1952, the Department of State has adhered to the position that the commercial and private activities of foreign states do not give rise to sovereign immunity. Implicit in this position is a determination that adjudications of commercial liability against foreign states do not impede the conduct of foreign relations, and that such adjudications are consistent with international law on sovereign immunity.”
Repudiation of a commercial debt cannot, consistent with this restrictive approach to sovereign immunity, be treated as an act of state; for if it were, foreign govern-merits, by merely repudiating the debt before or after its adjudication, would enjoy an immunity which our Government would not extend them under prevailing sovereign immunity principles in this country. This would undermine the policy supporting the restrictive view of immunity, which is to assure those engaging in commercial transactions with foreign sovereignties that their rights will be determined in the courts whenever possible.
Although at one time this Court ordered sovereign immunity extended to a commercial vessel of a foreign country absent a suggestion of immunity from the Executive Branch and although the policy of the United States with respect to its own merchant ships was then otherwise, Berizzi Bros. Co. v. S. S. Pesaro, 271 U. S. 562 (1926), the authority of that case has been severely diminished by later cases such as Ex parte Peru, 318 U. S. 578 (1943), and Mexico v. Hoffman, 324 U. S. 30 (1945). In the latter case the Court unanimously denied immunity to a commercial ship owned but not possessed by the Mexican Government. The decision rested on the fact that the Mexican Government was not in possession, but the Court declared, id., at 35-36:
“Every judicial action exercising or relinquishing jurisdiction over the vessel of a foreign government has its effect upon our relations with that government. Hence it is a guiding principle in determining whether a court should exercise or surrender its jurisdiction in such cases, that the courts should not so act as to embarrass the executive arm in its conduct of foreign affairs. 'In such cases the judicial department of this government follows the action of the political branch, and will not embarrass the latter by assuming an antagonistic jurisdiction.' United States v. Lee, supra, 209; Ex parte Peru, supra, 588.
“It is therefore not for the courts to deny an immunity which our government has seen fit to allow, or to allow an immunity on new grounds which the government has not seen fit to recognize. The judicial seizure of the property of a friendly state may be regarded as such an affront to its dignity and may so affect our relations with it, that it is an accepted rule of substantive law governing the exercise of the jurisdiction of the courts that they accept and follow the executive determination that the vessel shall be treated as immune. Ex parte Peru, supra, 588. But recognition by the courts of an immunity upon principles which the political department of government has not sanctioned may be equally embarrassing to it in securing the protection of our national interests and their recognition by other nations.” (Footnote omitted.)
In a footnote the Court expressly questioned the Berizzi Bros, holding, and two concurring Justices asserted that the Court had effectively overruled that case.
Since that time, as we have said, the United States has adopted and adhered to the policy declining to extend sovereign immunity to the commercial dealings of foreign governments. It has based that policy in part on the fact that this approach has been accepted by a large and increasing number of foreign states in the international community; in part on the fact that the United States had already adopted a policy of consenting to be sued in foreign courts in connection with suits against its merchant vessels; and in part because the enormous increase in the extent to which foreign sovereigns had become involved in international trade made essential “a practice which will enable persons doing business with them to have their rights determined in the courts.” Appendix 2 to this opinion, infra, at 714.
In the last 20 years, lower courts have concluded, in light of this Court’s decisions in Ex parte Peru, supra, and Mexico v. Hoffman, supra, and from the Tate letter and the changed international environment, that Berizzi Bros. Co. v. S. S. Pesaro, supra, no longer correctly states the law; and they have declined to extend sovereign immunity to foreign sovereigns in cases arising out of purely commercial transactions. Victory Transport, Inc. v. Comisaria General, 336 F. 2d 354 (CA2 1964), cert. denied, 381 U. S. 934 (1965); Petrol Shipping Corp. v. Kingdom of Greece, 360 F. 2d 103 (CA2), cert. denied, 385 U. S. 931 (1966); Premier S. S. Co. v. Embassy of Algeria, 336 F. Supp. 507 (SDNY 1971); Ocean Transport Co. v. Government of Republic of Ivory Coast, 269 F. Supp. 703 (ED La. 1967); ADM Milling Co. v. Republic of Bolivia, Civ. Action No. 75-946 (DC Aug. 8, 1975); Et Ve Balik Kurumu v. B. N. S. Int’l Sales Corp., 25 Misc. 2d 299, 304 N. Y. S. 2d 971 (1960); Harris & Co. Advtg., Inc. v. Republic of Cuba, 127 So. 2d 687 (Fla. Ct. App. 1961). Indeed, it is fair to say that the “restrictive theory” of sovereign immunity appears to be generally accepted as the prevailing law in this country. ALI, Restatement (Second), Foreign Relations Law of the United States, § 69 (1965).
Participation by foreign sovereigns in the international commercial market has increased substantially in recent years. Cf. International Economic Report of the President 56 (1975). The potential injury to private businessmen — and ultimately to international trade itself— from a system in which some of the participants in the international market are not subject to the rule of law has therefore increased correspondingly. As noted above, courts of other countries have also recently adopted the restrictive theory of sovereign immunity. Of equal importance is the fact that subjecting foreign governments to the rule of law in their commercial dealings presents a much smaller risk of affronting their sovereignty than would an attempt to pass on the legality of their governmental acts. In their commercial capacities, foreign governments do not exercise powers peculiar to sovereigns. Instead, they exercise only those powers that can also be exercised by private citizens. Subjecting them in connection with such acts to the same rules of law that apply to private citizens is unlikely to touch very sharply on “national nerves.” Moreover, as this Court has noted:
“[T]he greater the degree of codification or consensus concerning a particular area of international law, the more appropriate it is for the judiciary to render decisions regarding it, since the courts can then focus on the application of an agreed principle to circumstances of fact rather than on the sensitive task of establishing a principle not inconsistent with the national interest or with international justice.” Banco Nacional de Cuba v. Sabbatino, 376 U. S., at 428.
See also id., at 430 n. 34. There may be little codification or consensus as to the rules of international law concerning exercises of governmental powers, including military powers and expropriations, within a sovereign state's borders affecting the property or persons of aliens, However, more discernible rules of international law have emerged with regard to the commercial dealings of private parties in the international market. The restrictive approach to sovereign immunity suggests that these established rules should be applied to the commercial transactions of sovereign states.
Of course, sovereign immunity has not been pleaded in this case; but it is beyond cavil that part of the foreign relations law recognized by the United States is that the commercial obligations of a foreign government may be adjudicated in those courts otherwise having jurisdiction to enter such judgments. Nothing in our national policy calls on us to recognize as an act of state a repudiation by Cuba of an obligation adjudicated in our courts and arising out of the operation of a commercial business by one of its instrumentalities. For all the reasons which led the Executive Branch to adopt the restrictive theory of sovereign immunity, we hold that the mere assertion of sovereignty as a defense to a claim arising out of purely commercial acts by a foreign sovereign is no more effective if given the label “Act of State” than if it is given the label “sovereign immunity.” In describing the act of state doctrine in the past we have said that it “precludes the courts of this country from inquiring into the validity of the public acts a recognized foreign sovereign power committed within its own territory.” Banco Nacional de Cuba v. Sabbatino, supra, at 401 (emphasis added), and that it applies to “acts done within their own States, in the exercise of governmental authority.” Underhill v. Hernandez, 168 U. S., at 252 (emphasis added). We decline to extend the act of state doctrine to acts committed by foreign sovereigns in the course of their purely commercial operations. Because the act relied on by respondents in this case was an act arising out of the conduct by Cuba’s agents in the operation of cigar businesses for profit, the act was not an act of state.
Reversed.
APPENDIX 1 TO OPINION OF THE COURT
The Legal Adviser, Department of State, Washington, November SB, 1975.
Dear Mr. Solicitor General:
In the case of Alfred Dunhill of London, Inc. v. The Republic of Cuba, which is before the Supreme Court on petition for a writ of certiorari, No. 73-1288, the Court has requested the parties to discuss whether its holding in Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398, should be reconsidered.
The Department of State believes that the question of whether the Sabbatino case should be reconsidered involves matters of importance to the foreign policy interests of the United States and requests that its views be conveyed to the Supreme Court.
The views expressed herein are in addition to the arguments presented in the brief amicus curiae which the United States is filing in the Dunhill case. As urged in that brief, we do not believe that the Dunhill case raises an act of state question because the case involves an act which is commercial, and not public, in nature. Moreover, since 1952, the Department of State has adhered to the position that the commercial and private activities of foreign states do not give rise to sovereign immunity. Implicit in this position is a determination that adjudications of commercial liability against foreign states do not impede the conduct of foreign relations, and that such adjudications are consistent with international law on sovereign immunity.
In the event, however, that the Court reaches the question whether the Sabbatino holding should be reconsidered, we believe that the following considerations should be called to the Court's attention:
Since Sabbatino was decided in 1964, the Department of State has on two occasions expressed to courts in the United States its views concerning act of state adjudications. First, in the Sabbatino case itself, on remand, the Executive Branch declined to make a determination under the Hickenlooper Amendment, 22 U. S. C. 2370 (e)(2), "that application of the act of state doctrine is required in this case by the foreign policy interests of the United States.” Banco Nacional de Cuba v. Farr, 272 F. Supp. 836, 837 (S. D. N. Y.), aff’d, 383 F. 2d 166 (C. A. 2), certiorari denied, 390 U. S. 956. Having taken note of the Executive Branch’s position, the district court in Farr applied the Hickenlooper Amendment and held that a Cuban decree of confiscation violated customary international law. 272 F. Supp., at 838.
Second, in First National City Bank v. Banco Nacional de Cuba, 406 U. S. 759, the Department of State informed the Supreme Court that general foreign relations considerations did not require application of the act of state doctrine to bar adjudication of a counterclaim when the foreign state’s claim arises from a relationship between the parties existing when the act of state occurred, and when the amount of relief to be granted is limited to the amount of the foreign state’s claim. Relying on the precedent of Bernstein v. N. V. Nederlandsche Amerikaanshe, Etc., 210 F. 2d 375 (C. A. 2), where the Department had advised that the act of state doctrine need not apply to a class of cases involving Nazi confiscations, the Department in First National City Bank concluded that the act of state doctrine need not be applied “in this or like cases.”
Significantly, the Farr, Bernstein and First National City Bank cases each involved an Executive Branch determination which opened the way for U. S. courts to review an act of state on the merits under international law. In each of these cases, the claim or counterclaim in question alleged that an act of state violated customary international law. Thus, at least on a case-by-case basis, the trend in Executive Branch pronouncements has been that foreign relations considerations do not require application of the act of state doctrine to bar adjudications under international law.
This trend is mirrored in other countries. Apart from the cases cited by Mr. Justice White in Sabbatino, 376 U. S., at 440 n. 1, there have been several recent decisions where foreign courts have reviewed state acts under international law. English law, from which our act of state doctrine derives, does not require British courts to abstain from reviewing state acts under international law. As far as can be determined, this exercise of the judicial function in foreign jurisdictions has not caused serious foreign relations consequences for the countries concerned.
The present case is similar to Bernstein, Farr and First National City Bank, This Department is of the opinion that there would be no embarrassment to the conduct of foreign policy if the Court should decide in this case to adjudicate the legality of any act of state found to have taken place and to make such adjudication in accordance with any principle of international law found to be relevant.
In general this Department’s experience provides little support for a presumption that adjudication of acts of foreign states in accordance with relevant principles of international law would embarrass the conduct of foreign policy. Thus, it is our view that if the Court should decide to overrule the holding in Sabbatino so that acts of state would thereafter be subject to adjudication in American courts under international law, we would not anticipate embarrassment to the conduct of the foreign policy of the United States.
Sincerely,
Monroe Leigh.
APPENDIX 2 TO OPINION OF THE COURT
May 19, 1952.
My dear Mr. Attorney General :
The Department of State has for some time had under consideration the question whether the practice of the Government in granting immunity from suit to foreign governments made parties defendant in the courts of the United States without their consent should not be changed. The Department has now reached the conclusion that such immunity should no longer be granted in certain types of cases. In view of the obvious interest of your Department in this matter I should like to point out briefly some of the facts which influenced the Department’s decision.
A study of the law of sovereign immunity reveals the existence of two conflicting concepts of sovereign immunity, each widely held and firmly established. According to the classical or absolute theory of sovereign immunity, a sovereign cannot, without his consent, be made a respondent in the courts of another sovereign. According to the newer or restrictive theory of sovereign immunity, the immunity of the sovereign is recognized with regard to sovereign or public acts (jure imperii) of a state, but not with respect to private acts (jure gestionis). There is agreement by proponents of both theories, supported by practice, that sovereign immunity should not be claimed or granted in actions with respect to real property (diplomatic and perhaps consular property excepted) or with respect to the disposition of the property of a deceased person even though a foreign sovereign is the beneficiary.
The classical or virtually absolute theory of sovereign immunity has generally been followed by the courts of the United States, the British Commonwealth, Czechoslovakia, Estonia, and probably Poland.
The decisions of the courts of Brazil, Chile, China, Hungary, Japan, Luxembourg, Norway, and Portugal may be deemed to support the classical theory of immunity if one or at most two old decisions anterior to the development of the restrictive theory may be considered sufficient on which to base a conclusion.
The position of the Netherlands, Sweden, and Argentina is less clear since although immunity has been granted in recent cases coming before the courts of those countries, the facts were such that immunity would have been granted under either the absolute or restrictive theory. However, constant references by the courts of these three countries to the distinction between public and private acts of the state, even though the distinction was not involved in the result of the case, may indicate an intention to leave the way open for a possible application of the restrictive theory of immunity if and when the occasion presents itself.
A trend to the restrictive theory is already evident in the Netherlands where the lower courts have started to apply that theory .following a Supreme Court decision to the effect that immunity would have been applicable in the case under consideration under either theory.
The German courts, after a period of hesitation at the end of the nineteenth century have held to the classical theory, but it should be noted that the refusal of the Supreme Court in 1921 to yield to pressure by the lower courts for the newer theory was based on the view that that theory had not yet developed sufficiently to justify a change. In view of the growth of the restrictive theory since that time the German courts might take a different view today.
The newer or restrictive theory of sovereign immunity has always been supported by the courts of Belgium and Italy. It was adopted in turn by the courts of Egypt and of Switzerland. In addition, the courts of France, Austria, and Greece, which were traditionally supporters of the classical theory, reversed their position in the 20jg to embrace the restrictive theory. Rumania, Peru, and possibly Denmark also appear to follow this theory.
Furthermore, it should be observed that in most of the countries still following the classical theory there is a school of influential writers favoring the restrictive theory and the views of writers, at least in civil law countries, are a major factor in the development of the law. Moreover, the leanings of the lower courts in civil law countries are more significant in shaping the law than they are in common law countries where the rule of precedent prevails and the trend in these lower courts is to the restrictive theory.
Of related interest to this question is the fact that ten of the thirteen countries which have been classified above as supporters of the classical theory have ratified the Brussels Convention of 1926 under which immunity for government owned merchant vessels is waived. In addition the United States, which is not a party to the Convention, some years ago announced and has since followed, a policy of not claiming immunity for its public owned or operated merchant vessels. Keeping in mind the importance played by cases involving public vessels in the field of sovereign immunity, it is thus noteworthy that these ten countries (Brazil, Chile, Estonia, Germany, Hungary, Netherlands, Norway, Poland, Portugal, Sweden) and the United States have already relinquished by treaty or in practice an important part of the immunity which they claim under the classical theory.
It is thus evident that with the possible exception of the United Kingdom little support has been found except on the part of the Soviet Union and its satellites for continued full acceptance of the absolute theory of sovereign immunity. There are evidences that British authorities are aware of its deficiencies and ready for a change. The reasons which obviously motivate state trading countries in adhering to the theory with perhaps increasing rigidity are most persuasive that the United States should change its policy. Furthermore, the granting of sovereign immunity to foreign governments in the courts of the United States is most inconsistent with the action of the Government of the United States in subjecting itself to suit in these same courts in both contract and tort and with its long established policy of not claiming immunity in foreign jurisdictions for its merchant vessels. Finally, the Department feels that the widespread and increasing practice on the part of governments of engaging in commercial activities makes necessary a practice which will enable persons doing business with them to have their rights determined in the courts. For these reasons it will hereafter be the Department’s policy to follow the restrictive theory of sovereign immunity in the consideration of requests of foreign governments for a grant of sovereign immunity.
It is realized that a shift in policy by the executive cannot control the courts but it is felt that the courts are less likely to allow a plea of sovereign immunity where the executive has declined to do so. There have been indications that at least some Justices of the Supreme Court feel that in this matter courts should follow the branch of the Government charged with responsibility for the conduct of foreign relations.
In order that your Department, which is charged with representing the interests of the Government before the courts, may be adequately informed it will be the Department’s practice to advise you of all requests by foreign governments for the grant of immunity from suit and of the Department’s action thereon.
Sincerely yours,
For the Secretary of State:
Jack B. Tate
Acting Legal Adviser
Part III of this opinion is joined only by The Chief Justice, Mr. Justice Powell, and Mr. Justice Rehnquist.
When the prior owners sued the importers, the interventors and the Republic of Cuba brought separate litigation against the prior owners’ attorneys seeking to restrain the further prosecution of the actions brought by the prior owners. The interventors were there held entitled to the proceeds of sales made to American buyers after intervention but the prior owners' trademark litigation was permitted to continue. F. Palicio y Compania, S. A. v. Brush.
Prior to intervening in this lawsuit, interventor-respondent Pinera had replaced the original interventora as to the five companies on whose behalf he has pursued this suit. For convenience’ sake we will refer to those representing the tobacco businesses as “inter-ventors” both in discussing their conduct prior to the lawsuit and in discussing the single interventor’s conduct as a party to the lawsuit.
The District Court also disagreed with interventors that there was insufficient evidence to show that they had actually received the sums assertedly paid them by the importers. Neither could the District Court agree that the importers, if they were entitled to the funds at all, were entitled to be repaid only in pesos. The Court of Appeals did not disturb these holdings.
The Court of Appeals rejected the importers’ contention that the Hickenlooper Amendment to the Foreign Assistance Act of 1964, 22 U. S. C. §2370 (e)(2), precluded interventors from invoking the act of state doctrine. The correctness of that judgment i^' not before us in this litigation.
Our order granting certiorari directed counsel to brief $nd argue two questions:
“1. Can statements by counsel for the Republic of Cuba, that petitioner’s unjust enrichment counterclaim would not f>e honored, constitute an act of state?
“2. If so, is an exception to the act of state doctrine created, under First National City Bank v. Banco Nacional de Cuba, 406 U. S. 759 (1972), where petitioner’s counterclaim does not exceed the net balance owed to Cuba on its claims by petitioner’s codefend-ants, and where all claims and counterclaims arise out of the subject matter in litigation in this case?”
When the case was restored to the calendar for reargument, 422 U. S. 1005 (1975), the Court directed:
“In addition to other questions presented by this case, counsel are requested to brief and discuss during oral argument: Should this Court’s holding in Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398 (1964), be reconsidered?”
In addition to the present petition the Court has before it the petition of the interventors. Republic of Cuba v. Saks & Co., No. 73-1287, challenging, on the ground that the intervention successfully seized the accounts receivable and that the $477,000 properly belonged to them, the propriety of permitting even a setoff, and the conditional cross-petition of the importers, Saks & Co. v. Republic of Cuba, No. 73-1289, challenging the propriety of the judgment against them and in favor of the owners for the $477,000 due on preintervention shipments. Today we deny these petitions, post, p. 991.
The traditional formulation of the act of state doctrine is that in Underhill v. Hernandez, 168 U. S. 250, 252 (1897):
“Every sovereign State is bound to respect the independence of every other sovereign State, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves.”
Their entitlement to the 1477,000 derived under this theory from the initial act of state — i. e., the intervention of the owners' business. All parties agree that intervention is to be given effect with respect to all of the owners' tangible property in Cuba at the time of intervention. The Court of Appeals held, however, that since the accounts receivable were not in Cuba at the time of intervention, the intervention did not reach them. The dissent points to a statement by trial counsel that when Dunhill's money arrived in Cuba after the intervention “the Cuban government took this money and under the act of state doctrine it belongs to the Cuban government,” The statement was made during counsel's closing argument in the District Court and is not and does not purport to be a {actual representation that a second act of state occurred. Indeed in his brief in this Court the same counsel states “counsel’s in-court statements were 'no more than statements of a litigating position,’ ” Brief for Respondents 16, and “The statement of . . , a lawyer is not proof of anything.” Id., at 17 n. 8. Indeed, if counsel’s statements were proof of anything, petitioner would have been entitled to cross-examine him under oath. As a legal argument that the original act of state automatically matured when Dunhill’s money arrived in Cuba and transformed the account receivable from an intangible to a tangible asset, the statement was rejected by the Court of Appeals, which held that the original intervention did not seize the accounts receivable from the prior owners even with respect to accounts later paid by Dunhill. Finally, we are unwilling, absent proof, to infer from the fact that Cuba seized the assets of the cigar business from Cuban nationals that it must necessarily have intended to make and did make a later discriminatory and confiscatory seizure of money belonging to the United States companies. Indeed, respondents have argued vigorously before this Court that no international law issue is raised precisely because “[a] 11 of the acts of the Cuban sovereign have been directed at its nationals . . .” and “there was no intent to divest Dunhill of ownership.” Brief for Respondents on Reargument 4r-5. In supporting its conclusion that Cuba necessarily did intend to seize Dunhill’s money when it arrived in Cuba, the dissent quotes a remark by counsel — in the third brief filed in this Court by respondents — that they had contended below that the “refusal to acquiesce in the quasi-contractual obligation sought to be imposed by a foreign court, was ... an act of state.” Once again, this is merely a statement of respondents’ incorrect litigating position that the failure to pay Dunhill established a refusal by Cuba to acquiesce in an admitted obligation and was therefore an act of state. The litigating position is incorrect because, as stated supra, at 691, respondents have never admitted an obligation to Dun-hill and therefore their failure to pay Dunhill, without more, is inadequate to establish a sovereign repudiation of such an obligation.
“The Anne, 3 Wheat. 435, reaffirmed by The Sao Vicente, 260 U. S. 151, is enough to show that the immunity could not have been successfully set up by a duly recognized consul, representative of his sovereign in commercial matters, in the ordinary course of his official duties, and there seems no adequate reason to presume that the master of the Gul Djemal had any greater authority in respect thereto. Although an officer of the Turkish Navy, he was performing no naval or military duty, and was serving upon a vessel not functioning in naval or military capacity but engaged in commerce .... He was not shown to have any authority to represent his sovereign other than can be inferred from his position as master ...” (Emphasis added.) 264 U. S., at 95.
There the commander of a successful revolution, in control of the city of Bolivar, refused a passport to Underhill. Upon suit by Underhill for his detention, this Court refused to inquire into the propriety of the detention because “[t]he acts complained of were the acts of a military commander representing the authority of the revolutionary party as government, which afterwards succeeded and was recognized by the United States.” 168 U. S., at 254.
The dissent, assuming that the Republic of Cuba purported to exercise sovereign powers in refusing to return Dunhill’s money, asserts that there is no distinction between the refusal to honor its obligation to return DunhilPs money and the original expropriation of the cigar businesses; and that the case therefore does not involve a purely commercial act. The dissent is wrong. Cuba’s debt to Dunhill arose out of the conduct by Cuba’s agents of a commercial business for profit. The same may not be said of conventional expropriations of foreign assets located ab initio inside a country’s territorial borders. Dunhill was continuing to buy cigars from the interventora after intervention and Dunhill knew when the payments were made that the interventora would receive them. Menendez v. Saks & Co., 485 F. 2d 1355, 1367-1368 (CA2 1973). The debt would never have arisen if Cuba’s agents had not gone into the cigar business and sold to Dunhill. This case is therefore no different from any case in which a buyer overpays for goods sold by a commercial business operated by a foreign government — a commonplace event in international commerce.
The letter also takes the position that sovereign immunity, as such, does not prevent entry of an affirmative judgment on a counterclaim arising out of the same “transaction or occurrence that is the subject matter of the claim of the foreign state,” and inferentially that the act of state doctrine is likewise unavailable as a method of avoiding such an affirmative judgment. In light of our conclusion that repudiation by a sovereign of a commercial debt is not an act of state, we do not reach the State Department’s alternative position. The letter also takes the position that the overruling of Sabbatino, so that acts of state would hereafter be subject to adjudication in American courts under international law, would not result in embarrassment to the conduct of United States foreign policy. We need not resolve this issue either.
“This salutary principle was not followed in Berizzi Bros. Co. v. The Pesaro, 271 U. S. 562, where the court allowed the immunity, for the first time, to a merchant vessel owned by a foreign government and in its possession and service, although the State Department had declined to recognize the immunity. The propriety of thus extending the immunity where the political branch of the government had refused to act was not considered.
“Since the vessel here, although owned by the Mexican Government, was not in its possession and service, we have no occasion to consider the questions presented in the Berizzi case. It is enough that we find no persuasive ground for allowing the immunity in this case, an important reason being that the State Department has declined to recognize it.” 324 U. S., at 35 n. 1.
Mr. Justice Frankfurter, joined by Mr. Justice Black, said:
“The fact of the matter is that the result in Berizzi Bros. Co. v. The Pesaro, supra, was reached without submission by the Department of State of its relevant policies in the conduct of our foreign relations and largely on the basis of considerations which have steadily lost whatever validity they may then have had. Compare the overruling of The Thomas Jefferson, 10 Wheat. 428 (1825), by The Genesee Chief, 12 How. 443 (185[2]). The views of our State Department against immunity for commercial ships owned by foreign governments have been strongly supported by international conferences, some held after the decision in the Pesaro case. See Lord Maugham in Compania Naviera Vascongado v. The Cristina [1938] A. C. 485, 521-523. But the real change has been the enormous growth, particularly in recent years, of ‘ordinary merchandising’ activity by governments. See The Western Maid, 257 U. S. 419, 432. Lord Maugham in the Cristina thus put the matter:
“ ‘Half a century ago foreign Governments very seldom embarked in trade with ordinary ships, though they not infrequently owned vessels destined for public uses, and in particular hospital vessels, supply ships and surveying or exploring vessels. These were doubtless very strong reasons for extending the privilege long possessed by ships of war to public ships of the nature mentioned; but there has been a very large development of State-owned commercial ships since the Great War, and the question whether the immunity should continue to be given to ordinary trading ships has become acute. Is it consistent with sovereign dignity to acquire a tramp steamer and to compete with ordinary shippers and ship-owners in the markets of the world? Doing so, is it consistent to set up the immunity of a sovereign if, owing to the want of skill of captain and crew, serious damage is caused to the ship of another country? Is it also consistent to refuse to permit proceedings to enforce a right of salvage in respect of services rendered, perhaps at great risk, by the vessel of another country?’ [1938] A. C. 485, 521-522.
“It is my view, in short, that courts should not disclaim jurisdiction which otherwise belongs to them in relation to vessels owned by foreign governments however operated except when ‘the department of the government charged with the conduct of our foreign relations,’ or of course Congress, explicitly asserts that the proper conduct of these relations calls for judicial abstention. Thereby responsibility for the conduct of our foreign relations will be placed where power lies. And unless constrained by the established policy of our State Department, courts will best discharge their responsibility by enforcement of the regular judicial processes.” Id., at 40-42.
Austria: Collision with Foreign Government-Owned Motor Car (Austria) Case, [1961] 40 Int'l L. Rep. 73 (Sup. Ct.). Belgium: “Socobel” v. Greek State, [1951] 18 Int’l L. Rep. 3 (Trib. Civ. Brussels). Canada: Penthouse Studios, Inc. v. Republic of Venezuela, [1970] 8 D. L. R. 3d 686 (Quebec Ct. App., 1969). England: Thai-Europe Tapioca Service v. Government of Pakistan, [1975] 1 W. L. R. 1485 (C. A.). Philippine Admiral v. Wallem Shipping, [1976] 1 All E. R. 78 (P. C.). Egypt: Federated People’s Republic of Yugoslavia v. Kafr El-Zayat Cotton Co., [1951] 18 Int’l L. Rep. 225 (Civ. Trib. Alexandria) France: Administration des Chemins de Fer Iraniens v. Société Levant Express Transport, 73 Revue Générale de Droit International Public 883 (Sup. Ct. 1969). Germany: Claim against the Empire of Iran Case, [1963] 45 Int’l L. Rep. 57 (Fed. Const. Ct.). Greece: Papaevangelou v. United States Government (Athens First Instance Ct., Apr. 23, 1960). Hong Kong: Midland Investment Co., Ltd. v. Bank of Communications, [1956] 40 H. K. L. Rep. 42, 23 Int’l L. Rep. 234 (S. Ct.). Italy: United States v. Soc. I. R. S. A., 86 II Foro Italiano Part I, 1405 (Sup. Ct., en banc, Mar. 13, 1963). Pakistan: Gammon-Layton v. Secretary of State, U. S. A., P. L. D. 1965 (W. P.) Karachi 425. Philippines: Carried Lumber Co. v. United States of America (Ct. App. Manila, Sept. 24, 1974). Yugoslavia: Zarko v. Office of International Trade Fairs, U. S. Department of Commerce (Dist. Ct. Zagreb, June 10, 1966).
In Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398, 428 (1964), the Court noted in the context of the act of state doctrine: “It is also evident that some aspects of international law touch much more sharply on national nerves than do others; the less important the implications of an issue are for our foreign relations, the weaker the justification for exclusivity in the political branches.”
Schmitthoff, The Unification or Harmonisation of Law by Means of Standard Contracts and General Conditions, 17 Int’l & Comp. L. Q. 551, 563-564 (1968). See also A. Lowenfeld, International Private Trade 1-2 (1975); Gal, The Commercial Law of Nations and the Law of International Trade, 6 Com. Int’l L. J. 55, 64 (1972); H. Trammer, The Law of Foreign Trade in the Legal Systems of the Countries of Planned Economy, in The Sources of the Law of International Trade 41 (Schmitthoff ed. 1964) (hereinafter Sehmitthoff); V. Knapp, The Function, Organization and Activities of Foreign Trade Corporations in the European Socialist Countries, Schmitthoff 52; A. Goldstajn, International Conventions and Standard Contracts as Means of Escaping from the Application of Municipal Law — I, Sehmitthoff 103; T. lonasco & I. Nestor, The Limits of Party Autonomy — I, Schmitthoff 167; and Schmitthoff, Introduction, Schmitthoff ix.
The dissent states that the doctrines of sovereign immunity and act of state are distinct — the former conferring on a sovereign “exemption from suit by virtue of its status” and the latter “merely [telling] a court what law to apply to a case.” Post, at 725-726, 726. It may be true that the one doctrine has been described in jurisdictional terms and the other in choice-of-law terms; and it may be that the doctrines point to different results in certain cases. It cannot be gainsaid, however, that the proper application of each involves a balancing of the injury to our foreign policy, the conduct of which is committed primarily to the Executive Branch, through judicial affronts to sovereign powers, compare Mexico v. Hoffman, 324 U. S., at 35-36 (sovereign immunity), with Banco Nacional de Cuba v. Sabbatino, supra, at 423, 427-428 (act of state), against the injury to the private party, who is denied justice through judicial deference to a raw assertion of sovereignty, and a consequent injury to international trade. The State Department has concluded that in the commercial area the need for merchants "to have their rights determined in courts” outweighs any injury to foreign policy. This conclusion was reached in the context of the jurisdictional problem of sovereign immunity. We reach the same one in the choice-of-law context of the act of state doctrine.
Since First National City Bank was decided, the Department of State has taken the position in the sovereign immunity area that even where a counterclaim exceeds the foreign state’s claim, the courts may adjudicate the counterclaim if it arises from the same "transaction or occurrence that is the subject matter of the claim of the foreign state.” S. 566, 93d Cong., 1st Sess., § 1607 (1); see, ALI, Restatement, Foreign Relations Law of the United States, Second, §70 (2) (b). In our view, the adjudication of counterclaims against a foreign state, arising from the same transaction, occurrence or subject matter as the claim of the foreign state, does not pose foreign relations difficulties.
See, e. g., In The Matter of Minera El Teniente, S. A., 12 Int’l Legal Materials 251 (Superior Ct. Hamburg, 1973) (a foreign state’s act of expropriation that violates international law will not be recognized by German courts if the subject matter of the litigation has a substantial contact with Germany); Braden Copper Co. v. Le Groupement d’Importation des Métaux, 12 Int’l Legal Materials 187 (Ct. of Extended Jurisdiction Paris, 1972) (rejecting sovereign immunity of a state trading company that marketed expropriated copper); Compagnie Française de Crédit et de Banque v. Consorts Atard, Clunet, J. du Droit Int’l, 98 (1971), p. 86 (France: Cour d’Appel Amiens, 1970) (foreign expropriation decrees will not be recognized in France absent the payment of prompt, adequate and effective compensation); Crédit Foncier d’Algerie et de Tunisie v. Narbonne, Clunet, J. du Droit Int’l 96 (1969), p. 912 (France: Cou[r] de Cassation, 1969) (acts of expropriation not recognized in France unless equitable compensation is first determined); Obe[r]sfer Gerichtshof (Austrian Supreme Court), decision of 22 December 1965, Osterr. Juristenzeitung 21 (1966), p. 204, Clunet, J. du Droit Int’l, 94 (1967), p. 941 (an expropriation without compensation violates international law, but no recovery against purchasers of expropriated property); N. V. Assurantie Maatschappij de Nederlanden van 1845 v. P. T. Escomptobank, 33 Int’l L. Rep. 80 (D. Ct. The Hague, 1962) (rejecting act of state defense where there is a violation of international law).
Banco de Vizcaya v. Don Alfonso de Borbon y Austria, [1935] 1 K. B. 140, 50 T. L. R. 284; Re Helbert Wagg & Co. Ltd., [1956] Ch. 323, 346; 1 Lauterpacht, Oppenheim’s International Law, 267-268 (8th ed. 1955). See also Republic of Peru v. Peruvian Guano Co., [1887] 36 Ch. D. 489 and Republic of Peru v. Dreyfus Brothers & Co. [1888] 38 Ch. D. 348, where British courts, under international law, refused to give effect to Peruvian laws annulling acts of the preceding Peruvian government; cf. Buttes Gas and Oil Co. v. Hammer [1975] 2 W. L. R. 425, at 434-435.
26 Dept. State Bull. 98A-985 (1952). | What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | Did administrative action occur in the context of the case? | [
"No",
"Yes"
] | [
0
] | sc_adminaction_is |
PORTER v. McCOLLUM, ATTORNEY GENERAL OF FLORIDA, et al.
No. 08-10537.
Decided November 30, 2009
Per Curiam.
Petitioner George Porter is a veteran who was both wounded and decorated for his active participation in two major engagements during the Korean War; his combat service unfortunately left him a traumatized, changed man. His commanding officer’s moving description of those two battles was only a fraction of the mitigating evidence that his counsel failed to discover or present during the penalty phase of his trial in 1988.
In this federal postconviction proceeding, the District Court held that Porter’s lawyer’s failure to adduce that evidence violated his Sixth Amendment right to counsel and granted his application for a writ of habeas corpus. The Court of Appeals for the Eleventh Circuit reversed, on the ground that the Florida Supreme Court’s determination that Porter was not prejudiced by any deficient performance by his counsel was a reasonable application of Strickland v. Washington, 466 U. S. 668 (1984). Like the District Court, we are persuaded that it was objectively unreasonable to conclude there was no reasonable probability the sentence would have been different if the sentencing judge and jury had heard the significant mitigation evidence that Porter’s counsel neither uncovered nor presented. We therefore grant the petition for certiorari in part and reverse the judgment of the Court of Appeals.
I
Porter was convicted of two counts of first-degree murder for the shooting of his former girlfriend, Evelyn Williams, and her boyfriend, Walter Burrows. He was sentenced to death on the first count but not the second.
In July 1986, as his relationship with Williams was ending, Porter threatened to kill her and then left town. When he returned to Florida three months later, he attempted to see Williams, but her mother told him that Williams did not want to see him. He drove past Williams’ house each of the two days prior to the shooting, and the night before the murder he visited Williams, who called the police. Porter then went to two cocktail lounges and spent the night with a friend, who testified Porter was quite drunk by 11 p.m. Early the next morning, Porter shot Williams in her house. Burrows struggled with Porter and forced him outside where Porter shot him.
Porter represented himself, with standby counsel, for most of the pretrial proceedings and during the beginning of his trial. Near the completion of the State’s case in chief, Porter pleaded guilty. He thereafter changed his mind about representing himself, and his standby counsel was appointed as his counsel for the penalty phase. During the penalty phase, the State attempted to prove four aggravating factors: Porter had been “previously convicted” of another violent felony (i. e., in Williams’ case, killing Burrows, and in his case, killing Williams); the murder was committed during a burglary; the murder was committed in a cold, calculated, and premeditated manner; and the murder was especially heinous, atrocious, or cruel. The defense put on only one witness, Porter’s ex-wife, and read an excerpt from a deposition. The sum total of the mitigating evidence was inconsistent testimony about Porter’s behavior when intoxicated and testimony that Porter had a good relationship with his son. Although his lawyer told the jury that Porter “has other handicaps that weren’t apparent during the trial” and Porter was not “mentally healthy,” he did not put on any evidence related to Porter’s mental health. 3 Tr. 477-478 (Jan. 22, 1988).
The jury recommended the death sentence for both murders. The trial court found that the State had proved all four aggravating circumstances for the murder of Williams but that only the first two were established with respect to Burrows’ murder. The trial court found no mitigating circumstances and imposed a death sentence for Williams’ murder only. On direct appeal, the Florida Supreme Court affirmed the sentence over the dissent of two justices, but struck the heinous, atrocious, or cruel aggravating factor. Porter v. State, 564 So. 2d 1060 (1990) (per curiam). The court found the State had not carried its burden on that factor because the “record is consistent with the hypothesis that Porter’s was a crime of passion, not a crime that was meant to be deliberately and extraordinarily painful.” Id., at 1063 (emphasis deleted). The two dissenting justices would have reversed the penalty because the evidence of drunkenness, “combined with evidence of Porter’s emotionally charged, desperate, frustrated desire to meet with his former lover, is sufficient to render the death penalty disproportional punishment in this instance.” Id., at 1065-1066 (Barkett, J., concurring in part and dissenting in part).
In 1995, Porter filed a petition for postconviction relief in state court, claiming his penalty-phase counsel failed to investigate and present mitigating evidence. The court conducted a 2-day evidentiary hearing, during which Porter presented extensive mitigating evidence, all of which was apparently unknown to his penalty-phase counsel. Unlike the evidence presented during Porter’s penalty hearing, which left the jury knowing hardly anything about him other than the facts of his crimes, the new evidence described his abusive childhood, his heroic military service and the trauma he suffered because of it, his long-term substance abuse, and his impaired mental health and mental capacity.
The depositions of his brother and sister described the abuse Porter suffered as a child. Porter routinely witnessed his father beat his mother, one time so severely that she had to go to the hospital and lost a child. Porter’s father was violent every weekend, and by his siblings’ account, Porter was his father’s favorite target, particularly when Porter tried to protect his mother. On one occasion, Porter’s father shot at him for coming home late, but missed and just beat Porter instead. According to his brother, Porter attended classes for slow learners and left school when he was 12 or 13.
To escape his horrible family life, Porter enlisted in the Army at age 17 and fought in the Korean War. His company commander, Lieutenant Colonel Sherman Pratt, testified at Porter’s postconviction hearing. Porter was with the 2d Division, which had advanced above the 38th parallel to Kunu-ri when it was attacked by Chinese forces. Porter suffered a gunshot wound to the leg during the advance but was with the unit for the battle at Kunu-ri. While the 8th Army was withdrawing, the 2d Division was ordered to hold off the Chinese advance, enabling the bulk of the 8th Army to live to fight another day. As Colonel Pratt described it, the unit “went into position there in bitter cold night, terribly worn out, terribly weary, almost like zombies because we had been in constant — for five days we had been in constant contact with the enemy fighting our way to the rear, little or no sleep, little or no food, literally as I say zombies.” 1 Tr. 138 (Jan. 4,1996). The next morning, the unit engaged in a “fierce hand-to-hand fight with the Chinese” and later that day received permission to withdraw, making Porter’s regiment the last unit of the 8th Army to withdraw. Id., at 139-140.
Less than three months later, Porter fought in a second battle, at Chip’yong-ni. His regiment was cut off from the rest of the 8th Army and defended itself for two days and two nights under constant fire. After the enemy broke through the perimeter and overtook defensive positions on high ground, Porter’s company was charged with retaking those positions. In the charge up the hill, the soldiers “were under direct open fire of the enemy forces on top of the hill. They immediately came under mortar, artillery, machine gun, and every other kind of fire you can imagine and they were just dropping like flies as they went along.” Id., at 150. Porter’s company lost all three of its platoon sergeants, and almost all of the officers were wounded. Porter was again wounded, and his company sustained the heaviest losses of any troops in the battle, with more than 50% casualties. Colonel Pratt testified that these battles were “very trying, horrifying experiences,” particularly for Porter’s company at Chip’yong-ni. Id., at 152. Porter’s unit was awarded the Presidential Unit Citation for the engagement at Chip’yong-ni, and Porter individually received two Purple Hearts and the Combat Infantryman Badge, along with other decorations.
Colonel Pratt testified that Porter went absent without leave (AWOL) for two periods while in Korea. He explained that this was not uncommon, as soldiers sometimes became disoriented and separated from the unit, and that the commander had decided not to impose any punishment for the absences. In Colonel Pratt’s experience, an “awful lot of [veterans] come back nervous wrecks. Our [veterans’] hospitals today are filled with people mentally trying to survive the perils and hardships [of]. .. the Korean War,” particularly those who fought in the battles he described. Id., at 153.
When Porter returned to the United States, he went AWOL for an extended period of time. He was sentenced to six months’ imprisonment for that infraction, but he received an honorable discharge. After his discharge, he suffered dreadful nightmares and would attempt to climb his bedroom walls with knives at night. Porter’s family eventually removed all of the knives from the house. According to Porter’s brother, Porter developed a serious drinking problem and began drinking so heavily that he would get into fights and not remember them at all.
In addition to this testimony regarding his life history, Porter presented an expert in neuropsychology, Dr. Dee, who had examined Porter and administered a number of psychological assessments. Dr. Dee concluded that Porter suffered from brain damage that could manifest in impulsive, violent behavior. At the time of the crime, Dr. Dee testified, Porter was substantially impaired in his ability to conform his conduct to the law and suffered from an extreme mental or emotional disturbance, two statutory mitigating circumstances, Fla. Stat. § 921.141(6). Dr. Dee also testified that Porter had substantial difficulties with reading, writing, and memory, and that these cognitive defects were present when he was evaluated for competency to stand trial. 2 Tr. 227-228 (Jan. 5, 1996); see also Record 904-906. Although the State’s experts reached different conclusions regarding the statutory mitigators, each expert testified that he could not diagnose Porter or rule out a brain abnormality. 2 Tr. 345, 382 (Jan. 5, 1996); 3 id., at 405.
The trial judge who conducted the state postconviction hearing, without determining counsel’s deficiency, held that Porter had not been prejudiced by the failure to introduce any of that evidence. Record 1203, 1206. He found that Porter had failed to establish any statutory mitigating circumstances, id., at 1207, and that the nonstatutory mitigating evidence would not have made a difference in the outcome of the case, id., at 1210. He discounted the evidence of Porter’s alcohol abuse because it was inconsistent and discounted the evidence of Porter’s abusive childhood because he was 54 years old at the time of the trial. He also concluded that Porter’s periods of being AWOL would have reduced the impact of Porter’s military service to “inconsequential proportions.” Id., at 1212. Finally, he held that even considering all three categories of evidence together, the “trial judge and jury still would have imposed death.” Id., at 1214.
The Florida Supreme Court affirmed. It first accepted the trial court’s finding that Porter could not have established any statutory mitigating circumstances, based on the trial court’s acceptance of the State’s experts’ conclusions in that regard. Porter v. State, 788 So. 2d 917, 923 (2001) (per curiam). It then held the trial court was correct to find “the additional nonstatutory mitigation to be lacking in weight because of the specific facts presented.” Id., at 925. Like the postconviction court, the Florida Supreme Court reserved judgment regarding counsel’s deficiency. Ibid Two justices dissented, reasoning that counsel’s failure to investigate and present mitigating evidence was “especially harmful” because of the divided vote affirming the sentence on direct appeal — “even without the substantial mitigation that we now know existed” — and because of the reversal of the heinous, atrocious, and cruel aggravating factor. Id., at 987 (Anstead, J., concurring in part and dissenting in part).
Porter thereafter filed his federal habeas petition. The District Court held Porter’s penalty-phase counsel had been ineffective. It first determined that counsel’s performance had been deficient because “penalty-phase counsel did little, if any investigation . . . and failed to effectively advocate on behalf of his client before the jury.” Porter v. Crosby, No. 6:03-cv-1465-Orl-31KRS, 2007 WL 1747316, *23 (MD Fla., June 18, 2007). It then determined that counsel’s deficient performance was prejudicial, finding that the state court’s decision was contrary to clearly established law in part because the state court failed to consider the entirety of the evidence when reweighing the evidence in mitigation, including the trial evidence suggesting that “this was a crime of passion, that [Porter] was drinking heavily just hours before the murders, or that [Porter] had a good relationship with his son.” Id., at *30.
The Eleventh Circuit reversed. It held the District Court had failed to appropriately defer to the state court’s factual findings with respect to Porter’s alcohol abuse and his mental health. 552 F. 3d 1260, 1274, 1275 (2008) (per curiam). The Court of Appeals then separately considered each category of mitigating evidence and held it was not unreasonable for the state court to discount each category as it did. Id., at 1274. Porter petitioned for a writ of certiorari. We grant the petition and reverse with respect to the Court of Appeals’ disposition of Porter’s ineffective-assistance claim.
II
To prevail under Strickland, Porter must show that his counsel’s deficient performance prejudiced him. To establish deficiency, Porter must show his “counsel’s representation fell below an objective standard of reasonableness.” 466 U. S., at 688. To establish prejudice, he “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id., at 694. Finally, Porter is entitled to relief only if the state court’s rejection of his claim of ineffective assistance of counsel was “contrary to, or involved an unreasonable application of,” Strickland, or it rested “on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U. S. C. § 2254(d).
Because the state court did not decide whether Porter’s counsel was deficient, we review this element of Porter’s Strickland claim de novo. Rompilla v. Beard, 545 U. S. 374, 390 (2005). It is unquestioned that under the prevailing professional norms at the time of Porter’s trial, counsel had an “obligation to conduct a thorough investigation of the defendant’s background.” Williams v. Taylor, 529 U. S. 362, 396 (2000). The investigation conducted by Porter’s counsel clearly did not satisfy those norms.
Although Porter had initially elected to represent himself, his standby counsel became his counsel for the penalty phase a little over a month prior to the sentencing proceeding before the jury. It was the first time this lawyer had represented a defendant during a penalty-phase proceeding. At the postconviction hearing, he testified that he had only one short meeting with Porter regarding the penalty phase. He did not obtain any of Porter’s school, medical, or military service records or interview any members of Porter’s family. In Wiggins v. Smith, 539 U. S. 510, 524, 525 (2003), we held counsel “fell short of . .. professional standards” for not expanding their investigation beyond the presentence investigation report and one set of records they obtained, particularly “in light of what counsel actually discovered” in the records. Here, counsel did not even take the first step of interviewing witnesses or requesting records. Cf. Bobby v. Van Hook, ante, at 9-12 (holding performance not deficient when counsel gathered a substantial amount of information and then made a reasonable decision not to pursue additional sources); Strickland, 466 U. S., at 699 (“[Counsel’s] decision not to seek more character or psychological evidence than was already in hand was . . . reasonable”). Beyond that, like the counsel in Wiggins, he ignored pertinent avenues for investigation of which he should have been aware. The court-ordered competency evaluations, for example, collectively reported Porter’s very few years of regular school, his military service and wounds sustained in combat, and his father’s “over-disciplin[e].” Record 904, 902-906. As an explanation, counsel described Porter as fatalistic and uncooperative. But he acknowledged that although Porter instructed him not to speak with Porter’s ex-wife or son, Porter did not give him any other instructions limiting the witnesses he could interview.
Counsel thus failed to uncover and present any evidence of Porter’s mental health or mental impairment, his family background, or his military service. The decision not to investigate did not reflect reasonable professional judgment. Wiggins, supra, at 534. Porter may have been fatalistic or uncooperative, but that does not obviate the need for defense counsel to conduct some sort of mitigation investigation. See Rompilla, supra, at 381-382.
III
Because we find Porter’s counsel deficient, we must determine whether the Florida Supreme Court unreasonably applied Strickland in holding Porter was not prejudiced by that deficiency. Under Strickland, a defendant is prejudiced by his counsel’s deficient performance if “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 466 U. S., at 694. In Florida, the sentencing judge makes the determination as to the existence and weight of aggravating and mitigating circumstances and the punishment, Fla. Stat. § 921.141(3), but he must give the jury verdict of life or death “great weight,” Tedder v. State, 322 So. 2d 908, 910 (Fla. 1975) (per curiam). Porter must show that but for his counsel’s deficiency, there is a reasonable probability he would have received a different sentence. To assess that probability, we consider “the totality of the available mitigation evidence — both that adduced at trial, and the evidence adduced in the habeas proceeding” — and “reweig[h] it against the evidence in aggravation.” Williams, supra, at 397-398.
This is not a case in which the new evidence “would barely have altered the sentencing profile presented to the sentencing judge.” Strickland, supra, at 700. The judge and jury at Porter’s original sentencing heard almost nothing that would humanize Porter or allow them to accurately gauge his moral culpability. They learned about Porter’s turbulent relationship with Williams, his crimes, and almost nothing else. Had Porter’s counsel been effective, the judge and jury would have learned of the “kind of troubled history we have declared relevant to assessing a defendant’s moral culpability.” Wiggins, supra, at 535. They would have heard about (1) Porter’s heroic military service in two of the most critical — and horrific — battles of the Korean War, (2) his struggles to regain normality upon his return from war, (3) his childhood history of physical abuse, and (4) his brain abnormality, difficulty reading and writing, and limited schooling. See Penry v. Lynaugh, 492 U. S. 302, 319 (1989) (“'[Ejvidence about the defendant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background . . . may be less culpable’ ”). Instead, they heard absolutely none of that evidence, evidence which “might well have influenced the jury’s appraisal of [Porter’s] moral culpability” Williams, supra, at 398.
On the other side of the ledger, the weight of evidence in aggravation is not as substantial as the sentencing judge thought. As noted, the sentencing judge accepted the jury’s recommendation of a death sentence for the murder of Williams but rejected the jury’s death-sentence recommendation for the murder of Burrows. The sentencing judge believed that there were four aggravating circumstances related to the Williams murder but only two for the Burrows murder. Accordingly, the judge must have reasoned that the two aggravating circumstances that were present in both cases were insufficient to warrant a death sentence but that the two additional aggravating circumstances present with respect to the Williams murder were sufficient to tip the balance in favor of a death sentence. But the Florida Supreme Court rejected one of these additional aggravating circumstances, i. e., that Williams’ murder was especially heinous, atrocious, or cruel, finding the murder “consistent with ... a crime of passion” even though premeditated to a heightened degree. 564 So. 2d, at 1063-1064. Had the judge and jury been able to place Porter’s life history “on the mitigating side of the scale,” and appropriately reduced the ballast on the aggravating side of the scale, there is clearly a reasonable probability that the advisory jury — and the sentencing judge — “would have struck a different balance,” Wiggins, supra, at 537, and it is unreasonable to conclude otherwise.
The Florida Supreme Court’s decision that Porter was not prejudiced by his counsel’s failure to conduct a thorough — or even cursory — investigation is unreasonable. The Florida Supreme Court either did not consider or unreasonably discounted the mitigation evidence adduced in the postconviction hearing. Under Florida law, mental health evidence that does not rise to the level of establishing a statutory mitigating circumstance may nonetheless be considered by the sentencing judge and jury as mitigating. See, e. g., Hoskins v. State, 965 So. 2d 1, 17-18 (Fla. 2007) (per curiam). Indeed, the Constitution requires that “the senteneer in capital cases must be permitted to consider any relevant mitigating factor.” Eddings v. Oklahoma, 455 U. S. 104, 112 (1982). Yet neither the postconviction trial court nor the Florida Supreme Court gave any consideration for the purpose of non-statutory mitigation to Dr. Dee’s testimony regarding the existence of a brain abnormality and cognitive defects. While the State’s experts identified perceived problems with the tests that Dr. Dee used and the conclusions that he drew from them, it was not reasonable to discount entirely the effect that his testimony might have had on the jury or the sentencing judge.
Furthermore, the Florida Supreme Court, following the state postconviction court, unreasonably discounted the evidence of Porter’s childhood abuse and military service. It is unreasonable to discount to irrelevance the evidence of Porter’s abusive childhood, especially when that kind of history may have particular salience for a jury evaluating Porter’s behavior in his relationship with Williams. It is also unreasonable to conclude that Porter’s military service would be reduced to “inconsequential proportions,” 788 So. 2d, at 925, simply because the jury would also have learned that Porter went AWOL on more than one occasion. Our Nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did. Moreover, the relevance of Porter’s extensive combat experience is not only that he served honorably under extreme hardship and gruesome conditions, but also that the jury might find mitigating the intense stress and mental and emotional toll that combat took on Porter. Theevidence that he was AWOL is consistent with this theory of mitigation and does not impeach or diminish the evidence of his service. To conclude otherwise reflects a failure to engage with what Porter actually went through in Korea.
As the two dissenting justices in the Florida Supreme Court reasoned, “there exists too much mitigating evidence that was not presented to now be ignored.” Id., at 937 (Anstead, J., concurring in part and dissenting in part). Although the burden is on petitioner to show he was prejudiced by his counsel’s deficiency, the Florida Supreme Court’s conclusion that Porter failed to meet this burden was an unreasonable application of our clearly established law. We do not require a defendant to show “that counsel’s deficient conduct more likely than not altered the outcome” of his penalty proceeding, but rather that he establish “a probability sufficient to undermine confidence in [that] outcome.” Strickland, 466 U. S., at 693-694. This Porter has done.
The petition for certiorari is granted in part, and the motion for leave to proceed informa pawperis is granted. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
We deny the petition insofar as it challenges his conviction.
It is an aggravating factor under Florida law that “[t]he defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person.” Fla. Stat. § 921.141(5)(b) (1987). In Porter’s case, the State established that factor by reference to Porter’s contemporaneous convictions stemming from the same episode: two counts of murder and one count of aggravated assault. Tr. 5 (Mar. 4, 1988).
Porter explained to one of the doctors who examined him for competency to stand trial that he went AWOL in order to spend time with his son. Record 904.
Porter’s expert testified that these symptoms would “easily” warrant a diagnosis of posttraumatic stress disorder (PTSD). 2 Tr. 233 (Jan. 5, 1996). PTSD is not uncommon among veterans returning from combat. See Hearing on Fiscal Year 2010 Budget for Veterans’ Programs before the Senate Committee on Veterans’ Affairs, 111th Cong., 1st Sess., 63 (2009) (uncorrected copy) (testimony of Eric K. Shinseki, Secretary of Veterans Affairs (VA), reporting that approximately 23% of the Iraq and Afghanistan war veterans seeking treatment at a VA medical facility had been preliminarily diagnosed with PTSD).
The State presented two experts, Dr. Riebsame and Dr. Kirkland. Neither of the State's experts had examined Porter, but each testified that based upon their review of the record, Porter met neither statutory mitigating circumstance.
The postconviction court stated defense counsel “was not ineffective for failing to pursue mental health evaluations and .. . [Porter] has thus failed to show sufficient evidence that any statutory mitigators could have been presented.” Record 1210. It is not at all dear whether this stray comment addressed counsel’s deficiency. If it did, then it was at most dictum, because the court expressly “decline[d] to make a determination regarding whether or not Defense Counsel was in fact deficient here.” Id., at 1206. The Florida Supreme Court simply paraphrased the postconviction court when it stated “trial counsel’s decision not to pursue mental evaluations did not exceed the bounds for competent counsel.” Porter v. State, 788 So. 2d 917, 923-924 (2001) (per curiam). But that court also expressly declined to answer the question of deficiency. Id., at 925.
The Florida Supreme Court acknowledged that Porter had presented evidence of “statutory and nonstatutory mental mitigation,” 788 So. 2d, at 921, but it did not consider Porter’s mental health evidence in its discussion of nonstatutory mitigating evidence, id., at 924.
See Abbott, The Civil War and the Crime Wave of 1865-70, 1 Soc. Serv. Rev. 212, 232-234 (1927) (discussing the movement to pardon or parole prisoners who were veterans of the Civil War); Rosenbaum, The Relationship Between War and Crime in the United States, 30 J. Crim. L. & C. 722, 733-734 (1940) (describing a 1922 study by the Wisconsin Board of Control that discussed the number of veterans imprisoned in the State and considered “the greater leniency that may be shown to ex-service men in court”).
Cf. Cal. Penal Code Ann. § 1170.9(a) (West Supp. 2009) (providing a special hearing for a person convicted of a crime “who alleges that he or she committed the offense as a result of post-traumatic stress disorder, substance abuse, or psychological problems stemming from service in a combat theater in the United States military”); Minn. Stat. § 609.115, Subd. 10 (2008) (providing for a special process at sentencing if the defendant is a veteran and has been diagnosed as having a mental illness by a qualified psychiatrist). | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. | What is the issue area of the decision? | [
"Criminal Procedure",
"Civil Rights",
"First Amendment",
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"Privacy",
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"Unions",
"Economic Activity",
"Judicial Power",
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0
] | sc_issuearea |
REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA v. CARROLL et al.
No. 83.
Argued December 9, 1949.
Decided February 6, 1950.
Hamilton Lokey, Deputy Assistant Attorney General of Georgia, argued the cause for petitioner. With him on the brief was Eugene Cook, Attorney General.
James A. Branch argued the cause for respondents. With him on the brief was Thomas B. Branch, Jr.
By special leave of Court, Max Goldman argued the cause for the Federal Communications Commission, as amicus curiae, urging reversal. With him on the brief were Solicitor General Perlman, Stanley M. Silverberg, Benedict P. Cottone and Richard A. Solomon.
Me. Justice Reed
delivered the opinion of the Court.
The Federal Communications Commission renewed a radio license only after the applicant, the Board of Regents, carried out a required repudiation of a contract with other persons, respondents here. The Commission had determined that unless the contract were given “no further effect” a renewal of the license would not be in the public interest. This was based on findings that the contract seriously jeopardized the applicant’s financial position and that it allowed the other persons to profit from a situation created by a previous contract with the applicant that the Commission had held illegal. May a state now enforce the repudiated contract against the applicant although this would have the practical effect of nullifying the repudiation required by the Commission? That is the federal question presented in this proceeding.
The question arises in this way. The Georgia School of Technology received radio station WGST in 1923 as a gift. Petitioner operated the station until January 1930, when it made a contract with the Southern Broadcasting Company for the operation of the station. The contract was to run for a ten-year period, and the company was to receive all the earnings of the station except a percentage of the gross receipts. This percentage, which varied up to 10%, was to be paid Regents. Southern Broadcasting Stations, Inc., of which respondents are the former stockholders, succeeded to the rights of the company. The contract was extended for a period to end January 6, 1950. On execution both the original contract and the extension were filed with the Commission. 10 F. C. C. 110, 114.
Various renewals of petitioner’s license were made during this period, but when petitioner applied for a renewal in 1940, the Federal Communications Commission ordered a hearing to determine whether the contract arrangement constituted a violation of the Federal Communications Act and whether renewal of the license to petitioner would serve the public interest, convenience and necessity. Southern was permitted to intervene in the proceeding.
The Commission found that although the contract provided that its execution should not release the licensee from its right and duty to maintain general control over the station, actually petitioner had exercised only nominal authority. The contract itself stipulated that Southern should arrange the programs and attend to all program details. In the operations under the contract Southern had purchased additional equipment and apparatus without consulting with petitioner, and since 1930 nothing had been spent by petitioner for purchase or maintenance of the equipment. Southern had contracted in its own name with buyers of broadcasting time and for network service.
From these facts the Commission determined that Southern’s operation of petitioner’s station violated the Commission’s rule that a licensee must be responsible for the control and operation of the station, and that a licensee may not transfer to any person its responsibility as licensee except with the Commission’s written consent. It also held that the Communications Act of 1934 had been violated.
The Commission issued proposed findings of fact and conclusions of law on March 23, 1943. This decision refused the application for renewal of the license. It said, however, that “The Commission will consider the issuance of a renewal of the license to Georgia School of Technology provided the Commission is given assurance that the applicant is prepared to and will in fact assume and discharge the full responsibilities of a licensee.” 10 F. C. C. at 121. It permitted temporary continued operation. The proposal was adopted by the Commission May 8, 1943. No appeal was taken by petitioner or respondents from this order. See 47 U. S. C. § 402.
In order to obviate the Commission’s objection to Southern’s operation of the station, petitioner on April 15, 1943, entered into the contract here in issue. Under it petitioner purchased from respondents all the shares of stock of Southern, and, as the consideration, agreed to pay each month a sum equal to 15% of the net billings of the station until January 6, 1950. Petitioner proceeded to liquidate Southern and to transfer the assets, consisting of station equipment, broadcasting contracts and sundries, to itself in trust for the Georgia School of Technology. Since July 9, 1943, petitioner has itself managed, directed and controlled the affairs of the station.
On May 23, 1943, petitioner filed another application for renewal of its license. While respondents had actual knowledge of this second proceeding, they were never parties to it by intervention or otherwise. After hearings, the Commission held that the public interest, convenience or necessity would not be served by a grant of the application. Estimating that under the new contract petitioner would be paying out 70% of the net earnings of the station, it found that petitioner’s financial ability to conduct the station in the public interest would be jeopardized. It was concerned especially because it thought that the use of so much of the station income for the contract obligations would lessen the station’s ability to enter the fields of FM and television. The Commission also found that the contract represented an effort to give further effect to the earlier managerial arrangements, which it had held violative of the Act and its regulations. It thought that the agreed price for the stock — estimated at over $300,000 — was excessive because the equipment had only an estimated value of $50,000. Southern’s title to that was questionable, and Southern had no “legal interest” in the operation of the station. While the Commission did not undertake to pass upon the validity of the stock purchase contract as a matter of contract law, it concluded (11 F. C. C. 71, 76):
“A grant of the renewal application under circumstances where a party to an arrangement found by the Commission to be in contravention of law would continue to profit from such arrangement would not be in the public interest since it would, in effect, condone such illegality and thwart the Commission’s efforts to enforce the requirements of the act.”
The Commission on September 19, 1945, again denied the application, but it allowed the petitioner to continue operations and to make a new application, provided it should affirmatively show “that no further effect is given to the agreements” between petitioner and respondents. One of these agreements is the stock purchase contract involved in this present litigation.
Thereupon, the Regents on October 11, 1945, adopted a resolution repudiating the stock purchase contract, and added a copy of the resolution to its pending application for renewal of its license. By a statement attached to its application, the Regents informed the Commission that respondents had been notified of the resolution and announced that no settlement would be made with respondents without Commission approval. Respondents do not deny notice of the repudiation. On March 7, 1946, the Commission issued to petitioner the requested license, and has since renewed it for the period ending May 1, 1950. Thus petitioner has been able to operate its station without interruption throughout the years.
Until the repudiation, the agreed payments had been made under the contract. After the notice to respondents petitioner made no further payments, nor did it at any time, so far as the record indicates, make any effort or offer to return to respondents the property and the intangible assets acquired through the contract. The Regents cannot now restore the parties to their former position. The proceeding on review was brought by the respondents for an accounting on the contract in the Superior Court of Fulton County, Georgia, in June, 1947, for the sums accruing from August, 1945.
Petitioner defended the action on the ground that to permit recovery would be an interference with the Commission’s power over broadcasting. It also contended that the Commission’s requirement of disaffirmance made the purchase contract impossible of performance. The case was submitted by stipulation and documentary evidence, and there was no conflict as to the facts. The trial court entered a judgment for the amounts due under the contract through August, 1947, some $145,000. The court held that “The Federal Communications Commission was without jurisdiction to nullify, change or anywise modify the duties and obligations of the parties to the contract of April 15, 1943.” It also decided that the Commission order requiring disaffirmance of the purchase contract “does not constitute a valid defense or bar as a matter of fact or law to the right of the plaintiffs to enforce the provisions of the contract of April 15, 1943, on the ground that said order has rendered performance on the part of the defendant Board of Regents impossible.”
The Court of Appeals of Georgia accepted the trial court’s determinations and affirmed. Since an important question of the relation of federal administrative power to state judicial power was involved, we granted certiorari. 338 U. S. 846.
We may summarily dispose of the defense of impossibility of performance. It is a matter of state law. It was a defense made in a state court to a contract entered into under the law of Georgia. Since petitioner actually was an operating licensee up to the entry of the judgment, the state court thought petitioner remained liable under the contract.
Whatever power the Federal Communications Commission had to affect the rights of the parties under these contracts rests on the Communications Act of 1934 and its amendments. The sections pertinent to the determination of this case appear in the margin.
To lay bare the controlling issue in this case, we can remove several matters from discussion as not significant to our decision. There is no challenge to the Commission’s ruling that Southern’s operation of the station violated § 310 (b) and the regulations in that it constituted a transfer of the licensee’s responsibilities without consent of the Commission. We assume its soundness. Similarly we accept the ruling that the payments contemplated under the stock purchase contract made the petitioner financially unacceptable as a licensee, and we assume the validity of the Commission’s conclusion that petitioner might be denied a license because the price promised respondents under the stock purchase contract permitted them to profit from their prior invalid arrangement. Thus our inquiry is narrowed to the point of whether in the light of the Supremacy Clause of the Constitution a state may enter a judgment that grants respondents a recovery on the very stock purchase contract that justified the Commission’s refusal of a license.
Our former decisions interpretative of the Communications Act furnish a basis for examining this question. As an administrative body, the Commission must find its powers within the compass of the authority given it by Congress. When to assert its undoubted power to regulate radio channels, Congress set up the Federal Communications Commission, it prescribed licensing as the method of regulation. 47 U. S. C. § 307. In its action on licenses, the Commission is to be guided by what we have called the “touchstone” of “public convenience, interest, or necessity.” Since the licensee receives no rights in the channel beyond the term of its license, the Commission may grant a license to a competitor even though it results in an economic injury to an existing station. Although the licensee’s business as such is not regulated, the qualifications of the licensee and the character of its broadcasts may be weighed in determining whether or not to grant a license. Federal Communications Commission v. Sanders Radio Station, 309 U. S. 470, 475; National Broadcasting Co., Inc. v. United States, 319 U. S. 190, 218, 227. These cases make clear that the Commission’s regulatory powers center around the grant of licenses. They contain no reference to any sanctions, other than refusal or revocation of a license, that the Commission may apply to enforce its decisions.
Radio Station WOW, Inc. v. Johnson, 326 U. S. 120, which required an examination into the respective powers of state courts and the Communications Commission, is particularly applicable to this case. The owner of licensed station WOW had leased the facilities for a term of years and had secured approval from the Commission of a transfer of the license to the lessee. The state courts set aside the lease for fraud and ordered a retransfer of the physical facilities to the lessor. The essential holding, so far as it relates to our present problem, lies in these words at p. 131:
“We have no doubt of the power of the Nebraska court to adjudicate, and conclusively, the claim of fraud in the transfer of the station by the Society to WOW and upon finding fraud to direct a reconveyance of the lease to the Society. And this, even though the property consists of licensed facilities and the Society chooses not to apply for retransfer of the radio license to it, or the Commission, upon such application, refuses the retransfer. The result may well be the termination of a broadcasting station.”
In the WOW case, the Commission had not passed upon the question of fraud, but if at the time of the state adjudication there had been a finding by the Commission that the facts did not justify a refusal to transfer the license, this finding would not have affected the right of the state court to determine independently the issue of fraud.
We now come to consider the arguments put forward to show that under the Act the Commission’s orders are effective to bar recovery. One suggestion is that petitioner’s position has a specific statutory basis in § 303 (r), which permits the Commission to prescribe such “conditions” as are “necessary to carry out the provisions” of the Act. We do not think the suggestion is sound. Congress has enabled the Commission to regulate the use of broadcasting channels through a licensing power. It is in connection with this power that § 303 (r) is to be interpreted. The Commission may impose on an applicant conditions which it must meet before it will be granted a license, but the imposition of the conditions cannot directly affect the applicant’s responsibilities to a third party dealing with the applicant.
Petitioner also urges that a state court judgment should not be allowed to thwart the Commission’s efforts to enforce the requirements of the Act. Since the Communications Act does not specifically empower the Commission to adjudicate the contractual liability of a licensee for its contracts or to declare a licensee’s contracts unenforceable in the courts, for this defense petitioner must depend upon general implications from the Act.
The argument is that if before it issues a license the Commission cannot be assured that it has secured an effective cancellation of a contract like the one in suit, it must choose between two undesirable alternatives. It must either condone the violation of its rules for operation and forsake its duty to insure that only the financially able may be licensees, or it must deprive the public of the advantage of a station under the management of the Board of Regents.
The renewal application indeed presented the Commission with a hard choice. For ten years the operating arrangement had continued. Suddenly, after the station had been brought to a favorable profit position under Southern’s management, the Commission became conscious of the violation of law involved in the management contract. When the management contract was superseded by the purchase contract, the Commission insisted that petitioner could not be a suitable licensee unless the latter contract were given “no effect.” For some reason, which has not been explained to us, the Commission was satisfied that the contract was of “no effect” when the petitioner made a unilateral disaffirmance, and it did not think it necessary to require that Southern agree to the cancellation before a license would issue.
This choice of method lay within the Commission’s power. Considerations unknown to us may have dictated this procedure. Before issuing a license in similar cases, however, the Commission has successfully obtained from both parties to a contract clear and unequivocal assent to its cancellation. Indeed, the Commission might refuse to issue a license until the applicant has demonstrated that it has been freed by the state courts from the obnoxious contract.
But if the Commission was placed in a dilemma from which it had no escape, that dilemma was the inevitable result of the statutory scheme of licensing. The Commission itself has indicated to Congress that it is embarrassed by its inability to issue cease and desist orders, that it has at its disposal only the cumbersome weapons of criminal penalties and license refusal and revocation. But, so far as we are aware, the Commission request did not go beyond asking for power to issue a cease and desist order against a licensee. No power was sought against a third party. Under the present statute, the Commission could make a choice only within the scope of its licensing power, i. e., to grant or deny the license on the basis of the situation of the applicant. It could insist that the applicant change its situation before it granted a license, but it could not act as a bankruptcy court to change that situation for the applicant. The public interest, after all, is in the effective use of the available channels, and only to that extent in what particular applicant receives a license. The Commission has said frequently that controversies as to rights between licensees and others are outside the ambit of its powers. We do not read the Communications Act to give authority to the Commission to determine the validity of contracts between licensees and others.
Finally, we find irrelevant the fact that respondents had knowledge of the Commission proceeding denying a license unless the stock purchase contract were given “no effect.” Even if we should assume that respondents had the right to intervene in that proceeding and to appeal from the Commission’s decision, their failure to do so could not destroy their rights under the contract. It could affect them no more than to prevent them from challenging in any court the Commission’s decision that a license might be denied Regents for the reasons given by the Commission. We have assumed the correctness of the refusal to grant a license, but we hold that the Commission’s order cannot directly affect the validity of the contract. It is a most extraordinary rule that would require respondents to intervene upon pain of suffering a binding judgment which the Commission could not have lawfully imposed upon them had they been actual parties.
Affirmed.
Mr. Justice Black and Mr. Justice Douglas took no part in the consideration or decision of this case.
As nothing of importance in this case turns upon the details of title, we hereafter refer to the petitioner as petitioner or Regents. We treat it as owner, applicant for license or licensee. Contracts for the operation of WGST were made by the Board of Trustees of the Georgia School of Technology until by state legislation management of the School affairs passed from that Board to the Board of Regents of the University System of Georgia. Thereafter the Regents handled the station for the School. The applications for license have been made and the licenses issued in the name of the Georgia School of Technology.
10 F. C. C. 110, 120. The Commission based its ruling particularly on its interpretation of the rule in F. C. C. Rules & Regulations § 1.364 (Part I, Revised to Feb. 1, 1945), and on §§301, 307, 308, 309 and 310 of the Communications Act (47 U. S. C.). It also called attention to the application form for renewals, one of the questions on which, No. 11c, asked: “Does applicant have absolute control of station, both as to physical operation and programs broadcast?”
I, e., the sales of broadcasting time less commissions or disbursements to others.
“Resolved, by the Board of Regents of the University System of Georgia that the ruling of the Federal Communications Commission having made the contract with the stockholders of Southern Broadcasting Stations, Inc. legally impossible of performance, the board hereby approves the action of its WGST Radio Committee in directing that said contract be not further complied with. This action is taken without prejudice to a fair adjustment or settlement of whatever rights the said stockholders may have, subject to the approval or consent of the Federal Communications Commission.”
“The agreement effective April 15, 1943, was cancelled by the Regents of the University System of Georgia by resolution adopted at a meeting of the Board of Regents held on October 11, 1945. A true and correct copy of the resolution is hereto attached as Exhibit J. The other parties to the agreement have been notified orally of the cancellation of the agreement and no payments under the agreement have been made since the issuance of the proposed decision of the Commission in Docket No. 6534 on September 20, 1945. The Board of Regents will not undertake to negotiate any adjustment or settlement with the other parties to the agreement unless and until said parties first obtain the approval or consent of the Federal Communications Commission to negotiate a settlement of whatever rights said parties may have under the agreement.”
There are further allegations of defense in the answer that may be summarized as a statement that respondents had actual knowledge of the filing of the renewal application that resulted in issuance of the license; that respondents had actual knowledge of the hearings, of the proposed decision and of the final order of the Commission. The petitioner further alleged that respondents knew the operation of the station depended upon the grant of a license.
We consider these allegations as to notice only as they bear upon the effect of the Board order on petitioner’s responsibility under the contract. Petitioner did not plead them as an estoppel to recovery. Neither of the Georgia courts treated the allegations as a basis of estoppel under the law of Georgia. This would be a matter of state law.
78 Ga. App. 292, 50 S. E. 2d 808 (cert. by the Sup. Ct. of Georgia denied, 78 Ga. App. 898).
47 U. S. C.:
§ 151. “For the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make [it] available, so far as possible, to all the people of the United States . . . there is created a commission to be known as the ‘Federal Communications Commission’ . . . .”
§ 154. “ (i) The Commission may perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions.”
§ 301. “It is the purpose of this chapter, among other things, to maintain the control of the United States over all the channels of interstate and foreign radio transmission; and to provide for the use of such channels, but not the ownership thereof, by persons for limited periods of time, under licenses granted by Federal authority, and no such license shall be construed to create any right, beyond the terms, conditions, and periods of the license. No person shall use or operate any apparatus for the transmission of energy or communications or signals by radio . . . , except under and in accordance with this chapter and with a license in that behalf granted under the provisions of this chapter.”
§ 303. “Except as otherwise provided in this chapter, the Commission from time to time, as public convenience, interest, or necessity requires, shall—
. . . . .
“(r) Make such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of this chapter, . . . .”
§ 307. “ (a) The Commission, if public convenience, interest, or necessity will be served thereby, subject to the limitations of this chapter, shall grant to any applicant therefor a station license provided for by this chapter.”
§307. “(d) . . . but action of the Commission with reference to the granting of such application for the renewal of a license shall be limited to and governed by the same considerations and practice which affect the granting of original applications.”
§308. “(b) All such applications shall set forth such facts as the Commission by regulation may prescribe as to the citizenship, character, and financial, technical, and other qualifications of the applicant to operate the station;
§ 309. “ (a) If upon examination of any application for a station license or for the renewal or modification of a station license the Commission shall determine that public interest, convenience, or necessity would be served by the granting thereof, it shall authorize the issuance, renewal, or modification thereof in accordance with said finding. . . .”
§ 310. “(b) The station license required, the frequencies authorized to be used by the licensee, and the rights therein granted shall not be transferred, assigned, or in any manner either voluntarily or involuntarily disposed of, or indirectly by transfer of control of any corporation holding such license, to any person, unless the Commission shall, after securing full information, decide that said transfer is in the public interest, and shall give its consent in writing.”
§ 312. “(a) Any station license may be revoked for false statements either in the application or in the statement of fact which may be required by section 308 of this title, or because of conditions revealed by such statements of fact as may be required from time to time which would warrant the Commission in refusing to grant a license on an original application, or for failure to operate substantially as set forth in the license, or for violation of or failure to observe any of the restrictions and conditions of this chapter or of any regulation of the Commission authorized by this chapter or by a treaty ratified by the United States:....”
§ 405. “After a decision, order, or requirement has been made by the Commission in any proceeding, any party thereto may at any time make application for rehearing of the same, or any matter determined therein, and it shall be lawful for the Commission in its discretion to grant such a rehearing if sufficient reason therefor be made to appear: . . . .”
10 F. C. C. 110, 120; 11 F. C. C. 71, 76.
11 F. C. C. 71 at 75; see § 308 (b), note 8. See Federal Communications Commission v. Sanders Radio Station, 309 U. S. 470, 475.
F.C.C. 71, 76.
The Georgia court similarly conceived the issue:
“The Federal Communications Commission is an administrative agency of the Federal Government, empowered to enforce the provisions of the Communications Act of 1934 (47 U. S. C. A., § 151, et seq.), and has the power and authority to grant or refuse licenses to radio-broadcasting stations, with a view to subserving the public interest so that the people shall have the best possible radio service; but nothing in the power granted to the commission, or in said communications act of Congress, gives to the commission the power and authority to regulate the private contracts and business of those operating radio-broadcasting stations, where the same is not necessary in the protection of the public interest, and where such contracts do not affect the interstate transactions of the radio station.” 78 Ga. App. 292, 50 S. E. 2d 808, 809.
“The Federal Communications Commission has power in the ‘public interest’ under said act to refuse licenses to stations which engage in practices contrary to the public interest, convenience, or necessity. In each case that comes before it, the commission must exercise ultimate judgment whether the grant of a license in the particular instance would serve the public interest, convenience or necessity. . . .
“The Federal Communications Commission has the power and authority in granting a license to a radio station to see that the public interest and convenience are subserved thereby, and an important element of public interest and convenience affecting the issue of a radio-broadcasting license is the ability of the licensee to render the best practicable service to the community reached by his broadcasts. The commission must see to it that all applicants for radio-station licenses have the necessary technical ability to broadcast programs, and that the stations are properly constructed and properly and adequately manned and do not interfere with other stations, and that all licensees are responsible, morally and financially. . . .” 78 Ga. App. 298-99, 50 S. E. 2d 812, 813.
“. . . Matters of private concern, and contracts affecting such rights, which do not have as their subject-matter the rights conferred by a license, or do not substantially affect such rights, are not within the scope of the commission’s power to regulate and control in the public interest broadcasting by radio stations and licenses to such stations. . . .” 78 Ga. App. 300, 50 S. E. 2d 813.
There is some language in the opinion (78 Ga. App. 292, 302, 50 S. E. 2d 808, 814) from which it might be inferred that the Court of Appeals thought that it could review the conclusion of the Commission that the issuance of the license with the contract in effect would adversely affect the public interest. In view of the statements above and the general tenor of the opinion, we are satisfied that the Court of Appeals did not claim a power to decide the contract’s effect upon an applicant’s ability to meet the requirements necessary for a license from the Commission. The Court of Appeals bottomed its decision on the lack of power in the Commission to affect legal responsibility under this contract.
American School of Magnetic Healing v. McAnnulty, 187 U. S. 94, 110; Helvering v. Sabine Trans. Co., 318 U. S. 306, 311; Addison v. Holly Hill Co., 322 U. S. 607, 617-18; Ashbacker Radio Corp. v. F. C. C., 326 U. S. 327, 333, dissent, 335. Cf. § 9 (a) Administrative Procedure Act, 60 Stat. 242:
“Sec. 9. In the exercise of any power or authority—
"(a) In general. — No sanction shall be imposed or substantive rule or order be issued except within jurisdiction delegated to the agency and as authorized by law.”
Federal Radio Commission v. Nelson Bros. Co., 289 U. S. 266, 279; National Broadcasting Co., Inc. v. United States, 319 U. S. 190, 210.
Federal Communications Comm’n v. Pottsville Broadcasting Co., 309 U. S. 134, 138; National Broadcasting Co., Inc. v. United States, 319 U. S. 190, 216. 47 U. S. C. § 307 (a).
Federal Communications Commission v. Sanders Radio Station, 309 U. S. 470, 473, 475, 476.
The Communications Act has no provision such as appears in the National Labor Relations Act, § 10 (e), 49 Stat. 454, authorizing the Labor Board to require affirmative action from those who violate the Labor Act. Yet, even in cases under that Act, third persons were left free to assert rights under their contracts. National Licorice Co. v. Labor Board, 309 U. S. 350, 365.
11 F. C. C. 71, 76.
Matter of Westinghouse Electric and Manufacturing Co., 8 F. C. C. 195; In re Cornell University (WHCU), Docket No. 5820 (Order, Oct. 15, 1940).
See Matter of the City of Camden (WCAM), 4 Pike and Fischer Radio Regulations 344, 384.
Hearings before a Subcommittee of the Senate Committee on Interstate and Foreign Commerce on S. 1333, 80th Cong., 1st Sess. 14, 51.
National Broadcasting Co., Inc. v. United States, supra, at 215-16, 218.
See In re Petition of Fannie I. Leese et al., 5 F. C. C. 364; Matter of Hearst Radio, Inc., 7 F. C. C. 292, 295; In re Assignment of License of Station WMCA, 10 F. C. C. 241, 242.
See Red River Broadcasting Co. v. Federal Communications Commission, 69 App. D. C. 1, 98 F. 2d 282. | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded. | What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed? | [
"stay, petition, or motion granted",
"affirmed",
"reversed",
"reversed and remanded",
"vacated and remanded",
"affirmed and reversed (or vacated) in part",
"affirmed and reversed (or vacated) in part and remanded",
"vacated",
"petition denied or appeal dismissed",
"modify",
"remand",
"unusual disposition"
] | [
1
] | sc_lcdisposition |
DOE et al. v. McMILLAN et al.
No. 71-6356.
Argued December 13, 1972
Decided May 29, 1973
White, J., delivered the opinion of the Court, in which Douglas, Brennan, Marshall, and Powell, JJ., joined. Douglas, J., filed a concurring opinion, in which Brennan and Marshall, JJ., joined, post, p. 325. Burger, C. J., filed an opinion concurring in part and dissenting in part, post, p. 331. Blackmun, J., filed an opinion concurring in part and dissenting in part, in which Burger, C. J., joined, post, p. 332. Rehnquist, J., filed an opinion concurring in part and dissenting in part, in which Burger, C. J., and Black-mun, J., joined, and in Part I of which Stewart, J., joined, post, p. 338.
Michael J. Voider argued the cause for petitioners. With him on the brief was Jean Camper Cahn.
Fred M. Vinson, Jr., and William C. Cramer argued the cause for the Legislative respondents. With them on the brief were Robert S. Erdahl, James S. Rubin, Richard M. Haber, Benton L. Becker, and Walter C. DeVaughn. David P. Sutton argued the cause for the District of Columbia respondents. With him on the brief were C. Francis Murphy and Richard W. Barton.
Mr. Justice White
delivered the opinion of the Court.
This case concerns the scope of congressional immunity under the Speech or Debate Clause of the United States Constitution, Art. I, § 6, cl. 1, as well as the reach of official immunity in the legislative context. See Barr v. Matteo, 360 U. S. 564 (1959); Tenney v. Brandhove, 341 U. S. 367 (1951).
By resolution adopted February 5, 1969, H. Res. 76, 91st Cong., 1st Sess., 115 Cong. Rec. 2784, the House of Representatives authorized the Committee on the District of Columbia or its subcommittee “to conduct a full and complete investigation and study of . . . the organization, management, operation, and administration” of any department or agency of the government of the District of Columbia or of any independent agency or instrumentality of government operating solely within the District of Columbia. The Committee was given subpoena power and was directed to “report to the House as soon as practicable . . . the results of its investigation and study together with such recommendations as it deems advisable.” On December 8, 1970, a Special Select Subcommittee of the Committee on the District of Columbia submitted to the Speaker of the House a report, H. R. Rep. No. 91-1681 (1970), represented to be a summary of the Subcommittee’s investigation and hearings devoted to the public school system of the District of Columbia. On the same day, the report was referred to the Committee of the Whole House on the State of the Union and was ordered printed. 116 Cong. Rec. 40311 (1970). Thereafter, the report was printed and distributed by the Government Printing Office pursuant to 44 U. S. C. §§ 501 and 701.
The 450-page report included among its supporting data some 45 pages that are the gravamen of petitioners’ suit. Included in the pertinent pages were copies of absence sheets, lists of absentees, copies of test papers, and documents relating to disciplinary problems of certain specifically named students. The report stated that these materials were included to “give a realistic view” of a troubled school and “the lack of administrative efforts to rectify the multitudinous problems there,” to show the level of reading ability of seventh graders who were given a fifth-grade history test, and to illustrate suspension and disciplinary problems.
On January 8, 1971, petitioners, under pseudonyms, brought an action in the United States District Court for the District of Columbia on behalf of themselves, their children, and all other children and parents similarly situated. The named defendants were (1) the Chairman and members of the House Committee on the District of Columbia; (2) the Clerk, Staff Director, and Counsel of the Committee; (3) a consultant and an investigator for the Committee; (4) the Superintendent of Documents and the Public Printer; (5) the President and members of the Board of Education of the District of Columbia; (6) the Superintendent of Public Schools of the District of Columbia; (7) the principal of Jefferson Junior High School and one of the teachers at that school; and (8) the United States of America.
Petitioners alleged that, by disclosing, disseminating, and publishing the information contained in the report, the defendants had violated the petitioners’ and their children’s statutory, constitutional, and common-law rights to privacy and that such publication had caused and would cause grave damage to the children’s mental and physical health and to their reputations, good names, and future careers. Petitioners also alleged various violations of local law. Petitioners further charged that “unless restrained, defendants will continue to distribute and publish information concerning plaintiffs, their children and other students.” The complaint prayed for an order enjoining the defendants from further publication, dissemination, and distribution of any report con-taming the objectionable material and for an order recalling the reports to the extent practicable and deleting the objectionable material from the reports already in circulation. Petitioners also asked for compensatory and punitive damages.
The District Court, after a hearing on motions for a temporary restraining order and for an order against further distribution of the report, dismissed the action against the individual defendants on the ground that the conduct complained of was absolutely privileged. A divided panel of the United States Court of Appeals for the District of Columbia Circuit affirmed. Without determining whether the complaint stated a cause of action Under the Constitution or any applicable law, the majority held that the Members of Congress, the Committee staff employees, and the Public Printer and Superintendent of Documents were immune from the liability asserted against them because of the Speech or Debate Clause and that the official immunity doctrine recognized in Barr v. Matteo, supra, barred any liability on the part of the District of Columbia officials as well as the legislative employees. We granted certiorari, 408 U. S. 922.
I
To “prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary,” Gravel v. United States, 408 U. S. 606, 617 (1972), Art. I, § 6, cl. 1, of the Constitution provides that “for any Speech or Debate in either House, they [Members of Congress] shall not be questioned in any other Place.”
“The Speech or Debate Clause was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch. It thus protects Members against prosecutions that directly impinge upon or threaten the legislative process.” Id., at 616.
The Speech or Debate Clause has been read “broadly to effectuate its purposes,” United States v. Johnson, 383 U. S. 169, 180 (1966); Gravel v. United States, supra, at 624, and includes within its protections anything “generally done in a session of the House by one of its members in relation to the business before it.” Kilbourn v. Thompson, 103 U. S. 168, 204 (1881); United States v. Johnson, supra, at 179; Gravel v. United States, supra, at 624; Powell v. McCormack, 395 U. S. 486, 502 (1969); United States v. Brewster, 408 U. S. 501, 509, 512-513 (1972). Thus “voting by Members and committee reports are protected” and “a Member’s conduct at legislative committee hearings, although subject to judicial review in various circumstances, as is legislation itself, may not be made the basis for a civil or criminal judgment against a Member because that conduct is within the ‘sphere of legitimate legislative activity.’ ” Gravel v. United States, supra, at 624.
Without belaboring the matter further, it is plain to us that the complaint in this case was barred by the Speech or Debate Clause insofar as it sought relief from the Congressmen-Committee members, from the Committee staff, from the consultant, or from the investigator, for introducing material at Committee hearings that identified particular individuals, for referring the report that included the material to the Speaker of the House, and for voting for publication of the report. Doubtless, also, a published report may, without losing Speech or Debate Clause protection, be distributed to and used for legislative purposes by Members of Congress, congressional committees, and institutional or^ individual legislative functionaries. At least in these respects, the actions upon which petitioners sought to predicate liability were “legislative acts,” Gravel v. United States, supra, at 618, and, as such, were immune from suit.
Petitioners argue that including in the record of the hearings and in the report itself materials describing particular conduct on the part of identified children was actionable because unnecessary and irrelevant to any legislative purpose. Cases in this Court, however, from Kilbourn to Gravel pretermit the imposition of liability on any such theory. Congressmen and their aides are immune from liability for their actions within the “legislative sphere,” Gravel v. United States, supra, at 624C625, even though their conduct, if performed in other than legislative contexts, would in itself be unconstitutional or otherwise contrary to criminal or civil statutes. Although we might disagree with the Committee as to whether it was necessary, or even remotely useful, to include the names of individual children in the evidence submitted to the Committee and in the Committee Report, we have no authority to oversee the judgment of the Committee in this respect or to impose liability on its Members if we disagree with their legislative judgment. The acts of authorizing an investigation pursuant to which the subject materials were gathered, holding hearings where the materials were presented, preparing a report where they were reproduced, and authorizing the publication and distribution of that report were all “integral part[s] of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.” Id., at 625. As such, the acts were protected by the Speech or Debate Clause.
Our cases make perfectly apparent, however, that everything a Member of Congress may regularly do is not a legislative act within the protection of the Speech or Debate Clause. “[T]he Clause has not been extended beyond the legislative sphere,” and “ [legislative acts are not all-encompassing.” Id., at 624 — 625. Members of Congress may frequently be in touch with and seek to influence the Executive Branch of Government, but this conduct “though generally done, is not protected legislative activity.” Id., at 625; United States v. Johnson, supra. Nor does the Speech or Debate Clause protect a private republication of documents introduced and made public at a committee' hearing, although the hearing was unquestionably part of the legislative process. Gravel v. United States, supra.
The proper scope of our inquiry, therefore, is whether the Speech or Debate Clause affords absolute immunity from private suit to persons who, with authorization from Congress, distribute materials which allegedly infringe upon the rights of individuals. The respondents insist that such public distributions are protected, that the Clause immunizes not only publication for the information and use of Members in the performance of their legislative duties but also must be held to protect “publications to the public through the facilities of Congress.” Public dissemination, it is argued, will serve “the important legislative function of informing the public concerning matters pending before Congress . . . .” Brief for Legislative Respondents 27.
We do not doubt the importance of informing the public about the business of Congress. However, the question remains whether the act of doing so, simply because authorized by Congress, must always be considered “an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings” with respect to legislative or other matters before the House. Gravel v. United States, supra, at 625. A Member of Congress may not with impunity publish a libel from the speaker’s stand in his home district, and clearly the Speech or Debate Clause would not protect such an act even though the libel was read from an official committee report. The reason is that republishing a libel under such circumstances is not an essential part of the legislative process and is not part of that deliberative process “by which Members participate in committee and House proceedings.” Ibid. By the same token, others, such as the Superintendent of Documents or the Public Printer or legislative personnel, who participate in distribution of actionable material beyond the reasonable bounds of the legislative task, enjoy no Speech or Debate Clause immunity.
Members of Congress are themselves immune for ordering or voting for a publication going beyond the reasonable requirements of the legislative function, Kilbourn v. Thompson, supra, but the Speech or Debate Clause no more insulates legislative functionaries carrying out such nonlegislative directives than it protected the Sergeant at Arms in Kilbourn v. Thompson when, at the direction of the House, he made an arrest that the courts subsequently found to be “without authority.” 103 U. S., at 200. See also Powell v. McCormack, 395 U. S., at 504; cf. Dombrowski v. Eastland, 387 U. S. 82 (1967). The Clause does not protect “criminal conduct threatening the security of the person or property of others, whether performed at the direction of the Senator in preparation for or in execution of a legislative act or done without his knowledge or direction.” Gravel v. United States, supra, at 622. Neither, we think, does it immunize those who publish and distribute otherwise actionable materials beyond the reasonable requirements of the legislative function.
Thus, we cannot accept the proposition that in order to perform its legislative function Congress not only must at times consider and use actionable material but also must be free to disseminate it to the public at large, no matter how injurious to private reputation that material might be. We cannot believe that the purpose of the Clause — “to prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary/’ Gravel v. United States, supra, at 617; Powell v. McCormack, supra, at 502; United States v. Johnson, 383 U. S., at 181 — will suffer in the slightest if it is held that those who, at the direction of Congress or otherwise, distribute actionable material to the public at large have no automatic immunity under the Speech or Debate Clause but must respond to private suits to the extent that others must respond in light of the Constitution and applicable laws. To hold otherwise would be to invite gratuitous injury to citizens for little if any public purpose. We are unwilling to sanction such a result, at least absent more substantial evidence that, in order to perform its legislative function, Congress must not only inform the public about the fundamentals of its business but also must distribute to the public generally materials otherwise actionable under local law.
Contrary to the suggestion of our dissenting Brethren, we cannot accept the proposition that our conclusion, that general, public dissemination of materials otherwise actionable under local law is not protected by the Speech or Debate Clause, will seriously undermine the “informing function” of Congress. To the extent that the Committee report is printed and internally distributed to Members of Congress under the protection of the Speech or Debate Clause, the work of Congress is in no way inhibited. Moreover, the internal distribution is “public” in the sense that materials internally circulated, unless sheltered by specific congressional order, are available for inspection by the press and by the public. We only deal, in the present case, with general, public distribution beyond the halls of Congress and the establishments of its functionaries, and beyond the apparent needs of the “due functioning of the [legislative] process.” United States v. Brewster, 408 U. S., at 516. -
That the Speech or Debate Clause has finite limits is important for present purposes. The complaint before us alleges that the respondents caused the Committee report “to be distributed to the public,” that “distribution of the report continues to the present,” and that, “unless restrained, defendants will continue to distribute •and publish” damaging information about petitioners and their children. It does not expressly appear from the complaint, nor is it contended in this Court, that either the Members of Congress or the Committee personnel did anything more than conduct the hearings, prepare the report, and authorize its publication. As we have stated, such acts by those respondents are protected by the Speech or Debate Clause and may not serve as a predicate for a suit. The complaint was therefore properly dismissed as to these respondents. Other respondents, however, are alleged to have carried out a public distribution and to be ready to continue such dissemination.
In response to these latter allegations, the Court of Appeals, after receiving sufficient assurances from the respondents that they had no intention of seeking a republication or carrying out further distribution of the report, concluded that there was no basis for injunctive relief. But this left the question whether any part of the previous publication and public distribution by respondents other than the Members of Congress and Committee personnel went beyond the limits of the legislative immunity provided by the Speech or Debate Clause of the Constitution. Until that question was resolved, the complaint should not have been dismissed on threshold immunity grounds, unless the Court of Appeals was correct in ruling that the action against the other respondents was foreclosed by the doctrine of official immunity, a question to which we now turn.
II
The official immunity doctrine, which “has in large part been of judicial making,” Barr v. Matteo, 360 U. S., at 569, confers immunity on Government officials of suitable rank for the reason that “officials of government should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties — suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government.” Id., at 571. 'pkg official-immunity doctrine seeks to reconcile two important considerations—
“[0]n the one hand, the protection of the individual citizen against pecuniary damage caused by oppressive or malicious action on the part of officials of the Federal Government; and on the other, the protection of the public interest by shielding responsible governmental officers against the harassment and inevitable hazards of vindictive or ill-founded damage suits brought on account of action taken in the exercise of their official responsibilities.” Id., at 565.
In the Barr case, the Court reaffirmed existing immunity law but made it clear that the immunity conferred might not be the same for all officials for all purposes. Id., at 573; see also Tenney v. Brandhove, 341 U. S., at 378; Dombrowski v. Eastland, 387 U. S., at 85. Judges, like executive officers with discretionary functions, have been held absolutely immune regardless of their motive or good faith. Barr v. Matteo, supra, at 569; Pierson v. Ray, 386 U. S. 547, 553-555 (1967). But policemen and like officials apparently enjoy a more limited privilege. Id., at 555-558. Also, the Court determined in Barr that the scope of immunity from defamation suits should be determined by the relation of the publication complained of to the duties entrusted to the officer. Barr v. Matteo, supra, at 573-574; see also the companion case, Howard v. Lyons, 360 U. S. 593, 597-598 (1959). The scope of immunity has always been tied to the “scope of . . . authority.” Wheeldin v. Wheeler, 373 U. S. 647, 651 (1963). In the legislative context, for instance, “[t]his Court has not hesitated to sustain the rights of private individuals when it found Congress was acting outside its legislative role.” Ten-ney v. Brandhove, supra, at 377. Thus, we have recognized “the immunity of legislators for acts within the legislative role,” Pierson v. Ray, supra, at 554, but have carefully confined that immunity to protect only acts within “the sphere of legitimate legislative activity.” Tenney v. Brandhove, supra, at 376; cf. Powell v. Mc-Cormack, supra.
Because the Court has not fashioned a fixed, invariable rule of immunity but has advised a discerning inquiry into whether the contributions of immunity to effective government in particular contexts outweigh the perhaps recurring harm to individual citizens, there is no ready-made answer as to whether the remaining federal respondents — the Public Printer and the Superintendent of Documents — should be accorded absolute immunity in this case. Of course, to the extent that they serve legislative functions, the performance of which would be immune conduct if done by Congressmen, these officials enjoy the protection of the Speech or Debate Clause. Our inquiry here, however, is whether, if they participate in publication and distribution beyond the legislative sphere, and thus beyond the protection of the Speech or Debate Clause, they are nevertheless protected by the doctrine of official immunity. Our starting point is at least a minimum familiarity with their functions and duties.
The statutes of the United States created the office of Public Printer to manage and supervise the Government Printing Office, which, with certain exceptions, is the authorized printer for the various branches of the Federal Government. 44 U. S. C. § 301. “Printing or binding may be done at the Government Printing Office only when authorized by law.” § 501. The Public Printer is authorized to do printing for Congress, §§ 701-741, 901-910, as well as for the Executive and Judicial Branches of Government, §§ 1101-1123. The Public Printer is authorized to appoint the Superintendent of Documents with duties concerning the distribution and sale of documents. §§ 1701-1722.
Under the applicable statutes, when either House of Congress orders a document printed, the Public Printer is to print the “usual number” unless a greater number is ordered. § 701. The “usual number” is 1,682, to be divided between bound and unbound copies and distributed to named officers or offices of the House and Senate, to the Library of Congress, and to the Superintendent of Documents for further distribution “to the State libraries and designated depositories.” Ibid. There are also statutory provisions for the printing of extra copies, § 702, bills and resolutions, §§ 706-708, public and private laws, postal conventions, and treaties, §§ 709-712, journals, § 713, the Congressional Directory, §§ 721-722, memorial addresses, §§ 723-724, and the Statutes at Large, §§ 728-729. Section 733 provides that “[t]he Public Printer on order of a Member of Congress, on prepayment of the cost, may reprint documents and reports of committees together with the evidence papers submitted, or any part ordered printed by the Congress.”
With respect to printing for the Executive and Judicial Branches, it is provided that “[a] head of an executive department . . . may not cause to be printed, and the Public Printer may not print, a document or matter unless it is authorized by law and necessary to the public business.” § 1102 (a). The executive departments and the courts are to requisition printing by certifying that it is “necessary for the public service.” § 1103.
The Superintendent of Documents has charge of the distribution of all public documents except those printed for use of the executive departments, “which shall be, delivered to the departments,” and for either House of Congress, “which shall be delivered to the Senate Service Department and House of Representatives Publications Distribution Service.” § 1702. He is thus in charge of the public sale and distribution of documents. The Public Printer is instructed to “print additional copies of a Government publication, not confidential in character, required for sale to the public by the Superintendent of Documents,” subject to regulation by the Joint Committee on Printing. § 1705.
It is apparent that under this statutory framework, the printing of documents and their general distribution to the public would be “within the outer perimeter” of the statutory duties of the Public Printer and the Superintendent of Documents. Barr v. Mateo, 360 U. S., at 575. Thus, if official immunity automatically attaches to any conduct expressly or impliedly authorized by law, the Court of Appeals correctly dismissed the complaint against these officials. This, however, is not the governing rule.
The duties of the Public Printer and his appointee, the Superintendent of Documents, are to print, handle, distribute, and sell Government documents. The Government Printing Office acts as a service organization for the branches of the Government. What it prints is produced elsewhere and is printed and distributed at the direction of the Congress, the departments, the independent agencies and offices, or the Judicial Branch of the Government. The Public Printer and Superintendent of Documents exercise discretion only with respect to estimating the demand for particular documents and adjusting the supply accordingly. The existence of a Public Printer makes it unnecessary for every Government agency and office to have a printer of its own. The Printing Office is independently created and manned and invested with its own statutory duties; but, we do not think that its independent establishment carries with it an independent immunity. Rather, the Printing Office is immune from suit when it prints for an executive department for example, only to the extent that it would be if it were part of the department itself or, in other words, to the extent that the department head himself would be immune if he ran his own printing press and distributed his own documents. To hold otherwise would mean that an executive department could acquire immunity for non-immune materials merely by presenting the proper certificate to the Public Printer, who would then have the duty to print the material. Under such a holding, the department would have a seemingly foolproof method for manufacturing immunity for materials which the court would not otherwise hold immune if not sufficiently connected with the “official duties” of the department. Howard v. Lyons, -360 U. S., at 597.
Congress has conferred no express statutory immunity on the Public Printer or the Superintendent of Documents. Congress has not provided that these officials should be immune for printing and distributing materials where those who author the materials would not be. We thus face no statutory or constitutional problems in interpreting this doctrine of “judicial making.” Barr v. Matteo, 360 U. S., at 569. We do, however, write in the shadow of Board of Regents of State Colleges v. Roth, 408 U. S. 564 (1972), and Wisconsin v. Constantineau, 400 U. S. 433 (1971), where the Court advised caution “[wjhere a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him . . . Id., at 437. We conclude that, for the purposes of the judicially fashioned doctrine of immunity, the Public Printer and the Superintendent of Documents are no more free from suit in the case before us than would be a legislative aide who made copies of the materials at issue and distributed them to the public at the direction of his superiors. See Dombrowski v. East-land, 387 U. S. 82 (1967). The scope of inquiry becomes equivalent to the inquiry in the context of the Speech or Debate Clause, and the answer is the same. The business of Congress is to legislate; Congressmen and aides are absolutely immune when they are legislating. But when they act outside the “sphere of legitimate legislative activity,” Tenney v. Brandhove, 341 U. S., at 376, they enjoy no special immunity from local laws protecting the good name or the reputation of the ordinary citizen.
Because we think the Court of Appeals applied the immunities of the Speech or Debate Clause and of the doctrine of official immunity too broadly, we must reverse its judgment and remand the case for appropriate further proceedings. We are unaware, from this record, of the extent of the publication and distribution of the report which has taken place to date. Thus, we have little basis for judging whether the legitimate legislative needs of Congress, and hence the limits of immunity, have been exceeded. These matters are for the lower courts in the first instance.
Of course, like the Court of Appeals, we indicate nothing as to whether petitioners have pleaded a good cause of action or whether respondents have other defenses, constitutional or otherwise. We have dealt only with the threshold question of immunity.
The judgment of the Court of Appeals is reversed in part and affirmed in part, and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion.
So ordered.
The Court of Appeals’ opinion terms the materials “somewhat derogatory.” The absentee lists named students who were frequent “class cutters.” Of the 29 test papers published in the report, 21 bore failing grades; all included the name of the student being tested. The letters, memoranda, and other documents relating to disciplinary problems detailed conduct of specifically named students. Some of the deviant conduct described involved sexual perversion and criminal violations.
The information was obtained voluntarily from District of Columbia school personnel by Committee investigators.
The prayer also included a request for an injunction prohibiting future disclosure of “confidential information” and requiring the District of Columbia School Board “to establish rules and regulations regarding the confidentiality of school papers and the right of privacy of students in the schools of the District of Columbia.”
The District Court also dismissed the suit against the United States for failure to exhaust administrative remedies. 28 U. S. C. § 2675 (a). That ruling is not challenged here.
The Court of Appeals also independently found that injunctive relief would not issue because of assurances from the federal defendants that no republication or further distribution of the report was contemplated. With respect to petitioners’ request for injunctive relief against the District of Columbia officials, the Court found that, because of the adoption of new policies concerning confidential information, “there is no substantial threat of future injury to appellants.”
“Our speech or debate privilege was designed to preserve legislative independence, not supremacy. Our task, therefore, is to apply the Clause in such a way as to insure the independence of the legislature without altering the historic balance of the three co-equal branches of Government.” United States v. Brewster, 408 U. S. 501, 508 (1972).
In Gravel, we held that "the Speech or Debate Clause applies not only to a Member but also to his aides insofar as the conduct of the latter would be a protected legislative act if performed by the Member himself.” Gravel v. United States, 408 U. S. 606, 618 (1972).
The republication of a libel, in circumstances where the initial publication is privileged, is generally unprotected. See generally 1 F. Harper & F. James, The Law of Torts § 5.18 (1956); W. Prosser, Torts 766-769 (4th ed. 1971). See also Gravel v. United States, 408 U. S., at 622-627.
“In Kilbourn, the Speech or Debate Clause protected House Members who had adopted a resolution authorizing Kilbourn’s arrest; that act was clearly legislative in nature. But the resolution was subject to judicial review insofar as its execution impinged on a citizen's rights as it did there. That the House could with impunity order an unconstitutional arrest afforded no protection for those who made the arrest.” Gravel v. United. States, 408 U. S., at 618.
Although, as pointed out by my dissenting Brethren, the acts of Senator Gravel were not ordered or authorized by Congress or a congressional committee, Gravel v. United States, 408 U. S., at 626, the fact of congressional authorization for the questioned act is not sufficient to insulate the act from judicial scrutiny. In Powell v. McCormack, 395 U. S. 486 (1969), for instance, we reviewed the acts of House employees "acting pursuant to express orders of the House.” Id., at 504. We concluded that “although an action against a Congressman may be barred by the Speech or Debate Clause, legislative employees-who participated in the unconstitutional activity are responsible for their acts.” Ibid. See also Kilbourn v. Thompson, 103 U. S. 168 (1881); Dombrowski v. Eastland, 387 H. S. 82 (1967).
We have no occasion in this case to decide whether or under what circumstances, the Speech or Debate Clause would afford immunity to distributors of allegedly actionable materials from grand jury questioning, criminal charges, or a suit by the executive to restrain distribution, where Congress has authorized the particular public distribution.
While an inquiry such as is involved in the present case, because it involves two coordinate branches of Government, must necessarily have separation of powers implications, the separation of powers doctrine has not previously prevented this Court from reviewing the a'cts of Congress, see, e. g., Kübourn v. Thompson, supra; Dom-browski v. Eastland, supra, even when the Executive Branch is also involved, see, e. g., United States v. Brewster, supra; Gravel v. United States, supra.
Both before and after Barr, official immunity has been held applicable to officials of the Legislative Branch. See Tenney v. Brandhove, 341 U. S. 367 (1951); Dombrowski v. Eastland, supra.
For the authorization to supply sufficient copies for such distribution see 44 U. S. C. § 738. The Public Printer is also required to furnish the Department of State with 20 copies of all congressional documents and reports. § 715.
With respect to the District of Columbia respondents, the Court of Appeals found that they were acting within the scope of their authority under applicable law and, as a result, were immune from suit. We do not disturb the judgment of the Court of Appeals in this respect.
We thus have no occasion to consider Art. I, § 5, cl. 3, which requires that “Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy . . nor need we deal with publications of the Judicial Branch and the legal immunities that may be attached thereto. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss. | What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed? | [
"stay, petition, or motion granted",
"affirmed (includes modified)",
"reversed",
"reversed and remanded",
"vacated and remanded",
"affirmed and reversed (or vacated) in part",
"affirmed and reversed (or vacated) in part and remanded",
"vacated",
"petition denied or appeal dismissed",
"certification to or from a lower court",
"no disposition"
] | [
6
] | sc_casedisposition |
SOUTHWEST MARINE, INC. v. GIZONI
No. 90-584.
Argued October 15, 1991
Decided December 4, 1991
White, J., delivered the opinion of the Court, in which all other Members joined, except Thomas, J., who took no part in the consideration or decision of the case.
George J. Tichy II argued the cause for petitioner. With him on the briefs were Roy D. Axelrod, James J. McMullen, Jr., Jacqueline P. McManus, and Lloyd A. Schwartz.
Preston Easley argued the cause and filed briefs for respondent.
Robert A. Long, Jr., argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Starr, Deputy Solicitor General Shapiro, Allen H. Feldman, Kerry L. Adams, and Deborah Greenfield.
Briefs of amici curiae urging reversal were filed for Global Marine, Inc., et al. by Forrest Booth, Winston E. Rice, and Eileen R. Madrid; and for the Shipbuilders Council of America by John L. Wittenborn and Franklin W. Losey.
John R. Hillsman filed a brief for the United Brotherhood of Carpenters and Joiners of America as amicus curiae urging affirmance.
Justice White
delivered the opinion of the Court.
The question presented is whether a maritime worker whose occupation is one of those enumerated in the Long-shore and Harbor Workers’ Compensation Act (LHWCA), 44 Stat. 1424, as amended, 33 U. S. C. §901 et seq., may yet be a “seaman” within the meaning of the Jones Act, 46 U. S. C. App. §688, and thus be entitled to bring suit under that statute.
I
Petitioner Southwest Marine, Inc., operates a ship repair facility in San Diego, California. In connection with its ship repair activities, Southwest Marine owns several floating platforms, including a pontoon barge, two float barges, a rail barge, a diver’s barge, and a crane barge. These platforms by themselves have no power, means of steering, navigation lights, navigation aids, or living facilities. They are moved about by tugboats, which position the platforms alongside vessels under repair at berths or in drydock at Southwest Marine’s shipyard or at the nearby naval station. The platforms are used to move equipment, materials, supplies, and vessel components around the shipyard and on to and off of the vessels under repair. Once in place, the platforms support ship repairmen engaged in their work.
Southwest Marine employed respondent Byron Gizoni as a rigging foreman. Gizoni worked on the floating platforms and rode them as they were towed into place. Gizoni occasionally served as a lookout and gave maneuvering signals to the tugboat operator when the platforms were moved. He also received lines passed to the platforms by the ships’ crews to secure the platforms to the vessels under repair. Gizoni suffered disabling leg and back injuries in a fall when his foot broke through a thin wooden sheet covering a hole in the deck of a platform being used to transport a rudder from the shipyard to a floating drydock.
Gizoni submitted a claim for, and received, medical and compensation benefits from Southwest Marine pursuant to the LHWCA. He later sued Southwest Marine under the Jones Act in the United States District Court for the Southern District of California, alleging that he was a seaman injured as a result of his employer’s negligence. Gizoni also pleaded causes of action for unseaworthiness and for maintenance and cure. App. IV-4, IV-5. In addition to the above facts, Gizoni alleged in his complaint that Southwest Marine’s floating platforms were “a group of vessels ... in navigable waters,” and that as a rigging foreman, he was “permanently assigned to said group of vessels.” Id., at IV-3.
The District Court granted Southwest Marine’s motion for summary judgment on two grounds. The District Court determined as a matter of law that Gizoni was not a Jones Act seaman, finding that Southwest Marine’s floating platforms were not “vessels in navigation,” and that Gizoni was on board to perform work as a ship repairman, not to “aid in navigation.” App. to Pet. for Cert. I — 1, 1-2. More important to our purposes here, the District Court further concluded that Gizoni was a harbor worker precluded from bringing his action by the exclusive remedy provisions of the LHWCA, 33 U. S. C. § 905(a). App. to Pet. for Cert. 1-2.
The United States Court of Appeals for the Ninth Circuit reversed the determination that Gizoni was not a seaman as a matter of law, 909 F. 2d 385, 387 (1990), holding that questions of fact existed as to seaman status, e. g., whether the floating platforms were vessels in navigation, whether Gi-zoni’s relationship to those platforms was permanent, and whether he aided in their navigation. Id., at 388. The Ninth Circuit also reversed the District Court’s determination that the exclusive remedy provisions of the LHWCA precluded Gizoni from pursuing his Jones Act claim. The court concluded that the LHWCA by its terms does not cover “a master or member of a crew of any vessel,” 33 U. S. C. § 902(3)(G), that this phrase is the equivalent of “seaman” under the Jones Act, and that the question of his seaman status should have been presented to a jury. 909 F. 2d, at 389. The Ninth Circuit thus rejected the notion that any employee whose work involved ship repair was necessarily restricted to remedy under the LHWCA, reasoning that coverage under the Jones Act or the LHWCA depended not on the claimant’s job title, but on the nature of the claimant’s work and the intent of Congress in enacting these statutes. Ibid.
We granted certiorari, 498 U. S. 1119 (1991), to resolve the conflict among the Circuits on this issue. We now affirm the judgment of the Ninth Circuit.
II
The Jones Act and the LHWCA each provide a remedy to the injured maritime worker; however, each specifies different maritime workers to be within its reach. In relevant part, the Jones Act provides that "[a]ny seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply. . . ." 46 U. S. C. App. § 688(a). Under the LHWCA, the exclusiveness of liability provision in part states that the liability of an employer "shall be exclusive and in place of all other liability of such employer to the employee . . . ." 33 U. S. C. § 905(a). However, the term "employee," as defined in the LHWCA, does not include "a master or member of a crew of any vessel.” §902(3)(G). The District Court was therefore plainly wrong in holding that, as a matter of law, the LHWCA provided the exclusive remedy for all harbor workers. That cannot be the case if the LHWCA and its exclusionary provision do not apply to a harbor worker who is also a “member of a crew of any vessel,” a phrase that is a “refinement” of the term “seaman” in the Jones Act. McDermott Int’l, Inc. v. Wilander, 498 U. S. 337, 349 (1991).
The determination of who is a “member of a crew” is “better characterized as a mixed question of law and fact,” rather than as a pure question of fact. Id., at 356. Even so, “[t]he inquiry into seaman status is of necessity fact-specific; it will depend on the nature of the vessel, and the employee’s precise relation to it.” Ibid. Our decision in Wilander jettisoned any lingering notion that a maritime worker need aid in the navigation of a vessel in order to qualify as a “seaman” under the Jones Act. “The key to seaman status is employment-related connection to a vessel in navigation... . It is not necessary that a seaman aid in navigation or contribute to the transportation of the vessel, but a seaman must be doing the ship’s work.” Id., at 355. In arriving at this conclusion, we again recognized that “the Jones Act and the LHWCA are mutually exclusive,” id., at 347 (citing Swanson v. Marra Brothers, Inc., 328 U. S. 1 (1946)), for the very reason that the LHWCA specifically precludes from its provisions any employee who is “a master or member of a crew of any vessel.”
Southwest Marine suggests, in line with Fifth Circuit precedent, that this fact-intensive inquiry may always be resolved as a matter of law if the claimant’s job fits within one of the enumerated occupations defining the term “employee” covered by the LHWCA. However, this argument ignores the fact that some maritime workers may be Jones Act seamen performing a job specifically enumerated under the LHWCA. Indeed, Congress foresaw this possibility, and we have previously quoted a portion of the legislative history to the 1972 amendments to the LHWCA that states: “‘[T]he bill would amend the Act to provide coverage of longshoremen, harbor workers, ship repairmen, ship builders, ship-breakers, and other employees engaged in maritime employment (excluding masters and members of the crew of a vessel).’” Northeast Marine Terminal Co. v. Caputo, 432 U. S. 249, 266, n. 26 (1977) (quoting S. Rep. No. 92-1125, p. 13 (1972)) (emphasis added). As we observed in Wilander: “There is no indication in the Jones Act, the LHWCA, or elsewhere, that Congress has excluded from Jones Act remedies those traditional seamen who owe allegiance to a vessel at sea, but who do not aid in navigation.” 498 U. S., at 354. While in some cases a ship repairman may lack the requisite connection to a vessel in navigation to qualify for seaman status, see, e. g., Sun Ship, Inc. v. Pennsylvania, 447 U. S. 715 (1980) (ship repairmen working and injured on land); P. C. Pfeiffer Co. v. Ford, 444 U. S. 69, 80, and n. 12 (1979), not all ship repairmen lack the requisite connection as a matter of law. This is so because “[i]t is not the employee’s particular job that is determinative, but the employee’s connection to a vessel.” Wilander, supra, at 354. By its terms the LHWCA preserves the Jones Act remedy for vessel crewmen, even if they are employed by a shipyard. A maritime worker is limited to LHWCA remedies only if no genuine issue of fact exists as to whether the worker was a seaman under the Jones Act.
Southwest Marine submits several arguments in an attempt to foreclose this Jones Act suit. First, Southwest Marine contends that our decision in Wilander will conflict with decisions holding that the LHWCA provides the exclusive remedy for certain injured railroad workers otherwise permitted by the Federal Employers’ Liability Act, 45 U. S. C. § 51 et seq., to pursue a negligence cause of action. See, e. g., Chesapeake & Ohio R. Co. v. Schwalb, 493 U. S. 40 (1989); Pennsylvania R. Co. v. O’Rourke, 344 U. S. 334 (1953). Such cases, however, can provide no meaningful guidance on the issue here, for the LHWCA contains no exclusion for railroad workers comparable to that for Jones Act seamen.
Next, Southwest Marine advances a “primary jurisdiction” argument suggesting that, where a maritime worker is “arguably covered” by the LHWCA, the district court should stay any Jones Act proceeding pending a final LHWCA “administrative agency” determination that the worker is, in fact, a “master or member of a crew.” We find no indication in the LHWCA that Congress intended to preclude or stay traditional Jones Act suits in the district courts. Indeed, the LHWCA anticipates that such suits could be brought. Title 33 U. S. C. § 913(d) tolls the time to file LHWCA claims “[w]here recovery is denied to any person, in a suit brought at law or in admiralty to recover damages in respect of injury or death, on the ground that such person was an employee and the defendant was an employer within the meaning of this chapter and that such employer had secured compensation to such employee under this chapter.” .
Southwest Marine seeks to support its primary jurisdiction argument by pointing to the relation between the Federal Employees’ Compensation Act (FECA), 5 U. S. C. § 8101 et seq., and the Federal Tort Claims Act (FTCA), 28 U. S. C. §2671 et seq. But FECA contains an “unambiguous and comprehensive” provision barring any judicial review of the Secretary of Labor’s determination of FECA coverage. Lindahl v. Office of Personnel Management, 470 U. S. 768, 780, and n. 13 (1985); see 5 U. S. C. § 8128(b). Consequently, the courts have no jurisdiction over FTCA claims where the Secretary determines that FECA applies. The LHWCA contains no such provision. Likewise, we reject Southwest Marine’s argument that agency proceedings under the LHWCA require the jurisdictional limitations we have found the National Labor Relations Act (NLRA), 29 U. S. C. § 151 et seq., to place on state and federal courts in favor of the proceedings conducted by the National Labor Relations Board. See, e. g., Longshoremen v. Davis, 476 U. S. 380, 389-390 (1986); San Diego Building Trades Council v. Garmon, 359 U. S. 236, 243-245 (1959). The administrative proceedings outlined under the LHWCA in no way approach “the NLRA’s ‘complex and interrelated federal scheme of law, remedy, and administration’ ” requiring pre-emption in those cases. Longshoremen, supra, at 389 (quoting Garmon, supra, at 243). Neither is it “essential to the administration” of the LHWCA that resolution of the question of coverage be left “ ‘in the first instance’ ” to agency proceedings in the Department of Labor. Longshoremen, supra, at 390 (quoting Garmon, supra, at 244-245).
Finally, Southwest Marine suggests that an employee’s receipt of benefits under the' LHWCA should preclude subsequent litigation under the Jones Act. To the contrary, however, we have ruled that where the evidence is sufficient to send the threshold question of seaman status to the jury, it is reversible error to permit an employer to prove that the worker accepted LHWC A benefits while awaiting trial. Tipton v. Socony Mobil Oil Co., 375 U. S. 34, 37 (1963). It is by now “universally accepted” that an employee who receives voluntary payments under the LHWCA without a formal award is not barred from subsequently seeking relief under the Jones Act. G. Gilmore & C. Black, Law of Admiralty 435 (2d ed. 1975); see 4 A. Larson, Workmen’s Compensation Law § 90.51, p. 16-507 (1989) (collecting cases); Simms v. Valley Line Co., 709 F. 2d 409, 412, and nn. 3 and 5 (CA5 1983). This is so, quite obviously, because the question of coverage has never actually been litigated. Moreover, the LHWCA clearly does not comprehend such a preclusive effect, as it specifically provides that any amounts paid to an employee for the same injury, disability, or death pursuant to the Jones Act shall be credited against any liability imposed by the LHWCA. 33 U. S. C. § 903(e). See Gilmore & Black, supra, at 435.
III
Because a ship repairman may spend all of his working hours aboard a vessel in furtherance of its mission — even one used exclusively in ship repair work — that worker may qualify as a Jones Act seaman. By ruling as a matter of law on the basis of job title or occupation alone, the District Court foreclosed Gizoni’s ability to make this showing. “If reasonable persons, applying the proper legal standard, could differ as to whether the employee was a ‘member of a crew,’ it is a question for the jury.” Wilander, 498 U. S., at 356. The Ninth Circuit concluded that questions of fact existed regarding whether the floating platforms were vessels in navigation, and whether Gizoni had sufficient connection to the platforms to qualify for seaman status. Gizoni alleges facts in support of each of these propositions — facts which Southwest Marine disputes. Compare Brief for Respondent 11 with Brief for Petitioner 3. Summary judgment was inappropriate.
The judgment of the Court of Appeals is
Affirmed.
Justice Thomas took no part in the consideration or decision of this case.
The Ninth Circuit in this case followed a decision by the Sixth Circuit, which held that “[a] plaintiff is not limited to the remedies available under the LHWCA unless he is unable to show that a genuine factual issue exists as to whether he was a seaman at the time of his injury.” Petersen v. Chesapeake & Ohio R. Co., 784 F. 2d 732, 739 (1986). To the contrary, the Fifth Circuit has previously held that “because longshoremen, shipbuilders and ship repairers are engaged in occupations enumerated in the LHWCA, they are unqualifiedly covered by that Act if they meet the Act’s situs requirements; coverage of these workmen by the LHWCA renders them ineligible for consideration as seamen or members of the crew of a vessel entitled to claim the benefits of the Jones Act.” Pizzitolo v. Electro-Coal Transfer Corp., 812 F. 2d 977, 983 (1987). A later decision by the Fifth Circuit undercut much of the reasoning in Pizzitolo by limiting it to cases where "the evidence is insufficient to warrant a finding of seaman's status." Legros v. Panther Services Group, Inc., 863 F. 2d 345, 349 (1988). The Fifth Circuit granted rehearing en banc, but the parties later settled and the appeal was dismissed. Legros v. Panther Services Group, Inc., 874 F. 2d 953 (1989). With the opinion in Legros vacated, Pizzitolo remains the law in the Fifth Circuit, although its breadth may be in some question.
In full, 33 U. S. C. § 902(3) provides:
"The term `employee' means any person engaged in maritime employment, including any longshoreman or other person engaged in Iongshoring operations, and any harborworker including a ship repairman, shipbuilder, and ship-breaker, but such term does not include-
"(A) individuals employed exclusively to perform office clerical, secretarial, security, or data processing work;
"(B) individuals employed by a club, camp, recreational operation, restaurant, museum, or retail outlet;
"(C) individuals employed by a marina and who are not engaged in construction, replacement, or expansion of such marina (except for routine maintenance);
"(D) individuals who (i) are employed by suppliers, transporters, or vendors, (ii) are temporarily doing business on the premises of an employer described in paragraph (4), and (iii) are not engaged in work normally performed by employees of that employer under this chapter;
“(E) aquaculture workers;
“(F) individuals employed to build, repair, or dismantle any recreational vessel under sixty-five feet in length;
“(G) a master or member of a crew of any vessel; or
“(H) any person engaged by a master to load or unload or repair any small vessel under eighteen tons net;
“if individuals described in clauses (A) through (F) are subject to coverage under a State workers’ compensation law.”
Southwest Marine points as well to a separate exclusiveness of liability provision regarding the negligence of a vessel, 33 U. S. C. § 905(b), and places great emphasis on a passage that states:
“If such person was employed to provide shipbuilding, repairing, or breaking services and such person’s employer was the owner, owner pro hac vice, agent, operator, or charterer of the vessel, no such action shall be permitted, in whole or in part or directly or indirectly, against the injured person’s employer (in any capacity,' including as the vessel’s owner, owner pro hac vice, agent, operator, or charterer) or against the employees of the employer.”
This exclusivity provision applies, however, only “[i]n the event of injury to a person covered under this chapter [the LHWCA] caused by the negligence of a vessel.” § 905(b). As we have already noted, the question whether Gizoni is “a person covered under this chapter” depends upon whether he is a “seaman” under the Jones Act. Like the companion exclusivity provision of § 905(a), § 905(b) does not dictate sole recourse to the LHWCA unless Gizoni is found not to be “a master or member of a crew of any vessel.”
Gizoni stipulates that he was a ship repairman for Southwest Marine and correctly notes that many ship repairmen are excluded from LHWCA coverage, even though ship repairmen are expressly enumerated as a category of “harborworker” included within its coverage. See 33 U. S. C. §902(3)(F) (individuals employed to repair recreational vessels under 65 feet in length); § 902(3)(H) (persons engaged to repair small vessels under 18 tons net). We find it significant that such clear exclusions of certain ship repairmen fall on either side of the exclusion here at issue for “a master or member of a crew of any vessel.” § 902(3)(G).
For this same reason, equitable estoppel arguments suggested by ami-cus Shipbuilders Council of America must fail. Where full compensation credit removes the threat of double recovery, the critical element of detrimental reliance does not appear. See Heckler v. Community Health Services of Crawford County, Inc., 467 U. S. 51, 59 (1984); Lyng v. Payne, 476 U. S. 926, 935 (1986). Argument by amicus would force injured maritime workers to an election of remedies we do not believe Congress to have intended.
The Ninth Circuit also found questions of fact to remain concerning whether Gizoni aided in the navigation of these platforms. After McDermott Int’l, Inc. v. Wilander, 498 U. S. 337 (1991), however, only “employment-related connection to a vessel in navigation” is required. Id., at 355. To be a seaman, the employee need not aid in navigation. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them.
Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. | Who is the petitioner of the case? | [
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] | [
44
] | sc_petitioner |
HUBBARD v. UNITED STATES
No. 94-172.
Argued February 21, 1995
Decided May 15, 1995
Stevens, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III, and VI, in which Scalia, Kennedy, Thomas, Ginsburg, and Breyer, JJ., joined, and an opinion with respect to Parts IV and V, in which Ginsburg and Breyer, JJ., joined. Scalia, J., filed an opinion concurring in part and concurring in the judgment, in which Kennedy, J., joined, post, p. 716. Rehnquist, C. J., filed a dissenting opinion, in which O’Connor and Souter, JJ., joined, post, p. 718.
Paul Morris argued the cause for petitioner. With him on the brief was Andrew Boros.
Richard P. Bress argued the cause for the United States. With him on the brief were Solicitor General Days, Assistant Attorney General Harris, Deputy Solicitor General Dreeben, and Joel M. Gershowitz.
Justice Stevens
delivered the opinion of the Court, except as to Parts IV and V
In unsworn papers filed in a bankruptcy proceeding, petitioner made three false statements of fact. Each of those misrepresentations provided the basis for a criminal conviction and prison sentence under the federal false statement statute, 18 U. S. C. § 1001. The question we address is whether § 1001 applies to false statements made in judicial proceedings.
I
In 1985, petitioner filed a voluntary petition for bankruptcy under Chapter 7 of the Bankruptcy Code. In the course of the proceedings, the trustee filed an amended complaint and a motion to compel petitioner to surrender certain business records. Petitioner opposed the relief sought by the trustee in a pair of unsworn, written responses filed with the Bankruptcy Court. Both of his responses contained falsehoods. Petitioner’s answer to the trustee’s complaint falsely denied the trustee’s allegations that a well-drilling machine and parts for the machine were stored at petitioner’s home and in a nearby warehouse. Petitioner’s response to the trustee’s discovery motion incorrectly stated that petitioner had already turned over all of the requested records.
When the misrepresentations came to light, petitioner was charged with three counts of making false statements under 18 U. S. C. § 1001. That statute provides:
“Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.”
Relying on our decision in United States v. Bramblett, 348 U. S. 503 (1955), the District Court instructed the jury that a bankruptcy court is a “department ... of the United States” within the meaning of §1001. The jury convicted petitioner on all three § 1001 counts, and the District Court sentenced him to concurrent terms of 24 months’ imprisonment.
On appeal to the Court of Appeals for the Sixth Circuit, petitioner argued that his convictions under §1001 were barred by the so-called “judicial function” exception. First suggested over 30 years ago in Morgan v. United States, 309 F. 2d 234 (CADC 1962), cert. denied, 373 U. S. 917 (1963), this doctrine limits the extent to which § 1001 reaches conduct occurring in the federal courts. Under the exception, only those misrepresentations falling within a court’s “administrative” or “housekeeping” functions can give rise to liability under § 1001; false statements made while a court is performing its adjudicative functions are not covered.
The Court of Appeals affirmed petitioner’s convictions under § 1001. Although the judicial function exception has become entrenched over the years in a number of Circuits, the Sixth Circuit concluded, over a dissent, that the exception does not exist. 16 F. 3d 694 (1994). That conclusion created a split in the Circuits, prompting us to grant certiorari. 513 U. S. 959 (1994). We now reverse.
II
Section 1001 criminalizes false statements and similar misconduct occurring “in any matter within the jurisdiction of any department or agency of the United States.” In ordinary parlance, federal courts are not described as “departments” or “agencies” of the Government. As noted by the Sixth Circuit, it would be strange indeed to refer to a court as an “agency.” See 16 F. 3d, at 698, n. 4 (“[T]he U. S. Court of Appeals [is not] the Appellate Adjudication Agency”). And while we have occasionally spoken of the three branches of our Government, including the Judiciary, as “department[s],” e. g., Mississippi v. Johnson, 4 Wall. 475, 500 (1867), that locution is not an ordinary one. Far more common is the use of “department” to refer to a component of the Executive Branch.
As an initial matter, therefore, one might be tempted to conclude that § 1001 does not apply to falsehoods made during federal-court proceedings. This commonsense reading is bolstered by the statutory definitions of “department” and “agency” set forth at 18 U. S. C. § 6. First adopted in 1948, and applicable to all of Title 18, the definitions create a presumption in favor of the ordinary meaning of the terms at issue:
“The term ‘department’ means one of the executive departments enumerated in section 1 [now §101] of Title 5, unless the context shows that such term was intended to describe the executive, legislative, or judicial branches of the government.
“The term ‘agency’ includes any department, independent establishment, commission, administration, authority, board or bureau of the United States or any corporation in which the United States has a proprietary interest, unless the context shows that such term was intended to be used in a more limited sense.”
Under §6, it seems incontrovertible that “agency” does not refer to a court. “Department,” on the other hand, might be interpreted under §6 to describe the Judicial Branch, but only if the “context” of §1001 “shows” that Congress intended the word to be used in the unusual sense employed in Mississippi v. Johnson. We believe that § 6 permits such an interpretation only if the context in § 1001 is fairly powerful. “Shows” is a strong word; among its definitions is “[t]o make apparent or clear by evidence, testimony or reasoning; to prove; demonstrate.” Webster’s New International Dictionary 2324 (2d ed. 1949). Cf. Rowland v. California Men’s Colony, Unit II Men’s Advisory Council, 506 U.¥S. 194, 200-201 (1993) (discussing similar provision requiring adherence to presumptive definition unless context “indicated] ” a different meaning).
In Rowland, we explained the proper method of analyzing a statutory term’s “context” to determine when a presumptive definition must yield. Such an analysis, we explained, requires a court to examine “the text of the Act of Congress surrounding the word at issue, or the texts of other related congressional Acts ....” Id., at 199; see also id., at 212-213 (Thomas, J., dissenting); Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 689-690, n. 53 (1978). Review of other materials is not warranted. “If Congress had meant to point further afield, as to legislative history, for example, it would have been natural to use a more spacious phrase, like ‘evidence of congressional intent,’ in place of ‘context.’” Rowland, 506 U. S., at 200.
In the case of § 1001, there is nothing in the text of the statute, or in any related legislation, that even suggests — let alone “shows” — that the normal definition of “department” was not intended. Accordingly, a straightforward interpretation of the text of §1001, with special emphasis on the words “department or agency,” would seem to lead inexorably to the conclusion that there is no need for any judicial function exception because the reach of the statute simply does not extend to courts. Our task, however, is complicated by the fact that the Court interpreted “department” broadly 40 years ago in Bramblett. We must, therefore, turn our attention to that case before deciding the fate of the judicial function exception.
Ill
Defendant Bramblett was a former Member of Congress who had falsely represented to the Disbursing Office of the House of Representatives that a particular person was entitled to compensation as his official clerk. He argued that he could not be convicted under §1001 because his falsehood was directed to an office within the Legislative Branch. 348 U. S., at 504. The Court rejected this argument, concluding that the word “department,” as used in § 1001, “was meant to describe the executive, legislative and judicial branches of the Government.” Id., at 509. Although Bramblett involved Congress, not the courts, the text and reasoning in the Court’s opinion amalgamated all three branches of the Government. Thus, Bramblett is highly relevant here even though its narrow holding only extended § 1001 to false statements made within the Legislative Branch.
We think Bramblett must be acknowledged as a seriously flawed decision. Significantly, the Bramblett Court made no attempt to reconcile its interpretation with the usual meaning of “department.” It relied instead on a review of the evolution of § 1001 and its statutory cousin, the false claims statute presently codified at 18 U. S. C. § 287, as providing a “context” for the conclusion that “Congress could not have intended to leave frauds such as [Bramblett’s] without penalty.” 348 U. S., at 509. We are convinced that the Court erred by giving insufficient weight to the plain language of §§6 and 1001. Although the historical evolution of a statute — based on decisions by the entire Congress — should not be discounted for the reasons that may undermine confidence in the significance of excerpts from congressional debates and committee reports, a historical analysis normally provides less guidance to a statute’s meaning than its final text. In the ordinary case, absent any “indication that doing so would frustrate Congress’s clear intention or yield patent absurdity, our obligation is to apply the statute as Congress wrote it.” BFP v. Resolution Trust Corporation, 511 U. S. 531, 570 (1994) (Souter, J., dissenting).
As noted above, a straightforward reading of the statute suggests a meaning of “department” that is fully consistent with the definition set forth in § 6. See supra, at 699-702. Similarly unremarkable is the language of the original Act of Congress adopting what is now § 1001. That piece of legislation — the Act of June 18, 1934, 48 Stat. 996 (1934 Act)— amended what was then § 35 of the Criminal Code to provide, in pertinent part:
“[W]hoever shall knowingly and willfully falsify or conceal or cover up by any trick, scheme, or device a material fact, or make or cause to be made any false or fraudulent statements or representations, or make or use or cause to be made or used any false bill, receipt, voucher, roll, account, claim, certificate, affidavit, or deposition, knowing the same to contain any fraudulent or fictitious statement or entry, in any matter within the jurisdiction of any department or agency of the United States or of any corporation in which the United States of America is a stockholder... [shall be punished].” (Emphasis added.)
This language conveys no different message regarding “department” than the current version of § 1001.
What, then, of the earlier statutory history chronicled in Bramblett? We believe it is at best inconclusive, and that it does not supply a “context” sufficiently clear to warrant departure from the presumptive definition in 18 U. S. C. § 6.
The earliest statutory progenitor of § 1001 was the original false claims statute, adopted as the Act of Mar. 2,1863, ch. 67, 12 Stat. 696 (1863 Act). That enactment made it a criminal offense for any person, whether a civilian or a member of the military services, to
“present or cause to be presented for payment or approval to or by any person or officer in the civil or military service of the United States, any claim upon or against the Government of the United States, or any department or officer thereof, knowing such claim to be false, fictitious, or fraudulent.”
The 1863 Act also proscribed false statements, but the scope of that provision was far narrower than that of modern-day § 1001; the Act prohibited only those false statements made “for the purpose of obtaining, or aiding in obtaining, the approval or payment of [a false] claim.” 12 Stat. 696. The Court explained in Bramblett that the false claims provision in the 1863 Act “clearly cover[ed] the presentation of false claims against any component of the Government to any officer of the Government,” 348 U. S., at 505, and it asserted similar breadth for the false statement portion of the Act, ibid.
The false statements provision in the 1863 Act remained essentially unchanged for 55 years. In 1918, Congress amended the statute to provide as follows:
“[W]hoever, for the purpose of obtaining or aiding to obtain the payment or approval of [a false] claim, or for the purpose and with the intent of cheating and swindling or defrauding the Government of the United States, or any department thereof, or any corporation in which the United States of America is a stockholder, shall knowingly and willfully falsify or conceal or cover up by any trick, scheme, or device a material fact, or make or cause to be made any false or fraudulent statements or representations, or make or use or cause to be made or used any false bill, receipt, voucher, roll, account, claim, certificate, affidavit, or deposition, knowing the same to contain any fraudulent or fictitious statement or entry [shall be punished].” Act of Oct. 23, 1918, ch. 194, 40 Stat. 1015-1016 (1918 Act) (emphasis added).
The scope of this new provision is unclear. Although it could be read to create criminal liability for government-wide false statements, its principal purpose seems to have been to prohibit false statements made to defraud Government corporations, which flourished during World War I. Cf. Lebron v. National Railroad Passenger Corporation, 513 U. S. 374, 386-391 (1995) (tracing history of Government corporations). In one important respect, moreover, the statute remained relatively narrow: It was limited to false statements intended to bilk the Government out of money or property. See United States v. Cohn, 270 U. S. 339 (1926). Given the continuing focus on financial frauds against the Government, the 1918 Act did not alter the fundamental character of the original false claims statute.
The 1934 Act, which created the statute we now know as § 1001, did work such a change. Congress excised from the statute the references to financial frauds, thereby severing the historical link with the false claims portion of the statute, and inserted the requirement that the false statement be made “in any matter within the jurisdiction of any department or agency of the United States.” This addition, critical for present purposes, is subject to two competing inferences. On one hand, it can be read to impose new words of limitation — whose ordinary meaning connotes the Executive Branch — in an altogether reformulated statute. On the other hand, it can be viewed as stripping away the financial fraud requirement while not disturbing the pre-existing breadth the statute had enjoyed from its association with the false claims statute.
The Bramblett Court embraced the latter inference, finding no indication in any legislative history that the amendment was intended to narrow the scope of the statute. We think this interpretation, though not completely implausible, is nevertheless unsound. The differences between the 1934 Act and its predecessors are too dramatic to evidence a congressional intent to carry forward any features of the old provision. Moreover, our comments, over the years, regarding the 1934 legislation — including those contained in Bramblett itself — contradict the notion that such a “carry forward” occurred.
We have repeatedly recognized that the 1934 Act was passed at the behest of “the Secretary of the Interior to aid the enforcement of laws relating to the functions of the Department of the Interior and, in particular, to the enforcement of regulations ... with respect to the transportation of ‘hot oil.’” United States v. Gilliland, 312 U. S. 86, 93-94 (1941); see also United States v. Yermian, 468 U. S. 63, 72 (1984) (the 1934 Act was “needed to increase the protection of federal agencies from the variety of deceptive practices plaguing the New Deal administration”); id., at 80 (Rehn-QUIST, J., dissenting) (the statute was prompted by problems arising from “the advent of the New Deal programs in the 1930’s”). Indeed, the Bmmblett Court itself acknowledged the connection between the 1934 Act and the proliferation of fraud in the newly formed Executive agencies:
“The 1934 revision was largely the product of the urging of the Secretary of the Interior. The Senate Report, S. Rep. No. 1202,73d Cong., 2d Sess., indicates that its purpose was to broaden the statute so as to reach not only false papers presented in connection with a claim against the Government, but also nonmonetary frauds such as those involved in the ‘hot-oil’ shipments.” 348 U. S., at 507.
None of our opinions refers to any indication that Congress even considered whether the 1934 Act might apply outside the Executive Branch, much less that it affirmatively understood the new enactment to create broad liability for falsehoods in the federal courts. In light of this vacuum, it would be curious indeed if Congress truly intended the 1934 Act to work a dramatic alteration in the law governing misconduct in the court system or the Legislature. The unlikelihood of such a scenario only strengthens our conclusion that the Bmmblett Court erred in its interpretation of § lOOl’s statutory history.
Putting Bmmblett's historical misapprehensions to one side, however, we believe the Bmmblett Court committed a far more basic error in its underlying approach to statutory construction. Courts should not rely on inconclusive statutory history as a basis for refusing to give effect to the plain language of an Act of Congress, particularly when the Legislature has specifically defined the controverted term. In Bmmblett, the Court’s method of analysis resulted in a decision that is at war with the text of not one, but two different Acts of Congress.
Whether the doctrine of stare decisis nevertheless requires that we accept Bmmblett’s erroneous interpretation of §1001 is a question best answered after reviewing the body of law directly at issue: the decisions adopting the judicial function exception.
IV
Although other federal courts have refrained from directly criticizing Bmmblett’s approach to statutory construction, it is fair to say that they have greeted the decision with something less than a warm embrace. The judicial function exception, an obvious attempt to impose limits on Brambletfs expansive reading of § 1001, is a prime example. As the following discussion indicates, the judicial function exception is almost as deeply rooted as Bmmblett itself.
The seeds of the exception were planted by the Court of Appeals for the District of Columbia Circuit only seven years after Bramblett was decided. In Morgan v. United States, 309 F. 2d 234 (1962), cert. denied, 373 U. S. 917 (1963), the defendant, who had falsely held himself out to be a bona fide member of the bar, was prosecuted on three counts of violating § 1001 for concealing from the court his name, identity, and nonadmission to the bar. After first acknowledging that, but for Bramblett, it might well have accepted the argument that Congress did not intend § 1001 to apply to the courts, the Court of Appeals upheld the conviction. But the court was clearly troubled by the potential sweep of § 1001. Noting that the statute prohibits “concealment” and “covering up” of material facts, as well as intentional falsehoods, the court wondered whether the statute might be interpreted to criminalize conduct that falls well within the bounds of responsible advocacy. The court concluded its opinion with this significant comment:
“We are certain that neither Congress nor the Supreme Court intended the statute to include traditional trial tactics within the statutory terms ‘conceals or covers up.’ We hold only, on the authority of the Supreme Court construction, that the statute does apply to the type of action with which appellant was charged, action which essentially involved the ‘administrative’ or ‘housekeeping’ functions, not the ‘judicial’ machinery of the court.” 309 F. 2d, at 237.
Relying on Morgan, the Court of Appeals for the Sixth Circuit reversed a conviction several years later “because § 1001 does not apply to the introduction of false documents as evidence in a criminal proceeding.” United States v. Erhardt, 381 F. 2d 173, 175 (1967) (per curiam). The court explained that the judicial function exception suggested in Morgan was necessary to prevent the perjury statute, with its two-witness rule (since repealed), from being undermined. 381 F. 2d, at 175.
Once planted, the judicial function exception began to flower in a number of other Circuits. The Ninth Circuit summarized the state of the law in 1985:
“[T]he adjudicative functions exception to section 1001 has been suggested or recognized by appellate decisions since 1962, not long after the Supreme Court decided that section 1001 applies to matters within the jurisdiction of the judicial branch. In these twenty-three years, there has been no response on the part of Congress either repudiating the limitation or refining it. It therefore seems too late in the day to hold that no exception exists.” United States v. Mayer, 775 F. 2d 1387, 1390 (per curiam) (footnote omitted).
The Second Circuit sounded a similar theme in 1991, relying in part on the congressional acquiescence to which the Ninth Circuit had adverted in Mayer. The Second Circuit wrote:
“No court, to our knowledge, whether due to its acceptance of the exception or to prosecutorial reticence, has ever sustained a section 1001 conviction for false statements made by a defendant to a court acting in its judicial capacity. The exception was first articulated nearly thirty years ago and ‘... [i]t therefore seems too late in the day to hold that no exception exists.’ Mayer, 775 F. 2d at 1390.” United States v. Masterpol, 940 F. 2d 760, 766.
Although not all of the courts of appeals have endorsed the judicial function exception, it is nevertheless clear that the doctrine has a substantial following. See n. 2, supra. Moreover, as both the Ninth and the Second Circuits observed, Congress has not seen fit to repudiate, limit, or refine the exception despite its somewhat murky borders and its obvious tension with the text of the statute as construed in Bramblett. On the other hand, it is also true that Congress has not seen fit to overturn the holding in Bramblett, despite the fact that the opinions endorsing the judicial function exception evidence a good deal of respectful skepticism about the correctness of that decision.
V
With the foregoing considerations in mind, we now turn to the difficult stare decisis question that this case presents. It is, of course, wise judicial policy to adhere to rules announced in earlier eases. As Justice Cardozo reminded us: “The 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). Adherence to precedent also serves an indispensable institutional role within the Federal Judiciary. Stare decisis is “a basic self-governing principle within the Judicial Branch, which is entrusted with the sensitive and difficult task of fashioning and preserving a jurisprudential system that is not based upon ‘an arbitrary discretion.’” Patterson v. McLean Credit Union, 491 U. S. 164, 172 (1989) (quoting The Federalist No. 78, p. 490 (H. Lodge ed. 1888) (A. Hamilton)). See also Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 854-855 (1992) (joint opinion of O’Connor, Kennedy, and Souter, JJ.). Respect for precedent is strongest “in the area of statutory construction, where Congress is free to change this Court’s interpretation of its legislation.” Illinois Brick Co. v. Illinois, 431 U. S. 720, 736 (1977).
In this case, these considerations point in two conflicting directions. On one hand, they counsel adherence to the construction of § 1001 adopted in Bramblett; on the other, they argue in favor of retaining the body of law that has cut back on the breadth of Bramblett in Circuits from coast to coast.
It would be difficult to achieve both goals simultaneously. For if the word “department” encompasses the Judiciary, as Bramblett stated, 348 U. S., at 509, the judicial function exception cannot be squared with the text of the statute. A court is a court — and is part of the Judicial Branch— whether it is functioning in a housekeeping or judicial capacity. Conversely, Bramblett could not stand if we preserved the thrust of the judicial function exception — i. e., if we interpreted 18 U. S. C. § 1001 so that it did not reach conduct occurring in federal-court proceedings. Again, although Bramblett involved a false representation to an office within the Legislative Branch, the decision lumped all three branches together in one and the same breath. See 384 U. S., at 509 (“department” in § 1001 “was meant to describe the executive, legislative and judicial branches of the Government”).
We think the text of § 1001 forecloses any argument that we should simply ratify the body of cases adopting the judicial function exception. We are, however, persuaded that the clarity of that text justifies a reconsideration of Bramblett. Although such a reconsideration is appropriate only in the rarest circumstances, we believe this case permits it because of a highly unusual “intervening development of the law,” see Patterson, 491 U. S., at 173, and because of the absence of significant reliance interests in adhering to Bramblett.
The “intervening development” is, of course, the judicial function exception. In a virtually unbroken line of cases, respected federal judges have interpreted § 1001 so narrowly that it has had only a limited application within the Judicial Branch. See nn. 2 and 10, supra. This interpretation has roots both deep and broad in the lower courts. Although the judicial function exception has not been adopted by this Court, our review of Bramblett supports the conclusion that the cases endorsing the exception almost certainly reflect the intent of Congress. It is thus fair to characterize the judicial function exception as a “competing legal doctrin[ej,” Patterson, 491 U. S., at 173, that can lay a legitimate claim to respect as a settled body of law. Overruling Bramblett would preserve the essence of this doctrine and would, to that extent, promote stability in the law.
Stare decisis has special force when legislators or citizens “have acted in reliance on a previous decision, for in this instance overruling the decision would dislodge settled rights and expectations or require an extensive legislative response.” Hilton v. South Carolina Public Railways Comm’n, 502 U. S. 197, 202 (1991); see also Casey, 505 U. S., at 854-856 (joint opinion of O’Connor, Kennedy, and Souter, JJ.). Here, however, the reliance interests at stake in adhering to Bramblett are notably modest. In view of the extensive array of statutes that already exist to penalize false statements within the Judicial Branch, see, e. g., 18 U. S. C. § 1621 (perjury); § 1623 (false declarations before grand jury or court); §1503 (obstruction of justice); §287 (false claims against the United States), we doubt that prosecutors have relied on § 1001 as an important means of deterring and punishing litigation-related misconduct. But we need not speculate, for we have direct evidence on this point. The United States Attorneys’ Manual states quite plainly that “[pjrosecutions should not be brought under 18 U. S. C. § 1001 for false statements submitted in federal court proceedings”; it instead directs prosecutors to proceed under the perjury or obstruction of justice statutes. U. S. Dept, of Justice, United States Attorneys’ Manual ¶ 9-69.267 (1992). Clearer evidence of nonreliance can scarcely be imagined.
Similarly unimpressive is the notion of congressional reliance on Bmmblett. The longstanding judicial function exception has, to a large extent, negated the actual application of § 1001 within the Judiciary. It is unlikely that Congress has relied on what has, for many years, been an unfulfilled promise.
In sum, although the stare decisis issue in this case is difficult, we conclude that there are sound reasons to correct Bramblett’s erroneous construction of § 1001. Although we could respect prior decisions by endorsing the judicial function exception or by adhering to Bmmblett while repudiating that exception, we believe coherence and stability in the law will best be served in this case by taking a different course. Limiting the coverage of § 1001 to the area plainly marked by its text will, as a practical matter, preserve the interpretation of § 1001 that has prevailed for over 30 years and will best serve the administration of justice in the future.
VI
Bmmblett is hereby overruled. We hold that a federal court is neither a “department” nor an “agency” within the meaning of § 1001. The Court of Appeals’ decision is therefore reversed to the extent that it upheld petitioner’s convictions under § 1001.
It is so ordered.
Justice Thomas joins Parts I, II, III, and VI of this opinion.
Petitioner was also charged with, and convicted of, bankruptcy fraud and mail fraud under 18 U. S. C. §§ 152 and 1341 (1988 ed. and Supp. V). The validity of those convictions is not before us.
The judicial function exception has been recognized in the following cases: United States v. Masterpol, 940 F. 2d 760, 764-766 (CA2 1991); United States v. Holmes, 840 F. 2d 246, 248 (CA4), cert. denied, 488 U. S. 831 (1988); United States v. Abrahams, 604 F. 2d 386, 393 (CA5 1979); United States v. Mayer, 775 F. 2d 1387, 1390 (CA9 1985) (per curiam); United States v. Wood, 6 F. 3d 692, 694-695 (CA10 1993). Although the Seventh and District of Columbia Circuits have questioned the basis of the exception, see United States v. Barber, 881 F. 2d 345, 350 (CA7 1989), cert. denied, 495 U. S. 922 (1990); United States v. Poindexter, 951 F. 2d 369, 387 (CADC 1991), cert. denied, 506 U. S. 1021 (1992), the Sixth Circuit stands alone in unambiguously rejecting it.
We express no opinion as to whether any other entity within the Judicial Branch might be an “agency” within the meaning of § 6.
Congress’ use of the word “shows” is unsurprising in view of the fact that 18 U. S. C. § 6 provides statutory definitions exclusively for criminal statutes. We have often emphasized the need for clarity in the definition of criminal statutes, to provide “fair warning ... in language that the common world will understand, of what the law intends to do if a certain line is passed.” McBoyle v. United States, 283 U. S. 25, 27 (1931). See also United States v. Batchelder, 442 U. S. 114, 123 (1979); Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939). Adhering to the statutory definition of a particular term is fully consistent with this objective. Cf. Rowland, 506 U. S., at 199 (construing 1 U. S. C. § 1, which is generally applicable to any Act of Congress).
In addition, it is debatable at best whether the Court was correct in asserting that, but for its expansive interpretation of § 1001, Bramblett’s fraud would necessarily have gone unpunished. In discussing the evolution of § 1001, the Court noted that the false claims statute, originally enacted in 1863 and by 1955 codified at 18 U. S. C. §287, “clearly covers the presentation of false claims against any component of the Government to any officer of the Government.” United States v. Bramblett, 348 U. S. 503, 505 (1955). In an earlier decision, it had interpreted “claim” in the false claims statute broadly, explaining that the word referred to “a claim for money or property to which a right is asserted against the Government, based upon the Government’s own liability to the claimant.” United States v. Cohn, 270 U. S. 339, 345-346 (1926). Bramblett could thus seemingly have been charged with violating § 287, or at least aiding and abetting in a violation of that statute, since his misrepresentation was intended to procure Government compensation. See Supplemental Memorandum for the United States in United States v. Bramblett, O. T. 1954, No. 159 (arguing that Bramblett’s conviction could be affirmed because his conduct violated all the elements of §287). In today’s decision, we do not disturb the scope of §287 as construed in either Cohn or Bramblett.
Bramblett’s fraud also was arguably directed at an “agency” within the meaning of § 1001. The Court recognized this contention, noting “it might be argued, as the Government does, that the [Disbursing Office] is an ‘authority’ within the § 6 definition of ‘agency.’ ” 348 U. S., at 509. The Court refused, however, to rest its decision on that more narrow interpretation. Ibid.
See, e.g., Thompson v. Thompson, 484 U. S. 174, 191-192 (1988) (Scalia, J., concurring in judgment); but cf. Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. Cal. L. Rev. 845 (1992).
In Bramblett, the Court incorrectly stated that the 1863 Act only penalized misconduct by members of the military. In fact, §3 of the Act established criminal and civil penalties for false claims and other misdeeds committed by “any person not in the military or naval forces of the United States.” 12 Stat. 698.
In 1873, the statute was codified and minor changes were made. See Rev. Stat. § 5438. The penalties were changed in the Act of May 30,1908, 35 Stat. 555, and the statute was recodified as § 35 of the Criminal Code in the Act of Mar. 4,1909, 35 Stat. 1095.
“ ‘Does a defendant “cover up ... a material fact” when he pleads not guilty?’ ‘Does an attorney “cover up” when he moves to exclude hearsay testimony he knows to be true, or when he makes a summation on behalf of a client he knows to be guilty?’ ” Morgan v. United States, 309 F. 2d 234, 237 (CADC 1962), cert. denied, 373 U. S. 917 (1963).
Some 17 years before Masterpol, the Second Circuit restricted the application of § 1001 in a slightly different manner. In United States v. D'Amato, 507 F. 2d 26 (1974), the court overturned a § 1001 conviction arising out of a false affidavit submitted in the course of a private civil lawsuit. Based upon a review of relevant case law and legislative history, the court concluded that § 1001 did not apply “where the Government is involved only by way of a court deciding a matter in which the Government or its agencies are not involved.” Id., at 28. Accord, United States v. London, 714 F. 2d 1558, 1561-1562 (CA11 1983).
See also, e. g., Patterson v. McLean Credit Union, 491 U. S., at 172-173 (stare decisis has “special force in the area of statutory interpretation, for here, unlike in the context of constitutional interpretation, the legislative power is implicated, and Congress remains free to alter what we have done”); Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U. S. 409, 424 (1986) (noting “the strong presumption of continued validity that adheres in the judicial interpretation of a statute”); Runyon v. McCrary, 427 U. S. 160, 189 (1976) (Stevens, J., concurring) (declining to overturn “a line of [statutory] authority which I firmly believe to have been incorrectly decided”); Burnet v. Coronado Oil & Gas Co., 286 U. S. 393, 406 (1932) (Brandéis, J., dissenting) (“Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. This is commonly true, even where the error is a matter of serious concern, provided correction can be had by legislation”) (citation omitted).
Because the fate of the judicial function exception is tied so closely to Bramblett, we find no merit in the Government’s suggestion that a reconsideration of the validity of that decision is not fairly included in the question on which we granted certiorari. See generally Lebron v. National Railroad Passenger Corporation, 513 U. S. 374, 379-383 (1995).
The dissent criticizes us for according respect to a body of law developed in the lower courts, arguing that our decision will “induce” federal judges on the courts of appeals to “ignore” precedents from this Court and thereby invite chaos in the judicial system. Post, at 721. We would have thought it self-evident that the lower courts must adhere to our precedents. Indeed, the dissent’s dire prediction is at odds with its own observation that “no lower court would deliberately refuse to follow the decision of a higher court,” see post, at 720. In concluding that the cases adopting the judicial function exception are faithful to the intent of the Legislature that adopted §1001, we have obviously exercised our own independent judgment. Thus, far from “subvert[ing] the very principle on which a hierarchical court system is built,” post, at 719, our decision merely reflects our assessment of the statutory construction issue this case presents, while serving what the dissent acknowledges to be one of the central purposes of stare decisis: promoting “stability and certainty in the law,” post, at 720.
The perjury and false claims statutes also cover the Legislative Branch, as does 18 U. S. C. § 1505 (obstruction of justice). The existence of overlaps with other statutes does not itself militate in favor of overruling Bramblett; Congress may, and often does, enact separate criminal statutes that may, in practice, cover some of the same conduct. See United States v. Batchelder, 442 U. S., at 123-124; United States v. Gilliland, 312 U. S. 86, 95 (1941). The overlaps here simply demonstrate that prosecutors cannot be said to have any significant reliance interest in Bramblett.
The absence of significant reliance interests is confirmed by an examination of statistical data regarding actual cases brought under §1001. The Government has secured convictions under § 1001 in 2,247 cases over the last five fiscal years, see post, at 722, but the dissent can identify only five reported § 1001 cases in that time period brought in connection with false statements made to the Judiciary and Legislature. Post, at 723, n. (At least two of the five were unsuccessful, from the Government’s point of view.) This tiny handful of prosecutions does not, in our view, evidence a weighty reliance interest on the part of prosecutors in adhering to the interpretation of § 1001 set forth in Bmmblett. | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence. | What is the basis of the Supreme Court's decision? | [
"judicial review (national level)",
"judicial review (state level)",
"Supreme Court supervision of lower federal or state courts or original jurisdiction",
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"interpretation of administrative regulation or rule, or executive order",
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] | [
3
] | sc_authoritydecision |
HAYNES v. UNITED STATES.
No. 236.
Argued October 11, 1967.
Decided January 29, 1968.
Charles Alan Wright argued the cause for petitioner. With him on the brief was Ernest E. Figari, Jr.
Harris Weinstein argued the cause for the United States. With him on the brief were Acting Solicitor General Spritzer, Assistant Attorney General Vinson, Beatrice Rosenberg and Kirby W. Patterson.
Mr. Justice Harlan
delivered the opinion of the Court.
Petitioner was charged by a three-count information filed in the United States District Court for the Northern District of Texas with violations of the National Firearms Act. 48 Stat. 1236. Two of the counts were •subsequently dismissed upon motion of the United States Attorney. The remaining count averred that petitioner, in violation of 26 U. S. C. § 5851, knowingly possessed a firearm, as defined by 26 U. S. C. § 5848 (1), which had not been registered with the Secretary of the Treasury or his delegate, as required by 26 U. S. C. § 5841. Petitioner moved before trial to dismiss this count, evidently asserting that § 5851 violated his privilege against self-incrimination, as guaranteed by the Fifth Amendment. The motion was denied, and petitioner thereupon entered a plea of guilty. The judgment of conviction was affirmed by the Court of Appeals for the Fifth Circuit. 372 F. 2d 651. We granted certiorari to examine the constitutionality under the Fifth Amendment of petitioner’s conviction. 388 U. S. 908. For reasons which follow, we reverse.
I.
Section 5851 forms part of the National Firearms Act, an interrelated statutory system for the taxation of certain classes of firearms. The Act’s requirements are applicable only to shotguns with barrels less than 18 inches long; rifles with barrels less than 16 inches long; other weapons, made from a rifle or shotgun, with an overall length of less than 26 inches; machine guns and other automatic firearms; mufflers and silencers; and other firearms, except pistols and revolvers, “if such weapon is capable of being concealed on the person ....” 26 U. S. C. §5848 (1); Treas. Reg. § 179.20, 26 CFR § 179.20. These limitations were apparently intended to guarantee that only weapons used principally by persons engaged in unlawful activities would be subjected to taxation.
Importers, manufacturers, and dealers in such firearms are obliged each year to pay special occupational taxes, and to register with the Secretary of the Treasury or his delegate. 26 U. S. C. §§ 6801, 5802. Separate taxes are imposed on the making and transfer of such firearms by persons other than those obliged to pay the occupational taxes. 26 U. S. C. §§ 5811, 5821. For purposes of these additional taxes, the acts of making and transferring firearms are broadly defined. Section 5821 thus imposes a tax on the making of a firearm “whether by manufacture, putting together, alteration, any combination thereof, or otherwise.” Similarly, to transfer encompasses “to sell, assign, pledge, lease, loan, give away, or otherwise dispose of” a firearm. 26 U. S. C. § 5848 (10).
All these taxes are supplemented by comprehensive requirements calculated to assure their collection. Any individual who wishes to make a weapon, within the meaning of § 5821 (a), is obliged, “prior to such making,” to declare his intention to the Secretary, and to provide to the Treasury his fingerprints and photograph. 26 U. S. C. § 5821 (e); Treas. Reg. § 179.78. The declaration must be “supported by a certificate of the local chief of police ... or such other person whose certificate may . .. be acceptable_” Treas. Reg. § 179.78. The certificate must indicate satisfaction that the fingerprints and photograph are those of the declarant, and that the firearm is intended “for lawful purposes.” Ibid. Any person who wishes to transfer such a weapon may lawfully do so only if he first obtains a written order from the prospective transferee on an “application form issued ... for that purpose by the Secretary.” 26 U. S. C. § 5814 (a). The application, supported by a certificate of the local chief of police, and accompanied by the transferee’s fingerprints and photograph, must be approved by the Secretary prior to the transfer. Treas. Reg. §§ 179.98, 179.99. Finally, every person possessing such a firearm is obliged to register his possession with the Secretary, unless he made the weapon, or acquired it by transfer or importation, and the Act’s requirements as to transfers, makings, and importations “were complied with.” 26 U. S. C. § 5841.
Failure to comply with any of the Act’s requirements is made punishable by fines and imprisonment. 26 U. S. C. § 5861. In addition, § 5851 creates a series of supplementary offenses; it declares unlawful the possession of any firearm which has “at any time” been transferred or made in violation of the Act’s provisions, or which “has not been registered as required by section 5841.” Finally, § 5851 provides that in prosecutions conducted under that section “possession shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such possession to the satisfaction of the jury.”
II.
At the outset, it must be emphasized that the issue in this case is not whether Congress has authority under the Constitution to regulate the manufacture, transfer, or possession of firearms; nor is it whether Congress may tax activities which are, wholly or in part, unlawful. Rather, we are required to resolve only the narrow issue of whether enforcement of § 5851 against petitioner, despite his assertion of the privilege against self-incrimination, is constitutionally permissible. • The questions necessary for decision are two: first, whether petitioner’s conviction under § 5851 is meaningfully distinguishable from a conviction under § 5841 for failure to register possession of a firearm; and second, if it is not, whether satisfaction of petitioner’s obligation to register under § 5841 would have compelled him to provide information incriminating to himself. If, as petitioner urges, his conviction under § 5851 is essentially indistinguishable from a conviction premised directly upon a failure to register under § 5841, and if a prosecution under § 5841 would have punished petitioner for his failure to incriminate himself, it would follow that a proper claim of privilege should have provided a full defense to this prosecution. To these questions we turn.
III.
The first issue is whether the elements of the offense under § 5851 of possession of a firearm “which has not been registered as required by section 5841” differ in any significant respect from those of the offense under § 5841 of failure to register possession of a firearm. The United States contends that the two offenses, despite the similarity of their statutory descriptions, serve entirely different purposes, in that the registration clause of § 5851 is intended to punish acceptance of the possession of a firearm which, despite the requirements of § 5841, was never registered by any prior possessor, while § 5841 punishes only a present possessor who has failed to register the fact of his own possession. If this construction is correct, nothing in a prosecution under § 5851 would turn on whether the present possessor had elected to register; his offense would have been complete when he accepted possession of a firearm which no previous possessor had registered. We need not determine whether this construction would be free from constitutional difficulty under the Fifth Amendment, for we have concluded that § 5851 cannot properly be construed as the United States has urged.
The United States finds support for its construction of § 5851 chiefly in the section’s use of the past tense: the act stated to be unlawful is “to possess any firearm which has not been registered as required by section 5841.” (Emphasis added.) It is contended that we may infer from this choice of tense that the failure to register must necessarily precede the accused’s acquisition of possession. We cannot derive so much from so little. We perceive no more in the draftsman’s choice of tense than the obvious fact that the failure to register must precede the moment at which the accused is charged; we find nothing which confines the clause’s application to failures to register which have occurred before a present possessor received the firearm. It follows that the phrase fastened upon by the United States is, at the least, equally consistent with the construction advanced by petitioner.
If, however, nothing further were available, it might be incumbent upon us to accept the Government’s construction in order to avoid the adjudication of a serious constitutional issue. See, e. g., Ashwander v. Valley Authority, 297 U. S. 288, 348 (concurring opinion); Crowell v. Benson, 285 U. S. 22, 62. But there are persuasive indications at hand which, in our view, preclude adoption of the position urged by the United States. Initially, we must note that each of the other two offenses defined by § 5851 indicates very specifically that the violations of the making or transfer provisions, on which the § 5851 offenses are ultimately premised, can have occurred “at any time.” An analogous phrase in the registration clause would have made plain beyond all question that the construction now urged by the United States should be accepted; if this was indeed Congress’ purpose, it is difficult to see why it did not, as it did in the other clauses, insert the few additional words necessary to make clear its wishes. The position suggested by the United States would thus oblige us, at the outset, to assume that Congress has, in this one clause, chosen a remarkably oblique and unrevealing phrasing.
Similarly, it is pertinent to note that the transfer and making clauses of § 5851 punish the receipt, as well as the possession, of firearms; the registration clause, in contrast, punishes only possession. Under the construction given § 5851 by the United States, Congress might have been expected to declare unlawful, in addition, the receipt of firearms never previously registered; indeed, the receipt of the firearm is, under that construction, the central element of the offense. Congress’ preference in the registration clause for “possession,” rather than “receipt,” is satisfactorily explicable only if petitioner’s construction of § 5851 is adopted.
Third, and more important, we find it significant that the offense defined by § 5851 is the possession of a firearm which has not been registered “as required by section 5841.” In the absence of persuasive evidence to the contrary, the clause’s final words suggest strongly that the perimeter of the offense which it creates is to be marked by the terms of the registration requirement imposed by § 5841. In turn, § 5841 indicates quite precisely that “[e]very person possessing a firearm” must, unless excused by the section’s exception, register his possession with the Secretary or his delegate. Moreover, the Treasury regulations are entirely unequivocal; they specifically provide that “[e]very person in the United States possessing a firearm (a) not registered to him,.. . must execute an application for the registration of such firearm . ...” Treas. Reg. § 179.120. (Emphasis added.)
The pertinent legislative history offers additional assistance, and points against the Government’s construction. The registration clause was inserted into § 5851 by the Excise Tax Technical Changes Act of 1958. 72 Stat. 1428. The two committee reports indicate, in identical terms, that the existing section was thought inadequate because, although it defined as an unlawful act the possession of any firearm which had been made or transferred in violation of the Firearms Act, it failed “to so define the possession of an unregistered firearm.” H. R. Rep. No. 481, 85th Cong., 1st Sess., 195; S. Rep. No. 2090, 85th Cong., 2d Sess., 212. The section as amended “specifically defines such possession of an unregistered firearm as an unlawful act.” Ibid. It is useful to note that the committees did not suggest that the failure to register must have preceded the acquisition of possession. Further, the reports indicate that the proposed amendment was intended to make available in prosecutions for possession of an unregistered firearm the presumption already contained in §5851; they conclude that the “primary purpose of this change is to simplify and clarify the law and to aid in prosecution.” H. R. Rep. No. 481, supra, at 196; S. Rep. No. 2090, supra, at 212.
We infer that the amendment was thought to have two purposes. First, it would complete the series of supplementary offenses created by § 5851, by adding to those premised on a making or transfer one bottomed on a failure to register. Second, it would facilitate the prosecution of failures to register by permitting the use of the presumption included in § 5851. It would thus “aid in prosecution” of conduct also made unlawful by § 5841. Both these purposes are fully consistent with the construction of § 5851 urged by petitioner; but only the first offers any support to the position suggested by the United States.
We are unable to escape the conclusion that Congress intended the registration clause of § 5851 to incorporate the requirements of § 5841, by declaring unlawful the possession of any firearm which has not been registered by its possessor, in circumstances in which § 5841 imposes an obligation to register. The elements of the offenses created by the two sections are therefore identical. This does not, however, fully resolve the question of whether any hazards of incrimination which stem from the registration requirement imposed by § 5841 must be understood also to inhere in prosecutions under § 5851. Two additional distinctions between the offenses have been suggested, and we must examine them.
First, it has been said that the offenses differ in emphasis, in that § 5851 chiefly punishes possession, while § 5841 punishes a failure to register. Cf. Frye v. United States, 315 F. 2d 491, 494; Castellano v. United States, 350 F. 2d 852, 854. We find this supposed distinction entirely unpersuasive, for, as we have found, the possession of a firearm and a failure to register are equally fundamental ingredients of both offenses. Second, it has been suggested that § 5841 creates a “status of unlawful possession” which, if assumed by an individual, denies to him the protection of the constitutional privilege. Castellano v. United States, supra, at 854. It has evidently been thought to follow that the privilege may be claimed in prosecutions under § 5841, but not in those under § 5851. This is no less unpersuasive; for reasons discussed in Marchetti v. United States, decided today, ante, at 51-52, we decline to hold that the performance of an unlawful act, even if there exists a statutory condition that its commission constitutes a waiver of the constitutional privilege, suffices to deprive an accused of the privilege’s protection. We hold that petitioner’s conviction under the registration clause of § 5851 is not properly distinguishable from a conviction under § 5841 for failure to register, and that both offenses must be deemed subject to any constitutional deficiencies arising under the Fifth Amendment from the obligation to register.
IY.
We must now consider whether, as petitioner contends, satisfaction of his obligation to register would have compelled him to provide information incriminating to himself. We must first mark the terms of the registration requirement. The obligation to register is conditioned simply upon possession of a firearm, within the meaning of § 6848 (1). Not every possessor of a firearm must, however, register; one who made the firearm, or acquired it by transfer or importation, need not register if the Act’s provisions as to transfers, makings, and importations “were complied with.” If those requirements were not met, or if the possessor did not make the firearm, and did not acquire it by transfer or importation, he must furnish the Secretary of the Treasury with his name, address, the place where the firearm is usually kept, and the place of his business or employment. Further, he must indicate his date of birth, social security number, and whether he has ever been convicted of a felony. Finally, he must provide a full description of the firearm. See 26 U. S. C. §5841; Treas. Reg. § 179.120; Internal Revenue Service Form 1 (Firearms).
The registration requirement is thus directed principally at those persons who have obtained possession of a firearm without complying with the Act’s other requirements, and who therefore are immediately threatened by criminal prosecutions under §§ 5861 and 5861. They are unmistakably persons “inherently suspect of criminal activities.” Albertson v. SACB, 382 U. S. 70, 79. It is true, as the United States emphasizes, that registration is not invariably indicative of a violation of the Act’s requirements; there are situations, which the United States itself styles “uncommon,” in which a possessor who has not violated the Act’s other provisions is obliged to register. Nonetheless, the correlation between obligations to register and violations can only be regarded as exceedingly high, and a prospective registrant realistically can expect that registration will substantially increase the likelihood of his prosecution. Moreover, he can reasonably fear that the possession established by his registration will facilitate his prosecution under the making and transfer clauses of § 5851. In these circumstances, it can scarcely be said that the risks of criminal prosecution confronted by prospective registrants are “remote possibilities out of the ordinary course of law,” Heike v. United States, 227 U. S. 131, 144; yet they are compelled, on pain of criminal prosecution, to provide to the Secretary both a' formal acknowledgment of their possession of firearms, and supplementary information likely to facilitate their arrest and eventual conviction. The hazards of incrimination created by the registration requirement can thus only be termed “real and appreciable.” Reg. v. Boyes, 1 B. & S. 311, 330; Brown v. Walker, 161 U. S. 591, 599-600.
We are, however, urged by the United States, for various disparate reasons, to affirm petitioner’s conviction. It is first suggested that the registration requirement is a valid exercise of the taxing powers, in that it is calculated merely to assure notice to the Treasury of all taxable firearms. We do not doubt, as we have repeatedly indicated, that this Court must give deference to Congress’ taxing powers, and to measures reasonably incidental to their exercise; but we are no less obliged to heed the limitations placed upon those powers by the Constitution’s other commands. We are fully cognizant of the Treasury’s need for accurate and timely information, but other methods, entirely consistent with constitutional limitations, exist by which such information may be obtained. See generally Counselman v. Hitchcock, 142 U. S. 547, 585. See also Adams v. Maryland, 347 U. S. 179; Murphy v. Waterfront Commission, 378 U. S. 52. Accordingly, nothing we do today will prevent the effective regulation or taxation by Congress of firearms.
Nonetheless, these statutory provisions, as now written, cannot be brought within any of the situations in which the Court has held that the constitutional privilege does not prevent the use by the United States of information obtained in connection with regulatory programs of general application. See United States v. Sullivan, 274 U. S. 259; Shapiro v. United States, 335 U. S. 1. For reasons given in Marchetti v. United States, supra, and Grosso v. United States, ante, p. 62, we have concluded that the points of significant dissimilarity between these circumstances and those in Shapiro and Sullivan preclude any proper application of those cases here. The questions propounded by § 5841, like those at issue in Albert-son, supra, are “directed at a highly selective group inherently suspect of criminal activities”; they concern, not “an essentially non-criminal and regulatory area of inquiry,” but “an area permeated with criminal statutes.” 382 U. S., at 79. There are, moreover, no records or other documents here to which any “public aspects” might reasonably be said to have attached. Compare Shapiro v. United States, supra, at 34; and Marchetti v. United States, supra.
The United States next emphasizes that petitioner has consistently contended that §§ 5841 and 5851 are unconstitutional on their face; it urges that this contention is foreclosed by the inclusion in the registration requirement of situations in which the obligation to register cannot produce incriminating disclosures. We recognize that there are a number of apparently uncommon circumstances in which registration is required of one who has not violated the Firearms Act; the United States points chiefly to the situation of a finder of a lost or abandoned firearm. Compare United States v. Forgett, 349 F. 2d 601. We agree that the existence of such situations makes it inappropriate, in the absence of evidence that the exercise of protected rights would otherwise be hampered, to declare these sections impermissible on their face. Instead, it appears, from the evidence now before us, that the rights of those subject to the Act will be fully protected if a proper claim of privilege is understood to provide a full defense to any prosecution either for failure to register under § 5841 or, under § 5851, for possession of a firearm which has not been registered.
Finally, we are asked to avoid the constitutional difficulties which we have found in §§ 5841 and 5851 by imposing restrictions upon the use by state and federal authorities of information obtained as a consequence of the registration requirement. We note that the provisions of 26 U. S. C. § 6107 are applicable to the special occupational taxes imposed by § 5801, although not, apparently, to the making and transfer taxes imposed by §§ 5811 and 5821. In these circumstances, we decline, for reasons indicated in Marchetti, supra, and Grosso, supra, to impose the restrictions urged by the United States.
We hold that a proper claim of the constitutional privilege against self-incrimination provides a full defense to prosecutions either for failure to register a firearm under § 5841 or for possession of an unregistered firearm under § 5851.
V.
It remains only to determine the appropriate disposition of this case. Petitioner has seasonably and consistently asserted a claim of privilege, but the courts below, believing the privilege inapplicable to prosecutions under § 5851, evidently did not assess the claim’s merits. It would therefore ordinarily be necessary to remand the cause to the District Court, with instructions to examine the merits of the claim. We note, however, that there can be no suggestion here that petitioner has waived his privilege, and that, moreover, the United States has conceded that petitioner’s privilege against self-incrimination must be found to have been imper-missibly infringed if his contentions as to the proper construction of §§ 5851 and 5841 are accepted. Brief for the United States 8. Accordingly, the District Court would be obliged in any additional proceeding to conclude that “there is reasonable ground to apprehend danger to the witness from his being compelled to answer.” Reg. v. Boyes, supra, at 330. It follows that any proceeding in the District Court must inevitably result in the reversal of petitioner’s conviction. We have plenary authority under 28 U. S. C. § 2106 to make such disposition of the case “as may be just under the circumstances.” See Yates v. United States, 354 U. S. 298, 327-331; Grosso v. United States, supra. It would be neither just nor appropriate to require the parties and the District Court to commence an entirely needless additional proceeding. Accordingly, the judgment of the Court of Appeals is
Reversed.
Mr. Justice Marshall took no part in the consideration or decision of this case.
Petitioner’s motion asserted merely that § 5851 was “unconstitutional,” and the order denying the motion, does not indicate more precisely the substance of petitioner’s contentions. His subsequent arguments, both in the courts below and here, have, however, consistently asserted a claim of the constitutional privilege. No suggestion is made by the Government that the claim of privilege was not sufficiently made.
Petitioner’s plea of guilty did not, of course, waive his previous claim of the constitutional privilege. See, e. g., United States v. Ury, 106 F. 2d 28.
The section provides that “It shall be unlawful for any person to receive or possess any firearm which has at any time been transferred in violation of sections 5811, 5812 (b), 5813, 5814, 5844, or 5846, or which has at any time been made in violation of section 5821, or to possess any firearm which has not been registered as required by section 5841. Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of such firearm, such possession shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such possession to the satisfaction of the jury.”
The views of a subsequent Congress of course provide no controlling basis from which to infer the purposes of an earlier Congress. See Rainwater v. United States, 356 U. S. 590, 593; United States v. Price, 361 U. S. 304, 313. Nonetheless, it is pertinent to note that the Committee on Ways and Means of the House of Representatives, while reporting in 1959 on certain proposed amendments to the Act, stated that the “primary purpose of [the Firearms Act] was to make it more difficult for the gangster element to obtain certain types of weapons. The type of weapon with which these provisions are concerned are the types it was thought would be used primarily by the gangster-type element.” H. R. Rep. No. 914, 86th Cong., 1st Sess., 2.
The section provides that “Every person possessing a firearm shall register, with the Secretary or his delegate, the number or other mark identifying such firearm, together with his name, address, place where such firearm is usually kept, and place of business or employment, and, if such person is other than a natural person, the name and home address of an executive officer thereof. No person shall be required to register under this section with respect to a firearm which such person acquired by transfer or importation or which such person made, if provisions of this chapter applied to such transfer, importation, or making, as the case may be, and if .the provisions which applied thereto were complied with.”
Indeed, so much is recognized by the Government; it has stated that “[w]e concede that if petitioner’s reading of the two provisions were right . . . petitioner’s conviction under Section 5851 would not be valid.” Brief for the United States 8.
The Government’s position is generally supported by several cases in the courts of appeals. See, in addition to the opinion below, Frye v. United States, 315 F. 2d 491; Starks v. United States, 316 F. 2d 45; Mares v. United States, 319 F. 2d 71; Sipes v. United States, 321 F. 2d 174; Taylor v. United States, 333 F. 2d 721; Castellano v. United States, 350 F. 2d 852; Pruitt v. United States, 364 F. 2d 826; Decker v. United States, 378 F. 2d 245. None of these cases, however, undertook an extended examination of the relationship between §§ 5851 and 5841. Compare Lovelace v. United States, 357 F. 2d 306, 309; and Mansfield, The Albertson Case: Conflict Between the Privilege Against Self-Incrimination and the Government’s Need for Information, 1966 Sup. Ct. Rev. 103, 158-159, n. 95.
The language in the reports was evidently taken without change or elaboration from the recommendations submitted to the House Committee on Ways and Means by the Treasury. See Hearings before House Committee on Ways and Means on Excise Tax Technical and Administrative Problems, 84th Cong., 1st Sess., 185, 211.
We note that § 5841 has several times been held to require incriminating disclosures, in violation of the Fifth Amendment privilege against self-incrimination. See Russell v. United States, 306 F. 2d 402; Dugan v. United States, 341 F. 2d 85; McCann v. United States, 217 F. Supp. 751; United States v. Fleish, 227 F. Supp. 967. See also Lovelace v. United States, supra, at 309.
In particular, the United States emphasizes the position of a finder of a lost or abandoned firearm. Brief for the United States 20.
We must note, however, that certain of these prospective registrants might be threatened by prosecution under state law for possession of firearms, or similar offenses. It is possible that such persons would be obliged, if they registered in compliance with § 5841, to provide information incriminating to themselves. Such hazards would, of course, support a proper claim of privilege. See Malloy v. Hogan, 378 U. S. 1. For illustrations of state statutes under which such prosecutions might occur, see Conn. Gen. Stat. Rev. § 53-202 (1958); Del. Code Ann., Tit. 11, § 465 (1953); Hawaii Rev. Laws § 157-8 (1955); l'owa Code §696.1 (1966); Kan. Stat. Ann. §21-2601 (1964); La. Rev. Stat. §40:1752 (1950); Minn. Stat. § 609.67 (1965); N. J. Rev. Stat., Tit. 2A, §151-50 (1953). We have discovered no state statute under which the present petitioner might have been subject to prosecution for acts registrable under § 5841, and he has not contended that registration would have incriminated him under state law.
See, for example, Sonzinsky v. United States, 300 U. S. 506; Marchetti v. United States, supra.
Again, we note that these registrants might be confronted by hazards of prosecution under state law, and that those hazards might support a proper claim of privilege. See supra, n. 11.
Section 6107 provides that “In the principal internal revenue office in each internal revenue district there shall be kept, for public inspection, an alphabetical list of the names of all persons who have paid special taxes under subtitle D or E within such district. Such list shall be prepared and kept pursuant to regulations prescribed by the Secretary or his delegate, and shall contain the time, place, and business for which such special taxes have been paid, and upon application of any prosecuting officer of any State, county, or municipality there shall be furnished to him a certified copy thereof, as of a public record, for which a fee of $1 for each 100 words or fraction thereof in the copy or copies so requested may be charged.” The special taxes to which the section refers include those imposed by 26 U. S. C. § 5801. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss. | What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed? | [
"stay, petition, or motion granted",
"affirmed (includes modified)",
"reversed",
"reversed and remanded",
"vacated and remanded",
"affirmed and reversed (or vacated) in part",
"affirmed and reversed (or vacated) in part and remanded",
"vacated",
"petition denied or appeal dismissed",
"certification to or from a lower court",
"no disposition"
] | [
2
] | sc_casedisposition |
DONNELLY v. DeCHRISTOFORO
No. 72-1570.
Argued. February 20, 1974
Decided May 13, 1974
Rehnquist, J., delivered the opinion of the Court, in which Burger, C/-J.¿ and Stewart, White, Blackmun, and Powell, JJ., joined. Stewart, J., filed a concurring opinion, in which White, J., joined, post, p. 648. Douglas, J., filed a dissenting opinion, in Part II of which Brennan and Marshall, JJ., joined, post, p. 648.
David A. Mills, Assistant Attorney General of Massachusetts, argued the cause for petitioner. With him on the brief were Robert H. Quinn, Attorney General, John J. Irwin, Jr., and Barbara A. H. Smith, Assistant Attorneys General.
Paul T. Smith argued the cause for respondent. With him on the brief were Harvey R. Peters and Jeffrey M. Smith
Melvin B. Lewis filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae.
. Mr. Justice Rehnquist
delivered the opinion of the Court.
. Respondent was tried before a jury in Massachusetts Superior Court and convicted of first-degree murder. The jury recommended that the death penalty not be imposed, and respondent was sentenced to life imprisonment. He appealed to the Supreme Judicial Court of Massachusetts contending, inter alia, that certain of the prosecutor’s remarks during closing argument deprived him of his constitutional right to a fair trial. The Supreme Judicial Court' affirmed. That court acknowledged that the prosecutor had made improper remarks, but determined that they were not so prejudicial as to require reversal.
Respondent then sought habeas corpus relief in the United States District Court for the District of Massachusetts. The District Court denied relief, stating: “[T]he prosecutor’s arguments were'not so prejudicial as to deprive [DeChristoforo] of his constitutional right to a fair trial.” The Court of Appeals for the First Circuit reversed by a divided vote. The majority held that the prosecutor’s remarks deliberately conveyed the false impression that respondent had unsuccessfully sought to plead to a lesser charge and that this conduct was a denial of due process. We granted certiorari, 414 U. S. 974 (1973), to consider whether such remarks, in the context of the entire trial, were sufficiently prejudicial to violate respondent’s due process rights. We hold they were not and so reverse.
I
Respondent and two companions were indicted for the first-degree murder of Joseph Lanzi, a passenger in the car in which the defendants were riding. Police had stopped the car at approximately 4 a. m. on April 18, 1967, and had discovered Lanzi’s dead body along with two firearms, one of which had been fired. A second gun, also recently fired, was found a short distance away. Respondent and one companion avoided. apprehension at that time, but the third defendant was taken into custody. He later pleaded guilty to second-degree murder.
Respondent and the other defendant, Gagliardi, were finally captured and tried jointly, The prosecutor made little claim that respondent fired any shots but argued that he willingly assisted in the killing. Respondent,' on the other hand, maintained that he was an innocent passenger.’ At the close of the evidence but before final argument, Gagliardi elected to plead guilty , to a charge of second-degree murder. The court advised the jury that Gagliardi had pleaded guilty and that respondent’s trial would continue. Respondent did not seek an instruction that the jury was to draw no inference from the plea, and no such instruction was given.
Respondent’s claims of constitutional error focus on two remarks made by the prosecutor during the course of his rather lengthy closing argument to the jury. The first involved the expression of a personal opinion as to guilt, perhaps offered to rebut a somewhat personalized argument by respondent’s counsel. The majority of the Court of Appeals agreed with the Supreme Judicial Court of Massachusetts that this remark was improper, but declined to rest its holding of a violation of due process on that remark. It turned to a second remark that it deemed “more serious.”
The prosecutor’s second challenged comment was directed at respondent’s motives in standing trial: “They [the respondent and his counsel] said they hope that you find him not guilty. I quite frankly think that they hope that you find him guilty of something a little less than first-degree- murder.” Respondent’s counsel objected immediately to the statement and later sought an instruction that the remark was improper and should be disregarded. The court then gave the following instruction:
“Closing arguments are not evidence for your consideration. ...
. “Now-in his. closing, the District Attorney, I noted, made a statement: T don’t know what they want you to do by way of a verdict. They said they hope that you find him not guilty. I quite frankly think that they hope that you find him guilty of something a little less than first-degree' murder.’ There is no evidence of that whatsoever, of course, you are instructed to disregard that statement made by the District Attorney.
“Consider the case as though no such statement was made.” '
The majority of the Supreme Judicial Court of Massachusetts, though again not disputing that the remark was improper, held that it was not so prejudicial as to require a mistrial and further stated that the trial judge’s instruction “was sufficient to safeguard the defendant’s rights.” Despite this decision and the District Court’s denial of a writ of habeas corpus, the Court of Appeals found that the commént was potentially so misleading and prejudicial that it deprived respondent of a constitutionally fair trial.
Ths Court of Appeals reasoned that the jury would be naturally curious about respondent’s failure to plead guilty and that this curiosity would be heightened by Gagliardi’s decision to plead guilty at the close of the evidence. In this context, the court thought, the prosecutor’s comment that respondent hoped for conviction on a lesser offense would suggest to the jury that respondent had sought to plead guilty but had been refused. Since the prosecutor was in a position to know such facts, the jury may well have surmised that respondent had already admitted guilt in an attempt to secure reduced charges. This, said the Court of Appeals, is the inverse of, but a parallel to, intentional suppression of favorable evidence. The prosecutor had deliberately misled the jury, and even if the statement was made thoughtlessly, “in a first degree murder case there must be some duty on a prosecutor to be houghtful.” Therefore, the District Court had erred in denying respondent’s petition.
II
The Court of Appeals in this case noted, as petitioner urged, that its review was “the narrow one of due process, and not the broad exercise of supervisory power that [it] would possess in regard to [its] own trial court.” We regard this observation as important for not every trial error or infirmity which might call for application of supervisory powers correspondingly constitutes a “failure to observe that fundamental fairness essential to the very concept of justice.” Lisenba v. California, 314 U. S. 219, 236 (1941). We stated only this Term in Cupp v. Naughten, 414 U. S. 141 (1973), when reviewing an instruction given in a state court:
“Before a federal court may overturn a conviction resulting from a state trial in which this instruction was used, it must be established not merely that the instruction is undesirable, erroneous, or even 'universally condemned,’. but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment:”
This is not a case, in which the State has denied a defendant the benefit of a specific provision of the Bill of Rights, such as the right to counsel, Argersinger v. Hamlin, 407 U. S. 25 (1972), or in which the prosecutor’s remarks so prejudiced a specific right, such as the privilege against compulsory self-incrimination, as to amount to a denial of that right. Griffin v. California, 380 U. S. 609 (1965). When specific guarantees of the Bill of Rights are involved, this Court has taken special care to assure that prosecutorial conduct in no way impermissibly infringes them. But here the claim is only that a prosecutor’s remark about respondent’s expectations at trial by itself so infected the trial with unfairness as to make the resulting conviction a denial of due process. We do not believe that examination of the entire proceedings in this case supports that contention.
Conflicting inferences have been drawn from the prosecutor’s statement by the courts below. Although thé Court of Appeals stated flatly' that “the prosecuting attorney turned Gagliardi’s plea into a telling stroke against [DeChristoforo]” by implying respondent had offered to plead guilty as well, the dissent found the inference to be “far less obvious.” The Supreme Judicial Court of Massachusetts stated that it considered the. same argument illogical:
“It is not logical to conclude that the jury would accept any implied argument of the prosecutor that, because one of the men whom the defendant blamed for the murder had pleaded guilty, the defendant was any less firm in his assertion that he himself was not guilty of any crime whatsoever.”
Thus it is by no means clear that the jury did engage in the hypothetical analysis suggested by the majority of the Court of Appeals, or even probable that it would seize such a comment out of context and attach this particular meaning to it. Five Justices of the Supreme Judicial Court of Massachusetts and at least one federal judge have all confessed difficulty in making this speculative connection.
In addition, the trial court took special pain's to correct any impression that the jury could consider the prosecutor’s statements as evidence in the case. . The prosecutor, as is customary, had previously told the jury that his argument was not evidence, and the trial judge specifically re-emphasized that point. Then the judge directed the jury’s attention to the remark particularly challenged here, declared it to be unsupported, and admonished the jury to ignore it. Although some occurrences at trial may be too clearly prejudicial for such a curative instruction to mitigate their effect, the comment in this case is hardly of such character.
In Cupp v. Naughten, supra, the respondent had challenged his conviction on the ground that a “presumption of truthfulness” instruction, given by the state trial court, had deprived him of the presumption of innocence and had shifted the State’s burden of proof to himself. Holding that the instruction, although perhaps not advisable, did not violate due process, we stated:
“In determining the effect of this instruction on the validity of respondent’s conviction, we accept at the outset the well-established proposition that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge. Boyd v. United States, 271 U. S. 104, 107 (1926). While this does not mean that an instruction by itself may never rise to the level of constitutional error, see Cool v. United States, 409 U. S. 100 (1972), it does recognize that a judgment of conviction is commonly the culmination of a trial which includes testimony of witnesses, argument of counsel, receipt of .exhibits in evidence, and instruction of the jury by the judge. Thus not only is the challenged instruction but one of many such instructions, but the process of instruction itself is but one of several components of the trial which may result in the judgment of conviction.”
Similarly, the prosecutor’s remark here, admittedly an ambiguous one, was but one moment in an extended trial and was followed by specific disapproving instructions. Although the process of constitutional line drawing in this regard is necessarily imprecise, we simply do not believe that this incident made respondent’s trial so fundamentally unfair as to deny him due process.
m
We do not find the cases cited by the Court of Appeals to require a different result. In Miller v. Pate, 386 U. S. 1 (1967), the principal case relied upon, this Court held that a state prisoner was entitled to federal habeas relief upon a showing that a pair of stained undershorts, allegedly belonging to the prisoner and repeatedly described by the. State during trial as stained with blood, was in fact stained with paint. In the course of its opinion, this Court said:
“It .was further established that counsel for the prosecution had known at the time of the trial that the shorts were stained with paint. . . .
“. . . The record of the petitioner’s trial reflects the prosecution’s consistent and repeated misrepresentation that People’s Exhibit 3 was, indeed, ‘a .garment heavily stained with blood.’ ” Id., at 6.
A long series of decisions in this Court, of course, had established the proposition that the “Fourteenth Amendment cannot tolerate a state criminal conviction obtained by the knowing use of false evidence.” Id., at 7. The Court in Miller found those cases controlling,
We countenance no retreat from that proposition in observing that it falls far short of embracing the prosecutor’s remark in this case. The “consistent and repeated misrepresentation” of a dramatic exhibit in evidence may profoundly impress a jury and may have a significant impact on the jury’s deliberations. Isolated passages of a prosecutor’s argument, billed in advance to the jury as a matter of opinion not of evidence, do not reach the same proportions. Such arguments, like all closing arguments of counsel, are seldom carefully constructed in toto before the event; improvisation frequently results in syntax left imperfect and meaning less than crystal clear. While these general observations in no way justify prosecutorial misconduct, they do suggest that- a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.
The Court of Appeals’ reliance on Brady v. Maryland, 373 U. S. 83 (1963), is likewise misplaced. In Brady, the prosecutor had withheld evidence, a statement by the petitioner’s codefendant, which was directly relevant to the extent of the petitioner’s involvement in the crime. Since the petitioner had testified that his codefendant had done the actual shooting and since the petitioner’s counsel was not contesting guilt but merely seeking to avoid the death penalty, evidence of the degree of the petitioner’s participation was highly significant to the primary jury issue. As in Miller, manipulation of the evidence by the prosecution was likely to have an important effect on the jury’s determination. But here there was neither the introduction of specific misleading evidence important to the prosecution’s case in chief nor the nondisclosure of specific evidence valuable to the accused’s defense. There were instead a few brief sentences in the prosecutor’s long and expectably hortatory closing argument which might or might not suggest to a jury that the respondent had unsuccessfully sought to bargain for a lesser charge. We find nothing-in Brady to suggest that due process is so easily denied.
The result reached by the Court of Appeals in this case leaves virtually meaningless the distinction between ordinary trial error of a prosecutor and that sort of egregious misconduct held in Miller and Brady, supra, to amount to a denial of constitutional due process. Since we believe that distinction should continue to be observed, we reverse the, judgment of the Court of Appeals. .
It is so ordered.
Respondent and his codefendants were also indicted for illegal possession of firearms, and respondent received a four- to five-year sentence on that charge. The conviction is in no way related to the issues before the Court in this case.
Commonwealth v. DeChristoforo, Mass. —, 277 N. E. 2d 100 (1971).
App. 231.
473 F 2d 1236 (1973).
The trial court stated:
“Mr. Foreman, madam and gentlemen of the jury. You will notice that the defendant Gagliardi is not in the dock. He has pleaded ‘guilty,’ and his case has been disposed of.
“We will, therefore, go forward with the trial of the case of Commonwealth vs DeChristoforo.” App. 99.
The challenged remark was: “I honestly and .sincerely believe that there is no doubt in this case, none whatsoever.” Id., at 130.
The Court of Appeals noted: “[A]t least' the jury knows that the prosecutor is an advocate and it may be expected, to some degree, to discount such remarks as seller’s talk.” 473 F. 2d, at 1238.
App. 129.
No instruction was sought at .the time although the court apparently was willing to give one. The. trial judge later told counsel: “[H]ad there been a motion made by. you at that time to have me instruct the jury along the lines of eliminating that from their minds, or something of that nature, I certainly would have complied, because I did consider at the time the argument was beyond the grounds of complete propriety, but certainly far from being grounds for a mistrial.” Id,., at 133.
Id., at 143-144.
— Mass., at —, 277 N. E. 2d, at 105.
473 F. 2d, at 1240.
Id., at 1238.
414 U. S., at 146.
Respondent does suggest that the prosecutor’s statements may have deprived him of the right to confrontation. See Pointer v. Texas, 380 U. S. 400 (1965). But this argument is without merit, for the prosecutor here simply stated his own opinions and intro- • duced no statements made by persons unavailable for questioning at trial.
473 F. 2d, at 1239.
Id., at 1241 (Campbell, J., dissenting).
App. 157.
Id., at 119.
See n. 10, supra.
414 U. S., at 146-147.
See, e. g., Mooney v. Holohan, 294 U. S. 103 (1935); Napue v. Illinois, 360 U. S. 264 (1959).
We do.not, by this decision, in any way condone.prosecutorial misconduct, and we believe' that trial courts, by admonition and instruction, api appellate courts, by proper exercise of their supervisory power, will continue to discourage it. We only say that, in the circumstances of the case, no prejudice amounting to a denial of constitutional due process was shown. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss. | What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed? | [
"stay, petition, or motion granted",
"affirmed (includes modified)",
"reversed",
"reversed and remanded",
"vacated and remanded",
"affirmed and reversed (or vacated) in part",
"affirmed and reversed (or vacated) in part and remanded",
"vacated",
"petition denied or appeal dismissed",
"certification to or from a lower court",
"no disposition"
] | [
2
] | sc_casedisposition |
BRANDON et al. v. HOLT, DIRECTOR OF POLICE FOR THE CITY OF MEMPHIS, et al.
No. 83-1622.
Argued November 5, 1984
Decided January 21, 1985
Stevens, J., delivered the opinion of the Court, in which Brennan, White, Marshall, Blackmun, Powell, and O’Connor, JJ., joined. Burger, C. J., filed an opinion concurring in the judgment, post, p. 473. Rehnquist, J., filed a dissenting opinion, post, p. 474.
Eric Schnapper argued the cause for petitioners. With him on the briefs were Elizabeth A. McKanna, G. Philip Arnold, William E. Caldwell, and J. LeVonne Chambers.
Henry L. Klein argued the cause for respondents. With him on the brief were Clifford D. Pierce, Jr., Charles V. Holmes, and Paul F. Goodman.
Solicitor General Lee, Acting Assistant Attorney General Willard, Deputy Solicitor General Geller, Bruce N. Kuhlik, Barbara L. Herwig, and Wendy M. Keats filed a brief for the United States as amicus curiae urging reversal.
Justice Stevens
delivered the opinion of the Court.
The District Court entered a damages judgment against the Director of the Memphis (Tenn.) Police Department in his official capacity. Brandon v. Allen, 516 F. Supp. 1355, 1361 (WD Tenn. 1981). The Court of Appeals for the Sixth Circuit reversed, holding that he was protected by qualified immunity. Brandon v. Allen, 719 F. 2d 151, 153 (1983). The question presented is whether the damages judgment is payable by the city of Memphis because the Director was sued in his official capacity or whether the Director is individually liable, but shielded by qualified immunity.
Petitioners brought this action under 42 U. S. C. § 1983. They alleged and proved that Robert J. Allen, who was then a Memphis police officer, viciously assaulted them on March 5, 1977. They also proved that Allen had a history of violent and irregular behavior that was well known within the Police Department.
E. Winslow Chapman had been the Director of the Memphis Police Department for approximately six months when Officer Allen attacked the petitioners. It is undisputed that Chapman had no actual knowledge of Allen’s disciplinary record. The District Court found, however, that “Director Chapman should have known that Officer Allen’s dangerous propensities created a threat to the rights and safety of citizens. ” The Director’s lack of actual knowledge of Allen’s propensities was found to have been caused by the “policies in effect during that period of Mr. Chapman’s relatively new administration,” which policies included “the inherently deficient nature of police administrative procedures involving the discovery of officer misconduct.”
Petitioners sought damages from Officer Allen and from Director Chapman. Allen did not defend the action and a default judgment was entered against him for both compensatory and punitive damages. The award against Director Chapman was, however, limited to compensatory damages. In its findings and conclusions, the District Court repeatedly and unambiguously stated that the liability of Director Chapman was “in his official capacity.”
The Court of Appeals reversed the judgment against Director Chapman on the ground that he had “acted in good faith and is accordingly entitled to immunity.” In explaining its holding, the Court of Appeals rejected the petitioners’ contention that the action against Chapman was tantamount to an action against the city of Memphis. The court wrote:
“The plaintiffs’ argument that the qualified immunity is inapplicable simply because they sued Chapman in his official capacity is unavailing. Under Owen v. City of Independence, 445 U. S. 622 . . . (1980), a municipality is not entitled to claim the qualified immunity that the city’s agents can assert. But this is a suit against an individual, not the city. In reality, plaintiffs are attempting to amend their complaint so as to treat the Police Director as though he were the City in order to avoid the qualified immunity which shields Director Chapman. Such an argument is without support in precedent or reason.”
We granted certiorari to consider the validity of that argument. 467 U. S. 1204 (1984). We now reverse.
H-I
In Monroe v. Pape, 365 U. S. 167, 187-192 (1961), the Court held that a city was not “a person” within the meaning of 42 U. S. C. § 1983. That construction of § 1983 protected municipalities from liability in cases of this kind until June 6, 1978, when we decided Monell v. New York City Dept. of Social Services, 436 U. S. 658. The complaint in this case was filed on February 22, 1978, before Monroe v. Pape was overruled; this explains why the city of Memphis was not named as a defendant in this case. The timing of the complaint may also explain why petitioners did not expressly allege at the outset of the litigation that they were suing Chapman in his official capacity as Director of Police of the Memphis Police Department.
The course of proceedings after Monell was decided did, however, make it abundantly clear that the action against Chapman was in his official capacity and only in that capacity. Thus, in petitioners’ response to a defense motion for summary judgment, petitioners’ counsel stated:
“Defendant Chapman is sued in his official capacity as Director of Police Services, City of Memphis, Tennessee. ‘[OJfficial capacity suits generally represent an action against an entity of which an officer is an agent. . . . Monell v. New York Department of Social Services, 436 U. S. 658, 690 n. 55 (1978).’”
The point was reiterated in counsel’s opening statement, in the trial court’s evidentiary rulings, in the findings on liability, and in the proceedings relating to damages in which it was recognized that our decision in Newport v. Facts Concert, Inc., 453 U. S. 247 (1981), precluded an award of punitive damages against Director Chapman.
The Court of Appeals also repeatedly noted that the suit against Chapman was “in his official capacity.” Moreover, while the appeal was pending Director Chapman left office and was replaced by John D. Holt. Pursuant to Rule 43(c)(1) of the Federal Rules of Appellate Procedure, Holt was automatically substituted as a party. It is Director Holt who appears as a respondent in this Court, and there is not even an arguable basis for claiming that the record would support an award of damages against him individually.
Given this state of the record, even at this late stage of the proceedings, petitioners are entitled to amend their pleadings to conform to the proof and to the District Court’s findings of fact. Moreover, it is appropriate for us to proceed to decide the legal issues without first insisting that such a formal amendment be filed; this is because we regard the record as plainly identifying petitioners’ claim for damages as one that is asserted against the office of “Director of Police, City of Memphis,” rather than against the particular individual who occupied that office when the claim arose. Petitioners are claiming a right to recover damages from the city of Memphis.
II
In at least three recent cases arising under § 1983, we have plainly implied that a judgment against a public servant “in his official capacity” imposes liability on the entity that he represents provided, of course, the public entity received notice and an opportunity to respond. We now make that point explicit.
In Monell, the City of New York was not itself expressly named as a defendant. The suit was nominally against the city’s Department of Social Services, but that Department had no greater separate identity from the city than did the Director of the Department when he was acting in his official capacity. For the purpose of evaluating the city’s potential liability under § 1983, our opinion clearly equated the actions of the Director of the Department in his official capacity with the actions of the city itself.
Hutto v. Finney, 437 U. S. 678 (1978), was an action against state officials rather than municipal officers. Notwithstanding our express recognition that an order requiring the Arkansas Commissioner of Corrections to pay the plaintiff’s counsel fees would be satisfied with state funds, we sustained the order against an Eleventh Amendment challenge. We considered it obvious that the State would pay the award because the defendants had been sued in their “official capacities.”
Less than two years later, we decided Owen v. City of Independence, 445 U. S. 622 (1980), a § 1983 action in which the complaint named as defendants “the city of Independence, City Manager Alberg, and the present members of the City Council in their official capacities.” We held that the qualified immunity that protects public servants acting in good faith was not available to those defendants. In so holding, we expressly distinguished between suits against government officials “in their individual capacities” on the one hand, and those in which “only the liability of the municipality itself was at issue,” on the other.
Because the Court of Appeals failed to apply that distinction in this case, it erred. Our holding in Owen, that a municipality is not entitled to the shield of qualified immunity from liability under § 1983, requires a reversal of the Court of Appeals’ judgment. Accordingly, the judgment is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.
It is so ordered.
That section provides, in pertinent part:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects or causes to be subjected, any citizen of the United States... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” of fact ade-
The following excerpt from the District Court’s findings of fact quately reflects the character of the incident:
“[Petitioners], who were seventeen years of age, drove to the Memphis Hunt and Polo Club while on a date and parked in a dark and secluded driveway area. . . . After approximately thirty minutes had elasped, a Chevrolet pickup truck entered the driveway where [petitioners] were parked. . . . The driver of the truck identified himself to [petitioners] as a police officer and showed them an official police identification card bearing the name and photograph of Robert J. Allen. . . . Mr. Allen ordered Mr. Muse to step out of the car. After briefly questioning him, Officer Allen maliciously, and without provocation, struck Mr. Muse in the neck and head with his fist and then stabbed and cut Muse on the neck and ear with a knife. As Officer Allen tried to break into the car where [petitioner] Elizabeth A. Brandon was seated, Mr. Muse jumped into the driver’s side of the car and quickly drove away. Officer Allen fired one shot at the escaping vehicle from his police revolver. The bullet shattered the front window on the driver’s side of the car. Officer Allen followed plaintiffs in a high speed chase which ended at St. Joseph’s Hospital East, where plaintiffs sought medical care and assistance and reported the unprovoked attack upon them by Officer Allen.” Brandon v. Allen, 516 F. Supp. 1355, 1357 (WD Tenn. 1981).
Officer Allen’s police file records contained 20 complaints when he left the Memphis Police Department. They included complaints for “serious abuse of police authority and use of unnecessary force.” Id., at 1358.
The District Court found that Officer maladaptive behavior was well known among Police officers in his precinct.” Ibid. The court also found that Allen’s colleagues commented thusly when the March 5 incident was reported to them: “They finally caught up with him; he’s a quack; Allen has done something this time that he can’t get out of.” Ibid. Moreover, the court found that Allen’s fellow officers regarded him as a “mental case”; that Allen rode in his squad car alone because of the reluctance of other officers to ride with him; and that Allen boasted of killing a man in the course of duty. Ibid. Additionally, the District Court wrote:
“Offieer Allen has often stated to other officers that he wished he knew the exact bullet spread in the chest of the man he killed. Officer Allen referred to a pair of gloves in his possession as his ‘killing gloves,’ and he would ceremoniously put those gloves on his hands when he was called to the scene of a crime.” Ibid.
Id., at 1360.
Regarding these policies and procedures, the District Court wrote: “Due to a code of silence induced by peer pressure among the rank-and-file officers and among some police supervisors, few — if any — formal complaints were ever filed by police personnel. Furthermore, when complaints were filed by citizens, little disciplinary action was apparently taken against the offending officer. Instead, a standard form letter, bearing Mr. Chapman’s signature, was mailed to each complainant, assuring the person that appropriate action had been taken by the Police Department, even if such action had not in fact been taken. This tended to discourage follow-up measures by the complaining citizen. Perhaps, Mr. Chapman’s belief that it was better to take no disciplinary action than to act and later be reversed by a review board was responsible for this obviously inadequate solution. The end result was twofold: 1) Mr. Chapman’s procedures were highly conducive to ‘covering up’ officer misconduct; 2) the Police Director and many of his supervisors were totally insulated from knowledge of wrongdoing by officers as a result of policies in effect during that period of Mr. Chapman’s relatively new administration.” Id., at 1361.
Petitioner Muse recovered $21,310.75 in compensatory damages and out-of-pocket expenses; petitioner Brandon recovered $5,000. App. 36a.
The District Court initially summarized: “This is a civil action against the Honorable E. Winslow Chapman, in his official capacity as director of the Memphis Police Department and former Memphis Police Officer Robert J. Allen.” 516 F. Supp., at 1356 (emphasis added). It also later stated that “Mr. Chapman was sued in his official capacity as an agent of the Memphis Police Department,” id., at 1359 (emphasis added), and that “[b]ecause Mr. Chapman, as Police Director, should have known of Officer Allen’s dangerous propensities the Court finds that he must be held liable, in his official capacity, to the plaintiffs.” Id., at 1360 (emphasis added). Finally, the court concluded: “Accordingly, Mr. Chapman in his capacity as Director of the Memphis Police Department must be held liable to plaintiffs in this case.” Id., at 1361 (emphasis added).
Brandon v. Allen, 719 F. 2d 151, 154 (1983). The Court of Appeals also held that the award of compensatory damages against Allen was inadequate. Id., at 153.
Id., at 154.
The caption and the body of the complaint named as a defendant, “E. Winslow Chapman, Director of Police.” Complaint, Brandon v. Allen, Civil Action No. 78-2076 (WD Tenn.). The Mayor of Memphis was also named; the District Court granted summary judgment in his favor. App. 13a-18a.
Brief for Petitioners 19.
Counsel stated:
“Mr. Chapman is sued in this lawsuit in his official capacity, and as was stated in Monell versus New York City Department of Social Services, a 1978 Supreme Court case, official capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent.” Id., at 20-21.
See also Tr. 202 (“Mr. Chapman is not sued individually, but in his official capacity”) (statement of petitioners’ counsel during trial).
The trial court held that certain out-of-court statements by police officers were admissible because the officers were employed by a party to the case, namely the city of Memphis. See id., at 17-21, 45-47.
See n. 8, supra.
Chapman’s attorney argued that Newport made it clear that no award of punitive damages could be made against Chapman “since he was found liable in his official capacity.” See Brief for Defendant E. Winslow Chapman bn Issue of Damages in No. C-78-2076 (WD Tenn.), p. 1.
719 F. 2d, at 152, 153, 154; see also Order ing En Banc, Brandon v. Allen, Nos. 82-5321, 83-5346 (CA6) (“We do not believe that a judgment for damages against a police official in his official capacity is the same as a judgment against the city itself”).
Rule 43(c)(1), entitled “Public officers; death or separation from office,” provides: the
“When a public officer is a party to an appeal or other proceeding in the court of appeals in his official capacity and during its pendency dies, resigns or otherwise ceases to hold office, the action does not abate and his successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution.”
See also this Court’s Rule 40.3; Fed. Rule Civ. Proc. 25(d)(1).
See Fed. Rule Civ. Proc. 15(b); 3 J. Moore, Federal Practice ¶ 15.13[2], p. 15-157 (2d ed. 1984) (amendment to conform to evidence may be made at any time); id., at 15-168 (Rule 15(b) amendment allowed “so long as the opposing party has not been prejudiced in presenting his ease”); 6 C. Wright & A. Miller, Federal Practice and Procedure § 1491, pp. 453, 454 (1971 ed. and Supp. 1983) (Rule 15(b) is “intended to promote the objective of deciding cases on their merits rather than in terms of the relative pleading skills of counsel”); ibid. (“[Cjourts should interpret [Rule 15(b)] liberally and permit an amendment whenever doing so will effectuate the underlying purpose of the rule”).
Here, the Police Department and the city received notice; no claim is made that the Director of Police and the city were without due notice of the proceedings.
We stated that “official-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent.” 486 U. S., at 658, 690, n. 55.
See 437 U. S., at 693.
445 U. S., at 630.
We wrote:
“The governmental immunity at issue in the present case differs significantly' from the official immunities involved in our previous decisions. In those cases, various government officers had been sued in their individual capacities. . . . Here, in contrast, only the liability of the municipality itself is at issue, not that of its officers. ...” Id., at 638, n. 18 (emphasis added).
As an alternative ground for affirming the judgment of the Court of Appeals, respondents argue that the record does not establish that petitioners’ injury was caused by the kind of “policy or custom” that “may fairly be said to represent official policy” of the city of Memphis. See Monell, 436 U. S., at 694. Because the Court of Appeals did not address this argument, we do not consider it. Monsanto v. Spray-Rite Service Corp., 465 U. S. 752, 759-761, n. 6 (1984); Adickes v. S. H. Kress & Co., 398 U. S. 144, 147, n. 2 (1970); Duignan v. United States, 274 U. S. 195, 200 (1927). | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss. | What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed? | [
"stay, petition, or motion granted",
"affirmed (includes modified)",
"reversed",
"reversed and remanded",
"vacated and remanded",
"affirmed and reversed (or vacated) in part",
"affirmed and reversed (or vacated) in part and remanded",
"vacated",
"petition denied or appeal dismissed",
"certification to or from a lower court",
"no disposition"
] | [
3
] | sc_casedisposition |
RIDGWAY et al. v. RIDGWAY et al.
No. 80-1070.
Argued October 7, 1981
Decided November 10, 1981
Blackmun, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, and Marshall, JJ., joined. Powell, J., filed a dissenting opinion, in which Rehnquist, J., joined, post, p. 64. Stevens, J., filed a dissenting opinion, post, p. 71. O’Connor, J., took no part in the consideration or decision of the case.
Stephen P. Beale argued the cause for petitioners. With him on the briefs were Robert Checkoway and Peter M. Garcia.
Curtis Webber, by appointment of the Court, 451 U. S. 905, argued the cause and filed a brief for respondents.
Joshua I. Schwartz argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General McCree, Acting Assistant Attorney General Martin, Deputy Solicitor General Geller, William Ranter, and Howard S. Scher.
Justice Blackmun
delivered the opinion of the Court.
This case presents the issue whether an insured serviceman’s beneficiary designation under a life policy issued pursuant to the Servicemen’s Group Life Insurance Act of 1965 (SGLIA), Pub. L. 89-214, 79 Stat. 880, prevails over a constructive trust imposed upon the policy proceeds by a state-court decree.
I — I
The Facts
Richard H. Ridgway was a career sergeant in the United States Army. April D. Ridgway was his wife. Richard and April were the parents of three children, Hayley, Laurie, and Brady, all minors. The Ridgways’ marriage, however, ended with a divorce granted by a Maine court on December 7, 1977. The state divorce judgment, entered on April’s complaint and apparently following property settlement negotiations, ordered Richard, among other things, to pay specified amounts monthly for the support of the three children. App. 13. It also ordered him
“to keep in force the life insurance policies on his life now outstanding for the benefit of the parties’ three children. If any of such insurance policies should subsequently be terminated for any reason, defendant shall immediately replace it with other life insurance of equal amount for the benefit of the children.” Id., at 14.
Sergeant Ridgway’s life was then insured under a $20,000 policy issued by Prudential Insurance Company of America pursuant to a group contract with the Administrator of Veterans’ Affairs. At the time of the Ridgways’ divorce, April was the designated beneficiary of that policy.
On March 28, 1978, less than four months after the divorce, Ridgway married his second wife, Donna, the individual petitioner here. Six days later, the sergeant, as insured, changed the policy’s beneficiary designation to one directing that its proceeds be paid as specified “by law.” This referred to the statutory order of beneficiary precedence set forth in 38 U. S. C. § 770(a). See also 38 CFR §9.16(i) (1980). Under that statutory prescription, the policy proceeds, in the event of Ridgway’s death, would be paid to his “widow,” that is, his “lawful spouse ... at the time of his death.” 38 U. S. C. § 765(7).
Sergeant Ridgway died on January 5, 1979. Donna survived him and was his lawful wife at the time of his death. Both April and Donna filed claims for the proceeds of the policy. April based her claim, which was on behalf of the children, on the divorce decree. Donna’s claim rested on the beneficiary designation and her status as Ridgway’s widow.
April thereafter instituted the present suit in the Superior Court for Androscoggin County, Me. As legal representative of the three minor children, she sued Prudential, seeking both to enjoin the payment of the policy proceeds to Donna, and to obtain a declaratory judgment that those proceeds were payable to the children. Donna joined the litigation and was aligned as a plaintiff asserting a claim to the proceeds. April then filed a cross-claim against Donna, praying for the imposition of a constructive trust, for the benefit of the children, on any policy proceeds paid to Donna. Prudential supported Donna’s position.
The Superior Court rejected April Ridgway’s claims. It acknowledged that the terms of the judgment of divorce and the beneficiary designation were inconsistent. But it felt that the imposition of a constructive trust would interfere with the operation of the federal SGLIA, and that such a disposition would therefore run afoul of the Supremacy Clause, U. S. Const., Art. VI, cl. 2. App. 38-43.
On the ensuing appeal to the Supreme Judicial Court of Maine, the parties stipulated, inasmuch as the policy proceeds by that time had been deposited in court, that the sole issue was “[wjhether or not the presiding justice erred in ruling that, on the basis of the facts found, he could not impose a constructive trust on the proceeds of Sergeant Ridgway’s insurance.” Id., at 48. That court, sympathetic to April, vacated the Superior Court’s dismissal of her cross-claim, and remanded the case with directions to enter an order naming Donna as constructive trustee of the policy proceeds. The Court Clerk, who held the proceeds, was directed to pay them to April for and on behalf of the three children. Ridgway v. Prudential Ins. Co. of America, 419 A. 2d 1030, 1035 (1980).
We granted certiorari, 450 U. S. 979 (1981), to review the important issue presented by the case.
II
The Statutory Background
In order to make life insurance coverage available to members of the uniformed services on active duty, particularly in combat zones, Congress in 1965 enacted the SGLIA. See H. R. Rep. No. 1003, 89th Cong., 1st Sess., 7 (1965). The impetus for the legislation was the escalating level of hostilities and casualties in the then ongoing Vietnam conflict; this had prompted private commercial insurers to restrict coverage for service members. See 111 Cong. Rec. 24339 (1965) (remarks of Rep. Teague, Chairman of the House Committee on Veterans’ Affairs); see also S. Rep. No. 619, 89th Cong., 1st Sess., 3 (1965). The earlier program of federally sponsored life insurance for service members, see National Service Life Insurance Act of 1940, 54 Stat. 1008, and National Service Life Insurance Act of 1958, as amended, 38 U. S. C. § 701 et seq. (NSLIA), placed in effect shortly before the involvement of this country in World War II, had been allowed to lapse after the end of the Korean hostilities when commercial insurance generally became available to service members. Accordingly, NSLIA coverage could not be obtained by many service members on active duty in 1965. See 111 Cong. Rec. 24339 (1965) (remarks of Rep. Teague).
Although its purposes and provisions resemble those of the NSLIA in many respects, the SGLIA differs from the predecessor program in that it directs the Administrator of Veterans’ Affairs to purchase coverage from one or more qualified commercial insurers instead of offering coverage by the United States itself. See 38 U. S. C. §766. Thus, under the SGLIA, the Government is the policyholder, rather than the insurer. The Administrator has contracted with petitioner Prudential Insurance Company of America, which now serves as the primary insurer under the SGLIA and which operates, under Veterans’ Administration supervision and pursuant to 38 U. S. C. § 766(b), the Office of Servicemen’s Group Life Insurance in Newark, N. J.
The SGLIA initially provided insurance only for members serving in specified services. 79 Stat. 880. The maximum coverage allowed was then $10,000. Id., at 881. Since 1965, however, statutory changes have expanded both eligibility for coverage and the amount of insurance available. The program is operated on a presumptive enrollment basis; coverage is provided automatically and premiums are withheld from the service member’s pay, unless the insurance is expressly declined or is terminated by written election. 38 U. S. C. §§ 767(a) and 769.
In order to make the insurance available through a commercial carrier at a reasonable rate, notwithstanding the special mortality risks that service members often must assume, Congress undertook to subsidize the program. See S. Rep. No. 91-398, p. 2 (1969). A sum representing the extra premium for special mortality risks is periodically deposited by the United States into a revolving fund that is used to pay premiums on the master policy. See 38 U. S. C. §§ 769(b) and (d)(1). The fund otherwise is derived primarily from deductions withheld from service members’ pay. §§ 769(a)(1) and (d)(1). Accordingly, depending upon the conditions faced by service members at any given time, the program may be financed in part with federal funds. See S. Rep. No. 91-398, at 2.
The SGLIA establishes a specified “order of precedence,” 38 U. S. C. § 770(a), for policy beneficiaries. By this statutory provision, the proceeds of a policy are paid first to such “beneficiary or beneficiaries as the member . . . may have designated by [an appropriately filed] writing received prior to death.” If there be no such designated beneficiary, the proceeds go to the widow or widower of the service member or, if there also be no widow or widower, “to the child or children of such member . . . and descendants of deceased children by representation.” Parents, and then the representative of the insured’s estate (an obvious bow at this point in the direction of state law), are next in order. Ibid. See also 38 CFR §9.16(i) (1980).
In 1970, by Pub. L. 91-291, §5, 84 Stat. 330, Congress added an anti-attachment provision. With certain exceptions not applicable here, this provision shields payments made under § 770(a) “from taxation” and from “claims of creditors,” and states that the payments “shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.” § 770(g).
Pursuant to his general rulemaking authority over veterans’ programs, § 210(c)(1), the Administrator has promulgated regulations implementing the SGLIA. These provide that the insured “may designate any person, firm, corporation or legal entity” as a policy beneficiary, and any such “designation or change of beneficiary . . . will take effect only if it is in writing, signed by the insured and received [by the appropriate office] prior to the death of the insured.” 38 CFR §§ 9.16(a) and (d) (1980). A change of beneficiary “may be made at any time and without the knowledge or consent of the previous beneficiary.” § 9.16(e). And “[n]o change or cancellation of beneficiary ... in a last will or testament, or in any other document shall have any force or effect unless such change is received by the appropriate office.” § 9.16(f).
l — l l — l l — l
The foregoing description of the statutory plan adopted by Congress, and implemented by the Administrator’s regulations, demonstrates the pervasive and detailed characteristics of the congressional specifications. The obvious and stated concern of Congress was to provide coverage for the member, no matter how hazardous the duty, and thus protection for the member’s designated beneficiaries. The legislation itself says nothing about contrary dictates of state law or state judgments.
The Supreme Judicial Court of Maine, however, concluded that the order of beneficiary precedence set forth in 38 U. S. C. § 770(a) “does not reflect any federal interest in permitting a serviceman to evade the responsibility to provide for his minor children imposed both by virtue of his voluntary agreement and by the express provision of a valid state court decree.” 419 A. 2d, at 1033. That court further concluded that the anti-attachment provision, § 770(g), “has no application to the instant case since its purpose is to protect the proceeds of the insurance from the claims of creditors.” It pointed out that it was concerned “not with the claim of a creditor but with the claims of minor children who assert an equitable interest in the proceeds arising from their deceased father’s voluntary agreement and a valid judicial decree.” Thus, it said, the accomplishment of the objectives of the federal statute “is neither obstructed nor interfered with by imposing a constructive trust on the insurance proceeds.” Ibid.
We forthwith acknowledge, of course, that this Court’s “only power over state judgments is to correct them to the extent that they incorrectly adjudge federal rights.” Herb v. Pitcairn, 324 U. S. 117, 125-126 (1945). It follows that the decision of the Supreme Judicial Court of Maine is subject to disturbance here only to the extent that it fails to honor federal rights and duties.
Notwithstanding the limited application of federal law in the field of domestic relations generally, see McCarty v. McCarty, 453 U. S. 210, 220 (1981); Hisquierdo v. Hisquierdo, 439 U. S. 572, 581 (1979); In re Burrus, 136 U. S. 586, 593-594 (1890), this Court, even in that area, has not hesitated to protect, under the Supremacy Clause, rights and expectancies established by federal law against the operation of state law, or to prevent the frustration and erosion of the congressional policy embodied in the federal rights. See McCarty v. McCarty, supra; Hisquierdo v. Hisquierdo, supra; Free v. Bland, 369 U. S. 663 (1962); Wissner v. Wissner, 338 U. S. 655 (1950); McCune v. Essig, 199 U. S. 382 (1905). Cf. Yiatchos v. Yiatchos, 376 U. S. 306, 309 (1964). While “[sjtate family and family-property law must do ‘major damage’ to ‘clear and substantial’ federal interests before the Supremacy Clause will demand that state law be overridden,” Hisquierdo, 439 U. S., at 581, with references to United States v. Yazell, 382 U. S. 341, 352 (1966), “[t]he relative importance to the State of its own law is not material when there is a conflict with a valid federal law, for the Framers of our Constitution provided that the federal law must prevail.” Free v. Bland, 369 U. S., at 666. See also Gibbons v. Ogden, 9 Wheat. 1, 210-211 (1824). And, specifically, a state divorce decree, like other law governing the economic aspects of domestic relations, must give way to clearly conflicting federal enactments. McCarty v. McCarty, supra; Hisquierdo v. Hisquierdo, supra. That principle is but the necessary consequence of the Supremacy Clause of our National Constitution.
In Wissner v. Wissner, supra, an insured under an NSLIA policy named his parents as beneficiaries. Upon his death, the serviceman’s widow claimed community property rights in the policy proceeds. The NSLIA specifically provided that the insured had the right to designate and to change the beneficiary. It also had an anti-attachment clause. Despite these provisions, a California court held that the policy proceeds were community property, and it ordered half the proceeds paid to the widow. This Court reversed, noting that “Congress has spoken with force and clarity in directing that the proceeds belong to the named beneficiary and no other.” 338 U. S., at 658. Further, “the judgment below nullifies the soldier’s choice and frustrates the deliberate purpose of Congress. It cannot stand.” Id., at 659. And the diversion, as directed by the state court, of future payments to be received by the beneficiary would be a “seizure” prohibited by the anti-attachment provision. Ibid. These are strong words and a positive ruling.
The same approach has been followed in later cases: Free v. Bland, supra, concerning the right of survivorship in United States Savings Bonds issued in co-ownership form; Hisquierdo v. Hisquierdo, supra, involving the Railroad Retirement Act of 1974, 45 U. S. C. §231 et seq.; and McCarty v. McCarty, supra, concerning military retired pay.
The present case, we feel, is controlled by Wissner. Under §§ 717(a) and 770(a) of the SGLIA, just as under § 602(g) of the predecessor NSLIA, 54 Stat. 1010, at issue in Wissner, the insured service member possesses the right freely to designate the beneficiary and to alter that choice at any time by communicating the decision in writing to the proper office. 338 U. S., at 658. Here, as there, it appropriately may be said: “Congress has spoken with force and clarity in directing that the proceeds belong to the named beneficiary and no other.”
There can be no doubt that Congress was aware of the breadth of the freedom of choice accorded the service member under the SGLIA. The pertinent House Report stated flatly: “The serviceman may designate any person as a beneficiary,” H. R. Rep. No. 1003, 89th Cong., 1st Sess., 7 (1965), and the point was emphasized on the floor of the House by Representative Everett: “This bill permits you to leave your insurance to your church, to your college, to your best friend. The beneficiary provision is wide open under this option.” Ill Cong. Rec. 24341 (1965). Thus, the Maine court’s analysis is inconsistent both with the language of the Act and with its legislative history.
Neither respondents nor the Supreme Judicial Court of Maine has questioned the authority of Congress to control payment of the proceeds of SGLIA policies. Indeed, this Court observed in Wissner:
“Possession of government insurance, payable to the relative of his choice, might well directly enhance the morale of the serviceman. The exemption provision is his guarantee of the complete and full performance of the contract to the exclusion of conflicting claims. The end is a legitimate one within the congressional powers over national defense, and the means are adapted to the chosen end.” 388 U. S., at 660-661.
The federal interest is especially strong because a substantial share of the proceeds of an SGLIA policy may be attributable to general tax revenues.
There are, to be sure, some small differences between the SGLIA and the predecessor NSLIA. In the provision granting the service member the right to designate the beneficiary, the words “at all times” appear in the earlier Act, 38 U. S. C. § 717(a), but not in the later one, 38 U. S. C. § 770(a), and the right to change the beneficiary “without the consent” of the one presently named is spelled out in § 717(a) but not in § 770(a). But the later Act’s unqualified directive to pay the proceeds to the properly designated beneficiary clearly suggests that no different result was intended by Congress. And any possible ambiguity was eliminated by the Administrator’s regulations that provide that a “change of beneficiary may be made at any time and without the knowledge or consent of the previous beneficiary.” 38 CFR §9.16(e) (1980). There has been no suggestion that these regulations are unreasonable, unauthorized, or inconsistent with the SGLIA, and such a suggestion would not be supportable. See Whirlpool Corp. v. Marshall, 445 U. S. 1, 11-13 (1980); Udall v. Tallman, 380 U. S. 1, 16 (1965).
Yiatchos v. Yiatchos, 376 U. S. 306 (1964), relied on by the respondents, but not cited by the Maine court, does not stand to the contrary. In Yiatchos, the Court considered a question left open in Free v. Bland, 369 U. S., at 670-671, namely, the “scope and application” of the doctrine of fraud as an exception “to the regulatory imperative.” 376 U. S., at 307. There, the decedent Yiatchos, a resident of a community property State, purchased United States Savings Bonds with community funds and had them issued in the name of the decedent but payable on his death to his brother. The state court held that this purchase “was in fraud of the rights” of the surviving wife, as “a void endeavor to divest the wife of any interest in her own property.” In re Yiatchos’ Estate, 60 Wash. 2d 179, 181-182, 373 P. 2d 125, 127 (1962). This Court agreed that the bonds could “not be used as a device to deprive the widow of property rights which she enjoys under Washington law.” 376 U. S., at 309. But because the named beneficiary was entitled to the bonds “unless his deceased brother committed fraud or breach of trust tantamount to fraud” by wrongfully disposing of the wife’s property, ibid., the case was remanded to give the widow an opportunity to demonstrate that she had not consented to or ratified the purchase and registration of the bonds. The remand was also for the determination, under state law, whether the widow had an interest in the community’s specific assets, or only a half interest in the estate generally.
Here, in contrast, Sergeant Ridgway’s conduct did not amount to breach of trust or conversion of another’s property. A careful reading of the complaint and the amended complaint, App. 11 and 24, in this case reveals no allegation of fraud or breach of trust. And we are not inclined to provide or infer such an allegation when a case comes to us, as this one does, with the record indicating nothing more than a breach of contract on the part of the deceased service member. Indeed, to say that this type of conduct constitutes constructive fraud would be to open the policy proceeds to a suit by any commercial creditor, a result that would render § 770(g) nugatory. As the trial court intimated, respondents may have a claim against the insured’s estate for that breach; the record does not disclose whether a claim of that kind would be collectible.
There is, finally, a fundamental distinction between respondents’ asserted interests in the SGLIA policy proceeds and the community property concepts at issue in Yiatchos. Federal law and federal regulations bestow upon the service member an absolute right to designate the policy beneficiary. That right is personal to the member alone. It is not a shared asset subject to the interests of another, as is community property. Yiatchos had imposed his will upon property in which his wife had a distinct vested community interest. In contrast, only Sergeant Ridgway had the power to create and change a beneficiary interest in his SGLIA insurance. By exercising that power, he hardly can be said to have committed fraud.
We conclude, therefore, that the controlling provisions of the SGLIA prevail over and displace inconsistent state law.
IV
The imposition of a constructive trust upon the insurance proceeds is also inconsistent with the anti-attachment provision, 38 U. S. C. § 770(g), of the SGLIA. In Wissner, 338 U. S., at 659, this Court invoked the identical anti-attachment provision of the NSLIA as an independent ground for the result reached in that case. The Court rejected, as it did so, id., at 663-664, the dissent’s argument that “Congress was interested in protecting [the fund], not the beneficiary,” which parallels respondents’ argument here in favor of creating a constructive trust after the proceeds have been received by the beneficiary. Any diversion of the proceeds of Sergeant Ridgway’s SGLIA policy by means of a court-imposed constructive trust would therefore operate as a forbidden “seizure” of those proceeds.
The Maine court attempted to limit the reach of § 770(g), as has been noted above, on the theory that the purpose of the anti-attachment provision was to protect the policy proceeds from the claims of creditors, and that the provision has no application to minor children asserting equitable interests. 419 A. 2d, at 1033. This contention, however, fails to give effect to the unqualified sweep of the federal statute. Section 770(g), in addition to exempting the policy proceeds “from the claims of creditors,” prohibits, in the broadest of terms, any “attachment, levy, or seizure by or under any legal or equitable process whatever,” whether accomplished “either before or after receipt by the beneficiary.” The reading adopted by the Maine court renders the bulk of the quoted statutory text extraneous. What was said of the statute under consideration in Hisquierdo, supra, is applicable without qualification here:
“Like anti-attachment provisions generally [citing Wissuer], it ensures that the benefits actually reach the beneficiary. It pre-empts all state law that stands in its way. It protects the benefits from legal process ‘[notwithstanding any other law... of any State’. ... It prevents the vagaries of state law from disrupting the national scheme, and guarantees a national uniformity that enhances the effectiveness of congressional policy.” 439 U. S., at 584.
We find nothing to indicate that Congress intended to exempt claims based on property settlement agreements from the strong language of the anti-attachment provision.
V
We recognize that this unpalatable case suggests certain “equities” in favor of the respondent minor children and their mother. Sergeant Ridgway did have specific obligations to the children that were imposed by the 1977 divorce judgment of the Maine court. Those obligations not only concerned life insurance “now outstanding” for the benefit of the children, but also extended to their support, to clothing, to “medical, dental, and optical expense,” and to certain loans and other indebtedness. App. 13-15. Ridgway, instead, chose to name his then new wife as beneficiary of his SGLIA policy.
A result of this kind, of course, may be avoided if Congress chooses to avoid it. It is within Congress’ power. Thus far, however, Congress has insulated the proceeds of SGLIA insurance from attack or seizure by any claimant other than the beneficiary designated by the insured or the one first in line under the statutory order of precedence. That is Congress’ choice. It remains effective until legislation providing otherwise is enacted.
The judgment of the Supreme Judicial Court of Maine is
Reversed.
Justice O’Connor took no part in the consideration or decision of this case.
The Superior Court observed that the “agreement embodied in the divorce decree is valid,” and it opined that the decree “would appear to give [April] a cause of action, on behalf of her children, against the estate of her former husband,” App. 42, citing Stratton v. Servicemen’s Group Life Ins. Co., 422 F. Supp. 1119 (SD Iowa 1976). See id,., at 1122.
The very title of the Act recited that it was “to provide special indemnity insurance for members of the Armed Forces serving in combat zones, and for other purposes.” 79 Stat. 880.
A similar and still earlier program of United States Government, or War Risk, Insurance, was in effect for the World War I period. War Risk Insurance Act of Oct. 6, 1917, § 400, 40 Stat. 409. See United States v. Williams, 302 U. S. 46 (1937).
See Pub. L. 91-291, §§ 1 and 2, 84 Stat. 326-327; Pub. L. 92-315, 86 Stat. 227; Pub. L. 93-289, 88 Stat. 165, 166, 169.
The Solicitor General states that 99.6% of all active duty personnel and 97.9% of the Ready Reservists are enrolled in the program. Brief for United States as Amicus Curiae 5. See also S. Rep. No. 91-398, p. 2 (1969).
In its consideration of the purpose of the SGLIA, the Supreme Judicial Court of Maine, Ridgway v. Prudential Ins. Co. of America, 419 A. 2d 1030, 1032-1033 (1980), relied upon a statement made in 1965 by the then Administrator of Veterans’ Affairs. The statement is appended to H. R. Rep. No. 1003, 89th Cong., 1st Sess., 15-17 (1965). In our view, however, the remarks cannot be used to read the choice-of-beneficiary provision out of the Act. In context, it is plain that the statement was not intended to serve as an exhaustive list of congressional purposes; it merely identified some of the problems in the existing law that were addressed by the pending legislation.
Justice Stevens suggests that the “interest in permitting a serviceman to designate the beneficiary of his insurance policy [expressed in § 770(a)] is not compromised” by the Maine court’s decision. Post, at 80. While that may or may not be true as a matter of policy, the statute expressly commands that SGLIA proceeds go to the beneficiary or beneficiaries designated by the service member. And the implementing regulations expressly command that a “change of beneficiary . . . will take effect only if it is in writing, signed by the insured and received [by the appropriate office] prior to the death of the insured,” 38 CFR § 9.16(d) (1980); “[n]o change or cancellation of beneficiary ... in a last will or testament, or in any other document shall have any force or effect unless such change is received by the appropriate office.” 5 9.16(f). Yet Justice Stevens points to nothing in the language or history of the statute and regulations which suggests that Congress and the Administrator did not mean what they said.
Justice Powell looks to Yiatchos v. Yiatchos, 376 U. S. 306 (1964), and Free v. Bland, 369 U. S. 663 (1962), in concluding that “the principle of not allowing federal pre-emption to shield fraud or breach of trust” is applicable here. Post, at 64, n. 1. Those cases, however, were concerned with a particular type of fraudulent behavior: attempts “to divest the wife of any interest in her own property,” In re Yiatchos’ Estate, 60 Wash. 2d 179, 181-182, 373 P. 2d 125, 127 (1962) (emphasis added); see Yiatchos, 376 U. S., at 309, which grew out of “fraud or a breach of trust tantamount thereto on the part of a husband while acting in his capacity as manager of the general community property.” Free v. Bland, 369 U. S., at 670. In this case, by way of contrast, Sergeant Ridgway misdirected property over which he had exclusive control. In doing so, of course, he deprived the respondents of benefits to which they were entitled under state law. But that is precisely what transpired in Wissner v. Wissner, 338 U. S. 655 (1950). Indeed, Free endorsed the Wissner holding, noting that “[t]here the Congress made clear its intent to allow a serviceman to select the beneficiary of his own government life insurance policy regardless of state law, even when it was likely that the husband intended to deprive his wife of a right to share in his life insurance proceeds, a right guaranteed by state law.” 369 U. S., at 670. We are unable to distinguish the cases.
We need not presently address the legal aspects of extreme fact situations or of instances where the beneficiary has obtained the proceeds through fraudulent or illegal means as, for example, where the named beneficiary murders the insured service member. See Shoemaker v. Shoemaker, 263 F. 2d 931 (CA6 1959). Our ruling on a situation of that kind is reserved for another day.
Burgess v. Murray, 194 F. 2d 131 (CA5 1952), and Voelkel v. Tohulka, 236 Ind. 588, 141 N. E. 2d 344, cert. denied, 355 U. S. 891 (1957), relied on by the respondents but not cited by the Maine court, are not helpful. To be sure, in each of those NSLIA cases, a constructive trust was imposed on the policy proceeds. This, however, was done to further the service member’s dispositive intent. Here Sergeant Ridgway apparently intended to favor Donna as his surviving spouse. In any event, the regulations implementing the SGLIA’s beneficiary designation requirements are stricter than the corresponding regulations promulgated under the NSLIA. Compare 38 CFR §§ 8.46 and 8.47 (1980) (NSLIA) with 38 CFR §§ 9.16(d) and 9.16(f) (1980) (SGLIA).
Justice Powell suggests, without supporting citation, that the anti-attachment provision is inapplicable in this case because of “the special nature of the parental legal duty,” noting that “[f]amilial obligations are not merely commercial.” Post, at 70, 68. Again, Wissner answers this objection. There, the claimant was the decedent’s widow, not a commercial creditor. Her action was grounded in the law of community property; the Court explicitly conceded that “[tjhere are . . . support aspects to the community property principle, and in some cases they may be of considerable importance.” 338 U. S., at 660, n. 4. The Court nevertheless struck down a state-court judgment in the widow’s favor as being “in flat conflict” with the NSLIA’s anti-attachment provision. Id., at 659. We see no significant difference between the community property interest at issue in Wissner and the property settlement giving rise to the instant action.
Justice Stevens, meanwhile, argues that “it is most unlikely that Congress intended § 770(g) to operate as a bar to claims advanced by an insured’s dependents for support,” post, at 74; he reasons that “[pjrior to the decision of this Court in Wissner, a number of courts had held that statutory ‘spendthrift’ provisions did not bar a claim for alimony or support,” ibid., and “there is nothing . . . that evidences an intent by Congress to repudiate this distinction between commercial and family obligations.” Post, at 78. And he suggests that “[t]he federal interest incorporated within exemption statutes is an interest in preventing federally supported benefits from satisfying claims of commercial creditors.” Post, at 78-79.
While these are attractive arguments, neither of them survives close scrutiny. The more recent decisions, many involving facts almost identical to those before us, are virtually unanimous in concluding that the NSLIA anti-attachment provision overrides the contrary dictates of state family law. E. g., Hoffman v. United States, 391 F. 2d 195 (CA9 1968) (anti-attachment provision overrides property settlement incorporated in divorce decree); Kimball v. United States, 304 F. 2d 864 (CA6 1962) (same); Eldin v. United States, 157 F. Supp. 34 (SD Ill. 1957) (same); Williams v. Williams, 255 N. C. 315, 121 S. E. 2d 536 (1961) (same); Fleming v. Smith, 69 Wash. 2d 277, 284, 418 P. 2d 147, 151 (1966) (same). Cf. United States v. Donall, 466 F. 2d 1246 (CA6 1972); Taylor v. United States, 459 F. 2d 1007 (CA9), cert. denied, 409 U. S. 967 (1972); Suydam v. United States, 131 U. S. App. D. C. 352, 404 F. 2d 1329 (1968); Fitzstephens v. United States, 189 F. Supp. 919 (Wyo. 1960); Heifner v. Soderstrom, 134 F. Supp. 174 (ND Iowa 1955). And it was against the background of these decisions that, in 1970, Congress enacted the SGLIA’s anti-attachment provision — using language identical to that found in the NSLIA. Presumably, then, Congress did not intend to write into the statute the distinction made by Justice Stevens. And our view, we believe, most closely accords with the purpose of anti-attachment provisions like the one before us: they “ensur[e] that the benefits actually reach the beneficiary.” Hisquierdo v. Hisquierdo, 439 U. S. 572, 584 (1979).
Respondents, in their brief and in oral argument, speak of the “unjust enrichment” of Donna Ridgway. The suggestion is not persuasive. The record discloses no wrong on Donna’s part. She was, after all, the insured’s lawful wife at the time of his death, and it is possible that depriving her of the proceeds would be as inequitable as any other result. We intimate no view as to whether wrongdoing by the named beneficiary would change the outcome. See n. 9, supra. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. | Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case? | [
"Yes",
"No"
] | [
0
] | sc_partywinning |
ILLINOIS v. WARDLOW
No. 98-1036.
Argued November 2, 1999
Decided January 12, 2000
Rehnquist, C. J., delivered the opinion of the Court, in which O’Con-nor, ScALtA, Kennedy, and Thomas, JJ., joined. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Soxjter, Ginsburg, and Breyer, JJ., joined, post, p. 126.
Richard A. Devine argued the cause for petitioner. With him on the briefs were James E. Ryan, Attorney General of Illinois, Joel D. Bertocchi, Solicitor General, Renee G. Goldfarb, Theodore Fotios Burtzos, and Veronica Ximena Calderon.
Malcolm L. Stewart argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Waxman, Assistant Attorney General Robinson, Deputy Solicitor General Dreeben, and Deborah Watson.
James B. Koch argued the cause for respondent. With him on the brief were Lynn N. Weisberg and Thomas G. Gardiner
Briefs of amici curiae urging reversal were filed for the State of Ohio et al. by Betty D. Montgomery, Attorney General of Ohio, Edward B. Foley, State Solicitor, Robert C. Maier and Alejandro Almaguer, Assistant Solicitors, and Thomas R. Keller, Acting Attorney General of Hawaii, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Ken Salazar of Colorado, M. Jane Brady of Delaware, Alan G. Lance of Idaho, Carla J Stovall of Kansas, Richard P. Ieyoub of Louisiana, Mike Hatch of Minnesota, Michael C. Moore of Mississippi, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Michael P. Easley of North Carolina, W. A Drew Edmondson of Oklahoma, Charles M. Condon of South Carolina, Mark L. Barnett of South Dakota, and Mark L. Earley of Virginia; for the Wayne County Prosecuting Attorney by John D. O'Hair, pro se, Timothy A Baughman, and Jeffrey Caminsky; for Americans for Effective Law Enforcement, Ine., et al. by Wayne W. Schmidt, James P. Manak, and Richard Weintraub; for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson; and for the National Association of Police Organizations et al. by Stephen R. McSpadden.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Tracey Maclin, Steven R. Shapiro, Harvey Grossman, and Barbara E. Bergman; for the NAACP Legal Defense & Educational Fund, Inc., by Elaine R. Jones, Theodore M. Shaw, George H. Kendall, and Laura E. Hankins; and for the Rutherford Institute by John W. Whitehead and Steven H. Aden.
CHIEF Justice Rehnquist
delivered the opinion of the Court.
Respondent Wardlow fled upon seeing police officers patrolling an area known for heavy narcotics trafficking. Two of the officers caught up with him, stopped him, and conducted a protective patdown search for weapons. Discovering a .38-caliber handgun, the officers arrested Wardlow. We hold that the officers’ stop did not violate the Fourth Amendment to the United States Constitution.
On September 9, 1995, Officers Nolan and Harvey were working as uniformed officers in the special operations section of the Chicago Police Department. The officers were driving the last car of a four-car caravan converging on an area known for heavy narcotics trafficking in order to investigate drug transactions. The officers were traveling together because they expected to find a crowd of people in the area, including lookouts and customers.
As the caravan passed 4035 West Van Burén, Officer Nolan observed respondent Wardlow standing next to the building holding an opaque bag. Respondent looked in the direction of the officers and fled. Nolan and Harvey turned their ear southbound, watched him as he ran through the gangway and an alley, and eventually cornered him on the street. Nolan then exited his ear and stopped respondent. He immediately conducted a protective patdown search for weapons because in his experience it was common for there to be weapons in the near vicinity of narcotics transactions. During the frisk, Officer Nolan squeezed the bag respondent was carrying and felt a heavy, hard object similar to the shape of a gun. The officer then opened the bag and discovered a .38-caliber handgun with five live rounds of ammunition. The officers arrested Wardlow.
The Illinois trial court denied respondent’s motion to suppress, finding the gun was recovered during a lawful stop and frisk. App. 14. Following a stipulated bench trial, Wardlow was convicted of unlawful use of a weapon by a felon. The Illinois Appellate Court reversed Wardlow’s conviction, concluding that the gun should have been suppressed because Officer Nolan did not have reasonable suspicion sufficient to justify an investigative stop pursuant to Terry v. Ohio, 392 U. S. 1 (1968). 287 Ill. App. 3d 367, 678 N. E. 2d 65 (1997).
The Illinois Supreme Court agreed. 183 Ill. 2d 306, 701 N. E. 2d 484 (1998). While rejecting the Appellate Court’s conclusion that Wardlow was not in a high crime area, the Illinois Supreme Court determined that sudden flight in such an area does not create a reasonable suspicion justifying a Terry stop. 183 Ill. 2d, at 310, 701 N. E. 2d, at 486. Relying on Florida v. Royer, 460 U. S. 491 (1983), the court explained that although police have the right to approach individuals and ask questions, the individual has no obligation to respond. The person may decline to answer and simply go on his or her way, and the refusal to respond, alone, does not provide a legitimate basis for an investigative stop. 183 Ill. 2d, at 311-312, 701 N. E. 2d, at 486-487. The court then determined that flight may simply be an exercise of this right to “go on one’s way,” and, thus, could not constitute reasonable suspicion justifying a Terry stop. 183 Ill. 2d, at 312, 701 N. E. 2d, at 487.
The Illinois Supreme Court also rejected the argument that flight combined with the fact that it occurred in a high crime area supported a finding of reasonable suspicion because the “high crime area” factor was not sufficient standing alone to justify a Terry stop. Finding no independently suspicious circumstances to support an investigatory detention, the court held that the stop and subsequent arrest violated the Fourth Amendment. We granted certiorari, 526 U. S. 1097 (1999), and now reverse.
This case, involving a brief encounter between a citizen and a police officer on a public street, is governed by the analysis we first applied in Terry. In Terry, we held that an officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot. 392 U. S., at 30. While “reasonable suspicion” is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop. United States v. Sokolow, 490 U. S. 1, 7 (1989). The officer must be able to articulate more than an “inchoate and unparticularized suspicion or ‘hunch’” of criminal activity. Terry, supra, at 27.
Nolan and Harvey were among eight officers in a four-car caravan that was converging on an area known for heavy narcotics trafficking, and the officers anticipated encountering a large number of people in the area, including drug customers and individuals serving as lookouts. App. 8. It was in this context that Officer Nolan decided to investigate Wardlow after observing him flee. An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime. Brown v. Texas, 443 U. S. 47 (1979). But officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation. Accordingly, we have previously noted the fact that the stop occurred in a “high crime area” among the relevant contextual considerations in a Terry analysis. Adams v. Williams, 407 U. S. 143, 144, 147-148 (1972).
In this case, moreover, it was not merely respondent’s presence in an area of heavy narcotics trafficking that aroused the officers’ suspicion, but his unprovoked flight upon noticing the police. Our cases have also recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. United States v. Brignoni-Ponce, 422 U. S. 873, 885 (1975); Florida v. Rodriguez, 469 U. S. 1, 6 (1984) (per curiam); United States v. Sokolow, supra, at 8-9. Headlong flight—wherever it occurs—is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such. In reviewing the propriety of an officer’s conduct, courts do not have available empirical studies dealing with inferences drawn from suspicious behavior, and we cannot reasonably demand scientific certainty from judges or law enforcement officers where none exists. Thus, the determination of reasonable suspicion must be based on eommonsense judgments and inferences about human behavior. See United States v. Cortez, 449 U. S. 411, 418 (1981). We conclude Officer Nolan was justified in suspecting that Wardlow was involved in criminal activity, and, therefore, in investigating further.
Such a holding is entirely consistent with our decision in Florida v. Royer, 460 U. S. 491 (1983), where we held that when an officer, without reasonable suspicion or probable cause, approaches an individual, the individual has a right to ignore the police and go about his business. Id., at 498. And any “refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.” Florida v. Bostick, 501 U. S. 429, 437 (1991). But unprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature, is not “going about one’s business”; in fact, it is just the opposite. Allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual’s right to go about his business or to stay put and remain silent in the face of police questioning.
Respondent and amici also argue that there are innocent reasons for flight from police and that, therefore, flight is not necessarily indicative of ongoing criminal activity. This fact is undoubtedly true, but does not establish a violation of the Fourth Amendment. Even in Terry, the conduct justifying the stop was ambiguous and susceptible of an innocent explanation. The officer observed two individuals pacing back and forth in front of a store, peering into the window and periodically conferring. 392 U. S., at 5-6. All of this conduct was by itself lawful, but it also suggested that the individuals were casing the store for a planned robbery. Terry recognized that the officers could detain the individuals to resolve the ambiguity. Id., at 30.
In allowing such detentions, Terry accepts the risk that officers may stop innocent people. Indeed, the Fourth Amendment accepts that risk in connection with more drastic police action; persons arrested and detained on probable cause to believe they have committed a crime may turn out to be innocent. The Terry stop is a far more minimal intrusion, simply allowing the officer to briefly investigate further. If the officer does not learn facts rising to the level of probable cause, the individual must be allowed to go on his way. But in this case the officers found respondent in possession of a handgun, and arrested him for violation of an Illinois firearms statute. No question of the propriety of the arrest itself is before us.
The judgment of the Supreme Court of Illinois is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
The state courts have differed on whether unprovoked flight is sufficient grounds to constitute reasonable suspicion. See, e. g., State v. Anderson, 155 Wis. 2d 77, 454 N. W. 2d 763 (1990) (flight alone is sufficient); Platt v. State, 589 N. E. 2d 222 (Ind. 1992) (same); Harris v. State, 205 Ga. App. 813, 423 S. E. 2d 723 (1992) (flight in high crime area sufficient); State v. Hicks, 241 Neb. 357, 488 N. W. 2d 359 (1992) (flight is not enough); State v. Tucker, 136 N. J. 158, 642 A. 2d 401 (1994) (same); People v. Shabaz, 424 Mich. 42, 378 N. W. 2d 451 (1985) (same); People v. Wilson, 784 P. 2d 325 (Colo. 1989) (same).
We granted certiorari solely on the question whether the initial stop was supported by reasonable suspicion. Therefore, we express no opinion as to the lawfulness of the frisk independently of the stop. | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. | What is the issue area of the decision? | [
"Criminal Procedure",
"Civil Rights",
"First Amendment",
"Due Process",
"Privacy",
"Attorneys",
"Unions",
"Economic Activity",
"Judicial Power",
"Federalism",
"Interstate Relations",
"Federal Taxation",
"Miscellaneous",
"Private Action"
] | [
0
] | sc_issuearea |
RENO, ATTORNEY GENERAL v. BOSSIER PARISH SCHOOL BOARD et al.
No. 95-1455.
Argued December 9, 1996
Decided May 12, 1997
Assistant Attorney General Patrick argued the cause for appellant in No. 95-1455. With him on the briefs were Acting Solicitor General Dellinger, Deputy Solicitor General Bender, Cornelia T. L. Pillará, David K. Flynn, and Steven H. Rosenbaum. John W. Borkowski argued the cause for appellants in No. 95-1508. With him on the briefs were Walter A. Smith, Jr., Patricia A. Brannan, Barbara R. Arn-wine, Thomas J. Henderson, Brenda Wright, and Samuel L. Walters.
Michael A. Carvin argued the cause for appellee Bossier Parish School Board in both cases. With him on the brief were David H. Thompson, James J. Thornton, and Michael P. McDonald.
Together with No. 95-1508, Price et al. v. Bossier Parish School Board et al., also.on appeal from the same eourt.
Laughlin McDonald, Neil Bradley, Steven R. Shapiro, Elaine R. Jones, Norman J. Chachkin, and Jacqueline Berrien filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal.
Sharon L. Broivne and Deborah J. La Fetra filed a brief for the Pacific Legal Foundation as amicus curiae urging affirmance.
Justice O’Connor
delivered the opinion of the Court.
Today we clarify the relationship between §2 and §5 of the Voting Rights Act of 1965, 79 Stat. 437, 439, as amended, 42 U. S. C. §§ 1973, 1973c. Specifically, we decide two questions: (i) whether preclearance must be denied under §5 whenever a covered jurisdiction’s new voting “standard, practice, or procedure” violates § 2; and (ii) whether evidence that a new “standard, practice, or procedure” has a dilutive impact is always irrelevant to the inquiry whether the covered jurisdiction acted with “the purpose ... of denying or abridging the right to vote on account of race or color” under § 5. We answer both in the negative.
I — I
Appellee Bossier Parish School Board (Board) is a jurisdiction subject to the preclearance requirements of §5 of the Voting Rights Act of 1965, 42 U. S. C. § 1973c, and must therefore obtain the approval of either the United States Attorney General or the United States District Court for the District of Columbia before implementing any changes to a voting “qualification, prerequisite, standard, practice, or procedure.” The Board has 12 members who are elected from single-member districts by majority vote to serve 4-year terms. When the 1990 census revealed wide population disparities among its districts, see App. to Juris. Statement 93a (Stipulations of Fact and Law ¶ 82), the Board decided to redraw the districts to equalize the population distribution.
During this process, the Board considered two redistricting plans. It considered, and initially rejected, the redistricting plan that had been recently adopted by the Bossier Parish Police Jury, the parish’s primary governing body (the Jury plan), to govern its own elections. Just months before, the Attorney General had precleared the Jury plan, which also contained 12 districts. Id., at 88a (Stipulations ¶ 68). None of the 12 districts in the Board’s existing plan or in the Jury plan contained a majority of black residents. Id., at 93a (Stipulations ¶82) (under 1990 population statistics in the Board’s existing districts, the three districts with highest black concentrations contain' 46.63%, 43.79%, and 30.13% black residents, respectively); id., at 85a (Stipulations ¶ 59) (population statistics for the Jury plan, with none of the plan’s 12 districts containing a black majority). Because the Board’s adoption of the Jury plan would have maintained the status quo regarding the number of black-majority districts, the parties stipulated that the Jury plan was not “retrogressive.” Id., at 141a (Stipulations ¶ 252) (“The . . . plan is not retrogressive to minority voting strength compared to the existing benchmark plan . . .”). Appellant George Price, president of the local chapter of the National Association for the Advancement of Colored People (NAACP), presented the Board with a second option — a plan that created two districts each containing not only a majority of black residents, but a majority of voting-age black residents. Id., at 98a (Stipulations ¶ 98). Over vocal opposition from local residents, black and white alike, the Board voted to adopt the Jury plan as its own, reasoning that the Jury plan would almost certainly be precleared again and that the NAACP plan would require the Board to split 46 electoral precincts.
But the Board’s hopes for rapid preclearance were dashed when the Attorney General interposed a formal objection to the Board’s plan on the basis of “new information” not available when the Justice Department had precleared the plan for the Police Jury — namely, the NAACP’s plan, which demonstrated that “black residents are sufficiently numerous and geographically compact so as to constitute a majority in two single-member districts.” Id., at 155a-156a (Attorney General’s August 30, 1993, objection letter). The objection letter asserted that the Board’s plan violated § 2 of the Act, 42 U. S. C. § 1973, because it “unnecessarily limit[ed] the opportunity for minority voters to elect their candidates of choice,” App. to Juris. Statement, at 156a, as compared to the new alternative. Relying on 28 CFR § 51.55(b)(2) (1996), which provides that the Attorney General shall withhold pre-clearance where “necessary to prevent a clear violation of amended Section 2 [42 U. S. C. § 1973],” the Attorney General concluded that the Board’s redistricting plan warranted a denial of preclearance under § 5. App. to Juris. Statement 157a. The Attorney General declined to reconsider the decision. Ibid.
The Board then filed this action seeking preclearance under § 5 in the District Court for the District of Columbia. Appellant Price and others intervened as defendants. The three-judge panel granted the Board’s request for preclearance, over the dissent of one judge. 907 F. Supp. 434, 437 (1995). The District Court squarely rejected the appellants’ contention that a voting change’s alleged failure to satisfy § 2 constituted an independent reason to deny preclearance under § 5: “We hold, as has every court that has considered the question, that a political subdivision that does not violate either the ‘effect’ or the ‘purpose’ prong of section 5 cannot be denied preclearance because of an alleged section 2 violation.” Id., at 440-441. Given this holding, the District Court quite properly expressed no opinion on whether the Jury plan in fact violated §2, and its refusal to reach out and decide the issue in dicta does not require us, as Justice Stevens insists, to “assume that the record discloses a ‘clear violation’ of § 2.” See post, at 499 (opinion dissenting in part and concurring in part). That issue has yet to be decided by any court. The District Court did, however, reject appellants’ related argument that a court “must still consider evidence of a section 2 violation as evidence of discriminatory purpose under section 5.” Id., at 445. We noted probable jurisdiction on June 3, 1996. 517 U. S. 1232.
II
The Voting Rights Act of 1965 (Act), 42 U. S. C. § 1973 et seq., was enacted by Congress in 1964 to “attac[k] the blight of voting discrimination” across the Nation. S. Rep. No. 97-417, 2d Sess., p. 4 (1982); South Carolina v. Katzenbach, 383 U. S. 301, 308 (1966). Two of the weapons in the Federal Government’s formidable arsenal are §5 and §2 of the Act. Although we have consistently understood these sections to combat different evils and, accordingly, to impose very different duties upon the States, see Holder v. Hall, 612 U. S. 874, 883 (1994) (plurality opinion) (noting how the two sections “differ in structure, purpose, and application”), appellants nevertheless ask us to hold that a violation of § 2 is an independent reason to deny preclearance under § 5. Unlike Justice Stevens, post, at 502-503, and n. 5 (opinion dissenting in part and concurring in part), we entertain little doubt that the Department of Justice or other litigants would “routinely” attempt to avail themselves of this new reason for denying preelearance, so that recognizing § 2 violations as a basis for denying § 5 preclearance would inevitably make compliance with §5 contingent upon compliance with §2. Doing so would, for all intents and purposes, replace the standards for § 5 with those for § 2. Because this would contradict our longstanding interpretation of these two sections of the Act, we reject appellants’ position.
Section 5, 42 U. S. C. § 1973c, was enacted as
“a response to a common practice in some jurisdictions of staying one step ahead of the federal courts by passing new discriminatory voting laws as soon as the old ones had been struck down. . . . Congress therefore decided, as the Supreme Court held it could, ‘to shift the advantage of time and inertia from the perpetrators of the evil to its victim,’ by ‘freezing election procedures in the covered areas unless the changes can be shown to be nondiscriminatory.’” Beer v. United States, 425 U. S. 130, 140 (1976) (quoting H. R. Rep. No. 94-196, pp. 57-58 (1970)).
In light of this limited purpose, §5 applies only to certain States and their political subdivisions. Such a covered jurisdiction may not implement any change in a voting “qualification, prerequisite, standard, practice, or procedure” unless it first obtains either administrative preclearance of that change from the Attorney General or judicial preclearance from the District Court for the District of Columbia. 42 U. S. C. § 1973c. To obtain judicial preclearance, the jurisdiction bears the burden of proving that the change “does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color.” Ibid.; City of Rome v. United States, 446 U. S. 156, 183, n. 18 (1980) (covered jurisdiction bears burden of proof). Because §5 focuses on “freezing] election procedures,” a plan has an impermissible “effect” under §5 only if it “would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.” Beer, supra, at 141.
Retrogression, by definition, requires a comparison of a jurisdiction’s new voting plan with its existing plan. See Holder, supra, at 883 (plurality opinion) (“Under §5, then, the proposed voting practice is measured against the existing voting practice to determine whether retrogression would result from the proposed change”). It also necessarily implies that the jurisdiction’s- existing plan is the benchmark against which the “effect” of voting changes is measured. In Beer, for example, we concluded that the city of New Orleans’ reapportionment of its council districts, which created one district with a majority of voting-age blacks where before there had been none, had no discriminatory “effect.” 425 U. S., at 141-142 (“It is thus apparent that a legislative reapportionment that enhances the position of racial minorities with respect to their effective exercise of the electoral franchise can hardly have the ‘effect’ of diluting or abridging the right to vote on account of race within the meaning of § 5”). Likewise, in City of Lockhart v. United States, 460 U. S. 125 (1983), we found that the city’s new charter had no retrogressive “effect” even though it maintained the city’s prior practice of electing its council members at-large from numbered posts, and instituted a new practice of electing two of the city’s four council members every year (instead of electing all the council members every two years). While each practice could “have a discriminatory effect under some circumstances,” id., at 135, the fact remained that “[s]ince the new plan did not increase the degree of discrimination against [the city’s Mexican-American population], it was entitled to § 5 preclearance [because it was not retrogressive],” id., at 134 (emphasis added).
Section 2, on the other hand, was designed as a means of eradicating voting practices that “minimize or cancel out the voting strength and political effectiveness of minority groups,” S. Rep. No. 97-417, at 28. Under this broader mandate, § 2 bars all States and their political subdivisions from maintaining any voting “standard, practice, or procedure” that “results in a denial or abridgement of the right ... to vote on account of race or color.” 42 U. S. C. § 1973(a). A voting practice is impermissibly dilutive within the meaning of §2
“if, based on the totality of the circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by [members of a class defined by race or color] in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” 42 U. S. C. § 1973(b).
A plaintiff claiming vote dilution under § 2 must initially establish that: (i) “[the racial group] is sufficiently large and geographically compact to constitute a majority in a single-member district”; (ii) the group is “politically cohesive”; and (iii) “the white majority votes sufficiently as a bloc to enable it . . . usually to defeat the minority’s preferred candidate.” Thornburg v. Gingles, 478 U. S. 30, 50-51 (1986); Growe v. Emison, 507 U. S. 25, 40 (1993). The plaintiff must also demonstrate that the totality of the circumstances supports a finding that the voting scheme is dilutive. Johnson v. De Grandy, 512 U. S. 997, 1011 (1994); see Gingles, supra, at 44-45 (listing factors to be considered by a court in assessing the totality of the circumstances). Because the very concept of vote dilution implies — and, indeed,, necessitates — the existence of an “undiluted” practice against which the fact of dilution may be measured, a § 2 plaintiff must also postulate a reasonable alternative voting practice to serve as the benchmark “undiluted” voting practice. Holder v. Hall, 512 U. S., at 881 (plurality opinion); id., at 950-951 (Blackmun, J., dissenting).
Appellants contend that preclearance must be denied under § 5 whenever a covered jurisdiction's redistricting plan violates § 2. The upshot of this position is to shift the focus of § 5 from nonretrogression to vote dilution, and to change the §5 benchmark from a jurisdiction’s existing plan to a hypothetical, undiluted plan.
But §5, we have held, is designed to combat only those effects that are retrogressive. See supra, at 477-479. To adopt appellants’ position, we would have to call into question more than 20 years of precedent interpreting § 5. See, e. g., Beer, supra; City of Lockhart, supra. This we decline to do. Section 5 already imposes upon a covered jurisdiction the difficult burden of proving the absence of discriminatory purpose and effect. See, e. g., Elkins v. United States, 364 U. S. 206, 219 (1960) (“[A]s a practical matter it is never easy to prove a negative”). To require a jurisdiction to litigate whether its proposed redistricting plan also has a dilutive “result” before it can implement that plan — even if the Attorney General bears the burden of proving that “result” — is to increase further the serious federalism costs already implicated by § 5. See Miller v. Johnson, 515 U. S. 900, 926 (1995) (noting the “federalism costs exacted by § 5 preclearance”).
Appellants nevertheless contend that we should adopt' their reading of § 5 because it is supported by our decision in Beer, by the Attorney General’s regulations, and by considerations of public policy. In Beer, we held that § 5 prohibited only retrogressive effects and further observed that “an ameliorative new legislative apportionment cannot violate § 5 unless the new apportionment itself so discriminates on the basis of race or color as to violate the Constitution.” 425 U. S., at 141. Although there had been no allegation that the redistricting plan in Beer “so . . . discriminate^] on the basis of race or color as to be unconstitutional,” we cited in dicta a few cases to illustrate when a redistricting plan might be found to be constitutionally offensive. Id., at 142, n. 14. Among them was our decision in White v. Regester, 412 U. S. 755 (1978), in which we sustained a vote dilution challenge, brought under the Equal Protection Clause, to the use of multimember election districts in two Texas counties. Appellants argue that “[bjecause vote dilution standards under the Constitution and Section 2 were generally coextensive at the time Beer was decided, Beer’s discussion meant that practices that violated Section 2 would not be entitled to preclearance under Section 5.” Brief for Federal Appellant 36-37.
Even assuming, arguendo, that appellants’ argument had some support in 1976, it is no longer valid today because the applicable statutory and constitutional standards have changed. Since 1980, a plaintiff bringing a constitutional vote dilution challenge, whether under the Fourteenth or Fifteenth Amendment, has been required to establish that the State or political subdivision acted with a discriminatory purpose. See Mobile v. Bolden, 446 U. S. 55, 62 (1980) (plurality opinion) (“Our decisions . . . have made clear that action by a State that is racially neutral on its face violates the Fifteenth Amendment only if motivated by a discriminatory purpose”); id., at 66 (“[O]nly if there is purposeful discrimination can there be a violation of the Equal Protection Clause of the Fourteenth Amendment”); see also Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 265 (1977) (“Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause”). When Congress amended §2 in 1982, it clearly expressed its desire that § 2 not have an intent component, see S. Rep. No. 97-417, at 2 (“Th[e 1982] amendment is designed to make clear that proof of discriminatory intent is not required to establish a violation of Section 2”). Because now the Constitution requires a showing of intent that § 2 does not, a violation of § 2 is no longer a fortiori a violation of the Constitution. Congress itself has acknowledged this fact. See id., at 39 (“The Voting Rights Act is the best example of Congress’ power to enact implementing legislation that goes beyond the direct prohibitions of the Constitution itself”).
Justice Stevens argues that the subsequent divergence of constitutional and statutory standards is of no moment because, in his view, we “did not [in Beer] purport to distinguish between challenges .brought under the Constitution and those brought under the [Voting Rights] statute.” Post, at 504 (opinion dissenting in part and concurring in part). Our citation to White, he posits, incorporated White’s standard into our exception for nonretrogressive apportionments that violate §5, whether or not that standard continued to coincide with the constitutional standard. In essence, Justice Stevens reads Beer as creating an exception for non-retrogressive apportionments that so discriminate on the basis of race or color as to violate any federal law that happens to coincide with what would have amounted to a constitutional violation in 1976. But this reading flatly contradicts the plain language of the exception we recognized, which applies solely to apportionments that “so discriminate] on the basis of race or color as to violate the Constitution.” Beer, supra, at 141 (emphasis added). We cited White, not for itself, but because it embodied the current constitutional standard for a violation of the Equal Protection Clause. See also 425 U. S., at 143, n. 14 (noting that New Orleans’ plan did “not remotely approach a violation of the constitutional stándards enunciated in” White and other cited cases (emphasis added)). When White ceased to represent the current understanding of the Constitution, a violation of its standard — even though that standard was later incorporated in § 2 — no longer constituted grounds for denial of preclearance under Beer.
Appellants’ next claim is that we must defer to the Attorney General’s regulations interpreting the Act, one of which states:
“In those instances in which the Attorney General concludes that, as proposed, the submitted change is free of discriminatory purpose and retrogressive effect, but also concludes that a bar to implementation of the change is necessary to prevent a clear violation of amended Section 2, the Attorney General shall withhold Section 5 preclearance.” 28 CFR § 51.55(b)(2) (1996).
Although we normally accord the Attorney General’s construction of the Act great deference, “we only do so if Congress has not expressed its intent with respect to the question, and then only if the administrative interpretation is reasonable.” Presley v. Etowah County Comm'n, 502 U. S. 491, 508 (1992). Given our longstanding interpretation of § 5, see supra, at 477-479, 480-482 and this page, which Congress has declined to alter by amending the language of § 5, Arkansas Best Corp. v. Commissioner, 485 U. S. 212, 222, n. 7 (1988) (placing some weight on Congress’ failure to express disfavor with our 25-year interpretation of a tax statute), we believe Congress has made it sufficiently clear that a violation of § 2 is not grounds in and of itself for denying preclearance under § 5. That there may be some suggestion to the contrary in the Senate Report to the 1982 Voting Rights Act amendments, S. Rep. No. 97-417, supra, at 12, n. 31, does not change our view. With those amendments, Congress, among other things, renewed §5 but did so without changing its applicable standard. We doubt that Congress would depart from the settled interpretation of § 5 and impose a demonstrably greater burden on the jurisdictions covered by § 5, see supra, at 480, by dropping a footnote in a Senate Report instead of amending the statute itself. See Pierce v. Underwood, 487 U. S. 552, 567 (1988) (“Quite obviously, reenacting precisely the same language would be a strange way to make a change”). See also City of Lockhart v. United States, 460 U. S. 125 (1983) (reaching its holding over Justice Marshall’s dissent, which raised the argument now advanced by appellants regarding this passage in the Senate Report).
Nor does the portion of the House Report cited by Justice Stevens unambiguously call for the incorporation of § 2 into § 5. That portion of the Report states:
“[M]any voting and election practices currently in effect are outside the scope of [§ 5]. .. because they were in existence before 1965. . . . Under the Voting Rights Act, whether a discriminatory practice or procedure is of recent origin affects only the mechanism that triggers relief, i. e., litigation [under §2] or preclearance [under §5].” H. R. Rep. No. 97-227, p. 28 (1981).
The obvious thrust of this passage is to establish that pre-1965 discriminatory practices are not free from scrutiny under the Act just because they need not be precleared under § 5: Such practices might still violate § 2. But to say that pre-1965 practices can be reached solely by § 2 is not to say that all post-1965 changes that might violate § 2 may be reached by both §2 and §5 or that “the substantive standards for § 2 and § 5 [are] the same,” see post, at 506 (opinion dissenting in part and concurring in part). Our ultimate conclusion is also not undercut by statements found in the “post-enactment legislative record,” see post, at 506, n. 9, given 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 (1960). We therefore decline to give these sources controlling weight.
Appellants’ final appeal is to notions of public policy. They assert that if the district court or Attorney General examined whether a covered jurisdiction’s redistricting plan violates § 2 at the same time as ruling on preclearance under § 5, there would be no need for two separate actions and judicial resources would be conserved. Appellants are undoubtedly correct that adopting their interpretation of § 5 would serve judicial economy in those cases where a § 2 challenge follows a § 5 proceeding. But this does not always happen, and the burden on judicial resources might actually increase if appellants’ position prevailed because § 2 litigation would effectively be incorporated into every § 5 proceeding.
Appellants lastly argue that preclearance is an equitable remedy, obtained through a declaratory judgment action in district court, see 42 U. S. C. § 1973c, or through the exercise of the Attorney General’s discretion, see 28 CFR § 51.52(a) (1996). A finding that a redistricting plan violates § 2 of the Act, they contend, is an equitable “defense,” on the basis of which a decisionmaker should, in the exercise of its equitable discretion, be free to deny preclearance. This argument, however, is an attempt to obtain through equity that which the law — i. e., the settled interpretation of § 5 — forbids. Because “it is well established that ‘[cjourts of equity can no more disregard statutory and constitutional requirements and provisions than can courts of law,’ ” INS v. Pangilinan, 486 U. S. 875, 883 (1988) (citing Hedges v. Dixon County, 150 U. S. 182, 192 (1893)), this argument must fail.
Of course, the Attorney General or a private plaintiff remains free to initiate a § 2 proceeding if either believes that a jurisdiction’s newly enacted voting “qualification, prerequisite, standard, practice, or procedure” may violate that section. All we hold today is that preclearance under § 5 may not be denied on that basis alone.
III
Appellants next contend that evidence showing that a jurisdiction’s redistricting plan dilutes the voting power of minorities is at least relevant in a §5 proceeding because it tends to prove that the jurisdiction enacted its plan with a discriminatory “purpose.” The District Court, reasoning that “[t]he line [between §2 and §5] cannot be blurred by allowing a defendant to do indirectly what it cannot do directly,” 907 F. Supp., at 445, rejected this argument and held that it “will not permit section 2 evidence to prove discriminatory purpose under section 5,” ibid. Because we hold that some of this “§2 evidence” may be relevant to establish a jurisdiction’s “intent to retrogress” and cannot say with confidence that the District Court considered the evidence proffered to show that the Board’s reapportionment plan was dilutive, we vacate this aspect of the District Court’s holding and remand. In light of this conclusion, we leave open for another day the question whether the §5 purpose inquiry ever extends beyond the search for retrogressive intent. See Kentucky Dept. of Corrections v. Thompson, 490 U. S. 454, 465, n. 5 (1989) (declining to decide an issue that “is not necessary to our decision”). Reserving this question is particularly appropriate when, as in this suit, it was not squarely addressed by the decision below or in the parties’ briefs on appeal. See Brief for Federal Appellant 23; Brief for Appellant Price et al. 31-33, 34-35; Brief for Appellee 42-43. But in doing so, we do not, contrary to Justice Stevens’ view, see post, at 499 (opinion dissenting in part and concurring in part), necessarily assume that the Board enacted the Jury plan with some nonretrogressive, but nevertheless discriminatory, “purpose.” The existence of such a purpose, and its relevance to § 5, are issues to be decided on remand.
Although § 5 warrants a denial of preclearance if a covered jurisdiction’s voting change “ha[s] the purpose [or] . . . the effect of denying or abridging the right to vote on account of race or color,” 42 U. S. C. § 1973c, we have consistently interpreted this language in light of the purpose underlying §5 — “to insure that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities.” Beer, 425 U. S., at 141. Accordingly, we have adhered to the view that the only “effect” that violates § 5 is a retrogressive one. Ibid.; City of Lockhart, 460 U. S., at 134.
Evidence is “relevant” if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed. Rule Evid. 401. As we observed in Arlington Heights, 429 U. S., at 266, the impact of an official action is often probative of why the action was taken in the first place since people usually intend the natural consequences of their actions. Thus, a jurisdiction that enacts a plan having a dilutive impact is more likely to have acted with a discriminatory intent to dilute minority voting strength than a jurisdiction whose plan has no such impact. A jurisdiction that acts with an intent to dilute minority voting strength is more likely to act with an intent to worsen the position of minority voters — i. e., an intent to retrogress — than a jurisdiction acting with no intent to dilute. The fact that a plan has a dilutive impact, therefore makes it “more probable” that the jurisdiction adopting that plan acted with an intent to retrogress than “it would be without the evidence.” To be sure, the link between dilutive impact and intent to retrogress is far from direct, but “the basic standard of relevance ... is a liberal one,” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579, 587 (1993), and one we think is met here.
That evidence of a plan’s dilutive impact may be relevant to the § 5 purpose inquiry does not, of course, mean that such evidence is dispositive of that inquiry. In fact, we have previously observed that a jurisdiction’s single decision to choose a redistricting plan that has a dilutive impact does not, without more, suffice to establish that the jurisdiction acted with a discriminatory purpose. Shaw v. Hunt, 517 U. S. 899, 914, n. 6 (1996) (“[W]e doubt that a showing of discriminatory effect under §2, alone, could support a claim of discriminatory purpose under § 5”). This is true whether the jurisdiction chose the more dilutive plan because it better comported with its traditional districting principles, see Miller v. Johnson, 515 U. S., at 922 (rejecting argument that a jurisdiction’s failure to adopt the plan with the greatest possible number of majority black districts establishes that it acted with a discriminatory purpose); Shaw, supra, at 912-913 (same), or if it chose the plan for no reason at all. Indeed, if a plan’s dilutive impact were dispositive, we would effectively incorporate §2 into §5, which is a result we find unsatisfactory no matter how it is packaged. See Part II, supra.
As our discussion illustrates, assessing a jurisdiction’s motivation in enacting voting changes is a complex task requiring a “sensitive inquiry into such circumstantial and direct evidence as may be available.” Arlington Heights, 429 U. S., at 266. In conducting this inquiry, courts should look to our decision in Arlington Heights for guidance. There, we set forth a framework for analyzing “whether invidious discriminatory purpose was a motivating factor” in a government body’s decisionmaking. Ibid. In addition to serving as the framework for examining discriminatory purpose in cases brought under the Equal Protection Clause for over two decades, see, e. g., Shaw v. Reno, 509 U. S. 630, 644 (1993) (citing Arlington Heights standard in context of Equal Protection Clause challenge to racial gerrymander of districts); Rogers v. Lodge, 458 U. S. 613, 618 (1982) (evaluating vote dilution claim under Equal Protection Clause using Arlington Heights test); Mobile, 446 U. S., at 70-74 (same), the Arlington Heights framework has also been used, at least in part, to evaluate purpose in our previous §5 cases. See Pleasant Grove v. United States, 479 U. S. 462, 469-470 (1987) (considering city’s history in rejecting annexation of black neighborhood and its departure from normal procedures when calculating costs of annexation alternatives); see also Busbee v. Smith, 549 F. Supp. 494, 516-517 (DC 1982), summarily aff’d, 459 U. S. 1166 (1983) (referring to Arlington Heights test); Port Arthur v. United States, 517 F. Supp. 987, 1019, aff’d, 459 U. S. 159 (1982) (same).
The “important starting point” for assessing discriminatory intent under Arlington Heights is “the impact of the official action whether it 'bears more heavily on one race than another.’ ” 429 U. S., at 266 (citing Washington v. Davis, 426 U. S. 229, 242 (1976)). In a § 5 case, “impact” might include a plan’s retrogressive effect and, for the reasons discussed above, its dilutive impact. Other considerations relevant to the purpose inquiry include, among other things, “the historical background of the [jurisdiction’s] decision”; “[t]he specific sequence of events leading up to the challenged decision”; “[departures from the normal procedural sequence”; and “[t]he legislative or administrative history, especially . . . [any] contemporary statements by members of the decisionmaking body.” 429 U. S., at 266-268.
We are unable to determine from the District Court’s opinion in this action whether it deemed irrelevant all evidence of the dilutive impact of the redistricting plan adopted by the Board. At one point, the District Court correctly stated that “the adoption of one nonretrogressive plan rather than another nonretrogressive plan that contains more majority-black districts cannot by itself give rise to the inference of discriminatory intent.” 907 F. Supp., at 450 (emphasis added). This passage implies that the District Court believed that the existence of less dilutive options was at least relevant to, though not dispositive of, its purpose inquiry. While this language is consistent with our holding today, see supra, at 486-488, the District Court also declared that “we will not permit section 2 evidence to prove discriminatory purpose under section 5,” supra, at 486. With this statement, the District Court appears to endorse the notion that evidence of dilutive impact is irrelevant even to an inquiry into retrogressive intent, a notion we reject. See supra, at 486-488.
The Board contends that the District Court actually “presumed that white majority districts had [a dilutive] effect,” Brief for Appellee 35, and “cut directly to the dispositive question ‘started’ by the existence of [a dilutive] impact: did the Board have ‘legitimate, nondiscriminatory motives’ for adopting its plan[?]” Id., at 33. Even if the Board were correct, the District Court gave no indication that it was assuming the plan’s dilutive effect, and we hesitate to attribute to the District Court a rationale it might not have employed. Because we are not satisfied that the District Court considered evidence of the dilutive impact of the Board’s redistricting plan, we vacate this aspect of the District Court’s opinion. The District Court will have the opportunity to apply the Arlington Heights test on remand as well as to address appellants’ additional arguments that it erred in refusing to consider evidence that the Board was in violation of an ongoing injunction “to ‘remedy any remaining vestiges of [a] dual [school] system,”’ 907 F. Supp., at 449, n. 18.
* * *
The judgment of the District Court is vacated, and the case is remanded for further proceedings consistent with this decision.
It is so ordered. | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases. | What is the ideological direction of the decision? | [
"Conservative",
"Liberal",
"Unspecifiable"
] | [
0
] | sc_decisiondirection |
HERTZ CORPORATION (SUCCESSOR TO J. FRANK CONNOR, INC.) v. UNITED STATES.
No. 283.
Argued March 30, 1960.
Decided June 27, 1960.
Edgar Bernhard argued the cause for petitioner. With him on the brief were Boswell Magill, Harry N. Wyatt, Donald J. Yellon and John C. Klett, Jr.
Howard A. Heffron argued the cause for the United States. On the brief were Solicitor General Rankin, Assistant Attorney General Rice, Ralph S. Spritzer, I. Henry Kutz and Myron C. Baum.
Mr. Justice Clark
delivered the opinion of the Court.
This case, like No. 141, Massey Motors, Inc., v. United States, and No. 143, Commissioner v. Evans, both decided today, ante, p. 92, involves the depreciation allowable on cars and trucks used by petitioner’s predecessor in its automobile rental business during the years 1954-1956, inclusive. The taxpayer elected to avail itself of the accelerated method of depreciation provided in § 167 (b) (2) of the Internal Revenue Code of 1954 — known as “the declining balance method.” Section 167 (c) of the Code limits the use of this method to property “with a useful life of 3 years or more.” The applicable Treasury Regulations on Depreciation, § 1.167 (a)-1 (b), T. D. 6182, 1956-1 Cum. Bull. 98, issued in 1956, define useful life as the “period over which the asset may reasonably be expected to be useful to the taxpayer in his trade or business . . . .” Admittedly, if this regulation is valid, taxpayer’s passenger cars covered by it would not meet the three-year requirement of § 167 (c). The Commissioner denied the petitioner the right to use the declining balance method as to those cars. What we have said in Massey and Evans, supra, disposes of the contention as to the meaning of “useful life” here. We therefore hold, as did the Court of Appeals, 268 F. 2d 604, that the regulation as to “useful life” involved here is valid and applicable to petitioner.
The remaining issues pose questions that relate to the depreciation on the trucks of the taxpayer which con-cededly had a useful life in excess of three years and were therefore subject to depreciation under the declining balance method authorized under §167 (b)(2). Section 1.167 (a)-l (b), issued in 1956 and subsequent to ■ some of the tax years involved in petitioner’s claim, was applied by the Commissioner. He ruled that the salvage value of the trucks at the time of disposition must be accounted for in the depreciation equation. Petitioner contended that this resulted in a retroactive application of the regulation and, in any event, it was invalid because it was not authorized under the 1954 Code. After petitioner paid the assessed tax and was denied a refund, this case was filed. The trial court held in favor of petitioner, but the Court of Appeals reversed. It held that the regulation applied and was not retroactive because it was only declaratory of existing law and that salvage value must be computed in the depreciation equation. We granted certiorari, 361 U. S. 811, and heard the case as a companion to Massey and Evans, supra. We agree with the result reached by the Court of Appeals.
Petitioner succeeded J. Frank Connor, Inc., by merger in 'July 1956; the taxes accrued against Connor during the fiscal years 1954, 1955, and 1956. Connor was engaged in the business of renting and leasing automobiles and trucks, without drivers, during the pertinent years. In the preparation of its returns for the years ending March 31, 1954, 1955, and 1956, Connor claimed depreciation on its automobiles on the basis of a four-year useful life. The taxes so computed were paid. Subsequently, and after merger, petitioner filed claims for refund on All three years. This claim was based on an election in accordance with § 1.167 (c)-1 (c) of the Treasury Regulations issued under the 1954 Code, relating to the declining balance method of depreciation. We see nothing to the contention of retroactive application. The petitioner chose its own weapon, began the struggle under it and, at this late date, cannot be allowed to abandon it.
As to the salvage issue, the petitioner claims that, under the method it chose, the Congress built in an artificial salvage value, i. e., the amount remaining after the application of the depreciation equation. The regulation, however, says that “in no event shall an asset ... be depreciated below a reasonable salvage value.” The issue is the narrow one of whether this regulation is valid under the congressional authorization providing that, as to depreciation, the term “reasonable allowance” shall include an allowance “computed in accordance with regulations prescribed by the Secretary or his delegate.” Internal Revenue Code of 1954, § 167 (b). We think that it is.
As we pointed out in the companion cases, the purpose of depreciation accounting is to allocate the expense of using an asset to the various periods which are benefited by that asset. The declining balance method permits a rapid rate of depreciation in the early years of an asset’s life. The Congress has permitted under this method an allowance not to exceed twice the “straight line” rate, which rate was approved in Massey and Evans, supra. In application, the taxpayer computes his straight-line percentage rate and then doubles it for the first year. This doubled rate is then applied each subsequent year to the declining balance. Because of a belief that most assets do lose more value in the earlier years, this method is justified as an attempt to level off the total costs, including maintenance expense, which will generally be greater in the later years. This means, even under the Commissioner’s theory, that if an asset is disposed of early in what was expected to be its useful life in the business, the depreciation taken may greatly exceed the difference between the purchase price of the asset and its retirement price; this is a result of the conscious choice to permit rapid depreciation. But this, by hypothesis, is an unusual situation. There is nothing inherent in the declining balance system which requires us to assume that depreciation should be allowed beyond what reasonably appears to be the price that will be received when the asset is retired. This would permit a knowing distortion of the expense of employing the asset in the years after that point is reached. It therefore appears that the interpretation contended for by the taxpayer does not comport with the overriding statutory requirement that the depreciation deduction be a reasonable allowance. § 167 (a).
In challenging the regulation, the taxpayer relies upon the following excerpt from S. Rep. No. 1622, 83d Cong., 2d Sess. 201:
“The salvage value is not deducted from the basis prior to applying the rate, since under this method at the expiration of useful life there remains an undepreciated balance which represents salvage value.”
The regulation is consistent with the first part of the sentence, for salvage value is not deducted from the basis prior to the application of the rate. But petitioner contends that the regulation is contrary to the second part of the sentence which appears to equate salvage value under the declining balance method with the mathematical residue which must always exist under the system. This, it appears to us, is but recognition that under this method there is some theoretical salvage value always left. But it only “represents salvage value” and when true salvage value exceeds this amount, the latter controls. Moreover, the regulation can only carry out the fundamental concept of depreciation — that it is allowable only in such amount, together with salvage value, as will effectuate the recovery of cost over the period of useful life. Furthermore, the House Report said that, “The changes made by your committee’s bill merely affect the timing and not .the ultimate amount of depreciation deductions with respect to a property.” Senator Humphrey stated that under the declining balance method “[t]he total deduction over the life of the property will not be increased and only the same total sum will be given as a tax deduction . . . .” Hearings before the Senate Committee on Finance, 83d Cong., 2d Sess., Pt. 1, 95. Both of these statements clearly support the regulation, since, if the taxpayer prevailed, it would be able to take a greater total amount of depreciation under the declining balance method than under the straight-line method, even if salvage value under the latter method were limited to scrap value.
Petitioner also seems to rely on administrative interpretation. It cites a footnote to what is known as Form 2106, issued by the Commissioner. This footnote to Item No. 41 reads, “Salvage value is the estimated resale or trade-in value of the vehicle, determined at the time of purchase. If declining balance method of depreciation is used, disregard salvage value in computing depreciation.” Petitioner says this is a direct instruction to “disregard salvage value” entirely since it is built into the equation. However, we are not inclined to give the footnote such weighty consideration. The form is but a worksheet and the footnote appears to refer to the fact that salvage value is disregarded at the outset of the application of the depreciation equation, as provided by the Code. We likewise place no weight in the remaining peripheral arguments of the petitioner that salvage must be ignored altogether in the application of the declining balance method.
The judgment is
Affirmed.
[For opinion of Mr. Justice Harlan, joined by Mr. Justice Whittaker and Mr. Justice Stewart, see ante, p. 107.]
[For views of Mr. Justice Douglas, see ante, p. 121.]
The statute provides:
“ (b) ... the .term ‘reasonable allowance’ . . . shall include . . . an allowance computed in accordance with regulations prescribed by the Secretary or his delegate, under any of the following methods:
“(1) the straight line method,
“ (2) the declining balance method, using a rate not exceeding twice the rate which would have been used had the annual allowance been computed under the method described in paragraph (1), . . . .”
The applicable regulation provides:
“§ 1.167 (b)-2. DECLINING Balance Method. — (a) Application of method. — Under the declining balance method a uniform rate is applied each year to the unrecovered cost or other basis of the property. The unrecovered cost or other basis is the basis provided by section 167 (f), adjusted for depreciation previously allowed or allowable, and for all other adjustments provided by section 1016 and other applicable provisions of law. The declining balance rate may be determined without resort to formula. Such rate determined under section 167 (b) (2) shall not exceed twice the appropriate straight line rate computed without adjustment for salvage. While salvage is not taken into account in determining the annual allowances under this method, in no event shall an asset (or an account) be depreciated below a reasonable salvage value. See section 167 (c) and § 1.167 (e) — 1- for restrictions on the use of the declining balance method.”
“§1.167 (c) — 1. LIMITATIONS ON METHODS OP COMPUTING DEPRECIATION Under Section 167 (b)(2), (3), and (4)
“(c) Election to use methods. — Subject to the limitations set forth in paragraph (a) above, the methods of computing the allowance for depreciation specified in section 167 (b)(2), (3), and (4) may be adopted without permission and no formal election is required. In order for a taxpayer to elect to use these methods for any property described in paragraph (a) above, he need only compute depreciation thereon under any of these methods for any taxable year ending after December 31, 1953, in which the property may first be depreciated by him. The election with respect to any property shall not be binding with respect to acquisitions of similar property in the same year or subsequent year which are set up in separate accounts. If a taxpayer has filed his return for a taxable year ending after December 31, 1953, for which the return is required to be filed on or before September 15, 1956, an election to compute the depreciation allowance under any of the methods specified in section 167 (b) or a change in such an election may be made in an amended return or claim for refund filed on or before September 15, 1956.”
H. R. Rep. No. 1337, 83d Cong., 2d Sess. 25.
Senator Millikin made a similar statement on the floor of the Senate, but preceded it with the observation that depreciation cannot exceed the cost of the asset. The way in which the Senator presented the matter suggests that he did not mean that total depreciation taken could not be greater under the declining balance method of depreciation than under the other accepted methods. However, no such qualification limits the impact of the statement in the House Report. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them.
Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. | Who is the petitioner of the case? | [
"attorney general of the United States, or his office",
"specified state board or department of education",
"city, town, township, village, or borough government or governmental unit",
"state commission, board, committee, or authority",
"county government or county governmental unit, except school district",
"court or judicial district",
"state department or agency",
"governmental employee or job applicant",
"female governmental employee or job applicant",
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"judge",
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"State",
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"alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked",
"American Medical Association",
"National Railroad Passenger Corp.",
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"arrested person, or pretrial detainee",
"attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association",
"author, copyright holder",
"bank, savings and loan, credit union, investment company",
"bankrupt person or business, or business in reorganization",
"establishment serving liquor by the glass, or package liquor store",
"water transportation, stevedore",
"bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines",
"brewery, distillery",
"broker, stock exchange, investment or securities firm",
"construction industry",
"bus or motorized passenger transportation vehicle",
"business, corporation",
"buyer, purchaser",
"cable TV",
"car dealer",
"person convicted of crime",
"tangible property, other than real estate, including contraband",
"chemical company",
"child, children, including adopted or illegitimate",
"religious organization, institution, or person",
"private club or facility",
"coal company or coal mine operator",
"computer business or manufacturer, hardware or software",
"consumer, consumer organization",
"creditor, including institution appearing as such; e.g., a finance company",
"person allegedly criminally insane or mentally incompetent to stand trial",
"defendant",
"debtor",
"real estate developer",
"disabled person or disability benefit claimant",
"distributor",
"person subject to selective service, including conscientious objector",
"drug manufacturer",
"druggist, pharmacist, pharmacy",
"employee, or job applicant, including beneficiaries of",
"employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan",
"electric equipment manufacturer",
"electric or hydroelectric power utility, power cooperative, or gas and electric company",
"eleemosynary institution or person",
"environmental organization",
"employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.",
"farmer, farm worker, or farm organization",
"father",
"female employee or job applicant",
"female",
"movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of",
"fisherman or fishing company",
"food, meat packing, or processing company, stockyard",
"foreign (non-American) nongovernmental entity",
"franchiser",
"franchisee",
"lesbian, gay, bisexual, transexual person or organization",
"person who guarantees another's obligations",
"handicapped individual, or organization of devoted to",
"health organization or person, nursing home, medical clinic or laboratory, chiropractor",
"heir, or beneficiary, or person so claiming to be",
"hospital, medical center",
"husband, or ex-husband",
"involuntarily committed mental patient",
"Indian, including Indian tribe or nation",
"insurance company, or surety",
"inventor, patent assigner, trademark owner or holder",
"investor",
"injured person or legal entity, nonphysically and non-employment related",
"juvenile",
"government contractor",
"holder of a license or permit, or applicant therefor",
"magazine",
"male",
"medical or Medicaid claimant",
"medical supply or manufacturing co.",
"racial or ethnic minority employee or job applicant",
"minority female employee or job applicant",
"manufacturer",
"management, executive officer, or director, of business entity",
"military personnel, or dependent of, including reservist",
"mining company or miner, excluding coal, oil, or pipeline company",
"mother",
"auto manufacturer",
"newspaper, newsletter, journal of opinion, news service",
"radio and television network, except cable tv",
"nonprofit organization or business",
"nonresident",
"nuclear power plant or facility",
"owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels",
"shareholders to whom a tender offer is made",
"tender offer",
"oil company, or natural gas producer",
"elderly person, or organization dedicated to the elderly",
"out of state noncriminal defendant",
"political action committee",
"parent or parents",
"parking lot or service",
"patient of a health professional",
"telephone, telecommunications, or telegraph company",
"physician, MD or DO, dentist, or medical society",
"public interest organization",
"physically injured person, including wrongful death, who is not an employee",
"pipe line company",
"package, luggage, container",
"political candidate, activist, committee, party, party member, organization, or elected official",
"indigent, needy, welfare recipient",
"indigent defendant",
"private person",
"prisoner, inmate of penal institution",
"professional organization, business, or person",
"probationer, or parolee",
"protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer",
"public utility",
"publisher, publishing company",
"radio station",
"racial or ethnic minority",
"person or organization protesting racial or ethnic segregation or discrimination",
"racial or ethnic minority student or applicant for admission to an educational institution",
"realtor",
"journalist, columnist, member of the news media",
"resident",
"restaurant, food vendor",
"retarded person, or mental incompetent",
"retired or former employee",
"railroad",
"private school, college, or university",
"seller or vendor",
"shipper, including importer and exporter",
"shopping center, mall",
"spouse, or former spouse",
"stockholder, shareholder, or bondholder",
"retail business or outlet",
"student, or applicant for admission to an educational institution",
"taxpayer or executor of taxpayer's estate, federal only",
"tenant or lessee",
"theater, studio",
"forest products, lumber, or logging company",
"person traveling or wishing to travel abroad, or overseas travel agent",
"trucking company, or motor carrier",
"television station",
"union member",
"unemployed person or unemployment compensation applicant or claimant",
"union, labor organization, or official of",
"veteran",
"voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)",
"wholesale trade",
"wife, or ex-wife",
"witness, or person under subpoena",
"network",
"slave",
"slave-owner",
"bank of the united states",
"timber company",
"u.s. job applicants or employees",
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration",
"War Production Board",
"Wage Stabilization Board",
"General Land Office of Commissioners",
"Transportation Security Administration",
"Surface Transportation Board",
"U.S. Shipping Board Emergency Fleet Corp.",
"Reconstruction Finance Corp.",
"Department or Secretary of Homeland Security",
"Unidentifiable",
"International Entity"
] | [
53
] | sc_petitioner |
MURPHY, DISTRICT JUDGE, FOURTH JUDICIAL DISTRICT OF NEBRASKA, DOUGLAS COUNTY v. HUNT
No. 80-2165.
Argued January 18, 1982
Decided March 2, 1982
Terry R. Schaaf, Assistant Attorney General of Nebraska, argued the cause for appellant. With him on the brief was Paul L. Douglas, Attorney General.
Bennett G. Homstein argued the cause and filed a brief for appellee.
Briefs of amici curiae urging reversal were filed by James P. Manak, G. Joseph Bertain, Jr., Lloyd F. Dunn, George Nicholson, Robert L. Toms, Donald E. Santarelli, Jack Yelverton, George Deukmejian, Attorney General of California, and Richard S. Gebelein, Attorney General of Delaware, for Laws at Work (L. A. W.) et al.; and by Daniel J. Popeo and Paul D. Kamenar for the Washington Legal Foundation.
Briefs of amici curiae urging affirmance were filed by Irvin B. Nathan and David P. Towey for the American Civil Liberties Union; by David Crump for the Legal Foundation of America; by Sheldon Portman for the National Legal Aid and Defender Association et al.; and by Quin Denvir and David R. Lipson for the Public Defender of California.
Per Curiam.
Appellee Hunt was charged with first-degree sexual assault on a child and three counts of first-degree forcible sexual assault. He appeared on these charges in Omaha Municipal Court where his request for bail was denied. On May 23, 1980, a bail review hearing was held in Douglas County District Court. Relying on Art. I, § 9, of the Nebraska Constitution, Judge Murphy, appellant here, denied Hunt’s second application for bail. That section of the Nebraska Constitution provides in relevant part: “All persons shall be bailable . . . except for treason, sexual offenses involving penetration by force or against the will of the victim, and murder, where the proof is evident or the presumption great.” For purposes of his application for bail, Hunt’s counsel stipulated that, in this case, “the proof [was] evident and the presumption [was] great.”
On June 9, 1980, pending trial on the charges against him, Hunt filed a complaint under 42 U. S. C. §1983 (1976 ed., Supp. V) in the United States District Court for the District of Nebraska. He claimed that Art. I, § 9, of the State Constitution, limiting bail in cases of first-degree sexual offenses, violated his federal constitutional rights to be free from excessive bail and cruel and unusual punishment, to due process and equal protection of the laws, and to the effective assistance of counsel under the Sixth, Eighth, and Fourteenth Amendments. He sought declaratory and injunctive relief only. On October 17, 1980, the District Court dismissed Hunt’s civil rights complaint. Hunt appealed to the Court of Appeals for the Eighth Circuit.
Meanwhile, the prosecutions against Hunt had proceeded. On September 10, 1980 — even prior to the District Court decision — and November 5, 1980, he was found guilty of two of the three first-degree forcible sexual assault charges against him. On November 13, 1980, he was sentenced to consecutive terms of 8-15 years in prison for these offenses. On October 8, 1980, again prior to the decision of the District Court, Hunt was convicted of first-degree sexual assault on a child. On December . 11, 1980, he was sentenced to 12-15 years in prison on this charge. Hunt appealed each of these convictions to the Nebraska Supreme Court and each of these appeals remains pending before that court.
On May 13, 1981, the Court of Appeals for the Eighth Circuit decided Hunt’s appeal from the dismissal of his § 1983 claim. Hunt v. Roth, 648 F. 2d 1148 (1981). The court reversed the District Court and held that the exclusion of violent sexual offenses from bail before trial violates the Excessive Bail Clause of the Eighth Amendment of the United States Constitution. Because we find that Hunt’s constitutional claim to pretrial bail became moot following his convictions in state court, we now vacate the judgment of the Court of Appeals.
In general a case becomes moot “‘when the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome.’” United States Parole Comm’n v. Geraghty, 445 U. S. 388, 396 (1980), quoting Powell v. McCormack, 395 U. S. 486, 496 (1969). It would seem clear that under this general rule Hunt’s claim to pretrial bail was moot once he was convicted. The question was no longer live because even a favorable decision on it would not have entitled Hunt to bail. For the same reason, Hunt no longer had a legally cognizable interest in the result in this case. He had not prayed for damages nor had he sought to represent a class of pretrial detainees.
We have recognized an exception to the general rule in cases that are “capable of repetition, yet evading review.” In Weinstein v. Bradford, 423 U. S. 147, 149 (1975) (per curiam), we said that “in the absence of a class action, the ‘capable of repetition, yet evading review’ doctrine was limited to the situation where two elements combined: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.” See Illinois Elections Bd. v. Socialist Workers Party, 440 U. S. 173, 187 (1979); Sosna v. Iowa, 419 U. S. 393 (1975). Because the Nebraska Supreme Court might overturn each of Hunt’s three convictions, and because Hunt might then once again demand bail before trial, the Court of Appeals held that the matter fell within this class of cases “capable of repetition, yet evading review.” We reach a different conclusion.
The Court has never held that a mere physical or theoretical possibility was sufficient to satisfy the test stated in Weinstein. If this were true, virtually any matter of short duration would be reviewable. Rather, we have said that there must be a “reasonable expectation” or a “demonstrated probability” that the same controversy will recur involving the same complaining party. Weinstein v. Bradford, supra, at 149. We detect no such level of probability in this case. All we know from the record is that Hunt has been convicted on three separate offenses and that his counsel was willing to stipulate that, for the purposes of Hunt’s eligibility for bail, the proof of guilt was evident and the presumption great. Based on these two facts, we cannot say that there exists a “reasonable expectation” or “demonstrated probability” that Hunt will ever again be in this position. There is no reason to expect that all three of Hunt’s convictions will be overturned on appeal. Hunt’s willingness to stipulate that the proof against him was “evident” does not encourage us to believe otherwise.
Nor is Nebraska Press Assn. v. Stuart, 427 U. S. 539 (1976), relied upon by the Court of Appeals, to the contrary. In that case we held that the constitutionality of a pretrial restrictive order, entered prior to a criminal trial and that expired once the jury was impaneled, was not moot even though the order had long since expired. The Court found that the controversy between the parties was “capable of repetition” because the defendant’s conviction might be overturned on appeal, requiring a new trial and possibly a new restrictive order, and because the dispute between the Nebraska Press Association and the State of Nebraska as to the use of restrictive orders was likely to recur in future criminal trials. It was the combination of these elements, both of which were capable of repetition, that permitted the Court to conclude that the matter was not moot under the standard stated in Weinstein.
There is no comparable set of expectations in this case. We have no reason to believe that Hunt will once again be in a position to demand bail before trial.
Accordingly, we find that the case presented is now moot. Indeed, it was moot at the time of the decisions of both the District Court and the Court of Appeals. The judgment of the Court of Appeals is vacated, and the case is remanded to the Court of Appeals with instructions that the complaint be dismissed.
So ordered.
Appellee was also charged with several counts of nonsexual felonies and one count of nonforcible sexual assault. Bail was set as to each of these charges.
The court relied as well upon a decision of the Supreme Court of Nebraska holding that Art. I, § 9, of the Nebraska Constitution violates neither the Sixth, Eighth, nor Fourteenth Amendment to the United States Constitution. See Parker v. Roth, 202 Neb. 850, 278 N. W. 2d 106 (1979).
The remaining first-degree sexual assault charge against him was dismissed on December 11, 1980.
“The constitutional protections involved in the. grant of pretrial release by bail are too fundamental to foreclose by arbitrary state decree. . . .
“We hold, therefore, that the portion of Article I, section 9 of the Nebraska Constitution denying bail to persons charged with certain sexual offenses violates the eighth amendment of the United States Constitution, as incorporated in the fourteenth amendment.” 648 F. 2d, at 1164-1165.
Hunt made no claim of a constitutional right to bail pending appeal. Indeed, at the time he initiated this action he had not yet been convicted. The decision of the Court of Appeals held the Nebraska constitutional provision unconstitutional only as applied to “persons charged with certain. . . offenses.” See n. 4, supra (emphasis added). Hunt’s arguments before this Court are similarly limited to the constitutional rights of a person accused, but not convicted, of a noncapital offense.
The constitutionality of Art. I, § 9, as applied to a person awaiting trial is a question distinct from the constitutionality of that section as applied to a person who has been tried and convicted. The Excessive Bail Clause of the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment may well apply differently in the two situations. As the Court has often noted: “Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.” Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973). Therefore, even assuming that Hunt had raised a claim for bail pending appeal, it would be that claim that the Court should decide — not the related but quite distinct claim for bail by a presumptively innocent person awaiting trial. For the same reasons it cannot be said as a matter of federal law that a decision holding that Hunt was unconstitutionally denied bail prior to trial will have any consequences with respect to his right to bail pending appeal and after conviction.
In short, the fact that Hunt may have a live claim for bail pending appeal, does not save from dismissal his now moot claim to pretrial bail.
Judge Arnold dissented from this conclusion for the same reasons advanced in this opinion.
“What the likelihood of such a triple reversal might be, we have no way of knowing, since this record contains no hint of the facts relevant to Hunt’s guilt or innocence. The possibility of three reversals is wholly speculative. They could come about, but one may be pardoned, I hope, for doubting it.” 648 F. 2d, at 1166 (Arnold, J., dissenting).
The Court in Nebraska Press Assn, cited our decision in Weinstein for support of its conclusion that the matter was not moot. The Court in no way purported to weaken the standard of a “reasonable expectation” or “demonstrated probability" stated in Weinstein. See also Nebraska Press Assn. v. Stuart, 427 U. S., at 585, n. 13 (Brennan, J., concurring in judgment) ("It is evident that the decision of the Nebraska Supreme Court will subject petitioners to future restrictive orders with respect to pretrial publicity. . | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion. | What type of decision did the court make? | [
"opinion of the court (orally argued)",
"per curiam (no oral argument)",
"decrees",
"equally divided vote",
"per curiam (orally argued)",
"judgment of the Court (orally argued)",
"seriatim"
] | [
4
] | sc_decisiontype |
UNITED STATES v. ARMOUR & CO. et al.
No. 103.
Argued March 5, 1970
Decided June 1, 1970
James van R. Springer argued the cause for the United States. On the brief were Solicitor General Griswold, Deputy Assistant Attorney General Comegys, Lawrence G. Wallace, Howard E. Shapiro, and Seymour H. Dussman.
Herbert A. Bergson argued the cause for appellee General Host Corp. With him on the brief were Howard Adler, Jr., James H. Kelley, Carol Garfiel Freeman, and Edwin E. McAmis.
Per Curiam.
The judgment is vacated and the case is remanded to the United States District Court for the Northern District of Illinois with instructions to dismiss the case as moot.
Mr. Justice Black took no part in the consideration or decision of this case.
Mr. Justice Marshall took no part in the decision of this case. | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases. | What is the ideological direction of the decision? | [
"Conservative",
"Liberal",
"Unspecifiable"
] | [
0
] | sc_decisiondirection |
EVANSVILLE-VANDERBURGH AIRPORT AUTHORITY DISTRICT et al. v. DELTA AIRLINES, INC., et al.
No. 70-99.
Argued February 23-24, 1972
Decided April 19, 1972
BrenNAN, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Marshall, Blackmun, and Rehnquist, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 722. Powell, J., took no part in the consideration or decision of the cases.
Howard P. Trockman argued the cause for petitioners in No. 70-99. With him on the briefs was James F. Flynn. John K. Mallory, Jr., argued the cause for respondents in No. 70-99 and for appellants in No. 70-212. With him on the brief in No. 70-99 were Fred P. Bam-berger, J. Eugene Marans, and Jeffrey R. Kinney. With him on the brief in No. 70-212 were Joseph A. Millimet and Mr. Marans. W. Michael Dunn, Assistant Attorney General of New Hampshire, argued the cause for appel-lees in No. 70-212. With him on the brief was Warren B. Rudman, Attorney General.
Donald G. Alexander filed a brief for the National League of Cities as amicus curiae urging reversal in No. 70-99.
Together with No. 70-212, Northeast Airlines, Inc., et al. v. New Hampshire Aeronautics Commission et al., on appeal from the Supreme Court of New Hampshire, argued February 24, 1972.
Mr. Justice Brennan
delivered the opinion of the Court.
The question is whether a charge by a State or municipality of $1 per commercial airline passenger to help defray the costs of airport construction and maintenance violates the Federal Constitution. Our answer is that, as imposed in these two cases, the charge does not violate the Federal Constitution.
No. 70-99. Evansville-Vanderburgh Airport Authority District was created by the Indiana Legislature to operate Dress Memorial Airport in Evansville, Indiana. Under its authority to enact ordinances adopting rates and charges to be collected from users of the airport facilities and services, the Airport Authority enacted Ordinance No. 33 establishing “a use and service charge of One Dollar ($1.00) for each passenger enplaning any commercial aircraft operated from the Dress Memorial Airport.” The commercial airlines are required to collect and remit the charge, less 6% allowed to cover the airlines' administrative costs in doing so. The moneys collected are held by the Airport Authority “in a separate fund for the purpose of defraying the present and future costs incurred by said Airport Authority in the construction, improvement, equipment, and maintenance of said Airport and its facilities for the continued use and future enjoyment by all users thereof.”
Respondents challenged the constitutionality of the charge in an action filed in the Superior Court of Vander-burgh County, Indiana. The court held that the charge constituted an unreasonable burden on interstate commerce in violation of Art. I, § 8, of the Federal Constitution and permanently enjoined enforcement of the ordinance. The Indiana Supreme, Court affirmed, - Ind. -, 265 N. E. 2d 27 (1970). We granted certiorari, 404 U. S. 820 (1971). We reverse.
No. 70-212. Chapter 391 of the 1969 Laws of New Hampshire, amending N. H. Rev. Stat. Ann. §§422:3, 422:43, 422:45, requires every interstate and intrastate “common carrier of passengers for hire by aircraft on a regular schedule” that uses any of New Hampshire’s five publicly owned and operated airports to “pay a service charge of one dollar with respect to each passenger em-planing upon its aircraft with a gross weight of 12,500 pounds or more, or a service charge of fifty cents with respect to each passenger emplaning upon its aircraft with a gross weight of less than 12,500 pounds.” Fifty percent of the moneys collected are allocated to the State’s aeronautical fund and 50% “to the municipalities or the airport authorities owning the public landing areas at which the fees . . . were imposed.” The airlines are authorized to pass on the charge to the passenger.
Appellants brought this action in the Superior Court of Merrimack County, New Hampshire, and challenged the constitutionality of the charge as to scheduled commercial flights on the grounds of repugnancy to the Commerce Clause, the Equal Protection Clause of the Fourteenth Amendment, and the provisions of the Federal Constitution protecting the right to travel. The Superior Court, without decision, transferred the action to the New Hampshire Supreme Court, and that court sustained the constitutionality of the statute. 111 N. H. 5, 273 A. 2d 676 (1971). We noted probable jurisdiction, 404 U. S. 819 (1971). We affirm.
We begin our analysis with consideration of the contention of the commercial airlines in both cases that the charge is constitutionally invalid under the Court’s decision in Crandall v. Nevada, 6 Wall. 35 (1868). There the Court invalidated a Nevada statute that levied a “tax of one dollar upon every person leaving the State by any railroad, stage coach, or other vehicle engaged or employed in the business of transporting passengers for hire.” The Court approached the problem as one of whether levy of “any tax of that character,” whatever its amount, impermissibly burdened the constitutionally protected right of citizens to travel. In holding that it did, the Court reasoned:
“[I]f the State can tax a railroad passenger one dollar, it can tax him one thousand dollars. If one State can do this, so can every other State. And thus one or more States covering the only practicable routes of travel from the east to the west, or from the north to the south, may totally prevent or seriously burden all transportation of passengers from one part of the country to the other.” Id., at 46.
The Nevada charge, however, was not limited, as are the Indiana and New Hampshire charges before us, to travelers asked to bear a fair share of the costs of providing public facilities that further travel. The Nevada tax applied to passengers traveling interstate by privately owned transportation, such as railroads. Thus the tax was charged without regard to whether Nevada provided any facilities for the passengers required to pay the tax. Cases decided since Crandall have distinguished it on that ground and have sustained taxes “designed to make [interstate] commerce bear a fair share of the cost of the local government whose protection it enjoys.” Freeman v. Hewit, 329 U. S. 249, 253 (1946). For example, in Hendrick v. Maryland, 235 U. S. 610 (1915), a District of Columbia resident was convicted of driving in Maryland without paying a fee charged to help defray the costs of road construction and repair. He challenged his conviction on the ground that the fee burdened interstate commerce in violation of the rights of citizens to travel into and through the State. The Court rejected that argument, holding that:
“[W]here a State at its own expense furnishes special facilities for the use of those engaged in commerce, interstate as well as domestic, it may exact compensation therefor. The amount of the charges and the method of collection are primarily for determination by the State itself; and so long as they are reasonable and are fixed according to some uniform, fair and practical standard they constitute no burden on interstate commerce. Transportation Co. v. Parkersburg, 107 U. S. 691, 699; Huse v. Glover, 119 U. S. 543, 548, 549; Monongahela Navigation Co. v. United States, 148 U. S. 312, 329, 330; Minnesota Rate Cases, 230 U. S. 352, 405; and authorities cited. The action of the State must be treated as correct unless the contrary is made to appear. In the instant case there is no evidence concerning the value of the facilities supplied by the State, the cost of maintaining them, or the fairness of the methods adopted for collecting the charges imposed; and we cannot say from a mere inspection of the statute that its provisions are arbitrary or unreasonable.” Id., at 624.
The Court expressly distinguished Crandall, saying:
“There is no solid foundation for the claim that the statute directly interferes with the rights of citizens of the United States to pass through the State, and is consequently bad according to the doctrine announced in Crandall v. Nevada, 6 Wall. 35. In that case a direct tax was laid upon the passenger for the privilege of leaving the State; while here the statute at most attempts to regulate the operation of dangerous machines on the highways and to charge for the use of valuable facilities.” Ibid.
We therefore regard it as settled that a charge designed only to make the user of state-provided facilities pay a reasonable fee to help defray the costs of their construction and maintenance may constitutionally be imposed on interstate and domestic users alike. The principle that burdens on the right to travel are constitutional only if shown to be necessary to promote a compelling state interest has no application in this context. See Shapiro v. Thompson, 394 U. S. 618 (1969). The facility provided at public expense aids rather than hinders the right to travel. A permissible charge to help defray the cost of the facility is therefore not a burden in the constitutional sense.
The Indiana and New Hampshire Supreme Courts differed in appraising their respective charges in terms of whether the charge was for the use of facilities in aid of travel provided by the public. The Indiana Supreme Court held that the Evansville charge “is not reasonably related to the use of the facilities which benefit from the tax . . ." - Ind., at -, 265 N. E. 2d, at 31. The New Hampshire Supreme Court, on the other hand, held that the New Hampshire charge was a “fee for the use of facilities furnished by the public” that did not “exceed reasonable compensation for the use provided.” 111 N. H., at 9, 273 A. 2d, at 678, 679.
In addressing the question, we do not think it particularly important whether the charge is imposed on the passenger himself, to be collected by the airline, or on the airline, to be passed on to the passenger if it chooses. In either case, it is the act of enplanement and the consequent use of runways and other airport facilities that give rise to the obligation. Our inquiry is whether the use of airport facilities occasioned by enplanement is a permissible incident on which to levy these fees, regardless of whether the airline or its passengers bear the formal responsibility for their payment.
Our decisions concerning highway tolls are instructive. They establish that the States are empowered to develop “uniform, fair and practical” standards for this type of fee. While the Court has invalidated as wholly unrelated to road use a toll based on the carrier’s seating capacity, Interstate Transit, Inc. v. Lindsey, 283 U. S. 183 (1931); Sprout v. South Bend, 277 U. S. 163 (1928), and the amount of gasoline over 20 gallons in the carrier’s gas tank, McCarroll v. Dixie Greyhound Lines, Inc., 309 U. S. 176 (1940), we have sustained numerous tolls based on a variety of measures of actual use, including: horsepower, Hendrick v. Maryland, supra; Kane v. New Jersey, 242 U. S. 160 (1916); number and capacity of vehicles, Clark v. Poor, 274 U. S. 554 (1927); mileage within the State, Interstate Busses Corp. v. Blodgett, 276 U. S. 245 (1928); gross-ton mileage, Continental Baking Co. v. Woodring, 286 U. S. 352 (1932); carrying capacity, Hicklin v. Coney, 290 U. S. 169 (1933); and manufacturer’s rated capacity and weight of trailers, Dixie Ohio Express Co. v. State Revenue Comm’n, 306 U. S. 72 (1939).
We have also held that a State may impose a flat fee for the privilege of using its roads, without regard to the actual use by particular vehicles, so long as the fee is not excessive. Aero Mayflower Transit Co. v. Georgia Public Service Comm’n, 295 U. S. 285 (1935); Morf v. Bingaman, 298 U. S. 407 (1936); Aero Mayflower Transit Co. v. Board of Railroad Comm’rs, 332 U. S. 495 (1947). And in Capitol Greyhound Lines v. Brice, 339 U. S. 542 (1950), the Court sustained a Maryland highway toll of “2% upon the fair market value of motor vehicles used in interstate commerce.” That toll was supplemental to a standard mileage charge imposed by the State, so that “the total charge as among carriers [did] vary substantially with the mileage traveled.” Id., at 546. It was there argued, however, that the correlation between tax and use was not precise enough to sustain the toll as a valid user charge. Noting that the tax “should be judged by its result, not its formula, and must stand unless proven to be unreasonable in amount for the privilege granted,” id., at 545, the Court rejected the argument:
“Complete fairness would require that a state tax formula vary with every factor affecting appropriate compensation for road use. These factors, like those relevant in considering the constitutionality of other state taxes, are so countless that we must be content with 'rough approximation rather than precision.’ Harvester Co. v. Evatt, 329 U. S. 416, 422-423. Each additional factor adds to administrative burdens of enforcement, which fall alike on taxpayers and government. We have recognized that such burdens may be sufficient to justify states in ignoring even such a key factor as mileage, although the result may be a tax which on its face appears to bear with unequal weight upon different carriers. Aero Transit Co. v. Georgia Comm’n, 295 U. S. 285, 289. Upon this type of reasoning rests our general rule that taxes like that of Maryland here are valid unless the amount is shown to be in excess of fair compensation for the privilege of using state roads.” Id., at 546-547.
Thus, while state or local tolls must reflect a “uniform, fair and practical standard” relating to public expenditures, it is the amount of the tax, not its formula, that is of central concern. At least so long as the toll is based on some fair approximation of use or privilege for use, as was that before us in Capitol Greyhound, and is neither discriminatory against interstate commerce nor excessive in comparison with the governmental benefit conferred, it will pass constitutional muster, even though some other formula might reflect more exactly the relative use of the state facilities by individual users.
The Indiana and New Hampshire charges meet those standards. First, neither fee discriminates against interstate commerce and travel. While the vast majority of passengers who board flights at the airports involved are traveling interstate, both interstate and intrastate flights are subject to the same charges. Furthermore, there is no showing of any inherent difference between these two classes of flights, such that the application of the same fee to both would amount to discrimination against one or the other. See Nippert v. Richmond, 327 U. S. 416 (1946).
Second, these charges reflect a fair, if imperfect, approximation of the use of facilities for whose benefit they are imposed. We recognize that in imposing a fee on the boarding of commercial flights, both the Indiana and New Hampshire measures exempt in whole or part a majority of the actual number of persons who use facilities of the airports involved. Their number includes certain classes of passengers, such as active members of the military and temporary layovers, deplaning commercial passengers, and passengers on noncommercial flights, nonscheduled commercial flights, and commercial flights on light aircraft. Also exempt are non-passenger users, such as persons delivering or receiving air-freight shipments, meeting or seeing off passengers, dining at airport restaurants, and working for employers located on airport grounds. Nevertheless, these exceptions are not wholly unreasonable. Certainly passengers as a class may be distinguished from other airport users, if only because the boarding of flights requires the use of runways and navigational facilities not occasioned by nonflight activities. Furthermore, business users, like shops, restaurants, and private parking concessions, do contribute to airport upkeep through rent, a cost that is passed on in part at least to their patrons. And since the visitor who merely sees off or meets a passenger confers a benefit on the passenger himself, his use of the terminal may reasonably be considered to be included in the passenger’s fee.
The measures before us also reflect rational distinctions among different classes of passengers and aircraft. Commercial air traffic requires more elaborate navigation and terminal facilities, as well as longer and more costly runway systems, than do flights by smaller private planes. Commercial aviation, therefore, may be made to bear a larger share of the cost of facilities built primarily to meet its special needs, whether that additional charge is levied on a per-flight basis in the form of higher takeoff and landing fees, or as a toll per passenger-use in the form of a boarding fee. In short, distinctions based on aircraft weight or commercial versus private use do not render these charges wholly irrational as a measure of the relative use of the facilities for whose benefit they are levied. Nor does the fact that they are levied on the enplanement of commercial flights, but not deplanement. It is not unreasonable to presume that passengers enplaning at an airport also deplane at the same airport approximately the same number of times. The parties in No. 70-99, for example, have stipulated that the number of passengers enplaning and deplaning at Dress Memorial Airport in 1967 was virtually the same. Thus, a fee levied only on the boarding of commercial aircraft can reasonably be supposed to cover a charge on use by passengers when they deplane.
Third, the airlines have not shown these fees to be excessive in relation to costs incurred by the taxing authorities. The record in No. 70-99 shows that in 1965 the Evansville-Vanderburgh Airport Authority paid bond retirement costs of $166,000 for capital improvements at Dress Memorial Airport, but recovered only $9,700 of these costs in the form of airport revenue. The airport’s revenues covered only $63,000 of the Authority’s $184,000 bond costs in 1966, $87,000 of $182,000 in 1967, and $65,000 of $178,000 in 1968. The respondents in No. 70-99 have advanced no evidence that a $1 boarding fee, if permitted to go into effect, would do more than meet these past, as well as current, deficits. Appellants in No. 70-212 have likewise failed to offer proof of excessiveness.
This omission in No. 70-212 suffices to dispose of the final attack by appellants in that case on the New Hampshire statute. Appellants argue that the statute “on its face belies any legislative intent to impose an exaction based solely on use” because only 50% of its revenue is allocated to the state aeronautical fund while “the remaining fifty per cent is allocated to the municipalities or airport authorities owning the landing areas at which the fees were imposed in the form of unrestricted general revenues.” Brief 51-52. Yet so long as the funds received by local authorities under the statute are not shown to exceed their airport costs, it is immaterial whether those funds are expressly earmarked for airport use. The State’s choice to reimburse local expenditures through unrestricted rather than restricted revenues is not a matter of concern to these appellants. See Clark v. Poor, 274 U. S., at 557; Morf v. Bingaman, 298 U. S., at 412; Aero Mayflower Transit Co. v. Board of Railroad Comm’rs, 332 U. S., at 502-505.
We conclude, therefore, that the provisions before us impose valid charges on the use of airport facilities constructed and maintained with public funds. Furthermore, we do not think that they conflict with any federal policies furthering uniform national regulation of air transportation. No federal statute or specific congressional action or declaration evidences a congressional purpose to deny or pre-empt state and local power to levy charges designed to help defray the costs of airport construction and maintenance. A contrary purpose is evident in the Airport and Airway Development Act of 1970, 84 Stat. 219, 49 U. S. C. § 1701 et seq. That Act provides that as “a condition precedent to his approval of an airport development project,” the Secretary of Transportation must determine that
“the airport operator or owner will maintain a fee and rental structure for the facilities and services being provided the airport users which will make the airport as self-sustaining as possible under the circumstances existing at that particular airport, taking into account such factors as the volume of traffic and economy of collection.” 49 U. S. C. § 1718 (8).
The commercial airlines argue in these cases that a proliferation of these charges in airports over the country will eventually follow in the wake of a decision sustaining the validity of the Indiana and New Hampshire fees, and that this is itself sufficient reason to adjudge the charges repugnant to the Commerce Clause. “If such levies were imposed by each airport along a travel-ler’s route, the total effect on the cost of air transportation could be prohibitive, the competitive structure of air carriers could be affected, and air transportation, compared to other forms of transportation, could be seriously impaired.” Brief for Appellants in No. 70-212, p. 44. The argument relies on Bibb v. Navajo Freight Lines, Inc., 359 U. S. 520 (1959). There the Court invalidated an Illinois statute requiring that trucks and trailers using Illinois highways be equipped at the state line with a contour mudguard of specified design. The lower courts had found that the contour mudguard possessed no advantages in terms of safety over the conventional flap permitted in all other States and indeed created safety hazards. But there is no suggestion that the Indiana and New Hampshire charges do not in fact advance the constitutionally permissible objective of having interstate commerce bear a fair share of the costs to the States of airports constructed and maintained for the purpose of aiding interstate air travel. In that circumstance, “[a]t least until Congress chooses to enact a nation-wide rule, the power will not be denied to the State [s].” Freeman v. Hewit, 329 U. S., at 253; see also Southern Pacific Co. v. Arizona, 325 U. S. 761, 775-776 (1945).
The judgment in No. 70-99 is reversed; the judgment in No. 70-212 is affirmed.
It is so ordered.
Mr. Justice Powell took no part in the consideration or decision of these cases.
“Emplane” is a variant of “enplane.” Webster’s Third New International Dictionary 743 (1961).
Before the enactment of Chapter 391, N. H. Rev. Stat. Ann. §422:43 levied a $1 service charge for each passenger boarding a scheduled airline at an airport receiving development funds from a certain state bond issue authorized in 1957. Section 422:44 imposed a similar fee for nonscheduled commercial planes. No fee was imposed for any noncommercial aircraft or for commercial aircraft weighing less than 12,500 pounds. All of the fees collected were to be used to pay off the 1957 bond issue, and the charge was to cease once repayment was completed. N. H. Rev. Stat. Ann. §422:45.
Chapter 391 broadened the applicability of the fee for scheduled, airlines to all airports that had received state or local public funds since 1959, and as to these airlines eliminated the provisions terminating the fee upon repayment of the 1957 bond issue. The Act also imposed the 500 service charge for boarding of small aircraft (under 12,500 pounds) operated by scheduled airlines, but retained the small-plane exemption for nonscheduled airlines.
Chapter 140 of the New Hampshire Laws of 1971, enacted after the State Supreme Court decision involved here, expanded the charge imposed on nonscheduled airlines by including all airports, receiving state or local funds after 1959. The legislature did not eliminate the bond-repayment cut-off, as it had for scheduled airlines, nor did it apply the 500 fee to light aircraft operated by nonseheduled airlines.
Courts in Montana and New Jersey have invalidated airport fees similar to those involved here. Northwest Airlines, Inc. v. Joint City-County Airport Bd., 154 Mont. 352, 463 P. 2d 470 (1970); Allegheny Airlines, Inc. v. Sills, 110 N. J. Super. 54, 264 A. 2d 268 (1970). In addition, several legislative proposals for similar taxes have been abandoned on the basis of opinions by state or local officials arguing their invalidity.
Concurring Justices invalidated the tax as repugnant to the Commerce Clause. 6 Wall., at 49.
The State’s jurisdiction to tax is, however, limited by the due process requirement that the “taxing power exerted by the state [bear] fiscal relation to protection, opportunities and benefits given by the state.” Wisconsin v. J. C. Penney Co., 311 U. S. 435, 444 (1940).
This distinction has been drawn in other cases. For example, in striking down a state tax construed as falling “upon the privilege of carrying on a business that was exclusively interstate in character,” Spector Motor Service, Inc. v. O’Connor, 340 U. S. 602, 609 (1951) (emphasis in original), the Court expressly distinguished it from a tax “levied as compensation for the use of highways.” Id., at 607.
Active members of the military and temporary layovers are not subject to the Indiana tax. The New Hampshire statute on its face does not distinguish these classes of passengers.
Deplaning passengers are not subject to either tax.
Private aviators are not subject to either tax.
New Hampshire imposes a fee of $1 for nonscheduled flights on aircraft weighing more than 12,500 pounds, but no fee for nonscheduled flights on lighter planes; the $1 fee lapses upon repayment of a bond issue authorized in 1957. See n. 2, supra. The Indiana ordinance on its face’ does not distinguish between scheduled and nonscheduled commercial flights.
New Hampshire imposes a 50$ fee for commercial flights on light aircraft if scheduled, and no fee if unscheduled. The Indiana ordinance on its face does not distinguish light from heavy aircraft.
The parties in No. 70-99, for example, have stipulated that “[m]ost of the facilities constituting the Terminal Building at Dress Memorial Airport would not be essential for the operation of a noncommercial airport except for the required use thereof by persons traveling on commercial airlines,” that “runway lengths, approach areas, taxiways and ramp areas of said Dress Memorial Airport would not be so extensive except for the requirement that the same be sufficiently extensive in order to accommodate commercial airline carriers and their passengers,” and that “Dress Memorial Airport operates and maintains an instrument lighting system and an approach lighting system for use by commercial airlines, both of which are costly to maintain and operate and would not be necessary in connection with use by private, noncommercial aircraft.” App. 54, 55.
Because they do reflect a rational measure of relative use, these exceptions and exemptions are also consistent with the requirement of the Equal Protection Clause, that “in defining a class subject to legislation, the distinctions that are drawn have ‘some relevance to the purpose for which the classification is made.’ Baxstrom v. Herold, 383 U. S. 107, 111; Carrington v. Rash, 380 U. S. 89, 93; Louisville Gas Co. v. Coleman, 277 U. S. 32, 37; Royster Guano Co. v. Virginia, 253 U. S. 412, 415.” Rinaldi v. Yeager, 384 U. S. 305, 309 (1966). | What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | Did administrative action occur in the context of the case? | [
"No",
"Yes"
] | [
1
] | sc_adminaction_is |
VOINOVICH, GOVERNOR OF OHIO, et al. v. QUILTER, SPEAKER PRO TEMPORE OF OHIO HOUSE OF REPRESENTATIVES, et al.
No. 91-1618.
Argued December 8, 1992
Decided March 2, 1993
O’CONNOR, J., delivered the opinion for a unanimous Court.
N. Victor Goodman argued the cause for appellants. With him on the briefs were Orla E. Collier III, Mark D. Tucker, and David L. Shapiro.
Thomas G. Hungar argued the cause pro hac vice for the United States as amicus cuhriae urging reversal. With him on the brief were Solicitor General Starr, Assistant Attorney General Dunne, Deputy Solicitor General Roberts, Deputy Assistant Attorney General Turner, David K. Flynn, and Mark L. Gross.
Armistead W. Gilliam, Jr., argued the cause for appellees. With him on the briefs was Thomas I. Atkins
Briefs of amici curiae urging affirmance were filed for the NAACP Legal Defense and Educational Fund, Inc., et al. by Julius L. Chambers, Charles Stephen Ralston, C. Lani Guinier, and Pamela S. Karlan; and for Congressman Louis Stokes et al. by Abbe David Lowell and Jeffrey M. Wice.
Justice O’Connor
delivered the opinion of the Court.
This is yet another dispute arising out of legislative redistricting and reapportionment. See, e. g., Growe v. Emison, ante, p. 25. Today we consider whether Ohio’s creation of several legislative districts dominated by minority voters violated §2 of the Voting Rights Act of 1965, 79 Stat. 437, as amended, 42 U. S. C. § 1973.
I
Under the Ohio Constitution, the state apportionment board must reapportion electoral districts for the state legislature every 10 years. Ohio Const., Art. XI, § 1. In 1991, the board selected James Tilling to draft a proposed apportionment plan. After conducting public hearings and meeting with members of historically underrepresented groups, Tilling drafted a plan that included eight so-called majority-minority districts — districts in which a majority of the population is a member of a specific minority group. The board adopted the plan with minor amendments by a 3-to-2 vote along party lines. The board’s three Republican members voted for the plan; the two Democrats voted against it. 794 F. Supp. 695, 698, 716-717 (ND Ohio 1992); App. to Juris. Statement 160a-167a, 183a.
Appellees Barney Quilter and Thomas Ferguson, the two Democratic members of the board who voted against the plan, and various Democratic electors and legislators filed this lawsuit in the United States District Court for the Northern District of Ohio seeking the plan’s invalidation. They alleged that the plan violated § 2 of the Voting Rights Act of 1965, as amended, 42 U. S. C. § 1973, and the Fourteenth and Fifteenth Amendments to the United States Constitution. 794 F. Supp., at 695-696. According to appellees, the plan “packed” black voters by creating districts in which they would constitute a disproportionately large majority. This, appellees contended, minimized the total number of districts in which black voters could select their candidate of choice. In appellees’ view, the plan should have created a larger number of “influence” districts — districts in which black voters would not constitute a majority but in which they could, with the help of a predictable number of crossover votes from white voters, elect their candidates of choice. See App. to Juris. Statement 141a-142a. Appellants, by contrast, argued that the plan actually enhanced the strength of black voters by providing “safe” minority-dominated districts. The plan, they pointed out, compared favorably with the 1981 apportionment and had the backing of the National Association for the Advancement of Colored People, Ohio Conference of Branches (Ohio NAACP). 794 F. Supp., at 706.
A three-judge District Court heard the case and held for appellees. Relying on various statements Tilling had made in the course of the reapportionment hearings, the court found that the board had created minority-dominated districts “whenever possible.” Id., at 698. The District Court rejected appellants’ contention that §2 of the Voting Rights Act of 1966, as amended, 42 U. S. C. § 1973, requires that such districts be created wherever possible. 794 F. Supp., at 699. It further held that §2 actually prohibits the “wholesale creation of majority-minority districts” unless necessary to “ ‘remedy’ ” a § 2 violation. Id., at 701. The District Court therefore ordered the board to draft a new plan or demonstrate that it was remedying a §2 violation. Id., at 702.
Judge Dowd dissented, arguing that the majority’s analysis “place[d] the cart before the horse.” Id., at 709. In his view, § 2 does not require the State to show a violation before creating a majority-minority district. Rather, the State may create any district it might desire, so long as minority voting strength is not diluted as a result. Because appellees failed to demonstrate that the 1991 plan diluted the balloting strength of black voters, Judge Dowd thought their challenge should fail. Id., at 710.
The apportionment board responded by creating a record that, in its view, justified the creation of majority-minority districts. The board also adjusted the plan to correct “technical” errors that the Ohio Supreme Court had identified in its independent review of the plan. This revised 1992 plan created only five majority-black districts. App. to Juris. Statement 258a-263a. The District Court, however, was not satisfied with the board’s proof. In an order issued on March 10, 1992, it held that “the [bjoard fail[ed] once again to justify its wholesale creation of majority-minority districts, thus rendering the plan, as submitted, violative of the Voting Rights Act of 1965.” 794 F. Supp. 756, 757 (ND Ohio). The court then appointed a special master to prepare a redistricting plan. Ibid. Once again, Judge Dowd dissented. Id., at 758.
Nine days later, on March 19, 1992, the District Court issued an order reaffirming its view that the creation of majority-minority districts is impermissible under § 2 unless necessary to remedy a statutory violation. App. to Juris. Statement 128a-141a. The order also restated the court’s conclusion that the board had failed to prove a violation. Specifically, it noted “the absence of racial bloc voting, the [ability of black voters] to elect both black and white candidates of their choice, and the fact that such candidates ha[d] been elected over a sustained period of time.” Id:, at 130a. In addition, the order rejected as “clever sophistry” appellants’ argument that the District Court should not have invalidated the 1991 plan without finding that, under the totality of the circumstances, it diluted minority voting strength:
“Having implemented the Voting Rights Act remedy in the absence of a violation, [appellants] suggest that we are now required to establish a violation as a prerequisite to removing the remedy. Actually, however, this task is not as difficult as it seems. The totality of circumstances reveals coalitional voting between whites and blacks. As a result, black candidates have been repeatedly elected from districts with only a 35% black population. Against this background, the per se requirement of the creation of majority-minority districts has a dilutive effect on black votes . . . Id., at 141a, 142a (footnotes omitted).
The District Court further concluded that, because the board had applied the “ ‘remedy’ intentionally” and for the purpose of political advantage, it had violated not only §2 but the Fifteenth Amendment as well. Id., at 142a-143a. Finally, the court held that the plan violated the Fourteenth Amendment because it departed from the requirement that all districts be of nearly equal population. Id., at 146a-148a.
On March 31, 1992, the District Court ordered that the primary elections for Ohio’s General Assembly be rescheduled. 794 F. Supp. 760 (ND Ohio). On April 20, 1992, this Court granted appellants’ application for a stay of the District Court’s orders, 503 U. S. 979; and on June 1, 1992, we noted probable jurisdiction, 504 U. S. 954. We now reverse the judgment of the District Court and remand only for further proceedings on whether the plan’s deviation from equal population among districts violates the Fourteenth Amendment.
II
Congress enacted §2 of the Voting Rights Act of 1965, 42 U. S. C. § 1973, to help effectuate the Fifteenth Amendment’s guarantee that no citizen’s right to vote shall “be denied or abridged ... on account of race, color, or previous condition of servitude,” U. S. Const., Arndt. 15. See NAACP v. New York, 413 U. S. 345, 350 (1973). Section 2(a) of the Act prohibits the imposition of any electoral practice or procedure that “results in a denial or abridgement of the right of any citizen ... to vote on account of race or color.” Section 2(b), in relevant part, specifies that § 2(a) is violated if:
“[BJased on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” 42 U. S. C. § 1973(b).
Section 2 thus prohibits any practice or procedure that, “interact[ing] with social and historical conditions,” impairs the ability of a protected class to elect its candidate of choice on an equal basis with other voters. Thornburg v. Gingles, 478 U. S. 30, 47 (1986).
A
In the context of single-member districts, the usual device for diluting minority voting power is the manipulation of district lines. A politically cohesive minority group that is large enough to constitute the majority in a single-member district has a good chance of electing its candidate of choice, if the group is placed in a district where it constitutes a majority. Dividing the minority group among various districts so that it is a majority in none may prevent the group from electing its candidate of choice: If the majority in each district votes as a bloc against the minority candidate, the fragmented minority group will be unable to muster sufficient votes in any district to carry its candidate to victory.
This case focuses not on the fragmentation of a minority group among various districts but on the concentration of minority voters within a district. How such concentration or “packing” may dilute minority voting strength is not difficult to conceptualize. A minority group, for example, might have sufficient numbers to constitute a majority in three districts. So apportioned, the group inevitably will elect three candidates of its choice, assuming the group is sufficiently cohesive. But if the group is packed into two districts in which it constitutes a super-majority, it will be assured only two candidates. As a result, we have recognized that “[dilution of racial minority group voting strength may be caused” either “by the dispersal of blacks into districts in which they constitute an ineffective minority of voters or from the concentration of blacks into districts where they constitute an excessive majority.” Id., at 46, n. 11.
Appellees in this case, however, do not allege that Ohio’s creation of majority-black districts prevented black voters from constituting a majority in additional districts. Instead, they claim that Ohio’s plan deprived them of “influence districts” in which they would have constituted an influential minority. Black voters in such influence districts, of course, could not dictate electoral outcomes independently. But they could elect their candidate of choice nonetheless if they are numerous enough and their candidate attracts sufficient cross-over votes from white voters. We have not yet decided whether influence-dilution claims such as appellees’ are viable under § 2, Growe, ante, at 41, n. 5; see Gingles, supra, at 46-47, nn. 11-12 (leaving open the possibility of influence-dilution claims); nor do we decide that question today. Instead, we assume for the purpose of resolving this case that appellees in fact have stated a cognizable § 2 claim.
B
The practice challenged here, the creation of majority-minority districts, does not invariably minimize or maximize minority voting strength. Instead, it can have either effect or neither. On the one hand, creating majority-black districts necessarily leaves fewer black voters and therefore diminishes black-voter influence in predominantly white districts. On the other hand, the creation of majority-black districts can enhance the influence of black voters. Placing black voters in a district in which they constitute a sizeable and therefore “safe” majority ensures that they are able to elect their candidate of choice. Which effect the practice has, if any at all, depends entirely on the facts and circumstances of each case.
The District Court, however, initially thought it unnecessary to determine the effect of creating majority-black districts under the totality of the circumstances. In fact, the court did not believe it necessary to find vote dilution at all. It instead held that §2 prohibits the creation of majority-minority districts unless such districts are necessary to remedy a statutory violation. 794 F. Supp., at 701. We disagree. Section 2 contains no per se prohibitions against particular types of districts: It says nothing about majority-minority districts, districts dominated by certain political parties, or even districts based entirely on partisan political concerns. Instead, §2 focuses exclusively on the consequences of apportionment. Only if the apportionment scheme has the effect of denying a protected class the equal opportunity to elect its candidate of choice does it violate § 2; where such an effect has not been demonstrated, § 2 simply does not speak to the matter. See 42 U. S. C. § 1973(b). Indeed, in Gingles we expressly so held: “[Electoral devices . . . may not be considered per se violative of § 2. Plaintiffs must demonstrate that, under the totality of the circumstances, the devices result in unequal access to the electoral process.” 478 U. S., at 46. As a result, the District Court was required to determine the consequences of Ohio’s apportionment plan before ruling on its validity; the failure to do so was error.
The District Court’s decision was flawed for another reason as well. By requiring appellants to justify the creation of majority-minority districts, the District Court placed the burden of justifying apportionment on the State. Section 2, however, places at least the initial burden of proving an apportionment’s invalidity squarely on the plaintiff’s shoulders. Section 2(b) specifies that § 2(a) is violated if “it is shown” that a state practice has the effect of denying a protected group equal access to the electoral process. 42 U. S. C. § 1973(b) (emphasis added). The burden of “showing]” the prohibited effect, of course, is on the plaintiff; surely Congress could not have intended the State to prove the invalidity of its own apportionment scheme. See Gingles, 478 U. S., at 46 (plaintiffs must demonstrate that the device results in unequal access to the electoral process); id., at 49, n. 15 (plaintiffs must “prove their claim before they may be awarded relief”)- The District Court relieved appel-lees of that burden in this case solely because the State had created majority-minority districts. Because that departure from the statutorily required allocation of burdens finds no support in the statute, it was error for the District Court to impose it.
Of course, the federal courts may not order the creation of majority-minority districts unless necessary to remedy a violation of federal law. See Growe, ante, at 40-41. But that does not mean that the State’s powers are similarly limited. Quite the opposite is true: Federal courts are barred from intervening in state apportionment in the absence of a violation of federal law precisely because it is the domain of the States, and not the federal courts, to conduct apportionment in the first place. Time and again we have emphasized that “‘reapportionment is primarily the duty and responsibility of the State through its legislature or other body, rather than of a federal court.’” Growe, ante, at 34 (quoting Chapman v. Meier, 420 U. S. 1, 27 (1975)). Accord, Connor v. Finch, 431 U. S. 407, 414 (1977) (“We have repeatedly emphasized that ‘legislative reapportionment is primarily a matter for legislative consideration and determination’ ” (quoting Reynolds v. Sims, 377 U. S. 533, 586 (1964))). Because the “States do not derive their reapportionment authority from the Voting Rights Act, but rather from independent provisions of state and federal law,” Brief for United States as Amicus Curiae 12, the federal courts are bound to respect the States’ apportionment choices unless those choices contravene federal requirements. Cf. Katzenbach v. Morgan, 384 U. S. 641, 647-648 (1966) (“Under the distribution of powers effected by the Constitution, the States establish qualifications for voting for state officers” and such qualifications are valid unless they violate the Constitution or a federal statute).
Appellees’ complaint does not allege that the State’s conscious use of race in redistricting violates the Equal Protection Clause; the District Court below did not address the issue; and neither party raises it here. Accordingly, we express no view on how such a claim might be evaluated. We hold only that, under § 2 of the Voting Rights Act of 1965, as amended, 42 U. S. C. § 1973, plaintiffs can prevail on a dilution claim only if they show that, under the totality of the circumstances, the State’s apportionment scheme has the effect of diminishing or abridging the voting strength of the protected class.
C
In its order of March 19, 1992, the District Court found that the 1992 plan’s creation of majority-minority districts “ha[d] a dilutive effect on black votes.” App. to Juris. Statement 141a. Again we disagree.
In Thornburg v. Gingles, supra, this Court held that plaintiffs claiming vote dilution through the use of multimember districts must prove three threshold conditions. First, they must show that the minority group “ ‘is sufficiently large and geographically compact to constitute a majority in a single-member district.’” Second, they must prove that the minority group “ ‘is politically cohesive.’ ” Third, the plaintiffs must establish “ ‘that the white majority votes sufficiently as a bloc to enable it . . . usually to defeat the minority’s preferred candidate.’” Growe, ante, at 40 (quoting Gingles, supra, at 50-51). The District Court apparently thought the three Gingles factors inapplicable because Ohio has single-member rather than multimember districts. 794 F. Supp., at 699 (“Gingles’ preconditions are not applicable to the apportionment of single-member districts”). In Growe, however, we held that the Gingles preconditions apply in challenges to single-member as well as multimember districts. Ante, at 40-41.
Had the District Court employed the Gingles test in this case, it would have rejected appellees’ §2 claim. Of course, the Gingles factors cannot be applied mechanically and without regard to the nature of the claim. For example, the first Gingles precondition, the requirement that the group be sufficiently large to constitute a majority in a single district, would have to be modified or eliminated when analyzing the influence-dilution claim we assume, arguendo, to be actionable today. Supra, at 154. The complaint in such a case is not that black voters have been deprived of the ability to constitute a majority, but of the possibility of being a sufficiently large minority to elect their candidate of choice with the assistance of cross-over votes from the white majority. See ibid. We need not decide how Gingles’ first factor might apply here, however, because appellees have failed to demonstrate Gingles’ third precondition — sufficient white majority bloc voting to frustrate the election of the minority group’s candidate of choice. The District Court specifically found that Ohio does not suffer from “racially polarized voting.” 794 F. Supp., at 700-701. Accord, App. to Juris. Statement 132a-134a, and n. 2, 139a-140a. Even appellees agree. See Tr. of Oral Arg. 25. Here, as in Gingles, “in the absence of significant white bloc voting it cannot be said that the ability of minority voters to elect their chosen representatives is inferior to that of white voters.” Gingles, 478 U. S., at 49, n. 15. The District Court’s finding of a § 2 violation, therefore, must be reversed.
III
The District Court also held that the redistricting plan violated the Fifteenth Amendment because the apportionment board intentionally diluted minority voting strength for political reasons. App. to Juris. Statement 142a-143a. This Court has not decided whether the Fifteenth Amendment applies to vote-dilution claims; in fact, we never have held any legislative apportionment inconsistent with the Fifteenth Amendment. Beer v. United States, 425 U. S. 130, 142-143, n. 14 (1976). Nonetheless, we need not decide the precise scope of the Fifteenth Amendment’s prohibition in this case. Even if we assume that the Fifteenth Amendment speaks to claims like appellees’, the District Court’s decision still must be reversed: Its finding of intentional discrimination was clearly erroneous. See Mobile v. Bolden, 446 U. S. 55, 62 (1980) (plurality opinion); id., at 101-103 (White, J., dissenting); id., at 90-92 (Stevens, J., concurring in judgment); id., at 80 (Blackmun, J., concurring in result).
The District Court cited only two pieces of evidence to support its finding. First, the District Court thought it significant that the plan’s drafter, Tilling, disregarded the requirements of the Ohio Constitution where he believed that the Voting Rights Act of 1965 required a contrary result. App. to Juris. Statement 142a-143a, n. 8. But Tilling’s preference for federal over state law when he believed the two in conflict does not raise an inference of intentional discrimination; it demonstrates obedience to the Supremacy Clause of the United States Constitution. Second, the District Court cited Tilling’s possession of certain documents that, according to the court, were tantamount to “a road-map detailing how [one could] create a racial gerrymander.” Id., at 143a, n. 9. Apparently, the District Court believed that Tilling, a Republican, sought to minimize the Democratic Party’s power by diluting minority voting strength. See ibid. The District Court, however, failed to explain the nature of the documents. Contrary to the implication of the District Court opinion, the documents were not a set of Republican plans for diluting minority voting strength. In fact, they were not even created by Tilling or the Republicans. They were created by a Democrat who, concerned about possible Republican manipulation of apportionment, set out the various types of political gerrymandering in which he thought the Republicans might engage. App. 99-100. That Tilling possessed documents in which the opposing party speculated that he might have a discriminatory strategy does not indicate that Tilling actually had such a strategy. And nothing in the record indicates that Tilling relied on the documents in preparing the plan.
Indeed, the record demonstrates that Tilling and the board relied on sources that were wholly unlikely to engage in or tolerate intentional discrimination against black voters, including the Ohio NAACP, the Black Elected Democrats of Ohio, and the Black Elected Democrats of Cleveland, Ohio. Tilling’s plan actually incorporated much of the Ohio NAACP’s proposed plan; the Ohio NAACP, for its part, fully supported the 1991 apportionment plan. 794 F. Supp., at 726-729; App. to Juris. Statement 164a-167a, 269a-270a. Because the evidence not only fails to support but also directly contradicts the District Court’s finding of discriminatory intent, we reverse that finding as clearly erroneous. In so doing, we express no view on the relationship between the Fifteenth Amendment and race-conscious redistricting. Cf. United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U. S. 144, 155-165 (1977) (plurality opinion). Neither party asserts that the State’s conscious use of race by itself violates the Fifteenth Amendment. Instead, they dispute whether the District Court properly found that the State intentionally discriminated against black voters. On that question, we hold only that the District Court’s finding of discriminatory intent was clear error.
IV
Finally, the District Court held that the plan violated the Fourteenth Amendment because it created legislative districts of unequal size. App. to Juris. Statement 146a-148a. The Equal Protection Clause does require that electoral districts be “of nearly equal population, so that each person’s vote may be given equal weight in the election of representatives.” Connor, 431 U. S., at 416. But the requirement is not an inflexible one.
“[M]inor deviations from mathematical equality among state legislative districts are insufficient to make out a prima facie case of invidious discrimination under the Fourteenth Amendment so as to require justification by the State. Our decisions have established, as a general matter, that an apportionment plan with a maximum population deviation under 10% falls within this category of minor deviations. A plan with larger disparities in population, however, creates a prima facie case of discrimination and therefore must be justified by the State.” Brown v. Thomson, 462 U. S. 835, 842-843 (1983) (internal quotation marks and citations omitted).
Here, the District Court found that the maximum total deviation from ideal district size exceeded 10%. App. to Juris. Statement 148a. As a result, appellees established a prima facie case of discrimination, and appellants were required to justify the deviation. Appellants attempted to do just that, arguing that the deviation resulted from the State’s constitutional policy in favor of preserving county boundaries. See Ohio Const., Arts. VII-XI. The District Court therefore was required to decide whether the “plan ‘may reasonably be said to advance [the] rational state policy’ ” of preserving county boundaries “and, if so, ‘whether the population disparities among the districts that have resulted from the pursuit of th[e] plan exceed constitutional limits.’” Brown, supra, at 843 (quoting Mahan v. Howell, 410 U. S. 315, 328 (1973)). Rather than undertaking that inquiry, the District Court simply held that total deviations in excess of 10% cannot be justified by a policy of preserving the boundaries of political subdivisions. Our case law is directly to the contrary. See Mahan v. Howell, supra (upholding total deviation of over 16% where justified by the rational objective of preserving the integrity of political subdivision lines); see also Brown v. Thomson, supra. On remand, the District Court should consider whether the deviations from the ideal district size are justified using the analysis employed in Brown, supra, at 843-846, and Mahan, supra, at 325-330.
The judgment of the District Court is reversed, and the case is remanded for further proceedings in conformity with this opinion.
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93
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YOUNGSTOWN SHEET & TUBE CO. v. BOWERS, TAX COMMISSIONER OF OHIO.
No. 9.
Argued November 12, 1958.
Decided February 24, 1959
Carlton S. Dargusch, Sr. argued the cause for appellant in No. 9. With him on the brief were Carlton S. Dar-gusch, Jr. and Jack H. Bertsch.
Roger C. Minahan argued the cause and filed a brief for petitioner in No. 44.
William Saxbe, Attorney General of Ohio, and John M. Tobin, Assistant Attorney General, argued the cause and filed a brief for appellee in No. 9.
Edwin Larkin argued the cause and filed a brief for respondent in No. 44.
Bruce Bromley and Roswell Magill filed a brief, as amici curiae, in Nos. 9 and 44.
Together with No. 44, United States Plywood Corp. v. City of Algoma, on certiorari to the Supreme Court of Wisconsin, argued November 12-13, 1958.
Mr. Justice Whittaker
delivered the opinion of the Court.
The principal question presented by these cases is whether appellant in No. 9, the Youngstown Sheet and Tube Company, and petitioner in No. 44, United States Plywood Corporation, have so acted upon the materials which they have imported for use in their manufacturing operations as to cause them to lose their distinctive character as “imports,” within the meaning of that term as used in the Import-Export Clause, Art. I, § 10, cl. 2, of the United States Constitution. The Supreme Courts of the States concerned have held that these manufacturers have done so. Our task is to decide whether, on the particular facts involved, those holdings violate the Import-Export Clause of the Constitution.
The facts in the Youngstown case are stipulated. In essence, they are that Youngstown, an Ohio corporation, operates an industrial plant in or near Youngstown, Ohio, where it manufactures iron and steel. In addition to the use of domestic ores, it imports iron ores from five countries “for ultimate use in [its] open hearth [and] blast furnaces” in its manufacturing processes. The imported ores arrive in shiploads “in bulk” either at an Atlantic or a Lake Erie port of entry where they are unloaded from the ship into railroad cars and are thereby transported to Youngstown’s plant in Ohio. The plant is enclosed by a wire fence. Within the enclosure and “adjacent to [the] manufacturing facilities” are several “ore yards” for the storage of supplies of ore. Each ore yard consists of “two parallel walls, on which there [is] a movable ore bridge.” When the imported ores arrive at this final destination, they are unloaded into one of the ore yards, but, because the ore from each country is different from the others and each is imported for a different use, the ores are kept segregated as to the country of origin by being “placed in a separate pile in a separate area of the ore yard.” The daily manufacturing needs for ore are taken from these piles. As needed, ores are conveyed from the particular pile or piles selected to “stock bins” or “stock houses,” holding one or two days’ supply and located in close proximity to the furnaces, from which the ores are fed into the furnaces. As ore from a particular “pile” in the ore yard is thus taken and consumed, other like ore is similarly imported from the same country and is brought to the plant and unloaded on top of the remainder of that particular pile. This course is continuously repeated. Youngstown endeavors to maintain “a supply of imported ores to meet its estimated requirements for a period of at least three months.” The ores are not imported “for resale,” but “for use in manufacturing [at the Ohio plant].”
Acting under Ohio statutes which provide, inter alia, that “All personal property located and used in business in this state [shall be] subject to taxation ...” and that “Personal property is ‘used’ within the meaning of ‘used in business’ . . . when stored or kept on hand as material, parts, products, or merchandise . . . ,” the Tax Commissioner of Ohio proposed to assess an ad valorem tax against Youngstown based on the average value of the iron ores in its ore yards during the tax year ended January 1, 1954. Youngstown contested the proposed assessment. It contended, among other things, that the imported ores had not lost their character as imports and were therefore immune from state taxation under Art. I, § 10, cl. 2 of the United States Constitution.
After exhaustion of administrative proceedings, the case reached the Supreme Court of Ohio. It held that the “protection [of the Import-Export Clause cannot] extend to such iron ore (1) after it has been commingled with other iron ore imported at a different time, even though such other iron ore is of the same grade and was imported from the same place, and (2) after portions of such iron ore have been removed for use in manufacturing.” It then entered judgment sustaining the tax, 166 Ohio St. 122, 140 N. E. 2d 313, and we noted probable jurisdiction of Youngstown’s appeal. 355 U. S. 911.
The facts in the United States Plywood Corporation case were found in detail by the trial court and those findings are not challenged here. In essence, they are that United States Plywood Corporation (petitioner) operates an industrial plant in Algoma, Wisconsin, where it manufactures veneered wood products. It uses both domestic and imported lumber and veneers in its manufacturing processes. The imported lumber is shipped in railroad cars directly from Canada to petitioner’s plant. It is unfinished, and is received in bulk or as loose, individual pieces or boards. It is also “green” when received and therefore must be dried before it can be used by petitioner. Upon arrival at destination, it is unloaded and carted to petitioner’s storage yard, located “adjacent” to its plant, where it is stacked in the open in such a way as to allow the air freely to circulate through the stacks for the “dominant purpose” of air-drying it. This method does not so completely dry the lumber as to make kiln-drying unnecessary, but it does materially reduce the time and expense of that process. From time to time, so much of the lumber as is about to be put into veneered products is taken from the stacks and placed in a kiln where the drying is completed and the lumber readied for use. The veneers are imported from three countries. They are received in bundles and are kept in that form in piles, separated as to specie, in petitioner’s plant for use as needed in the day-to-day operations of the plant.
On the assessment date of May 1, 1955, the Assessor of the City of Algoma, acting under what is now Wis. Stat., 1957, § 70.01, assessed a tax against petitioner based upon the value of one-half of the imported lumber and veneers then on hand. Petitioner paid the tax and then sued in the state court for its recovery. The trial court also found that air-drying the lumber “was part of [petitioner’s] manufacturing practices,” and that, when stacked for air-drying, the lumber “entered the process of manufacture” and thus lost its character as an “import,” and therefore all of it might lawfully have been taxed by the city. The court further found that the lumber and veneers had been imported by petitioner “for use in manufacturing” at its Algoma plant, and that their importation journeys definitely had ended; that the lumber and veneers that were taxed (one-half of the amounts on hand) had been irrevocably committed to “use in manufacturing” at that plant, were “necessarily required to be kept on hand to meet [petitioner’s] current operational needs,” were being “used in manufacturing,” and had therefore lost their character as “imports” and were subject to local taxation. It then entered judgment for the city, sustaining the tax, and, on petitioner’s appeal, the Supreme Court of Wisconsin affirmed. 2 Wis. 2d 567, 87 N. W. 2d 481. Because of the importance of the constitutional question presented we granted certiorari. 356 U. S. 957.
The Constitution confers on Congress the power to lay and collect import duties, Art. I, § 8, and provides that “No State shall, without the Consent of the Congress, lay any Impost or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws. . . Art. I, § 10, cl. 2. That these provisions were intended to confer on the National Government the exclusive power to tax the act of importation is plain from their terms. And early in our national history Chief Justice Marshall held, in the landmark case of Brown v. Maryland, 12 Wheat. 419, that one who had imported goods for the purpose of selling them had, “by payment of the duty to the United States, [acquired the] right to dispose of his merchandise, as well as to bring it into the country” (id., at 442), and that the State could not tax it “while remaining the property of the importer, in his warehouse, in the original form or package in which it was imported.” Id., at 442. But he made very clear that “. . . there must be a point of time when the prohibition ceases, and the power of the State to tax commences.” Id., at 441. Elaborating this concept, he said:
“The constitutional prohibition on the States to lay a duty on imports . . . may certainly come in conflict with their acknowledged power to tax persons and property within their territory. The power, and the restriction on it, though quite distinguishable when they do not approach each other, may yet . . . approach so nearly as to perplex the understanding. ... Yet the distinction exists, and must be marked as the cases arise. Till they do arise, it might be premature to state any rule as being universal in its application. It is sufficient for the present to say, generally, that when the importer has so acted upon the thing imported, that it has become incorporated and mixed up with the mass of property in the country, it has, perhaps, lost its distinctive character as an import, and has become subject to the taxing power of the State. . . Id., at 441-442. (Emphasis added.)
While Chief Justice Marshall did not undertake definitively to state just what acts or conduct of the importer would be deemed to have “so acted upon the thing imported” as to cause it to be “mixed up with the mass of property in the country [and to losé] its distinctive character as an import,” he did specify some of the acts that would so result. He held that the goods lose their character as imports when the importer (1) “sells them,” or (2) “[breaks] up his packages, and [travels] with them as an itinerant pedlar.” Id., at 443. More important to the question confronting us, he also held (3) that goods brought into this country by an importer “for his own use” and here “used” by him are to be regarded as a part of “the common mass” of property and are not immune from state taxation.
In Hooven & Allison Co. v. Evatt, 324 U. S. 652, it was held that goods imported for “use” share the same immunity as goods imported for “sale,” and that goods imported “for manufacture [do not] lose their character as imports any sooner or more readily than imports for sale” (id., at 667); but “when [the imported goods are] used for the purpose for which they are imported, they cease to be imports and their tax exemption is at an end.” Id., at 665.
Thus, though Brown v. Maryland, supra, holds that goods brought into the country by an importer “for his own use” are not exempted from state taxation by the Import-Export Clause, and Hooven & Allison Co. v. Evatt, supra, holds that they are, both agree that when the imported goods are “used for the purpose for which they are imported, they cease to be imports and their tax exemption is at an end.” Hooven & Allison Co. v. Evatt, supra, at 665. Compare Brown v. Maryland, supra, at 441-443.
Do the facts as stipulated and found in the cases before us, when considered in the light of applicable legal principles, show that these manufacturers have so acted upon the imported materials as to cause them to lose their distinctive character as “imports” by irrevocably committing them, after their importation journeys have definitely ended, to “use in manufacturing” at the plant and point of final destination, and by “entering” and “using” them “in manufacturing” at that place? The manufacturers, relying upon their understanding of the Hooven case, argue that they do not, but we have concluded that they do.
In Hooven the taxpayer had imported bales of hemp and other fibers which it stored in its warehouse at its factory in Ohio with the intention of eventually using them in the manufacture of cordage and similar products. Ohio sought to lay an ad valorem tax on the bales of fibers so stored in the taxpayer’s warehouse. The taxpayer contended that the bales of fibers were “imports” and thus immune from state taxation under the Import-Export Clause of the Constitution. The Supreme Court of Ohio “thought that Brown v. Maryland, supra, laid down a rule applicable only to imports for the purpose of sale, and that imports for use became, upon storage, even if still in the original package, so intermingled with the common mass of property within the State as to be subject to the State power of taxation” (324 U. S., at 656), and upon that ground upheld the tax. This Court, holding that the tax immunity applies to goods imported for “use” as well as for “sale,” that the bales of fibers would not lose their character as imports “until [they were] put to the use for which [they were] imported” (id., at 665), and that the fibers were not shown by the record in that case to have been “subjected to manufacture when they were placed in [the taxpayer’s] warehouse in their original packages” {id., at 667), reversed the judgment. But the record there did not present, and this ^Court did not reach or decide, the question we have here. Indeed, the Court expressly reserved it.. It said :
“[I]t is unnecessary to decide whether, for purposes of the constitutional immunity, the presence of some fibers in the factory was so essential to current manufacturing requirements that they could be said to have entered the process of manufacture, and hence were already put to the use for which they were imported, before they were removed from the original packages. Even though the inventory of raw material required to be kept on hand to meet the current operational needs of a manufacturing business could be thought to have then entered the manufacturing process, the decision of the Ohio Supreme Court did not rest on that ground, and the record affords no basis for saying that any part of petitioner’s fibers, stored in its warehouse, were required to meet such immediate current needs. Hence we have'no occasion to consider that question.” Id., at 667.
Unlike Hooven, these are not cases of the mere storage in a warehouse of imported materials intended for eventual use in manufacturing but not found to have been essential to current operational needs. Here the Ohio and Wisconsin courts have in effect held that the stipulated and found facts show that the imported materials that were taxed by those States were so essential to current manufacturing requirements that they must be said to have entered the process of manufacture, and those courts have rested their judgments, in major part at least, on that ground. Our question therefore is precisely the one which the Court did not reach or consider in the Hooven case.
We are therefore confronted with the practical, albeit vexing, problem of reconciling the competing demands of the constitutional immunity of imports and of the State’s power to tax property within its borders. The design of the constitutional immunity was to prevent “[t]he great importing States [from laying] a tax on the non-importing States,” to which the imported property is or might ultimately be destined, which would not only discriminate against them but also “would necessarily produce countervailing measures on the part of those States whose situation was less favourable to importation.” Brown v. Maryland, supra, at 440. See Madison, Debates in the Federal Convention of 1787, August 28, 1787 (Hunt & Scott ed.). And see, e. g., Cook v. Pennsylvania, 97 U. S. 566, 574; Richfield Oil Corp. v. State Board, 329 U. S. 69, 76-77. The constitutional design was then to immunize imports from taxation by the importing States, and all others through or into which they may pass, so long as they retain their distinctive character as imports. Hence, that design is not impinged by the taxation of materials that were imported for use in manufacturing after all phases of the importation definitely have ended and the materials have been “put to the use for which they [were] imported” (Hooven & Allison Co. v. Evatt, supra, at 657), for in such a case they have lost their distinctive character as imports and are subject to taxation. And inasmuch as “the reconciliation of the competing demands of the constitutional immunity and of the state’s power to tax, is an extremely practical matter” (Hooven & Allison Co. v. Evatt, supra, at 668), we must approach the question whether these materials had been “put to the use for which they [were] imported” (id., at 657) with full awareness of realities and treat with them in a practical way.
The stipulation in the Youngstown case shows that the imported ores were essential to the operation of Youngstown’s Ohio plant; that Youngstown had imported them “for use in manufacturing” and “to meet its estimated [manufacturing] requirements” at that plant; that the ores had arrived at their destination, had been placed in “piles” in the “ore yards” of that plant, and their importation journey definitely had ended; that the ores were irrevocably committed to “use in manufacturing” at that plant and point of final destination; and that the daily ore needs of the plant were conveyed from the “piles” in the “ore yards” to “stock bins” or “stock houses,” holding one or two days’ supply, from which they were fed into the furnaces. Does not the stipulation thus show that the ores were not only needed, imported, and irrevocably committed to supply, but were actually being used to supply, the daily requirements of the plant? It seems to us that these stipulated facts inescapably establish that Youngstown had “so acted upon the [imported ores]” (Brown v. Maryland, supra, at 441), by using them “for the purpose for which they [were] imported,” that they must be held “to have then entered the manufacturing process” (Hooven & Allison Co. v. Evatt, supra, at 665, 667) and to have lost their distinctive character as “imports” and all tax immunity as such.
Youngstown does not deny that so much of the ores as have been conveyed from the “piles” in the “ore yards” to the “stock bins” or “stock houses” have lost their distinctive character as imports.' Is there any real basis of distinction? The only possible differences are in the sizes of the piles and their distances from the furnaces. Surely the size of the pile is not material. Just as surely the short distance between the smaller piles in the “stock bins” or “stock houses” and the larger piles in the ore yards is not a real distinction. If the larger piles stood on higher ground adjoining the “stock bins” and “stock houses” so that the ores might feed by gravity from the former to the latter there would be no practical difference from the actual facts involved, but it could not be argued that the ores in the one are any less certainly being used in the processes of manufacture than the ores in the other. It seems entirely plain that the ores in the smaller piles in the “stock bins” and “stock houses” are no more definitely and irrevocably committed to use, or being used, at the plant than are the ores in the larger piles in the ore yards from which the smaller ones are constantly kept supplied. “ [R] econciliation of the competing demands of the constitutional immunity and of the state’s power to tax [being] an extremely practical matter” (Hooven & Allison Co. v. Evatt, supra, at 668), taxability cannot depend upon whether the size of the pile of stored materials or its distance from the place of actual fabrication or consumption is a little more or a little less.
In the United States Plywood Corporation case, two types of imported materials are involved — unfinished “green” lumber received “in bulk” and veneers received in “bundles.” The Assessor of the City of Algoma, believing that one-half of the lumber and veneers on hand on the taxing date was necessarily required to be kept on hand to meet the current operating needs of petitioner’s manufacturing plant, assessed an ad valorem tax upon the value of that one-half of the lumber and veneers. In the ensuing litigation, the Wisconsin courts found that the imported materials had been imported by petitioner “for use in manufacturing” at its Algoma plant, had arrived at that place and that their importation journeys definitely had ended; that the lumber and veneers that were taxed (one-half of the amounts on hand on the taxing date) had been irrevocably committed to “use in manufacturing” at that plant, were “necessarily required to be kept on hand to meet [its] current operational needs,” and were actually being “used” to supply those needs. These findings are amply supported by the evidence and are not contested here. We think they clearly show that the lumber and veneers that were taxed were not only needed, imported, and irrevocably committed to supply, but were actually being used to supply, the day-to-day manufacturing requirements of the plant. They thus establish that petitioner had “so acted upon the [imported materials]” (Brown v. Maryland, supra, at 441) that were taxed by using them “for the purpose for which they [were] imported,” that — like the ores in the Youngstown case — they must be held “to have then entered the manufacturing process” (Hooven & Allison Co. v. Evatt, supra, at 665, 667) and to have lost their distinctive character as “imports” and all tax immunity as such.
The fact that the veneers were received in “bundles” which were not opened until the veneers were put into the daily manufacturing operations of the plant is not controlling under the facts and findings here. Whatever may be the significance of retaining in the “original package” goods that have been so imported for sale (Brown v. Maryland, supra; Waring v. The Mayor, 8 Wall. 110, 122-123; Low v. Austin, 13 Wall. 29, 32-33; Cook v. Pennsylvania, 97 U. S. 566, 573; May v. New Orleans, 178 U. S. 496, 501, 507-508), goods that have been so imported for use in manufacturing are not exempt from taxation, though not removed from the “original package,” if, as found here, they have been “put to the use for which they [were] imported.” Hooven & Allison Co. v. Evatt, supra, at 657. Breaking the original package is only one of the ways by which packaged goods that have been imported for use in manufacturing may lose their distinctive character as imports. Another way is by putting them “to the use for which they [were] imported.” Id. That the package has not been broken is, therefore, only one of the several factors to be considered in factually determining whether the goods are being “used for the purpose for which they [were] imported.” Hooven & Allison Co. v. Evatt, supra, at 665. Here the fact that the bundles are not opened until the veneers are put into the day-to-day manufacturing operations of the plant was fully considered by the Wisconsin courts before they made the finding that the veneers that were taxed were “necessarily required to be kept on hand to meet [petitioner’s] current operational needs,” and were actually being “used” to supply those needs.
Because of the views expressed, it is unnecessary to reach or discuss the further finding and conclusion of the Wisconsin courts that when the “green” lumber was stacked by petitioner in the open in a particular way for the “dominant purpose” of air-drying it, the lumber “entered the process of manufacture,” and, for that reason also, lost its character as an import.
The materials here in question were imported to supply, and were essential to supply, the manufacturer’s current operating needs. When, after all phases of their importation had ended, they were put to that use and indiscriminate portions of the whole were actually being used to supply daily operating needs, they stood in the same relation to the State as like piles of domestic materials at the same place that were kept for use and used in the same way. The one was then as fully subject to taxation as the other. In those circumstances, the tax was not on “imports,” nor was it a tax on the materials because they had been imported, but because at the time of the assessment they were being used, in every practical sense, for the purposes for which they had been imported. They were therefore subject to taxation just like domestic property that was kept at the same place in the same way for the same use. We cannot impute to the Framers of the Constitution a purpose to make such a discrimination in favor of materials imported from other countries as would result if we approved the views pressed upon us by the manufacturers. Compare May v. New Orleans, 178 U. S., at 509.
Youngstown also challenged a portion of the tax on the ground that its domestic ores stored on public docks on the shore of Lake Erie in Ohio were “merchandise . . . held in a storage warehouse for storage only” within the meaning of § 5701.08 (A), and that, because the section exempted nonresidents but taxed residents on stocks of merchandise so held, it denied to Youngstown, a resident of Ohio, the equal protection of the laws in violation of the Fourteenth Amendment of the Constitution. The Supreme Court of Ohio answered that contention by saying: “For the reasons stated in Allied Stores of Ohio, Inc., v. Bowers, Tax Commr., ante [166 Ohio St.], 116, the taxpayer’s contentions [in that respect] must be rejected . . . .” Youngstown Sheet & Tube Co. v. Bowers, 166 Ohio St. 122, 124, 140 N. E. 2d 313, 316. We have today affirmed the judgment of the Supreme Court of Ohio in Allied Stores of Ohio, Inc., v. Bowers, Tax Comm’r, ante, p. 522, and for the reasons stated in our opinion in that case we hold that § 5701.08 (A) and the questioned tax laid thereunder did not violate the Equal Protection Clause of the Fourteenth Amendment.
It follows that the judgment in each case must be
Affirmed.
Mr. Justice Stewart took no part in the consideration or decision of these cases.
Article I, § 10, cl. 2 of the United States Constitution, in pertinent part, provides: “No State shall, without the Consent qf the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws. . . .”
Exhibits in the record, though not giving measurements, indicate that the nearest ore yard is located within two or three hundred feet, and the most distant one is located within two or three hundred yards, of the furnaces.
Title 57, Page’s Ohio Rev. Code Ann., 1953, § 5709.01.
Title 57, Page’s Ohio Rev. Code Ann., 1953, § 5701.08 (A).
The Ohio taxing date is January 1, Title 57, Page’s Ohio Rev. Code Ann., 1953, § 5711.03. But personal property held by a manufacturer for use in manufacturing is valued for tax purposes “by taking the value of all [such] property . . . owned by such manufacturer on the last business day of each month [that] the manufacturer was engaged in business during the year, adding the monthly values together, and dividing the result by the number of months the manufacturer was engaged in such business during the year.” Title 57, Page’s Ohio Rev. Code Ann., 1953, § 5711.16.
Chief Justice Taney, while still at the bar, had argued that case for the State of Maryland. After coming to this Court, he had occasion to say that the theory of that holding was that while the imported articles “are in the hands of the importer for sale . . . they may be regarded as merely in transitu, and on their way to the distant cities, villages and country for which they are destined, and where they are expected to be used and consumed, and for the supply of which they were in truth imported.” License Cases, 5 How. 504, 575.
The Court said that when the imported goods are sold “the tax intercepts the import, as an import, in its way to become incorporated with the general mass of property, and denies it the privilege of becoming so incorporated until it shall have contributed to the revenue of the State.” 12 Wheat., at 443. That imported goods lose their character as “imports” upon being sold is well-settled. License Cases, 5 How. 504, 575; Waring v. The Mayor, 8 Wall. 110; Low v. Austin, 13 Wall. 29; May v. New Orleans, 178 U. S. 496.
Counsel for Maryland had argued that to permit state tax immunity in that case would result in granting immunity to “an importer who may bring in goods, as plate, for his own use, and thus retain much valuable property exempt from taxation.” In reply to that argument, Marshall rejected the assumption that the principles then announced would grant state tax exemptions to imports that were being used or held for use by the importer. In such a case, as in a case where the importer “[breaks] up his packages, and [travels] with them as an itinerant pedlar,” he said “[T]he tax finds the article already incorporated with the mass of property by the act of the importer. He has used the privilege [i. e., of importation and sale] he had purchased, and has himself mixed them up with the common mass, and the law may treat them as it finds them. The same observations apply to plate, or other furniture used by the importer.” 12 Wheat., at 443. (Emphasis added.)
As earlier stated (Note 3), §5709.01 provides in pertinent part, “All personal property located and used in business in this state [shall be] subject to taxation . . . .” (Title 57, Page’s Ohio Rev. Code Ann., 1953, § 5709.01), and § 5701.08 (A), at the time in question, provided, in pertinent part, that:
“As used in Title LVII of the Revised Code:
“(A) Personal property is ‘used’ within the meaning of ‘used in business’. . . when stored or kept on hand as material, parts, products, or merchandise; but merchandise or agricultural products belonging to a nonresident of this state is not used in business in this state if held in a storage warehouse for storage only. . . .” Title 57, Page’s Ohio Rev. Code Ann., 1953, § 5701.08 (A). | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
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] | [
116
] | sc_adminaction |
TRIPLETT v. IOWA.
No. 547.
Argued May 21, 1958.
Decided June 16, 1958.
Thomas 0. Tacy argued the cause for petitioner. With him on the brief was Herbert S. French.
Freeman H. Forrest, Assistant Attorney General of Iowa, argued the cause for respondent. With him on the brief was Norman A. Erbe, Attorney General.
Per Curiam.
The writ of certiorari is dismissed as improvidently granted. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. | Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case? | [
"Yes",
"No"
] | [
1
] | sc_partywinning |
US AIRWAYS, INC., in its capacity as fiduciary and plan administrator of the US Airways, Inc. Employee Benefits Plan, Petitioner
v.
James E. McCUTCHEN et al.
No. 11-1285.
Supreme Court of the United States
Argued Nov. 27, 2012.
Decided April 16, 2013.
Neal Kumar Katyal, argued, Washington, DC, for Petitioner.
Joseph R. Palmore, for the United States as amicus curiae, by special leave of the Court, supporting neither party.
Matthew W.H. Wessler, Washington, DC, for Respondents.
Noah G. Lipschultz, Littler Mendelson, P.C., Minneapolis, MN, Susan Katz Hoffman, Littler Mendelson, P.C., Philadelphia, PA, Neal Kumar Katyal, Counsel of Record, Catherine E. Stetson, Dominic F. Perella, Mary Helen Wimberly, Sean Marotta, Hogan Lovells US LLP, Washington, DC, for Petitioner.
Leslie A. Brueckner, Arthur H. Bryant, Public Justice, P.C., Oakland, CA, Peter K. Stris, Brendan S. Maher, Stris & Maher LLP, Dallas, TX, Matthew W.H. Wessler, Counsel of Record, Leah M. Nicholls, Public Justice, P.C., Washington, DC, Jon R. Perry, Paul A. Hilko, Rosen Louik & Perry, P.C., Pittsburgh, PA, for Respondents.
Justice KAGAN delivered the opinion of the Court.
Respondent James McCutchen participated in a health benefits plan that his employer, petitioner U.S. Airways, established under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq. That plan obliged U.S. Airways to pay any medical expenses McCutchen incurred as a result of a third party's actions-for example, another person's negligent driving. The plan in turn entitled U.S. Airways to reimbursement if McCutchen later recovered money from the third party.
This Court has held that a health-plan administrator like U.S. Airways may enforce such a reimbursement provision by filing suit under § 502(a)(3) of ERISA, 88 Stat. 891, 29 U.S.C. § 1132(a)(3). See Sereboff v. Mid Atlantic Medical Services, Inc., 547 U.S. 356, 126 S.Ct. 1869, 164 L.Ed.2d 612 (2006). That section authorizes a civil action "to obtain ... appropriate equitable relief ... to enforce ... the terms of the plan." We here consider whether in that kind of suit, a plan participant like McCutchen may raise certain equitable defenses deriving from principles of unjust enrichment. In particular, we address one equitable doctrine limiting reimbursement to the amount of an insured's "double recovery" and another requiring the party seeking reimbursement to pay a share of the attorney's fees incurred in securing funds from the third party. We hold that neither of those equitable rules can override the clear terms of a plan. But we explain that the latter, usually called the common-fund doctrine, plays a role in interpreting U.S. Airways' plan because the plan is silent about allocating the costs of recovery.
I
In January 2007, McCutchen suffered serious injuries when another driver lost control of her car and collided with McCutchen's. At the time, McCutchen was an employee of U.S. Airways and a participant in its self-funded health plan. The plan paid $66,866 in medical expenses arising from the accident on McCutchen's behalf.
McCutchen retained attorneys, in exchange for a 40% contingency fee, to seek recovery of all his accident-related damages, estimated to exceed $1 million. The attorneys sued the driver responsible for the crash, but settled for only $10,000 because she had limited insurance coverage and the accident had killed or seriously injured three other people. Counsel also secured a payment from McCutchen's own automobile insurer of $100,000, the maximum amount available under his policy. McCutchen thus received $110,000-and after deducting $44,000 for the lawyer's fee, $66,000.
On learning of McCutchen's recovery, U.S. Airways demanded reimbursement of the $66,866 it had paid in medical expenses. In support of that claim, U.S. Airways relied on the following statement in its summary plan description:
"If [US Airways] pays benefits for any claim you incur as the result of negligence, willful misconduct, or other actions of a third party, ... [y]ou will be required to reimburse [US Airways] for amounts paid for claims out of any monies recovered from [the] third party, including, but not limited to, your own insurance company as the result of judgment, settlement, or otherwise." App. 20.
McCutchen denied that U.S. Airways was entitled to any reimbursement, but his attorneys placed $41,500 in an escrow account pending resolution of the dispute. That amount represented U.S. Airways' full claim minus a proportionate share of the promised attorney's fees.
US Airways then filed this action under § 502(a)(3), seeking "appropriate equitable relief" to enforce the plan's reimbursement provision. The suit requested an equitable lien on $66,866-the $41,500 in the escrow account and $25,366 more in McCutchen's possession. McCutchen countered by raising two defenses relevant here. First, he maintained that U.S. Airways could not receive the relief it sought because he had recovered only a small portion of his total damages; absent over-recovery on his part, U.S. Airways' right to reimbursement did not kick in. Second, he contended that U.S. Airways at least had to contribute its fair share to the costs he incurred to get his recovery; any reimbursement therefore had to be marked down by 40%, to cover the promised contingency fee. The District Court rejected both arguments, granting summary judgment to U.S. Airways on the ground that the plan "clear[ly] and unambiguous[ly]" provided for full reimbursement of the medical expenses paid. App. to Pet. for Cert. 30a; see id., at 32a.
The Court of Appeals for the Third Circuit vacated the District Court's order. The Third Circuit reasoned that in a suit for "appropriate equitable relief" under § 502(a)(3), a court must apply any "equitable doctrines and defenses" that traditionally limited the relief requested. 663 F.3d 671, 676 (C.A.3 2011). And here, the court continued, " 'the principle of unjust enrichment' " should " 'serve to limit the effectiveness' " of the plan's reimbursement provision. See id., at 677 (quoting 4 G. Palmer, Law of Restitution § 23.18, p. 472-473 (1978)). Full reimbursement, the Third Circuit thought, would "leav[e] [McCutchen] with less than full payment" for his medical bills; at the same time, it would provide a "windfall" to U.S. Airways given its failure to "contribute to the cost of obtaining the third-party recovery." 663 F.3d, at 679. The Third Circuit then instructed the District Court to determine what amount, shy of the entire $66,866, would qualify as "appropriate equitable relief." Ibid.
We granted certiorari, 567 U.S. ----, 133 S.Ct. 36, 183 L.Ed.2d 674 (2012), to resolve a circuit split on whether equitable defenses can so override an ERISA plan's reimbursement provision. We now vacate the Third Circuit's decision.
II
A health-plan administrator like U.S. Airways may bring suit under § 502(a)(3) for "appropriate equitable relief ... to enforce ... the terms of the plan." That provision, we have held, authorizes the kinds of relief "typically available in equity" in the days of "the divided bench," before law and equity merged. Mertens v. Hewitt Associates, 508 U.S. 248, 256, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993) (emphasis deleted).
In Sereboff v. Mid Atlantic Medical Services, we allowed a health-plan administrator to bring a suit just like this one under § 502(a)(3). Mid Atlantic had paid medical expenses for the Sereboffs after they were injured in a car crash. When they settled a tort suit against the other driver, Mid Atlantic claimed a share of the proceeds, invoking the plan's reimbursement clause. We held that Mid Atlantic's action sought "equitable relief," as § 502(a)(3) requires. See 547 U.S., at 369, 126 S.Ct. 1869. The "nature of the recovery" requested was equitable because Mid Atlantic claimed "specifically identifiable funds" within the Sereboffs' control-that is, a portion of the settlement they had gotten. Id., at 362-363, 126 S.Ct. 1869 (internal quotation marks omitted). And the "basis for [the] claim" was equitable too, because Mid Atlantic relied on " 'the familiar rul[e] of equity that a contract to convey a specific object' " not yet acquired " 'create[s] a lien' " on that object as soon as " 'the contractor ... gets a title to the thing.' " Id., at 363-364, 126 S.Ct. 1869 (quoting Barnes v. Alexander, 232 U.S. 117, 121, 34 S.Ct. 276, 58 L.Ed. 530 (1914) ). Mid Atlantic's claim for reimbursement, we determined, was the modern-day equivalent of an action in equity to enforce such a contract-based lien-called an "equitable lien by agreement." 547 U.S., at 364-365, 126 S.Ct. 1869 (internal quotation marks omitted). Accordingly, Mid Atlantic could bring an action under § 502(a)(3) seeking the funds that its beneficiaries had promised to turn over. And here, as all parties agree, U.S. Airways can do the same thing.
The question in this case concerns the role that equitable defenses alleging unjust enrichment can play in such a suit. As earlier noted, the Third Circuit held that "the principle of unjust enrichment" overrides U.S. Airways' reimbursement clause if and when they come into conflict. 663 F.3d, at 677. McCutchen offers a more refined version of that view, alleging that two specific equitable doctrines meant to "prevent unjust enrichment" defeat the reimbursement provision . Brief for Respondents i. First, he contends that in equity, an insurer in U.S. Airways' position could recoup no more than an insured's "double recovery"-the amount the insured has received from a third party to compensate for the same loss the insurance covered. That rule would limit U.S. Airways' reimbursement to the share of McCutchen's settlements paying for medical expenses; McCutchen would keep the rest (e.g., damages for loss of future earnings or pain and suffering), even though the plan gives U.S. Airways first claim on the whole third-party recovery. Second, McCutchen claims that in equity the common-fund doctrine would have operated to reduce any award to U.S. Airways. Under that rule, "a litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney's fee from the fund as a whole." Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 100 S.Ct. 745, 62 L.Ed.2d 676 (1980). McCutchen urges that this doctrine, which is designed to prevent freeloading, enables him to pass on a share of his lawyer's fees to U.S. Airways, no matter what the plan provides.
We rejected a similar claim in Sereboff, though without altogether foreclosing McCutchen's position. The Sereboffs argued, among other things, that the lower courts erred in enforcing Mid Atlantic's reimbursement clause "without imposing various limitations" that would " apply to truly equitable relief grounded in principles of subrogation." 547 U.S., at 368, 126 S.Ct. 1869 (internal quotation marks omitted). In particular, the Sereboffs contended that a variant of the double-recovery rule, called the make-whole doctrine, trumped the plan's terms. We rebuffed that argument, explaining that the Sereboffs were improperly mixing and matching rules from different equitable boxes. The Sereboffs asserted a " parcel of equitable defenses" available when an out-of-pocket insurer brought a "freestanding action for equitable subrogation," not founded on a contract, to succeed to an insured's judgment against a third party. Ibid. But Mid Atlantic's reimbursement claim was "considered equitable," we replied, because it sought to enforce a "lien based on agreement"-not a lien imposed independent of contract by virtue of equitable subrogation. Ibid. (internal quotation marks omitted). In light of that fact, we viewed the Sereboffs' equitable defenses-which again, closely resemble McCutchen's-as "beside the point." Ibid. And yet, we left a narrow opening for future litigants in the Sereboffs' position to make a like claim. In a footnote, we observed that the Sereboffs had forfeited a "distinct assertion" that the contract-based relief Mid Atlantic requested, although "equitable," was not "appropriate" under § 502(a)(3) because "it contravened principles like the make-whole doctrine." Id., at 368-369 n. 2, 126 S.Ct. 1869. Enter McCutchen, to make that basic argument.
In the end, however, Sereboff 's logic dooms McCutchen's effort. US Airways, like Mid Atlantic, is seeking to enforce the modern-day equivalent of an "equitable lien by agreement." And that kind of lien-as its name announces-both arises from and serves to carry out a contract's provisions. See id., at 363-364, 126 S.Ct. 1869; 4 S. Symons, Pomeroy's Equity Jurisprudence § 1234, p. 695 (5th ed.1941). So enforcing the lien means holding the parties to their mutual promises. See, e.g., Barnes, 232 U.S., at 121, 34 S.Ct. 276; Walker v. Brown, 165 U.S. 654, 664, 17 S.Ct. 453, 41 L.Ed. 865 (1897). Conversely, it means declining to apply rules-even if they would be "equitable" in a contract's absence-at odds with the parties' expressed commitments. McCutchen therefore cannot rely on theories of unjust enrichment to defeat U.S. Airways' appeal to the plan's clear terms. Those principles, as we said in Sereboff, are "beside the point" when parties demand what they bargained for in a valid agreement. See Restatement (Third) of Restitution and Unjust Enrichment § 2(2), p. 15 (2010) ("A valid contract defines the obligations of the parties as to matters within its scope, displacing to that extent any inquiry into unjust enrichment"). In those circumstances, hewing to the parties' exchange yields "appropriate" as well as "equitable" relief.
We have found nothing to the contrary in the historic practice of equity courts. McCutchen offers us a slew of cases in which those courts applied the double-recovery or common-fund rule to limit insurers' efforts to recoup funds from their beneficiaries' tort judgments. See Brief for Respondents 21-25. But his citations are not on point. In some of McCutchen's cases, courts apparently applied equitable doctrines in the absence of any relevant contract provision. See , e.g., Washtenaw Mut. Fire Ins. Co. v. Budd, 208 Mich. 483, 486-487, 175 N.W. 231, 232 (1919) ; Fire Assn. of Philadelphia v. Wells, 84 N.J.Eq. 484, 487, 94 A. 619, 621 (1915). In others, courts found those rules to comport with the applicable contract term. For example, in Svea Assurance Co. v. Packham, 92 Md. 464, 48 A. 359 (1901) -the case McCutchen calls his best, see Tr. of Oral Arg. 47-48-the court viewed the double-recovery rule as according with "the intention" of the contracting parties; "[b]road as [the] language is," the court explained, the agreement "cannot be construed to" give the insurer any greater recovery. 92 Md., at 478, 48 A., at 362; see also Knaffl v. Knoxville Banking & Trust Co., 133 Tenn. 655, 661, 182 S.W. 232, 233 (1916) ; Camden Fire Ins. Assn. v. Prezioso, 93 N.J.Eq. 318, 319-320, 116 A. 694, 694 (Ch.Div.1922). But in none of these cases-nor in any other we can find-did an equity court apply the double-recovery or common-fund rule to override a plain contract term. That is, in none did an equity court do what McCutchen asks of us.
Nevertheless, the United States, appearing as amicus curiae, claims that the common-fund rule has a special capacity to trump a conflicting contract. The Government begins its brief foursquare with our (and Sereboff 's) analysis: In a suit like this one, to enforce an equitable lien by agreement, "the agreement, not general restitutionary principles of unjust enrichment, provides the measure of relief due." Brief for United States 6. Because that is so, the Government (naturally enough) concludes, McCutchen cannot invoke the double-recovery rule to defeat the plan. But then the Government takes an unexpected turn. "When it comes to the costs incurred" by a beneficiary to obtain money from a third party, "the terms of the plan do not control." Id., at 21. An equity court, the Government contends, has "inherent authority" to apportion litigation costs in accord with the "longstanding equitable common-fund doctrine," even if that conflicts with the parties' contract. Id., at 22.
But if the agreement governs, the agreement governs: The reasons we have given (and the Government mostly accepts)
for looking to the contract's terms do not permit an attorney's-fees exception. We have no doubt that the common-fund doctrine has deep roots in equity. See Sprague v. Ticonic Nat. Bank, 307 U.S. 161, 164, 59 S.Ct. 777, 83 L.Ed. 1184 (1939) (tracing equity courts' authority over fees to the First Judiciary Act). Those roots, however, are set in the soil of unjust enrichment: To allow "others to obtain full benefit from the plaintiff's efforts without contributing ... to the litigation expenses," we have often noted, "would be to enrich the others unjustly at the plaintiff's expense." Mills v. Electric Auto-Lite Co., 396 U.S. 375, 392, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970) ; see Boeing, 444 U.S., at 478, 100 S.Ct. 745; Trustees v. Greenough, 105 U.S. 527, 532, 26 L.Ed. 1157 (1882) ; supra, at 1545 - 1546 and n. 4. And as we have just explained, principles of unjust enrichment give way when a court enforces an equitable lien by agreement. See supra, at 1546 - 1547. The agreement itself becomes the measure of the parties' equities; so if a contract abrogates the common-fund doctrine, the insurer is not unjustly enriched by claiming the benefit of its bargain. That is why the Government, like McCutchen, fails to produce a single case in which an equity court applied the common-fund rule (any more than the double-recovery rule) when a contract provided to the contrary. Even in equity, when a party sought to enforce a lien by agreement, all provisions of that agreement controlled. So too, then, in a suit like this one.
The result we reach, based on the historical analysis our prior cases prescribe, fits lock and key with ERISA's focus on what a plan provides. The section under which this suit is brought "does not, after all, authorize 'appropriate equitable relief' at large, " Mertens, 508 U.S., at 253, 113 S.Ct. 2063 (quoting § 1132(a)(3) ); rather, it countenances only such relief as will enforce "the terms of the plan " or the statute, § 1132(a)(3) (emphasis added). That limitation reflects ERISA's principal function: to "protect contractually defined benefits." Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 148, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985). The statutory scheme, we have often noted, "is built around reliance on the face of written plan documents." Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 83, 115 S.Ct. 1223, 131 L.Ed.2d 94 (1995). "Every employee benefit plan shall be established and maintained pursuant to a written instrument," § 1102(a)(1), and an administrator must act "in accordance with the documents and instruments governing the plan" insofar as they accord with the statute, § 1104(a)(1)(D). The plan, in short, is at the center of ERISA. And precluding McCutchen's equitable defenses from overriding plain contract terms helps it to remain there.
III
Yet McCutchen's arguments are not all for naught. If the equitable rules he describes cannot trump a reimbursement provision, they still might aid in properly construing it. And for U.S. Airways' plan, the common-fund doctrine (though not the double-recovery rule) serves that function. The plan is silent on the allocation of attorney's fees, and in those circumstances, the common-fund doctrine provides the appropriate default. In other words, if U.S. Airways wished to depart from the well-established common-fund rule, it had to draft its contract to say so-and here it did not.
Ordinary principles of contract interpretation point toward this conclusion.
Courts construe ERISA plans, as they do other contracts, by "looking to the terms of the plan" as well as to "other manifestations of the parties' intent." Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 113, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). The words of a plan may speak clearly, but they may also leave gaps. And so a court must often "look outside the plan's written language" to decide what an agreement means. CIGNA Corp. v. Amara, 563 U.S. ----, ----, 131 S.Ct. 1866, 1877, 179 L.Ed.2d 843; see Curtiss-Wright, 514 U.S., at 80-81, 115 S.Ct. 1223. In undertaking that task, a court properly takes account of background legal rules-the doctrines that typically or traditionally have governed a given situation when no agreement states otherwise. See Wal-Mart Stores, Inc. Assoc. Health & Welfare Plan v. Wells, 213 F.3d 398, 402 (C.A.7 2000) (Posner, J.) ("[C]ontracts ... are enacted against a background of common-sense understandings and legal principles that the parties may not have bothered to incorporate expressly but that operate as default rules to govern in the absence of a clear expression of the parties' [contrary] intent"); 11 R. Lord, Williston on Contracts § 31:7 (4th ed.2012) ; Restatement (Second) of Contracts § 221 (1979). Indeed, ignoring those rules is likely to frustrate the parties' intent and produce perverse consequences.
The reimbursement provision at issue here precludes looking to the double-recovery rule in this manner. Both the contract term and the equitable principle address the same problem: how to apportion, as between an insurer and a beneficiary, a third party's payment to recompense an injury. But the allocation formulas they prescribe differ markedly.
According to the plan, U.S. Airways has first claim on the entire recovery-as the plan description states, on "any monies recovered from [the] third party"; McCutchen receives only whatever is left over (if anything). See supra, at 1543. By contrast, the double-recovery rule would give McCutchen first dibs on the portion of the recovery compensating for losses that the plan did not cover (e.g., future earnings or pain and suffering); US Airways' claim would attach only to the share of the recovery for medical expenses. See supra, at 1545 - 1546. The express contract term, in short, contradicts the background equitable rule; and where that is so, for all the reasons we have given, the agreement must govern.
By contrast, the plan provision here leaves space for the common-fund rule to operate. That equitable doctrine, as earlier noted, addresses not how to allocate a third-party recovery, but instead how to pay for the costs of obtaining it. See supra, at 1546. And the contract, for its part, says nothing specific about that issue. The District Court below thus erred when it found that the plan clearly repudiated the common-fund rule. See supra, at 1544. To be sure, the plan's allocation formula-first claim on the recovery goes to U.S. Airways-might operate on every dollar received from a third party, even those covering the beneficiary's litigation costs. But alternatively, that formula could apply to only the true recovery, after the costs of obtaining it are deducted. (Consider, for comparative purposes, how an income tax is levied on net, not gross, receipts.) See Dawson, Lawyers and Involuntary Clients: Attorney Fees From Funds, 87 Harv. L.Rev. 1597, 1606-1607 (1974) ("[T]he claim for legal services is a first charge on the fund and must be satisfied before any distribution occurs"). The plan's terms fail to select between these two alternatives: whether the recovery to which U.S. Airways has first claim is every cent the third party paid or, instead, the money the beneficiary took away. Given that contractual gap, the common-fund doctrine provides the best indication of the parties' intent. No one can doubt that the common-fund rule would govern here in the absence of a contrary agreement. This Court has "recognized consistently" that someone "who recovers a common fund for the benefit of persons other than himself" is due "a reasonable attorney's fee from the fund as whole." Boeing Co., 444 U.S., at 478, 100 S.Ct. 745. We have understood that rule as "reflect[ing] the traditional practice in courts of equity." Ibid. ; see Sprague, 307 U.S., at 164-166, 59 S.Ct. 777;supra, at 1548. And we have applied it in a wide range of circumstances as part of our inherent authority. See Boeing Co., 444 U.S., at 474, 478, 100 S.Ct. 745; Hall v. Cole, 412 U.S. 1, 6-7 and n. 7, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973) ; Mills, 396 U.S., at 389-390, 392, 90 S.Ct. 616; Sprague, 307 U.S., at 166, 59 S.Ct. 777; Central Railroad & Banking Co. of Ga. v. Pettus, 113 U.S. 116, 126-127, 5 S.Ct. 387, 28 L.Ed. 915 (1885) ; Greenough, 105 U.S., at 528, 531-533. State courts have done the same; the "overwhelming majority" routinely use the common-fund rule to allocate the costs of third-party recoveries between insurers and beneficiaries. 8A Appleman § 4903.85, at 335 (1981); see Annot., 2 A.L.R.3d 1441, §§ 2-3 (1965 and Supp.2012). A party would not typically expect or intend a plan saying nothing about attorney's fees to abrogate so strong and uniform a background rule. And that means a court should be loath to read such a plan in that way. The rationale for the common-fund rule reinforces that conclusion. Third-party recoveries do not often come free: To get one, an insured must incur lawyer's fees and expenses. Without cost sharing, the insurer free rides on its beneficiary's efforts-taking the fruits while contributing nothing to the labor. Odder still, in some cases-indeed, in this case-the beneficiary is made worse off by pursuing a third party. Recall that McCutchen spent $44,000 (representing a 40% contingency fee) to get $110,000, leaving him with a real recovery of $66,000. But U.S. Airways claimed $66,866 in medical expenses. That would put McCutchen $866 in the hole; in effect, he would pay for the privilege of serving as U.S. Airways' collection agent. We think McCutchen would not have foreseen that result when he signed on to the plan. And we doubt if even U.S. Airways should want it. When the next McCutchen comes along, he is not likely to relieve U.S. Airways of the costs of recovery. See Blackburn v. Sundstrand Corp., 115 F.3d 493, 496 (C.A.7 1997) (Easterbrook, J.) ("[I]f ... injured persons could not charge legal costs against recoveries, people like [McCutchen] would in the future have every reason" to make different judgments about bringing suit, "throwing on plans the burden and expense of collection"). The prospect of generating those strange results again militates against reading a general reimbursement provision-like the one here-for more than it is worth. Only if U.S. Airways' plan expressly addressed the costs of recovery would it alter the common-fund doctrine.
IV
Our holding today has two parts, one favoring U.S. Airways, the other McCutchen. First, in an action brought under § 502(a)(3) based on an equitable lien by agreement, the terms of the ERISA plan govern. Neither general principles of unjust enrichment nor specific doctrines reflecting those principles-such as the double-recovery or common-fund rules-can override the applicable contract. We therefore reject the Third Circuit's decision. But second, the common-fund rule informs interpretation of U.S. Airways' reimbursement provision. Because that term does not advert to the costs of recovery, it is properly read to retain the common-fund doctrine. We therefore also disagree with the District Court's decision. In light of these rulings, we vacate the judgment below and remand the case for further proceedings consistent with this opinion.
It is so ordered.
Justice SCALIA, with whom THE CHIEF JUSTICE, Justice THOMAS, and Justice ALITO join, dissenting.
I agree with Parts I and II of the Court's opinion, which conclude that equity cannot override the plain terms of the contract.
The Court goes on in Parts III and IV, however, to hold that the terms are not plain and to apply the "common-fund" doctrine to fill that "contractual gap," ante, at 1549. The problem with this is that we granted certiorari on a question that presumed the contract's terms were unambiguous-namely, "where the plan's terms give it an absolute right to full reimbursement." Pet. for Cert. i. Respondents interpreted "full reimbursement" to mean what it plainly says-reimbursement of all the funds the Plan had expended. In their brief in opposition to the petition they conceded that, under the contract, "a beneficiary is required to reimburse the Plan for any amounts it has paid out of any monies the beneficiary recovers from a third-party, without any contribution to attorney's fees and expenses ." Brief in Opposition 5 (emphasis added). All the parties, as well as the Solicitor General, have treated that concession as valid. See Brief for Petitioner 18, and n. 6; Brief for Respondents 29; Brief for United States as Amicus Curiae 21. The Court thus has no business deploying against petitioner an argument that was neither preserved, see Baldwin v. Reese, 541 U.S. 27, 34, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004), nor fairly included within the question presented, see Yee v. Escondido, 503 U.S. 519, 535, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992).
I would reverse the judgment of the Third Circuit.
We have made clear that the statements in a summary plan description "communicat[e] with beneficiaries about the plan, but ... do not themselves constitute the terms of the plan." CIGNA Corp. v. Amara, 563 U.S. ----, ----, 131 S.Ct. 1866, 1878, 179 L.Ed.2d 843 (2011). Nonetheless, the parties litigated this case, and both lower courts decided it, based solely on the language quoted above. See 663 F.3d 671, 673 (C.A.3 2011) ; App. to Pet. for Cert. 26a. Only in this Court, in response to a request from the Solicitor General, did the plan itself come to light. See Letter from Matthew W.H. Wessler to William K. Suter, Clerk of Court (Nov. 19, 2012) (available in Clerk of Court's case file). That is too late to affect what happens here: Because everyone in this case has treated the language from the summary description as though it came from the plan, we do so as well.
Compare 663 F.3d 671, 673 (C.A.3 2011) (case below) (holding that equitable doctrines can trump a plan's terms); CGI Technologies & Solutions Inc. v. Rose, 683 F.3d 1113, 1124 (C.A.9 2012) (same), with Zurich Am. Ins. Co. v. O'Hara, 604 F.3d 1232, 1237 (C.A.11 2010) (holding that they cannot do so); Administrative Comm. of Wal-Mart Stores, Inc. v. Shank, 500 F.3d 834, 838 (C.A.8 2007) (same); Moore v. CapitalCare, Inc., 461 F.3d 1, 9-10 and n. 10 (C.A.D.C.2006) (same); Bombardier Aerospace Employee Welfare Benefits Plan v. Ferrer, Poirot, & Wansbrough, 354 F.3d 348, 362 (C.A.5 2003) (same); Administrative Comm. of Wal-Mart Stores, Inc. v. Varco, 338 F.3d 680, 692 (C.A.7 2003) (same).
Sans ellipses, § 502(a)(3) provides that a plan administrator may bring a civil action "(A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan." 29 U.S.C. § 1132(a)(3).
Both our prior cases and secondary sources confirm McCutchen's characterization of the common-fund and double-recovery rules as deriving primarily from principles of unjust enrichment. See Boeing, 444 U.S., at 478, 100 S.Ct. 745 ("The [common-fund] doctrine rests on the perception that persons who obtain the benefit of a lawsuit without contributing to its cost are unjustly enriched"); Mills v. Electric Auto-Lite Co., 396 U.S. 375, 392, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970) (similar); 1 D. Dobbs, Law of Remedies § 3.10(2), p. 395 (2d ed.1993) (hereinafter Dobbs) (similar); 4 G. Palmer, Law of Restitution § 23.16(b), p. 444 ("[T]he injured person is unjustly enriched" only when he has received "in excess of full compensation" from two sources "for the same loss"); 16 G. Couch, Cyclopedia of Insurance Law § 61:18 (2d ed.1983) (similar); 8B J. Appleman & J. Appleman, Insurance Law and Practice § 4941, p. 11 (Cum.Supp.2012) (hereinafter Appleman) (similar).
"Subrogation simply means substitution of one person for another; that is, one person is allowed to stand in the shoes of another and assert that person's rights against" a third party. 1 Dobbs § 4.3(4), at 604; see 8B Appleman § 4941, at 11 (" 'Subrogation' involves the substitution of the insurer ... to the rights of the insured").
The Sereboff Court's analysis concerned only subrogation actions based on equitable principles independent of any agreement. A subrogation action may also be founded on a contract incorporating those principles. See 1 Dobbs § 4.3(4), at 604. US Airways suggested at oral argument that McCutchen's case would "ge[t] a lot stronger" if the plan here spoke only of subrogation, without separately granting a right of reimbursement. Tr. of Oral Arg. 18. We need not consider that question because U.S. Airways seeks to enforce a reimbursement provision, of the same kind we considered in Sereboff .
The dissent faults us for addressing this issue, but we think it adequately preserved and presented. The language the dissent highlights in McCutchen's brief in opposition, indicating that the plan clearly abrogates the common-fund doctrine, comes from his description of US Airways' claim in the District Court. See post, at 1551 (opinion of SCALIA, J.); Brief in Opposition 5. McCutchen's argument in that court urged the very position we adopt-that the common-fund doctrine applies because the plan is silent. See App. to Pet. for Cert. 30a; Defendants' Memorandum in Opposition to Plaintiff's Motion for Summary Judgment in No. 2:08-cv-1593 (WD Pa., Dec. 4, 2011), Doc. 33, pp. 12-13 ("If [US Airways] wanted to exclude a deduction for attorney fees, it easily could have so expressed"). To be sure, McCutchen shifted ground on appeal because the District Court ruled that Third Circuit precedent foreclosed his contract-based argument, see App. to Pet. for Cert. 31a; the Court of Appeals' decision then put front-and-center his alternative contention that the common-fund rule trumps a contract. But both claims have the same basis (the nature and function of the common-fund doctrine), which the parties have disputed throughout this litigation. And similarly, the question we decide here is included in the question presented. The principal clause of that question asks whether a court may use "equitable principles to rewrite contractual language." Pet. for Cert. i. We answer "not rewrite, but inform"-a reply well within the question's scope.
For that reason, almost every state court that has confronted the issue has done what we do here: apply the common-fund doctrine in the face of a contract giving an insurer a general right to recoup funds from an insured's third-party recovery, without specifically addressing attorney's fees. See, e.g., Ex parte State Farm Mut. Auto. Ins. Co., 105 So.3d 1199, 1212 and n. 6 (Ala.2012); York Ins. Group of Me. v. Van Hall, 1997 ME 230, ¶ 8, 704 A.2d 366, 369;Barreca v. Cobb, 95-1651, pp. 2-3, 5 and n. 5 (La. 2/28/96), 668 So.2d 1129, 1131-1132 and n. 5;Federal Kemper Ins. Co. v. Arnold, 183 W.Va. 31, 33-34, 393 S.E.2d 669, 671-672 (1990) ; State Farm Mut. Auto. Ins. Co. v. Clinton, 267 Ore. 653, 661-662, 518 P.2d 645, 649 (1974) ; Northern Buckeye Educ. Council Group Health Benefits Plan v. Lawson, 154 Ohio App.3d 659, 669, 2003-Ohio-5196, 798 N.E.2d 667, 675;Lancer Corp. v. Murillo, 909 S.W.2d 122, 126-127 and n. 2 (Tex.App.1995) ; Breslin v. Liberty Mut. Ins. Co., 134 N.J.Super. 357, 362, 341 A.2d 342, 344 (App.Div.1975) ; Hospital Service Corp. of R.I. v. Pennsylvania Ins. Co., 101 R.I. 708, 710, 716, 227 A.2d 105, 108, 111 (1967) ; National Union Fire Ins. Co. v. Grimes, 278 Minn. 45, 46-47, 51, 153 N.W.2d 152, 153, 156 (1967) ; Foremost Life Ins. Co. v. Waters, 125 Mich.App. 799, 801, 805, 337 N.W.2d 29, 30, 32 (1983) (citing Foremost Life Ins. Co. v. Waters, 88 Mich.App. 599, 602, 278 N.W.2d 688, 689 (1979) ); Lee v. State Farm Mut. Auto. Ins. Co., 57 Cal.App.3d 458, 462, 469, 129 Cal.Rptr. 271, 273-274, 278 (1976). | What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations | What is the ideological direction of the decision reviewed by the Supreme Court? | [
"Conservative",
"Liberal",
"Unspecifiable"
] | [
1
] | sc_lcdispositiondirection |
HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES v. MATHEWS et al.
No. 82-1050.
Argued December 5, 1983
Decided March 5, 1984
Brennan, J., delivered the opinion for a unanimous Court.
Mark I. Levy argued the cause for appellant. With him on the briefs were Solicitor General Lee, Assistant Attorney General McGrath, and Deputy Solicitor General Geller.
John R. Benn argued the cause for appellees. With him on the brief were Robert W. Bunch and Bruce K. Miller
Isabelle Katz Pinzler, Burt Neubome, and Nancy Duff Campbell filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.
Edith U. Fierst, Joseph F. Henderson, and James R. Rosa filed a brief for the American Federation of Government Employees et al. as amici curiae.
Justice Brennan
delivered the opinion of the Court.
Califano v. Goldfarb, 430 U. S. 199 (1977), held that a gender-based classification in the spousal-benefit provisions of the Social Security Act violated the right to the equal protection of the laws guaranteed by the Due Process Clause of the Fifth Amendment. In this case, the United States District Court for the Northern District of Alabama held that amendments to the Act, adopted in 1977 partly in response to our decision, unjustifiably revive the gender-based classification that was invalidated in Goldfarb and therefore also violate the Fifth Amendment. App. to Juris. Statement la-9a. The Secretary of Health and Human Services appealed directly to this Court. We noted probable jurisdiction under 28 U. S. C. § 1252, 460 U. S. 1036 (1983), and now reverse.
I
A
The Social Security Act (Act) provides spousal benefits for the wives, husbands, widows, and widowers of retired and disabled wage earners. 42 U. S. C. § 402 (1976 ed. and Supp. V). Prior to December 1977, benefits were payable only to those husbands or widowers who could demonstrate dependency on their wage-earning wives for one-half of their support. Wives and widows, on the other hand, were entitled to spousal benefits without any such showing of dependency on their husbands. See former 42 U. S. C. §§ 402(b), (c)(1)(C), and (f)(1)(D). In March 1977, Califano v. Goldfarb, supra, affirmed the judgment of a three-judge District Court which held that the gender-based dependency requirement for widowers violated the equal protection component of the Due Process Clause of the Fifth Amendment. Subsequently, the Court summarily affirmed two District Court decisions invalidating the dependency requirement for husbands’ benefits. Califano v. Silbowitz, 430 U. S. 924 (1977); Jablon v. Califano, 430 U. S. 924 (1977).
Following these decisions, as part of a general reform of the Social Security system, Congress repealed the dependency requirement for widowers and husbands. Social Security Amendments of 1977 (1977 Amendments), §§ 334(b)(1), (d)(1), Pub. L. 95-216, 91 Stat. 1544, 1545, 42 U. S. C. §§ 402(c)(1), (f)(1) (1976 ed., Supp. V). See S. Rep. No. 95-572, pp. 88, 93 (1977). It concluded, however, that elimination of the dependency test, by increasing the number of individuals entitled to spousal benefits, could create a serious fiscal problem for the Social Security trust fund. See id., at 27-28. This problem was particularly acute with respect to the large number of retired federal and state employees who would now become eligible for spousal benefits. Unlike most applicants, who must offset any dual Social Security benefits against each other, 42 U. S. C. § 402(k)(3)(A), retired civil servants could, at the time of the 1977 Amendments, receive the full amount of both the spousal benefits and the government pensions to which they were entitled. Congress estimated that payment of unreduced spousal benefits to such individuals could cost the system an estimated $190 million in 1979. S. Rep. No. 95-572, supra, at 27-28.
To avoid this fiscal drain, Congress included as part of the 1977 Amendments a “pension offset” provision that generally requires the reduction of spousal benefits by the amount of certain Federal or State Government pensions received by the Social Security applicant. 1977 Amendments, §§334 (a)(2) and (b)(2), 42 U. S. C. §§ 402(b)(4)(A) and (c)(2)(A) (1976 ed., Supp. V). Congress estimated that 90 percent of the savings that would be achieved by the pension offset provision as proposed by the Senate would be attributable to a reduction in payments to nondependent husbands and widowers who had not been entitled to any spousal benefits prior to the decision in Goldfarb. See S. Rep. No. 95-572, supra, at 81. The remaining portion of the savings, however, would come from a reduction in benefits to individuals, mostly women but also dependent men, who had retired or were about to retire and who had planned their retirements in reliance on their entitlement, under pre-1977 law, to spousal benefits unreduced by government pension benefits. See ibid.; H. R. Conf. Rep. No. 95-837, p. 72 (1977); S. Conf. Rep. No. 95-612, p. 72 (1977). In order to protect the reliance interests of this group, see infra, at 742, Congress exempted from the pension offset requirement as ultimately enacted those spouses who were eligible to receive pension benefits prior to December 1982 and who would have qualified for unreduced spousal benefits under the Act “as it was in effect and being administered in January 1977.” 1977 Amendments, § 334(g)(1), note following 42 U. S. C. §402 (1976 ed., Supp. V).
In the same subsection in which it established this 5-year grace period for individuals who qualified for spousal benefits in January 1977, Congress also included a severability clause, which provides:
“If any provision of this subsection, or the application thereof to any person or circumstance, is held invalid, the remainder of this section shall not be affected thereby, but the application of this subsection to any other persons or circumstances shall also be considered invalid.” 1977 Amendments, § 334(g)(3), note following 42 U. S. C. §402 (1976 ed., Supp. V).
The Conference Committee explained that the severability clause was enacted “so that if [the exception to the pension offset provision] is found invalid the pension-offset. . . would not be affected, and the application of the exception clause would not be broadened to include persons or circumstances that are not included within it.” H. R. Conf. Rep. No. 95-837, pp. 71-72 (1977); S. Conf. Rep. No. 95-612, pp. 71-72 (1977).
B
Appellee Robert H. Mathews (hereafter Mathews or appel-lee) retired from his job with the United States Postal Service on November 18, 1977. His wife, who had retired from her job a few months earlier, was fully insured under the Social Security Act. In December 1977, Mathews applied for husband’s benefits on his wife’s account. On review of the application, the Social Security Administration (SSA) informed Mathews that he was entitled to spousal benefits of $153.30 per month but that, because, as appellee acknowledged, he was not dependent upon his wife for one-half of his support, this amount would be entirely offset by his $573 per month Postal Service pension in accordance with § 334(b)(2) of the 1977 Amendments, 42 U. S. C. § 402(c)(2) (1976 ed., Supp. V). App. to Juris. Statement 2a. After a hearing, an Administrative Law Judge (ALJ) affirmed the SSA’s initial decision. Id., at 16a-22a. The ALJ’s decision was in turn affirmed by the Appeals Council of the Department of Health and Human Services and thereby became the final decision of the Secretary. Id., at 13a-14a.
Mathews and his wife then brought this class action against the Secretary in the United States District Court for the Northern District of Alabama under § 205(g) of the Act, 42 U. S. C. 405(g). The complaint alleged that application of the pension offset provision of the 1977 Amendments to Mathews and other nondependent men but not to similarly situated nondependent women violated the Due Process Clause of the Fifth Amendment and sought a declaratory judgment to that effect. Appellee also contended that the severability clause of the 1977 Amendments was unconstitutional. The District Court certified a nationwide class composed of “all applicants for husband’s insurance benefits . . . whose applications . . . have been denied [beginning 60 days before the filing of the complaint] solely because of the statutory requirement that husbands must have received more than one-half of their support from their wives in order to be entitled to benefits.” App. to Juris. Statement 10a.
Shortly thereafter, the District Court filed an opinion, id., at la-9a, and order, id., at 27a-28a, holding both the pension offset exception of § 334(g)(1)(B) and the severability clause of § 334(g)(3) unconstitutional. The court noted that, in essence, the exception to the pension offset “provides a five-year grace period for all women who retire within five years of the enactment, and for men who retire within five years of the enactment and who are economically dependent upon their wives.” Id., at 3a. In light of this gender-based classification, the court noted that the offset exception could be upheld only if it “‘serve[s] important governmental objectives and [is] substantially related to achievement of those objectives.’” Id., at 4a, quoting Craig v. Boren, 429 U. S. 190, 197 (1976). The court decided that the exception could not be justified as protecting the reliance interests of individuals who had planned their retirements prior to the 1977 Amendments in expectation of undiminished benefits because, by requiring men to prove dependency notwithstanding the decision in Goldfarb, the offset exception presumes that “women would have relied upon the practices of the Social Security Administration, yet men would not have relied upon a decision of the Supreme Court.” App. to Juris. Statement 5a. Accordingly, the court held that the “portion of the exception to the pension offset provision that requires a male applicant to prove that he received one-half of his economic support from his wife violates the equal protection guarantees of the due process clause of the fifth amendment.” Id., at 6a-7a (footnote omitted).
Having invalidated the exception to the offset provision, the District Court considered the severability clause of § 334(g)(3). The court noted that, in the event appellee obtained a judgment that the offset exception unconstitutionally discriminates against him, the clause, if valid, would require nullification of the exception as to all persons, rather than extension of the exception to persons like appellee. Consequently, all government retirees not covered by Social Security, without regard to gender or dependency, would have their spousal benefits offset by the amount of their government pensions. The court characterized this effect of the severability clause as an effort by Congress “to mandate the outcome of any challenge to the validity of the [pension offset] exception by making such a challenge fruitless. Even if a plaintiff achieved success in having the gender-based classification stricken, he would derive no personal benefit from the decision, because the pension offset would be applied to all applicants without exception.” Id., at 8a. Because of its view that Congress could not have meant to defeat the reliance interests of government retirees in that way, the court concluded “that the severability clause is not an expression of the true Congressional intent, but instead is an adroit attempt to discourage the bringing of an action by destroying standing.” Ibid. Accordingly, the court held the severability provision unconstitutional and ordered the Secretary to pay Mathews and the rest of the plaintiff class full spousal benefits without regard to dependency and without offsetting the amount of their government pensions. Id., at 9a.
II
Because it may affect our jurisdiction, see Linda R. S. v. Richard D., 410 U. S. 614, 616 (1973), we consider first the District Court’s conclusion that the severability provision of the 1977 Amendments would, if valid, deprive appellee of standing to bring this action by preventing him from receiving any more spousal benefits if he prevails than he is now allowed. Appellee agrees with the District Court’s analysis and, for that reason, contends that the severability clause amounts to an unconstitutional attempt by Congress to thwart the jurisdiction and remedial power of the federal courts. We agree with the Secretary, however, that because the right asserted by appellee is the right to receive “benefits . . . distributed according to classifications which do not without sufficient justification differentiate among covered [applicants] solely on the basis of sex,” Weinberger v. Wiesenfeld, 420 U. S. 636, 647 (1975), and not a substantive right to any particular amount of benefits, appellee’s standing does not depend on his ability to obtain increased Social Security payments.
In order to establish standing for purposes of the constitutional “case or controvery” requirement, a plaintiff “must show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,” Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91, 99 (1979), and that the injury “is likely to be redressed by a favorable decision,” Simon v. Eastern Kentucky Welfare Rights Organization, 426 U. S. 26, 38 (1976). In this case, appellee claims a type of personal injury we have long recognized as judicially cognizable. He alleges that the pension offset exception subjects him to unequal treatment in the provision of his Social Security benefits solely because of his gender; specifically, as a nondependent man, he receives fewer benefits than he would if he were a similarly situated woman. App. 6.
Although the severability clause would prevent a court from redressing this inequality by increasing the benefits payable to appellee, we have never suggested that the injuries caused by a constitutionally underinclusive scheme can be remedied only by extending the program’s benefits to the excluded class. To the contrary, we have noted that a court sustaining such a claim faces “two remedial alternatives: [it] may either declare [the statute] a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by the exclusion.” Welsh v. United States, 398 U. S. 333, 361 (1970) (Harlan, J., concurring in result). See Califano v. Westcott, 443 U. S. 76, 89-91 (1979). For that reason, we have frequently entertained attacks on discriminatory statutes or practices even when the government could deprive a successful plaintiff of any monetary relief by withdrawing the statute’s benefits from both the favored and the excluded class.
These decisions demonstrate that, like the right to procedural due process, see Carey v. Piphus, 435 U. S. 247, 266 (1978), the right to equal treatment guaranteed by the Constitution is not coextensive with any substantive rights to the benefits denied the party discriminated against. Rather, as we have repeatedly emphasized, discrimination itself, by perpetuating “archaic and stereotypic notions” or by stigmatizing members of the disfavored group as “innately inferior” and therefore as less worthy participants in the political community, Mississippi University for Women v. Hogan, 458 U. S. 718, 725 (1982), can cause serious noneconomic injuries to those persons who are personally denied equal treatment solely because of their membership in a disfavored group. Accordingly, as Justice Brandéis explained, when the “right invoked is that to equal treatment,” the appropriate remedy is a mandate of equal treatment, a result that can be accomplished by withdrawal of benefits from the favored class as well as by extension of benefits to the excluded class. Iowa-Des Moines National Bank v. Bennett, 284 U. S. 239, 247 (1931). Because the severability clause would forbid only the latter and not the former kind of relief in this case, the injury caused by the unequal treatment allegedly suffered by appellee may “be redressed by a favorable decision,” Simon v. Eastern Kentucky Welfare Rights Organization, supra, at 38, and he therefore has standing to prosecute this action.
HH I — I f — 1
Although appellee prevailed in the District Court on his constitutional claim, he urges as an alternative ground for affirmance that we construe the pension offset exception so that it does not incorporate a gender-based classification of the kind invalidated in Califano v. Goldfarb, 430 U. S. 199 (1977), but instead exempts from the offset requirement both men and women, without regard to dependency. Relying on “the maxim that statutes should be construed to avoid constitutional questions,” United States v. Batchelder, 442 U. S. 114, 122 (1979), he contends that Congress, in reviving the qualifying criteria in effect before the decision in Goldfarb, must be presumed to have done so without reenacting the gender-based dependency test which this Court had held unconstitutional.
The canon favoring constructions of statutes to avoid constitutional questions does not, however, license a court to usurp the policymaking and legislative functions of duly elected representatives. Yu Cong Eng v. Trinidad, 271 U. S. 500, 518 (1926). See NLRB v. Catholic Bishop of Chicago, 440 U. S. 490, 499-501 (1979); id., at 508-511 (Brennan, J., dissenting); United States v. Sullivan, 332 U. S. 689, 693 (1948). “‘[Although this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . .’or judicially rewriting it.” Aptheker v. Secretary of State, 378 U. S. 500, 515 (1964), quoting Scales v. United States, 367 U. S. 203, 211 (1961). In this case, the language and history of the offset exception plainly demonstrate that Congress meant to resurrect, for a 5-year grace period, the gender-based dependency test of pre-Goldfarb law.
As we have noted, supra, at 731-733, Congress adopted the pension offset requirement to prevent the serious fiscal drain that it concluded would result from payment of unreduced benefits to the new class of recipients made eligible by the decision in Goldfarb. Nevertheless, in an effort to protect the reliance interests of individuals who had planned their retirement before the March 1977 Goldfarb decision and the resulting amendments to the Act, see H. R. Conf. Rep. No. 95-837, p. 72 (1977); S. Conf. Rep. No. 95-612, p. 72 (1977), Congress exempted from the offset requirement those individuals eligible for spousal benefits under the Act “as it was in effect and being administered in January 1977.” There can be no dispute that in January 1977 men were eligible for benefits only upon a showing of dependency whereas women were subject to no such requirement. See former 42 U. S. C. §§ 402(c) and (f); Califano v. Goldfarb, supra, at 201-202, and nn. 1, 2. And Congress further indicated its intent to revive those eligibility criteria by including an unusual severability clause that would, in the event the classification were held invalid, sacrifice the exception’s protection of reliance interests to the goal served by the offset provision itself — preventing an undue financial burden on the system. See supra, at 734, and n. 5; H. R. Conf. Rep. No. 95-837, supra, at 72; S. Conf. Rep. No. 95-612, supra, at 72.
Consistent with the plain import of these provisions, Senator Long, then Chairman of the Senate Finance Committee and principal manager of the bill in the Senate, explained that the exception clause was meant “to afford . . . protection to those who anticipated receiving their spouses benefits prior to March 1977 without providing it also to those [who] would qualify only as a result of [the Goldfarb] decision.” 123 Cong. Rec. 39134 (1977) (emphasis added). See also id., at 39008 (remarks of Rep. Ullman). Appellee’s proposed interpretation of the exception provision would defeat this clearly expressed intention and, by rendering the offset requirement applicable to very few applicants, frustrate the congressional aim of preventing a major fiscal drain on the Social Security trust fund. Accordingly, we reject appellee’s construction of the Act and conclude that the exception to the offset provision applies to otherwise eligible men only when they can show dependency on their wives for one-half of their support. We turn therefore to consider the constitutionality of that gender-based classification.
HH <
We recently reviewed the “firmly established principles by which to evaluate a claim of gender discrimination like that made by appellee:
“Our decisions . . . establish that the party seeking to uphold a statute that classifies individuals on the basis of their gender must carry the burden of showing an ‘exceedingly persuasive justification’ for the classification. . . . The burden is met only by showing at least that the classification serves ‘important governmental objectives and that the discriminatory means employed’ are ‘substantially related to the achievement of those objectives.’. . .
“Although the test for determining the validity of a gender-based classification is straightforward, it must be applied free of fixed notions concerning the roles and abilities of males and females. Care must be taken in ascertaining whether the statutory objective itself reflects archaic and stereotypic notions. Thus, if the statutory objective is to exclude or ‘protect’ members of one gender because they are presumed to suffer from an inherent handicap or to be innately inferior, the objective itself is illegitimate. . . .
“If the State’s objective is legitimate and important, we next determine whether the requisite direct, substantial relationship between objective and means is present.” Mississippi University for Women v. Hogan, 458 U. S., at 724-725. (Citations and footnotes omitted.)
We therefore consider in turn whether the Secretary has carried her burden of (A) showing a legitimate and “exceedingly persuasive justification” for the gender-based classification of the pension offset provision and (B) demonstrating “the requisite direct, substantial relationship” between the classification and the important governmental objectives it purports to serve.
A
Although the offset exception temporarily revives the gender-based eligibility requirements invalidated in Gold-farb, Congress’ purpose in adopting the exception bears no relationship to the concerns that animated the original enactment of those criteria. The Court concluded in Goldfarb that the original gender-based standards, which were premised on an assumption that females would normally be dependent on the earnings of their spouses but males would not, constituted an “accidental byproduct of a traditional way of thinking about females,” 430 U. S., at 223 (Stevens, J., concurring in judgment), that reflected “‘old notions’ and ‘archaic and overbroad’ generalizations” about the roles and relative abilities of men and women, id., at 211,217 (plurality opinion). Accordingly, the statute’s “objective itself [was] illegitimate.” Mississippi University for Women v. Hogan, supra, at 725.
The provision at issue here, in contrast, reflects no such illegitimate government purposes. As detailed above, Congress adopted the offset exception in order to protect the expectations of persons, both men and women, who had planned their retirements based on pre-January 1977 law, under which they could receive spousal benefits unreduced by the amount of any government pensions to which they were also entitled. Congress accomplished its aim by incorporating the eligibility criteria as they existed in January 1977; its choice of this approach rather than an explicit adoption of new gender-based standards confirms that its purpose was to protect reliance on prior law, not to reassert the sexist assumptions rejected in Goldfarb.
Nor is that purpose rendered illegitimate by the fact that it is achieved through a temporary revival of an invalidated classification. We have recognized, in a number of contexts, the legitimacy of protecting reasonable reliance on prior law even when that requires allowing an unconstitutional statute to remain in effect for a limited period of time. See, e. g., Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U. S. 50, 87-89 (1982) (plurality opinion); Buckley v. Valeo, 424 U. S. 1, 142-143 (1976) (per curiam); Chevron Oil Co. v. Huson, 404 U. S. 97, 106-107 (1971). See also Los Angeles Dept. of Water & Power v. Manhart, 435 U. S. 702, 718-723 (1978). Although an unconstitutional scheme could not be retained for an unduly prolonged period in the name of protecting reliance interests, or even for a brief period if the expectations sought to be protected were themselves unreasonable or illegitimate, there is no indication that the offset exception suffers from either of these flaws. The duration of the exception is closely related to its goal of protecting only individuals who had planned their retirements in reliance on prior law, see infra, at 748-749, and appellee does not suggest that the expectations of those individuals, who hardly could have anticipated the adoption of the offset requirement, were unreasonable or illegitimate.
The protection of reasonable reliance interests is not only a legitimate governmental objective: it provides “an exceedingly persuasive justification” for the statute at issue here. See Kirchberg v. Feenstra, 450 U. S. 455, 461 (1981); Personnel Administrator of Mass. v. Feeney, 442 U. S. 256, 273 (1979). Appellee does not, and cannot, contest the Secretary’s statement that “it is a significant and salutary goal to secure the retirement plans of our Nation’s workers who in good faith had long and reasonably relied on the provisions of the Social Security Act.” Brief for Appellant 33. Instead, appellee contends that the only people who could justifiably have relied on an expectation of unreduced benefits are those who actually retired before the effective date of the offset provision and those individuals will not be required to offset their benefits. Brief for Appellees 28-29, and n. 21, 31-32. Congress determined, however, that many individuals adjusted their spending and savings habits prior to their retirements in expectation of receiving full spousal benefits as well as a government pension, and we have no reason to doubt that conclusion. One commentator has explained:
“Many couples have undoubtedly made retirement plans and adjusted the level of their private saving and investment in anticipation of retirement benefits from social security which include a special benefit for a spouse. An abrupt denial of benefits in these cases, even if the spouse who would have received them is shown to be not truly dependent on the other is clearly inequitable since the couple’s savings and retirement plans would have been different had the spouse benefit not been anticipated. Thus, were it to be decided that wives should prove dependency in order to receive spouse benefits, a strong argument could be made for making such a change gradually so as to avoid inequities to couples approaching retirement who had anticipated that such benefits would be available to them and had made their retirement plans accordingly.” M. Flowers, Women and Social Security: An Institutional Dilemma 41 (1977).
In short, particularly in the years immediately preceding retirement, individuals make spending, savings, and investment decisions based on assumptions regarding the amount of income they expect to receive after they stop working. For such individuals reliance on the law in effect during those years may be critically important. In recognition of this fact, the offset exception, in the words of the Conference Report, protects “people who are already retired, or close to retirement, from public employment and who cannot be expected to readjust their retirement plans to take account of the ‘offset’ provision that will apply in the future.” H. R. Conf. Rep. No. 95-837, p. 72 (1977); S. Conf. Rep. No. 95-612, p. 72 (1977). That purpose, consistent with the principle that “ ‘[gjreat nations, like great men, should keep their word,’” Astrup v. INS, 402 U. S. 509, 514, n. 4 (1971), quoting FTC v. Tuscarora Indian Nation, 362 U. S. 99, 142 (1960) (Black, J., dissenting), provides an exceedingly persuasive justification for the gender-based classification incorporated in the offset exception.
B
Having identified the legitimate and important governmental purpose of the offset exception, we have little trouble concluding that the means employed by the statute is “substantially related to the achievement of [that] objectiv[e].” Wengler v. Druggists Mutual Insurance Co., 446 U. S. 142, 150 (1980). By reviving for a 5-year period the eligibility criteria in effect in January 1977, the exception is narrowly tailored to protect only those individuals who made retirement plans prior to the changes in the law that occurred after that date. Individuals who were eligible for spousal benefits before the law changed and who retire within five years of the statute’s enactment may reasonably be assumed to have begun planning for their retirement prior to the adoption of the offset provision. See supra, at 747-748. Such persons, men as well as women, may receive spousal benefits unreduced by their government pensions, while those persons, men as well as women, who first became eligible for benefits after January 1977 may not.
Moreover, the offset exception was plainly adopted “through reasoned analysis rather than through the mechanical application of traditional, often inaccurate, assumptions about the proper roles of men and women.” Mississippi University for Women v. Hogan, 458 U. S., at 726 (footnote omitted). As the legislative history set out above demonstrates, Congress considered carefully and at length both the financial problems that led to the offset provision and the reliance interests that might be frustrated by that requirement. The solution finally adopted, after rejection of more expensive or impractical alternatives, distinguishes Social Security applicants, not according to archaic generalizations about the roles and abilities of men and women, but rather according to whether they planned their retirements with the expectation, created by the law in effect in January 1977, that they would receive both full spousal benefits and a government pension.
V
The exception to the pension offset requirement set out in § 334(g)(1) of the 1977 Amendments to the Social Security Act, while temporarily reviving the gender-based classification invalidated in Califano v. Goldfarb, is directly and substantially related to the important governmental interest of protecting individuals who planned their retirements in reasonable reliance on the law in effect prior to that decision. Accordingly, the judgment of the District Court is
Reversed.
There was no majority opinion in Goldfarb. See 430 U. S., at 201 (plurality opinion); id., at 217 (Stevens, J., concurring in judgment).
At the same time, Congress directed the Department of Health, Education, and Welfare to include “the entire question of such gender-based distinctions ... in [a] 6-month study of proposals to eliminate dependency and sex discrimination H. R. Conf. Rep. No. 95-837, p. 73 (1977). Thereafter, other gender-based distinctions were eliminated from the Act by the Social Security Amendments of 1983, Pub. L. 98-21, §§ 301-309, 97 Stat. 109-115; see H. R. Conf. Rep. No. 98-47, p. 140 (1983).
Section 334(g) of the 1977 Amendments, Pub. L. 95-216, 91 Stat. 1546, note following 42 U. S. C. § 402 (1976 ed., Supp. V), provides in full:
“(1) The amendments made by the preceding provisions of this section [section 334] shall not apply with respect to any monthly insurance benefit payable, under subsection (b), (c), (e), (f), or (g) (as the case may be) of section 202 of the Social Security Act, to an individual —
“(A) to whom there is payable for any month within the 60-month period beginning with the month in which this Act is enacted (or who is eligible in any such month for) a monthly periodic benefit (within the meaning of such provisions) based upon such individual’s earnings while in the service of the Federal Government or any State or political subdivision thereof, as defined in section 218(b)(2) of the Social Security Act); and
“(B) who at time of application for or initial entitlement to such monthly insurance benefit under such subsection (b), (c), (e), (f), or (g) meets the requirements of that subsection as it was in effect and being administered in January 1977.
“(2) For purposes of paragraph (1)(A), an individual is eligible for monthly periodic benefit for any month if such benefit would be payable to such individual for that month if such individual were not employed during that month and had made proper application for such benefit.
“(3) If any provision of this subsection, or the application thereof to any person or circumstance, is held invalid, the remainder of this section shall not be affected thereby, but the application of this subsection to any other persons or circumstances shall also be considered invalid.”
On January 12, 1983, Congress created an exception from the pension offset provision for any person eligible for a pension prior to July 1983 who satisfies a half-support dependency test. Pub. L. 97-455, § 7, 96 Stat. 2501. On April 20, 1983, Congress revised the pension offset provision, which is now applicable to all persons, without exception, who become eligible to retire in or after July 1983 and which requires the offsetting of only two-thirds of the public pension. Pub. L. 98-21, § 337, 97 Stat. 131. The exception to the offset provision at issue in this case still applies to non-dependent women eligible for pensions prior to December 1982 but not to such nondependent men as the named plaintiff in this action. Accordingly, the recent amendments to the Act do not moot this case.
E. g., Wengler v. Druggists Mutual Insurance Co., 446 U. S. 142, 147-149 (1980); Califano v. Goldfarb, 430 U. S. 199, 212 (1977) (plurality opinion). See Baker v. Carr, 369 U. S. 186, 207 (1962) (finding standing in case in which “[t]he injury which appellants assert is that this classification disfavors the voters in the counties in which they reside, placing them in a position of constitutionally unjustifiable inequality vis-a-vis voters in irrationally favored counties”). See also Linda R. S. v. Richard D., 410 U. S. 614, 620-621 (1973) (White, J., dissenting).
Although the choice between “extension” and “nullification” is within the “constitutional competence of a federal district court,” Califano v. Westcott, 443 U. S., at 91, and ordinarily “extension, rather than nullification, is the proper course,” id., at 89, the court should not, of course, “use its remedial powers to circumvent the intent of the legislature,” id., at 94 (opinion of Powell, J.), and should therefore “measure the intensity of commitment to the residual policy and consider the degree of potential disruption of the statutory scheme that would occur by extension as opposed to abrogation.” Welsh v. United States, 398 U. S., at 365 (Harlan, J., concurring in result). See also Califano v. Westcott, supra, at 90. In this case, Congress has, through the severability clause, clearly expressed its preference for nullification, rather than extension, of the pension offset exception in the event it is found invalid. Because we conclude that the severability clause does not deprive appellee of standing to seek judicial redress for the alleged discrimination of the offset exception, we need riot consider his claim that a legislative attempt to thwart a court’s ability to remedy a constitutional violation would itself violate the Constitution. See Brief for Appellees 40-55.
E. g., Wengler v. Druggists Mutual Insurance Co., supra, at 152-153; Orr v. Orr, 440 U. S. 268, 272 (1979); Califano v. Webster, 430 U. S. 313, 316 (1977); Kahn v. Shevin, 416 U. S. 351, 352 (1974); Stanton v. Stanton, 421 U. S. 7, 17-18 (1975).
See, e. g., Bob Jones University v. United States, 461 U. S. 574, 593-595 (1983); Havens Realty Corp. v. Coleman, 455 U. S. 363, 373-374 (1982); Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91, 109-114 (1979); Norwoods. Harrison, 413 U. S. 455, 465-466, 467 (1973);Frontiero v. Richardson, 411 U. S. 677, 684-685 (1973) (plurality opinion); Traficante v. Metropolitan Life Ins. Co., 409 U. S. 205, 208 (1972); id., at 212 (WHITE, J., concurring); Brown v. Board of Education, 347 U. S. 483, 493 (1954). See also Sierra Club v. Morton, 405 U. S. 727, 734-735 (1972).
Consistent with Justice Brandéis’ explanation of the appropriate relief for a denial of equal treatment, we have often recognized that the victims of a discriminatory government program may be remedied by an end to preferential treatment for others. E. g., Gilmore v. City of Montgomery, 417 U. S. 556, 566-567 (1974); Norwood v. Harrison, supra, at 470-471; Griffin v. School Board of Prince Edward County, 377 U. S. 218, 232-234 (1964). See also Califano v. Westcott, supra, at 93-94 (opinion of Powell, J.) (finding federal aid program violative of plaintiffs’ right to equal protection but arguing that appropriate remedy under statute was to enjoin further payment of benefits to all applicants, including plaintiffs).
The relationship between the right asserted by appellee and the injury allegedly caused by the denial of that right distinguishes this case from Simon v. Eastern Kentucky Welfare Rights Organization. In that case, the Court concluded that indigents, who contended that they were denied medical treatment by tax-exempt hospitals, lacked standing to challenge the Government’s allegedly unlawful administration of the Tax Code because it was “purely speculative” whether their injury was caused by the Government’s actions or was instead attributable to “decisions made by the hospitals without regard to the tax implications.” 426 U. S., at 42-43. Here, in contrast, there can be no doubt about the direct causal relationship between the Government’s alleged deprivation of appellee’s right to equal protection and the personal injury appellee has suffered — denial of Social Security benefits solely on the basis of his gender. Similarly, because appellee personally has been denied benefits that similarly situated women receive, his is not a generalized “claim of ‘the right possessed by every citizen, to require that the Government be administered according to law . . . .’” Baker v. Carr, 369 U. S., at 208, quoting Fairchild v. Hughes, 258 U. S. 126, 129 (1922).
This conclusion, contrary to appellee’s suggestion, is not altered by the fact that in January 1977 the SSA was withholding disputed benefit claims pending this Court’s disposition of Goldfarb. The Social Security Claims Manual in effect at the time notes: “The current law requires that claimants for (widower’s) (husband’s) benefits meet a one-half support requirement. [While that requirement has been challenged in court], the law remains unchanged and no payment can be made until a final decision has been rendered on the constitutionality of the one-half support requirement.” Social Security Administration Claims Manual Transmittal No. 3844 (July 14,1976). Thus, the Manual indicates that, as provided by the extant provisions of the Act, the SSA did not in January 1977 pay benefits to male claimaints who failed to demonstrate dependency on their wives.
The only individuals identified by appellee who would be subject to the offset requirement under his interpretation of the Act are those who first became eligible for spousal benefits after enactment of the statute in December 1977. See Brief for Appellees 23-24; Reply Brief for Appellant 4, 5, n. 2. For example, the 1977 Amendments shortened the number of years a divorced wife must be married before being eligible for spousal benefits, effective December 1978, Pub. L. 95-216, § 337, 91 Stat. 1548, 42 U. S. C. §§ 402(b)(1)(G), 416(d) (1976 ed., Supp. V), and a number of judicial decisions just prior and subsequent to the Amendments extended eligibility for benefits to new categories of individuals, see, e. g., Cooper v. Harris, 87 F. R. D. 107 (ED Pa. 1980) (young husbands); Mertz v. Harris, 497 F. Supp. 1134 (SD Tex. 1980) (remarried widowers); Yates v. Califano, 471 F. Supp. 84 (WD Ky. 1979) (surviving divorced fathers); Oliver v. Califano, [1977-1978 Transfer Binder] CCH Unempl. Ins. Rep. ¶ 15244 (ND Cal. 1977) (divorced husbands). These groups were not, however, mentioned in the legislative history of the offset and exception provisions, and limiting the offset to such newly eligible beneficiaries would frustrate Congress’ express desire to prevent the financial burden to the system of extending unreduced benefits to those nondependent men first made eligible by the Goldfarb decision. See S. Rep. No. 95-572, pp. 27-28 (1977).
See also Wengler v. Druggists Mutual Insurance Co., 446 U. S., at 147-149; Weinberger v. Wiesenfeld, 420 U. S. 636, 643 (1975); Schlesinger v. Ballard, 419 U. S. 498, 507 (1975); Frontiero v. Richardson, 411 U. S., at 688.
See H. R. Conf. Rep. No. 95-837, p. 72 (1977) (“The managers are concerned that there may be large numbers of women, especially widows in their late fifties, who are already drawing pensions, or would be eligible to draw them within 5 years of the date of enactment of this bill, based on their non-covered work and whose retirement income was planned for on the assumption of the availability of full wife’s or widow’s benefits under social security”); S. Conf. Rep. No. 95-612, p. 72 (1977) (same); Staff of Senate Committee on Finance, 95th Cong., 1st Sess., Summary of H. R. 9346, the Social Security Amendments of 1977 as Passed by the Congress (P. L. 95-216) 7 (Comm. Print 1977) (“To assure that persons who have been counting on these benefits for many years and who are now at or near retirement age will not be adversely affected, H. R. 9346 includes a transitional exception under which certain individuals will not have their social security benefits as spouses reduced by the amount of their public pension. This exception applies to those who . . . would qualify for spouses benefits under social security under the law as in effect and as administered in January 1977”).
Indeed, the Social Security Act itself recognizes the critical importance of protecting an individual’s expectation of benefits even in circumstances where payment is contrary to current law. The Act forbids recovery of such overpayments when the recipient is not at fault and recapture “would be against equity and good conscience.” 42 U. S. C. § 404(b).
The latter group includes persons who first became entitled to spousal benefits under the 1977 Amendments themselves as well as those whose eligibility was first established in judicial decisions issued from 1977 to the present. See n. 11, supra. Because the offset provision was enacted at the end of 1977, the only members of this group who, under the law in effect at any given time, might have expected to receive spousal benefits unreduced by their government pensions are those who became eligible during 1977 as a result of Goldfarb and other decisions announced that year. The Act protects the reliance interests of most such people, however, by providing that the offset applies only to applicants who file their claims for spousal benefits in or after December 1977, the month of enactment of the Amendments. 1977 Amendments § 334(f), Pub. L. 95-216, 91 Stat. 1546, note following 42 U. S. C. §402 (1976 ed., Supp. V).
The reliance of appellee on the Goldfarb decision was frustrated not by operation of the exception provision but rather by the unfortunate timing of his retirement. After being informed that, as a result of the March 1977 Goldfarb decision, he would receive spousal benefits unreduced by his Government pension, Brief for Appellees 2, Mathews retired in October 1977 and filed his application for benefits on December 15. App. 4. If he had applied for benefits before December 1, he would have been exempt from the offset provision which, as noted, took effect that day. Alternatively, if he had not retired until after December 20, the day the 1977 Amendments were enacted, he would have known that he could not expect spousal benefits unreduced by his Government pension and might therefore have altered his plans. Although the bind thus imposed on Mathews by the enactment and effective dates of the Amendments is regrettable, the statute is not rendered fatally underinclusive because it protects only expectations of substantially greater duration than his.
See, e. g., Staff of the House Committee on Ways and Means, 95th Cong., 1st Sess., WMCP: 95-57, Summary of the Principal Provisions of H. R. 9346, The Social Security Financing Amendments of 1977 As Passed By the House 4 (Comm. Print 1977) (House version proposing 6-month administration study of, inter alia, “various proposals to mitigate the cost impact of the recent Goldfarb decision on the system”); S. Rep. No. 95-572, p. 28 (1977) (describing consideration and rejection on grounds of potential abuse, inequity, invasion of privacy, and administrative difficulty of requirement that each applicant for spousal benefits prove dependency on spouse). | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state. | What is the court whose decision the Supreme Court reviewed? | [
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] | [
32
] | sc_casesource |
FREIGHTLINER CORP. et al. v. MYRICK et al.
No. 94-286.
Argued February 22, 1995
Decided April 18, 1995
Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O’Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Scalia, J., concurred in the judgment.
Charles Fried argued the cause for petitioners. With him on the briefs were Richard G. Taranto, Edgar A. Neely III, Richard B. North, Jr., James A. Jacobson, and Cindy F. Wile.
Paul R. Q. Wolfson argued the cause for the United States as amicus curiae in support of respondents. With him on the brief were Solicitor General Days, Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, Douglas N. Letter, Paul D. Scott, Paul M. Geier, and Phillip R. Recht.
Michael H. Gottesman argued the cause for respondents. With him on the brief were Arthur H. Bryant, Leslie A. Brueckner, Robert M. Weinberg, Andrew D. Roth, James E. Carter, Raymond Brooks, and Charles A. Mathis, Jr.
Briefs of amici curiae urging reversal were filed for the American Automobile Manufacturers Association et al. by David M. Heilbron and Leslie G. Landau; for the American Trucking Associations, Inc., et al. by Kenneth S. Getter, Erika Z. Jones, John J. Sullivan, Daniel R. Barney, Lynda S. Mounts, and Jan S. Amundson; for the Product Liability Advisory Council, Inc., by Malcolm E. Wheeler and Richard P. Barkley; and for the Truck Trailer Manufacturers Association by Glen M. Darbyshire.
Briefs of amicus curiae urging affirmance were filed for the Association of Trial Lawyers of America by Jeffrey Robert White and Larry S. Stew art; for the National Conference of State Legislatures et al. by Richard Ruda and James I. Crowley; and for Public Citizen, Inc., by Alan B. Morrison, Cornish F. Hitchcock, and David C. Vladeck.
Justice Thomas
delivered the opinion of the Court.
By statute, the Secretary of Transportation has the authority to issue appropriate safety standards for motor vehicles and their equipment. Respondents filed lawsuits under state common law alleging negligent design defects in equipment manufactured by petitioners. Petitioners claim that these actions are pre-empted by a federal safety standard, even though the standard was suspended by a federal court. We hold that the absence of a federal standard cannot implicitly extinguish state common law.
I
This case arises from two separate but essentially identical accidents in Georgia involving tractor-trailers. In both cases, 18-wheel tractor-trailers attempted to brake suddenly and ended up jackknifing into oncoming traffic. Neither vehicle was equipped with an antilock braking system (ABS). In the first case, respondent Ben Myrick was the driver of an oncoming vehicle that was hit by a tractor-trailer manufactured by petitioner Freightliner. The accident left him permanently paraplegic and brain damaged. In the second case, the driver of an oncoming car, Grace Lindsey, was killed when her vehicle collided with a tractor-trailer manufactured by petitioner Navistar.
Respondents independently sued the manufacturers of the tractor-trailers under state tort law. They alleged that the absence of ABS was a negligent design that rendered the vehicles defective. Petitioners removed the actions to the District Court for the Northern District of Georgia on the basis of diversity of citizenship. They then sought summary judgment on the ground that respondents’ claims were pre-empted by the National Traffic and Motor Vehicle Safety Act of 1966 (Safety Act or Act), Pub. L. 89-563, 80 Stat. 718, as amended, 15 U. S. C. § 1381 et seq., and its implementing regulations. In respondent Myrick’s case, the District Court held that the claims were pre-empted by federal law and granted summary judgment for petitioner Freight-liner. Myrick v. Fruehauf Corp., 795 F. Supp. 1139 (ND Ga. 1992). Following the opinion in the Myrick case, the District Court granted summary judgment in the Lindsey action in favor of petitioner Navistar.
The Court of Appeals for the Eleventh Circuit consolidated the cases and reversed. Myrick v. Freuhauf Corp., 13 F. 3d 1516 (1994). It held that under its previous decision in Taylor v. General Motors Corp., 875 F. 2d 816 (CA11 1989), cert. denied, 494 U. S. 1065 (1990), the state-law tort claims were not expressly pre-empted. The Court of Appeals rejected petitioners’ alternative argument that the claims were pre-empted due to a conflict between state law and the federal regulatory scheme. We granted certiorari, 513 U. S. 922 (1994). We now affirm.
II
In 1966, Congress enacted the Safety Act “to reduce traffic accidents and deaths and injuries to persons resulting from traffic accidents.” 15 U. S. C. § 1381. The Act requires the Secretary of Transportation to establish “appropriate Federal motor vehicle safety standards.” § 1392(a). The Act defines a safety standard as “a minimum standard for motor vehicle performance, or motor vehicle equipment performance, which is practicable, which meets the need for motor vehicle safety and which provides objective criteria.” § 1391(2).
The Safety Act’s express pre-emption clause provides:
“Whenever a Federal motor vehicle safety standard established under this subchapter is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the Federal standard. Nothing in this section shall be construed as preventing any State from enforcing any safety standard which is identical to a Federal safety standard.” § 1392(d).
The Act also contains a saving clause, which states: “Compliance with any Federal motor vehicle safety standard issued under this subchapter does not exempt any person from any liability under common law.” § 1397(k).
The Secretary has delegated the authority to promulgate safety standards to the Administrator of the National Highway Traffic Safety Administration (NHTSA). 49 CFR § 1.50(a) (1994). In 1970, the predecessor to NHTSA issued regulations concerning vehicles equipped with air brakes, which are used in trucks and tractor-trailers. Known as Standard 121, this regulation imposed stopping distances and vehicle stability requirements for trucks. See 36 Fed. Reg. 3817 (1971). Because these stopping distances were shorter than those that could be achieved with brakes without ABS, several manufacturers notified NHTSA that ABS devices would be required. Some manufacturers asked NHTSA to alter the standard itself because they believed that ABS devices were unreliable and rendered vehicles dangerously unsafe when combined with new, more effective brakes. In 1974, NHTSA responded that Standard 121 was practical and that ABS devices did not cause accidents. See generally Paccar, Inc. v. NHTSA, 573 F. 2d 632, 637-638 (CA9), cert. denied, 439 U. S. 862 (1978).
Several manufacturers and trade associations then sought review of Standard 121 in the Court of Appeals for the Ninth Circuit. That court remanded the case to NHTSA because “a careful review of the extensive record” indicated that “the Standard was neither reasonable nor practicable at the time it was put into effect.” 573 F. 2d, at 640. The court found that NHTSA had failed to consider the high failure rate of ABS devices placed in actual use, id., at 642, and that “there [was] a strong probability that [ABS] has created a potentially more hazardous highway situation than existed before the Standard became operative,” id., at 643. Until NHTSA compiled sufficient evidence to show that ABS would not create the possibility of greater danger, the court concluded, the Standard would remain suspended. Ibid.
After the Ninth Circuit’s decision in Paccar, the agency amended Standard 121 so that the stopping distance and lock-up requirements no longer applied to trucks and trailers. NHTSA nevertheless left the unamended Standard 121 in the Code of Federal Regulations so that “the affected sections [could] most easily be reinstated” when the agency met Paccar’s requirements. 44 Fed. Reg. 46849 (1979). NHTSA also stated that the provisions would remain in place so that manufacturers would know “what the agency still considers to be reasonable standards for minimum acceptable performance.” Ibid. Although NHTSA has developed new stopping distance standards, to this day it still has not taken final action to reinstate a safety standard governing the stopping distance of trucks and trailers.
Ill
Despite the fact that Standard 121 remains suspended, petitioners maintain that respondents’ lawsuits are expressly pre-empted. We disagree. The Act’s pre-emption clause applies only “[w]henever a Federal motor vehicle safety standard ... is in effect” with respect to “the same aspect of performance” regulated by a state standard. 15 U. S. C. § 1392(d). There is no express federal standard addressing stopping distances or vehicle stability for trucks or trailers. No NHTSA regulation currently establishes a “minimum standard for . . . motor vehicle equipment performance,” § 1391(2), nor is any standard “stated in objective terms,” § 1392(a). There is simply no minimum, objective standard stated at all. Therefore, States remain free to “establish, or to continue in effect,” their own safety standards concerning those “aspect[s] of performance.” § 1392(d).
Petitioners insist, however, that the absence of regulation itself constitutes regulation. Relying upon our opinion in Ray v. Atlantic Richfield Co., 435 U. S. 151 (1978), petitioners assert that the failure of federal officials “ ‘affirmatively to exercise their full authority takes on the character of a ruling that no such regulation is appropriate or approved pursuant to the policy of the statute.’” Id., at 178 (quoting Bethlehem Steel Co. v. New York State Labor Relations Bd., 330 U. S. 767, 774 (1947). Unlike this case, however, we found in Ray that Congress intended to centralize all authority over the regulated area in one decisionmaker: the Federal Government. 435 U. S., at 177. Here, there is no evidence that NHTSA decided that trucks and trailers should be free from all state regulation of stopping distances and vehicle stability. Indeed, the lack of federal regulation did not result from an affirmative decision of agency officials to refrain from regulating air brakes. NHTSA did not decide that the minimum, objective safety standard required by 15 U. S. C. § 1392(a) should be the absence of all standards, both federal and state. Rather, the lack of a federal standard stemmed from the decision of a federal court that the agency had not compiled sufficient evidence to justify its regulations.
IV
Even if § 1392(d) does not expressly extinguish state tort law, petitioners argue that respondents’ lawsuits are preempted by implication because the state-law principle they seek to vindicate would conflict with federal law. We have recognized that a federal statute implicitly overrides state law either when the scope of a statute indicates that Congress intended federal law to occupy a field exclusively, English v. General Elec. Co., 496 U. S. 72, 78-79 (1990), or when state law is in actual conflict with federal law. We have found implied conflict pre-emption where it is “impossible for a private party to comply with both state and federal requirements,” id., at 79, or where state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U. S. 52, 67 (1941).
A
As an initial matter, we must address the argument that we need not reach the conflict pre-emption issue at all. According to respondents and the Court of Appeals, Cipollone v. Liggett Group, Inc., 505 U. S. 504 (1992), held that implied pre-emption cannot exist when Congress has chosen to include an express pre-emption clause in a statute. This argument is without merit. In Cipollone we did hold that the pre-emptive scope of the two statutes at issue was governed by the language in each Act. That conclusion rested on a familiar canon of statutory construction and on the absence of any reason to infer any broader pre-emption. Instead of announcing a categorical rule precluding the coexistence of express and implied pre-emption, however, the relevant passage in the opinion stated:
“In our opinion, the pre-emptive, scope of the 1965 Act and the 1969 Act is governed entirely by the express language in § 5 of each Act. When Congress has considered the issue of pre-emption and has included in the enacted legislation a provision explicitly addressing that issue, and when that provision provides a ‘reliable indicium of congressional intent with respect to state authority,’ Malone v. White Motor Corp., 435 U. S., at 505, ‘there is no need to infer congressional intent to preempt state laws from the substantive provisions’ of the legislation. California Federal Savings & Loan Assn. v. Guerra, 479 U. S. 272, 282 (1987) (opinion of MARSHALL, J.). Such reasoning is a variant of the familiar principle of expressio unius est exclusio alterius: Congress’ enactment of a provision defining the pre-emptive reach of a statute implies that matters beyond that reach are not pre-empted. In this case, the other provisions of the 1965 and 1969 Acts offer no cause to look beyond § 5 of each Act. Therefore, we need only identify the domain expressly pre-empted by each of those sections. As the 1965 and 1969 provisions differ substantially, we consider each in turn.” Id., at 517.
The fact that an express definition of the pre-emptive reach of a statute “implies” — i. e., supports a reasonable inference — that Congress did not intend to pre-empt other matters does not mean that the express clause entirely forecloses any possibility of implied pre-emption. Indeed, just two paragraphs after the quoted passage in Cipollone, we engaged in a conflict pre-emption analysis of the Federal Cigarette Labeling and Advertising Act, 79 Stat. 282, as amended, 15 U. S. C. § 1331 et seq., and found “no general, inherent conflict between federal pre-emption of state warning requirements and the continued vitality of state common-law damages actions.” 505 U. S., at 518. Our subsequent decisions have not read Cipollone to obviate the need for analysis of an individual statute’s pre-emptive effects. See, e. g., CSX Transp., Inc. v. Easterwood, 507 U. S. 658, 673, n. 12 (1993) (“We reject petitioner’s claim of implied ‘conflict’ pre-emption ... on the basis of the preceding analysis”). At best, Cipollone supports an inference that an express pre-emption clause forecloses implied pre-emption; it does not establish a rule.
B
Petitioners’ pre-emption argument is ultimately futile, however, because respondents’ common-law actions do not conflict with federal law. First, it is not impossible for petitioners to comply with both federal and state law because there is simply no federal standard for a private party to comply with. Nothing in the Safety Act or its regulations currently regulates the use of ABS devices. As Standard 121 imposes no requirements either requiring or prohibiting ABS systems, tractor-trailer manufacturers are free to obey state standards concerning stopping distances and vehicle stability.
Second, we cannot say that the respondents’ lawsuits frustrate “the accomplishment and execution of the full purposes and objectives of Congress.” Hines, supra, at 67. In the absence of a promulgated safety standard, the Act simply fails to address the need for ABS devices at all. Further, Standard 121 currently has nothing to say concerning ABS devices one way or the other, and NHTSA has not ordered truck manufacturers to refrain from using ABS devices. A finding of liability against petitioners would undermine no federal objectives or purposes with respect to ABS devices, since none exist.
For the foregoing reasons, the judgment of the Court of Appeals for the Eleventh Circuit is affirmed.
It is so ordered.
Justice Scalia concurs in the judgment.
ABS “helps prevent loss of control situations by automatically controlling the amount of braking pressure applied to a wheel. With these systems, the Electronic Control Unit (ECU) monitors wheel-speeds, and changes in wheel-speeds, based on electric signals transmitted from sensors located at the wheels or within the axle housings. If the wheels start to lock, the ECU signals a modulator control valve to actuate, thereby reducing the amount of braking pressure applied to the wheel that is being monitored.” 57 Fed. Reg. 24213 (1992).
Standard 121 required air-brake equipped vehicles to stop within certain distances at various speeds without deviating from a 12-foot-wide lane, and without any wheel lock-up. 49 CFR § 571.121 S5.3.1 (1972). The initial stopping distance requirement from 60 miles per hour was 217 feet on a dry surface. The regulation also established brake actuation and release times, as well as other aspects of brake performance. Ibid.
Because no federal safety standard exists, we need not reach respondents’ argument that the term “standard” in 15 U. S. C. § 1392(d) pre-empts only state statutes and regulations, but not common law. We also need not address respondents’ claim that the saving clause, § 1397(k), does not permit a manufacturer to use a federal safety standard to immunize itself from state common-law liability. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them.
Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. | Who is the petitioner of the case? | [
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"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
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"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration",
"War Production Board",
"Wage Stabilization Board",
"General Land Office of Commissioners",
"Transportation Security Administration",
"Surface Transportation Board",
"U.S. Shipping Board Emergency Fleet Corp.",
"Reconstruction Finance Corp.",
"Department or Secretary of Homeland Security",
"Unidentifiable",
"International Entity"
] | [
112
] | sc_petitioner |
ADAMSON v. CALIFORNIA.
No. 102.
Argued January 15-16, 1947.
Decided June 23, 1947.
Morris Lavine argued the cause and filed a brief for appellant.
Walter L. Bowers, Assistant Attorney General of California, argued the cause for appellee. With him on the brief was Fred N. Howser, Attorney General.
Mr. Justice Reed
delivered the opinion of the Court.
The appellant, Adamson, a citizen of the United States, was convicted, without recommendation for mercy, by a jury in a Superior Court of the State of California of murder in the first degree. After considering the same objections to the conviction that are pressed here, the sentence of death was affirmed by the Supreme Court of the state. 27 Cal. 2d 478, 165 P. 2d 3. Review of that judgment by this Court was sought and allowed under Judicial Code § 237; 28 U. S. C. § 344. The provisions of California law which were challenged in the state proceedings as invalid under the Fourteenth Amendment to the Federal Constitution are those of the state constitution and penal code in the margin. They permit the failure of a defendant to explain or to deny evidence against him to be commented upon by court and by counsel and to be considered by court and jury. The defendant did not testify. As the trial court gave its instructions and the District Attorney argued the case in accordance with the constitutional and statutory provisions just referred to, we have for decision the question of their constitutionality in these circumstances under the limitations of § 1 of the Fourteenth Amendment.
The appellant was charged in the information with former convictions for burglary, larceny and robbery and pursuant to § 1025, California Penal Code, answered that he had suffered the previous convictions. This answer barred allusion to these charges of convictions on the trial. Under California’s interpretation of § 1025 of the Penal Code and § 2051 of the Code of Civil Procedure, however, if the defendant, after answering affirmatively charges alleging prior convictions, takes the witness stand to deny or explain away other evidence that has been introduced “the commission of these crimes could have been revealed to the jury on cross-examination to impeach his testimony.” People v. Adamson, 27 Cal. 2d 478, 494, 165 P. 2d 3, 11; People v. Braun, 14 Cal. 2d 1, 6, 92 P. 2d 402, 405. This forces an accused who is a repeated offender to choose between the risk of having his prior offenses disclosed to the jury or of having it draw harmful inferences from uncontradicted evidence that can only be denied or explained by the defendant.
In the first place, appellant urges that the provision of the Fifth Amendment that no person “shall be compelled in any criminal case to be a witness against himself” is a fundamental national privilege or immunity protected against state abridgment by the Fourteenth Amendment or a privilege or immunity secured, through the Fourteenth Amendment, against deprivation by state action because it is a personal right, enumerated in the federal Bill of Rights.
Secondly, appellant relies upon the due process of law clause of the Fourteenth Amendment to invalidate the provisions of the California law, set out in note 3 supra, and as applied (a) because comment on failure to testify is permitted, (b) because appellant was forced to forego testimony in person because of danger of disclosure of his past convictions through cross-examination, and (c) because the presumption of innocence was infringed by the shifting of the burden of proof to appellant in permitting comment on his failure to testify.
We shall assume, but without any intention thereby of ruling upon the issue, that permission by law to the court, counsel and jury to comment upon and consider the failure of defendant “to explain or to deny by his testimony any evidence or facts in the case against him” would infringe defendant’s privilege against self-incrimination under the Fifth Amendment if this were a trial in a court of the United States under a similar law. Such an assumption does not determine appellant’s rights under the Fourteenth Amendment. It is settled law that the clause of the Fifth Amendment, protecting a person against being compelled to be a witness against himself, is not made effective by the Fourteenth Amendment as a protection against state action on the ground that freedom from testimonial compulsion is a right of national citizenship, or because it is a personal privilege or immunity secured by the Federal Constitution as one of the rights of man that are listed in the Bill of Rights.
The reasoning that leads to those conclusions starts with the unquestioned premise that the Bill of Rights, when adopted, was for the protection of the individual against the federal government and its provisions were inapplicable to similar actions done by the states. Barron v. Baltimore, 7 Pet. 243; Feldman v. United States, 322 U. S. 487, 490. With the adoption of the Fourteenth Amendment, it was suggested that the dual citizenship recognized by its first sentence secured for citizens federal protection for their elemental privileges and immunities of state citizenship. The Slaughter-House Cases decided, contrary to the suggestion, that these rights, as privileges and immunities of state citizenship, remained under the sole protection of the state governments. This Court, without the expression of a contrary view upon that phase of the issues before the Court, has approved this determination. Maxwell v. Bugbee, 250 U. S. 525, 537; Hamilton v. Regents, 293 U. S. 245, 261. The power to free defendants in state trials.from self-incrimination was specifically determined to be beyond the scope of the privileges and immunities clause of the Fourteenth Amendment in Twining v. New Jersey, 211 U. S. 78, 91-98. “The privilege against self-incrimination may be withdrawn and the accused put upon the stand as a witness for the state.” The Twining case likewise disposed of the contention that freedom from testimonial compulsion, being specifically granted by the Bill of Rights, is a federal privilege or immunity that is protected by the Fourteenth Amendment against state invasion. This Court held that the inclusion in the Bill of Rights of this protection against the power of the national government did not make the privilege a federal privilege or immunity secured to citizens by the Constitution against state action. Twining v. New Jersey, supra, at 98-99; Palko v. Connecticut, supra, at 328. After declaring that state and national citizenship coexist in the same person, the Fourteenth Amendment forbids a state from abridging the privileges and immunities of citizens of the United States. As a matter of words, this leaves a state free to abridge, within the limits of the due process clause, the privileges and immunities flowing from state citizenship. This reading of the Federal Constitution has heretofore found favor with the majority of this Court as a natural and logical interpretation. It accords with the constitutional doctrine of federalism by leaving to the states the responsibility of dealing with the privileges and immunities of their citizens except those inherent in national citizenship. It is the construction placed upon the amendment by justices whose own experience had given them contemporaneous knowledge of the purposes that led to the adoption of the Fourteenth Amendment. This construction has become embedded in our federal system as a functioning element in preserving the balance between national and state power. We reaffirm the conclusion of the Twining and Palko cases that protection against self-incrimination is not a privilege or immunity of national citizenship.
Appellant secondly contends that if the privilege against self-incrimination is not a right protected by the privileges and immunities clause of the Fourteenth Amendment against state action, this privilege, to its full scope under the Fifth Amendment, inheres in the right to a fair trial. A right to a fair trial is a right admittedly protected by the due process clause of the Fourteenth Amendment. Therefore, appellant argues, the due process clause of the Fourteenth Amendment protects his privilege against self-incrimination. The due process clause of the Fourteenth Amendment, however, does not draw all the rights of the federal Bill of Rights under its protection. That contention was made and rejected in Palko v. Connecticut, 302 U. S. 319, 323. It was rejected with citation of the cases excluding several of the rights, protected by the Bill of Rights, against infringement by the National Government. Nothing has been called to our attention that either the framers of the Fourteenth Amendment or the states that adopted intended its due process clause to draw within its scope the earlier amendments to the Constitution. Palko held that such provisions of the Bill of Rights as were “implicit in the concept of ordered liberty,” p. 325, became secure from state interference by the clause. But it held nothing more.
Specifically, the due process clause does not protect, by virtue of its mere existence, the accused’s freedom from giving testimony by compulsion in state trials that is secured to him against federal interference by the Fifth Amendment. Twining v. New Jersey, 211 U. S. 78, 99-114; Palko v. Connecticut, supra, p. 323. For a state to require testimony from an accused is not necessarily a breach of a state’s obligation to give a fair trial. Therefore, we must examine the effect of the California law applied in this trial to see whether the comment on failure to testify violates the protection against state action that the due process clause does grant to an accused. The due process clause forbids compulsion to testify by fear of hurt, torture or exhaustion. It forbids any other type of coercion that falls within the scope of due process. California follows Anglo-American legal tradition in excusing defendants in criminal prosecutions from compulsory testimony. Cf. VIH Wigmore on Evidence (3d ed.) § 2252. That is a matter of legal policy and not because of the requirements of due process under the Fourteenth Amendment. So our inquiry is directed, not at the broad question of the constitutionality of compulsory testimony from the accused under the due process clause, but to the constitutionality of the provision of the California law that permits comment upon his failure to testify. It is, of course, logically possible that while an accused might be required, under appropriate penalties, to submit himself as a witness without a violation of due process, comment by judge or jury on inferences to be drawn from his failure to testify, in jurisdictions where an accused’s privilege against self-incrimination is protected, might deny due process. For example, a statute might declare that a permitted refusal to testify would compel an acceptance of the truth of the prosecution’s evidence.
Generally, comment on the failure of an accused to testify is forbidden in American jurisdictions. This arises from state constitutional or statutory provisions similar in character to the federal provisions. Fifth Amendment and 28 U. S. C. § 632. California, however, is one of a few states that permit limited comment upon a defendant’s failure to testify. That permission is narrow. The California law is set out in note 3 and authorizes comment by court and counsel upon the “failure of the defendant to explain or to deny by his testimony any evidence or facts in the case against him.” This does not involve any presumption, rebuttable or irrebuttable, either of guilt or of the truth of any fact, that is offered in evidence. Compare Tot v. United States, 319 U. S. 463, 470. It allows inferences to be drawn from proven facts. Beeaúse of this clause, the court can direct the jury’s attention to whatever evidence there may be that a defendant could deny and the prosecution can argue as to inferences that may be drawn from the accused’s failure to testify. Compare Caminetti v. United States, 242 U. S. 470, 492-95; Raffel v. United States, 271 U. S. 494, 497. There is here no lack of power in the trial court to adjudge and no denial of a hearing. California has prescribed a method for advising the jury in the search for truth-. However sound may be the legislative conclusion that an accused should not be compelled in any criminal case to be a witness against himself, we see no reason why comment should not be made upon his silence. It seems quite natural that when a defendant has opportunity to deny or explain facts and determines not to do so, the prosecution should bring out the strength of the evidence by commenting upon defendant’s failure to explain or deny it. The prosecution evidence may be of facts that may be beyond the knowledge of the accused. If so, his failure to testify would have little if any weight. But the facts may be such as are necessarily in the knowledge of the accused. In that case a failure to explain would point to an inability to explain.
Appellant sets out the circumstances of this case, however, to show coercion and unfairness in permitting comment. The guilty person was not seen at the place and time of the crime. There was evidence, however, that entrance to the place or room where the crime was committed might have been obtained through a small door. It was freshly broken. Evidence showed that six fingerprints on the door were petitioner’s. Certain diamond rings were missing from the deceased’s possession. There was evidence that appellant, sometime after the crime, asked an unidentified person whether the latter would be interested in purchasing a diamond ring. As has been stated, the information charged other crimes to appellant and he admitted them. His argument here is that he could not take the stand to deny the evidence against him because he would be subjected to a cross-examination as to former crimes to impeach his veracity and the evidence so produced might well bring about his conviction. Such cross-examination is allowable in California. People v. Adamson, 27 Cal. 2d 478, 494, 165 P. 2d 3, 11. Therefore, appellant contends the California statute permitting comment denies him due process.
It is true that if comment were forbidden, an accused in this situation could remain silent and avoid evidence of former crimes and comment upon his failure to testify. We are of the view, however, that a state may control such a situation in accordance with its own ideas of the most efficient administration of criminal justice. The purpose of due process is not to protect an accused against a proper conviction but against an unfair conviction. When evidence is before a jury that threatens conviction, it does not seem unfair to require him to choose between leaving the adverse evidence unexplained and subjecting himself to impeachment through disclosure of former crimes. Indeed, this is a dilemma with which any defendant may be faced. If facts, adverse to the defendant, are proven by the prosecution, there may be no way to explain them favorably to the accused except by a witness who may be vulnerable to impeachment on cross-examination. The defendant must then decide whether or not to use such a witness. The fact that the witness may also be the defendant makes the choice more difficult but a denial of due process does not emerge from the circumstances.
There is no basis in the California law for appellant’s objection on due process or other grounds that the statutory authorization to comment on the failure to explain or deny adverse testimony shifts the burden of proof or the duty to go forward with the evidence. Failure of the accused to testify is not an admission of the truth of the adverse evidence. Instructions told the jury that the burden of proof remained upon the state and the presumption of innocence with the accused. Comment on failure to deny proven facts does not in California tend to supply any missing element of proof of guilt. People v. Adamson, 27 Cal. 2d 478, 489-95, 165 P. 2d 3, 9-12. It only directs attention to the strength of the evidence for the prosecution or to the weakness of that for the-defense. The Supreme Court of California called attention to the fact that the prosecutor’s argument approached the borderline in a statement that might have been construed as asserting “that the jury should infer guilt solely from defendant’s silence.” That court felt that it was improbable the jury was misled into such an understanding of their power. We shall not interfere with such a conclusion. People v. Adamson, 27 Cal. 2d 478, 494-95, 165 P. 2d 3, 12.
Finally, appellant contends that due process of law was denied him by the introduction as evidence of tops of women’s stockings that were found in his room. The claim is made that such evidence inflamed the jury. The lower part of a woman’s stocking was found under the victim’s body. The top was not found. The corpse was barelegged. The tops from defendant’s room did not match the lower part found under the dead body. The California court held that the tops were admissible as evidence because this “interest in women’s stocking tops is a circumstance that tends to identify defendant” as the perpetrator of the crime. We do not think the introduction of this evidence violated any federal constitutional right.
We find no other error that gives ground for our intervention in California’s administration of criminal justice.
Affirmed.
There was also a conviction for first degree burglary. This requires no discussion.
This section authorizes appeal to this Court from the final judgment of a state when the validity of a state statute is questioned on the ground of its being repugnant to the Constitution of the United States. The section has been applied so as to cover a state constitutional provision. Railway Express Agency, Inc. v. Virginia, 282 U. S. 440; King Mfg. Co. v. Augusta, 277 U. S. 100.
Constitution of California, Art. I, § 13:
. . No person shall be twice put in jeopardy for the same offense; nor be compelled, in any criminal case, to be a witness against himself; nor be deprived of life, liberty, or property without due process of law; but in any criminal case, whether the defendant testifies or not, his failure to explain or to deny by his testimony any evidence or facts in the case against him may be commented upon by the court and by counsel, and may be considered by the court or the jury. . . .”
Penal Code of California, § 1323: “A defendant in a criminal action or proceeding cannot be compelled to be a witness against himself; but if he offers himself as a witness, he may be cross-examined by the counsel for the people as to all matters about which he was examined in chief. The failure of the defendant to explain or to deny by his testimony any evidence or facts in the case against him may be commented upon by counsel.”
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Penal Code of California, §1025: “. . .In case the defendant pleads not guilty, and answers that he has suffered the previous conviction, the charge of the previous conviction must not be read to the jury, nor alluded to on the trial.”
The California law protects a defendant against compulsion to testify, though allowing comment upon his failure to meet evidence against him. The Fifth Amendment forbids compulsion on a defendant to testify. Boyd v. United States, 116 U. S. 616, 631, 632; cf. Davis v. United States, 328 U. S. 582, 587, 593. A federal statute that grew out of the extension of permissible witnesses to include those charged with offenses negatives a presumption against an accused for failure to avail himself of the right to testify in his own defense. 28 U. S. C. § 632; Bruno v. United States, 308 U. S. 287. It was this statute which is interpreted to protect the defendant against comment for his claim of privilege. Wilson v. United States, 149 U. S. 60, 66; Johnson v. United States, 318 U. S. 189, 199.
“All persons bom or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
16 Wall. 36. The brief of Mr. Fellows for the plaintiff in error set out the legislative history in an effort to show that the purpose of the first section of the Fourteenth Amendment was to put the “Rights of Citizens” under the protection of the United States. It was pointed out, p. 12, that the Fourteenth Amendment was needed to accomplish that result. After quoting from the debates, the brief summarized the argument, as follows, p. 21:
“As the result of this examination, the only conclusion to be arrived at, as to the intention of Congress in proposing the amendments, and especially the first section of the Fourteenth Amendment, and the interpretation universally put upon it by every member of Congress, whether friend or foe, the interpretation in which all were agreed, was, in the words of Mr. Hale, ‘that it was intended to apply to every State which has failed to apply equal protection to life, liberty and property;’ or in the words of Mr. Bingham, ‘that the protection given by the laws of the States shall be equal in respect to life, liberty and property to all persons;’ or in the language of Mr. Sumner, that it abolished ‘oligarchy, aristocracy, caste, or monopoly with peculiar privileges and powers.’ ”
Snyder v. Massachusetts, 291 U. S. 97, 105; Palko v. Connecticut, 302 U. S. 319, 324; Twining v. New Jersey, supra, 114.
See Madden v. Kentucky, 309 U. S. 83, 90, and eases cited; and see the concurring opinions in Edwards v. California, 314 U. S. 160, and the opinion of Stone, J., in Hague v. C. I. O., 307 U. S. 496, 519.
Moore v. Dempsey, 261 U. S. 86, 91; Chambers v. Florida, 309 U. S. 227, 238; Buchalter v. New York, 319 U. S. 427.
White v. Texas, 310 U. S. 530; Brown v. Mississippi, 297 U. S. 278; Ashcraft v. Tennessee, 322 U. S. 143, 154; Ashcraft v. Tennessee, 327 U. S. 274.
See Malinski v. New York, 324 U. S. 401, concurring op. at 414, dissent at 438; Buchalter v. New York, supra, at 429; Palko v. Connecticut, supra, at 325; Carter v. Illinois, 329 U. S. 173.
State action must “be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions and not infrequently are designated as ‘law of the land.’ ” Hebert v. Louisiana, 272 U. S. 312, 316.
Twining v. New Jersey, supra, pp. 110-12.
VIII Wigmore, supra, p. 412.
The cases and statutory references are collected in VIII Wigmore, supra, at pp. 413 et seq. New Jersey, Ohio and Vermont permit comment. The question of permitting comment upon the failure of an accused to testify has been a matter for consideration in recent years. See Reports of American Bar Association (1931) 137; Proceedings, American Law Institute, 1930-31, 202; Reeder, Comment Upon Failure of Accused to Testify, 31 Mich. L. Rev. 40; Bruce, The Right to Comment on the Failure of the Defendant to Testify, Id., 226.
Comment here did not follow a grant of privilege that carried immunity from comment. The choice between giving evidence and remaining silent was an open choice. There was no such possible misleading of the defendant as we condemned in Johnson v. United States, 318 U. S. 189, 195-99. | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. | What is the issue area of the decision? | [
"Criminal Procedure",
"Civil Rights",
"First Amendment",
"Due Process",
"Privacy",
"Attorneys",
"Unions",
"Economic Activity",
"Judicial Power",
"Federalism",
"Interstate Relations",
"Federal Taxation",
"Miscellaneous",
"Private Action"
] | [
0
] | sc_issuearea |
LOUISIANA v. MISSISSIPPI et al.
No. 121, Orig.
Argued October 3, 1995
Decided October 31, 1995
Kennedy, J., delivered the opinion for a unanimous Court.
Gary L. Keyser, Assistant Attorney General of Louisiana, argued the cause for plaintiff. With him on the brief were Richard P. Ieyoub, Attorney General, Jack E. Yelverton, First Assistant Attorney General, and E. Kay Kirkpatrick, Assistant Attorney General.
James W. McCartney argued the cause for defendant Houston Group. Robert R. Bailess argued the cause for defendant State of Mississippi. With them on the brief were Mike Moore, Attorney General of Mississippi, Robert E. Sanders, Assistant Attorney General, and Charles Alan Wright.
Justice Kennedy
delivered the opinion of the Court.
Like the shifting river channel near the property in dispute, this litigation has traversed from one side of our docket to the other. We must first recount this procedural history.
In an earlier action, Mississippi citizens sued in the United States District Court for the Southern District of Mississippi to quiet title to the subject property. Certain Louisiana citizens were named as defendants. The parties asserted conflicting ownership claims to an area of about 2,000 acres, stretching seven miles along the Louisiana bank of the Mississippi River, near Lake Providence, Louisiana. The State of Louisiana and the Lake Providence Port Commission intervened in that action and filed a third-party complaint against the State of Mississippi. Concerned, however, with the jurisdiction of the District Court to hear its matter, Louisiana took the further step of instituting an original action in this Court, and it filed a motion here for leave to file a bill of complaint. We denied the motion. Louisiana v. Mississippi, 488 U. S. 990 (1988).
The District Court heard the case pending before it and, in an order by Judge Barbour, ruled in favor of Mississippi. Louisiana, however, prevailed in the United States Court of Appeals for the Fifth Circuit, 937 F. 2d 247 (1991), and we granted Mississippi’s petition for certiorari. 503 U. S. 935 (1992).
After hearing oral argument on both substantive issues and jurisdiction, we resolved only the latter. We held that there was no jurisdiction in the District Court, or in the Court of Appeals, to grant any relief in the quiet title action to one State against the other, that authority being reserved for jurisdiction exclusive to this Court. Mississippi v. Louisiana, 506 U. S. 73, 77-78 (1992); see also 28 U. S. C. § 1251(a). We remanded the case so the complaint filed by Louisiana could be dismissed in the District Court and for the Court of Appeals to determine what further proceedings were necessary with respect to the claims of the private parties.
Upon remand, Louisiana asked the District Court to stay further action in the case to allow Louisiana once again to seek permission to file a bill of complaint in this Court. The District Court agreed, noting that our decision on the boundary issue would solve the District Court’s choice-of-law problem and would be the fairest method of resolving the fundamental issue for all parties.
Louisiana did file a renewed motion in our Court for leave to file a bill of complaint. We granted it, allowing leave to file against Mississippi and persons called the Houston Group, who asserted ownership to the disputed area and who supported Mississippi’s position on the boundary issue. Louisiana asked us to define the boundary between the two States and cancel the Houston Group’s claim of title. After granting leave to file, we appointed Vincent L. McKusick, former Chief Justice of the Maine Supreme Judicial Court, as Special Master. The case is now before us on Louisiana’s exceptions to his report, and there is no jurisdictional bar to our resolving the questions presented.
We deem it necessary to do no more than give a brief summary of the law and of the Special Master’s careful and well-documented findings and conclusions, for Louisiana’s exceptions have little merit and must be rejected.
The controlling legal principles are not in dispute. In all four of the prior cases that have involved the Mississippi River boundary between Louisiana and Mississippi, we have applied the rule of the thalweg. Louisiana v. Mississippi, 466 U. S. 96, 99 (1984); Louisiana v. Mississippi, 384 U. S. 24, 25-26, reh’g denied, 384 U. S. 958 (1966); Louisiana v. Mississippi, 282 U. S. 458, 459 (1931); Louisiana v. Mississippi, 202 U. S. 1, 49 (1906). Though there are exceptions, the rule is that the river boundary between States lies along the main downstream navigational channel, or thalweg, and moves as the channel changes with the gradual processes of erosion and accretion. Louisiana v. Mississippi, 466 U. S., at 99-101; Arkansas v. Tennessee, 397 U. S. 88, 89-90 (1970). There exists an island exception to the general rule, which provides that if there is a divided river flow around an island, a boundary once established on one side of the island remains there, even though the main downstream navigation channel shifts to the island’s other side. Indiana v. Kentucky, 136 U. S. 479,508-509 (1890); Missouri v. Kentucky, 11 Wall. 395, 401 (1871). The island exception serves to avoid disturbing a State’s sovereignty over an island if there are changes in the main navigation channel.
The Special Master found that the disputed area derived from an island, known as Stack Island, that had been within Mississippi’s boundary before the river’s main navigational channel shifted to the east of the island. The Special Master found that, through erosion on its east bank and accretion on its west bank, Stack Island changed from its original location, next to the Mississippi bank of the river, to its current location, abutting the Louisiana bank. Pursuant to the island exception, then, the Special Master placed the boundary on the west side of the disputed area, confirming Mississippi’s sovereignty over it. Because the land is located in Mississippi, the Special Master found that Louisiana had no standing to challenge the Houston Group’s claim of title.
Louisiana advances a different version of events. It concedes that there did exist a Stack Island in 1881 and that it was formed in Mississippi territory. In that year the land was surveyed for a federal land patent that was later granted to the Houston Group’s predecessor in interest, Stephen Blackwell. Louisiana maintains that two years later, in 1883, Stack Island washed away and was replaced by mere alluvial deposits, which at various times over the last 100 years were not sufficient in size or stability to be deemed an island. Some of these alluvial deposits may or may not have gravitated to the disputed area; nonetheless, according to Louisiana, the disputed area was not formed from anything that can be said to be Stack Island but rather was formed by random accretion to the west bank of the river.
The Special Master rejected Louisiana’s theory as not supported by the evidence, and we agree. The only evidence that Louisiana presented to support its theory of Stack Island’s disappearance is a Mississippi River Commission map dated April 1883. The map was prepared in 1881, with hy-drographic data added in an overlay in 1883. Of particular interest is a solid green line labeled as the “present steamboat channel” that runs over a portion of Stack Island as it was drawn in 1881. Louisiana’s expert interpreted that green line to mean that Stack Island had disappeared by 1883.
The Special Master questioned the authenticity of the document because testimony suggested that no such map had been published by the Mississippi River Commission and because a different map published by the Commission the same month, April 1883, showed Stack Island in existence. Even if we assume the document’s authenticity, however, it does not settle the question, for we agree with the Special Master that boats could have passed close enough to the island without the entire island having disappeared. Louisiana’s reading of the document was contradicted, moreover, by the sworn testimony of Stephen Blackwell and two other witnesses given on May 5, 1885, stating that Blackwell and his family had lived on Stack Island continuously from April 2, 1882, to the date of the testimony and were cultivating 20 acres. Furthermore, in November 1883, six months after Stack Island was supposed to have vanished, the Mississippi River Commission, in reporting on its construction of dikes just north of Stack Island, stated that “ ‘this work showed good results, forcing the main channel of the river to the right of the island and building a bar to the head of Stack Island, as shown by the high-water survey of April 1883.’” Report of Special Master 20.
Like the Special Master, we are unconvinced that Stack Island disappeared in 1883. Louisiana alleges other disappearances, including one as recently as 1948. We find no credible evidence of these disappearances, but instead find compelling evidence of Stack Island’s continued existence. We note first that the north portion of Stack Island has 70-year-old cottonwood trees growing on it and that long-time residents of the area report no disappearances of the island. The record, moreover, contains numerous maps of the region beginning with the 1881 patent survey and coming into the present era, and every one of them shows the existence of Stack Island. With the exception of a single exhibit, dated 1970, all of the maps and mosaics show a land mass that the mapmaker identifies by name as Stack Island, even for the years since 1954 when that land mass has no longer been insular in form. These maps show Stack Island’s progression from the Mississippi side of the river to the Louisiana side. When the maps are superimposed one over the other in chronological order, the successive maps show a land mass covering a significant portion of Stack Island shown on the preceding map. The maps satisfy us that Stack Island did not wash away and is now the disputed area.
We need not delve into the proper definition of an island, as Louisiana would have us do, because the Special Master adopted Louisiana’s rigorous test, and found that Stack Island satisfied it.
Louisiana raises no exceptions to that portion of the Special Master’s report finding that Louisiana lacked standing to challenge the Houston Group’s claim of title. Louisiana requests a new trial of the supplemental hearing before the Special Master but offers no sound reason in support of that request, so we must deny it.
We have considered Louisiana’s other exceptions and find them insubstantial. The exceptions of Louisiana are overruled, and the Special Master’s report and proposed decree are adopted.
It is so ordered. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them.
Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. | Who is the respondent of the case? | [
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"International Entity"
] | [
27
] | sc_respondent |
SHERBERT v. VERNER et al., MEMBERS OF SOUTH CAROLINA EMPLOYMENT SECURITY COMMISSION, et al.
No. 526.
Argued April 24, 1963.
Decided June 17, 1963.
William D. Donnelly argued the cause and filed briefs for appellant.
Daniel R. McLeod, Attorney General of South Carolina, argued the cause for appellees'. With him on the brief was Victor S. Evans, Assistant Attorney General.
Briefs of amici curiae, urging reversal, were filed by Morris B. Abram, Edwin J. Lukas, Arnold Forster, Melvin' L. Wulf, Paul Hartman, Theodore Leskes and Sol Rabkin for the American Jewish Committee et al., and by Leo Pfeffer, Lewis H. Weinstein, Albert'Wald, Shad Polier, Ephraim S. London, Samuel Láwrence Brennglass and Jacob Sheinkman for the Synagogue Council of America et al.
Mr. Justice Brennan
delivered the opinion of the Court.
Appellant, a member of the Seventh-day Adventist Church, was discharged by her South Carolina employer because she would not work on- Saturday, the Sabbath Day of her faith. When she was unable to obtain' other employment because from conscientious scruples' she would not take Saturday work, she filed a claim for unemployment compensation benefits under the South Carolina Unemployment -Compensation Act. That law provides that, to be eligible for benefits, a claimant must be “able to work and . . . available for work’.'; and, further, that a claimant is ineligible for benefits “ [i] f . . .-he has failed, without good causé . . . to accept available suitable work when offered him by the employment office or the employer . . . The appellee Employment Secu-. rity Commission, in administrative proceedings under the statute, found that appellant’s restriction upon her availability for Saturday work brought 'her within the provision disqualifying for benefits insured workers who fail, without good cause, to accept “suitable work when offered ... by the employment office or thé employer .'...” The Commission’s finding was sustained by the Court of Common Pleas for Spartanburg County.. That court’s judgment was* in turn affirmed by the South Carolina Supreme Court, which rejected appellant’s contention that, as applied to her, the disqualifying provisions of the South Carolina statute abridged her right to the free exercise of her religion secured under the Free Exercise Clause of the First Amendment through the Fourteenth Amendment. The State Supreme Court held specifically that appellant’s ineligibility infringed no constitutional -liberties because such, a construction of the statute “places no restriction upon the appellant’s freedom .of religion nor does it in any way prevent her in the exercise of her right and freedom to observe her religious beliefs in accordance with the dictates of her conscience.” 240 S. C. 286, 303-304, 125 S. E. 2d 737, 746 We noted probable jurisdiction of appellant’s appeal. 371 TJ. S. 938. We reverse the judgmént of the South Carolina Supreme Court and remand for further proceedings not inconsistent with this opinion.
I.
The door of the Free Exercise Clause stands tightly-closed against any governmental regulation of religious beliefs as such, Cantwell v. Connecticut, 310 U. S. 296, 303. Government may neither compel affirmation of a repugnant belief, Torcaso v. Watkins, 367 U. S. 488; nor penalize or discriminate against individuals or groups because they hold religious views abhorrent to the authorities, Fowler v. Rhode Island, 345 U. S. 67; nor employ the taxing power to inhibit the dissemination of particular religious views, Murdock v. Pennsylvania, 319 U. S. 105; Follett v. McCormick, 321 U. S. 573; cf. Grosjean v. American Press Co., 297 U. S. 233. On the other hand, the Court has rejected challenges under the Free Exercise Clause to governmental regulation of certain overt acts prompted by religious beliefs or principles, for “even when the action is in accord with one’s religious convictions, [it] is not totally free from legislative restrictions.” Braunfeld v. Brown, 366 U. S. 599, 603. The conduct or actions so regulated have invariably posed some substantial threat to public safety, peace or order. See, e. g., Reynolds v. United States, 98 U. S. 145; Jacobson v. Massachusetts, 197 U. S. 11; Prince v. Massachusetts, 321 U. S. 158; Cleveland v. United States, 329 U. S. 14.
Plainly enough, appellant’s conscientious objection to Saturday work constitutes no conduct prompted by religious principles of a kind within the reach of state legislation. If, therefore, the decision of the South Carolina Supreme Court is to withstand appellant’s constitutional challenge, it must be either because her disqualification as a beneficiary represents no infringement by the State of her constitutional rights of free exercise, or because any incidental burden on the free exercise of appellant’s religion may be justified by a “compelling state interest in the regulation of a subject within the State’s constitutional power to regulate . . . .” NAACP v. Button, 371 U. S. 415, 438.
II.
We turn first to the question whether the disqualification for benefits imposes any burden on the free exercise of appellant’s religion. We think it is clear that it does. In a sense the consequences of such a disqualification to religious principles and practices may be only an indirect result of welfare legislation within the State’s general competence to enact; it is true that no criminal sanctions directly compel appellant to work a six-day week. But this is only the beginning, not the end, of our inquiry. For “[i]f the purpose &r effect of a law is to impede the* observance of one or all religions or is to discriminate invidiously between religions, that law is constitutionally invalid even though the burden may be characterized as being only indirect.” Braunfeld v. Brown, supra, at 607. 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.
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. American Communications Assn. v. Douds, 339 U. S. 382, 390; Wieman v. Updegraff, 344 U. S. 183, 191-192; Hannegan v. Esquire, Inc., 327 U. S. 146,155-156. For example, in Flemming v. Nestor, 363 U. S. 603, 611, the Court recognized with respect to Federal Social Security benefits that “[t]he interest of a covered employee under the Act is of sufficient substance to fall within the protection from arbitrary governmental action afforded by the Due Process Clause.” In Speiser v. Randall, 357 U. S. 513, we emphasized that conditions upon public benefits cannot be sustained if they so operate, whatever their purpose, as to inhibit or deter the exercise of First Amendment freedoms. We there struck down a condition which limited the availability of a tax exemption to those members of the exempted class who affirmed their loyalty to the state government granting the exemption. While the State was surely under no obligation to afford such an exemption, we held that the imposition of such a condition upon even a gratuitous benefit inevitably deterred or discouraged the exercise of First Amendment rights of expression and thereby threatened to “produce a result which .the State could not command directly.” 357 U. S., at 526. “To deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for such speech.” Id., at 518. Likewise, to 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.
Significantly South Carolina expressly saves the Sunday worshipper from having to make the kind of choice which we here hold infringes the Sabbatarian’s religious liberty. When in times of “national emergency” the textile plants are authorized by the State Commissioner of Labor to operate on Sunday, “no employee shall be required to work on Sunday,. . . who is conscientiously opposed to Sunday work; and if any employee should refuse to work on Sunday on account of conscientious . . objections he or she shall not jeopardize his or her seniority by such refusal or be discriminated against in any other manner.” S. C. Code, § 64-4. No question of.the disqualification of a Sunday worshipper for benefits is likely to arise, since we cannot suppose that an employer will discharge him in violation of this statute. The unconstitutionality of the disqualification of the Sabbatarian is thus 'Compounded by the religious discrimination which South Carolina’s general statutory scheme necessarily effects.
III.
We must next consider whether some compelling state interest enforced in the eligibility provisions of the South Carolina statute justifies the substantial infringement of appellant’s First- Amendment right. It is basic that no showing merely of a rational relationship to some colorable state interest would suffice; in this highly sensitive constitutional area, “[o]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation,” Thomas v. Collins, 323 U. S. 516, 530. No such abuse or danger has been advanced in the present caso. The appellees suggest no more than a possibility that the filing of fraudulent claims by unscrupulous claimants feigning religious objections to Saturday work might not only dilute the unemployment compensation fund but also hinder the scheduling by employers of necessary Saturday work. But that possibility is not apposite here because no such objection appears to have been made before the South Carolina Supreme Court, and we are unwilling to assess the importance of an asserted state interest without the views of' the state court. Nor,' if the contention had been made below, would the record appear to sustain it; there is no proof whatever to warrant such fears of malingering or deceit as those which the respondents now advance. Even if consideration of such. evidence is not foreclosed by the prohibition against judicial inquiry into the truth or falsity of religious beliefs, United States v. Ballard, 322 U. S. 78 — a question- as to which we intimate no view since it is not before us — it is highly doubtful whether such evidence would be sufficient to warrant a substantial infringement of religious liberties. For-even if the possibility of spurious claims did threaten to dilute the fund and disrupt the scheduling of work, it would plainly be incumbent upon the appellees to demonstrate that no alternative form's of regulation would combat such abuses without infringing First Amendment rights. Cf. Shelton v. Tucker, 364 U. S. 479, 487-490; Talley v. California, 362 U. S. 60, 64; Schneider v. State, 308 U. S. 147, 161; Martin v. Struthers, 319 U. S. 141, 144-149.
In these respects, then, the state interest asserted in the present case is wholly dissimilar to the interests which were found to justify the less direct burden upon religious practices in Braunfeld v. Brown, supra. The Court recognized that the Sunday closing law which that decision sustained undoubtedly served “to make the practice of [the Orthodox Jewish merchants’] . . . religious beliefs more expensive,” 366 U. S., at 605. But the statute was nevertheless saved by a countervailing factor which finds no equivalent in the instant case — a strong state interest in providing one uniform day of pest for all workers. That secular objective could be achieved, the Court found, only by declaring Sunday to be that day of rest. Requiring exemptions for Sabbatarians, while theoretically possible, appeared to present an administrative problem of such magnitude, or to afford the exempted class so great a competitive advantage, that such a requirement would have rendered the- entire statutory-scheme unworkable. In the present case no such justifications underlie the determination of the state court that appellant’s religion makes her ineligible to receive benefits.
IV.
In holding as we do, plainly we are not fostering the “establishment” of the Seventh-day Adventist religion in South Carolina, for the extension of unemployment benefits to Sabbatarians in common with Sunday worshippers reflects nothing more than the governmental obligation of neutrality in the face of religious differences, and does not represent that involvement of religious with secular institutions which it is the object of the Establishment Clause to forestall. See School District of Abington Township v. Schempp, ante, p. 203. Nor does the recognition of the appellant’s right to unemployment benefits under the state statute serve to abridge any other person’s religious liberties. 'Nor do we, by our decision today, declare the existence of a constitutional right to unemployment benefits on the part of all persons whose religious convictions are the cause of their unemployment. This is not a case in which an employee’s religious convictions serve to make him a nonproductive member of society. See note 2, supra. Finally, nothing we say today constrains the States to adopt any particular form or scheme of unemployment compensation. Our holding today is only that South Carolina may not constitutionally apply the eligibility provisions so as to constrain a. worker to abandon his religious convictions respecting the day of rest. This holding but reaffirms a principle that we announced a decade and a half ago, namely that no State may “exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation:” Everson v. Board of Education, 330 U. S. 1, 16.
In view of the result we have reached under the First and Fourteenth Amendments’ guarantee of free exercise of religion, we have no occasion to- consider appellant’s claim that the denial of benefits also deprived her of the equal protection of the laws in violation of the Fourteenth Amendment.
The judgment of the South Carolina Supreme Court is reversed and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Appellant became a member of the Seventh-day Adventist Church in 1957, at a time when her employer, a textile-mill operator, permitted her to work a five-day week. It was not until 1959 that the work week was changed to six days, including Saturday, for all three shifts in the employer’s mill. No question has been raised in this case concerning the sincerity of appellant’s religious beliefs. Nor is there any doubt that the prohibition against Saturday labor is a basic tenet of the Seventh-day Adventist creed, based upon, that religion’s interpretation of the Holy Bible.
After her discharge, appellant sought employment with three other mills in the Spartanburg area, but found no suitable five-day work available at any of the mills. In filing her claim with the Commission, she expressed a willingness to accept employment at other mills, or even in another industry, so long as Saturday work was not required. The record indicates that of the 150 or more'Seventh-day Adventists in the Spartanburg area, only appellant and one other have been unable to find suitable non-Saturd'ay employment.
The pertinent sections of the South Carolina Unemployment Compensation Act (S. C. Code, Tit. 68, §§ 68-1 to 68-404) are as follows:
.“§ 68-113. Conditions of eligibility for benefits. — An unemployed insured worker shall be eligible to receive benefits with respect to any week only if the Commission finds that: ...
“(3) He is able to work and is available for work, but no claimant shall be considered available for work if engaged in self-employment of such nature as to return or promise remuneration in excess of' the weekly benefit amounts he would have received if otherwise unemployed over such period of time.....
“§ 68-114. Disqualification for benefits. — Any insured worker shall be ineligible -for benefits: . . .
“'(2) Discharge for misconduct. — If the Commission finds that he has been discharged for misconduct connected with his most recent work prior to filing a request for determination of insured status or a request for initiation of a claim series within an established benefit year, with such ineligibility beginning with the effective date of such request, and continuing not less than five nor more than the next twenty-two consecutive weeks (in addition to the waiting period), as determined by the- Commission in each case according to the seriousness of the misconduct ....
“(3) Failure to accept work. — (a) If the Commission finds'that he has failed, without good cause, (i) either to apply for available suitable work, when so directed by the employment office or the Commission, (ii) to accept available suitable work when offered him by the employment office or the employer or (iii) to return to his customary self-employment (if any) when so directed by the Commission, such ineligibility shall continue for a period of five weeks (the week in which- such failure occurred and the next four weeks in addition to the waiting period) as determined by the Commission according to the circumstances in each case ....
“(b) In determining whether or not any work is suitable for an individual, the Commission shall consider the degree of risk involved to his health, safety and morals, his physical fitness and prior training, his experience and prior earnings, his length of unemployment and prospects for securing local work in his customary occupation and the distance of the available work from his residence.”
It has been suggested that appellant is not within the elass entitled to benefits under the South Carolina statute because her unemployment did not result from discharge or layoff due to lack of work. It is true that unavailability for work for some personal reasons not having to do with matters of conscience or religion has been held to be a basis of disqualification for benefits. See, e. g., Judson Mills v. South Carolina Unemployment Compensation Comm’n, 204 S. C. 37, 28 S. E. 2d 535; Stone Mfg. Co. v. South Carolina Employment Security Comm’n, 219 S. C. 239, 64 S. E. 2d 644. But appellant claims that the Free Exercise Clause prevents the State from basing the denial of benefits upon the “personal reason” she gives for not working on Saturday. Where the consequence of disqualification so directly affects First Amendment rights, surely we should not conclude that every “personal reason” is a basis for disqualification in the absence of explicit language to that effect in the statute or decisions of the South Carolina Supreme Court. Nothing we have found in the statute or in the cited decisions, cf. Lee v. Spartan Mills, 7 CCH Unemployment Ins. Rep. S. C. ¶ 8156 (C. P. 1944), and certainly nothing in the South Carolina Court’s opinion in this case so construes the statute. Indeed, the contrary seems to have been that court’s basic assumption, for if the eligibility provisions were thus limited, it would have been unnecessary for the court to have decided appellant’s constitutional challenge to the application of the statute under the Free Exercise Clause.
Likewise, the decision of the State Supreme Court does not rest upon a finding, that appellant was disqualified for benefits because she had been “discharged for misconduct” — by reason of her Saturday absences — within the meaning of §68-114(2). That ground was not adopted by the South Carolina Supreme Court, and the appellees do not urge in this Court that the disqualification rests upon that ground.
In a closely analogous context, this Court said:
“. . . the fact that no direct restraint or punishment is imposed upon speech or assembly does not determine the free speech question. Under some circumstances, indirect ‘discouragements’ undoubtedly have the same coercive effect upon the exercise of First Amendment rights as imprisonment, fines, injunctions or taxes. A requirement that adherents of particular religious faiths or political parties wear identifying arm-bands, for example, is obviously of this nature.” American Communications Assn. v. Douds, 339 U. S. 382, 402. Cf. Smith v. California, 361 U. S. 147, 153-155.
See for examples of conditions and qualifications upon governmental privileges and benefits which have been invalidated because of their tendency to inhibit constitutionally protected activity, Steinberg v. United States, 143 Ct. Cl. 1, 163 F. Supp. 590; Syrek v. Cali fornia Unemployment Ins. Board, 54 Cal. 2d 519, 354 P. 2d 625; Fino v. Maryland Employment Security Board, 218 Md. 504, 147 A. 2d 738; Chicago Housing Authority v. Blackman, 4 Ill. 2d 319, 122 N. E. 2d 522; Housing Authority of Los Angeles v. Cordova, 130 Cal. App. 2d 883, 279 P. 2d 215; Lawson v. Housing Authority of Milwaukee, 270 Wis. 269, 70 N. W. 2d 605; Danskin v. San Diego Unified School District, 28 Cal. 2d 536, 171 P. 2d 885; American Civil Liberties Union v. Board of Education, 55 Cal. 2d 167, 359 P. 2d 45; cf. City of Baltimore v. A. S. Abell Co., 218 Md. 273, 145 A. 2d 111. See also Willcox, Invasions of the First Amendment Through Conditioned Public Spending, 41 Cornell L. Q. 12 (1955); Emerson, Toward a General Theory of the First Amendment, 72 Yale L. J. 877, 942-943 (1963); 36 N. Y. U. L. Rev. 1052 (1961); 9 Kan. L. Rev. 346 (1961); Note, Unconstitutional Conditions, 73 Harv. L. Rev. 1595, 1599-1602 (1960).
We note that before the instant decision, state supreme courts had, without exception, granted benefits to persons who were physically available for work but unable to find suitable employment solely because of a religious prohibition against Saturday work. E. g., In re Miller, 243 N. C. 509, 91 S. E. 2d 241; Swenson v. Michigan Employment Security Comm’n, 340 Mich. 430, 65 N. W. 2d 709; Tary v. Board of Review, 161 Ohio St. 251, 119 N. E. 2d 56. Cf. Kut v. Albers Super Markets, Inc., 146 Ohio St. 522, 66 N. E. 2d 643, appeal dismissed sub nom. Kut v. Bureau of Unemployment Compensation, 329 U. S. 669. One author has observed, “the law was settled that conscientious objections to work on the Sabbath made such work unsuitable and that such objectors were nevertheless available for work. .... A contrary opinion would make the unemployment compensation law unconstitutional, as a violation of freedom of religion. Religious convictions, strongly held, are so impelling as to constitute good cause for refusal. Since availability refers to suitable work, religious observers were not unavailable because they excluded Sabbath work.” Altman, Availability for Work: A Study in Unemployment Compensation (1950), 187. See also Sanders, Disqualification for Unemployment Insurance, 8 Vand. L. Rev. 307, 327-328 (1955); 34 N. C. L. Rev. 591 (1956); cf. Freeman, Able To Work and Available for Work, 55 Yale L. J. 123, 131 (1945). Of the 47 States which have- eligibility provisions similar to those of- the South Carolina statute, only 28 appear to have given administrative rulings concerning the eligibility of persons whose religious convictions prevented them from accepting available work. Twenty-two of those States have held such persons entitled to benefits, although apparently only one such decision rests exclusively upon the federal constitutional ground which constitutes -the basis of our decision. See 111 U. of Pa. L. Rev. 253, and n. 3 (1962); 34 N. C. L. Rev. 591, 602, n. 60 (1956).
See Note, State Sunday Laws and the Religious Guarantees of the Federal Constitution, 73 Harv. L. Rev. 729, 741-745 (1960).
These considerations also distinguish the quite different case of Flemming v. Nestor, supra, upon which appellees rely. In that case the Court found that the compelling federal interests which underlay the decision of Congress to impose such a disqualification justified whatever effect the denial of social security benefits may have had upon the disqualified class. See 363 U. S., at 612. And compare Torcaso v. Watkins, supra, in which an undoubted state interest in ensuring the veracity and trustworthiness of Notaries Public was held insufficient to justify the substantial infringement upon the religious freedom of applicants for -that position which resulted from a required oath of belief in God. See 74 Harv. L. Rev. 611, 612-613 (1961); 109 U. of Pa. L. Rev. 611, 614-616 (1961). | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence. | What is the basis of the Supreme Court's decision? | [
"judicial review (national level)",
"judicial review (state level)",
"Supreme Court supervision of lower federal or state courts or original jurisdiction",
"statutory construction",
"interpretation of administrative regulation or rule, or executive order",
"diversity jurisdiction",
"federal common law"
] | [
1
] | sc_authoritydecision |
UNITED STATES v. BORDEN COMPANY et al.
No. 439.
Argued April 24-25, 1962.
Decided June 25, 1962.
Richard A. Solomon argued the cause for the United States. With him on the briefs were Solicitor General Cox, Assistant Attorney General Loevinger and Elliott H. Moyer.
Stuart S. Ball argued the cause for The Borden Company, appellee. With him on the briefs was H. Blair White.
John Paul Stevens argued the cause for Bowman Dairy Company, appellee. With him on the briefs was L. Edward Hart.
Mr. Justice Clark
delivered the opinion of the Court.
This is a direct appeal from a judgment dismissing the Government’s Section 2 (a) Clayton Act suit in which it sought an injunction against the selling of fluid milk products by the appellees, The Borden Company and Bowman Dairy Company, at prices which discriminate between independently owned grocery stores and grocery store chains. The District Court in an unreported decision found the pricing plan of each dairy to be a prima facie violation of § 2 (a) but concluded that these discriminatory prices were legalized by the cost justification proviso of § 2 (a), which permits price differentials as long as they “make only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing methods or quantities in which such commodities are to such purchasers sold or delivered.” To review the Government’s contention that the District Court had improperly permitted cost justifications based on the average cost of dealing with broad groups of customers unrelated in cost-saving factors, we noted probable jurisdiction, 368 U. S. 924, and directed the parties to brief and argue the case separately as to each appellee, 368 U. S. 963. However, finding the same problem at the root of the cost justifications of each appellee, we have dealt with both in this single opinion. We have concluded that the class cost justifications submitted to the District Court by the appellees did not satisfy their burden of showing that their respective discriminatory pricing plans reflected only a “due allowance” for cost differences.
By way of background, we first point out that the present appeal is merely a glimpse of protracted litigation between the parties which began in 1951 and which has not yet seen its end. The original complaint charged violations of §§ 1 and 2 of the Sherman Act and § 2 (a) of the Clayton Act. The District Court dismissed the suit, holding that there was no proof of the alleged Sherman Act violations and that no equitable relief was necessary under the Clayton Act charge because appellees were already restrained by a consent decree entered in a private antitrust case. 111 F. Supp. 562. On direct appeal we affirmed the dismissal of the Sherman Act charges but held erroneous the refusal to grant an injunction on the Clayton Act claim solely because of the existence of the private decree. 347 U. S. 514. On remand the case was reopened and on its prima facie case the Government introduced recent general price schedules and illustrated their effect on sample stores to show that each appellee was still engaged in illegal price discrimina-tions notwithstanding the consent decree. In defense the appellees each introduced voluminous cost studies in justification of their pricing systems. The entire case was submitted via stipulations, depositions, and briefs. There was no dispute as to the existence of price discrimination; the sole question was whether the differences in price reflected permissible allowances for variances in cost.
In view of our disposition, we need not relate the facts in detail. Both appellees are major distributors of fluid milk products in metropolitan Chicago. The sales of both dairies to retail stores during the period in question were handled under plans which gave most of their customers — the independently owned stores — percentage discounts off list price which increased with the volume of their purchases to a specified maximum while granting a few customers — the grocery store chains — a flat discount without reference to volume and substantially greater than the maximum discount available under the volume plan offered independent stores. These discounts were made effective through schedules which appeared to cover all stores; however, the schedules were modified by private letters to the grocery chains confirming their higher discounts. Although the two sets of discounts were never officially labeled “independent” and “chain” prices, they were treated, called, and regarded as such throughout the record.
To support their defense that the disparities in price between independents and chains were attributable to differences in the cost of dealing with the two types of customers, the appellees introduced cost studies which will be described separately because of their differing content and analytical approach.
The Borden pricing system produced two classes of customers. The two chains, A & P and Jewel, with their combined total of 254 stores constituted one class. The 1,322 independent stores, grouped in four brackets based on the volume of their purchases, made up the other. Borden’s cost justification was built on comparisons of its average cost per $100 of sales to the chains in relation to the average cost of similar sales to each of the four groups of independents. The costs considered were personnel (including routemen, clerical and sales employees), truck expenses, and losses on bad debts and returned milk. Various methods of cost allocation were utilized: Drivers’ time spent at each store was charged directly to that store; certain clerical expenses were allocated between the two general classes; costs not susceptible of either of the foregoing were charged to the various stores on a per stop, per store, or volume basis.
Bowman’s cost justification was based on differences in volume and methods of delivery. It relied heavily upon a study of the cost per minute of its routemen’s time. It determined that substantial portions of this time were devoted to three operations, none of which were ever performed for the 163 stores operated by its two major chain customers. These added work steps arose from the method of collection, i. e., cash on delivery and the delayed collections connected therewith, and the performance of “optional customer services.” The customer services, performed with varying frequency depending upon the circumstances, included “services that the driver may be requested to do, such as deliver the order inside, place the containers in a refrigerator, rearrange containers so that any product remaining unsold from yesterday will be sold first today, leave cases of products at different spots in the store, etc.” The experts conducting the study calculated as to these elements a “standard” cost per unit of product delivered: the aggregate time required to perform the services, as determined by sample time studies,-was divided by the total number of units of product delivered. In essence, the Bowman justification was merely a comparison of the cost of these services in relation to the disparity between the chain and independent prices. Although it was shown that the five sample independents in the Government's prima facie case received the added services, it was not shown or found that all 2,500 independents supplied by Bowman partook of them. On the basis of its studies Bowman estimated that about two-thirds of the independent stores received the “optional customer services” on a daily basis and that “most store customers pay the driver in cash daily.”
On these facts, stated here in rather summary fashion, the trial court held that appellees had met the requirements of the proviso of § 2 (a) on the theory that the general cost differences between chain stores as a class and independents as a class justified the disparities in price reflected in appellees’ schedules. In so doing the trial court itself found “the studies . . . imperfect in some respects . . . It noted the “seemingly arbitrary" nature of a classification resulting “in percentage discounts which do not bear a direct ratio to differences in volume of sales.” But it found “this mode of classification is not wholly arbitrary — after all, most chain stores do purchase larger volumes of milk than do most independent stores.” We believe it was erroneous for the trial court to permit cost justifications based upon such classifications.
The burden, of course, was upon the appellees to prove that the illegal price discrimination, which the Government claimed and the trial court found present, was immunized by the cost justification proviso of § 2 (a). Such is the mandate of § 2 (b) as interpreted by this Court in Federal Trade Comm’n v. Morton Salt Co., 334 U. S. 37, 44-45 (1948). There can be no doubt that the § 2 (a) proviso as amended by the Robinson-Patman Act contemplates, both in express wording and legislative history, a showing of actual cost differences resulting from the differing methods or quantities in which the commodities in question are sold or delivered. The only question before us is how accurate this showing must be in relation to each particular purchaser.
Although the language of the proviso, with some support in the legislative history, is literally susceptible of a construction which would require any discrepancy in price between any two purchasers to be individually justified, the proviso has not been so construed by those charged with its enforcement. The Government candidly recognizes in its briefs filed in the instant case that “[a]s a matter of practical necessity . . . when a seller deals with a very large number of customers, he cannot be required to establish different cost-reflecting prices for each customer.” In this same vein, the practice of grouping customers for pricing purposes has long had the approval of the Federal Trade Commission. We ourselves have noted the “elusiveness of cost data” in a Robinson-Patman Act proceeding. Automatic Canteen Co. v. Federal Trade Comm’n, 346 U. S. 61, 68 (1953). In short, to completely renounce class pricing as justified by class accounting would be to eliminate in practical effect the cost justification proviso as to sellers having a large number of purchasers, thereby preventing such sellers from passing on economies to their customers. It seems hardly necessary to say that such a result is at war with Congress’ language and purpose.
But this is not to say that price differentials can be justified on the basis of arbitrary classifications or even classifications which are representative of a numerical majority of the individual members. At some point practical considerations shade into a circumvention of the proviso. A balance is struck by the use of classes for cost justification which are composed of members of such selfsameness as to make the averaging of the cost of dealing with the group a valid and reasonable indicium of the cost of dealing with any specific group member. High on the list of “musts” in the use of the average cost of customer groupings under the proviso of § 2 (a) is a close resemblance of the individual members of each group on the essential point or points which determine the costs considered.
In this regard we do not find the classifications submitted by the appellees to have been shown to be of sufficient homogeneity. Certainly, the cost factors considered were not necessarily encompassed within the manner in which a customer is owned. Turning first to Borden’s justification, we note that it not only failed to show that the economies relied upon were isolated within the favored class but affirmatively revealed that members of the classes utilized were substantially unlike in the cost saving aspects considered. For instance, the favorable cost comparisons between the chains and the larger independents were for the greater part controlled by the higher average volume of the chain stores in comparison to the average volume of the 80-member class to which these independents were relegated. The District Court allowed this manner of justification because “most chain stores do purchase larger volumes of milk than do most independent stores.” However, such a grouping for cost justification purposes, composed as it is of some independents having volumes comparable to, and in some cases larger than, that of the chain stores, created artificial disparities between the larger independents and the chain stores. It is like averaging one horse and one rabbit. As the Federal Trade Commission said in In the Matter of Champion Spark Plug Co., 50 F. T. C. 30, 43 (1953): “A cost justification based on the difference between an estimated average cost of selling to one or two large customers and an average cost of selling to all other customers cannot be accepted as a defense to a charge of price discrimination.” This volume gap between the larger independents and the chain stores was further widened by grouping together the two chains, thereby raising the average volume of the stores of the smaller of the two chains in relation to the larger independents. Nor is the vice in the Borden class justification solely in the paper volumes relied upon, for it attributed to many independents cost factors which were not true indicia of the cost of dealing with those particular consumers. To illustrate, each independent was assigned a portion of the total expenses involved in daily cash collections, although it was not shown that all independents paid cash and in fact Borden admitted only that a “large majority” did so.
Likewise the details of Bowman’s cost study show a failure in classification. Only one additional point need be made. Its justification emphasized its costs for “optional customer service” and daily cash collection with the resulting “delay to collect.” As shown by its study these elements were crucial to Bowman’s cost justification. In the study the experts charged all independents and no chain store with these costs. Yet, it was not shown that all independents received these services daily or even on some lesser basis. Bowman’s studies indicated only that a large majority of independents took these services on a daily basis. Under such circumstances the use of these cost factors across the board in calculating independent store costs is not a permissible justification, for it possibly allocates costs to some independents whose mode of purchasing does not give rise to them. The burden was upon the profferer of the classification to negate this possibility, and this burden has not been met here. If these factors control the cost of dealing, then their presence or absence might with more justification be the password for admission into the various price categories.
The appellees argue in the alternative that their cost justifications can be sufficiently unscrambled to remove any taint the Court may find in them and still show a cost gap sufficient to justify the price disparity between the chains and any independent. This mass of underlying statistical data not considered by the trial court and now tied together by untried theories can best be evaluated on remand, and we therefore do not consider its sufficiency here.
In sum, the record here shows that price discriminations have been permitted on the basis of cost differences between broad customer groupings, apparently based on the nature of ownership but in any event not shown to be so homogeneous as to permit the joining together of these purchasers for cost allocations purposes. If this is the only justification for appellees’ pricing schemes, they are illegal. We do not believe that an appropriate decree would require the trial court continuously to “pass judgment on the pricing practices of these defendants.” As to the issuance of an injunction, however, the case is now 11 years old and we have no way of knowing whether equitable relief is in order. Certainly a relevant factor in such consideration would be whether the practices described above are still being followed in any form. This the record here does not show. Such matters can only be ascertained upon the presently existing facts and the careful application of the principles we have enunciated. For that purpose the case is
Reversed and remanded.
Mr. Justice Frankfurter took no part in the consideration or decision of this case.
Jurisdiction is conferred under § 2 of the Expediting Act of February 11, 1903, 32 Stat. 823, as amended, 15 U. S. C. § 29.
“Sec. 2. (a) That it shall be unlawful for any person engaged in commerce, in the course of such commerce, ... to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, . . . and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them: Provided, That nothing herein contained shall prevent differentials which make only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing methods or quantities in which such commodities are to such purchasers sold or delivered . . . .” 38 Stat. 730, as amended, 49 Stat. 1526, 15 U. S. C. §13 (a).
Bowman's contention that the Government by stipulation limited itself to specific objections which do not include the present one is without foundation in the record. At the time the stipulation was proposed, the trial court made it quite clear that the Government by so stipulating was not waiving its right to argue the legal sufficiency of the proffered cost studies.
Borden in June of 1954 issued the following discount schedule to “be applied to all purchases of Borden’s fresh milk”:
Percent of Average converted units per day: discounts
0-24. 0
25- 74 . 2
75-149 . 3
150 and over. 4
At this same time, letters were sent to The Great Atlantic and Pacific Tea Compaq'’ and The Jewel Food Stores granting them flat 8%% discounts. A few of the larger independents by special arrangement were given an additional 1%% discount, thereby raising their total discount to 5%%•
In September 1955, Borden discontinued the above discount system and utilized a net price scheme which resulted in even greater disparities between chains and independents.
Bowman in June of 1954 operated under the following “Resale Store Discount Schedule”: _ .
, Percent of Average converted points per day: discounts
0 to 10. 3.0 to 3.4
10 to 20. 3.4 to 3.8
20 to 30. 3.8 to 4.2
30 to 40. 4.2 to 4.6
40 to 50. 4.6 to 5.0
50 to 60. 5.0 to 5.2
60 to 70. 5.2 to 5.4
70 to 80. 5.4 to 5.6
80 to 90. 5.6 to 5.8
90 to 100. 5.8 to 6.0
100 to 110. 6.0 to 6.2
110 to 120. 6.2 to 6.4
120 to 130. 6.4 to 6.6
130 to 140. 6.6 to 6.8
140 to 150. 6.8 to 7.0
This schedule was modified in August by the addition of the following discounts: _ , ,
, Percent of Average converted points per day: discounts
150 to 200. 7.0 to 8.0
Over 200. 8.0
During this same period Bowman by letter granted The Great Atlantic and Pacific Tea Company and The Kroger Company flat 11% discounts. Goldblatt Bros., also a multi-store operation, was granted a flat 8%%-
In 1955 and again in 1956 Bowman modified the brackets and percentages of its discount schedules, but not in a manner which reduced the disparity between independents and chains.
The third chain, Goldblatt Bros., also did not take these services.
The contention is made that the Government limited its prima facie case to a few stores on some routes and that therefore cost justification was only necessary as to them. This overlooks the fact that sampling has long been a recognized technique in price discrimination cases and that this offering was in support of the Government’s position, found valid by the trial court, that the entire Chicago pricing scheme of each appellee, as evidenced by its published price lists, was in violation of §2 (a). In addition, appellee's cost justifications were not limited to the Government’s sample stores.
Even the trial court was unwilling to give its “stamp of approval to all pricing policies and practices revealed by the evidence.” But it concluded that to enjoin such practices would lead to regulation and would require the court continually “to pass judgment on the pricing practices of these defendants,” a matter which might better be handled by proceedings before the Federal Trade Commission.
Sec. 2 (b). “Upon proof being made, at any hearing on a complaint under this section, that there has been discrimination in price or services or facilities furnished, the burden of rebutting the prima-facie case thus made by showing justification shall be upon the person charged with a violation of this section 49 Stat. 1526, 15 U. S. C. §13 (b).
For a collection and discussion of the pertinent legislative history as well as the cases and treatises on the § 2 (a) proviso, see Rowe, Price Discrimination Under the Robinson-Patman Act, c. 10 (1962).-
For instance, the Chairman of the Conference on the Bill reported to the House: “The differential granted a particular customer must be traceable to some difference between him and other particular customers, either in the quantities purchased by them or in the methods by which they are purchased or their delivery taken.” 80 Cong. Rec. 9417 (1936).
For a discussion of the Commission’s position in this regard, see Rowe, op. cit., supra, note 9, § 10.6.
Advisory Committee on Cost Justification, Report to the United States Federal Trade Commission (1956), p. 8.
Another suspect feature is that classifications based on services received by independents were apparently frozen — making it impossible for them to obtain larger discounts by electing not to receive the cost-determinative services — with no justifiable business reason offered in support of the practice. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them.
Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. | Who is the respondent of the case? | [
"attorney general of the United States, or his office",
"specified state board or department of education",
"city, town, township, village, or borough government or governmental unit",
"state commission, board, committee, or authority",
"county government or county governmental unit, except school district",
"court or judicial district",
"state department or agency",
"governmental employee or job applicant",
"female governmental employee or job applicant",
"minority governmental employee or job applicant",
"minority female governmental employee or job applicant",
"not listed among agencies in the first Administrative Action variable",
"retired or former governmental employee",
"U.S. House of Representatives",
"interstate compact",
"judge",
"state legislature, house, or committee",
"local governmental unit other than a county, city, town, township, village, or borough",
"governmental official, or an official of an agency established under an interstate compact",
"state or U.S. supreme court",
"local school district or board of education",
"U.S. Senate",
"U.S. senator",
"foreign nation or instrumentality",
"state or local governmental taxpayer, or executor of the estate of",
"state college or university",
"United States",
"State",
"person accused, indicted, or suspected of crime",
"advertising business or agency",
"agent, fiduciary, trustee, or executor",
"airplane manufacturer, or manufacturer of parts of airplanes",
"airline",
"distributor, importer, or exporter of alcoholic beverages",
"alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked",
"American Medical Association",
"National Railroad Passenger Corp.",
"amusement establishment, or recreational facility",
"arrested person, or pretrial detainee",
"attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association",
"author, copyright holder",
"bank, savings and loan, credit union, investment company",
"bankrupt person or business, or business in reorganization",
"establishment serving liquor by the glass, or package liquor store",
"water transportation, stevedore",
"bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines",
"brewery, distillery",
"broker, stock exchange, investment or securities firm",
"construction industry",
"bus or motorized passenger transportation vehicle",
"business, corporation",
"buyer, purchaser",
"cable TV",
"car dealer",
"person convicted of crime",
"tangible property, other than real estate, including contraband",
"chemical company",
"child, children, including adopted or illegitimate",
"religious organization, institution, or person",
"private club or facility",
"coal company or coal mine operator",
"computer business or manufacturer, hardware or software",
"consumer, consumer organization",
"creditor, including institution appearing as such; e.g., a finance company",
"person allegedly criminally insane or mentally incompetent to stand trial",
"defendant",
"debtor",
"real estate developer",
"disabled person or disability benefit claimant",
"distributor",
"person subject to selective service, including conscientious objector",
"drug manufacturer",
"druggist, pharmacist, pharmacy",
"employee, or job applicant, including beneficiaries of",
"employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan",
"electric equipment manufacturer",
"electric or hydroelectric power utility, power cooperative, or gas and electric company",
"eleemosynary institution or person",
"environmental organization",
"employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.",
"farmer, farm worker, or farm organization",
"father",
"female employee or job applicant",
"female",
"movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of",
"fisherman or fishing company",
"food, meat packing, or processing company, stockyard",
"foreign (non-American) nongovernmental entity",
"franchiser",
"franchisee",
"lesbian, gay, bisexual, transexual person or organization",
"person who guarantees another's obligations",
"handicapped individual, or organization of devoted to",
"health organization or person, nursing home, medical clinic or laboratory, chiropractor",
"heir, or beneficiary, or person so claiming to be",
"hospital, medical center",
"husband, or ex-husband",
"involuntarily committed mental patient",
"Indian, including Indian tribe or nation",
"insurance company, or surety",
"inventor, patent assigner, trademark owner or holder",
"investor",
"injured person or legal entity, nonphysically and non-employment related",
"juvenile",
"government contractor",
"holder of a license or permit, or applicant therefor",
"magazine",
"male",
"medical or Medicaid claimant",
"medical supply or manufacturing co.",
"racial or ethnic minority employee or job applicant",
"minority female employee or job applicant",
"manufacturer",
"management, executive officer, or director, of business entity",
"military personnel, or dependent of, including reservist",
"mining company or miner, excluding coal, oil, or pipeline company",
"mother",
"auto manufacturer",
"newspaper, newsletter, journal of opinion, news service",
"radio and television network, except cable tv",
"nonprofit organization or business",
"nonresident",
"nuclear power plant or facility",
"owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels",
"shareholders to whom a tender offer is made",
"tender offer",
"oil company, or natural gas producer",
"elderly person, or organization dedicated to the elderly",
"out of state noncriminal defendant",
"political action committee",
"parent or parents",
"parking lot or service",
"patient of a health professional",
"telephone, telecommunications, or telegraph company",
"physician, MD or DO, dentist, or medical society",
"public interest organization",
"physically injured person, including wrongful death, who is not an employee",
"pipe line company",
"package, luggage, container",
"political candidate, activist, committee, party, party member, organization, or elected official",
"indigent, needy, welfare recipient",
"indigent defendant",
"private person",
"prisoner, inmate of penal institution",
"professional organization, business, or person",
"probationer, or parolee",
"protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer",
"public utility",
"publisher, publishing company",
"radio station",
"racial or ethnic minority",
"person or organization protesting racial or ethnic segregation or discrimination",
"racial or ethnic minority student or applicant for admission to an educational institution",
"realtor",
"journalist, columnist, member of the news media",
"resident",
"restaurant, food vendor",
"retarded person, or mental incompetent",
"retired or former employee",
"railroad",
"private school, college, or university",
"seller or vendor",
"shipper, including importer and exporter",
"shopping center, mall",
"spouse, or former spouse",
"stockholder, shareholder, or bondholder",
"retail business or outlet",
"student, or applicant for admission to an educational institution",
"taxpayer or executor of taxpayer's estate, federal only",
"tenant or lessee",
"theater, studio",
"forest products, lumber, or logging company",
"person traveling or wishing to travel abroad, or overseas travel agent",
"trucking company, or motor carrier",
"television station",
"union member",
"unemployed person or unemployment compensation applicant or claimant",
"union, labor organization, or official of",
"veteran",
"voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)",
"wholesale trade",
"wife, or ex-wife",
"witness, or person under subpoena",
"network",
"slave",
"slave-owner",
"bank of the united states",
"timber company",
"u.s. job applicants or employees",
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration",
"War Production Board",
"Wage Stabilization Board",
"General Land Office of Commissioners",
"Transportation Security Administration",
"Surface Transportation Board",
"U.S. Shipping Board Emergency Fleet Corp.",
"Reconstruction Finance Corp.",
"Department or Secretary of Homeland Security",
"Unidentifiable",
"International Entity"
] | [
86
] | sc_respondent |
UNITED STATES v. RANDS et ux.
No. 54.
Argued October 18, 1967.
Decided November 13, 1967.
Robert S. Rijkind argued the cause for the United States. With him on the brief were Solicitor General Marshall, Assistant Attorney General Weisl, Roger P. Marquis and A. Donald Mileur.
Alex L. Parks argued the cause for respondents. With him on the brief were Sidney Teiser and Robert B. Abrams.
Mr. Justice White
delivered the opinion of the Court.
In this case the Court is asked to decide whether the compensation which the United States is constitutionally required to pay when it condemns riparian land includes the land’s value as a port site. Respondents owned land along the Columbia River in the State of Oregon. They leased the land to the State with an option to purchase, it apparently being contemplated that the State would use the land as an industrial park, part of which would function as a port. The option was never exercised, for the land was taken by the United States in connection with the John Day Lock and Dam Project, authorized by Congress as part of a comprehensive plan for the development of the Columbia River. Pursuant to statute the United States then conveyed the land to the State of Oregon at a price considerably less than the option price at which respondents had hoped to sell. In the condemnation action, the trial judge determined that the compensable value of the land taken was limited to its value for sand, gravel, and agricultural purposes and that its special value as a port site could not be considered. The ultimate award was about one-fifth the claimed value of the land if used as a port. The Court of Appeals for the Ninth Circuit reversed, apparently holding that the Government had taken from respondents a compensable right of access to navigable waters and concluding that “port site value should be compen-sable under the Fifth Amendment.” 367 F. 2d, 186, 191 (1966). We granted certiorari, 386 U. S. 989, because of a seeming conflict between the decision below and United States v. Twin City Power Co., 350 U. S. 222 (1956). We reverse the judgment of the Court of Appeals because the principles underlying Twin City govern this case and the Court of Appeals erred in failing to follow them.
The Commerce Clause confers a unique position upon the Government in connection with navigable waters. “The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States .... For this purpose they are the public property of the nation, and subject to all the requisite legislation by Congress.” Gilman v. Philadelphia, 3 Wall. 713, 724-725 (1866). This power to regulate navigation confers upon the United States a “dominant servitude,” FPC v. Niagara Mohawk Power Corp., 347 U. S. 239, 249 (1954), which extends to the entire stream and the stream bed below ordinary high-water mark. The proper exercise of this power is not an invasion of any private property rights in the stream or the lands underlying it, for the damage sustained does not result from taking property from riparian owners within the meaning of the Fifth Amendment but from the lawful exercise of a power to which the interests of riparian owners have always been subject. United States v. Chicago, M., St. P. & P. B. Co., 312 U. S. 592, 596-597 (1941); Gibson v. United States, 166 U. S. 269, 275-276 (1897). Thus, without being constitutionally obligated to pay compensation, the United States may change the course of a navigable stream, South Carolina v. Georgia, 93 U. S. 4 (1876), or otherwise impair or destroy a riparian owner’s access to navigable waters, Gibson v. United States, 166 U. S. 269 (1897); Scranton v. Wheeler, 179 U. S. 141 (1900); United States v. Commodore Park, Inc., 324 U. S. 386 (1945), even though the market value of the riparian owner’s land is substantially diminished.
The navigational servitude of the United States does not extend beyond the high-water mark. Consequently, when fast lands are taken by the Government, just compensation must be paid. But “just as the navigational privilege permits the Government to reduce the value of riparian lands by denying the riparian owner access to the stream without compensation for his loss, ... it also permits the Government to disregard the value arising from this same fact of riparian location in compensating the owner when fast lands are appropriated.” United States v. Virginia Elec. & Power Co., 365 U. S. 624, 629 (1961). Specifically, the Court has held that the Government is not required to give compensation for “water power” when it takes the riparian lands of a private power company using the stream to generate power. United States v. Chandler-Dunbar Water Power Co., 229 U. S. 53, 73-74 (1913). Nor must it compensate the company for the value of its uplands as a power plant site. Id., at 76. Such value does not “inhere in these parcels as upland,” but depends on use of the water to which the company has no right as against the United States: “The Government had dominion over the water power of the rapids and falls and cannot be required to pay any hypothetical additional value to a riparian owner who had no right to appropriate the current to his own commercial use.” Ibid.
All this was made unmistakably clear in United States v. Twin City Power Co., 350 U. S. 222 (1956). The United States condemned a promising site for a hydroelectric power plant and was held to be under no obligation to pay for any special value which the fast lands had for power generating purposes. The value of the land attributable to its location on the stream was “due to the flow of the stream; and if the United States were required to pay the judgments below, it would be compensating the landowner for the increment of value added to the fast lands if the flow of the stream were taken into account.” 350 U. S., at 226.
We are asked to distinguish between the value of land as a power site and its value as a port site. In the power cases, the stream is used as a source of power to generate electricity. In this case, for the property to have value as a port, vessels must be able to arrive and depart by water, meanwhile using the waterside facilities of the port. In both cases, special value arises from access to, and use of, navigable waters. With regard to the constitutional duty to compensate a riparian owner, no distinction can be drawn. It is irrelevant that the licensing authority presently being exercised over hydroelectric projects may be different from, or even more stringent than, the licensing of port sites. We are dealing with the constitutional power of Congress completely to regulate navigable streams to the total exclusion of private power companies or port owners. As was true in Twin City, if the owner of the fast lands can demand port site value as part of his compensation, “he gets the value of a right that the Government in the exercise of its dominant servitude can grant or withhold as it chooses. . . . To require the United States to pay for this . . . value would be to create private claims in the public domain.” 350 U. S., at 228:
Respondents and the Court of Appeals alike have found Twin City inconsistent with the holding in United States v. River Rouge Improvement Co., 269 U. S. 411 (1926). In that case, the Government took waterfront property to widen and improve the navigable channel of the Rouge River. By reason of the improvements, other portions of the riparian owner’s property became more valuable because they were afforded direct access to the stream for the building of docks and other purposes related to navigation. Pursuant to § 6 of the Rivers and Harbors Act of 1918, the compensation award for the part of the property taken by the Government was reduced by the value of the special and direct benefits to the remainder of the land. The argument here seems to be that if the enhancement in value flowing from a riparian location is real enough to reduce the award for another part of the same owner’s property, consistency demands that these same values be recognized in the award when any riparian property is taken by the Government. There is no inconsistency. Twin City and its predecessors do not deny that access to navigable waters may enhance the market value of riparian property. See United States v. Commodore Park, Inc., 324 U. S., at 388, 390. And, in River Rouge, it was recognized that state law may give the riparian owner valuable rights of access to navigable waters good against other riparian owners or against the State itself. 269 U. S., at 418-419. But under Twin City and like cases, these rights and values are not assertable against the superior rights of the United States, are not property within the meaning of the Fifth Amendment, and need not be paid for when appropriated by the United States. Thus, when only part of the property is taken and the market value of the remainder is enhanced by reason of the improvement to navigable waters, reducing the award by the amount of the increase in value simply applies in another context the principle that special values arising from access to a navigable stream are allocable to the public, and not to private interest. Otherwise the private owner would receive a windfall to which' he is not entitled.
Our attention is also directed to Monongahela Navigation Co. v. United States, 148 U. S. 312 (1893), where it was held that the Government had to pay the going-concern value of a toll lock and dam built at the implied invitation of the Government, and to the portion of the opinion in Chandler-Dunbar approving an award requiring the Government to pay for the value of fast lands as a site for a canal and lock to bypass the falls and rapids of the river. Monongahela is not in point, however, for the Court has since read it as resting “primarily upon the doctrine of estoppel.. . .” Omnia Commercial Co., Inc. v. United States, 261 U. S. 502, 513-514 (1923). The portion of Chandler-Dunbar relied on by respondents was duly noted and dealt with in Twin City itself, 350 U. S. 222, 226, n. (1956). That aspect of the decision has been confined to its special facts, and, in any event, if it is at all inconsistent with Twin City, it is only the latter which survives.
Finally, respondents urge that the Government’s position subverts the policy of the Submerged Lands Act, which confirmed and vested in the States title to the lands beneath navigable waters within their boundaries and to natural resources within such lands and waters, together with the right and power to manage, develop, and use such lands and natural resources. However, reliance on that Act is misplaced, for it expressly recognized that the United States retained “all its navigational servitude and rights in and powers of regulation and control of said lands and navigable waters for the constitutional purposes of commerce, navigation, national defense, and international affairs, all of which shall be paramount to, but shall not be deemed to include, proprietary rights of ownership . Nothing in the Act was to be construed “as the release or relinquishment of any rights of the United States arising under the constitutional authority of Congress to regulate or improve navigation, or to provide for flood control, or the production of power.” The Act left congressional power over commerce and the dominant navigational servitude of the United States precisely where it found them.
For the foregoing reasons, the judgment of the Court of Appeals is reversed and the case remanded with direction to reinstate the judgment, of the District Court.
Reversed and remanded.
Mr. Justice Marshall took no part in the consideration or decision of this case.
74 Stat. 486, 33 U. S. C. § 578.
40 Stat. 911, 33 U. S. C. §595.
67 Stat. 29, 43 U. S. C. §§ 1301-1343.
67 Stat. 32, 43 U. S. C. § 1314.
67 Stat. 31, 43 U. S. C. § 1311 (d). | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state. | What is the court whose decision the Supreme Court reviewed? | [
"U.S. Court of Customs and Patent Appeals",
"U.S. Court of International Trade",
"U.S. Court of Claims, Court of Federal Claims",
"U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces",
"U.S. Court of Military Review",
"U.S. Court of Veterans Appeals",
"U.S. Customs Court",
"U.S. Court of Appeals, Federal Circuit",
"U.S. Tax Court",
"Temporary Emergency U.S. Court of Appeals",
"U.S. Court for China",
"U.S. Consular Courts",
"U.S. Commerce Court",
"Territorial Supreme Court",
"Territorial Appellate Court",
"Territorial Trial Court",
"Emergency Court of Appeals",
"Supreme Court of the District of Columbia",
"Bankruptcy Court",
"U.S. Court of Appeals, First Circuit",
"U.S. Court of Appeals, Second Circuit",
"U.S. Court of Appeals, Third Circuit",
"U.S. Court of Appeals, Fourth Circuit",
"U.S. Court of Appeals, Fifth Circuit",
"U.S. Court of Appeals, Sixth Circuit",
"U.S. Court of Appeals, Seventh Circuit",
"U.S. Court of Appeals, Eighth Circuit",
"U.S. Court of Appeals, Ninth Circuit",
"U.S. Court of Appeals, Tenth Circuit",
"U.S. Court of Appeals, Eleventh Circuit",
"U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)",
"Alabama Middle U.S. District Court",
"Alabama Northern U.S. District Court",
"Alabama Southern U.S. District Court",
"Alaska U.S. District Court",
"Arizona U.S. District Court",
"Arkansas Eastern U.S. District Court",
"Arkansas Western U.S. District Court",
"California Central U.S. District Court",
"California Eastern U.S. District Court",
"California Northern U.S. District Court",
"California Southern U.S. District Court",
"Colorado U.S. District Court",
"Connecticut U.S. District Court",
"Delaware U.S. District Court",
"District Of Columbia U.S. District Court",
"Florida Middle U.S. District Court",
"Florida Northern U.S. District Court",
"Florida Southern U.S. District Court",
"Georgia Middle U.S. District Court",
"Georgia Northern U.S. District Court",
"Georgia Southern U.S. District Court",
"Guam U.S. District Court",
"Hawaii U.S. District Court",
"Idaho U.S. District Court",
"Illinois Central U.S. District Court",
"Illinois Northern U.S. District Court",
"Illinois Southern U.S. District Court",
"Indiana Northern U.S. District Court",
"Indiana Southern U.S. District Court",
"Iowa Northern U.S. District Court",
"Iowa Southern U.S. District Court",
"Kansas U.S. District Court",
"Kentucky Eastern U.S. District Court",
"Kentucky Western U.S. District Court",
"Louisiana Eastern U.S. District Court",
"Louisiana Middle U.S. District Court",
"Louisiana Western U.S. District Court",
"Maine U.S. District Court",
"Maryland U.S. District Court",
"Massachusetts U.S. District Court",
"Michigan Eastern U.S. District Court",
"Michigan Western U.S. District Court",
"Minnesota U.S. District Court",
"Mississippi Northern U.S. District Court",
"Mississippi Southern U.S. District Court",
"Missouri Eastern U.S. District Court",
"Missouri Western U.S. District Court",
"Montana U.S. District Court",
"Nebraska U.S. District Court",
"Nevada U.S. District Court",
"New Hampshire U.S. District Court",
"New Jersey U.S. District Court",
"New Mexico U.S. District Court",
"New York Eastern U.S. District Court",
"New York Northern U.S. District Court",
"New York Southern U.S. District Court",
"New York Western U.S. District Court",
"North Carolina Eastern U.S. District Court",
"North Carolina Middle U.S. District Court",
"North Carolina Western U.S. District Court",
"North Dakota U.S. District Court",
"Northern Mariana Islands U.S. District Court",
"Ohio Northern U.S. District Court",
"Ohio Southern U.S. District Court",
"Oklahoma Eastern U.S. District Court",
"Oklahoma Northern U.S. District Court",
"Oklahoma Western U.S. District Court",
"Oregon U.S. District Court",
"Pennsylvania Eastern U.S. District Court",
"Pennsylvania Middle U.S. District Court",
"Pennsylvania Western U.S. District Court",
"Puerto Rico U.S. District Court",
"Rhode Island U.S. District Court",
"South Carolina U.S. District Court",
"South Dakota U.S. District Court",
"Tennessee Eastern U.S. District Court",
"Tennessee Middle U.S. District Court",
"Tennessee Western U.S. District Court",
"Texas Eastern U.S. District Court",
"Texas Northern U.S. District Court",
"Texas Southern U.S. District Court",
"Texas Western U.S. District Court",
"Utah U.S. District Court",
"Vermont U.S. District Court",
"Virgin Islands U.S. District Court",
"Virginia Eastern U.S. District Court",
"Virginia Western U.S. District Court",
"Washington Eastern U.S. District Court",
"Washington Western U.S. District Court",
"West Virginia Northern U.S. District Court",
"West Virginia Southern U.S. District Court",
"Wisconsin Eastern U.S. District Court",
"Wisconsin Western U.S. District Court",
"Wyoming U.S. District Court",
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] | [
27
] | sc_casesource |
JONES, WARDEN, STONE MOUNTAIN CORRECTIONAL INSTITUTION v. HELMS
No. 80-850.
Argued April 28, 1981 —
Decided June 15, 1981
Stevens, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Stewart, White, Marshall, Powell, and Rehnquist, JJ., joined. White, J., filed a concurring opinion, post, p. 426. Black-mun, J., filed an opinion concurring in the judgment, post, p. 427.
Carol Atha Cosgrove, Assistant Attorney General of Georgia, argued the cause for appellant. With her on the briefs were Arthur K. Bolton, Attorney General, Robert S. Stubbs II, Executive Assistant Attorney General, Don A. Langham, First Assistant Attorney General, John C. Walden and Michael J. Bowers, Senior Assistant Attorneys General, and Nicholas G. Dumich, Assistant Attorney General.
James C. Bonner, Jr., argued the cause for the appellee. With him on the brief was Robert D. Peckham.
Justice Stevens
delivered the opinion of the Court.
In Georgia, a parent who willfully and voluntarily abandons his or her dependent child is guilty of a misdemeanor. Those parents who commit that offense within Georgia and thereafter leave the State are guilty of a felony. The question presented by this appeal is whether this statutory classification violates the Equal Protection Clause of the Fourteenth Amendment.
As the case comes to us, the critical facts are not in dispute. In 1976, appellee pleaded guilty in Georgia to the felony of abandoning his child and leaving the State. By that plea, appellee formally admitted that he had willfully and voluntarily abandoned his daughter, leaving her in a dependent condition, before he left the State of Georgia. He received a 3-year prison sentence which he began to serve in 1978.
After exhausting his state remedies, appellee filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Georgia. He claimed that § 74-9902, by providing for enhanced punishment of those parents who left Georgia after abandoning their children, violated the Equal Protection Clause and the Privileges and Immunities Clause of Art. IV, § 2. See App. 22-23. The District Court denied relief, see id., at 28-29, but the United States Court of Appeals for the Fifth Circuit reversed. See 621 F. 2d 211 (1980).
The Court of Appeals held that the statute should be subjected to strict scrutiny because it infringed the fundamental right to travel. Applying strict-scrutiny analysis, the court concluded that the state interests served by the statute, although legitimate, could be adequately protected by less drastic means; the statute therefore was invalid. In the judgment of the Court of Appeals, the State’s interest in extraditing offending parents, as well as its interest in requiring parents to support their children, was adequately served by the remedies provided in the Uniform Reciprocal Enforcement of Support Act (URESA), a version of which had been enacted in Georgia. See Ga. Code § 99-901a et seq. (1978 and Supp. 1980). Moreover, because the Court of Appeals understood the statute not to require any proof of criminal intent, it considered this feature a further indication of the statute’s unconstitutional overbreadth.
The Warden appealed, and we noted probable jurisdiction. 449 U. S. 1122. In an opinion issued several months prior to the Court of Appeals’ decision, the Georgia Supreme Court had upheld the felony provision of § 74-9902 against an almost identical constitutional challenge. See Garren v. State, 245 Ga. 323, 264 S. E. 2d 876 (1980). We now resolve this conflict between the Georgia Supreme Court and the Court of Appeals by reversing the judgment of the Court of Appeals.
I
The Court of Appeals’ conclusion that § 74-9902 is constitutionally invalid rests entirely on the premise that the statute impairs the fundamental right of every Georgia resident to travel from Georgia to another State. It is, of course, well settled that the right of a United States citizen to travel from one State to another and to take up residence in the State of his choice is protected by the Federal Constitution. Although the textual source of this right has been the subject of debate, its fundamental nature has consistently been recognized by this Court. See Shapiro v. Thompson, 394 U. S. 618, 629-631; United States v. Guest, 383 U. S. 745, 757-759. The right to travel has been described as a privilege of national citizenship, and as an aspect of liberty that is protected by the Due Process Clauses of the Fifth and Fourteenth Amendments. Whatever its source, a State may neither tax nor penalize a citizen for exercising his right to leave one State and enter another.
Despite the fundamental nature of this right, there nonetheless are situations in which a State may prevent a.citizen from leaving. Most obvious is the case in which a person has been convicted of a crime within a State. He may be detained within that State, and returned to it if he is found in another State. Indeed, even before trial or conviction, probable cause may justify an arrest and subsequent temporary detention. Similarly, a person who commits a crime in a State and leaves the State before arrest or conviction may be extradited following “a summary and mandatory executive proceeding.” Manifestly, a person who has committed an offense against the laws of Georgia may be stopped at its borders and temporarily deprived of his freedom to travel elsewhere within or without the State.
In this case, appellee’s guilty plea was an acknowledgment that he had committed a misdemeanor before he initially left Georgia for Alabama. Upon conviction of that misdemeanor, he was subject to imprisonment for a period of up to one year. Therefore, although he was not convicted of abandonment until after his first trip to Alabama, appellee’s own misconduct had qualified his right to travel interstate before he sought to exercise that right. We are aware of nothing in our prior cases or in the language of the Federal Constitution that suggests that a person who has committed an offense punishable by imprisonment has an unqualified federal right to leave the jurisdiction prior to arrest or conviction.
This case differs in a significant respect from prior cases involving the validity of state enactments that were said to penalize the exercise of the constitutional right to travel. In the first decision squarely to recognize the right to travel, Crandall v. Nevada, 6 Wall. 35, the Court held that a State may not impose a tax on residents who desire to leave the State, nor on nonresidents merely passing through. In Edwards v. California, 314 U. S. 160, the Court held that a State may not make it a crime to bring a nonresident indigent person into the State. In more recent decisions, the Court has examined state statutes imposing durational residence requirements that deprived new residents of rights or benefits available to old residents, to determine whether such requirements penalized citizens for exercising their constitutional right to travel. In all of those cases, the statute at issue imposed a burden on the exercise of the right to travel by citizens whose right to travel had not been qualified in any way. In contrast, in this case, appellee’s criminal conduct within the State of Georgia necessarily qualified his right thereafter freely to travel' interstate. Appellee’s claim is therefore on a different footing from the claims at issue in Crandall, Edwards, and the durational residence requirement cases.
These precedents are inapposite for another reason as well. The question presented by this case is not whether Georgia can justify disparate treatment of residents and nonresidents, or of new and old residents. Rather, the question is whether the State may enhance the misdemeanor of child abandonment to a felony if a resident offender leaves the State after committing the offense. Presumably the commission of the misdemeanor of child abandonment would not justify a permanent restriction on the offender’s freedom to leave the jurisdiction. But a restriction that is rationally related to the offense itself — either to the procedure for ascertaining guilt or innocence, or to the imposition of a proper punishment or remedy — must be within the State’s power. Thus, although a simple penalty for leaving a State is plainly impermissible, if departure aggravates the consequences of conduct that is otherwise punishable, the State may treat the entire sequence of events, from the initial offense to departure from the State, as more serious than its separate components.
The Georgia Supreme Court has held that § 74-9902’s enhancement provision serves the “legislative purpose of causing parents to support their children since the General Assembly could have concluded that the parental support obligation is more difficult to enforce if the parent charged with child abandonment leaves the state.” Garren v. State, 245 Ga., at 325, 264 S. E. 2d, at 878. There can be no question about the legitimacy of the purpose to cause parents to support their children. And appellee has not provided us with any basis for questioning the validity of the legislative judgment that this purpose is served by making abandonment within the State followed by departure a more serious offense than mere abandonment within the State. We therefore are unwilling to accept the suggestion that this enhancement is an impermissible infringement of appellee’s constitutional right to travel. Accordingly, we reject the premise on which the Court of Appeals’ holding rests.
II
Having rejected the claim that the Georgia statute imper-. missibly infringes on the constitutionally protected right to travel, we find no support for the conclusion that the statute violates the Equal Protection Clause. That Clause “announces a fundamental principle: the State must govern impartially. General rules that apply evenhandedly to all persons within the jurisdiction unquestionably comply with this principle.” New York City Transit Authority v. Beazer, 440 U. S. 568, 587.
The Equal Protection Clause provides a basis for challenging legislative classifications that treat one group of persons as inferior or superior to others, and for contending that general rules are being applied in an arbitrary or discriminatory way. The portion of the Georgia statute at issue in this case applies equally to all parents residing in Georgia; nothing in appellee’s argument or in the record suggests that the statute has been enforced against appellee any differently than it would be enforced against anyone else who engaged in the same conduct. By its terms, it does not subject “one caste of persons to a code not applicable to another,” see n. 23, supra, nor has appellee shown that it has been arbitrarily or discriminatorily applied. Thus, neither on the face of § 74^9902, nor in its application to appellee, can we detect any violation of the constitutional requirement that the State’s administration of its laws must be impartial and evenhanded. New York City Transit Authority, supra.
The characterization by the Court of Appeals and appellee of the Georgia statute as “overbroad” does not affect our conclusion. Appellee contends, and the Court of Appeals found, that Georgia has available less restrictive means to serve the legitimate purposes furthered by the felony provision of § 74-9902. In particular, our attention is directed to the URESA, which is said to protect the State’s interests in fiscal integrity, support of minor children, and extradition of abandoning parents. The appellant argues at length that the URESA does not provide an adequate means of enforcing the support obligations of parents who abandon their children and leave the jurisdiction. Although, the appellant’s argument is persuasive, for purposes of deciding this case we need neither accept nor reject it. The Court of Appeals deemed the remedies available under the URESA significant because a legislative program that infringes upon fundamental rights in order to serve legitimate state ends must be the least restrictive means for achieving those ends. However, because we have concluded that § 74 — 9902 does not infringe upon appellee’s fundamental rights, this reasoning is inapplicable. In the context of this case, the State need not employ the least restrictive, or even the most effective or wisest, means to achieve its legitimate ends.
Similarly, we need neither agree nor disagree with appel-lee’s argument that the statute is unnecessarily severe because it does not require that the act of leaving the State— as well as the act of abandonment — be motivated by a wrongful intent. Because of this feature, the statute may well be unnecessarily broad. This is a matter, however, that relates to the wisdom of the legislation. It raises no question with respect to the uniform and impartial character of the State’s law. It therefore does not implicate the fundamental principle embodied in the Equal Protection Clause of the Fourteenth Amendment.
Because we conclude that § 74-9902 did not penalize the exercise of the constitutional right to travel and did not deny appellee the equal protection of the laws, the judgment of the Court of Appeals is reversed.
So ordered.
The Fourteenth Amendment provides, in part:
“No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”
Appellee pleaded guilty to a charge that he had violated Ga. Code § 74-9902 (Supp. 1980), the statute at issue in this case. Section 74-9902 (a) provides, in part:
“If any father or mother shall wilfully and voluntarily abandon his or her child, either legitimate or illegitimate, leaving it in a dependent condition, he or she, as the case may be, shall be guilty of a misdemeanor: Provided, however, if any father or mother shall wilfully and voluntarily abandon his or her child, either legitimate or illegitimate, leaving it in a dependent condition, and shall leave this State, or if any father or mother shall wilfully and voluntarily abandon his or her child, either legitimate or illegitimate, leaving it in a dependent condition, after leaving this State, he or she, as the case may be, shall be guilty of a felony . . .
Appellee previously had separated from his wife and had been ordered to pay to her $150 a month for the support of their minor daughter. It was stipulated that without making any such payments, appellee, “who by then had lost his property in Georgia, left the State and moved back to his native State, Alabama.” App. 16. Appellee went to Alabama to pursue certain vocational training opportunities not available to him in Georgia. He did not make child support payments while in Alabama. Appellee remained in Alabama until February 1976 when, while visiting his daughter in Georgia, he was arrested for his continuous failure to pay child support. Id., at 16-17. Shortly thereafter, appellee was formally charged by a Georgia grand jury with a felony violation of § 74r-9902. App. 3-4.
Initially, appellee received a 3-year suspended sentence conditioned upon his paying $200 per month as support for his child during her minority. Id., at 8. He again left the State without making any such payments, first residing in Alabama and thereafter in Florida. In 1977, his estranged wife was murdered, and appellee gained custody of his daughter in Florida for a brief period of time. Ultimately, appellee moved back to Georgia, and was rearrested for his failure to pay child support. Id., at 17-19. After a hearing, an order was entered enforcing his suspended sentence of imprisonment for a period of three years. Id., at 10.
Appellee took no direct appeal from his initial felony conviction. However, in November 1978, after his suspended sentence had been revoked, he sought a writ of habeas corpus in the De Kalb Superior Court. Appellee claimed that the statute under which he had been convicted and sentenced violated both the Equal Protection Clause of the Fourteenth Amendment and the Privileges and Immunities Clause of Art. IV, §2, of the United States Constitution because it authorized enhanced punishment based solely upon the exercise of the constitutional right to travel interstate and to reside outside the State of Georgia. After an evidentiary hearing, the state habeas court denied relief and ordered appellee remanded to custody. App. 11-15. The Supreme Court of Georgia denied appellee’s application for a certificate of probable cause to appeal. Id., at 20.
During the pendency of his appeal from the District Court’s order, appellee was released from custody. As the Court of Appeals noted, 621 F. 2d, at 212, n. 2, appellee’s release did not moot his claim. See Carafas v. LaVallee, 391 U. S. 234, 237-240.
The Court of Appeals analyzed the statutory classification, as follows: “The statute thus creates two classes of crimes, the first a misdemeanor for child abandonment within the State, the second a felony for leaving the State after abandonment or abandonment after leaving the State. Those outside Georgia, merely by their presence outside the State, are exposed to risk of a felony conviction while Georgia residents are exposed only to risk of a misdemeanor conviction for the same actions. We find the fundamental right to travel is infringed by this classification system.” 621 F. 2d, at 212 (footnote omitted).
The Court of Appeals concluded that the statutory discrimination was not justified by a compelling state interest:
“We therefore find no sufficiently compelling state interest here which permits distinguishing between nonsupporting parents within or without the State of Georgia. There is no question that the statute violates equal protection. Further, even where a governmental purpose is legitimate, as here, the 'purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.’ ” Id., at 213 (footnote omitted).
According to the Court of Appeals, the URESA adequately served the state interests §71^9902 was designed to further:
“Georgia argues that the compelling state interests here are (1) the greater ease in extraditing persons accused of felonies than those accused of misdemeanors and (2) the protection of the State’s fiscal integrity by the resulting enforcement of required parental child support. These arguments are unpersuasive since Georgia has in place, through its adoption of the Uniform Reciprocal Enforcement of Support Act (URESA), Ga. Code Ann. § 99-9A, et seq., an alternative means of enforcing child support obligations. Fiscal integrity of the State, support of minor children, and extradition of the nonpaying parent are all protected by this Act.” 621 F. 2d, at 212-213 (footnotes omitted).
As the Court of Appeals read § 74-9902, a felony conviction could be secured without any showing by the State that the abandoning parent had acted with criminal intent:
“The failure of the statute to require criminal intent as an element necessary for conviction is further indication of its overbreadth. Under the provision a person leaving the State fully intending to support his or her children, but unable to do so, commits a felony. A series of noncriminal acts can thus become a crime under the statute, subjecting the nonresident to extradition and felony conviction.” 621 F. 2d, at 213 (footnote omitted).
Although the Court of Appeals’ understanding of the statute was correct insofar as its comments concerned the mental state of the parent at the time of his or her departure from the State, the court appears to have overlooked the statutory requirement that the offending parent have “wilfully and voluntarily” abandoned his or her child. See n. 2, swpra. As appellant points out, under Georgia law both desertion — i. e., the willful forsaking and desertion of the duties of parenthood — and dependency — i. e., leaving the child without necessaries — are elements of the offense of child abandonment under § 74-9902. See Waites v. State, 138 Ga. App. 513, 514, 226 S. E. 2d 621, 622 (f1976). Because the State must establish that the desertion was willful, the Court of Appeals erred in suggesting that “[a] series of noncriminal acts can thus become a crime under the statute.”
It should be noted that this case involves only an abandonment by a resident parent within the State of Georgia, followed by the abandoning parent’s departure from the State. Section 74-9902 also purports to define as a felony an abandonment by a parent who is not a resident of Georgia. See n. 2, supra. Although the Court of Appeals appears to have considered this aspect of the statute of some significance, see 621 F. 2d, at 212, and appellee emphasizes it in his argument here, we express no opinion on the validity of such an application of § 74-9902. See In re King, 3 Cal. 3d 226, 474 P. 2d 983 (1970).
In Edwards v. California, 314 U. S. 160, the Court held that the Commerce Clause required the invalidation of state statutes designed to restrict interstate migration. Justice Douglas, joined by Justice Black and Justice Murphy, agreed with the Court’s judgment, but preferred to rely upon the Privileges and Immunities Clause of the Fourteenth Amendment as the source of the right to travel:
“The right to move freely from State to State is an incident of national citizenship protected by the privileges and immunities clause of the Fourteenth Amendment against state interference. Mr. Justice Moody in Twining v. New Jersey, 211 U. S. 78, 97, stated, ‘Privileges and immunities of citizens of the United States ... are only such as arise out of the nature and essential character of the National Government, or are specifically granted or secured to all citizens or persons by the Constitution of the United States.’ And he went on to state that one of those rights of national citizenship was ‘the right to pass freely from State to State.’ Id., at 97.” Id., at 178 (Douglas, J., concurring) (emphasis and ellipsis in original).
Justice Jackson was of essentially the same view. See id., at 182-184 (concurring opinion).
It also should be noted that earlier decisions, beginning with Corfield v. Coryell, 6 F. Cas. 546 (No. 3,230) (CCED Pa. 1825) (Washington, J., Circuit Justice), suggested that the right to travel was a privilege and immunity of national citizenship protected by the Privileges and Immunities Clause of Art. IV. See United States v. Guest, 383 U. S. 745, 764-767 (opinion of Harlan, J.). In fact, appellee relied upon Art. IV in both his state and federal habeas corpus petitions. See n. 5, supra; supra, at 415.
At the beginning of this century, Chief Justice Fuller, in dictum, identified the Fourteenth Amendment as a source of the right to travel:
“Undoubtedly the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal liberty, and the right, ordinarily, of free transit from or through the territory of any State is a right secured by the Fourteenth Amendment and by other provisions of the Constitution.” Williams v. Fears, 179 U. S. 270, 274.
In his dissenting opinion in Shapiro v. Thompson, 394 U. S. 618, 671, Justice Harlan concluded that “the right to travel interstate is a ‘fundamental’ right which, for present purposes, should be regarded as having its source in the Due Process Clause of the Fifth Amendment.” See also United States v. Guest, 383 U. S., at 757-759; id., at 769-770 (opinion of Harlan, J.).
Michigan v. Doran, 439 U. S. 282, 288.
In his concurring opinion in Edwards v. California, supra, Justice Jackson explained this limitation on the right to travel:
“The right of the citizen to migrate from state to state which, I agree with Mr. Justice Douglas, is shown by our precedents to be one of national citizenship, is not, however, an unlimited one. In addition to being subject to all constitutional limitations imposed by the federal government, such citizen is subject to some control by state governments. He may not, if a fugitive from justice, claim freedom to migrate unmolested, nor may he endanger others by carrying contagion about. These causes, and perhaps others that do not occur to me now, warrant any public authority in stopping a man where it finds him and arresting his progress across a state line quite as much as from place to place within the state.” 314 U. S., at 184.
See Ga. Code §27-2506 (1978).
In Dunn v. Blumstein, 405 U. S. 330, 334, we explained the problem presented by durational residence requirements:
“Durational residence laws penalize those persons who have traveled from one place to another to establish a new residence during the qualifying period. Such laws divide residents into two classes, old residents and new residents, and discriminate against the latter . . .
We have invalidated durational residence requirements that operated to deprive new residents of the right to vote, Dunn, supra, and of welfare and medical care benefits. See Shapiro v. Thompson, supra; Memorial Hospital v. Maricopa County, 415 U. S. 250. However, even though dura-tional residence requirements necessarily impinge to some extent on the right to travel, they are not automatically invalid. Memorial Hospital, supra, at 256. See, e. g., Sosna v. Iowa, 419 U. S. 393; cf. Vlandis v. Kline, 412 U. S. 441, 452-453.
In its decision sustaining the validity of § 74-9902, the Georgia Supreme Court recognized this distinction:
“There is an entirely obvious difference, on the one hand, between an attempt by a 'receiving state’ to preclude or discourage inward migration from 'sending states’ of persons deemed by the ‘receiving state’ to be ‘undesirables,’ ‘non-contributors’ or ‘economically burdensome persons,’ and efforts, as in the present ease, by a ‘sending state’ to bring persons accused of crimes back from ‘receiving states’ to face criminal trial and punishment in the ‘sending state.’ Persons, including indigents and other migrants, have a right of free travel. ... On the other hand, persons charged with the commission of crimes shall be delivered up to the state having jurisdiction of the crime. ... A person charged in Georgia with commission of a crime who has left Georgia and entered another state cannot be said to have a constitutionally protected right of free travel in interstate commerce that can be asserted to bar prosecution for the Georgia offense.” Garren v. State, 245 Ga. 323, 324-325, 264 S. E. 2d 876, 877-878 (1980) (citations omitted).
The California Supreme Court recognized the same distinction in an opinion upholding a statute that tolled the statute of limitations for criminal offenses during the time the defendant was outside the State: [T]here is clearly a distinction between one who, like defendant, leaves the state after committing a crime, resulting in the tolling of the statute of limitations during his absence, and one who has committed no crime but is deprived of a government benefit merely because he exercises his right to travel to another state. In the former circumstance, the state has an interest in assuring that the defendant is available locally not only to enhance the possibility of detection but also to avoid the burdens of extradition proceedings, should he be charged, his whereabouts become known, and he refuses to return voluntarily.” Scherling v. Superior Court of Santa Clara County, 22 Cal. 3d 493, 501, 585 P. 2d 219, 223-224 (1978).
See n. 11, supra.
The latter variety of disparate treatment was primarily at issue in cases such as Shapiro v. Thompson, Dunn v. Blumstein, and Memorial Hospital v. Maricopa County, supra.
Cf. Crandall v. Nevada, 6 Wall. 35; Edwards v. California, 314 U. S. 160.
Indeed, the Court of Appeals and appellee both acknowledged the legitimacy of the statute’s purposes. See 621 F. 2d, at 213; Brief for Appellee 13-15.
An effective expression of this point was made in the Senate debate preceding the adoption of the Fourteenth Amendment. Senator Howard stated:
“This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another.
It establishes equality before the law, and it gives to the humblest, the poorest, the most despised of the race the same rights and the same protection before the law as it gives to the most powerful, the most wealthy, or the most haughty. That, sir, is republican government, as I understand it, and the only one which can claim the praise of a just Government.” Cong. Globe, 39th Cong., 1st Sess., 2766 (1866).
Most frequently, claims of denial of equal protection of the laws are asserted by the members of a class of persons easily defined by a characteristic such as race, sex, alienage, illegitimacy, or religion.
See, e. g., Yick Wo v. Hopkins, 118 U. S. 356.
See n. 9, supra. Appellee also suggests that making all child abandon-ments felonies would serve Georgia’s legitimate interests in a “less restrictive” fashion than § 74-9902. It is true that such a change would preclude appellee’s claim that the statute is discriminatory, but it is not clear that such a statute would be less restrictive.
A number of commentators have identified the same weaknesses in the enforcement mechanism established in the URESA as the appellant cites in his argument in this case. See, e. g., Note, Interstate Enforcement of Support Obligations Through Long Arm Statutes and URESA, 18 J. Fam. Law 537, 541 (1980); Comment, Enforcement of Support Obligations: A Solution and Continuing Problems, 61 Ky. L. J. 322, 328-329 (1972). Cf. Chambers, Men Who Know They Are Watched: Some Benefits and Costs of Jailing for Nonpayment of Support, 75 Mich. L. Rev. 900 (1977).
The Court of Appeals relied upon Shelton v. Tucker, 364 U. S. 479, for this proposition:
“[E]ven though the government purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.” Id., at 488 (footnotes omitted).
The Court of Appeals considered the statute’s failure to require that the act of leaving the State be accompanied by criminal intent a significant defect. See supra, at 416, and n. 10. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent. | Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented? | [
"Yes",
"No"
] | [
1
] | sc_lcdisagreement |
NACHMAN CORP. v. PENSION BENEFIT GUARANTY CORPORATION et al.
No. 78-1557.
Argued January 7, 1980
Decided May 12, 1980
Stevens, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Marshall, and Blackmun, JJ., joined. Stewart, J., filed a dissenting opinion, in which White, Powell, and Rehnquist, JJ., joined, post, p. 386. Powell, J., filed a dissenting opinion, post, p. 396.
Robert W. Gettleman argued the cause for petitioner. With him on the briefs were Lawrence R. Levin, Joel D. Rubin, and H. Debra Levin.
Henry Rose argued the cause for respondent Pension Benefit Guaranty Corporation. With him on the brief were Mitchell L. Strickler and George Kaufmann. M. Jay Whitman argued the cause for respondent International Union, United Automobile, Aerospace and Agricultural Implement Workers of America. With him on the brief was John A. Fillion
Thomas C. Walsh and Juan D. Keller filed a brief for Concord Control, Inc., as amicus curiae urging reversal.
George J. Pantos, Otis M. Smith, and David M. Davis filed a brief for General Motors Corp. as amicus curiae urging affirmance.
Mr. Justice Stevens
delivered the opinion of the Court.
On September 2, 1974, following almost a decade of studying the Nation’s private pension plans, Congress enacted the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, 29 U. S. C. § 1001 et seq. As a predicate for this comprehensive and reticulated statute, Congress made detailed findings which recited, in part, “that the continued well-being and security of millions of employees and their dependents are directly affected by these plans; [and] that owing to the termination of plans before requisite funds have been accumulated, employees and their beneficiaries have been deprived of anticipated benefits. . . .” ERISA § 2 (a), 29 U. S. C. § 1001 (a). As one of the means of protecting the interests of beneficiaries, Title IY of ERISA created a plan termination insurance program that became effective in successive stages. The question in this case is whether former employees of petitioner with vested interests in a plan that terminated the day before much of ERISA became fully effective are covered by the insurance program notwithstanding a provision in the plan limiting their benefits to the assets in the pension fund.
Stated in statutory terms, the question is whether a plan provision that limits otherwise defined, vested benefits to the amounts that can be provided by the assets of the fund prevents such benefits from being characterized as “nonforfeitable” within the meaning of § 4022 (a) of ERISA, 29 U. S. C. § 1322 (a). If the benefits are “nonforfeitable,” they are insured by the Pension Benefit Guaranty Corporation (PBGC) under Title IV. And if insurance is payable to the former employees, the PBGC has a statutory right under § 4062 (b) to reimbursement from the employer. It was petitioner’s interest in avoiding liability for such reimbursement that gave rise to this action for declaratory and injunc-tive relief.
The relevant facts are undisputed. In 1960, pursuant to a collective-bargaining agreement, petitioner established a pension plan covering employees represented by the respondent union at its Chicago plant. The plan, as amended from time to time, provided for the payment of monthly benefits computed on the basis of age and years of service at the time of retirement. Benefits became “vested” — that is to say, the employee’s right to the benefit would survive a termination of his employment — after either 10 or 15 years of service. The 15-year vesting provisions would not have complied with the minimum vesting standards in Title I of ERISA that were to become effective on January 1, 1976, the day after termination of the plan.
Petitioner agreed to, and did, make regular contributions sufficient to cover accruing liabilities, to pay administrative expenses, and to amortize past service liability over a 30-year period. Consistent with the agreement and with accepted actuarial practice, it was anticipated that the plan would not be completely funded until 1990.
Petitioner retained the right to terminate the plan when the collective-bargaining agreement expired merely by giving 90 days’ notice of intent to do so. The agreement specified that upon termination the available funds, after payment of expenses, would be distributed to beneficiaries, classified by age and seniority, but only to the extent that assets were available. The critical provision of the agreement, Art. V, § 3, stated :
“Benefits provided for herein shall be only such benefits as can be provided by the assets of the fund. In the event of termination of this Plan, there shall be no liability or obligation on the part of the Company to make any further contributions to the Trustee except such contributions, if any, as on the effective date of such termination, may then be accrued but unpaid.” App. 24.
In 1975 petitioner decided to close its Chicago plant. Its collective-bargaining agreement expired on October 31, 1975, and it terminated the pension plan covering the persons employed at that plant on December 31, 1975, the day before ERISA would have required significant changes in at least the vesting provisions of the plan. At that time 135 employees had accrued benefits with an average value of approximately $77 per month. Those benefits were concededly “vested in a contractual sense.” The assets in the fund were sufficient to pay only about 35% of the vested benefits.
In 1976 petitioner filed an action against the PBGC, seeking a declaration that it has no liability under ERISA for any failure of the plan to pay all of the vested benefits in full, and an order enjoining the PBGC from taking actions inconsistent with that declaration. The District Court accepted petitioner’s contentions that the limitation of liability clause in the plan was valid on the date of termination, that the clause prevented the benefits at issue from being characterized as “nonforfeitable,” and that petitioner was therefore entitled to summary judgment. 436 F. Supp. 1334 (ND Ill. 1977).
The Court of Appeals for the Seventh Circuit reversed. 592 F. 2d 947 (1979). Relying on the definition of “nonforfeitable” in Title I of ERISA, the court concluded that the limitation of liability clause merely affected the extent to which the benefits could be collected, without qualifying the employees’ rights against the plan. This conclusion was buttressed by a comprehensive review of the legislative history in which Judge Sprecher noted that the words “vested” and “nonfor-feitable” had been used interchangeably throughout the congressional reports and debates, that the specific purpose of Title IV insurance was to protect employees from the kind of risk presented here (insufficient funds in the plan to cover vested benefits at termination), and that a contrary holding “would totally subvert the Congressional intent.”
Having construed the statute as it did, the Court of Appeals was required to confront petitioner’s constitutional argument that the imposition of a retroactive liability for the payment of unfunded, vested benefits that was not assumed under the collective-bargaining agreement, violates the Due Process Clause of the Fifth Amendment. The Court of Appeals agreed that ERISA was not wholly prospective in that it applies to pension plans in existence before the effective date of the Act. It concluded, however, that Congress had adequately tempered the Act’s burdens on employers and that those burdens were sufficiently justified by the public purposes supporting the legislation.
The petition for certiorari sought review of both the constitutional question and the question whether the statute had been properly construed to impose continuing liability on an employer that had lawfully terminated its plan prior to the effective date of the minimum vesting standards contained in Title I of ERISA. We granted certiorari, but limited our review to the statutory question. 442 U. S. 940.
Petitioner urges us to adopt a construction of the statute that would avoid the necessity of confronting constitutional questions, and correctly points out that new rules applying to pension funds “should not be applied retroactively unless the legislature has plainly commanded that result.” Los Angeles Dept. of Water & Power v. Manhart, 435 U. S. 702, 721. But petitioner’s argument for reversal relies primarily on the language of the statutory definition of “nonforfeitable” contained in Title I, see n. 10, supra. If the Title I definition determines which benefits are insured under Title IV, benefits are not insured unless they are “unconditional” and “legally enforceable against the plan.” Since petitioner’s plan expressly states that benefits “shall be only such benefits as can be provided by the assets of the fund,” petitioner argues that those elements of the statutory definition are not satisfied. Therefore, the benefits are forfeitable and necessarily unin-surable. Thus, petitioner concludes, it is not liable to anyone under the statute for the fund’s inability to cover all vested benefits. Petitioner submits that this result is consonant with Congress’ decision to postpone the effective date of the minimum vesting and funding requirements of Title I until January 1, 1976. Petitioner interprets that postponement as having been intended, among other things, to allow employers the opportunity to avoid the harsh consequences of the statute’s retroactive application by freely terminating their plans at any time prior to that date.
We must reject petitioner’s argument. We first note that the plan provision on which petitioner relies, supra, at 365, read as a whole, merely disclaims direct employer liability and imposes no condition on the benefits. See n. 8, supra, and n. 17, infra. Thus, petitioner’s argument is not supported by a purely literal reading of the definition on which it relies and is inconsistent with the clear language, structure and purpose of Title IV. Since, we construe petitioner’s plan as containing only an employer liability disclaimer clause, we cannot accept its statutory argument without virtually eviscerating Title IV as applied to plans terminating prior to January 1, 1976. Such a result not only would be contrary to the four-stage phase-in of the program of insurance and employer liability designed by Congress, but also would impose an extraordinarily harsh and plainly unintended burden on employers by operation of Title I after that date. We first consider petitioner’s textual argument divorced from the statute as a whole; we next examine the structure and history of Title IV; and we finally explain how petitioner’s proposed construction would distort the orderly phase-in of the statutory program designed by Congress.
I
The statutory issue presented in the case is whether petitioner’s employees’ benefits are “nonforfeitable . . . under the terms of a plan” within the meaning of § 4022 (a) of the Act. See n. 2, supra. Petitioner concedes that its employees’ benefits are “vested in a contractual sense.” The question is whether such benefits were insured under Title IV when the plan was terminated even though the plan expressly provided that petitioner was not liable if the plan’s assets were insufficient to cover them.
The key statutory term, “nonforfeitable benefits,” is nowhere defined in Title IV. Petitioner relies on the definition of “nonforfeitable” in Title I, § 3 (19), see n. 10, supra. But definitions in that section are not necessarily applicable to Title IV, because they are limited by the introductory phrase, “For purposes of this title.” Nothing in the statute or its legislative history tells us why the Title I definition of “non-forfeitable” is not made expressly applicable to Title IV. The legislative history does disclose, however, that earlier versions of what finally emerged as the Title I definition would unquestionably have covered the benefits at stake in this litigation, and that those earlier versions applied to the entire Act including the termination insurance provisions. If we assume that the original intent to have the definition apply to the entire statute survived the unexplained changes in the form of the definition, we should likewise assume that no change was intended in the substantive coverage of the insurance program. Indeed, as we shall demonstrate, the latter assumption is supported by the legislative history. But even assuming, arguendo, that the Title I definition controls and even if the legislative history were less clear than it is, three aspects of the Title I definition itself refute petitioner’s argument that the “nonforfeitable” character of a participant’s rights should be determined by focusing on whether the employer is liable for any deficiency in the fund’s assets.
First, the principal subject of the definition is the word “claim”; it is the claim to the benefit, rather than the benefit itself, that must be “unconditional” and “legally enforceable against the plan.” It is self-evident that a claim may remain valid and legally enforceable even though, as a practical matter, it may not be collectible from the assets of the obligor.
Second, the statutory definition refers to enforceability against “the plan.” The only practical significance of the contractual provision limiting liability is to provide protection for the employer. With or without such a clause, the pension fund could pay no more than the amount of assets on hand. Giving the employer protection against liability does not qualify the beneficiary’s rights against the plan itself.
Third, the term “forfeiture” normally connotes a total loss in consequence of some event rather than a limit on the value of a person’s rights. Each of the examples of a plan provision that is expressly described as not causing a forfeiture listed in §203 (a) (3), see n. 10, supra, describes an event — such as death or temporary re-employment — that might otherwise be construed as causing a forfeiture of the entire benefit. It is therefore surely consistent with the statutory definition of “nonforfeitable” to view it as describing the quality of the participant’s right to a pension rather than a limit on the amount he may collect.
This reading of the Title I definition accords with the interpretation of the term “nonforfeitable” in Title IV adopted by the agency responsible for administering the Title IV insurance program. The PBGC has promulgated regulations containing a completely unambiguous definition of the term and has been paying benefits to over 12,000 participants in terminated plans on the basis of this understanding of its statutory responsibilities. We surely may not reject this contemporary construction of the statute by the PBGC without a careful examination of Title IV and its underlying legislative history to see what benefits Congress intended to insure.
II
One of Congress’ central purposes in enacting this complex legislation was to prevent the “great personal tragedy” suffered by employees whose vested benefits are not paid when pension plans are terminated. Congress found “that owing to the inadequacy of current minimum standards, the soundness and stability of plans with respect to adequate funds to pay promised benefits may be endangered; that owing to the termination of plans before requisite funds have been accumulated, employees and their beneficiaries have been deprived of anticipated benefits.” ERISA §2 (a), 88 Stat. 832, 29 U. S. C. § 1001 (a). Congress wanted to correct this condition by making sure that if a worker has been promised a defined pension benefit upon retirement — and if he has fulfilled whatever conditions are required to obtain a vested benefit — he actually will receive it. The termination insurance program is a major part of Congress’ response to the problem. Congress provided for a minimum funding schedule and prescribed standards of conduct for plan administrators to make as certain as possible that pension fund assets would be adequate. But if a plan nonetheless terminates without sufficient assets to pay all vested benefits, the PBGC is required to pay them — within certain dollar limitations not applicable here — from funds established by that corporation.
Throughout the entire legislative history, from the initial proposals to the Conference Report, the legislators consistently described the class of pension benefits to be insured as “vested benefits.” Petitioner recognizes, as it must, that the terms “vested” and “nonforfeitable” were used synonymously. Since Title IV neither uses nor defines the term “vested,” it is reasonable to infer that the term “nonforfeitable” was intended to describe benefits that were generally considered “vested” prior to the statute. And it is clear that the normal usage in the pension field was that even if the actual realization of expected benefits might depend on the sufficiency of plan assets, they were nonetheless considered vested.
There is no evidence that Congress intended to exclude otherwise vested benefits from the insurance program solely because the employer had disclaimed liability for any deficiency in the pension fund. Indeed, there is strong evidence to the contrary. Congress understood that pension plans ordinarily contained disclaimer provisions of the sort petitioner relies on here. Given that understanding, the Title IV insurance program would have been wholly inapplicable to most pension plans. Since only the few plans in which the employer had not disclaimed liability would have been covered, the only purpose in providing any insurance at all would be to protect employees against the risk of employer insolvency.
But §4062 (b)(2), 29 U. S. C. § 1362 (b)(2), see n. 4, supra — the reimbursement provision — demonstrates that insolvency was certainly not the only focus of Congress’ concern. The very fact that § 4062 (b)(2) requires employers to reimburse the PBGC for the payment of insured benefits makes it clear that Congress not only was worried about plan terminations resulting from business failures but also was concerned about the termination of underfunded plans by solvent employers. Of even greater significance is the provision limiting the amount of employer liability for reimbursement to 30% of the employer’s net worth. The 30% limit plainly contemplates the situation in which the employer has disclaimed direct liability; for if the employer were directly liable to the employees for the full amount of any funding deficiency, the 30% limitation would serve no useful purpose. That this 30% limit would be meaningless unless the employer has disclaimed direct liability surely demonstrates that Congress did not intend such a disclaimer to render otherwise vested benefits “forfeitable” within the meaning of § 4022.
Petitioner’s reading of the statute would limit any meaningful application of the insurance program prior to January 1, 1976, to only those cases involving insolvent employers that had not disclaimed direct liability. Since the legislative history clearly shows that Congress intended to cover terminations by solvent employers, and further shows that disclaimer clauses were widely used, petitioner is ultimately contending that Congress did not intend to create any significant employer reimbursement liability prior to January 1, 1976. This argument, however, is foreclosed by á consideration of the statutory provisions for successive increases in the burdens associated with plan terminations. Congress clearly did not offer employers an opportunity to make cost-free terminations at any time prior to January 1, 1976. Quite the contrary, one of the express purposes of ERISA was to discourage plan terminations. See n. 3, supra.
1 — 1 HH
We have previously noted the care with which Congress approached the problem of retroactivity in ERISA. See Los Angeles Dept. of Water & Power v. Manhart, 435 U. S., at 721-722, n. 40. Congress provided that Title IV should have an increasingly severe yet carefully limited impact on employers during four successive periods of time for single-employer plans. During each of these periods, however, it extended the same insurance protection to those beneficiaries of terminated plans having vested benefits under the terms of the plans.
Title IV became effective as soon as ERISA was enacted on September 2, 1974, § 4082 (a), 29 U. S. C. § 1381 (a), and indeed was expressly made partially retroactive in order to provide insurance coverage to participants whose plans terminated after June 30, 1974, § 4082 (b), 29 U. S. C. § 1381 (b). The measure of coverage, at the outset, was the difference between the employee’s vested benefits under the terms of the plan (subject to the dollar limitations in § 4022 (b)(3), see n. 23, supra) and the amount that could be paid from the terminated plan’s assets. However, the employer liability provision, § 4062, was not made effective at all during this initial period — June 30 to September 2, 1974. The PBGC was thus given no right to recover any part of the insured deficiencies from employers that terminated their plans before the Act became effective.
The second period lasted for 270 days after the enactment of ERISA, or until the end of May 1975. Again, the PBGC provided insurance coverage for most underfunded nonfor-feitable benefits under the terms of a pension plan terminated during this period. But two important additional provisions became effective: § 4062 (b), the section creating employer liability to the PBGC, and §4004 (f)(4), 88 Stat. 1009, 29 U. S. C. § 1304 (f)(4). The latter authorized the PBGC to waive entirely, or to reduce, its right to recover insurance payments from any employer who could establish unreasonable hardship in situations in which the employer was not able, as a practical matter, to continue its plan in effect. Section 4004 (f) (4) unequivocally demonstrates that Congress had deliberately imposed a new liability upon an employer that terminated its plan during the first nine months of the operation of the Act. If the employer had a pre-existing contractual liability, there would have been no effective way for the PBGC to mitigate it in hardship cases, since the PBGC could not stop the employees from suing the employer directly. Moreover, there would have been no need for insurance except in cases of insolvency, and in such cases there would have been no practical reason for mitigation because recovery from the employer would have been impossible in any event. On the other hand, in the typical case in which the employer had protected itself from any contractual liability, the only possible source of employer liability was § 4062’s provision for the recovery by the PBGC of insurance payments made on account of unsatisfied nonforfeitable benefits. Petitioner’s definition of nonforfeitable benefits as excluding from Title IV coverage all benefits for which the employer is not directly liable would have made § 4004 (f) (4) totally inapplicable in the only cases in which it could have possibly made any difference.
The third period lasted for about seven months until December 31, 1975, the termination date of petitioner’s plan. Having terminated more than 270 days after the Act became effective, petitioner was not eligible for a hardship waiver. Its contingent liability, however, was smaller than it would have been had it terminated its plan in the fourth period. During the third period, the terms of the pension plan still measured the outer limits of the unfunded liability. Had petitioner waited another day to terminate, Title I’s vesting standards would have become effective, thereby increasing the number of employees whose benefits would have become vested, see n. 6, supra, and therefore insurable under Title IV. Petitioner avoided this additional liability by terminating in the third period.
Under petitioner’s reading of the statute, there was a much more dramatic difference between the third period and the fourth period than we have just described. The argument that an employer liability disclaimer clause renders a plan’s benefits forfeitable has two draconian consequences: first, it makes the Title IV insurance program entirely inapplicable to most terminations before January 1, 1976; second, it makes such disclaimer clauses entirely invalid on and after that date. This latter conclusion flows directly from Title I’s command that all covered pension plans provide nonforfeitable benefits on and after January 1, 1976. See n. 10, supra.
But Congress plainly did not intend to prevent employers from limiting their potential direct liability to their employees. There is not a word in the statute or its legislative history suggesting that Congress ever intended to outlaw the use of such clauses. On the contrary, the inclusion of a limit on an employer’s contingent reimbursement liability to the PBGC measured by 30% of its net worth would be inexplicable if Congress had intended to deny employers any right to place a contractual limit on their direct liability to their employees. We stress that petitioner’s construction of the statute would therefore render meaningless §4062 (b)’s 30% net worth limit on the employer’s contingent liability to the PBGC for all terminations occurring after January 1, 1976. In light of the careful attention paid to when various provisions were to be effective, Congress surely would have made explicit any intent to limit this important provision to a mere transitionary role. It bears emphasis that Congress declined to adopt the suggestion that corporate assets be committed to guarantee any pension obligations which exist at termination. The 30% provision was designed as a softer measure.
In sum, petitioner reads the statute as authorizing cost-free terminations prior to January 1, 1976, and full liability for all promised benefits thereafter with neither dollar nor net worth limitations. We are convinced that Congress envisioned a quite different scheme. Congress intended to discourage unnecessary terminations even during the phase-in period, and to place a reasonable ceiling on the potential cost of terminations during the principal life of the Act — the period after January 1, 1976. Although the impact of our holding on petitioner and others who lawfully terminated plans during the second half of 1975 may seem harsh, we have no doubt as to what Congress intended. We cannot give the statute a special reading for that brief period without distorting it for the remainder of its statutory life.
Accordingly, the judgment is
Affirmed.
Title I of ERISA, § 2 ei seq., 29 U. S. C. § 1001 et seq., requires administrators of all covered pension plans to file periodic reports with the Secretary of Labor, mandates minimum participation, vesting and funding schedules, establishes standards of fiduciary conduct for plan administrators, and provides for civil and criminal enforcement of the Act. Title II, ERISA § 1001 et seq., amended various provisions of the Internal Revenue Code of 1954 pertaining to qualification of pension plans for special tax treatment, in order, among other things, to conform to the standards set forth in Title I. Title III, ERISA §§3001-3043, 29 U. S. C. §1201 et seq., contains provisions designed to coordinate enforcement efforts of different federal departments, and provides for further study of the field. And, most relevant in this case, Title IV, ERISA §§ 4001-4082, 29 U. S. C. § 1301 et seq., created the Pension Benefit Guaranty Corporation (PBGC) and a termination insurance program to protect employees against the loss of “nonforfeitable” benefits upon termination of pension plans that lack sufficient funds to pay such benefits in full.
That section provides, in part:
“Subject to the [dollar] limitations contained in subsection (b) [see n. 23, infra], the [PBGC] shall guarantee the payment of all nonforfeitable benefits (other than benefits becoming nonforfeitable solely on account of the termination of a plan) under the terms of a plan which terminates at a time when section 4021 applies to it.” 88 Stat. 1016.
Section 4002 (a), 88 Stat. 1004, 29 U. S. C. § 1302 (a), provides:
“There is established within the Department of Labor a body corporate to be known as the Pension Benefit Guaranty Corporation. In carrying out its functions under this title, the corporation shall be administered by the chairman of the board of directors in accordance with policies established by the board. The purposes of this title, which are to be carried out by the corporation, are—
"(1) to encourage the continuation and maintenance of voluntary private pension plans for the benefit of their participants,
"(2) to provide for' the timely and uninterrupted payment of pension benefits to participants and beneficiaries under plans to which this title applies, and
“(3) to maintain premiums established by the corporation under section 4006 at the lowest level consistent with carrying out its obligations under this title.”
Section 4062 (b), 88 Stat. 1029, 29 U. S. C. § 1362 (b), provides in part:
“Any employer to which this section applies shall be liable to the corporation, in an amount equal to the lesser of—
“(1) the excess of—
“(A) the current value of the plan’s benefits guaranteed under this title on the date of termination over
"(B) the current value of the plan’s assets allocable to such benefits on the date of termination, or
“(2) 30 percent of the net worth of the employer. . . .”
In other words, the employer must reimburse the PBGC for payments made from PBGC funds to cover nonforfeitable benefits to the extent that the pension fund was unable to pay them, but in no event is the employer liable to the PBGC for more than 30% of its net worth.
Like the plan described in Alabama Power Co. v. Davis, 431 U. S. 581, 593, n. 18, “ [petitioner's plan is a 'defined benefit’ plan, under which the benefits to be received by employees are fixed and the employer’s contribution is adjusted to whatever level is necessary to provide those benefits. The other basic type of pension is a 'defined contribution’ plan, under which the employer’s contribution is fixed and the employee receives whatever level of benefits the amount contributed on his behalf will provide.” ERISA’s termination insurance program does not apply to defined contribution plans, see §4021 (b)(1), 29 U. S. C. §1321 (b)(1), for the reason that under such plans, by definition, there can never be an insufficiency of funds in the plan to cover promised benefits.
ERISA §211 (b)(2), 29 U. S. C. §1061 (b)(2). The provision for vesting of normal and early retirement rights after 10 years of service would have complied with the new standards unless, as petitioner argues, the clause disclaiming direct liability of the employer for benefits not sufficiently covered by the pension fund prevented the benefits from being “nonforfeitable” within the meaning of ERISA § 3 (19), 29 U. S. C. § 1002 (19). See discussion in n. 10, and Part III, infra, at 384-385.
Persons employed by the company when the plan was created were entitled to credit for their prior years of employment in calculating both their eligibility for pensions and the amount of their benefits on retirement.
By quoting only the first of these two sentences, Mr. Justice Stewart’s dissenting opinion creates the impression that this provision is part of the plan’s definition of benefits. Reading the two sentences together, however, makes it clear that the provision is simply a typical disclaimer of employer liability for any deficiency in the assets of the fund.
Mr. Justice Stewart’s dissenting opinion quotes at length from Art. X, § 3, the plan provision determining the order of distribution of fund assets upon termination. Post, at 389-390, n. 7. Again, that provision does not purport to be a part of the definition of benefits, but simply provides a schedule for the distribution of benefits upon termination. Moreover, the dissent is quite wrong in stating that this distribution provision may have become illegal after December 31, 1975, post, at 390, n. 8. If that provision has been superseded, it was by § 4044, 29 U. S. C. § 1344, see n. 32, infra, which became effective on September 2,1974.
Brief for Petitioner 28.
The definition section of Title I, § 3, 88 Stat. 833, 836, 29 U. S. C. § 1002, provides that “[f]or purposes of this title:
“(19) The term 'nonforfeitable’ when used with respect to a pension benefit or right means a claim obtained by a participant or his beneficiary to that part of an immediate or deferred benefit under a pension plan which arises from the participant’s service, which is unconditional, and which is legally enforceable against the plan. For purposes of this paragraph, a right to an accrued benefit derived from employer contributions shall not be treated as forfeitable merely because the plan contains a provision described in section 203 (a)(3).”
Section 203 (a) (3), 29 U. S. C. § 1053 (a) (3), also part of Title I, provides that the right to accrued benefits shall not be treated as forfeitable merely because the plan provides that they are not payable under certain specified conditions, such as the death or temporary re-employment of the participant. None of the listed conditions relates to insufficient funding.
Section 203 (a) is a central provision in ERISA. It requires generally that a plan treat an employee’s benefits, to the extent that they have vested by virtue of his having fulfilled age and length of service requirements no greater than those specified in § 203 (a) (2), as not subject to forfeiture. A provision in a plan which purports to sanction forfeiture of vested benefits for any reason, other than one listed in subsection (a)(3), would violate this section after January 1, 1976, its effective date. Thus, if we were to accept petitioner’s argument that the limitation of direct liability clause renders the vested benefits forfeitable within the meaning of the Title I definition, that clause would be invalid after January 1, 1976.
592 F. 2d, at 958.
“Perhaps the most important facts distinguishing ERISA from the Minnesota statute in Allied Structural Steel [Co. v. Spannaus, 438 U. S. 234,] are those revealing the Congressional attempt to moderate the impact of the liability imposed. Title IV provisions represent a rational attempt to impose liability only to the extent necessary to achieve the legislative purpose. Congress concluded that it was necessary to insure unfunded vested benefits and established a federal corporation for that purpose. However, it was also determined that it would not be possible to maintain an effective insurance program without imposing some liability on employers. The abuses employer liability was designed to cure included terminations motivated by a desire to avoid the continued burden of funding. Ill Legislative History at 4741 (remarks of Sen. Williams); II Legislative History at 3382 (remarks of Rep. Gaydos). Congress was also concerned that without the risk of liability, employers might use promises of higher retirement benefits for bargaining leverage, knowing that the PBGC would be required to fulfill the promise. S. Rep. No. 93-383, I Legislative History at 1155. It was also believed that to impose liability would cause employers to assume a more responsible funding schedule. II Legislative History at 1873 (remarks of Sen. Griffin). These first two considerations would not have been relevant in the Minnesota scheme because no agency was established to assume primary responsibility for the payment of benefits.
"Acknowledging that employers on the verge of bankruptcy would be unlikely to terminate pension plans solely to take advantage of termination insurance, Congress provided net worth limitations on the amount of potential liability. 29 U. S. C. § 1362. Congress also devised other provisions to temper the burdens imposed. Employers will not necessarily be liable for the full amount of benefits promised in the plan, since Congress set a level on the amount of benefits guaranteed. 29 U. S. C. § 1322 (b) (3). In Section 1323 Congress required the PBGC to provide optional insurance to an employer who desires to protect against this contingent liability. Finally, Title IV grants the PBGC discretion to arrange reasonable terms for the payment of liability. 29 U. S. C. § 1367. Thus Title IV of ERISA, unlike the statutes invalidated under Due Process or the Contract Clause does have 'limitations as to time, amount, circumstances, [and] need.’ W. B. Worthen Co. v. Thomas, 292 U. S. [426,] 434. . . .
“The record supporting the enactment of ERISA, wholly unlike that present in Allied Structured Steel, demonstrates that 'the presumption favoring “legislative judgment as to the necessity and reasonableness of a particular measure’” must be allowed to govern here. 438 U. S., at 247. . . . Turner Elkhorn Mining, 428 U. S., at 18, 19 ... ; Williamson v. Lee Optical Co., 348 U. S. 483, 488 .. . (1955). Title IV of ERISA satisfies Nachman’s rights to Due Process.” 592 F. 2d, at 962-963 (footnotes omitted).
See, e. g., Rescue Army v. Municipal Court, 331 U. S. 549, 568-569.
The argument that the definition of “nonforfeitable” in § 3 (19) is directly applicable only in Title I is reinforced by the fact that Title I definitions are occasionally expressly incorporated by reference in Title IV. See, e. g., § 4021 (a) (1), 29 U. S. C. § 1321 (a) (1), which provides in part, “this section applies to any plan . . . which, for a plan year ... is an employee pension benefit plan (as defined in paragraph (2) of section 3 of this Act). . . .” This specific incorporation suggests that Title I definitions do not apply elsewhere in the Act of their own force, though they may otherwise reflect the meaning of the terms defined as used in other Titles.
For example, the bill originally introduced in the House defined “nonforfeitable pension benefit” as “a legal claim obtained by a participant or his beneficiary to that part of an immediate or deferred pension benefit, which notwithstanding any conditions subsequent which could affect receipt of any benefit flowing from such right, arises from the participant’s service and is no longer contingent on continued service.” H. R. 2, 93d Cong., 1st Sess., § 3 (20) (1973), 1 Legislative History of the Employee Retirement Income Security Act of 1974, 94th Cong., 2d Sess., 12 (Comm. Print 1976) (hereinafter Leg. Hist.).
See nn. 24r-27, infra.
The dissenting opinions rely entirely on the form of the contractual provision protecting the employer against liability beyond its agreed contributions. Thus, if instead of stating that the benefits "shall be only such benefits as can be provided by the assets of the fund” the plan had said the benefits “shall only be recoverable from the assets of the fund,” the dissenters would presumably agree that the benefits would be insured under Title IV. Nothing in the statute or its legislative history suggests that Congress intended the rights of the employees to hinge on any such purely formal difference between two plan provisions that would have precisely the same legal significance apart from the statute.
Indeed, under the dissenters’ reading of the plan provision, insurance coverage would be unavailable regardless of the reason for the fund’s inability to pay the vested benefits in full; whether the shortage resulted from insolvency of the employer, a defalcation by the trustees of the fund, or the unilateral termination before the plan was fully funded, Title IV insurance would be simply unavailable.
In the text, we explain at length why a clause limiting an employer’s liability does not make otherwise vested benefits forfeitable within the meaning of the Act. The dissenters do not question the validity of any part of that explanation. Since what Mr. Justice Stewart describes as an “asset-sufficiency limitation,” post, at 391, in the context of this case, is merely an example of such a clause, our explanation applies with full force to that formulation. Merely to assert that there is a “world of difference” between two forms of employer protection — without considering whether there is any reason to believe Congress intended such a difference to govern the availability of insurance protection for employees — is an unacceptable approach to the problem of statutory construction presented by this case. Understandably, the dissenting opinions do not suggest that there is anything in the legislative history of ERISA to support the view that the availability of insurance coverage should turn on the form of a plan provision disclaiming employer liability for unfunded benefits.
The definition promulgated by the PBGC states that “a benefit payable with respect to a participant is considered to be nonforfeitable, if on the date of termination of the plan the participant (or beneficiary) has satisfied all of the conditions required of him under the provisions of the plan to establish entitlement to the benefit, except the submission of a formal application, retirement, [or] the completion of a required waiting period. . . .” 29 CFR §2605.6 (a) (1979).
Petitioner all but concedes that it loses if this definition accurately reflects the meaning of “nonforfeitable” in Title IV. Petitioner argues, in a footnote in its brief, that the word, “payable,” modifies “benefit” in such a way as to exclude the benefits under its plan since liability of the employer to pay them was expressly disclaimed. If that is what the PBGC intended when it promulgated its definition, it has certainly chosen a strangely vague manner of making that intent known.
The Treasury Department’s definition of “nonforfeitable,” 26 CFR § 1.411 (a)-4 (a) (1979), provides in part:
“Rights which are conditioned upon a sufficiency of plan assets in the event of a termination or partial termination are considered to be for-feitable because of such condition. However, a plan does not violate the nonforfeitability requirements merely because in the event of a termination an employee does not have any recourse toward satisfaction of his nonforfeitable benefits from other than the plan assets or the Pension Benefit Guaranty Corporation.”
Because we read petitioner’s plan as containing only an employer liability disclaimer clause, this case is clearly governed only by the second quoted sentence of the regulation. Moreover, we assume this accords with the Treasury Department’s views, since the PBGC’s brief was approved by the Treasury Department. See also n. 36, infra. Of course, a provision in a plan which is construed as a condition, the failure of which would cause a forfeiture, would be invalid after January 1, 1976. See n. 10, supra.
Cf., e. g., E. I. du Pont de Nemours & Co. v. Collins, 432 U. S. 46, 55.
The quotation is from a statement by Senator Bentsen, the member of the Senate Committee on Finance most active in sponsoring ERISA, reprinted in 3 Leg. Hist. 4793.
See, e. g., the following statement by Senator Williams, a sponsor of the Senate version of ERISA:
“Another reason why so many employees have found their pension expectations to be illusory is that the employer may shut down, and if there are insufficient funds to meet the vested claims of the participants, they have no recourse.
“A classic case, of course, is the shutdown of Studebaker operations in South Bend, Ind., in 1963, with the result that 4,500 workers lost 85 percent of their vested benefits because the plan had insufficient assets to pay its liabilities.
“While- this was a spectacularly tragic instance, it was by no means unique. Last year, for example, P. Ballantine and Sons, a substantial contributor to a multiemployer plan, sold its operations and withdrew from the plan.
“Because the plan did not have sufficient assets to cover vested liabilities, several hundred employees, with as many as 30 years service, will lose a substantial portion of their vested benefits.
“These, of course, are by no means isolated cases. According to a recently-issued study by the Departments of Labor and Treasury, over 19,000 workers lost vested benefits last year because of the termination of insufficiently funded plans.” 2 Leg. Hist. 1599-1600.
Section 4022 (b)(3), 88 Stat. 1017, 29 U. S. C. §1322 (b)(3), provides:
“The amount of monthly benefits described in subsection (a) provided by a plan, which are guaranteed under this section with respect to a participant, shall not have an actuarial value which exceeds the actuarial value of a monthly benefit in the form of a life annuity commencing at age 65 equal to the lesser of—
“(A) his average monthly gross income from his employer during the 5 consecutive calendar year period (or, if less, during the number of calendar years in such period in which he actively participates in the plan) during which his gross income from the employer was greater than during any other such period with that employer determined by dividing V12 of the sum of all such gross income by the number of such calendar years in which he had such gross income, or
“(B) $750 multipliéd by a fraction, the numerator of which is the contribution and benefit base (determined under section 230 of the Social Security Act) in effect at the time the plan terminates and the denominator of which is such contribution and benefit base in effect in calendar year 1974.
“The provisions of this paragraph do not apply to non-basic benefits.”
In other words, Title IV generally limits guaranteed benefits to a worker’s average monthly wage over the worker's best five years with the employer or $750 per month (adjusted for cost of living), whichever is lower. The last quoted sentence reflects that the PBGC is authorized to guarantee the payment of greater benefits, but is not required to do so. See § 4022 (c), 29 U. S. C. § 1322 (c).
See, e. g., S. Rep. No. 93-127, pp. 2, 24 (1973), 1 Leg. Hist, 588, 610; H. R. Rep. No. 93-533, pp. 2, 14, 25 (1973), 2 Leg. Hist. 2349, 2361, 2372; Summary of Differences between the Senate and the House Version of H. R. 2, pp. 7-9 (1974), in 3 Leg. Hist, 5213-5215; H. R. Conf. Rep. No. 93-1280, p. 368 (1974), 3 Leg. Hist. 4635: “Under the conference substitute [which was adopted by both Houses], vested retirement benefits guaranteed by the plan (other than benefits vesting only because of the termination) are to be covered to the extent of the insurance limitations. . . .” Mr. Justice Stewart’s dissent acknowledges this language from the Conference Report, post, at 393, but draws an unsupportable inference from it. He emphasizes that it is only “ ‘vested retirement benefits guaranteed, by the plan’ ” that are insured. The emphasized language was used by the Conference Committee, however, not to describe the nature of vested benefits that were to be insured under Title IV, but to distinguish the rejected narrower House provision, under which only those benefits that Title I of ERISA required to be vested would be insured. H. R. Conf. Rep. No. 93-1280, supra, at 368, 3 Leg. Hist, 4635. See also 592 F. 2d, at 954, n. 9. Thus, the quoted language, which tracks the language of § 4022 verbatim — except that “vested” is used in place of “nonforfeitable” — merely underscores the intent to insure all vested benefits.
Brief for Petitioner 28-29: “the Congressional history shows the use of the word ‘vested’ interchangeably with the word ‘nonforfeitable’. . . .”
See also the definition contained in S. 4 as reported on April 18, .1973, § 3 (26), 1 Leg. Hist. 494r-495, which, when proposed, applied to the entire Act including the termination insurance provisions: “ ‘Nonforfeitable right’ or ‘vested right’ means a legal claim obtained to that part of an immediate or deferred life annuity which notwithstanding any conditions subsequent which could affect receipt of any benefit flowing from such right, arises from the participant’s covered service under the plan, and is no longer contingent on the participant remaining covered by the plan.”
In that same version of the bill, the predecessor of §4022 stated that the “insurance program shall insure participants . . . against loss of benefits derived from vested rights. . . S. 4 § 402 (a), 1 Leg. Hist. 532.
There is no explanation in the legislative history for the substitution of “nonforfeitable” for “vested.” Since it is clear from the remainder of the legislative history that "vested” benefits were to be insured, we view the substitution of “nonforfeitable” for “vested” as formal only. The Court of Appeals’ explanation for the substitution is plausible: “The substitution of terms might be explained by reference to the testimony of members from the Department of Labor at the hearings. The Department testified in 1973 that ‘there is a problem of defining the accrued benefit which will be insured. . . . [W]e probably need to get some consistency between accrued benefits definition for purposes of Internal Revenue as well as for purposes of termination insurance.’ Hearings before the Subcommittee on Private Pension Plans of the Senate Committee on Finance, 93rd Cong., 1st Sess., Part I at 437. Senator Bentsen responded with some interest in consistent definitions, although emphasizing it was vested benefits Congress intended to insure. Id., at 443. The Internal Revenue Code used the word ‘nonforfeitable,’ rather than ‘vested,’ in its regulation of plan terminations pre-ERISA. See Treas. Reg. § 1.401-6 (1963).” 592 F. 2d, at 955, n. 10.
There is a Title I definition of “vested liabilities,” which provides that, “[t]he term ‘vested liabilities’ means the present value of the immediate or deferred benefits available at normal retirement age for participants and their beneficiaries which are nonforfeitable.” ERISA § 3 (25), 88 St-at. 837, 29 U. S. C. § 1002 (25). Although, as noted earlier, see n. 14, supra, Title I definitions are not directly applicable to Title IV, it suffices to say that the synonymous use of “vested” and “nonforfeitable” in this definition as well as throughout the legislative history does not make any easier petitioner’s task of distinguishing the two terms for Title IV purposes.
“Under the pre-ERISA terminology, one author clarified that although benefit claims in fact were conditioned on the availability of funds in the trust, they were not to be considered conditional rights:
“ Tn a basic contradiction to the pure legal concept of vesting, the Benefit under a pension plan that is described as vested, is, in the usual ease . . . contingent . . . upon survival . . . [and] upon the availability of assets in the plan. In principle, however, this is no different from some other types of vested property rights such as those embodied in bonds and promissory notes that may not be honored at maturity because of the financial condition of the promisor. In essence, therefore, the vesting of a pension benefit simply means that the realization of the benefit is no longer contingent upon the individual’s remaining in the service óf the employer to normal retirement age.’
“D. McGill, Preservation of Pension Benefit Rights, 6 (1972). See also Departments of Treasury and Labor, Study of Pension Plan Terminations 1972, 19 (1973).” 592 F. 2d, at 953-954.
See S. Rep. No. 92-634, Interim Report of Activities of the Private Welfare and Pension Plan Study, 1971, Senate Committee on Labor and Public Welfare, p. 74 (1972): “Employers ordinarily have no financial responsibility for pension payments beyond the contributions they are committed to make.”
See also remarks of Representative Erlenborn, 2 Leg. Hist. 3388:
“At the present time the legal foundation of pension plans is that the employer sets up a pension trust and promises to make periodic contributions into that trust. If there are sufficient assets, the employee will get the pension that has been described; if there are not, he does not get it; he gets something less. But the employer up until the present time generally has not made a promise to pay the pension, only to make periodic contributions.”
Cf. S. Rep. No. 93-127, p. 10 (1973), 1 Leg. Hist. 596, noting that some “critics have proposed that corporate assets be committed to guarantee any pension obligations which exist at termination,” which implies that the problem was largely due to the absence of any direct guarantee by the employer. That proposal was not adopted. Congress opted instead for the insurance system run by the PBGC, with limited employer liability over to the PBGC.
Cf. also Affidavit of Joseph E. Ellinger, Director of the Office of Pro-gram Operations of the PBGC: “Since September 2, 1974, the PBGC has assumed liability for approximately 136 insufficient pension plans terminating on or before December 31, 1975. ... Of these plans, approximately 78 have limitation-of-liability provisions like the pension plan involved in this lawsuit.” App. 74.
Under petitioner’s view, unless the employer is directly liable, the benefits are uninsured. Accepting that view, it would only be in a case in which an employer is insolvent that the insurance program would make any practical difference, since otherwise the employee could sue the employer directly.
See remarks of Senator Williams following the conference, 3 Leg. Hist. 4741-4742: “Since there would be a possibility of abuse by solvent employers who terminate a plan and shift the financial burden to the insurance program, notwithstanding their own financial ability to continue funding the plan, the conference bill imposes liability on employers whose plans terminate, to reimburse the program for benefits paid by the corporation. This liability extends to 30 percent of the employer’s net worth.”
Congress was not acting in a vacuum. The threat of terminations of underfunded plans by solvent employers was quite real. In a 1972 study of pension plan terminations, published in 1973 by the Departments of the Treasury and Labor, it was reported, p. 55, that “the great majority of claimants with losses, including high-priority claimants, are in plans of employers whose net worth substantially exceeds benefit losses.” Indeed, “[o]ver-alI, only 3 percent of claimants with losses were in plans where employer net worth was less than the value of benefits lost while 71 percent of the claimants with losses were in plans where employer net worth was at least 1,000 percent of claimant losses.” Id., at 61. This study was repeatedly relied on by Congress. See, e. g., S. Rep. No. 93-127, p. 10 (1973), 1 Leg. Hist. 596; remarks of Senator Williams, n. 22, supra; remarks of Representative Thompson, one of the House conferees on the final bill, 3 Leg. Hist. 4665.
The 30% limitation reflects the fear expressed during the debates that if too great a burden is placed directly on employers, growth of pension plans would be discouraged. See remarks of Representative Erlenbom, 2 id., at 3403.
If the employer pays the unfunded portion of the benefits, there would be no need for insurance and, of course, no need for any reimbursement at all. On the other hand, if the employer is liable to the employees but has insufficient assets to pay the full benefits, there obviously would be insufficient funds to reimburse the PBGC and the 30% limit would therefore be irrelevant.
Another indication that benefits are not forfeitable within the meaning of Title IV solely because the employer has disclaimed direct liability is § 4044, 29 U. S. C. § 1344, which establishes the priority scheme for allocation of assets upon termination. The fifth priority is “all other non-forfeitable benefits under the plan.” That implies that the four prior categories all involve nonforfeitable benefits as well, as one might expect. Subsection (b) (2) states the rule that if the assets “are insufficient to satisfy in full the benefits of all individuals [in any of the first four categories], . . . the assets shall be allocated pro rata among such individuals on the basis of present value (as of the termination date) of their respective benefits. . . .” Since this section thus contemplates that there may be insufficient funds in the plan to pay nonforfeitable benefits, it must be that benefits are not to be classified as forfeitable.solely because there are insufficient funds to pay them. And it would make no sense administratively to provide for automatic pro rata distribution, as this section does, unless no additional funds are expected directly from the employer. If the employer is directly liable, it would make more sense to make any pro rata distribution after adding to the assets of the fund whatever funds could be gleaned directly from the employer. Therefore, this section indicates that Congress thought that benefits may be nonfor-feitable even if an employer has disclaimed direct liability.
Since a disclaimer clause would protect an employer from liability to its employees, and since there was no contingent liability to the PBGC on account of terminations during this initial period in any event, it is difficult to identify a rational basis for conditioning the availability of plan termination insurance in this period on the absence of a disclaimer clause.
“(f) In addition to its other powers under this title, for only the first 270 days after the date of enactment of this Act the corporation may—
“(4) waive the application of the provisions of sections 4062, 4063, and 4064 to, or reduce the liability imposed under such sections on, any employer with respect to a plan terminating during that 270 day period if the corporation determines that such waiver or reduction is necessary to avoid unreasonable hardship in any case in which the employer was not able, as a practical matter, to continue the plan.”
Indeed, since their use has unquestionably contributed to the growth of private pension plans, their prohibition would be inconsistent with Congress’ repeatedly expressed intent to encourage the maintenance of pension plans.
See n. 28, supra. The Internal Revenue Service has included an employer liability disclaimer clause in a model pension plan issued for guidance in drafting post-1976 plans. See CCH 1977 Pension Plan Guide ¶ 30,782.96.
Further, under the reading of the statute we adopt, in the usual case an employer could not be liable for underfunded benefits beyond the dollar limitations on PBGC insurance payments. See n. 23, supra. But if an employer liability disclaimer clause were to be deemed invalid after January 1, 1976, those limits would not be applicable to protect the employer in lawsuits by employees brought directly against it. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state. | What is the court whose decision the Supreme Court reviewed? | [
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] | [
25
] | sc_casesource |
HUDSON v. NORTH CAROLINA.
No. 466.
Argued May 16, 1960.
Decided June 20, 1960.
William Joslin argued the cause and filed a brief for petitioner.
Ralph Moody, Assistant Attorney General of North Carolina, argued the cause for respondent. With him on the brief was T. W. Bruton, Attorney General.
Mr. Justice Stewart
delivered the opinion of the Court.
The petitioner and two others were brought to trial before a jury in the Superior Court of Cumberland County, North Carolina, upon an indictment jointly charging them with robbery. When their case was called one of the defendants, David Cain, was represented by a lawyer of his own selection. The petitioner and the other defendant did not have counsel. Before pleading to the indictment, the petitioner, who was eighteen years old, asked the presiding judge to appoint a lawyer to help him with his defense, stating that he was without funds to employ counsel and was incapable of defending himself. The prosecutor conceded that the petitioner was unable to employ an attorney. The trial judge denied the motion, telling the petitioner that “The Court will try to see that your rights are protected throughout the case.”
All three of the defendants thereupon pleaded not guilty, and the case proceeded immediately to trial. The first witness for the State was the alleged victim of the robbery. Midway through this witness’s testimony Cain’s lawyer offered to represent all three codefendants “as long as their interests don’t conflict.” At the conclusion of the witness’s direct testimony the trial judge advised the lawyer that he should cross-examine only on behalf of Cain, because “I think you probably have a conflicting interest there.” Thereafter the witness was cross-examined intensely by Cain’s lawyer, who brought out the witness’s criminal record and previous commitment to a state mental institution. The petitioner and the other codefendant also briefly cross-examined the witness. The only other witnesses for the prosecution were two deputy sheriffs, who testified as to statements made to them by the defendants. They were cross-examined by the lawyer, but not by the two defendants without counsel.
At the conclusion of the State’s evidence, Cain’s lawyer moved that the case be dismissed. When this motion was denied he stated that Cain had no evidence to offer. Thereupon, in the presence of the jury, he tendered on behalf of Cain a plea of guilty to petit larceny. This plea was agreed to by the prosecutor and accepted by the court. The lawyer then withdrew from the proceedings.
The trial proceeded. The petitioner and his remaining codefendant each took the stand. Each made a statement denying the robbery. The petitioner was cross-examined at some length, with emphasis upon his previous criminal record. Neither the petitioner nor his code-fendant produced any other witnesses or offered any further evidence. They were given an opportunity to argue their case to the jury, but did not do so.
The jury found both defendants guilty of larceny from the person, a felony under North Carolina law, and the following day the trial judge pronounced sentence. The petitioner was committed to the penitentiary for a term of three'to five years. The codefendant convicted with him was sentenced to a jail term of eighteen months to two years. Cain was given a six months’ suspended sentence.
The petitioner’s subsequent appeal to the Supreme Court of North Carolina was dismissed for want of prosecution. Thereafter he filed in the trial court a “petition for writ of certiorari,” which urged that the failure of the trial court to provide him with counsel had deprived him of his constitutional rights. This petition was treated as an application for relief under the North Carolina Post-Conviction Hearing Act. In the subsequent proceedings the court appointed a lawyer to represent the petitioner, and held a hearing at which the petitioner and his counsel were present. After considering the evidence presented, including a transcript of the trial proceedings, the court concluded that no special circumstances were shown which required the appointment of trial counsel, that the petitioner had been convicted only-after a fair and impartial trial, and that there had consequently been no denial of due process of law. The petition was accordingly dismissed. The Supreme Court of North Carolina declined to review the order of dismissal. We granted certiorari to consider the substantial constitutional claim asserted. 361 U. S. 812.
The judge who presided at the post-conviction proceedings made detailed findings of fact. He found that the trial judge had “advised the petitioner of his right to challenge when the jury was selected and advised the petitioner of his right to cross examine witnesses and to argue the case to the jury.” He also found that “during the trial the Court properly excluded evidence which was inadmissible, and the petitioner cross examined the witnesses against him and at his request testified in his own behalf.”
In this Court counsel for the petitioner does not take issue with these findings. Counsel’s primary emphasis rather is upon the petitioner’s comparative youth, relying upon Wade v. Mayo, 334 U. S. 672. In that case it was held that the denial of a lawyer’s help had resulted in the deprivation of due process where the Federal District Court after a habeas corpus hearing had found that the eighteen-year-old defendant was “an inexperienced youth unfamiliar with Court procedure, and not capable of adequately representing himself.” 334 U. S., at 683. Here, by contrast, the post-conviction court found that “although the petitioner was only eighteen years of age and had been only to the sixth grade in school at the time of his trial, he is intelligent, well informed, and was familiar with and experienced in Court procedure and criminal trials . . . .” Evaluations of this nature are peculiarly within the province of the trier of the facts based upon personal observation. As the Court pointed out in Wade v. Mayo, “[tjhere are some individuals who, by reason of age, ignorance or mental capacity, are incapable of representing themselves adequately in a prosecution of a relatively simple nature. This incapacity is purely personal and can be determined only by an examination and observation of the individual.” 334 U. S., at 684.
In view of the findings of the post-conviction court, supported by the record of the trial proceedings, this, in short, is not a case where it can be said that the failure to appoint counsel for the defendant resulted in a constitutionally unfair trial either because of deliberate overreaching by court or prosecutor or simply because of the defendant’s chronological age. Moreover, the record shows that up to the time that Cain’s lawyer withdrew from the proceedings the petitioner was receiving the effective benefit of the lawyer’s activity, and had the trial of all three defendants proceeded to a jury verdict, it is possible that the lawyer could have continued to represent the interests of the petitioner as well as those of the client who had retained him.
But that did not happen. Instead, on the advice of his counsel Cain entered a plea of guilt in the presence of the jury midway through the trial. The potential prejudice of such an occurrence is obvious and has long been recognized by the courts of North Carolina. State v. Hunter, 94 N. C. 829, 835; State v. Bryant, 236 N. C. 745, 747, 73 S. E. 2d 791, 792; State v. Kerley, 246 N. C. 157, 97 S. E. 2d 876. Yet it was precisely at this moment of great potential prejudice that the petitioner and his codefendant were left entirely to their own devices, for it was then that Cain’s lawyer withdrew from the case. At that very point the petitioner and his codefendant were left to go it alone.
The precise course to be followed by a North Carolina trial court in order to cure the prejudice that may result from a codefendant’s guilty plea does not appear to have been made entirely clear by the North Carolina decisions. In the Hunter case the Supreme Court of North Carolina pointed out that while not infrequently a defendant on trial with another is allowed to enter a plea of guilt during the course of the trial, the court should exercise care “to see that such practice works no undue prejudice to another party on trial.” 94 N. C., at 835. Later cases have been somewhat more explicit. In the Bryant case curative instructions to the jury given immediately after a codefendant’s guilty plea were held sufficient to avoid error prejudicial to the remaining defendant. 236 N. C., at 747-748, 73 S. E. 2d, at 792. More recently, in the Kerley case, the court said that “[w]hen request therefor is made, it is the duty of the trial judge to instruct the jury that a codefendant’s plea of guilty is not to be considered as evidence bearing upon the guilt of the defendant then on trial and that the latter’s guilt must be determined solely on the basis of the evidence against him and without reference to the codefendant’s plea.” 246 N. C., at 161; 97 S. E. 2d, at 879. Indeed, the court expressed the view that even “a positive instruction probably would not have removed entirely the subtle prejudice that unavoidably resulted from [a codefend-ant’s] plea . . . .” 246 N. C., at 162; 97 S. E. 2d, at 880.
In the present case the petitioner did not make any request that the jury be instructed to disregard Cain’s guilty plea, and the court gave none, either at the time the plea was entered or in finally instructing the jury. A layman would hardly be aware of the fact that he was entitled to any protection from the prejudicial effect of a codefendant’s plea of guilt. Even less could he be expected to know the proper course to follow in order to invoke such protection. The very uncertainty of the North Carolina law in this respect serves to underline the petitioner’s need for counsel to advise him.
The post-conviction court made no finding specifically evaluating the prejudicial effect of Cain’s plea of guilt and the trial judge’s subsequent failure to give cautionary instructions to the jury. In any event, we cannot escape the responsibility of making our own examination of the record. Spano v. New York, 360 U. S. 315, 316. We hold that the circumstances which thus arose during the course of the petitioner’s trial made this a case where the denial of counsel’s assistance operated to deprive the- defendant of the due process of law guaranteed by the Fourteenth Amendment. The prejudicial position in which the petitioner found himself when his codefendant pleaded guilty before the jury raised problems requiring professional knowledge and experience beyond a layman’s ken. Gibbs v. Burke, 337 U. S. 773; Cash v. Culver, 358 U. S. 633.
Reversed.
“I don’t have funds to employ an attorney and am not capable of defending myself. If the Court please, I would like to ask the Court to employ me an attorney.”
“I will say that he is not able to employ an attorney, but as to whether he is able to represent himself I cannot say.”
N. C. Gen. Stat., § 15-217 et seq.
The North Carolina Post-Conviction Hearing Act provides: “If the petition alleges that the petitioner is without funds to pay the costs of the proceeding, and is unable to give a costs bond with sureties for the payment of the costs for the proceeding and is unable to furnish security for costs by means of a mortgage or lien upon property to secure the costs, the court may order that the petitioner be permitted to proceed to prosecute such proceeding without providing for the payment of costs. If the petitioner is without counsel and alleges in the petition that he is without means of any nature sufficient to procure counsel, he shall state whether or not he wishes counsel to be appointed to represent him. If appointment of counsel is so requested, the court shall appoint counsel if satisfied that the petitioner has no means sufficient to procure counsel. The court shall fix the compensation to be paid such counsel which, when so determined, shall be paid by the county in which the conviction occurred.” N. C. Gen. Stat., § 15-219.
The judge who conducted the post-conviction proceedings was not the judge who had presided at the trial.
The dismissal was clearly based upon the court’s view of the merits of the petitioner’s constitutional claim. The court nowhere suggested that the petitioner had chosen an inappropriate remedy under the State law. Indeed the Supreme Court of North Carolina has made clear that claims of unconstitutional denial of the right to counsel are to be considered on their merits in Post-Conviction Hearing Act proceedings. State v. Hackney, 240 N. C. 230, 81 S. E. 2d 778; State v. Cruse, 238 N. C. 53, 76 S. E. 2d 320. | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded. | What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed? | [
"stay, petition, or motion granted",
"affirmed",
"reversed",
"reversed and remanded",
"vacated and remanded",
"affirmed and reversed (or vacated) in part",
"affirmed and reversed (or vacated) in part and remanded",
"vacated",
"petition denied or appeal dismissed",
"modify",
"remand",
"unusual disposition"
] | [
8
] | sc_lcdisposition |
PENNSYLVANIA RAILROAD CO. et al. v. RYCHLIK.
No. 56.
Argued December 10-11, 1956.
Decided February 25, 1957.
Richard N. Clattenburg argued the cause for the Pennsylvania Railroad Co., petitioner. With him on the brief were John B. Prizer, Percy R. Smith and Hugh B. Cox.
Henry Kaiser argued the cause for the Brotherhood of Railroad Trainmen, petitioner. With him on the brief were Gerhard P. Van Arkel, Eugene Gressman and Way-land K. Sullivan.
Norman M. Spindelman and Meyer Fix argued the cause and filed a brief for respondent.
Briefs of amici curiae urging reversal were filed by Solicitor General Rankin and Assistant Attorney General Hansen for the United States, Clarence M. Mulholland, Edward J. Hickey, Jr. and Richard R. Lyman for the Railway Labor Executives’ Association, and Clarence E. Weisell and Harold N. McLaughlin for the Brotherhood of Locomotive Engineers.
Mr. Justice Harlan
delivered the opinion of the Court.
Petitioner Brotherhood of Railroad Trainmen is the collective bargaining representative for trainmen employed by the petitioner Railroad. In accordance with Section 2, Eleventh (a) and (c) of the Railway Labor Act, the Brotherhood and the Railroad negotiated a union-shop contract in 1952, which required trainmen employed by the Railroad to become members of and retain membership in the Brotherhood or in another labor organization “national in scope” and “organized in accordance with” the Railway Labor Act. Respondent Rychlik was employed as a trainman by the Railroad and was a member in good standing of the Brotherhood until February 1953. At that time he resigned from the Brotherhood and joined the United Railroad Operating Crafts (UROC), a competing union which respondent believed in good faith to be “national in scope” and “organized in accordance with” the Act, and therefore available for alternative membership under Section 2, Eleventh and the union-shop provision of the contract, even though UROC had never qualified itself under Section 3, First of the Act as one of the unions “national in scope” eligible to elect the labor members of the National Railroad Adjustment Board. On July 31, 1954, Rychlik, continuing his membership in UROC, also joined the Switchmen’s Union of North America, concededly a union “national in scope” within the meaning of the statute and the contract.
Following his resignation from the Brotherhood, Rychlik was charged with violation of the union-shop agreement. He received two hearings before a “System Board of Adjustment,” a body established under the agreement, pursuant to Section 3, Second of the Act, to settle contract disputes, and composed of two representatives each from the Railroad and the Brotherhood. This Board determined that membership in UROC did not satisfy the union-shop provision of the contract, which mirrored the requirements of the Act, and that therefore Rychlik had failed to maintain continuous union membership in accordance with the contract, not having joined the Switchmen’s Union until some 16 months after resigning from the Brotherhood. Accordingly, Rychlik was discharged by the Railroad.
Rychlik, on behalf of himself and other employees of the Railroad similarly situated, thereupon brought this class suit in the United States District Court for the Western District of New York, seeking an injunction compelling petitioners to accept him as a member of the Brotherhood and an employee of the Railroad. He alleged that his discharge violated Section 2, Eleventh of the Railway Labor Act, and that the System Board’s determination to the contrary could not be final and binding, since the presence on that Board of two representatives of the Brotherhood created an inherent and fatal bias which vitiated the proceeding. The District Court granted petitioners’ motion to dismiss the complaint for lack of jurisdiction and for failure to state a cause of action. The Court of Appeals for the Second Circuit reversed and remanded for review on the merits of the System Board’s decision that membership in UROC did not satisfy the Act. Accepting the premise that Section 2, Eleventh (c) conferred on respondent a right to belong to any union which is, in fact, “nationál in scope” and organized in accordance with the Railway Labor Act, even though it has not qualified under Section 3, First of the Act as an elector of labor representatives on the National Railroad Adjustment Board, the court held (1) that, although the System Board had jurisdiction over this dispute between Rychlik and the Brotherhood, its decision that UROC was not a union “national in scope” was subject to full review on the merits, because of the bias which must be attributed to a body half of whose members represented the Brotherhood, a party in interest; and (2) that this bias was not cured by the availability of the alternative procedure provided by Section 3, First of the Act, whereby it can be established that a union is “national in scope” and organized in accordance with the Act. Because of a conflict between the decision of the court below and an earlier decision of the Court of Appeals for the Sixth Circuit, and the importance of these questions in the administration of the Railway Labor Act, we granted certiorari. 351 U. S. 930.
On our view of the case we do not reach either question decided by the Court of Appeals, for we disagree with its premise as to the meaning of Section 2, Eleventh (c). For reasons hereafter given, we hold that Section 2, Eleventh (c) allows alternative union membership only in those unions which have already qualified under Section 3, First of the Act, as electors of the union representatives on the National Railroad Adjustment Board, and not membership in any union which happens to be, as a matter of fact, national in scope and organized in accordance with the Railway Labor Act. Since UROC was not so qualified, respondent had no federal right to join it in lieu of the authorized bargaining representative under the union-shop provision of the Railroad-Brotherhood contract. His discharge by petitioners therefore did not give rise to a federal cause of action.
In order to clarify the reasons for these conclusions, a brief outline of the relevant provisions of the Railway Labor Act is necessary. Section 2, Eleventh (a) of that Act authorizes railroads and labor unions to establish a union shop, that is, an agreement requiring as a condition of continued employment that employees join the union designated as their authorized bargaining representative. Section 2, Eleventh (c) then provides that in the case of operating employees the union-shop provision of a contract will be satisfied if an employee is a member of “any one of the labor organizations, national in scope, organized in accordance with this Act and admitting to membership employees of a craft or class in any of said services . . . .”
Section 3, First establishes the National Railroad Adjustment Board (NRAB), an agency designed to settle disputes arising under collective bargaining agreements. Subsection (a) provides that this Board shall consist of 36 members, 18 selected by the carriers, and 18 “by such labor organizations of the employees, national in scope, as have been or may be organized in accordance with the provisions of section 2 . ...” Subsection (f) then states that if a dispute arises as to the right of a union to participate in the election of the labor representatives on the NRAB, the Secretary of Labor will notify the Mediation Board if he feels the claim has merit. The Mediation Board then constitutes a “board of three,” consisting of one representative of the claimant union, one representative of the unions already entitled to elect the labor members of the NRAB, and one neutral member selected by the Mediation Board. This board of three then decides whether the claimant union is entitled to be an elector for the NRAB, that is, whether it is “organized in accordance with section 2 . . . and is otherwise properly qualified to participate in the selection . . . .”
At first glance the language of Section 2, Eleventh (c) would appear to be disarmingly clear: union-shop contracts are satisfied if the employee belongs to any union which happens to be national in scope and organized in accordance with the Act. And if that be its meaning we would then have to deal with the questions reached by the Court of Appeals. However, as so often happens, when the language of the statute is read, not in a vacuum, but in the light of the policies this Section was intended to serve, it becomes clear that the purpose of Congress was not, as respondent contends, to give employees in the railroad industry any blanket right to join unions other than the authorized bargaining representative, or to help dissident or rising new unions recruit new members. Rather, the sole aim of the provision was to protect employees from the requirement of dual unionism in an industry with high job mobility, and thus to confer on qualified craft unions the right to assure members employment security, even if a member should be working temporarily in a craft for which another union is the bargaining representative. And this right is given only to those unions which have already qualified as being “national in scope” and “organized in accordance with” the Act for the purpose of electing the union members of the NRAB under Section 3.
I.
The purposes to be served by Section 2 are clearly revealed by its history. Until 1951 the Railway Labor Act did not permit union-shop contracts in the industry. In that year the Congress, persuaded by the established unions that it is unfair to allow nonunion employees to enjoy benefits obtained by t'he union’s efforts in collective bargaining without paying any of the costs, passed Section 2, Eleventh of the Act, which authorized the union shop. However, the hearings on the bill revealed a problem, peculiar to the railroad industry, in establishing the union shop. Labor in this industry is organized largely on craft rather than industrial lines. Engineers, firemen, trainmen, switchmen, brakemen, and conductors, for example, each are separately organized for the purposes of bargaining. And normally different unions represent different crafts; thus, on the same railroad, firemen might be represented by the Brotherhood of Firemen and Enginemen, and engineers by the Brotherhood of Locomotive Engineers. Yet seasonal and other factors produce a high degree of job mobility for individual employees in the industry, that is, of shuttling back and forth between crafts. For example, a fireman may be temporarily promoted to engineer for a short time, or a conductor might have to serve temporarily as brakeman. Under the ordinary union-shop contract, such a change from craft to craft, even though temporary, would mean that the employee would either have to belong to two unions — one representing each of his crafts — or would have to shuttle between unions as he shuttles between jobs. The former alternative would, of course, be expensive and sometimes impossible, while the latter would be complicated and might mean loss of seniority and union benefits.
So Congress faced the problem of reconciling the union shop with some protection to employees who shifted from one craft to another one represented by a different labor organization under a union-shop contract. The solution, of course, was evident: to provide that if a fireman, for example, is temporarily promoted to engineer, he can satisfy the union-shop contract of the engineers although still remaining a member of the union representing the firemen.
As a result, the Committee reporting the bill to the Senate offered on the Senate floor the following amendment to subsection (a) of Section 2, Eleventh:
“Provided further, That no such [union shop] agreement shall require membership in more than one labor organization.”
Senator Hill, manager of the bill, explained the Committee amendment:
“This proviso was attached because some question was raised as to the status, under this bill, of employees who are temporarily promoted or demoted from one closely related craft or class to another. This practice, with minor exceptions, occurs only among the train- and engine-service employees. Thus a fireman may be promoted to a position as engineer for a short time and then due to a reduction in force be returned to his former position as fireman. It is the intention of this proviso to assure that in the case of such promotion or demotion, as the case may be, the employee involved shall not be deprived of his employment because of his failure or refusal to join the union representing the craft or class in which he is located if he retains his membership in the union representing the craft or class from which he has been transferred.”
Due to a temporary adjournment of the Senate, no action was taken on this amendment. When the bill was again taken up, however, a substitute amendment, which had been drafted by the railroad brotherhoods, was offered by Senators Hill and Taft. The language of this substitute was that of the present Section 2, Eleventh (c), providing that the requirement of membership under a union-shop contract is satisfied if the employee belongs to “any one of the labor organizations, national in scope, organized in accordance with this Act.” Senator Hill explained that the purpose of this substitute was the same as that of the previous amendment:
“[The amendment does] nothing more nor less than what the committee desires to do, and what was the intent of the committee in offering its amendment, that no employee of a railroad should be required to belong to more than one labor organization. The only difference between the committee amendment and the amendments now before the Senate, which have been agreed upon by all the railroad organizations, is that the amendments now before the Senate spell out in much more detail the purposes of the committee amendment than did the committee amendment. But the intent and the purpose . . . are exactly the same.”
This amendment passed as introduced and now forms subsection (c).
It thus becomes clear that the only purpose of Section 2, Eleventh (c) was a very narrow one: to prevent compulsory dual unionism or the necessity of changing from one union to another when an employee temporarily changes crafts. The aim of the Section, which was drafted by the established unions themselves, quite evidently was not to benefit rising new unions by permitting them to recruit members among employees who are represented by another labor organization. Nor was it intended to provide employees with a general right to join unions other than the designated bargaining representative of their craft, except to meet the narrow problem of intercraft mobility. This is made particularly clear when the provision is taken in the context of American labor relations in general. The National Labor Relations Act contains no parallel to subsection (c), and employees under a union-shop contract governed by that Act must join and maintain membership in the union designated as the bargaining representative or suffer discharge. Similarly, subsection (c) does not apply to nonoperating employees, where the problem of seasonal intercraft movement does not exist. Railroad employees such as clerks working under a union-shop contract have no right at all to join a union other than the bargaining representative. In other words, once a union has lawfully established itself for a period of time as the authorized bargaining representative of the employees under a union-shop contract, Congress has never deemed it to be a “right” of employees to choose between membership in it and another competing union. If Congress intended to confer such a right, it would scarcely have denied the right to nonoperating employees of the railroads or industrial employees under the National Labor Relations Act. The purpose of Section 2, Eleventh (c) was simply to solve the problem of intercraft mobility under railroad union-shop contracts.
II.
There next arises for consideration the manner in which Congress achieved this purpose. Section 2, Eleventh (c) provides that for operating employees a union-shop contract can be satisfied by membership in “any one of the labor organizations, national in scope, organized in accordance with this Act . . . .” At first blush this would appear to confer on employees a blanket right to choose between alternative unions which are, in the abstract, national in scope and organized in accordance with the Act. But when taken in the context of the Railway Labor Act as a whole, it becomes apparent that this language refers to a certain group of unions, a group already constituted. For the language was borrowed from Section 3, First of the Act, which had been on the books for some 17 years, and which establishes precisely the same qualifications for those unions which are permitted to elect the labor members of the NRAB. Subsection (a) of Section 3, First provides that unions may become electors if they are “national in scope” and are “organized in accordance with” the Act. Subsection (f) then spells out an impartial administrative method of tripartite arbitration whereby it can be decided whether a particular union meets these qualifications. In other words, by writing into Section 2, Eleventh (c), standards identical to those of Section 3, Congress in Section 2 was evidently making reference to those unions which had qualified as electors under Section 3 through the administrative procedure there expressly provided. This reference to an already constituted group of unions is emphasized by the fact that Congress in Section 2, Eleventh (c) did not say that an employee under a union-shop contract could join “any” labor organization which was national in scope and organized in accordance with the Act; rather it said that such an employee could join “any one of the” labor organizations which are national in scope and organized in accordance with the Act. In short, Congress in Section 2 was referring to a group of unions already defined and constituted under the Section 3 procedures. And therefore an employee has available to him alternative membership only in such unions as have already qualified as electors under Section 3.
III.
This interpretation of the Act solves the problem which Congress faced without conferring on employees “floating” rights which Congress did not intend to grant. For the problem of intercraft mobility vanishes if the promoted fireman can remain in the firemen’s brotherhood, even though his new craft is represented by a different union; and the firemen’s brotherhood will, of course, already have qualified under the Act as an elector under Section 3. Furthermore, this interpretation avoids troublesome questions which would arise were we to hold that employees have a right to belong to any union which happens to be national in scope and organized in accordance with the Act. For, while Section 3, First provides an impartial administrative scheme to deal with precisely this question, Section 2, Eleventh (c), assuming it does not refer to an already defined group of unions qualified under Section 3, is silent on the procedure to determine whether a union meets its requirements. An entire new administrative scheme would have to be fashioned by the courts out of thin air to deal with this question, or the courts themselves would have to deal with it without prior administrative action. If System Boards, for example, are to be given jurisdiction to make such determinations, is there to be judicial review? What is to be the scope of such review? How is the inherent bias of the established-union members of these boards to be overcome? Would the determination of one Board (or one Circuit) that such a union as UROC is “national in scope” be binding on another Board or another Circuit?
Moreover, to sanction such a “floating” right in employees would make only for confusion and uncertainty in labor relations in the railroad industry. No employee could with safety join an alternative union, for he could not know until after-the-fact adjudication whether that union meets the requirements of Section 2. On the other hand, interpreting Section 2 to refer to those unions which have already qualified as electors under Section 3 means that an employee will always know or can easily ascertain the unions which he can join as an alternative to his bargaining representative. A new union, such as UROC, could make itself available for such alternative membership by seeking certification as an elector through the impartial procedure of Section 3, First (f). And the decision of the “board of three” provided by that Section would be prospective, uniform throughout the nation, and would be the ruling of an administrative body established to deal with precisely this question.
We hold, therefore, that Section 2, Eleventh (c) of the Act makes only such unions available for alternative membership under a union-shop contract, such as this one, as have already qualified as electors for the labor members of the NRAB under Section 3, First. Since UROC has not so qualified, respondent has not stated a claim on which relief can be granted. The decision below must therefore be reversed and the case remanded to the District Court with instructions to dismiss the complaint.
Reversed and remanded.
Mr. Justice Black took no part in the consideration or decision of this case.
64 Stat. 1238 (1951), 45 U. S. C. § 152, Eleventh (a) and (c). These and other pertinent provisions of the statute are discussed later.
48 Stat. 1189 (1934), 45 U. S. C. § 153, First.
48 Stat. 1193 (1934), 45 U. S. C. §153, Second. This Section authorizes carriers and unions to set up “system, group, or regional boards of adjustment” to decide disputes otherwise within the jurisdiction of the National Railroad Adjustment Board, with a right in any party, dissatisfied with such an arrangement, to return to the jurisdiction of the Adjustment Board upon 90 days’ notice. No such election was made here.
The first hearing was on August 27, 1953, at which time the Board postponed decision pending further exploration into the status of UROC. The second hearing was on August 23, 1954. In the interim, Rychlik, on July 31, 1954, had joined the Switchmen’s Union, and presented evidence of that membership at the second hearing. Rychlik’s employment was continued until shortly after the Board’s adverse decision on January 3, 1955.
128 F. Supp. 449. The District Court, holding in effect that its jurisdiction to review the System Board was limited to ascertaining whether the Board had acted within the scope of its statutory and contract authority and whether its decision was free of fraud or corruption and the hearing consonant with procedural due process, found that no such infirmities had been shown, and in particular that the presence of two Brotherhood representatives on the System Board did not automatically vitiate its proceedings. It further held that Rychlik’s belated membership in the Switchmen’s Union did not satisfy the statutory and contract requirements of continuous maintenance of membership in a qualified union, and that the court need not decide whether UROC was a labor organization “national in scope,” since, under Section 3, First (f) of the Railway Labor Act, determination of that question was within the exclusive competence of the National Mediation Board. See pp. 487-488, infra.
229 F. 2d 171.
The briefs below show that the validity of this premise was not challenged by any of the parties before the Court of Appeals.
As to this issue the Court of Appeals relied on its previous decision in United Railroad Operating Crafts v. Wyer, 205 F. 2d 153.
Neither in the Court of Appeals, nor here, has Rychlik claimed that his membership in the Switchmen’s Union made his discharge illegal. In both courts he has stood only upon his membership in UROC.
Pigott v. Detroit, Toledo and Ironton R. Co., 221 F. 2d 736.
No contention is made that, apart from the statute, respondent had a cause of action on the union-shop contract itself, that is, that the contract conferred on him rights wider than those given as a matter of federal right by the statute. On such a cause of action federal jurisdiction would depend on showing diversity of citizenship.
“Notwithstanding any other provisions of this Act . . . any carrier or carriers as defined in this Act and a labor organization or labor organizations duly designated and authorized to represent employees in accordance with the requirements of this Act shall be permitted—
“(a) to make agreements, requiring, as a condition of continued employment, that within sixty days following the beginning of such employment, or the effective date of such agreements, whichever is the later, all employees shall become members of the labor organization representing their craft or class: Provided, That no such agreement shall require such condition of employment with respect to employees to whom membership is not available upon the same terms and conditions as are generally applicable to any other member or with respect to employees to whom membership was denied or terminated for any reason other than the failure of the employee to tender the periodic dues, initiation fees, and assessments (not including fines and penalties) uniformly required as a condition of acquiring or retaining membership.” 64 Stat. 1238 (1951), 45 U. S. C. §152, Eleventh (a).
Italics supplied. The full text of the section is: “The requirement of membership in a labor organization in an agreement made pursuant to subparagraph (a) shall be satisfied, as to both a present or future employee in engine, train, yard, or hostling service . . . if said employee shall hold or acquire membership in any one of the labor organizations, national in scope, organized in accordance with this Act and admitting to membership employees of a craft or class in any of said services; and no [checkoff] agreement made pursuant to subparagraph (b) shall provide for deductions from his wages for periodic dues, initiation fees, or assessments payable to any labor organization other than that in which he holds membership: Provided, however, That as to an employee in any of said services on a particular carrier at the effective date of any such agreement on a carrier, who is not a member of any one of the labor organizations, national in scope, organized in accordance with this Act and admitting to membership employees of a craft or class in any of said services, such employee, as a condition of continuing his employment, may be required to become a member of the organization representing the craft in which he is employed on the effective date of the first agreement applicable to him: Provided, further, That nothing herein or in any such agreement or agreements shall prevent an employee from changing membership from one organization to another organization admitting to membership employees of a craft or class in any of said services.” 64 Stat. 1238 (1951), 45 U. S. C. § 152, Eleventh (c).
48 Stat. 1189 (1934), 45 U. S. C. §153, First (a). (Italics supplied.)
The National Mediation Board was set up by Section 4, First of the Act. 48 Stat. 1193 (1934), 45 U. S. C. § 154, First. It is an independent federal agency with three members, appointed by the President with the advice and consent of the Senate. Its function, in the main, is to try to settle “major” disputes in the railroad industry, which are not within the jurisdiction of the NRAB.
The full text of subsection (f) is: “In the event a dispute arises as to the right of any national labor organization to participate as per paragraph (c) of this section in the selection and designation of the labor members of the Adjustment Board, the Secretary of Labor shall investigate the claim of such labor organization to participate, and if such claim in the judgment of the Secretary of Labor has merit, the Secretary shall notify the Mediation Board accordingly, and within ten days after receipt of such advice the Mediation Board shall request those national labor organizations duly qualified as per paragraph (c) of this section to participate in the selection and designation of the labor members of the Adjustment Board to select a representative. Such representative, together with a representative likewise designated by the claimant, and a third or neutral party designated by the Mediation Board, constituting a board of three, shall within thirty days after the appointment of the neutral member, investigate the claims of the labor organization desiring participation and decide whether or not it was organized in accordance with section 2 hereof and is otherwise properly qualified to participate in the selection of the labor members of the Adjustment Board, and the findings of such boards of three shall be final and binding.” 48 Stat. 1190 (1934), 45 U. S. C. § 153, First (f).
See Frankfurter, Some Reflections on the Reading of Statutes, in The Record of the Association of the Bar of the City of New York, Volume 2, No. 6 (1947).
In 1934 a prohibition against the union shop and the checkoff was put into the Railway Labor Act at the request of the unions themselves, since employers had used these devices to establish and maintain company unions. See S. Rep. No. 2262, 81st Cong., 2d Sess., pp. 2-3 (1950); Hearings before the House Committee on Interstate and Foreign Commerce, on H. R. 7789, 81st Cong., 2d Sess., pp. 3-4, 7-8, 16-17 (1950).
See id., at pp. 10, 28, 29, 37; H. R. Rep. No. 2811, 81st Cong., 2d Sess., p. 4 (1950).
Hearings before the House Committee on Interstate and Foreign Commerce, on H. R. 7789, 81st Cong., 2d Sess. (1950); Hearings before a Subcommittee of the Senate Committee on Labor and Public Welfare, on S. 3295, 81st Cong., 2d Sess. (1950).
House Hearings, supra, at pp. 30-31, 32-33, 35-36, 42-43, 78-81, 126, 192-194; Senate Hearings, supra, at pp. 18-19, 67-68, 69, 73, 78-79. See also Levinson, Union Shop Under the Railway Labor Act, 6 Labor L. J. 441, 443-448 (1955).
See H. R. Rep. No. 2811, supra, at pp. 5-6.
96 Cong. Rec. 15735.
Id,., at 15736.
Id., at 16268.
See n. 13, supra.
96 Cong. Rec. 16268. See also id., at 16261, 16328-16330.
Id., at 16268.
Had Congress wanted to confer blanket “union-shopping” rights on employees, it presumably would have allowed nonmembers of a union to join any union (qualified under Section 2, Eleventh) at the time a union-shop agreement was first put into effect. However, the next-to-last proviso of Section 2, Eleventh (c) states that when a union-shop provision is first signed, employees not belonging to a qualified union may be required to join that union which represents the craft in which they are employed at the time the agreement becomes effective. See n. 13, supra. Thus when this agreement between petitioners was first put into effect, Rychlik, had he belonged to no union at all, would have been required to join the Brotherhood specifically, and could not have chosen to join even such competing unions which are concededly national in scope, not to speak of UROC. In other words, this proviso completely negates the argument that the purpose of the statute was to allow employees to choose between unions.
See Senator Hill’s statement, 96 Cong. Rec. 16329: “The representatives of the railway organizations sat around a table together and worked out the details of the amendment, and then brought it to the Senator from Ohio and the Senator from Alabama, and we saw that the amendment was exactly similar to the committee amendment, except that it spelled out in more detail the safeguards which were deemed necessary in order to properly do the job.”
See Levinson, supra, n. 21.
See n. 14, supra. The “organized in accordance” language refers to Section 2, Fourth, which prohibits company unions, and which had also been on the books since 1934. 48 Stat. 1187 (1934), 45 U. S. C. § 152, Fourth.
See n. 16, supra.
Respondent argues that the standards of Section 3 are not the same as those of Section 2, Eleventh (c), and that therefore the latter provision cannot refer to the unions qualified under the former. He points out that Section 3, First (f) makes it the duty of the board of three to determine whether the claimant union is “organized in accordance with section 2 hereof and is otherwise properly qualified to participate in the selection of the labor members of the Adjustment Board,” and argues that the words “otherwise properly qualified” must refer to qualifications not listed in Section 2, Eleventh (c). But we think it clear that these words merely incorporate by reference the qualifications listed in Section 3, First (a) for union electors, and the latter section defines these qualifications in terms identical to the union-shop section. See 69 Harv. L. Rev. 1512, 1514. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | Did administrative action occur in the context of the case? | [
"No",
"Yes"
] | [
0
] | sc_adminaction_is |
BOARD OF REGENTS OF THE UNIVERSITY OF TEXAS SYSTEM v. NEW LEFT EDUCATION PROJECT et al.
No. 70-55.
Argued December 6, 1971
Decided January 24, 1972
W. 0. Shultz II, Assistant Attorney General of Texas, argued the cause for appellant. With him on the brief were Crawford C. Martin, Attorney General, Nola White, First Assistant Attorney General, Alfred Walker, Executive Assistant Attorney General, and J. C. Davis, Pat Bailey, and James C. McCoy, Assistant Attorneys General.
David R. Richards argued the cause for appellees. With him on the brief was Melvin L. Wulf.
Mr. Justice White
delivered the opinion of the Court.
This case comes here on direct appeal from the ruling of a three-judge court declaring unconstitutional and enjoining enforcement of two sections of the Rules and Regulations of appellant Board of Regents of the University of Texas System. 326 F. Supp. 158 (1970). We postponed consideration of our jurisdiction to a hearing on the merits. 401 U. S. 935 (1971). For reasons explained below, we have concluded that we lack jurisdiction of this appeal.
This litigation began when the Board of Regents sued the New Left Education Project and certain individuals in a Texas court. In that suit, the Regents sought to restrain defendants from distributing a newspaper and making either commercial or noncommercial solicitations on the Austin campus of the University of Texas except in compliance with appellant's rules. Defendants countered by bringing this federal suit to enjoin further state court proceedings on the ground that the rules that the Regents sought to enforce abridged defendants’ First Amendment rights. A three-judge court met and determined that it was properly convened pursuant to 28 U. S. C. § 2281. It then permitted certain other organizations and individuals, including appellees here, to join the suit as plaintiffs and dismissed the action as to those involved in the state court adjudication. Thereafter, the court granted summary judgment in favor of appellees, declaring unconstitutional and permanently enjoining enforcement of two rules, Regents’ Rules & Regs., c. VI, pt. 1, §§ 6.11, 6.12 (App. 173), governing the campus distribution of certain kinds of literature and the solicitation of dues from members of political organizations.
We have jurisdiction to review directly the lower court’s order granting an injunction only if the case was one required to be heard and determined by a three-judge court. 28 U. S. C. § 1253. Such a court is required where the challenged statute or regulation, albeit created or authorized by a state legislature, has statewide application or effectuates a statewide policy. But a single judge, not a three-judge court, must hear the case where the statute or regulation is of only local import. Moody v. Flowers, 387 U. S. 97 (1967); Rorick v. Board of Commissioners, 307 U. S. 208 (1939); Ex parte Public National Bank, 278 U. S. 101 (1928); Ex parte Collins, 277 U. S. 565 (1928). This rule achieves the congressional purpose of saving statewide regulatory legislation from invalidation through ordinary federal court equity suits, minimizes the burden that the three-judge court places upon the federal judiciary, and avoids unduly expanding the Court’s carefully limited appellate jurisdiction. Phillips v. United States, 312 U. S. 246, 250 (1941). Thus, the "term `statute’ in § 2281 does not encompass local ordinances or resolutions," Moody v. Flowers, supra, at 101, nor does it include a state statute having only a local impact, even if administered by a state official. Rorick v. Board of Commissioners, supra.
Appellant Board of Regents was created by the Texas Legislature and is charged with governing those educational institutions in the University of Texas System. Texas Rev. Civ. Stat. Ann., Art. 2585 (1965). This governance, which specifically includes a rulemaking power, ibid., extends to but three of the 23 four-year state colleges and universities listed in the Higher Education Coordinating Act of 1965, id., Art. 2919e-2, § 2 (Supp. 1970-1971): the University of Texas at Austin, El Paso, and Arlington. In addition to the 20 senior colleges and universities for which appellant bears no responsibility, Texas has at least 31 public junior colleges that are not within the University of Texas System. Ibid. It is true that the Board of Regents governs numerous medical and other specialized schools and branches, id., Arts. 2603e to 2603i, 2606b to 2606d, but these are only some of the specialized institutions that Texas denominates as agencies of higher education. Id., Art. 2919e-2, §§ 2 (e)-(g) (Supp. 1970-1971). It is therefore apparent that the Regents’ rulemaking power and the rules at issue in this litigation extend to but a fraction of the campuses in the Texas system of higher public education. These rules can scarcely be described as matters of statewide concern or expressions of a statewide policy when a large percentage of Texas colleges and universities are unaffected by them and could not be affected by any pronouncement that a federal court might make on their constitutionality. There is no suggestion or indication of any kind that the Regents’ rules are similar to those for other schools or are required by or express statewide policy. The situation here is comparable to that in Moody v. Flowers, supra, where we held that three-judge courts were improperly convened to consider challenges to a state statute applying to a particular country and to a county charter based upon a state statute. The fact that several campuses over which the Board of Regents has jurisdiction are located in different parts of the State does not in our view make their rules of general applicability for the purpose of 28 U. S. C. § 2281. These rules, applying only to some of the higher educational institutions of the State, are of limited significance and do not partake of the quality and dignity of those state statutes or policies that three-judge courts were designed to consider. We are persuaded that a contrary view of this case would be inconsistent with our oft-repeated admonition that the three-judge court statute is to be strictly construed. E. g., Allen v. State Board of Elections, 393 U. S. 544 (1969); Phillips v. United States, 312 U. S., at 251.
Since the three-judge court was improperly convened, appeal lies not here but to the Court of Appeals for the Fifth Circuit. So that appellant may be able, if it desires, to perfect a timely appeal, we vacate the judgment below and remand the case with instruction that the court enter a fresh decree. Phillips v. United States, supra, at 254.
Judgment vacated and remanded.
Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of this case.
Appellant also mentions the University of Texas at San Antonio and of the Permian Basin but does not take issue with appellees’ contention that these schools are merely in the planning stage (Brief for Appellees 2 n. 1).
It has long been settled that a three-judge court is proper even in a suit against a local official, although localized in his geographic activities and mode of his selection, when he is engaged in enforcing a policy of statewide application whose constitutionality is challenged. Spielman Motor Sales Co. v. Dodge, 295 U. S. 89 (1935); Rorick v. Board of Commissioners, 307 U. S. 208, 212 (1939). The thrust of our more recent decision in Alabama State Teachers Assn. v. Alabama Public School and College Authority, 393 U. S. 400 (1969), is to the same effect. The issue there was a legislative direction to the Alabama Public School and Housing Authority to issue bonds for the construction of a public university in Montgomery, Alabama. Appellants challenged that action, although having a local impact, as expressive of an official, statewide policy to maintain a racially identifiable, dual system of education, and the District Court denied relief. The dissent on the merits from summary affirmance, disagreeing with Mr. Justice Harlan’s dissent on jurisdictional grounds, agreed that a statewide policy was sufficiently implicated to sustain the jurisdiction of the three-judge court and the direct appeal here. Board of Visitors v. Norris, post, p. 907, aff’g 327 F. Supp. 1368 (ED Va. 1971), rests upon the same basis. In McLaurin v. Oklahoma State Regents, 339 U. S. 637 (1950), the Court entertained an appeal from the judgment of a three-judge District Court upholding an Oklahoma statute providing that Negroes, though admissible to white graduate schools, must get that education on a segregated basis.
Nothing in the record before us in this case indicates that the regulations challenged here represent general state policy, reflect a statutory command, or apply to more than a fraction of the Texas higher educational institutions. It is thus difficult to understand the dissent’s reliance on the Alabama, Norris, and McLaurin cases. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari. | What reason, if any, does the court give for granting the petition for certiorari? | [
"case did not arise on cert or cert not granted",
"federal court conflict",
"federal court conflict and to resolve important or significant question",
"putative conflict",
"conflict between federal court and state court",
"state court conflict",
"federal court confusion or uncertainty",
"state court confusion or uncertainty",
"federal court and state court confusion or uncertainty",
"to resolve important or significant question",
"to resolve question presented",
"no reason given",
"other reason"
] | [
0
] | sc_certreason |
FRANCIS v. HENDERSON, WARDEN
No. 74-5808.
Argued December 9-10, 1975
Decided May 3, 1976
Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blacicmun, Powell, and Rehnquist, JJ., joined. Brennan, J., filed a dissenting opinion, post, p. 542. Marshall, J., took no part in the decision of the case. Stevens, J., took no part in the consideration or decision of the case.
Bruce S. Rogow, by appointment of the Court, 421 U. S. 1009, argued the cause for petitioner. With him on the brief was Louis Jepeway, Jr.
Barbara Rutledge, Assistant Attorney General of Louisiana, argued the cause for respondent. With her on the brief were William J. Guste, Jr., Attorney General, Harry F. Connick, and Louise Korns.
Mr. Justice Stewart
delivered the opinion of the Court.
In Davis v. United States, 411 U. S. 233, the Court held that a federal prisoner who had failed to make a timely challenge to the allegedly unconstitutional composition of the grand jury that indicted him could not after his conviction attack the grand jury’s composition in an action for collateral relief under 28 U. S. C. § 2255. The question in this case is whether a state prisoner who failed to make a timely challenge to the composition of the grand jury that indicted him could after his conviction bring that challenge in a federal habeas corpus proceeding.
The petitioner, Abraham Francis, was brought to trial in a Louisiana court in 1965 upon an indictment for felony murder. He was represented by counsel provided by the State. The Louisiana law then in force clearly required that any objection by a defendant to the composition of the grand jury that had indicted him had to be made in advance of his trial. Otherwise, the law provided, “all such objections shall be considered as waived and shall not afterwards be urged or heard.” No such objection in any form was made by or on behalf of Francis. At the ensuing trial the jury found Francis guilty, and he was sentenced to life imprisonment.
He did not appeal the conviction, but in 1971 he sought collateral relief from a state court on the ground, inter alia, that Negroes had been excluded from the grand jury that had indicted him. The court held that Francis had waived this claim when he failed to raise it before trial as required by state law, and it accordingly denied relief. Francis thereafter sought a writ of habeas corpus in the United States District Court for the Eastern District of Louisiana. The District Court granted the writ on the ground that Negroes had been impermissibly excluded from the grand jury that had returned the indictment. The Court of Appeals reversed the judgment, holding that in the light of this Court’s decision in the Davis case, “the Louisiana waiver provision must be given effect by the federal district courts unless there is a showing of actual prejudice.” 496 F. 2d 896, 899. Accordingly, the appellate court remanded the case to the District Court. We granted certiorari in order to consider a recurring and unresolved question of federal law. 421 U. S. 946.
There can be no question of a federal district court’s power to entertain an application for a writ of habeas corpus in a case such as this. 28 U. S. C. §§ 2241, 2254. The issue, as in the Davis case, goes rather to the appropriate exercise of that power. This Court has long recognized that in some circumstances considerations of comity and concerns for the orderly administration of criminal justice require a federal court to forgo the exercise of its habeas corpus power. See Fay v. Noia, 372 U. S. 391, 425-426. The question to be decided is whether the circumstances of this case are such as to invoke the application of those considerations and concerns.
In Davis, supra, the petitioner was indicted by a federal grand jury upon a charge of attempted bank robbery. Federal Rule Crim. Proc. 12 provides that a defendant in a federal criminal case who wants to challenge the constitutional validity of the grand jury that indicted him must do so by motion before trial; otherwise he is deemed to have waived such a challenge, except for “cause shown." Davis made no such motion. Almost three years after his trial and conviction, Davis brought a proceeding under 28 U. S. C. § 2255 to set aside his conviction upon the ground of unconstitutional discrimination in the composition of the grand jury that had returned the indictment against him. In holding that § 2255 relief should under these circumstances be denied, the Court said:
“We think it inconceivable that Congress, having in the criminal proceeding foreclosed the raising of a claim such as this after the commencement of trial in the absence of a showing of 'cause' for relief from waiver, nonetheless intended to perversely negate the Rule’s purpose by permitting an entirely different but much more liberal requirement of waiver in federal habeas proceedings. We believe that the necessary effect of the congressional adoption of Rule 12 (b) (2) is to provide that a claim once waived pursuant to that Rule may not later be resurrected, either in the criminal proceedings or in federal habeas, in the absence of the showing of ‘cause’ which that Rule requires. We therefore hold that the waiver standard expressed in Rule 12 (b) (2) governs an untimely claim of grand jury discrimination, not only during the criminal proceeding, but also later on collateral review.” 411 U. S., at 242.
See also Shotwell Mfg. Co. v. United States, 371 U. S. 341, 361-364.
As the Court in Davis pointed out, a time requirement such as that contained in Rule 12 serves interests far more significant than mere judicial convenience:
“The waiver provisions of Rule 12 (b) (2) are operative only with respect to claims of defects in the institution of criminal proceedings. If its time limits are followed, inquiry into an alleged defect may be concluded and, if necessary, cured before the court, the witnesses, and the parties have gone to the burden and expense of a trial. If defendants were allowed to flout its time limitations, on the other hand, there would be little incentive to comply with its terms when a successful attack might simply result in a new indictment prior to trial. Strong tactical considerations would militate in favor of delaying the raising of the claim in hopes of an acquittal, with the thought that if those hopes did not materialize, the claim could be used to upset an otherwise valid conviction at a time when repros-ecution might well be difficult.” 411 U. S., at 241.
The Louisiana time limitation applicable in the present case was obviously designed to serve precisely these same important purposes, as the Court specifically recognized more than 20 years ago in a case involving this very Louisiana law, Michel v. Louisiana, 350 U. S. 91. There the Court said:
“It is beyond question that under the Due Process Clause of the Fourteenth Amendment Louisiana may attach reasonable time limitations to the assertion of federal constitutional rights. More particularly, the State may require prompt assertion of the right to challenge discriminatory practices in the make-up of a grand jury.” Id., at 97 (footnote omitted).
“Not only may the prompt determination of such preliminary matters avoid the necessity of a second trial, but a long delay in its determination, such as here, makes it extremely difficult in this class of case for the State to overcome the prima facie claim which may be established by a defendant. Material witnesses and grand jurors may die or leave the jurisdiction, and memories as to intent or specific practices relating to the selection of a particular grand jury may lose their sharpness. Furthermore, a successful attack on a grand jury that sat several years earlier may affect other convictions based on indictments returned by the same grand jury.” Id., at 98 n. 5.
If, as Davis held, the federal courts must give effect to these important and legitimate concerns in § 2255 proceedings, then surely considerations of comity and federalism require that they give no less effect to the same clear interests when asked to overturn state criminal convictions. Those considerations require that recognition be given “to the legitimate interests of both State and National Governments, and . . . [that] the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always [endeavor] to do so in ways that will not unduly interfere with the legitimate activities of the States.” Younger v. Harris, 401 U. S. 37, 44. “Plainly the interest in finality is the same with regard to both federal and state prisoners. . . . There is no reason to . . . give greater preclusive effect to procedural defaults by federal defendants than to similar defaults by state defendants. To hold otherwise would reflect an anomalous and erroneous view of federal-state relations.” Kaufman v. United States, 394 U. S. 217, 228.
We conclude, therefore, that the Court of Appeals was correct in holding that the rule of Davis v. United States applies with equal force when a federal court is asked in a habeas corpus proceeding to overturn a state-court conviction because of an allegedly unconstitutional grand jury indictment. In a collateral attack upon a conviction that rule requires, contrary to the petitioner's assertion, not only a showing of “cause” for the defendant’s failure to challenge the composition of the grand jury before trial, but also a showing of actual prejudice. Accordingly, the judgment is affirmed.
It is so ordered.
Mr. Justice Marshall took no part in the decision of this case. Mr. Justice Stevens took no part in the consideration or decision of this case.
At the time of Francis’ trial Art. 202 of the Louisiana Code of Criminal Procedure (1928) required that all objections to a grand jury must be raised before the expiration of the third judicial day following the end of the grand jury’s term or before trial, whichever was earlier. State v. Wilson, 204 La. 24, 14 So. 2d 873; State v. Chianelli, 226 La. 552, 76 So. 2d 727. See Michel v. Louisiana, 350 U. S. 91. Louisiana now requires such objections to be made three judicial days prior to trial (or at any time prior to trial if permission of the court is obtained). La. Code Crim. Proc. Ann. Art. 535 (B) (3) (1967).
While Negroes did serve on that grand jury, the District Court held that the practice the State followed at that time of excluding daily wage earners from grand jury service operated to exclude a disproportionate number of Negroes.
This question has been explicitly left open in previous cases. See Davis v. United States, 411 U. S. 233, 242-243; Parker v. North Carolina, 397 U. S. 790, 798.
Before.December 1, 1975, this requirement was embodied in paragraph (b) (2) of Rule 12. It is now contained in paragraphs (b) (2) and (f) of that Rule.
In a case where the state courts have declined to impose a waiver but have considered the merits of the prisoner's claim, different considerations would, of course, be applicable. See Lefkowitz v. Newsome, 420 U. S. 283.
See Davis v. United States, 411 U. S., at 244-245. “The presumption of prejudice which supports the existence of the right is not inconsistent with a holding that actual prejudice must be shown in order to obtain relief from a statutorily provided waiver for failure to assert it in a timely manner.” Id., at 245. | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded. | What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed? | [
"stay, petition, or motion granted",
"affirmed",
"reversed",
"reversed and remanded",
"vacated and remanded",
"affirmed and reversed (or vacated) in part",
"affirmed and reversed (or vacated) in part and remanded",
"vacated",
"petition denied or appeal dismissed",
"modify",
"remand",
"unusual disposition"
] | [
2
] | sc_lcdisposition |
Subsets and Splits